THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 OF CALIFORNIA 
 
 LOS ANGELES
 
 

 
 SELECTED ARGUMENTS 
 
 LECTURES AND MISCELLANEOUS 
 
 PAPERS OF 
 
 RANDELL HUNT 
 
 EDITED BY HIS NEPHEW 
 
 WILLIAM HENRY HUNT 
 
 ASSOCIATE JUSTICE OF THE SUPREME COURT OF MONTANA 
 
 F. F. HANSELL & BROTHER 
 
 NEW ORLEANS, LA. 
 
 1896
 
 The Riverside Press, Cambridge, Mass.,V. ,S. A. 
 Printed by H. O. Houghton & Co.
 
 CONTENTS. 
 
 BIOGRAPHICAL SKETCH v 
 
 A COURT, A TEMPLE OF JUSTICE 1 
 
 AN HISTORICAL DISCOURSE UPON THE UNITED STATES . 4 
 M 
 
 [~ THE LOUISIANA RETURNING BOARD OF 1876 ... 25 
 
 V3 CITIZENSHIP AND ALLEGIANCE ...... 40 
 
 c= ARGUMENT IN THE SLAUGHTER-HOUSE CASES ... 64 
 
 < 
 
 ~ POLITICAL AFFAIRS IN LOUISIANA 94 
 
 -! LECTURE ON THE LAW 128 
 
 COMMERCE 188 
 
 S ADDRESS TO LAW STUDENTS ...... 214 
 
 {} REPORT UPON THE LAW OF EVIDENCE ..... 226 
 
 J5 THE RIGHTS OF THE STATES ...... 253 
 
 THE LOUISIANA STATE LOTTERY 270 
 
 THE REPUBLICAN PARTY IN LOUISIANA .... 308 
 
 cj COUNTING THE ELECTORAL VOTE 313 
 
 TRIHUTE TO MR. TULANE . . 324 
 v: 
 
 O ADDRESS TO MEDICAL STUDENTS 326 
 
 KI SPEECH FOR BELL AND EVERETT 328 
 
 ^' INDEX . 337 
 
 461500
 
 BIOGRAPHICAL SKETCH. 
 
 FOR just half a century, from 1832 to 1882, the name of 
 Randell Hunt was identified with many of the chief events 
 in the history of the Southern States of this country. 
 
 He was conspicuous in the Unionist convention which 
 considered the ordinance of nullification in South Caro- 
 lina ; he was a constitutional lawyer of reputation and of 
 profound learning ; he was a professor of law in the 
 University of Louisiana for about forty years, and for a 
 long time its president ; he was a leader of the state sen- 
 ators in the legislature of his State ; he took a prominent 
 part in seeking to preserve the Union in gloomy days 
 when secession was gaining ground in the South ; he was 
 an orator whose voice rose in eloquent and fearless appeals 
 for the safety of the nation when civil war seemed im- 
 minent ; he was for over twenty-five years, as Chief 
 Justice Chase pronounced him, the " king of the bar of 
 Louisiana : " yet, aside from mere newspaper accounts, 
 no memoir of his life has been written. Certainly the in- 
 fluence of such a man has formed an important part of 
 the history of the States in which he lived, and a brief 
 account of his political and professional deeds, and of the 
 virtues of a career which is so indelibly identified with 
 the progress of his time, may be accepted as a well-meant 
 contribution to the biographical records of our country.
 
 vi BIOGRAPHICAL SKETCH. 
 
 Thomas Hunt, the father of Randell, was born at Nas- 
 sau, in the West India Islands. His father, Robert Hunt, 
 was a native of England, and was colonial governor of 
 the Bahama Islands, and president of the King's Coun- 
 cil at Nassau, in the island of New Providence. Thomas 
 Hunt was a graduate of the University of Edinburgh, 
 Scotland, and, when a young man of about twenty-one 
 years, emigrated from the Bahamas. He was a scholar 
 and a generous gentleman. Pie left the fortunes and 
 prospects of an ancient English family to repair to 
 Charleston, South Carolina, and settled there because he 
 preferred the larger liberty established under the Consti- 
 tution and laws of the United States to the monarchical 
 institutions of Great Britain. He was of commanding 
 presence, distinguished ancestry, and powerful moral char- 
 acter. There was a custom of his days in the South, 
 following the aristocratic tendencies of ante-Revolution 
 people, to acquire landed estates upon which the family 
 home was established, and Mr. Hunt, like other gentle- 
 men of the times, bought a plantation, Woodville, on the 
 Wando River, a branch of the Cooper, about thirty miles 
 from the city of Charleston. He soon renounced his al- 
 legiance to the king of England, and became an American 
 planter and lawyer, having studied law in the office of 
 Mr. John J. Pringle. 
 
 Randell Hunt's mother was the daughter of John 
 Gaillard and Judith Peyre, both descendants of the 
 Huguenots who went to Charleston about the year 1687. 
 While visiting abroad, Louisa, their daughter, was born 
 in the British Channel, close to the shores of France. 
 Two of her brothers, John and Theodore Gaillard, were 
 for a long time in the public service of South Carolina : 
 the former as a United States senator for over twenty-one 
 years, and president pro tern, for fourteen years ; the latter
 
 BIOGRAPHICAL SKETCH. vii 
 
 as an associate judge of the Court of Common Pleas up 
 to his death in 1829. 1 
 
 Louisa Gaillard and Thomas Hunt, having become 
 acquainted in the then famous society of Charleston, were 
 married January 1, 1805, and lived to have twelve chil- 
 dren born to them, of whom Randell Plunt was the second, 
 the date of his birth being December 31, 1806. 
 
 The schoolboy days of Randell were passed under the 
 tuition of the best instructors in the city of Charleston 
 until he became old enough to attend Bishop England's 2 
 academy in that city. 
 
 The family used to pass the Easter holiday season on 
 the plantation, and the departure of Randell for a " big 
 man's school " greatly impressed the slaves. The mode 
 of travel between the plantation and Charleston was en- 
 tirely by boat, manned by six stalwart negroes, who 
 thought it no small honor to row the young man from his 
 home to the city. The negroes generally sang as they 
 rowed the boat, and the sweet refrain of an improvised 
 melody, " Massa Randell is going to a 'big man's school,'" 
 echoed in the forest as they moved along the picturesque 
 shores of the Wando. 
 
 Randell is described as a clear-complexioned boy, with 
 
 1 Benton, iu his Thirty Years' View, has dwelt on the character of 
 Mr. Gaillard as that of a wise and public-spirited senator. His 
 brother, Judge Gaillard, was a scholar and a wit as well as a learned 
 magistrate. Another kinsman, Dominick Augustiu Hall, went to live 
 in Louisiana, where he became the first district judge of the United 
 States. It was by his order that General Jackson, then hero of the 
 battle of New Orleans, was fined for invasion of the privilege of the 
 writ of habeas corpus. Judge Martin, in his History of Louisiana, treats 
 with deserved respect the character of Judge Hall. Judge Hall was 
 appointed in 1813. He was not to be intimidated, and bore himself 
 with stern judicial impartiality. 
 
 2 Bishop England was Roman Catholic Bishop of Charleston, and, 
 until the appointment of Cardinal McCloskey, perhaps the most dis- 
 tinguished of the prelates of his church hi America.
 
 vni BIOGRAPHICAL SKETCH. 
 
 expressive gray eyes, brown hair, a large mouth, and a 
 head of noticeable height above the ears. He was not 
 tall, nor was he at all handsome ; but his countenance 
 was pleasing, his face intellectual, his expression thought- 
 ful, and his manner particularly gentle. The teachers at 
 Bishop England's school were surprised by his great in- 
 dustry, and impressed by his extraordinary love of read- 
 ing. He devoured every book within his reach, and re- 
 membered what he read. This wonderful taste for reading, 
 however, did not prevent a genuine love of sport in him. 
 Indeed, he was very fond of fishing and hunting, being 
 a keen and successful sportsman and a remarkably fine 
 wing-shot. He would tramp miles and miles while look- 
 ing for game, but when he rested it was his invariable 
 habit to take from his pocket a book and intently read it. 
 
 In 1821 he graduated first in his class from Bishop 
 England's academy, and entered the College of South 
 Carolina, at Columbia, an institution then boasting a 
 well - acquired reputation as a seat of learning. Dr. 
 Thomas Cooper, the scholar, author, and political econo- 
 mist, was president of the college at that time. 
 
 The graduates of the class of 1825 included several 
 men who attained national distinction. Among the first 
 five of the class were Stephen Elliott and James A. Ham- 
 mond. The former became professor of the evidences 
 of Christianity and sacred literature in the College of 
 South Carolina, a doctor of divinity, and a widely ad- 
 mired pulpit orator : he was made Protestant Episcopal 
 Bishop of Georgia. Hammond, at the time when he ap- 
 peared in college, was of surprising personal beauty. The 
 exalted honor for such it was accorded in his day 
 of being governor of the high-spirited and aspiring State 
 of South Carolina, the haughty temper of which was like 
 that of some independent republic, fell to him in the
 
 BIOGRAPHICAL SKETCH. ix 
 
 period of early manhood. 1 After a subsequent retirement 
 of years he reappeared in the stormy period of the slavery 
 agitation as senator in Congress. To Hammond is prop- 
 erly to be ascribed the origin of the word "mudsills " as 
 applied to a portion of the people of the North whom he 
 likened to the slaves of the South. The speech using the 
 term was made upon the bill for the admission of Kansas 
 to the Union. 
 
 When the honors of college were distributed, Randell 
 Hunt received the first. Some action of the authorities 
 had changed the usual mode of assigning college honors. 
 Instead of giving the highest to the student of average 
 excellence in the general, it was determined to report the 
 standing and scholarship of graduates in each depart- 
 ment separately. The result was that Randell Hunt was 
 awarded the first place in every one of his studies. A 
 letter from Dr. Cooper bore the intelligence to his father, 
 and filled his heart with purest happiness. To accomplish 
 such a feat, Randell had made it his devoted practice to 
 spend twelve hours out of every twenty-four in study. 
 
 As a student of the classics and history, his reading had 
 made him conspicuous for his knowledge and cultivation. 
 His memory had become a prodigious one, nor was he 
 without success already as a public speaker ; and his pro- 
 fessors sent him back to Charleston to do honor to his 
 Alma Mater in a career predicted to be full of promise. 
 
 The profession of the law very naturally attracted him, 
 and he entered the office of Mr. William Lanee, a leader 
 of the bar of Charleston. With the close habits of study 
 which he pursued, and his superior education upon which 
 to found a legal education, Mr. Hunt was readily admit- 
 ted to practice in the year 1828. 2 
 
 1 From 184-2 to 1844. 
 
 2 Mr. Boozee, the clerk of the Supreme Court of South Carolina, 
 writes that the roll upon which Mr. Hunt's name, together with the
 
 x BIOGRAPHICAL SKETCH. 
 
 Of his first appearance in presenting a case at the bar 
 of South Carolina little can be ascertained ; but that he 
 soon became prominent is evidenced by the newspapers, in 
 1883, reporting in full, with editorial comment, his argu- 
 ment upon the right of a state court to require a sworn 
 allegiance to the State before admitting an alien to be- 
 come a citizen of the United States. The speech of Mr. 
 Hunt (published among his other writings) might well 
 be quoted by any court, and is an exhaustive review of 
 the powers of the state courts under the federal laws of 
 naturalization. No lawyer of twenty-seven years of age 
 could have delivered so comprehensive and logical an 
 argument upon such a broad question unless possessed of 
 close reasoning powers, with a mind capable and trained 
 in methods of thought and study. 
 
 Wending his way homeward one night, about this 
 time, Mr. Thomas Hunt, attracted by the crowd which 
 thronged at a late hour of the night one of the city 
 court-houses of Charleston, made his way into it. The 
 scene was an animated one. The court was sitting. 
 The hall where the session was held was ablaze with 
 light. The multitude, and the judges themselves, hung 
 upon the glowing words of a young but eloquent speaker, 
 who held them entranced, and in whom Mr. Hunt soon 
 recognized his son liandell, already a man of distinction. 
 He paused, and then stood delighted. At last, overcome 
 by the emotions natural to such a situation, there, in the 
 presence of the spectators, he added to the triumph of 
 his son in the tears of a father's joy, a tribute which, ac- 
 cording to the constitution of man's being, surpasses all 
 others that can be rendered. 
 
 But Mr. Hunt was destined to enter the political field, 
 
 exact (late of his admission, appeared, was destroyed during the war. 
 The date is given by O'Xeall's Bench and PMC of South Carolina as 
 18128.
 
 BIOGRAPHICAL SKETCH. xi 
 
 and to fervently espouse the national cause, the insepara- 
 bility of the States of the Union from the Union itself. 
 
 South Carolina was agitated profoundly by the tariff 
 law of 1828, which was affecting- the planting- States so 
 visibly that the menacing doctrine of a nullification 
 movement was gaining ground. John C. Calhoun led the 
 opposition to the protective system of the law of 1828, 
 and kept alive the disposition to disregard the federal 
 laws of impost duties. Andrew Jackson, then President, 
 was not in opposition to a protective system. In 1831 
 Calhoun issued his famous " Address to the People of the 
 State of South Carolina," announcing the Constitution to 
 be a mere compact between sovereign States ; that the gen- 
 eral government is the mere agent between those sovereign 
 States ; that whenever any one of the parties to the com- 
 pact, any State, considers any law made by the general 
 government to be iinconstitutional, it may " nullify" that 
 law, or declare and treat it as void. Calhoun again, in 
 1832, issued an address embodying the doctrine of state 
 rights, and advising issue to be taken on account of the 
 sufferings of the South. 
 
 The legislature of South Carolina was convened, and 
 by it a convention ordered to assemble on November 19, 
 1832, " to consider the character and extent of the usur- 
 pations of the general government." 
 
 Political excitement was general throughout the nation 
 and at fever heat in the State of South Carolina, where 
 the struggle of the Unionists, which had been a hard one 
 
 OO ' 
 
 for several years, was about drawing to its close. The 
 nullifiers were in a large majority. They made inflamed 
 speeches, denounced the opposition in violent terms, and 
 organized defiantly. They wore palmetto cockades, like 
 the Southern secessionists just before the war of the 
 Rebellion. They looked forward to war, and measures 
 to precipitate it were set on foot. For a Union speech
 
 xii BIOGRAPHICAL SKETCH. 
 
 made at this season at a meeting held in a church build- 
 ing, Randell Hunt was placarded and threatened to be 
 hanged. But he and his brothers adhered unwaveringly 
 to the cause of the country. 
 
 It is not material to recite the history of the passage of 
 the ordinance of nullification, nor of the excitement prev- 
 alent generally during the year 1832. The student of 
 the history of those times will find an abundant oppor- 
 tunity for research into a field full of the most interest- 
 ing events, and he will be impressed with the powerful in- 
 fluence wielded by the orators and writers who were 
 conspicuous in the movements of the times. But the 
 Unionists were determined to express a last dissent from 
 the action of the opposition, and a state convention, with 
 representatives from all parts of South Carolina, met just 
 after the nullification convention to record the sentiments 
 of the Union party. Randell Hunt was a prominent 
 figure in the assembly, and epitomized the views of the 
 convention, and the questions it should consider, in three 
 sentences : 
 
 " That the Union party acknowledges no allegiance to 
 any government except that of the United States." 
 
 " That in referring this resolution to the general com- 
 mittee, they be instructed to inquire whether it is not 
 expedient to give a military organization to the Union 
 party throughout the State." 
 
 " Whether it will not be necessary to call in the assist- 
 ance of the general government for maintaining the laws 
 of the United States against the arbitrary violence which 
 is threatened by the late convention." 
 
 The work of the convention is well expressed by the 
 following terse summary of its acts : l 
 
 1 From a paper by Mr. Gaillarcl Hunt entitled " South Carolina 
 and Nullification," published in the Political Science Quarterly i'or 
 June, 1891.
 
 BIOGRAPHICAL SKETCH. xiii 
 
 " The resolutions which were adopted declared that the 
 ordinance of nullification violated the Constitution of the 
 United States, and had virtually destroyed the Union, 
 since, by preventing the general government from enfor- 
 cing its laws within the boundaries of the State, it made 
 the State a sovereignty paramount to the United States. 
 They denounced the provisions of the ordinance as tyran- 
 nical and oppressive, and the test oath as especially incom- 
 patible with civil liberty, in that it disfranchised nearly 
 half the citizens of the State. They pointed scornfully 
 to the project of a standing army in the State. Such an 
 army must necessarily be inadequate to protect the nul- 
 lification party from the coercive power of the United 
 States ; its only object, therefore, must be to tyrannize 
 over Carolina Unionists. They concluded by declaring 
 the continued opposition of the signers to the tariff, and 
 their determination to protect themselves against intoler- 
 able oppression. The resolutions were signed by all the 
 members of the convention, about one hundred and 
 eighty in number." 
 
 The difficulty was, however, that the sentiment of the 
 people was adverse to the resolutions. Mr. Hunt was 
 troubled by the dissensions dividing the people, and the 
 future seemed dark. 
 
 To add to his dread, as a citizen, of the consequences 
 destined to follow the Calhouii policies, there now came 
 to him affliction and trouble in his home ; but they only 
 developed the same determination and honor within him 
 towards his family that had been shown towards his State 
 in the late preceding times of her adversity and misguided 
 policy. His father died on December 25, 1830, leaving 
 a widow and twelve children. 
 
 Just before Mr. Thomas Hunt's death some reverses in 
 fortune befell him, so that when the lands were sold and 
 the estate's debts paid there was little left for the support 
 of the family.
 
 xiv BIOGRAPHICAL SKETCH. 
 
 Charleston did not grow. Political disturbances were 
 likely to continue so long as Mr. Calhoun and his party 
 retained their influence, and to a young man who abhorred 
 the doctrines which were gaining ascendency in the State 
 the prospect was by no means bright. Then, too, to 
 maintain the fashionable style of life to which the family 
 were accustomed, and in which other prominent house- 
 holds of the city of Charleston lived, was impossible. A 
 change of residence was thought best. Theodore Gail- 
 lard, also a lawyer, and Thomas, a physician, brothers of 
 Randell, concluded to go to New Orleans, Louisiana, of 
 all Southern cities, at that date, by far the most promis- 
 ing. The field was a broad one, and Louisiana was justly 
 proud of numbers of professional men unexcelled in 
 learning and reputation. Moreover, the Hunts * were 
 
 1 Theodore Gaillard Hunt was a colonel in the Mexican war, and 
 a member of Congress in 1853-54. He was district attorney, a 
 judge of the criminal court in Xew Orleans, and a colonel in the 
 Confederate army. He died in Xew Orleans, November 15, 1893. 
 
 Dr. Thomas Hunt was long the leading advocate of university 
 education in the State, and was a scholar and an orator and a man 
 of science, as well as a physician and surgeon of consummate skill 
 and at the head of his profession. He was a surgeon of the Charity 
 Hospital. He was the earliest and most active of the founders of 
 the Medical College of Louisiana, and was professor of physiology 
 and pathology and of special pathological anatomy in the medical 
 department, and dean of the medical faculty. lie received the 
 appointment, just before his death, to be surgeon of the Marine 
 Hospital, in the service of the United States. He was, when he died, 
 president of the University of Louisiana, now the Tulane Univer- 
 sity of Louisiana. An heroic service in the interest of humanity, 
 rendered in 1834 to the brig Amida, which was wrecked on Folly 
 Island, the cholera raging among passengers and crew, earned for 
 Dr. Hunt the thanks of the city of Charleston, as "the intrepid 
 physician of ''"oily Island," and at twenty-four raised him to distinc- 
 tion, lion. Carleton Hunt, an eminent lawyer of Louisiana, is a son 
 of Dr. Thomas Hunt. Dr. Hunt died March L'5, 1807. 
 
 One of the vomi^er brothers was William II. lie became one of
 
 BIOGRAPHICAL SKETCH. xv 
 
 very willing to turn their backs on Calhoun's policies, 
 and identify themselves with a growing community which 
 would preserve the Union as Daniel Webster and Henry 
 Clay would have it perpetuated. 
 
 New England invited those in search of education, and 
 Mrs. Hunt concluded to move to New Haven, Connecti- 
 cut. The family left Charleston later in the year 1832. 
 Randell went on to New York, intending to practice in 
 that city. The pecuniary circumstances of his mother 
 and the education of the younger members of the family 
 made his responsibilities great. He was unacquainted, 
 and, being without means, the undertaking of establish- 
 ing himself in the North seemed perilous. His brothers 
 meanwhile urged him to make his home in New Orleans, 
 where the prospects of immediate better circumstances 
 invited him to go. Mr. Hunt was not in a position to 
 run the risk of having to wait for professional success 
 in New York, and a sense of responsibility not to be post- 
 poned caused him to adopt Louisiana as his home. From 
 obvious present conditions it is to be regretted that he 
 did not remain in New York, for had he done so his 
 ability and learning would have found the broader scope 
 they were entitled to. 
 
 But to New Orleans he went, content with his decision. 
 
 the leaders of the bar of New Orleans, and was distinguished as a 
 very successful and eloquent advocate. In 1876 he was appointed 
 attorney-general of Louisiana. In 1877 he was made an associate 
 justice of the United States Court of Claims. In 1881 he was ap- 
 pointed Secretary of the Xavy by President Garfield. In 1882 he 
 was made minister to Russia by President Arthur. He died at St. 
 Petersburg, Russia, February 28, 1884. 
 
 Copeland, another brother, went, a very young man, to California 
 in 1849, and died of typhoid fever in San Francisco. He had served 
 as captain of a company in the volunteer army of the United States 
 in the Mexican war, and had already given proof of very uncommon 
 abilities as a lawyer.
 
 xvi BIOGRAPHICAL SKETCH. 
 
 In 1833 New Orleans was a great commercial city, with 
 advantages second only, it seemed, to New York, and 
 with a future far ahead of any other city in the West or 
 South. Its population was growing and enterprising, 
 its society was distinguished for brilliant men and 
 accomplished women, its climate was salubrious, and 
 altogether, from a fair standpoint of the times, in its 
 future it seemed to be certain of becoming to the South 
 what New York was to the North. Surely the profes- 
 sional field was tempting. The names of Edward Living- 
 ston, 1 Etienne Mazureau, Francis Xavier Martin, Judah 
 P. Benjamin, John II. Grymes, Pierre Soule, Christian 
 Roselius, George Eustis, and Alfred Ilennen made the 
 bar celebrated in Europe and America, and earned for 
 it a reputation never surpassed by any State before or 
 since. 
 
 Little did any of those distinguished men then know 
 that there had come into their midst an ambitious young- 
 Carolinian, to whose powers and knowledge they would 
 yet defer ! 
 
 An occasional reference to the subject in after-years 
 proved that his affectionate nature was also a strong 
 motive for drawing Mr. Hunt to New Orleans, for there 
 he knew he would have the associations and ambitions 
 of his brothers to help him on. It is strange that he ever 
 doubted his prompt success at the bar in New York, yet 
 was willing to compete at once with such men as those 
 named, in New Orleans. 
 
 Without further delay, in the year 1833 he entered 
 upon the practice of his profession in his new home. 
 Clients soon came to him, and with his indefatigable stu- 
 diousness he mastered every legal question submitted to 
 
 1 Mr. Livingston had been elected United States senator shortly 
 before Mr. Hunt went to New Orleans. In 1833 he resigned as 
 Secretary of State, and accepted the mission to France.
 
 BIOGRAPHICAL SKETCH. xvii 
 
 him. As he once wrote himself, " difficulties vanish be- 
 fore application and study." His habits of work were 
 peculiar and irregular. He often left his bed in the 
 middle of the night, after an hour's sleep, lit the lamp, 
 and resumed his labor. With unvarying patience he 
 searched for the foundation of all reason bearing upon 
 the points under investigation, and was not content until 
 he knew all there was to learn upon his topic. Of read- 
 ing he never tired. Mr. Hunt's professional life is a 
 marked illustration of the truism that a lawyer's know- 
 ledge can be acquired only by labor, hard and untiring 
 mental work. 
 
 To enumerate his triumphs at the bar would be to re- 
 view the most important lawsuits tried in the federal and 
 state courts of Louisiana for forty years, yet a few of the 
 causes celebres may be mentioned, where his eloquence 
 and ability will long be remembered. 
 
 The first substantial fee he earned he put into a box 
 and shipped by sea to his mother m New Haven. Specie 
 coin being the principal money of those days, a box con- 
 taining three thousand dollars must have been of some 
 weight, but railroads and drafts were not the possible 
 methods to remit money by, as they now are. 
 
 One of Mr. Hunt's first arguments before the Supreme 
 Court of the State was for the appellant in the cause of 
 Barelli v. Hagan, argued in 1839. 1 
 
 He succeeded Edward Livingston in the celebrated 
 Batture litigation, 2 in which Livingston finally overthrew 
 Thomas Jefferson. 
 
 In the course of time he became counsel for the city 
 of New Orleans, and gave in that capacity an opinion 
 
 1 13 La. Rep. p. 581. 
 
 2 This controversy arose in 1805, when Mr. Livingston instituted 
 a suit for John Gravier against New Orleans to quiet title to certain 
 lands on the banks of the Mississippi, adjacent to New Orleans. 
 
 I
 
 xviii BIOGRAPHICAL SKETCH. 
 
 that the city was liable for damages done by the mob 
 which, on the occasion of the execution of the American 
 filibusters, 1 broke into the houses of Spanish residents 
 and destroyed their property. It will be remembered 
 that Mr. Webster, as Secretary of State, took afterwards 
 a like position for the government of the United States, 
 and made reparation to Spain. 
 
 Mr. Hunt, towards the close of his career, was em- 
 ployed by the government of the United States as special 
 counsel in the Wine cases, and prosecuted the wine 
 merchants of New Orleans for violation of the revenue 
 laws. And it was his argument at last, in the celebrated 
 Slaughter-House cases, which, prevailing as it did in the 
 Supreme Court of Louisiana, was accepted by the Su- 
 preme Court of the United States (16 Wall. p. 70), 
 and gave to the fourteenth amendment of the Constitu- 
 tion the first authoritative interpretation. The court 
 heard the case twice, and gave judgment at last, by the 
 majority of a single vole, in favor of the contention Mr. 
 Hunt had promoted below : that the first clause of the 
 amendment in question was intended primarily to confer 
 citizenship 011 the negro race, and that the second pro- 
 tects, from the hostile legislation of the States, the privi- 
 leges and immunities of citizens of the United States as 
 distinguished from the privileges and immunities of citi- 
 zens of the States. 
 
 This memorable decision determined that the existence 
 of the States, with powers for domestic purposes and 
 local government, including the regulation of civil rights, 
 the rights of person and of property, is essential to the 
 perfect working of our complex form of government. 
 
 Curious to relate, the opposite view of the fourteenth 
 amendment was contended for by Ex-Justice John A. 
 
 1 1851. Schonler's History of the United States.
 
 BIOGRAPHICAL SKETCH. xix 
 
 Campbell, 1 a disciple of the Calhoun view of politics. 
 Returning to New Orleans from Washington, Judge 
 Campbell furnished a striking commentary on the rela- 
 tions of counsel to public affairs. He then called on 
 Mr. Hunt and congratulated him. He went on to say 
 that it was better for the country that the view of Mr. 
 Hunt had prevailed over his own. 
 
 Before the nisi prius courts Mr. Hunt acquired a large 
 practice because of his extraordinary success in jury trials. 
 The strength and vigor of his understanding, the compre- 
 hensiveness of his studies as a scholar as well as a jurist, 
 and the breadth and liberality of his views, the clearness 
 and the elevation of his reflections, and the logic and 
 accuracy with which he was able to array these, and then 
 to express them, and the excellence of his declamation 
 when brought to bear, as it habitually was with him, upon 
 a perfect mastery of the particular case under discussion, 
 enabled him to attain to a degree of true eloquence which 
 is not often to be met with, and fo command the admi- 
 ration not only of the general public, but of the most 
 critical listeners, practiced lawyers, and learned judges. 
 
 One of the leaders of the New Orleans bar writes of 
 him in this manner : " In addition to profound studies he 
 brought to advocacy in criminal cases the best powers I 
 have ever seen in court. His examination of witnesses 
 was very searching. His ability to lay down a principle 
 and to show its application to the circumstances in hand 
 was most striking. His whole action was splendid ; 
 courage illuminated the entire man when he was aroused 
 and enabled him to give every protection to his client. 
 Nobody dared to assail him. Above all, he had pathos in 
 speech such as is seldom found. He would wring the 
 
 1 John A. Campbell, associate justice of the United State Supreme 
 Court from 1853 to 1861, when he resigned, and practiced law in 
 New Orleans.
 
 xx BIOGRAPHICAL SKETCH. 
 
 hearts of his hearers, and move all their tender and com- 
 passionate feeling's." 
 
 It is related that Etienne Mazureau, for years attor- 
 ney-general of Louisiana, and the famous lawyer of his 
 day, upon hearing one of Mr. Hunt's first arguments in 
 New Orleans, said, "That is good ; " and at a later period 
 during the same argument he again said, " That is good ; " 
 but finally, when the argument was concluded, the distin- 
 guished advocate exclaimed, " That is indeed great ! " 
 
 In the celebrated case of the State of Louisiana, State 
 of Maryland intervening, v. The Executors of John 
 McDouogh and the City of New Orleans, Mr. Hunt, as 
 counsel for the city, was enabled to win one of the great 
 triumphs of his professional career. The controversy in 
 the Supreme Court of Louisiana, and afterwards in the 
 Supreme Court of the United States on final appeal, 
 was over the vast legacies established by the holographic 
 last will and testament of McDonogh in favor of the 
 cities of New Orleans and Baltimore. The bequest was 
 of the residue of McDonogh's estate, wheresoever situ- 
 ate, unto the mayor, aldermen, and inhabitants of New 
 Orleans, his adopted city, and the mayor, aldermen, and 
 inhabitants of Baltimore, his native city, in equal propor- 
 tions of one half each. The legacies to the two cities were 
 for certain purposes of public utility, and especially for 
 the establishment and support of free schools wherein the 
 poor, and the poor only, of both sexes, of all classes and 
 castes of color, should have admittance free of expense for 
 the purpose of being instructed in the knowledge of the 
 Lord, and in reading, writing, arithmetic, history, geog- 
 raphy, and singing, etc., etc. The States of Louisiana 
 and Maryland instituted suit against the cities of New 
 Orleans mid Baltimore, to avoid the legacies in favor of 
 the latter. The collateral heirs of McDonogh also at- 
 tacked the will, it being contended that the legacies in
 
 BIOGRAPHICAL SKETCH. xxi 
 
 question were substitutions and fidei commissa, which are 
 expressly forbidden by law, and that the legacies were 
 made upon impossible conditions to corporations not hav- 
 ing 1 the capacity to receive, and were consequently null. 
 
 This case was argued in 1853 before the Supreme 
 Court of Louisiana, where was filed in behalf of the lega- 
 tees an elaborate opinion by French jurists of distinction, 
 Delile, Delaugle, Giraud, Duranton, and Marcade. Mr. 
 Hunt added to his reputation by an argument on the same 
 side, distinguished by a profound knowledge of the civil 
 law of France and of Louisiana, and of the Roman civil 
 law which is the source of both. 
 
 The decision of the Supreme Court of Louisiana was 
 in favor of McDonogh's will as a legacy to pious uses, of 
 which the cities were recipients. According to the court, 
 such legacies are an element in the polity of municipal 
 administration in all countries which have preserved the 
 features and jurisprudence of Roman civilization. 
 
 The decision applied the term " pious " to the encour- 
 agement and support not only of pious and charitable 
 institutions, but of those in aid of education and the ad- 
 vancement of science and the arts. Under the benign 
 doctrine thus established, and afterwards confirmed by 
 the Supreme Court of the United States l as embodying 
 the true rules of jurisprudence, great numbers of public 
 schools, both in New Orleans and Baltimore, have been 
 established, and will continue for all time to dispense the 
 inestimable blessings of knowledge to those who stand 
 most in need of them. 
 
 When McDonogh v. Murdock et aL was argued, Mr. 
 Hunt had reached national reputation as a lawyer, but 
 the court was, notwithstanding, hardly prepared for the 
 practiced and masterly advocacy with which he urged his 
 
 i McDonogh r. Howard. The case is reported in 15 Howard, 
 U. S. S. C. Reports, 3G9.
 
 xxn BIOGRAPHICAL SKETCH. 
 
 powerful argument, and by general admission overbore 
 Reverdy Johnson, then the leader of the bar. Justice 
 Campbell, who gave the opinion, always insisted that, of 
 all the arguments he had ever heard, he liked this one 
 best. It was his habit to return in memory to the occasion 
 again and again, and to rehearse its incidents to others. 
 
 Another of the important suits in which he appeared 
 was tried in 1865, and involved the genuineness of an 
 asserted codicil to the will of John McDonogh, to whom 
 reference has been made. A man by the name of Moses 
 Fox, claiming to be McDonogh's nephew, sought to have 
 probated the codicil wherein McDonogh bequeathed him 
 three hundred thousand dollars. The cities of New Or- 
 leans and Baltimore set up that the codicil was a forgery. 
 The trial was before the second district court of New 
 Orleans, and attracted great attention. Mr. Hunt repre- 
 sented New Orleans ; Christian Koselius, Baltimore ; and 
 Pierre Soulc, the petitioner Fox. The arguments were 
 exhaustive, and upon appeal to the Supreme Court were 
 characterized by Justice Ilowell, who read the opinion of 
 the court, as of " singular ability." Mr. Koselius adopted 
 the brief of Mr. Hunt as his own argument on behalf of 
 the city of Baltimore, a professional compliment which 
 Mr. Hunt valued with the appreciation due the eminent 
 lawyer who bestowed it. The forgery was proved against 
 the claim of Fox, and the codicil rejected. 1 
 
 Prominent members of the New Orleans bar, who have 
 known of all the memorable civil trials for the last forty 
 years, refer to the argument of Mr. Hunt in the case of 
 the ship Russia as one of the most eloquent ever heard in 
 
 1 The question of expert testimony as to handwritings was a most 
 important feature of the ease. Frenchmen were the leading wit- 
 nesses on both sides, and the value of their knowledge was rigidly 
 tested. The argument of Pierre Sould is printed in full in the report 
 of the case in the Louisiana Reports, but other briefs are recorded 
 as "not found." Tin: opinion of the court is reported in the 18th 
 La. Annual Reports, p. 419.
 
 BIOGRAPHICAL SKETCH. xxiii 
 
 the trial courts of the State. The Russia had foundered 
 near the mouth of the Mississippi. Her owners sued the 
 insurance companies for the amounts of their policies. 
 They defended upon the ground that the loss of the ship 
 was occasioned by the barratry of her master. 
 
 Sargent S. Prentiss, 1 Christian Roselius, and John 
 Finney represented the owners, while Benjamin, Micou, 
 Grymes, and Maybin appeared for the defense. During 
 the progress of the suit Mr. Prentiss died, and it was 
 upon the second trial below that Mr. Hunt first appeared 
 in his stead. The trial attracted much attention on ac- 
 count of the issues and the many distinguished lawyers 
 engaged. 
 
 Judge Mortimer M. Reynolds presided. Colonel John 
 R. Grymes was the principal advocate for the defendants. 
 He was then in his prime, and is described as " a model 
 of manly grace, dressed like a dandy, with many eyes 
 turned toward him." His speech was greatly admired. 
 
 Speaking of the conspirators, on whom he charged, 
 Colonel Grymes reached a climax : " Gentlemen of the 
 jury, since the sun and the moon and the stars shone 
 in the heavens, there never stood three such rascals on 
 a quarter-deck ! " 
 
 Mr. Hunt closed the plaintiff's case in an address 
 which truly deserves to be remembered as splendid. He 
 forged the links of his argument so as to make up a chain 
 that could not be broken. He fell upon his adversaries 
 with a power of sarcasm which made them writhe, and 
 under which they could hardly sit. His argument lasted 
 for hours, and resulted in a verdict for the owners. 
 
 A noteworthy case, in which it happened that Mr. Ben- 
 jamin 2 and Mr. Hunt met, was that of the impeachment 
 
 1 Sargent S. Prentiss was a native of Maine. He was known as a 
 
 o 
 
 great orator and lawyer. His home was in Mississippi for years, but 
 he moved to New Orleans about 1845. 
 
 2 Judah P. Benjamin, United States senator from Louisiana from
 
 xxiv BIOGRAPHICAL SKETCH. 
 
 proceedings in the state Senate of Louisiana of a judicial 
 officer, Judge Benj. C. Elliott, charged in the year 1844 
 with wrongfully issuing naturalization papers to foreigners, 
 and so prostituting to Democratic partisan purposes the 
 powers of his high office. Pierre Soule defended the 
 judge, while Benjamin and Hunt appeared against him, 
 as managers 011 behalf of the state House of Representa- 
 tives, of which body Mr. Hunt was a leading member. 
 Benjamin spoke first, and with great applause. Mr. Hunt 
 followed. The speeches were contrasted by Alexander 
 Bullitt, then editor of the " New Orleans Picayune." He 
 greatly praised Mr. Benjamin, and likened his argument 
 to a beautiful Corinthian column ; but the argument of 
 Mr. Hunt, he proceeded to say, reminded him of a noble 
 and complete edifice, in which the column was merely a 
 single part. 
 
 The report recommending the removal of Judge Elliott 
 from the office of judge of the city court of Lafayette 
 was signed by Mr. Hunt as chairman. It was a most 
 severe arraignment, and was prefaced in the following 
 impressive language : 
 
 " Our liberties depend upon the pure exercise of the 
 right of suffrage. If we suffer that right to be abused 
 and polluted, to be extended by fraud and corruption, or 
 by carelessness and loose practices, to those not entitled 
 to it by the Constitution and laws of our State, our gov- 
 ernment will at once degenerate from its high republican 
 character and sink into a tyranny. 
 
 " Hence it becomes us to guard with the greatest vigi- 
 lance against every encroachment on the right of suffrage, 
 and to discountenance and reprobate, on the part of those 
 in \vhom the administration of the naturalization laws is 
 confined, any remissness or failure in the discharge of 
 their duties. 
 
 1852 to 18G1, when he withdrew. lie became a leader at the bar of 
 Ensrhiml after the war.
 
 BIOGRAPHICAL SKETCH. xxv 
 
 " The right of suffrage is the very life-blood of liberty. 
 It is inseparable from the political equality and indepen- 
 dence of man. It is essential to citizenship, and its honest 
 exercise is alike the safety and glory of popular rule. It 
 should, then, be maintained in its highest purity, and es- 
 pecially by its elected guardians, the officers of the law." 
 
 The Democratic members of the legislature presented a 
 minority report ; and in April, 1844, the court of im- 
 peachment assembled in New Orleans. The arguments 
 extended over several days, and the result of the impeach- 
 ment was vividly described in the following language, 
 quoted from the account of Henry C. Castellanos, Esq., a 
 member of the New Orleans bar : 
 
 " The dismissal of this disgraced and recreant func- 
 tionary by the Senate of this State a dismissal brought 
 about by the concurrent action of Whigs and Democrats 
 alike awakened among all classes of citizens feelings 
 of unmixed gratification. The sturdy independence of 
 several Democratic senators was highly commended. 
 Although it was nearly midnight when the result was 
 first announced, still there were thousands on the qui vive 
 awaiting the event. The news spread like wildfire. The 
 St. Louis rotunda, Hewlett's Exchange, and Banks' Ar- 
 cade disgorged their hundreds of habitues, who, all wend- 
 ing their course toward the State House, soon filled up 
 that part of Canal Street. An impromptu demonstration 
 was proposed, and at once got up. The cannon of the 
 Washington Artillery were drawn from their armory, and 
 a salute of twelve guns fired. Then forming into a pro- 
 cession, with blazing pine torches and a band of music at 
 their head, the swelling crowd proceeded to serenade the 
 House managers, Messrs. Hunt, Benjamin, and Wads- 
 worth, as a compliment for their services in the cause 
 of political honesty. And all this within the compass of 
 one hour."
 
 xxvi BIOGRAPHICAL SKETCH. 
 
 The Shepherd will case was another of the great cases 
 wherein Mr. Hunt made an argument of such merit as to 
 require some mention. 
 
 The dispute was over the distribution of a large estate 
 left by James H. Shepherd, who died in 1837. 
 
 Mr. Hunt, Judge Campbell, and Mr. Roselius repre- 
 sented the heirs of a brother of J. H. Shepherd, who 
 sued to recover shares of the property belonging to them 
 by the will. 
 
 Mr. Hunt's brief, covering one hundred and fifty 
 pages, shows research into the French, Roman, and 
 English laws concerning wills, and in a style conspicuous 
 for its purity and solidity presented the law and facts as 
 they were upheld by the court, and resulted in a fortune 
 for his grateful clients. 
 
 He must have been satisfied with his own argument, 
 for he concluded it in these words : 
 
 " This argument for the defense is here closed. It has 
 been drawn from the purest fountains of jiistice and of 
 law : the writings of the ancient sa^'es and most learned 
 
 o o 
 
 doctors of the civil law, the decisions of courts of the 
 highest character, and the comments and dissertations of 
 the most illustrious jurists of the present day. It has 
 not been confined to a mere exposition of the textual pro- 
 visions of law, but has been extended, after the fashion of 
 those by whose authority it is supported, into the investi- 
 gations of principles, the search after the natural truths 
 upon which the private relations of men, their contracts 
 and rights of family and property repose, in the hopes to 
 impart something of the charm of philosophy to that 
 which otherwise would have been comparatively dry and 
 contracted. For it is this association of philosophy and 
 law that renders jurisprudence a science, and leads to the 
 contemplation of the high and fixed rules of wisdom, jus- 
 tice, and beneficence, from which our dearest rights, the 
 purest links of law's golden chain, are sustained.
 
 BIOGRAPHICAL SKETCH. xxvii 
 
 " It is for you, judges, to pronounce upon the plaintiff's 
 attempt, without legal proof and against moral evidence, 
 to blast the memory of a good man who descended into 
 the tomb with public veneration, to carry dishonor and 
 shame into his daughter's family, and to despoil her of 
 property held under a just judgment of court and sancti- 
 fied by a possession of thirty years. From her distant 
 home in Massachusetts, Ellen Brooks, the daughter of 
 Rezin D. Shepherd, calls upon you to protect her from the 
 speculations of cupidity, and her father, whose reputation 
 is dearer to her than her own life, from the aspersions 
 of calumny." 
 
 The great success which he had achieved in his pro- 
 fession was the reward of almost uninterrupted study. 
 Politics did not disturb Mr. Hunt at all seriously, although 
 his position at the bar placed him where he met the dis- 
 tinguished public men of the South. A Whig of a radi- 
 cal type, he had become well acquainted with Mr. Clay, 
 who frequently visited New Orleans in the years preced- 
 ing the campaign of 1844. Mr. Hunt ardently admired 
 Mr. Clay, and belonged to the large number of old 
 Whigs who never ceased to regret his defeat for the pres- 
 idency. He spoke often for the Whig cause, and joined 
 in the spontaneous enthusiasm which the name of Mr. 
 Clay everywhere aroused. At Mr. Clay's request Mr. 
 Hunt visited him at Ashland, and their relations became 
 intimate. Mr. Clay urged at one time his appointment 
 as Attorney-General of the United States. 1 
 
 Not long after Clay's death, a snuff-box which had 
 once belonged to Peter the Great was presented to Mr. 
 Hunt by Dr. Mercer, of New Orleans, to whom Mr. Clay 
 had bequeathed it. Dr. Mercer gave it to Mr. Hunt, 
 "knowing," he wrote, "of the high regard that Mr. Clay 
 bore for you always." 
 
 1 Probably when Mr. Fillmore became President.
 
 xxvin BIOGRAPHICAL SKETCH. 
 
 Louisiana was noted for the intensity of " Whiggism." 
 In no other State were the leaders of that political party 
 more active or sanguine. Even in 1851, when a total 
 dissolution of the organization was inevitable, the Louisi- 
 ana Whigs entered the fall campaign with vigor and con- 
 fidence. Randell Hunt was on the stump, working ear- 
 nestly for the Union and a new state Constitution. Pierre 
 Soule, then United States senator, had made a speech 
 upon the admission of California into the Union, express- 
 ing opinions sustaining the right of a State to demand 
 allegiance to it alone. The course of Senator Soule gave 
 Mr. Hunt full opportunity to reply to the senator's views, 
 and at the same time to reiterate his own well-known 
 Union sentiments. This he did at the close of a brilliant 
 speech, devoted principally to the necessity for a new 
 state Constitution. Among other things concerning the 
 Union Mr. Hunt said : 
 
 " Mr. Soule declares that the right to secede was fully 
 and most emphatically implied in the Articles of Confed- 
 eration, and is not surrendered by the Constitution. The 
 Articles of Confederation, upon their very face, declare 
 that they are ' Articles of Confederation and Perpetual 
 Union.' And in the preamble to the Constitution of the 
 United States it is declared that ' the people of the United 
 States, in order to form a, more perfect Union, do ordain 
 and establish the Constitution.' 
 
 " Mr. Soule declares that a State, in seceding, would 
 only ' exert her undoubted privilege as one of the sov- 
 ereign confederates.' This declaration is based upon the 
 notion that the Constitution of the United States is a 
 mere league between sovereign States who have preserved 
 their whole sovereignty. But the Constitution of the 
 United States forms a government, and not a league. It 
 operates directly upon the people, individually, and not 
 upon the States. Each State lias surrendered many es-
 
 BIOGRAPHICAL SKETCH. xxix 
 
 sential portions of its sovereignty fo? the purpose of con- 
 stituting, with the other States, a nation. To secede, 
 then, is not to break a league, but, in the language of 
 General Jackson, to destroy the unity of a nation. 
 
 " Mr. Soule declares, substantially, that his allegiance is 
 due to the State alone, and not to the United States. ' Does 
 not each of us,' says he in his speech, ' possess do we 
 not exert whenever we please the right of changing our 
 allegiance by passing from one State to the other, or to 
 a foreign state ? Who denies it ? Who doubts it ? ' 
 
 " Does Mr. Soule suppose that his allegiance to the 
 United States would be changed by his passing from 
 Louisiana to South Carolina or to Massachusetts ? Has 
 he not taken an oath of allegiance to the United States ? 
 Has he not sworn to support the Constitution of the 
 United States ? Does not that Constitution provide that 
 the Constitution and the laws of the United States shall 
 be the supreme law of the land ; and does it not also pro- 
 vide that the members of the several state legislatures, 
 and all executive and judicial officers both of the United 
 States and of the several States, shall be bound by oath to 
 support the Constitution ? Does it not contain a clause 
 expressly conveying a right to punish treason against the 
 United States : and is not treason the highest breach of 
 allegiance ? 
 
 " How can a citizen of the United States say, then, that 
 he owes no allegiance to the United States ; and how can 
 he assert that his allegiance is changed by ' passing from 
 one State to the other, or to a foreign state ' ? 
 
 " I can hardly imagine how even a native of a State who 
 has not reflected seriously upon the true character and 
 complicated structure of our government, and who has 
 been educated with false feeling of state pride, and been 
 taught the extreme doctrines of state rights in the school 
 of abstractionists and metaphysicians, can so far lose sight
 
 xxx BIOGRAPHICAL SKETCH. 
 
 of the operations of the national government as for a 
 moment to believe that he owes allegiance to his native 
 State alone, and that he owes no allegiance to the United 
 States. But I confess myself entirely at a loss to under- 
 stand how an adopted citizen, who may be naturalized in a 
 Territory or in the District of Columbia ; who may reside 
 during his probationary term in one State and may be 
 admitted in another ; whose right of citizenship has been 
 conferred upon him by the United States, and not by the 
 State in which he may chance to live ; and who, at the 
 time of his application to be admitted, must have re- 
 nounced and abjured all allegiance to the prince, state, 
 or sovereignty whereof he was before a citizen or subject, 
 and sworn to support the Constitution of the United 
 States, I confess myself entirely at a loss to understand 
 how such a person can believe his allegiance is not due to 
 the United States. 
 
 ' These notions and these doctrines of Mr. Soule, if car- 
 ried into practice, would destroy our national character 
 as Americans, and put an end to the Union. 
 
 " Mr. Soule says ' he is not for breaking this confeder- 
 acy ; he is not for advising the State to join any secession 
 movement which may be made by other States.' Oh no ! 
 He only argues the right in the abstract. He would have 
 the people still endure. But this is a dangerous philos- 
 ophy. Practically speaking, there is but one step from 
 the conviction as to a right and its enforcement, from the 
 suffering of a wrong to its manly redress. Ours is a 
 government of sentiment and affection, and if the feelings 
 of the people are once alienated from it, the government 
 from that moment is at an end. 
 
 "What is it that the advocates of secession desire ? 
 What would they have who seek to destroy our Union, 
 
 / > 
 
 and to erect a State into an independent nation ? . . . 
 " But what would be our condition if we were divided
 
 BIOGRAPHICAL SKETCH. xxxi 
 
 into rival and hostile States? I turn with horror from 
 the contemplation of the misery which would await us at 
 home, and can see nothing but degradation abroad. Sup- 
 pose Louisiana were to secede from the Union ; suppose 
 one of her sons in a foreign land were to be threatened 
 by the minions of a tyrannical government with wrong 
 and injury, what more ridiculous and insignificant an 
 object can there be imagined than such a person claiming 
 protection in the name of the sovereign nation of Loui- 
 siana, and pointing to a flag with a pelican on it as the 
 emblem of his country ? " 
 
 When the old Whig party totally dissolved, Randell 
 Hunt, like so many others in the South, united with the 
 Americans or Know-Nothings. He was the American 
 candidate for attorney-general of his State in 1855, and X 
 made a very active campaign. The yellow fever was * ' J 
 violent in many towns that year, and traveling facilities 
 were inadequate, so that between the two discomforts his 
 tour of the State was not very pleasant. Politically speak- 
 ing, however, it was a success, and he wrote of a large 
 meeting he had addressed at Richmond in September, 
 1855, where great enthusiasm prevailed. Mr. Hunt's 
 meetings were crowded at all points, and every form of 
 compliment was showered upon him. He went into Mis- 
 sissippi, too, where the mayor of the city of Natchez and 
 other dignitaries extended him what he termed " an ova- 
 tion." The Democrats were equally active ; " the staple 
 of their addresses," wrote Mr. Hunt, " being a vituper- 
 ation and denunciation of the American party, mingled 
 with praises of the Democracy and of the administra- 
 tion." 
 
 At Monroe, in Ouachita, he held a joint debate with 
 Judge Richardson. He was heard with apparent rap- 
 ture. Every patriotic sentiment was applauded to the 
 echo, and even the dullest parts of his argument seemed
 
 xxxn BIOGRAPHICAL SKETCH. 
 
 to excite the intensest interest. Judo-e Richardson an- 
 
 o 
 
 swered him, and Mr. Hunt rejoined. The judge was 
 very uneasy during the rejoinder. He turned and 
 twisted himself about in his chair, rubbed his face, 
 stretched his legs, and at length rose and incontinently 
 fled from the contest. The boys laughed at him as he 
 retired, and a hearty and vociferous shout of victory, with 
 three cheers for Hunt, made the welkin ring and ended 
 the discussion. The American party, however, was de- 
 feated, and Mr. Hunt went down with it. 
 
 The question of a convention to revise the state Con- 
 stitution of 1845 became a political issue during the 
 campaign of 1851, the Whigs favoring, the Democrats 
 opposing revision. 
 
 Mr. Hunt argued for the Whigs that the Constitution, 
 with its restrictions and prohibitions, had fettered the 
 enterprise and industry of the people, and caused capital 
 to seek a more natural and freer home elsewhere. He 
 contended that railroads and other improvements needed 
 stimulating by enabling legislation ; that the judicial 
 system was defective, and the executive department too 
 much restricted. 
 
 At the period in question Mr. Hunt was iindoubtedly 
 the most widely admired public speaker in the State of 
 Louisiana. He prepared and delivered from the gallery 
 of Stickney's Amphitheatre, in the city of New Orleans, 
 an elaborate address in favor of a new Constitution, which 
 carried conviction not only to his immediate listeners, but 
 to the voting population throughout the State. Ilis part 
 in the discussion of the issues before the public had the 
 effect of making an epoch in local history. He rolled 
 up the Constitution of 1845, and put it aside like an old 
 and useless parchment. That Constitution was now pro- 
 nounced to be unsuitcd to the spirit of the times and to 
 the growing requirements of a modern American com- 
 monwealth.
 
 BIOGRAPHICAL SKETCH. xxxiii 
 
 The Whigs carried the election. Mr. Hunt was elected 
 a member of the convention, and readily became leader 
 of the body, taking a chief part in its important deliber- 
 ations, and moving, when it closed its session, the final 
 adjournment. 
 
 He was the leading member of the Judiciary Commit- 
 tee. In the list of his colleagues were such men as 
 Christian Roselius, Judah P. Benjamin, Ex-Governor 
 Roman, Edward A. Bradford, 1 Duncan F. Kenner, and 
 others, who contributed to the lasting honor and fame of 
 Louisiana, and who helped to make up perhaps the ablest 
 deliberative body that has ever assembled in the State. 
 The Constitution adopted by the convention became the 
 new law of the State, and remained so until 1864. 
 
 It being part of the history of the State that one of the 
 causes leading to a change of Constitution was the popu- 
 lar wish to disembarrass legislation from some of the 
 trammels of the Constitution of 1845, and to enable the 
 State to grant aid to works of internal improvements, 
 
 1 Mr. Bradford met with cruel disaster. He was, towards the 
 close of the administration of President Fillmore, appointed associate ' 
 justice of the Supreme Court of the United States, in the place 
 which Justice Campbell was afterwards called to fill. On receiving 
 the appointment Mr. Bradford left Xew Orleans and repaired to 
 Washington, where Congress was in session. It happened that he 
 was known (he was a graduate from Yale College) to gentlemen 
 from the North. Some of these had seen his nomination with joy, 
 and rose in the Senate to testify to the excellence of his character 
 and of his attainments. This, happening in the height of the sla- 
 very agitation, ruined Mr. Bradford. An element from the South 
 took alarm. They resented the praise that had been spoken. They 
 suspected the sincerity of it, simply because of the quarter from 
 which it came. They then appealed to party and to sectional pas- 
 sions, and the rejection of Mr. Bradford's name was the result. At 
 a dinner-party given to Hon. Randall Gibson by Judah P. Benjamin, 
 in Paris, Mr. Benjamin said to Senator Gibson that Mr. Bradford was 
 the greatest lawyer he had ever known.
 
 xxxiv BIOGRAPHICAL SKETCH. 
 
 that subject naturally engrossed the legislative mind, 
 and resulted in the adoption of the act of March 12, 
 1852, providing for the subscription, by the parishes and 
 municipal corporations of the State of Louisiana, to the 
 stock of corporations undertaking works of internal im- 
 provements, and for the payment and disposal of the 
 stock so subscribed. As the conspicuous champion of 
 the Constitution of 1852, as well as the most eminent 
 constitutional jurist at the bar, for such undoubtedly had 
 the position of Mr. Hunt become, he was employed, at 
 large retainers, to defend the constitutionality of the act 
 of March 12, just referred to. The judgment of the 
 Supreme Court of Louisiana, following the views urged 
 by him on argument, in police jury, for the use of the 
 New Orleans, Opelousas. and Great Western K. R. Co. 
 v. Succession of McDonogh, 8 La. An. 341, and in City 
 of New Orleans v. Mrs. Graihle, 9 La. An. 561, proceeded 
 to secure the building of the Great Western Railroad. 
 Down to this time there were only eighty-one miles of 
 railroad in the State of Louisiana. The adjudications 
 here cited fixed the construction of two great lines of 
 communication, one of which has grown to be part of the 
 Southern Pacific Railway across the continent, and the 
 other has become an important link in the Illinois Cen- 
 tral Railroad. The territory of Louisiana was not only 
 brought in this way into close intercourse with the other 
 parts of the country, and a new commerce established 
 for it, but it was also bound to the national destiny, and 
 made irrevocably part of it. 
 
 Mr. Hunt was now at his best, and addressed himself 
 to the discussion of his great cases with astonishing full- 
 ness of research, and with great breadth and liberality, 
 as well as persuasive powers, in professional debate. It 
 was on the occasion of the delivery of the argument for 
 the railroad that Mr. Benjamin, then one of the leaders
 
 BIOGRAPHICAL SKETCH. xxxv 
 
 of the bar of New Orleans, but afterwards the acknow- 
 ledged head of the bar of London, paid Mr. Hunt's ad- 
 vocacy that tribute which is so often repeated in New 
 Orleans. Mr. Benjamin returned from court in com- 
 pany with Thomas L. Bayne, Esq., a well-known mem- 
 ber of the bar, who had studied law in Mr. Benjamin's 
 office. The two gentlemen conversed as they walked. 
 Mr. Benjamin had just left the Supreme Court, where 
 Mr. Hunt had been speaking. " Splendid ! " he ex- 
 claimed. " Did you hear Hunt ? Shall I ever be able 
 to make a speech like that?" A measure of praise no 
 less than this was afterwards rendered Mr. Hunt by 
 Judge John A. Campbell, who, retired from his high office 
 of associate justice of the Supreme Court of the United 
 States, came himself in the course of time to stand at the 
 head of the legal profession in the city of New Orleans. 
 Judge Campbell, when Mr. Hunt was elected by the 
 legislature of the State of Louisiana to be senator in 
 Congress, declared that he was the strongest lawyer who 
 had ever argued before him. 
 
 Any sketch of Randell Hunt would fall short of ren- 
 dering him justice which might leave it to be understood 
 that his professional engagements included only great 
 cases, such as have been mentioned. As he advanced in 
 years his experience grew, and embraced many of the 
 complex and important relations of a civilized society. It 
 became his practice to argue cases such as arose in the city 
 of New Orleans in exciting times of close party contests, 
 involving titles to offices of profit and emolument and 
 of influence, like those, for example, of district attorney 
 for the parish of Orleans, clerk of the great Common- 
 wealth Court of the town, and commissioners of election. 
 His skill in the criminal practice and deep knowledge of 
 the criminal law, and his fearless character and eloquent 
 voice, attracted to him also numbers of criminal cases,
 
 xxxvi BIOGRAPHICAL SKETCH. 
 
 and enabled him to sustain the reputation of being first 
 at the criminal bar. Life in New Orleans was full of 
 stirring incidents. Parties were quite evenly divided. 
 Personal encounters were common, and led often to mor- 
 tal consequences. Mr. Hunt, whose standard of profes- 
 sional duty was the highest, at some personal risk de- 
 fended Wadsworth, and had him acquitted. Wadsworth 
 had been warned that one Carson would take his life. 
 Wadsworth met Carson and shot him dead in the great 
 rotunda of the St. Louis Hotel in New Orleans. Mr. 
 Hunt also defended Pope Adams on a charge of murder, 
 making on his behalf an appeal for mercy such as only 
 the most consummate skill and oratory could produce. 
 Adams was convicted notwithstanding. Sentenced to 
 death, he ended his life in prison by taking poison. 
 
 Mr. Hunt successfully defended Garland, city treasurer 
 of New Orleans, on a charge of robbing the city trea- 
 sury. He attacked the indictment and overthrew it. He 
 also defended with success Benjamin being appointed 
 with him Kendall, postmaster at New Orleans, who was 
 charged with rifling the mails. The signal forensic tal- 
 ents displayed by Kendall's counsel secured his acquittal, 
 and added fresh lustre to their high reputation. 
 
 The first candidacy of Mr. Hunt for the L T nited States 
 Senate grew naturally out of the character which he had 
 earned by his service in public affairs, as well as out of 
 his eminence as a lawyer. The contest was between 
 Duncan F. Kcnner (who shortly afterwards became presi- 
 dent of the Constitutional Convention of 1852), Mr. Ben- 
 jamin, and Mr. Hunt. The name of Mr. Hunt rallied to 
 his support an influential consanguinity of distinguished 
 merit and the best citizens, who saw in him the represen- 
 tative of sound constitutional opinions and of consistent 
 and devoted Unionism. The choice of the legislature 
 fell at last upon Benjamin. lie was at the end of his
 
 BIOGRAPHICAL SKETCH. xxxvii 
 
 term reflected, under circumstances not very gratifying to 
 him, by a bare majority. It was not long before he left 
 his place and plunged into the vortex of the Rebellion. 
 It was reserved to Mr. Hunt to receive the honor of an 
 election when the war which he had opposed was brought 
 to a close. 
 
 We must turn from the narrative of his public life to 
 his own affairs for a moment. Although he had now 
 reached his forty-eighth year he was still a bachelor. 
 Matters before the Supreme Court at Washington took 
 him to that city in the spring of 1854. While there, 
 Mr. Hunt became engaged to Miss Ruhamah Ludlow, a 
 niece of Mrs. McLean, the wife of Justice McLean, of 
 the Supreme Court of the United States. He tele- 
 graphed to New Orleans that he had " won two suits, 
 one in the Supreme Court and one in the Court of 
 Love." Miss Ludlow was quite celebrated for her beauty 
 and accomplishments. They were married at Cincinnati 
 on the following July 12. Mrs. Hunt's grandfather was 
 Colonel Israel Ludlow, one of the founders and proprie- 
 tors of Cincinnati, and her ancestors were officers in the 
 war of the American Revolution. 1 She was ever a devoted 
 and loving wife. They had no children. 
 
 Resuming our glance at the political kaleidoscope, it 
 would be out of place in this brief memoir to more than 
 mention the downfall of the Know-Nothings. They 
 never had any formidable strength, and the impending 
 moral issue of slavery or no slavery was of so much more 
 universal interest than any amendment of our natu- 
 
 1 Benjamin Chambers was one of the early settlers (about 1726) 
 in Cumberland County, Pennsylvania. His son was in the Revolu- 
 tionary War. 
 
 Cornelius Ludlow was also an officer in the Revolution. Two of 
 Mrs. Hunt's brothers, Israel and Benj. C., were gallant officers on 
 the Union side during the war of 1861-05. Chief- Justice Salmon 
 P. Chase married a sister of Mrs. Hunt.
 
 xxxviii BIOGRAPHICAL SKETCH. 
 
 ralization and immigration statutes that it is surprising 
 that Know -Nothingism' had any substantial following. 
 The Southern Whigs seemed to have been considerably 
 tossed about between the years 185G and 1860. Mr. 
 Lincoln, as the leader of the Republican party, was too 
 radical, they thought, in his abolition tendencies. On the 
 other hand, they could not tolerate Douglas, who repre- 
 sented all that was to them pernicious and dangerous. 
 They were violently opposed to Breckinridge, who was 
 purely the candidate of a section of the Union rather 
 than of the Union as a whole. 
 
 During the summer of 1860 a national convention of 
 delegates, largely comprised of old Whigs, Americans, 
 and Know-Nothings, in the North and South, met at 
 Baltimore, and, under the name of Constitutional Union- 
 ists, nominated John Bell, of Tennessee, for President, and 
 Edward Everett, of Massachusetts, for Vice-President. 
 The platform of the party may be summarized by its 
 adherence to the Union. An approved historian declares 
 that the new party were in favor of the Union, but just 
 how to execute a plan for its preservation was not clear 
 to them. 
 
 Blaine, in his " Twenty Years of Congress," thus mits 
 it : u Mr. Bell desired to avoid the one question that was 
 in the popular mind, and to lead the people away from 
 every issue except the abstract one of preserving the 
 Union. By what means the Union could be preserved 
 against the efforts of the Southern secessionists Mr. 
 Bell's party did not explain. The popular apprehen- 
 sion was that Mr. Bell would concede all they asked, and 
 insure the preservation of the Union by yielding to the 
 demands of the only body of men who threatened to 
 destroy it." 
 
 The leaders, as a rule, were opposed to total abolition, 
 and a "gradual emancipation" was discussed.
 
 BIOGRAPHICAL SKETCH. xxxix 
 
 Bell and Everett were personally well-known patriots. 
 They were statesmen of tried abilities, and could be 
 trusted, old Whigs said, to preserve the Union and work 
 out methods of emancipation by a more conservative pro- 
 cess than the Republicans proposed. 
 
 The Southern Unionists, with Randell Hunt as a con- 
 spicuous leader, united in support of the new party, and 
 entered the campaign with an ardor equaled only in the 
 Clay-Polk times. 
 
 Mr. Hunt presided over the convention of the Consti- 
 tutional Union party which assembled in the city of Baton 
 Rouge July 4, 1860. The campaign opened early. 
 
 , Invitations to speak poured in upon him. They came 
 from Pennsylvania, New Jersey, New York, Ohio, and by 
 the score from the cities of every Southern State. 
 
 He was himself a candidate for state senator from his 
 district in Louisiana, bxit his own election was a secondary 
 thought. He was overwhelmed with professional matters, 
 too, and decided to remain in the South. Some of the 
 letters he received were couched in terms of the confi- 
 dence and admiration the people entertained for him. A 
 letter, for instance, signed by Wyatt C. Thomas, corre- 
 sponding- secretary of the Constitutional Club of Wash- 
 ington, Arkansas, pleads with him to visit that State, " to 
 attend at a grand demonstration and barbecue in favor 
 of Bell and Everett, which comes off in this place on the 
 20th of October. Preparations are on foot and in pro- 
 gress to make it the largest and most splendid meeting 
 ever held in the State. From five to ten thousand per- 
 sons will certainly be present, and upon that day, perhaps, 
 will be decided the fate of this State. Will you allow us 
 to appeal to you, then, under the circumstances, in vain ? 
 One blast now upon your bugle-horn is worth a thousand 
 men ! Come and be present with us, and the Union men 
 of Arkansas and the whole nation will ever regard your
 
 xl BIOGRAPHICAL SKETCH. 
 
 action with feelings of the most profound gratitude." 
 And another addressed to him by J. B. Jones, as presi- 
 dent of the Constitutional Union Club of Burlington, 
 New Jersey, said that it would " afford our people great 
 gratification to hear you in behalf of the Union cause." 
 The pressure to have him go North was too great to 
 resist, so he went to Philadelphia. The substance of his 
 speech in Philadelphia, before the Continental Union 
 Club, is given elsewhere in this volume. One of his invi- 
 tations, dated at Jackson, Mississippi, September 14, 1860, 
 contained the following sentence : u We expect a very 
 large assembly of the people from Mississippi, Louisiana, 
 Alabama, etc., and we do not intend to flatter when we 
 assure you that your voice will exercise a powerful and 
 beneficial influence on the result in each of the States 
 mentioned." The letter is signed by the following 
 names : F. Anderson, R. L. Buck, W. L. Sharkey, W. P. 
 Anderson, George L. Potter, Patrick Henry, C. L. Buck, 
 H. IT. Miller, D. Shetlon, John Shetlon, and others. 1 
 
 His tour was an ovation. Eulogistic introductions, 
 crowds of people, music, barbecues, receptions, serenades, 
 applause, and interruptions by occasional fights, in- 
 deed, all the incidents and interest which marked a so- 
 called " red-hot " political campaign, before the war, in 
 the South and West, were repeated wherever he ap- 
 peared. The tenor of his speeches was for the Union. In 
 not one did lie omit utterances of loyalty in a manner and 
 style which aroused throngs to the highest pitch of excite- 
 ment. He always quoted from Webster and Clay, whose 
 conceptions of a united country conformed with his own. 
 and concluded with perorations of fervent hopes for the 
 safety of the country, no matter what adversities might 
 come. It is hard to say whether he believed Bell could 
 
 1 jMany of these persons were prominent in the State of Missis- 
 sippi us lawyers and officials.
 
 BIOGRAPHICAL SKETCH. xli 
 
 be elected, with the Republicans gaining such strength all 
 over the North and West. He could not have believed 
 so unless he was carried away by the expressions of others 
 whose ill-founded hopes overcame sound judgment. 
 
 Bell was ingloriously defeated. 
 
 The sting of defeat made the Breckinridge men avow 
 their sentiments of disunion, and secession was popular 
 talk in the South. Conventions were being called through- 
 out the States implicated in the movement, and civil war 
 was fearfully close at hand. 
 
 South Carolina, Mississippi, Florida, Alabama, and 
 Georgia had taken measures for secession. Louisiana 
 was more tardy. There were very many Unionists in the 
 State who dreaded the step, and prayed that it might be 
 averted. The current was too strong, however. The 
 governor issued his proclamation ordering the legislature 
 to convene on December 10. A bill was introduced to 
 call a convention to consider the adoption of an ordinance 
 of secession. There were many expressions of a wish 
 to hear from Mr. Hunt. His counsel was needed, and 
 the more conservative men urged the state senators to 
 hear him before they acted. But the steamboat upon 
 which he had taken passage to Baton Rouge was de- 
 layed, and some impatience was shown. One prominent 
 ultra-secessionist exclaimed : " What is the use of this 
 legislature waiting to hear from Randell Hunt ? We 
 know what he will say." They did wait for him. how- 
 ever, and upon December 12, 1860, the eloquence of his 
 voice rang out in favor of the Union. By those who 
 heard the speech it was always regarded as the best he 
 ever delivered. Baton Rouge was excited at the an- 
 nouncement that he would be heard, and hundreds of 
 people were unable to gain admission into the senate hall. 
 Stenographic reports, unfortunately, were not to be had, 
 and no part of the speech was ever printed.
 
 xlii BIOGRAPHICAL SKETCH. 
 
 The movement to call a convention was too powerful 
 the measure was passed ; and again Mr. Hunt found 
 himself hopelessly fighting- for the same high principle 
 of a United States that he had struggled for in South 
 Carolina nearly thirty years before. 1 
 
 The way in which his remarkable oration was received 
 can be gathered by the following editorial from a Baton 
 Rouge newspaper : 
 
 THE RIGHT KIND OF TALK IN THE RIGHT PLACE. 
 
 As announced the day before, the Hon. Randell Hunt, 
 yesterday, soon after the opening of the Senate, stood 
 up as the representative man of the day and generation 
 passed away, and delivered the most forcible as well as 
 eloquent address ever heard within the walls of the old 
 Gothic building. His subject was the Convention Bill, 
 which, the public is already advised, has passed both 
 branches of the Assembly, and will presently have the 
 force of law. The whisper about town that Mr. Hunt 
 would speak drew a crowd of people to the Senate at 
 an early hour, and hundreds went away unable to get 
 within the compass of his voice. From the antecedents 
 of the eloquent gentleman, and his well-known position 
 on the great question which has absorbed all others, what 
 he said was anticipated ; but how he said it is only 
 known to the fortunate few who listened to him. We 
 cannot pretend to give his words, no, not even the 
 bright scintillations of his genius, as he clothed national 
 and American sentiments in the most gorgeous drapery, 
 and threw them about as gems, not only to da/zle, but to 
 strike deeply into the very heart of his auditors. 
 
 Air. Hunt denied the right of the legislature to call 
 a convention of the people without first submitting the 
 
 1 On January -!(!, 1S(J1, Louisiana passed the ordinance of secession 
 by a vote of Hi; to 17.
 
 BIOGRAPHICAL SKETCH. xliii 
 
 question, according to time-honored precedent and Demo- 
 cratic usage. He dwelt on the madness of separate state 
 action on a question involving the interest of others as 
 well as our own vitality. 
 
 Is it too much to say that Mr. Hunt, who is a Louisi- 
 anian by birth, education, and spirit, and is yet proud to 
 call himself an " American citizen," had the heart of his 
 audience, beating sweet music to that noble sentiment, 
 " The Constitution and the Union, now and forever, one 
 and inseparable " ? We think not, and gain fresh courage 
 to battle in our own way along the dark path before us 
 to this end. 
 
 The term of Mr. Hunt in the state Senate of Louisi- 
 ana was not allowed, however untoward the circumstances, 
 to pass without a renewal by him of his endeavor of a 
 long time to reform and liberalize the law of evidence. 
 In his character of professor of law, he had made the 
 law of evidence a subject of especial study and reflec- 
 tion. He had prepared and delivered numerous philo- 
 sophic essays in advocacy of the improvement of this 
 branch of jurisprudence, and helped to train for the bar 
 of the State many young men who, growing upward, were 
 prepared to bring to his labors the support of their own 
 best convictions. Mr. Hunt accordingly prepared the 
 report of the Judiciary Committee of the Senate in sup- 
 port of the act by him introduced, relative to the law of 
 evidence. It pronounced the exclusionary rules of evi- 
 dence to be false and degrading. It condemned them as 
 obstructing the inquiry after truth in courts of justice, as 
 denying to innocence the proper and natural means of 
 protection, and as securing immunity to fraud and crime. 
 It was the contention of Mr. Hunt and he supported it 
 by an appeal to philosophy as well as to the experience 
 of others that the time had come when Louisiana should
 
 xliv BIOGRAPHICAL SKETCH. 
 
 act on the subject, and, availing- herself of the wisdom of 
 others, admit the evidence of interested witnesses without 
 exception, leaving the weight of evidence to he determined 
 by the judging power. 
 
 The effort of Mr. Hunt failed, owing to the circumstance 
 of its being made just as the civil war broke out. But 
 the long and patient labors of his lifetime had not been 
 thrown away. They had deeply impressed the minds of 
 men, and he had the satisfaction of seeing them take form 
 not long afterwards and develop into a law of the State. 1 
 
 During the winter of 18G1, after Mr. Seward had been 
 chosen Secretary of State in the future Cabinet of Mr. 
 Lincoln, he suggested to the President elect that it would 
 be policy to appoint a Southern man to the new Cabinet, 
 and he submitted for consideration the names of Randell 
 Hunt, John A. Gilmer, Kenneth Kaynor, and Colonel 
 Fremont. It was doubtful whether any Southern man 
 from a seceding State could be induced to enter the Cabi- 
 net, but Mr. Seward wrote him that he thought Kandell 
 Hunt would be well chosen. Mr. Lincoln, under date of 
 January 12, 1801, said ho preferred Mr. Gilmer. of North 
 Carolina, over Mr. Hunt, "because,'' wrote the President 
 elect, " he lias a living position in the South, while they '' 
 (referring to Mr. Gentry and Mr. Hunt) " have not.'' 2 
 It is doubtful whether Mr. Hunt was ever communicated 
 with directly in relation to this matter. His refusal to 
 permit his name to be used for a high office :! under Mr. 
 Lincoln, at a later period, warrants the belief, moreover, 
 
 1 Act of Louisiana Legislature, 1S(><S. For the report upon the 
 law of evidence, and for much else pertaining to the professional 
 career of Mr. Hunt, grateful acknowledgment is made to Hon. 
 Carleton Hunt, of Xe\v Orleans. 
 
 - Nicolav and Hays' Life, of' A brnhnin Lincoln. The words "living 
 position" must refer to the fact that North Carolina had not yet 
 passed an ordinance of secession, and a Unionist was therefore " liv- 
 ing." 
 
 8 Associate justice of United States Supreme Court.
 
 BIOGRAPHICAL SKETCH. xlv 
 
 that he would have declined to serve in the Cabinet. 
 It will be remembered that not until after inaugura- 
 tion, upon March 4, 1861, did Mr. Lincoln complete the 
 selection of his Cabinet ministers, and finally he compro- 
 mised by making Montgomery Blair, of Maryland, Post- 
 master-General. Maryland, at the time, is described as 
 having been balancing between loyalty and open seces- 
 sion, and the President thought that the recognition of 
 Mr. Blair might stop the inroads of secession. 
 
 When the first States seceded, so violent an opponent 
 of their course was Mr. Hunt that he would have brought 
 them back into recognition of the Union by force. Never 
 did he yield in any degree his unqualified disapproval of 
 every initiatory movement of a secession which led up to 
 the war between the States. Nor is it going too far to 
 say that Mr. Hunt was bitterly disappointed at the atti- 
 tude Louisiana and other Southern States were taking. 
 But the mighty current of a popular movement, based upon 
 conceived moral rights, was sweeping over the domain of 
 eleven States. Political contagion often overtakes men 
 with as little discrimination as do the treacherous fevers 
 of a malarial country sicken their bodies. To turn his 
 back upon six million of his fellow-countrymen was more 
 than Mr. Hunt could do. Right or wrong, he wished to 
 believe them right ; his sense of duty told him not to for- 
 sake them ; they needed his counsel. He never had with- 
 held it in any prior emergency ; he could not do so now. 
 His fortunes lay with the South, and, secession having 
 been undertaken, he then acquiesced in their plans of a 
 confederacy. 
 
 Historians, in writing with perfect impartiality of the 
 earlier days of the secession movement, will not detract 
 from the sincerity of purpose or conviction of those 
 Unionists, like Mr. Hunt, who permitted themselves to be- 
 come identified with the new confederation. Southern
 
 xlvi BIOGRAPHICAL SKETCH. 
 
 men, of all others, loved their section and their States. 
 Warm-hearted and brave, they sympathized with their 
 fellow-citizens in ambition, sentiment, and hope. 
 
 Imbued with these natural traits to an unusual degree, 
 Mr. Hunt thought that the government need not and 
 should not use coercive force in opposition to the dissatis- 
 faction that so many influential States finally expressed 
 with the national administration, and he became unwilling 
 to sanction what he announced to be an abrogation of 
 all rights of self-government. This theory was based, of 
 course, upon the view that so large a number of States 
 of the Union represented a people rightfully entitled to 
 self-government under the Federal Constitution. He did 
 not advance any doctrine of inalienable " state rights *' 
 upon the Calhoun lines of independent sovereignty. Nor 
 was the conduct of Randell Hunt, and hundreds of men 
 who followed him in his radical opposition to secession, 
 agreeable with the explanation of Alexander II. Stephens, 
 who believed in the " reserved sovereignty of the States 
 and the compact of the Union or Constitution of 1787," 
 and therefore opposed the secession of Georgia " as a 
 question of policy, and not one of right.'' J 
 
 Mr. Hunt contended there was no right of secession, 
 but the policy having been adopted, allegiance was justi- 
 fiable to the States who chose that policy : and that when 
 so many States acted in concord, they were really a people;, 
 and that therefore a people's rights were involved and 
 their liberties threatened by coercion of another part of 
 the same people of the same country. This amounts to 
 revolution, and is an inherent right. But it is from its 
 nature perilous, and is to be exercised at the risk of those 
 who invoke it. It is much to be regretted that in his 
 papers his precise views cannot be found ; but in stating 
 
 1 Testimony of Mr. Stephens before the Congressional Committee 
 April !<!, 1S<;0.
 
 BIOGRAPHICAL SKETCH. . xlvii 
 
 them as above, reference is had to such memoranda as are 
 obtainable, and such recollections of his opinions as are 
 given by those familiar with them. It is easy now to 
 detect a flagrant inconsistency in the position above de- 
 fined, but it was accepted in 1861, and acted upon by 
 many men of lofty national patriotism. 
 
 Perhaps the most satisfactory explanation of the atti- 
 tude of Union men in the South, who became passive 
 when war was declared, may be found in the Virginia 
 resolutions of 1798, where allegiance to the Constitution 
 of the United States was expressed, but where it was de- 
 clared that the Assembly of Virginia views " the powers 
 of the federal government as resulting from the compact 
 to which the States are parties as limited by the plain 
 sense and intention of the instrument constituting: that 
 
 O 
 
 compact ; and that in case of a deliberate, palpable, and 
 dangerous exercise of other powers not granted by the said 
 compact, the States who are parties thereto have the right, 
 and are in duty bound, to interpose for arresting the 
 progress of the evil, and for maintaining within their 
 respective limits the authorities, rights, and liberties ap- 
 pertaining to them." 
 
 Mr. Hunt never adopted the resolutions of 1798 as 
 expressive of his views. It is certain he never fully ap- 
 proved of them. His conduct, however, in countenancing 
 the fact of secession, is not irreconcilable with the doc- 
 trines announced in them. 
 
 There was another motive which impelled him to coun- 
 tenance the civil war when once it had begun. Loyalty 
 to blood and friends in affliction made him overlook the 
 mistaken causes for their sufferings in his anxieties to 
 share their burdens. This feeling is best expressed in 
 the language of a letter written in 1861 by a friend who 
 was solicitous of Mr. Hunt's attitude. '" You know," said 
 the correspondent, *' Mr. Hunt's generous and chivalric
 
 xlviii BIOGRAPHICAL SKETCH. 
 
 nature, the more afflicted a friend is, the firmer and 
 kinder he is : so with this Confederacy, even if he were 
 not entirely firm in his principle, he could never desert 
 the South in her hour of adversity, it would be con- 
 tvary to his generous nature." 
 
 This much is beyond question : he never wrote a word 
 or uttered a syllable savoring 1 of disloyalty to the Union, 
 or from which can be inferred a wish on his part at any 
 time for its dissolution. No matter what results of the 
 war were predicted by others, he had no ambition save a 
 patriotic wish for the integrity of the United States as 
 one nation. The peculiar principles upon which the Con- 
 stitution of the Confederate States was established were 
 never Mr. Hunt's political principles. 
 
 He saw his brother leading a Confederate regiment to 
 the field. Three of his nephews, who were dear to him 
 as sons to a father, left his house to join the army, and 
 his heart was stricken with grief upon hearing of the 
 gallant death of one of them, Captain Thomas Hunt 
 Biscoe, 1 whom he had educated and loved with tender 
 affection. Bowed down by daily sights of the horrors of 
 such a war, disappointed, if not broken-hearted, that he 
 should ever have lived to behold his country divided in 
 itself, he patiently abided the future, in confidence that 
 God would lead the nation unto conditions of common 
 destiny and one harmonious whole. 
 
 He seems to have written nothing during the darkest 
 days of the war : if he did, the memoranda are lost or 
 destroyed. 
 
 Grateful for the peace which came in 1805, Mr. Hunt 
 declared himself ready to accept the results of the war 
 in a spirit of reconciliation, " which would allay pas- 
 
 1 Captain T. II. Biseoe, Louisiana Volunteers, C. S. A., was killed 
 at the 1 attle of the Wilderness, May 5, 1864, while leading a charge 
 of battle.
 
 BIOGRAPHICAL SKETCH. xlix 
 
 sions and heal the ghastly wounds inflicted in fraternal 
 strife." 
 
 Then came elaborate arguments upon the questions of 
 what was the exact status of the seceding States. In 
 these discussions every opinion he expressed was received 
 with respect. Mr. Hunt was opposed to negro suffrage, 
 and differed with Chief Justice Chase upon that ques- 
 tion. When Mr. Chase visited New Orleans in 1865, he 
 and Mr. Hunt consulted often upon reconstruction mat- 
 ters. Judge Chase regretted that Mr. Hunt could not 
 favor universal suffrage, as he looked upon the question 
 as one of paramount importance in adjusting the relations 
 of the Southern States toward the Union. 
 
 Mr. Hunt thought, as did Andrew Johnson and many 
 other conservative Republicans, that negro suffrage could 
 not be made a condition precedent to a full restoration 
 of the Southern States to the Union : that the States 
 were in the Union by virtue of their annulling their ordi- 
 nances of secession and the abolition of slavery by con- 
 stitutional amendment ; that the true object of the war 
 was to defend and preserve the Constitution against an 
 armed rebellion, and when that purpose was finally at- 
 tained by the suppression of the rebellion, the authority 
 of the Constitution was thereby restored ipso facto, and 
 all its provisions resumed their original force and vigor ; 
 and that questions of suffrage belonged exclusively to the 
 legislatures of the States. 
 
 Mr. Hunt used to refer to a speech made by Ex-Gov- 
 ernor Washington Hunt, of New York, 011 March 25, 
 18G6, 1 as being a very fair presentation of the conserva- 
 tive views which he believed should obtain. Congress 
 took a different view, however, and again Mr. Hunt found 
 
 1 The New York papers published the speecli iu full. It was 
 delivered at New Haven, Conn. 
 d
 
 1 BIOGRAPHICAL SKETCH. 
 
 himself struggling' on a losing side for a principle based 
 upon grave constitutional rights. 
 
 As soon as armed hostilities ceased, what the general 
 government was to do with Mr. Jefferson Davis and other 
 leaders of the secession movement was a subject of wide- 
 spread interest. A scrap written at the time by a listener 
 to an interview on June 3, 1865, between Mr. Hunt and 
 a gentleman now a distinguished citizen of Louisiana, is 
 given without alteration or amendment : 
 
 "Well, Mr. ," said Mr. Hunt, "this shuffling is 
 
 not answering my question. Do you think he ought to 
 be hung? " 
 
 " Well, Mr. Hunt, I think he is a great evil to the 
 country, a very bad element, and ought to be removed." 
 
 " How you do not answer how should he be re- 
 moved ? By imprisonment ? " 
 
 " No ; I disapprove of that.' ' 
 
 " By banishment ? " 
 
 " W-e-1-1, I have not made up my mind." 
 
 "Yes, Mr. - , it is very evident you Inn-c made 
 up your mind, you are in favor of hanging him ; how- 
 ever, if you have not made up your mind, you will never 
 make it up. Yon must know what punishment you would 
 pronounce." 
 
 And so Mr. continued to shuffle, without ex- 
 pressing an opinion : it was evident that he was in favor 
 of the harshest measures, but was afraid to say so. 
 
 " Mr. Davis has always been dangerous to society and 
 to the Union,'' said Mr. Hunt. "lias always been; and 
 Mi-. Breckinridge, too. I consider a dangerous man. I 
 would remove him, too.'' 
 
 " Hut. Mr. Hunt, why would you not hang them?" 
 
 " Because, after having treated them as belligerents, 
 they have no right to call them traitors : that is contrary 
 to all the laws of nations. Because it becomes a great
 
 BIOGRAPHICAL SKETCH. li 
 
 nation like the United States to be generous and for- 
 giving." 
 
 " Ah me," continued the listener, " I cannot remember 
 the true and noble words of Mr. Hunt, but they made a 
 great impression on me. He would be opposed to hang- 
 ing from motives of state policy as well as the opinion 
 of Europe (for a nation should ever look to that), and 
 from motives of benevolence. He was not opposed to 
 punishment entirely, to banishment for a term of years, 
 and then to be allowed to return on taking the oath and 
 promising to be quiet citizens." 
 
 " Perhaps," Mr. Hunt added, " you may think I speak 
 in this way because I am thinking of myself ; but I have 
 no idea that I am in any danger." 
 
 The " reconstruction " of the South prolonged the un- 
 rest of the people of Louisiana, and they found them- 
 selves subject to severe military government. 
 
 During General Benjamin F. Butler's service at New 
 Orleans there was no little friction between him and Mr. 
 Hunt. He declared Butler's measures and means cruel 
 and unwarranted by the conditions existing, and he 
 always spoke of him as a man of coarse and brutal in- 
 stincts, unworthy to be compared, as an officer and a man, 
 with General Hancock, whose moderate methods and con- 
 sideration of the people of Louisiana commended them- 
 selves most highly to all men, radical and conservative. 
 
 Butler at one time issued an order requiring Mr. Hunt 
 to leave New Orleans. When the latter was ready to 
 leave, General Butler, being notified of his intended de- 
 parture, canceled the order, with some statement in sub- 
 stance that, although he regarded Randell Hunt as a very 
 arrogant man, he knew as much as ten thousand men 
 combined, and he might have need of him. 
 
 In the summer of 1865, for change, rest, and at the 
 same time with the hope of aiding in the work of recon-
 
 lii BIOGRAPHICAL SKETCH. 
 
 struction, Mr. Hunt went to the North. Here again he 
 was in company with Judge Chase, who introduced him to 
 President Johnson in these written words : u A gentleman 
 of great ability and perfect honor, and a devoted friend 
 of the Union until the fact of secession, when he thought 
 it his duty to submit and identify himself with the Con- 
 federacy ; is now an earnest friend of restoration. He 
 differs with me, I am sorry to say, on the question of 
 universal suffrage, but neither you nor I will think him 
 less entitled to confidence and respect on that account." 
 
 Mr. Hunt laid before the President, in burning words, 
 the sufferings of the people in the South in the reconstruc- 
 tion time. President Johnson declared afterwards he did 
 not believe any man had ever spoken more eloquently. 
 The President thereupon actually prepared a proclamation 
 for the establishment of a new government for Louisiana, 
 and named Ilandell Hunt therein to be the military gov- 
 ernor : but he afterwards destroyed this proclamation and 
 discarded the policy in question, saying that his Cabinet 
 advisers, as he considered, would not support him in it. 
 
 Since the resignation of Senators Slidell and Benjamin 
 in 18G1, Louisiana, as a seceding State, had had no repre- 
 sentation in Congress. But the war being ended, a legis- 
 lature met in I860, and claimed the right to elect United 
 States senators. There was some doubt expressed as to 
 whether Congress would admit them until the exact 
 status of the seceding States had been finally fixed by 
 legislation. If the views of the President were to prevail, 
 the cessation of the war and the expressed determination 
 of the inhabitants of a seceding State to resume the 
 powers of a State would require the admission of the new 
 senators; but if the government was to take jurisdiction 
 over the time and manner of the return of the rebellious 
 States, as Mr. Samuel Shellabarger, of Ohio, argued in 
 Congress, representation surely would be denied them.
 
 BIOGRAPHICAL SKETCH. liii 
 
 To sustain the President, no ordinary man should be 
 elected senator. 
 
 With unanimity the people turned to Randell Hunt, 
 whose name was advanced by a leading newspaper in the 
 following terms : "In the choice for senator all old pre- 
 judices : should be discarded, and those sterling qualities 
 of mind which everywhere command attention and respect 
 should, if possible, be secured. Entertaining these views, 
 we have glanced among our men of worth and experience 
 to ascertain who could best protect the interests and 
 uphold the honor of this State in that august body, the 
 national Senate, and our conclusion is that Randell Hunt, 
 the jurist, the statesman, and the orator, should be one of 
 the two on whom the choice should fall." 
 
 In joint assembly, and unanimously, he was duly elected 
 for the term of six years, to commence March 4, 1865. 
 In this way, as the people of Louisiana issued from a 
 disastrous war, against which he had counseled, they 
 made by necessary implication to him the greatest ad- 
 mission of error on their part that circumstances would 
 allow, and then joined to render him the highest honor. 
 
 The day after he had been chosen the papers congratu- 
 lated the State, referring to his " spotless character, his 
 profound learning, large experience, unquestioned ability, 
 and the unobjectionable nature of his political antece- 
 dents." "We think," said one editorial, "the legislature 
 made a most admirable choice. The honor, interests, and 
 dignity of Louisiana will be ably and faithfully sustained 
 by Mr. Hunt, and when he takes his seat there will not 
 be a State in the Union represented by a man of greater 
 mark." 
 
 Reverdy Johnson, then a senator from Maryland, upon 
 the 6th of January, 1866, offered the credentials of Mr. 
 Hunt, " who appears by the certificate of the governor 
 1 Opposition to secession must be meant.
 
 liv BIOGRAPHICAL SKETCH. 
 
 of Louisiana to have been elected one of the senators 
 from that State." " I move," said Senator Johnson, 
 " that they lie upon the table, as that, 1 believe, has been, 
 the course taken with the credentials from the Southern 
 States.'' There being no objection, it was so ordered. 1 
 
 It was during this period of his life that the University 
 of Louisiana conferred upon him the degree of Doctor of 
 Laws, it being the first time in its history that such a 
 degree had been awarded by it. The diploma was sent 
 to Mr. Hunt with the following loving and truly fraternal 
 letter from the president : 
 
 UNIVERSITY OK LOUISIANA. 
 
 MY DEAK BROTHER, 1 have the honor to transmit 
 herewith your diploma as Doctor of Laws from the 
 University of Louisiana. Learned and scientific labors 
 for the advancement of knowledge, the cultivation of 
 letters, the moi'al and intellectual improvement of the 
 citizens of the Commonwealth, the elucidation of legal 
 science, the inculcation of principles of American patriot- 
 ism and national liberty, have forever identified your 
 fame with the foundation and history of the University of 
 Louisiana. The distinction is the more honorable because 
 it was liberally, spontaneously, and justly bestowed. I had 
 the proud satisfaction, as President of the University, of 
 conferring the degree before the public, and 1 felt and 
 declared that, in discharging my official duty, I performed 
 the most grateful act of my life. 
 
 May you be crowned with increasing honors, and 
 achieve hereafter a// that virtuous ambition can desire, is 
 the heartfelt prayer of your affectionate and devoted 
 brother, 
 
 THOMAS HINT, President. 
 June iii, is<;<;. 
 
 To the Honorably IvANDKU. 1 1 ['XT, LI,. D. 
 
 1 I'pou March 1. ISCiO, Senator Johnson pursued the same course 
 with reference to the credentials of Henry Boyce, who had been 
 elected a colleague of Mr. Hunt for the term endiuq 1 March 4. 1.8(57.
 
 BIOGRAPHICAL SKETCH. lv 
 
 Weeks and weeks after presentation of the senatorial 
 credentials of Randell Hunt and his colleague, Congress 
 deliberated the legitimate and proper relations between 
 the Southern States' and the general government, and not 
 until this question could be settled forever was it probable 
 Mr. Hunt would be seated. A general outline of his own 
 views will be gathered by reading the notes given to the 
 public in these pages. 
 
 Many senators were his personal friends and wished to 
 see him seated. They were aware of his intense love of 
 the Union, his character, and his standing as a lawyer. 
 For these reasons they would have valued his services 
 and his counsel. But the " iron-clad " oath of never 
 having countenanced past opposition to the general gov- 
 ernment was no respecter of persons. Mr. Hunt de- 
 clined to take it, and was placed upon the same footing 
 with Mr. Graham of North Carolina, Mr. Stephens and 
 Mr. Johnson of Georgia, Mr. Manning and Mr. Perry 
 of South Carolina, and others who had been officials, 
 legislators, and military men under the Confederate gov- 
 ernment, and from whose views he seriously dissented. 
 
 Louisiana was unrepresented. The policy of Congress 
 was radically in opposition to the administration, and 
 Mr. Hunt returned to New Orleans to resume his profes- 
 sional labors. 
 
 That he was personally disappointed was natural, but 
 except to refer to what he believed was an injustice to his 
 State he never evinced any individual regret. 
 
 It was not the first time that adherence to principle 
 and truth had caused him sacrifice and sorrow. 
 
 In the highest development of his professional know- 
 ledge, for the fifteen years following his election as a 
 senator he enjoyed a large and lucrative law practice. 
 Political life had little temptation for him, except by way 
 of interest in the general welfare of the whole country.
 
 Ivi BIOGRAPHICAL SKETCH. 
 
 He was absorbed in legal and educational matters, and 
 could scarcely be induced to go outside of them. 
 
 In Lizardi's Case, 20 La. An. 285, Mr. Hunt, who was 
 deeply imbued with a knowledge of the commercial law, 
 was enabled to expound before the Supreme Court of 
 Louisiana the doctrine of partnership In commendam, or 
 commendatory, or partnership with limited liability, and 
 to apply those principles to the great issue before the 
 court, whether or not Manuel J. de Lizardi, a foreign 
 banker, was liable, as charged, for an immense sum, on 
 the commercial paper of J. Y. de Egana, a merchant of 
 New Orleans. Partnership with a limited liability, as 
 established by the legislatures of American States, affords 
 but slender privileges, and presents, as a conseqiience, 
 but a diminished theme, in comparison with the law of 
 partnership, as the latter has developed in the countries 
 of Europe and in the State of Louisiana, and adapted 
 itself to the usages, the convenience, and the commerce 
 of mankind. In Lizardi's case, as in the McDonogh 
 case, Mr. Hunt and his distinguished colleagues had the 
 support of the opinion of eminent French jurists, who, 
 being consulted, offered their advice in the character of 
 jurisconsults, and not as mere advocates. The counsel 
 for Lizardi prevailed, notwithstanding powerful opposi- 
 tion, marshaled under the leadership of John A. Camp- 
 bell. Listening to the argument of Mr. Hunt in the 
 Supreme Court, Judge P. II. Morgan, long time an asso- 
 ciate justice on the Supreme Bench of Louisiana, con- 
 sidered he gave it highest praise when he said he doubted 
 whether Mr. Hunt had ever done anything better. 
 
 In Zunts r. Stackhouse, 23 La. An. 481, an injunc- 
 tion >uit to prevent the enforcement of a mortgage on 
 a plantation, on the ground that the consideration of the 
 notes given by plaintiff to defendant, and amounting to 
 one hundred thousand dollars, was for the price of the
 
 BIOGRAPHICAL SKETCH. Ivii 
 
 sale of persons, i. e,, slaves, Mr. Hunt was able to achieve 
 one of the signal triumphs of his life. The Supreme 
 Court had rendered judgment to prevent the enforce- 
 ment of the mortgage in question, which was held by his 
 client. Plaintiff was represented by Christian Roselius, 
 perhaps the ablest of the civilians of Louisiana since the 
 time of the founders of her jurisprudence. The bench of 
 the Supreme Court consisted entirely of Republicans, and 
 their precedent decision in Wainwright v. Bridges, 19 
 La. An. 234, had ruled that the abrogation of the law 
 which gave sanction to the condition of slavery had left 
 the courts without authority to enforce contracts relating 
 thereto ; but the circumstances seemed only to nerve Mr. 
 Hunt to unusual exertion. He found in the plaintiff's 
 offer to prove that the consideration of the notes in con- 
 troversy was slaves a just opportunity in behalf of his 
 client to establish what the consideration truly was, in 
 order to avoid suppression of the truth. Recalled from 
 original error by the address of Mr. Hunt, the court 
 proceeded, on principles of law, resting on the best and 
 surest foundation, to overrule their own judgment, and to 
 remand the case for proper trial. The victory which 
 Mr. Roselius had achieved was wrested from his grasp. 
 The argument of Mr. Hunt, which effected the result, is 
 described by those who listened as having been a forensic 
 effort of the very highest order. It is probably the last 
 of the elaborate efforts made by him in the Supreme 
 Court of the State. 
 
 In the controversy which arose over the great fran- 
 chises of the New Orleans Gaslight Company, Judge 
 John A. Campbell was aroused to admiration by the 
 resources exhibited by Mr. Hunt's argument. 1 He went 
 on to express his estimate of Mr. Hunt as a jurist. Judge 
 
 1 Crescent City Gaslight Co. v. New Orleans Gaslight Co., 27 La. 
 An. Reports, p. 138.
 
 Iviii BIOGRAPHICAL SKETCH. 
 
 Campbell was himself of counsel. It was his opinion, 
 expressed in argument in trial court, before the public, 
 that in this broad land the number of Mr. Hunt's equals 
 at the bar was so limited that they could be counted 011 
 the fingers of the speaker's hands. 
 
 The proceedings in the Circuit Court of the United 
 States, Judge Edward II. Durell presiding, by favor of 
 which William Pitt Kellogg was made governor of Loui- 
 siana, and the machinery of a state government set on 
 foot in 1872, were condemned as odious and usurpatory 
 by Mr. Hunt. 1 lie gave his services as counsel for the 
 defense. He considered it was a flagrant abuse to em- 
 ploy a bill in equity to perpetuate testimony, for the 
 purpose of substituting the compilations of the Returning 
 Board, to stand for titles to officers elected by the people. 
 The issuance of the writ of injunction by Judge Durell, 
 prohibiting the meeting of those who claimed to be 
 members of the Senate and House of Representatives 
 of the State of Louisiana, was, as Mr. Hunt believed, an 
 act of judicial malfeasance amounting to outrage on the 
 public liberties. Such, it will be remembered, became 
 the judgment of the bar and of the country. The state 
 government, of which Mr. Kellogg was chief executive, 
 thus brought into existence, encountered tumult, and 
 almost brought on civil war. Judge Durell, overcome 
 by the force of public opinion aroused against him by the 
 transactions hero referred to, and by the profligate distri- 
 bution of patronage in his court, was compelled to resign. 
 He retired after the House of Representatives of the 
 United States had instituted inquiry into his conduct, 
 and the shocking particulars thereof had been spread 
 before tin; American public. 
 
 Meanwhile, with gathering years, Mr. Hunt separated 
 himself more and more from public affairs. As one 
 KclliiM-o- ,-. \Varinmitli ft. a/., 14 Federal Cases, p. L'."J7.
 
 BIOGRAPHICAL SKETCH. lix 
 
 embraces a friend with whom he has long traveled, before 
 the time of parting arrives, so he drew closer and closer 
 to his cherished studies of the law. He had begun life 
 in New Orleans by lecturing on commercial law. On the 
 organization of the law department of the University in 
 1847 he became professor of commercial law and the law 
 of evidence. He now added to his professional duties 
 instruction in constitutional law. He clung to the oppor- 
 tunity, even in his old age, of imparting to the young the 
 principles of American constitutional jurisprudence, as 
 they are to be derived from " The Federalist," and from 
 Marshall and Story and Kent, and, justly speaking, did 
 more in his time than all others in Louisiana to hand 
 down to those who were to succeed him the construction 
 of the Constitution of our common country. While pro- 
 fessional rewards poured in on him in a copious stream, he 
 grew poor instead of rich. The distresses of the time 
 just after the war brought him many appeals for help. 
 These he answered with a generosity so complete that he 
 actually despoiled himself to go to the assistance of 
 others. The tenderness of his heart made him really 
 suffer when those he loved happened to be in distress, 
 and he could not hear the call of charity without going to 
 the rescue of the afflicted. 
 
 General Hancock, while in command at New Orleans, in 
 1868, sought Mr. Hunt's counsel upon all questions affect- 
 ing the government of the States where any construction 
 of rights was involved. It is pleasant to note the cordial 
 intercourse between General Hancock and Mr. Hunt. " I 
 desire to consult with you upon matters of public welfare," 
 wrote the general to him, soliciting his advice. Letters 
 defining his interpretation of the acts of Congress, over 
 General Hancock's signature, were submitted to Mr. Hunt's 
 inspection ; so were orders issued. A note dated February 
 22, 1868, from Hancock, upon state finances, among
 
 Ix BIOGRAPHICAL SKETCH. 
 
 other things, says : " I have, unfortunately, lost the power 
 of expression of your matured views. My order is crude, 
 borrowed in part from yours : but being a patchwork, it 
 has lost much that was valuable.'' And repeatedly the 
 general thanked him for his kindness and valuable aid. 
 
 His friends were opposed to his giving up public life, 
 and we find him forced into some prominence again about 
 1870. Louisiana was confronted with political misfor- 
 tunes. Northern men were holding office by appointment 
 throughout the State. The so-called " Carpet Bag Hide " 
 was at its height, and distasteful to the large majority of 
 the whites of the South. Business depression, political 
 difficulties, and general internal disorder were common. 
 The Kepublican party was in power nationally and in 
 Louisiana. General Grant, as President, believing that 
 it was necessary to enforce the amendments to the Con- 
 stitution of the United States rigidly, pursued a course 
 unsatisfactory to nearly all of the white persons in the 
 State. Committees were formed in New Orleans to set 
 forth the grievances of the people, and again we find the 
 leading men of Louisiana appealing to Mr. Hunt to help 
 secure a political prosperity which could not come with 
 strangers governing the State. lie responded to their in- 
 vitations by letters of advice, but took no very active part. 
 
 In 1873 lie was appointed a member of the committee 
 selected by the People's Convention of Louisiana to visit 
 Washington in the interests of the State, but was obliged 
 to decline. 
 
 A single speech during the presidential campaign of 
 1876 virtually closed his participation in politics. His 
 sympathies were with Mr. Tilden, because lie thought the 
 whole country, and the progress of the South as a part 
 of the country, would be more advanced by Democratic 
 success than it would be under the Republicans. The 
 announcement that Mr. Hunt would express his views
 
 BIOGRAPHICAL SKETCH. Ixi 
 
 drew a larcre audience, and his remarks were most favor- 
 
 O ' 
 
 ably received. " The power, the cogency, and the ear- 
 nestness with which he spoke last evening gave proof that 
 he still retained his wonted powers," was the criticism of 
 the press. It was his last public oral expression upon 
 purely political issues, and by a fatalism, almost a destiny 
 in his career, he lived to again behold the policies he 
 contended for rejected and cast aside. 
 
 His health was somewhat impaired. A paralytic stroke 
 severely shocked his physical system, and he was not as 
 strong after recovery as he had been before. Retirement 
 from public affairs was welcome to him, and he preferred 
 his profession. 
 
 During the excitement which followed the elections of 
 November, 1876, he became interested in the electoral 
 commission bill, and, yielding to requests, wrote an article 
 denouncing the measure as an invalid makeshift. The 
 portions of the essay which have been found are given to 
 the public. Many of the ablest constitutional lawyers 
 took similar views, and many yet regard the commission 
 as but an expediency created at the time to avert possi- 
 ble bloodshed. 
 
 Educational affairs always had his close attention. 
 The University of Louisiana was a source of much pride 
 to him, and he regarded its growth as an honor to the 
 State. With the Law School he was especially identified, 
 having been elected one of the professors in 1847, when 
 it was founded. He lectured upon the law of evidence, 
 commercial and criminal law, for forty consecutive years. 
 The students looked up to him in admiration of his erudi- 
 tion and eloquence. Of a cultivated ease of style, of grace 
 of diction, of felicitous expression, of varied learning, 
 historical, political, and classical, his lectures are in 
 themselves beautiful monuments to his knowledge of the 
 law, and to the liberal expansion of his mind. He was a
 
 Ixii BIOGRAPHICAL SKETCH. 
 
 student of the science of the law. With industry he de- 
 voted his life to his profession, and to such literary pursuits 
 as would tend to perfect him as a counselor and an in- 
 structor. The range of his reading- was almost without 
 bounds, and in the lecture-room he displayed a wealth of 
 talent and scholastic accomplishments that placed him on 
 an equality with the greatest lecturers of the law known 
 by the profession in America. No student who ever at- 
 tended his lectures can forget him when he extolled the 
 Constitution. Defining in eloquent words the composition 
 of the political organization of our land, often throwing 
 aside his lecture-book, and moved by the inspiriting men- 
 tion of the liberties handed down to us by the Revolu- 
 tionary heroes, his apostrophes to freedom made him seem 
 an orator of the times of Webster, or a commentator of 
 the days of Story and Adams. 
 
 In 1807 he succeeded his distinguished brother, Dr. 
 Thomas Hunt, as president of the University, continuing 
 as a professor in the Law School until 1888. 
 
 His vigorous constitution had been yielding to the in- 
 firmities of advanced age for several years. His hearim- 1 
 
 O J O 
 
 became seriously impaired, and his mind seemed less 
 active. His disposition was to work as hard as he ever 
 had, and he did little else besides read and study ; but he 
 complained of his eyes, and said he had to read slowly in 
 order to follow the thoughts of his text. 
 
 He had passed his eighty-fourth birthday when he 
 wrote his commentary upon the Louisiana State Lottery. 
 It was the labor of many weeks, written very slowly and 
 in a somewhat detached manner. The manuscript shows 
 that, in resuming from time to time, he often wrote what 
 he had covered before. Pages were skipped, and occa- 
 sionally the tremulousness of the handwriting makes his 
 letters difficult to read. The method by which he treated 
 the subject, commeneiiiff with a review of the origin of 
 
 i O O
 
 BIOGRAPHICAL SKETCH. Ixiii 
 
 contracts of hazard, illustrates the thoroughness with 
 which his mind investigated whatever it dwelt upon. 
 
 He retired as a professor in the Law School in 1888, 
 having previously been elected Emeritus Rector. The 
 Board voted him an annual sum, to continue during his 
 life, and unanimously passed the following resolution : 
 
 " The Board desires to tender to Mr. Hunt its thanks 
 for his eminent services as a professor from the establish- 
 ment of the University, more than forty years ago, and 
 as president for nearly twenty years of its existence, and 
 its congratulations to him that in a green old age, while 
 removed from the heat and burden of the day, he can 
 still employ the leisure of his clear and vigorous intellect 
 in literary tasks, for which his profound learning and 
 great ability fit him ; and, finally, it begs leave to express 
 the hope that peace and happiness may crown his labors, 
 and his presence with us may long shed honor on the 
 University and State." 
 
 Although aged and infirm, a last duty to his State 
 made him vote against the lottery candidates at the state 
 election in 1890. * In conversing upon the perniciousiiess 
 of a legalized lottery he displayed the deepest feeling. It- 
 was, perhaps, the subject of all others of a public nature 
 which, in the last years of his life, most aroused him. He 
 spoke with sincere regret of his inability to go forth and 
 battle against the candidates of the company, for he 
 would regard their success as a disgrace to Louisiana. 
 
 The alumni of the Law School, at their last banquet 
 before his death, as was their custom, cordially asked him 
 to join them in their festivities. His response, written 
 in a faltering hand to Judge W. T. Houston, closed in 
 these words : 
 
 1 An issue in the Louisiana elections of 1890 was whether the 
 lottery company ^should or should not have its charter extended. 
 The anti-lottery candidates were elected.
 
 Ixiv BIOGRAPHICAL SKETCH. 
 
 " The law which you have chosen for your profession, 
 gentlemen, is the only safeguard of the rights of man, 
 of his life, liberty, property, and character, and whatever 
 else is dear to a rational being. lie who, by diligent 
 study, acquires a profound knowledge of its principles 
 and engages in its practice faithfully, necessarily con- 
 tributes largely to the peace and happiness of society. 
 There is no higher office on earth none that more 
 strongly commends itself to the esteem, confidence, and 
 grateful respect of man than that of the wise and 
 upright judge administering the law. Lawyers have 
 been, throughout time, as history attests, the fearless and 
 powerful champions of popular liberty against tyranny 
 and oppression. The noble sentiments of the Itomaii 
 and Grecian orators, of Cicero and Demosthenes, and 
 others, still resound in our republican ears, in delight- 
 ful unison with those of the grand host of our Revolution- 
 ary fathers in favor of our American liberty. 
 
 " I trust, gentlemen, you will pardon this encomium 
 of our profession, as naturally evoked by your friendly 
 invitation." 
 
 Loving relations, friends, and admirers made the last 
 few months of his life as peaceful as he could have wished. 
 Several times he seemed so close to death that physicians 
 were astonished at the vitality of a system which enabled 
 him to recover and move about again. Hut the rally 
 was temporary. He died on the 22d of March, 1802. 
 
 Throughout Louisiana unusual marks of respect were 
 paid his memory. The faculty of the Law School adopted 
 these resolutions : 
 
 "Whereas, RANDKU, HUNT, whose death we mourn, 
 was for many years connected prominently with the 
 University of Louisiana, afterwards and now the Tulane 
 University of Louisiana, and his long and distinguished 
 services as president of the University, as professor of
 
 BIOGRAPHICAL SKETCH. Ixv 
 
 constitutional law, commercial law, and the law of evi- 
 dence, and as dean of the law department, render it 
 proper that this faculty should mark their respect for his 
 memory : 
 
 " Resolved, That this faculty attest the great learning 
 as a jurist and the talent of the highest order displayed by 
 the deceased as a professor, and the very large number in 
 this and in other States, prepared for the highest posi- 
 tions at the bar and on the bench by the legal education 
 received at his hands, are deeply impressed with the obli- 
 gation they owe to him, and will ever hold his memory 
 in grateful veneration. 
 
 " Resolved, That this faculty recognize the great and 
 deserved professional eminence attained by the deceased ; 
 they recall that this distinction was won in litigation ex- 
 tending over half a century, conducted before courts of 
 uncommon ability, and that his triumphs were achieved 
 in competition with adversaries of the highest character 
 as jurists and advocates ; and in view of the long career 
 of the deceased at the bar, prolonged beyond the usual 
 limit, this faculty affirm the appreciation of the bench 
 and bar that the deceased, in the period of his vigor and 
 usefulness, held his place in the foremost rank of the 
 profession. 
 
 " Resolved, That the deceased was conspicuous for pub- 
 lic spirit and responsiveness to all the duties of citizen- 
 ship, and illustrated in his life and conduct the virtues 
 incident to the domestic relations. 
 
 " Resolved, That the dean record these resolutions, and 
 transmit a copy to the family of the deceased. 
 
 " THOMAS J. SEMMES. 
 
 " HENRY DENIS. 
 
 " HARRY H. HALL. 
 
 "HENRY C. MILLER. 
 
 "F. A. MONROE."
 
 Ixvi BIOGRAPHICAL SKETCH. 
 
 The administrators of the University of Louisiana 
 passed the following- resolutions : 
 
 " Resolved, That in receiving the announcement of the 
 death of Handell Hunt, LL. D., we recall with grateful 
 recollection the valuable services rendered by him during 
 his long and conspicuous life in this city. For many 
 years he was the distinguished chancellor of the Univer- 
 sity of Louisiana, a professor in the law department, 
 the active and influential exponent and defender of its 
 interests, guiding and protecting it through trying and 
 eventful periods of its history. His profound learning 
 and varied accomplishments, his liberal and comprehen- 
 sive views on all important questions, the weight and 
 influence of his personal character, his earnest, persist- 
 ent, and zealous advocacy of the cause of education 
 through all phases of its development, from the common 
 school to the university, have combined to give him a 
 place among the most illustrious names of the Common- 
 wealth, lie has left the impress of a noble personality, 
 of the highest professional eminence, of splendid intel- 
 lectual attainments, consecrated to patriotic and unselfish 
 ends, upon the State of Louisiana, which he loved so well 
 and served so faithfully, and upon the destinies of the 
 University to which lie gave so large a share of the best 
 efforts of his manhood. Forced, during the last few years 
 of his life, by the increasing burdens of ago and declin- 
 ing health, into comparative seclusion and retirement, 
 there has been for those who knew and honored him 
 always the remembrance of a past filled with the full 
 measure of a distinguished and an honorable citizenship. 
 \ow that death has removed forever the form that was 
 once familiar in the University, and hushed the voice that 
 once could thrill the multitude with its eloquence, the 
 historic record of his eminent services, his loyal fidelity 
 to sound learning, his patriotic xeal and devotion, will
 
 BIOGRAPHICAL SKETCH. Ixvii 
 
 serve as an inspiration to others, and remain as an inef- 
 faceable page in the annals of the State." 
 
 Many other complimentary tributes were paid by the 
 press and bar of the State. 
 
 It is thought proper to preserve the solemn and kindly 
 words of the Rev. Dr. Percival, of the Episcopal Free 
 Church of the Annunciation in New Orleans, who 
 said : 
 
 u It is but once in a lifetime, if at all, that occasion 
 is offered us of assisting at a solemnity of so notable a 
 type. The character of the large assembly now gathered 
 here bears witness to this ; testifies to the fact that an 
 illustrious member of this community has departed from 
 us, that the earth has opened to receive the ashes of one 
 of God's noblest sons. The wonderful energies of the 
 master intellect, the throbbing of the great heart, the rich 
 activities of the splendid manhood, have now at length 
 finished their earthly appointed service ; and while we 
 gaze pensively and in sadness yet once more on the mor- 
 tal past, so restfully sleeping before us, which endured 
 so much and so long, we are reminded of the personality 
 which it typifies, that towered so high when in our pres- 
 ence, that stood ever so conspicuous among us, of him 
 who now is viewing, let us believe it, with rapture and 
 amazement, his radiant heavenly and earthly crown. 
 
 " Time will only permit here of a hasty and most im- 
 perfect review of the earthly career of one of whom it 
 may be truly said, ' Though dead, he yet speaks.' . . . 
 
 " We must not, however, close this poor tribute to him 
 whose record is so full of all that is elevated and illustri- 
 ous without at least a brief allusion to those many quali- 
 ties of heart and soul which lent to the whole fabric of 
 his lofty character that peculiar beauty and sweetness 
 which won all who came within the circle of their gracious 
 influences.
 
 Ixviii BIOGRAPHICAL SKETCH. 
 
 " Generous even to a fault, all he had he gave to 
 others. Tender even to weakness, his car never closed 
 to any appeal. The sacrifices he made for others cannot 
 be exaggerated, and his many good deeds, though un- 
 known to the world, will yet come to view, for they shall 
 live and shine forever. Farewell, brother beloved, son 
 of eternal principle, exemplar of noble conduct, brave, 
 courageous heart, ever decided, ever true to conviction. 
 
 "' For the last time thy trembling footsteps have 
 sought the table of the Lord ; for the last time thou hast 
 invited the angel guardian to bring the much-coveted 
 message, setting thee free from those bodily infirmities, 
 those mental troubles, which have been for so long a 
 period thy weary, thy wearing, thy heavy cross. A hus- 
 band's, a brother's, a friend's greeting thou hast given for 
 the last time ; and thy strong faith has now carried thee 
 into the presence of that God whom thou hast always 
 loved so well, whose sovereign will thou hast ever revered, 
 and to whose mysterious dispensations thou hast ever 
 meekly bowed." 
 
 Followed by the most distinguished men in the State, 
 including the members of the bar, the president, faculty, 
 and students of Tulane University, Mr. Hunt was 
 buried at the Metairie Cemetery, on the outskirts of New 
 Orleans. Shading his grave grows a mighty moss-covered 
 oak, to mark the spot by a natural and appropriate monu- 
 ment of power and strength. 
 
 Upon the opening of the Supreme Court at its April, 
 1802, term, Edwin T. Merrick, the venerable ex-chief 
 justice of Louisiana, presented to the court resolutions 
 concerning the deatli of Mr. Hunt. Judge Merrick's re- 
 view of Mr. Hunt's career was accurate and clothed in 
 most graceful terms. After speaking of the many learned 
 men who practiced in tin; early days of Louisiana, lie re- 
 ferred to Mi'. Hunt in the following language:
 
 BIOGRAPHICAL SKETCH. Ixix 
 
 " In the city the bar was adorned by such conspicu- 
 ous names as Mazureau, Grymes, Preston, Pierre Soule, 
 Roselius, Micou, Bradfoi-d, Legardeur, and Benjamin. 
 It was among such men and orators as these that a place 
 of distinction was assigned to Mr. Hunt by them, and he 
 was classed as a leader. I think I may say that the 
 consensus of all placed Mr. Hunt, in those days, as the 
 most finished orator we had at the bar in the State. 
 
 " Of course there was a vast difference in conducting 
 arguments by these distinguished men : some could win 
 by the masterly array of the facts of a case, some by the 
 mere force of dry logic, others by a power to awaken 
 interest and sympathy and carry the juries by adorned 
 reason. 
 
 " In this last category Mr. Hunt could well be placed. 
 His oratory so ornate and polished, his periods so full 
 and flowing, filled with sentiments elevated and noble, 
 seemed to be formed upon the great models of Cicero, 
 which had charmed us all in our earlier studies as it had 
 done each preceding age. 
 
 " Without knowing Mr. Hunt's habits, I never heard 
 him without thinking the excellency of his orations was 
 the result of much study ; but then they were worthy of 
 that study. 
 
 " As a statesman Mr. Hunt was controlled by an ar- 
 dent and exalted patriotism. 
 
 " As dean of the legal department of the University 
 he was honored and admired by the graduates." 
 
 The resolutions recited the distinguished services of 
 Mr. Hunt as a lawyer and an advocate and a professor. 
 
 Chief Justice Bermudez, in speaking for the court, 
 used the following words : 
 
 " Upon the lion, liandell Hunt Providence had lav- 
 ished munificently choice favors. 
 
 " He was exceptionally endowed, physically and men- 
 tally.
 
 Ixx BIOGRAPHICAL SKETCH. 
 
 u His deportment was such that it attracted attention 
 wherever he went, and provoked inquiry. The eye was 
 pleased to dwell upon him and observe his movements 
 and ways. 
 
 " He was blessed with a broad, scanning', searching-, 
 penetrating, analytical mind, which, after possessing itself 
 of a subject, made him master it in its entirety and in its 
 important details. 
 
 " It was a prompt and ready mind, essentially logical 
 and judicious, which at once realized the strong and the 
 weak points of the subject under its survey and scrutiny. 
 
 " He was a scholar, having received a thorough classi- 
 cal education, which enabled him to furnish his intellect 
 plentifully from all the fields of learning and knowledge. 
 
 kk He could read and speak, with marked correctness, 
 languages not his own. which permitted him to enrich his 
 mind abundantly from stores not entered by the many. 
 
 " The study of the law had a special and irresistible 
 attraction for him. 
 
 " His classical education, his knowledge of the Latin, 
 French, and Spanish languages, enabled him to explore 
 the immense regions of the Roman, French, and Spanish 
 systems, so as to imbue himself fully with a scientific 
 appreciation of the laws of Louisiana, which are mainly 
 derived from those different sources. 
 
 "He belonged to a bar composed of men of acknow- 
 ledged eminence, such as Livingston, Kustis, Slidell, 
 Hennen, Grymes, Soule, Mazureau, Benjamin, Bonford, 
 fmiilhe, Roselins, Janin, Bradford, and others, whose 
 equal he was, and with whom he coped, frequently and 
 successfully. 
 
 "lie was a splendid orator, learned, impressive, and 
 eloquent:, fascinating judges and jurors at his pleasure. 
 
 "lie, was an admitted leader in his profession, and 
 quite often was employed in the most complicated and
 
 BIOGRAPHICAL SKETCH. Ixxi 
 
 important controversies. He was a jurist, and a man of 
 great talent and genius. 
 
 '' It would take too long to enumerate and describe the 
 celebrated instances in which he was thus engaged. The 
 State and Federal Reports which mention them show 
 what difficulties they presented, and he controlled them 
 successfully. The Girard, McDonogh, Shepard will cases, 
 the Slaughter - House, Lizardi, Wine cases, figure con- 
 spicuously among them. 
 
 " He was for some forty years a distinguished profes- 
 sor of law, commercial, constitutional, criminal, and other, 
 at the University ; at times, its dean ; retiring finally, on 
 account of ill health, as emeritus professor, with the previ- 
 ously received degree of doctor of laws. 
 
 " Very many are those who have studied under him 
 during this long period, and to whom he has imparted 
 liberally his varied and extensive acquirements. Many 
 of them have reached to superiority, and even to emi- 
 nence in their department, and cherish the recollection of 
 their invariably pleasant intercourse with him, officially 
 and personally. 
 
 " He was a faithful citizen and a devoted patriot, serv- 
 ing his country in legislative halls, and was always found 
 among the leaders in political conservative movements. 
 
 " He would sway popular assemblies, invariably cham- 
 pioning the good and rightful cause, most promotive of 
 public weal and happiness. He was a statesman. 
 
 " He might, on several occasions, have filled important 
 federal positions, had he chosen, such as attorney-general, 
 justice on the Supreme Bench, and others ; and had he 
 done so he would surely have signalized himself in any 
 of them. He was eminently qualified for all. 
 
 " The country has sustained a heavy blow in losing him, 
 but he has gone from among his fellow-men after an 
 
 O O 
 
 honorable, well - filled, and glorious life, regretted and 
 loved, never to be forgotten.''
 
 Ixxii BIOGRAPHICAL SKETCH. 
 
 Intellectual greatness alone is often known by the 
 eminence of a position which may demonstrate the talents, 
 but which too often shrouds from general view the inner 
 nature of a man who holds exalted station. 
 
 Respect and reputation are sometimes gained and be- 
 stowed when no greater intimacy exists than the semi- 
 official relation between pastor and parishioner, or con- 
 ference between counsel and client, or the consultation 
 with the visiting physician. 
 
 But the nobleness of a man's nature, his qualities of 
 heart, his generosity, his benevolence, his consideration of 
 others, his charity of thought, his kindness, his patience, 
 his gentle ways, his affections, his secret ambitions, his 
 pride of family, his wit, temper, unselfishness, habits, 
 all are best observed and well known only by those who 
 live under the same roof, who sit at the same table, who 
 see him in good and ill health, who watch him when 
 gratified by success or disappointed by defeat, who study 
 his moods in the morning and by night, who learn his 
 motives, who feel his sympathies, listen to his conversa- 
 tion, know his sacrifices, sound the depths of his convic- 
 tions and the sincerity of his tones, share the happiness 
 of his fortunes and help bear the trials of his adversities. 
 
 Of Mr. Hunt it must be said that in his private life 
 his virtues rounded off the measure of his greatness. 
 
 Xo unkind word, no inconsiderate expression which 
 could hurt the feelings of those about him, ever escaped 
 his lips. His nature was very simple, and in the gentle- 
 ness of his disposition he associated and conversed with 
 the humblest pleasantly and kindly. He never advanced 
 any idea for his own pleasure until he had considered the 
 comfort of others. If there were two motives to be attrib- 
 uted to the conduct of men or women, he preferred that 
 which was founded upon charity to that begotten of 
 malice. Ills clients always respected him, and though he
 
 BIOGRAPHICAL SKETCH. Ixxiii 
 
 himself often forgot the labor he had devoted to their 
 interests, they never did, and he was constantly receiving 
 handsome presents from those who expressed themselves 
 as glad to be grateful for services he had rendered. 
 
 In their home life very few men have been more truly 
 beloved. His temper was so even and his nature so 
 patient, and withal he was so hospitable and kind. His 
 sense of loyalty to blood was strong. He relied upon the 
 counsel of his brothers, and was happiest when his sisters 
 and other members of his family were immediately about 
 him. To his wife his devotion was beautiful and con- 
 stant. He addressed her in words of almost poetic en- 
 dearment, and when writing to his family he often told 
 of his love for her companionship and his pride in her 
 character in language most fit for a lover to use in describ- 
 ing his sweetheart. 
 
 The sympathies of his heart and the fellow-feeling 
 within him are well described by the following extract 
 from an argument he once made himself where he touched 
 upon the obligations of nature and morality : 
 
 " The domestic relations of consanguinity, especially in 
 regard to those of the same household, have always been 
 worthy of respect and cherishing. The relation of bro- 
 thers is the natural source of permanent friendships and 
 intimacies, which soften the cares and contribute to the 
 success and usefulness of life. Their recollections are a 
 bond, in all after-life, of sympathy, interest, and affec- 
 tion. The endearments of childhood ; the ruder sports 
 and adventures of the school ; their common interest in 
 events and persons ; their common blessings and bereave- 
 ments ; the noble and manly counsels of a father, the 
 wise and tender lessons of a mother, which each can recall 
 to the other's memory ; with interests involving their 
 mutual happiness ; protected during life by one roof, and 
 whose dust is to be mingled in the sepulchre of a common
 
 Ixxiv BIOGRAPHICAL SKETCH. 
 
 soil, - these ties of blood and affection, of kind and tender 
 memories and associations, of habitual sympathies endur- 
 ing beyond life, give a charm and a dignity to human nature 
 alike pleasing to God and man, and reflecting honor upon 
 those who faithfully observe them, and upon those to whom 
 filial love and reverence are due by divine commandment. 
 
 " Who that has a brother can fail to know the large 
 resources that he has in a brother's attachment ? The 
 honor or shame of the one must concern the other. A 
 brother can enter fully into a brother's feelings, and his 
 sympathy and confidence be more than those of other 
 friends. 
 
 "' The members of a man's own family, those who usu- 
 ally live in the same house with him, are naturally the 
 objects of his warmest affections, lie is more habituated 
 to sympathize with them. What is called affection is 
 said by a moral philosopher to be in reality nothing but 
 habitual sympathy." 
 
 Children were dear to him and attracted his attention. 
 Upon one occasion, Dr. Hawks, 1 the distinguished Epis- 
 copalian clergyman, saw him playing marbles with a 
 crowd of little boys. " I see," said the doctor, coming up 
 to Mr. Hunt on the street, upon discovering the distin- 
 guished lawyer about to shoot a marble, "the sports of the 
 children amuse the child.'' 
 
 Like most great men, Mr. Hunt knew his power and 
 valued it, but he was free from personal vanity. Notwith- 
 standing the repeated requests of relations ami friends, 
 he never sat for a photograph in his life. 
 
 With a benevolent and strong face, he was a striking- 
 looking man. lie wore a full beard, had a large mouth, 
 
 1 lYnncis Lister Hawks, Doctor of Divinity and Doctor of Laws, 
 longtime ii celebrated pulpit orator in (lie United States. He was 
 a native of North Carolina. He was for some time rector of Christ 
 Clnirch, New Orleans, and first president of the I niversitv of 
 Louisiana.
 
 BIOGRAPHICAL SKETCH. Ixxv 
 
 with a deep, broad forehead, rather large nose, and par- 
 tially bald head. 
 
 In conversation his voice was soft and his speech slow, 
 but in court or in public it was stern, sonorous, and of 
 tremendous power. 
 
 His love of reading prevented his being remembered as 
 a great talker ; yet by no means was he a silent man. 
 But he generally had a book before him, even at the 
 times when his family were engaged in general conversa- 
 tion. When he became interested in his reading it ab- 
 sorbed his mind, but when he joined in the discussion, 
 from his richly stocked mind came "treasures of greatest 
 value," which he let fall with unassumed and charming 
 modesty. He had a free and elevated mind. He loved 
 the truth, and had the courage to pronounce for it. Mr. 
 Hunt revered the character of General Washington, and 
 at one time wrote a short life of him, but dropped or mis- 
 laid the manuscript, and never heard of it again. 
 
 He especially admired oratory. Cicero and Demos- 
 thenes, the Earl of Chatham, Daniel Webster, Edward 
 Everett, and Rufus Choate were the examples he gen- 
 erally held up to young men as eloquent, fervent cham- 
 pions of the rights of the others. 
 
 Literature was his recreation. Shakespeare, Goldsmith, 
 Coleridge, Bulwer, Pope, and Scott were authors lie fre- 
 quently quoted. Dr. Johnson especially delighted him. 
 But his reading embraced the widest extent, and made 
 him familiar with most writers worthy of study. 
 
 The classics, as he thought, were the highest types of 
 pure style. To him the Latin and Greek statesmen and 
 philosophers were the broadest in their schools. Quota- 
 tions from Horace, Juvenal, Virgil, Socrates, Homer, and 
 Plato adorned his lectures, his arguments, and his con- 
 versation. 
 
 For years he was a communicant of the Episcopal
 
 Ixxvi BIOGRAPHICAL SKETCH. 
 
 Church, and a fairly regular attendant. The Bible was 
 one of his many studies, and was often referred to in 
 his essays. In his opinion men could not live without 
 religion, nor could a nation prosper without reliance upon 
 a superhuman Providence. 
 
 He was a deep student of Christian philosophy, and oc- 
 cupied himself early and late with its sublime reflections. 
 
 The life of Kandell Hunt was within eventful periods 
 of American history. The journey from the gateways of 
 disunion, in 1832, unto the threshold of a celebration of 
 the peace of 1892 was long and tiresome. 
 
 In the glory of professional fame his name will live 
 always as an American lawyer, seldom equaled in learn- 
 ing and forensic powers. 
 
 If as a statesman his career seems at first to involve 
 disappointment in its immediate results, in the light of 
 events it deserves to be recorded as that of a wise and 
 strong citizen, constantly contributing to the improvement 
 of his State, even where he failed to control her action, 
 and a patriot, whose devotion to the Union was the only 
 foundation of his hopes and desires. 
 
 Though that foundation was once shaken, the base was 
 unimpaired by the vibration. 
 
 He lived to happily behold his country and his State 
 in the mutual and dependent relations which sixty years 
 before he had contended must exist between the federal 
 and state governments. 
 
 As a citizen and a man, he was high-minded, full of 
 courage, and just. 
 
 The sorrows of his time, the regrets suffered in his 
 heart, the griefs of repeated failures, never visibly affected 
 bis uniformly patient character.
 
 SELECTED ARGUMENTS, LECTURES, AND 
 MISCELLANEOUS PAPERS. 
 
 A COURT, A TEMPLE OF JUSTICE. 
 
 [The following extract from an argument appeared in " The 
 New Orleans Book," published in 1850 by Robert G. Barnwell. 
 It contained essays by the most distinguished men of Louisiana. 
 In the same publication were articles by Francois Xavier Mar- 
 tin, Edward Livingston, Etienne Mazureau, Judah P. Benjamin, 
 S. S. Prentiss, and others.] 
 
 EDUCATED under the wise and liberal institutions of a 
 republic of laws, I look upon the place in which I stand as 
 a Temple of Justice, not as a theatre for a vain display 
 of powers of disputation in personal rivalry. I regard 
 this Court, not as a weak assembly of individuals, who 
 can be easily operated upon and misled by the dictato- 
 rial spirit and arrogant airs of certain orators, who, for- 
 getting that they are mere advocates, foolishly imagine 
 themselves to be, and would make others believe them to 
 be, the true and only oracles of the law, but as an august 
 tribunal, composed of men of good sense, firmness, integ- 
 rity, and learning ; who, uninfluenced by any passion or 
 prejudice, examine the cpuestions properly submitted to 
 them, in a calm and patient spirit of investigation, and, 
 after a full and impartial consideration, decide upon them 
 agreeably to the principles of law and justice. 
 
 True liberty is a practical and substantial blessing.
 
 2 A COURT, A TEMPLE OF JUSTICE. 
 
 Its existence and its enjoyment depend upon principles 
 which are equally important, and should be equally dear 
 to every man. These principles are founded in the laws, 
 and are recognized, protected, and enforced under every 
 social condition and civilized form of government. They 
 are the safeguards and guarantees of the most invaluable 
 personal rights, of personal security, personal liberty, and 
 the right of private property. In the case now about to 
 be submitted, the last only of these rights is assailed. 
 But this does not diminish the magnitude or interest of 
 the cause itself ; for it would be vain to speak of any 
 other right, if it be once authoritatively proclaimed that 
 the acquisitions of labor shall no longer stimulate, cheer, 
 comfort, and enrich industry, but shall be the prize, or 
 rather the prey of unprincipled, reckless, and rapacious 
 power. Such a proclamation would be a declaration of 
 war against humanity and civilization, against those 
 principles which the very savages hold sacred, as essential 
 to the peace, safety, and harmony of society, and even to 
 the support of individual existence. 
 
 The secure enjoyment of property, under the supremacy 
 of the laws, while it incites to industry and promotes 
 enterprise in all the departments of labor, maintains and 
 strengthens in the bosom of the citizen a sense of personal 
 independences which is the foundation of human happiness, 
 and enables him at once to discharge his obligations to his 
 family and to the community of which he is a member. 
 This truth is so simple, so self-evident, that it is univer- 
 sally acknowledged, and even forms a part of the most 
 despotic code. Napoleon himself, in the zenith of his 
 power and glory, would not have dared to lay violent 
 and sacrilegious hands upon the property of the humblest 
 subject of the empire. And what is the spectacle that is 
 now presented? What could not be done under the des- 
 potism of a tyrant is audaciously attempted in this coun-
 
 A COURT, A TEMPLE OF JUSTICE. 3 
 
 try of republican equality. A rich, unscrupulous, and 
 greedy corporation has insolently appeared before this 
 Court, and calls upon it to strip private individuals of 
 their hard-earned property, the title to which is not only 
 established and confirmed by every principle of justice 
 and by the special provisions of our own code, but by 
 the uniform opinion and practice of the whole community, 
 and the solemn decisions of our highest Courts under the 
 Spanish laws. 
 
 To such a call this Court will not fail to give the stern 
 rebuke of insulted justice. The jurisprudence of the 
 State, so long settled, will remain, under your action, as 
 fixed and stable as the eternal principles of truth and 
 equity which form its basis, and the faith of the Court 
 solemnly pledged in its judgments will continue to be the 
 surest guarantee for the secure enjoyment of property 
 purchased upon it. No licentious or disorganizing doc- 
 trine will be suffered to disturb or in any manner to af- 
 fect the sacredness of a just title ; and the poorest citizen, 
 while he betakes himself to repose under his humble 
 shed, will reflect with pleasure and confidence that the 
 fruits of his honest labors, under the protection of the 
 laws of his country, are beyond the reach of the most 
 unprincipled rapacity, though backed by wealth and acting 
 under the hio-li-soundino- name of a COKPOHATION.
 
 AN HISTORICAL DISCOURSE UPON THE 
 UNITED STATES. 
 
 [The MS. discovered in the papers of Mr. Hunt leaves this 
 essay incomplete, but as far as it goes it is so beautifully written 
 that it has been thought best to publish it. It was composed 
 in the later years of his life, and if he ever finished it the notes 
 were mislaid.] 
 
 IT was a common opinion with ancient writers that emi- 
 gration and the emission of colonies were undertaken in 
 religious obedience to the commands of oracles : but it is 
 probable that on these occasions the oracles did not speak 
 a language dissonant from the views and purposes of the 
 state. But of the motives which led the first settlers 
 of New England to a voluntary exile, induced them to 
 relinquish their native country and to seek an asylum in 
 the then unexplored wilderness of America, the first and 
 principal, no doubt, were connected with religion. They 
 sought to enjoy a higher degree of religious freedom, and 
 what they esteemed a purer form of religious worship, 
 than was allowed to their choice or presented to their 
 imitation in the Old World. 
 
 Men have never existed without some religion, 
 " whether," as is said, u it be in the form of the grossest 
 fetish religion, adoring bodies which do not even repre- 
 sent real or imagined animal beings, or polytheism, or 
 monotheism." The consciousness of our dependence and 
 the great limitation of our power, fear or hope, the desire 
 of superior aid or a longing for support and comfort in 
 adversity, which every man feels that he himself or his
 
 AN HISTORICAL DISCOURSE. 5 
 
 fellow-men cannot afford, has invariably led man to ac- 
 knowledge a superior agency of some sort or other. Man 
 has always adored, the savage and the sage. 
 
 Pope expresses and illustrates this with philosophy and 
 with instructive simplicity : 
 
 Lo, the poor Indian ! whose untutored mind 
 
 Sees God in clouds, or hears him in the wind ; 
 
 His soul proud science never taught to stray 
 
 Far as the solar walk or milky way ; 
 
 Yet simple nature to his hope has given, 
 
 Behind the cloud -topped hill, an humbler heaven ; 
 
 Some safer world in depth of woods embraced, 
 
 Some happier island in the watery waste, 
 
 Where slaves once more their native land behold, 
 
 No fiends torment, no Christians thirst for gold. 
 
 To be content 's his natural desire ; 
 
 He asks no angel's wing, no seraph's fire ; 
 
 But thinks, admitted to that equal sky, 
 
 His faithful dog shall bear him company. 
 
 Religion considers and occupies itself with the relation 
 of man to his supreme Ruler. God willed the state and 
 the relation of justice among men. Society is interested, 
 deeply interested, in religion. It affords two powerful 
 agents of morality, namely : mental communion with a 
 Being who is absolutely pure and omniscient, searches the 
 motives in the deep recesses of our heart, and affords sup- 
 port to those who seek it in purity with him ; and, on the 
 other hand, the belief in the immortality of the soul. 
 The love of religious liberty, the freedom which the con- 
 science demands in the cause of religion and the worship 
 of the Deity, and which men feel bound by their hope of 
 salvation to contend for, prepares the mind to act and to 
 suffer almost beyond all other causes. It sometimes gives 
 an impetus so irresistible that no fetters of power or of 
 opinion can withstand it, ... and is able, with means 
 apparently most inadequate, to shake principalities and 
 powers.
 
 6 AN HISTORICAL DISCOURSE. 
 
 It is certain, said Mr. Webster, that although many 
 of our New England ancestors were republicans in prin- 
 ciple, we have no evidence that they would have emi- 
 grated, as they did, from their own native country, would 
 have become wanderers in Europe, and finally would have 
 undertaken the establishment of a colony here, merely 
 from their dislike of the political systems of Europe. 
 
 They fled not so much from the civil government as 
 from the hierarchy and the laws which enforced con- 
 formity to the church establishment. This was not the 
 flight of guilt : it was religion flying from causeless 
 oppression, it was conscience attempting to escape from 
 arbitrary rule. 
 
 The Mayflower sought our shores under no high- 
 wrought spirit of commercial adventure, no love of gold, 
 no mixed purpose, warlike or hostile to any human 
 being. Solemn supplications had invoked for her the 
 blessings of Providence. Civil and religious liberty were 
 her guides ; her deck was the altar of the living God. 
 Fervent prayers on bended knees mingled, morning and 
 evening, with the voices of ocean and the sighing of the 
 wind in her shrouds. Every prosperous breeze awoke 
 new anthems of praise, and when the elements were 
 wrought into fury, neither the tempest nor the darkness 
 and howling of the midnight storm ever disturbed, in man 
 or woman, the settled purpose of their souls to undergo 
 all, and to do all that patience, resolution, and the highest 
 trust in God could enable human beings to suffer or to 
 perform. 
 
 When Columbus, after landing on this continent, re- 
 turned to Europe and revealed the discovery of America, 
 it at once commanded the attention of all the maritime 
 and commercial states of Europe. Stimulated by love of 
 glory and hope of gain and dominion, ambition and 
 greed uniting, many of them early embarked in adventu-
 
 AN HISTORICAL DISCOURSE. 7 
 
 rous enterprises to found colonies, or to search for the 
 precious metals, or to exchange products of the Old World 
 for whatever was valuable or attractive in the New. The 
 master minds of Europe and America have been directed 
 to this portion of worldly annals, the history and pro- 
 gress of the European colonies from their establishment 
 in America to the time when they instituted governments 
 of their own, the advance of knowledge and civilization 
 in the Old World during that period of nearly three hun- 
 dred years, the political and religious events which then 
 took place, the advance of commerce and the love of hu- 
 man liberty, and have drawn therefrom wise principles 
 of government, law, religion, politics. The present dis- 
 course will not examine in detail the events of the period 
 of nearly three centuries. Undoubtedly the religious 
 controversies of the period affected society as well as 
 religion. They changed man himself in his modes of 
 thought, his consciousness of his own powers, and his 
 desire of intellectual attainments, and in the habits of 
 abstraction and reflection and the consequent attachment 
 to principles and laws. The spirit of commercial and 
 foreign adventure, therefore, on the one hand, and on the 
 other the assertion and maintenance of religious liberty, 
 strengthened by divisions among the reformers them- 
 selves, and this love of religious liberty bringing with it, 
 as it always does, an ardent devotion to the principle 
 of civil liberty also, were the powerful influences under 
 which character was formed, and men were trained for 
 the great work of introducing English civilization, Eng- 
 lish law, and, what is more than all, Anglo-Saxon blood 
 into the wilderness of North America. Raleigh and his 
 companions may be considered the creatures of one of the 
 causes that introduced better education, greater know- 
 ledge, juster notions of government, and sentiments fa- 
 vorable to civil liberty. High-spirited, full of the love of
 
 8 AN HISTORICAL DISCOURSE. 
 
 personal adventure, excited too, in some degree, by the 
 hopes of sudden riches from the discovery of mines of the 
 precious metals, and not unwilling to diversify the labors 
 of settling a colony with occasionally cruising against the 
 Spaniards in the AVest Indian seas, they crossed and re- 
 crossed the ocean with a frequency which surprises us 
 when we consider the state of navigation, and which 
 evinces a most daring spirit. The other cause peopled 
 New England. 
 
 There was a marked difference of principles on which 
 the colonization of the tropical region and of the whole of 
 South America by Spain and Portugal was conducted, 
 and the principles 011 which the colonies in the northern 
 part of the continent were founded and governed. Long 
 before the first permanent English settlement had been 
 accomplished in what became the United States, Spain 
 pushed her settlements in America with vigor and eagei'- 
 ness ; conquered Mexico, Peru, and Chili, and extended 
 her power over other territory. The precious metals were 
 her object ; and the subjugated natives were set to work 
 for their conquerors in the mines of silver and gold. 
 Spain is described descending on the Xew World in mili- 
 tary garb, with military commanders and rude soldiers, 
 robbing and destroying the native race by authority of 
 her king for the aggrandizement of his power and the ex- 
 tension of his prerogative. She swooped on South Amer- 
 ica like a vulture on its prey. Her colonies, from their 
 origin to their end, were subject to the sovereign authority 
 of the mother country. Their government, as their com- 
 merce, was a strict Spanish monopoly : and the important 
 posts in the administration of the colonies were filled ex- 
 clusively by natives of old Spain. AVise, benignant prin- 
 ciples of government may be found in the fundamental 
 laws of the colonies. ]>ut the kings of Spain delegated 
 their powers to the " Council of the Indies : '' wise laws
 
 AN HISTORICAL DISCOURSE. 
 
 were left unexecuted, and oppression and extortion 
 reigned. Advance in a colony absolutely guided by the 
 mother country, notwithstanding the great assistance the 
 latter may afford to the former, is small and tardy com- 
 pared to the advance of a community allowed to manage 
 its own concerns unaided, and even checked at times by a 
 distant administration. This is signally illustrated in the 
 difference of principles on which the colonization in South 
 America by Spain and Portugal was conducted, and the 
 principles on which the colonies on the northern part of 
 the continent were founded and governed. Martin, in 
 his history of Louisiana, said, "Judge Marshall has 
 shown this ; " adding somewhat quaintly, " Sequar, sequar : 
 sed hand passibus a3quis." 
 
 Leaving South America and Mexico to Spain and 
 Portugal, this discourse proceeds to France and England 
 struggling for the possession of North America. There 
 was something different, perhaps characteristic, in the 
 settlement and colonization by these states. The English, 
 disposed to maritime adventure, settled, when they first 
 set foot 011 America, on the seacoast, in a rocky strand 
 and a sterile soil ; cleared it by the efforts of persevering 
 industry ; and, after the lapse of a century and a half, 
 surmounted the ridge of the Alleghanies and spread 
 themselves over the alluvial plains of the Ohio and the 
 Mississippi. The French followed from the first the 
 course of the great rivers, and established stations which, 
 Alison declares, if adequately supported, would beyond 
 all question have given them the empire of the New 
 'World. Their American colonies, planned and planted 
 with extraordinary and prophetic sagacity, rose up with 
 great rapidity, and early assumed a formidable aspect ; 
 but the French, though amply endowed with the genius 
 which conceives, had not the perseverance which matures 
 colonies. They thought to snatch greatness as by mili-
 
 10 AN HISTORICAL DISCOURSE. 
 
 tary conquest : they could uot submit to win it by the toil 
 of pacific exertion. They did not spread into the woods 
 and subdue nature by the enduring' labor of free men. 
 So wrote the British historian. 
 
 The English colonists settled in thirteen colonies, dis- 
 tinct and separate, contiguously situated along the margin 
 of the shore of North America, but chartered by adven- 
 turers of various characters, including sectarians, reli- 
 gious and political, which for the two preceding centuries 
 had agitated and divided the people of the British 
 islands, and with them were intermingled the descendants 
 of Hollanders, Swedes, Germans, and French fugitives 
 from the Revocation of the Edict of Nantes. Enterprise, 
 stubborn endurance of privation, unflinching intrepidity 
 in facing danger, and inflexible adherence to conscientious 
 principle had steeled to energetic and unyielding hardi- 
 hood the characters of the primitive settlers of all these 
 colonies. 
 
 Since that time two or three generations of men had 
 passed away, but they had increased and multiplied with 
 unexampled rapidity, and the land itself had been the 
 recent theatre of a ferocious seven-years' war between the 
 two most powerful and most civilized nations of Europe, 
 contending for the possession of this continent. The 
 victorious combatant had been Britain. She had con 
 quered the provinces of France : she had expelled her 
 rival totally from the continent, over which, bounding 
 herself by the Mississippi, she was to hold divided empire 
 only with Spain : she had acquired undisputed control 
 over the Indian tribes, still tenanting the forests unex- 
 plored by the European man ; she had established an 
 uncontented monopoly of the commerce of all her colonies, 
 who had loyally and valiantly played their part. The 
 colonial history of the United States is now amply written. 
 
 In the bosoms of this people there was burning, kin-
 
 AN HISTORICAL DISCOURSE. 11 
 
 died at different furnaces of affliction, one liberty, says 
 Adams. The quality, the leading- feature in the charac- 
 ter of the American colonial people in the age of the 
 Revolution was what Edmund Burke, the profound and 
 eloquent British statesman and orator, declared in Par- 
 liament was their "fierce spirit of liberty." "The love 
 of liberty is stronger in them than in any other people 
 on the face of the earth." " It is the united voice of 
 America," wrote gallant and glorious Warren, little more 
 than six months before he fell on the heights of Charles- 
 town, " to preserve their freedom, or lose their lives in 
 defense of it." Rufus Choate of Massachusetts properly 
 estimated and prized this trait in the character of the 
 people. The people of New England, at the beginning 
 of the Revolutionary War, to describe them in a word, 
 were the Puritans of Old England as they existed in that 
 country in the first half of the seventeenth century, but 
 changed, somewhat improved. The original stock was 
 the Puritan character of the age of Elizabeth, of James 
 I., and of Charles I. For a hundred years they were 
 the sole depositaries of the sacred fire of liberty in Eng- 
 land, after it had gone out in every other bosom. When 
 they first took their seats in the House of Commons, 
 they found it the cringing and ready tool of the throne ; 
 they reanimated it, remodeled it, reasserted its privileges, 
 restored it to its original rank, drew back to it the old 
 power of making laws and imposing taxes, abridged the 
 tremendous power of the crown and defined it. And 
 when at last Charles Stuart resorted to arms to restore 
 the despotism they had partially overthrown, they met 
 him on a hundred fields of battle, and, after a sharp and 
 long struggle, buried crown, despotism, and the headless 
 trunk of the king himself beneath the foundations of a 
 civil and religious commonwealth. It was just when Pu- 
 ritanism had attained in England its highest point, and
 
 12 AN HISTORICAL DISCOURSE. 
 
 the love of liberty had grown to be the master passion 
 that guided all the rest, just then our portion of its 
 disciples canie hither. The Puritan character has been 
 justly described as " an extraordinary mental and moral 
 phenomenon, developed, disciplined, and perfected for a 
 particular day and duty." The influences which com- 
 bined to form it from the general mind of England ; 
 which set this sect apart from all the rest of the com- 
 munity, and stamped upon it a system of manners, a 
 style of dress and salutation and phraseology, a distinct, 
 entire scheme of opinions upon religion, government, 
 morality, and human life, marking it off from the 
 crowds about it, these things are matters of popular 
 history, and need not be enumerated. . . . But the whole 
 history of the Puritans, not only of those who remained 
 in England, but also of those who came out from it, and 
 nobly aided in founding our free American republican 
 commonwealth, their religious and active character, their 
 theological doctrines, their notions of the divine govern- 
 ment and economy and of the place they filled in it, 
 everything about them was out of the ordinary course of 
 life. 
 
 Wonderful cases of popular delusion, which, infect- 
 ing every class of society and gaining strength from 
 its very extravagance, triumphing over human, reason 
 and cruelly sporting with human life, should teach man 
 never to countenance a departure from that moderation 
 and those safe and sure principles of moral rectitude 
 which have stood the test of time, and received the 
 approbation of the wise and good in all ages. In Great 
 lii-itain as well as in America, the opinion had long 
 prevailed that, by the aid of malignant spirits, certain 
 persons possessed supernatural powers which were usually 
 exercised in the mischievous employment of tormenting 
 others, and the criminal code of both countries was
 
 AN HISTORICAL DISCOURSE. 13 
 
 disgraced with laws for the punishment of witchcraft. 
 Some instances had occurred in New England of putting 
 this sanguinary law in force ; but in 1692 this weakness was 
 converted into frenzy, and its destructive, baneful activity 
 was extended to persons in every situation of life. . . . 
 Never, says Mr. Hutchinson, was there given a more 
 melancholy proof of the degree of depravity of which man 
 is capable when the public passions countenance crime. 
 It hath been said, " The persecutions of the Quakers, 
 the controversies with Roger Williams and Mrs. Hutch- 
 inson, the perpetual synods and ecclesiastical surveillance 
 of the old times, a great deal of this is too tedious to 
 be read, or it offends and alienates you. It is truth, fact, 
 but it is just what you do not want to know, and are none 
 the wiser for knowing." Yet the author said, more truly 
 and justly, " History is full of instruction, and written for 
 instruction. Especially may we say so of our own. Its 
 moral lessons are the most valuable." 
 
 From this painful notice our discourse turns to the 
 circumstances by which the spirit of liberty which brought 
 these colonists hither was strengthened and reinforced, 
 until it burst forth and wrought the Revolution. Let it 
 be remembered that the colonists came to settle in America, 
 to seek a home for themselves and their posterity, a 
 new home, to become dearer and dearer as time should 
 wear away ; not a mere sojourn or place of temporary 
 residence for the acquisition of means to return and live 
 in a better society and better place of enjoyment, but a 
 home of permanent abode, a shelter from persecution 
 and the storms of life, a place of final earthly rest and 
 burial for themselves, and of refuge, comfort, and enjoy- 
 ment for their children. Local attachments and sympa- 
 thies would spring up, the ground which was to cover 
 them in death would be hallowed, like the consciousness 
 that they would sleep, dust to dust, with the objects of
 
 14 AN HISTORICAL DISCOURSE. 
 
 their affections. Before they reached the shore, they had, 
 on board the Mayflower, established the elements of a 
 social system. At the moment of their landing, there- 
 fore, they possessed institutions of religion. The morn- 
 ing that beamed on the first night of their repose saw 
 them already at home in their country. From the first 
 there was a repugnance to an entire submission to the 
 control of British legislation. The colonies stood upon 
 their charters, which, as they contended, exempted them 
 from the ordinary power of the British Parliament, and 
 authorized them to conduct their own concerns by their 
 own counsels. The more distinguished of them refused 
 to come to America, unless they could bring charters 
 providing for the administration of their affairs in this 
 country. They saw from the first the evils of being 
 governed in the New World by a power in the Old. 
 While they acknowledged the proper general power of 
 the crown, they insisted on the right of passing local laws 
 and of local administration. They utterly resisted the 
 notion that they were to be ruled by the mere authority 
 of the government on the other side of the Atlantic, and 
 would not even endure that their own charter should be 
 established there. They had freedom enough to teach 
 them its value from the contentions and trials of Fug- 
 land, and to love it : but their liberty was still incomplete, 
 and it was constantly in danger from England. " From 
 the day that the Pilgrims on board the Mayflower at 
 Plymouth, before they landed, drew up that simple but 
 pregnant form of democracy, and subscribed their names, 
 and came out a colony of republicans, to the battle of 
 Lexington, there were not ten years together I hardly 
 exempt the Protectorate of Cromwell in which some 
 right, some great and sacred right, as the colonists re- 
 garded it, was not assailed or menaced by the government 
 of England, in one form or another.'' From the first, the
 
 AN HISTORICAL DISCOURSE. 15 
 
 mother country complained that the colonists had brought 
 from England, or had found here, too much liberty, 
 liberty inconsistent with prerogatives of the crown, in- 
 consistent with supremacy of Parliament, inconsistent 
 with the immemorial relations of all colonies to the coun- 
 try they sprang from, and she set herself to abridge it. 
 They answered, with great submission, that they did not 
 honestly think they had brought or had found much 
 more than half liberty enough, and they braced them- 
 selves to keep what they had, and obtain more when they 
 could ; and so, with one kind of weapon or another, on 
 one field or another, on one class of questions or another, 
 a struggle was kept up, from the landing at Plymouth to 
 the surrender at Yorktown. It was all one single strug- 
 gle from beginning to end, parties, objects, principles, 
 the same, one long, glorious, triumphant struggle for 
 liberty. The topics, the heads of dispute, varied from 
 reign to reign ; but the question was one, Shall the 
 colonists be free, or shall they be slaves ? Encroachments 
 of the British ministry upon their chartered rights, the 
 tyranny of the mother country and the evils under which 
 the colonies labored, the attempt to tax the people of the 
 colonies without their consent, and the claim of a riHit 
 
 7 O 
 
 to do so without limitation, and to bind them by her stat- 
 utes in all cases whatsoever, plainly manifested a deter- 
 mination to reduce the colonies to a condition of slavery 
 too grievous to be endured, utterly intolerable to such 
 men as our Fathers, and destructive of their right to 
 property. No man has a right to that which another has 
 a right to take from him. 
 
 From the commencement, at every step or increase of 
 encroachment, the colonists, in their fierce love of liberty 
 and with jealous vigilance, detected the movement and 
 approach of tyranny, and resisted its advance. They 
 augured misgovernment at a distance, and snuffed tyranny
 
 16 AN HISTORICAL DISCOURSE. 
 
 in every tainted gale. A philosophic statesman, H. S. 
 Legare, declares : I think it may be truly said that the 
 first settlers were, of all men, the most sensitive and the 
 best informed upon their rights and liberties. They were 
 heterogeueously composed : Huguenots who, having ex- 
 torted by their valor a short interval of repose from per- 
 secution, at length abjured forever their beautiful native 
 land : not to search for gold and silver, not to overrun vast 
 regions with lust of ambitious dominion, but to plunge 
 into the depths of an untrodden wilderness, because in its 
 dreary solitude they could commune with God, and pour 
 out their feelings of adoration, which they could not utter 
 in the land of their birth without being hunted down like 
 wild beasts. They were the austere and gloomy Puritans 
 of England, the stern and fanatic followers of Pym and 
 Hollis and llampden, who had been republicans even in 
 Europe, and had qititted Europe becaiise it was unworthy 
 of a republic, those men to whom England is altogether 
 indebted for the democratic part of her constitution. It 
 was these heroes and tried champions of religious liberty, 
 who looked upon the riches and honors of this world as 
 dust and ashes, in comparison with the principles upon 
 which they built their steadfast faith, who not only loved 
 liberty as something desirable in itself and essential to the 
 dignity of human nature, but regarded it as a solemn duty 
 to free themselves from every species of restraint that was 
 incompatible with the fullest rights of conscience : who, 
 possessing all that devotedness and elevation of character 
 so natural to minds nursed in the habitual contemplation 
 of such subjects, and penetrated with their majesty and 
 importance, had learned u to fear God and to know no 
 other fear," it was such men as these, together with 
 the unfortunate, the persecuted, the adventurous, the bold, 
 the aspiring of all climes and conditions, congregated 
 and confounded in one vast asylum, and exercised, by the
 
 AN HISTORICAL DISCOURSE. 17 
 
 hardships incident to the colonization of a new country, 
 with a sort of Spartan discipline that laid the foundation 
 of our flourishing commonwealths. 
 
 Differences were traced between the descendants of the 
 early colonists of Virginia and those of New England, 
 owing to the different influences and different circum- 
 stances under which the respective settlements were made : 
 but the habits, sentiments, and objects of both soon be- 
 came modified by their condition in the New World ; and 
 as both adopted the same general principles of English 
 jurisprudence, and became accustomed to the authority of 
 representative bodies, these differences gradually dimin- 
 ished by the progress of time and the influence of inter- 
 course, and the necessity of some degree of union and 
 cooperation to defend themselves against the savage 
 tribes, tending to inspire mutual respect and regard, 
 thus creating among these colonies a pleasing variety, in 
 the midst of a general family resemblance, frequently 
 and classically likened, 
 
 Facies, non omnibus una, 
 Xec diversa tamen, quatem decet esse sorornm. 
 
 Let us here pause. The situation of the colonies at 
 such an immense distance from the centre of the British 
 empire must, in those days of navigation, have weakened 
 the allurement and attraction that drew to it : and the 
 peculiar character of the first settlers produced an inter- 
 est and a feeling in the colonies different from those 
 of mere Englishmen. They were in a new coxmtry, in a 
 new world, a new home, with established social system, 
 institutions of government and of religion, endeared to 
 them as a place of refuge. They were not to return and 
 abide again in England. Local attachments and sympa- 
 thies sprang up in their breasts, friends and families in 
 relation of love and affection ; property rewarded their
 
 18 AN HISTORICAL DISCOURSE. 
 
 industry and enterprise. Children were born, and the 
 hopes of future generations arose in their new habitation. 
 The seeond generation found this the land of their na- 
 tivity, and saw they were bound to its fortunes. Their 
 fathers' graves were around them : they read the memori- 
 als of their toils and labors, and rejoiced in the inher- 
 itance which they found bequeathed to them. The soil 
 answered genially to its culture and the sea presented its 
 way to commerce, without a barrier. Neither they nor 
 their children were again to till the soil of England nor 
 again to traverse the seas which surround her. Jjiit 
 here was a new sea now open to their enterprise, and a 
 new soil which had not failed to respond gratefully to their 
 laborious industry. Hardly had they provided shelter 
 for the living ere they were summoned to erect sepulchres 
 for the dead. The ground had become sacred by inclos- 
 ing the remains of some companions and connections. 
 Where the heart has laid down what it loves most, there 
 it is desirous of laying itself down. A new circle of en- 
 gagements, interests, and affections occupied the heart, till 
 an undivided sentiment prevailed that " this was their 
 country, and patriotism became local to America.'' A 
 government of their own, and existing immediately within 
 their limits, was absolutely necessary to gratify the wishes 
 and secure the rights and liberty of the colonies. They 
 brought with them English liberties, the trial by jury, 
 the Habeas Corpus and Magna Charta, the principle that 
 if any power can tax the people without their consent 
 there is an end of liberty. They brought the general 
 
 v / O O 
 
 principles of the common law of England, and adopted 
 only that portion applicable to their condition. '' I 
 deride,"' wrote Jefferson, " the ordinary doctrine that we 
 brought with us from England the common law rights. 
 . . . The truth is, we brought witli us the rights of men, 
 expatriated men. "We adopted that system with which
 
 AN HISTORICAL DISCOURSE. 19 
 
 we are familiar, to be altered by us occasionally and 
 adapted to our new situation. Political institutions were 
 to be framed anew, and our fathers, acting boldly, put in 
 force principles of philosophy and freedom which had no- 
 where else been fully admitted in practice." 
 
 The limits of this discourse do not allow any detailed 
 examination and history of the bloody Indian wars which 
 harassed the colonists, nor of the discouragements in- 
 herently belonging to all forms of colonial governments, 
 nor of the violations by the mother country of the rights 
 granted to the colonists in express charter, nor of the 
 numerous encroachments, illegal threats and illegal at- 
 tempts to tax and monopolize the trade of her colonies, 
 and a continued effort of the colonies to resist or evade 
 that monopoly. The character of the primitive English 
 settlers has been sufficiently described. Since that time 
 two or three generations had passed away, but the colo- 
 nists had increased and multiplied with unexampled rapid- 
 ity ; and the land itself had been the recent theatre of a 
 seven-vears' war between France and Britain contending; 
 
 ' O 
 
 for the possession of this continent. 
 
 Here we pause. From our discourse we have looked 
 back to the settlement of the English colonies in North 
 America ; to the origin of their union ; to the con- 
 flict of war, by which the severance from the mother 
 country and the release from the thralldom of a trans- 
 atlantic monarch were effected : to the undaunted and 
 steadfast maintenance of independence through that fiery 
 ordeal, and the conclusion of peace with the same mon- 
 arch whose sovereignty over them they had abjured, " in 
 obedience to the laws of nature and of nature's God." 
 
 The Continental Congress constituted, in fact, the na- 
 tional government and conducted the national affairs until 
 near the close of the Revolution, and extended only to the
 
 20 AN HISTORICAL DISCOURSE. 
 
 maintenance of the public liberties of all the States dur- 
 ing the contest with Great Britain. It would naturally 
 terminate with the return of peace and the accomplish- 
 ment of the ends of the revolutionary contest. How 
 great would be the danger of the separation of the con- 
 federated States into independent communities, acknow- 
 ledging no common head and acting upon no common 
 system, presented itself to the consideration of Congress. 
 What rivalries, jealousies, real or imaginary wrongs, di- 
 versities of local interests and institutions, would soon 
 sever the ties of a common attachment, and bring on a 
 state of hostile operations, dangerous to the peace and 
 subversive of their permanent interests ! These and other 
 considerations of the immediate public safety, the press- 
 ing urgent condition of affairs, had led finally to the 
 unanimous approval and adoption of Articles of Confed- 
 eration in March, 1781, which thenceforth became the 
 government. 
 
 Our discourse will now pass, by an easy and natural 
 transition, from emigration and allegiance to the subject 
 of u Colonization and Colonists," but will first state anew 
 what hath been briefly said of obedience and the power of 
 the State. 
 
 Commanding and obeying are the first two foundations 
 of all human society. Society without laws would lose its 
 moral character, and man would forfeit his destiny as a 
 social being ; and therefore man's destiny requires obedi- 
 ence to laws. Absolute obedience is impossible, and, if it 
 were possible, immoral ; for man cannot divest himself of 
 his moral individuality and responsibility. It is a maxim, 
 Ad imposxihiHa nemo oUigatw } and further it is a 
 maxim. Ad turbid- nemo obliyatur, Xo man is bound to 
 do what is iniquitous. Lieber writes : When Charles IX. 
 of France, or his mother, issued orders to slaughter the
 
 AN HISTORICAL DISCOURSE. 21 
 
 Protestants in the provinces, as they had been murdered 
 in Paris on the eve of St. Bartholomew, several governors 
 and other officers Sully mentions seven declined obe- 
 dience. Viscount Orthes, or Ortes, commandant at Bay- 
 onne, wrote back : " Sire, I have found in Bayonne honest 
 citizens and brave soldiers only, but not one executioner. 
 They and myself supplicate your Majesty to use our arms 
 and lives in possible things." He was right to call this 
 commanded murder an impossible, an unfeasible thing for 
 man, an honest man, to do. Obedience is necessary in 
 general ; disobeying or non-compliance is the exception. 
 
 The efficiency of the land and naval forces of a nation 
 depends essentially upon unity, quickness, and energy of 
 action. At all times, therefore, stricter obedience has been 
 exacted in the army and navy than in any other branch. 
 Armies without discipline are positive evils to their coun- 
 try, and discipline consists mainly in a universal habit of 
 obedience throughout the whole body ; not that discipline 
 can become a substitute for patriotism. It was said : One 
 Spartan, who glories in falling for his country, is worth 
 twenty Medes, who, as Herodotus tells us, were whipped 
 into the fio-ht bv their officers against the Grecian band at 
 
 O *x O 
 
 Thermopylae. Patriotism in an army, however, will be- 
 come efficient only in the same degree as it is coupled 
 with discipline. Yet even in the army and navy absolute 
 obedience is not and cannot be demanded. Disobedience 
 to commands of superiors may take place, because the 
 command may be unlawful, contrary to the established 
 law of the land. It is settled in the United States that 
 an officer of the forces who executes the unlawful order 
 remains personally answerable. Before he disobeys, he 
 ought to be thoroughly convinced that the command is 
 clearly unlawful. He must decide it at his own peril or 
 responsibility. This is also the law in England. The 
 British and American articles of war demand obedience
 
 22 AN HISTORICAL DISCOURSE. 
 
 to all lawful commands. All obedience, even the military 
 oath of obedience, is conditional. The military man does 
 not become an unfeeling', unthinking 1 , absolute instrument. 
 If the orders of his superiors are palpably at variance 
 with the essential objects of the State and traitorous to his 
 country, he is bound to disobey. 
 
 According to the British law, the monarch is com- 
 mander-in-chief of all the forces, and disposer of peace 
 and war. Admiral Pennington had been sent by Charles 
 I., amid the acclamations of England, to give effect to a 
 generous treaty with the oppressed and besieged Hugue- 
 nots at Kochelle : but he had no sooner arrived at the 
 place of his destination than he found himself under se- 
 cret orders to give up his vessels to French command 
 under a u murderous warfare against British honor and 
 the Protestant religion." Here was a flagrant conspiracy 
 of Charles and Buckingham against the State, an outra- 
 geous abuse of power, with criminal deception : and Pen- 
 nington was right not to obey, and to draw up his high- 
 minded protest. The sailors were right who wrote what 
 is called " a round 1'obin '' against the service, and laid 
 it under the Bible of their admiral, whose sentiments 
 accorded with their own. 
 
 The State must have power and authority for its gov- 
 ernment. Justice requires that every man shall have his 
 due. The State, through its government, must protect 
 every citizen against the violation of his rights by wrong- 
 doers and enemies, and must maintain its jural moral 
 character as a society of right. The State lias, it is one 
 of the main objects of the State, to obtain jointly that 
 which is necessary for society and cannot be obtained by 
 individual exertion, to obtain publicly what cannot IK; 
 obtained privately, as we have seen. Public power is 
 founded upon confidence. However circumscribed, defi- 
 nite, and carefully limited the power granted, confidence
 
 AN HISTORICAL DISCOURSE. 23 
 
 must be reposed in him who is finally to carry out that 
 law, the confidence of common sense and moral sense. 
 But this confidence may be abused. Why ? Republicans 
 complain of the abuse of power practiced by monarchs, 
 their ministers, commanders : and yet each complainant 
 carries within himself the germ of a despot, and abuses 
 power proportionately within his sphere as much as the 
 others in theirs. Each party that is out complains of the 
 abuse of power in that which is in. These complaints are 
 not all mere declamation. 
 
 Where power, energy, or any faculty for action or 
 activity has been given, there likewise exists an intense 
 desire to exercise, to practice and apply it. It is its very 
 nature, and without it the world would be at a stand. 
 Whatever we may undertake originally by way of inter- 
 est, the love of activity, the desire to leave some memo- 
 rial of one's self, to produce and effect something, soon 
 supersedes it. Thus Lieber in his book on political ethics 
 contends : " What impels every votary of science to pur- 
 sue his toilsome paths ? Is it interest ? Is it utility alone, 
 or chiefly ? Or is it the delight which the human mind 
 feels in the consciousness of activity? Omnis enim scien- 
 tia et admiratio (fjuo? est semen scientla^ per se jucunda 
 est, says Bacon. And what is this admiratio but the de- 
 light of intense activity and consciousness of the power 
 and penetrating or combining action of our mind? " All 
 absence of activity pains us. 
 
 Few who have power are willing to give it up, whether 
 in the people or the monarch. All power, however law- 
 ful, being resisted, the first feeling in those intrusted with 
 it is, not that of regret at this resistance on account of 
 the object they had in view, but of offense at the oppo- 
 sition itself. This is not peculiar to one set of men or 
 class of society, but without exception true of all. Mo- 
 narchic power is not more offended at resistance than
 
 24 AN HISTORICAL DISCOURSE. 
 
 democratic or parental power. Few men indeed are ever 
 opposed without at the first moment having the feeling 
 of being wronged ; and this extends even to the most atro- 
 cious criminal. Whoever wields the public power feels 
 irritated by opposition, be it ever so peaceful or loyal. 
 Power, therefore, would overcome everything in its way, 
 if not modified, or if not generated in a manner which in- 
 sures the least possible danger. Power imposes, misleads, 
 receives everywhere respect by its own character. How- 
 ever illegally acquired, the great action of power obtains 
 homage, and may find aids and abettors. This shows the 
 importance, the necessity to limit and prevent the execu- 
 tive, the depositary of this vast acting and imposing power, 
 from luxuriant rank growth, and the independence of the 
 judiciary. 
 
 This portion of our discourse will close with the follow- 
 ing remarks 011 the eloquent and noble epigram, the in- 
 scription decreed by the national council of the Amphic- 
 tyons, having a special reference to the Spartans who fell 
 at Thermopylae with their king in obedience to their laws. 
 The epigram has been often translated. The English ver- 
 sion of it by Bowles 
 
 " Go tell the Spartans, thou that passest l>v, 
 That here, obedient to their laws, we lie" 
 
 has been pronounced perfect. '" The epigram is but two 
 lines, and all Greece for centuries had them by heart. 
 She forgot them, and Greece was living Greece no more.''
 
 THE LOUISIANA RETURNING BOARD OF 1876. 
 
 [During the political difficulties which followed the presi- 
 dential election of November, 1876, Mr. Hunt was begged to 
 express his views upon the law governing the actioii of the 
 Louisiana Returning Board. He took no active part in the 
 trial of Thomas C. Anderson for having uttered and published 
 certain alleged forged and counterfeited public records or state- 
 ments of votes in the parish of Vernon, but wrote a history of 
 the case, together with his own views upon the law governing 
 the facts brought out upon the trial. A statement of the facts 
 is found in the article itself.] 
 
 THOMAS C. AKDERSOX was tried and found guilty by 
 the verdict of a jury upon the charge of having falsely and 
 feloniously uttered and published as true a certain altered, 
 forged, and counterfeited public record, to wit, the con- 
 solidated statement of votes in the parish of Vernon for 
 presidential electors on the 7th November, 1876, know- 
 ing the same to be false, altered, forged, and counterfeited, 
 with intent to injure and defraud. 
 
 The information was based 011 the following section of 
 the Revised Statutes of Louisiana : 
 
 " Sect. 833. "Whoever shall publish as true any false, 
 altered, forged, or counterfeited public record, knowing 
 the same to be false, altered, forged, or counterfeited, 
 with intent to injure or defraud any person or any body 
 politic or corporate, shall, on conviction, be punished by 
 imprisonment at hard labor, not less than two nor more 
 than fourteen years/' 
 
 Anderson, having been convicted and recommended to
 
 20 THE LOUISIANA RETURNING BOARD. 
 
 the mercy of the court, was, after unsuccessful motions 
 for a new trial and in arrest of judgment, sentenced to 
 two years at hard labor in the penitentiary of the State. 
 The sentence was the least punishment the law allows. 
 It was pronounced 25th February, 1878, and on the same 
 day he was granted an appeal to the Supreme Court of 
 Louisiana, returnable within ten days, under a statute of 
 the 19th of that month. 
 
 When the jurors were impaneled upon Anderson's 
 trial, they were to try not only the fact whether he uttered 
 the false and altered writing, but also whether he uttered 
 and published it, knowing it to be false and altered, with 
 a fraudulent design, the intent to deceive and defraud. 
 The information sets forth not only the particular act 
 committed, but also the motive to which it owed its origin 
 and received its complexion, and thus specifies the crime : 
 It charges that the uttering was done feloniously, falsely, 
 with intent to injure and defraud. The design is inter- 
 woven with the transaction. Both depend upon a collected 
 view of particular circumstances from the testimony, from 
 the character of the witnesses, the parties, the occasion. 
 This was the issue. The intention constituted the crime. 
 It was a proper subject of inquiry by the jury. It is a 
 mental fact ; it exists in the mind of the man who con- 
 ceives it. lie may conceal it from others, but often de- 
 clares it by words or reveals it by some act. When the 
 jury, after receiving the advice and assistance of the 
 judge as to the law, determined, upon the circumstances of 
 the case, that Anderson was guilty, they declared upon oath 
 the entire charge against him to be true and proved be- 
 yond a doubt, namely : first, that lie uttered and published 
 as true the false, altered, forged, and counterfeited public 
 record or statement, knowing the same to be false and 
 altered and forged : and second, that he committed the 
 act will full v and feloniously, with the intent to defraud.
 
 THE LOUISIANA RETURNING BOARD. 27 
 
 The verdict and the sentence of the criminal court settled 
 forever the fact that Anderson premeditately, deliberately, 
 and corruptly uttered as true a statement which he knew 
 to be false and altered of the votes of a large portion of 
 the people of Louisiana, with the felonious intent to de- 
 fraud the people of the State, and so of the whole United 
 States, of the right to choose their own chief executive 
 magistrate, the President of this mighty republic ! 
 
 It would be absurd and contrary to every criminal 
 prosecution to say that a jury cannot judge from the evi- 
 dence of the motive and intention of the accused. Sup- 
 pose a jury impaneled to try one accused of murder. 
 They may find him guilty of the fact of having killed the 
 deceased, but not of having killed him maliciously, and 
 may find him guilty of manslaughter only, or even of ex- 
 cusable or justifiable homicide, and by their verdict decide 
 upon the law and fact. Again, suppose a jury impan- 
 eled 011 the trial of one charged with publishing a false 
 and malicious libel : would a judge be allowed to charge 
 the jury that the only question for them to consider was 
 whether the writing in the information was published by 
 the accused, but that the question whether the writing was 
 a libel or not was a question of law for the judge to de- 
 termine, that libel or no libel was a question of law ex- 
 clusively for the court to decide, and not for the jury ? 
 
 The true and just rule and the invariable course is first 
 to give a legal definition of the offense, and then to leave 
 it to the jury to say whether the circumstances and facts 
 necessary to constitute the offense have been proved to 
 their satisfaction. If the judge's opinion must rule, the 
 trial by jury would be useless. He might by a too latitu- 
 dinariaii construction bring the fact within the severity of 
 the law, or by a too strict and confined construction he 
 might exclude it, though clearly within the spirit of the 
 law, and in either case do manifest wrong. A mistake of
 
 28 THE LOUISIANA RETURNING BOARD. 
 
 judgment in an impartial jury, after receiving the advice 
 and assistance of a judge upon the law, is less to be ap- 
 prehended than the possible error of judgment or will in 
 the judge, who, whatever may be his knowledge or probity, 
 is but a man; and therefore the State of Louisiana hath 
 wisely ordained that her judges shall aid the jury in 
 criminal cases in obtaining knowledge of the law appli- 
 cable to them, but shall abstain from stating the evidence 
 or giving any opinion on it to influence their decision. 
 
 Numerous cases have been decided by the Supreme 
 Court of the State in conformity with this law. We cite 
 a single one to show how strictly it has been interpreted 
 and enforced. It is the case of Cammeyer et al., in 
 8th A. 312-31"). *' The defendants were indicted and 
 convicted of the crime of larceny. On the trial of the 
 cause in the district court, their counsel requested the 
 court to charge the jury that the facts, as sworn to, did 
 not amount in law to larceny. The judge refused the 
 charge, but gave the following as the law to the jury : 
 'It is necessary, in order to constitute larceny, that there 
 should be a felonious taking, and that maybe properly thus 
 defined : the taking and carrying away arc felonious when 
 the goods are taken against the will of the owner, either 
 in his absence or in a clandestine manner, or where pos- 
 session is obtained by force or surprise, or by any trick, 
 device, or fraudulent expedient, the owner not parting 
 voluntarily with his interest in the goods, and where the 
 taker intends fraudulently to deprive the owner of his 
 entire interest in the property against his will. Whether 
 in this case there has been such felonious taking the 
 jury must determine from the facts proved.' The de- 
 fendants rest their hope of reversing the finding of the 
 jury upon the distinction between obtaining the mere pos- 
 session oi' the thing by artifice and deceit, and the ease 
 where the owner is induced lv fraudulent representations
 
 THE LOUISIANA RETURNING BOARD. 29 
 
 to part both with the property and the possession of the 
 thing. The jurisdiction of this (the Supreme) Court ex- 
 tends to criminal cases on law alone; and if we were to 
 examine the facts on which the jury found the verdict, 
 in order to determine whether the court below erred in 
 refusing' to charge them that those facts did not consti- 
 tute larceny, we would certainly be exceeding our juris- 
 diction, and deciding on the facts as well as the law. 
 We have attentively considered the charge which the 
 judge did give the jury, and are of opinion that it is a 
 clear and correct exposition of the law." 
 
 The 7th November, 1876, was an important day in 
 the history of our common country and of the State of 
 Louisiana. It was the day fixed for the appointment of 
 presidential electors by the several States of the Union. 
 It was also the day set apart by the people of Louisiana 
 for choosing their own state officers ; and elections were 
 accordingly held. There was a majority of popular 
 voters throughout the entire Union in favor of Democratic 
 presidential electors, and there was a majority in Louisi- 
 ana large and decisive not only for Democratic elec- 
 tors of President, but also for Democratic state officers. 
 The Republican party had conducted their election cam- 
 paign with unscrupulous activity. They used the entire 
 power, patronage, and influence of the general govern- 
 ment, with its host of officers, employees, and agents, its 
 countless jobs and vast expenditure of public money, to 
 corrupt, control, and debauch the virtue and action of the 
 people. None were deemed too high to be tempted, none 
 too low to be purchased. A member of the Cabinet at 
 the seat of government was placed at the head of their 
 central committee. Agents were stationed at the door of 
 pay offices to exact contributions from subordinate offi- 
 cials. The whole class were made to exert and exhaust 
 their power. Even the army of the republic was moved
 
 30 THE LOUISIANA RETURNING BOARD. 
 
 about for electioneering 1 purposes. All ordinary means 
 of success were applied in vain, some remarkably bad, 
 and perhaps even criminal, promises, menaces, intrigue, 
 bribery ! AVhat, then, was to be done ? To preserve 
 the party from ruin, the administration of the govern- 
 ment, its offices, power, patronage, must be retained, 
 and this could only be effected by stifling the voice and 
 defeating the will of the people, and by substituting in 
 their place a false and altered return of votes cast at the 
 presidential election. This called for contrivance, secrecy, 
 concerted action, and boldness, surmounting all sense of 
 danger and of shame. It was a last resort. 
 
 o 
 
 Flt'L-tcre si nc'queo Snperos, Aclifroiita movebo. 
 
 Then, in A\ r ashiugton, the capital of the country, hon- 
 ored with the name dear to every true American, was 
 devised in Republican conclave the scheme to procure, 
 from "state officers and canvassers of election'' for presi- 
 dential electors, false and fraudulent certificates, framed 
 to serve as a pretext for a false count of the electoral 
 votes, to enable the president of the Senate, by an usur- 
 pation of power, to determine all questions in controversy, 
 and to tin-eaten the enforcement of his pretended au- 
 thority by the army and navy of the United States : the 
 falsification of the records and returns of election to be 
 made, prepared, and furnished by local officers and agents, 
 and the fraud to be consummated in Washington. 
 
 I'lidci ft liar opprobria no!>i> 
 Et potuisso dici, et non putui^st- reiVlli. 
 
 Among the victims doomed to be sacrificed to this 
 fraud, the State of Louisiana and her good people were 
 conspicuous. More than any other State of the Union 
 had sin- suffered i'roni the oppression and spoliation of the 
 dominant faction, after the baleful attempt at secession, 
 from the overthrow of her government and the military
 
 THE LOUISIANA RETURNING BOARD. 31 
 
 establishment of corrupt rulers over her. Long 1 , too long 
 and too patiently, had she endured the dark reign of 
 terror, of usurpation and depravity, whereof the gloom 
 had occasionally for a moment, and only for a moment 
 been relieved by a popular display of valor and regard 
 for constitutional rights. Time, however, was bringing 
 healing on its wings. The citizens of the State were 
 gradually, steadily acquiring yea, had acquired, to the 
 dismay of their profligate oppressors and despoilers 
 power to check their career and to defeat the faction. 
 But tyranny was cunning grown. Forewarned, fore- 
 armed. It noted from afar that the political atmosphere 
 was troublous and a storm was brewing, and foresaw the 
 necessity of guarding and perpetuating itself by strong 
 and artful means, which would control and command the 
 return of votes necessary in popular elections, and vest in 
 subservient officials the power and duty of appointing to 
 public trust and office none but its own tools and favor- 
 ites, regardless of the people's will. It invented, devised, 
 and constructed, in 1870, the infernal machine ycleped 
 the " Returning Board,'' created and used originally 
 for state elections, and afterwards altered and employed 
 in the presidential election by the Washington con- 
 spiracy. 
 
 The invention, the description of its component parts, 
 powers, action, etc., is set forth in an act of the General 
 Assembly of the State, composed of seventy-one sections, 
 and designated, *' An act to maintain the freedom and 
 purity of elections, and to enforce Article 103 of the Con- 
 stitution, which ordains that the right of free suffrage in 
 elections shall be supported by laws prohibiting all undue 
 influence thereon from favor, bribery, tumult, or other 
 improper practice." (Kev. Statutes La.) The act cre- 
 ated a board of five persons, constituted them a close 
 corporation, and gave them perpetual succession. At
 
 32 THE LOUISIANA RETURNING BOARD. 
 
 first one Democrat was appointed on the Board, but he 
 was soon got rid of, and the other four members, belong- 
 ing to the Republican faction, desiring to work in secret, 
 refused to fill his place. It gave the Board power to 
 canvass and compile all statements of votes and election 
 returns in the State, and to pronounce who were lawfully 
 elected ; to examine and determine charges and questions 
 of fraud, violence, or other improper practice to influence 
 the election, and, in case there was any such thing, to 
 exclude all the votes of the parish, etc., and thus to 
 condemn and punish by disfranchisement thousands of 
 voters, without a hearing, for the offense, real or sup- 
 posed, of others, over whom they had no control, and to 
 make a mockery of the people's will. 
 
 Judge Black, in a masterly essay on the Electoral Con- 
 spiracy, declared the Returning Board wi a machine en- 
 tirely new, with powers never before given to any tribunal 
 in any State. Its object was, not to return, but to sup- 
 press the votes of the qualified electors, or change them to 
 suit the occasion." It was no sooner called into existence 
 than it entered upon its nefarious and infamous work. 
 No delay, no hesitation, no faltering. On and on it 
 proceeded in its ruthless and wicked task ! The people 
 of the State at every election expressed their condemna- 
 tion, strong and indignant, against the odious and corrupt 
 faction that oppressed and ruled over them. The Board 
 intercepted the election returns, kept them in strict and 
 close custody, and so altered them as to make a majority 
 the other way. Kellogg was a candidate for governor. 
 
 K/ OO O 
 
 lie was defeated. The Board certified him elected. 
 u The certificate was so glaringly false that carpetbaggers 
 themselves would not help to install him. The outraged 
 people rose in revolutionary wrath, and inaugurated Me- 
 Knery, the man who had been really elected. But (ien- 
 eral Grant placed and retained Kellogg in office by a
 
 THE LOUISIANA RETURNING BOARD. 33 
 
 shameful military usurpation. The Democrats regularly 
 elected a majority of the legislature ; as regularly the 
 Returning Board certified a majority of their seats to 
 carpetbaggers or scalawags, or negroes not chosen ; and 
 when the true members met to organize for business, the 
 army was punctually in hand to tumble them out of their 
 hall." ! 
 
 Nothing could be more unjust, unconstitutional, oppres- 
 sive, and intolerable to freemen than the condition of 
 Louisiana. The government was a usurpation and des- 
 potism. It exercised, through the Returning Board, ex- 
 clusive control over elections ; in disregard of truth, jus- 
 tice, and popular action, it abolished existing courts, and 
 substituted others, with election provisions, and judges ap- 
 pointed by the governor ; it enacted criminal punishment 
 of all persons attempting to fill official positions, unless 
 returned by the Returning Board ; it created unjust, 
 mischievous, grievous, and odious monopolies and corpo- 
 rations, offices, and employments ; involved the State, al- 
 ready overburdened with debts, in heavier and further 
 obligations ; oppressed the people with ruinous taxes and 
 exactions ; converted the police of New Orleans into an 
 armed brigade, subject to the command of the governor ; 
 and vested in the governor of the State a degree of power 
 scarcely exercised by any sovereign in the world. 
 
 This was the condition of Louisiana on the 7th Novem- 
 ber, 1876, the day on which her people were to choose 
 a governor, members of her legislature, and other state 
 officers, and to vote for a President and Vice-President of 
 the United States. The election was duly held on the 
 appointed day. All the offices and officers of election, 
 the registration of citizens entitled to vote in the several 
 parishes, every poll and voting precinct, the reception or 
 rejection of ballots and their counting, the returns and 
 
 1 North American Review, No. 257. 
 3
 
 34 THE LOUISIANA RETURNING BOARD. 
 
 result of the election, all, everything, from the begin- 
 ning 1 to the close, and the promulgation of the result, 
 to be performed, supervised, and controlled by party men, 
 creatures of the Republican faction, commissioners, super- 
 intendents, deputy-marshals, and attendant soldiers and 
 police. 
 
 The elections were peaceable, quiet, undisturbed. The 
 vote was regularly taken and properly counted, and a true 
 record made of it. Returns from every Democratic par- 
 ish were sent to the Returning Board without a single 
 charge or protest of fraud, violence, or intimidation. 
 The vote was large, free, unrestrained, a true expression 
 of the people's judgment and choice. If the state gov- 
 ernment was a constitutional Democratic - Republican 
 government, if the people had the appointing power, the 
 (Tilden) Democratic presidential electors were appointed. 
 Not only would the people have had a governor, legislature, 
 and state officers of their own election, but, united with 
 the people of the other States of the Union, a President 
 and Vice-President elected by the free voices of this great 
 nation. The people of Louisiana gave a majority of 7.039 
 for the Tilden electors : the people of the whole United 
 States gave a majority of upwards of 250,000. From every 
 quarter of the national domain electric messengers con- 
 veyed the news to the conspirators in Washington. The 
 crisis had arrived. The people had condemned the party 
 in power, and had chosen Democratic electors to cast 
 their votes for the Democratic candidates for President 
 and Vice-President of the United States. But it remained 
 for the officers, ministers, and tribunals of the election 
 system to carry into effect and practical operation the 
 action of the people. And these officers in several States, 
 and (-specially in Louisiana, were all of the condemned 
 political faction. Success or defeat of the right of self- 
 government in the people of the right to choose and
 
 THE LOUISIANA RETURNING BOARD. 35 
 
 change their officers and rulers, to dismiss the faithless 
 and corrupt, and to put in their place the honest, capable, 
 and patriotic was made to depend upon the right, 
 true, and honest count of the electoral vote in this election. 
 To ascertain this the Louisiana vote was essential, and the 
 action of the Returning Board in regard to it called for 
 strict and searching investigation. It was well known to 
 the whole country, soon after the election, that the Tilden 
 electors had received a majority of nearly eight thousand 
 votes at the presidential election in this State. But the 
 character of the Board, its action on previous elections, 
 its present unjustifiable delays and protracted meetings, 
 its secret sessions and consultations, its violent and parti- 
 san conduct, unjust and unlawful rulings, whispered ru- 
 mors of bribery and corrupt offers, etc., apprehensions of 
 perjury and falsified returns, filled the public mind with 
 distrust and gloomy foreboding. Expert of wiles, the 
 hypocritical offspring of dissembling fraud, shameless, 
 audacious, stimulated by former successful villainy and 
 supposed favor of General Grant, the Returning Board 
 in this State, after a venal attempt to obtain money from 
 the Democratic party, 1 consummated the "false return" 
 deemed essential to the election of Hayes and the defeat 
 of the people. 
 
 How was this nefarious return, this false count, fabri- 
 cated ? The Board received, in conformity with the 
 statutory provisions of the State, returns from every elec- 
 tion poll and parish in the State, which they were ordered 
 to canvass and compile, to ascertain the result of the 
 election, and to publish and proclaim the same. They 
 set to work, not truly and honestly to ascertain the result, 
 
 1 Witness the conversation of Madison J. Wells, president of the 
 Board, with Mr. D. F. Kenner ; and the statement of Mr. Tilden of 
 his refusal to ransom from the Board conclusive documentary evi- 
 dence of the false count.
 
 36 THE LOUISIANA RETURNING BOARD. 
 
 but, as heretofore stated, in violation of sworn official 
 duty, by a resort to manipulation, destruction, change, 
 and falsification, to bring 1 out a result absolutely false and 
 fraudulent. Some returns were mutilated and essential 
 parts cut oft' ; some were entirely suppressed ; some were 
 altered by a double process, throwing out good votes 
 actually cast, and putting in and counting spurious votes 
 known not to have been actually polled. The statute 
 conferred upon them certain authority in regard to " re- 
 turns, accompanied by a statement, charge, or protest, 
 attached thereto by an election officer, of fraud, vio- 
 lence, riot, etc., having prevented a fair election, and cor- 
 roborated under oath by three respectable electors of the 
 parish." There was no such charge, protest, or state- 
 ment, and, of course, no such corroboration by affida- 
 vits to any return from a Democratic parish. How then 
 could the authority be exercised ? The Board met the 
 emergency ! They made a protest. They procured affi- 
 davits, fabricated, it is said, in the New Orleans custom- 
 house, and used them with a full knowledge that they were 
 counterfeits. It was proved, as we state anew, that the 
 election was peaceable, quiet, undisturbed, free from vio- 
 lence. What of it ? The Board declared, " There must 
 have been intimidation, from the comparative smallness 
 of the voters." The truth is, it was the largest vote ever 
 given in Louisiana, and larger, in proportion to the whole 
 population, than the average of all the States in the 
 Union. 
 
 Judge Black truly said : "It is unnecessary to mention 
 with particularity all the infractions of law, frauds, 
 crimes, and felonies committed by the Board and the 
 individuals that cooperated with it, perjury, subornation 
 of perjury, falsification and spoliation of documents, and 
 forgery, to cheat the people of the right to elect their 
 own ruler. There is hardly any species of the
 
 THE LOUISIANA RETURNING BOARD. 37 
 
 falsi which was not made a part of the great fraud when 
 the defeated electors and state officers of Louisiana were 
 falsely certified as chosen by the people." 
 
 It was the object of the fathers of our country to 
 secure for themselves and their posterity a government 
 of laws, of reason, and of justice. All our governments, 
 state and federal, are popular governments on the basis 
 of representation, as nearly equal as circumstances allow. 
 The will of the majority fairly expressed has the force 
 of law. Written constitutions founded on the immediate 
 authority of the people, regulating and restraining all the 
 powers of government, legislative, executive, judicial, 
 form the supreme sovereign rule. And these govern- 
 ments and these principles must be supported by general 
 education and a wide diffusion of pure morality, public 
 and individual. Without virtue in the people a just 
 republican government cannot subsist. The people, then, 
 being the source of all political power, to be exercised 
 through representatives elected by suffrage, every man 
 by voting shares in the sovereign power, and performs 
 his duty in organizing and maintaining the government 
 and guiding its policy. 
 
 Of all the offices in the United States, the office of 
 President is the most important. Kent was of opinion 
 that the election of a President of the United States 
 affects so many interests, addresses itself so strongly to 
 popular passions, and holds out such powerful tempta- 
 tions to ambition that it becomes a trial to public virtue 
 and hazardous to public liberty, and that if we continued 
 to elect the chief magistrate of the Union with integrity 
 we would stamp the highest value on our national char- 
 acter and republican institutions. Another American 
 patriot, statesman, and jurist says: ''Liberty is more 
 precious than gold. In the judgment of the virtuous 
 and wise men who won the independence and built up 
 
 461500
 
 38 THE LOUISIANA RETURNING BOARD. 
 
 the institutions of this country, the privilege of choosing 
 our own rulers was the richest part of the great inher- 
 itance they left us. With a full price in blood and 
 treasure they bought this freedom for their children, and 
 I do not know one tolerably decent American who would 
 sell his single right on any terms. The successful scheme 
 to cheat the people of Louisiana out of their votes for 
 state officers and presidential electors is a crime of the 
 greatest magnitude, worse even than a conspiracy to steal 
 any amount of public money." 
 
 With these remarks we proceed to a fuller examination 
 of the case of Anderson, a chief actor and leader in the 
 fraud perpetrated in Louisiana. On the 27th June, 1877, 
 the grand inquest of the State, in a special report, rec- 
 ommended that Thomas C. Anderson be prosecuted for 
 forgery and altering the election returns of the parish 
 of Vernon and other parishes of the State. On the 5th 
 July following, the district attorney filed an information 
 against him in the superior criminal court, and the 
 court issued a capias, or order for his arrest. He fled 
 from the jurisdiction of the state court, sought refuge 
 within the walls of the United States custom-house, and 
 called upon the United States authorities and forces to 
 support him in resisting and defying the authority of the 
 State that he had wronged. He was at that time United 
 States collector of customs at the port of New Orleans, 
 where he was finally arrested in his office by the sheriff, 
 and brought before the state tribunal on the 28th day 
 of January, 1878. Thereupon he moved through his 
 counsel to transfer the case to a court of the United 
 States. The motion was refused, and the trial of the 
 case was left to the state court, lie then applied for a 
 change of venue to have the case removed from Xew 
 Orleans to another parish in the State. The application 
 was rejected, lie next objected that the prosecution was
 
 THE LOUISIANA RETURNING BOARD. 39 
 
 by an " information filed by the State's attorney, and not 
 by an indictment found by a grand jury." The objection 
 was overruled ; the proceeding by information was regu- 
 lar, sanctioned by express statute and settled practice. 
 He next " objected to being tried alone, and insisted that 
 he could only be tried jointly with Wells, Casanave, and 
 Kenner, the other members of the Returning Board." 
 He was again overruled. He then " excepted to the venire 
 and the jury summoned to try the case," and this in its 
 turn was overruled. A bill of exceptions to these rulings 
 was reserved by the lawyers of Anderson, and the court 
 ordered the trial to proceed. . . .
 
 CITIZENSHIP AND ALLEGIANCE. 
 
 [In 1833, a judge of an inferior court in the State of South 
 Carolina declined to admit to citizenship one George Granstein, 
 upon the ground that the said Granstein declined to take the 
 oath of allegiance to South Carolina. Judge Bay certified his 
 action to the last court of appeals of the State of South Caro- 
 lina, and justified his refusal to admit the petitioner hecause he 
 would not take " the usual and customary oath of allegiance to 
 the State of South Carolina," as well as " that of fidelity to the 
 United States." The case attracted much attention at the time. 
 The editorial of the Charleston Courier " of July 20. 1833, con- 
 tained the following reference to the speech of Mr. Hunt. The 
 speech is also given in full.] 
 
 WE take pleasure in gratifying our readers, and at the 
 same time enriching- our columns this morning, with the 
 able and eloquent argument of Randell Hunt, Esq., before 
 the last court of appeals, on the subject of citizenship 
 and allegiance. AVe feel constrained, however, to dissent 
 from some of his views on the latter topic. Allegiance, 
 even in the strictest meaning of the term, is not, in our 
 opinion, exclusively due to the United States. If there 
 is any one point clear in our political history, it is that 
 our government was intended to be an admixture of the 
 federal national forms, and that it was adopted with that 
 understanding by the people of the several States, the 
 general government or political association of the United 
 States acquiring sovereignty by grant within specified 
 limits, and the States retaining the residue. AVherever 
 sovereign! v resides, allegiance is due as a matter of
 
 CITIZENSHIP AND ALLEGIANCE. 41 
 
 course, and it belongs as properly to the residuary sov- 
 ereignty of the States as to the delegated sovereignty of 
 the United States, each having an exclusive right to it 
 within its legitimate sphere. It is very certain that the 
 government of the United States is a limited one, that 
 the political association of the United States is a limited 
 one, in the language of Mr. Jefferson, "a nation for 
 certain purposes only." It therefore does not possess 
 entire sovereignty, and cannot claim entire allegiance. 
 The States, then, retaining residuary sovereignty, have of 
 course a rightful claim to residuary allegiance. The old 
 feudal notions of allegiance and fealty have no application 
 to our free institutions. The allegiance due to the States, 
 within the reserved powers, is not a fealty subordinate to, 
 but wholly independent of that due to the United States 
 within the granted powers. The state and federal govern- 
 ments are wholly independent of each other, within their 
 appropriate spheres, and there is no relation between 
 them analogous to that between the lords paramount and 
 the mesne lords of the feudal system. In fact, allegiance, 
 in this free country, simply means obedience to lawful 
 authority. Allegiance to the United States consists in 
 fidelity to the Constitution and Constitutional laws of the 
 United States ; allegiance to the several States consists 
 in fidelity to their several constitutions and constitutional 
 laws, provided they do not conflict with the Constitution 
 or Constitutional laws of the United States. This proviso, 
 however, does not impair our position, for the fact that a 
 provision of a state constitution or a state law in conflict 
 with the federal constitutions or laws is void no more 
 impairs our allegiance to the State within the reserved 
 powers than the nullity of an unconstitutional federal 
 law impairs our allegiance to the United States within 
 the granted powers. All of the States have acted on 
 these principles, and required of their citizens oaths of
 
 42 CITIZENSHIP AND ALLEGIANCE. 
 
 fidelity, directly to themselves or to their constitutions 
 and laws. 
 
 Mr. Hunt said : In availing- myself of the opportunity, 
 politely offered me by my friend, of laying before the 
 Court the grounds on which the petitioner in this case 
 moves that the decision of the judge below should be re- 
 versed, I cannot but regret that I have not had time for 
 as ample a preparation as I desired, from a sense of 
 justice to myself as well as from the high respect which 
 I entertain for the Court. I ask, therefore, an indulgent 
 hearing from your honors, while I submit to you the 
 views which have presented themselves to my mind, and 
 which appear to me conclusive 011 the subject. 
 
 And here, said Mr. I luiit, on the very threshold of the 
 argument, I must declare myself embarrassed by the 
 simplicity of the case. If there were anything in it 
 obscure or involved, I might endeavor to illustrate and 
 explain it ; if anything doubtful, I might perhaps prove 
 it by argument. But the case is so clear, so simple, so 
 self-evident, that to state it is to argue it ; or rather I 
 should say, to state it is to prove it. What is the case ? 
 
 The Constitution of the United States declares, art. 
 2, sec. 8, p. 4 : " The Congress shall have power to 
 establish a uniform rule of naturalization, and uniform 
 laws on the subject of bankruptcies, throughout the 
 United States/' In the exercise of this power. Congress, 
 on the 14th day of April, 1802, passed an act, entitled 
 "an act to establish a uniform rule of naturalization," etc. 
 The act, or that portion of it applicable to this case, is in 
 the following words : ' 
 
 " Sec. 1. Any alien, being a free white person, may be 
 admitted to become a citi/en of the United States, or any 
 of them, on the following conditions, and not otherwise : 
 
 1 Kintrn, 17.">. hio-crsoll's Digest, tit. Aliens, p. -I, "2 Story's 
 Laws U. S.
 
 CITIZENSHIP AND ALLEGIANCE. 43 
 
 " First, That he shall have declared on oath or affir- 
 mation, before the supreme, superior, district, or circuit 
 court of some one of the States or of the territorial dis- 
 tricts of the United States, or a circuit or district court 
 of the United States, three years at least before his 
 admission, that it was bonafide his intention to become a 
 citizen of the United States, etc. . . . 
 
 " Secondly, That he shall at the time of his applica- 
 tion to be admitted declare on oath or affirmation, before 
 some one of the courts aforesaid, that he will support the 
 Constitution of the United States, and that he doth abso- 
 lutely and entirely renounce and abjure all allegiance and 
 fidelity to every foreign prince, potentate, state, or sover- 
 eignty, and particularly by name the prince, potentate, 
 state, or sovereignty whereof he was before a citizen or 
 subject, which proceedings shall be recorded by the clerk 
 of the court." 
 
 The petitioner, George Granstein, according to the 
 judge's report, " appeared to be entitled to be admitted," 
 and offered to take the oath prescribed by the act of 
 Congress. But the clerk of the court tendered to him an 
 additional oath, an oath of allegiance to South Carolina. 
 This he declined to take. " Whereupon," says Judge 
 Bay, " I refused to admit him, unless he took the iisual and 
 customary oath of allegiance to the State of Soiith Caro- 
 lina as well as that of fidelity to the United States ! " 
 
 The case then comes to this : Congress, exercising a 
 constitutional power, declares that any alien, being a free 
 white person, may be admitted a citizen of the United 
 States, or any of them, on certain conditions and accord- 
 ing to a prescribed rule. Has a clerk of the court of 
 sessions and common pleas for Charleston district a 
 right to prescribe other conditions and establish another 
 rule ? Has he a right to interpolate into the law what- 
 ever his fancy may suggest ? Or has a district judge of
 
 44 CITIZENSHIP AND ALLEGIANCE. 
 
 the State of South Carolina power to legislate for the 
 Union ? Did the people of the United States ever dele- 
 gate to him power to make laws on the subject of natu- 
 ralization ? It is a wise remark that Lord Bacon made, 
 when writing of judicature : "Judges ought to remember 
 that their office is jus diccre, and not jus d<tre, to inter- 
 pret law, and not to make law or give law ; else will they 
 not stick to add and alter, and to pronounce that which 
 they do not find, and by show of antiquity to introduce 
 novelty." 
 
 The act of Congress of 1802, establishing an uniform 
 rule of naturalization, is drawn with great clearness and 
 precision. It repeals all previous laws on that subject. 
 It not only expresses the conditions on which an alien 
 may be admitted to become a citizen, but it says " he 
 may be admitted on those conditions, and not otherwise." 
 What of this ? argues the judge. The usage of the sov- 
 ereign State of South Carolina has been otherwise. To 
 require aliens on being admitted citizens to take an oath 
 of allegiance to her is " one of the highest prerogatives 
 of the State, and the longest in use. I could not there- 
 fore permit it to be called in question ! " Upon this 
 point I will content myself for the present with remark- 
 ing, that the usage, if it ever prevailed, is illegal. The 
 Constitution of the United States, and the laws made in 
 pursuance thereof, are supreme over state laws and state 
 constitutions. 
 
 I could, may it please the Court, rest content with this 
 statement, and leave the case without further comment to 
 the decision of your honors. Hut the judge below lias 
 based his opinion on the most untenable ground. He has 
 assumed positions wholly unsupported by law, and ad- 
 vanced doctrines directly at war with the Constitution of 
 the United States. It becomes necessary, therefore, to 
 examine these doctrines, lest, having the sanction of ju-
 
 CITIZENSHIP AND ALLEGIANCE. 45 
 
 dicial authority, they may produce a baleful influence on 
 the public mind. 
 
 The judge, in his report, having stated that he refused 
 to admit the petitioner, proceeds thus : 
 
 11 ' The grounds upon which I refused to admit him 
 were, briefly, the following : 
 
 " First, That South Carolina was a sovereign and 
 independent State, and had an unquestionable right to 
 prescribe the terms and conditions upon which she would 
 admit aliens to the rights and privileges of citizenship, 
 from the day she assumed her sovereignty to the present 
 time, by the law of nations and the rights of all civilized 
 States. 
 
 " Secondly, That she had uniformly exercised this 
 right and power from the earliest period of her indepen- 
 dence [even before the independence of the United 
 States was declared] ; for in the constitution of 1776 
 the form of the oath is prescribed and directed. 
 
 " And in the constitution of 19th March, 1778, the 
 same form was laid down and directed, after the indepen- 
 dence of the United States was declared. 
 
 " Also, in the act of March, 1786, to confer the right 
 of citizenship, the oath is prescribed to be administered to 
 aliens on being admitted. 
 
 " Thirdly, Because it was one of the highest preroga- 
 tives of the State, and the longest in use. I could not 
 therefore permit it to be called in question, and dismissed 
 the petition. 
 
 E. H. BAY." 
 
 Xow, I deny, in the first place, that the State of South 
 Carolina has, either in her constitution or laws, any pro- 
 vision requiring an alien, before he can be admitted to 
 become a citizen, to take an oath of allegiance to the 
 State of South Carolina. I have carefully examined the
 
 46 CITIZENSHIP AND ALLEGIANCE. 
 
 constitutions of 1776 and 1778, and compared them with 
 the present state constitution. The only oaths to be 
 found in them are oaths of office, 1 and are superseded by 
 art. 4, Con. of South Carolina. There is not a word that 
 ingenuity can torture into a support of the judge's asser- 
 tion. 
 
 I proceed, therefore, to an examination of the laws or 
 statutes of South Carolina, in which we are told, " the 
 oath is prescribed to be administered to aliens on being 
 admitted." The first act on this subject is an act of 
 1C 96. It required an oath of allegiance to King Wil- 
 liam. This was altered by act of 1704 to an oath of 
 allegiance to Queen Anne. These acts are to be found 
 in Trott's Laws.' 2 It is unnecessary to dwell upon them ; 
 they were evidently repealed by the Declaration of 
 Independence. The act of 1704 was afterwards ex- 
 pressly repealed by the act of 20th March, 1784, ;; enti- 
 tled u an act to confer the rights of citizenship on aliens;'' 
 and this act of 1784 was declared to be repealed, as well 
 as that of 1704, by the act of 22d March, 1780. ' This 
 act denies to every alien the rights of citizenship in 
 voting, etc., " until he shall have been naturalized by a 
 special act of the General Assembly."' On the 27th Feb- 
 ruary, 1778, 5 an act was passed, prescribing the manner 
 in which records should be kept, and certificates granted, 
 of the admission of aliens to the rights of citizenship. 
 There is no other act among the laws of South Carolina 
 on the subject of naturalization. 
 
 On the 2M day of May, 1788, the people of South 
 Carolina ratified the Constitution of the United States, 
 by which they transferred to the general government 
 
 1 Constitutions of So. C;i., 177<> and 177S. 
 - Trull's i,a\vs, pp. (i.'5, and 10S, ]<)<>. 
 
 :i (irhnkc'.s I'ni). L.. pp. ;;:$'.), ;$io. 
 
 4 Gnnikr's I'M!.. L., p. 112. 5 Griinke's Pub. L., p. 1115.
 
 CITIZENSHIP AND ALLEGIANCE. 47 
 
 power to establish a uniform rule of naturalization. From 
 that time, South Carolina has never interfered with the 
 naturalization of aliens, but has looked for her guide to 
 the rule established by Congress. 
 
 Then, may it please the Court, neither the constitu- 
 tions nor the laws cited by the judge support his posi- 
 tion. The truth is, South Carolina considered the power 
 of naturalization vested in Congress alone. No State in 
 this Union can pass laws for naturalizing aliens. The 
 only power she possesses of conferring rights on aliens is 
 by means of denization. 
 
 Two acts of South Carolina conferring rights on aliens, 
 passed since the adoption of the Constitution, remain 
 to be examined : I mean the act of 18th December, 
 1799, 1 and that of December, 1807. 2 They relate wholly 
 to denizens. The first secures to them the same protec- 
 tion that citizens are entitled to, but prohibits them from 
 voting or holding any office of profit or trust in this 
 State. The second looks to the law of Congress, and 
 pays it a proper deference. It requires every " alien, pre- 
 viously to being entitled to avail him or herself of the 
 benefits of that act, to declare his or her intention to 
 become a citizen of the United States, agreeably to the 
 act of Congress in such case made and provided." Such 
 has been the legislation of South Carolina. 
 
 It appears, therefore, that there is no state law requir- 
 ing an alien, upon being admitted to the rights of citizen- 
 ship, to take an oath of allegiance to South Carolina. 
 
 The distinction which I have made between the power 
 to make citizens and the power to make denizens is an 
 old-established and well-recognized real distinction. In 
 Great Britain, the king can grant letters patent to make 
 a denizen. But Parliament alone can naturalize an 
 
 1 1 Faust's Laws, 273. 
 
 - Acts of Assembly, 1807. Pamphlet, pp. 59, 60.
 
 48 CITIZENSHIP AND ALLEGIANCE. 
 
 alien. Blackstone says, 1 " A denizen is an alien born, but 
 who has obtained c,x donations rcf/ls letters patent to 
 make him an English subject, a high and incommunicable 
 branch of the royal prerogative." He then enumerates 
 the privileges and disabilities of a denizen, and comes 
 to the subject of naturalization. 2 " Naturalization," says 
 he, " cannot be performed but by act of Parliament ; for 
 by this an alien is put in exactly the same state as if he 
 had been born in the king's liegeance ; except only," etc. 
 Judge Tucker also supports the distinction. 8 " The 
 common law has affixed such distinct and appropriate 
 ideas to the terms denization and naturalization that 
 they cannot be confounded together or mistaken for each 
 other in any legal transaction whatever. They are so 
 absolutely distinct in their natures that in England they 
 cannot both be given by the same power. The Federal 
 Constitution declares that Congress shall have power to 
 establish an uniform rule of naturalization throughout 
 the United States, but it also further declares that the 
 powers not delegated by the Constitution to the United 
 States, nor prohibited by it to the States, are reserved to 
 the States respectively or to the people. The power of 
 naturalization, and not that of denization, being delegated 
 to Congress, and the power of denization not being pro- 
 hibited to the States by the Constitution, that power 
 ought not to be considered as given to Congress, but, on 
 the contrary, as being reserved to the States. And as the 
 right of denization did not make a citizen of an alien, but 
 only placed him in a middle state between the two, giving 
 him local privileges only, which he was so far from being 
 entitled to carry with him into another State that he lost 
 them by removing from the State giving them, the incon- 
 veniences which might result from the indirect coinmuni- 
 
 o 
 
 1 1 IJI;ick. Coin. i-h. x. 374. - 1 Black. Com. 375. 
 
 3 1 JJhiek. Coin. 178, 257, 305.
 
 CITIZENSHIP AND ALLEGIANCE. 49 
 
 cation of the rights of naturalized citizens, by different 
 modes of naturalization prevailing in the several States, 
 could not be apprehended. It might, therefore, have been 
 extremely impolitic in the States to have surrendered the 
 right of denization as well as that of naturalization." 1 
 Naturalization in Great Britain, we have seen, can be per- 
 formed only by Parliament. This it does by virtue of its 
 omnipotence ; Parliament, according to the theory of the 
 British Constitution, having the sole and uncontrollable 
 power. 2 
 
 The power of naturalization is evidently a sovereign 
 power. Every nation is bound to look to its own safety. 
 It has a right to determine whether it will admit a 
 stranger into its society. It has a right to prescribe the 
 terms on which he shall be permitted to enjoy the benefit 
 of that society. Vattel says : 3 "A nation, or the sovereign 
 who represents it, may grant to a stranger the quality of 
 citizen, by admitting him into the body of the political 
 society. This is called naturalization." When the Con- 
 stitution of the United States was framed, which made 
 the people of the several States, to a certain extent, one 
 people or nation, and clothed the general government 
 with the attributes of sovereignty, it seems, then, from 
 the nature of the thing itself, that the power of granting 
 to a stranger the quality of citizen, by admitting him into 
 the body of the political society, should have been trans- 
 ferred to the national legislature. And this was done, as 
 the Court perceives, in the clause of the Constitution now 
 under consideration. 
 
 Before I proceed more fully to argue that the power of 
 naturalization is vested exclusively in Congress, I beg 
 leave to call the attention of the Court to the inference 
 
 1 1 Black. 257. 
 
 2 4 Coke's Inst. 36. 1 Black. Com. 162. 
 
 3 Vattel, Book I. ch. xix. sec. 214. 
 4
 
 50 CITIZENSHIP AND ALLEGIANCE. 
 
 drawn from the rights and character of South Carolina as 
 a sovereign State, and to the argument which will prob- 
 ably be based thereon. It will be contended that no 
 man can be a citizen of the United States before he is a 
 citizen of a single State ; that every citizen of a State, ex 
 rei necessitate, owes to her allegiance ; that therefore an 
 alien is bound to take an oath of allegiance to a State 
 before he can be admitted to the rights of citizenship in 
 the United States ; and that George Granstein, having 
 refused to take the oath, was properly rejected. 
 
 Now, what I maintain to be the true doctrine is this : 
 No State in the Union has a right to require an oath of 
 allegiance to her, because, in strictness of speech, alle- 
 giance is not due to her. 
 
 What is allegiance ? The term is derived from alligo 
 (^<id and ligo), to tie, or bind to. Blackstone defines it to 
 be 1 " the tie or ligamen which binds the subject to the 
 king, in return for that protection which the king 
 affords the subject." It is, as Lord Coke describes it, 
 the highest and greatest obligation of duty that can be. 
 It is tlif obligation that every citizen owes to support, iu 
 all its power and dignity, the government which protects 
 him in the enjoyment of his rights. And this protection 
 must be of a national character. According to the gen- 
 eral understanding of mankind, allegiance can be predi- 
 cated only of a government clothed witli the attributes 
 of sovereignty, and recognized at home and abroad as 
 having an equal and proper station among the nations of 
 the earth. It is evident that in this sense, our allegiance 
 is due immediately and directly to the United States. 
 
 An attempt has been made to separate the government 
 and the people. It is said that all sovereignty resides in 
 the people, and that there is no sovereignty in the govern- 
 ment, and hence no allegiance is due to it. We must 
 1 1 r>liK-k. Com. oGG.
 
 CITIZENSHIP AND ALLEGIANCE. 51 
 
 not suffer ourselves to be misled by subtle distinctions. 
 How can we bear true allegiance to the people, except by 
 preserving, protecting, and defending their government 
 and obeying its laws ? For most practical purposes the 
 people are the government, and the government is the 
 people. There is nothing magical in government. It is 
 with us, as it should be everywhere, a popular institution, 
 deriving its strength and influence from the affections and 
 support of those by whom and for whom it was made. 
 
 The late metaphysical disquisitions on the nature of 
 sovereignty are not calculated to produce any useful re- 
 sults, and are not entitled to the least respect. No 
 government in this country has unlimited absolute sov- 
 ereignty ; all power resides in the people, who have re- 
 strained their governments by written laws. And this is 
 a broad distinction between our governments and those of 
 Europe. It is a mistake, however, to suppose that all 
 European governments possess absolute sovereignty. In 
 fact, absolute sovereignty, or the right of governing the 
 State without any fixed laws, is, by the experience of all 
 ages, proved to be unfitted for human happiness. 1 Hence, 
 most, and those the wisest nations, have set bounds to the 
 powers of their sovereigns. Indeed, it is argued by writers 
 on politic law that a people cannot divest themselves of 
 this sovereignty, and give it to any individual, or body of 
 individuals, without renouncing their own lives and duty, 
 so that all sovereignty, how absolute soever it may be sup- 
 posed, hath its limits. 
 
 Sovereignty is frequently trusted to agents by the peo- 
 ple, who may, by regulating the government by a funda- 
 mental law, commit the exercise of the different parts of 
 the supreme power or sovereignty to different persons and 
 bodies.' 2 The only just foundation of the acquisition of 
 
 1 Burl. Pol. Law, Part I. cli. vii. sec. 27. 
 - Burl. p. 50, and Book II. cli. iii. Part II.
 
 52 CITIZENSHIP AND ALLEGIANCE. 
 
 sovereignty is the consent or the will of the people. 
 Vattel says : " Sovereignty is that public authority which 
 commands in civil society, and orders and directs what 
 each is to perform, to obtain the end of its institution. 
 This authority belonged originally and essentially to the 
 body of the society, who trust it frequently to a senate 
 or to a single person." l This public authority, thus de- 
 nominated "sovereignty," is called by Judge Tucker 
 "the government" or "administrative authority of the 
 State," which he defines to be " that portion only of the 
 sovereignty which is by the Constitution entrusted to the 
 public functionaries : " these, he adds, " are the agents and 
 servants of the people." According to these authorities, 
 then, and without authority it is sufficiently manifest, a 
 government may possess the attributes of sovereignty. 
 
 What is the great end of sovereignty? It is the tran- 
 quillity and happiness of the State as well within itself 
 as with respect to its interests abroad, and these are the 
 essential parts of sovereignty: 2 (1.) A legislative power. 
 (2.) An executive power. (3.) A judicial power. (4.) The 
 power to make war and peace, and raise troops. (f>.) The 
 power to make treaties and alliances. (0.) The power to 
 appoint ambassadors and other ministers. ( 7. ) The power 
 to tax. Burlamaqui and other political writers add 
 another power, that of determining what doctrines shall 
 be publicly taught. But in our country the right of free 
 decision is almost universally acknowledged. These essen- 
 tial parts of sovereignty are sometimes called immanent 
 and transeunt rights, and all these must concentre and 
 unite in a government to make it sovereign. Xo one will 
 pretend that the several States in this Union have these 
 powers. The people have transferred them to the gen- 
 eral government, to which our national sovereignty is 
 
 1 Vattol, Book I. cli. iv. 
 
 - Jlcinuc. Book II. sec. 133, 131, 135. Burl. cli. viii.
 
 CITIZENSHIP AND ALLEGIANCE. 53 
 
 entrusted, and to which we must look for national pro- 
 tection. That government has power over the purse and 
 power over the sword. It has power to declare war and 
 make peace, to levy taxes and raise troops, to form 
 treaties and appoint ambassadors and other ministers. It 
 has, under certain wise and salutary checks, power to 
 make laws, to expound them and enforce them. The 
 general government is, then, clothed with the attributes 
 of sovereignty. True, the States have power to legislate 
 concerning matters of an internal or local nature ; but 
 this does not interfere with the power of the general gov- 
 ernment. Nor does it affect the question of allegiance. 
 Allegiance is due to the paramount, and riot to the subor- 
 dinate authority, to the United States, whose Consti- 
 tution and whose laws made in pursuance thereof are 
 declared superior to all state laws and state constitu- 
 tions. 1 I repeat, then, that our allegiance is due imme- 
 diately and directly to the United States ; it is single 
 and undivided, and of paramount obligation. There is 
 and there can be no such thing as a double or contradic- 
 tory allegiance. And it is only by a looseness of speech, 
 calculated to produce in times of excitement the most 
 dangerous consequences, that it has ever been applied to 
 matters of a merely local or domestic nature. 
 
 Under the feudal system, allegiance was nsed only to 
 express the obligation due to the sovereign ; the inferior 
 duty that a vassal owed his lord was known by the appro- 
 priate term fealty. 
 
 Chancellor Kent speaks, in the second volume of his 
 Commentaries, of primary or paramount allegiance and 
 of secondary allegiance. The expression is inelegant and 
 uiiphilosophical ; allegiance is of itself of paramount obli- 
 gation. 
 
 In this view, it is evident that, in strictness of speech, 
 1 Cons. U. S. art. G, sec. 2.
 
 54 CITIZENSHIP AND ALLEGIANCE. 
 
 our allegiance is clue to the United States only. I allow 
 that there is an inferior or subordinate fealty due to the 
 State, but this cannot interfere with our primary and par- 
 amount obligations to the United States. 
 
 I now beg leave to bring to the attention of the Court 
 a brief reference to our civil and political history, in 
 order to illustrate and strengthen the view of allegiance 
 here presented. Previous to the adoption of the Articles 
 of Confederation, Congress was a mere advisory body. 
 The colonies wore engaged in a common cause, and were 
 practically one people or nation. They were represented 
 by a common body, or Congress. That Congress, having 
 passed the resolution declaring the Americans absolved 
 from all allegiance to the British government, very prop- 
 erly deemed an adherence to the king of Great Britain, 
 or other enemy of the colonies, an attack on the common 
 cause. They, therefore, on the 24th of June, declared 
 that l " all persons, members of, or owing allegiance to, 
 any of the United Colonies, who should levy war against 
 any of the said colonies, within the same, were guilty of 
 treason against such colony,'' and recommended to the 
 legislatures of the several colonies to pass laws for the 
 punishment of such treasons. In pursuance of this recom- 
 mendation, the States passed the laws requisite for self-pro- 
 tection, and inflicted the punishment of death on such as 
 were found guilty of treason. 
 
 Under the Articles of Confederation, the laws on the 
 subject of treason were undisturbed. Treason was still a 
 common offense as defined by Congress, but yet punish- 
 able by the several States, in consequence of the non-ex- 
 istence of a government acting directly upon individuals. 
 During all this time, however, we continued practically 
 one people or nation, engaged in a common cause, having 
 one regular body of troops, governed by united counsels, 
 
 1 1 Pitkin's Civ. mid Pol. Hist, of the U. S. ;571, .'JTli.
 
 CITIZENSHIP AND ALLEGIANCE. 55 
 
 aiid assisted by quotas paid for the common purpose of 
 common defense. 
 
 The Articles of Confederation were found inadequate 
 to national purposes, and our present Constitution was 
 built upon their ruins. By this the whole frame of our 
 government was remodeled. It is a constitution of gov- 
 ernment, with powers to execute itself. The govern- 
 ment has power to tax individuals, and to demand from 
 them military services. It has power to punish them for 
 crimes committed against itself. It is entrusted, we have 
 seen, with sovereign power. Its laws operate immediately 
 and directly upon the citizen, and thus create an immedi- 
 ate and direct connection between the citizen and the gen- 
 eral government. 
 
 Under these circumstances, it was found necessary by 
 the framers of the Constitution to make some new pro- 
 vision on the subject of treason. Accordingly, they de- 
 clared that " treason against the United States shall 
 consist only in levying war against them, or in adhering 
 to their enemies, giving them aid and comfort," and gave 
 Congress power to declare the punishment of treason. 
 Now, it must be borne in mind that treason is the highest 
 breach of allegiance. Whether we regard, then, the nature 
 of allegiance, the sense in which it is understood by all 
 civilized nations, the civil and political history of our 
 country as explanatory of the Constitution, or the Con- 
 stitution as speaking distinctly for itself, we are forced 
 to the conclusion that our allegiance is due immediately 
 and directly to the United States. 
 
 And this conclusion is strengthened by the eighth sec- 
 tion, art. 1, Cons. U. S., which conferred on Congress the 
 " power to establish an uniform rule of naturalization 
 throughout the United States." This power is exclusive. 
 Its purpose * was to deprive the States individually of 
 1 1 Kent's Com. sec. 19.
 
 56 CITIZENSHIP AND ALLEGIANCE. 
 
 the power of naturalizing aliens according to their own 
 will and pleasure, and thereby giving them the rights and 
 privileges of citizens in every other State. If each State 
 can naturalize upon one year's residence, when the act of 
 Congress requires five, of what use is the act of Congress, 
 and how does it become an uniform rule ? 
 
 In the case of Collet r. Collet, 1 tried in the Circuit 
 Court, Penns3*lvania District, it was held that the power 
 of naturalization was concurrent. " The true reason," says 
 the Court, " for investing Congress with the power has 
 been assigned at the bar : it was to guard against too nar- 
 row instead of too liberal a mode of conferring the rights 
 of citizenship. Thus, the individual States cannot ex- 
 clude those citizens who have been adopted by the 
 United States ; but they can adopt citizens upon easier 
 terms than those which Congress may deem it expedient 
 to impose." But this decision and the reason on which it 
 is founded are alike erroneous. Mr. Madison, in the forty- 
 second number of " The Federalist," addresses himself 
 to this point. He says, u The dissimilarity in the rides of 
 naturalization has long been remarked as a fault in our 
 system, and as laying a foundation for intricate and delicate 
 questions." lie then comments on the defects in the Ar- 
 ticles of Confederation, in the clause intended to give the 
 citizens of each State the privileges of citizens in the sev- 
 eral States, and in concluding says : " The very improper 
 power was retained by each State of naturalizing aliens in 
 every other State. In. one State, residence for a short 
 time confers all the rights of citizenship : in another, qual- 
 ifications of greater importance are required. An alien, 
 therefore, legally incapacitated for certain rights in the 
 latter, may by previous residence only in the former re- 
 move his incapacity, and thus the law of one State be pre- 
 posterously rendered paramount to the law of another, 
 1 '2 Dallas, _'<)<>.
 
 CITIZENSHIP AND ALLEGIANCE. 57 
 
 within the jurisdiction of the other. . . . By the laws 
 of several States, certain descriptions of aliens, who have 
 rendered themselves obnoxious, were laid under interdicts 
 inconsistent not only with the rights of citizenship, but 
 with the privileges of residence. What would have been 
 the consequence if such persons, by residence or otherwise, 
 had acquired the character of citizens under the laws of 
 another State, and then asserted their rights as such both 
 to residence and citizenship within the State proscribing 
 them ? " The new Constitution has with great propriety, 
 he therefore urges, given the power of naturalization to 
 Congress. In the thirty-second number of "The Feder- 
 alist," Alexander Hamilton says exclusive power is dele- 
 gated to the United States in three cases only : (1.) Where 
 the Constitution in express terms grants an exclusive au- 
 thority to the Union. (2.) Where it grants an authority to 
 the Union, and prohibits the State from exercising the like 
 authority. (3.) Where it grants an authority to the Union 
 to which a similar authority in the States would be abso- 
 lutely and totally contradictory and repugnant. He gives 
 examples of these cases from the Constitution. The third 
 will be found, he says, in that clause which declares that 
 Congress shall have power " to establish an uniform rule 
 of naturalization throughout the United States." This 
 must necessarily be exclusive ; because if each State had 
 power to prescribe a distinct rule, there could be no uni- 
 form rule. 
 
 Indeed, the decision in the case of Collet v. Collet 
 may be considered as in effect overruled. In the same 
 Circuit Court, in 1797, Judge Iredell, in the case of the 
 United States v. Villato, 1 declared that if the case had not 
 previously occurred, he should be disposed to think that 
 the power of naturalization operated exclusively, as soon 
 as it was exercised by Congress. And in the Circuit 
 1 2 Dallas, 370.
 
 58 CITIZENSHIP AND ALLEGIANCE. 
 
 Court of Pennsylvania, in 1814, : Judge Washington gave 
 it as his opinion that the power to naturalize was exclu- 
 sively vested in Congress. In Chirac r. Chirac, 2 the first 
 point made was that the estate of which John Baptiste 
 Chirac died seized was, in his lifetime, escheatable, be- 
 cause it was acquired before he became a citizen of the 
 United States ; the law of the State of Maryland, accord- 
 ing to which he took the oaths of citizenship, being vir- 
 tually repealed by the Constitution of the United States 
 and the act of naturalization enacted by Congress. It 
 was contended by Mr. Harper, for the plaintiff, 3 that he 
 acquired no capacity to hold by his naturalization under 
 the local law, since by the Constitution Congress alone 
 has the power of prescribing uniform rules of natural- 
 ization ; and the act of Maryland is a general natural- 
 ization law, not a special act authorizing citizens to hold 
 lands, or conferring other particular privileges. If the 
 States could make such a law, the Constitution of the 
 United States would be completely evaded, as the citizens 
 of one State are entitled to all the privileges and immu- 
 nities of citizens in every other State. It was contended 
 on the other side, by Mr. Martin and his colleague, that 
 the Constitution of the United States, and the laws made 
 under it, do not ipsojitre, repeal a state law relative to the 
 same matter, but only annul such parts of the latter as 
 are inconsistent with the former. The respective States 
 still preserve the right of making naturalization laws, 
 giving certain civil rights to foreigners without conferring 
 universal political citizenship. Chief Justice Marshall, 
 who delivered the opinion of the Court, observed that ' it 
 certainly ought not to be controverted that the power of 
 naturalization is exclusively in Congress.'' In Sturges 
 
 1 (iolilrn v. Prince, Whartou's Digest, tit. Const. Law, 1^6. 
 - 'J Wheaton's Kcp. L^<). 3 I Wheaton's Kep. 19:5. 
 
 4 ;) Dallas KI.). ;;s(j.
 
 CITIZENSHIP AND ALLEGIANCE. 59 
 
 v. Crowninshield, the chief justice laid this down as a 
 correct general principle, that whenever the terms in which 
 a power was granted to Congress, or the nature of the 
 power, required that it should be exercised exclusively by 
 Congress, the subject was as completely taken from the 
 state legislatures as if they had been expressly forbid- 
 den to act on it. In Houston v. Moore, 1 Judge Wash- 
 ington, in delivering the opinion of the Court, said that 
 when Congress exercised their powers upon any given 
 subject, the States could not enter upon the same ground 
 and provide for the same objects ; for if the laws of the 
 State, argued he, agree in every respect with the laws of 
 Congress, they are useless. If they differ, they must, in 
 the nature of things, oppose each other so far as they do 
 differ, and the laws of the State must be void. Judge 
 Story mentioned in the same case the power in Congress 
 to establish an uniform rule of naturalization as one which 
 was exclusive, on the ground of there being a direct re- 
 pugnancy or incompatibility in the exercise of it by the 
 States. So that, as Chancellor Kent says, 2 " the weight 
 of authority as well as of reason may be considered as 
 clearly in favor of this construction."' 
 
 This power, which I have thus shown to be exclusively 
 vested in Congress, relates wholly to the allegiance of all 
 adopted citizens : and yet, in spite of this, in. the face of 
 the express provisions of the Constitution, with a total 
 disregard to the civil and political history of our country 
 and the true nature of allegiance, it has been said that we 
 owe no allegiance to the United States ! And the citizen 
 of this republic, when called 011 to designate his national 
 banner, must point to the palmetto-tree, and not to the 
 stars and stripes of that flag which has floated in glory and 
 in triumph over the lakes and at New Orleans! All our 
 oldest and most cherished associations must be broken 
 
 1 5 Wheaton's Rep. 1. - 1 Kent's Com. 398.
 
 60 CITIZENSHIP AND ALLEGIANCE. 
 
 up : the tics which bind us to our brethren of the North 
 and the East and the West must be cut asunder : our 
 common labors and common sufferings in the cause of lib- 
 erty must be forgotten ; the American history must be 
 blurred and blotted out ; the Union is 110 longer to be 
 regarded with patriotic pride : all our duties, all our as- 
 pirations, must l>e hemmed in by state lines : we are to 
 be taught that there is no such thing as a citizen of the 
 United States, and that, instead of looking for the emblem 
 of our country to the bird of Liberty, soaring aloft, we 
 must cast our eyes on a venomous reptile, with " A noli me 
 tan(/crc " inscribed on the ground that supports it. 
 
 These things cannot be right ; the questions of citizen- 
 ship and naturalization are of an international nature. 
 We must extend our views beyond the narrow limits of 
 our own State, and even beyond the United States, and 
 look abroad among the nations of the world. What more 
 ridiculous and contemptible object can be imagined than 
 an individual in a foreign land standing in need of pro- 
 tection and claiming it in the name of the sovereign peo- 
 ple of South Carolina ? On the other hand, what more 
 delightful spectacle can the American patriot contemplate 
 than the citizen of this Union unfurling for his protection 
 our well known and universally respected national banner, 
 and recounting to an attentive and admiring auditory the 
 history of his country ? When I think of these tilings my 
 heart beats high with pleasurable emotions, and I thank 
 God that 1 am a citizen of the United States. 1 confess 
 1 cannot envy the feelings or judgment of the man who 
 thinks there is no such thing as a citizen of the United 
 States. 
 
 '" .No such thing as a citizen of the United States! 
 take ii]) the Constitution: T open it: I find in the very 
 first article, second section, that "no person shall be a 
 Kepresentative who shall not have . . . been seven years
 
 CITIZENSHIP AND ALLEGIANCE. Gl 
 
 a citizen of the United States." I turn to the next sec- 
 tion : I find, " No person shall be a Senator who shall not 
 have . . . been nine years a citizen of the United States." 
 The expression " citizen of the United Sta.tes " is again 
 and again inscribed 011 the very face of the instrument. 
 I cannot believe that the framers of the Constitution were 
 so ignorant or inattentive as not to know or not to regard 
 the import of the phrase. 
 
 " No such thing as a citizen of the United States ! " 
 The wildest theorist in his most extravagant dreams has 
 never denied that there is a government of the United 
 States. Who ever heard of a government without citi- 
 zens ? 
 
 I have brought to the view of the Court the constitu- 
 tional provision concerning treason against the United 
 States. Can there be treason where there are no citi- 
 zens ? 
 
 These remarks, may it please the Court, appear to me 
 to furnish a satisfactory reply to the argument that no 
 alien can become a citizen of the United States until he 
 first becomes a citizen of a single State. We have seen 
 that the power of naturalization is vested exclusively in 
 Congress. It is undoubtedly true that the state courts 
 admit aliens to the right of citizenship. But they do 
 this as agents of Congress, by virtue of the power en- 
 trusted to them by Congress, and according to the rule 
 prescribed by Congress. The right of citizenship is con- 
 ferred by the United States, not by the State. An alien 
 may be naturalized in a Territory, he may be naturalized 
 in the District of Columbia, he may reside during his 
 probationary term in one State and may be admitted in 
 another. The certificate which he receives from court de- 
 clares him " a citizen of the United States." When nat- 
 uralized, then, he becomes immediately a citizen of the 
 United States ; and it is in that character alone that he
 
 62 CITIZENSHIP AND ALLEGIANCE. 
 
 can become a citizen of a single State. The Union forms 
 the bond of connection between him and the State. Before 
 he can be admitted he is required to swear that he will 
 support the Constitution of the United States, thus pledg- 
 ing- his allegiance to the United States ; for allegiance, as 
 I have shown, is a paramount obligation and is due to the 
 supreme authority, and the Constitution declares itself, 
 and the laws of the United States passed in pursuance 
 thereof, the supreme law of the land. I have now shown : 
 (1.) That the petitioner, George Granstein, who has com- 
 plied with all the other conditions of the act of Congress, 
 and offered to take the oath prescribed by it, was entitled 
 to be admitted a citizen of the United States. (2.) That 
 if the State have a concurrent power with Congress in the 
 subject of naturalization, she certainly has not exercised 
 it since the adoption of the Constitution of the United 
 States, no provision being found in the Constitution or 
 laws on this subject. (3.) That the State has no such 
 power, but that she retains the power of denization. (4.) 
 That the power of naturalization is necessarily exclusively 
 vested in Congress, as appears from the nature of the 
 power itself, from the contemporaneous exposition, and 
 from judicial opinions. (5.) That in strictness of speech 
 our allegiance is due to the United States only, but that 
 there is a fealty (or " secondary allegiance '') due to the 
 State, and that the inference drawn by his honor from 
 the alleged rights and character of South Carolina as a 
 sovereign State is clearly erroneous. ( (5.) That when an 
 alien is naturalized in our country he becomes immedi- 
 ately a citizen of the United States, and it is in that char- 
 acter alone that he can become a citizen of a single State. 1 
 These propositions are in strict accordance with the Con- 
 stitution and the laws, and appear to me perfectly clear 
 and undeniable. I should not have dwelt upon them so 
 1 Laws of Congress.
 
 CITIZENSHIP AND ALLEGIANCE. 63 
 
 long 1 were it not that directly repugnant doctrines have 
 been industriously circulated throughout our State, and 
 are said to have received the sanction of some popular 
 assemblies, and appear now to have received the sanction 
 of the judge below. But I am sure they will never re- 
 ceive the sanction of this Court. 
 
 Isocrates, in one of his orations to the sophists, speak- 
 ing of the ease with which a false proposition may be 
 supported to the satisfaction of a common auditory, says 
 the reason is that when men find that something can be 
 said in favor of what on its very face appeared indefen- 
 sible, they grow distrustful of their own reason, and are 
 easily hurried on by the orator to whom they abandon 
 themselves. But your honors are not to be hurried on in 
 this manner, nor to be deceived by the gloss that sophistry 
 confers on ingenious falsehoods. It is our pride, a matter 
 of just pride and gratulation, that we have in this judi- 
 ciary a tribunal that will not be swayed by popular error 
 or momentary excitement, a tribunal that will hear pa- 
 tiently and gravely, deliberate carefully and calmly, and 
 decide according to the well-settled principles of law and 
 the Constitution of oiir country. To this tribunal I now 
 submit the case of the appellant. 
 
 N. B. The opinion of Judge Bay was reversed by the 
 court of appeals. ]?.>'. parta Granstein, 1 Hill, South 
 Carolina lieports, 141.
 
 ARGUMENT IX THE SLAUGHTER-HOUSE 
 
 CASES. 
 
 BEFORE THE SUPREME COURT OF LOUISIANA. 
 
 [The construction of the amendments to the Constitution of 
 the United States was involved in the so-called slaughter-house 
 cases. The legislature of Louisiana, by an act passed in March, 
 18G9, had granted to a certain corporation an exclusive right 
 for twenty-five years to have and maintain slaughter-houses and 
 yards for inclosing cattle intended for sale or slaughter within 
 several parishes in that State, which included the city of New 
 Orleans, and prohibiting all other persons from building or 
 keeping cattle-yards or slaughter-houses within those limits, 
 and requiring that all cattle and other animals intended for sale 
 or slaughter in that district should be brought to the yards of 
 the corporation, where certain fees might be charged. The act 
 of the legislature was assailed upon the ground that it was 
 unconstitutional and iu conflict with the provisions of the thir- 
 teenth and fourteenth articles of amendment to the Constitution 
 of the United States. The Supreme Court of Louisiana held 
 the act of the legislature valid, and afterwards, upon appeal to 
 the Supreme Court of the United States, the judgment of the 
 Supreme Court of the State was affirmed. Justice Miller being 
 the organ of the Court. V'ulc. 1G Wallace, United States Su- 
 preme Court Reports, p. .'57. Mr. Hunt's argument before the 
 Supreme Court of the State is given.] 
 
 MAY it please your honors, I had hoped not to trouble 
 you in this ease. The arrangement made was that it 
 should !>e discussed by my colleague (Mr. Roselius), who 
 opened the ease with such ability, and should be closed
 
 ARGUMENT IN THE SLAUGHTER-HOUSE CASES. 65 
 
 by my brother (Mr. William H. Hunt), but circumstances 
 rendered him incapable of addressing the Court, and I 
 therefore take his place. 
 
 The argument presented to you against my clients has 
 been of the most extraordinary character. Whether I 
 consider the unfounded, illegal, and unconstitutional doc- 
 trines of the first counsel (Mr. J. B. Cotton), and the 
 manner in which he presented them, his fine voice, his 
 action and declamation, or the solemn, slow, labored, and 
 heavy humor with which the counsel who followed him 
 (Mr. J. Q. A. Fellows) was pleased to liken my eloquent 
 colleague to Rip Van Winkle, a witticism which de- 
 lighted nobody except the counsel who succeeded him ; 
 or whether I consider the grave, serious, vituperative, and 
 lengthy address delivered before you this day, abusive of 
 the character and standing of seventeen citizens against 
 whom there is no evidence in the record, and illegally 
 and acrimoniously denunciatory of a coordinate branch of 
 the government, I am pained that such a scene should 
 have been displayed and such things heard in an Ameri- 
 can court ; shocked especially that he who last addressed 
 you (Judge Campbell) 1 should have resorted to such a 
 system of attack. 
 
 Judges, you have heard him declare that all the 
 defendants in this case ought to be in the penitentiary, 
 and that they are all guilty of fraud ! I should like to 
 know if he ever brings a suit against any one who is not 
 charged by him with fraud ; if fraud is not his mono- 
 mania ; if it is not upon that that he speaks whenever 
 he addresses a court of justice, and seeks to uphold the 
 wrong against the laws of the land. 
 
 I will not follow him through his entire argument at 
 present. Time does not allow it. I shall only select 
 
 1 John A. Campbell, formerly an associate justice of the U. S. 
 Supreme Court.
 
 66 ARGUMENT IN THE SLAUGHTER-HOUSE CASES. 
 
 those points which I think deserve notice. It will not 
 "amaze "you, with your judicial experience, although 
 it may " amaze " some of the interested persons in court 
 who have heard his speech, to know that there is 
 nothing in this case but a simple question of law, which 
 ought to have been presented without declamation, denun- 
 ciation, or mystification. 
 
 What i.x- the case ? The legislature of this State, in 
 the exercise of its police power, has thought proper to 
 designate and fix a place for the slaughter of animals 
 whose meat is intended for sale in the city of New 
 Orleans. I need not tell you how important health is to 
 the individual or to the community at large, and I shall 
 take it for granted, in the commencement of my argu- 
 ment, that it is within the police power of the State to 
 pass regulations concerning the health of the people of 
 the State. What are the circumstances, then, that 
 induced the legislature to exercise the power upon this 
 occasion ? 
 
 When, this city was under the government of the 
 Cabildo, and afterwards under the government of the 
 charter of 1804, the population of New Orleans was com- 
 paratively very small, a few thousand inhabitants. Yet 
 they found it necessary, even at that time, to regulate the 
 slaughtering of animals whose meat was to be sold in the 
 market of the city, and a place was assigned for the pur- 
 pose, at or below the point where the slaughter-house is 
 established at this time by the act of the legislature. 
 What was the object of the regulation ? Simply this : 
 that the blood and the offals, and those things which were 
 noisome and offensive and dangerous to public health, 
 should, after the animals were slain, be tin-own into the 
 Mississippi, where they would be taken up and carried 
 along its rapid current until they reached the waters of 
 the Gulf of Mexico, where they would be innocuous, or
 
 ARGUMENT IN THE SLAUGHTER-HOUSE CASES. 67 
 
 serve as food for the fishes and monsters of the deep. 
 Things continued under this regulation for a long time ; 
 but our population increased, and, as the Americans came 
 in, more vigor was exhibited in the government of the 
 State and city. The population at first chiefly settled 
 and concentrated in what is now the lower part of the 
 city. Above the line of Canal Street there were few, if 
 any inhabitants. But as the Americans increased in 
 numbers, they established themselves beyond it and 
 moved upward for the purpose of meeting the commerce 
 coming down the Mississippi. The butchers, who had 
 been carrying on their business quite conveniently from 
 the opposite side of the river, below the city, began to 
 find the situation inconvenient. They had been in the 
 habit of bringing over to New Orleans, in pirogues, the 
 meat of the animals killed at the slaughter-house on the 
 opposite bank of the river, below the city, and selling it 
 in the markets of New Orleans. But with the increase of 
 population there came, of course, an increased demand 
 for food and meat. The butchers' business was more 
 extended and enlarged. They had more employment and 
 more gain, and gradually acquired more power. They 
 determined to move to the upper part of the city, and to 
 slaughter there the animals whose meats they sold ; and 
 this they did to the annoyance and injury of the public. 
 
 After the lapse of some time a series of municipal 
 ordinances was passed upon this subject. They were 
 entitled " Ordinances for the protection of the health of 
 the city, and to guard against public nuisances." They 
 provided that no establishment for the burning of bones, 
 no establishment in which any business deleterious to the 
 public health was intended to be carried on, nothing 
 noisome, nothing that emitted a poisonous vapor, etc., 
 should be permitted within the corporate limits of the city 
 of New Orleans ; and they particularly provided that no
 
 68 ARGUMENT IN THE SLAUGHTER-HOUSE CASES. 
 
 beef should be slaughtered except in " slaughter-houses,'' 
 and that the heads and entrails, the offals, and other 
 refuse parts of the animals, etc., should be taken away 
 and thrown into the river at a point below the city. 
 
 Things remained in this condition until the city of 
 Lafayette was incorporated. But there existed a con- 
 stant desire and continued exertion to remove from the 
 limits of New Orleans all slaughter-houses. But this did 
 not prove successful until the butchers themselves saw 
 that their own convenience and interests would be 
 advanced by erecting cattle-pens and slaughter-houses 
 above Jackson Street, where there was a tavern called the 
 " Bull's Head,'' at which the butchers itsed to meet and 
 converse, and carry on their business, except the actual 
 slaughtering of animals. Population and business con- 
 tinued to extend and move upwards, higher and higher : 
 and the butchers again found it convenient and advan- 
 tageous to move up. They went, as the enactments 
 show, to the city of Jefferson, where they have landed 
 their cattle on the bank of the river, put and kept up 
 pens, slaughtered animals, throwing the offal, etc., into 
 the river, and established and kept up a constant source 
 of nuisance and annoyance to the community, injurious 
 and dangerous to the health, the limbs and lives of the 
 citizens, and obstructing and stopping the prosperity and 
 growth of the city. 
 
 1 ask your honors to reflect for a moment upon the 
 actual condition and situation of persons and tilings, 
 under this evidence: two or throe hundred beeves 
 arriving every day for the purpose of being slaughtered 
 for the New Orleans market, landed directly at the foot 
 of Louisiana Avenue ; persons who pass along the levee 
 and the streets adjoining the landing, in a densely popu- 
 lated part of a town, watching invariably with fear or 
 anxiety, and continually inconvenienced by these untamed
 
 ARGUMENT IN THE SLAUGHTER-HOUSE CASES. 69 
 
 animals, sometimes breaking loose and rushing wildly and 
 madly through the streets, endangering the limbs and the 
 lives of men, women, and children. Is it not palpable to 
 any man who will look at things as they are, instead of 
 indulging in wild ideas of liberty for every man to do 
 whatever he pleases, regardless of others' rights, that the 
 public welfare and the protection of the lives and limbs 
 of the citizens require that a stop should be put to this ? 
 Of all the places in New Orleans, there is none, at certain 
 seasons of the year, more pleasant than the bank of the 
 river Mississippi ; the people come to it for pleasure and 
 for enjoyment, and they use it also for their business pur- 
 poses. The whole portion of the city upon which the 
 cattle were landed and slaughter-houses were built was 
 cut off from the vise of the inhabitants. Grand jury after 
 grand jury reported against it as a public nuisance, and 
 called upon the municipal council of Xew Orleans to 
 exercise the police power vested in it by the State and 
 pass ordinances to correct the evil, and the councils did 
 so. They called upon the city council of Lafayette to 
 pass ordinances, and they too did so. They reported it 
 to the district courts of the State, in order that it might 
 be known to all the State. It was a matter of grievous 
 public complaint, day after day, week after week, month 
 after month, and year after year. At length, in 1862, 
 the city of Jefferson passed an ordinance for the express 
 purpose of removing the slaughter-houses. 
 
 It was similar to the law that is now before you, and 
 conferred upon Messrs. Kochereau and Hepp, two citizens 
 of great wealth and respectability, rights and powers of 
 the same kind with those conferred here upon the corpo- 
 ration. It fell through. I need not dwell upon the 
 reason. The Court is aware of the late history of the 
 country : that the Southern States, supposing themselves 
 strong enough to effect their purpose, determined to
 
 70 ARGUMENT IX THE SLAUGHTER-HOUSE CASES. 
 
 separate from the Union, made an unsuccessful and bale- 
 ful attempt at secession. Messrs. Rochereau and Ilepp, 
 though rich men, were unable to make any use of the 
 authority which was given to them. The city of New 
 Orleans was cut off from trade and commerce, and from 
 intercourse and communication with other parts of the 
 Union. General Butler was here : a large number of 
 citizens were expelled : the city was walled in by military 
 rule. Is it a wonder, then, that Ilepp and Kocliereau 
 could not use the powers and privileges conferred upon 
 them by the ordinance ? 
 
 In 1866, peace having been reestablished, and the 
 power of the Union once more acknowledged, matters 
 began to resume their regular course. The grand jury of 
 this city once more presented to the district court this 
 important subject, and earnestly invoked the action of the 
 State to remove " the greatest of all nuisances." They 
 stated that, in consequence of the impurity of the water 
 of the Mississippi by the throwing of offals and filth 
 (especially from slaughtered animals by butchers) into it, 
 above the city, more contagion and disease had been pro- 
 duced than by any other cause : and they complained in 
 strong and direct terms that it was impossible to preserve 
 the public health so long as the abattoirs or slaughter- 
 houses in Jefferson were kept up above the city. 
 
 In the year 1867 the State felt it necessary to relieve 
 the suffering people, and an act was passed by the legis- 
 lature for the object. It was entitled '' An act to 
 prevent offal and nuisances from being thrown in the 
 Mississippi liiver within the limits of the cities of New 
 Orleans and Jefferson." The first section provided : 
 "That the city council of the city of New Orleans, and 
 the city council of the citv of Jefferson, be, and they are 
 hereby required, before the first day of May, eighteen 
 hundred and sixty-seven, to pass ordinances prohibiting
 
 ARGUMENT IN THE SLAUGHTER-HOUSE CASES. 71 
 
 any offal or nuisance from slaughter-houses, and feculent 
 matters from privies, from being thrown into the Missis- 
 sippi River anywhere above Slaughter-House Point," 
 Slaughter-House Point, the very point now occupied by 
 the company. To enforce obedience to this command, the 
 act declared that no ordinance of either council should 
 have force until that ordered by this act should be passed. 
 
 It then further provided : " That after the said first 
 day of May, eighteen hundred and sixty-seven, it shall be 
 unlawful for any person whatever to throw any offal, 
 carrion, or dead animals, or feculent matters from privies, 
 into the Mississippi River at any point in front of the 
 corporate limits of the said cities of New Orleans or 
 Jefferson, under a penalty of fifty dollars for each offense, 
 to be recoverable before any court of competent jurisdic- 
 tion, for the use of the State, one half to go to the 
 informer, the said penalties to be in addition to any fines 
 and penalties which may be imposed by the ordinances of 
 the said cities of New Orleans and Jefferson." 
 
 This act was passed March 23, 18G7. Its object was to 
 compel the municipal powers to do their duty, in spite of 
 the butchers' opposition, which had become so formidable 
 as to control the town councils. The legislature used 
 the plainest words, and adopted the simplest means. 
 Nothing can be clearer and more positive than the order 
 which it gave to the town councils. Why did not they 
 obey it? Because they were overawed or circumvented 
 and deluded ; because the butchers, represented here by 
 the counsel who last addressed you, were suddenly con- 
 verted into champions of liberty for themselves, regard- 
 less of all others, and boldly declared that no police regu- 
 lation, however necessary to the happiness or even the 
 existence of the community, could interfere constitution- 
 ally with that liberty and their free use of their own 
 property. They knew that the use which they were male-
 
 72 ARGUMENT IN THE SLAUGHTER-HOUSE CASES. 
 
 ing of that property was against public health, prevented, 
 or at least checked the growth of the city, and was in- 
 compatible with the welfare of this community and the 
 general good of the commonwealth. But what of that ? 
 They would join themselves together and form a corpo- 
 ration of six, ycleped the " Benevolent Association of 
 Butchers." The Benevolent Association of Butchers, and 
 champions of the right to nse their own property as they 
 please, without regard to law or the liberty of others ! 
 There is their act of incorporation, dated immediately 
 after the law of 1867. It sets forth that the six persons 
 therein named had become " benevolent butchers " to one 
 another, and for the purpose of trading" in cattle, and of 
 importing and selling cattle in the market of Xew Or- 
 leans ; and, sirs, it is strange, yet true, they exercised 
 sufficient influence to prevent the councils from obeying 
 the order of the State. 
 
 Time rolled on : the nuisance increased : the voice of 
 the people was louder ; public opinion could no longer be 
 stayed. When the legislature of this State met again, 
 the people presented new petitions, numerous and largely 
 signed, praying for further and direct state action. They 
 urged : l ' You have sent us to the councils ; we cannot 
 induce them to do their duty. Look at our situation ! 
 \ ou are here to legislate, not merely for one particular 
 spot or parish, but for the entire State. You, sir, come 
 from Caddo, in the extreme northwestern part of Louisi- 
 ana. You (tome from Plaqucmines, at the mouth of the 
 river. ^ ou, legislators, are all assembled here, represent- 
 ing every interest and every parish of this State. This is 
 a matter of common concern and interest. Our commerce 
 is with each and all of you. On you New Orleans de- 
 pends : it is a great and noble city, of which we are 
 proud. Make those regulations which are essential to the 
 health and comfort of the city, to its growth and pros-
 
 ARGUMENT IN THE SLAUGHTER-HOUSE CASES. 73 
 
 perity, to the security of the lives and limbs of its inhab- 
 itants, and to the best and freest use of the banks of our 
 river for business and pleasure, and you will confer a 
 benefit and a blessing on the State. We call upon you 
 to act as citizens of Louisiana. It is your duty to pro- 
 tect life and health, and to promote the comfort and 
 prosperity of the entire people. You cannot discharge 
 the duty with regard to New Orleans without doing good 
 to every other part of the State. Deprive New Orleans 
 of your proper protection and guardianship, and the whole 
 commonwealth suffers. We are bound together insepa- 
 rably, one in heart, one in feeling, one in interest, and we 
 call upon you to exercise the power that is vested in you 
 for the good of all." Was that constitutional, right, and 
 patriotic, judges ? 
 
 Suppose, instead of being here, you had been members 
 of the legislature. Suppose an appeal of that kind had 
 come to you from good and true men. What, I ask, 
 would you have done ? What would you do if called on 
 now to act under such circumstances ? Refer it to a com- 
 mittee to take full evidence on the subject, and to report ; 
 and when that report should be fairly before you, then 
 you would do that under the Constitution which the public 
 good might demand. That is the part of wisdom ; that is 
 the part of honor ; that is the part of American patriot- 
 ism; that is the duty of the legislator true to liberty and 
 law. I am not talking now of wild, abstract notions of 
 liberty, that a man has by nature the right or liberty 
 to do whatever he desires, irrespective of the rights and 
 liberties of other men ; such impracticable notions, pushed 
 to excess, lead only to crime and ruin, but I am speak- 
 ing this day for liberty regulated by law. I love liberty 
 everywhere, and at all times, such as she is depicted in 
 the classic pages of Home and Greece, as she has been 
 exhibited in England and in other lauds ; but the liberty
 
 74 ARGUMENT IN THE SLAUHGTER-HOUSE CASES. 
 
 I love and advocate above all is American liberty, sup- 
 ported by constitutions and laws. Lawless liberty is 
 mere licentiousness ; where law ends tyranny begins. 
 
 Then, sirs, when you are called upon to consider the 
 action of the legislature on this matter, it is just to look 
 into the documents of which I have spoken in a general 
 way ; and, first, I will read from the report of the grand 
 jury, August 14, I860. It states : " In consideration 
 of the prevalence of cholera and other diseases in our 
 midst, the grand jury makes a special report upon the 
 impurity of the water taken from the river and supplied 
 by pipes to the city, caused by throwing offal, refuse from 
 slaughter-houses, etc., into the river above the works of 
 the water-works company, at the foot of Kichard Street. 
 The superintendent of the water-works states that the 
 suction pipes of the river occasionally become clogged by 
 such water being drawn into them, requiring constant at- 
 tention to keep their orifices clear. Two large vessels lie 
 at the wharves immediately above and in front of the suc- 
 tion pipes, and act as fenders to guide the floating offal, 
 etc., out into the current. When they have been loaded 
 and gone, the collection of effete matter will naturally in- 
 crease as in an eddy. How many slaughter-houses exist 
 above the works I cannot say ; but their entire removal to 
 the lower part of the city would be a public benefit. 
 
 " A petition signed by more than five hundred of our 
 most prominent citizens for such removal of slaughter- 
 houses was addressed to the council last spring, and re- 
 ported upon favorably by the committee on police and 
 health of the lower board June 12, 1800 ; but the resolu- 
 tion submitted by them failed to become a law, and the 
 city passed, on the 31st July, 1800, an ordinance, No. 
 233, N. S,, authorizing the erection of slaughter-houses in 
 the Fourth District, although under the health ordinance 
 (sec. 20), approved August 2, 1800, they are expressly
 
 ARGUMENT IN THE SLAUGHTER-HOUSE CASES. 75 
 
 forbidden. Every diligence is exercised now to keep the 
 suction pipes clear from all effete substances, and after 
 the water is pumped into the reservoirs a laborer is en- 
 gaged throughout the day in skimming the scum which 
 forms upon the surface." 
 
 The grand jury continue : " Many persons of this 
 city (especially the poorer classes, amongst whom most of 
 the deaths of cholera have lately taken place) use the hy- 
 drant water for drinking and other purposes. We be- 
 lieve that the water must be impure and unhealthy, and 
 liable, if not to create disease, at least to increase that 
 which may exist. We recommend that the city authori- 
 ties should take this matter into immediate consideration, 
 and that, besides adopting requisite ordinances, they 
 should petition the legislature to pass an act that there 
 should not be allowed to exist any slaughter-houses, or 
 similar places, above the city within a specified number 
 of miles. We consider such an act of the legislature 
 necessary, because, should the city authorities cause the 
 removal of such establishments from the upper portions of 
 the city, they could be reestablished barely above the city 
 limits, and would be as great nuisances then as now." 
 
 I read from the journal of the House : " Under a sus- 
 pension of the rules the following bill was brought in : 
 ' An act to protect the health of the city of New Orleans 
 and of the town of Algiers, on the right bank of the 
 Mississippi River, parish of Orleans.' " 
 
 This bill is very like the act of 1869. It was read 
 and referred to a committee. That committee reported, 
 " from personal and careful observation,"' as also " from 
 the opinions and personal experience of persons thor- 
 oughly competent to judge on the question ; " as well, 
 too, as from " a petition signed by eleven hundred re- 
 spectable property-holders of New Orleans, urging the 
 removal of this foul nuisance."
 
 76 ARGUMENT IN THE SLAUGHTER-HOUSE CASES. 
 
 " The first question which arises on this important 
 matter is, what becomes of the immense quantity of filth 
 and offal which is accumulated at and in the vicinity of 
 the stock landing? The result of our investigations is 
 that it all goes into the Mississippi River, which, if not 
 prejudicial to health, is certainly very revolting. The 
 immense suction pipe of the New Orleans water-works 
 is immediately below, and sucks in objects floating on 
 the water at a distance of fifty or sixty feet. AVhen the 
 river is low, it is not uncommon to see intestines and 
 portions of putrefied animal matter lodged immediately 
 around the pipes. The liquid portion of this putrefied 
 matter is sucked into the reservoir. Vessels arriving 
 here with cattle, especially those that have been in a 
 storm, invariably throw the dead cattle of which they 
 often have many into the river at the stock landing. 
 These are again taken from the river and subjected to 
 the process of skinning, after which the carcass is again 
 thrown into the river. It is not unusual, during the sultry 
 heat of the summer months, to see these floating objects 
 about the shipping, no doubt causing disease among the 
 sailors on board these vessels. There is not the slightest 
 doubt in the mind of your committee that this must be 
 extremely prejudicial to the health of New Orleans. To 
 recapitulate, we would state that the two subjects which 
 deserve the most important consideration are : first, the 
 water we drink is contaminated with macerated and de- 
 composed animal matter, and is a constant source of 
 disease and injury, occasionally acute, but generally slow 
 and certain : second, the air we breathe at times is 
 contaminated and poisoned by the lilth from different 
 slaughter-houses, blood, urine, and other refuse matter, 
 all in a state of decomposition, tin-own into the water, 
 floating down the shore, an abominable nuisance.'' 
 
 I refrain from reading the rest of this report. It is all
 
 ARGUMENT IN THE SLAUGHTER-HOUSE CASES. 77 
 
 to the same effect. There is appended to the report a 
 document entitled to the highest respect, from the charac- 
 ter and learning of the persons who signed it. It is 
 a certificate from the president of the Board of Health, 
 J. S. Smith, from Dr. Choppin, and from J. T. Penning- 
 ton, and it corroborates the conclusions of the committee. 
 TTith this evidence before us, I need not add a word to 
 refute the reckless and groundless assertion by the coun- 
 sel on the other side, that there is nothing in this ques- 
 tion that concerns the health of the city of New Orleans ; 
 that the legislature, when they acted on this information, 
 and passed the act of 1869, entitling it " An act to pro- 
 tect the health of the city of New Orleans," etc., were 
 guilty of falsehood, and acted in bad faith and corruptly. 
 But let me go further, and refer more fully to the 
 title and to the body of this act of 1869, which is bitterly 
 denounced. The title commences, " An act to protect the 
 health of the city of New Orleans," etc. Is that a proper 
 subject of legislation ? Does it fall within the police power 
 of a sovereign State to adopt measures for the protection of 
 public health ? The title continues, "To locate the stock 
 landing and slaughter-house." I have shown that, in 
 point of fact and in the opinion of the legislature, the 
 location of the stock landing and slaughter-houses, im- 
 mediately above the water-works and above the city, was 
 injurious to the health, comfort, safety, and prosperity 
 of its inhabitants, and imperiously demanded legislative 
 action. Does the act of 1869 cease, then, to be an act 
 to protect the health of the city of New Orleans, because 
 it goes further and wisely locates a stock landing and 
 slaughter-house elsewhere ? To carry into effect these 
 objects, the legislature deemed it prudent to charter a 
 company, and therefore added to and concluded the title 
 with the words " and to incorporate the Crescent Live 
 Stock Lauding and Slaughter-House Company." That is
 
 78 ARGUMENT IX THE SLAUGHTER-HOUSE CASES. 
 
 the title of the act. Is there anything in it that is un- 
 constitutional and destructive of rational liberty ? I am 
 speaking of the practical operation of a free constitutional 
 government, to you who are to judge of the action of 
 public functionaries. Is there any impropriety, any 
 ground for charging legislators with frauds, in the mere 
 passage of the act under the circumstances which have 
 been detailed? 
 
 It is said, there is no doubt that the legislature could 
 have erected slaughter-houses ; could have exacted fees 
 and tolls, and made persons pay for the use of facilities 
 afforded them by the State, in the exercise of its power 
 to protect the general health and advance the comfort 
 and welfare of the people of New Orleans. What ! do 
 you admit that ? And will you yet undertake to say that 
 if the position of public affairs is such that it is not con- 
 venient for the State to use a million of dollars or more 
 for such a purpose, the State cannot create a corporation, 
 with limited franchises and restrictions, under constitu- 
 tional authority, for the purpose of doing that which, 
 while it advances the private interests of the corporators, 
 subserves the public good? 
 
 The power of creating a corporation may be properly 
 used for the purpose of attaining a public and useful end. 
 AVhen the end is legitimate and within the scope of the 
 Constitution, the means winch are appropriate and plainly 
 adapted to this end, and which are not prohibited, are 
 lawful. Private corporations have been deemed, in cer- 
 tain eases and in certain respects, public agents. There 
 is no doubt of the constitutional doctrine on this subject, 
 or of the policy adopted by this State. Was the lighting 
 of the streets in Xew Orleans deemed of public impor- 
 tance and use ? A gaslight company was incorporated. 
 AVas wholesome water a public necessity? The water- 
 works company was incorporated. Is a railroad through
 
 ARGUMENT IN THE SLAUGHTER-HOUSE CASES. 79 
 
 the streets of a city, or between different parts of the 
 State, or between Louisiana and other States wanted for 
 public convenience and commerce ? A corporation is 
 established. Who in this country doubts the power of 
 the legislature in these cases ? I speak not of visionary 
 theorists wandering in the fogs of metaphysical abstractions 
 of absolute liberty, but of practical American statesmen 
 and judges. In our country, when a large and consoli- 
 dated capital is necessary to accomplish works important 
 to the public good, it is quite customary for the States 
 to grant charters of incorporation to private individuals, 
 with special and often exclusive privileges, to effect that 
 end. And this has been a means of making the gigantic 
 improvements which private enterprise, directed by pru- 
 dence and aided by scientific and mechanical knowledge 
 and skill, has successfully and beneficially made through- 
 out the Union. Will it be said, Massachusetts can do 
 this, Xew York can do this, the young and giant State 
 of Illinois can do this, and, with proper limitations and 
 restrictions of the privileges and the profits and emolu- 
 ments of the corporations, can do this to the promotion of 
 the people's comfort and weal ? But liberty is destroyed 
 and the Constitution is violated when in Louisiana her leg- 
 islature, exercising police power, incorporates a company 
 to erect, in aid of the health, comfort, and prosperity of her 
 citizens, an abattoir, and confers upon the company the 
 right to charge those who use it a reasonable fee or re- 
 muneration, limited by the charter, for the advantages and 
 facilities furnished them by the outlay of the company's 
 capital in lands, buildings, machinery, etc. 
 
 I need not refer to the judicial decisions cited by my 
 colleague on this subject, nor to the numerous legislative 
 precedents in our statutes. The current of authority is 
 strong and unbroken against the assertion and against the 
 doctrine that no exclusive right can be conferred upon a
 
 80 ARGUMENT IN THE SLAUGHTER-HOUSE CASES. 
 
 corporation. I will notice a single case that has not yet 
 been commented on. The Pontchartrain Railroad Com- 
 pany was incorporated in 1830 witli " the exclusive right 
 and privilege of constructing and using a railroad or rail- 
 way to and from the city of New Orleans and to and from 
 Lake Pontchartrain for and during twenty-five years." 
 Some years after this time the New Orleans and Carroll- 
 ton Railroad Company was incorporated to construct a 
 railroad between the city of New Orleans and a point 
 at Carrollton on the Mississippi River; and still subse- 
 quently, in 1840, the legislature incorporated the Jefferson 
 and Lake Pontchartrain Railway Company for the con- 
 struction of a railway from Carrollton to Lake Pontchar- 
 train. These two companies united to transport freight 
 and passengers between New Orleans and the lake. In 
 June, 1853, the Pontchartrain Company instituted suit to 
 restrain the two companies from transporting freight and 
 passengers to and from the lake, and to recover damages 
 for their violation of its exclusive right ; and this Court 
 decided that the legislature had granted an exclusive 
 right or monopoly to the plaintiffs for twenty -five years, 
 that the grant was valid, and that the plaintiffs therefore 
 were entitled to the injunction and to recover the damages 
 thev had sustained, and gave iudgment accordingly, 1 
 
 / O J O O J 
 
 My colleague, in opening this case, analyzed the act of 
 18G9, and placed its leading provisions so clearly before 
 the Court as to render futile the erroneous construction 
 and statements that have since been urged against it. He 
 showed that the law provided for the establishment of one 
 place for an abattoir, where alone, "solely and exclusively," 
 cattle intended for the New Orleans market should be 
 slaughtered ; that it conferred no exclusive privilege on 
 the company to slaughter such cattle, but compelled it 
 to furnish whatever is essential to the convenience and 
 1 La. An. Reports, -!.jG.
 
 ARGUMENT IN THE SLAUGHTER-HOUSE CASES. 81 
 
 accommodation of the butchers for killing their cattle, 
 cleaning and taking them away, to dress and prepare 
 their meat for food. When, then, it is said that the act 
 drives one thousand butchers from their business and de- 
 prives them of the right to follow their ordinary occupation, 
 the assertion is plainly and palpably untrue. Undoubtedly, 
 as the effect of machinery is to become a substitute for 
 manual labor, the introduction of machines must for a sea- 
 son throw some persons out of employment, but experi- 
 ence teaches that it tends eventually to the good of all. 
 One man at the slaughter-house, by the aid of its machin- 
 ery, may do as much as it would have required ten men to 
 perform without that aid ; and thus labor may be saved, 
 or performed more cheaply and more accurately. But 
 this is no argument against the improvement. If it were, 
 all improvement would stop. However, in the present in- 
 stance no butchers are thrown out of employment. They 
 are facilitated in their work, and carry on their trade 
 and art as heretofore after the slaughter-house company 
 has afforded them aid in killing their cattle, a work which 
 they may perform themselves or employ any other to per- 
 form for them. But it has been vehemently asserted that 
 the act of 1869 conferred upon seventeen individuals, un- 
 worthy and unknown, an odious, oppressive, and arbitrary 
 power to exact fees and perquisites from the butchers 
 without furnishing any consideration for the same, and 
 that every one of the seventeen was guilty of bribery in 
 procuring the passage of the act, and ought now to be in 
 the penitential 1 }'. Counsel after counsel has reiterated 
 these charges before you, judges, and persisted in declar- 
 ing that nothing has been done to entitle the company to 
 any remuneration. Is this true? No. False! False! 
 False ! Is it nothing to have purchased land, to have 
 erected on it buildings, slaughter-houses, sheds, pens, etc., 
 to have furnished machinery sufficient for all the pur- 
 6
 
 82 ARGUMENT IN THE SLAUGHTER-HOUSE CASES. 
 
 poses of the abattoir, and to have employed faithful and 
 skillful persons to keep everything in order and to furnish 
 the butchers with every facility ? Is it nothing to have 
 done this promptly and faithfully, at the expense of an 
 immense outlay of money and in strict conformity with 
 the law ? The company is entitled to no fees. It de- 
 mands and receives no remuneration except from those 
 who use the facilities which it affords, and who are bound 
 in law and justice to pay according to the rate established 
 by legislative judgment. The charge of bribery against 
 every member of the company is indignantly denied and 
 denounced as a calumny. 
 
 It has been argued that the act is unconstitutional in 
 prescribing that the cattle, etc., shall be landed at a par- 
 ticular part of the bank of the Mississippi, and that the 
 owners shall pay for the facilities afforded them in the 
 wharves, etc., erected there, and that the act of Congress 
 of 1812 and our own civil code make the river free, and 
 give every one a right to land and unload his vessels on its 
 banks without charge. This matter has been settled by 
 custom, by good sense, and by the judgments of the high- 
 est tribunals. Do you not, judges, in walking along the 
 levee, see one place used for the landing of small vessels, 
 another for large sea-going vessels ; one place for river 
 steamers, another for ocean steamers ; flatboats dischar- 
 ging their coal and other freight in different designated 
 places? It necessarily follows that in the exercise of po- 
 lice power there must be a regulation of these tilings in 
 order that business may be carried on conveniently and 
 without constant disputes. The Supreme Court of the 
 United States has said, " Regulations of this kind are ne- 
 cessary and indispensable for the convenience and safety 
 of commerce, and local authorities have a right to pre- 
 scribe at what wharf a vessel may lie and unload and take 
 on board particular cargoes." The Supreme Court of the
 
 ARGUMENT IN THE SLAUGHTER-HOUSE CASES. 83 
 
 State held that the municipalities of New Orleans might 
 charge for the facilities afforded commerce in the shape 
 of wharves, laying it down as a fundamental rule that if 
 the State had erected them there could be no doubt of its 
 right to impose the wharfage. Similar doctrines and 
 views were recognized in the Navigation Company case, 
 and the reports of the Supreme Courts of the United States 
 abound in authorities on the point, and establish that such 
 a regulation is a matter of police, and not of commerce, 
 and is not only consistent with, but essential to, the enjoy- 
 ment of rational liberty in the matter. 
 
 But it has been contended that the act of 18G9 inter- 
 feres with the liberty of labor and the liberty of property. 
 The butchers have exercised their art and business for 
 many long years in Jefferson, and have there slaughter- 
 houses and pens. They have a right to continue to use 
 their property as they hitherto have done. Their right of 
 property is absolute, and so is their right of labor. The 
 State cannot interfere with them. The act deprives them 
 of the power to support themselves and their families by 
 an unconstitutional interference with their liberty, lib- 
 erty to work and carry on their business where they please, 
 liberty to use their property as they please. There is a 
 law higher even than the written constitution, a law recog- 
 nizing the right of every man to labor, to receive the re- 
 ward of his industry, to use the property he has acquired, 
 and every infringement of that law is a violation of vested 
 rights. This is a mere repetition of every argument that 
 has been made against the exercise of the police power in 
 our State. The reports are full of cases in which the 
 very question has been examined and decided in regard to 
 nuisances in this city, and the constitutional and legal 
 power has been invariably sustained. 
 
 There is one case of a very striking character in which 
 the argument was like that used in the present suit. An
 
 84 ARGUMENT IN THE SLAUGHTER-HOUSE CASES. 
 
 oysterman had pursued his business in New Orleans, and 
 had been in the habit of selling- his oysters in his own 
 private house. The municipal council passed an ordi- 
 nance forbidding the sale of oysters in the city except at 
 particular places, but the oysterman continued to sell at 
 his own house, regardless of the ordinance. The city in- 
 stituted a suit against him for the violation of its regula- 
 tion, and Judge Preston defended him. I need not tell 
 this Court that he was a man of genius, of singular sim- 
 plicity and largeness of mind, a profound thinker, of great 
 purity in private life, but an enthusiast, inclined to that 
 species of republican radicalism which carries to an ex- 
 treme general doctrines of liberty. The district court 
 decided against his client, and to the question, " What ! 
 Shall I not open and sell rny oysters in my own house that 
 I have used for that purpose for so many years ? " an- 
 swered, " No, because they who are to regulate this matter 
 declare it a nuisance." The case came before the Supreme 
 Court. It was contended for the oysterman that the trade 
 was useful to all those engaged iu it, it was necessary 
 for the support of their families ; that the defendant had 
 been in the habit of selling oysters in his house for twenty 
 years ; that the ordinance interfered with the freedom of 
 property and of labor in an honest pursuit, that of fisher- 
 men ; and why not, it was asked, in shell-fish as with iish 
 with scales ? The ordinance created a monopoly in the 
 business. An appeal was made to the highest principles, 
 to the right of every man to labor for himself, to use his 
 own property, and to receive the fruits of his labor and 
 use of that without interference from the council. The 
 court decided that it was a proper matter to be entrusted 
 to the common council of the city, who had the right to 
 .say where oysters should be sold and where they should 
 not, and they gave judgment against the defendant. 
 
 The counsel for the butchers have read with emphasis,
 
 ARGUMENT IN THE SLAUGHTER-HOUSE CASES. 85 
 
 as applicable to this case, a passage from Cooley's Constitu- 
 tional Limitations : " The man or the class forbidden the 
 acquisition or enjoyment of property in the manner per- 
 mitted to the community at large would be deprived of 
 liberty in matters of primary importance to his or her 
 pursuit of happiness." It is difficult to see the applica- 
 bility of this quotation to the present case, but if the 
 counsel had only read the next paragraph he would have 
 found the following passage : " There are unquestionably 
 cases in which the State may grant privileges to specified 
 individuals without violating any constitutional principle, 
 because from the nature of the case it is impossible they 
 should be possessed and enjoyed by all ; and if it is im- 
 portant that they should exist, the proper state authorities 
 must be left to select the guarantees. Of this class are 
 grants of the franchise to be a corporation." 
 
 If this Court desired authority upon so plain a matter, 
 T do not know where it can be found more fully and bet- 
 ter explained than in the following extract from the 
 ablest judges and constitutional jurists of the land : " The 
 police power affects the use and enjoyment of property. 
 It is much easier to perceive and realize the existence and 
 sources of this power than to mark its boundaries or pre- 
 scribe limits to its exercise. It extends to the protection 
 of the lives, limbs, health, comfort, and quiet of all persons 
 and the protection of all property within the State. Ac- 
 cording to the maxim, ' /V/c utere tuo ut cdienum non 
 ZftcZa.s,' etc. By this general police power of the State, 
 persons and property are subjected to all kinds of re- 
 straints and burdens in order to secure the general com- 
 fort, health, and prosperity of the State, of the perfect 
 right in the legislature to do which no question ever was, 
 or upon acknowledged general principles ever can be 
 made, so far as natural persons ai'e concerned. But though 
 property be protected, it is still to be understood that the
 
 86 ARGUMENT IN THE SLAUGHTER-HOUSE CASES. 
 
 lawgiver has a right to prescribe the mode and manner of 
 using it, so far as may be necessary to prevent the abuse 
 of the right to the injury or annoyance of others or of the 
 public. The government may, by general regulations, 
 interdict such uses of property as would create nuisances, 
 and become dangerous to the lives or health or peace or 
 comfort of the citizens. Unwholesome trades, slaughter- 
 houses, operations offensive to the senses, the deposit of 
 powder, the application of steam power to propel cars, 
 the building with combustible materials, and the burial of 
 the dead may all be interdicted by law in the midst of 
 dense masses of population, on the general and rational 
 principle that every person ought so to use his property 
 as not to injure his neighbors, and that private interests 
 must be made subservient to the general interests of the 
 community.'' 1 
 
 The time allotted to me for a reply to the opposite coun- 
 sel is drawing to a close, and I am reminded by my col- 
 league who sits beside me that it is important to notice 
 another point. The counsel for the butchers have, with 
 great boldness and effrontery, undertaken to say here, 
 over and over again, that they had charged and offered to 
 prove that members of the legislature that passed this act 
 had been bribed to vote for it, and that if the slaughter- 
 house company had not shrunk from it those members of 
 the legislature and the seventeen corporators mentioned 
 in the act would have been in the penitentiary. I deny 
 it. There has never been any legal charge made in a 
 form susceptible of legal proof. There has never been 
 any proposal of proof, except in such vague and indefinite 
 terms as amounted to a vain parade or mockery. They 
 pretend that my clients shrank in fear from the investiga- 
 tion. You shrink and you skulk. You skulk behind a 
 general railing and informal accusation. You say mem- 
 1 -2 Kent, 43l>.
 
 ARGUMENT IN THE SLAUGHTER-HOUSE CASES. 87 
 
 bers of the legislature were bribed. Tell us who they 
 are. Name them. Name any one. You say you have 
 witnesses to prove it. Who are the witnesses ? Let us 
 have their names. It will not do to come in here and say, 
 "We are ready to prove the whole body was bribed." It 
 is the height of injustice thus to indulge in indistinct, 
 general, and malignant accusations. You say you know 
 the individuals who are guilty. Are you men ? Have 
 you the courage of men ? Go to the criminal court ; give 
 information against them. You say these men ought to 
 be in the penitentiary. Why not do your duty and have 
 them put there ? If you are prepared with proof for con- 
 viction, patriots and friends of public justice, why do you 
 not use the law against these high offenders ? The courts 
 of criminal jurisdiction are open for their prosecution and 
 punishment. Do you want an illustrious precedent for 
 the course ? You will find it in the life of Cato, the 
 censor, a man of wisdom and of severe public and private 
 virtue ; a man of truth, justice, and public spirit. Imi- 
 tate him, and the community will believe there is some- 
 thing worthy of consideration in your charges, and that 
 they are not a shallow pretext for slander and the support 
 of an unjust case. This is the patriotic and practical 
 course. The proposition for disregarding the legislative 
 department, and putting it under the feet of the judiciary, 
 betrays a spirit alien to law and kindred to the worst 
 radicalism. 
 
 Has this Court power to inquire into the motives and 
 conduct of the legislature in passing the act ? Under the 
 theory of free government, the powers of government are 
 distributed into three departments, which should be kept 
 as separate from and independent of each other as the 
 nature of such governments will admit. In the former 
 constitutions of this State, this distribution of powers was 
 distinctly and expressly made. In the present constitu-
 
 88 ARGUMENT IN THE SLAUGHTER-HOUSE CASES. 
 
 tion there is no article expressly making such a distribu- 
 tion, but the distribution is practically and substantially 
 made into the legislative, executive, and judicial depart- 
 ments. There would be no reliance upon the stability of 
 the law, if its vitality and force were to be suspended and 
 hindered by railing accusations against the members of 
 the legislature who passed it, not contemplating penal 
 justice, but having only in view the private interests of a 
 suitor acting under the influence of motives of whatever 
 nature may be supposed. The legislature, under such a 
 theory, would cease to be independent, and the judiciary, 
 ceasing to be mere interpreters of the law, would practi- 
 cally become the makers of it. All security for liberty 
 and property would be disturbed or destroyed, and confu- 
 sion and distrust lead the way to general demoralization. 
 Our government is founded upon the theory of confidence 
 in the virtue of man and the power of public sentiment. 
 We have been asked, If the legislature should prove base 
 enough to pass a law under the influence of bribes, and 
 the judiciary cannot inquire, upon a general accusation, 
 into the motives of the legislature, what is left to the citi- 
 zen ? We answer, Nothing but an appeal to public sen- 
 timent. Change the members ; purify the temple of 
 legislation : repeal what ought to be repealed ; correct 
 injustice ; indemnify loss through public wrong. 
 
 No human institution is perfect. The system of Amer- 
 ican government has its defects, but it would be madness, 
 on account of temporary evil, to throw off established gov- 
 ernment and remove the ancient landmarks of liberty. 
 We have been told there are a great many decisions to 
 show that the Court has power to enter upon the inquiry. 
 I ask for one decision : name it, produce it. I say such a 
 thing has never been done. You are bound to suppose 
 members of the legislature honest. You are bound to 
 suppose they act from patriotic motives. You cannot
 
 ARGUMENT IN THE SLAUGHTER-HOUSE CASES. 89 
 
 listen to a charge against them preferred in this way. 
 What ! are you a separate department of the govern- 
 ment? Are you, whose judicial function it is to interpret 
 the laws, are you to undertake to say the legislature 
 passed such a law, but they were very foolish ? The legis- 
 lature passed such another law, but they did not know 
 what they were about, and therefore we will declare it is 
 not the law. 
 
 I do not deny the power and the duty of the Court to de- 
 clare an unconstitutional law void. On the contrary, I hold 
 it to be the distinguishing mark and glory of American 
 liberty that the power and the duty exist. But I hold 
 that the Court cannot impute to the legislature any other 
 but public motives for their acts. In the very authority 
 quoted by our opponents it is said : " And although it 
 has sometimes been urged at the bar that the courts 
 ought to inquire into the motives of the legislature where 
 fraud and corruption were alleged, and annul their action 
 if the allegation were established, the argument has in no 
 case been acceded to by the judiciary, and they have 
 never allowed the inquiry to be entered upon." It is 
 said : ' The powers of the three departments are not 
 merely equal ; they are exclusive in respect to the duties 
 assigned to each. They are absolutely independent of 
 each other. It is now proposed that one of the three 
 powers shall institute an inquiry into the conduct of an- 
 other department and form an issue to try by what mo- 
 tives the legislature were governed in the enactment of a 
 law. If this may be done, we may also inquire by what 
 motives the executive is induced to approve a bill or with- 
 hold his approval, and in case of withholding it corruptly, 
 by our mandate compel its approval. To institute the 
 proposed inquiry would be a direct attack upon the in- 
 dependence of the legislature, and a usurpation of power 
 subversive of the Constitution." The opposing counsel
 
 90 ARGUMENT IN THE SLAUGHTER-HOUSE CASES. 
 
 have referred to the history of Georgia, where a corrupt 
 act was passed by a corrupt legislature. Granted. Was 
 it not, however, decided by the Supreme Court of the 
 United States, in the case of Fletcher r. Peck, 1 which 
 grew out of the act, that it was impossible to look into 
 the charge of corruption preferred against the members 
 of the legislature of the State in that case ? Chief Justice 
 Marshall said : " It would be indecent in the extreme, 
 upon a private contract between two individuals, to enter 
 into an inquiry respecting the corruption of the sovereign 
 power of a State. If the title be plainly deduced from a 
 legislative act, which the legislature might constitutionally 
 pass, if the act be clothed with all the requisite forms of a 
 law, a court, sitting as a court of law, cannot sustain a 
 suit brought by one individual against another, founded 
 on the allegation that the act is a nullity, in consequence 
 of the impure motives which influenced certain members 
 of the legislature which passed the law." Mr. Justice 
 Johnson delivered a separate opinion in the case. He 
 said : " As to the idea that the grants of a legislature may 
 be void because the legislature are corrupt, it appears to 
 me to be subject to insuperable difficulties. The acts of 
 the supreme power must be considered pure, for the same 
 reason that all sovereign acts must be considered just, be- 
 cause there is no power that can declare them otherwise. 
 The absurdity in this case would have been strikingly 
 perceived could the party who passed the act of cession 
 have got again into power and declared themselves pure, 
 and the intermediate legislature corrupt. The security of 
 a people against the misconduct of their rulers must lie in 
 the frequent recurrence to iirst principles and the imposi- 
 tion of adequate constitutional restrictions."' 
 
 In a case decided in Indiana in November, 1858, the 
 Court said : " It is averred that the bill was passed by 
 1 (! ('ranch, 87.
 
 ARGUMENT IN THE SLAUGHTER-HOUSE CASES. 91 
 
 the fraud, corruption, and bribery of several members of 
 the legislature. In Wright v. Defrees, 8 Ind. R. 298, it 
 was held that this Court cannot inquire by what motives 
 the members of the legislature were governed in the en- 
 actment of a law. That, however, was a case between 
 citizens, and the Court, in the opinion delivered, use this 
 language : ' We say nothing as to what rights the State 
 may have in a case of this kind. The State is no party 
 in these proceedings.' Thus the Court withholds an opin- 
 ion in regard to the question whether, on the complaint 
 of the State, a law can be impeached for the fraud, etc., 
 of members voting for it. In the present case the State 
 is the plaintiff. But is there any reason why she, as a 
 party litigant, should be allowed more than an individual 
 citizen to put in issue the conduct and motives of the 
 legislature or any of its members ? We know of no prin- 
 ciple or authority upon which an issue of that character 
 can, in any case, be tried before a judicial tribunal. To 
 institute such an inquiry, as said in Wright v. Defrees, 
 would be a direct attack upon the independence of the 
 legislature, and an usurpation of power subversive of the 
 Constitution." The Sunbury and Erie Railroad Co. v. 
 Cooper, 7 Am. Law Reg. 158. 
 
 A great deal has been said about monopoly. No one 
 is more strongly opposed to monopoly in general than I 
 am. It leads to inequality and injustice, interferes with 
 the freedom of labor and the true spirit of the common 
 law. Undoubtedly the courts in England decided against 
 monopolies in the cases cited. I have not time to exam- 
 ine them severally. They fall within two classes : first, 
 monopolies granted by the crown in the exercise of its 
 pretended royal prerogative ; and second, monopolies 
 granted without authority, and in violation of general 
 rights, by corporations. The struggle for liberty was on 
 the part of the people, who contended that they alone
 
 92 ARGUMENT IN THE SLAUGHTER-HOUSE CASES. 
 
 could judge and determine when and where and to whom 
 to grant peculiar privileges, and that the power could 
 be properly exercised only through Parliament, either 
 directly or indirectly ; and the people were victorious in 
 the courts and in Parliament. In the long list of cases 
 produced by the opposite counsel, there is not one in 
 which a monopoly created by act of Parliament was 
 decided to be void. The power of the people to grant 
 them is fully recognized and established. We have been 
 told that our ancestors brought with them from England 
 their common law rights and constitutional principles. 
 This is true ; but while bringing with them the valuable 
 principles of English law for the protection of life, liberty, 
 and property, they left behind whatever they considered 
 worthless and bad. They brought with them no alle- 
 giance to crowned heads ; no royal prerogative to suspend 
 laws and grant monopolies to favorites. The whole 
 American system of government is popular. The people 
 underlie and control every department of it. And it is in 
 support of the power of the people and for the preserva- 
 tion of American liberty that I raise my voice against the 
 dangerous doctrine advanced here to-day. I have lived 
 to see these doctrines pushed to an extreme and threat- 
 ening the stability of our government, when the people 
 were urged to nullify the tariff laws of Congress, because 
 it was pretended that those laws tended to create a mo- 
 nopoly. 
 
 But I have not time to pursue this subject. I feel it, 
 however, a duty, before dismissing it, to warn you, judges, 
 of the attempt in this case to make you, the sworn minis- 
 ters of the law, lend your authority to overturn the laws. 
 It is said that this act is void because it was approved 
 by the governor after the legislature adjourned. 'I his ob- 
 jection has been briefly and sufficiently answered by my 
 colleague, who has referred to a case of highest authority,
 
 ARGUMENT IN THE SLAUGHTER-HOUSE CASES. 93 
 
 and decisive upon the point, in 21 N. Y. R. 517. l The 
 legislature adjourned on the 4th March, and fifty acts 
 of the session of 1869 were signed on or before that 
 day. Eighty-nine acts were signed after the adjourn- 
 ment ; among them \vere the revenue bill for the support 
 of the government, the appropriation bill, the education 
 bill, and other acts necessary to the existence of the gov- 
 ernment and the welfare of the people. You are asked 
 by the architects of ruin to break down all this legisla- 
 tion. 
 
 It has been argued that the Court must treat the act of 
 1869 as a private statute. But it is a statute passed by 
 the State, in the exercise of her police power as a sover- 
 eign, to protect the public health, to prevent public nui- 
 sances, and to advance the comfort and prosperity and 
 business of this city and of this State. It contains provi- 
 sions giving penalties to the State. Such a statute is 
 clearly a public statute. The latest writers upon statutes 
 in our own country declare that the disposition has been, 
 in the United States, to enlarge the limits of the class of 
 public acts, and to bring within it all acts that affect the 
 community at large and are of a public character. 
 
 [Mr. Hunt was here informed by the Court that the 
 time allowed him had expired.] 
 
 1 People v. Boweu.
 
 POLITICAL AFFAIRS IN LOUISIANA. 
 
 [In 1851, Mr. Hunt delivered the following speech ut a Whig- 
 mass meeting held at the Poydras Market in the city of New 
 Orleans.] 
 
 FELLOW-CITIZENS, It is a long time since I have 
 Lad the pleasure of meeting and communing with you in 
 a body. During that time many questions of great im- 
 portance and delicacy, touching the peace and harmony 
 of the Union and the very existence of our national gov- 
 ernment, have arisen, been discussed, and finally settled 
 to the satisfaction of the great body of the American peo- 
 ple, by the constitutional, honorable, and expedient mea- 
 sures embraced in the Compromise, adopted under the 
 lead of Clay and Webster, Cass and Foote, and other 
 distinguished statesmen and patriots, who, whatever may 
 be their differences on matters of mere party politics, 
 have, by their magnanimous conduct on this occasion, 
 entitled themselves to the gratitude of every true-hearted 
 American. And I should not be true to myself, to 
 liberty, and to the duty which I owe the country, if I re- 
 frained from rendering them the humble tribute of my 
 applause. During that time, too, the State of Louisiana 
 and the city of New Orleans have remained under the 
 regular and peaceable operation of the present Constitu- 
 tion of the State ; but I regret to say, fellow-citizens, that 
 we have failed to keep pace with our sister States in the 
 gi'eat march of progress. In spite of the natural advan- 
 tages which the city of New Orleans has enjoyed, she has 
 been outstripped in the race of improvement by New
 
 POLITICAL AFFAIRS IN LOUISIANA. 95 
 
 York, and Boston, and Baltimore, and Philadelphia, and 
 other cities of the Union. Situated not far from the 
 mouth of the Mississippi, with nearly half of the States 
 of the Union at one time tributary to her, New Orleans 
 has, within the last five years, seen a large portion of the 
 rich commerce of the Northwest gradually taken away 
 from her. Though she has increased in population and 
 wealth, the increase has been small in comparison with 
 that of other cities, and her commerce, if it has not de- 
 clined, has at least been stationary. 
 
 What is the cause of this ? Why is it that New 
 Orleans has been thus arrested in her progress ? Why is 
 it that the State of Louisiana, with her fertile soil and 
 great natural resources, has not kept pace with her sister 
 States ? The cause may be found in the mal-government 
 of the State. The Constitution of the State is a failure. 
 The Constitution is bad, and the legislation under the 
 Constitution has been bad. For the last five years the 
 government of Louisiana has been a failure. I do not 
 say this upon the spur of the moment, nor do I speak for 
 rhetorical effect. I have carefully watched the operations 
 of our state government, and long weighed and studied 
 these things ; and the result of my best judgment upon 
 them is, that we have been retarded in our progress and 
 paralyzed in our action by the Constitution and legisla- 
 tion of the State. The Constitution has indeed sat like a 
 nightmare on the bosom of Louisiana and prevented her 
 from breathing healthfully. With its restrictions and 
 prohibitions, it has fettered the enterprise and industry of 
 the people, and caused capital to seek a more natural and 
 freer home elsewhere. It has failed entirely in answering 
 the purposes for which it was framed ; and the proper 
 remedy for the people is to alter it or to abolish it, and 
 to substitute a new Constitution in its place. I propose 
 to say something on these subjects.
 
 96 POLITICAL AFFAIRS IN LOUISIANA. 
 
 The Constitution divides the powers of the government 
 into three departments, legislative, executive, and ju- 
 dicial. The legislative department is defective, the 
 executive department is defective, and the judicial de- 
 partment is defective. The whole government is defec- 
 tive. It has had little effect for good, and great effect 
 for evil. The Constitution provides that "representation 
 in the House of Kepresentatives shall be equal and uni- 
 form, and shall be regulated and ascertained by the 
 number of qualified electors." This is fair and equitable. 
 It means that if three hundred qualified electors in Ope- 
 lousas or in Jefferson are entitled to a representative, 
 three hundred of the qualified electors in New Orleans 
 are also entitled to a representative. This is republican 
 equality. But when the Constitution lays down the rule 
 in relation to representation in the Senate, it declares 
 that the senators " shall be apportioned among the sena- 
 torial districts according to the total population contained 
 in the several districts.'' The change in the basis of 
 representation here made was intended to give greater 
 proportionate weight to the country in the Senate of the 
 State. In the House, the number of qualified electors 
 forms the basis. In the Senate the total population, 
 colored and white, slave and free, constitutes the basis. 
 The proportion of slaves to the white population in the 
 country is much larger than the proportion in the city. 
 The senatorial basis therefore gives an evident advantage 
 to the white population of the country over the white pop- 
 ulation of the city. Without stopping to dwell upon this, 
 and admitting it for argument's sake only to be republican 
 and just, I call your attention, fellow-citizens, to the man- 
 ner in which the Constitution proceeds to apply the rule. 
 
 After declaring that senators shall be apportioned 
 according to the total population contained in the several 
 senatorial districts, the Constitution provides, " that no
 
 POLITICAL AFFAIRS IN LOUISIANA. 97 
 
 parish shall be entitled to more than one eighth of the 
 whole number of senators." The number of senators 
 being thirty-two, no parish or district can ever be en- 
 titled to more than four senators. This is evidently 
 aimed at New Orleans. Her population entitled her to a 
 representation of at least one fourth of the number of the 
 senators. In order to carry out this injustice, the Con- 
 stitution especially provides that, in apportioning repre- 
 sentation in the Senate, "the population of New Orleans 
 shall be deducted from the population of the whole State, 
 and the remainder divided by twenty-eight, and the result 
 produced thereby shall be the senatorial ratio entitling 
 a district to a senator." Thus, one man in any other 
 parish of the State was made politically equal to two men 
 in New Orleans. Is this republicanism, equality, justice ? 
 The city of New Orleans is divided from the city of 
 Lafayette by Felicity Road. By what reason, by what 
 principle of justice, is a man 011 the other side of this 
 division line made equal to two men on this side ? Why 
 is the resident of Ouachita or Jefferson given a represen- 
 tation in the Senate double that of a resident of New 
 Orleans? It has been said by Mr. Taylor and others 
 that the Constitution extended the right of suffrage. 
 Doubtless this is true. But it is evident that in extend- 
 ing the right of suffrage the Constitution deprived the 
 electors in New Orleans of the object of that right, an 
 equal and fair representation in the legislature. And 
 yet Mr. Taylor and Mr. Dunbar think this Constitution 
 good enough, and seek to obtain the votes of the citizens 
 of New Orleans, while at the same time they are en- 
 deavoring to uphold a Constitution which stigmatizes 
 those citizens as unworthy of equality with the other citi- 
 zens of this State. The framers of the Constitution were 
 not satisfied with putting this stigma alone on the citizens 
 of New Orleans. They went still further, and ordained 
 7
 
 98 POLITICAL AFFAIRS IN LOUISIANA. 
 
 that the city of New Orleans should stand accursed and 
 proscribed, that the very soil on which she rests shall 
 be considered as infamous and polluting, and that the 
 corrupt and pestilent atmosphere that envelops her shall 
 be held to embrace and poison the surrounding portions 
 of country within a circle of sixty miles. They provided 
 that the General Assembly should, within a month of the 
 first session under the Constitution, designate and fix the 
 seat of government at some place not less than sixty miles 
 from New Orleans ; and that, when so fixed, it should not 
 be removed without the consent of four fifths of the mem- 
 bers of both Houses of the General Assembly. 
 
 I wish, fellow-citizens, that every one of you would read 
 the arguments urged in the convention in favor of this 
 provision. "New Orleans," it was said, " was immoral and 
 corrupt ; the country members would be bribed by din- 
 ners and parties and moneyed influences, so as to be con- 
 trolled by city factions, and would sacrifice the interests 
 of their immediate constituents." Miserable pretext for 
 a mean injustice ! Why, the very argument is a calumny 
 against the constituents of the members who used it. 
 
 O 
 
 Those constituents never dreamed of this foul wrong. 
 They never contemplated any injustice or inequality in 
 the political rights of the citizens of the different parts of 
 the State. Their main object, in common with the entire 
 people of the State, was to extend the right of suffrage 
 and to effect a reform in the judiciary of the State. The 
 people of the country parishes are an intelligent, honest, 
 high-minded, and republican people : and when these mat- 
 ters shall be brought properly before them, they will 
 stamp with reprobation the conduct of those who have 
 misrepresented them. 1 do not say that they will remove 
 the seat of government ; but I do say that they will re- 
 move tin; stigma which is now fixed on New Orleans, and 
 that they will put her citizens on a footing with the citi-
 
 POLITICAL AFFAIRS IN LOUISIANA. 99 
 
 zens of other parts of the State. For my own part, I 
 must frankly declare, with respect to the best seat for the 
 government, that the city of New Orleans presents many 
 advantages. It is the emporium and mart of the com- 
 mercial business of the West. From its situation, it re- 
 ceives the first information and news from other parts of 
 the Union and from abroad. It is the centre of the arts 
 and sciences and literature of our State, and it abounds 
 in libraries and other sources of information, necessary or 
 important to the business of enlightened legislation. 
 
 The evil effects of the unjust provisions of the Constitu- 
 tion in the apportionment of representation in the Senate 
 have been seen and felt. In the spring of 1849 a crevasse 
 occurred beyond the limits of the city of New Orleans. 
 The river broke through the levee at Mr. Sauve's plan- 
 tation, some six miles above Carrollton, in the parish of 
 Jefferson. The rear of our city was overflowed. I do 
 not remember that I have ever looked upon so melancholy 
 a spectacle. The city of New Orleans, after repeated 
 efforts and a great expenditure of money, succeeded in 
 closing the crevasse. It was deemed necessary for the 
 future protection of the city to make a protection levee ; 
 and the best informed and most experienced engineers in 
 the State prepared a plan, and presented a report to the 
 legislature upon this subject. A bill was introduced 
 into the House of Representatives, making an appropria- 
 tion for such a levee. It passed the House, where the 
 people of New Orleans were fairly represented. In the 
 Senate, however, where we had but one half of our just 
 quota of members, it was defeated or lost by a single vote. 
 If there had been a just republican equality in the ap- 
 portionment of senators, if we had had the four or six 
 additional members in the Senate to which we were 
 entitled, even upon the basis of the population of the 
 State the bill would have passed, and the spectacle would
 
 100 POLITICAL AFFAIRS IN LOUISIANA. 
 
 not have been witnessed of the State voting thousands 
 for internal improvements in other parts of the State, but 
 refusing a cent to New Orleans (in which was centred 
 more than one fourth of the taxable property of the 
 State) to save her from the danger of inundation. 
 
 Fellow -citizens, if we examine the laws that have 
 been passed by our legislature since the adoption of the 
 present Constitution, we will find them characterized by 
 injustice and a narrow and illiberal policy. Never has 
 such legislation been seen. Many laws passed on the 
 most important subjects have been pronounced by the 
 courts to l)e unconstitutional, while others have been 
 drawn up in such a bungling manner as to be utterly 
 unintelligible, contradictory, and incapable of being exe- 
 cuted. Without going beyond the last session of the 
 legislature, our statute book unfortunately furnishes 
 convincing proof of this. Two acts only need be men- 
 tioned. The act creating a board of liquidators for the 
 consolidation of the debts of the municipalities had 
 scarcely gone into operation when it was pronounced by 
 the courts to be unconstitutional. The act establishing 
 the mayor's and recorder's court in the city of New 
 Orleans is so clumsily and inartificially drawn up that it 
 has never been put, and cannot be put, into useful oper- 
 ation. The only effect of these acts lias been to give 
 Messrs. Benjamin and Micou, as attorneys of the board 
 of liquidators, some fees which wore doubtless well earned, 
 but with no benefit to the public, and to give Mr. Reese 
 the office of second district attorney, a sinecure of tfloOO 
 per annum. These are fair specimens of the legislation 
 of the last legislature of Louisiana. The legislation was 
 bad ; the theory upon which the legislation was based is 
 bad. The present party in power has been substantially 
 in power since 1845, and might have done some good, 
 but it has not done any. Nothing whatever has been
 
 POLITICAL AFFAIRS IN LOUISIANA. 101 
 
 done for New Orleans. She is in a condition of atrophy. 
 She looked to the legislature for bread, and received a 
 stone. Perhaps, under the present Constitution, it would 
 be difficult to pass laws giving 1 New Orleans the benefits 
 adequate to her wants. That instrument prohibits the 
 legislature from subscribing to the stock of any corpo- 
 ration or joint-stock company. It prohibits the creation, 
 renewal, or extension of any corporate body with banking 
 or discounting privileges ; it prohibits the creation of cor- 
 porations by special laws, except for municipal purposes ; 
 it directs the legislature to provide by general laws for 
 the organization of all other corporations, except corpo- 
 rations with banking or discounting privileges, the cre- 
 ation of which it again specially prohibits. 
 
 New Orleans is in rivalry with the other great cities 
 of the Union, with Boston, New York, Philadelphia, and 
 Baltimore. She is in want of banking capital, of capi- 
 tal for commerce and business purposes. The whole 
 circulation of bank issues of the State does not exceed 
 three and a half millions. Look along the levee, and 
 consider the vast quantities of produce under which it 
 annually groans ! You will see at a glance that our bank 
 issues are utterly inadequate to our commercial wants. 
 In all the other great cities in the country, in Boston, in 
 New York, in Philadelphia, and in Baltimore, they have 
 proportionally ten times the amount of bank facilities 
 that we possess. How is it possible, under such circum- 
 stances, for New Orleans to compete with them? We 
 want capital. We want the benefit of a large capital for 
 business of every kind, and especially for banking. 
 Under this condition of things, the framers of the Con- 
 stitution have thought proper to prohibit the creation of 
 any banking corporation in this State. It is true, the 
 banking system has been a subject of great abuse, and 
 thousands have been involved in ruin by that abuse.
 
 102 POLITICAL AFFAIRS IN LOUISIANA. 
 
 But are we never to learn by experience? Can other 
 commercial cities enjoy the benefits of banking corpora- 
 tions with safety and advantage to themselves, and is 
 New Orleans alone incapable of managing such institu- 
 tions ? What commercial country in the world prospers 
 without them ? The Whigs, in a paper called their 
 platform, have declared themselves the advocates of " a 
 well-regulated system of free banks," and Mr. Miles 
 Taylor is reported to have said that we have free banking 
 now among us. This assertion of Mr. Taylor may be 
 true in one sense, but it is unfounded in another sense, 
 and in the sense in which free banking is understood by 
 the people. It is true that every citizen who chooses, 
 and who has the means of banking, is free to bank upon 
 those means. There are no laws in this State to restrain 
 him from doing so. Mr. Robb, we all know, is a banker, 
 and Mr. Jacob Barker is also a banker, and issues his 
 notes for circulation. In this sense Mr. Taylor may be 
 right in saying that we have free banking now. But this 
 is using the terms in a sense peculiar to himself, and 
 different from the general understanding of the com- 
 munity. At all events, this is not the system of free 
 banking which the Whigs refer to in their platform. 
 
 In the State of New York restraints upon private 
 banking were adopted by the legislature at an early day. 
 In 1781 Congress incorporated the Bank of North Amer- 
 ica, and recommended to the States to prohibit any other 
 bank or bankers within those States during the war. 
 The legislature of New York in 1782 followed the 
 recommendation. After the treaty of 1783 there was no 
 law restraining banking in New York until 1804, when 
 an act, generally called the Restraining Act, was passed to 
 restrain unincorporated banking companies. In 1838 a 
 law was passed authorizing free banking associations in 
 New York, and the system of free banking was estab- 
 lished.
 
 POLITICAL AFFAIRS IN LOUISIANA. 103 
 
 Mr. Dunbar, in a letter to the editors of the " Delta," 
 says that there is no need of any change in our Constitu- 
 tion to establish free banking here, because in New York 
 and in England it has been decided that joint-stock 
 companies or associations may be created, in which the 
 shares may be made transferable, the responsibility of the 
 shareholders may be limited, and the company or associ- 
 ation may be declared not dissolved by the death of a 
 member, and suits may be prosecuted by and against the 
 president of the association or company, and all this 
 without making such associations corporations. And in 
 support of this view Mr. Dunbar refers to a case in 23 
 Wendell's Rep. 100. 1 The decision to which Mr. Dunbar 
 refers supports the doctrine for which he contends. The 
 distinction between such associations and corporations is 
 nice and shadowy, and has, I admit, been recognized by 
 the courts. But the transferability of shares, the limited 
 responsibility of shareholders, the non-dissolution or con- 
 tinued existence notwithstanding the death of a member, 
 and the prosecution of suits in a name other than the 
 names of the members of an association are usual elements 
 of corporations as described in the books. Attorney- 
 General Bronson gave his opinion on the 6th January, 
 1835, to the Senate of Xew York, that such associations 
 would enjoy corporate privileges, and in 1837 Attorney- 
 General Beardsley expressed the same opinion. And in 
 the Constitution of the State of New York of 1846 it was 
 expressly declared that " the term corporations shall be 
 construed to include all associations and joint-stock com- 
 panies having any of the powers and privileges of corpo- 
 rations not possessed by individuals or partnership." Two 
 of the judges of our Supreme Court, Chief Justice Eustis 
 and Judge Preston, were members of our convention. 
 They had signalized themselves as opponents of the 
 1 Lincoln vs. Crandell et al.
 
 104 POLITICAL AFFAIRS IN LOUISIANA. 
 
 banking system, of any credit system. They both 
 voted for the clauses in the Constitution prohibiting 
 banks to which I have referred. Judge Eustis has 
 recently declared in substance that, in reflecting on his 
 votes in the convention, he was fully satisfied with those 
 he had given upon the subject of banks. With this bias, 
 then, upon the minds of Judge Preston and Chief Justice 
 Eustis, with the dissenting opinions of two attorney- 
 generals of New York as to the nature of free bank- 
 ing associations, and with the provision in the Con- 
 stitution of New York, adopted in 184G, declaring such 
 associations corporations, can it reasonably be expected 
 that capitalists and the holders of securities will be 
 induced to vest their stocks and money in institutions 
 created under the present Constitution of the State? 
 With such doubts, whether well founded or ill founded, as 
 to the constitutionality of such institutions, or rather as to 
 the probable decision of our Supreme Court, would capital 
 come here and engage in the business of free banking ? 
 
 What is this free banking ? It is not, as I have already 
 said, what Mr. Taylor defines it to be, a mere right of 
 every man to bank on his own money or capital. That is 
 not the system of banking which the people of Louisiana 
 want. They want the system as advocated by the Whig 
 platform. They want a well-regulated system of free 
 banks, so guarded that while it will diffuse the benefits of 
 capital, it shall at the same time afford a safe circulation 
 convertible into specie at all times and under all circum- 
 stances. They want a system which may produce a bene- 
 ficial influence upon our embarrassed affairs and depressed 
 community. They wish a system such as exists in New 
 York or Massachusetts. By such a system, individuals 
 and associations formed for the purpose of banking may, 
 upon a transfer of public stock of the United States or 
 such other stock or securities as the State may designate,
 
 POLITICAL AFFAIRS IN LOUISIANA. 105 
 
 obtain from the auditor of public accounts, the treasurer 
 of the State, or any other officer who may be appointed 
 for the purpose, such quantity of circulating notes, to be 
 countersigned and registered by the officer, as the State 
 may deem it expedient to issue upon the stock or securi- 
 ties pledged. These notes after having been executed 
 and signed as required by law may be circulated as money. 
 If not paid on demand, they must be redeemed by the 
 state officer with the stock or securities thus transferred ; 
 for this purpose, the officer is authorized, after ten days' 
 notice, to sell the same at public auction. The system 
 then is to give to individuals the right to associate, and to 
 enable them to obtain upon a pledge of good securities 
 countersigned bills proportioned to the amount of stocks 
 or securities pledged. It will be the duty of the State to 
 take care that the stock or securities offered shall be good 
 and sufficient. By a provision of law the amount of bills 
 issued may be limited so as to pi-event those who receive 
 the bills from all danger of loss. For instance, individ- 
 uals or associations holding United States stock to the 
 amount of ten thousand dollars may, upon the pledge of 
 that stock, be furnished with notes for circulation to the 
 amount of five thousand dollars. If the notes should not 
 be redeemed or paid in specie when called for, the stock 
 pledged will be sold and the bill-holders paid out of the 
 proceeds. Where too large an amount of notes is not 
 issued on stock there cannot ultimately be any loss to the 
 note-holders. 
 
 What I have said is only by way of illustration. It 
 will be for the State to determine the proportion between 
 the stocks or other securities and the notes. What has 
 been said of ten thousand dollars is equally applicable to 
 one hundred thousand dollars, or five hundred thousand 
 dollars, or any other amount. Make the notes payable at 
 the proper point, at the point most convenient to the note-
 
 106 POLITICAL AFFAIRS IN LOUISIANA. 
 
 holder, and with prudence and care, and the adoption of 
 such guards as experience has pointed out in New York 
 and Massachusetts to be necessary and effectual, the sys- 
 tem cannot fail to be highly beneficial to our struggling 
 commerce, to the workingman in New Orleans, and to 
 the people of the State at large. 
 
 And what are the inducements which this system holds 
 out to capitalists to use their stocks and securities as pro- 
 posed ? Why, in the first place, they would have the in- 
 terest upon their stock, which would remain safe in the 
 hands of the state officer ; and, in the second place, they 
 would have the profits of their banking business. This, 
 then, is a safe and a profitable system for the capitalist, 
 and it will be a safe and a proper system for the commu- 
 nity at large. The circulating medium will be perfectly 
 safe, and the community will be accommodated with bank 
 facilities. This is the system of free banking proposed 
 by the Whigs : the free banking by which capital is to be 
 invited and induced to come here : the free banking by 
 which every class in the community is to be alike bene- 
 fited, money made plenty, confidence established, com- 
 merce and industry stimulated, and the value of labor 
 raised. 
 
 It is said that the Democrats are in favor of this system. 
 I am glad of it. I believe the great body of the people 
 Democrats as well as Whigs are in favor of the sys- 
 tem. But I advise you, fellow-citizens, to distrust the 
 professions of those who have been so long in power, but 
 who have never taken a step towards the introduction of 
 the system. Turn from them, and give your support to 
 those who stand publicly pledged and are ready to create 
 and give legal efficacy to the system at the earliest pos- 
 sible moment in the best and safest form. 
 
 However beneficial, fellow-citizens, a well-regulated sys- 
 tem of free banking might prove to New Orleans, it would
 
 POLITICAL AFFAIRS IN LOUISIANA. 107 
 
 yet be inadequate to regain the commerce which she has 
 lost, to open new sources of wealth, and to restore her to 
 prosperity, unless a wise and liberal system of railroads and 
 other impi'ovements should at the same time be adopted 
 for the encouragement of the labor and the development 
 of the resources of the State. New Orleans may be con- 
 sidered at present, for all practical commercial purposes, 
 as cut off from communication with the rest of this State, 
 and (if we exclude Mobile) with other parts of the Union 
 except by means of the Mississippi. Content with the 
 natural advantages which the river affords and with hav- 
 ing so long received tribute from the great valley of the 
 Mississippi, she has remained supine and inactive, while 
 other commercial cities of the Union, by their superior 
 enterprise in making railroads and other internal im- 
 provements, have opened artificial communications with 
 almost every portion of our country, and by the facilities 
 which they have afforded have diverted from New Orleans 
 a considerable portion of the produce which heretofore 
 came to her market and constituted a great source of her 
 prosperity. New York and Boston have been taking 
 away the commerce of the rich and growing States of the 
 Northwest. Philadelphia, Baltimore, Charleston, and Sa- 
 vannah are rapidly drawing from us a portion of the trade 
 of the valley, and Mobile is endeavoring by means of the 
 Mobile and Ohio road to turn from its accustomed channels 
 a large portion of the trade of Mississippi and Tennessee. 
 During the present season of the year, when the rivers are 
 low, a person can come from Louisville to New Orleans by 
 the way of New York sooner than by the way of the Ohio 
 and the Mississippi. All this is owing chiefly to the ad- 
 vantages arising from a system of railroads. Louisiana 
 has but eighty-one miles of railroad within her limits. 
 
 We must arouse ourselves, fellow-citizens, and enter 
 at once upon the work of improvement. We, too, must
 
 108 POLITICAL AFFAIRS IN LOUISIANA. 
 
 build up railroads if we wish to prosper. New Orleans 
 must stretch her iron arms into the interior of the State 
 and extend them even beyond the limits of Louisiana. 
 She must carry her improvements to the doors of her 
 neighboring States and connect her roads with their roads. 
 The efforts made by her rivals to draw her trade from her 
 will then prove unavailing. Large quantities of land of 
 great fertility within our own limits will be brought into 
 cultivation. Along the whole line of her railroads land 
 will increase in value, while the property, and especially 
 the real estate of New Orleans, will also be enhanced. 
 The benefits arising from railroads may be seen in the 
 progress of other cities and other States in the Union, 
 and have been clearly shown by the writers on the subject. 
 The advantages attending improved means of transport 
 are evident. The products of agricultural labor have in 
 general great bulk with proportionally small value. It is 
 important, therefore, to the agriculturist that such im- 
 provements should be made as will enable him to carry 
 his goods at the cheapest rate and in the shortest time to 
 market. The expenses incidental to transport frequently 
 amount to a large portion of the price of the article. For 
 instance, if a person should buy ten thousand dollars' 
 worth of cotton on the banks of the Cumberland Uiver 
 for the purpose of shipping it from New Orleans to Liver- 
 pool, the price that would be paid bv the consumer would 
 be not only the price paid to the farmer on the Cumber- 
 land, but also the price paid for its transport from that 
 place to the consumer. This would consist of the freight 
 paid for conveying the cotton, the interest on the price 
 paid to the producer from the time of purchase till it 
 readies the consumer, and the insurance. There are many 
 articles, indeed, which are of little or no value except in 
 consequence of transportation. For instance, ice in the 
 middle of the winter in Long Pond, near Boston, has no
 
 POLITICAL AFFAIRS IN LOUISIANA. 109 
 
 value, but when transmitted to New Orleans or to Ha- 
 vana it becomes of considerable value. Guano is of no 
 value in the place where it is found, but when transported 
 to the field of the agriculturist it becomes eminently use- 
 ful and valuable. 
 
 Dr. Lardner states that when the Houses of Parlia- 
 ment were occupied with the Railway Acts, a great mass 
 of evidence was produced illustrating the advantages 
 which both producer and consumer would obtain by the 
 increased cheapness and expedition of transport which 
 railways would supply. Extensive graziers declared that 
 animals of every species, driven to market on the common 
 roads, suffered so much that when they arrived at market 
 their flesh was not in a wholesome state, and they were 
 frequently obliged to be sold for what they would fetch. 
 The butchers declared that the value of cattle receiving 
 such injury was considerably less, in consequence of the 
 inferior quality of the meat. It was shown, further, that 
 steam vessels did not altogether remove the objection ; 
 and all parties agreed that a speedy transportation, even 
 though it cost double the price, would be a benefit. The 
 evidence was still stronger respecting the produce of the 
 dairy and the garden. Milk, cream, fresh butter, vege- 
 tables of every description, and every kind of fruit were 
 usually supplied from a narrow strip of soil about the out- 
 skirts of great cities. The milk was of a very inferior 
 quality. The animals that yielded it were fed on grain 
 and other similar articles, in a great degree, and not upon 
 wholesome and natural pasturage. But since the intro- 
 duction of railroads, numerous wagons are brought from 
 pasturages at great distances from the cities where it is 
 nsed. It is evident that these advantages from railroads 
 accrue equally to the inhabitants of the city and the in- 
 habitants of the town. The milk, the cream, the vege- 
 tables, the fresh butter, the fruit, which are of little or no
 
 110 POLITICAL AFFAIRS IN LOUISIANA. 
 
 value in St. Lanclry, St. Mary, and other parishes, would, 
 if the Algiers and Opelousas Railroad were established, 
 become articles of considerable value ; because, by being 
 transported immediately to New Orleans, they would fur- 
 nish a supply to the inhabitants of that city. The inhab- 
 itants of the city would not only have the pleasure of 
 enjoying these thing's, which are now wasted, but, inas- 
 much as they would obtain them at a less price than they 
 pay for similar articles at present, they would have some 
 surplus money which they might expend for other pur- 
 poses. 
 
 We may form some idea of the increase in the value of 
 property along railroads and at their termini by look- 
 ing, as I have suggested, to the progress of other cities 
 and States in the Union. Massachusetts commenced mak- 
 ing railroads in 1835. In 1839 Boston had 1G7 miles 
 of railroad, radiating thence in various directions. In 
 1850 she was connected with 3000 miles, one third of 
 which is within Massachusetts, 1350 within the other New 
 England States, and G50 in the State of New York. 
 And we all remember the celebration lately of the open- 
 in!'' of the railroad between Boston and Canada. These 
 
 O 
 
 great works, it is said, have enlarged the area of country 
 which contributes to her commerce probably tenfold, and 
 the effect is unprecedented. In 1834 the value of all the 
 property of Boston was #21,590,300: in 1849 it was 
 $102,827,500; and on the first of January, 1851, it was 
 $238,000,000. The increase of the value of property was 
 not confined to Boston. The State felt the benefit of the 
 railroads. In 1840 the total value of the property in the 
 State was #299,878,321), in 1850 it was 1590,531,881 ; 
 making an increase in ten years of 290,653,552. 
 
 Tin; population and the valuation of property in the 
 counties of New York traversed by the Erie Canal 
 were :
 
 POLITICAL AFFAIRS IN LOUISIANA. Ill 
 
 Population. Real and Personal Estate. 
 
 In 1830 460,562 $43,484,580 
 
 In 1850 564,685 84,000,350 
 
 Increase in ten years 104,123 840,515,770 
 
 Colonel Gadsden, of South Carolina, states that land 
 all along- the road to Hamburg and Columbia, for five 
 miles each side of the South Carolina Railroad, has 
 appreciated in value since its construction, in some cases 
 5000 per cent, and where there was not $20,000 of 
 trade there is now upwards of $250,000. In Georgia, 
 lands that in 1846 could readily be bought for 25 and 
 50 cents per acre can now command $10, $12, and $15 
 per acre. I might refer to the increase in the value of 
 real estate in the counties bordering on the Vicksburg 
 and Jackson Railroad, and in the counties bordering on 
 the Nashville and Chattanooga road, to the increase in 
 Charleston, in Baltimore, and in Savannah ; but I shall 
 content myself with saying generally that while popula- 
 tion, production, and wealth have been produced by rail- 
 roads, real estate has felt most directly and powerfully the 
 influence of those improvements. 
 
 The railroad system seems, indeed, to have a creative 
 power. In estimating the advantages of a road, we are 
 correctly told, therefore, not to confine ourselves to a con- 
 sideration whether the production at the time of construc- 
 tion will be sufficient to reimburse the cost of a road. 
 " We must estimate the increased production caused by 
 the improvement itself : the opening of new channels 
 of trade, the development of the resources of the country, 
 the expansion of commerce, the growth of population, and 
 the increase of traveling/' Time is money. We are all 
 of us. fellow-citizens, laboring men, and cannot afford to 
 waste our time. Hence, increased speed in the transport 
 of persons is a matter of importance. A person in 
 Louisville, who has commercial business to transact, can
 
 112 POLITICAL AFFAIRS IN LOUISIANA. 
 
 now go to New York, make his purchases, and return 
 home in less time than it would take him to come from 
 Louisville to New Orleans. If the speed at which per- 
 sons can be transported from place to place is doubled by 
 means of railroads, the distance is diminished one half. 
 The man, therefore, who can be carried to his place of 
 business five hundred miles in thirty hours is practically 
 nearer that place than another man would be who lived 
 two hundred and fifty miles from that place, and who had 
 no other mode of conveyance than by a horse. If we 
 would induce travelers to come among us ; if we would 
 attract to New Orleans men engaged in trade and com- 
 merce and the general business of life ; if we would 
 retain the trade which we are now in danger of losing, 
 through the exertions of rival cities ; if we would keep 
 the tide of commerce within its accustomed channels ; if 
 we would bring back to us any portion of that produce 
 now drawn aside from our market by the railroads and 
 improvements of other cities ; if we would take advantage 
 of our proximity to Texas and to the Western States, and 
 of our position as a great commercial depot and an empo- 
 rium of trade, where those engaged in mercantile business 
 in the interior can most conveniently purchase what is 
 required for their customers : if we would invite to us the 
 trade of the East Indies through California ; if we would 
 give new value to the real estate of New Orleans and of 
 Louisiana ; if we would expedite the transmission of news 
 and general intelligence, and facilitate the diffusion of 
 knowledge by cheap and speedy conveyance! : if, wisely 
 looking forward to the happening of a war. we would pro- 
 vide for the quick transportation of a sufficient body of 
 troops from various parts with a view to the defense of 
 this State and of the country at large ; if we would give 
 encouragement to labor, raise the wages of industry, re- 
 store our credit, and advance the general prosperity of the
 
 POLITICAL AFFAIRS IN LOUISIANA. 113 
 
 State, we must, fellow-citizens, at once adopt the wise and 
 liberal system of railroads recommended by the Whig can- 
 didates before you. To effect this scheme of improve- 
 ment, it is your duty to bestow your confidence upon men 
 who have never deceived you, and who are capable of 
 performing the work they undertake. 
 
 Under the present legislation of the State, no scheme of 
 internal improvement can be carried on. The Constitu- 
 tion, we have seen, declares that the legislature shall pro- 
 vide by general laws for the organization of all corpora- 
 tions except banking corporations. In 1848 a law was 
 passed to provide for the organization of corporations in 
 this State, and it has been well said that looking to its 
 minute provisions relative to formalities, and its restric- 
 tions 011 the companies to be formed under it, the act 
 should have been entitled an " Act to prohibit the organiza- 
 tion of corporations." The time and place of opening- 
 books of subscription, and the names of the commissioner 
 to superintend them, must, according to the act, be speci- 
 fied in the agreement of the parties who propose to form 
 a company. The act of incorporation is required to be 
 published for thirty days, together with the names of the 
 corporators, etc., before the corporation shall commence 
 business. The act of incorporation must be passed before 
 a notary public, and a certified copy of it must be pre- 
 sented to a district judge to be by him examined. A 
 copy also must be served on the district attorney, who is 
 allowed ten clays to file his written opposition to it. 
 Thirty days' previous notice of the application to the 
 judge must be published, and any citizen of the State 
 may make opposition. If opposition be made by any one 
 individual, Mr. Benjamin thinks that it is impossible to 
 say that a corporation can act in less than eighteen 
 months or two years. The expropriation of property by 
 railroad companies is prohibited without the express
 
 114 POLITICAL AFFAIRS IN LOUISIANA. 
 
 authority of the legislature previously obtained, and the 
 company is prohibited from entering- into the limits of a 
 city or any incorporated town without the sanction of the 
 authorities who are given the right of determining the 
 rates of tolls and fees. A single proprietor, therefore, 
 on the line, or any municipal corporation, may cause the 
 work to be stopped. Twenty per cent must be paid by 
 each subscriber at the time of subscription, although one 
 sixth of that amount would be sufficient for all prelimi- 
 nary purposes. And the legislature retains to itself the 
 power at all times to alter and amend the law. It is evi- 
 dent that no adequate subscription for any useful purpose 
 can be obtained under such conditions. 
 
 The projectors of the New Orleans, Jackson, and 
 Northern Railroad have not been deterred by these pro- 
 visions from making some preliminary organization, and 
 raising by voluntary subscription an amount sufficient 
 for the necessary preliminary expenses of survey, location, 
 etc. Under this arrangement the stock taken amounts to 
 $400,000. This is evidence, under the law and under 
 the circumstances of the case, of the zeal, enterprise, and 
 good faith with which the road has been projected. It is 
 insisted, however, that this road is a work eminently 
 public in its character, and calculated to promote the 
 general prosperity of the State, and especially to enhance 
 the value of the entire property situated on the line of 
 the route and at its termini, and that justice therefore 
 requires that means for its construction be provided at the 
 expense of all those who are to share its benefits. This 
 seems equitable. Experience, as I have heretofore 
 observed, has shown that real estate is the iirst to feel, 
 and to feel most directly, the beneficial influence of inter- 
 nal improvements. It is proposed, accordingly, to obtain 
 the passage of a law vesting in the parishes of the State, 
 with the concurrence of a majority of their legal voters,
 
 POLITICAL AFFAIRS IN LOUISIANA. 115 
 
 the right to levy a special tax upon real estate for the 
 promotion of railroads. Individual subscriptions have 
 generally proved insufficient for such works, and it is not 
 just to suffer those who will participate in their advan- 
 tages to throw the whole burden upon a few. There are 
 always to be found in every community some rich men 
 who acquire real estate, and who, knowing that such 
 estate will be enhanced in value by whatever adds to the 
 value of real estate generally, and especially by works of 
 internal improvement, will refuse to aid in such works 
 because not at first profitable in themselves, however 
 advantageous in their general results to the community. 
 They say, " Why should we subscribe ? If others sub- 
 scribe, and the community benefits thereby, we will share 
 in the common benefit without paying or risking any- 
 thing." Such a man was the late John McDonough, 
 and I know half a dozen such at this time in New 
 Orleans. The object of the proposed law is to compel 
 such persons to contribute a fair quota for the benefit 
 they will receive from the establishment of the railroad. 
 And the question of determining whether the tax shall be 
 imposed or not is to be submitted to the people them- 
 selves, in the city and in the parishes through which the 
 road is to run. They are all interested in the general 
 rise or depreciation of real estate, and if not proprietors, 
 at least expect or desire to be so. 1 The tax proposed will 
 be very light. Upon real estate one half per cent would 
 give five dollars on a thousand. At the end of four years 
 it would amount to twenty dollars. But the tax is not 
 without some equivalent in addition to the benefit con- 
 ferred upon real estate by the road ; for the amount of 
 the tax is to be represented by stock, to be parceled out 
 to the property-holders, who may dispose of the same if 
 they think proper, and thus diminish the amount of their 
 1 Report of Mr. Robb.
 
 116 POLITICAL AFFAIRS IN LOUISIANA. 
 
 assessment. I trust, fellow-citizens, that you will give 
 your support to a law so equitable and just, so well cal- 
 culated to advance the interests of every portion of our 
 city and of our State. I know no other way in which any 
 great work of improvement can be carried on with a prob- 
 ability of success under the present Constitution of the 
 State. 
 
 With a system of free banking and with a system of 
 railroads such as are proposed in the Whig platform, the 
 people of New Orleans will enjoy the benefits of capital 
 and of a sound circulation, convertible into specie at all 
 times and under all circumstances, while a new spirit of 
 enterprise will be infused into commerce, and will de- 
 velop the resources of the State, and give new encourage- 
 ment to labor. 
 
 If we turn to the judiciary department of the govern- 
 ment, we will find its structure equally defective. The 
 Constitution provides that " the Supreme Court shall be 
 composed of four judges, viz., of one chief justice and of 
 three associate justices," and that " in all cases in which 
 the judges shall be equally divided in opinion the judg- 
 ment appealed from shall stand affirmed." The act of 
 1840 divides the State into seventeen judicial districts. 
 For each district one judge has been appointed, except in 
 the first judicial district, composed of the parish and city 
 of New Orleans, in which there are five district judges. 
 Now in the district courts of New Orleans we have five 
 judges of very different characters and very different 
 minds. A question may be brought before Judge 
 Buchanan in the fifth district court, which he may de- 
 cide in favor of the plaintiff. A precisely similar case 
 may be brought before Judge Kennedy in the third 
 district court, and lie may decide it in favor of the 
 defendant, and in direct opposition to the opinion of 
 Judge Buchanan. Suppose an appeal should be taken
 
 POLITICAL AFFAIRS IN LOUISIANA. 117 
 
 from each of these decisions, and that both cases should 
 be argued before the Supreme Court at the same term, 
 and, it may be, on the same day. If the judges of the 
 Supreme Court should be equally divided in opinion, the 
 judgment of Judge Buchanan would be affirmed in one 
 case, and the judgment of Judge Kennedy would be 
 affirmed in the other. The consequence is that, under 
 the operation of the Constitution, we may have, in cases 
 of appeal, directly contradictory decisions upon the same 
 point by the Supreme Court. 
 
 The same thing may occur in cases of appeal from any 
 other district courts of the State. And it has been held 
 that one decision of the Supreme Court on a point in one 
 case is not conclusive or binding upon the same court in 
 another case. The truth is, the court may decide cases, 
 but it cannot settle principles, and the people of Louisi- 
 ana are in that condition which has been described by 
 enlightened jurists as wretched slavery, where the law 
 is vague and uncertain. There is scarcely a difficult and 
 important question presented to the court upon which 
 there is not some division of opinion among the judges. 
 It is not uncommon to see some of the junior members of 
 the bar going to the Supreme Court on Monday morning, 
 smiling at the anticipation of hearing that which fills the 
 elder and graver members of the bar with deep regret 
 and mortification, the dissenting opinion of Judge Pres- 
 ton, or of Judge Rost, or of Judge Slidell, or of Chief 
 Justice Eustis. It is, indeed, lamentable to reflect that 
 the frequent contrariety of opinions has greatly impaired 
 the moral power of the court over the sentiments of the 
 people, and shaken the public confidence in the wisdom 
 of that tribunal. 
 
 The Supreme Court themselves have, under an extraor- 
 dinary interpretation, decided that the Constitution has not 
 given them adequate power to protect the rights of the
 
 118 POLITICAL AFFAIRS IN LOUISIANA. 
 
 citizen in criminal cases. The Constitution, therefore, I 
 submit to your consideration, fellow-citizens, has in this 
 respect also failed to answer one of the main objects for 
 which it was established. 
 
 Under the Constitution of 1812, and the legislation of 
 this State prior to 1843, no appeal was allowed in any 
 criminal case. The judge of the first instance heard, and 
 finally determined the matter. In this state of tilings, 
 there was no fixed principle to govern the judges alike, 
 but each judge of necessity laid down the rule in the 
 court over which he presided. Hence, it not unfrequently 
 happened that what was adjudged law in one district 
 was declared not to be law in another. In 1843 a remedy 
 was applied to this evil. It was urged that a man ac- 
 quitted in one district of an offense could be condemned 
 under the same circumstance for a similar offense in an- 
 other district as a felon, and that law, to be just and enti- 
 tled to the respect and obedience of the people, must be 
 fixed and certain, an invariable rule operating in the 
 same way through every part of the State. It was in- 
 sisted, also, that if a party is entitled to an appeal when- 
 ever the matter in dispute exceeded three hundred dollars 
 in a civil case, he ought certainly to be entitled to an 
 appeal in a case involving his life, his liberty, or his repu- 
 tation. The legislature yielded to the force of this rea- 
 soning, and in 1843 established a "Court of Errors 
 and Appeals in Criminal Cases," and gave it ''only appel- 
 late jurisdiction with power to review questions of law." 
 Our present Constitution has given to the Supreme Court 
 "appellate jurisdiction only," and " in criminal cases on 
 questions of law alone." The appellate jurisdiction, then, 
 in criminal cases under the act of 1843, and the appellate 
 jurisdiction in criminal cases under the present Constitu- 
 tion, are alike confined to questions of law, and conveyed 
 in terms 1 ant amount and equivalent.
 
 POLITICAL AFFAIRS IN LOUISIANA. 119 
 
 Under the act of 1843, it was contended that the court, 
 being confined in its jurisdiction to questions of law alone, 
 had no power to revise the decisions of inferior tribunals 
 in criminal cases on questions of continuance and new 
 trial, which were said to be questions of discretion merely. 
 But the court declared that as much injury might be 
 inflicted on an accused by an improper exercise of discre- 
 tion as by the erroneous decision of any point of law 
 during the trial ; that this discretion meant a sound legal 
 discretion, which must be exercised in such a manner as 
 not to deprive the party accused of any right guaranteed 
 to him by the law ; and that when such discretion was im- 
 properly exercised the acts of the inferior court must be 
 reviewed. This is the doctrine of the courts of England 
 when properly understood, the doctrine of the courts of 
 New York, of Virginia, New Jersey, Indiana, Massachu- 
 setts, and Connecticut ; and it was invariably maintained 
 by the late Court of Errors and Appeals in this State. 
 It was reasonable, therefore, to suppose that the framers 
 of our Constitution, by inserting in it the provisions of 
 the act of 1843, and copying substantially the words of the 
 act, were aware of the construction they had uniformly 
 received, and intended that in the Constitution they 
 should have the same meaning. But each citizen is not 
 at liberty to construe the Constitution for himself. He 
 must take it as it is judicially interpreted, and our present 
 Supreme Court have decided that in criminal cases ques- 
 tions of continuance and new trial are purely questions of 
 discretion, which they have not the power to review. 
 
 In the case of a man who was prosecuted for murder, 
 where it appeared, on the affidavit of Mr. B. B. Lee, that 
 the accused had been forced into trial without an oppor- 
 tunity of summoning his witnesses or preparing his de- 
 fense, and where the jury after Judge McHenry, eager 
 for a conviction, had compelled them by a species of
 
 120 POLITICAL AFFAIRS IN LOUISIANA. 
 
 duress to render a verdict " recommended him to the 
 mercy of the court 011 the ground of the prisoner not 
 being prepared for trial," the Supreme Court refused to 
 interfere, and adhered to its iron rule. That man, 
 whether innocent or guilty, is now a convict in the state 
 penitentiary, without having had an opportunity of de- 
 fending himself. The judiciary department, therefore, 
 fellow-citizens, has failed from a defect in its structure : 
 it is incapable of settling principles and of establishing 
 the law in cases within its acknowledged jurisdiction : 
 and it has been denied, by the construction of the court, 
 the exercise of the power absolutely necessary for the pro- 
 tection of the life, the liberty, the reputation, and the 
 property of the citizen. I speak with the freedom of 
 history, and I hope without offense. But 1 speak regard- 
 less of the consequences of offense, determined as a free 
 man to give free utterance to my opinions and judgment, 
 when speaking to you on matters of high public importance. 
 The judiciary department, then, of our government, like 
 the legislative department of the government, has proved 
 an entire failure. The only remedy is in the overthrow 
 of the Constitution. The Constitution must be abolished. 
 Fellow-citizens, I have already detained you so long 
 that 1 will trouble you with onlv a few remarks on the 
 executive department of our government. The struc- 
 ture of that department is less defective than that of 
 either of the other departments. The principal objection 
 to it, as it at present exists, is the immense patronage- at- 
 tached to it through the power of appointing to office. 
 This defect it has been and still is in the power of the 
 legislature; in some measure to correct, by exercising 
 their constitutional right to prescribe the mode of ap- 
 pointment to offices established by law. ]>ut the legisla- 
 ture have failed in this part as in other parts of their 
 duty. 1 need not speak to you, fellow-citizens, of the
 
 POLITICAL AFFAIRS IN LOUISIANA. 121 
 
 manner in which the appointing power has been exercised 
 under the present Constitution. [Several persons here 
 called out, " Go on ! go on ! Let us hear. Let us hear how 
 it has been exercised." The speaker resumed.] Look, 
 fellow-citizens, at your judiciary. See the persons that 
 have been appointed judges in the city of New Orleans, 
 the four judges of your Supreme Court, the judges of 
 your district courts. Extend your view further, and see 
 the other district judges throughout the entire State ! 
 Have they not been appointed in the main on party 
 grounds and by way of rewarding party services ? Is this 
 right? The office of a judge is of a pure and sacred 
 nature. It ought to be the reward of learning, virtue, 
 and ability, and not the prize of partisan labors. Look 
 next to the appointment of notaries in this city. Is it not 
 well known that men were appointed who were utterly 
 incompetent to discharge their duties, men, some of 
 whom could not draw the most common act, had never 
 read a book of law, and were actually incapable of even 
 undertaking the business of the offices to which they were 
 appointed ? This was surely a gross abuse of the execu- 
 tive power, and all candid men who reflect upon the sub- 
 ject must admit that the executive department of the 
 government has been badly administered. 
 
 I have endeavored, fellow-citizens, to point out clearly 
 and distinctly some of the leading defects in the Constitu- 
 tion of the State, and in the legislation under it. And I 
 declare that, in my best judgment, that Constitution and 
 that legislation have been injurious to the best interests of 
 the State and of the city, and that those interests will be 
 still further injured, and the prosperity of New Orleans 
 altogether sacrificed, unless " the people shall come to the 
 rescue." I can see no means of effecting a change from 
 our present condition except by a change of men and a 
 change of the Constitution. You must select for your
 
 122 POLITICAL AFFAIRS IN LOUISIANA. 
 
 representatives in the state legislature and in the national 
 legislature men of enlarged and enlightened views, who 
 are not behind the times, who are attached to the Union, 
 and who will promote internal improvement. In select- 
 ing your representatives in Congress, you should be partic- 
 ularly careful to choose those who will endeavor to obtain 
 from Congress appropriations to aid internal improve- 
 ment for the benefit of this State and of the other States. 
 The United States are large owners of public lands, of 
 nearly twenty-eight millions of acres in Louisiana alone. 
 As these public lands are benefited by the construction 
 of roads, Congress has pursued a wise and liberal system 
 of donating portions of them in aid of works of internal 
 improvement. There is no reason why Louisiana should 
 not, in common with other States, participate in the bene- 
 fit of the system. 
 
 And now, fellow-citizens, while the "Whigs are advocat- 
 ing this system of reform and progress, of reform in the 
 Constitution and laws, remedying injustice, removing un- 
 wise and illiberal restrictions and prohibitions upon the 
 legislature, remodeling and rendering efficient the judi- 
 ciary department, diminishing the power of the executive 
 by depriving it of a patronage corrupting and debasing in 
 its tendencies, protecting and advancing the interests of 
 commerce, calling forth and putting into useful action the 
 now dormant energies and resources of the State, reviving 
 credit and inviting capital amonir iis. stimulating, cheer- 
 
 O 1 O O ' 
 
 ing, and re; warding labor, protecting the homestead of the 
 poor man from the hand of oppression, and providing a 
 more perfect svstem of public education, Mr. Taylor, 
 a leading member of the Democratic party, sneers at them 
 as being conservative, because they are attached to the 
 fundamental principles of American liberty, and can rec- 
 ognize no aetion as truly progressive which is opposed to 
 those principles : and he vauntingly proclaims that he and
 
 POLITICAL AFFAIRS IN LOUISIANA. 123 
 
 his party are the only progressive party of this State. 
 Impudent assertion ! Progressive ? In what ? In re- 
 moving the restrictions and injustice of the present Con- 
 stitution? No. Stand fast. The Constitution is good 
 enough for him. In introducing the benefits of a free 
 banking system ? No. Stand fast. In promoting the cause 
 of public education? No. Stand fast. He is satisfied 
 with what has been already done. In advancing the cause 
 of internal improvements ? Alas ! the Whigs recommend 
 it. Progressive in what, then ? In that only which leads 
 to ruin. I do not believe that the great body of the Demo- 
 cratic party favors such progress as Mr. Taylor seems to 
 contemplate. Ambitious men, anxious to display a zeal 
 which may recommend them to the favor of party, and 
 burning with the desire to become prominent leaders, 
 frequently lose sight of the safe ground on which they 
 should intrench themselves, and running ahead, or, more 
 properly speaking, running away from the people, assume 
 positions untenable and ruinous. 
 
 Mr. Soule, 1 in his speech delivered last month in Ope- 
 lousas, declared that " there cannot be two opinions among 
 sensible men as to the absolute right of a State to secede 
 from the Union if she chooses,'' and he quotes General 
 Jackson as sustaining, in what he (Mr. Soule) calls tk his 
 counter proclamation," the right of secession. But you 
 all know, fellow-citizens, that General Jackson in his proc- 
 lamation expressly denied the right of a State to secede, 
 and declared that " to call it a constitutional right can 
 only be done through gross error, or to deceive those who 
 are willing to assert a right, but would pause before they 
 make a revolution or incur the penalties consequent on a 
 failure.'' The speech of the senator at Opelousas and 
 his speech on the admission of California into the Union 
 are certainly extraordinary productions, and contain opin- 
 
 1 Pierre Sould, U. S. Senator from Louisiana from 1845 to 1853.
 
 124 POLITICAL AFFAIRS IN LOUISIANA. 
 
 ions and doctrines directly at war with the great principles 
 of the Democratic party. In his speech upon the admis- 
 sion of California into the Union he declared that if the 
 people of the South quietly submitted to the measure, 
 " then truly would those masters of slaves deserve to be 
 slaves themselves, that they could be reconciled to a con- 
 dition where to submit to disgrace were prudence, and to 
 be contemptible a necessity." In his speech in Opelousas, 
 after denouncing in strong terms all the measures of the 
 compromise, he exclaimed, " What ! siibmit to evident and 
 undeniable wrong ! Upon my heart and soul, never, 
 never ! " Oh no, fellow-citizens, he will not submit. But 
 he will " endure.'' Still, while he lives he shall with all 
 the energies of his lungs protest against it. Mr. Soule 
 declares that the right to secede was fully and most em- 
 phatically implied in the Articles of Confederation, and is 
 not surrendered by the Constitution. The Articles of 
 Confederation, upon their very face, declare that they are 
 " Articles of Confederation and perpetual union." And 
 in the preamble to the Constitution of the United States 
 it is declared that the people of the United States, in order 
 to form a more perfect union, do ordain and establish the 
 Constitution. 
 
 Mr. Soule declares that a State in seceding would only 
 "exert her undoubted privilege as one of the sovereign 
 confederates." This declaration is based upon the notion 
 that the Constitution of the United States is a mere 
 league between sovereign States who have preserved their 
 whole sovereignty. But the Constitution of the United 
 States forms a government, and not a league. It oper- 
 ates directly upon the people individually, and not upon 
 the States. Kach State has surrendered many essential 
 portions of its sovereignty for the purpose of constituting 
 with the other States a nation. To secede, then, is not to 
 break a league, but, in the language of General Jackson,
 
 POLITICAL AFFAIRS IN LOUISIANA. 125 
 
 to destroy the unity of a nation. Mr. Soule declares, 
 substantially, that his allegiance is due to the State alone, 
 and not to the United States. " Does not each of us," 
 says he in his speech, " possess, do we not exert whenever 
 we please, the right of changing our allegiance by passing 
 from one State to the other, or to a foreign state ? Who 
 denies it ? Who doubts it ? " 
 
 Does Mr. Soule suppose that his allegiance to the United 
 States would be changed by his passing from Louisiana 
 to South Carolina or to Massachusetts? Has he not 
 taken an oath of allegiance to the United States? Has 
 he not sworn to support the Constitution of the United 
 States ? Does not that Constitution provide that the 
 Constitution and the laws of the United States shall be 
 the supreme law of the land, and does it not also provide 
 that the members of the several state legislatures, and all 
 executive and judicial officers, both of the United States 
 and of the several States, shall be bound by oath to sup- 
 port the Constitution ? Does it not contain a clause ex- 
 pressly conveying a right to punish treason against the 
 United States ? and is not treason the highest breach of 
 allegiance ? How can a citizen of the United States say, 
 then, that he owes no allegiance to the United States, 
 and how can he assert that his allegiance is changed by 
 " passing from one State to the other, or to a foreign 
 state " ? 
 
 I can scarcely imagine how even a native of a State, 
 who has not reflected seriously upon the true character 
 and complicated structure of our government, and who 
 has been educated with false feelings of state pride and 
 been taught the extreme doctrines of state rights in the 
 school of abstractionists and metaphysicians, can so far 
 lose sight of the operations of the national government 
 as for a moment to believe that he owes allegiance to his 
 native State alone, and that he owes no allegiance to the
 
 126 POLITICAL AFFAIRS IN LOUISIANA. 
 
 United States. But I confess myself entirely at a loss to 
 understand how an adopted citizen, who may be natural- 
 ized in a Territory or in the District of Columbia, who 
 may reside during- his probationary term in one State and 
 may be admitted in another, whose right of citizenship 
 has been conferred upon him by the United States and 
 not by the State in which he may chance to live, and who 
 at the time of his application to be admitted must have 
 renounced and abjured all allegiance to the prince, state, 
 or sovereignty whereof he was before a citizen or subject, 
 and sworn to support the Constitution of the United 
 States, I confess myself entirely at a loss to understand 
 how such a person can believe his allegiance is not due to 
 the United States. These notions and these doctrines of 
 Mr. Soule, if carried out into practice, would destroy our 
 national character as Americans and put an end to the 
 Union. 
 
 Mr. Soule says " he is not for breaking- this confed- 
 eracy ; he is not for advising the State to join any seces- 
 sion movement which may be made by other States." 
 Oh no! lie only argues the right in the abstract. He 
 would have the people still endure. But this is a dan- 
 gerous philosophy. Practically speaking, there is but one 
 step from the conviction as to a right and its enforcement, 
 from the suffering of a wrong to its manly redress. Ours 
 is a government of sentiment and affection, and if the 
 feelings of the people are once alienated from it, the 
 government from that moment is at an end. 
 
 What is it that the advocates of secession desire? 
 What woidd they have who seek to destroy our Union, 
 and to erect a State into an independent nation ? Who 
 is not proud that he is an American? The sun never 
 shone upon a happier and more prosperous people. AYe 
 have increased in wealth, in population, and in power 
 with u. rapidity which has astonished mankind. Our ter-
 
 POLITICAL AFFAIRS IN LOUISIANA. 127 
 
 ritory now reaches from ocean to ocean. The power and 
 prowess of the nation have been illustrated by sea and by 
 land. Star after star has been added to our national flag. 
 The freedom of our institutions excites the attention and 
 commands the admiration of the world. Our country 
 continues to be the asylum of the oppressed of all nations. 
 Free, happy, and powerful, we are known and respected in 
 every quarter of the globe. Such are the results of our 
 Union. But what would be our condition if we were divided 
 into rival and hostile States ? I turn with horror from 
 the contemplation of the misery which would await us at 
 home, and can see nothing but degradation abroad. Sup- 
 pose Louisiana were to secede from the Union ; suppose 
 one of her sons in a foreign land were to be threatened 
 by the minions of a tyrannical government with wrong 
 and injury : what more ridiculous and insignificant ob- 
 ject can be imagined than such a person claiming pro- 
 tection in the name of the sovereign nation of Louisi- 
 ana, and pointing to a flag with a pelican on it as the em- 
 blem of his country ? Suppose the Union to continue : 
 what more sublime spectacle on earth could there be ex- 
 hibited than the American in a foreign land unfurling 
 the glorious banner of the stars and stripes, proudly 
 pointing to the bird of liberty as the emblem of his coun- 
 try, and, in the name of the United States of America, 
 demanding justice even from the tyrant on his throne? 
 [The speaker was here interrupted by applause ; after a 
 moment or two he resumed.] 
 
 Fellow-citizens, your applause shows that it is unneces- 
 sary to pursue the theme. I have spoken of high matters, 
 and I trust not unworthily. I shall detain you no longer. 
 Let your votes at the polls show that you are the friends 
 of true progress and reform, of liberty and the Union.
 
 LECTURE ON THE LAW. 
 
 [For many years Mr. Hunt delivered an opening address to 
 the law students of the University of Louisiana. The manu- 
 scripts left by him show that he revised, each and every year, 
 the definitions of the law. The selected lecture given below was 
 probably the last delivered by him, although the total absence 
 of any dates upon his books renders it impossible to accu- 
 rately fix the time of the delivery of the particular lecture here 
 given.] 
 
 WELCOME, gentlemen, to the Tulane University of 
 Louisiana! Welcome to this temple of Science, dedicated 
 for a place of instruction and study, for the communica- 
 tion of knowledge and the circulation of thought ! And 
 specially welcome to this hall set apart for the science of 
 Law! 
 
 Gentlemen, the chief end of all government is to 
 secure to the governed the blessings of liberty. And this 
 end can only be attained by the education of the people. 
 It is accordingly the paramount duty of a good govern- 
 ment to foster and promote public education. A people 
 that thoroughly understand their rights will appreciate 
 and maintain them. The foundation of despotism is 
 ignorance ; of popular rule or republicanism, knowledge. 
 Knowledge is the parent of Liberty, and her natural and 
 only safe guardian. 
 
 Impressed with these truths, Louisiana ordained by 
 her Constitution in 184") the establishment of free public 
 schools throughout the State, of a seminary of learning, 
 and of ;i university in the city of New Orleans. Under
 
 LECTURE ON THE LAW. 129 
 
 this authority, and as a part of the university, the legisla- 
 ture established a department of law, and founded the 
 college of which you are matriculated sons. To the 
 study of law you are about to devote yourselves ; and of 
 that science it is my province now to speak. 
 
 Law, in its most general and comprehensive sense, sig- 
 nifies a rule of action, and applies indiscriminately to 
 every kind of action, whether animate or inanimate, 
 rational or irrational. Thus we say the laws of motion, 
 of gravitation, or of mechanics, as well as the laws of 
 nature and of nations, and the like. The Supreme Being, 
 the Creator of all, when he formed the universe, and 
 created matter and various classes of beings, animate or 
 inanimate, in his infinite wisdom, allotted to every class 
 its condition and appropriate functions. Order, propor- 
 tion, and fitness pervade the whole. The whole world 
 around us and the whole world within us are ruled by 
 law. We see, we feel, we regard with wonder and admi- 
 ration the rule. Our very spirits, which yet seem so 
 spiritual, so subtle, so free, are subject to it. The mate- 
 rial world, the heavenly bodies, the earth, and the differ- 
 ent elements of the universe have their laws ; beasts have 
 their laws ; man has his laws. The celestial as well as 
 the terrestrial world knows, and, without swerving, ob- 
 serves and obeys its prescribed course. And the Creator, 
 the preserver and ruler of all things, acts not without an 
 eternal decree, never violating or disregarding laws, but 
 adjusting, combining, and so adapting them to the accom- 
 plishment of his purpose. 
 
 This truth is illustrated in the grandest and most 
 sublime of the works in nature, and in the least and low- 
 liest, in the laws which regulate the planetary motions, 
 the range of planets, suns, and adamantine spheres wheel- 
 ing unshaken through the void immense, and in those 
 which form a drop of water. The vastness and multi- 
 9
 
 130 LECTURE ON THE LAW. 
 
 tude of the celestial bodies, the laws which astronomy in 
 its higher branches discloses and applies, the distances 
 which it spans, the periods which it estimates, impart a 
 sublimity which lifts the soul to the heavens. The law 
 of gravitation is the most universal law known to us. It 
 prevails apparently through all space. But it does not 
 prevail alone. Its function is to balance other forces, of 
 which we only know that these again are needed to 
 balance the force of gravitation. Each force, if left to 
 itself, would be destructive of the universe. Were it not 
 for the force of gravitation, the centrifugal forces which 
 impel the planets would fling off into space. Were it 
 not for these centrifugal forces, the force of gravitation 
 would dash them against the sun. The orbits, therefore, 
 of the planets, with all that depends upon them, are deter- 
 mined by the adjustment between the law of gravitation 
 and other laws which are less known, so as to produce 
 and maintain the existing solar system. This grand 
 example of the principle of adjustment gives no idea of 
 the extent to which the principle is required and is 
 adopted in the works of nature. The revolution of the 
 seasons, seed-time and harvest, depend on the law of 
 gravitation in this sense, that if that law were disturbed, 
 or if it were inconstant, they would be disturbed and in- 
 constant also. But the seasons equally depend 071 a mul- 
 titude of other laws, laws of heat, laws of light, laws 
 relating to fluids, to solids, and to gases, and to mag- 
 netic attractions and repulsions, each of which laws is 
 invariable in itself, but each of which would produce 
 utter confusion if it were allowed to operate alone, or if 
 it were not balanced against others in the right propor- 
 tion. The seasons depend not only on the facts and laws 
 which astronomy reveals, but on other sets of facts and 
 other sets of laws revealed by other sciences, such as 
 chemistry, electricity, and geology.
 
 LECTURE ON THE LAW. 131 
 
 Chemistry abounds with illustrations of the law of 
 forces in mutual adjustment. The forces which deter- 
 mine chemical combinations all work under sharp and 
 definite rules. Some of the laws which regulate this com- 
 bination are wonderful and beautiful, of great exactness, 
 having invariable relations to numbers and proportion. 
 Each elementary substance has its own combining propor- 
 tions with other elements, so that, except in these pro- 
 portions, no chemical union can take place at all. And 
 when chemical union does take place, the compounds 
 which result have different and even opposite powers 
 according to the different proportions employed. The 
 same elements combined in one proportion are sometimes 
 a nutritious food or a grateful stimulant soothing and 
 sustaining the powers of life ; whilst, combining in 
 another proportion, they may be a deadly poison, paralyz- 
 ing the heart and carrying agony along every nerve and 
 fibre of the animal frame. 
 
 The whole progress of plants from the seed to the root, 
 and thence from the root to the seed again, the method 
 of animal nutrition, digestion, and all other branches of 
 vital economy, are not left to chance, but are performed 
 in a wondrous manner, and guided by unerring rules laid 
 down by the great Creator. Thus it is through the whole 
 of nature : laws everywhere, laws in themselves inva- 
 riable, but so worked and so adjusted as to produce 
 effects of inexhaiistible variety, by being pitched against 
 each other and made to hold each other in restraint. 
 Not a tree, not a flower, not a blade of grass, not even a 
 drop of water, not one of the countless varieties of form 
 in clouds, but is ruled by law, by forces which are free 
 only within the bounds of law : 
 
 ' All are but parts of one stupendous whole, 
 Whose bodv Nature is. and God the soul :
 
 132 LECTURE ON THE LAW. 
 
 That changed through all, and yet in all the same, 
 Great in the earth as in the ethereal frame, 
 Warms in the sun, refreshes in the breeze, 
 Glows in the stars, and blossoms in the trees ; 
 Lives through all life, extends through all extent, 
 Spreads undivided, operates unspent ; 
 
 To him no high, no low, no great, no small ; 
 He fills, he bounds, connects, and equals all ! " 
 
 Such is law in its general and most comprehensive 
 sense. Hooker describes it in terms often cited, but never 
 stale or vapid. Of Law there can be no less acknow- 
 ledged than that her seat is the bosom of God, her voice 
 the harmony of the world ; all things in heaven and earth 
 do her homage, the very least as feeling her care, and the 
 greatest as not exempted from her power, both angels 
 and men, and creatures of what condition soever, thought, 
 and manner, yet all admiring her as the mother of their 
 peace and joy. There are no phenomena visible to man 
 of which it is true to say that they are governed by one 
 invariable force. That which does govern them is always 
 some variable combination of invariable forces. No law 
 of nature that is, no elementary force of nature is 
 liable to change. But every law of nature is liable to 
 counteraction ; and the rule is that laws are made 
 habitually to counteract each other in precisely the man- 
 ner and degree that some definite result requires. No 
 man can have any difficulty in believing that there are 
 natural laws of which he is ignorant ; nor in conceiving 
 that there may be beings who do know them and can use 
 them, even as he himself now uses the few laws with 
 which lie is acquainted. The relation in which God 
 stands to those rules of his government which are called 
 
 O 
 
 laws is of course a mystery to us. But the very idea of 
 a Creator involves the idea not merely of a being by
 
 LECTURE ON THE LAW. 133 
 
 whom the properties of matter are employed, but of a 
 being from whose will the properties are derived. Our 
 own experience shows that the universal reign of law is 
 perfectly consistent with a power of making those laws 
 subservient to design, even when the knowledge of them 
 is but slight, and the power even slighter. How much 
 more easy, how much more natural, to conceive that the 
 same universality is compatible with the exercise of that 
 supreme will, before which all are known, and to which 
 all are servants ! There is nothing in religion incom- 
 patible with the belief that all exercises of God's power, 
 whether ordinary or extraordinary, are effected through 
 the instrumentality of means ; that is to say, by the in- 
 strumentality of natural laws brought out, as it were, and 
 used for a divine purpose. Advancing knowledge of 
 physical law has been constantly accompanied with ad- 
 vancing power over the physical world, and has enabled 
 us to do a thousand things which a few centuries ago 
 would have been considered supernatural. The man of 
 real science recognizes more than the superficial observer 
 the concord between physical and moral laws, between 
 science and religion. Both come from one great source ; 
 and every step that we make in the investigation of the 
 physical laws and of their principles ought to lead us to 
 a nearer and better acquaintance with those of the moral 
 universe, and with the majesty and grandeur of him who 
 has wished to grant us the growing evidence of himself 
 and of his attributes, by allowing his works, perfect from 
 the beginning, to be unveiled and explained to our re- 
 searches. 
 
 Law, universal, constant in its influence, uniform in its 
 operation, supreme in its obligation, its power to com- 
 mand and enforce obedience, must emanate from a law- 
 giver infinitely wise and transcendently powerful. " I 
 had rather," said Bacon, " believe all the fables in the
 
 134 LECTURE ON THE LAW. 
 
 Legend and the Talmud and the Alcoran than that this 
 universal frame is without a mind. And therefore God 
 never wrought miracle to convince atheism, because his 
 ordinary works convince it." Our address, by an easy 
 and a natural transition, here brings before us the rights 
 and duties of man for consideration ; in a word, juris- 
 prudence. 
 
 Law in a restricted sense denotes the rules by which man 
 is commanded to regulate his conduct. Its precepts are 
 for the guidance of man alone as a moral, intellectual, and 
 accountable being. In this sense they form the subject of 
 jurisprudence. When law is applied to any other object 
 than man, it ceases to contain two of those essential in- 
 gredients, disobedience and punishment. Commanding 
 and obeying are the two foundations of all human society. 
 They are relatives ; they mutually respect, engender, and 
 conserve one the other. We are told, a wise man being 
 once asked why the commonwealth of Sparta was so 
 flourishing, whether it was because its kings commanded 
 well, replied, Nay, rather because the citizens obey well ; 
 for if the subjects once refuse to obey, and shake off the 
 yoke, the state must necessarily fall to the ground. 
 
 Man is a social being. His inclinations and wants, 
 physical and moral, irresistibly compel him to associate 
 with his kind : and ho has accordingly never been found, 
 in any age or country, in any state other than the social. 
 In no other could he exist ; and in no other, indeed, were 
 it possible for him to exist, could he attain to a full devel- 
 opment of his moral and intellectual faculties, or raise 
 himself in the scale of beings much above the brute crea- 
 tion. This necessary social state cannot exist without 
 government. 
 
 What then is that constitution of human nature which 
 renders it impossible for society to exist without govern- 
 ment ? Physiology shows the structure of man : the
 
 LECTURE ON THE LAW. 135 
 
 superiority of the human organization, its various func- 
 tions, and all that is connected with the animal life of 
 man, over those of the rest of the animate creation. Man 
 is endowed with sympathy or fellow-feeling ; that is, a 
 feeling for the pains and pleasures of others, though un- 
 connected with any interest of his own or standing in no 
 direct connection with him. This feeling is of a pecul- 
 iarly expansive character, and constitutes an " essential 
 attribute of the ethic character of man." It can only be 
 proved by our consciousness of it, and its effects being 
 observable everywhere. Some writers would reduce it to 
 self-interest, to egotism. But this, says Lieber, would 
 nearly destroy the basis of all that is good or worth living 
 for. " It may be decided in a practical way only by ask- 
 ing, are you a brother, or a son, or a friend ? Have you 
 ever seen a venerable old man insulted by a wanton 
 youth? Have you never read a satisfactory vindication 
 of a person against whom grave and plausible charges 
 had been brought ? And had you heard of these things 
 without feeling joy or pain ? Has the perseverance of 
 Columbus never reached your ears? Who learns without 
 emotion his tumultuous and intense thoughts and feel- 
 ings when he found that, in spite of every difficulty and 
 danger, he had accomplished his object, revealed the great 
 mystery of the ocean, triumphantly established his theory 
 which had been the scoff of sages, and secured to him- 
 self a glory durable as the world itself, and, landing 
 011 the New World, threw himself on the earth, and re- 
 turned thanks to God with tears of joy ? Has no drama 
 ever touched you ? On what indeed is nearly the whole 
 literature of belles-lettres founded, if not on sympathy, 
 sympathy even with fictitious beings?" The existence of 
 the family, love of country, friendship, public spirit, and 
 whatever is noblest or best in man are, in whole or in 
 part, founded on this great element of the human soul.
 
 136 LECTURE ON THE LAW. 
 
 The constitution of man's nature makes us feel more 
 intensely what affects us directly than what affects us 
 indirectly through others ; in other words, our direct or 
 individual feelings are stronger than our sympathetic or 
 social feelings. This necessarily leads to conflict between 
 individuals. Each, in consequence, has greater regard 
 for his own safety and happiness than for the happiness 
 or safety of others, and where these come in opposition 
 is ready to sacrifice the interest of others to his own : 
 and hence the tendency to a universal state of conflict 
 between individual and individual, accompanied by the 
 passions of suspicion, jealousy, anger, and revenge, fol- 
 lowed by insolence, fraud, and cruelty, and, if not pre- 
 vented by some controlling power, ending in a state of 
 universal discord and confusion, destructive of the social 
 state and of the ends for which it is ordained. This 
 controlling power, wherever vested or by whomsoever 
 exercised, is government. 
 
 Society and government, then, are intimately con- 
 nected. Both are necessary to the existence of our race, 
 and equally of divine ordination : rules and laws are a 
 mode of God's government of the world, and rules and 
 laws are a necessary mode of human government. 
 
 The constitution of our nature, which renders govern- 
 ment in some form or other necessary, deserves a fur- 
 ther and more searching examination. Man is endowed 
 with intellect, the faculty of reflection, lie analyzes, 
 compares, combines, abstracts, concludes, and judges, and 
 elevates himself above the sensible world. In forming 
 notions of his nature, a comparison is often made 
 between men and animals, the only creatures endowed 
 with thought that fall under our senses. There are 
 writers who maintain that the mental powers of the 
 highest animal approach so closely to those of the lowest 
 man that it may be said there is no essential difference,
 
 LECTURE ON THE LAW. 137 
 
 but merely a gradual transition, and no ethic conclusion 
 can be drawn tlierefrom. But certainly the comparison 
 is favorable to mankind. On the one hand, we see a 
 creature whose thoughts are not limited by any narrow 
 bounds either of place or time ; who carries his researches 
 into the most distant regions of this globe and beyond 
 this globe, to the planets and heavenly bodies ; looks 
 backward to consider the first origin, at least the history 
 of the human race ; casts his eye forward to see the 
 influence of his actions upon posterity, and the judgments 
 which will be formed of his character a thousand years 
 hence, a creature who traces causes and effects to a great 
 length and intricacy, extracts general principles from 
 particular appearances, improves upon his discoveries, 
 corrects his mistakes, and makes his very errors profit- 
 able. On the other hand, we are presented with a 
 creature the very reverse of this : limited in its observa- 
 tions and reasonings to a few sensible objects which 
 surround it, without curiosity, without foresight, blindly 
 conducted by instinct, and attaining in a short time its 
 utmost perfection, beyond which it is never able to 
 advance a single step. What a wide difference between 
 these creatures ! 
 
 Among the other excellencies of man, this is one, that 
 he can form an idea of perfections much beyond what he 
 has experience of in himself, and is not limited in his 
 own conception of wisdom and virtue. All the world is 
 agreed that human understanding falls infinitely short of 
 perfect wisdom. 
 
 Undoubtedly there is mental action in the brute ani- 
 mal : the animal thinks, but man reflects. " A mule," 
 said Frederick the Great, " though it might have made 
 ten campaigns under Prince Eugene, would not become 
 for all that a better tactician." The animal is, with rare 
 conceptions, confined within its own sensuality, the
 
 138 LECTURE ON THE LAW. 
 
 sphere and influence of its senses alone ; they direct its 
 actions ; it lives and moves within the sensible world 
 alone. But man, belonging in part to the sensible world, 
 and subject according to his sensuality and its laws, in 
 which everything is determined, has, on the other hand, 
 the great privilege to determine himself. lie can guide 
 and determine himself by reason within certain limits 
 given him by the material world ; he can choose. Accord- 
 ing to his sensuality man is bound ; if he feels pain, he 
 cannot help being prevented by it from freely thinking. 
 According to his rationality he is free ; he reflects and 
 chooses, he enjoys freedom. His will is free, because 
 he can determine himself with regard to willing an object 
 of which he is conscious. The proof is, our consciousness 
 of being able to will something which is repugnant to our 
 sensuality, or which may cost us the sacrifice of our 
 warmest affections. 
 
 Now, a motive is that which moves or tends to move 
 the mind in a particular direction. Man is exposed to 
 certain motives in common witli the lower animals. But 
 there are other motives, motives which operate upon him 
 which can never operate upon them. Among the motives 
 which operate upon him, man has a selecting power. lie 
 can bring them to the test of conscience. He can reason 
 on his own character, and when he knows that a given 
 motive will be too strong for him, if lie will allow him- 
 self to think of it, lie can shut it out of his mind by 
 " keeping the door of his thoughts.'' Motives of all 
 kinds, the highest and the lowest, rise in the mind unbid- 
 den. It is by an act of will that we summon different 
 motives to the presence of the deliberative faculties, that 
 we cherish one and dismiss another, or determine to spend 
 our thought and time in making choice between motives 
 which are conflicting. " I.^olcnl'm lib<>r<i cut, qim, positis 
 omnibux w<y ///'*<//*, ad (tr/endum potent at/ere cf, non
 
 LECTURE ON THE LAW. 139 
 
 aff ere." (Power is free, which, all the requisites for action 
 being presented, is able to act and not to act.) If man 
 acts, he may be impelled by instinct or prompted by his 
 sensuality, for instance, when he drinks, being thirsty, 
 or struggles to save himself from drowning ; or he may 
 determine his own will, in which case he may be actuated 
 either by motives of expediency, when he simply judges 
 whether his action will lead to the object he has in view, 
 for example, when he grinds his sickle to reap his 
 wheat, or by moral motives, which make an action good 
 or bad, praiseworthy or hateful, deserving of applause or 
 condemnation. 
 
 The subtlest intellect, the most vigorous mind, unaided 
 by anything else, cannot arrive at any other idea with 
 regard to an action than that of obedience, fitness, cor- 
 rectness, respecting the choice of means for the object in 
 view. Yet we find with all men a feeling entirely 
 independent of the expediency or judiciousness of our 
 action, the moral element in the human soul, the 
 consciousness of right and wrong. This original con- 
 sciousness of right and wrong is called conscience, 
 from the Latin word conscientia, from con and scire, 
 to know, because " it is the most important of the 
 different species of consciousness." Some philosophers 
 have maintained and others have denied what conscience 
 is, and its very existence. Locke calls conscience " our 
 own opinion or judgment of the moral rectitude or 
 pravity of our own actions," and proceeds to show that it 
 cannot be inborn. The very term " opinion " involves 
 the idea that it is something arrived at by reflection, 
 which is ail act of the mind ; how then can it be inborn ? 
 A faculty may be inborn, an action cannot. According 
 to Locke, the mind is a blank paper on which our senses 
 write impressions, which the intellect analyzes and com- 
 bines. According to some others, it analyzes and combines
 
 140 LECTURE ON THE LAW. 
 
 the perception of things, but it does not infuse new ele- 
 ments of thought or feeling'. 
 
 Conscience is then an original consciousness of right 
 and wrong, good and bad. Like every species of con- 
 sciousness it begins with an indistinct feeling, and 
 becomes clearer the more effectually the matured mind 
 acts upon it. So it is with all ideas we receive through 
 the senses. The sense of sight is first but dim. The 
 mind must act upon the impression received, and the 
 sense itself must be practiced before it becomes clear. 
 Astonishing instances of the keenness which can be ac- 
 quired by the human eye, and of the rapidity with 
 which it can observe distinctive marks, are on record. 
 Yet the sense of sight is innate, or the idea of color could 
 not possibly have been arrived at. So man feels, at 
 doing certain things, that he ought to have done them or 
 not, and by the operation of the mind constantly ana- 
 lyzing and generalizing he arrives gradually at more 
 distinct ethic notions. Conscience is developed, culti- 
 vated, made delicate in connection with reflection, the 
 development of our feelings in general, and experience : 
 but the consciousness of riirht and wrong is primordial 
 
 O O i 
 
 and general. 
 
 The writers who deny that conscience is universal and 
 innate urge the difference of moral opinion, and the fact 
 that some tribes actually consider laudable what others 
 punish as the vilest crime. The fact is admitted that 
 people have burned and racked their fellow- creatures, 
 Catholics Protestants, and Protestants Catholics; that 
 some of them, at least, believed they did right while they 
 perpetrated their acts, every one knows. All these perse- 
 cutors said that they relied for the rectitude of their 
 actions on the l>ible. 
 
 The Spaniards who conquered the southern continent 
 of America committed every species of cruelty and op-
 
 LECTURE ON THE LAW. 141 
 
 pression. We read of Indians being slowly worn down 
 by excessive labor to satisfy the diabolical lust for gold. 
 We find the names of mastiffs, bloodhounds, handed 
 down to posterity, because they distinguished themselves 
 in hunting and tearing the Indians, for which their mas- 
 ters received the regular share of booty allotted to an 
 armed man ! " Leoncico " was the name of the blood- 
 hound belonging to Nuiiez. And all this, it is urged, 
 "in return for genuine kindness and humanity; for Las 
 Casas testified, the Indians always did more by way of 
 hospitality than they were bid to do. Refined torments 
 were paid back in return for unsuspicious and kind recep- 
 tion. Those Spanish adventurers, cruel almost without 
 parallel, from the meanest of motives, the yearning for 
 riches, were most chivalrous, urbane, and charitable to- 
 ward each other, ready to make any sacrifice. Those 
 that were vindictive, bloodthirsty, and without any faith 
 toward the Indian were magnanimous and full of honor 
 toward each other." 1 The principle of morality, therefore, 
 had not been plucked out of their hearts, but bigotry and 
 avarice had perverted their judgment and moral feeling. 
 The fact that bands of criminals always form a certain 
 moi-al code among themselves shows the inalienably moral 
 character of man, however perverted his judgment and 
 feeling may be by passions. A robber or thief might feel 
 indignant at theft or cheat within the band. 
 
 The moral codes of all nations are more uniform than 
 discordant. There is a natural or innate horror at cer- 
 tain specific crimes, which cannot be denied. " We 
 know," says Dr. F. Lieber, " that man can be reconciled 
 to the worst by custom ; yet, on the other hand, it takes 
 time to denaturalize him as to some actions ; for instance, 
 murder. The moral principle, it is contended, is absolute 
 
 1 Irving, Voyages of the Companions of Columbus.
 
 142 LECTURE ON THE LAW. 
 
 and universal. Individuals, nations, may rest in very dif- 
 ferent ways, sitting, reclining in hammocks, or lying on 
 couches ; but all must acknowledge the principle that rest 
 is requisite after exertion." In regard to the uniformity 
 even of laws, M. Michelet, in a work on the origin of 
 French law, says : " We have studied the juridical sym- 
 bol under the two points of view of its age and nation- 
 ality, which diversify it infinitely ; nevertheless, whatever 
 variety may be discovered, unity predominates. It is an 
 imposing spectacle to find the principal legal symbols 
 common to all countries throughout all ages. In truth, 
 to one who considers not the human race as the great 
 family of God, there is in these multitudinous voices, out 
 of hearing of each other, and which nevertheless respond 
 each to each, from the Indies to the Thames, in recipro- 
 cating sounds, something wherewithal to dismay the 
 intelligence, to strike the heart and spirit of man with 
 consternation. 
 
 " Transporting was the emotion which I myself ex- 
 perienced, when, for the first time, I heard this universal 
 acclaim. Unlike the skeptic Montaigne, who so curiously 
 ferreted out the customs of different nations to detect 
 their moral discordancies, 1 have found a consentaneous 
 harmony among them all. A sensible miracle has arisen 
 before me, my little existence of the moment has seen 
 and touched the eternal communion of the human race." 
 
 Far more striking, however, is the uniformity, or at 
 least agreement of the moral views, when we observe the 
 daily intercourse of individuals and nations. There are 
 many exceptions, undoubtedly, but they attract more 
 attention because they are exceptions. That man is a 
 social being, and cannot exist and develop fully his 
 moral and intellectual faculties in any other state than 
 the social, has been sufficiently considered for the present. 
 Our discourse makes it necessary to consider his individ-
 
 LECTURE ON THE LAW. 143 
 
 uality also, his separate and distinct existence, his inalien- 
 able ethic attributes. 
 
 Superior intellect, sympathy, freedom of will, ration- 
 ality, and conscience constitute man's ethic character, his 
 moral dignity, and make us at once conscious of the law, 
 " Do unto others as you wish others may do unto you." 
 This is a fundamental law, a supreme law of practical 
 use, the law of virtue. It comes home to a greater num- 
 ber of persons than any other law that can be devised. 
 Christ, in his sermon on the mount, taught the lesson : 
 " All things whatsoever ye would that men should do to 
 you, do ye even so to them : for this is the law and the 
 prophets." And Paul the Apostle wrote to the Romans: 
 " When the Gentiles, which have not the law, do by nature 
 the things contained in the law, these, having not the law, 
 are a law unto themselves : which shew the work of the law 
 written in their hearts, their conscience also bearing wit- 
 ness, and their thoughts the mean while accusing or else ex- 
 cusing one another." Man's senses, perceptions, thoughts, 
 emotions, his reasoning and actions, are individually his 
 own. Man's responsibility is therefore his own. Fault, 
 crime, virtue, goodness, or immorality is his own. Respon- 
 sibility involves the idea that the individual might, and if 
 he has acted wrong ought to have acted differently, which 
 presupposes free will and individuality. God '* will ren- 
 der to every man according to his deeds." What man is 
 in mind and body first of all, he is as individual, yet not 
 made to be purely selfish. The Creator connected him 
 with his kind by a thousand ties, by sympathy, love, 
 friendship, and by the mysterious attachment growing out 
 of the difference of sexes. 
 
 We can only reason from what we know. Every sci- 
 ence has to start from some axioms, truths universally 
 acknowledged or self-evident in their nature. The most 
 elaborate and sublime reasoning's in mathematics are
 
 144 LECTURE ON THE LAW. 
 
 founded upon them. Natural law shows the rights which 
 man has according' to his inalienable ethic nature. It 
 treats of his rights, and of his obligations and duties, 
 flowing from the fact of each man s being possessed of 
 the same rights. The only axiom necessary to establish 
 the science of natural law is this : " I exist as a human 
 being; therefore I have a right to exist as a human 
 being." Spinoza, never willing to admit unwarranted 
 truths, remarks: "Quomodo autcm id sciam .si royc.s 
 respondebo co modo, tic tit .sci.s, tres angulos triannuli^ 
 ce.qualci* e.s.se duobusrectis : ct hoc siijfficere^negdbit nemo, 
 cui samim ct cerebrum, nee spiritus immundos somniat, 
 qui nobis ideas falsas inspirant vcris similes." (If you 
 ask how I know this, I will answer. In the same way 
 as you know that the three angles of a triangle are equal 
 to two ri<rht angles : and no one will deny this whose 
 
 o o / 
 
 brain is sound and does not dream of unclean spirits 
 that inspire us with false ideas seemingly true.) 
 
 Undoubtedly there are certain laws of good and evil, of 
 right and wrong, which man is enabled by his moral sense 
 and his reason to discover, and which are inseparably 
 connected with human happiness. They are the result of 
 the natural feelings, the impartial judgment, and the ex- 
 perience of mankind. They are founded on the paternal 
 precept that man should pursue his own true and substan- 
 tial happiness. They constitute the law of nature, which 
 treats of man's rights, and of his obligations or duties 
 flowing from the fact of each man being possessed of the 
 same rights, as already stated. Justinian reduces the 
 whole doctrine of law to these three general precepts, 
 honcnte vivcre, ciltcni'in it on. ht'do'e, xmim cuigne tribiierc 
 (to live honestly and honorably, to wrong no one, to give 
 even one his due). 
 
 Of the law of nature Cicero speaks with the compre- 
 hension of philosophy and the copiousness of eloquence.
 
 LECTURE ON THE LAW. 145 
 
 " It is," says he, " true law, right reason, conformable to 
 nature, diffused among all men, unchangeable, eternal. 
 It cannot be impaired, it cannot be altered, it cannot be 
 abolished. The senate and the people are unable to dis- 
 solve its obligation. It requires no interpreter, no com- 
 mentator. It is not one law at Rome, another at Athens ; 
 one law now, another hereafter. It is the same, eternal 
 and immutable, at all times and for all nations ! The 
 precepts of moral and natm-al law are generally obliga- 
 tory on man. But natural law and revealed law operate 
 only upon the reason and the conscience, and are insuf- 
 ficient to restrain the violence and prejudices of men in- 
 flamed by passion, and the tendency to a state of conflict 
 between individual and individual, ending in a state of 
 universal discord and confusion, destructive of the social 
 state, if not controlled. To establish public order, to main- 
 tain peace, and to execute justice, it becomes necessary to 
 establish government and laws ; to point out the decrees 
 of equity ; to institute offices and other means to punish 
 transgressors, correct fraud and violence ; and to oblige 
 men to live peaceably and to respect the rights of others, 
 under the pain and penalty to every offending member of 
 the community of having the entire power of the society 
 directed against him by public authority." And that 
 law which each people, or men formed into a separate 
 society or government, establish for themselves is called 
 civil law or municipal law. " Jus civile est quod quisque 
 sibi populus constituent" 
 
 Men cannot enjoy the protection of government with- 
 out submitting to the restraints which a just government 
 imposes. Laws are dead letters unless they operate and 
 are enforced to oblige men, however reluctant, to consult 
 their own real and permanent interests. Obedience be- 
 comes a duty to support the duty of justice : and the ties 
 of equity must be corroborated by those of allegiance. 
 10
 
 146 LECTURE ON THE LAW. 
 
 The division of law into natural law and municipal law is 
 not merely scholastic and doctrinal, but is philosophical 
 and based upon the essence of things. The precepts of 
 natural law are not in evei'y instance enforced by the 
 government, but the rules of municipal law are expressly 
 declared and enforced by it. 
 
 The origin of governments has been variously and fan- 
 cifully suggested. How they began, on what principles 
 they were originally formed, what share in their forma- 
 tion should be ascribed to stratagem, what to convenience, 
 what to force, were said by a learned statesman to be so 
 obscured by the mists of time as to be merely chimerical. 
 But the history of the progress of government is curious 
 and useful. The various stages through which it passed, 
 from savage independence, which implies every man's 
 power of injuring his neighbor, to legal liberty, which 
 consists in every man's security against wrong, the 
 manner in which a family expands into a tribe, and a 
 tribe into a nation, in which public justice is gradually 
 engrafted on private revenge, and temporary submission 
 is ripened into habitual obedience, -form a most impor- 
 tant and extensive object of inquiry, comprehending, as 
 Sir James Mackintosh observes, all the improvements of 
 mankind in police, in judicature, and in legislation. As 
 civil governments were established, and men became di- 
 vided into many great societies, and formed themselves 
 into separate states, commonwealths, and nations, inde- 
 pendent of each other, and yet liable to mutual inter- 
 course, there naturally and necessarily arose another kind 
 of law to regulate their intercourse, called the law of 
 nations. Nations are equal in respect to each other, and 
 entertain and claim equal consideration for their rights. 
 They acknowledge no common superior. The law of na- 
 tions, therefore, cannot be dictated by any state. It de- 
 pends upon the rules of natural law, or upon compacts.
 
 LECTURE ON THE LAW. 147 
 
 agreements, treaties, and leagues, to be construed accord- 
 ing to that law. The same rules of morality which hold 
 men together in families, and form families into states, 
 link together these states as members of the great family 
 of mankind. Nations as well as private men may be 
 injured or benefited by each other. It is therefore their 
 interest as well as their duty to practice and enforce 
 these rules of justice, which control and restrain injury, 
 regulate and augment benefit, and which, if generally 
 obeyed, would establish and maintain the well-being of 
 the universal commonwealth. Hence it is that states are 
 considered as moral persons, under the same obligations 
 mutually to practice honesty and humanity as would 
 have been individuals ; and hence the science which 
 teaches the duties of states and individuals, and enforces 
 national and individual morality, has been with propriety 
 termed the law of nature and of nations. " Quod natu- 
 ralis ratio inter omnes homines constitute^ vocatur Jus 
 gentium" It is received as the code of the great legis- 
 lator of the universe for the guidance of man to happi- 
 ness, guarded and enforced, as experience has shown, by 
 the penal sanctions of shame and remorse, of infamy and 
 of misery, and still further enforced by the dread of pen- 
 alties in a future state of existence. 
 
 The law of nations, then, civil or municipal law, and 
 the law of nature, upon which human laws are founded, 
 are embraced in the science of law. Man, happier and 
 more content in civil society than in any kind of solitary 
 living, is not satisfied with this. We covet to have a 
 kind of society and fellowship even with all mankind, 
 which Socrates signified when he declared himself a citi- 
 zen, not of this or that commonwealth, but of the world, 
 and which is apparent in the natural desire and delight 
 men have to visit foreign countries, to know the customs, 
 the affairs and dealings of other people, and to be in 
 league of amity with them.
 
 148 LECTURE ON THE LAW. 
 
 Judge Story wrote to Dr. Lieber, in 1837, that he had 
 read with great satisfaction the manuscript of the second 
 book of his work on ethics, entitled " The State," which 
 he declared " the fullest and most correct development of 
 what constitutes a state that he [the judge] had ever 
 seen, and which put the state upon its true foundation : a 
 society for the establishment and administration of gen- 
 eral justice, justice to all, equal and fixed, recognizing 
 individual rights, and not impairing them. The aims and 
 ends of the work are practical." 
 
 This discourse now passes to the consideration of the 
 state. Every man should know his duty, and his duties 
 as a citizen are among the most important, especially in 
 countries which enjoy civil liberty and have a free govern- 
 ment. The state is so intimately connected with nearly 
 everything which concerns man, all our interests are so 
 interwoven with the public weal, that it cannot prosper or 
 remain harmless without a faithful and correct discharge 
 of duties on the part of every citizen. To be a good citi- 
 zen one must be a good man, and should entertain sound 
 principles of public morality. This knowledge and these 
 principles can be durably and with certain effect im- 
 pressed in our youth. 
 
 The state and politics disclaim immorality. Rare ex- 
 ceptions indeed exist, but in them is always found a 
 desire to gloss them over with the appearance of justice. 
 Marat and Robespierre, Reubel and St. Just, had the 
 name of virtue always on their lips. Witness, for in- 
 stance, the massacre of St. Bartholomew, August "24, 
 1572, " one of the most atrocious crimes recorded in 
 history." When the massacre had been perpetrated with 
 unexampled treachery, cruelty, and disgusting vice and 
 villainy by Catherine de Medici and Charles IX., the king, 
 after a long and cold-blooded consultation between him, his 
 wicked mother, and Anjou as to the invention of the best
 
 LECTURE ON THE LAW. 149 
 
 means of justifying themselves, proceeded on August 26 
 to Parliament, and there added to this stupendous wrong 
 the solemn lie, after having heard high mass, that all 
 had been done to save themselves from a vast yet timely 
 discovered conspiracy of the Huguenots. Their bodies 
 were weltering in blood, and could not gainsay the false- 
 hood. But on August 24, the day of the carnage itself, 
 the king and queen sent a declaration into all the prov- 
 inces that the whole had been done by the Guises ; nay, 
 though Philip II. of Spain celebrated this event by the 
 performance of a drama representing the triumph of the 
 Church Militant, and Pope Gregory XIII. ordered a 
 solemn Te Deum to be performed in the church of St. 
 Louis, Charles IX., or his wily mother, found it neces- 
 sary to order, even two months after the bloody deed, the 
 torturing and execution of an old nobleman, Briguemant, 
 and one of the royal counselors, Cavannes, as having 
 been accessories, so that the appearance of truth as to a 
 Huguenot conspiracy might be kept up. 1 
 
 It is the destiny, the glorious destiny of man to be 
 always progressive ; so it is his duty to press on towards 
 things before him. In the order of Providence, the prog- 
 ress of society towards protection resembles that of an 
 individual. Hitherto it hath been slow, and has often 
 been interrupted by unpropitious events ; but there have 
 been, and there always are, some steps gained which are 
 never lost. No man can look back on the history of 
 modern civilization without seeing that it presents the 
 phenomena of development and growth. Whatever may 
 be the decline of particular communities, the progress of 
 mankind on the whole is a progress to higher and better 
 things. Man's conduct will in the main be guided by his 
 moral and intellectual convictions. 
 
 1 Lieber, Political Ethics.
 
 150 LECTURE ON THE LAW. 
 
 Civilization cannot be conceived of without society ; 
 that is, without men congregated in large masses, and 
 closely united by a variety of important relations and 
 strongly affecting each other's welfare. Without society, 
 no fellow-feeling and sympathy, no intellectual progress 
 from generation to generation, no common stock of sci- 
 ence and moral experience, no fine arts, no expanded idea 
 of justice and mutual rights, no public spirit with its 
 elevating qualities, no division of labor, no extensive ex- 
 change of produce, no works to benefit the many, with- 
 out society, no humanity in man ! 
 
 Civilization, then, is man's truly natural state, adapted 
 to and affected by his nature. Hooker, carefully observ- 
 ing and sagacious, said : " Men. if we view them in their 
 spring, are at the first without understanding or know- 
 ledge at all. Nevertheless, from this utter vacuity they 
 grow by degrees, till at length they become even as the 
 angels themselves are. Man was essentially made for 
 progressive civilization, and this, therefore, is his natural 
 state." A tree in blossom or with the ripe fruit is in no 
 less a natural state than in winter deprived of all foliage ; 
 nor is the plant in an unnatural state when in the germ. 
 
 Men, at a very early time, were led to imagine a period 
 when plenty rendered labor unnecessary, and universal 
 content prevented contest and clashing of interest, a 
 golden age of happiness, a dream which gave to the fancy 
 at least that for which the heart yearned and to which 
 reality offered a decided contrast. Man is destined by 
 nature to labor, to gain by exertion, to conquer all that is 
 necessary for him. There is no u ready-made happiness," 
 not even comfort for him. Instead of the many physical 
 specific instincts with which the brute creation has been 
 endowed he has received superior intellect ; but this intel- 
 lect itself has first to be developed gradually from gen- 
 eration to ffeneration.
 
 LECTURE ON THE LAW. 151 
 
 We are told the golden dream of original happiness 
 was coupled with another equally erroneous view. Rous- 
 seau, in the opening sentences of " Emile," his work on 
 education, says : " All is good as it comes out of the 
 hands of the Author of things ; everything degenerates in 
 the hands of man, who wishes nothing to be such as nature 
 has made it, not even man." 
 
 This erroneous view has been fully exposed and its 
 error pointed out by philosophic writers, by no one more 
 satisfactorily than by Dr. Lieber. It is man who im- 
 proves upon unaided nature everywhere ; makes the soil 
 bear hundred fold, enlarges the fruits, ennobles the 
 stock, saves from destruction, unites what was severed, 
 carries the blessings and pleasures of one climate to 
 another, and renders palatable what was repulsive, harm- 
 less what was poisonous, etc. 
 
 What is, philosophically speaking, the true state of 
 nature of any being or thing? Doubtless that in which 
 it fulfills most completely that end and object for which 
 it is made, according to its organization. This discourse 
 has clearly shown that " man was essentially made for 
 progressive civilization, and this therefore is his natural 
 state." 
 
 Law, we have seen, is a rule of action. The world was 
 not made for the indolent ; the active rule. We have to 
 work, to labor, to learn honestly and gather industriously, 
 that we may learn to do right. We must not minister to 
 one of the worst dispositions by telling the idle that they 
 have to learn nothing, that the cultivation of the mind is 
 useless, that common sense is sufficient for everything. 
 
 Man's ethic character is founded on his individuality 
 and sociality. He is first and essentially individual ; his 
 acts are his own, his responsibility is his own ; for his 
 reasoning and acting are his own ; he has an inalienably
 
 152 LECTURE ON THE LAW. 
 
 moral character, and cannot, by his own consent or the 
 force of others, become a non-moral being. He has a 
 natural aversion to being absorbed in an undefined 
 generality, and each man is anxious to be a distinct 
 individual. But he cannot be and never was without 
 property, which is nothing else than the application of 
 man's individuality to external things, effecting a rela- 
 tion, a relation between man and things without him, 
 involving a power over them, of disposing of them, grow- 
 ing out of the very nature of man ; and consequently we 
 find him at no stage without property. 
 
 Kent says, the sense of property is graciously bestowed 
 upon mankind for the purpose of rousing from sloth and 
 stimulating them to action. It leads to the cultivation 
 of the earth, the institution of government, the establish- 
 ment of justice, the acquisition of the comforts of life, the 
 growth of the useful arts, the spirit of commerce, the pro- 
 ductions of taste, the erections of charity, and the display 
 of the benevolent affections. 
 
 Whatever is absolutely necessary for man's existence, 
 physical or intellectual, Providence has accompanied with 
 pleasure. It is a pleasure to eat when hungry, to drink 
 when thirsty, to sleep when tired, to awake after a long 
 sleep, to love and care for one's children, to commune 
 with others after a long, long solitude. It is a pleasure 
 to meditate, to analyze, to produce, to work with effect, 
 to assist others, to accumulate property. 
 
 In considering the nature and character of man, our 
 discourse has viewed his individuality, his distinct exist- 
 ence, and his sociality, the necessity imposed upon him to 
 associate. 
 
 The protracted state of the child's dependence upon 
 the parents produces habits of obedience, respect, and 
 love tor a more advanced period, a consciousness of mutual 
 dependence. The members of a family soon discover how
 
 LECTURE ON THE LAW. 153 
 
 much benefit they derive from reciprocal assistance and 
 from a division of occupation among them. Men were 
 induced to live in society, and, in a social state, were led 
 to further improvement and gradual progress to civili- 
 zation. With every progress in society and civilization 
 the family continues and increases its importance and 
 value. It is in the family, between parents and children 
 and brothers and sisters, that those strong sympathies and 
 deep-rooted affections grow up, which become the vital 
 spark of so many good actions, which are the medium 
 through which we view other and vaster spheres with 
 purer and intenser feelings, and which survive blasts of 
 later life that would chill most hearts into cold egotism. 
 With them is mingled, and a thousand fold entwined, all 
 that attachment which expands into patriotism ; that 
 warm devotion to our country which dwells in every noble 
 heart, and without which no free state can long exist. 
 To " fight for our hearths, for our country," goes through 
 all countries and centuries, and appeals to every soul. 
 " Cari simt parentes, carl liberi, carl propinqui, cari 
 familiarc'S ; omnes omnium caritates patria una com- 
 plexa est ; pro qua quis bonus dubitet mortem appetere, 
 si ei sitprofiturus" (Dear to us, beloved, are our parents, 
 children, friends, and intimate associates ; but the love of 
 our country embraces all other loves whatsoever, for which 
 no good man would hesitate to sacrifice his life, if by his 
 death he could render it any necessary service.) 
 
 The mutual attachment between members of the family, 
 depending on personal relations, first induced by ties of 
 consanguinity, on kindness and forbearance, on a degree 
 of disregard of one's own personal considerations, that 
 which renders the family so admirable, is love and con- 
 tinued forgetfulness of a separate individual interest. 
 
 The relation between man and man, leading to further 
 consideration, naturally conducts us to the relation be-
 
 154 LECTURE ON THE LAW. 
 
 tween man and things without him, to which allusion was 
 made in Kent's remark on the idea or sense of property. 
 We have seen that labor must be divided : that men stand 
 in constant need of each other ; that this division does not 
 prevent men from associating for a common purpose, but 
 carries with it what is indispensably connected with it, 
 union of labor or association of energy, leading to and in 
 fact constituting exchange, a peculiar and characteristic 
 tie of man. Lieber declares that there exists, as far as 
 he knows, no solitary instance of exchange among ani- 
 mals, no case of any exchange of labor or produce, of 
 which a certain degree exists among all men, the lowest 
 Hottentot or the most barbarous South Sea islander not 
 excepted. There is no human tribe known which has 
 not risen to this incipient state of all civilization. Even 
 the most brutish Pelew Islander willingly parts with the 
 fish which he has caught for a bar of iron. So common 
 an act of man is the exchange of articles and of labor. 
 
 Beside consanguinity and exchange, there exist between 
 man and man the relation of social intercourse and intel- 
 lectual relations, embracing ties which grow out of the 
 constant exchange of thoughts, feelings, taste, common 
 literature, arts, sciences, and national custom, and the 
 relation of right, upon which the state is founded. 
 
 What is right ? 
 
 Man has been shown to be a moral individual, yet 
 bound to live in society. He is a being with free agency, 
 freedom of action ; but as all his fellow-men with whom 
 he lives in contact are equally beings with free agency, 
 each making the same claim of freedom of action, there 
 results from it the law that the use of freedom by one 
 rational being must not contradict or counteract the use 
 of liberty by another rational being. This demand of 
 what is just, made by each upon each, is the relation of 
 ritrht.
 
 LECTURE ON THE LAW. 155 
 
 Right, then, being that which I claim as just, because 
 necessary to me as man, and granted by me to others, is 
 the condition of union, that by which man's individuality 
 and personality and his sociality can coexist. It applies 
 to the society of comity as well as to the state. 
 
 What then in particular are the rights on which the 
 state is built? A state is a society of individuals united 
 for a common purpose, and having common interests; 
 thus the inhabitants of a state constitute a society. In 
 a more enlarged sense, the whole family of man is the 
 human society. 
 
 The state is founded on those rights which are essen- 
 tial to all members and which can be enforced. It is then 
 that society which has to protect the free action of every 
 one, as its first basis ; and as other relations between man 
 and man imply action, each of these becomes likewise a 
 relation of right, either claiming to be enforced or to be 
 protected against infringement. The state speaks through 
 laws, laws which command and must be obeyed. The 
 idea of the just, and the action founded upon this idea, 
 called justice, form the foundation and great object of 
 the state. "Quid enim est civitas, nisi juris societas?" 
 
 The state is called a "jural society," denoting that it 
 has reference to the doctrine of rights and obligations. 
 The individual demands of the state that his right, his 
 jural relation to others, be maintained inviolate, and the 
 state demands that the individual shall not interfere with 
 the right of others ; in other words, shall not disturb their 
 jural relations. The individual being unable to obtain 
 the ends for which he was made, in a state of insulation, 
 but bound from his very nature to live in society, 
 it is matter of right that he obtain through and con- 
 jointly with society what he cannot obtain singly, and 
 what nevertheless is essential to his well-being as man. 
 The state, therefore, has the right and the duty to obtain
 
 156 LECTURE ON THE LAW. 
 
 all these ends by the combined energy of society for each 
 individual, and has a moral character and must main- 
 tain it. 
 
 It is thus seen that protection is the aim and object of 
 the state, and is but another word for justice, and in- 
 cludes: (1) individual security ; (2) social security, the 
 protection of society as such ; (3) the protection of each 
 member as a being who cannot obtain otherwise his great 
 ends of humanity. " Salus populi supremo, lex." The 
 state exists to procure or maintain th^ weal, welfare, hap- 
 piness, and prosperity of the people, and affords a means 
 to each individual to be truly man, all that he ought to 
 be. It is a form and faculty to lead mankind toward 
 perfection ; it is the glory of man. 
 
 The state speaks through laws, and laws must be 
 obeyed. The state exists by necessity, as effect and 
 consequence of our physical and intellectual nature. The 
 right of society to legislate that is, the right existing 
 somewhere of prescribing general and imperative rules 
 has, it is believed, never been doubted, any more than the 
 right of breathing in the individual ; both flow from the 
 same source, necessity, according to our nature. They 
 are conditions of our existence as human beings. We 
 might live as brutes, without the institution of the state; 
 but, for our existence as human beings, the state is an 
 absolute condition, a condition nine qua non ; and this 
 absolute necessity constitutes the ground on which is 
 founded what is called sovereignty, that is, the self-suffi- 
 cient power which derives its vital energy from no other, 
 is founded by no superior authority, but imparts it and 
 extends over everything that is requisite in order to ob- 
 tain the object of the state, which man has to obtain in 
 ami by society, in as far as it is founded on jural rela- 
 tions ; that is, 011 right, on terms of justice or mutual 
 obligations.
 
 LECTURE ON THE LAW. 157 
 
 The character of the state becomes more powerful with 
 every advanced stage of civilization. Its members do not 
 stand as mere individuals, brought together for the sole 
 purpose of protecting one another from bodily harm, or 
 for any selfish and temporary purpose. There are yet 
 more important objects to be obtained in the course of 
 civilization. Ignorance and barbarity, for instance, are 
 likewise to be warded off, because if not they will pro- 
 duce insecurity, and because knowledge and education are 
 necessary for man's civilization, and must be obtained by 
 society jointly if they cannot be obtained by individual 
 energy or voluntary association. 
 
 This leads to the following, perhaps a more formal 
 statement : " The state, according to its jural relations, 
 has for its legitimate objects all those things necessary 
 or highly important for man, which he nevertheless 
 (1) cannot obtain singly, (2) ought not to obtain singly 
 (because he exposes himself or his fellow-citizens to great 
 danger by doing so ; for instance, by redressing privately 
 interferences with his rights), and (3) will not do singly 
 (because burthensome, disagreeable ; for example, to keep 
 roads in good order, establish common schools, pay what 
 we owe)." 
 
 The state and the individual stand in jural relations to 
 each other ; reciprocity exists between them, and right, 
 all right is, in its very meaning, founded on reciprocity. 
 The moment that any particular state is actually to treat 
 me as merely existing for it, demanding only, and giving 
 nothing, or demanding without giving the equivalent, the 
 bond is dissolved, and the state does not any longer exist 
 for me, it is not my state. 
 
 Rights imply that he who has them can insist upon 
 them ; he ought to have the power to preserve and enforce. 
 His jural relations to the state obligations, rights, and 
 penalties must be judged of by laws : they cannot de-
 
 158 LECTURE ON THE LAW. 
 
 pend upon personal views and feelings and affections, and 
 lie in the indefinite in the breast of some one. Each mem- 
 ber of a state has a right to be judged by laws through 
 the courts. Frederick the Great, who was very anxious 
 to remove a windmill close before the " centre window of 
 his favorite palace at Potsdam," could not induce the 
 miller to sell it. The king, irritated, threatened the 
 owner to force him to consent. " There is a supreme 
 court in Berlin," answered the miller. The king was 
 silent, and the mill stands to this day, an annoyance to 
 the palace, but one of the best monuments which an abso- 
 lute monarch ever erected to himself, as an ambassador 
 wrote home from Potsdam. 
 
 The rights of persons in private life are either absolute 
 or relative. The absolute rights may be resolved into 
 the right of personal security, the right of personal lib- 
 erty, and the right to acquire and enjoy property. These 
 rights are natural, inherent, and inalienable, primordial. 
 The state, therefore, cannot take the life of the individual 
 for the benefit of others, because that would violate the 
 first of his rights, the right of living, without being able 
 to give him an equivalent, unless the state have acquired 
 a right over his life on the specific ground of his having 
 forfeited it. There can be no doubt as to the right in 
 the state to punish capitally for certain crimes. 
 
 Closely connected with the right of living and essential 
 to personal security is the claim of protection for the 
 body, limbs, and health. Many considerations of high 
 importance must give way if clashing with sanitary inter- 
 ests, the life and health of members of the community ; 
 every other right is to give way if under absolute neces- 
 sity to save one's own life. " Hccessitas nun habet leyem, 
 ju.x nvcexsitatis." (Necessity does not establish a right, 
 but annihilates responsibility.) 
 
 The United States of America, in their Declaration of
 
 LECTURE ON THE LAW. 159 
 
 Independence, set forth as self-evident truths the rights 
 of individual man, by the laws of nature and of nature's 
 God, to life, to liberty, to the pursuit of happiness ; that 
 all men are created equal ; that governments are insti- 
 tuted among men to secure these rights, and derive their 
 just powers from the consent of the governed. 
 
 Assuming this, there is no theoretical difficulty respect- 
 ing the subjects which require the action of the state or 
 not, and those which the state ought never to touch. But 
 in practice there is much difficulty. 
 
 Life is absolutely necessary for man, and if he cannot 
 possibly obtain medical assistance society is bound to 
 furnish it. Public hospitals are not a mere matter of 
 charity ; they are a matter of right. That they may be 
 abused, and easily abused, we know. 
 
 Again, if society be convinced that institutions of deep 
 learning, universities, are of absorbing importance to so- 
 ciety, because science must always be far in advance of 
 practice, and because the cultivation of the sciences for 
 their own sake, and not with a confined view of immedi- 
 ate practical application, raises the standard of knowledge 
 in general, and is a great blessing to a community ; and if 
 the state be convinced that private means must ever be 
 insufficient for the erection of a university, and the col- 
 lection of large libraries, museums, etc., then the state 
 has the same right and the same obligation to found 
 and aid such institutions as it has to aid in the founda- 
 tion of common schools or courts, hospitals or armies. 
 So it hath been held. If the Greeks thought that the 
 development of " taste " was essential to the whole de- 
 velopment of man, and that individual means were insuf- 
 ficient to effect the necessary cultivation of the fine arts, 
 the state was right in promoting them by public means. 
 
 Personal liberty is a condition of man's free agency 
 as a member of society ; as a being who has to obtain
 
 160 LECTURE ON THE LAW. 
 
 certain objects in society with others, he must be person- 
 ally free. There is no right more essential to him than 
 the right of property and the means wherewith he acquires 
 it ; that is, labor, skill, and exchange. It is his duty to 
 maintain himself and his family ; he has a fair share in 
 the means of support offered by nature and the various 
 ways of acquisition belonging to his nature. lie has a 
 primordial right to use his labor as he chooses, if he do 
 not thereby transgress the right of others, and the state 
 must neither disturb him in this lawful pursuit nor allow 
 others to disturb him. Exchange is one of the most 
 necessary and natural means of acquisition, founded in 
 the variety of soil, clime, genius of people, agents of na- 
 ture, etc., and one of the most effective means of civili- 
 zation, as already stated. It lies in the great order of 
 things. 
 
 The sense of property is inherent in the human breast. 
 Man was fitted and intended by the Author of his being 
 for society and government, and for the acquisition and 
 enjoyment of property. This is the law of his nature. 
 
 No ri"'ht calls for more modification and regulation by 
 
 o o */ 
 
 the state than that of acquisition of property ; it relates 
 more than any other right to the material world, and more 
 affects in its enjoyment the jural relations of others. 
 The legislation, therefore, of every country has necessarily 
 acted upon the subject. Xor has property been consid- 
 ered a right which could on no consideration be abolished 
 or remodeled. Other means of acquisition than by labor, 
 though not absolutely furnished by nature, have been 
 found excellent for the welfare of society, entirely de- 
 pendent on legislation : for instance, the law of inherit- 
 ance. 
 
 Everything in the state must be founded on justice, 
 and justice rests on generality and equality. The state, 
 therefore, has no right to promote the interest of one and
 
 LECTURE ON THE LAW. 161 
 
 not of the other. It promotes my interest if it assists in 
 getting my debts paid, but it is ready to do so for every- 
 body. It promotes private interest if it gives a pension to 
 the widow of a soldier, but it is on the ground that so- 
 ciety owes her a debt, or that it is good for society thus 
 to encourage soldiers. So if a state gives money to a 
 traveler into distant regions, or to study the fine and 
 useful arts and usages in foreign cities and lands, it gives 
 it because the public is believed to benefit by it, directly 
 or indirectly ; but the money is not given to the private 
 individual as such. Public gifts of this nature, pensions 
 and the like, have frequently been bestowed in a shame- 
 less manner, under a pretense of rewarding services for 
 some public good. Witness Somerset and Buckingham. 
 
 It is not easy to decide what is of sufficient general im- 
 portance to call for public action. The general principle 
 is, interfere as little as possible with the private affairs 
 of the individual. 
 
 The intermeddling of the state with private affairs 
 frequently springs from other motives than a wish to 
 serve the affairs of those intermeddled with. Individu- 
 als and private associations should be left to private exer- 
 cise of their industry as much as the public weal, comfort, 
 and morality will allow : but the state, through its public 
 authorities, has frequently means of obtaining more correct 
 and wider views, fuller and more detailed knowledge, in 
 short, official information, unattainable by the individual, 
 and can command the aid of better qualified persons ; so 
 that interference becomes just, because demanded by pub- 
 lic interest. Lieber, after this statement, says : " I do 
 not know that what is lawful for the state to do, and how 
 it ought to be done, has ever been more lucidly expressed 
 than in the following passage: ' Erit lex honesta, justa, 
 possibilis, secundum naturam, secundum consuetudinem 
 patruti, loco temporique conveniens, nccessaria, utilis, 
 11
 
 1C2 LECTURE ON THE LAW. 
 
 manifesto, quoqi/c, c aliquid per obscuritatem in capti- 
 one contincat, mdlo private commode), sed pro communi 
 'titilitatr civiiim 
 
 Man cannot be man without communion, utterance, be 
 this by sound or sign, and be this sign transitory (as the 
 sign made by the deaf and dumb) or enduring (by writ- 
 ing) ; our whole existence as human beings depends upon 
 it. We cannot imagine a human society consisting of 
 beings deaf, dumb, and blind. 
 
 Mankind could never have advanced had not members 
 of the existing generations held free converse among 
 themselves, and had not, in the course of time, one 
 generation learned to commune with the next, or people 
 separated by space to exchange their ideas. The more 
 the earth became peopled, the more the stage of action, 
 knowledge, and intercourse became extended ; and the 
 more the collection of facts and reasoning required 
 communications too extensive for mere oral converse, the 
 more writing became necessary, and the knowledge of 
 what has been written became indispensable. Writing is 
 nothing but utterance and converse. Without it, man 
 would never have shaken off the thralldom of distort- 
 ing tradition : knowledge could not have accumulated 
 in any high degree ; it could not have descended by way 
 of inheritance from one to the other. Interference with 
 writing is, therefore, interfering with thought. No au- 
 thority, man, or body lias a right to disturb a man's com- 
 munion with his fellow-men by whatever means of utter- 
 ance he chooses, if no right of others is infringed. 
 
 .But though the right of utterance is primordial, indis- 
 putable, it yet may be regulated or suspended. Military 
 circumstances may justify or give a right to a commander 
 of troops to declare that a single word uttered should be 
 instantly punished with death. It is done not unfrequently.
 
 LECTURE ON THE LAW. 163 
 
 The Dutch Colonel Haraugiere, in 1590, hid himself 
 with his seventy men on board the peat vessel, to be 
 dragged into the fortress of Breda, occupied by the 
 Spaniards, and exercised the right to make the order. 
 The same order, it is said, was given by General Wayne 
 when he inarched to capture Stony Point in 1779. So 
 may utterance by writing be suspended or limited. But 
 these are exceptions. 
 
 Nothing is more certain than that we are not intended 
 solely for ourselves. Our happiness, nay, our whole ex- 
 istence as human beings, as already stated, depends upon 
 communion, converse, social intercourse. 
 
 Cicero, who knew so well how to illustrate law by 
 philosophy, says : " If we could suppose ourselves trans- 
 ported by some divinity into a solitude replete with all 
 the delicacies which the heart of man could desire, but 
 excluded at the same time from every possible inter- 
 course with our kind, there is not a person in the world 
 of so unsocial and savage a temper as to be capable, in 
 those forlorn circumstances, of any enjoyment." Nothing, 
 he continues, is more true than what the philosopher 
 Archytas is reported to have said. If a man were to 
 be carried up into heaven and see the beauties of uni- 
 versal nature displayed before him, he would receive but 
 little pleasure from the wonderful scenes, unless there 
 were some person to whom he could relate the glories 
 which he had viewed. Man, like those plants which are 
 formed to embrace others, is led by an instinctive impulse 
 to recline on those of his own kind. Pope, our philo- 
 sophic poet, thus briefly says : 
 
 " Man, like the gen'rous vine, supported lives ; 
 The strength he gains is from the embrace he gives." 
 
 Man, the individual, has the right to move where he 
 pleases. The right of personal liberty, as well as of ex- 
 change, would already sufficiently warrant this right, the
 
 164 LECTURE ON THE LAW. 
 
 right of emigration, of expatriation. " Next to my life 
 is the place where I live, where I exchange my labor, 
 the most important to me of all my rights which touch 
 the physical world." Special circumstances may limit 
 this right, as that of utterance, but it can only be by way 
 of exception, notwithstanding all that has been said to the 
 contrary on the ground of natural allegiance. It must 
 be one of the first of all rights of a free being to choose 
 that place and that society where he thinks he may best 
 obtain his individual objects. 
 
 Man, it is repeated, has far nobler objects than merely 
 good living ; before all, he must obtain the common com- 
 forts of life for himself and family, as the basis of higher 
 things. If over-population or over-taxation grind down a 
 man so that he can hardly obtain food for his family, 
 still less elevate them morally and intellectually, and he 
 has an opportunity to remove to an unoccupied virgin soil, 
 which, like a kindly friend, renders readily to every ex- 
 ertion with ungrudging abundance ; should such a man 
 linger out a life of wretchedness and bring up his chil- 
 dren in sloth and ignorance, that is, prepare and tit 
 them for vice, perhaps for crime, merely because some 
 suppose it unpoetical to leave the native soil for a better 
 one, and to toil hard to become independent, a worthy, 
 noble object to every man ? " There is poetry in the 
 emigrant who goes, with nothing but a willing arm and 
 his plough, a conqueror, to the West." 
 
 It is the order of things to emigrate. No nation was 
 more given to emigration than the ancient Greeks, who 
 thereby conferred incalculable advantages upon mankind. 
 Yet who loved their country more? 
 
 If a man has a right to emigrate, he has likewise the 
 right of expatriation ; for man ought to be a citi/en ac- 
 cording to his destiny. It is plain, says Mr. Locke, by 
 the law of right reason, that a child is born a subject of
 
 LECTURE ON THE LAW. 165 
 
 no country or government. He is under his father's 
 tuition and authority until he comes to the age of dis- 
 cretion, and then he is a freeman, at liberty to choose 
 what government he will put himself under, what body 
 politic he will unite himself to. 
 
 " O glorious regulations ! originally established by 
 our ancestors of Roman name," said Tully, " that no one 
 of us should be obliged to more than one society ; that 
 no one, contrary to his inclination, should be deprived of 
 his right of citizenship : and that no one, contrary to his 
 inclination, should be obliged to continue in that relation. 
 The power of retaining and of renouncing our rights of 
 citizenship is the most stable foundation of our liberties." 
 
 In civil society previously to the institution of civil 
 government, all men are equal. From one source the 
 whole human race has sprung. 
 
 When it is said, " all men are equal," it is not meant 
 to apply this equality to their virtues, their talents, 
 their dispositions, or their acquirements. In all these 
 respects there is, and it is fit for the great purposes of 
 society that there should be, great inequality among men. 
 In the moral and political as well as in the natural world, 
 diversity forms a part, an important part, of beauty and 
 utility. How spiritless, how dull, would man, would hu- 
 man life and manners be without the beautiful variety of 
 colors reflected upon them by different tastes, different 
 tempers, and different characters ! 
 
 Men are formed mutually to afford and to stand in 
 need of service and assistance. The social happiness 
 arising from the intercourse of good offices could not 
 otherwise be enjoyed. Hence the necessity of great 
 variety and of great inequality in the talents of men, 
 bodily as mental. 1 
 
 1 " Had it been the intention of Providence that some men should 
 govern the rest without their consent, we should have seen as indis-
 
 166 LECTURE ON THE LAW. 
 
 Observe the varieties of human genius, human disposi- 
 tions, and human characters ! One man has a turn for 
 mechanics, another for architecture : one paints, another 
 writes poems ; this excels in the arts of a military, the 
 other in those of a civil life. It is difficult, perhaps 
 impossible, to account for these varieties of taste and 
 character. But their final course, the intention of Prov- 
 idence, we can see and admire. They induce different 
 persons to choose different professions and employments 
 in life. These render mankind equally beneficial to each 
 other, and prevent too violent oppositions in the same 
 pursuit. Hence we enjoy a variety of conveniences ; the 
 numerous arts and sciences have been invented and im- 
 proved, the sources of commerce and intercourse between 
 different nations have been opened, the circulation of 
 truth has been quickened and promoted, and the opera- 
 tions of social virtues have been multiplied and enlarged. 
 
 Pope, in his "Essay on Man/' philosophically ob- 
 serves : 
 
 " Heaven forming each on other to depend 
 Bids each on other for assistance call, 
 Till one man's weakness grows the strength of all. 
 Wants, frailties, passions, closer still ally 
 The common interest, or endear the tie ; 
 To these we owe true friendship, love sincere, 
 Each home-felt joy that life inherits here." 
 
 But, however great the variety and inequality of men 
 may be with regard to virtue, talents, taste, and acquire- 
 
 putable marks distinguishing these superiors from (hose placed 
 under them as those which distinguish men from the brutes. The 
 remark of Rumbald, in the non-resistance time of Charles II., 
 evinced propriety as well as wit. He could not conceive that 
 the Almighty intended that the greatest part of mankind should 
 conic into the world with saddles on their backs and bridles in their 
 mouths, and that a few should come ready booted and spurred to 
 ride the rest to death." Wtfxon'x Work*, vol. i.
 
 LECTURE ON THE LAW. 167 
 
 ments, there is still one aspect in which all men in 
 society, previous to civil governments, are equal. With 
 regard to all, there is an equality in rights and in obliga- 
 tions, there is that jus cequum, that equal law in which 
 the Romans placed true freedom. The natural rights 
 and duties of man belong equally to all. Each forms 
 a part of that great system whose greatest interest and 
 happiness are intended by all the laws of God and na- 
 ture. Pie has, therefore, a right to exercise his powers 
 in such a manner and upon such objects as his inclination 
 and judgment shall direct, provided he does no injury 
 to others and more public interests do not demand his 
 labors. 
 
 This right is natural liberty, suggested to us by the 
 selfish part of our constitution, by our generous affections, 
 and by our moral sense. States which manage best their 
 affairs will offer the strongest inducements to their own 
 citizens to remain, and to others to incorporate among 
 them. It is both inhuman and unjust to convert the state 
 into a prison for its citizens by preventing them from 
 leaving it on a prospect of advantages to themselves. 
 
 The important question is then to be considered : Has 
 a citizen a right to dissolve the connection, the tie between 
 him and his country, and renounce his allegiance ? 
 
 The notion of natural, perpetual, and unalienable al- 
 legiance from the citizen to the society, to the state, or to 
 the king or head of the society of which he was born a 
 member, has been frequently and gravely discussed by 
 philosophic writers. Kent declares : " In American juris- 
 prudence, the better opinion would seem to be that a 
 citizen cannot renounce his allegiance to the United 
 States without the permission of government to be 
 declared by law, and that, as there is no existing legisla- 
 tion on the case, the rule of the English common law 
 remains unaltered.''
 
 108 LECTURE ON THE LAW. 
 
 The old English jurists speak of a law of nature 
 above Parliament, according to which the indissoluble 
 tie between subject and liege lord or lady exists, so that 
 outlawry could not even affect the tie. A man cannot 
 abjure his native country nor the allegiance which he 
 owes his sovereign. 
 
 Every citizen, it is said, as soon as he is born, is under 
 the protection of the state, and is entitled to all the 
 advantages arising from that protection. He thei'efore 
 owes obedience to that power from which the protection 
 that he enjoys is derived. While he continues in infancy 
 and nonage he cannot perform the full duties of obedience. 
 The performance of them must be respited till he arrives 
 at the years of discretion and maturity. When he arrives 
 at those years, he owes obedience not only for the protec- 
 tion which he then enjoys, but also for that which from 
 his birth he has enjoyed. Obedience now becomes a duty 
 founded on principles of gratitude as well as of interest ; 
 it now becomes a debt which nothing but the performance 
 of the duties of citizenship during a whole life will dis- 
 charge. 
 
 Blackstone says : " Natural allegiance is therefore a 
 debt of gratitude which cannot be forfeited, canceled, or 
 altered by any change of time, place, or circumstance, nor 
 by anything but the united concurrence of the legisla- 
 ture." 
 
 Refraining from unnecessary criticism, it is just to state 
 that Blackstone finally acknowledges (vol. i. p. 24) : " It 
 is found by experience that whenever the unconstitutional 
 oppressions, even of the sovereign, advance with gigantic 
 strides and threaten desolation to a state, mankind will 
 not be reasoned out of the feelings of humanity, nor will 
 sacrifice their liberty by a scrupulous adherence to those 
 political maxims which were originally established to 
 preserve it. . . . Law and history leave it to future gen-
 
 LECTURE ON THE LAW. 169 
 
 erations whenever necessity and the safety of the whole 
 shall require it, the exertion of these inherent though 
 latent powers of society, which no climate, no constitution, 
 no time, no contract, can ever destroy or diminish." 
 
 How then can allegiance be a natural, perpetual, 
 unalienable tie and duty from the citizen to the state? 
 We are told, " It became a debt of gratitude." A debt 
 of gratitude ! What for ? " That protection which the 
 country or sovereign affords him." Protection! Suppose 
 the sovereign strives to undermine the laws made for his 
 protection ; refuses to enforce those which are essential to 
 the enjoyment of his personal rights to liberty, the acqui- 
 sition and possession of property, the equal right to free- 
 dom of labor, to security and the pursuit of happiness, 
 and to just and free government. Suppose the sovereign 
 assumes power absolute and direct, and strives by unequal 
 taxation and grinding exactions, 'by harsh monopolies and 
 other grants of privileges, to defeat and destroy the just 
 objects of the state. 
 
 Suppose the citizen, under these circumstances, feels no 
 gratitude, and is right in not feeling it, because nothing 
 has been bestowed upon him to be thankful for ! 
 
 No one now will be so hardy as to maintain that sub- 
 jects must submit without resistance to a Ileliogabalus. 
 The allegiance of the French, who have sworn it within 
 the last hundred years, has been to ever so many persons 
 and governments. Nature binds us by a kind of instinct 
 to the place where we received our first breath, but often 
 some causes weaken or destroy this impression. The 
 injustice or severity of the government may efface it. 
 ' The deep-rooted feeling of every true heart toward the 
 nation to which we belong by blood would," writes Lieber, 
 " have afforded a far better foundation for national alle- 
 giance than a feeble one of gratitude ; love to the country 
 of our birth in many instances outlives our gratitude."
 
 170 LECTURE ON THE LAW. 
 
 The meanest factory-boy in Manchester may still feel 
 attached to England, but it would be very difficult to 
 point out what reason he has for gratitude. Is he not 
 quit with the state as to gratitude every evening after 
 an unrequited day of overwhelming labor ? 
 
 Who is bound to be grateful, the state, or the poor 
 man who has always lived by his work, paid heavy taxes, 
 and is finally pressed into sea service where he is crip- 
 pled ? All nations allow the state to force him to expose 
 his life. 
 
 Colonization here presents itself for consideration, but 
 before entering immediately upon it we desire to refer 
 anew to obedience and the power of the state in its jural 
 relation. We have seen that commanding and obeying 
 are the two foundations of all human society ; that society 
 without laws would lose its moral character, and there- 
 fore man's destiny requires obedience to laws. To make, 
 acknowledge, and obey laws is one of the high preroga- 
 tives as well as duties of man among all the animate 
 beings of the visible creation. 
 
 " Stranger, tell the Lacedaemonians that we lie here in 
 obedience to their laws." This was the simple inscrip- 
 tion to commemorate the heroic and conscious devotion of 
 the faithful band of L/eonidas at Thermopylae, and in 
 which a nation of peculiar sagacity and promptitude of 
 mind as well as ardor of soul for liberty, a nation with 
 whom " freedom was what the sun is, the most brilliant 
 and most useful object of creation, a passion, an instinct, 
 thought to express the highest acknowledgment of a deed 
 which every Greek remembered with national pride. It 
 was the true expression of the public spirit. Of all 
 that was noble and great in this patriotic act, the noblest 
 and greatest seemed to them that the gallant citizens had 
 been obedient to the laws and their country, even unto 
 death.''
 
 LECTURE ON THE LAW. 171 
 
 The state must have power and authority for its govern- 
 ment. Justice requires that every man shall have his 
 due, and this cannot be accomplished without high au- 
 thority and power to sustain the authority. The state 
 through its government must protect every citizen against 
 any violation of his rights by wrong-doers or enemies, 
 must maintain its character as a society of right, and one 
 of the main objects of the si;ate is to obtain jointly that 
 which is necessary for society, and cannot be obtained by 
 individual exertion. 
 
 Public power is founded upon confidence reposed in 
 him who has finalby to carry out the law. However care- 
 fully limited and definite, the power granted may be 
 abused. There exists likewise an intense desire to exer- 
 cise, practice, and apply it. It is its very nature, and 
 without it the world would be at a stand. 
 
 Our discourse will here proceed to the subject of colo- 
 nization. A number of states or societies may associate 
 or confederate together for their mutual security and ad- 
 vantage. In some respects such confederacies are to be 
 considered as forming only one nation ; in other respects 
 they are to lie considered as still retaining their separate 
 political capacities, characters, rights, and powers. The 
 word "colony," in Latin colonia, is derived from the verb 
 co/o, col ere. to till or cultivate the ground. 
 
 The formation of colonies is among the oldest events in 
 history. Maritime states, such as those of Phoenicia and 
 of Greece, which possessed only a scanty territory, would 
 have recourse to emigration as their population increased. 
 Commercial enterprise seems to have led both to maritime 
 discovery and to colonization. 
 
 All the different states of ancient Greece possessed, 
 each of them, but a very small territory : and when the 
 people in any one of them multiplied beyond what that
 
 172 LECTURE ON THE LAW. 
 
 territory could easily maintain, a part of them were 
 sent in quest of a new habitation in some remote and 
 distant part of the world, the warlike neighbors who sur- 
 rounded them on all sides rendering it difficult for any 
 of them to enlarge its territory at home. The mother city 
 (state), though she considered the colony as a child, at all 
 times entitled to great favor and assistance, and owing in 
 return much gratitude and respect, yet considered it as 
 an emancipated child, over whom she pretended to claim 
 no direct authority or jurisdiction. The colony settled 
 its own form of government, enacted its own laws, elected 
 its own magistrates, and made peace or war with its 
 neighbors as an independent state, which had no occasion 
 to wait for the approbation or consent of the mother 
 city. 
 
 Rome, like most of the ancient republics, was originally 
 founded upon an agrarian law, which divided the public 
 territory in a certain proportion among the different citi- 
 zens who composed the state. The course of human 
 affairs, by marriage, by succession, and by alienation, 
 necessarily deranged this original division, and frequently 
 threw the lands which had been allotted for the main- 
 tenance of many different families iuto the possession of 
 a single person. To remedy this disorder, for such it 
 was supposed to be. a law was made restricting the quan- 
 tity of land which any citizen could possess to five hun- 
 dred jn(j<'i'(i. about three hundred and fifty acres. The 
 law, however, though we read of its having been executed 
 upon one or two occasions, was either neglected or evaded, 
 and the inequality of fortunes went on continually in- 
 creasing. The greater part of the citizens had no land ; 
 and, without it, the manners and customs of those times 
 rendered it difficult for a freeman to maintain his inde- 
 pendence. .Among the ancient Romans, the lands of the 
 rich were all cultivated by slaves, who wrought under an
 
 LECTURE ON THE LAW. 173 
 
 overseer, who was likewise a slave ; so that a poor free- 
 man had little chance of being employed either as a 
 farmer or as a laborer. All trades and manufactures too, 
 even the retail trade, were carried on by the slaves of the 
 rich for the benefit of their masters, whose wealth, author- 
 ity, and protection made it difficult for a poor freeman to 
 maintain the competition against them. The citizens, 
 therefore, who had no land had scarce any other means 
 of subsistence but the bounties of the candidates at the 
 annual elections. The tribunes, when they had a mind 
 to animate the people against the rich and the great, put 
 them in mind of the ancient division of land, and repre- 
 sented that law which restricted this sort of private prop- 
 erty as the fundamental law of the republic. The people 
 became clamorous to get land, and the rich and the great 
 were determined not to give them any part of theirs. To 
 satisfy them in some measure, therefore, they frequently 
 proposed to send out a new colony. 
 
 But Koine, Victi'ix Roma, in her career of conquest, was 
 not, even upon such occasions, under a necessity of forcing- 
 out her citizens to seek their fortune through the wide 
 world, without knowing where they were to settle. She 
 assigned them lands, generally in the conquered lands of 
 Italy, where, being within the dominion of the republic, 
 they could never form an independent state, but were at 
 best a sort of corporation, which, though it had the power 
 of enacting by-laws for its government, was at all times 
 subject to the correction, jurisdiction, and legislative au- 
 thority of the mother city. The sending out a colony of 
 this kind gave some satisfaction to the people, and often 
 established a sort of garrison in a newly-conquered prov- 
 ince, the obedience of which might otherwise have been 
 doubtful. 
 
 A Roman colony, therefore, whether we consider the 
 nature of the establishment itself or the motives for rnak-
 
 174 LECTURE ON THE LAW. 
 
 ing it, was altogether different from a Greek one. Both 
 institutions, however, derived their origin either from 
 necessity or from clear and evident utility. 
 
 The establishment of the European colonies in Amer- 
 ica and the West Indies arose from no necessity : and its 
 utility was not perhaps then well understood. 
 
 When Columbus returned from his first voyage of 
 discovery, and was introduced, as we are told, with a sort 
 of triumphal honor to the sovereigns of Castile and 
 Aragon, St. Domingo was represented as a country 
 abounding with gold, and an inexhaustible source of real 
 wealth to the crown and kingdom of Spain. The council 
 of Castile determined to take possession of countries of 
 which the inhabitants were plainly incapable of defending 
 themselves. The pious purpose of converting them to 
 Christianity sanctified the injustice of the project. But 
 the hope of finding treasure of gold there was the sole 
 motive which prompted to undertake it ; and to give the 
 motive the greater weight, it was proposed that half of 
 all the gold and silver that should be found there should 
 be given to the Crown. This proposal was approved by 
 the council. The other enterprises of the Spaniards in 
 the New World, subsequent to those of Columbus, seem 
 to have been prompted by the same motive. 
 
 It was the sacred thirst of gold, diiri sacra fames. The 
 same avidity, the same passion, which has suggested to so 
 many people the absurd idea of the philosopher's stone, 
 has suggested to others the equally absurd one of im- 
 mense rich mines of gold and silver. The dream of 
 Sir Walter Raleigh concerning the golden city and coun- 
 try of Eldorado may satisfy us that even wise men are 
 not always exempt from such strange delusions. Every 
 Spaniard who sailed to America expected to find an El- 
 dorado. The first adventurers of all the other nations of 
 Europe, who attempted to make settlements in America, 
 were animated by the like chimerical views.
 
 LECTURE ON THE LAW. 175 
 
 The colony of a civilized nation, which takes possession 
 of a waste country, advances more rapidly to wealth and 
 greatness than any other human society. It carries out 
 with it a knowledge of agriculture and other useful arts, 
 the habit of subordination, and some notion of govern- 
 ment and the administration of justice and law in the 
 mother country, and usually establishes something of the 
 same kind in the new settlement. 
 
 The progress of many of the ancient Greek colonies 
 seems to have been very rapid, but the progress of the 
 Roman colonies seems never to have been very rapid. 
 They were established in conquered provinces fully in- 
 habited before, and allowed to manage their own affairs 
 in the way that they judged most suitable to their own 
 interest. 
 
 In the plenty of good land, the European colonies 
 established in America and the West Indies resemble, 
 and even greatly surpass, those of ancient Greece. In 
 their dependency on the mother state they resemble those 
 of ancient Rome. But their great distance from Europe 
 alleviated more or less the effects of this dependency. 
 Their situation placed them less in the view and less in 
 the power of their mother country. 1 
 
 These remarks on colonies, true in themselves, contain 
 no reference to any special instance of colonial establish- 
 ment, progress, and history. 
 
 In 1820 the Pilgrim Society of Massachusetts was 
 formed, " to commemorate the landing and to honor the 
 
 J O 
 
 memory of the men who first set foot on Plymouth Rock," 
 and Mr. Webster was invited to deliver a discourse on 
 the " 22d of December, the close of the second century of 
 the Fathers." 
 
 The discourse delivered by him in pursuance of the 
 invitation stated the causes and the motives which in- 
 1 Adam Smith, Wealth of Nations.
 
 17G LECTURE ON THE LAW. 
 
 duced the first settlers of Plymouth to relinquish their 
 native country, and to seek an asylum in an unexplored 
 land, with a tribute to the memory of the Puritans, and a 
 touching picture of their sufferings on both sides of the 
 water ; the progress of New England during the century 
 which had then elapsed, with some wise and profound 
 observations on the principles iipon which society and 
 government are established in this country. It was an 
 eloquent and noble disquisition of the illustrious Ameri- 
 can. 
 
 Edward Everett declared, u The occasion of the address 
 attracted attention more immediately to the New England 
 colonies than to other English colonies then established." 
 True, But it filled the heart and mind of America, and 
 commanded the respect and admiration of every enlight- 
 ened advocate of liberty ; it embraced the whole body of 
 the republic, totnm corpus rtipvltliccv, inculcated good 
 faith to all nations, obedience of men to the Creator and 
 liuler of the Universe, leading us progressively from in- 
 dividual to social man, from society to colonies, from 
 colonies to independent states, thence to associated and 
 confederated states, and to states wisely and gloriously 
 united to form one country, one national constitution and 
 government, the imperial Republic of the United States 
 of America, H Plurihux Unum,on& formed from many, 
 to secure liberty and establish justice. 
 
 England had once acquired undisputed control over 
 the Indian tribes, still tenanting the forests unexplored 
 by the European man. She had established an uneon- 
 tested monopoly of the commerce of all her colonies. 
 But forgetting all the warnings of preceding ages, for- 
 pvtthi"' the lessons written in the blood of her own 
 
 O ""> 
 
 children through centuries of departed time, she under- 
 took to tax the people of the colonies without their con-
 
 LECTURE ON THE LAW. 177 
 
 sent, and had claimed the right to do so, and to bind them 
 by her statutes in all cases. 
 
 Resistance, instantaneous, unconcerted, sympathetic 
 resistance, like an electric shock, startled and roused the 
 people of all the English colonies on this continent. 
 
 This was the signal, the first signal, of the North 
 American Union. The struggle was for chartered rights, 
 for liberties, English liberties, for the cause of Sidney 
 and Ilampden, for trial by jury, for the habeas corpus 
 and Magna Charta. But the English lawyers had de- 
 cided that Parliament was omnipotent, and Parliament in 
 its omnipotence, instead of trial by jury and the habeas 
 corpus, enacted admiralty courts in England to try Amer- 
 icans for offenses charged against them as committed in 
 America ; and, instead of the privileges of Magna Charta, 
 nullified the charter of Massachusetts Bay, shut up the 
 port of Boston, sent armies and navies to keep the peace 
 and teach the colonies that Hampden was a rebel and 
 Algernon Sidney a traitor. 
 
 English liberties had failed them. From the omnipo- 
 tence of Parliament the colonists appealed to the rights 
 of man and the omnipotence of the God of battles. 
 '"Union! Union!'* was the instinctive and simultaneous 
 cry throughout the land. Their Congress, assembled at 
 Philadelphia, once, twice, had petitioned the king, had 
 remonstrated to Parliament, had addressed the people of 
 Britain for the rights of Englishmen in vain. Fleets 
 and armies, the blood of Lexington, and the fires of 
 Charlestown and Faluiouth had been the answer to peti- 
 tion, remonstrance, and address. 
 
 Independence was declared. The colonies were trans- 
 formed into states. Their inhabitants were proclaimed to 
 be one people, renouncing all allegiance to the British 
 Crown, all co-patriotism with the British nation, all claim 
 to chartered rights as Englishmen. Thenceforth their 
 1-2
 
 178 LECTURE OX THE LAW. 
 
 charter was the Declaration of Independence, their rights 
 the rights of mankind, their government such as should 
 be instituted by themselves under the mutual pledges of 
 perpetual union, founded on the self-evident truths pro- 
 claimed in the Declaration. 
 
 The Declaration of Independence was issued in a civil 
 war which raged with fury six years. It was a manifesto 
 to the world of mankind to justify the one confederated 
 people for the violent severance of the ties of their alle- 
 giance, for the renunciation of their country, and for as- 
 suming a station themselves among the potentates of the 
 world, a self-constituted sovereign, a self-constituted 
 country. 
 
 The attempt of England to monopolize the trade of the 
 colonies, and the continued effort on the part of the col- 
 onies to resist or evade that monopoly, demand further 
 exposure. The English Act of Navigation was passed in 
 1660. Its first and grand object seems to have been to 
 secure to England the whole trade with her plantations : 
 none but English ships shotdd transport American prod- 
 uce over the ocean, to be sold only in the markets of the 
 mother country. It is unnecessary to detail other acts 
 or laws, passed subsequently in a like spirit to make the 
 interest of the whole people of the colonies subordinate 
 to, and for the exclusive advantage of, another people. 
 
 The association of the American people into one body 
 politic took place while they were colonies of the British 
 Empire and owed allegiance to the British Crown. That 
 the union of this country was essential to its safety, its 
 prosperity, and its greatness had been generally known 
 and frequently avowed long before the Revolution or 
 the claims of the British Parliament. As early as 1643, 
 a league, offensive and defensive, distinguished by the 
 name of the United Colonies of New England, was 
 entered into, and subsisted, with some alterations, for
 
 LECTURE ON THE LAW. 179 
 
 upwards of forty years, and part of that time with the 
 countenance of the government in England. It was not 
 dissolved until 1686, when the charters of the New Eng- 
 land colonies were in effect vacated by a commission 
 from King- James II. The people of this country con- 
 tinued to afford other precedents of association for their 
 safety. 
 
 Passing at once to the interesting Congress held at Al- 
 bany, in the year 1754, of governors and commission- 
 ers from other colonies as well as from New England, to 
 consider the best means of defending America in case 
 of war with France, which was then impending, we find 
 that the object of the English administration in calling 
 this convention was in reference to friendly treaties with 
 the Indian tribes. But the colonies had more enlarged 
 views. One of the colonies, Massachusetts, expressly 
 instructed her delegates to enter into articles of union 
 and confederation with the other colonies, for their gen- 
 eral security in peace as in war. The convention unani- 
 mously resolved " that a union of the colonies was abso- 
 lutely necessary for their preservation." They rejected 
 all proposals for a division of the colonies into sepa- 
 rate confederacies, and proposed " a plan of federal gov- 
 ernment." But this bold project of a continental union 
 had the singular fate of being rejected, not only on the 
 part of the Crown, but by every provincial Assembly. 
 We were destined to remain for some years longer sep- 
 arate, and in a considerable degree alien commonwealths, 
 emulous of each other in obedience to the parent state 
 and in devotion to her interests, but jealous of each 
 other's interest. So strong was this, and so exasperated 
 were the people of the colonies in their disputes with each 
 other concerning boundaries and charter claims, that 
 Franklin (one of the commissioners to the Congress that 
 formed the plan of union in 1754) observed, in the year
 
 180 LECTURE ON THE LAW. 
 
 1760, u that a union of the colonies against the mother 
 country was absolutely impossible, or at least without 
 being forced by the most grievous tyranny and oppres- 
 sion." 
 
 The great value of a federal union of the colonies 
 had, however, sunk deeply into the minds of men. The 
 necessity of union had been felt, its advantages perceived, 
 its principles explained, the way to it pointed out, and the 
 people of this country were led, by the force of irresistible 
 motives, to resort to union, the same means of defense and 
 security, when they considered that their liberties were in 
 danger, not from the harassing and irregular warfare of 
 the Indian tribes, but from the formidable claims and 
 still more formidable power of the parent state. 
 
 The assertion by the British Parliament of an unquali- 
 fied right of binding the colonies in all cases whatsoever, 
 and specifically of the right of taxing them without their 
 consent, and the denial by the colonies of the right of 
 taxation without representation, and the attempt of the 
 king and Parliament to enforce it by the power of the 
 sword, were the immediate causes of the American Kevo- 
 lution. 
 
 An extensive and general association of the colonies 
 took place in September, 1774, and united to send dele- 
 gates to Philadelphia, " with authority and direction to 
 meet and consult together for the common welfare/ In 
 pursuance of their authority, this first Continental Con- 
 gress took into consideration the afflicted state of their 
 country : asserted by resolutions what they deemed the 
 unalienable rights of English freemen : pointed out to 
 their constituents the system of violence which was pre- 
 paring against those rights ; and urged them by the most 
 sacred of all ties, the ties of honor and of their country, 
 to renounce commerce with Great Britain, as being the 
 most salutary way to defeat the one and to secure the other.
 
 LECTURE ON THE LAW. 181 
 
 These resolutions received prompt and universal obe- 
 dience, and " the union thus auspiciously formed was 
 continued by a succession of delegates in Congress, and 
 through every period of the war and 'through every revo- 
 lution has been cherished as the solid foundation of na- 
 tional independence." 
 
 In May, 1775, a Congress again assembled at Philadel- 
 phia, and was clothed with ample discretionary powers. 
 The delegates were chosen, as those of the preceding 
 Congress had been, partly by the popular branch of the 
 colonial legislatures when in session, but principally by 
 conventions of the people in the several colonies. They 
 were instructed to " concert, agree upon, direct, order, 
 and prosecute " such measures as they should deem most 
 fit and proper to obtain redress of American grievances ; 
 or, in more general terms, they were to take care of the 
 liberties of the country. Soon after this meeting, Georgia 
 acceded to and completed the confederacy of the thir- 
 teen colonies. Hostilities had already commenced in 
 Massachusetts, and the claim of the British Parliament to 
 an unconditional and unlimited sovereignty over the colo- 
 nies was to be asserted by an appeal to arms. The Con- 
 tinental Congress, entrusted with the power and sustained 
 by the zeal and confidence of their constituents, prepared 
 for resistance. They proceeded immediately to levy and 
 organize an army, prescribed rules for the government of 
 their land and naval forces, contracted debts, emitted a 
 paper currency upon the faith of the union, and gradually 
 assuming all the powers of national sovereignty, at last, 
 on the fourth day of July, 1776, took a separate and equal 
 station among the nations of the earth, declaring the 
 united colonies to be free and independent states. 
 
 It was thought expedient for security and duration to 
 define with precision, and by a formal instrument, the 
 nature of our compact, the powers of Congress, the 
 residuary sovereignty of the states.
 
 182 LECTUKK OX THE LAW. 
 
 On the llth of June, 1776, Congress undertook to di- 
 gest and prepare Articles of Confederation, but it was not 
 until the 15th of November, 1777, that Congress could 
 so far unite the discordant interests and prejudices of 
 thirteen distinct communities to agree to the Articles 
 of Confederation, and the articles submitted were declared 
 to be " the result of impending necessity and of a disposi- 
 tion for conciliation as the best system which could afford 
 any tolerable prospect of general assent." 
 
 These Articles met great obstacles in their progress 
 through the States. Most of the legislatures ratified 
 them with a promptitude which showed their sense of 
 the necessity of the confederacy and of the indulgence of 
 a liberal spirit of accommodation. But Delaware did not 
 accede to them until the year 1779, and Maryland at first 
 rejected them, but assented to them on the 1st of March, 
 1781, upwards of three years from their first promulga- 
 tion : and thus the Articles of Confederation received 
 the unanimous approbation of the United States. 
 
 The government of the Union is considered to have 
 
 O 
 
 been revolutionary in its nature from its first institution 
 by the people of the colonies, in 1774, down to the final 
 ratification of the Articles of Confederation, in 1781, 
 and to have possessed powers adequate to every national 
 emergency, and coextensive with the object to be attained. 
 Kent says of the Articles of Confederation that they were 
 in fact but a digest, and even limitation, of the sovereign 
 powers, undefined, but delegated bv the people of the 
 colonies to Congress in 177>, and freely exercised and 
 implicitly obeyed. 
 
 In the enthusiasm of their first union they had flattered 
 themselves that no general government would be required. 
 As separate states they were all agreed that they should 
 constitute and govern themselves. The progress of the 
 British arms excited apprehension for our safety. The
 
 LECTURE ON THE LAW. 183 
 
 Revolution under which they were suffering and gasping, 
 the war which was carrying desolation into their dwell- 
 ings and mourning into every family, had been kindled 
 by the abuse of power, the power of government. An 
 invincible repugnance to the delegation of power had thus 
 been generated by the very course of events which had 
 rendered it necessary ; and the more indispensable it 
 became, the more awakened was the jealousy and the 
 more intense was the distrust by which it was to be cir- 
 cumscribed. 
 
 Notwithstanding the undefined and discretionary sov- 
 ereign powers which were delegated by the people of the 
 colonies to Congress in 1775, and which had been freely 
 exercised and implicitly obeyed, a remarkable instance of 
 this original, dormant, vast discretion appears on the 
 journals of Congress the latter end of the year 1776. 
 The progress of the British arms had, at that period, 
 excited the most alarming apprehension for our safety, 
 and Congress transferred to the commander-in-chief for 
 the term of six months complete dictatorial power over the 
 liberty and property of the citizens of the United States. 
 Such loose, undefined authority as the Union originally 
 possessed was absolutely incompatible with any regular 
 notions of liberty. Though it was exercised with the 
 best intentions and under the impulse of an irresistible 
 necessity, yet such an irregular sovereignty can never be 
 durable. It will either dwindle into insignificance or 
 degenerate into despotism. Disobedience to the laws of 
 the Union must be submitted to by the government to its 
 osvn disgrace, or those laws must be enforced by arms. 
 
 Story, in a brief history of the confederation, says : 
 " One of the first objects beyond that of the immediate 
 public safety which engaged the attention of the Conti- 
 nental Congress was to provide the means of a perma- 
 nent union of all the colonies under a general government.
 
 184 LECTURE ON THE LAW. 
 
 The deliberations on this subject led the Continental 
 Congress, after various debates and discussions, to agree 
 upon a frame of government in Articles of Confederation 
 in November, 1777, which were sent to all the States for 
 their adoption and ratification, but were not finally 
 adopted until March, 1781, upwards of three years from 
 their first promulgation, when they received the unani- 
 mous approbation of the United States." 
 
 The Articles of Confederation had scarcely been 
 adopted before the defects of the plan as a frame of 
 national government began to manifest themselves. It 
 was remarked by an eminent statesman that they gave 
 authority for the following purposes without being able 
 to execute any one of them : -i They may appoint am- 
 bassadors, but they cannot defray even the expenses of 
 their tables. They may borrow money in their own name 
 on the faith of the Union, but they cannot pay a dollar. 
 They may coin money, but they cannot import an ounce 
 of bullion. They may make war and determine what 
 number of troops are necessary, but they cannot raise a 
 single soldier. In short, they may declare everything, but 
 they can do nothing. ' 
 
 The colonies relaxed their union into a league of friend- 
 ship between sovereign and independent states. They 
 constituted a Congress coextensive with the nation, but so 
 hedged and hemmed in with restrictions that the limita- 
 tion seemed to be the rule, and the grant the occasional 
 exception. The Articles of Confederation, subjected to 
 philosophical analysis, seem to be little more than an 
 enumeration of the functions of a national government, 
 which the Congress constituted by the instrument was not 
 authorized to perform. There was no executive power. 
 
 Tin; confederacy of sovereign states made itself known 
 by its fruits. All agreed that something must be done 
 to meet the exigencies of the occasion.
 
 LECTURE ON THE LAW. 185 
 
 Story closes his remarks on the history of the con- 
 federation with declaring " that from the predominance 
 of state jealousies, and the supposed incompatibility of 
 state interests with each other, it became apparent that 
 the confederation, being left without resources and with- 
 out power, must expire of its own debility. It had lost 
 all vigor, and even ceased to be respected, and the only 
 question which remained was, whether the confederation 
 should be left to a silent dissolution, or an attempt should 
 be made to form a more efficient government." 
 
 Such was the condition of the founders of our inde- 
 pendence when peace came, in 1783. 
 
 " Our fathers raised their flag against a power to which, 
 for purposes of foreign conquest and subjugation, Rome, 
 in the height of her glory, is not to be compared : a power 
 which has dotted the surface of the whole globe with her 
 possessions and military posts, whose morning drum-beat, 
 following the sun in his course and keeping pace with the 
 hours, circles the earth with one contiguous and unbroken 
 strain of the martial airs of England." This description 
 of English power by Mr. Webster points to the time 
 when the fathers raised the national flag of the United 
 States and proclaimed their independence to the world in 
 1776. 
 
 The Parliament of Great Britain asserted a right to tax 
 the colonies in all cases whatsoever ; and it was on this 
 question our fathers made the Revolution turn. The 
 amount of taxation was trifling, but the claim itself was 
 inconsistent with liberty, and contained a seminal prin- 
 ciple of mischief, the germ of unjust power. This, how- 
 ever plausibly disguised, did not elude the clear and 
 steady eye of the colonists. They detected it, dragged it 
 forth ; did not wait till the government was overthrown, 
 or liberty itself was put in extreme jeopardy. The claim, 
 the assertion, threw the whole country into a flame. One
 
 186 LECTURE ON THE LAW. 
 
 mind animated the whole mass. They raised the flag 
 against the British assertion, took up arms, declared war, 
 and poured forth their treasures of blood and means in 
 opposition to British assertion and power. 
 
 The government of the United States passed through 
 three forms : (1) the revolutionary, (2) the confederate, 
 (3) the constitutional. The first and the third proceeded 
 equally from the people in their original capacity. The 
 first was supported by Articles of Confederation. The 
 Continental Congress conducted the national affairs until 
 near the close of the Revolution, and extended only to 
 the maintenance of the public liberties of all the States 
 during the contest with Great Britain, and it would 
 naturally terminate with the return of peace and the ac- 
 complishment of the ends of the revolutionary contest. 
 
 How great, then, would be the danger of the separation 
 of the confederated states into independent communities, 
 acknowledging no common head and acting upon no com- 
 mon system, presented to the consideration of Congress ! 
 
 The Articles of Confederation constituted a system elab- 
 orated with great, persevering, and anxious deliberation, 
 animated with the most ardent patriotism, put together 
 with eminent ability and untiring industry, but vitiated 
 by the difficulty of combining in one general system the 
 various sentiments and interests of a great extent of coun- 
 try divided into so many sovereign and independent 
 communities. It is an error, a popular error, to suppose 
 that the Articles of Confederation carried the country 
 through the war. Those Articles were not finally adopted 
 till the spring of 1781. a few months before the war was 
 virtually brought to a close by the surrender at York- 
 town. 
 
 JV;ice came. The United States of America were 
 recogni/ed as free and independent, and. as one people, 
 took tlfir station among the powers of the earth. \\ hen
 
 LECTURE ON THE LAW. 187 
 
 the perils of war ceased, and the formal treaty of peace 
 was signed with Great Britain, the confederacy, the 
 Articles of Confederation, proved as incompetent to guard 
 our fathers, conduct and govern them in peace, as it had 
 been to conduct them in war.
 
 COMMERCE. 
 
 [Delivered as an introductory lecture to the law students of 
 the University of Louisiana, before treating in detail the various 
 branches of commercial law.] 
 
 THE commercial intercourse of nations and that of in- 
 dividuals establish relations, impose duties and obliga- 
 tions, and give birth to contracts often of a peculiar 
 nature. These contracts may be governed by the law of 
 nature and of nations, or by the civil and municipal law, 
 or by the special agreement and stipulations of the parties 
 to them. A just idea of commerce and its operations is 
 necessary to understand its jurisprudence. 
 
 I commence, therefore, with an essay on its origin, 
 progress, true character, and nature, and will next con- 
 sider the history of the law that governs it, the general 
 rules of nature and justice recognized by custom as part 
 of that law, and the special rules of civil or municipal 
 authority applicable to and affecting it. 
 
 I propose, then, to treat more in detail of commercial 
 law, in the following order, adopted as the simplest and 
 most comprehensive: (1.) Of mercantile persons, or those 
 by whose intervention trade is carried on. (2.) Of mer- 
 cantile property, or that which they seek to acquire. 
 (3.) Of mercantile contracts, or the arrangements they 
 may adopt to effect this acquisition. (4.) Of mercantile 
 remedies, or the mode in which these arrangements and 
 their proper execution may be enforced. 
 
 The origin of commerce is lost in the mists of an- 
 tiquity. It is coeval with the iirst dawn of civilixation. 
 It is the first offspring of the right of property.
 
 COMMERCE. 189 
 
 The buffalo hide, the deerskin, the jerked meat, the 
 gathered corn of an Indian, the cabin itself, with all 
 the accumulated fruits of the earth and the products of 
 the chase in it, are the property of the owner, being the 
 result of his own labor and savings. Having more than 
 his own immediate necessities require, he may labor for 
 what is merely convenient. He may make bows and 
 arrows, or he may trap bears and otters for their skins, 
 and he may exchange these for other articles. Hence 
 the origin of barter, or the exchange of commodities for 
 commodities ; in a word, commerce, commutatio mercium. 
 The moment that individuals ceased to supply themselves 
 directly with the various articles and commodities they 
 made use of, that moment must a commercial intercourse 
 have begun to grow up among them. 
 
 If the exchange of different products were carried on 
 by the producers themselves, they would necessarily lose a 
 great deal of time and experience much inconvenience, 
 while the work of production itself would meet with per- 
 petual interruption. To obviate this inconvenience, a 
 distinct class of persons merchants sprang up, whose 
 business it was to collect the surplus products of men's 
 labor and to exchange these with individuals, who niio-ht 
 
 o o 
 
 offer in barter other articles made by themselves. To 
 supersede the necessity of bartering, or exchanging, the 
 innumerable variety of commodities, some measure of 
 value, some common standard of exchange, was requisite, 
 in reference to which every article might be valued : and 
 in most civilized countries the precious metals, gold and 
 silver, as having an intrinsic value which fluctuates very 
 little, were adopted for the purpose. 
 
 In some parts of Africa the money consisted of the 
 shells called cowries, in other parts of bars of iron. In 
 Virginia, for a long time, tobacco was the common stan- 
 dard of reference, the money of the country. Sir James
 
 190 COMMERCE. 
 
 Stuart distinguished it in his political economy as " money 
 of account," in contradistinction from money coin. 
 
 Homer, whose writings abound with descriptions of 
 ancient manners and customs, draws a striking picture of 
 barter as it was carried on some three thousand years 
 ago. At the close of the seventh book of the Iliad he 
 
 D 
 
 describes the arrival of a fleet of merchant vessels from 
 Lemnos freighted with wine, and the Greeks hastening to 
 exchange for it brass, gleaming iron, hides, cattle, and 
 slaves : 
 
 " Of wine they purchased at their proper cost ; 
 And well the plenteous freight supplied the host. 
 Each, in exchange, proportioned treasure gave : 
 Some, brass or iron ; some, an ox or slave. 
 All night they feast, the Greek and Trojan powers : 
 Those in the fields, and these within their towers." 
 
 POPK, Iliad, Book vii. 
 
 But we have an instance of the use of money, and of 
 the custom of merchants at an earlier date, recorded in 
 holy writ, where Abraham is described as weighing to 
 Ephron " four hundred shekels of silver, current money 
 with the merchant." (Gen. xxiii. 16.) 
 
 Merchants are generally divided into two classes, the 
 wholesale dealers and the retail dealers. The wholesale 
 dealers purchase various products in the places where they 
 are produced, or are least valuable, and carry them where 
 they are more valuable or more in demand. The retail 
 dealers, having purchased the commodities of the whole- 
 sale dealers or the producers, collect them in shops, and 
 sell them in such quantities as may best suit the public 
 demand. Each dealer confines himself to one business, 
 and the necessary business of retail is best conducted by 
 a distinct class of dealers. 
 
 The great commerce of every nation is its internal 
 commerce or home trade, that which is carried on at
 
 COMMERCE. H>1 
 
 home, within a nation, and more especially that which 
 is carried on between the inhabitants of the town and 
 those of the country. It consists in the exchange of 
 rude, raw materials for manufactured produce. This ex- 
 change is sometimes made immediately, but it is gen- 
 erally effected by the intervention of money, or of some 
 paper that represents money. The country supplies the 
 town with the means of subsistence and the materials 
 of manufacture. The town repays this supply by send- 
 ing back a part of the manufactured supply to the coun- 
 try. This is mutually beneficial. The country purchases 
 from the town more manufactured goods with the produce 
 of its own labor than it must have employed in preparing 
 them itself. The town affords a market for the surplus 
 produce of the country. The greater the number and 
 revenue of the inhabitants of the town, the more extensive 
 and advantageous is the market. Adam Smith says : 
 " Among all the absurd speculations that have been 
 propagated concerning the balance of trade, it has never 
 been pretended that the country loses by its commerce 
 with the town, or the town by that with the country, 
 which sustains it." 
 
 When there is a surplus of rude and manufactured 
 articles for which there is no demand at home, they must 
 be sent abroad, in order to be exchanged for something 
 for which there is a demand at home. As men improved 
 in arts and refinements, their relations gradually became 
 more extended. They learned to trust their lives and 
 property in vessels, to cross rivers, to traverse seas, and 
 to exchange the products of different countries and dif- 
 ferent climes. 
 
 It follows, then, that as subsistence is prior to conve- 
 nience and luxury, and as the industry which procures 
 the former must be prior to that which ministers to the 
 latter, the cultivation and improvement of the country
 
 192 COMMERCE. 
 
 must have been prior to the establishment of any con- 
 siderable towns, and some sort of manufactures must have 
 been carried on in those towns before the inhabitants 
 could well think of employing themselves in foreign com- 
 merce. And this order of things, we are informed, has 
 always been in some degree observed in every society that 
 possessed any territory. 
 
 In illustration of this it may not be useless or uninter- 
 esting to trace the rise and progress of civilization and of 
 government in the western part of Europe, from the ruin 
 and degradation which followed the fall of the Roman 
 Empire. Nowhere has this been done better than by 
 Adam Smith in ' The Wealth of Nations." 
 
 When the German and Scythian hordes overran the 
 western provinces of the Roman Empire, the confusion 
 which followed so great a revolution lasted for several 
 centuries. The rapine and violence exercised against the 
 ancient inhabitants interrupted the commerce between 
 towns and the country. The towns were deserted, the 
 country was left uncultivated, and the western provinces 
 of Europe sank into the lowest state of poverty and 
 barbarism. 
 
 The chiefs and principal leaders of those nations ac- 
 quired to themselves the greater portion of the lands of 
 the provinces. Land was considered the means of power 
 and protection. Every great landlord was a sort of petty 
 prince : his tenants were his subjects. Jn peace, he was 
 their legislator and judge : in war, their leader, lie made 
 war, too, at his discretion, against his neighbor or his 
 sovereign. 
 
 The security of a landed estate, and the protection 
 which the owner could give to those who dwelt on it, de- 
 pended on its greatness. To divide it was to ruin it and 
 expose it to the; incursions of its neighbors. Hence, the 
 law ol primogeniture was, in process of time, applied to
 
 COMMERCE. 193 
 
 the succession of landed estate : and although, says the 
 author of " The Wealth of Nations," the proprietor of a 
 single acre of land, in any state of Europe, is at present 
 as secure of his possession as the owner of a hundred 
 thousand acres, still the law of primogeniture prevails. 
 The law of entails was a natural consequence of the law 
 of primogeniture, and aided in keeping in the hands of a 
 few individuals immense quantities of land. Large tracts 
 of land were thus engrossed and kept together in particu- 
 lar families. 
 
 In the disorderly times which gave rise to those insti- 
 tutions, the great proprietor seldom thought of improving 
 his land. He found sufficient employment in defending 
 his own territories and extending his jurisdiction over 
 those of his neighbors. He had neither leisure nor incli- 
 nation to attend to the cultivation or improvement of his 
 land. 
 
 Those who occupied the land under him were mere 
 tenants at will. They were almost all slaves. They 
 were supposed to belong more directly to the land than 
 to their master. They could be sold with it, but not sep- 
 arately. They could marry, provided it was with their 
 master's consent ; and he could not afterwards sell the 
 man and wife to different persons. If he maimed or 
 murdered one of them, he was liable to some small pecu- 
 niarv penalty. But they were not capable of acquiring 
 property. All that they acquired, they acquired for their 
 master ; he could take it from them at pleasure. If 
 little improvement, then, was to be expected from the 
 great proprietors, still less was to be looked for from the 
 degraded tenants. 
 
 Such was the condition of the inhabitants of the coun- 
 try after the fall of the Roman Empire. The condition 
 cf the inhabitants of the towns and cities was not much 
 better. 
 
 13
 
 194 COMMERCE. 
 
 The great proprietors of land generally lived in forti- 
 fied castles on their own estates, in the midst of their own 
 tenants and dependents. The towns were chiefly inhabited 
 by tradesmen and mechanics, who seem to have been, in 
 those days, of servile or nearly servile condition. The 
 privileges granted to the inhabitants of some of the prin- 
 cipal towns in Europe by ancient charters show what they 
 were before these grants. It was granted as a privilege 
 that they might give away their own daughters in marriage 
 without the consent of their lord ; that, upon their death, 
 their own children, and not their lord, should succeed to 
 their goods ; and that they might dispose of their own ef- 
 fects by will. They seem to have been a very poor, mean 
 set of people, who used to travel about with their goods 
 from place to place, and from fair to fair, like the hawk- 
 ers and peddlers of the present day. Taxes were levied 
 upon their persons and goods when they passed through 
 manors, when they went over certain bridges, when they 
 carried their goods from place to place in a fair, when 
 they erected a booth or stall therein. These taxes were 
 called in England passage, pontage, lastage, and stallage. 
 
 But how servile soever may have been originally the 
 condition of the inhabitants of the towns, they arrived at 
 liberty and independence much earlier than the occupiers 
 of land in the country. Sometimes the king, sometimes 
 a great lord, would grant to particular traders a general 
 exemption from their taxes. Such traders were, upon 
 this account, called free traders. They, in return, usu- 
 ally paid to their protector a sort of annual poll-tax. 
 These taxes and these exemptions were, at first, altogether 
 personal, and affected only particular individuals. The 
 part of the king's revenue arising from poll-taxes in any 
 particular town gradually increased, and it became usual 
 to lann it out for a certain rent, sometimes to the 
 sheriff of the county, sometimes to other persons. The
 
 COMMERCE. 195 
 
 burghers themselves frequently got credit enough to be 
 allowed to farm the revenues of this sort, arising out of 
 their own town, for a term of years. In process of time, 
 however, it became usual to farm the revenues to them by 
 way of a grant in fee ; that is, forever reserving a certain 
 rent, never afterwards to be augmented. The payments 
 having thus become perpetual, the exemptions also be- 
 came perpetual, and ceased to be personal. They were 
 no longer considered as belonging to individuals as indi- 
 viduals, but as burghers of a particular burgh, which, for 
 this reason, was called " a freeburgh." Along with this 
 grant, the privileges already mentioned were generally 
 bestowed on the burghers of the town, who thus lost the 
 attributes of slavery and villanage, and really became 
 free. They were also generally, at the same time, erected 
 into a corporation, with the privilege of having magis- 
 trates and a town council of their own, of making by- 
 laws for their own government, of building walls for 
 their own defense, and of keeping watch and ward. 
 Corporations of this kind were a sort of independent re- 
 publics erected in the midst of despotism. 
 
 In this manner, order and good government were es- 
 tablished in towns at a time when the occupiers of land 
 in the country were exposed to every kind of violence. 
 
 The inhabitants of towns, by the gradual improvement 
 of their own manufactures, and by importing from abroad 
 the improved manufactures and expensive luxuries of 
 richer countries, furnished the great proprietors of land 
 with something for which they could exchange their sur- 
 plus produce. By affording a large and ready market 
 for the rude produce of the country, they encouraged its 
 cultivation and further improvement. The wealth ac- 
 quired by them was, not unfrequeiitly, employed in pur- 
 chasing land, of which a great part was uncultivated, and 
 they became the best of all improvers, carrying into their
 
 196 COMMERCE. 
 
 new business their characteristic boldness, energy, and 
 spirit, with habits of order, economy, and attention. 
 Thus the manufactures and commerce of the towns con- 
 tributed to the improvement of the country, and gradu- 
 ally introduced among its inhabitants the like order and 
 good government which had been previously established 
 in the cities. 
 
 Paley says : " In the neighborhood of trading towns, 
 and in those districts which carry on a communication 
 with the markets of ' trading towns,' the husbandmen 
 are busy and skillful, the peasantry laborious ; the land is 
 managed to the best advantage, and double the quantity 
 of corn or herbage (articles which are ultimately con- 
 verted into human provision) raised from it of what the 
 same soil yields in remoter and more neglected parts of 
 the country. Wherever a thriving manufactory finds 
 means to establish itself a new vegetation springs up 
 around it. Agriculture never arrives at any considerable 
 degree of perfection when it is not connected with trade ; 
 that is, when the demand for the produce is not increased 
 by the consumption of trading cities. " 
 
 This is undoubtedly true. Agriculture never ap- 
 proaches to perfection in a merely agricultural country. 
 Knowledge and exertion are stagnant in such a country, 
 because the stimulants to labor and the means of enjoying 
 life to the utmost are wanting. 
 
 An able and thoroughly informed writer on political 
 economy remarked some sixty years ago: If we turn our 
 eyes to Poland, devoid of manufactures and commerce, we 
 shall behold a picture not unlike this : a few overgrown 
 landholders living in gross and barbarous magnificence ; 
 the land cultivated by an ignorant peasantry, in a con- 
 dition that may well be called slavish, where the produce 
 often rots on the soil, when there- are no means of 
 exporting it and not mouths enough to consume it ! The
 
 COMMERCE. 197 
 
 agriculture of such a country must be destitute of all 
 spirited improvement, and exertion be paralyzed in both 
 master and slave. 
 
 It is obvious that the more sources of wealth there are 
 in a country, the more means of enjoyment, the more and 
 greater incentives to exertion and accumulation, and the 
 more varied and desirable the produce, the greater will 
 be the industry and wealth of the country. A great 
 stimulus to scientific attainments has been the result of 
 manufactures. The great sources of improvement in the 
 comforts and enjoyments of life have been manufactures 
 and commerce. 
 
 The inhabitants of the richest and most extensive 
 country, provided it were divided into smaller portions, 
 without any intercourse with each other or with for- 
 eigners, could not be otherwise than poor and miserable. 
 Without such intercourse, without commerce or the 
 exchange of commodities, every man would be obliged 
 to subsist exclusively upon the products of his labor. No 
 one could devote his time to any particular pursuit. The 
 necessity which would compel him to turn from one 
 employment to another would prevent him from excelling 
 in any species of work, and diminish the products of his 
 labor. There would be no distinction of employments 
 and professions resulting from a division of labor, no arts 
 or sciences of any sort. 
 
 By means of commerce every individual is enabled to 
 avail himself to the utmost of the peculiar advantages of 
 his place, to work on the special materials with which 
 nature has furnished him, to humor his genius or dispo- 
 sition, to betake himself to the task in which he is 
 peculiarly qualified to succeed. The inhabitant of the 
 mountain may betake himself to the culture of his woods 
 and the manufacture of his timber, the owner of the 
 clay pit to the manufacture of his pottery, the owner of
 
 198 COMMERCE. 
 
 pasture lands to the care of his herds, and the husband- 
 man to the culture of his fields or the rearing of his 
 cattle. Any one commodity, it is true, would form but a 
 small part in the accommodations of human life, but it 
 may, under the facilities of commerce, be exchanged for 
 what will procure any or every other part. Thus genius 
 is stimulated, industry and the mechanic arts flourish, and 
 the liberal arts themselves are refined. 
 
 Man was created not only to inhabit the earth as the 
 beasts inhabit it, but to subdue it, and to exercise through 
 natural laws vast power over all the elements when the 
 energies of his will are directed by wisdom, and when 
 his choice of methods is founded upon knowledge. 
 
 There be three things, says wise Bacon, which make a 
 nation great and prosperous, a fertile soil, busy work- 
 shops, and easy conveyance of men and things from one 
 place to another. Where there are no facilities of trans- 
 port the people are in a state of barbarism. As they 
 emerge from this condition, their commerce is at first car- 
 ried on in the rudest manner. Then the peddler and the 
 pack-horse are seen treading the pathways along the beds 
 of streams, avoiding the steep hills and rugged moun- 
 tains which a direct course would require more labor to 
 cross. 
 
 The work of improvement slowly progresses. Com- 
 merce, whose increasing benefits are felt in every part 
 and territorial division of the state, calls for further 
 means and facilities of transporting and distributing its 
 various, numerous, and important materials. To enable 
 the inhabitants of large towns to supply themselves with 
 tli*' bulky products of the soil, new roads and canals are 
 necessary and must be established, intersecting the coun- 
 try, and opening an easy access to its remotest extremi- 
 ties. 
 
 Koads. o;ood roads, canals, and rivei-s have been
 
 COMMERCE. 199 
 
 denominated national veins and arteries. They are 
 essential to the healthy existence and strength of the 
 state. They diminish the expense and increase the 
 speed of carriage and conveyance of products from place 
 to place, and so enable them to be sooner applied to the 
 purposes for which they are intended. The inhabitants 
 of the town are in this way supplied with the bulky prod- 
 ucts of the country almost as cheaply as if they lived in 
 country villages ; securing them the advantages of con- 
 centration, perfecting the division of labor, and supplying 
 the country with proportionally cheap manufactured 
 goods, conveyed at an extremely small expense to its 
 remotest parts. The direct advantages of good roads and 
 canals to agriculture are equally important in the car- 
 riage of supplies of manure and other heavy articles, to 
 enrich the luxuriance of fertile soils, and to render those 
 that are poor productive. 
 
 Nothing in a state enjoying great facilities of commu- 
 nication is separate and unconnected. All is mutual, 
 reciprocal, and dependent. At length the civil engineer 
 appears and applies his art, and the modern road is 
 constructed. Forests are felled, hills leveled, valleys 
 filled up, mountains excavated, marshes drained, chasms 
 and rivers bestridden with bridges. Through the solid 
 rock beneath the surface of the earth, under the beds of 
 great rivers on whose bosoms navies ride, the road is 
 carried on. The triumph of science is complete. The 
 products of labor are conveyed from place to place by 
 the railway with a swiftness outstripping the speed of the 
 wind. Knowledge, intelligence, the product of thought, 
 are instantaneously transmitted across the ocean, around 
 the world, by the electric telegraph, which literally 
 annihilates both space and time. 
 
 The application of steam to the transportation of per- 
 sons and goods on the land and on the water, to the navi-
 
 200 COMMERCE. 
 
 gation of rivers, internal lakes, and the ocean, and to 
 railroad purposes, created a new era in commerce, and 
 has given new vigor to the march of civilization. 
 
 At the opening of the Northern Railroad to Grafton, 
 N. II., in 1847, Mr. Webster happened to be present, and 
 was unexpectedly and in the most enthusiastic manner 
 called upon to address a large number of persons who 
 were there to witness the ceremonies of the occasion. 
 He readily complied with the summons. Among other 
 things, he said : " Fellow-citizens, this railroad may be 
 said to bring the sea to your doors. You cannot, indeed, 
 snuff its salt water, but you will taste its best products 
 as fresh as those who live on its shores. I cannot con- 
 ceive of any policy more useful to the great mass of the 
 community than the policy which established these public 
 improvements. Let me say that in the history of human 
 inventions there is hardly one so well calculated as that 
 of railroads to equalize the condition of men. The rich- 
 est must travel in the cars, for they travel fastest ; the 
 poorest can travel in the cars, while they could not travel 
 otherwise, because this mode of conveyance costs but 
 little time and money. Probably there are in the multi- 
 tude before me those who have friends at such distances 
 that they could hardly have visited them had not railroads 
 come to their assistance to save them time and to save 
 them expense. Men are thus brought together as neigh- 
 bors and acquaintances who live two hundred miles apart.' 
 
 The easy intercourse of men, so simply and plainly 
 stated, their various pursuits and occupations, and the 
 pleasures which are the fruit of their labor, their edu- 
 cation, practical skill, and experience, especially when 
 enriched with science, advancing industry, and refinement 
 in the mechanical arts, and commonly producing some 
 refinements in the liberal, all join in rendering the in- 
 tercourse of persons more frequent, easy, familiar, and
 
 COMMERCE. 201 
 
 sociable. They love to talk over their several pursuits, 
 skill, and improvements, to receive and communicate 
 knowledge. So that, as Mr. Hume concludes, besides 
 the improvements which they receive from knowledge 
 and the arts, it is impossible but they must feel an 
 increase of humanity, from the very habit of conversing 
 together and contributing to each other's pleasure and 
 entertainment. Thus, industry, knowledge, and humanity 
 are linked together by an indissoluble chain. Profound 
 ignorance is totally banished, and men enjoy the privilege 
 of rational creatures to think as well as to act, to cultivate 
 the pleasures of the mind as well as those of the body. 
 The same age which produces great philosophers and 
 politicians, renowned generals and poets, usually abounds 
 with skillful weavers and ship-carpenters. 
 
 If we turn to foreign trade, and consider commerce as 
 the interchange of the products of industry between 
 different countries and different people, we behold on an 
 extended survey the benefits which are conferred by a 
 division of labor on all the countries of the world. 
 
 Providence has disseminated its blessings among the 
 different regions of the world. Each country produces 
 some peculiar fruits which cannot be profitably procured 
 elsewhere. Non omnis fort omnia tellus. We cannot 
 acclimate beneath a Southern sky the productions of the 
 North, nor under a Northern sky the productions of the 
 South. 
 
 " This ground with Bacchus, that with Ceres suits ; 
 That other loads the trees with happy fruits ; 
 A fourth, with grass, unbidden, decks the ground." 
 
 No nation is abundantly supplied with any considerable 
 variety of articles of domestic growth, or is content to 
 live upon the productions of its own labor and its own 
 soil. Nature has implanted in every people desires for 
 the productions of other soils and other climates. At the
 
 202 COMMERCE. 
 
 same time their own products are infinitely more in quan- 
 tity than they themselves need. By means of mutTial 
 intercourse and traffic, nations are thus enabled mutually 
 to supply one another's wants, and multiply and cheapen 
 the conveniences and enjoyments of life. They are made 
 in some sort dependent upon one another, and are united 
 together by their common interest. 
 
 Observe for a moment how many of our comforts and 
 even necessaries are derived from commerce and inter- 
 course with strangers. The ships at our levee are laden 
 with the harvest of every clime ; our stores are furnished 
 with the choicest manufactures of foreign artisans, 
 silks, cottons, hardware, porcelain, jewelry, laces from 
 Brussels, Lyons, Paris, Geneva, Sheffield, Manchester, 
 Liverpool, London : our tables are supplied with spices, 
 oils, wines ; China furnishes us with tea, and the remot- 
 est corners of the earth contribute to our pleasures or 
 wants. Addison's pleasing description of a lady's dress 
 more than a century and a half ago continues to describe 
 the dress of the present day : k ' The single dress of a 
 woman of quality is often the product of an hundred 
 climes. The muff and the fan come together from the 
 different ends of the earth. The scarf is sent from the 
 torrid zone, and the tippet from beneath the pole : the 
 brocade petticoat rises out of the mines of Peru, and 
 the diamond necklace out of the bowels of Indostan." 
 Mr. McCulloch states that the people of Great Britain 
 owe more than half of all they enjoy to their intercourse 
 with others. It is to the products and the arts derived 
 from others, and to the emulation inspired by their com- 
 petition and example, that we are mainly indebted for the 
 progress we have made, as well as for that we are yet 
 destined to make. 
 
 It is certain that in most nations foreign commerce has 
 preceded any refinements in home manufactures or such
 
 COMMERCE. 203 
 
 as were fit for distant sale. It supplies men with new 
 commodities, and awakens new desires and new tastes. 
 The temptation is stronger to make use of foreign com- 
 modities, which are entirely new to us and ready for use, 
 than to make improvements on any domestic commodities, 
 which always advance by slow degrees, and never affect 
 us by their novelty. 
 
 The profit in exporting what is superfluous at home to 
 nations abroad, and importing foreign commodities, use- 
 ful, pleasant, novel, improved, refined, is great. The 
 trade stimulates domestic industry, improves every branch 
 of commerce, of agriculture, and of manufactures, and stirs 
 up a spirit of enterprise, of invention and competition 
 in making us acquainted with foreign arts. Imitation 
 soon diffuses all those arts, while domestic manufacturers 
 emulate the foreign in their improvements, and work up 
 every home commodity to the utmost perfection of which 
 it is susceptible. 
 
 But foreign commerce imparts not merely the com- 
 modities, but with them the knowledge, experience, and 
 useful practices of other nations. It diffuses knowledge, 
 and conveys its pleasures and the blessings of civilization 
 to the remotest regions. It distributes the gifts of 
 science and art, and gives to each particular country the 
 means of profiting by the inventions and discoveries of 
 others. The inventions and discoveries of Fulton and 
 Whitney, of Arkwright the cotton spinner, of Watt and 
 Bolton the engineers, of Wedgwood and Bentley the 
 potters, and the labors and speculations of Galileo, Kepler, 
 Lavoisier, Laplace, Newton, Black, and others, have bene- 
 fited all nations. 
 
 Everything in the world is to be acquired by labor, 
 and labor is to be performed by natural law directed and 
 applied by reason and wisdom. It is by compelling 
 nature to work for us that the great improvements of
 
 204 COMMERCE. 
 
 modern times in manufactures and in commerce have 
 been made. This it is that raises us so much above the 
 savage state of society ; that makes us equal to the most 
 gigantic efforts, and endows us with almost superhuman 
 power. We have put in requisition the powers of wind 
 and water, of heat and cold, of magnetism and electricity. 
 We have made the planetary system subservient to our 
 hourly enjoyments, and we are proceeding daily in the 
 glorious career of overcoming the obstacles which nature 
 has placed in the path of our wishes, and of subjecting 
 all her elements to our control. This has been done 
 by mathematicians, natural philosophers, chemists, and 
 mechanics, rich, beneficent, ennobling, and enduring gifts 
 of science. 
 
 From the character and nature of commerce, its con- 
 nection with and influence upon good order, faith, and 
 just government, and its diffusion of knowledge, various 
 materials, comforts, pleasures, and ornaments of life, it 
 must ever flourish in a wise and free government. The 
 spirit of commerce is congenial with liberty. And if we 
 trace her, in her progress through Tyre, Athens, Syra- 
 cuse, Carthage, Venice, Florence, Genoa, Antwerp, Hol- 
 land, England, the United States, we shall always find 
 her to have fixed her seat in free governments. 
 
 Milton, great poet and great man, speaks of " the 
 mountain nymph, sweet Liberty." From her lofty seat 
 she looks down upon and visits the valleys, the plains, 
 and seashores, imparting knowledge, truth, courage, enter- 
 prise, wisdom, love of law, and protection of equal human 
 rights. A distinguished American historian says : " Tlie 
 seaboard would seem to be the natural seat of liberty. 
 There is something in the very presence, in the atmos- 
 phere of the ocean, which invigorates not only the physi- 
 cal, but the moral energies of man. The adventurous 
 life oi the mariner familiarizes with dangers, and early
 
 COMMERCE. 205 
 
 accustoms him to independence. Intercourse with various 
 climes opens new and more copious sources of knowledge ; 
 and increased wealth brings with it an augmentation of 
 power and consequence. It was in the maritime cities 
 scattered along the Mediterranean that the seeds of lib- 
 erty, both in ancient and modern times, were implanted 
 and brought to maturity." 
 
 Foreign trade is to all the countries of the world what 
 home trade is to the different portions and provinces 
 of the same country. It is an extension of the benefits 
 conferred upon man by a division of labor. As individ- 
 uals are benefited in trade and riches, and the several 
 States of our Union are rendered happier and wiser, more 
 opulent, refined, and powerful, by the division of labor 
 and free commerce and unrestricted intercourse one with 
 another, so our imperial republic, controlling our for- 
 eign relations and trade under its national, democratic, 
 federal government, E Pluribus Unum, increases in 
 power, wealth, and happiness, in proportion to our exten- 
 sive commerce and varied labor in manufactures and 
 agriculture, inseparable from it. The same train of con- 
 sequences is observable in the world at large. 
 
 The Creator gave man dominion over the earth, and 
 over the sea, and over the air ; to master them, to make 
 them minister to our highest power. The application of 
 science to the arts imparts skill and strength, intellectual 
 and moral energy. Mind conquers and controls matter. 
 Every natural agent, wind, water, gravity, is made to 
 work. Machinery performs what formerly was the task 
 of human hands. 
 
 The application of steam to commercial purposes, and 
 the transportation of goods and persons, on the land and 
 on the water, has been already noticed. The newspaper 
 press informs us that a calculation has been made by 
 some foreign arithmeticians of the potent agency of steam
 
 206 COMMERCE. 
 
 in the world. The calculation states the horse power of 
 England per annum, of the United States, of Germany, 
 of France, of Austria, exclusive of locomotive power ; 
 then states the horse power of the locomotives in France, 
 of fixed engines, of steamers, etc., and concludes : " The 
 total horse power of all the machines and engines worked 
 by steam in the world is estimated at 80,000,000. Now 
 each horse is equal to ten men, so that the whole steam 
 power of the globe represents a daily working power of 
 800,000,000 men. Two German savants reckoned the 
 population of the globe at 1,455,928,000, and the number 
 of males between sixteen and sixty-five at about one third 
 of the population, making the total of men of working age 
 500,000,000. As steam does the work of about 800,000,000 
 men, it follows that the power of laborers and resources 
 of industry have nearly trebled in fifty years, since the 
 steam engine spread its beneficent influence over all civi- 
 lized countries." 
 
 It may not be superfluous to state how, under the power 
 of mind, steam, one of the most powerful forces of nature, 
 has been reduced to obedience governed, controlled, 
 and made subservient to the human family by subject- 
 ing its invariable energies to the variable conditions of 
 adjustment ; blending mental and material laws, and in- 
 timately connected with commerce, home and foreign. Mr. 
 Webster described its potent agency in a lecture before 
 the Mechanics' Institution, in 1828 : 
 
 " Everywhere practicable, everywhere efficient, it has 
 an arm a thousand times stronger than that of Hercules, 
 and to which human ingenuity is capable of fitting a 
 thousand times as many as Briareus. Steam is found in 
 triumphant operation on the seas, we may now add the 
 oceans, and, under the influence of its strong propulsion, 
 the gallant ship
 
 COMMERCE. 207 
 
 ' Against the wind, against the tide, 
 Still steadies, with an upright keel.' 
 
 It is on the rivers, it is on highways and along the 
 courses of land conveyance, it is at the bottom of mines a 
 thousand feet below the earth's surface, it is in the mill 
 and in the workshops of the trades. It rows, it pumps, it 
 excavates, it carries, it draws, it lifts, it hammers, it spins, 
 it weaves, it prints. It seems to say to men, ' Leave off 
 your manual labor, give over your bodily toil ; bestow but 
 your skill and reason to the directing of my power, and I 
 will bear the toil, with no muscle to grow weary, no nerve 
 to relax, no breast to feel faintness.' ' 
 
 It is impossible to conjecture to what further uses and 
 improvements in mechanical arts and operations this tre- 
 mendous force may be applied, or to ascribe any limit to 
 its progress. 
 
 The greatness of a state and the happiness of its people 
 are inseparable in regard to commerce. It augments the 
 power of the state by increasing its stock of labor, as well 
 as the riches and happiness of individuals by increasing 
 employment, the multitude of mechanic arts and their 
 products, and the persons who are employed in pro- 
 ducing them and who share in their product. It stimu- 
 lates industry ; it imparts and diffuses knowledge and 
 skill ; it supplies new objects of desire and materials for 
 labor ; it leads to imitation, skill, rivalry, improvement, 
 social intercourse, refinement, and humanity : it gives a 
 lively spirit, healthy activity, strength, and energy to the 
 mind. 
 
 Mr. Everett truly states that merchants have ever been 
 friends of learning and liberty, and enemies of tyranny 
 and despotism. It was certainly so with American mer- 
 chants during our revolutionary struggle. 
 
 In the dawn of civilization alphabetical writing was 
 used among the Phoenician merchants. One thousand 
 years after, these merchants were the champions of liberty.
 
 208 COMMERCE. 
 
 When Alexander carried on his crusade against Asia, 
 the merchants of Tyre detained him by arms longer than 
 Darius could with all the armies of the East. 
 
 When, in succeeding centuries, the Romans were march- 
 ing to universal empire, the commercial city, Carthage, 
 checked their progress. 
 
 The emancipation of Europe from the iron despotism 
 of the barons, under the feudal system, began with the 
 privileges granted to the cities. 
 
 The colonization of our country sprang mainly from 
 religion and commercial adventure. 
 
 The British navigation act was the foundation of co- 
 lonial grievances. The colonists complained and strug- 
 gled against the monopoly of the mother country. They 
 saw no barriers on the sea, and could not patiently sub- 
 mit to artificial restraints. But when these restraints 
 were removed, commerce went forth, like an uncaged 
 eagle, who rushes out at length to his native element, 
 and exults as he bathes his undaxzled eyes in the midday 
 sunbeam or pillows his breast upon the storm. Not 
 content with the broad circuit taken by the trading na- 
 tions of Europe, the commerce of America penetrated 
 not only the remotest haunts of European trade, the 
 Mediterranean, the Baltic, and the White seas, but en- 
 gaged in the trade with Ilindostan and China, explored 
 new markets on islands and coasts, before unapproached 
 by modern commerce, and opened the way for traffic with 
 Japan. 
 
 A word or two more in regard to American commerce. 
 
 During the revolutionary war our commerce was nearly 
 annihilated by the superior naval power of our enemy, 
 and the return of peace enabled foreign nations, and espe- 
 cially (ireat Britain, to monopolize our home trade. The 
 Articles of Confederation conferred no power on the con- 
 federacy to reu'ulate commerce, but left it to the control 
 
 - O
 
 COMMERCE. 209 
 
 of each State for itself. It was found impossible to excite 
 or foster enterprise in trade under the influence of jarring 
 state regulations. Thirteen States, each with power to 
 regulate commerce, and each looking only to its own 
 interest ! A navigation act passed by one State was de- 
 feated by the legislation of another. Duties were levied 
 in one State, while free trade was adopted in another. 
 We were thus the victims of our own imbecility, and re- 
 duced to a subjection to the commercial regulations of 
 other nations, notwithstanding our boasted freedom. The 
 country was losing all the advantages of its position. 
 American navigation could not compete with foreign. 
 Foreign ships had free admission into our ports, while 
 American ships were loaded with heavy exactions or pro- 
 hibitions abroad. Foreign supplies flooded the country. 
 The national industry was paralyzed, and the Revolution 
 itself was beginning to be regarded as a doubtful blessing. 
 Every attempt to bring the state legislatures into any har- 
 mony of action or any pursuit of a common object had 
 failed, when, in 1786, Virginia proposed a general con- 
 vention of delegates from all the States, " to consider how 
 far a uniform system of commercial regulations may be 
 necessary to their common interest and permanent har- 
 mony." This was the first step in the train of measures 
 that led to the adoption of the Constitution of the United 
 States. 
 
 Other objects and other considerations, besides pressing 
 commercial necessity, influenced the fathers of our coun- 
 try in framing that Constitution. The confederacy had 
 made itself known by its bitter fruits ; it was a failure, 
 in the words of Mr. Adams, " a wretched and ignomini- 
 ous failure." The Articles of Confederation enumerated 
 the functions of a national government, which the Con- 
 gress instituted by the instrument was not authorized to 
 perform. The jealousy of delegated power pervaded 
 14
 
 210 COMMERCE. 
 
 every part. There was no executive power. Congress 
 was authorized to make war and conclude peace, to con- 
 tract debts and bind the nation by treaties of commerce, 
 yet the Articles of Confederation had withheld from Con- 
 gress the power of regulating the commerce of the Union 
 and levying money by taxation upon the people ; they 
 could contract, but could not perform. 
 
 The revolutionary debt remained unpaid, the national 
 treasury was bankrupt, the country was destitute of 
 credit, and, to defray its necessary expenses and charges, 
 the only power of Congress was to issue its requisitions 
 to the States, which they neglected. The whole govern- 
 ment, therefore, was little more than a name, incapable 
 of securing and protecting the interests of the country, 
 and made subservient to the policy of foreign nations. 
 
 Such was the painful, feeble, disgraceful condition of 
 the country, when, after a mature, patriotic deliberation, 
 the people of every State came to the conclusion that, 
 for the rescue of their character, their interest, liberty, 
 power, and dignity, a national government ought to be 
 established. Prudently and wisely this task was per- 
 formed. 
 
 The framers of the Constitution of the United States 
 were wise, patriotic, and experienced. They were great 
 reformers, and, when they assembled in federal conven- 
 tion, deemed it a solemn duty to frame an efficient plan 
 of government for the United States, to be submitted to 
 the people of the States for their mature consideration and 
 judgment, and adoption or rejection. 
 
 And the people of the several States calmly and delib- 
 erately set aside and abolished the imbecile, impotent gov- 
 ernment of the confederation, and adopted the Constitu- 
 tion of the United States. The Constitution was then 
 promulgated to all the nations of the earth with this pre- 
 amble or proclamation : " \Ve, the people of the United
 
 COMMERCE. 211 
 
 States, in order to form a more perfect union, establish 
 justice, insure domestic tranquillity, provide for the com- 
 mon defense, promote the general welfare, and secure the 
 blessings of liberty to ourselves and our posterity, do or- 
 dain and establish this Constitution for the United States 
 of America." 
 
 The organization of the government conformably to the 
 Constitution and to give it practical operation was ef- 
 fected in 1789, under the administration of Washington. 
 Life, vigor, power, and new character were at once im- 
 parted to it. Congress proceeded to exercise the powers 
 conferred upon it. A comprehensive system of revenue 
 was adopted ; taxes, imposts, and duties were laid and 
 collected by the government without any requisition on 
 the States ; provision was made to pay the public debt 
 and provide for the general welfare ; the foreign commerce 
 was wisely regulated, the interests of the country were 
 duly protected, and its other foreign relations were con- 
 sidered and treated with ability, with dignity, with a be- 
 coming spirit, the spirit of nationality, the nationality 
 of America. The laws of the United States were executed 
 and carried into effect in every part of the Union. 
 
 In regard to commerce, the main subject of this dis- 
 quisition, the Constitution ordains : " The Congress shall 
 have power to regulate commerce with foreign nations 
 and among the several States, and with the Indian tribes." 
 The grant is plenary and exclusive ; it embraces the whole 
 and each and every part of the country, and the whole 
 and each and every subject of commerce. The power is 
 vital to the Union. It put an end to the serious dissen- 
 sion among the States themselves, and to the irritation and 
 jealousy caused by the difference of their regulations. It 
 established a uniform system, and harmony, and coopera- 
 tion for the general welfare ; one rule, one commercial 
 law and regulation among the States that stand upon the
 
 212 COMMERCE. 
 
 territory of this grand republic, annihilating the causes of 
 domestic feuds and rivalries, compelling every State to 
 regard the interest of each as the interest of all, and dif- 
 fusing over all the benefits and blessings of a free and 
 rapid exchange of commodities upon the footing of perfect 
 equality. 
 
 In nothing has the Constitution displayed more pro- 
 found wisdom than in the grant of this power. It served 
 to consolidate the Union and render it more perfect. It 
 gave to our commerce in every foreign market an American 
 national name and influence. As we were one people in 
 making war and one people in making peace, so were we 
 one in regulating commerce. It enabled the government 
 to place the United States upon a just and rightful equality 
 with foreign nations, to compel them to abandon their 
 unjust and selfish policy, and to protect our commercial 
 interests against their injurious competitions. 
 
 It seems to be agreed among all enlightened men that 
 
 o o o 
 
 the effects produced by commerce are national wealth, 
 circulation of capital, augmentation of the public revenues, 
 of the general ease, comfort, and prosperity of the people, 
 and of the power of the state. 
 
 England furnishes an illustrious example of this, and 
 our national progress confirms it. Statisticians, states- 
 men, historians, orators, philosophers, have contrasted the 
 feeble and disheartening condition of our forefathers un- 
 der the government of the confederacy, with its ill-regu- 
 lated and defective system, which withheld from Congress 
 the power to regulate commerce, and our present condi- 
 tion under the government as it has been formed and 
 modified by the Constitution of the United States. 
 
 They observe the vast extent to which our country has 
 extended herself, stretching from the British possessions, 
 the waters of the St. Lawrence, and the great lakes of the 
 continent to Mexico and the waters of the Itio Grande,
 
 COMMERCE. 213 
 
 and from the Atlantic Ocean to the Pacific Ocean, the 
 thirty-eight sovereign States, the Territories, and the pub- 
 lic land. They observe her rapid and steady progress in 
 all the arts, mechanic, useful, refined ; in science, and its 
 agency and application to the wants, the comforts, the 
 pleasures, the refinements, and pure enjoyments of human 
 life. They point out her highways, roads, canals ; the 
 network of railroads and telegraphic lines by which the 
 country is reticulated, developing her resources, and unit- 
 ing emphatically, in metallic bands, all parts of the Union ; 
 her seacoast towns ; her harbors and ports and light- 
 houses ; the paths of her commerce, wide as the world, on 
 the great seas, and her navy, which takes no law from 
 superior force ; the glory and the name of the great re- 
 public, the great example of popular government, of free- 
 dom and industry, of justice and equality, stimulating 
 and quickening the spirit and energy of its active, enter- 
 prising, adventurous, and w^ll-informed citizens to emu- 
 late the virtues and actions of their ancestors, who es- 
 tablished public liberty in America, to the safety, honor, 
 and welfare of the country.
 
 ADDIiESS TO LAW STUDENTS. 
 
 [Delivered in 1877 to the graduating class of law students 
 by Mr. Hunt as president of the University of Louisiana.] 
 
 GENTLEMEN, In pursuance of the duty assigned me 
 as President of the University of Louisiana, under the 
 Constitution and laws of the State, I do now publicly 
 confer upon each of you here presented by the Dean and 
 Faculty of the law department, with the approval of the 
 administrators of the University, therefore, the degree of 
 Bachelor of Laws, with all the rights, honors, dignities, 
 and privileges appertaining to that degree. 
 
 Diplomas, written evidence of the degree conferred, 
 are in the hands of the Dean, and will be delivered to 
 those entitled to them. 
 
 Circumstances unhappily preventing the learned Dean 
 of the Faculty from delivering, according to appointment, 
 the usual appropriate address on the graduation of the 
 class, at his desire and on your request I have undertaken 
 to perform the duty on this occasion, and must ask your 
 indulgence, your kind consideration and judgment, for the 
 plain discourse you are about to hear. 
 
 Gentlemen graduates, you have completed the course 
 of your collegiate studies, and are about to enter upon 
 the active business of life, to exert your powers and vir- 
 tues, and to convert to private and public use the learning 
 and ability which you have acquired in the law school of 
 the University. You are just going forth to attempt the 
 practice of law, to do its hard work, to kindle with its 
 excitations, to be agitated by its responsibilities, to sound
 
 ADDRESS TO LAW STUDENTS. 215 
 
 its depths and shoals of honor. Some of you may be 
 exposed to difficulties. Determine to surmount them with 
 courage, or to bear them with resignation. Be prudent, 
 industrious, and ever instant in the pursuit of knowledge. 
 
 In discharging the official duty of addressing you, I am 
 moved by a solicitude for your personal welfare, and a 
 regard for the profession and divine nature of law. 
 
 Whatever progress you have made in jurisprudence, 
 you must be sensible that if, relying on your present 
 attainments, you abandon study, you can never become 
 distinguished. If you aspire to respectability and to 
 eminence, you must labor long and hard, cheerfully and 
 heartily. Labor is the condition of success and greatness. 
 It is a fine remark of Chancellor Kent that " it appears 
 to be the general order of Providence manifested in the 
 constitution of our nature that everything valuable in 
 human acquisition should be the result of toil and labor." 
 
 Nor should this truth discourage you. Labor vincit 
 omnia. And labor is in itself agreeable to the well- 
 organized mind, anxious for improvement and rejoicing in 
 its progress. At this day, no mere force of genius how- 
 ever extraordinary, no combination of natural faculties 
 however rare and exquisite, no general information how- 
 ever vast and extensive, unaccompanied with a profound 
 knowledge of jurisprudence and of the peculiar system of 
 laws in a commonwealth, can constitute an efficient practi- 
 cal lawyer. The progress you have already made in the 
 law must convince you of this, while that very progress 
 gives assurance of success to the persevering student. 
 
 But you should by no means neglect the general culture 
 of letters and of the arts and sciences, merely because 
 your labors are to be chiefly devoted to the law. The 
 different branches of learning bear an intimate relation 
 to one another. Consider for a moment what a lawyer 
 must know and what he has to do if he be in good practice.
 
 216 ADDRESS TO LAW STUDENTS. 
 
 He must be more or less acquainted with the mechanical 
 arts and sciences, with modern inventions and discoveries, 
 with the details of trade, commerce, and manufactures. 
 He must put himself in the way of all the liberal opinions 
 which modern investigation has brought into view. He 
 must trace the laws from the first rough sketches to the 
 more perfect draughts, from the causes that produced 
 them through all the effects, good and bad, that they 
 produced. 
 
 The perfect lawyer should be familiar with every study. 
 He must pry into the secret recesses of the human heart, 
 and explore to their sources the passions and appetites 
 and feelings of mankind, lie should watch the motions 
 of the dark and malignant passions as they silently 
 approach the chambers of the soul in its first slumbers. 
 He should catch the first warm rays of sympathy and 
 benevolence as they play around the character. lie 
 should unlock the treasures of history for instruction and 
 admonition, lie must drink in the lessons and the spirit 
 of philosophy, which is conversant with men's business 
 and interests : which dwells, says Story, not in vain ima- 
 ginations and platonic dreams, but which stoops to life, 
 and enlarges the boundaries of human happiness, sits by 
 us in the closet, cheers us by the fireside, walks witli us 
 in the fields and highways, kneels with us at the altar, 
 and lights up the enduring flame of patriotism. 
 
 The morals of the law arc pure and just. No men are 
 so constantly called upon in their practice to exemplify 
 the duties of good faith, strict integrity, and ehivalric 
 honor as lawyers. To them is often entrusted the pro- 
 tection of the peace and comfort as well as the property 
 of whole families, of personal rights and personal charac- 
 ter, of domestic harmony and parental authority, or it 
 may bu the vindication of innocence against private in- 
 justice. Rank and wealth and patronage 1 may be on one
 
 ADDRESS TO LAW STUDENTS. 217 
 
 side, and poverty and distress on the other. The op- 
 pressor may belong to the very circle of society in which 
 they love to move, and where many seductive influences 
 may be employed to win their silence. Some crafty pre- 
 text, some captivating delusion, may mask the real design 
 of the oppressor. The press may be employed to poison 
 public opinion, and to intimidate the sufferer who resorts 
 to a court, the citadel of public justice, the true guardian 
 in all governments, and, especially in free governments, 
 of the whole community. He calls upon his advocate, the 
 lawyer, to maintain the supremacy of the law against 
 power and wealth, to vindicate his rights, to require dam- 
 ages, as the case may be, from the violator of his domes- 
 tic peace, or to expose to scorn the subtle contrivances of 
 fraud. In such cases, the attempt to unravel the fraud 
 and expose the injury may be full of delicacy, and may 
 incur severe displeasure among friends. But it is on 
 such occasions the advocate rises to the dignity and the 
 great moral obligations of his profession. It may be that 
 his profession calls him to different duties. He may be 
 required to defend against the arm of the government 
 a party standing charged with some odious crime, real 
 or imaginary. lie is not at liberty to desert even the 
 guilty wretch in his lowest estate, but he is to take care 
 that even here the law shall not be broken or bent to 
 bring him to punishment. He will at such times, from a 
 sense of professional duty as well as from compassion, 
 freely give his talents to the cause, and never surrender 
 the victim until the judgment of his peers has convicted 
 him upon legal evidence. 
 
 Bear this in mind : when once you undertake the cause 
 of a client, you make it your own, and it becomes entitled 
 to the same attention and earnest interest which you give 
 to your own affairs. Nay, you are bound to protect that 
 client at all hazards and costs even to yourselves. I
 
 218 ADDRESS TO LAW STUDENTS. 
 
 will not say that you are to have no scruples about any 
 act whatever that may benefit your client, for such a rule 
 would overturn all morals. Nor will I say that you should 
 separate the duties of a patriot from those of an advo- 
 cate. The administration of justice is the great end of 
 human society, and justice the great end of law, sovereign 
 law, which, 
 
 " O'er thrones and globes elate, 
 Sets empress, crowning good, repressing ill." 
 
 I repeat, the law is the only recognized sovereign of free- 
 men. Upon her supreme and steady rule depends the 
 secure enjoyment of life, of liberty and property. It is 
 the remark of a wise, learned, and philosophic jurist and 
 statesman that in all the elaborate policy by which free 
 states have sought to preserve themselves, there is none so 
 sure, so indispensable, as justice, justice to all : justice to 
 foreign nations of whatever class of greatness or weak- 
 ness, to public creditors, alien or native ; justice to every 
 individual citizen, down to the feeblest and the least 
 beloved ; justice in the assignment of political and civil 
 rights ; justice between man and man, every man and every 
 other. To observe and to administer this virtue steadily, 
 uniformly, and at whatever cost, this, the best policy and 
 the final course of all governments, is preeminently the 
 policy of free governments. It is the true interest, the 
 best, the only policy, and the highest glory of a country. 
 
 Mr. Choate, an eminent lawyer of Massachusetts, de- 
 clared : " In all political systems and in all times, the 
 profession has seemed to possess a twofold nature, to be 
 fired by the spirit of liberty, and yet to hold fast the 
 sentiments of order and reverence, and the duty of sub- 
 ordination. It has recognized and vindicated the rights 
 of man. and yet has reckoned it always among the 
 most precious of those rights to be shielded and led by 
 the divine nature and the immortal reason of law."
 
 ADDRESS TO LAW STUDENTS. 219 
 
 The love of liberty and the love of law characterized 
 the wise and illustrious fathers of our country ; and lib- 
 erty and law, intimately united, were made the basis of 
 justice and American government. The profession of 
 law, useful, honorable, and distinguished, is, undoubtedly, 
 the great ornament and one of the defenses and securities 
 of free institutions, indispensable to and conservative of 
 public liberty. Without liberty, law loses its nature and 
 its name, and becomes oppression. Without law, liberty 
 also loses its nature, and becomes licentiousness. Locke 
 says, " Where there is no law, there is no freedom." And 
 Lord Chatham, after his fashion, declared, "This I know : 
 where law ends, tyranny begins." 
 
 The rightful end of all civil government is to secure 
 freedom. Its highest office is to watch over the liberties 
 of each and all. Its very chains and prisons have the 
 general freedom for their aim ; they are just only when 
 used to curb oppression and wrong, to disarm him who 
 wars against others' rights, who, by invading property or 
 life, would substitute force for the reign of equal laws. 
 Checks on licentiousness that would trespass on right, 
 wholesome restraints on others to keep off from us, the 
 checks and restraints on legislative, executive, and judicial 
 powers in our American system of government, are safe- 
 guards of individual rights, a bulwark, fortress, security 
 of public libei'ty- 
 In all the past period of our history, the lawyers of the 
 country have been conspicuous for an ardent spirit of 
 liberty, inflexible adherence to principle, intrepidity, and 
 knowledge of their rights. Many of those who stirred 
 up and made the people ready for revolution were lawyers. 
 They argued, they refined, distinguished, explained about 
 their rights, and were prepared to maintain them with 
 unflinching courage. They were foremost in vindicating 
 the true interpretation of the charters of the colonies, and
 
 220 ADDRESS TO LAW STUDENTS. 
 
 in exposing the infringements which led to the Stamp Aft 
 and tea tax, and to the Revolution and our national in- 
 dependence. "A love of freedom," said Mr. Burke in 
 1775, " is the predominating feature in the character of 
 the Americans. And this is to be attributed, in no mean 
 degree, to their education. In no country, perhaps, in the 
 world is the law so general a study . . . dbciint xtudia 
 in more*. . . . In other countries, the people, more simple 
 and of a less mercurial cast, judge of an ill principle in 
 government only by an actual grievance ; here they anti- 
 cipate the evil and judge of the grievance by the badness 
 of the principle. They augur misgovernment at a dis- 
 tance, and snuff the approach of tyranny in every tainted 
 breeze." 
 
 So it was ; and it has been claimed, truly and justly 
 claimed, that in the following time the American bar, 
 springing into existence by revolution, and justifying that 
 revolution only on a principle of natural law, by its 
 professional appreciation of order, obedience, restraint, 
 its free and lofty spirit, its profound and wide intimacy 
 with all liberty, and, above all, English liberty, displayed 
 the wisdom of statesmen in framing a constitution for 
 the United States, and completing the revolution with an 
 original system of government, free republican govern- 
 ment, and a grand written code of public laws, approved, 
 ordained, and established by the free people of the several 
 States. 
 
 I do but repeat what has been often and commonly 
 remarked, and is undoubtedly true, when I say our sys- 
 tem of government is peculiar and complicated. It is 
 original in its character, truly and emphatically our own, 
 American, without example or parallel. We have state 
 sovereignties, each exercising legislative, executive, and 
 judicial powers, and all standing on an equal footing, 
 and we have a general government, under which all these
 
 ADDRESS TO LAW STUDENTS. 221 
 
 States are united ; and it is the very beauty of our sys- 
 tem that the federal and the state governments are thus 
 kept distinct. The people of each State formed the Con- 
 stitution of the State. The people of the United States 
 ordained and established the Constitution of the United 
 States. Mr. Webster said he defied the wit of man to 
 devise anything preferable, and anything more suitable 
 on the whole for the great interests of a great people 
 spread over a large portion of the globe, than the provi- 
 sion of local legislation for local and municipal purposes, 
 with a general government for general purposes. The 
 States are united, 
 
 " Not chaos like, together crushed and bruised, 
 But, like the world, harmoniously confused : 
 Where order in variety we see, 
 And where, though all things differ, all agree." 
 
 In constructing the American Constitution, with the rec- 
 onciliation of imiversal liberty with the philosophy of 
 government, the distribution of its powers into separate 
 departments, the checks and balances necessary to make 
 it a government of laws, and not of men : in recognizing the 
 right of the people to make all the laws and to make the 
 Constitution, and the wisdom of the people in restraining 
 themselves from the disorderly exercise of power by the 
 supremacy of the Constitution while it exists, and by 
 the establishment of a fundamental organic rule to test 
 the legislation of the day by the standard of truth and 
 time, the lawyers and other wise, experienced, and patri- 
 otic men united and cooperated to secure the blessings 
 of liberty and establish justice. 
 
 The Articles of Confederation, a mere compact of state 
 governments, had proved a miserable failure. The fed- 
 eral Constitution was framed and a united government was 
 established, with power to act on the individual citizen,
 
 222 ADDRESS TO LAW STUDENTS. 
 
 by the concurrent vote of Congress, the States, and the 
 people. The separate state governments remained un- 
 impaired for all the purposes of purely local administra- 
 tion, the people of the several States forming the people 
 of the Union ; and the Constitution of the United States, 
 and the laws made in pursuance thereof, are declared to 
 be the supreme law of the land, anything in the Constitu- 
 tion or laws of any State notwithstanding. 
 
 It is this system of government and these political 
 principles, reconciling the strength of a great with the 
 freedom of a small State, that form what has been called 
 " a decentralized republican empire/' The working of the 
 system appears from the changes that have been wrought 
 in the condition and prospects of the American people. 
 On the 30th of April, 1789, the chancellor of the State of 
 New York, from the balcony of the City Hall, adminis- 
 tered to George Washington the solemn oath, " faithfully 
 to execute the office of President of the United States, 
 and, to the best of his ability, to preserve, protect, and 
 defend the Constitution of the United States.'' 
 
 His administration fixed the character of the Constitu- 
 tion as a practical system of government, and settled upon 
 firm foundations the execution of the Constitution and 
 laws. He laid the corner-stone of the original Capitol 
 on the 18th day of September, 1793. He was then at the 
 head of the government, which at that time was weak in 
 resources, burdened with debt, just struggling into polit- 
 ical existence and respectability, and agitated by the 
 heaving waves which were overturning European thrones. 
 On the 4th of July, 1851, Millard Fillmore, President 
 of the United States, laid the corner-stone of the addition 
 to the Capitol, and Daniel Webster, Secretary of State of 
 the l T nited States, at his request, delivered an address to 
 the people assembled to witness the ceremony, wise and 
 patriotic, describing a degree of national progress with 
 which the world can furnish no parallel.
 
 ADDRESS TO LAW STUDENTS. 223 
 
 It is impossible to review the course of that progress to 
 the year 1876 without wonder and amazement at every 
 step. See the vast area of territory to which our country 
 has expanded herself ; her advance in science, and its 
 application to the useful arts, in commerce, manufactures, 
 and development of resources ; in justly acquiring the 
 name of the great republic, demanding nothing wrong 
 and submitting to nothing wrong in her intercourse with 
 foreign nations, and dispensing justice according to the 
 Constitution and laws of the land at home. 
 
 Gentlemen, it is the duty of the present American 
 bar to aid in the interpretation of these Constitutions, 
 state and federal : to ascertain their true construction, 
 the powers vested in the state governments by their re- 
 spective state Constitutions, or remaining in their people, 
 and to administer and maintain them ; to interpret, ad- 
 minister, and maintain the Constitution of the United 
 States in the plenary grant of its specific powers, given 
 expressly or by necessary implication to the government 
 of the United States, which the people have made the 
 supreme law of the land. In the performance of these 
 duties the profession is raised to a function by which the 
 republic may be saved. 
 
 I desire to impress upon you the value of storing your 
 minds with the learning of former ages. Some know- 
 ledge of the ancient languages is essential to the civil 
 lawyer. A great English jurist remarks : " You can 
 scarce find an eminent man in modern times who has not 
 formed his genius and improved his taste and talents 
 for executing works of immortal renown by a thorough 
 study of the Greek and Roman classics.'' Not that their 
 ideas are more just or that their learning is more pro- 
 found than those of many moderns, but because from 
 their writings you will imbibe the spirit of true genius 
 and liberty, and habituate yourselves to their copiousness
 
 224 ADDRESS TO LAW STUDENTS. 
 
 and elegance. The speeches of Demosthenes are models 
 of eloquence, and kindle within us the fire of ancient 
 times and of liberty. I need not urge you to cultivate 
 this noble art of persuasion. The just estimation of elo- 
 quence depends upon the virtuous and rational use made 
 of it. " In peaceful times," said the Roman orator, " she 
 flourishes, protectress of liberty, patroness of improve- 
 ment, guardian of all the blessings that can be showered 
 upon the mass of humankind. Nor is her form ever 
 seen but on grounds consecrated to free institutions." 
 But no splendor of talents, no perfection in art, can com- 
 pensate for the want of moral principle. Personal virtue 
 is the foundation of all real worth, of true dignity of 
 character, of genuine piety, and of the most extensive 
 usefulness. No man wholly destitute of moral principle 
 can ever be a great lawyer. It is almost impossible to 
 separate the impression made by the character of a speaker 
 from the things he says. An opinion of honor and probity 
 in the person who undertakes to persuade adds to the 
 influence of his speech : a contrary opinion detracts from 
 its authority. 
 
 In the practice of your profession, gentlemen, you 
 should eschew and discountenance all chicanery, all petty 
 and vexatious quibbles and artifices. Such things are a 
 reproach to public justice, and never fail to bring those 
 who resort to them into contempt and odium. 
 
 Be frank and honorable, the avowed advocates of truth 
 and justice. Never violate them yourselves, and never 
 advise others to violate them. In your intercourse with 
 your brethren of the bar, you should be obliging, kind, 
 and courteous. Never treat with arrogance or contempt 
 those who possess talents inferior to your own. God has 
 seen fit to bestow on different individuals different kinds 
 and degrees of mental and corporeal endowments. "You 
 should be especially careful, if you possess extraordinary
 
 ADDRESS TO LAW STUDENTS. 225 
 
 powers of wit and sarcasm, not to exercise those powers 
 unjustly and unkindly, nor to indulge in ridicule and per- 
 sonalities unprovoked and uncalled for. 
 
 Gentlemen, graduates, lawyers, in the discharge of 
 your professional duties you should always be faithful, 
 undaunted advocates of civil and religious liberty, of jus- 
 tice and the rights of individuals. The true American 
 lawyer, informed, prompt, bold, will be foremost in up- 
 holding and protecting the rights of the people, in incul- 
 cating a proper regard for law, and in enforcing a steady 
 devotion to constitutional government. Kind-hearted and 
 generous, his ear will ever be open to cries of injured 
 innocence, and his heart will beat in sympathy with the 
 distresses of wronged and suffering humanity. He will 
 never aid the unjust man by wresting the law to his pur- 
 poses, to despoil another of his property, or to obstruct 
 him in obtaining possession of it. To the poor and just 
 man. overwhelmed by inevitable misfortunes, and involved 
 in difficulties by the suspicions and persecutions of dis- 
 appointed gain or malignant avarice, he will prove a stay 
 and support, a friend and champion, a guardian angel to 
 guide him through the mazes of a legal labyrinth to 
 security and peace. 
 
 I feel that I need not impress upon you the duty of 
 cherishing a love for your Alma Mater, and of advancing, 
 for the honor of Louisiana, her fame and usefulness. 
 The principles and the learning which you carry home 
 with you are the best evidence of her charter. She now 
 sends you forth into the field of competition and labor. 
 The affection, the good wishes, the confidence of all her 
 professors attend you. 
 15
 
 REPORT UPON THE LAW OF EVIDENCE. 
 
 [In 1861 the Senate of the State of Louisiana, having had 
 under consideration a proposed amendment to the law of evi- 
 dence of the State, listened to the following report of Mr. Hunt 
 in behalf of the Judiciary Committee.] 
 
 AT the last annual session of the legislature a bill was 
 introduced similar to that now before the Senate, for the 
 amendment of the law of evidence in this State. It was 
 referred to the Committee on the Judiciary, who reported 
 it back favorably to the Senate, but no further action was 
 had upon it. They did not press the immediate consid- 
 eration of the bill, because the change which it proposed 
 to make in the law of evidence is radical, and overturns 
 rules long established, and which, until a comparatively 
 recent date, received the commendation of the ablest 
 jurists of Europe and America. It is true, the principles 
 embodied in the bill had been thoroughly discussed by 
 Jeremy Bentham and his followers, and had, under the 
 lead of Lords Denman, Campbell, Brougham, and others, 
 been successively adopted by the British Parliament and 
 made part of the English law. They had been advocated 
 with masterly ability by Edward Livingston in the intro- 
 ductory report to the Code; of Evidence, prepared under 
 the authority of a law of the State passed in 1822. 
 They had been adopted, too, by States of our late Union, 
 eminent for their polity and the wise administration of 
 justice. But the attention of the legislators and jurists 
 of Louisiana did not appear to have been turned to the 
 subject ; and it was deemed prudent to defer final action 
 upon the matter until the present time.
 
 REPORT UPON THE LAW OF EVIDENCE. 227 
 
 The object of the bill is to render large classes of per- 
 sons competent to testify, whose testimony is excluded by 
 the existing law. 
 
 The law excludes the testimony of persons in a case 
 who are interested in its result. 
 
 It excludes the testimony of parties in their own favor. 
 
 It excludes the testimony of husband and wife for or 
 against one another. 
 
 It excludes the testimony of ascendants and descendants 
 in civil cases. 
 
 It excludes the testimony of persons who are deficient 
 in religious belief. 
 
 It excludes the testimony of persons who have been 
 convicted of an infamous offense. 
 
 The bill proposes to alter the law in these particulars, 
 and to receive the testimony of the persons now repudi- 
 ated as witnesses, leaving its value to be estimated by 
 the judging power. 
 
 Before entering upon the examination of the several 
 provisions of the bill, the committee desire to advert to 
 some general principles connected with them all. 
 
 Every person who institutes a suit is bound to state 
 such facts as will show his claim to be founded in law. 
 The facts may be either admitted or denied. If admit- 
 ted, it becomes the duty of the court to determine what 
 the law is upon the facts ; if denied, they must be proved, 
 and this proof must be made by evidence. The duty of 
 judicial tribunals embraces the investigation of facts, as 
 well as the application of the principles of law to such as 
 are ascertained. Law, indeed, can be administered only 
 on the assumption of the truth of the facts to which it is 
 applied. 
 
 The object of evidence is the establishment of truth. 
 Courts of justice employ the same means of investigating 
 and determining disputed facts as mankind in general
 
 228 REPORT UPON THE LAW OF EVIDENCE. 
 
 make use of, except so far as positive laws interfere. 
 It has been truly said that the organization of courts, 
 the enumeration of rights, the means of asserting them, the 
 denunciation of penalties for infringing them, and the 
 rules of procedure are only preparatory steps to the trial, 
 which in itself is but the examination of evidence. So 
 that ultimately the whole machinery of jurisprudence in 
 all its branches is contrived for the purpose of enabling 
 the judging power or tribunal to determine on the truth 
 or falsehood of every litigated statement. This can only 
 be done by hearing and examining everything that will 
 contribute to bring the mind to the determination. If we 
 refuse to hear anything that will produce the effect, we 
 determine 011 imperfect evidence, and of course are sub- 
 jected to the chance of making an eiToneous decision. 
 All exclusions of evidence are, therefore, injurious to the 
 object of all investigation, the discovery of truth. In 
 the ordinary affairs of life, in the investigation of truth, 
 no evidence is rejected. Suppose you wish to inquire con- 
 cerning some delinquence that has occurred in your house, 
 and that you have an inmate who saw what occurred : 
 would you refuse to ask him any questions, or to hear him, 
 because you know he has been heretofore guilty of lying? 
 No, you would hear his statement, and, allowing for his 
 propensity, judge whether it affected him in the case be- 
 fore you. In all other matters of inquiry and investiga- 
 tion, everything is examined, every one is heard, and he 
 who is to judge relies upon his own power to discrimi- 
 nate. In law alone he is taught to distrust that power, 
 and to reject all evidence that may possibly lead him 
 astray. Is this reasonable? 
 
 To this question the common and the civil lawyers 
 answer " Yes/' and extol the wisdom of the rules which 
 exclude the testimony of certain classes of persons. In 
 this respect they argue : ' The law follows the common
 
 REPORT UPON THE LAW OF EVIDENCE. 229 
 
 experience of mankind. The purposes of justice require 
 that such evidence as is more likely than otherwise to 
 mislead should be excluded. If this were not the case, a 
 witness unworthy of credit might often receive as much 
 consideration as one worthy of the fullest confidence. 
 We must, therefore, guard against incorrect decisions by 
 the absolute rejection of persons whose testimony, either 
 from interest in the matter in dispute or any other visible 
 cause, seems likely to prove untrustworthy." 
 
 On the other hand, it is contended that no kind of 
 evidence whatever, capable of throwing light on the ques- 
 tion agitated, ought to be rejected, unless its exclusion can 
 be justified by the inconvenience and expense of obtain- 
 ing it, or by the vexation and delay that would attend it. 
 In illustration of the latter part of this proposition, the 
 following case has been put : " By laying a barrowful of 
 rubbish on a spot on which it ought not to have been laid 
 (the side of a turnpike road) Titius has incurred a pen- 
 alty of five shillings. No man was witness to the trans- 
 action but Sempronius : and in the station of writer Sem- 
 pronius is gone to make his fortune in the East Indies. 
 Should Sempronius be forced, if he could be forced, to 
 come back from the East Indies for the chance of sub- 
 jecting Titius to this penalty ? Who would think of sub- 
 jecting Titius to this vexation ? Who would think of 
 subjecting Sempronius or anybody else to this expense ? " 
 It is obvious that the vexation, expense, and delay in 
 obtaining the testimony would amount to a preponderant 
 evil, and justify its exclusion. But it is insisted that 
 where this is not the case, all objections to the admis- 
 sibility of a witness should be at once annihilated and 
 classed under objections to his credibility, varying accord- 
 ing to circumstances ; that in many cases the excluding of 
 a casual witness to a fact would be to exclude all attain- 
 able evidence on the question in dispute, and offer by
 
 230 REPORT UPON THE LAW OF EVIDENCE. 
 
 impunity a premium to dishonesty, fraud, and crime. If 
 it be said that, owing to unsoundness of mind, deficiency 
 of religion, antecedent misconduct, or personal interest, 
 the evidence is likely to prove unsafe, the answer is, that 
 any line drawn on the subject must be in the highest 
 degree arbitrary. It is impossible to enumerate a priori 
 the causes which may distort or bias the minds of men 
 to pervert or misstate the truth, far more to estimate their 
 weight in each individual case or with each individual 
 person. This is the settled opinion of the ablest English 
 writers and jurists, after a careful examination of the 
 arguments concerning the incompetency of witnesses and 
 a practical experience of years ; and the opinion is well 
 founded. 
 
 Let us consider the matter. For what purpose does 
 the court sit? To decide correctly the cause before it. 
 What then is the evil to be guarded against ? Erroneous 
 decision, or " misdecision," as Bentham calls it, produced 
 by false testimony. Now, the testimony offered and re- 
 jected was either necessary to the cause of the party pro- 
 ducing it, or it was not absolutely necessary. 
 
 First, suppose it necessary, the party offering it 
 having no other testimony to establish his right. It is 
 plain, in that case, that by excluding it you certainly 
 produce an erroneous decision, for fear of a possible 
 erroneous decision from false testimony, " as a panic- 
 struck bird is said to fly into the serpent's mouth, or as a 
 man jumps overboard for fear of being drowned. ' If the 
 testimony be admitted, you may be on your guard and 
 correct the evil. If it be rejected, there is no alternative. 
 Misdecision is inevitable if testimony, without which a 
 just decision cannot be had, be rejected. \ on owed a 
 thousand dollars ; you paid it in the presence of Primus ; 
 Primus is convicted of an offense destroying his compe- 
 tence to testify ; his testimony is rejected : you lose your
 
 REPORT UPON THE LAW OF EVIDENCE. 231 
 
 cause. Could more injustice be done if he were admitted ? 
 False testimony is given every day in some cause or 
 other ; cross-examination or counter-testimony almost in- 
 variably corrects it. The opposite party, the counsel, the 
 judge, the jury, are all on their guard, and it is nearly 
 impossible for perjury, suspected beforehand, to succeed. 
 
 Suppose, next, the evidence excluded to be not abso- 
 lutely necessary, because the party offering it has other 
 testimony. If the decision be given on that other tes- 
 timony, the exclusion can produce no beneficial influ- 
 ence on the decision of the cause ; it only puts the party 
 to expense to procure different evidence. A witness 
 knowing the suspicions concerning him, and how much 
 every one is on the alert to convict him of falsehood, 
 would not commit perjury gratuitously. If he have any 
 special motive to bear false testimony, this motive is 
 extraneous to the legal motive for rejecting him. Even 
 from a witness desirous of deceiving, examination and 
 cross-examination will generally elicit useful truths. Mr. 
 Best says : " We have read somewhere of a whole nation 
 who purposely gave false answers to all questions respect- 
 ing the topography of their country. Still, a traveler was 
 enabled to ascertain it by questioning upon incidental 
 facts, when the truth naturally oozing out supplied him 
 with materials for arriving at the knowledge sought." 
 
 The rules of evidence by which our courts are gov- 
 erned have been borrowed in a great part from the 
 English law. In revising the Civil Code in 1825, it was 
 intended to prepare a separate code of evidence. But 
 this has not been done, and our Civil Code contains only 
 some general leading principles of evidence in civil cases. 
 On the subject of exclusion, which is now under consid- 
 eration, the systems materially differ, and are more or 
 less uncertain in their provisions. 
 
 Various classes of persons were rejected by the civilians
 
 232 REPORT UPON THE LAW OF EVIDENCE. 
 
 of mediaeval Europe and by the old English lawyers upon 
 the ground that giving evidence in a court of justice is 
 a right rather than a duty, and consequently that incom- 
 petency to testify is a fitting punishment for matters to 
 which the law is desirous of attaching the stiirma of dis- 
 
 o o 
 
 grace. 
 
 The ancient practice in England affixed the brand of 
 incompetency to holding obnoxious opinions ; thus not 
 only punishing the delinquent, but inflicting ruin on a 
 party to a suit whose life, property, or honor might be 
 saved by the evidence of the rejected witness. 
 
 There can be 110 doubt that this principle was borrowed 
 from the civil law of the Middle Ages. 
 
 In that law, the list of persons liable to be rejected as 
 incompetent to bear testimony was exceedingly large. In 
 some instances entire classes were rejected. The cele- 
 brated Constitution of the Greek Emperor Anastasius 
 declared that Pagans, Manichyeans, and members of some 
 other sects were disqualified from giving evidence under 
 any circumstances ; while heretics and Jews were allowed 
 to do so only in causes in which they were parties, and, 
 except in peculiar cases, could not bear testimony against 
 orthodox Christians. Similar principles prevailed in the 
 canon law. 
 
 The law of ancient Rome refused the testimony of 
 women in certain cases, and the civil and canon laws in 
 the Middle Ages carried the exclusion further. In Scot- 
 land, until the beginning of the eighteenth century, sex 
 was a cause of exclusion in the great majority of cases. 
 Even the old English lawyers occasionally rejected the 
 evidence of women, on the ground "they are //-a//." The 
 reason is not imlike that of the civil law, which is said 
 to be "because women are usually frutidulcn t<i\ falldwx, 
 et dvloKrti" or the reason assigned by the doctors of the 
 canon law, who declared, in the language of Virgil,
 
 REPORT UPON THE LAW OF EVIDENCE. 233 
 
 " varium et mutabile, semper femina" Undoubtedly 
 there were many exceptions to these rules. But even 
 after women had been admitted to bear testimony in 
 France, their evidence was not considered equivalent to 
 that of a man ; and it seems to have been a principle that 
 a virgin was entitled to greater credit than a widow, 
 " magis creditur virgini quam viduce." 
 
 Under the civil law system, all questions of law and 
 fact were decided by a single judge. The examination of 
 witnesses was secret, and was made by judges unacquainted 
 with the circumstances of the case, without confrontation, 
 personal cross-examination, or publicity ; the parties them- 
 selves were not allowed to be present. Under such a 
 system, the difficulty of detecting falsehood afforded a 
 plausible pretext for an extended prohibition of suspected 
 witnesses, though nothing can give a colorable excuse for 
 the enormous extent to which it was carried. 
 
 How different is the common law system and our own ! 
 Under these, the evidence of witnesses is given viva voce, 
 in presence of the party against whom they are produced, 
 and he is allowed to cross-examine them. The great tests 
 of the truth of a narrative are the consistency of its sev- 
 eral parts and the probability of the matters narrated. 
 Stories entirely false are comparatively rare : it is by mis- 
 representation, suppression of some things and addition 
 of others, that a false coloring is given to the acts of 
 men ; and it is only by a searching inquiry into the sur- 
 rounding circumstances that the whole truth can be 
 brought to light. The party against whom false testimony 
 is directed is interested in exposing it, and is the person 
 best acquainted with the facts as they really have occurred, 
 and is, therefore, most able to furnish means for the de- 
 tection of the falseness of the testimony. Besides, it is 
 very difficult for a witness to come prepared with his story 
 to meet every question which may be put to him suddenly
 
 234 REPORT UPON THE LAW OF EVIDENCE. 
 
 on a cross-examination. And further, what is perhaps 
 of still greater importance, courts of justice are, by the 
 common law and by the law of Louisiana, open to all. 
 The publicity of the examination of the witness operates 
 as a check upon mendacity and incorrectness. Environed, 
 as he sees himself, by a thousand eyes, contradiction, 
 should he hazard a false tale, will seem ready to rise up 
 in opposition to him from a thousand tongues. Many a 
 known face, and many an unknown one, presents to him 
 a possible source of detection, from whence the truth he 
 is struggling to suppress may, through some unsuspected 
 channel, burst forth to his confusion. 
 
 Under such a system, the principle of exclusion is 
 wholly misplaced. Accordingly, the inclination of mod- 
 ern judges and law-givers in England and the North 
 American States is in favor of receiving the testimony of 
 witnesses, leaving its value to be properly estimated. 
 
 The committee might rest content with this general state- 
 ment of the argument in favor of the bill ; but they will 
 proceed to examine more particularly the grounds on 
 which the several clauses of the bill are based. And first, 
 the law excludes the testimony of persons who are in- 
 terested in the result of the suit. The rule, it is said, is 
 founded on the known infirmities of human nature, which 
 the law deems too weak to be generally restrained by 
 religious or moral obligations, when tempted and solicited 
 in a contrary direction by temporal interests. Its object 
 is to guard against the danger of perjury, and to shut out 
 testimony unworthy of credit in judicial investigations. 
 u There is," said Lord Chief Baron Gilbert, '" from the 
 nature of human passions and actions, more reason to dis- 
 trust such biased testimony than to believe it." 
 
 The principle upon which the rule rests is altogether 
 unfounded. It assumes that, in the great majority of 
 instances, men are so corrupt that, from a mere regard
 
 REPORT UPON THE LAW OF EVIDENCE. 235 
 
 to their interest, however small that interest may be, they 
 will violate the duties of morality and religion, and run 
 the risk of incurring the penalties of the law by commit- 
 ting perjury, for the chance of imposing upon the judge 
 and jury, after counter-testimony and strict cross-exami- 
 nation, before the public, in open court, where every one 
 who hears them testify is aware of their bias and on his 
 guard against deception by false testimony. For although 
 other strong motives to produce mendacity may be secret, 
 yet interest, pecuniary motive, before it can render a 
 witness incompetent, must be proved and known to the 
 court and jury. The assumption is contrary to all expe- 
 rience. In general, witnesses are honest, however much 
 interested : and in most cases of dishonesty the falseness 
 of the testimony is detected, and misleads none. 
 
 Let it be remembered that the great object to which all 
 the rules of evidence should be directed is the discovery 
 of truth ; and that the only question is, Will the object 
 be better effected by the admission or by the exclusion of 
 the witness ? No one who has an enlarged knowledge 
 of human nature, or any respect for the society in which 
 he lives, would hesitate to admit the witness. 
 
 Undoubtedly, interest may be a motive with some per- 
 sons for mendacity and perjury, but its influence varies 
 upon different persons. The amount of the interest, the 
 condition of the witness, his standing in society, his for- 
 tune, education, sensibility, and other circumstances may 
 affect and control the influence. Who can believe that 
 the loss or gain of five dollars would have affected the 
 testimony of George Washington or of John Marshall ? 
 On the other hand, suppose, with Mr. Bentham, an ill- 
 educated laborer, with a wife and children on the point 
 of starving : is there any analogy between the cases ? 
 
 Now, the truth is secured among men in their mutual 
 intercourse by powerful sanctions or guarantees : (1.) By
 
 236 REPORT UPON THE LAW OF EVIDENCE. 
 
 the natural sanction, which is a sort of instinct that im- 
 pels man to speak the truth, and makes him do violence 
 to himself whenever he betrays it and injures another. 
 (2.) By the moral or popular sanction, which punishes, 
 with disgrace, the liar. (3.) By the religious sanction, 
 which is founded on the dread of future punishment. 
 (4.) By the legal sanction, which punishes false testi- 
 mony in a judicial proceeding, and renders it difficult to 
 devise a falsehood that will pass examination in a court 
 of justice. All these sanctions are in continual operation 
 to secure the truth of testimony befoi'e the courts. If it 
 be admitted that men may occasionally be found in whom 
 motives of interest preponderate over the powerful re- 
 straining motives just enumerated, it cannot be denied that 
 they constitute a very small number in comparison with 
 those to whom the interest is too trifling to be an object 
 compared to their fortune and situation in life ; those 
 who, under the influence of a strong interest, would be 
 restrained by the stronger motives of religion or morality ; 
 those who would be deterred by the fear of shame or 
 of punishment ; and those who, without these restraints, 
 find their hearts to fail them from the difficulty of fram- 
 ing false testimony so as to give it the semblance of 
 truth. 
 
 Ought we then to exclude the numerous interested wit- 
 nesses who would tell the truth, because a few interested 
 would commit perjury at the risk of detection and pun- 
 ishment ? 
 
 Remember the law has drawn no line of pecuniary in- 
 terest ; it makes no distinction between interests of differ- 
 ent amounts, or between interested witnesses of different 
 characters ; it quite overlooks the ratio between the sum 
 in question and the pecuniary circumstances of the wit- 
 ness. No matter what the amount of interest is, one 
 cent, one dollar, one hundred, one thousand, one million,
 
 REPORT UPON THE LAW OF EVIDENCE. 237 
 
 the effect is the same, the witness is excluded. It is true, 
 the interest appears, and if the law would permit the wit- 
 ness to be heard his testimony might be weighed and his 
 motives judged. But no : by the law of exclusion for 
 pecuniary interest, a cent may render a man venerated 
 for his holy life, of the highest sense of honor, and worth 
 a million of dollars, a witness too suspicious to be credited 
 on his oath. And this is law : " founded," says Lord 
 Erskine, " in the charities of religion, in the philosophy 
 of nature, in the truths of history, and in the experience 
 of common life." 
 
 Who is the person suffering? The innocent suitor. 
 Suppose the excluded testimony is necessary to save the 
 character or life of the party offering it. One man is 
 presumed to be a perjurer, and therefore another man is 
 disgraced for life or punished with death. 
 
 Our law excludes, in civil cases, all persons from testi- 
 fying who are interested, directly or indirectly, in the 
 result of the suit. This is imperatively expressed in 
 Article 2260 of the Civil Code. But our courts have, by 
 a long series of decisions, adopted the English rule, and 
 excluded only those who are directly interested ; they 
 have admitted all the exceptions contained in the English 
 law. Now, the interest which excluded at common law 
 was a legal interest ; that is, a direct certain interest in 
 the event of the case, or an interest in the record for the 
 purposes of evidence, however minute that interest may 
 have been. This rule, so wide and extensive in its terms, 
 gave rise to constant questions and doubts, and the courts 
 gradually relaxed it by making numerous and important 
 exceptions to it, irreconcilable with the principle of the 
 rule itself. Thus, a certain legal interest, to the amount 
 of a dollar, excludes ; a contingent interest, to the amount 
 of a million, is unnoticed. The consequence is that par- 
 ties are often competent to give evidence who are swaved
 
 238 REPORT UPON THE LAW OF EVIDENCE. 
 
 by the strongest moral interest to pervert the truth. 
 Again, a factor, or any other agent, who is to receive a 
 commission on the amount of a contract or sale, is de- 
 clared a competent witness to prove the sale or contract 
 for his principal. A servant employed to deliver goods 
 to a purchaser, or a clerk employed to pay money to a 
 creditor, is a good witness to prove the delivery or the 
 payment, as the case may be. But if the cause depend 
 on the question whether the agent or servant has been 
 guilty of neglect or misconduct, he is not a competent 
 witness for his principal without a release, because he is 
 liable over. Cases without number, of a similar char- 
 acter, might be cited, wherein the disqualification from 
 interest was found so inconsistent with public policy as to 
 cause constant inroads to be made upon the principle of 
 exclusion. These cases are frequently entirely contradic- 
 tory to each other, or supported by decisions abounding in 
 flimsy and subtle distinctions, and occasionally, by their 
 contrariety, creating much legal doubt. In order to meet 
 the difficulty, various expedients, by means of release, 
 etc., were resorted to, for the purpose of restoring the 
 competency of interested witnesses. Speaking of release, 
 Lord Brougham, then Mr. Brougham, in his celebrated 
 speech on law reform, in the House of Commons, in 1828, 
 said : " Evidence is thus often cooked up for the court, 
 nay, in the court, while the witness is in the box, which, 
 according to the existing rules, is not admissible without 
 this process of release. Now, what is the real effect of 
 the release on the mind of the witness ? .lust nothing; 
 for if he be an honorable man, he gives it up the moment 
 he leaves the box, and while swearing he knows that he is 
 to do so." 
 
 The courts in England still further relaxed the rule of 
 exclusion in the case of Bent >'. Baker, in which it was 
 decided that, in an action, one underwriter of a policy was
 
 REPORT UPON THE LAW OF EVIDENCE. 239 
 
 a competent witness for another underwriter of the same, 
 even though his evidence substantially settled the case as 
 to both. Without dwelling further upon the decisions of 
 the courts, it will suffice to observe that the practical in- 
 convenience of so extensive an exclusion of witnesses as 
 that on the ground of interest being found intolerable, 
 Parliament at length interfered, and in 1834, by the 
 Statute 3d and 4th William IV., rendered competent 
 the whole class of witnesses excluded by an interest in the 
 record as an instrument of evidence ; but provided that 
 the record should not be admissible in evidence in another 
 cause, for or against such witnesses. It would seem that 
 this statute introduced no new principle, but merely re- 
 moved the interest which would otherwise have disquali- 
 fied the witnesses, like the notable expedient of a release 
 described by Brougham. 
 
 But this was superseded in 1843 by the Statute 6th 
 and 7th Victoria, 85, commonly known by the name of 
 Lord Denman's Act. After reciting that " the inquiry 
 after truth in courts of justice was often obstructed by 
 incapacities created by the present law, and it was desir- 
 able that full information as to facts in issue, both in 
 criminal and civil cases, should be laid before the persons 
 appointed to decide upon them, and that such persons 
 should exercise their judgment on the credit of the wit- 
 nesses adduced and on the truth of their testimony, it 
 enacted that no person offered as a witness shall be ex- 
 cluded, by reason of incapacity from interest, from giving 
 evidence in any cause, except in certain cases therein 
 afterwards specified." At length came Lord Campbell's 
 Act, 14th and 15th Victoria, c. 99, August, 1851, to amend 
 the law of evidence, which has effectually expunged from 
 English jurisprudence the title of " incompetency of wit- 
 nesses from interest.'' 
 
 The example of England has been followed in the
 
 240 REPORT UPON THE LAW OF EVIDENCE. 
 
 States of America very generally, in Connecticut, New 
 York, Ohio, Massachusetts, Mississippi, and other States. 
 
 The committee conclude their report on this portion of 
 the bill by citing the uniform testimony of the English 
 lawyers upon the subject, who declare that " of all the 
 acts in their statute book, these which render interested 
 witnesses competent contain in the smallest compass the 
 greatest amount of good. They settle the law upon an 
 intelligible, reasonable, and satisfactory basis, put an end 
 to some of the most intricate perplexities of the law, and 
 reject a principle which was unsound in theory, and in 
 practice often led to results most unfavorable to the due 
 administration of justice." 
 
 The time has come when Louisiana should act upon 
 this matter, and, gaining wisdom from the experience of 
 others, admit the evidence of interested witnesses without 
 exception, leaving the weight of the evidence to be deter- 
 mined by the judging power. 
 
 The committee will next proceed to the consideration 
 of the provision in the bill for the repeal of the rule 
 which excludes the testimony of the parties in a civil suit. 
 This exclusion is substantially embraced in that which 
 has just been considered. It rests upon the ground that 
 it removes the temptation to perjury, and secures judicial 
 tribunals from being deceived by false testimony and led 
 into erroneous decisions. 
 
 To a certain extent our present law has repudiated this 
 argument. It allows one party to the suit to examine the 
 adverse party. A plaintiff may interrogate the defendant, 
 and the defendant the plaintiff. The bias of a party in 
 his own favor is known, and every corrective is ready to 
 be used against him: cross-examination, counter-evidence, 
 publicity, experienced counsel, judge, and jury. Surely 
 there can be no great danger of being misled by false 
 testimony iinder such circumstances.
 
 EEPORT UPON THE LAW OF EVIDENCE. 241 
 
 There are two defects in our present law upon the sub- 
 ject. The first consists in the mode of examining, and in 
 the effect given to the evidence ; the second, in not allow- 
 ing a party to be examined whenever he himself chooses. 
 The parties are generally those best acquainted with the 
 facts of the case, and best able to state them. If it be 
 desirable to hear them, there can be no reasonable objec- 
 tion to extract from them the whole truth by a public 
 examination in the same way as we extract truth from 
 other witnesses. The testimony of every witness should 
 be left to have that weight which his character or other 
 circumstances justly entitle it to. The declaration of a 
 party may not be believed by the judge and jury. He is 
 certainly a suspicious witness, and yet the law declares 
 that his oath shall be conclusive, unless contradicted by 
 two witnesses, or one witness corroborated by circum- 
 stances or written proof. The true rule is to put his tes- 
 timony on a footing with that of any other witness. 
 
 The exclusion of a party's testimony in his own favor 
 strikes at the great principle of legal evidence, that the 
 best evidence should be adduced. It renders inferior 
 evidence necessary, at the hazard of delay, vexation, and 
 expense, parties generally knowing most about the mat- 
 ter in dispute. 
 
 Why should a party be deprived of the right of being 
 heard, of clearing up doubts, and rectifying errors which 
 may have been produced by the inattention or design of 
 witnesses, or the ambiguity of other evidence ? Why ex- 
 clude that which is calculated to throw most light upon 
 the subject? 
 
 The rule of exclusion is broken in upon in all motions 
 upon affidavit, an affidavit drawn by his lawyer, and 
 heard without cross-examination : in the affidavit to hold 
 to bail ; in the affidavit to attach, and in the affidavit to 
 sequester property ; in the affidavit for an injunction, 
 16
 
 242 REPORT UPON THE LAW OF EVIDENCE. 
 
 and in the various affidavits used in the progress of a 
 cause. It is broken in upon in the oath in litem : first, 
 in cases where the party against whom it is offered has 
 fraudulently or unwarrantably intermeddled with the 
 plaintiff's goods, and no other evidence can be had of the 
 amount of the damages ; and second, when on grounds of 
 public policy it is deemed essential to the purposes of 
 public justice. In a word, the exceptions are so numerous 
 that the rule itself serves only the purposes of deception ; 
 it no longer prevails in England. 
 
 Shortly after the passing of Lord Denman's Act, the 
 statute for the establishment of county courts, which 
 superseded a large number of minor tribunals in England, 
 was promulgated. It provided that parties in those new 
 courts should be witnesses on either side. This was not 
 an innovation, for the old Court of Conscience and Court 
 of Requests contained similar provisions. By the old 
 bankruptcy acts, passed under James I., every bankrupt 
 was made a competent witness in relation to the bank- 
 ruptcy, and this principle is incorporated into the present 
 bankrupt law of England. 
 
 By far the greater portion of the numerous demands 
 recoverable in the county courts were recoverable in the 
 superior courts. In the former, the evidence of the party 
 weighed : in the latter, it was deemed wholly unworthy of 
 trust. It thus appeared as if the superior courts had less 
 efficacious means of testing the truth of evidence and de- 
 tecting falsehood than the inferior tribunals. The plain- 
 tiff (who had his option as to where he would sue), if his 
 own testimony would be adverse, or he knew the evidence 
 of the defendant would establish the defense, sued in the 
 superior court, and excluded the evidence. The jurisdic- 
 tion of county courts having been considerably enlarged, 
 and the evidence of parties having proved beneficial to 
 the administration of justice, it was deemed unreasonable
 
 REPORT UPON THE LAW OF EVIDENCE. 243 
 
 to preserve a distinction between the rules of evidence in 
 the tribunals. By the act to amend the law of evidence, 
 passed 7th August, 1851, 14th and 15th Victoria, c. 99, 
 all the parties to a suit, and those in whose behalf a suit 
 is brought, are admissible witnesses, on behalf of either 
 or any of the parties to the suit. 
 
 The committee have felt and still feel much doubt 
 whether this principle should be extended to criminal 
 cases. They are inclined to think the provision in Lord 
 Brougham's Act, which declares that no person shall be 
 compelled to criminate himself, or to give evidence against 
 himself upon any charge brought against him for a crim- 
 inal offense, is founded in philosophy as it is undoubt- 
 edly in clemency. They have, therefore, retained the 
 provision in the bill before the Senate. 
 
 By our code, as well as under the common law, the rule 
 by which parties are excluded from being witnesses for 
 themselves applies to the case of husband and wife ; 
 neither of them being admissible as a witness in a cause, 
 civil or criminal, in which the other is a party or has in- 
 terests involved. The exclusion is founded partly on 
 their legal identity, and partly on public policy, which 
 requires that the confidence between husband and wife 
 should be sacredly protected and cherished as the best 
 solace of human existence. 
 
 The committee have stated this exclusionary rule and 
 the reasons assigned for it in the language of Mr. Green- 
 leaf. If the rule were limited to the protecting from dis- 
 closure matters communicated in nuptial confidence, or 
 facts the knowledge of which has been acquired in con- 
 sequence of the relation of husband and wife, the com- 
 mittee would not recommend its repeal, but it is an 
 absolute prohibition of the testimony of the witness to 
 any facts affecting the husband or wife, as the case may 
 be, however the knowledge of these facts may have been
 
 244 REPORT UPON THE LAW OF EVIDENCE. 
 
 acquired. The rule only applies where the husband or 
 wife is party to the suit, and does not extend to a collat- 
 eral suit between third parties. And the declarations of 
 a wife, acting as the agent of her husband, are evidence 
 against him, like the declarations of any other agent. 
 
 The exceptions to the rule are important. In cases 
 where a personal injury is threatened or inflicted by one 
 on the other, the law does not allow the legal identity of 
 husband and wife to supersede the great principle that 
 the state is bound to protect the life and limbs of its 
 citizens ; and it generally happens that offenses of this 
 kind cannot be proved without the evidence of the injured 
 party. In such cases, therefore, the injured husband or 
 wife may testify against the other. And yet, with what 
 has been called " a cruel absurdity," in a case of bigamy, 
 the first wife is not a competent witness against the ac- 
 cused, she is prohibited from proving the fact of her 
 marriage, her mouth is stopped against him, while, with 
 strange inconsistency, she is allowed to prove the fact in 
 a collateral suit between third persons ! 
 
 As early as 21 Jac. 1, c. 19, commissioners in bank- 
 ruptcy were authorized to examine the bankrupt's wife to 
 discover any property concealed by him ; and the provi- 
 sion was reenacted under George IV. The examination 
 of the bankrupt and wife in a modified form was retained 
 under the present Queen of England. The county courts, 
 Acts 9 and 10 Victoria, which rendered parties to suits 
 competent witnesses in those courts, extended " to their 
 wives and all other persons.'' And finally, the statute of 
 1853, 1C and 17 Victoria, c. 99 (Lord Brougham's Act), 
 not overlooking the temptation, naturally arising out of 
 the marriage connection, to induce husband and wife to 
 favor each other, but considering it, like any other known 
 bias, to be guarded against and allowed for, enacted 
 that husband and wife should be competent witnesses for
 
 REPORT UPON THE LAW OF EVIDENCE. 245 
 
 and against each other in all civil cases, except in pro- 
 ceedings in consequence of adultery ; but they were not 
 competent in any criminal proceedings against each other, 
 nor compellable to disclose any communication made by 
 one to the other during the marriage. This statute has 
 been substantially copied and adopted by the leading 
 States of the late Union, and its provisions are embodied 
 in the bill referred to the committee. They are recom- 
 mended to the adoption of the Senate, as founded in 
 principle and sanctioned by experience. 
 
 If the reasoning in this report is correct, it necessarily 
 follows that the rule of our Civil Code which excludes the 
 testimony of ascendants and descendants for or against 
 each other should be repealed. The rule does not pre- 
 vail in criminal cases. Pride, passion, affection, friend- 
 ship, blood relationship, the love of parents and of chil- 
 dren, are 110 disqualification of a witness in a criminal 
 prosecution affecting the life, liberty, property, or honor 
 of the accused. But let the case be a civil one involving 
 a claim of twenty dollars, and our law will not permit 
 an ascendant or descendant to testify for or against each 
 other when a party to the suit. Are there not the same 
 means of ascertaining whether the father or son tells 
 
 O 
 
 the truth in a civil suit as in a criminal suit? If ad- 
 mitted as a witness in the latter, ought he not also to be 
 admitted in the former case ? Cannot the weight of his 
 evidence be equally considered in each case ? The com- 
 mittee are of opinion that the proposed alteration, which 
 will admit the evidence of ascendants and descendants in 
 civil as well as in minimal cases, should be made. 
 
 It remains for the committee to examine the rules 
 which exclude the testimony of witnesses who do not be- 
 lieve in the existence of a God and a future state of re- 
 wards and punishments, and of witnesses who have been 
 convicted of any infamous offense.
 
 246 REPORT UPON THE LAW OF EVIDENCE. 
 
 The sanctions by which mendacity is restrained and 
 truth is secured natural, moral, religious, and political 
 have been pointed out already ; the difficulty of devis- 
 ing a falsehood that will pass examination in a court, the 
 fear of legal punishment, the fear of disgrace and loss of 
 character, the pain of falsehood and injustice, the dread 
 of future punishment. Of these sanctions, one only, the 
 religious sanction, has no influence on the mind of the 
 atheist. The other sanctions operate with full force upon 
 him. " Atheism," says Lord Bacon, " leaves a man to 
 sense, to philosophy, to natural piety, to laws, to repu- 
 tation : all which may be guides to an outward moral 
 virtue, though religion were not." 
 
 Ought atheism, then, and other forms of infidelity 
 which deny all exercise of divine power in punishing 
 falsehood, to be recognized as a sufficient ground to ren- 
 der a person incompetent to testify ? The committee 
 think they ought not. 
 
 The law presumes that every man brought up in a 
 Christian land, where God is generally acknowledged, does 
 believe in Him and fear Him. The witness himself cannot 
 be questioned as to his religious belief, because this would 
 be a personal scrutiny into the state of his faitli and con- 
 science foreign to the spirit of our institutions. No man 
 is bound to avow his belief : but if he does avow it, the 
 avowal may be proved, like any other fact, by third per- 
 sons. 
 
 Now, it is argued by Mr. Bentham, and those who have 
 succeeded him, that he who runs counter to the religious 
 persuasions of the community is sure to meet with much 
 obloquy and great personal inconvenience. Suppose such 
 a man produced as a witness. In a conversation with 
 several persons he had avowed himself to be an atheist, 
 and had, by so doing, marred the prospects of success that 
 he entertained for himself and his family. Nothing pro-
 
 REPORT UPON THE LAW OF EVIDENCE. 247 
 
 vented him from affirming the contrary, or concealing his 
 opinion and escaping the injury and the stigma which his 
 avowal fastened on him, but a regard for truth and a 
 respect for his own character in society and in his own 
 family. This is deemed a sufficient ground to disbelieve 
 him, and he is rejected as incompetent to testify. His 
 declaration of atheism renders him utterly incompetent. 
 
 We read of conspirators in crime who, in order to secure 
 impunity, bind each other by solemn oaths never to reveal 
 the part taken by any of them in the perpetration of the 
 crime. How much more efficacious is the mode furnished 
 by this rule of evidence ! Let a man who proposes to 
 join in committing a crime make his associates avow 
 themselves to be atheists, and he will be perfectly secure 
 as against them. In this way, any knot of criminals may 
 combine and secure impunity, and any man whatever may 
 get rid of the inconvenience of giving testimony. A 
 man is indicted for a crime. Paul was present at the 
 time of its commission, and knows all the circumstances. 
 He is summoned to testify. He wishes to screen the cul- 
 prit. He declares to the friends of the prisoner, or to 
 other persons, that he is an atheist, and suggests to the 
 counsel of the accused, " Ask Primus, Secundus, Tertius, 
 if I did not avow myself to be an atheist." The objec- 
 tion is taken, the witness is dismissed, the culprit is set 
 free. 
 
 Is it wise to leave it in the power of any man whose 
 breast is the repository, perhaps the sole repository, of 
 evidence affecting the lives and fortunes of others, to 
 stifle that evidence by pretending to hold erroneous views 
 on the subject of religion ? But even if we suppose the 
 want of religious faith to be genuine, is it not more 
 properly an objection to the credit than to the competency 
 of the witness ? 
 
 In England, the Statute 6 and 7 Victoria, c. 22, allowed
 
 248 REPORT UPON THE LAW OF EVIDENCE. 
 
 the unsworn testimony to be received of the members 
 of certain barbarous races in the British colonies, who 
 are described in that statute " as destitute of the know- 
 ledge of God and of any religious belief,'' and left but a 
 little more to be done in order to destroy the mischievous 
 principle of the old law, which punished the holder of 
 obnoxious opinions by rendering him incompetent to give 
 evidence. 
 
 Under the rule which rejects the testimony of persons 
 insensible to the obligations of an oath, the law excludes 
 infamous persons ; that is, persons who have been guilty 
 of those heinous crimes which men generally are not 
 found to commit, unless when so depraved as to be 
 unworthy of credit for truth. It is unnecessary, and it 
 would be somewhat difficult, to enumerate with nicety the 
 offenses deemed infamous by law. In order to test the 
 propriety of this exclusion, the case of perjury may be 
 selected. 
 
 Does it follow that a man, because he has been once 
 convicted of perjury and suffered the penalty of the law 
 therefor, will, whenever he may be called on to testify, 
 commit another perjury, and render himself liable to 
 renewed punishment ? And that, too, in cases where no 
 motive could exist or be surmised for his perjury? Sup- 
 pose the offense to have been committed in the folly tide 
 of youth, under motives of kindness intermingled with 
 temptations, and to have been repented of for fifty years. 
 Ought this to be imputed to him after living half a 
 century of virtue and truth ? And must an innocent 
 man, who has no other witness to prove the groundless- 
 ness of a charge against him, be unjustly condemned 
 because the witness was guilty of a delinquency so many 
 years before; ? All exclusions operate as a punishment 
 on the parties who need the testimony excluded. A per- 
 jured person, cannot be a witness on behalf of another
 
 REPORT UPON THE LAW OF EVIDENCE. 249 
 
 person, but may in behalf of himself. In his own cause 
 he may make any affidavit necessary to his exculpation, 
 or defense, or personal protection, or for relief against an 
 irregular judgment, or the like. And in the very teeth of 
 the rule which excludes persons infamous, " repellitur a 
 sacramento infamis" a man may, in legal strictness, be 
 convicted even of a capital offense, on the unsupported 
 evidence of a person avowing himself an accomplice in 
 his crime, who is taken out of jail to bear testimony 
 against his companion, and gives his testimony in 
 vinculis, in custody with a rope round his neck, being 
 liable on his own confession to execution if the govern- 
 ment be dissatisfied with his conduct in this respect. 
 
 A witness of depraved and abandoned character, Mr. 
 Starkie says, may not be unworthy of credit where 
 there is no motive for misrepresentation ; for there is a 
 constant tendency to declare the truth which is never 
 wholly eradicated even from the most vicious minds, and 
 the danger of detection and the risk of temporal punish- 
 ment may operate as restraints upon the most unprinci- 
 pled, even when motives of veracity of a higher nature 
 are wanting. 
 
 In England, all objections to the competency of wit- 
 nesses on the ground of infamy have been removed by 
 the act on evidence, 6 and 7 Victoria, c. 85, Lord Denman's 
 Act, which declares, " No person offered as a witness shall 
 hereafter be excluded by reason of incapacity from crime 
 from giving evidence in any court, but every person so 
 offered shall be admitted to give evidence, notwithstanding 
 he may have been previously convicted of any crime." 
 
 The committee have now laid before the Senate the 
 theory of human nature on which the exclusionary rules 
 of evidence that the bill proposes to abolish are based, 
 and have shown that the theory is false and degrading to 
 the society in which we live, while the rules themselves
 
 250 REPORT UPON THE LAW OF EVIDENCE. 
 
 have been in so many particulars impaired and over- 
 thrown by admitted exceptions conflicting with them as 
 to involve the law upon the subject in obscurity, doubt, 
 and difficulty, to obstruct the inquiry after truth in 
 courts of justice, to deny to innocence the proper and 
 natural means of protection, and in many instances to 
 secure impunity to fraud and crime. They have shown 
 that the theory and the rules have been repudiated and 
 repealed in England and in most of the late United States 
 of America, and that the true principle of evidence is 
 that now adopted in the courts of those countries : put 
 everybody on the stand who knows anything about the 
 case, and let the persons appointed to decide upon the 
 facts in issue, both in civil and criminal cases, exercise 
 their judgment on the credit of the witnesses adduced 
 and on the truth of their testimony. 
 
 In stating the arguments for and against the rules now 
 existing, the committee have freely used the language 
 employed by the courts, and by the common lawyers, and 
 by the most distinguished advocates of reform. 
 
 It is time to throw off the trammels and prejudices 
 generated by the long habit of thinking and acting in a 
 legal routine, and to legislate upon correct principles. 
 
 It certainly would be desirable, if practicable, to have 
 perfect witnesses in every case. " But perfect men do 
 not exist ; and if the earth were covered witli them, 
 delinquents would not send for them to be witnesses of 
 their delinquency. The legislator, then, lias this option, 
 and no other : to open the door to witnesses, or to give 
 license to crimes. For all purposes lie must take men as 
 lu; finds them : and for the purposes of testimony he must 
 take such men as happen to sec and know what, had it 
 depended on the actors, would not have been seen and 
 known by anybody.'' 
 
 The amendments proposed were as follows :
 
 REPORT UPON THE LAW OF EVIDENCE. 251 
 
 AN ACT RELATIVE TO THE LAW OF EVIDENCE. 
 
 Whereas the inquiry after truth in courts of justice is often 
 obstructed by incapacities created by the present law of evi- 
 dence ; and whereas it is desirable that full information as to 
 the facts in issue, both in criminal and in civil cases, should 
 be laid before the persons appointed to decide upon them, and 
 that such persons should exercise their judgment on the credit 
 of the witnesses adduced and on the truth of their testi- 
 mony : 
 
 SECTION 1. Be it enacted by the Senate and House of 
 Representatives of the State of Louisiana, in General 
 Assembly convened, No person shall be incompetent as a 
 witness because of his or her conviction of crime, or his or her 
 interest in any issue or question before any court or officer 
 authorized to administer oaths. 
 
 SEC. 2. Be it further enacted, etc., Nothing herein shall 
 render any person who in any criminal proceeding is charged 
 with the commission of any offense against law competent or 
 compellable to give evidence for or against himself or herself, 
 or shall render any person compellable to answer any question 
 tending to criminate himself or herself. 
 
 SEC. 3. Be it further enacted, etc.. Parties shall be com- 
 petent and compellable to testify on behalf of themselves or of 
 others, in any suit or other proceeding pending in a court, or 
 before any person authorized to administer oaths. And the 
 husbands and wives of the parties shall, except as hereinafter 
 excepted, be competent and compellable to testify on behalf of 
 any party to the suit or other proceedings. 
 
 SEC. 4. Be it further enacted, etc., Nothing herein shall 
 render any husband compellable to give evidence for or against 
 his wife, or any wife competent or compellable to give evidence 
 for or against her husband, in any criminal proceeding, or in 
 any proceeding instituted in consequence of adultery. 
 
 SEC. 5. Be it further enacted, etc., No husband shall be com- 
 petent or compellable to disclose any communication made to 
 him by his wife during the marriage, and no wife shall be
 
 252 REPORT UPON THE LAW OF EVIDENCE. 
 
 competent or compellable to disclose any communication made 
 to her by her husband during the marriage. 
 
 SEC. 6. Be it further enacted, etc., Ascendants and descen- 
 dants shall be severally competent witnesses for or against each 
 other in all suits or proceedings, civil or criminal.
 
 THE RIGHTS OF THE STATES. 
 
 [The following extracts must have been written about the 
 conclusion of the civil war. They serve to show the views of 
 Mr. Hunt upon the policy to be pursued by the general govern- 
 ment towards the States, which had joined the Secession move- 
 ment.] 
 
 To exclude the citizens of the Southern States from all 
 share in the government of our common country ; to deny 
 them all voice in it ; and, not content with having forced 
 them to change their domestic institutions, to hold them 
 
 O 
 
 in absolute subjection under a military rule more despotic 
 than that of a Roman proconsul or propraetor ! 
 
 The people of Louisiana are loyal. There are doubt- 
 less a few individuals to be found scattered here and 
 there in the State who are unwilling to submit to the 
 national government and are not to be trusted. But the 
 determination to support and obey the Constitution and 
 the laws of the United States is almost universal. I 
 know no man of character and talent who has taken the 
 oath of allegiance to the government who is disloyal. I 
 know no such man who can take the " test oath," accord- 
 ing to my interpretation of it. Mr. Clingman, in a letter 
 to the "New York Times" (December 8, 1865), expressed 
 his belief that no man in North Carolina can take it with- 
 out perjury. If the oath be insisted on, the South cannot 
 have real representatives in Congress, although they may 
 have nominal or counterfeit representatives, which would be 
 worse than to have no representatives at all. Is it not then 
 the dictate of true wisdom and policy to allow men of talent
 
 254 THE RIGHTS OF THE STATES. 
 
 and consideration, loyal and true to the Constitution, to 
 represent the States, and thus to secure to the national 
 government and administration the entire political and 
 moral support of the South? The government of the 
 United States can have the entire people of the South 
 true to it by accepting them as such. The Southern 
 States acknowledge their errors, have complied with all 
 the requisitions of the President, are anxious to be re- 
 stored to the Union as its friends and supporters. The 
 United States can at once and forever secure this friend- 
 ship and support by allowing them to exercise the privi- 
 leges that belong, according to the Constitution, to all the 
 States of the Union. But if, without any necessity or 
 reason, they be kept under military rule, disaffection may 
 be produced and the expenses of the government in- 
 creased, to the injury of the government as well as of the 
 South. Some designing politicians and placemen, and 
 some persons still inflamed with a desire for vengeance, 
 will persist in still regarding the South as an enemy to be 
 punished. But good and reflecting men cannot fail to 
 remember that the Southern States have suffered more 
 severely than any community in modern times. Two 
 thirds of their property is gone : four millions of slaves 
 emancipated ; their land and personal property depre- 
 ciated : the entire country desolated and laid waste ; 
 many alas, how many! of their best men and noblest 
 youths wounded and killed ; universal grief pervading 
 the land ; women, children, and aged men at the point of 
 starvation! Overwhelmed by numbers, and unable longer 
 to resist, the South have abandoned their contest against 
 
 o 
 
 the power of the North. In attempting to secede from 
 the Federal Union they acted under a mistaken but ear- 
 nest and honest conviction that they had the constitu- 
 tional right to secede, and that their interest and the 
 security of their slave property required them to resort to
 
 THE RIGHTS OF THE STATES. 255 
 
 the exercise of that right. Nor were they alone in that 
 opinion. The extreme doctrines of state rights, as taught 
 by Mr. Calhoun and his followers in the South, were the 
 avowed doctrines of a large portion of the leading Demo- 
 crats of the North. These doctrines necessarily led to 
 the conclusion that the several States possessed the right 
 of seceding. It is true that President Buchanan, the last 
 Democratic President of the United States, after South 
 Carolina had by a convention declared that she was no 
 longer a member of the Union, did, in a message to Con- 
 gress, enter upon an argument to prove that no State 
 had a right to secede. But it will be remembered that 
 he at the same time declared that the national govern- 
 ment had no power to coerce the State. This extraordi- 
 nary position of the President of the United States gave 
 heart to the advocates of secession and paralyzed the ad- 
 vocates of the Union in the South, until at length, when 
 Mr. Lincoln succeeded to the presidency, the South pre- 
 sented an unbroken hostile front to the government of 
 the United States. Every department of that govern- 
 ment executive, legislative, judicial- then denied the 
 right that the South had asserted, and war, bloody, deso- 
 lating war, ensued. All candid persons admit that sla- 
 very was the true cause that led to it. The issue of the 
 war has decided against the doctrine of secession as 
 taught in the state-rights school of politics. The despei'- 
 ate, sanguinary, and desolating struggle between the two 
 sections of the Union has settled forever this question. 
 No wise or patriotic man will ever again endeavor to per- 
 suade the people that secession is a peaceful remedy, or 
 urge them to a new trial of the fearful issue. The war 
 has also settled that slavery is and shall forever be abso- 
 lutely exterminated in all the States of the Union. The 
 people of the South, with manly fortitude and frankness, 
 acknowledge these facts and acquiesce in the result with
 
 256 THE RIGHTS OF THE STATES. 
 
 extraordinary unanimity. President Johnson, himself a 
 Southerner and thoroughly acquainted with the people of 
 the South, has, with enlightened humanity and a wise 
 policy, encouraged the people in their desire to return to 
 their loyalty and to reconstruct the Union and the govern- 
 ment at once. 
 
 Of course the Constitution of the United States recog- 
 nizes the existence of States. One branch of the legis- 
 lature of the United States is composed of senators 
 appointed by the States in their state capacities. The 
 Constitution of the United States says that " the United 
 States shall guarantee to each State a republican form of 
 government, and shall protect the several States against 
 invasion." According to our system, it devolves upon 
 the President to determine in the first instance what are 
 and what are not governments. He recognizes govern- 
 ments, foreign governments, as they appear from time to 
 time in the changes of the world. The provision of the 
 Constitution that guarantees to every State in this Union 
 a republican form of government, protection against 
 invasion, and under certain circumstances against domes- 
 tic violence, and the law of Congress making provision for 
 carrying this constitutional duty into effect in proper 
 cases, make it the duty of the President to decide what is 
 the rightful government of the State in cases of commo- 
 tion. He cannot avoid the decision. 
 
 We know that the executive in the first instance 
 treated, and in his proclamations expressly designated, 
 the rebellion of the States as " an insurrection, 7 ' and we 
 know, too, that Congress subsequently joined him in so 
 treating and designating it. The executive has now 
 recognized the existence of the several States of the 
 South and their respective governments. He has aided 
 in reorganizing them. He has counseled them in regard 
 to changes in their fundamental laws, lie has submitted
 
 THE RIGHTS OF THE STATES. 257 
 
 to them for ratification proposed amendments to the 
 Constitution of the United States under the provision of 
 the Constitution which declares that amendments pro- 
 posed by two thirds of both houses shall be valid when 
 ratified by three fourths of the legislatures of the several 
 States. He has, through the Secretary of State of the 
 United States, solemnly proclaimed that those amendments 
 have been adopted by the concurrent votes of some of 
 the States of the South. He is daily proceeding in the 
 glorious work of reconstructing the Union through the 
 agency of the people and the governments of the States of 
 the South. He has extended to them the hand of friend- 
 ship and confidence, and recognized them in every way 
 within his power as members of the Union. 
 
 From his provisional governors and special agents 
 deputed to gain information, the President has had the 
 best opportunity of learning the true condition of the 
 South and the present sentiments of the people ; and 
 whether, in seeking again the constitutional right of rep- 
 resentation, they are prepared to comply with all their 
 constitutional obligations, and whether their elections 
 were made in a proper way. 
 
 True policy requires Congress to expedite rather than 
 delay the recognition and readmission of the Southern 
 senators and representatives. In the present condition of 
 things, the functions of these States are suspended. They 
 are excluded from all representation in the national 
 legislature. They have not even a territorial voice, but 
 are as speechless as if they were dead. It is not right, it 
 is not consistent with the principles of the Constitution of 
 the United States, nor with the public safety, for any part 
 of the country to legislate for any other part of the coun- 
 try without giving it a voice in that legislation. Repre- 
 sentation is the vital principle of American republican 
 institutions. Its denial to any extent mars and destroys 
 17
 
 258 THE RIGHTS OF THE STATES. 
 
 the regular operation of the government, and gives rise 
 to every kind of abuse. If the South is to he deprived of 
 all representation and made subject to laws in framing 
 which it has had no part, it will be impossible to avoid 
 the spirit of sectionalism and discrimination against it. 
 The natural effect of this must be to beget a sense of 
 grievous oppression and wrong, which must inevitably lead 
 to an intense hatred on the part of the Southern people 
 of their oppressors. Observe the present condition of the 
 South. They have submitted. They have complied with 
 all the requisitions of the North. They are anxiously wait- 
 ing to see how their submission and compliance will be 
 received and treated ; whether the Northern people desire 
 again to fraternize with them, or mean only to be their 
 masters. A generous and magnanimous policy by Con- 
 gress in admitting their representatives and burying the 
 past would completely extinguish every lingering and 
 smouldering feeling of resentment, and remove the 
 last sense of humiliation that cannot exist without 
 some bitterness. A harsh and jealous treatment would, 
 on the other hand, not only repress the better impulses of 
 the Southern heart, but fill it with a determination to 
 oppose the government, and would perpetuate that spirit 
 of sectionalism of which the North so loudly complains, 
 and would give to it intensity in the worst form. It is 
 impossible to shut out all Southern representation with- 
 out producing the impression that the North means to 
 domineer and degrade. If it be said that the new loyalty 
 of the South is defective and immature, I answer that the 
 assertion is not correct. I know the people of Louisiana. 
 I know that there are among them not a few who are dis- 
 contented and sullen, but the vast majority of them accept 
 their situation with manly frankness, and admit their er- 
 rors ; they have not only adopted and approved the amend- 
 ments to the Constitution of the United States, but have
 
 THE RIGHTS OF THE STATES. 259 
 
 returned to their allegiance with a firm resolve to be true 
 to it. Nothing could have a more powerful and a more 
 blessed influence upon the discontented than that the 
 Northern heart is ready for a complete reconciliation. 
 What better means can be imagined, what more thor- 
 ough, prompt, and convincing, than to admit the South- 
 ern representation in the halls of Congress? Suppose 
 the worst, suppose that a portion of the South should 
 continue factious and discontented. What could they do, 
 what possible harm ? Why, even if the entire South 
 were disaffected and of doubtful loyalty, they would still 
 form but a wretched minority in the house. Nay, let me 
 go a step further. I appeal to the great Union senti- 
 ment which pervades this Congress, to the overwhelming 
 strength which it possesses, and which no possible ele- 
 ments of opposition, however combined, can prevent from 
 working its will. Let Congress trust to that strength, and 
 act with generous fearlessness. Uninfluenced by any feel- 
 ings of bitterness and resentment or theoretical dogmas, 
 let them admit into their bosom the truly accredited repre- 
 sentatives of the South, so that they may have full know- 
 ledge of the condition of every part of our land, and act 
 justly for all. The spirit of liberty and of national con- 
 cord and of the Union demands this at their hands. 
 
 How can Northern statesmen, who so often and so elo- 
 quently express their sympathy for oppressed Ireland, 
 simply because its people have been deprived of an equal 
 right and equal voice in the government of Great Britain, 
 reconcile these enlarged and liberal views with that policy 
 which would deprive the people of the South of any 
 voice whatsoever in making; laws by which they are to be 
 
 O ^ *- 
 
 governed, or in the administration of the national affairs 
 of our common country ? 
 
 There is no reason to doubt that the persons who have 
 been pardoned by the President have taken the oath of
 
 260 THE RIGHTS OF THE STATES. 
 
 allegiance in good faith. They may be as securely relied 
 on as any class of people in the South. They have no 
 motive to break the oath. If the test oath was intended 
 simply to be protective, it is plain that it is no longer 
 necessary for that purpose, because there is no longer 
 treason, actual or potential. Nobody believes a renewal 
 of the rebellion possible. The test oath never was in- 
 tended as punitory. It is not fit that representatives and 
 senators elect should be excluded from Congress merely 
 as a punishment. If it is best to punish them, it should be 
 done in the usual way, with the regular pains and penal- 
 ties of the law visited upon persons and property. There 
 is no such independent punishment known to our statute 
 as exclusion from places of public trust ; that exclusion is 
 only incidental to some high penal conviction. 
 
 If it be said that men so lately covered with treason 
 ought not to be admitted to the national Congress, I ask, 
 in reply, " Is such a feeling as this to be indulged, at the 
 expense of the best interests of the country, which impe- 
 riously call for an early reconstruction ? Is there any- 
 thing in it to justify the continuance of the suspension of 
 the representative principle, which is the very vital essence 
 of the American system of government ? " The President's 
 magnanimous policy upon this subject has been attended 
 with the happiest results. Let the action of Congress 
 harmonize witli his, and the republic will at once be re- 
 stored to all its constitutional and glorious working. 
 
 Extraordinary as has been the history of our country 
 for the last four years, the war, its commencement, its 
 progress, its close, the immense amount of treasure ex- 
 pended, the number of lives lost, the armies raised, the 
 wealth, power, and resources of the country, nothing is 
 more surprising than the fact that the Southern people, so 
 soon after they had been defeated, resumed the pursuits 
 of agriculture, commerce, and the general business of life
 
 THE RIGHTS OF THE STATES. 261 
 
 with a cheerful and proper spirit ; they have exhibited no 
 inactivity or indolence, no indifference to the ordinary am- 
 bitions of men. During the last nine months their progress 
 in material activity and development has been great and 
 steady. The cash received for the large amount of cot- 
 ton which it turned out that the South had preserved, 
 upwards of eleven hundred thousand bales, amounting 
 to four hundred millions of dollars, and the large amount 
 of Northern capital invested there, together with the tide 
 of immigration turning towards the South, give hopes for 
 its attainment of a condition of national prosperity un- 
 equaled in the past, and for a return of amity between 
 all parts of the Union, if the South be promptly admitted 
 to the enjoyment of its right of representation in the 
 councils of the nation, and of local self-government, ac- 
 cording to the Constitution of the United States. 
 
 Nothing, in my opinion, illustrates more clearly the 
 sterling worth of character of the Southern people than 
 the manner in which the officers and soldiers of the late 
 Confederate armies have deported themselves since the 
 failure of that cause to which they had devoted their 
 most earnest work and hearts. Generals and privates, all 
 have met their fate like men, and addressed themselves to 
 the task of building up their ruined fortunes. They are 
 to be seen in every position, in the universities and 
 colleges of learning, in the temples and houses of reli- 
 gious worship, in the halls of medical science and of 
 jurisprudence, in the counting-house and in the work- 
 shop, in the field, and on the rivers and lakes and oceans, 
 in every honorable and honest pursuit ; laboring, toil- 
 ing, intent upon obtaining an honest livelihood, and, as 
 I have already said, returning to their common country, 
 repentant and loyal, like the prodigal son to the home of 
 his father. Will that parent receive them with kindly 
 heart, or with cruel reproaches and suspicion ? Rest as-
 
 262 THE RIGHTS OF THE STATES. 
 
 sured that persons of such character, though in returning 
 to their old places they may find strangers occupying for 
 a time stations of high authority, will certainly be called 
 again to guide and direct the interests of their own land. 
 
 With regard to Louisiana, the President of the United 
 States has recognized the state authorities, maintained 
 them in their functions, and refused to appoint a provis- 
 ional governor and other state officers. In a word, he 
 has recognized the state organization and state govern- 
 ment, and left it uncontrolled, save by that martial law 
 which, wherever it prevails, overrides all other laws and 
 constitutions. 
 
 Nor has the popular branch of the national government 
 failed to recognize the constitutional existence of the State 
 of Louisiana. While the war was yet raging, Flanders 
 and Halm were elected members of the House of Repre- 
 sentatives in the Congress of the United States, went to 
 Washington, were admitted to the seats they claimed, 
 and participated in the debates and legislation of our 
 common country. 
 
 It is true that the Senate of the United States did not 
 permit Mr. Smith and Mr. Cutler, who were elected to be 
 members of that body by the legislature of Louisiana, to 
 take their seats. But this was not upon the ground that 
 Louisiana was not a State of the Union, but because the 
 legislature, so called, that elected them represented only 
 an insignificant portion of the territory and of the popu- 
 lation of the State. Now the legislature of Louisiana 
 represents the entire people and the entire territory of 
 the State, and that legislature has elected two citizens 
 of the United States to fill the places which Smith and 
 Cutler had been improperly chosen to fill. Observe how 
 Senator Howard, of Michigan, spoke: "The measure 
 before you proposes to acknowledge eight thousand citi- 
 zens of Louisiana as the State, and to give them the
 
 THE RIGHTS OF THE STATES. 263 
 
 rights and privileges belonging to more than fifty thou- 
 sand." Hear Mr. Wade, of Ohio : " Is it not exceed- 
 ingly important that we shall have here for four or five 
 days, side by side with us in the senate chamber, two men 
 from Louisiana, representing nobody and nothing except 
 the will of the commander-in-chief of the army of the 
 United States ? " Senator Sprague, of Rhode Island, 
 declared his ability to prove that thirty of the state 
 legislature that elected Mr. Smith and Mr. Cutler were 
 officers of the general government from the Northern 
 States ; and Mr. Grimes, of Iowa, said he " was prepared 
 to prove that the voters whose votes were polled in the 
 outlying parishes were carried in army transports to the 
 places where they voted, being discharged soldiers and 
 persons belonging in New Orleans, and were brought 
 back again to New Orleans that night " (7th February, 
 1864). 
 
 On the 3d of December, 1865, the President, by Mr. 
 Seward, congratulated Alabama as being the State, the 
 twenty - seventh, which completed the adoption of the 
 amendment of the Constitution of the United States and 
 altered the organization of the whole Union. The Con- 
 stitution of the United States declares that amend- 
 ments to the Constitution proposed by Congress shall be 
 valid when ratified by the legislatures of three fourths of 
 the several States, or by conventions in three fourths 
 thereof, as the one or the other mode of ratification may 
 be proposed by Congress. In the amendment just made 
 Congress decided that the legislatures of the States 
 should act. It was accordingly submitted to the legis- 
 latures of Louisiana, Arkansas, Virginia, North Caro- 
 lina, South Carolina, Georgia, Tennessee, and Alabama. 
 The action of all these legislatures was considered by 
 the President the action of state legislatures. It is only 
 in this point of view that the ratification by the State of
 
 264 THE RIGHTS OF THE STATES. 
 
 Alabama can be considered, as the twenty-seventh State 
 which was necessary to form the complement of votes 
 required to make the three fourths of the state legis- 
 latures required by the Constitution. If the Congress 
 of the United States, directly or indirectly in its legis- 
 lation, accept the ratification by these States, the South- 
 ern States will be thereby accepted as within the Union ; 
 for the highest act a State can exercise is to alter the 
 Constitution, the fundamental law of the country. It is 
 true that Mr. Surnner has introduced a resolution into 
 the Senate declaring the amendment to be adopted by 
 three fourths of the States represented in Congress. By 
 this resolution only twenty-five States are considered to 
 be in the Union, while eleven provinces, or dependencies, 
 for such he considers the rebellious States, - must be 
 legislated for as void of all right of local self-government, 
 and subject now to military rule, and hereafter to such 
 form of government as Congress may substitute therefor. 
 A doctrine so monstrous is not to be discussed ! 
 
 I have stated the extraordinary doctrine of President 
 Buchanan. A State has no right to secede, but the 
 United States has no right to prevent a State from 
 seceding. The laws of the United States are supreme, 
 but a State cannot be compelled to obey them. The 
 violation of those laws may be a crime, but no person 
 violating them under state authority can be punished. I 
 do not desire to dwell upon the abstract theories and 
 antagonisms, section jealousies and disputes, enlisting the 
 evil passions of humanity, kindling the fires of discord 
 and hatred until they burn fiercer and fiercer for a series 
 of years, and at length the American people, abandoning 
 reason, forgetting their memories of common sufferings 
 and common triumphs, regardless of the glory that 
 awaited them as a united people, looking upon each other 
 with mutual aversion and deadly hatred, drew the sword,
 
 THE RIGHTS OF THE STATES. 265 
 
 and each section of the country, in a desire for triumph, 
 assuming the specious garb of patriotism, relied for the 
 arbitrament of their differences upon the wager of battle. 
 For four long years the contest has been waged ; the 
 award is against the South as a party to the issue, and 
 the whole people have accepted that award as by the will 
 of one man, and have wisely renounced that which they 
 could not by valor achieve. They have solemnly, in 
 remodeling their Constitutions, declared the supremacy of 
 the Constitution and laws of the United States, meaning 
 thereby to pledge their fidelity to the whole country, to 
 recognize their duty to and interest in the whole country, 
 and look with confidence to the discharge of their recipro- 
 cal obligation by the people of the entire country. They 
 have not been discouraged by the suspicion and distrust 
 openly expressed towards them by the more violent poli- 
 ticians of the North. Determined faithfully to observe 
 and obey the behests of the federal Constitution, repress- 
 ing all improper and narrow promptings of mere sectional 
 feelings and interests, sustained by conscious rectitude, 
 they will maintain with calm dignity and unshaken reso- 
 lution the position they have assumed. A storm of 
 dreadful violence and fury has swept over them. As the 
 billows of the mighty deep continue to roll mountains 
 high, even after the tempest has subsided and the winds 
 have lulled, so the fierce and angry passions roused by the 
 terrible war which raged for four long years were not 
 at once calmed, but continued to swell and toss the pub- 
 lic mind after peace was restored. But they are fast sub- 
 siding, and the atmosphere, although somewhat troub- 
 lous, is rapidly clearing. The clouds are vanishing, 
 prejudices disappearing, and reason is rapidly resuming 
 its sway. The North cannot fail to perceive that the 
 South, however wrong in principle, acted without any 
 taint of duplicity in endeavoring to separate herself from
 
 266 THE RIGHTS OF THE STATES. 
 
 the United States. However unwise and erroneous her 
 conduct, it was open, marked with courage and with 
 truth, the inseparable companions of magnanimity. The 
 Southern people now, in returning to their allegiance, do 
 so with sincerity, and those who distrust them or regard 
 them with suspicion will in due time learn to respect their 
 character, and marvel less at their approved fealty than 
 at their own ungenerous tardiness in discovering it. 
 
 There is evidently a class of politicians, represented by 
 a number of members of Congress, whose counsels and 
 actions indicate a settled purpose of opposing the recon- 
 struction of the Southern States. The numerous and 
 extraordinary requirements and conditions they seek to 
 impose, the captious, exacting, implacable spirit of sec- 
 tional hatred and strife that actuates them, leave no 
 room to doubt their object, an object dangerous to the 
 financial prosperity of the country and disgraceful to 
 the republican name. Who can doubt that the Southern 
 people are sincerely desirous of a genuine reconciliation ? 
 They have almost with one voice acknowledged them- 
 selves overcome ; they unhesitatingly and without reserve 
 accepted the amnesty oath of President Johnson ; they 
 accepted the provisional governors that he appointed, and 
 treated them with respect and confidence, though many 
 of them were persons never really of their choice. They 
 elected conventions of men in full sympathy with the 
 government, and remodeled their state Constitutions in 
 accordance with the suggestions of the President. They 
 elected legislatures anxious to satisfy the government at 
 Washington, and adopted every measure calculated to 
 facilitate the work of reconstruction. They have returned 
 to the pursuits of industry, and in no part of their wide 
 territory is there any attempt or desire to oppose the 
 government of the United States. They are churlish, 
 thwarting, mutinous, but submit with a good grace, such
 
 THE RIGHTS OF THE STATES. 267 
 
 as nobody could have ventured to predict one year 
 ago. 
 
 Does the interest of the nation, does an enlightened 
 policy, justify Congress in meeting this display of good 
 sense and good feeling in the Southern people with dis- 
 trust and aversion or with friendly encouragement? If 
 we consider the North as victors in the war, are they not 
 bound by a generous manly policy to a speedy reconcilia- 
 tion ? If we consider them as Union men, are they not 
 morally bound, in a devotion consistent with that cause 
 in the name of which this terrible war was carried on, to 
 do their utmost to have the Union restored as soon as it 
 can be done with safety and without violation of princi- 
 ple ? Should a mere feeling of animosity and resentment 
 prevent the discharge of this high and important duty ? 
 
 The Southern people are a suffering people ; the war 
 has left them desolate from the Atlantic to the Rio 
 Grande. No change is possible until their constitutional 
 rights are restored. Without that restoration they cannot 
 be relieved from uncertainty. Their political and social 
 system requires that stimulus which can come only from, 
 a participation in all those rights. This is as necessary 
 for the nation at large as for the South. All reflecting 
 men must admit that the national finances, resting on a 
 foundation of irredeemable paper, are in a dangerous if 
 not alarming condition. To support the national credit 
 and restore soundness to all 'the business operations 
 of the country, the old conditions of trade between the 
 United States and foreign lands must be reestablished ; 
 and for this purpose it is essential that the gi-eat 
 Southern staples shall be reproduced and supplied 
 for exports, which can never be hoped for unless the 
 reconstruction of the Union is complete. Keep the 
 South under a despotic military rule, and she will be 
 without energy. Treat her with harshness, and she will
 
 268 THE RIGHTS OF THE STATES. 
 
 become discouraged, or, still worse, rancorous and vindic- 
 tive. He who favors such a policy would perpetuate bit- 
 terness, and ought to be accounted a public enemy. 
 
 It is scarcely twelve months since the South was 
 engaged in the most desperate war of modern times, with 
 every circumstance of passion and fury. To expect that 
 the people should look with positive affection on their 
 conquerors, condemn their most eminent countrymen as 
 traitors, and repudiate as abominable the principle for 
 which they sacrificed their fortunes and staked their lives 
 is beyond all reason. It is enough if they know themselves 
 beaten, accept the results without reserve, cherish no idea 
 of deferred rebellion, and are prepared to return to their 
 former position with a resolution to perform all their 
 duties as citizens, and a resolution to receive the warmest 
 impressions that time and intercourse may bring. More 
 cannot be expected ; but if more is desired, it can be se- 
 cured only by the policy that the radicals so fanatically 
 denounce. If the citizen of the South is to be made to 
 look on the Union as he did ten years ago, it can only be 
 accomplished by liberal and conciliatory conduct on the 
 part of the government, passive acquiescence in a cordial 
 sympathy, by kind and generous treatment. Radical 
 policy is stultified by its own professions. Radicals pre- 
 tend to desire a more sympathizing South than they have, 
 and then, to improve Southern feeling, they propose to 
 inflict political disgrace and humiliation on the Southern 
 people. They pronounce them to be still disaffected and 
 not sufficiently well affected, and by way of conciliating 
 them would condemn them to alienation and outlawry. No 
 reasonable person can expect a Southerner to look upon the 
 United States government exactly like a New Englander. 
 Enough for purpose of prudent reconstruction if the 
 States lately in secession have abandoned all idea of inde- 
 pendence, and are prepared to make the best of their posi-
 
 THE RIGHTS OF THE STATES. 269 
 
 tion as members of the Union once more. The rest must 
 be a work of time, and will be accomplished most speedily 
 and surely by the President's policy. He does not claim 
 to swamp the South with black voters, or place the negro 
 in perilous antagonism to the white. He asks only profes- 
 sion of political honesty, that the South shall forego 
 their views of secession, acknowledge and confirm the 
 abolition of slavery now and forever, deal fairly with the 
 enfranchised slave, and repudiate the debt contracted for 
 the purpose of rebellion ; and then open the doors of Con- 
 gress and restore the Union. The radicals desire impossi- 
 bilities, require the South humbly and thankfully to kiss 
 the rod after the fashion they prescribe. The first is a 
 policy of moderation and promise, and will bring back the 
 South to those sentiments of perfect concord that the radi- 
 cals pretend to demand. The second is a policy of provo- 
 cation and oppression continued after victory, and must 
 intensify and perpetuate the very hostility which it is 
 intended to expurgate.
 
 THE LOUISIANA STATE LOTTERY. 
 
 [Mr. Hunt was anxious that the State of Louisiana should 
 refuse all legislative aid to the Louisiana State Lottery. But 
 a few years before his death he wrote a number of articles 
 denouncing the business of lotteries generally, and particularly 
 the existence of the Louisiana State Lottery. His views are 
 expressed in the following paper.] 
 
 LOTTERIES fall within the class of hazardous con- 
 tracts. A contract is hazardous when the performance 
 of that which is one of its objects depends upon an un- 
 certainty. The word " hazard " means chance, risk. In a 
 state of nature every individual is obliged to bear the en- 
 tire burden of his own destiny ; in a state of society lie is 
 able, at least partially, to relieve himself of the burden 
 by dividing it with or shifting it upon others. This is the 
 principal object of contracts of hazard. They spring 
 from our hopes and from our fears. Some persons desire 
 to tempt Fortune ; others, to secure themselves against her 
 caprices. Accordingly, we find that in every age there 
 has existed a traffic or dealing in regard to things uncer- 
 tain and eventual. The most ancient laws known to us 
 prove that men have constantly sought to grasp and 
 include within their compacts and agreements things 
 which they can scarcely attain by their own weak pre- 
 science. They have undertaken to subject to calculations 
 and speculations that which does not belong to us, and 
 is beyond human control, hazard itself, mere chance to 
 weigh destiny and calculate the future. The effect or 
 result of these agreements is obvious, and witnessed every
 
 THE LOUISIANA STATE LOTTERY. 271 
 
 day. We increase and multiply our possessions and 
 wealth by assigning an actual value to probabilities more 
 or less remote ; mere expectations become real riches ; 
 evils that otherwise may perchance, some day, be too real 
 and afflicting are averted or alleviated in advance by the 
 wisdom of our arrangements and combinations. We 
 render innocuous the blows of fate against individuals by 
 associating to divide their force, and sharing it when 
 divided and distributed. 
 
 The statement of the principle of contracts of hazard is 
 a sufficient justification of them. What can be more in 
 accordance with an enlarged and enlightened social justice, 
 what more legitimate, than to make, as it were, a common 
 stock of our fears, our hopes, and all our affections, so as 
 not to leave entirely to chance that which may be regu- 
 lated by prudence and consultation, but to aid one another 
 by salutary and beneficial compacts in dividing and run- 
 ning with less danger the risks of life ? 
 
 But this reasoning is not applicable to every species of 
 hazardous and aleatory contracts. There is a great dif- 
 ference between a contract that depends upon an uncertain 
 event and a contract that has no other cause or considera- 
 tion whatever than the uncertainty of an event. The first 
 may be supported and favored on considerations of private 
 individual and public good. The latter is without any 
 useful rational motive. 
 
 There can be no valid contract without a cause or con- 
 sideration. And the law requires something more solid 
 and real than an extravagant and wild desire of trusting 
 to the caprices of fortune to serve as a lawful foundation 
 or just cause of obligations among men. By way of 
 examples, a gambling contract is first examined, and then 
 a contract of insurance. 
 
 What is the cause or consideration upon which the 
 gambling contract rests ? Nothing but the uncertainty
 
 272 THE LOUISIANA STATE LOTTERY. 
 
 of gain or loss. It is impossible to assign another cause. 
 Two gamesters enter into an agreement as to a stipulated 
 sum. Each, relying on his own good fortune and confi- 
 dent that he will gain it, leaves the disposal of it to the 
 blind arbitrament of chance. The desire and the hope of 
 gain are the only motives that induce the parties to enter 
 into the contract. This desire and this hope depend upon 
 no action and look to no reciprocity of services. Each 
 gamester hopes only in his own good fortune, and can 
 gratify his desire only by the misfortune of the other. 
 He can be happy only at the expense of others, and in 
 their misery, lie is reduced to envy and curse the good 
 that comes to them at his expense, and to rejoice over 
 their ruin. In contrast to ordinary contracts which give 
 employment to labor and bring men together in social 
 friendship, these gaming contracts isolate and keep them 
 apart, encourage idleness by separating the idea of gain 
 from that of labor, and stifle all kindly sentiment. 
 Where the object is an ill-regulated desire of gain, of 
 enriching one's self at the expense of another without 
 doing him or the community any service, the contract is 
 contrary to good morals and the fundamental principles 
 of society. 
 
 On the other hand, when contracts of insurance are 
 carefully examined and considered, it will be at once per- 
 ceived that, although they are based upon the uncertainty 
 of an event, they are founded upon considerations of 
 individual and general public gooJ that entitle them to 
 the favor of the law. 
 
 Property, in spite of all that may be done by govern- 
 ment and the vigilance of individuals, must still be 
 exposed to casualties by fire, shipwreck, and other un- 
 foreseen disasters. Hence it is important to inquire, 
 when they do occur, how such unavoidable losses may be 
 rendered less injurious. The conflagration of a sugar-
 
 THE LOUISIANA STATE LOTTERY. 273 
 
 mill or cotton-mill, or the loss of a ship at sea, would 
 press heavily on the richest individual. But were the 
 loss distributed among several individuals, each would 
 feel it proportionally less ; and provided the number of 
 those among whom it was distributed were very consider- 
 able, it would hardly occasion any sensible inconvenience 
 to any one in particular. Hence the advantage of indi- 
 viduals combining to lessen the injury arising from the 
 accidental destruction of property. It is this diffusion 
 of loss over a wide surface and the valuation of the risk 
 that form the employment of those engaged in insurance. 
 The contract of insurance is a contract of indemnity. Its 
 very essence, its sole object, is indemnity, to prevent the 
 assured from suffering loss by means of any of the perils 
 insured against. Its whole spirit would be violated if the 
 assured could make the occurrence of any such casualties 
 a means of gain, for this would be to give him an interest 
 in procuring losses, which would be contrary to every prin- 
 ciple of public policy. 
 
 From these remarks we turn to a more special notice 
 and consideration of lotteries, their nature and their ef- 
 fects upon society for good or evil. 
 
 Webster, in his dictionary, has given us a correct 
 definition of the term " lottery," and has accompanied it 
 with a wise and practical remark as to the effects of 
 lotteries in general, namely : " Lottery, a scheme for the 
 distribution of prizes by chance, or the distribution itself. 
 Lotteries are often authorized by law, but many good 
 men believe them immoral in principle, and almost all 
 men concur in the opinion that their effects are per- 
 nicious." 
 
 All philosophers, moralists, and writers of eminence of 
 the present day unite in condemning lotteries. All ency- 
 clopaedias, dictionaries of the sciences and arts, store- 
 houses not only of literature, but also of history, the 
 18
 
 274 THE LOUISIANA STATE LOTTERY. 
 
 principal facts, principles, laws, and practices of different 
 countries and peoples, digested under proper titles, con- 
 tain conclusive proof of their impolicy and mischievous 
 effects. 
 
 The term " lottery " may be applied to any process of de- 
 termining- prizes by lot, whether the object be amusement, 
 or gambling, or public profit. The overweening conceit 
 which the greater part of men have of their own abilities 
 is an ancient evil, remarked by the philosophers and 
 moralists of all ages. Their absurd presumption in their 
 own good fortune has been less taken notice of. It is, 
 however, if possible, still more universal. There is no 
 man living who, when in tolerable health and spirits, has 
 not some of it. The chance of gain is by every man more 
 or less overvalued, and the chance of loss is by most men 
 undervalued. 
 
 That the chance of gain is naturally overvalued we 
 may learn from the universal success of lotteries. The 
 world never saw, nor will it ever sec, a perfectly fair 
 lottery, or one in which the whole gain compensated the 
 whole loss because the undertaker would make nothing 
 by it. 
 
 In the state lotteries, the tickets are really not worth 
 the price which is paid by the original subscribers, and 
 yet commonly sell in the market for twenty, thirty, and 
 sometimes forty per cent advance. The vain hope of 
 gaining some of the great prizes is the sole cause of this 
 demand. The soberest people scarce look upon it as a 
 folly to pay a small sum for the chance of gaining ten or 
 twenty thousand dollars, though they know that even that 
 sum is perhaps twenty or thirty per cent more than the 
 chance is worth. 
 
 In a lottery in which no prize exceeded one hundred 
 and fifty dollars, though in other respects it approached 
 much nearer to a perfectly fair one than the common state
 
 THE LOUISIANA STATE LOTTERY. 275 
 
 lotteries, there would not be the same demand for tickets. 
 In order to have a better chance for some of the great 
 prizes, some people purchase several tickets, and others 
 small shares in a much greater number. There is not, 
 however, a more certain proposition in mathematics than 
 that the more tickets you adventure upon, the more likely 
 you are to be a loser. Adventure upon all the tickets in 
 the lottery, and you lose for certain ; and the greater the 
 number of your tickets, the nearer you approach to this 
 certainty. 1 
 
 The " American Cyclopedia " says : " Lottery is a 
 sort of gaming contract, by which, for a valuable consid- 
 eration, one may, by favor of lot, obtain a prize of value 
 superior to the amount or value of that which he risks." 
 The word is derived from " lotto," a lot which decides. 
 Almost all modern states have, at some periods of their 
 history, employed lotteries as a means of revenue, but 
 they have always been found to exert a mischievous in- 
 fluence upon the people. The poor are invited by them 
 rather than the rich. They are diverted from persis- 
 tent labor and patient thrift by the hope of sudden and 
 splendid gains ; and as a large part of their receipts is 
 withheld, a necessary loss falls upon a class which, of 
 all in the community, can least afford to bear it. Be- 
 tween 1816 and 1828, the French government derived an 
 annual income of 14,000,000 francs from lotteries. In 
 1829, a law for the extinction and suppression of the 
 royal lottery abolished and closed its offices in 28 de- 
 partments, supprimant d'abord les burecntx de 28 de- 
 jiartements. In January of the next year, 525,000 
 francs more wei-e found to be in the savings-banks in 
 Paris alone than in the same month of the preceding 
 year. 
 
 We repeat that lotteries have been established and en- 
 1 Adam Smith, Wealth of Nations.
 
 276 THE LOUISIANA STATE LOTTERY. 
 
 couraged by some states for the purpose of raising a 
 revenue. 
 
 In the Italian republics of the sixteenth century, the 
 lottery principle was applied to encourage the sale of mer- 
 chandise. The lotto of Florence and the semiharis of 
 Genoa are well known ; and Venice established a monop- 
 oly, and drew a considerable revenue for the state. 1 
 
 In France, the system of state lotteries for revenue was 
 very long carried on by the government, and had a per- 
 nicious and demoralizing effect on French society, - a 
 demoralization greater even than that produced in Eng- 
 land by a like cause. The eloquent Bishop of Autun 
 denounced lotteries as no better than the lowest, vile 
 street games of the worst description ; and the wise and 
 illustrious Turgot condemned state lotteries as an im- 
 moral, unequal, unjust source of public revenue. State 
 lotteries have been abolished in France, as already men- 
 tioned. 
 
 In England, the earliest lottery of which there is any 
 record was in 1509, when 40,000 chances were sold at 
 ten shillings each. The prizes consisted of articles of 
 plate, and the profit was employed for the repair of cer- 
 tain harbors. The spirit of gambling in this direction 
 appears to have materially increased in the course of the 
 following century, for private lotteries were, early in the 
 reign of Queen Anne, suppressed as "public nuisances.'" 
 
 The financial condition of France, Id pcinirle dcs 
 finai)(.-('N, caused her to create in 1700 a public lottery of 
 ten millions, which was soon followed by the establish- 
 ment of other lotteries in the provinces : and in 1777 a 
 special administration of them was organized. A decree 
 of the convention (<ln ',18 Von), an JJ) continued the lot- 
 tery of France, and suppressed all other lotteries of every 
 kind. I >ut one month later a decree abolished lotteries 
 1 Encyclopedia Britamiica.
 
 THE LOUISIANA STATE LOTTERY. 277 
 
 entirely. Fleau invente, said the deputy who moved 
 for the abolition, par le despotisme, pour faire taire le 
 peuple en sa misere, en le leurrant d'une esperance qui 
 aggravate sa calamite. Reestablished by the Directory, 
 the national lottery continued to subsist during the Con- 
 sulate, the Empire, and the Restoration ; and lotteries 
 of every kind were again prohibited by the law of May, 
 1836. 
 
 The evils attendant on lottery speculations attracted in 
 1819 the attention of the English people, and were thor- 
 oughly discussed in Parliament. In 1823 public senti- 
 ment had become so far adverse to the further approval 
 of them that a lottery was tolerated in that year only 
 because it was to be the last ; and the act was accom- 
 panied by provisions for the future suppression, entire 
 suppression, of lotteries, which had long before been 
 denounced by Parliament as " common nuisances, by 
 which children, servants, and other unwary persons had 
 been ruined." The " Cyclopedia of Universal Know- 
 ledge," London, states correctly that lotteries have been 
 very common in the United States, and have been sanc- 
 tioned by the several States, not so much as a means of 
 raising money for state purposes as with the view of 
 encouraging, as they supposed, many useful objects, such 
 as canals, schools, etc. It adds: "The numerous frauds 
 practiced in lottery schemes in the United States have 
 perhaps done more to open the eyes of the people to the 
 mischief resulting from them than any investigation into 
 the true principles of lotteries." Perhaps so. But the 
 sight of the mischief and the knowledge of its cause have 
 led wise and reflecting men carefully to examine the na- 
 ture and character of lotteries, the object which the pro- 
 prietors and undertakers have in view, the scheme and 
 manner of conducting them, the temptation held out to 
 purchasers of tickets, the practical effect on the poor
 
 278 THE LOUISIANA STATE LOTTERY. 
 
 and deluded class of the people, the certain success of 
 the undertakers and proprietors of the lotteries ; and, 
 after careful examination and consideration, to pronounce 
 them unworthy of the favor and support of a good gov- 
 ernment. 
 
 The impolicy and ill effects of a state's resort to a 
 lottery, instead of to more honest direct taxation, to in- 
 crease its revenue, require no further exposure. A phil- 
 osophic, learned, and vigorous writer on political economy, 
 in 182G, sternly remarked : " Taxes by way of lottery 
 have received the decided reprobation of every good 
 writer in Europe. What right has a government to use 
 a gallows that encourages lotteries ? It is really deplor- 
 able that at this day writers on political economy have 
 to preach against a system of gambling, the parent of 
 improvident adventure, of fraud, of theft, of disappoint- 
 ment, of despair, a system encouraged by law, encour- 
 aged by the clergy ! " (See Gaesit sur les revenues pub- 
 liques.) Elsewhere, in a note to the rule " that no law 
 should restrain or control the acquisition or disposal of 
 property but what the good of society calls for," he adds : 
 " Perhaps what the manifest principles of morality re- 
 quire. Can a tax upon gambling-houses be defended? 
 Can lotteries be defended? Especially in this country, 
 where our financiers are not driven to their wits' end to 
 find out ways and means, etc. Even the clergy . . . seem 
 not averse to build churches by lotteries. This is calling 
 in the good offices of the devil to aid in building the 
 house of (rod ! " 
 
 Mr. Jefferson, on his retirement from the presidency of 
 the United States to the station and pursuits of a private 
 patriot citizen, applied to the Virginia legislature for 
 permission to sell his own property freely to pay his own 
 debts : to sell it, not to sacrifice it, not to have it 
 gobbled ii]) by speculators to make fortunes for them-
 
 THE LOUISIANA STATE LOTTERY. 279 
 
 selves, leaving- unpaid those who had trusted to his good 
 faith, and himself without resource in the last and most 
 helpless stage of life. This induced him to prepare 
 an essay entitled " Thoughts on Lotteries," February, 
 1826. 1 * 
 
 It was an adroit and successful address to the legisla- 
 ture to allow him to dispose of his large landed estate, 
 to repair his fortune broken by unavoidable neglect in a 
 long course of important public services at home and 
 abroad, an ingenious, elaborate, eloquent, but sophis- 
 tical petition, skillfully flattering the pride and lauding 
 the past action of the legislature. It makes a grand 
 display of good works effected by the granting of lotteries 
 for useful purposes, namely : for public revenues of the 
 State of Virginia, for schools and colleges, for public 
 roads and canals, for religious societies, for private so- 
 cieties, for the benefit of private individuals. 
 
 But, properly weighed, it shows a mistake, a grave 
 error, in the policy of legislation then prevalent in the 
 Old Dominion, the use of a bad passion in man, of 
 the love of gain without labor, of the hazard of the small 
 means of the poor, insufficient often for the comfort and 
 support of their families or of themselves individually, 
 to obtain large sums on remote possibilities. 
 
 Doubtless some good has resulted occasionally from 
 lotteries as described : but the means of obtaining such 
 good are not to be lost sight of, and not to be employed 
 if they are pernicious to public morals, if they excite the 
 lust of the greater number, and especially of the poor, to 
 jeopard their hard earnings and small means on false 
 and delusive schemes of profit without labor. 
 
 Mr. Jefferson, not wisely and truly, would artfully and 
 for his purpose resolve all the pursuits of human industry 
 into games of chance. He says : " In all these pursuits 
 1 Jefferson's Works, vol. ix. p. 500.
 
 280 THE LOUISIANA STATE LOTTERY. 
 
 you stake some one thing against another which you hope 
 to win. But the greatest of all gamblers is the farmer. 
 He risks the seed he puts into the ground, the rent he 
 pays for the ground itself, the year's labor on it, and the 
 wear and tear of his cattle and gear, to win a crop which 
 the chances of too much or too little rain and general 
 uncertainty of weather, insects, wastes, etc., often make 
 a total or partial loss." 
 
 This is certainly an abuse of terms and of right reason. 
 God gives man reason and the means of providing for 
 himself. The use of that reason and of those means in 
 the practical labor of production cannot be justly and 
 fairly assimilated to the remote chance or probability of 
 gain in a lottery. The ways of Providence are not 
 always known to us. We cannot foresee storms and 
 tempests, earthquakes and inundations. But we have 
 good ground to rely upon our labor for protection and 
 support in the justice, mercy, and loving-kindness of the 
 Creator who has fitted us for our state, and not made us 
 for suffering and want. 
 
 Mr. Jefferson himself is obliged to qualify his system 
 of chance in all the pursuits of life. There are some pur- 
 suits, he admits, entirely unproductive, doing good to 
 none, injury to many, so tempting and seducing that it 
 is the duty of society to suppress them entirely ; but lot- 
 teries which had been found useful by the legislature of 
 Virginia to the whole State, to public revenues, to private 
 societies, and to individuals, under circumstances which 
 claimed favor or indulgence, are placed under the discre- 
 tion of the legislature, to which he submits whether the 
 devotion of threescore years and one of his life, devoted 
 uninterruptedly to the service of his country, to good 
 government, to liberty, to a share in the merits of the 
 great \vork of American independence and in the benefits 
 of the Constitution of the United States wisely adminis-
 
 THE LOUISIANA STATE LOTTERY. 281 
 
 tered, whether he or his situation would justify the 
 legislature in permitting- him to avail himself of the mode 
 of selling 1 by lottery for the purpose of paying his debts. 
 
 The raising of money by lotteries for public pui'poses 
 in Virginia had its origin in times of public disturbance 
 and general poverty. It was a sort of legislative ruse to 
 draw money from individuals in small sums by operating 
 on the chance prospect of gain, when laying of a tax upon 
 property avowedly for the same purpose would have 
 excited general complaint and opposition. The system 
 was popular and of long continuance. It was under the 
 prevalence of that system that Mr. Jefferson sought 
 relief from poverty in his old age by a petition for leave 
 to dispose of his large but unprofitable landed estate by a 
 lottery. Virginia granted the prayer, but it would have 
 been better for her fame to have relieved her noble son, 
 the author of the Declaration of American Independence, 
 by a special appropriation or tax for the purpose. 
 
 More than half a century has since elapsed. At the 
 present day the moral and enlightened patriot, no longer 
 deceived and misled by the false and delusive expecta- 
 tion of immoral gain, condemns the system of lotteries as 
 inconsistent with and prejudicial to good morals, and in- 
 jurious to the pursuits of useful industry by which man 
 can alone provide properly for his wants, and secure the 
 peace, prosperity, and good order of civilized life. 
 
 Edward Livingston, one of the wisest, most philosophic 
 and eminent statesmen of our country, in a report to the 
 legislature of Louisiana on a criminal code prepared by 
 him under the appointment of the Genei'al Assembly of 
 the State, thus stated " a common fault in the legislation 
 of our country. We shape our laws to fit the principal 
 end which is proposed without sufficiently examining 
 whether the same object could be obtained by other 
 means, . . . that avoid dangers which, in our eagerness
 
 282 THE LOUISIANA STATE LOTTERY. 
 
 to obtain some doubtful good by a straightforward off- 
 hand legislation, have totally escaped our attention. 
 Thus, to raise a revenue for some useful purpose, we 
 license gambling - houses ; to promote education and to 
 provide for the building of churches, we establish lotteries. 
 . . . We do this without sufficiently inquiring whether 
 the requisite revenue might not be obtained by some other 
 and better means than giving the sanction of law to the 
 worst of vices ; whether a purer source could not be found 
 from which to draw the means of supporting religious 
 and scientific education than one that corrupts morals, 
 encourages idleness, and leads the poorer classes to 
 poverty and vice." 
 
 This view of the impolicy and immoral tendency of 
 lotteries would lead a member of Congress, duly regard- 
 ful of the general good and dignity of the nation, to 
 oppose any legislation in support of a lottery, however 
 specious in the purposes it proposed, and any offer of 
 employment to favor and procure such legislation. The 
 legal rights of the lottery company, whatever they may 
 be, can be properly settled in a due course of law without 
 any undertaking on his part, and non-intervention in a 
 matter coming before Congress touching the lottery would 
 leave him free from all embarrassment to act according 
 to his views of justice, public policy, and constitutional 
 duty. 
 
 The special instance of the Louisiana State Lottery 
 Company will now be examined. 
 
 Louisiana, in 1845, ordained as follows in the Constitu- 
 tion of the State : " No lottery shall lie authorized by this 
 State, and the buying and selling of lottery tickets within 
 the State is prohibited/' This Constitution was revised 
 and amended in 1852 : many articles were added to it, 
 many altered or modified, but the Constitution of 1852 
 retained the fundamental law of 1845 in regard to lot-
 
 THE LOUISIANA STATE LOTTERY. 283 
 
 teries and repeated in its very words, ipsissimis verbis : 
 "No lottery shall be authorized by this State, and the 
 buying and selling of lottery tickets within the State is 
 prohibited." 
 
 In the " compilation of the state Constitutions and the 
 Constitution of the United States," printed by order of 
 Congress, we find, in a note to the publication of " the 
 Constitution of Louisiana, 1864," p. 711, that " the Con- 
 stitution was formed by a convention which met at New 
 Orleans under the auspices of General Banks, then com- 
 manding the military department of the Gulf, April, 1864, 
 was submitted to the people in September, and was pro- 
 claimed ratified by a vote of 6,836 against 1,566 ; but the 
 state government organized under it was not recognized 
 by Congress." 
 
 The small vote taken on the so-called Constitution of 
 1864 shows that it had no real popular character, consider- 
 ation, and authorization, and was not an expression of the 
 opinion of the people of Louisiana. It was not in any 
 just and honest sense a ratification of the Constitution 
 submitted to them. The truth of this conclusion is con- 
 firmed by the fact that a new Constitution, superseding 
 that of 1864, was formed by a convention called under the 
 reconstruction acts of Congress, which met in. December, 
 1867, and completed its work in 1868. The new Consti- 
 tution was submitted to the people of Louisiana in 1868, 
 and was ratified by a vote of 66,152 against 48,759. 
 
 The Constitution of 1864 contained the following article, 
 to wit : " Constitution of Louisiana. 1864, Article 116. The 
 legislature shall have the power to license the selling of 
 lottery tickets and the keeping of gambling-houses. Said 
 houses in all cases shall be on the first floor, and kept 
 with open doors, but in all cases not less than -$10,000 
 per annum shall be levied as a license or tax on each 
 vender of lottery tickets and on each gambling-house,
 
 284 THE LOUISIANA STATE LOTTERY. 
 
 and $500 on each tombola." The Constitution of 1868 
 contained no provision for the granting or the prohibit- 
 ing 1 of lotteries, or the licensing of gambling-houses. 
 
 It thus appears that Louisiana, by her state Constitu- 
 tions from 1845 to the civil war of secession, under the 
 dominion of peace and American moral influences, or- 
 dained that no lotteries should be authorized by the 
 State, and that the buying and selling of lottery tickets 
 was prohibited. And it further appears that a power 
 conferred upon the legislature to license the selling of 
 lottery tickets and the keeping of gambling-houses was 
 the offspring of abused military authority and influence 
 for licentious and tyrannical gain by an anti-American, 
 immoral, and pretended exercise of constitutional power. 
 
 The charter of the Louisiana State Lottery Company 
 will now be considered. The company was incoi-porated 
 by the state legislature in 18G8. See Acts of Louisiana, 
 18G8, Xo. 25, p. 24. 
 
 The first section enacts that, whereas many millions of 
 dollars have been withdrawn from and lost to this State 
 by the sale of Havana and other lottery tickets, etc., and 
 fractional parts thereof, it shall hereafter be unlawful to 
 sell, offer, or expose for sale any of them or any other 
 lottery, except in such manner and by such persons as 
 shall be hereinafter authorized. 
 
 By a provision in a subsequent part of the act, any 
 person or persons violating the above enactment, or the 
 rights and privileges herein granted to this corporation, 
 shall be liable to said corporation in damages in a sum not 
 exceeding #5,000 nor less than #1,000 for each offense ; 
 and in a section immediately following the term of dura- 
 tion ot the corporation is fixed, to be and continue during 
 twenty-five years from the first day of January, 1809, for 
 which time it shall have tin; sole and exclusive privilege 
 of establishing and authorizing a lottery or a series of
 
 THE LOUISIANA STATE LOTTERY. 285 
 
 lotteries, and selling and disposing of lottery tickets, etc., 
 and fractional parts thereof. 
 
 It was further enacted that the corporation shall have 
 the sole right and privilege, during the whole term of its 
 existence, to dispose of by lottery or series of lotteries any 
 land it may become possessed of by purchase or other- 
 wise. 
 
 The fifth article of incorporation, in its first section, 
 provides : " The corporation shall pay to the State of 
 Louisiana the sum of $40,000 per annum, payable quar- 
 terly in advance to the state auditor, who shall deposit 
 it in the treasury of the State, to be credited to the 
 educational fund. And said corporation shall be exempt 
 from all other taxes and licenses of any kind whatever, 
 whether from state, parish, or municipal authorities." 
 
 The charter of the company should be further examined 
 and scrutinized. The act creating the corporation is en- 
 titled " An act to increase the revenues of the State, and 
 to authorize the incorporation and establishment of the 
 Louisiana State Lottery Company, and to repeal certain 
 acts now in force." 
 
 The company is then constituted and declared a cor- 
 poration, with the powers and privileges set forth in the 
 act, and for the purposes and objects specified in articles 
 of incorporation. 
 
 " Article 1. The name and title of this corporation shall 
 be the Louisiana State Lottery Company, and its domi- 
 cile shall be in the city of New Orleans, State of Louisi- 
 ana. 
 
 " Article 2. The objects and purposes of this corporation 
 are, first, the protection of the State against the great 
 losses heretofore incurred by sending large amounts of 
 money to other States and foreign countries for the pur- 
 chase of lottery tickets and devices, thereby impoverishing 
 our own people ; second, to establish a solvent and reli-
 
 286 THE LOUISIANA STATE LOTTERY. 
 
 able home institution for the sale of lottery, policy, and 
 combination tickets, etc., and fractional parts thereof, . . . 
 to insure perfect fairness in the distribution of prizes ; 
 third, to provide means to raise a fund for educational 
 and charitable purposes for the citizens of Louisiana." 
 All to be accomplished through the instrumentality of the 
 Louisiana State Lottery ! 
 
 The title of the act, the name of the corporation, the 
 statement of the objects and purposes of the company, are 
 alike deceptive and fraudulent. 
 
 The immoral character of lotteries has been sufficiently 
 shown by their pernicious effects upon society, and the 
 pretended object of the act, " to increase the revenues of 
 the State," is glaringly false, and too ridiculous and con- 
 temptible for serious notice. 
 
 The grant sought and obtained was to enable the 
 corporators, a number of avaricious speculators, to enrich 
 themselves by a lottery or delusive scheme, at the ex- 
 pense of the people at large, but chiefly of persons of 
 small means and in narrow circumstances, whose wants 
 and greedy hopes of gain would induce them to part with 
 their small sums, for the chance, the very remote and 
 improbable chance, of rich prizes. 
 
 The grave and solemn declaration that the objects and 
 purposes of the corporation are, first, to protect the State 
 from great losses and the people of the State from im- 
 poverishment by sending money abroad to purchase for- 
 eign lottery tickets, and second, for the accomplishment 
 of this great object, to establish a home institution for 
 the sale of lottery tickets and fractional parts thereof, is 
 an audacious and deceptive statement, a false pretense, 
 to obtain and secure to itself, the corporation, the custom 
 and support of purchasers of lottery tickets. 
 
 This is apparent on the face of the act, which enacts 
 that the corporation shall continue twenty-five years, and
 
 THE LOUISIANA STATE LOTTERY. 287 
 
 shall have the sole and exclusive privilege of establishing 
 a lottery or series of lotteries, and selling or disposing of 
 lottery tickets and fractional parts thereof ; and subjects 
 any person selling or exposing for sale any lottery ticket 
 or fractional part, in violation of the privileges granted 
 to the corporation, to the heavy penalties stated already. 
 In 1778 an English lottery act was passed. It limited 
 the subdivision of chances or fractional parts of the lottery 
 tickets to a certain portion or minimum. This was in- 
 tended to prevent the laboring population from risking 
 their earnings ; but we are told the limitation was exten- 
 sively evaded by means which aggravated the evil ; and a 
 growing repugnance was, in consequence, manifested in 
 Parliament to this method. 1 No minimum fractional part 
 of a ticket limits the Louisiana Company. It is free to 
 subdivide its tickets, according to its own interest and 
 policy and greed of gain. 
 
 The charter provides that, for the sole and exclusive 
 rights and privileges granted to the company for twenty- 
 five years, guaranteed and fortified by severe penalty 
 against violation, this odious monopoly of a pernicious 
 institution, " the corporation shall pay to the State of 
 Louisiana the sum of 840,000 per annum, . . . which 
 sum shall be credited to the educational fund; and the 
 said corporation shall be exempt from all other taxes 
 and licenses of any kind whatever, whether from state, 
 parish, or municipal authorities." : 
 
 On the first day of August, 1883, Mr. M. A. Dauphin 
 published an address to the public, in the " New Orleans 
 Picayune,'' in regard to the Louisiana State Lottery 
 Company, of which he is the president. He states that 
 the company was incorporated for twenty-five years by the 
 legislature for educational and charitable purposes, with a 
 
 1 Encyclopedia Britannica. 
 
 - Acts of the State of Louisiana, 1808.
 
 288 THE LOUISIANA STATE LOTTERY. 
 
 capital of $1,000,000, to which a reserve fund of over 
 $550,000 has since been added, making together $1,550,- 
 000 ; its stock has been sold at the board of Louisiana 
 brokers ; its standing is conceded by all who investigate. 
 Many of our citizens own stock in the company. It has 
 "semi-annual drawings;" its "grand single number 
 drawings " take place " monthly ; " and Mr. Dauphin 
 might have added, its " combination numbers drawings" 
 with one dollar tickets, and with their fractional mini- 
 mum parts of twenty-five cents, are made every day. The 
 prizes drawn in the lottery have been promptly paid, the 
 semi-annual and monthly drawings have been under the 
 supervision and management of two popular citizens, and 
 the whole business of the company has been so cunningly 
 and successfully conducted as not only to add to its capi- 
 tal of $1,000,000 a reserve fund of over $550,000, and so 
 to the enhancement of its stock, but also to enrich the 
 individual members of the corporation by dividends of 
 profits, calculated by them to be realized from their 
 scheme, of not less than hundreds of thousands of dollars 
 per annum. 
 
 The declaration that the "' third object of the corpora- 
 tion was to provide means to raise a fund for educational 
 and charitable purposes "' is sheer hypocrisy. 
 
 The moralist will judge for himself of this lottery 
 mode of increasing the revenues of the State, and raising 
 a fund for education and charity for the citizens of 
 Louisiana, by paying $40,000 per annum for a license to 
 plunder the public and establish an odious and pernicious 
 monopoly. 
 
 It is to be observed that Dauphin's address regards 
 only the prizes in the lottery between January, 187!), and 
 the first of August, 1883, a period of three years and 
 seven months : and that the payment by the company of 
 $40,000 pur annum was to be made on the express condi-
 
 THE LOUISIANA STATE LOTTERY. 289 
 
 tion that the corporation shall be exempt from all other 
 taxes and licenses of any kind whatever, whether state, 
 parish, or municipal ; and that, according to the rule of 
 uniform and equal taxation prescribed in the Constitution 
 of Louisiana, the taxes of the company would far exceed the 
 price paid for the exemption. The true aim of legislation 
 should be the good and expediency of the entire commu- 
 nity. The intention of the legislator is to guard and se- 
 cure the equal rights of every citizen ; not to grant and 
 lavish upon a favorite extraordinary privileges and ex- 
 emptions, in disregard of justice, the well-being and 
 morality of the community. 
 
 In 1879, a Constitution superseding the state Constitu- 
 tion of 1868 was adopted, as it has been heretofore stated, 
 by the people of Louisiana. It contains two articles 
 which will now be noticed (167 and 172) : 
 
 " Article 167. The General Assembly shall have au- 
 thority to grant lottery charters or privileges, provided 
 each charter or privilege shall pay not less than $40,000 
 per annum into the treasury of the State ; and provided, 
 further, that all charters shall cease and expire on the 
 first of January, 1895, from which time all lotteries are 
 prohibited in the State." 
 
 The charter of the so-named Louisiana State Lottery 
 Company was for twenty-five years from January 1, 1869, 
 and the Constitution of 1879 ordained that all charters 
 granted under the grant of power in Article 167 should 
 expire in the same year, and all companies should pay 
 into the state treasury $40,000 per annum for each char- 
 ter ; thus seeming to place new lottery charters on an 
 equal legal footing with that already in existence. But 
 it omitted to grant any new lottery an exemption from 
 taxes of any and every kind, in consideration of the 
 $40,000 per annum to be paid the State, thus destroying 
 the equality of privileges. 
 19
 
 290 THE LOUISIANA STATE LOTTERY. 
 
 The same article declares that the charter of the Lou- 
 isiana State Lottery Company, granted in 18G8, is recog- 
 nized as a contract binding on the State (a matter pre- 
 viously doubted by many), except its monopoly clause, 
 which is " hereby abrogated, etc., . . . provided said com- 
 pany shall file a written renunciation of all its monopoly 
 features, in the office of the Secretary of State, within 
 sixty days after the ratification of this Constitution."' Of 
 the additional sums raised by licenses on lotteries, 
 *40,000 per annum on each lottery, the hospital at 
 Shreveport shall receive $10,000 annually, and the re- 
 maining sum shall be divided each year among the sev- 
 eral parishes in the State for the benefit of their schools. 
 
 The address of President Dauphin on the character 
 and business operations of his company, its capital and 
 additional reserve fund from January, 1879, to August, 
 1883, etc., with the notice thereof and comments thereon, 
 may render superfluous any further review of this article. 
 Time has shown the folly of anticipating and the futility 
 of suggesting an increase in the revenue of the State from 
 the sums to be paid for future grants of lottery charters 
 or privileges by the General Assembly, sums to be suffi- 
 cient to furnish the Shreveport hospital yearly $ 10,000, 
 and to leave a remainder to be divided each year among 
 the several parishes of the State, fifty-eight in number, for 
 the benefit of their schools ! In the time that has elapsed, 
 now over three years, since the adoption of the Constitu- 
 tion of 1879, no lottery charter has been granted by the 
 State ; none has been sought, no, not one. The Loui- 
 siana State Lottery Company stands alone in its bad 
 eminence of lottery gamblers. Its sordid, covetous, and 
 avaricious desire of gain, not content with what lias been 
 acquired, urges the corporation to pursue its object with 
 unremitting greed. True, it has renounced its monopoly 
 charter clause and paid the amount of its license. But the
 
 THE LOUISIANA STATE LOTTERY. 291 
 
 monopoly clause had ceased to be useful to the company, 
 and the word "monopoly" was unpopular. Other clauses 
 of the charter : the rights and privileges granted, secured, 
 and enforced by penalties against any violation of them ; 
 the exemption from all other licenses and taxes of any 
 kind whatever, state, parish, or municipal, and the 
 large amount of money and other property thus already 
 acquired and held free from all taxation ; the manner in 
 which its business was conducted, its constant and perse- 
 vering temptation held out to all, and especially to the 
 poorer and laboring classes of society, all these com- 
 bined have continued to secure the sole and exclusive use 
 of lotteries in this Commonwealth in the hands of this 
 corporation. 
 
 Enough has been said to show the immoral character of 
 lotteries by their pernicious effects upon society, and to 
 expose the real objects of what is called the Louisiana 
 State Lottery Company. It is a monument of legislative 
 folly and popular deception, and of successful individual 
 cupidity. 
 
 The " American Cyclopedia," in its last edition, 1875, 
 informs us that the action in most of the States in pro- 
 hibiting the further establishment of lotteries should be 
 mainly attributed to the efforts of a Pennsylvania society. 
 In no fewer than twenty-six of the States the Constitution 
 expressly forbids the legislature to authorize them, and 
 in nearly all the States parties concerned are subjected to 
 heavy penalties : but lotteries are still permitted in Ken- 
 tucky, and in Louisiana a general law prohibiting lottery 
 companies was suspended in 1868, by an act chartering 
 a company, and giving it an exclusive privilege of selling 
 lottery tickets for twenty-five years. 1 
 
 It is to be observed that the state Constitution of 1879, 
 which gave the General Assembly power to grant char- 
 1 American Cyclopaedia, vol. x., " Lottery."
 
 292 THE LOUISIANA STATE LOTTERY. 
 
 ters to lotteries up to 1895, itself conveys a condemna- 
 tion of the policy of such a grant by providing that 
 " from that time all lotteries are prohibited in this 
 State : " and this condemnation is conveyed anew in Ar- 
 ticle 172, to wit : " Gambling is declared to be a vice, 
 and the General Assembly shall enact laws for its sup- 
 pression." Wise for the future, provident for the pro- 
 tection of posterity against the immoral, mischievous, and 
 baleful influence of a lottery system, but too weak to 
 resist the pernicious influence of those interested in the 
 system, the members of the convention, heedless of the 
 present, passed by without notice the great injury to so- 
 ciety, to the individual daily comfort and necessities of 
 its members, to the fame of Louisiana, and yielded the 
 constitutional sanction of the State to the charter of the 
 Louisiana State Lottery Company. 
 
 It is a shame to us that such things can be reported, 
 and that they cannot be refuted ! 
 
 Passing by an easy transition from the mistaken policy 
 and law of Louisiana on the subject of lotteries, and from 
 the general prohibition of lotteries by the several other 
 States of the Union, attention will now be turned to the 
 laws of our general government, and to the rights asserted 
 and claimed by the Louisiana Lottery Company under 
 the Constitution of the United States. 
 
 The company has published an address, headed New 
 Orleans, August 1, 1883. "To the public! Investigate 
 for yourselves." 
 
 The address contains a statement " in regard to the 
 standing of the company, the reputation and value of its 
 stock, which is sold at the board of brokers and owned 
 bv many citizens, the fairness of its conduct, and the 
 payment of prizes to the amount of 84,881.060, from 
 January 1, 1879, to August 1, 1883, made up of $887,350
 
 THE LOUISIANA STATE LOTTERY. 293 
 
 paid to nine banks in New Orleans, specially named ; of 
 81,366,300 to express company, T. M. Wescoat, mana- 
 ger ; and of 12,627,410 paid in sums of under $1,000 at 
 the various offices of the company throughout the United 
 States." 
 
 To this is appended in a footnote " that to the capital 
 of the company of $1,000,000 a reserve sum of $550.000 
 has since been added;" and, in a further note, "agents 
 and purchasers and holders of lottery tickets or funds 
 are instructed, ' Address registered letters and make 
 money orders payable to New Orleans National Bank, 
 New Orleans, Louisiana. Remit by postal note, Ameri- 
 can express order, New York Exchange, or draft on New 
 Orleans. Express charges ,on all sums of five dollars or 
 upwards we pay.' ' : 
 
 The address states nothing of the receipts, the profits, 
 the gain of the company, on what is termed " its grand 
 single number drawings monthly," or on " its semi annual 
 drawings," with their flaming, tempting advertisement, 
 namely, " A splendid opportunity to win a fortune," or 
 on its daily "combination numbers drawings," - nothing 
 of the dividends paid to its individual members; but 
 leaves the whole matter of the lottery success and benefit 
 of the company for the " investigation of the public," 
 upon its statement and alleged payment of prizes. 
 
 This address is evidence, not merely persuasive, but 
 conclusive evidence, that the Louisiana Lottery Company 
 has used, and now continues openly and avowedly to use, 
 the United States mail to transport corrupting publica- 
 tions and articles injurious to the public morals from the 
 State of Louisiana to other States of the Union, which 
 have prohibited the establishment of lotteries, and the 
 sale of lottery tickets, devices, or certificates, etc., of any 
 kind whatever ; and that the company has, for the sole 
 purpose of lucre, without any other reasonable and assign-
 
 294 THE LOUISIANA STATE LOTTERY. 
 
 able motive, extended its grasping hand beyond Louisi- 
 ana, and carried and plied its pernicious business, with 
 artful temptation and seductive success, by agents and 
 employees at the various offices of the company through- 
 out the United States, so as to delude their citizens, and 
 induce them, in violation of their several state laws and 
 state policy, to enter in considerable numbers into for- 
 bidden contracts, in buying and dealing in the lottery 
 tickets of the Lottery Company, a hazardous and unfair 
 species of gambling, perhaps the most certainly unfair, 
 demoralizing, and hurtful ! 
 
 Assuming for the sake of argument that the charter of 
 the Lottery Company is a valid grant by the State of 
 Louisiana, the right of the company to use the mail, the 
 post-offices, and the post-roads of the L T nited States, in the 
 manner and for the purposes claimed, will be considered. 
 
 The Constitution of the United States provides Con- 
 gress shall have power to establish post-offices and post- 
 roads. 
 
 Story says the nature and extent of this power, both 
 theoretically and practically, are of great importance. 
 "Nothing," observed "The Federalist," "which tends 
 to facilitate the intercourse between the States can be 
 deemed unworthy of public care." It is universally 
 agreed that the post-office establishment is one of the 
 most beneficent and useful establishments under the 
 national government. It circulates intelligence of a 
 commercial, political, intellectual, and private nature, 
 administers to the comfort, interests, and necessities of 
 individuals, cheers millions of hearts, imparts new influ- 
 ence and impetus to private intercourse, and, by a wider 
 diffusion of knowledge, enables political rights and duties 
 to be performed with more uniformity and sound judg- 
 ment. It is effective as an instrument of the government 
 in its own operations, in peace and in war, enabling it to
 
 THE LOUISIANA STATE LOTTERY. 295 
 
 send its orders, direct its measures for the public good, 
 transfer its funds, and apply its powers with greater 
 facility and promptitude. The establishment in the 
 hands of the States would have been wholly inadequate 
 to these objects ; it requires a power which pervades the 
 Union, and which the national government alone can 
 safely or effectually execute. 
 
 The power of Congress over the post-office and the 
 mail is an exclusive one. The States have no post-office 
 department. The power to establish that department is 
 delegated entirely to the general government. 
 
 " The power possessed by Congress embraces the regu- 
 lation of the entire postal system of the country. The 
 right to designate what shall be carried necessarily 
 involves the right to determine what shall be excluded." 
 
 " The validity of legislation, prescribing what should 
 be carried, and its weight and form, and the charges to 
 which it should be subjected, has never been questioned. 
 What should be mailable has varied at different times, 
 changing with the facility of transportation over the post- 
 roads. At one time, only letters, newspapers, magazines, 
 pamphlets, and other printed matter not exceeding eight 
 ounces in weight were carried. Afterwards books were 
 added to the list, and now small matters of merchandise 
 not exceeding a prescribed weight, as well as books and 
 printed matter of all kinds, are transported in the mail. 
 
 " The difficulty attending the subject arises, not from 
 the want of power in Congress to prescribe regulations as 
 to what shall constitute mail matter, but from the neces- 
 sity of enforcing them consistently with rights reserved 
 to the people, of far greater importance than the trans- 
 portation of the mail. In their enforcement, a distinction 
 is to be made between different kinds of mail matter, 
 between what is intended to be kept free from inspection, 
 such as letters and sealed packages subject to postage,
 
 296 THE LOUISIANA STATE LOTTERY. 
 
 and what is open to inspection, such as newspapers, mag- 
 azines, pamphlets, and other printed matter purposely left 
 in a condition to be examined. Letters and sealed pack- 
 ages of this kind in the mail are as fully guarded from 
 examination and inspection, except as to their outward 
 form and weight, as if they were retained by the parties 
 forwarding them in their own domiciles. The constitu- 
 tional guaranty of the right of the people to be secure in 
 their papers against unreasonable searches and seizures 
 extends to their papers thus closed against inspection, 
 wherever they may be. Whilst in the mail they can only 
 be opened and examined under like warrant, issued upon 
 similar oath or affirmation, particularly describing the 
 thing to be seized, as is required when papers are sub- 
 jected to search in one's own household. No law of Con- 
 gress can place in the hands of officials connected with 
 the postal service any authority to invade the secrecy of 
 letters and such sealed packages in the mail ; and all 
 regulations adopted as to mail matter of this kind must 
 be in subordination to the great principle embodied in 
 fourth amendment of the Constitution. 
 
 " Nor can any regulations be enforced against the 
 transportation of printed matter in the mail which is 
 open to examination, so as to interfere in any manner 
 with the freedom of the press. Liberty of circulating is 
 as essential to that freedom as liberty of publishing; 
 indeed, without the circulation the publication would be 
 of little value. If, therefore, printed matter be excluded 
 from the mails, its transportation in any other way can- 
 not be forbidden by Congress." r 
 
 The court proceeded to state that in 1836 the power 
 
 of Congress to exclude publications from the mail was 
 
 discussed in the Senate. President Jackson had, in a 
 
 previous message, suggested to Congress the propriety of 
 
 1 S. C. U. S. /<;./ iirtr Jiu-kson, Otto, 7.'5:3.
 
 THE LOUISIANA STATE LOTTERY. 297 
 
 passing a law prohibiting the circulation of incendiary 
 publications to stimulate the slaves in the Southern 
 States to insurrection, and preventing the post-office 
 department, which was designed to foster an amicable 
 intercourse and correspondence between all the members 
 of the Confederacy, from being used as an instrument of 
 an opposite character. That part of the message was 
 referred, on motion of Mr. Calhoun, to a select commit- 
 tee of which he was made chairman, and he made an 
 elaborate report on the subject, with an accompanying 
 bill condemning in the strongest terms the circulation of 
 the publications. He insisted that Congress had not the 
 power to prohibit their transmission through the mail, on 
 the ground that it would abridge the liberty of the press. 
 At the same time he insisted that when a State had pro- 
 nounced their circulation to be dangerous, and had pro- 
 hibited it, it was the duty of Congress to respect its laws 
 and cooperate in their enforcement, and to prevent de- 
 livery by the postmasters in the States where the circula- 
 tion was forbidden. 
 
 "These views," said the court, "were founded on the 
 assumption that it was competent for Congress to pro- 
 hibit the transportation of newspapers and pamphlets 
 over postal routes in any other way than by mail ; and of 
 course it would follow that if, with such a prohibition, 
 the transportation in the mail could also be forbidden, the 
 circulation of the documents would be destroyed, and a 
 fatal blow given to the freedom of the press. But we do 
 not think that Congress possesses the power to prevent 
 the transportation in other ways, as merchandise, of mat- 
 ter which it excludes from the mails. To give efficiency 
 to its regulations and prevent rival postal systems, it may, 
 perhaps, prohibit the carriage by others for hire over 
 postal routes of articles which legitimately constitute 
 mail matter in the sense in which that term was used
 
 298 THE LOUISIANA STATE LOTTERY. 
 
 when the Constitution was adopted, consisting of letters, 
 and of newspapers and pamphlets, when not sent as mer- 
 chandise ; but further than this its power of prohibition 
 cannot extend. 
 
 " Whilst regulations excluding matter from the mail can- 
 not be enforced in a way which would require or permit 
 an examination into letters or sealed packages subject to 
 letter postage without warrant issued upon oath or affir- 
 mation in the search for prohibited matter, they may be 
 enforced upon competent evidence of their violation 
 obtained in other ways, as from parties receiving the 
 letters or packages, or from agents depositing them in 
 the post-office, or others cognizant of the facts. And as 
 to objectionable printed matter which is open to examina- 
 tion, the regulations may be enforced in a similar way by 
 the imposition of penalties for their violation, through the 
 courts, and in some cases by the direct action of the 
 officers of the postal service. In many instances these 
 officers can act upon their own inspection, and from the 
 nature of the case must act without other proof, as when 
 the postage is not prepaid, or where there is an excess of 
 weight over the amount prescribed, or where the object 
 is exposed and shows unmistakably that it is prohibited, 
 as in the case of an obscene picture or print. In such 
 cases no difficulty arises and no principle is violated in 
 excluding the prohibited articles or refusing to forward 
 them. The evidence respecting them is seen by every 
 one, and is in its nature conclusive. 
 
 k ' In excluding various articles from the mail, the object 
 of Congress has not been to interfere with the freedom of 
 the press, or with any other rights of the people, but to 
 refuse its facilities for the distribution of matter deemed 
 injurious to the public morals. Thus, bv act of March 3, 
 187r3, Congress declared * that no obscene, lewd, or las- 
 civious book, pamphlet, picture, paper, print, or other
 
 THE LOUISIANA STATE LOTTERY. 299 
 
 publication of an indecent character, nor any article or 
 thing designed or intended for the prevention of concep- 
 tion or procuring of abortion, nor any article or thing 
 intended or adapted for any indecent or immoral use 
 or nature, nor any written or printed card, circular, 
 book, pamphlet, advertisement, or notice of any kind, 
 giving information, directly or indirectly, where, or how, 
 or of whom, or by what means either of the things before 
 mentioned may be obtained or made, nor any letter upon 
 the envelope of which, or postal-card upon which, inde- 
 cent or scurrilous epithets may be written or printed, 
 shall be carried in the mail; and any person who shall 
 knowingly deposit or cause to be deposited for mailing or 
 delivery any of the hereinbefore mentioned articles or 
 things . . . shall be deemed guilty of a misdemeanor, and 
 on conviction thereof shall for every offense be fined not 
 less than -$100 nor more than $5,000, or imprisonment 
 at hard labor not less than one year nor more than ten 
 years, or both, at the discretion of the judge.' 
 
 " All that Congress meant by this act was that the 
 mail should not be used to transport such corrupting pub- 
 lications and articles, and that any one who attempted to 
 use it for that purpose should be punished. The same 
 inhibition has been extended to circulars concerning lot- 
 teries, institutions which are supposed to have a demoral- 
 izing influence upon the people. . . . The only question 
 for our determination relates to the constitutionality of 
 the act, and of that we have no doubt." 
 
 " The commitment of the prisoner to the county jail, 
 until his fine was paid, was, within the discretion of the 
 court, under the statute." 
 
 The statement of the case thus decided shows that 
 " Section 3894 of the Revised Statutes U. S. provides : 
 No letter or circular concerning ' illegal ' lotteries . . . 
 shall be carried in the mail. Any person who shall know-
 
 300 THE LOUISIANA STATE LOTTERY. 
 
 ingly deposit or send anything to be conveyed by mail in 
 violation of this section shall be punishable by a fine of 
 not more than $500 nor less than -$100, with costs of 
 prosecution.'" By an act of July, 1876, the word 
 " illegal " was stricken out of the section. Under the 
 law as thus amended, Jackson was indicted in the Circuit 
 Court U. S., southern district of New York, for know- 
 ingly and unlawfully depositing, on the 23d February, 
 1877, in that district, in the mail of the United States, to 
 be conveyed in it, a circular concerning a lottery offering 
 prizes inclosed in an envelope to one I. Ketchum at Glov- 
 ersville, New York. lie was tried, convicted, sentenced 
 to pay a fine of -$100 with costs, and committed to the 
 county jail until the fine and costs were paid. Where- 
 upon he presented a petition praying the Supreme Court 
 for a habeas cot-pus to inquire into the cause and legality 
 of his imprisonment. The result was the opinion and 
 decree just examined, the unanimous opinion of that high 
 tribunal that the Constitution of the United States has 
 vested in Congress the exclusive power to regulate the 
 entire postal system of the country, to designate what 
 shall be carried in the mail, and to determine what shall 
 be excluded ; and that Congress has, in the exercise of 
 that power, excluded from transportation in the mail cir- 
 culars concerning lotteries. 
 
 This is intentionally repeated, to impress more forcibly 
 and indelibly the policy and the concurrent opinion of 
 the Congress and the judiciary. 
 
 On the 13th November, 1879, the Postmaster-General 
 of the United States, 1). M. Key, issued an order to the 
 postmaster at New Orleans touching money orders and 
 registered letters addressed " to M. A. Dauphin, engaged 
 in conducting a scheme or device for obtaining money 
 through the mails bv means of fraudulent pretenses," etc. 
 (which the Postmaster-General particularly described),
 
 THE LOUISIANA STATE LOTTERY. 301 
 
 forbade the postmaster at New Orleans to pay any 
 postal money order drawn to the order of said Dauphin, 
 etc., " and directed him to inform the remitter of said 
 postal money order that the sum of said money order will 
 be returned to him under the regulations of the depart- 
 ment." Pie further instructed the postmaster at New 
 Orleans " to return all registered letters directed to said 
 Dauphin," etc., " to the postmasters at the office where 
 they were originally mailed, with the word ' fraudulent ' 
 plainly written or stamped upon the outside of such let- 
 ters." This order, the Postmaster-General wrote, was 
 made " upon satisfactory evidence before him that the 
 said Dauphin was so engaged." 
 
 M. A. Dauphin brought suit against Postmaster-General 
 Key to enjoin the execution of this order. The decree of 
 the court of original jurisdiction was (must have been) 
 adverse to Dauphin, and the injunction was refused. 
 Dauphin appealed the case to the Supreme Court of 
 the United States. But the court of original jurisdiction 
 had already sustained Key's order. It was valid and 
 binding in law, in the hands of the postmasters who were 
 bound to obey and enforce it; the Postmaster -General 
 satisfied from evidence that the order was necessary, its 
 immediate execution was about to be pressed. " What 
 could be done to arrest the prompt, immediate execution 
 of the order, so injurious, perhaps fatal, to the lottery 
 represented by Dauphin ? " Let the following order of 
 Postmaster-General Key show what was actually done : 
 
 POST OFFICE DEPARTMENT, WASHINGTON, D. C., 
 Feb. 27, 1880. 
 
 SIR, This party (M. A. Dauphin, Prest. of the La. 
 S. Lottery Co.) having brought suit against me, to en- 
 join the performance of this order, and having appealed
 
 302 THE LOUISIANA STATE LOTTERY. 
 
 the same to the Supreme Court of the United States, 
 and having this day presented the certificate of the Gov- 
 ernor and state officers of the State of Louisiana that 
 he has complied with all the legal requirements of that 
 State, and other evidence ; and " not being satisfied " 
 from the evidence submitted to me that the said M. A. 
 Dauphin is engaged in conducting a scheme or device for 
 obtaining money through the mails by means of false 
 and fraudulent pretenses and representations and prom- 
 ises, I do hereby authorize and direct the suspension of 
 said order of November, 1879, so far as relates to said 
 Dauphin, until the case shall have been heard and deter- 
 mined by the Supreme Court of the United States. 
 
 D. M. KEY, Postmaster- General. 
 To Postmaster New Orleans, La., 
 and Postmaster New York, N. Y. 
 
 It is plain that the Postmaster-General had consented 
 to a mere " suspension of said order of November, 1879 ; " 
 a temporary suspension of that order until the case under 
 appeal should have been heard and determined by the tri- 
 bunal of last resort. The order of November, 1879, was 
 not revoked or canceled. It was simply provided that, 
 during the pendency of the appeal, the execution of that 
 previous order should be suspended. Now we learn that 
 the appeal was dismissed in vacation by the appellant's 
 counsel, with the consent of the solicitor-general. This 
 put an end to the suspension, and restored the binding 
 effect of that previous order, as Postmaster-General 
 Gresham justly maintains. 
 
 The notion "' that Congress had not power to pass a 
 law prohibiting the transmission through the * mail,' and 
 refusing its facilities for distributing matter deemed inju- 
 rious to the public morals," corrupting publications and 
 articles, and circulars concerning lotteries, institutions 
 which an- supposed to have a demoralizing influence upon
 
 THE LOUISIANA STATE LOTTERY. 303 
 
 the people, because that would abridge the liberty of 
 the press, deserves no further refutation. 
 
 When the fathers proclaimed in the Constitution of 
 the United States that no senator or representative, in 
 either house of Congress, shall be questioned in any 
 other place for any speech or debate he may have made 
 in Congress, 1 it was under the perfect conviction that the 
 freedom, the most absolute freedom of discussion is ne- 
 cessary to expose error or delinquency, and to bring the 
 truth into full light. And it was to secure this freedom 
 of discussion that the first amendment to the Constitution 
 was made, containing the clause respecting the liberty of 
 speech and of the press : " Congress shall make no law 
 abridging the freedom of speech or of the press." 
 
 Truth does good. On questions of a general and pub- 
 lic nature, there is no means of discovering what is truth 
 and what is error or imposture, but a full examination of 
 the questions, with all their evidence and under all their 
 aspects. Truth cannot gain by suppressing and restrain- 
 ing the production of facts and arguments. " If power 
 be given to the government to say what opinions shall be 
 published and what shall not be published, the whole 
 knowledge, talent, and intellect of the country is under 
 the absolute guidance and control of its political rulers." 
 To decide what opinions shall be permitted and what pro- 
 hibited is to choose opinions for the people. " The ab- 
 solute power of suppressing opinions, if it could be 
 exercised, would amount to a despotism far more perfect 
 than any which has yet existed." 2 If general happiness 
 and national prosperity be connected with the general 
 diffusion of knowledge, and if knowledge be the result of 
 freedom of inquiry, then it is truly said freedom of in- 
 
 1 Constitution, Art. 1, Sect. G. 
 
 2 G Westminster Review, p. 290.
 
 304 THE LOUISIANA STATE LOTTERY. 
 
 quiry is at least one of the main sources of national 
 prosperity. Energy of intellect increases as the field of 
 its exertion is extended ; full and free discussion leads 
 to public information and sound judgment. " Men are 
 never," says Macaulay, u so likely to settle a question 
 rightly as when they discuss it freely. A government can 
 interfere in discussion only by making it less free than it 
 would otherwise be." 
 
 The framers of the Constitution were wise, patriotic, 
 and experienced ; familiar with and properly appreciat- 
 ing the principles of public liberty existing in England, 
 and which they brought to America, leaving all that was 
 objectionable. They were great reformers. 
 
 Among the objections against the Constitution, it was 
 contended that it provided no express protection of free- 
 dom of speech and of the press from the government about 
 to be created, a protection which English history pain- 
 fully proved to be indispensable to general knowledge, to 
 purity of government, and to true liberty. The atrocious 
 cases of libel tried before the judicial tribunals of Eng- 
 land, revolting to justice and humanity, showed the wis- 
 dom and necessity of the proposed amendment : and the 
 promptitude and zeal with which it was supported evinced 
 the good faith, patriotism, and regard for their posterity 
 characteristic of the fathers. 
 
 The liberty of the press is the liberty of printing as 
 well as the liberty of publishing. It consists in the right 
 to publish freely the truth and sentiments on all subjects, 
 with good motives and for justifiable ends. To publish 
 is to make public, to announce, to disclose, to promulgate, 
 to put forth or issue to the public. The press conveys 
 the same thought to ten thousand minds at the same 
 time : and the mighty power of public opinion, embodied 
 in a free press, checks and controls human governments. 
 " It is," says M. Thiers, " the privilege by means of which
 
 THE LOUISIANA STATE LOTTERY. 305 
 
 he who vainly lifts his voice against the corruptions or 
 prejudices of his own time may leave his counsel upon 
 record as a legacy to impartial posterity." 
 
 It was with full knowledge and a just appreciation of 
 the liberty of the press that the power was vested in 
 Congress "to establish post-offices and post-roads." 
 
 We have seen that the power possessed by Congress 
 embraces the regulation of the entire postal system of the 
 country, the carriage of the mail, its safe and speedy 
 transport, the prompt delivery of its contents, and the 
 designation of what shall be carried and what shall be 
 excluded ; that Congress, in excluding various articles 
 from the mail, did not intend to interfere with the free- 
 dom of the press or with any other rights of the people, 
 by the act of March 3, 1873, but to refuse the facilities of 
 the mail for the distribution of matter deemed injurious 
 to the public morals. It meant, by the act, that the mail 
 should not be used to transport such corrupting publica- 
 tions and articles (as those mentioned in the act), and 
 that any one who attempted to use it for that purpose 
 should be punished ; that the same inhibition has been 
 extended to circulars of lotteries which are supposed to 
 have a demoralizing influence upon the people ; and that 
 the Supreme Court of the United States have emphati- 
 cally declared, " Of the constitutionality of the act we 
 have no doubt." 
 
 The liberty of the press consists in the right to publish 
 with impunity truth, with good motives, for justifiable 
 ends. It is the constitutional principle in our country 
 that " every citizen may freely speak, write, and publish 
 his sentiments, being responsible for the ' abuse ' of that 
 right, and that no law can rightfully be passed by Con- 
 gress to abridge the freedom of the press." 
 
 To suppose that Congress is bound by this constitu- 
 tional principle to aid in the transportation, distribution, 
 20
 
 306 THE LOUISIANA STATE LOTTERY. 
 
 and circulation of immoral, corrupting publications and 
 articles, contrary to its own judgment and the policy of 
 enlightened States of the Union, through the national 
 post-offices and post-roads and mail, for the purposes of a 
 lottery system, a system of gambling, of delusion, and de- 
 ception, of a general excitement for gain and of popular 
 spoliation, for instance, to entice citizens of New York 
 State, bound by her law prohibiting lotteries, and to 
 seduce them, in violation of her law, within her own 
 territory, into gambling lottery contracts and business ; 
 and now to threaten to harass the officers, Postmaster- 
 General of the United States and others, with suit for a 
 proper exercise of their duty under the constitutional 
 laws of Congress ! Such is the claim and such the posi- 
 tion of the Louisiana Lottery. 
 
 It is not necessary to notice at any extended length 
 the pretended impossibility of enforcing the regulations 
 of Congress as to what shall constitute mail matter, and, 
 of course, what shall not, consistently with the fourth 
 amendment of the Constitution of the United States, 
 which proclaims, " The right of the people to be secure 
 in their papers against unreasonable searches and seizures 
 of papers shall not be violated ; and no warrant shall 
 be issued but upon probable cause, supported by oath 
 or affirmation, describing the place to be searched, and 
 the persons or things to be seized." 
 
 Undoubtedly, letters, and sealed packages subject to 
 letter postage in the mail, are as fully guarded from in- 
 spection as if they were retained by the parties forward- 
 ing them in their own domiciles. The guaranty against 
 unreasonable searches and seizures of papers extends to 
 papers wherever they niay be. But whilst regulations 
 excluding matter from the mail cannot be enforced in a 
 way which would require or permit an examination into 
 letters, or sealed packages subject to letter postage, with-
 
 THE LOUISIANA STATE LOTTERY. 307 
 
 out warrant, issued upon oath or affirmation, in the search 
 for prohibited matter, they may be enforced upon compe- 
 tent evidence of their violation obtained in other ways, 
 as stated already in the extract from the decision of the 
 Supreme Court. 
 
 Nor is it necessary to inquire how, by what evidence, 
 what abracadabra, Postmaster - General Key or Post- 
 master General Howe became convinced that there was 
 nothing " fraudulent " in the Louisiana Lottery business. 
 If fraudulent means false, deceptive, misleading, delusive, 
 it is impossible to find a word more strongly and truly 
 descriptive of the character of the Louisiana State Lot- 
 tery.
 
 THE GOVERNMENT OF THE REPUBLICAN 
 PARTY IN LOUISIANA. 
 
 [Extract from notes of a speech delivered by Mr. Hunt, in 
 1876, when the Hon. Francis T. Nichols was the Democratic 
 candidate for Governor of the State against Mr. Stephen B. 
 Packard, Republican.] 
 
 THE government of Louisiana is truly called the Kel- 
 logg government. It is a government of usurpation and 
 tyranny. It was created by judicial fraud, and enforced 
 by military despotism. It has been, and still is, upheld 
 by the will of the President alone. 
 
 In its origin, it trampled upon the principle of popular 
 representation, and substituted a barbarous horde of 
 needy and greedy carpet-bag adventurers, and ignorant 
 negroes, their deluded and unhappy dupes, in the place 
 of the constitutional representatives of the State. The 
 legislature thus composed was a band of oppressors and 
 spoliators, who loaded the people with taxes to enrich 
 themselves, their governor and his followers, and impov- 
 erished and ruined the owners of property. 
 
 It is known by acts hostile to liberty and free govern- 
 ment, and injurious to the interests and the welfare of 
 the people. A judiciary to uphold and support the acts 
 of the legislature was of course established. Judges were 
 selected for their supposed subserviency to the will of the 
 executive and the behests of their party. "With few, 
 very few exceptions, they have been deemed corrupt and 
 ignorant, ;ind are justly held in public odium and con- 
 tempt. The citizens of Louisiana have no confidence in
 
 THE REPUBLICAN PARTY IN LOUISIANA. 309 
 
 the integrity, learning, and judgment of the existing 
 judicial tribunals of their unhappy State. The executive 
 department of the Kellogg dynasty is akin to the legisla- 
 tive and judiciary departments, and is well adapted to the 
 purposes of tyranny and spoliation. 
 
 Its officers have been charged with breaches of public 
 trust, false assessments of taxable property, and corrupt 
 bargains with taxpayers, with defalcations and embezzle- 
 ments. The governor himself, once poor, has become rich 
 by gainful speculations, by means of legislative action. 
 He has pardoned a large number of convicted felons, in 
 contempt of law, justice, public opinion, and the peace 
 and good order of society. 
 
 One act, for which, however, he has only been left 
 responsible to public opinion, is the slaughter, under his 
 authority, of a large number of our fellow-citizens on the 
 14th of September, 1874, citizens whose sole objects and 
 intentions on the occasion were to take possession of arms 
 belonging to them, which they had imported legally, and 
 which they had been obstructed unlawfully in obtaining. 
 
 He has several times deserted his office, left the State, 
 and gone to Washington to poison by calumnies and false 
 reports the mind and heart of the President against the 
 people over whom he rules ; to procure troops to be sent 
 to Louisiana to overawe the good citizens, white and 
 colored, of the State ; to effect a rupture, if possible, 
 between those citizens, allied together to choose honest 
 and well-qualified public officers at the coming election ; 
 and to continue, by means of the presence of a large 
 armed force, a rule foreign and hostile to the State, a 
 rule of greed and corruption, of spoliation and wasteful 
 expenditure for party and selfish purposes. 
 
 The means used to give a semblance of popular action 
 to these outrages, grievances, oppressions, wrongs, and 
 abuses were false registration acts and a pretended and 
 miscalled returning board. They were inventions of a
 
 310 THE REPUBLICAN PARTY IN LOUISIANA. 
 
 time when the noblest citizens of Louisiana were pro- 
 scribed and disfranchised, and they descended as a legacy 
 to Kellogg. 
 
 The registration frauds are familiar to you by the ex- 
 posure made by a conservative committee of our citizens 
 and the daily publications and comments of a well-in- 
 formed and spirited press. The other abuse is the infa- 
 mous returning board. 
 
 This board, under the stimulating encouragement and 
 protection of the military power, notwithstanding it had 
 no returns before it, officially announced the election of 
 Kellogg to the gubernatorial chair. I know that there 
 are many persons who fear that the board will again 
 make a false report, equally unfounded, and in favor of 
 Packard. But it is a false fear. The day for suffering 
 such a fraud to be perpetrated has passed away. Every 
 eye is fixed upon the election, every heart is determined 
 on honesty in its conduct ; and audacious as those in the 
 service of our tyrants are, they will not dare again to 
 trample upon the rights of a free, outraged, and offended 
 people. 
 
 Supported by the full sense of right, by the Constitu- 
 tion and laws of their country, and by the sympathy and 
 countenance of every lover of American liberty, they will 
 maintain their liberties. The people are aroused and 
 vigilant. Let them be calm and prudent, but determined 
 not to be intimidated or cheated. 
 
 The presence of armed men, if that foul wrong should 
 be effected, and the glitter of arms should inspire no 
 fear in the breast of the patriot. In the last event, if 
 unavoidable, it is better to die freemen than to live 
 slaves. But the people of Louisiana will not be reduced 
 to such an extremity. They are in a large majority, and, 
 if undaunted, they will enjoy a peaceful and noble tri- 
 umph. Louisiana will rise from her prostration, and
 
 THE REPUBLICAN PARTY IN LOUISIANA. 311 
 
 stand, redeemed, regenerated, and disinthralled, with a 
 pure, constitutional American government, a State, the 
 herald of liberty and prosperity. 
 
 When, at the instance of Packard, Casey, Judge 
 Durell, and other officers of the United States resident 
 here, Louisiana was converted by General Grant into a 
 satrapy, and the ambitious and cunning but timid Kel- 
 logg was made its ruler, two assemblies claimed to be 
 severally the legislature of Louisiana, the McEnery 
 legislature and the Kellogg legislature. Each of them 
 elected a citizen to be a member of the Senate of the 
 United States. 
 
 The claims of the two applicants for membership were 
 severally considered, and both, after examination and due 
 consideration, were rejected by the Senate, the constitu- 
 tional and exclusive judges of the claims. Let us assume 
 that their judgment was correct. Neither legislature was 
 recognized as a constitutional and lawful body, whose 
 presentment of a senator was entitled to acceptance. 
 The facts reported by the committee of investigation 
 showed that there was no republican state government in 
 Louisiana. 
 
 The guaranty clause of the Constitution of the United 
 States required the United States to secure to every State 
 in the Union a republican form of government, but the 
 government of the United States failed in its duty, and 
 General Grant has held Louisiana from that day to this. 
 Louisiana ceased to be an equal in the Senate of States 
 of the Union, in the Senate of the United States, a 
 Senate of equals. Her people stand degraded and 
 wronged as a people of a sovereign State. 
 
 The active politicians and party speakers of many of 
 the States deny this statement. 
 
 Let us go early into the senate chamber at Washing- 
 ton. The roll is called. Massachusetts' two senators
 
 312 THE REPUBLICAN PARTY IN LOUISIANA. 
 
 answer, and so of other States, until Louisiana is called. 
 No two names then strike the ear. She has not her 
 equal representation, her full right as a sovereign State, 
 in the Senate, to which the Constitution entitles her ; and 
 why ? She has been deprived of it by military tyranny, 
 and Congress has failed to do her justice. 
 
 The patriotic senators of the North, the East, and the 
 West should not fail to keep this fact in view. The 
 wrong done to Louisiana is a blow to our constitutional 
 system of government. What to-day is done against one 
 State may be to-morrow done against another, unless the 
 population of a great State should successfully resist the 
 act of despotism. The danger to liberty is patent, and 
 calls for the sympathy and cooperation of every patriot to 
 overcome it. 
 
 Fellow-citizens of Louisiana ! you are engaged in a 
 great cause, the assertion and restoration of your 
 rights as a sovereign people, and the work of reform in 
 your own State, by the election of honest, capable, and 
 worthy men to the offices of the State. 
 
 I congratulate you upon your choice of a leader. Gen- 
 eral Nichols is known to us all. lie is a well-educated, 
 sensible, plain man, in every way worthy of confidence 
 and support. lie is honest, pure, and disinterested ; not 
 connected with rings or cliques ; perfectly free to do 
 right, and conscientiously bent on a faithful discharge of 
 his duties. He is also a brave man, not to be deterred by 
 any exhibition of military force or any sounding procla- 
 mation from addressing you without disturbance of tem- 
 per and mind. Give your full vote to him, and those 
 joined with him on the state ticket. His pledge of equal 
 justice to every citizen, white or colored, will be fully 
 redeemed.
 
 COUNTING THE ELECTORAL VOTE. 
 
 [At the request of a great many of Mr. Hunt's friends, he 
 wrote his views upon the powers of Congress, under the Consti- 
 tution, in relation to the electoral votes of Louisiana, Florida, 
 and South Carolina, in 1876.] 
 
 IT is a well-established historical fact that the creation 
 of the Electoral Commission was an act passed by a con- 
 spiracy of the two great political parties or factions of 
 the country to subvert the Constitution, and substitute in 
 its stead, for the electoral count, a body of men which each 
 of them believed would be devoted to itself, and would, 
 therefore, make a fraudulent account for its favorite. It 
 was a gambling game, which each believed it was safely 
 playing with loaded dice against its adversary. 
 
 The conspiracy grew out of the demoralization of the 
 times, a demoralization brought about chiefly by the state 
 of feeling between the two great sections of the country 
 towards each other long before the war, and leading to 
 it, and, notwithstanding reunion and apparent harmony, 
 still existing ; by the corrupting nature and influences of 
 the war ; and by the following administration of the 
 government under a successful military leader in a spirit 
 of favoritism to his followers and relatives. 
 
 The act creating the Electoral Commission is the 
 greatest wrong that has been done in civilized times to 
 the cause of free government and popular liberty. An 
 act of the legislature was made to subvert a certain por- 
 tion of the Constitution ; and the result of the subversion 
 has been the defrauding the majority of a free people of
 
 314 COUNTING THE ELECTORAL VOTE. 
 
 their right to choose their chief magistrate, and substitut- 
 ing for an eminent citizen, elected by a majority of a 
 quarter of a million of votes to the office, an obscure par- 
 tisan of General Grant, a man wholly unknown to 
 fame, civil and military. 
 
 The wrong and the disgrace of this act, let it be fairly 
 understood, are national, for it was passed by the represen- 
 tatives of the people in the two houses of Congress, and 
 approved by President Grant, and has been submitted to 
 by the people. 
 
 The great misfortune and injury of the act are the 
 shock it has given to republican government, and the 
 temptation it holds out to bad, ambitious men to make 
 further invasions and inroads upon the Constitution and 
 to destroy our free system of government. It remains 
 for the people to bear in mind what has taken place, and 
 to be careful with respect to those to whom they will give 
 their confidence as their representatives in the future. 
 
 Men too easily overlook wrong-doing ; and even the 
 learned and experienced suffer themselves to be betrayed 
 into submission by the success of iniquitous schemes. 
 We have an instance of this kind of submission in a 
 pamphlet which is now before us. 
 
 Judge Campbell, of this State, formerly of the Supreme 
 Court of the United States, after writing a learned and 
 able letter to the lion. Thomas F. Bayard, a senator from 
 Delaware, " on the powers of Congress over the returns 
 for the electors," approving in the clearest and strongest 
 terms the provisions of the Constitution on the subject, 
 having read "a synopsis of the report of the joint 
 committee of the Senate and House of Kepresentatives of 
 the Congress of the United States relative to the subject 
 he had considered,"- pronounces his acceptance of it in 
 the following strain : " It is a measure of high and mag- 
 nanimous statesmanship, which manifests that
 
 COUNTING THE ELECTORAL VOTE. 315 
 
 ' Great men still live among us, heads to plan, 
 And tongues that utter wisdom.' " 
 
 Let the errors, the manifest and dangerous errors of 
 the learned, put sensible, plain men on their guard, and 
 teach them to trust to their own honest and sound minds 
 for guidance. Dare to be wise. Think for yourself. This 
 is the patriot's motto. 
 
 The act creating the commission was passed in the fear 
 that the assertion and maintenance of the vote of the 
 majority for a President would break up the peace of the 
 country, and lead immediately to an internecine war, 
 which would probably end in the destruction of the Union 
 and the overthrow of our American system of govern- 
 ment. The fear was irrational and wholly unworthy of 
 the citizens of our country as patriots and lovers of lib- 
 erty. The vote of the majority was not the vote of a 
 section of the country, but the full and fairly expressed 
 choice of the whole nation. The people of America 
 had not so degenerated from the manly virtues of their 
 ancestors, courage and devotion to liberty, as to allow 
 a military leader and his followers to destroy the re- 
 public, and upon its ruins to erect a fraudulent and 
 tyrannical dominion over them. Had the choice of the 
 people happily fallen upon one of the noble and high- 
 spirited sons of the republic, such as a Jackson, a Clay, 
 a Webster, or a Calhoun, their right of choice would 
 have been asserted and respected, or, if in the madness 
 of faction denied and opposed by arms, would have been 
 honorably maintained and triumphantly established. And 
 if, in this latter event, blood had been shed, copiously 
 shed, as that of our fathers was in their revolutionary 
 struggle against the greatest power of the earth, the sac- 
 rifice upon the altar of liberty would have been holy and 
 pleasing in the sight of God and man.
 
 31G COUNTING THE ELECTORAL VOTE. 
 
 The duty to count includes the duty to canvass the 
 electoral votes ; that is, to weigh and determine any objec- 
 tions made against particular certificates and votes, and 
 to pronounce judgment. It is a deliberative and judicial 
 duty, the duty of the two houses. 
 
 To inaugurate a President simply on the proclamation 
 of the president of the Senate is a usurpation which the 
 people will resist. If the two houses disagree, and if, 
 upon the count, the fact appears that no person has the 
 constitutional majority of votes, the function of the Sen- 
 ate, pro hac vice, ends ; the duty of electing the President 
 devolves, ipso facto, upon the House, and the duty of 
 electing the Vice-President upon the Senate. The House 
 is not to wait for the action of the Senate. It is the 
 represenative of the whole people of the United States, 
 and is required " immediately " to choose the President. 
 
 Government is essential to man's happiness and exist- 
 ence. It must have power to protect the community 
 against internal violence and disorders, and against dan- 
 gers from abroad. This power, unless wisely limited and 
 guarded, will be used by those who administer and con- 
 trol it for their own advantage and aggrandizement at 
 the expense and to the oppression of the rest of the com- 
 munity. The evil and dangerous effect and tendency of 
 this power and control may be seen even under our own 
 government, and especially in the patronage and power 
 of the President of the United States. 
 
 The large sums of money to be collected and disbursed 
 by the government ; the host of officers, agents, and others 
 employed for its administration ; the honors, emoluments, 
 and other advantages it confers; the stations, salaries, 
 patronage, and influence attending it, all these lead to 
 the formation of parties, a governing and a governed por- 
 tion of the people, with the tendency to abuse of power by
 
 COUNTING THE ELECTORAL VOTE. 317 
 
 the former. Mr. Webster, in speaking of this subject, 
 declared that the power and patronage of the President 
 had become dangerous to liberty, and that if ever he who 
 was the head of the nation became the mere head of a 
 party, that party would, by the power and patronage which 
 it grasped, maintain that power and any policy in direct 
 resistance to the will of a majority of the people, unless 
 that majority became overwhelming in numbers, or excited 
 only short of civil revolution. Mr. Calhoun concurred in 
 this opinion, and pronounced the patronage in the hands 
 of the President too great for the magistrate of a free 
 people, greater than that of the autocrat of Russia, and 
 predicted that when the number of office-holders should 
 reach one hundred thousand the people might almost as 
 well surrender their liberty ; the contest would be too 
 unequal. Since the expression of these opinions the ex- 
 ecutive patronage has increased. President Grant has, it 
 is said, designated the Republican party as his party, and 
 the number of office-holders has already exceeded one 
 hundred thousand. 
 
 On whom, then, does the duty devolve of ascertaining 
 and determining the election ? It must be on the Senate 
 and House of Representatives, before whom the certificates 
 are opened and the votes are placed to be counted. 
 
 The Constitution is express : if there be no choice of 
 these high officers by the electors, the House of Represen- 
 tatives shall choose immediately by ballot the President, 
 and the Senate shall choose the Vice-President. The duty 
 to act immediately upon the contingency implies the duty 
 to ascertain whether the contingency has arisen, that 
 is, the fact whether any candidate has obtained the consti- 
 tutional majority of the electoral votes ; and this must be 
 done by the houses who supervise and see the result them- 
 selves. "When the fact is ascertained, neither house can 
 control the other. The House cannot interfere with
 
 318 COUNTING THE ELECTORAL VOTE. 
 
 the election of a Vice-President by the Senate, and, on 
 the other hand, the Senate cannot control and direct the 
 House not to elect a President. The command of the 
 Constitution is peremptory, " The House shall choose 
 immediately by ballot ; " and there is, under the Constitu- 
 tion, no other tribunal for the purpose. 
 
 To suppose that the Constitution required the Senate, 
 composed of the senators of every State in the Union, 
 and the House, composed of the representatives of all the 
 people of the United States, to attend for the mere idle 
 purpose of looking on and seeing electoral votes counted 
 is childish ; and to contend that the houses have no au- 
 thority or power to examine into and determine the truth 
 and validity of the certificates and votes, and so to count, 
 ascertain, and determine the result, and to act thereon, 
 is unreasonable and unconstitutional. 
 
 But the attempt is now made to establish a doctrine 
 which, if approved, will maintain and give effect to fraud, 
 and lead to the overthrow of American government. 
 
 It is said " that the certificates transmitted by elec- 
 tors of a State, appointed in the manner its legislature 
 directs, are conclusive evidence of the votes of the State, 
 and that the votes must be counted as true and binding 
 on the people of the entire nation, however false and 
 fraudulent." 
 
 It is impossible that the framers of the Constitution 
 intended to sanction such a principle. No argument is 
 necessary on the subject. 
 
 True votes, constitutional and honest, should be 
 counted. Unconstitutional, false, and fraudulent votes 
 must be rejected. The power and duty to count the true 
 votes only necessarily includes the right and duty to 
 reject false votes. Honest certificates, made in due legal 
 form by the proper state authorities, are undoubtedly 
 conclusive ; but certificates, no matter how formally and
 
 COUNTING THE ELECTORAL VOTE. 319 
 
 solemnly executed, are absolutely void when proved to be 
 tainted with fraud, corruption, and immorality. 
 
 Our entire system of governments, national and state, 
 rests upon the people their virtue and intelligence. The 
 ends aimed at by all the Constitutions are truth, liberty, 
 and justice. 
 
 In 1865 a joint rule of Congress was adopted, and has 
 since been followed. It was framed by a joint commit- 
 tee appointed to report "a mode for examining the votes 
 for President and Vice-President of the United States." 
 
 It has been briefly and correctly stated : " Not a single 
 presidential vote has been counted, from 1793 to 1872, 
 both inclusive, in which Congress did not assume, by ex- 
 press and formal words, or by action, or by both together, 
 that it possessed the undoubted power and duty ' to ex- 
 amine ' the electoral votes." No electoral vote has ever 
 been counted against the objection of either house. The 
 famous twenty-second joint rule, " that no vote objected to 
 by either house should be counted," only expressed what 
 had been embraced in previous orders, or the action of 
 the houses, and was the practical construction by them of 
 their constitutional power in this respect. 
 
 The press has laid before the people of the country, in 
 numerous essays and communications, a full and clear 
 statement and review of the procedure or usual practice 
 of counting the electoral votes for President. It has 
 always been under the direction of the two houses of Con- 
 gress. In 1789, when General Washington was first 
 elected President, there was no Vice-President, and the 
 framers of the Constitution made a special provision for 
 the election necessary to the inauguration of the new 
 government. But at the next election, in 1793, the 
 houses named tellers, one for the Senate and one for the 
 House, who presented a list of the votes, which was read 
 to the two houses, and the result was declared.
 
 320 COUNTING THE ELECTORAL VOTE. 
 
 In 1797, John Adams, the Vice-President, declaring 
 the result of the election, said: "By the report of the 
 tellers appointed by the two houses, there are," etc., 
 and proceeded, " In obedience to the Constitution and 
 law of the United States, and to the command of both 
 houses of Congress, expressed in their resolution, I de- 
 clare," etc. In 1877 an objection was first made to 
 receive an electoral vote in the case of Indiana, and the 
 houses at once withdrew to consider it. 
 
 In counting the electoral votes, the houses, though in 
 joint session, are distinct bodies. The votes of the several 
 States are offered in distinct regular order. Those not 
 objected to are received as genuine and true, openly an- 
 nounced, and severally entered and put upon the list as 
 parts of the count. Those challenged and objected to are 
 set apart for consideration and for final action until all 
 the votes not objected to are entered upon the list. If a 
 person has, out of the votes not objected to, the num- 
 ber of votes required by the Constitution for an election, 
 he shall be the President, and no further notice or decision 
 upon the challenged votes is necessary. If no person 
 shall receive the requisite number of votes, and the two 
 houses differ as to the validity of the votes objected to, each 
 house must act for itself, and the duty of each is to decide 
 for itself. The Constitution is express : if no person shall 
 receive the requisite number of votes, the House of Repre- 
 sentatives shall choose immediately by ballot the Presi- 
 dent ; and, in a like contingency, the Senate shall choose 
 a Vice-President. 
 
 This duty cannot be performed without ascertaining 
 th;it no person has received the requisite majority; it 
 depends upon the state of the electoral vote. The duty 
 is urgviit. 
 
 The Constitution has not provided for a notification to 
 the House that there has been no election for President
 
 COUNTING THE ELECTORAL VOTE. 321 
 
 by the electors. It leaves the House sole judge of the 
 happening of the contingency calling for its action. As 
 one of the counters for the electoral vote, the House must 
 know whether that vote has resulted in a choice. The 
 House is therefore left to act upon its own knowledge, 
 and is directed, in the contingency of which it is itself 
 to be the judge, to proceed to elect the President. The 
 Senate cannot interfere and forbid the House to elect. 
 The duty, the entire business of the election, is confided 
 and confined to the House, to men chosen directly by the 
 people. The Senate has nothing to do with it. 
 
 Mr. Morton has said : " The effect of this section is to 
 determine which set [of electoral returns] is to be counted ; 
 and if the two houses do not agree, neither set is to be 
 counted." And again : " The vote goes out ; the State 
 has no vote ; because unless there is some tribunal to 
 settle which vote shall be counted you cannot count both, 
 and therefore you cannot count either. You must have 
 some tribunal to settle that difficulty, and what tribunal 
 is safer than the two houses of Congress? " And again : 
 " I do not accept the suggestion that the Vice-President 
 of the United States has anything more to do in the busi- 
 ness of counting the votes for President and Vice-Presi- 
 dent than that specific duty which is prescribed for and 
 enjoined upon him by the Constitution. That duty is, in 
 the presence of the Senate and House of Representatives 
 to open the certificates. There being no other duty as- 
 signed to him, I infer, naturally, that he is to do nothing 
 more. , . . There can be, under the Constitution, no tribu- 
 nal to decide on that [two sets of returns] or any other 
 question arising in the course of counting the votes. The 
 duty is imposed upon the two houses of Congress. They 
 alone can perform it." 
 
 Senator Christiaiicy argued that even without a joint 
 21
 
 322 COUNTING THE ELECTORAL VOTE. 
 
 rule or Mr. Morton's bill, it was a reasonable conclusion 
 that if two sets of electoral returns were presented, and 
 the two houses could not agree upon the reception of one 
 of the two, " there is nothing to turn the scale in favor 
 of either. . . . Could the vote be counted? Certainly 
 not." It being urged that it was a serious matter to 
 deprive a State of its vote, Mr. Morton replied : "There 
 are two sets [of returns]. The Senate resolves in favor 
 of one set, the House resolves in favor of the other set. 
 There is a disagreement. The Senator from Ohio [Mr. 
 Thurmaii] said that it was the intention that the State 
 should have a vote, and so say I. The intention is that 
 the State shall have a vote, but if the thing is in that 
 condition that Congress cannot determine which is the 
 correct vote, it will be the misfortune of the State if the 
 vote is lost. That is all you can say about it." 
 
 The vote in the Senate upon this measure shows that 
 the Republican party has approved and adopted the true 
 constitutional rule and principle which has uniformly 
 prevailed from the organization of the government, that 
 it is the right and the duty of the two houses to examine 
 the electoral votes and determine the result. The ap- 
 pointment of a special committee by the Senate now in 
 session, and the appointment of a special separate com- 
 mittee by the House to investigate the charges of fraud 
 against the recent return of the electoral votes in Loui- 
 siana, and the request and quasi-appointment of a party 
 committee of inquiry by President Grant, avowedly for 
 the same purpose, and his communication by message to 
 each house of Congress of their report, are further in- 
 stances of practical construction by the executive, as well 
 as by Congress, of the duty of each house to determine 
 for itself what electoral votes are valid and shall be 
 counted. 
 
 The mode of procedure in this matter is clearly pointed 
 out by the Constitution and law.
 
 COUNTING THE ELECTORAL VOTE. 323 
 
 The Senate and House of Representatives will assem- 
 ble in the hall of the House at a time appointed, and 
 the president of the Senate will be their presiding officer. 
 Tellers will be appointed on the part of the Senate, and 
 tellers on the part of the House. The certificates of the 
 electoral votes shall then be opened and handed to them, 
 to be acted upon in the alphabetical order of the States. 
 The tellers will read them in the presence and hearing of 
 the two houses, and make a list of the votes as they ap- 
 pear ; and, the votes having been counted, the result will 
 be delivered to the president of the Senate, who shall 
 thereupon announce the state of the vote, and the names 
 of the persons, if any, elected. If, upon the reading of 
 any certificate by the tellers, a question shall arise in 
 regard to counting the votes therein certified, the presid- 
 ing officer shall state the same ; whereupon the Senate 
 shall withdraw, and the question shall be submitted to it 
 for its decision. And the Speaker of the House shall, in 
 like manner, submit the question to the House of Repre- 
 sentatives for its decision. When the two houses have 
 voted they shall immediately reassemble, and the presid- 
 ing officer shall announce the decision of the question. 
 
 If persons have, out of the votes counted, the number 
 of votes required by the Constitution for an election, they 
 shall be, respectively, the President and Vice-President. 
 If no person receive the requisite number of votes for 
 President, the House of Representatives shall choose 
 immediately, by ballot, the President, and, in a like con- 
 tingency, the Senate shall choose a Vice-President.
 
 TRIBUTE TO MR. TULANE. 
 
 [Mr. Paul Ttilane, a prominent and benevolent citizen of 
 Louisiana, donated about one million dollars to the University of 
 that State. At the opening- of the law school Professor Hunt 
 paid the following tribute to Mr. Tulane.J 
 
 GENTLEMEN, Welcome ! welcome to this hall of 
 science, this school of profitable knowledge to the in- 
 dustrious and reflecting student ! A short delay in the 
 opening of the college has been occasioned by the resig- 
 nation of Professor Eustis, and by the duty of the Faculty 
 to supply the vacancy properly. That duty has just been 
 happily performed, and the usual course of lectures is 
 commenced under auspicious circumstances by a complete 
 Faculty. 
 
 Since the last season of the college a great change has 
 taken place in the fortune and administration of the 
 University of Louisiana, and in the destination of the 
 University to promote public education in the State. Mr. 
 Paul Tulaue, a wealthy and public-spirited citizen, for- 
 merly a merchant of this city, has beneficently donated 
 about one million dollars for fostering, maintaining, and 
 developing the University of Louisiana, and of so expand- 
 ing it as to create it a great " University of the City of 
 New Orleans." And it is further announced by his 
 honorable and trustworthy friends that he will increase 
 his noble gift twofold more. 
 
 Moved by this generous and philanthropic act in favor 
 of public, education in this State, the legislature of the 
 State has passed an act to receive the donation as made,
 
 TRIBUTE TO MR. TULANE. 325 
 
 and, in accordance with the views of the donor, to change 
 the administration of the University, substituting a body 
 of intelligent, well-known citizens of high character in the 
 city of New Orleans as a permanent board of administra- 
 tors for the late board, as legally constituted, and empow- 
 ering the new board to fill in the future the vacancies 
 that may occur in their body. The board thus made is 
 purely of an honorary character, and will discharge its 
 duties disinterestedly and with a single view to the public 
 good. 
 
 And the legislature of the State, properly appreciating 
 the noble act of Mr. Tulane for the instruction of his 
 fellow-men, has fitly incorporated his name with that of 
 the University which he has sustained, and contributed to 
 enlarge and increase in fame and usefulness. I have 
 thought it my duty to communicate this information to 
 you, gentlemen, as students of the law college, a depart- 
 ment of the Tulane University of Louisiana. And, gen- 
 tlemen, I cannot conclude these preliminary remarks 
 without expressing my conviction that our University is 
 destined to become, under the government of its public- 
 spirited, able, and learned President, and its enlightened 
 and liberal board of administrators, what its generous 
 patron expressly desires it to be, a great university in 
 the city of New Orleans and an honor to the State of 
 Louisiana, imparting the manifold and various blessings 
 of liberal and useful knowledge to her sons and to their 
 worthy brethren, the youth of her surrounding sister 
 States.
 
 ADDRESS TO MEDICAL STUDENTS. 
 
 [Remarks made by President Hunt to graduating medical 
 students of the University of Louisiana.] 
 
 GENTLEMEN, I congratulate you upon the comple- 
 tion of your collegiate studies, and hail you as doctors of 
 medicine. You are about to enter upon the practice of a 
 profession that commands the admiration, the respect and 
 gratitude of all men, civilized and barbarous. 
 
 The Greek mythologists deified JEsculapius ; and their 
 scholars tell us that Pluto, incensed at his withholding 
 those he claimed as his subjects, induced Jupiter to strike 
 him dead with thunder. Under the benign influence of 
 the religion of our day, you, gentlemen, sons of yKscula- 
 pius, free from fear of angry deities, are left at liberty to 
 practice your mission with the blessings of God and man. 
 Yours is indeed a noble profession ; it is essential to the 
 well-being and happiness of society. 
 
 Health is the first blessing of life. It stimulates to 
 action, gives strength to labor, and crowns industry with 
 success and joy. It is the source of our sweetest affec- 
 tions and the charm of our brief existence. 
 
 It is impossible to free the condition of man from death. 
 But disease does no good to the individual or to society. 
 It is attended with pain and anguish of body and mind, 
 with great uneasiness and anxiety to the relatives of the 
 sick. It paralyzes productive industry, and is an unmixed 
 evil ; for which, however, Providence has furnished man, 
 by his intellectual faculties, the means of alleviation or 
 cure.
 
 ADDRESS TO MEDICAL STUDENTS. 327 
 
 It is then that the physician is sought for aid. Having 
 studied the structure of man, and the derangements and 
 diseases which assail it, having studied also his intellec- 
 tual structure, his passions, motives of action, and habits, 
 he eradicates disease, assuages pain in the suffering body, 
 and ministers to the mind diseased. 
 
 Here, gentlemen, I would impress upon you a full 
 sense of the charge that you have assumed, and of its 
 influence and service to the cause of morality and religion. 
 It is to minister to the ailments, sufferings, and afflictions, 
 corporeal and mental, of your brother man ; to raise him 
 from the bed of sickness, and restore him to health, 
 strength, and usefulness ; to minister to his mind diseased ; 
 to calm his passions, and regulate and direct his affections ; 
 to soothe his wounded spirit ; to lift him from despon- 
 dency, grief, despair ; to cheer, to animate and impel him 
 to the exercise of his reason and all his powers and ener- 
 gies. A seasonable word, says an eminent and wise son 
 of Massachusetts, unobtrusively uttered by a serious and 
 enlightened man, who stands at the bedside, clothed by 
 the imagination of the patient, if not in reality, with the 
 power of health, of life and death, will often sink deep 
 into the heart, and prove a safeguard of morals and char- 
 acter. 
 
 Truly, gentlemen, this is an inspiring and noble under- 
 taking. For this you have fitted yourselves by scientific 
 labor and moral training. The occasion and the exercises 
 of the day do not admit of my expatiating on the field 
 here opened for the exercise of the intellect and the 
 cardinal virtues of the heart. It only remains for me to 
 express the wish and trust that your efforts to be useful 
 and to minister relief may meet with due success, and be 
 crowned with the blessings of Providence and the love 
 and honor of vour fellow-men.
 
 SPEECH FOR BELL AND EVERETT. 
 
 [The following description of a Bell and Everett political 
 meeting, held in Philadelphia on August 15, 1860, is taken from 
 the " Philadelphia Enquirer " of that date.] 
 
 THE BELL AND EVERETT CAMPAIGN. 
 SERENADE TO HON. RANUELL HUNT OF LOUISIANA. 
 
 ENTHUSIASM AND EXCITEMENT. 
 
 THE citizens of Philadelphia, under the lead of many 
 personal and political friends of Hon. Randell Hunt of 
 Louisiana, tendered him a public serenade last evening 
 at the Continental. The entire affair, which was more 
 immediately under the auspices of the Minute Men of 
 Philadelphia, passed off in the most pleasant and credit- 
 able manner. 
 
 THE MINUTE MEN. 
 
 As early as seven o'clock the scene presented at the 
 club-room at the northeast corner of Tenth and Chestnut 
 streets afforded a gratifying indication of the enthusiasm 
 with which the Minute Men had entered into the spirit 
 of the affair. It is described by those who were fortunate 
 enough to be present to have been a "perfect jam.'" 
 Tlic stairs, sidewalks, and street were crowded, thus ren- 
 dering access to the hall an utter impossibility. 
 
 At eight o'clock, the Club, accompanied by Beck's full 
 brass band, marched through a number of our most popu- 
 lar thoroughfares.
 
 SPEECH FOR BELL AND EVERETT. 329 
 
 SCENE AT THE CONTINENTAL. 
 
 At half past nine o'clock, as they arrived in front of the 
 Continental, the scene presented from the balcony ex- 
 ceeded in interest anything we have ever been privileged 
 to behold, from the same standpoints, either in the politi- 
 cal or in the Japanese line. The streets, from curb to 
 curb, were literally packed with a dense immobile mass 
 of humanity, while the right of way, as far as the pas- 
 senger railway cars were concerned, was for the nonce 
 totally ignored. 
 
 Cheers and shouts for the Union candidate rent the air, 
 while the ringing of innumerable bells added emblemati- 
 cal significance to the popular tumult. As the head of 
 the procession reached Ninth Street, a number of Southern 
 belles, guests of the hotel, stood upon the balcony and waved 
 their handkerchiefs in expression of their " sentiments," 
 and general adherence to the tenor of the inscriptions, 
 mottoes, etc., upon the transparencies. As some of these 
 were unusually expressive and extremely well worded, we 
 have jotted down a few : 
 
 " The Minute Men of '76 and ; 56." 
 
 " Beware ! a base counterfeit ! The Continental issue 
 of 185G." 
 
 " Query Are Abe's rails used on the underground 
 railroad ? " 
 
 " Rails are a good institution, but we do not intend to 
 ride on them to the "\Vhite House." 
 
 " Sambo can't ring this bell ! " 
 
 " Uncle Sam says Abe can't be elected because he keeps 
 colored company." 
 
 At the head of the procession was a large bell, which 
 was rung incessantly until the commencement of Mr. 
 Hunt's speech, and at those appropriate points where the 
 " applause came in."
 
 330 SPEECH FOR BELL AND EVERETT. 1 
 
 One of the largest and most beautiful transparencies in 
 the line was one representing the American patriot in the 
 time of '7G, leaving his ploughshare to hasten to the field 
 of battle. Two medallion portraits of the respective 
 Union candidates were also exhibited, eliciting general 
 commendation for their faithfulness and artistic coloring. 
 We cannot avoid mentioning a pictorial representation 
 of Old Abe standing on the shores of the Ohio, with a 
 firebrand in his hand, and about to throw a stone or two 
 at Kentucky. 
 
 At one point, previous to the commencement of the 
 speaking, some individual, whose excited feelings were 
 perfectly natural under the circumstances, proposed three 
 cheers for Bell, which were given with stentorian energy. 
 Cheers were also proposed for Stephen A. Douglas, but a 
 low muttering was the only response. About half past 
 nine o'clock, Judge King, of this city, stepped upon the 
 balcony, and said : 
 
 "Fellow-citizens, I introduce to you Mr. Hunt of Louisi- 
 ana. [Cheers.] lie is one of the electors at large for the 
 State of Louisiana, and when you have heard him I think 
 you will agree with me that the no chance of John Bell is 
 an obsolete idea. [Cheers.] " 
 
 SPEECH OF THE HOX. KANDELL HUNT. 
 
 FELLOW-CITIZENS, I appear before you to-night at the 
 request of the Executive Committee of the Union Con- 
 stitutional party of Pennsylvania [cheers], a private 
 citizen, unknown to more than two or three of this vast 
 multitude that I see before me. It seems yet to have 
 been sufficient to state to you that 1 appear before you an 
 elector selected by the Union party of Louisiana, as a 
 candidate for elector of President of the United States 
 from Louisiana, to insure this heartfelt greeting. I thank 
 you for it. In the name of the Union party of Louisiana
 
 SPEECH FOR BELL AND EVERETT. 331 
 
 I receive it as a token of the brotherly feeling that the 
 Unionists of Pennsylvania feel for the Unionists of the 
 South. [Cheers.] 
 
 I know, fellow-citizens, where I am. I am in the old 
 State of Pennsylvania, one of the glorious old thirteen, 
 famous for her love of liberty, the Union, and the Consti- 
 tution. [Cheers.] The keystone of the federal arch will 
 support this Union, and by the aid of which this Union 
 will stand, I trust, forever. [Cheers.] I am in the city 
 of Philadelphia, this beautiful city, with its magnifi- 
 cent private structures, with its splendid public edifices, 
 abounding in brave men and beautiful women. [Cheers.] 
 Dear, no doubt, to every Pennsylvania!!, and equally dear 
 to every true-hearted American, for this, that in her Hall 
 of Independence, in the Congress of 1776, was passed the 
 glorious resolution which declared these colonies no longer 
 subject to the King of Great Britain, but free and inde- 
 pendent States. [Cheers.] 
 
 Yesterday I went down to old Independence Hall to 
 refresh my patriotism and kindle anew the fire of love 
 of country, which has never yet left my heart ; and 
 as I walked around and beheld the old bell that pro- 
 claimed " liberty throughout the land and unto all the 
 inhabitants thereof," and as I turned my face to the 
 venerated statue of that man who above all mortals must 
 deserve the reverence of the Sons of Liberty, George 
 Washington [prolonged cheers], and as I looked around, 
 fellow-citizens, as I beheld these ancient things connected 
 with our revolutionary history, as the grand swelling sen- 
 timents of liberty filled my heart, I could not help ex- 
 claiming to myself, " Glorious Philadelphia ! [Cheers, 
 and cries of " Good ! "] Glorious Pennsylvania ! " 
 
 Born thousands of miles away from this spot, 1 yet feel 
 that I have a part of the glory and fame of Washington. 
 I know that I was born far from this spot, but is patriot-
 
 332 SPEECH FOR BELL AND EVERETT. 
 
 ism connected with a single spot ? No, fellow-citizens. It 
 consists in the love of the fame of the great men of our 
 country, and I tell you now my heart swells within me 
 up to my very lips as I say I am proud to address you 
 here this night as fellow-citizens of the United States. 
 [Cheers.] 
 
 I have nothing new to tell you : I have nothing, fellow- 
 citizens, to say to you with which you are not already 
 familiar, that you have not already heard from your 
 favorite orators, or that you will not hereafter hear from 
 orators in better terms and in more glowing language 
 than I can possibly use ; yet, as I have been called upon 
 to address you, as I am an elector at large in the support 
 of the glorious Union ticket that has been presented to 
 the people of the United States, I felt that I would be 
 derelict to my duty if I did not come forward and say 
 something to you. 
 
 Fellow-citizens, we are almost upon the eve of a presi- 
 dential election. Whenever this time comes round, when- 
 ever the lustrum in which we are to elect a President of 
 the United States occurs, there is always something, 
 some question of great importance, before the people. 
 But it appears to me that, from the origin of our gov- 
 ernment to the present day, there has never been any 
 question, any issues, more important than these that are 
 now presented to the public ; for they are not only issues 
 that affect the policy of the country, but they are issues 
 that affect the very existence of the government. 
 
 It is now, fellow-citizens, some seventy-two years, or 
 nearly seventy-two, since the Constitution of the United 
 States, under which we now live, went into operation. 
 During that period numerous elections have been held for 
 Presidents of the United States : most of these elections 
 have been made by the electors, and a few of them 
 have been made by the House of Representatives of the
 
 SPEECH FOR BELL AND EVERETT. 333 
 
 Congress of the United States. All this has been done 
 peaceably and calmly, everything in good order, our 
 government efficient. Presidents have died, and Vice- 
 Presidents have succeeded them. The laws have been 
 enforced, everything done without commotion, without 
 popular tumult, without any undue excitement, without 
 any relaxation of the law. 
 
 Now, before this Constitution went into operation, or 
 rather, just as it was going into operation, it would be 
 difficult for any man to describe the deplorable condition 
 of our country. The State had the honor of regulating 
 commerce for herself. The consequence was that a State 
 like Pennsylvania, ripe for manufactures, anxious perhaps 
 to encourage her domestic industry, might feel it her 
 duty to lay an impost upon the importation of goods from 
 abroad. 
 
 But if she did so, her neighboring State, not ready for 
 manufactures, not yet prepared for their introduction, 
 believing that it would be for her advantage to introduce 
 goods without any duties whatever, could effectually 
 countervail all the legislation of Pennsylvania. And 
 why? Because the goods, when imported into any one 
 State, could be carried immediately, free of duties, into 
 another State. Thus it happened, I say, that at the time 
 when the Constitution of the United States went into 
 operation, the policy of one State was frustrated by the 
 policy of another. Did one State attempt to encourage 
 its domestic industry, it was checked by the legislation of 
 another State. There was a commerce of Massachusetts, 
 a commerce of Rhode Island, a commerce of Pennsylva- 
 nia, but there was no commerce of the United States. 
 
 The consequence was that we were completely at the 
 mercy of foreign nations, and especially at the mercy of 
 our great trader, Great Britain, whom, though we had 
 conquered in war and achieved our independence, we were
 
 334 SPEECH FOR BELL AND EVERETT. 
 
 yet subjected to by our commercial laws. Well, fellow- 
 citizens, for the purpose of correcting this, for the pur- 
 pose of making our commerce one, for the purpose of 
 creating a national government for national purposes, 
 leaving a local government for merely local purposes, the 
 present Constitution of the United States was adopted; 
 and what has been the consequence? 
 
 Immediately our country entered upon a career of pros- 
 perity such as the sun of Heaven had never before witnessed 
 in the history of the world. Look at our condition then ; 
 look at it now ! While we were a nation consisting of 
 three or four millions of persons, what are we now? The 
 census returns are not completed, but, beyond a doubt, 
 our population will swell to thirty-two millions of people. 
 Instead of a narrow strip along the border of the Atlantic 
 Ocean, we have a vast extent of territory, extending from 
 the Atlantic clear over to the Pacific Ocean. From the 
 St. Lawrence to the Gulf of Mexico our territory extends. 
 
 Our States from thirteen have advanced to thirty -three. 
 Thus, fellow-citizens, advancing in territory, thus advan- 
 cing in population, we advance at the same time in the 
 arts and in the sciences, in refinement and in literature. 
 Liberty was preserved, liberty of speech, liberty of con- 
 science, liberty of action, liberty to speak, the highest 
 liberty that man can enjoy under Heaven. [Cheers.] 
 
 All these liberties we have enjoyed. Look at our 
 material progress ! Look at our progress in agriculture ; 
 look at our progress in manufactures ; look at our pro- 
 gress in commerce ! Why, our agriculture is so varied 
 that we produce almost everything that can be found 
 upon the face of the earth. Look what our manufac- 
 turers have done! Aided by the proper encouragement 
 of government, our home manufacturers have learned to 
 imitate the foreign manufactures, and so work at home 
 materials until they equal the manufactures from abroad.
 
 SPEECH FOR BELL AND EVERETT. 335 
 
 Look at our commerce ! See how it spread its wings 
 when the little restraints and bars of local legislation and of 
 state provisions were removed ! Like an uncaged eagle 
 it flew abroad, to every portion of the earth. See the 
 sails of our commerce whiten every sea, and our govern- 
 ment has been tried in peace and in war. In times of a 
 little local excitement there may have appeared some 
 little opposition to law, but where upon the face of God's 
 earth, in despotic Russia, in France, in more enlightened 
 and liberal England, where has the law been so con- 
 stantly and so faithfully enforced as it has been in the 
 general government of the United States ? I say, fellow- 
 citizens, nowhere ! [Cheers.] And while this has been 
 done, while our commerce has increased, while the re- 
 sources of our country have become infinite and unex- 
 haustible, what has been done for the glory and renown 
 of this free republic on earth? Where else is there a 
 leader of liberty throughout the enlightened world ? 
 where the man who, when he hears the sound of lib- 
 erty, does not turn his eyes instinctively to America? 
 [Cheers.] 
 
 I have said this government has been tested in peace 
 and in war. In peace she has executed the laws in spite 
 of the resistance of lawless men. In spite of the threats 
 of state authorities, the general government, calm and 
 unmoved, has gone on and executed the laws ; it has pro- 
 tected the liberties of every man before me. I say it, 
 and I challenge denial that it has done all this without 
 infringing upon the liberty of a single individual. 
 [Cheers.] Who can point out a man who has been de- 
 prived of his liberty or property by the government of 
 the United States ? 
 
 And if these are the operations of government in peace, 
 what have they been in war? Shall I refer to the War 
 of 1812 ? for I pass by now at once our glorious Revo- 
 lution.
 
 336 SPEECH FOR BELL AND EVERETT. 
 
 [The speaker then referred in detail to the policy 
 of the general government during the war with Mexico. 
 He explained that the Constitutional Union party had 
 had its origin in the desire of the good men of all sections 
 of the country to put an end to the unceasing crimina- 
 tions and recriminations of the Northern and Southern 
 States.] 
 
 We have formed a party that has carried Kentucky 
 by nearly thirty thousand majority ; we have formed a 
 party that will carry Virginia as sure as to-morrow's sun 
 will rise. Tennessee is with us, and North Carolina will 
 be with us. They tell you Louisiana is unsound. 1 
 deny it. She is sound to the very core. She is true to 
 the Union. She will vote for John Bell and Edward 
 Everett. [Cheers.] 
 
 I tell you, gentlemen, the South will present almost a 
 united front. [Cheers.] South Carolina will be misled 
 by her politicians, it is possible that Georgia may go 
 astray, but I venture to say that at least twelve out of the 
 fifteen States will cast their electoral votes for John Bell 
 and Edward Everett. [Cheers.] 
 
 I believe that you can do much. I believe that you 
 can effect what you desire if you only go to work, and 
 my hope is in this. You have not heretofore done your 
 best ; many of you have abstained from voting. Do your 
 duty, and may God be with us and protect our country 
 and our liberty. [Cheers.] 
 
 On the conclusion of this eloquent speech, Hon. H. 
 Bucher Swoope, being loudly called for, came forward and 
 briefly addressed the assemblage. He said that the hour 
 was extremely late. He hoped he would have other op- 
 portunities during the campaign of addressing his friends. 
 At present he would not detain them, and therefore pro- 
 posed that the meeting should adjourn.
 
 INDEX. 
 
 ABRAHAM, 190. 
 
 Act of Navigation, 178, 208. 
 
 Adams, John, 320. 
 
 Addison, Joseph, describes a lady's 
 dress, 202. 
 
 "Address to Law Students," 214-225. 
 
 "Address to Medical Students," 326, 
 327. 
 
 ^Esculapius, 326. 
 
 Africa, money of, 189. 
 
 Agriculture, 196. 
 
 Alexander, 208. 
 
 Aliens, naturalization of, 42, 43; acts 
 of South Carolina conferring rights 
 upon, 47. 
 
 Allegiance, term defined, 50; highest 
 and greatest obligation of duty, 50; 
 due only to the United States, 50, 
 54, 02; under the feudal system, 53; 
 of paramount obligation, 53, 62; to 
 the United Colonies, 54; treason the 
 highest breach of, 55, 125; has a cit- 
 izen a right to renounce'? 167; the 
 American view, 167; the English 
 opinion. 168: Blackstone's comments 
 on, 168: how can it be perpetual? 
 169 : of the French, 169. 
 
 America. Sec North America and 
 South America. 
 
 America, principles of colonization in, 
 6-9. 
 
 ''American Cyclopaedia," quoted, 275, 
 291. 
 
 American government, whole system 
 of, popular. 92. 
 
 Amphictyonic Council, inscription of, 
 24, 170. 
 
 Auastasius. Greek emperor, 232. 
 oo 
 
 Anderson, Thomas C., case of, 25-27, 
 38, 39. 
 
 Appeals in criminal cases, in Louisiana, 
 118. 
 
 Archytas, the philosopher, 163. 
 
 Arkwright, Sir Richard, 203. 
 
 Armies without discipline, positive 
 evils, 21. 
 
 Articles of Confederation, 20, 54-56, 
 124 ; prepared by Congress, 182 : 
 ratification of, 182", 184; but a digest 
 of the powers delegated by the peo- 
 ple, 182; their defects, 'l84, 186; 
 contained no executive power, 184 ; 
 187, 208-210, 221. 
 
 Autun, Bishop of, 276. 
 
 Bacon, Lord, quoted, 23, 44, 133, 246. 
 
 Bank of North America, 102. 
 
 Banking, free, established in New 
 York, 102 ; the system needed in 
 Louisiana, 104; the system described, 
 105 ; inducements to capitalists, 106. 
 
 Bankrupt, a competent witness, 242. 
 
 Bank>, General, 283. 
 
 Barter, 189; Homer's picture of, 190. 
 
 Bay, Judge, decision in Grantstein's 
 case, 45: reversal, 63. 
 
 Bayard, Thomas F., 314. 
 
 Beardsley, Attorney-General, opinion 
 cited, 10.'!. 
 
 Bell and F.verett, speech for, 328-336. 
 
 Bentham, Jeremy. 230, 246. 
 
 Black, Adam. 203. 
 
 Black. Judge, essay on the Electoral 
 Conspiracy quoted, 32, 36. 
 
 Blackstone. defines denizen, 48; alle- 
 giance, 50.
 
 338 
 
 INDEX. 
 
 Boston, miles of railroads radiating 
 from. 110; valuation of, 1834-51, 110. 
 
 Britain, her victories in America, 10. 
 
 Bronson, Attorney - General, opinion 
 cited, 103. 
 
 Brougham, Lord, quoted, 238. 
 
 Buchanan, President, position toward 
 the South, 255, 204. 
 
 Burke, Edmund, quoted, 11, 220. 
 
 Burlamaqui, 52. 
 
 Calhoun, John C., 255, 297, 317. 
 Campbell, Judge John A., Go; approval 
 
 of act creating Electoral Commission, 
 
 314. 
 
 Carthage, 208. 
 
 Cato, 87. 
 
 Charles IX. of France, 20, 148, 149. 
 
 Charters of the American colonies, 14. 
 
 Chatham, Lord, 219. 
 
 Chemistry, 131. 
 
 Choate, Rufus, 11, 218. 
 
 Christiancy, Senator, 321. 
 
 Cicero, on the law of nature, 144, 145. 
 
 "Citizenship and Allegiance," 40-03. 
 
 Citizenship in the United States, con- 
 ditions of, 42, 43. 
 
 Civil Code of Louisiana, 231, 237. 245. 
 
 Civilization, man's natural state, 150. 
 
 Classics, importance of their study, 
 223. 
 
 Clingman, Senator. 253. 
 
 Coke, Lord, on allegiance, 50. 
 
 Colonies, formation of, among the old- 
 est events of hislorv, 171; Circeian, 
 171, 172. 175: Roman, 173, 175; 
 Spanish, 174; English. 174, 170. 
 
 Colonies, American, taxed without 
 their consent, 170; their .-I niggle for 
 librrtv, 177: independence declared, 
 177, 181; transformed into States, 
 177; union essential to their safety, 
 178; the Albany plan of federal gov- 
 ernment, 179 ; necessity of union felt, 
 180: the Continental Congress, 180, 
 181 : Articles <>f Confederation, 182. 
 1S4, isi;. 1X7: their union a league of 
 friend-hip, !S4. 
 
 Colnmbu-, 0: perseverance of, 135, 
 174. 
 
 Commands, unlawful, 21. 
 
 Commerce, origin of, 188, 189; inter- 
 nal, 190, 191: elevating influence of, 
 196-198 : facilities of communication 
 due to, 198 200; comforts derived 
 from, 202; promotes intercourse, 202, 
 203; precedes refinements in home 
 manufactures, 202; stimulates do- 
 mestic industry, 203; diffuses know- 
 ledge, 203 ; spirit of, congenial with 
 liberty, 204 ; augments the power of 
 the state, 207. 
 
 Commerce, American, during the Rev- 
 olutionary War, 208 : Confederacy no 
 power to regulate, 208; left to con- 
 trol of States, 209 ; consequences, 
 209: Virginia proposes a convention 
 to make regulations, 209; which 
 leads to the adoption of the Consti- 
 tution, 209; Congress given power to 
 regulate, 211 ; the power vital to the 
 Union. 211; profound wisdom of the 
 grant, 212. 
 
 Communion, indispensable to man, 
 102; an element in his progress, 162; 
 his right, 102: enjoyment from, 103. 
 
 Confederation, Articles of. See Arti- 
 cles. 
 
 Congress, Continental. 19. 20 : defines 
 treason, 54. 
 
 Congress, power over naturalization, 
 42, 48, 55, 57. 
 
 Congress, power to establish post-offices 
 and post-roads, 294; an exclusive 
 power, '295: it embraces the entire 
 postal system, 295. 305; its right to 
 exclude matter from the mails. 295- 
 309, 307. 
 
 Consanguinity, ties of, 153. 
 
 Conscience, 139, 140. 
 
 Constitution. British. 49. 
 
 Constitution of Greek Emperor Anas- 
 ta-ius, 232. 
 
 Constitution of the United States, 31, 
 41. 42; the supreme law of the land, 
 44, 53: 40, 4s, 52, 55, 57. 58, 00, 02. 
 03; a government, not a league, 124: 
 125, 120. 209-212, 221-223, 253, 254, 
 250. 257. 201, 203, 205, 290, 300. 
 303-300, 310-314, 317 323. 332, 333.
 
 INDEX. 
 
 339 
 
 Constitutions, written, 37. 
 
 Contract, not valid without a consider- 
 ation. 271. 
 
 Contracts, gaming, 271, 272. 
 
 Contracts, hazardous, 270, 271; object 
 of, 270; lotteries classed as, 270. 
 
 Contracts of insurance, 272, 273. 
 
 Cooler's " Constitutional Limitations," 
 quoted, 85. 
 
 Corporations, ancient, 195. 
 
 "Corporations" includes associations 
 and joint-stock companies, 103. 
 
 Corporations, private, when public 
 agents, 78, 79. 
 
 Cotton, J. B., 05. 
 
 "Counting the Electoral Vote," 313- 
 323. 
 
 Court, a temple of justice, 1; the guar- 
 dian of rights in property, 3 ; cannot 
 inquire into motives of legislature, 
 87-91. 
 
 Courts in Louisiana, 116-121. 
 
 Cowries, 189. 
 
 Creator, the idea of, what it involves, 
 132. 
 
 " Cyclopedia of Universal Know- 
 ledge," quoted, 277. 
 
 Dauphin, M. A., 287, 288; brings suit 
 against Postmaster - General Key, 
 301. 
 
 Declaration of Independence, the, 178, 
 181. 
 
 Demosthenes, speeches of, models of 
 excellence, 224. 
 
 Denization, power of, reserved to 
 States, 48 : right of, does not make 
 citizens of aliens, 48. 
 
 Denizen, defined by Black-tone, 48. 
 
 Denizens, acts of South Carolina re- 
 lating to, 47. 
 
 Despot, germ of, 23. 
 
 Discipline, armies without, positive 
 evils. 21; in what it consists. 21: 
 not a substitute for patrioti.-m, 21; 
 coupled with patriotism. 21. 
 
 Disease, 326. 
 
 Eldorado, 174. 
 Election of 1876, 33, 34. 
 
 Electoral Commission, the creature of 
 conspiracy, 313. 
 
 Electoral vote, duty of Congress to 
 count, 316, 317, 319; mode of count- 
 ing, 320, 323 ; the result declared, 
 320; duties of houses of Congress 
 when no election, 320. 
 
 Emigration, right of, 164. 
 
 Engineer, civil, 199. 
 
 England, lotteries in, 276, 277. 
 
 English colonists in America, charac- 
 ters of, 10, 16; their "tierce spirit of 
 liberty," 11; why they came to 
 America, 13; repugnance to control 
 by British legislation, 14; their char- 
 ters, 14; their liberty incomplete, 14 ; 
 menaced by government of England, 
 14: thought to have too much lib- 
 erty, 15; their opinion, 15; their 
 struggles to keep their liberty, 15. 
 177 ; the most sensitive and best in- 
 formed upon their rights and liber- 
 ties, 16; their descendants in Vir- 
 ginia and New England, 17 ; then- 
 interests different from those of mere 
 Englishmen, 17 ; a government of 
 their own necessary, 18; brought 
 with them the rights of men, 18; 
 taxed without their consent, 177. 
 
 English, the, as colonizers, 9. 
 
 Enjoyment of property, 2. 
 
 Entails, law of, 193. 
 
 Equality, 105, 166. 
 
 Erie Canal, benefits from, 111. 
 
 Erskine, Lord, quoted, 237. 
 
 Europe, western, after the fall of the 
 Roman Empire, 192- 190. 
 
 European governments, not all possess 
 absolute sovereignty, 51. 
 
 Eustis, Chief Justice, 'l03. 104. 
 
 Everett, Edward. 203. 
 
 Evidence, object of. 227: exclusions of, 
 injurious to the discovery of truth. 
 228 : misleading, should be excluded, 
 229: exclusion of, when justified, 
 229. See Testimony and Witnesses. 
 
 Exchange, a peculiar and characteris- 
 tic tie of man, 154: exists among all 
 men, 154 ; a common standard of, 
 requisite, 189.
 
 340 
 
 INDEX. 
 
 Expatriation, right of, 164, 166. 
 Exporting, profit in, 203. 
 
 Family, its importance and value, 152, 
 153. 
 
 Farmers of the revenue, 195. 
 
 Fealty, 53. 
 
 Fellow-feeling, 135. 
 
 Fellows, J. Q. A., 65. 
 
 Fillmore, Millard, 2-22. 
 
 Foreign trade, 205. 
 
 France, state lotteries in, 276. 
 
 Franklin, Benjamin, 179. 
 
 Frederick the Great, quoted, 137; and 
 the miller, 158. 
 
 Free banking. See Banking. 
 
 Freeburgh, 1!)5. 
 
 Freedom, the rightful end of civil gov- 
 ernment, 219. 
 
 Freemen, law only recognized sover- 
 eign of, 218. 
 
 French, the, as colonizers, 9. 
 
 French colonies in America, 9. 
 
 Fulton, Robert, 203. 
 
 Galileo, 203. 
 
 (rambling, declared a vice in Louisi- 
 ana, 292. 
 
 Gaming contracts, 271, 272. 
 
 Georgia, increase in valuation of prop- 
 erty bv railroads, 111. 
 
 Gilbert, Lord Chief Baron, quoted, 
 234. 
 
 God, his relation to his laws, 132 ; 
 works through the instrumentality 
 of means, 133; the source of law, 
 133. 
 
 Government, nothing magical in, 51; 
 chief end of, 128; defined, 130; of 
 divine ordination, 136; necessary to 
 the existence of man, 136; progress 
 of, 146. 
 
 Government, American, whole system 
 popular, 92. 
 
 "Government of the Republican Party 
 in Louisiana " 308, 312. 
 
 Governments, origin of, 146. 
 
 Governments, European, not all pos- 
 sess absolute sovereignty, 51. 
 
 Granstein, George, ease of, 40; refuses 
 
 to take oath of allegiance to South 
 Carolina, 43; denied citizenship by 
 Judge Hay, 45. 
 
 Grant, General U. S., 35,314, 322. 
 
 Gravitation, 130. 
 
 Greenleaf, Simon, 243. 
 
 Gregory XIII. , Pope, 149. 
 
 Grimes, Mr., of Iowa, 263. 
 
 Habeas corpus, 18, 177. 
 
 Hamilton, Alexander, 57. 
 
 Hampden, John, 177. 
 
 Happiness, foundation of, 2. 
 
 Haraugiere, Colonel, 163. 
 
 Hazardous contracts. See Contracts. 
 
 Health, blessings of, 326. 
 
 Health regulations, an exercise of po- 
 lice power, 66, 85 ; right of legisla- 
 ture to pass, 86. 
 
 Homer's picture of barter, 190. 
 
 Hooker, Sir Joseph, quoted, 150. 
 
 Hospitals, public, a matter of right, 
 159. 
 
 Howard, Senator, of Michigan, 262. 
 
 Huguenots, 16, 22. 
 
 Hume, David, 201. 
 
 Hunt, William H., 65. 
 
 Ideas, exchange of, 162. 
 
 Ignorance, the foundation of despotism, 
 128. 
 
 Independence, sense of, foundation of 
 human happiness, 2. 
 
 Indies, Council of the, 8. 
 
 Insurance, contracts of, 272, 273. 
 
 Intellect, man endowed with, 137. 
 
 Intention to commit crime, proper sub- 
 ject of inquiry by jury, 26. 
 
 Iredell, Judge, 57. 
 
 Isocrates, 63. 
 
 Italy, lotteries in, 276. 
 
 Jackson, President, denied the right of 
 
 a State to secede, 123. 
 James II., 179. 
 Jefferson, La., slaughter-nuisance at, 
 
 08 71. 
 Jefferson, Thomas, 18; petitions for 
 
 leave to sell lands by lottery, 278, 
 
 281; his "Thoughts on Lotteries, 1 '
 
 INDEX. 
 
 341 
 
 279 ; obliged to qualify his system of j 
 
 chance, 280; his petition granted, 
 
 281. 
 
 Johnson, Justice, 90. 
 Johnson, President, 256, 266. 
 Judge, office of, 121 ; not the prize of 
 
 partisan labors, 121. 
 Jury, judge of motives, 27, 28. 
 Jury, trial by, 18, 177. 
 Justice, a court, a temple of, 1. 
 Justice, the foundation and objection 
 
 of the state, 155; protection another 
 
 word for, 156. 
 Justinian's three precepts, 144. 
 
 Kenner, D. F., 35 n. 
 
 Kent, Chancellor, 53, 5'J. 
 
 Kentucky, lotteries in, "291. 
 
 Kepler, 203. 
 
 Key, D. M., Postmaster- General, 300; 
 
 orders lottery matter excluded from 
 
 the mails, 300, 301: sued by M. A. 
 
 Dauphin, 301; suspends his order, 
 
 301, 302. 
 Knowledge, the parent of Liberty. 
 
 J28. 
 
 Labor, the condition of success and 
 greatness, 215. 
 
 Laplace, 203. 
 
 Las Casas, 141. 
 
 Lavoisier. 203. 
 
 Law, signifies a rule of action, 129, 151: 
 applies to every kind of action. 129 ; 
 the whole world ruled by. 129 ; illus- 
 trations. 129-132; phenomena not 
 governed by. 132 ; the universal 
 reign of, 133: source of. 133: man 
 commanded to regulate his conduct 
 by. 134: man's responsibility to. 143; 
 of nature, 144; Justinian's three \>re- 
 cepts. 144; natural and municipal, 
 140: of nations. I4'i. 147: morals of. 
 are pure and just, 216: justice the 
 great end of. 218: the only recog- 
 nized sovereign of freemen. 218. 
 Law. natural, 144. 
 Law. physical, 133. 
 
 Laws of nature, liable to counteraction, 
 132. 
 
 Lawyer, the perfect, 216; duties of, 
 216-217. 
 
 Lawyers in history, 219, 220. 
 
 "Lecture on the Law," 128-187. 
 
 Legan' 1 , H. S., quoted, 16. 
 
 Legislation, a common fault in, 281 ; 
 true aim of, 289. 
 
 Legislature, court cannot inquire into 
 motives of, 87-91. 
 
 Liberty, a practical blessing, 1 ; princi- 
 ples on which its existence and en- 
 joyment depend, 2 ; more precious 
 than gold, 37. 
 
 Liberty," personal, 158 ; a condition of 
 man's free agency, 159. 
 
 Liberty, religious, love of, 5. 
 
 Lieber, F., quoted, 20, 23, 125. 
 
 Literature, founded on sympathy, 135. 
 
 Livingston, Edward, states a common 
 fault in legislation, 281. 
 
 Locke quoted. 139. 
 
 Lord Brougham's Act, 243, 244. 
 
 Lord Campbell's Act, 239. 
 
 Lord Denman's Act, 239. 
 
 Lotteries, fall within class of hazardous 
 contracts, 270; exert mischievous in- 
 fluence upon the people, 275 ; in Italy, 
 27li ; in France, 276; in England, 276, 
 277, 287: common in the United 
 States, 277; frauds in. 277; impolicy 
 and ill effects of a State's resort to, 
 278: in Virginia, 281. 
 
 Lottery, cannot be perfectly fair. 
 274.' 
 
 Lottery, term defined, 273, 275: appli- 
 cation of term, 274. 
 
 Louisiana, want of progress in. 94 ; its 
 Constitution a failure. 95; its govern- 
 ment defective, 96: representation in. 
 96; injustice to New Orleans, 96-100: 
 specimens of legislation. 100: crea- 
 tion of banking corporations prohib- 
 ited. 100; free banking not wanted 
 in. 104: railroads. 107; obstruction to 
 internal improvement, 113, 114: pro- 
 posed tax for promoting railroads, 
 114, 115: judiciary department de- 
 fective, 116: obstacles to justice. 116- 
 120: objection to the executive de- 
 partment, 120, 121; wants national
 
 342 
 
 INDEX. 
 
 aid for internal improvements, 123: 
 secession undesirable for, 127; re- 
 fused a provisional governor, 262: 
 her constitutional existence not rec- 
 ognized, 202: Constitutions of. 282, 
 28-3, 289; gambling declared a vice 
 in. 292; government of the Republi- 
 can party in, 308-312. 
 
 Louisiana Returning Hoard, 25, 31-39. 
 
 Louisiana State Lottery Company, in- 
 corporation of, 284, 285 ; objects and 
 purposes, 285; its deceptive state- 
 ment, 280; pays for exclusive privi- 
 leges, 287; exempt from taxes, 287: 
 the president's address, 287, 288, 290: 
 its charter recognized in Constitution 
 of 1879, 290 ; renounces its monopoly 
 charter clause, 290; pays a license, 
 290; invites investigation, 292; its 
 use of United States mails, 293 ; its 
 matter excluded from the mails, 300, 
 301; the Postmaster-General's order 
 suspended, 302. 
 
 Maeaulay, Lord, quoted, 304. 
 
 Mackintosh, Sir James, 14<i. 
 
 Madison, James, 56. 
 
 Magna Charta. 177. 
 
 Man, a social being, 134: endowed 
 with sympathy. 135; with intellect. 
 136; compared with animals, 13ii, 
 137; motives which operate upon 
 him. 138: his responsibility. 143; as 
 a citi/.en, 148; his destiny to be pro- 
 gressive. 149: civilization his natural 
 state, 150: no "ready-made happi- 
 ness'' for, 150; foundation of his 
 ethic character. 151; his necessities 
 accompanied with pleasure. 152. 
 
 Marat, 148. 
 
 Marshall, Chief Justice, 58, 90. 
 
 Ma-sachusetN, increase in valuation 
 from railroads, 1 10. 
 
 MayilMwer.fi. 14. 
 
 McCulloeh. .'. K.. 202. 
 
 Mcllenry. Judge. 111). 
 
 Medical students, address to. 320, 327. 
 
 Medici, Catherine de ! , 148, 149. 
 
 Merchants, IS'J; two classes of, 190; the 
 champions of liberty, 207, 208. 
 
 Michelet, on the uniformity of laws, 
 
 142. 
 
 Miller, Justice. 64. 
 Milton, John, 204. 
 
 Money. African, 189; Virginian, 189. 
 Money of account. 190. 
 Monopolies, classes of. 91: granted by 
 
 Parliament, 92; power of the people 
 
 to grant, recognized, 92. 
 Moral codes, uniform, 141, 142. 
 Morality. 141, 142. 
 Morton, 0. P., 321. 322. 
 Motive, defined, 138. 
 
 Nations, equal in respect to each other, 
 146; may be injured or benefited by 
 each other, 147 ; law of, embraced in 
 science of law, 147. 
 
 Nations, law of, 146. 147. 
 
 Naturalization, act establishing, 42, 
 43. 
 
 Naturalization, in Great Britain, only 
 by act of Parliament, 48, 49. 
 
 Naturalization, power of, vested exclu- 
 sively in Congress. 42, 49, 57- 59, 62. 
 See Citizenship. 
 
 Naturalization, States cannot confer, 
 47 ; an exercise of sovereign power, 
 49 ; Vattel's definition. 49. 
 
 Nature, laws of. liable (o counteraction. 
 132. 
 
 Navigation Act, British, 178, 208. 
 
 New England, motives of first settlers 
 in, religious, 4, 6. 
 
 New England, United Colonies of, 178. 
 
 New Orleans, outstripped in the race 
 of improvement, 94: her commerce 
 gradually taken away, 96, 107 ; ratio 
 of representation unjust, 97: the seat 
 of government to be not less than 
 sixty miles from, 98; a stigma to be 
 removed, 98; her importance as the 
 seal: of government, 99; a crevasse, 
 99; her rivals, 101; wants capital, 
 101 ; advantages of railroads to, 108- 
 110, 112; courts and judges of, 116. 
 121. 
 
 New Orleans, slaughter-house nuisance 
 at. 60-78, 80. 
 
 Newton, Isaac, 203.
 
 INDEX. 
 
 343 
 
 New York, restraints upon private 
 banking, 102; system of free bank- 
 ing established, 102. 
 
 Nichols, Francis T., 312. 
 
 North America, struggles for possession j 
 of, 10. 
 
 Oath, test, 253, 2tiO. 
 
 Obedience, absolute, impossible, 20, 21; 
 in army and navy, cannot be de- 
 manded, 21. 
 
 Obedience, necessary in general, 21 ; 
 conditional, 22. 
 
 Opinion, 139. 
 
 Oracles, 4. 
 
 Orthes, Viscount, commandant at Bay- 
 onne, 21. 
 
 Oysterman in New Orleans, case of, 
 "84. 
 
 Packard, Stephen B., 308. 
 
 Paley. William, quoted, 19ii. 
 
 Parliament, alone can naturalize, 47- 
 49 ; its power to create a monopoly, 
 92 ; asserted the right to tax the col- 
 onies, 185. 
 
 Patriotism, coupled with discipline, 21. 
 
 Paul the Apostle, quoted, 143. 
 
 Pelew Islander, 154. 
 
 Pelican, as a national emblem, 127. 
 
 Pennington, Admiral, 22. 
 
 Personal liberty, 158, 159. 
 
 Persuasion, the noble art of. 224. 
 
 Phenomena, not governed by law, 
 132. 
 
 Philip II. of Spain, 149. 
 
 PlKL-nician merchants, the champions 
 of liberty, 207. 
 
 Physician, duties of, 327. 
 
 Physiology, 134. 
 
 Pilgrim Society of Massachusetts, 175. 
 
 Poland, condition of, 196. 
 
 Police power, protection of health 
 within, 77 ; right of State to exer- 
 cise. 60, 82, 83, 86. 
 
 ' Political Affairs in Louisiana,'" 94- 
 127. 
 
 Pope. Alexander, quoted, 5. 
 
 Post-offices and post-roads, power of 
 Congress to establish, 294. 
 
 Power, exercise and abuse of, 23, 
 
 24. 
 Power, public, founded on confidence, 
 
 22. 
 President, office of, in United States, 
 
 37. 
 
 Press, liberty of, 296, 297, 304, 305. 
 Preston, Judge, 103, 104. 
 Primogeniture, law of, 192. 
 Property, right of, assailed, 2; enjoy- 
 ment of, 2; its surest guarantees, 3; 
 
 essential to man, 160; its relation to 
 
 the material world, 160. 
 Property, sense of, its purpose, 152; 
 
 inherent in man, 160. 
 Property, use of, right to regulate, 86. 
 Protection, another word for justice, 
 
 156 ; what it includes, 156. 
 Protection of health, within police 
 
 power, 77. 
 Puritanism in England and America, 
 
 11, 12. 
 
 Railroads, benefits arising from, 108- 
 110; increase in value of property 
 along, 110, 111; in Massachusetts, 
 110; radiating from Boston, 110; 
 speed of transportation by, 112; tax 
 proposed in Louisiana for promoting, 
 115. 
 
 Raleigh, Sir Walter, 174. 
 
 Religion, a factor in colonizing North 
 America, 4, 6, 7. 
 
 Religion, men never existed without, 
 4; office of, 5 ; society interested in, 
 5 ; affords two powerful agents of 
 moral it_v, 5. 
 
 "Report upon the Law of Evidence," 
 226-252. 
 
 Republican party in Louisiana, 308- 
 312. 
 
 Responsibility. 143. 
 
 Re-turning Board, Louisiana, 31-39. 
 
 Reubel, 148. 
 
 Revenue, farmers of, 195. 
 
 Revolution, American, immediate 
 causes of, 180. 
 
 Right, what is, 154: the condition of, 
 155: founded on reciprocity. 157. 
 
 Rights, absolute, 158, 159.
 
 344 
 
 INDEX. 
 
 "Rights of the States," 253-269. 
 
 Robespierre, 148. 
 
 Rome, founded upon an agrarian law, 
 172; growth of inequality in, 172; 
 independence of the poor citizen hard 
 to maintain, 172; lands cultivated by 
 slaves, 172; condition of landless cit- 
 izens, 173; method of forming col- 
 onies, 173. 
 
 Roselius, Mr., 64. 
 
 "Round robin," the sailors', 22. 
 
 Rousseau, J. J., quoted, 151. 
 
 Seaboard, the natural seat of liberty, 
 204. 
 
 Seasons, dependent on law, 130. 
 
 Secession, doctrine of. settled forever, 
 255. 
 
 Secession, right of, advocated by Sen- 
 ator SouhS 123 -126. 
 
 Seward, W. II., 263. 
 
 Sidney, Algernon, 177. 
 
 ' Slaughter-House Cases, Argument in 
 the," 64 93. 
 
 Smith, Adam, quoted, 191. 
 
 Society, deeply interested in religion, 
 5; cannot exist without government, 
 134. 136; commanding and obeving 
 the two foundations of. 134, 170: of 
 divine ordination, 136 ; necessary to 
 civilization, 150. 
 
 Socrates, a citizen of the world, 147. 
 
 Soule, 1'ierre, senator from Louisiana, 
 advocates right of secession, 123- 
 12<i. 
 
 South America, eoloni/ation in, 8, !i; 
 cruelty of Spaniards in, 140. 141. 
 
 South Carolina, acts relating to natu- 
 ralization, 46 : arts relating to deni- 
 zens. 47 : benefits to, from railroads, 
 111. 
 
 Soiitliern States, anxious to return to 
 the I'nion, 254, 266: their condition 
 after the civil war, 254, 258; Presi- 
 dent I'liichanan's position toward, 
 255, 'J6 1 ; true policy required their 
 n-adnii"inn to the t.'nion. 257; with- 
 out repivM-ntatinn in Congress, 257: 
 should be accorded a generous treat- 
 ment. -J5S 261). 267, 268: their pro- 
 
 gress in material development, 261 ; 
 worth of character of the people, 
 261 ; thirteenth amendment ratified 
 by, 263. 
 
 Sovereignty, absolute, unfitted for hu- 
 man happiness, 51. 
 
 Sovereignty, defined, 52; the great end 
 of, 52, 53. 
 
 Spain, object of her settlements in 
 America, 8 ; the government of her 
 colonies a strict Spanish monopoly, 
 8 : effect of misrule on her colonies, 
 8, 9. 
 
 Spaniards, cruelty of, in South Amer- 
 ica, 140, 141. 
 
 Spartan obedience, 24, 134, 170. 
 
 ''Speech for Bell and Everett," 328- 
 336. 
 
 Spinoza, quoted, 144. 
 
 Sprague, Senator, of Rhode Island, 
 263. 
 
 St. Bartholomew, massacre of, 21, 148. 
 
 St. Domingo, 174. 
 
 St. Just, 148. 
 
 Starkie. Thomas, 249. 
 
 State, the, duties of. 22 ; a society of 
 individuals, 155; its foundation, 155; 
 speaks through laws, 155; called a 
 "jural society," 155: exists by ne- 
 cessity, 156; its legitimate objects, 
 157; it> obligation to found institu- 
 tions of learning, 159 ; gifts by, 161 ; 
 interference in private affairs, 161 : 
 obedience owed to, 168. 
 
 State, cannot require oath of allegiance, 
 50; has power to protect the public, 
 health, !I3. 
 
 States, rights of the, 253 269. 
 
 Steam, application of, benefits from, 
 201, 205, 206. 
 
 Story, Judge, 5'.); quoted, 185. 
 
 Stuart. Charles, 11. 
 
 Sunnier, < 'hades, 264. 
 
 Sympathy, man endowed with. 135: 
 u.-es of, 135. 
 
 Taxes in the Middle Ages, 194. 
 Tenants at will. 193. 
 Test oath, 253, 260. 
 Testimony, false, 231. 233. 235.
 
 INDEX. 
 
 Testimony, sanctions to secure the 
 truth of, 235, 236. 
 
 Thermopylae 24, 170. 
 
 Thiers, L. A., quoted, 304. 
 
 Thurman. Senator, 322. 
 
 Tobacco, the money of Virginia, 189. 
 
 Towns in the Middle Ages, 194; priv- 
 ileges granted their inhabitants, 194, 
 195: made corporations, 195; wealth 
 of their inhabitants, 195. 
 
 Trade, foreign, 205. 
 
 Traders, free, 194. 
 
 Trading towns, 196. 
 
 Treason, defined by the Continental 
 Congress, 54; under the Articles of 
 Confederation, 54, 56 ; under the Con- 
 stitution, 55 ; the highest breach of 
 allegiance, 55, 125. 
 
 Trial by jury, 18, 177. 
 
 'Tribute to Mr. Tulane," 324, 325. 
 
 Tucker, Judge, 48, 52. 
 
 Tulane, Paul, tribute to, 324, 325. 
 
 Tulane University. 128. 
 
 Tully, quoted, 105. 
 
 Union, right the condition of, 155. 
 
 Union, the, results of, 127. 
 
 United Colonies of New England, 178. 
 
 United States, its three forms of gov- 
 ernment, 186 ; lotteries very com- 
 mon in, 277 : frauds practiced in, 
 277. 
 
 Utterance, right of, 162, 103. 
 
 Vattel, definition of naturalization, 49; 
 
 on sovereignty, 52. 
 Virginia, tobacco the money of, J89: 
 
 lotteries in, 281. 
 Virtue, the law of, 143. 
 
 Wade, Mr., of Ohio, 203. 
 
 Warren, General Joseph, quoted, 11. 
 
 Washington, George, 222. 
 
 Washington, Judge, 58, 59. 
 
 Watt, James, 203. 
 
 Wavne. General Anthony, 163. 
 
 Webster, Daniel, 222 ; quoted, 185, 
 200. 
 
 Webster's dictionary, quoted, 273. 
 
 Wells, Madison J., 35 n. 
 
 " Westminster Review," quoted, 303. 
 
 Whigs, advocates of free banks, 102, 
 118. 
 
 Whitney, Eli, 203. 
 
 Witchcraft delusion. 12, 13. 
 
 Witnesses, incompetent, in the Middle 
 Ages, 232 ; under the law of ancient 
 Rome, 232 ; in Scotland, 232 ; in 
 England, 232; in France, 233. 
 
 Witnesses, interested, 237-241; parties 
 to suit, 241 , 242 ; husband and wife 
 as, 243-245 ; ascendants and descend- 
 ants as. 245; atheists as, 246, 247: 
 infamous persons as, 248-249. 
 
 Women incompetent as witnesses, 232, 
 233. 
 
 Writing, 162; alphabetical, 207.
 
 UNIVERSITY OF CALIFORNIA LIBRARY 
 
 Los Angeles 
 This book is DUE on the last date stamped below. 
 
 TB LIBRARY 
 UNIVERSITY OF CALIFORNIA 
 
 LOS , .,uLES
 
 TTs 
 
 F374 
 "91s 
 
 UC SOUTHERN REGIONAL LIBRARY FACILITY 
 
 AA 000018731