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THE BRIEF 
 
 WITH 
 
 SELEOTIOIS^S FOB BEIEFIKG 
 
 BY 
 
 CARROLL LEWIS MAXCY, M.A. 
 
 Morris Professor of Rhetoric in Williams College 
 
 Author of 
 
 " The Rhetorical Principles of Narration ^^ 
 
 and " Representative Narratives " 
 
 BOSTON NEW YORK CHICAGO 
 
 HOUGHTON MIFFLIN COMPANY 
 

 COPYRIGHT, I916, BY CARROLL LEWIS MAXCY 
 
 ALL RIGHTS R£S£RV£D 
 
 Wl)t IBiibtveitK S^vtM 
 
 CAMBRIDGE . MASSACHUSETTS 
 U . S . A 
 
TO 
 H. L. E. 
 
 PUPIL AND FRIEND 
 
PREFACE 
 
 Aside from its primary purpose, as set forth in the def- 
 inition of the term itself, the Argumentative Brief serves 
 a distinctly disciplinary end. Experience in the college 
 classroom, extending over nearly a score of years, has 
 demonstrated to the compiler of the following pages that 
 the analysis demanded by the process of brief -construction 
 develops in a very high degree careful and logical methods 
 of thought on the part of the student. To provide material 
 suitable for exercise of this character and to set forth the 
 principles underlying the brief as a form of composition, 
 this work has been prepared. 
 
 Acknowledgment is hereby made to the publishers who 
 have courteously allowed the use of copyrighted material; 
 and also to various authors of textbooks on argumentation 
 — particularly to Professors Baker and Foster, who have 
 placed under deep obligations all subsequent writers on 
 any branch of this extensive subject. 
 
 C. L. M. 
 
 Williams College, 
 
 williamstown, massachusetts, 
 
 February 10, 1916. 
 
CONTENTS 
 
 I. The Abgumentative Brief 1 
 
 II. A Legal Brief — Charles E. Feirick .... 43 
 
 III. An Argumentative Brief — Walter Mills Hinkle . 58 
 
 IV. Examples of Faulty Briefing 77 
 
 V. Selections for Briefing 86 
 
 1. Editorials: 
 
 Recent Police Activities — New York Times . . 87 
 
 Delaware clings to the Whipping-Post — New York 
 Times 88 
 
 Governor Van Wyck and the Canal Ring — New 
 York Times 91 
 
 Not a Model Investigation — New York Times . . 92 
 
 Standards of Education in the Women's Colleges — 
 The Critic 94 
 
 2. The Cooper Institute Address — Abraham Lincoln . 98 
 
 3. Speech on the Panama Canal Tolls — Elihu Root . 123 
 
 4. Speech on the Slavery Question — John C.Calhoun . 159 
 
 5. Defense of President Johnson — Benjamin R, 
 
 Curtis 192 
 
 6. Speech in Behalf of John Stockdale — Lord 
 
 Erskine 273 
 
 7. The Utility of Prayer — Charles Reynolds Brown .317 
 
THE BRIEF 
 I 
 
 THE ARGUMENTATIVE BRIEF 
 
 Introductory. The idea of the 'plan, or outline, is not 
 new to the student of composition. Insistence upon a 
 preliminary draft of the main points as a basis for subse- 
 quent elaboration into theme, essay, or oration has be- 
 come a recognized convention of classroom practice. 
 
 The practical value of this preliminary outline is hardly 
 to be overestimated. The unsatisfactory results follow- 
 ing from failure to prepare a bird's-eye view of the field, 
 especially among public speakers, are familiar to all. A 
 voluble orator, a fluent writer, frequently begins his work 
 with a vague conception of the proposition that he wishes 
 to advance or to defend; by a series of thought-associa- 
 tions he wanders easily from point to point; he uncon- 
 sciously diverges farther and farther from the original 
 issue; and ultimately he reaches a goal wholly foreign to 
 the theme with which he originally set out. After faith- 
 fully listening to an oration or after reading an article of 
 this character, it is by no means an uncommon experience 
 to ask ourselves honestly what it is all about, and, per- 
 haps, to assume blame for want of understanding or lack 
 of attention. The fault, however, may resolve itself into 
 failure on the part of the composer to organize his material 
 into lo gical order, with the result that unity and coherence 
 have gone by the board. On the other hand, it is generally 
 recognized, especially among masters of homiletic compo- 
 sition, that an effort based on careful preliminary analysis 
 
2 THE BRIEF 
 
 secures a permanence in the mind of the auditor that 
 cannot be secured otherwise. Many a sermon charac- 
 terized by all the graces of rhetoric and masterly deliv- 
 ery, yet lacking in logical structure, produces seemingly 
 deep effect; but it leaves little permanent impress an 
 hour after the speaker's voice has ceased. On the con- 
 trary, a discourse that has been deliberately planned and 
 earnestly presented is likely to remain a lasting memory 
 and become a vital possession to its hearers. 
 
 There is a rather general prejudice to the effect that 
 the deliberate ordering of material in advance is fatal to 
 the best interests of persuasion or conviction. Speaking 
 of an enthusiastic student in one of our theological semina- 
 ries who was disposed to reduce all of his trial-sermons 
 to analytical form, the instructor in homiletics remarked: 
 
 <* E is a good man, but he labors under the illusion 
 
 that he can brief the love of God." The reply was to the 
 point: " But is there any reason why he should not be able 
 to brief what he has to say about the love of Godf A 
 surprise is in store for one who carefully examines the great 
 masterpieces of forensic and pulpit oratory: the extent to 
 which they reveal careful coordination and systematic or- 
 dering of matter is noteworthy. It may be safely asserted 
 that the effectiveness of a writer or a speaker will be 
 greatly increased if he has, in advance, a definite and 
 orderly conception of his thesis and of the successive steps 
 whereby he proposes to establish it, — whether by exposi- 
 tion or by the processes of proof. 
 
 The Brief defined. The term brief is included within the 
 term outline, but is not synonymous with it. All briefs 
 are, in a sense, outlines; but all outlines are not briefs. 
 The brief possesses certain distinctive properties that dif- 
 ferentiate it from the generic term under which it is in- 
 cluded. 
 
 Professor Henry S. Redfield, in his exposition of The 
 
THE ARGUMENTATIVE BRIEF S 
 
 Brief on Appeal, has defined the term as it is used in legal 
 practice, and his definition may well serve here as a basis 
 for exposition. With slight modifications and with the 
 omission of technicalities, the definition of the legal in- 
 strument is as follows: " A brief is a document, prepared 
 by counsel for the use of the court as a basis for oral argu- 
 ment of a cause; it contains a statement of the manner in 
 which the questions in controversy arose, of the facts of 
 the case so far as they relate to these questions; it is an 
 outline of the argument, consisting of the propositions of 
 law or fact to be maintained, the reasons upon which they 
 are based, and citations of authorities in their support." ^ 
 
 With slight modifications this technical definition of the 
 legal instrument may be adapted so as to cover the form 
 of the brief used for general argumentative purposes, or, 
 as it is sometimes termed, the forensic brief: thus, A brief 
 is an argumentative outline constructed for the purpose of 
 acquainting the reader with the facts of the case Under dis- 
 cussion. It contains the exact issues involved, the succes- 
 sive contentions that are to be maintained, and the reasons or 
 the authorities upon which the contentions are based. 
 
 The Fundamental Qualities of the Brief. A considera- 
 tion of these definitions at once suggests several funda- 
 mental qualities of this form of outline composition. 
 
 (1) To begin with, one observes that in legal practice 
 the brief is prepared /or the use of the court. In fact, the law- 
 yer considers his brief as a means of minimizing the labor of 
 the court in the examination of the records and of enabling 
 the court to understand the contentions of counsel. In 
 general, it is the aim of the legal brief to put the court in 
 possession of such information as shall enable it to act 
 intelligently with reference to matters of law and of fact 
 upon which its judgment must rest.^ 
 
 1 Brief-Making (The West Publishing Company), p. 219. 
 
 2 Ihid., pp. 220-21. 
 
 ^' 
 
4 THE BRIEF 
 
 This characteristic of the brief the ordinary student is 
 very prone to overlook: the fact that he is preparing hi s 
 brief not for his own use , but for the infor mation of an- 
 other. T he fundamental rule of a good brief, whether it 
 be the lawyer's brief on appeal or the student's brief on 
 an argumentative proposition, is that it shall present to 
 anotherthan jts maker such matter as is essential to estaE - 
 lish the^ontentions set f orth^ There is, of course, no reason 
 why the maker of a brief should not make use of his own 
 work, if he so desires. If, to clear his own mind upon some 
 thesis that he has to support or to give him a more defi- 
 nite grasp of a theme upon which he finds himseK called 
 to address an audience, he regards the brief -form as a prac- 
 tical device, he is unwise if he does not take advantage of 
 it; no other form of the outline is so thoroughly analytical 
 as is the argumentative brief. Yet he should remember 
 that in so doing he is bending to his own purposes a form 
 of composition that is primarily intended to serve a dif- 
 ferent function. 
 
 And this same principle — that the brief is primarily 
 intended for the enlightenment of another than its maker 
 — carries with it the necessity of absolute clearness. But 
 the final judge of its lucidity is not the writer who prepares 
 it. He must therefore write in the light of the conviction 
 or the appeal that his work is to convey to the reader. 
 The maker of a brief is often prone to form the hasty con- 
 clusion that because his work is clear to himself it must be 
 clear to another. He forgets that his study of the question 
 has familiarized him with the steps of the proof, but that 
 the result of his efforts is now coming for judgment before 
 one who, it may be, has given the subject only casual at- 
 tention or has perhaps never heard of it before. 
 
 The student of brief-making must, then, carefully dis- 
 tinguish between the brief and any form of outline that 
 partakes of the nature of mere personal memoranda. For 
 
THE ARGUMENTATIVE BRIEF 5 
 
 example, we may imagine that the following notes, hastily 
 jotted down, might have served Lincoln as a convenient 
 reminder of the matters that he wished to develop in the 
 course of his famous Springfield speech in 1858: — 
 
 (1) ** A house divided against itself '* 
 
 (2) Tendency toward nation-wide slavery 
 
 (3) 1854 
 
 (4) State Sovereignty and the Nebraska Bill 
 
 (5) Dred Scott 
 
 (6) 1855 
 
 (7) Lecompton struggle 
 
 (8) Present crisis 
 
 (9) "Framed timbers," etc., etc. 
 
 But unless one were already familiar not only with the 
 events of the senatorial campaign of 1858 but also with 
 the speech itself, what value would this series of data 
 possess? It has not the elementary qualities of the brief. 
 
 (2) A glance at the definition further shows not only 
 that the brief is constructed for another than the maker, 
 but that its purpose is to acquaint the reader with " the 
 facts under discussion," etc. This, of course, presupposes 
 careful study of the question on the part of the maker of 
 the brief before he undertakes his work. The importance 
 of this preliminary study and analysis is well exemplified 
 in the method of the lawyer, whose first task is, by the 
 comprehensive and orderly mental arrangement of princi- 
 ples and facts, to ascertain a proper theory of his case.^ 
 This determination of his " theory " is of vital importance, 
 for upon the issues thus determined he must try his case, 
 and upon that same " theory " he must base his appeal, if 
 appeal be necessary. ^ And similarly, in the preparation 
 of th^ argumentative brief, one must establish in his 
 reader's mind a clearly defined theory, proposition, or 
 thesis, the successive steps of which the brief presents in 
 orderly array. 
 * Elliott, General Practice, vol. i, sec. 93. ^ Brief-Making, p. 208. 
 
6 THE BRIEF 
 
 (3) And, finally, the definition of the brief implies that 
 in the treatment accorded the subject under discussion the 
 proposition must be kept free from all that is extraneous 
 to the issue. In oral presentation, departure from the issue 
 is easy, and, consequently, the fallacies of ignoring and 
 of begging the question are not uncommon. Clearness and 
 directness, at the very outset, are fundamental qualities 
 in successful brief-making. An obscure brief is a contra- 
 diction in terms. If the analysis of an argument does not 
 enlighten the mind of the reader, whatever other title may 
 be applicable, the work cannot be termed a '* brief." 
 
 Three fundamental rules may, then, be deduced from 
 the definition of the brief as set forth on page 3, to wit: — 
 f 1. The brief must be prepared from the point of view of 
 the reader; not from that of the maker, 
 
 2. The brief must be the product of thorough familiarity 
 with the question and must be based on careful analysis. 
 V 3. The brief must be clear, and free from all digression. 
 
 Subdivisions of the Brief. The legal brief has come to 
 possess certain distinctive divisions in the ordering of 
 material, so that to-day its form is quite conventional. 
 Indeed, in some States the form is prescribed by law, as is 
 also the case with many other legal instruments. In the 
 typical legal " brief on appeal " one looks for the following 
 well-defined stages, or subdivisions: — 
 
 1. The Title 
 
 2. The Preliminary Statement 
 
 3. The Statement of the Case (sometimes termed " The 
 Facts ") 
 
 4. The Specification of Errors 
 
 5. The Brief of the Argument 
 
 The general form of the argumentative brief, as it has 
 been developed in practice, follows closely after the legal 
 .model. It contains — 
 l 1. The Title 
 
THE ARGUMENTATIVE BRIEF 7 
 
 2. The Preliminary Introduction 
 
 3. The Main Introduction 
 
 4. The Statement of Issues 
 
 5. The Brief of the Argument 
 l^ 6. The Conclusion 
 
 The Title. The general nature of the title of the legal 
 brief may be seen in the following examples: — 
 
 COURT OF APPEALS 
 
 State of New York 
 
 Delia King as Administratrix of the 
 Estate of William Melbury, Deceased, 
 
 PLAINTIFF-RESPONDENT 
 
 vs. 
 
 The New York Central and Hudson 
 River Railroad Company, 
 
 DEFENDANT-APPELLANT. 
 
 SUPREME COURT OF IOWA 
 
 December Term, 1907. 
 
 Martin C. Tapley, 
 
 Respondent, 
 
 vs. 
 
 Jonas D. Westlock, 
 
 Appellant. 
 
 The Title, as here presented, serves the practical purpose 
 of facilitating identification. It appears at the head of the 
 brief, and is repeated in more or less similar form on the 
 
8 THE BRIEF 
 
 last page, so arranged as to serve as the endorsement when 
 the brief is folded for filing. 
 
 In furtherance of this same purpose of promoting con- 
 
 ivenience of identification for filing, reference, etc., the 
 I Title of the argumentative brief is but slightly different. 
 i It appears on the back of the last page only, and, like the 
 ■ title of a book, serves as an endorsement. For example: — 
 
 ! WILLIAMS COLLEGE 
 
 Brief of an argument on 
 
 THE PARTICIPATION OF FRESHMEN IN INTERCOLLEGIATE 
 
 ACTIVITIES 
 
 William D. Spenlow, '16 
 
 ' January 24, 1916 
 
 The Preliminary Statement and the Preliminary In- 
 troduction. This division of the legal brief usually follows 
 immediately after the Title. It states, in a concise para- 
 graph, the general substance of the case at issue. It is 
 phrased at full length, rather than in the abbreviated 
 form that characterizes titles and general memoranda. The 
 following preliminary statement is typical: — 
 
 This is an appeal from a judgment of the Appellate 
 Division, Second Department, affirming a judgment 
 of the Supreme Court, entered in the Hamilton County 
 Clerk's Office, May 15, 1913, in favor of the Plaintiff, 
 and against the Defendant for $5000 damages, and 
 $161.40 costs, entered upon a verdict of a jury after a 
 trial held at the March, 1913, term before Mr. Justice 
 William W. Collins. 
 
 Spenlow and Jorkins, 
 Attorneys for Defendant. 
 
 The corresponding division of the argumentative brief 
 — the Preliminary Introduction — is but a slight modi- 
 
THE ARGUIViENTATIVE BRIEF 9 
 
 ----Jfication of the Preliminary Statement as presented above. 
 I (It serves to introduce the subject of discussion and to 
 -acquaint the reader definitely with the general matter in 
 I hand before he undertakes the rather elaborate introduc- 
 * tion wherein terms are defined, extraneous matter cleared 
 away, and the main issues unmasked. It therefore con- 
 veniently occupies a separate page, and serves the same 
 purpose as does the title-page of a book. For instance: — 
 
 This is a brief of a speech by Senator Beveridge of 
 Indiana, delivered in the Senate of the United States, 
 January 9, 1900, in favor of the retention of the Philip- 
 pine Islands by the United States, and presented in 
 reply to a request from the Senate for the results of a 
 personal observation recently made by the speaker in 
 -^ --___ the islands of the Far East. 
 
 The advantage of this somewhat full, but certainly 
 clear, Preliminary Statement is that, at the very thresh- 
 old of his work, the reader finds his mind entirely satis- 
 fied as to the exact subject that the maker of the brief is 
 j about to discuss. It is no part of this Preliminary Intro"^ 
 duction, however, to present any step of the argument, 
 or even to clear any ground preparatory for the argument. 
 It is simply explanatory, and serves no other purpose 
 than to state in full all that is necessary for understanding 
 the exact substance of the brief that follows. 
 
 The Facts and the Main Introduction. The third step"" 
 in the legal instrument — the Facts, or the Statement of 
 the Case, — is of the greatest importance. This portion 
 of the lawyer's brief should contain ** a clear and concise 
 statement of what he claims to be the substance of the 
 record . . . the substance of the pleadings, when questions 
 arise upon them, and also the leading facts established 
 by the evidence, where questions of fact are to be deter- 
 mined." ^ 
 
 1 Brief-Making, p. 223. 
 
10 THE BRIEF 
 
 So important is this portion of the brief in legal practice 
 that failure to include it within the instrument is attended 
 with various penalties, ranging from a reprimand to dis- 
 missal of the case.^ Indeed, it is commonly asserted by 
 lawyers that this division of the brief presents the actual 
 crux of the whole presentation. What the court needs is 
 not guidance upon the argumentative and legal aspects 
 of the case submitted by counsel, but, rather, a lucid ex- 
 position of the facts. With these the court should be quite 
 equal to the task of reaching a decision. " This is far more 
 important than it appears to many lawyers, especially 
 where a case is long and complicated, and where the facts, 
 to be intelligible, must be extracted from a large mass of 
 evidence and grouped together. To suppose the court will 
 do for you what you will not do for yourself, and produce 
 order out of chaos, is a great mistake. You must start 
 with some clear and logical' theory as to what the facts 
 really are, for, if your facts do not commend you to the 
 appellate court, it may look with some suspicion on your 
 logical conclusions, however convincing they may be." '^- 
 
 An example of the Statement of the Case, as it appears 
 in the legal brief, is presented on page 44. 
 
 The corresponding division of the argumentative brief 
 — the Main Introduction — is similarly of the utmost 
 importance, although it is probably of less relative signifi- 
 cance, in this case, than the argumentative matter that 
 follows. It is a recognized principle of argumentative 
 procedure that, previous to all citation of evidence and 
 the establishment of proof, terms shall be defined, facts 
 necessary to an understanding of the demonstration set 
 forth, and all unessential matter eliminated. Everything 
 that is necessary to this clearing of the decks belongs to 
 the Main Introduction. The various steps of this pre- 
 
 * Brief-Making, pp. 223-24. 
 
 2 Albany Law Journal, October, 1889. 
 
THE ARGUMENTATIVE BRIEF 11 
 
 liminary analysis are thus specified by W. T. Foster in his 
 
 Argumentation and Debating (p. 50) : 
 
 1. The Origin of the Question (the immediate cause for dis- 
 cussion) . 
 
 2. The History of the Question. 
 :v 3. The Definition of Terms. 
 
 4. The Exclusion of Extraneous Matter. 
 
 5. The Exclusion of Admitted Matter.- 
 
 6. The Exclusion of Waived Matter. 
 
 7. The Main Contentions of the Affirmative and of the Nega- 
 tive. 
 
 It is apparent that this portion of the brief is expository 
 rather than argumentative. Its function is to set forth 
 matter upon which both sides are in agreement, rather than 
 to produce conviction upon contentions regarding which 
 there is difference of opinion. It is also evident that there 
 can be no argument upon the proposition at issue until 
 there is common understanding between the opposing 
 parties regarding the meaning of the terms of the propo- 
 sition, as well as regarding the various other elements 
 indicated by the steps of the analysis as presented. 
 
 The form in which the Main Introduction should be pre- 
 sented may be seen in the argumentative brief on pages 
 58-62. 
 
 The Specification of Errors and the Statement of the 
 Issues. Upon the fourth main division of the legal brief, 
 the Specification of Errors, it is not necessary to dwell at 
 any great length. The exposition of its various details 
 would lead to the consideration of legal technicalities quite 
 beyond the scope of the present work. The principal con- 
 sideration is that the specific " errors " alleged be set forth 
 clearly and in due order, so that the court may, without 
 difficulty, understand the underlying contentions. 
 
 In the argumentative brief the corresponding division, 
 the Statement of the Issues, has much the same purpose 
 
12 THE BRIEF 
 
 as the Specification of Errors: to present the main conten- 
 tions underlying the case in dispute. The function of the 
 ' last step in the Main Introduction, as shown on pages 61-6^, 
 — the presentation side by side of the affirmative and 
 negative arguments, • — is to arrive at the basic contentions 
 upon which the argument is to be constructed after all 
 preliminary matter has been cleared away. These funda- 
 mental contentions are set forth in definite form in the 
 Statenient of Issues. An example of such presentation will 
 be found in the typical argumentative brief on page 62. 
 
 The Brief of the Argument. The Brief of the Argument 
 is identical in the legal and the argumentative brief, with 
 the exception already noted, that in the case of the legal 
 brief there is a growing tendency to .abbreviate this por- 
 tion and to lengthen correspondingly the introductory 
 portions wherein the facts are set forth for the illumination 
 of the court. The main business of the Argument in the 
 legal brief is to present, together with the facts or proposi- 
 tions open to discussion, the authorities cited by way of 
 proof. In the argumentative brief the citation of author- 
 ities is much less extensive and less convincing than in 
 the legal brief; the former contains the arguments that 
 sustain the proposition under discussion, as well as those 
 that through refutation destroy the contentions of the op- 
 posing side. A short extract from a brief of each type 
 will illustrate the more " authoritative " character of the 
 legal brief and the more detailed and " probative " char- 
 acter of the argumentative type. 
 
 (From a Legal Brief) 
 
 POINT FIRST 
 
 A general assignment without preferences will not be 
 avoided at the instance of a particular creditor, and such 
 creditor's claim preferred, even on proof that the debtor 
 
THE ARGUMENTATIVE BRIEF 13 
 
 fraudulently deceived the said creditor for the purpose of pre- 
 venting a possible interference with his legitimate intention of 
 distributing all his property ratably among all his creditors. 
 
 (A) General assignments without preferences are favored in the 
 law. 
 
 Dombey v. Pipchin Card and Paper Co., 42 App. 
 Div. 277. 
 
 (B) A domestic corporation may assign without preferences for 
 the benefit of its creditors. ^ 
 
 Bagstock V. Western Bridge Co., 123 N.Y. 654, 687. 
 
 Carker v. Buckeye Knitting Co., 17 App. Div. 213. 
 
 Bynsby v. Tox, 37 App. Div. 299. 
 
 Tumpkins v. Home Machine Co., 17 Misc. 142; 
 15 App. Div. 287. 
 Such an assignment was in effect forbidden by the pro- 
 visions of the Revised Statutes prohibiting transfers by 
 an insolvent corporation or in contemplation of its insol- 
 vency (5 R.S., sec. 675). These provisions were repealed 
 by the Stock Corporation Law of 1904, which was amended 
 in 1909 (sec. 67) in such manner as to sanction inferen- 
 tially an assignment of this nature if made without 
 preferences. 
 
 Perch on Corporations (3d edition) vol. iii, pp. 
 123-456. 
 
 (C) It is the duty of the directors of a corporation which is in- 
 solvent to make a pro-rata distribution of its property among 
 its creditors. 
 
 Stock Corporation Law, section ix. 
 
 Code of Civil Proceedings, sections 2165-2651, 
 
 4316-6453. 
 Farmer's Bank v. Skimpole & Co., 18 Misc. 664, 
 at p. 376. 
 No argument is necessary to enforce this proposition. 
 The principles of fair dealing require that the oflScers who 
 have conducted a business so unsuccessfully as to induce 
 a condition of insolvency should secure to the corporate 
 creditors the remaining assets of the corporation rather 
 than risk a further depletion of such assets by a continu- 
 ation of the aforesaid business. 
 
14 THE BRIEF 
 
 {From an Argumentative Brief) 
 
 I. In view of the differences of opinion that have arisen be- 
 tween Great Britain and the United States regarding the 
 matter of discrimination in tolls on the Panama Canal, the 
 question should be referred to the Court of Arbitration at 
 The Hague: for 
 
 A. The Arbitration Treaty between the two countries, 
 (a) by its terms and (6) by the circumstances attending 
 its adoption, binds the United States to this method 
 of adjudication: i.e., 
 
 1. By its terms: for 
 
 a. It states that "Differences that may arise 
 . . . relating to the interpretation of treaties 
 existing between the two contracting par- 
 ties . . . shall be referred to the Permanent 
 Court of Arbitration established at The 
 Hague." 
 
 2. By the circumstances attending its adoption : for 
 
 a. It was in large degree through the public 
 declarations and the action of the United 
 States that the arbitration treaty with 
 Great Britain was brought about: for 
 
 (1) It was as a result of the address of 
 Secretary of State John Hay to the 
 nations of the world to enter into 
 arbitration treaties with the United 
 States that negotiations with the 
 United States began. 
 
 (2) It was in response to resolutions 
 adopted by Congress in 1890 that 
 the treaty itself was finally negoti- 
 ated: for 
 
 (a) In July, 1893, the House of 
 Commons referred with satis- 
 faction to the action of Con- 
 gress and expressed entire con- 
 currence in the idea of estab- 
 lishing arbitration relations. 
 
 The Conclusion. There remains only the Conclusion, 
 or general summary, appended for the sake of showing 
 
TPIE ARGUMENTAirVE BRIEF 15 
 
 at a bird's-eye glance the entire fiel<{ that has been covered. 
 In legal briefs, as the main con entions are generally 
 printed in more or less heavy-faced, type, the main issues 
 stand forth with sufficient distinctness, and the Conclu- 
 sion is not necessary as one of the integral divisions of 
 the instrument. In the ordinary argumentative brief, how- 
 ever, in which the issues often demand complex proof and in 
 -which refutation frequently plays an important part, it is 
 convenient to tabulate, at the very end, the contentions 
 upon which the demonstration rests. In certain instances 
 where the argument is not extended and the main issues 
 are sufficiently distinct, the Conclusion may seem needless, 
 and its omission justifiable. The judgment of the brief- 
 maker will determine this consideration. Here, as else- 
 where, clearness must serve as the final test. Elucidation 
 and simplification are the ultimate ends of all brief -draw- 
 ing. 
 
 An example of the form that the Conclusion generally 
 takes will appear in the typical argumentative brief pre- 
 sented on pages 75-76. 
 
 General Rules of Brief -Construction. In the drawing-up 
 of the argumentative brief, three fundamental rules under- 
 lie all others. 
 
 (1) The first of these is to the effect that All portions of 
 the brief must be expressed in the form of complete sentences. 
 
 This rule of construction arises from the fundamental 
 principle of the brief itself, as expressed in the original 
 definition (p. 3), that it is intended primarily not for the 
 maker of the instrument but for the reader. It is an axiom 
 of composition that a proposition, or complete statement, 
 sets forth its core idea with less opportunity for misunder- 
 standing than does a mere term, which presents, as it were, 
 only the title of the idea. ^ A proposition contains an exact 
 
16 "HE BRIEF 
 
 statement; a term merely sets forth a topic regarding which 
 an infinite number o J stateinents may be predicated. A 
 term may connote Ut its author a perfectly definite fine 
 of thought, but to the reader this same term may convey 
 nothing more than a vague idea, suggestive of no coherent 
 fine of reasoning. A comparison of the two passages follow- 
 ing will at once demonstrate the superior definiteness of the 
 form in which each division is expressed in the form of a 
 complete proposition. 
 
 (a) 
 A. The abandonment of the Philippines by the United States 
 an irretrievable blunder. 
 
 1. Readiness of other powers to profit by their abandon- 
 ment. 
 
 2. Possibility of prompt abandonment. 
 
 ib) 
 A. The abandonment of the Philippines by the United States 
 would prove an irretrievable blunder: for 
 
 1. Every other great power stands ready to seize upon 
 them, if they should be abandoned by the United 
 States. 
 
 2. Should retention, in the end, prove undesirable, the 
 United States can, at any time, relinquish them under 
 such conditions as may seem most wise. 
 
 The second arrangement leaves no latitude to the reader; 
 he follows perforce the line of reasoning along which the 
 mind of the maker of the brief has already traveled. 
 
 The only exception to this rule of complete statement 
 may be found in those cases, partaking of the nature of 
 exposition, wherein a statement is followed by a series 
 of illustrations, authorities, instances, etc. For example: 
 
 I. During the past fifty years various attempts have been made 
 through temperance organizations to combat the liquor 
 problem : for example, 
 
 A. The Woman's Christian Temperance Union (1874) ; 
 
 B. The National Temperance Society (1865) ; 
 
THE ARGUMENTATIVE BRIEF 17 
 
 C. The Church Temperance Society (1881); 
 
 D. The Anti-Saloon League (1895). 
 
 It would seem supererogatory to enlarge these sub- 
 points into the fully predicated form, as no additional clear- 
 ness would result. At the same time, the student should be 
 on his guard against extended indulgence in the memoran- 
 dum-like methods here illustrated. It is always safest to 
 err on the side of clearness, and a habit of abbreviation is 
 all too easily encouraged, with the attendant risks of vague- 
 ness and obscurity foreign to the very nature of the brief. 
 
 (2) The second general rule of brief -construction is: The 
 coordination and subordination of the several propositions 
 contained in the brief are indicated by the varying widths of O 
 the margins assigned to the respective propositions and by 
 symbols indicating the logical relations. 
 
 This rule, like the first, arises from the character of the 
 original definition. The brief is defined as containing *' the 
 successive contentions that are to be maintained, and the 
 reasons or the authorities upon which the contentions are 
 based.'* In this phrasing, the two terms " successive con- 
 tentions " and " reasons or authorities upon which the 
 contentions are based " imply the related ideas of coordina- 
 tion and subordination, very important considerations in 
 the reasoning process: the " successive contentions " are 
 coordinated one with the other, and the " reasons " of 
 each contention are subordinated to the contention in 
 question. If two statements are of equal rank they occupy 
 similar positions on the written page, set off with equal 
 margins; if one is subordinated to another, the subordina- 
 tion is indicated by carrying the dependent proposition 
 farther to the right, so that it shall stand, as it were, under 
 and within the contention to which it belongs. Further- 
 more, the relative logical rank is indicated by letters and 
 
18 THE BRIEF 
 
 figures showing at a glance which contentions are parallel 
 and which are inferior in logical importance. The following 
 example will illustrate the application of the principles of 
 margins and of notation: 
 
 Proposition: The United States should retain Possession of the 
 Philippines.^ 
 I. The value of the Islands is so great as to render their re- 
 tention by the United States a desirable policy: for 
 
 A. They occupy a strategic geographical position in the 
 Pacific Ocean : for 
 
 1. They lie at the converging point of all the Pacific 
 trade lines between America, Australia, and the 
 Orient. 
 
 2. They bring the United States nearer to Asia and 
 China than are the countries of Europe. 
 
 3. The trade of the Pacific, thus commanded by 
 the Islands, must control, in great degree, the 
 future trade of this country: for 
 
 a. Europe will soon cease to furnish the 
 United States a market for its com- 
 merce: for 
 
 (1) Europe is every year manufacturing 
 all that it uses and securing from its 
 colonies all that it needs in addition. 
 
 b. The trade with China in particular offers 
 immense possible opportunities to the com- 
 mercial future of the United States: for 
 
 \ (1) China's foreign commerce in 1897 
 amounted to $285,738,300, of which 
 the United States secured less than 
 9% as against 50% that it might 
 easily control. 
 (2) China's foreign commerce, great as it 
 already is, is only in its infancy: for 
 (a) Its railway mileage is but a 
 fraction of what it promises to 
 become with the development 
 of the country. 
 
 * From Senator Beveridge*s speech in the United States Senate, 
 delivered in 1900. 
 
THE ARGUMENTATIVE BRIEF 19 
 
 B. The natural resources of the Islands render them in- 
 valuable: for 
 
 1. They abound in all the principal products of 
 the tropics and of the temperate zones. 
 
 2. They are covered with rich forests. 
 
 3. Great deposits of copper and gold abound along 
 their creeks and rivers. 
 
 II. The retention of the Islands by the United States is but the 
 acceptance of a moral obligation: for 
 
 A. It is in accord with the manifest destiny of this re- 
 public: for 
 
 1. It presents a means of securing a better ad- 
 ministration of the national government of the 
 country : for 
 
 a. The effective administration of the Islands 
 by the United States will constitute a 
 stimulus that will react upon the adminis- 
 trative power: for 
 
 (1) It has already been demonstrated in 
 the case of England in relation to 
 India and Egypt that effective co- 
 lonial administration acts as an 
 inspiration to the home govern- 
 ment. 
 
 2. Just as self-government and internal develop- 
 ment have characterized the first century of our 
 national growth, so it is but reasonable to con- 
 tend that the administration and development 
 of foreign lands that have come into our pos- 
 session will constitute the dominant note in the 
 history of our second century of national life. 
 
 Makers of briefs often cause confusion in that, while at- 
 tempting to secure clearness, they neglect to observe the 
 importance of the margins. They make accurate use of 
 symbols (I, A, 1, a, etc.), but they nullify the effect of 
 the notation by using a single marginal space. That this at 
 once minimizes all the effects of careful analysis will appear 
 from the following version of one portion of the selection 
 just cited: 
 
20 THE BRIEF 
 
 II. The retention of the Islands by the United States is but the 
 acceptance of a moral obligation: for 
 
 A. It is in accord with the manifest destiny of the republic: for 
 1. It presents a means of securing a better administration of 
 the national government of the country: for 
 a. The eflFective administration of the Islands by the United 
 States will constitute a stimulus that will react upon the admin- 
 istrative power: for 
 
 (1) It has already been demonstrated in the case of England in 
 relation to India and Egypt that effective colonial administra- 
 tion acts as an inspiration to the home government. 
 
 A brief thus boggled does little toward enlightening 
 the .mind of the reader as to the course of the reasoning 
 processes. 
 
 (S) A third general rule of the brief is : Each step of sub- 
 ordination should be expressed by a suitable connective. 
 
 This rule at once emphasizes the difference between the 
 Main Introduction and the Brief of the Argument: that the 
 one is, in large degree, expository in character, and the 
 other argumentative. In consequence we find different 
 connectives between the principal and the subordinate 
 , portions of the two divisions. In the Main Introduction 
 -- these connectives are likely to be "as follows," " namely," 
 L"for example," and the like; for the subordinations gen- 
 erally present subdivisions, instances, or illustrations of 
 the principal statements. The introductory portions of 
 the various briefs presented hereafter (e.g., p. 59) indi- 
 cate the use of expository connectives. In the Brief of 
 the Argument, however, the case is otherwise. Here the 
 principal statements consist of contentions that are sup- 
 ported by evidence. Consequently the natural connective 
 is almost invariably " for." The process of reasoning is 
 distinctly analytical, deductive, the fact preceding and 
 the causes or reasons following. The selection presented 
 on p. 18 illustrates the application of the rule in question. 
 
THE ARGUMENTATIVE BRIEF 21 
 
 This general rule as to the use of proper connectives is 
 of the last importance. Forced to express in full the re- 
 lations that bind together the successive steps of his rea- 
 soning, the maker of the brief cannot easily digress into 
 loose analysis or fallacious reasoning. And this same use 
 of connectives does not permit the attention of the reader 
 to wander at large among the evidence cited: he is com- 
 pelled to follow along the very lines of reasoning that 
 guided the drafting of the argument. 
 
 In connection with the analytical, or deductive, nature 
 of the brief, one may well note at this point a device where- 
 by the logical ordering of an argument may be tested. 
 Inasmuch as the brief proceeds from the conclusion down 
 through the successive premises upon which it is based, 
 if one begins with the ultimate cause, — i.e., with the argu- 
 ment last in order, — and proceeds upward, substituting 
 the word ".therefore " at each articulation indicated by the 
 word "for," one should find that the reasoning advances 
 synthetically, or inductively, to the conclusion to be es- 
 tablished. Not infrequently the application of this " re- 
 verse proof ^' will reveal a slip at some point where the 
 logical processes do not properly adjust themselves. 
 
 An example of the application of this reversal of the 
 brief order is presented in the following: 
 
 A. The creation of the College Senate does not render un- 
 necessary the further continuance of the Skull and Dagger 
 Senior Society: for 
 
 1. The object of the Skull and Dagger Society is separate 
 and distinct from that of the College Senate: for 
 a. Instead of acting in a governmental capacity in 
 regulating and controlling the relations between 
 students and faculty, as is the ease with the Sen- 
 ate, Skull and Dagger is advisory in character: for 
 (1) Its purpose is to urge all active steps 
 possible for advancing the best interests 
 of the College at large through undergrad- 
 uate life : for 
 
22 THE BRIEF 
 
 (a) The constitution of the Society thus 
 formally defines the purposes of the 
 organization. 
 
 If one were now to begin with the last statement and 
 reverse the line of reasoning by substituting " therefore ** 
 at each stage, the result would be somewhat as follows: 
 
 A. The constitution of the Skull and Dagger Senior Society 
 defines its purpose to be the urging of all active steps 
 possible for advancing the best interests of the College at 
 large through undergraduate life: therefore, 
 
 1. This may be accepted as the purpose of the organiza- 
 tion: therefore, 
 
 a. Instead of acting in a governmental capacity in 
 regulating and controlling the relations between 
 students and faculty, as is the case with the Col- 
 lege Senate, the Skull and Dagger Society is 
 purely advisory in its function: therefore, 
 
 (1) The Skull and Dagger Society is separate 
 and distinct from the College Senate in its 
 object: therefore, 
 
 (a) The creation of the College Senate 
 does not render unnecessary the- 
 further continuance of the Skull and 
 Dagger Society. (Q.E.D.) 
 
 Application of this process of " reversal " to the follow- 
 ing brief will reveal flaws in the reasoning process that, at 
 first reading in the original form, might escape atten- 
 tion: 
 
 I. The contention that Mr. Douglas did not act in accordance 
 with the principles of the Democratic Party in failing to 
 support the English Bill is not to be maintained: for 
 
 A. The English Bill was, in fact, a pardon, in the form 
 of a compromise, for those members of the Demo- 
 cratic Party who had sinned in opposing the Lecomp- 
 ton Bill, and 
 
 B. Mr. Douglas had no need of such pardon: for 
 
 1. He was justified in his opposition to the Lecomp- 
 ton Bill on the ground of consistent adherence to 
 the principle of state sovereignty. 
 
THE ARGUMENTATIVE BRIEF 23 
 
 C. The English Bill differentiated between Kansas and 
 other States seeking admission to the Union. 
 
 D. The English Bill was in opposition to the principles 
 underlying the national government: for 
 
 1. Equality among the States is a fundamental 
 principle of this government. 
 
 2. Such use of the Federal power as was justified 
 by the English Bill would be prejudicial to the 
 South: for 
 
 a. There was, in Congress, a majority against 
 the South. 
 
 The reason for the analytic, or deductive, ordering of 
 brief -material is evident. If the brief were to be constructed 
 on the synthetic, or *' hence-therefore " principle, the com- 
 position would, indeed, be entirely logical and coherent, 
 yet the principal steps of the main argument would be 
 thrown into positions of greatest insignificance, and the 
 ultimate purpose of the brief would be defeated. 
 
 Special Rules of Construction. In addition to the pre- 
 ceding general rules there are several specific rules that 
 concern various details of brief -construction. 
 
 (1) The Main Issues, constituting the fourth principal 
 division of the argumentative brief (p. 7), reappear as the 
 principal subdivisions of the Main Argument. 
 
 They thus serve to keep prominently before the reader 
 the principal contentions upon which the maker of the 
 brief is basing his argument. Reference to the typical brief 
 on pages 62-73 will show the application of the principle. 
 
 (2) Each subordinated statement should present a clear and 
 A definite reason establishing the contention to which it is ap- 
 
 \ pended. 
 
 The following examples of faulty briefing will show the 
 confusion that results from failure to observe this rule: 
 
24 THE BRIEF 
 
 (a) 
 I. We cannot argue that it is fair to cheat in examinations, 
 
 A. Simply because we do not believe in them, and 
 
 B. Considering the privileges granted us by the Board 
 of Education, 
 
 1. Whose standards are high, and 
 
 2. Whose wish is for our welfare. 
 
 C. Furthermore, it is our duty to uphold the rules and 
 regulations of the Board. 
 
 This specimen is mere chaos labeled with the symbols 
 of a brief. There is no proper relation between the sub- 
 ordinated statements and the principal contentions. The 
 writer, if he had any argument at all in mind, probably 
 reasoned along some such line of thought as indicated 
 below: 
 
 (b) 
 I. Our personal disbelief in the principle of examinations is 
 no sufficient excuse for dishonesty in passing them : for 
 A. Whatever be our personal opinions, we are under ob- 
 ligation to meet the rules and regulations of the 
 Board of Education: for 
 
 1. The Board has shown that it is desirous of our 
 welfare: for 
 
 a. It has granted us many privileges. 
 
 b. It has established a high standard of work. 
 
 (a) 
 
 I. Governor Johnson holds it to be his duty to sign the bill 
 at present pending in California with reference to the ex- 
 clusion of the Japanese from holding land : for 
 A. Action in this matter has become imperative: for 
 
 1. Thirty years ago, when the present constitution 
 of California was adopted, the people wished to 
 prevent this immigration: for 
 
 a. That constitution declared the presence of 
 foreigners ineligible to citizenship to be 
 dangerous to the State. 
 
 b. The Japanese are ineligible to citizenship. 
 
THE ARGUMENTATIVE BRIEF 25 
 
 2. The people want this bill: for 
 
 a. The vote in the Senate was 35 to 2, and in 
 the Assembly 72 to 3. 
 
 Examination of this attempt at briefing will show that 
 it utterly fails to meet the rule regarding logical relations. 
 The fact (1) that when the constitution of California was 
 adopted thirty years ago the people of the State desired 
 to prevent the immigration of the Japanese does not estab- 
 lish the major contention (A) that action in excluding the 
 Japanese from holding land has become imperative at this 
 time. Nor does the fact (6) that the Japanese are ineli- 
 gible to citizenship establish the contention that thirty 
 years ago the people of California wished to prevent 
 further immigration. Readjusting these and other faults 
 of the brief, one may perhaps secure a better representation 
 of what the writer really had in mind: 
 
 {h) 
 I. Governor Johnson of California is justified in favoring the 
 bill now pending before the legislature of that State, 
 whereby it is proposed to deprive the Japanese of the right 
 to own land : for 
 
 A. The bill is in accord with the state constitution: for 
 
 1. The constitution declares that the presence of 
 foreigners who are (like the Japanese) ineligible 
 to citizenship is a menace to the welfare of the 
 State. 
 
 B. The people of California are in favor of the proposed 
 legislation: for 
 
 1. In the State Senate the vote was 35 to 2 in favor 
 of the bill, and in the Assembly it was 72 to 3. 
 
 (a) 
 I. The contention of the South that the Republican Party, by 
 its policy and doctrines, is stirring up insurrection among 
 the slaves is not to be maintained : for 
 
 A. It has never been possible to trace any uprising among 
 the slaves to Republican instigation: for 
 
\\ 
 
 26 THE BRIEF 
 
 1. Even the Southerners themselves have never at- 
 tempted to fix any blame upon the Republicans. 
 B. The contention that the John Brown raid and the 
 Harper's Ferry affair were gotten up by the Republi- 
 cans is untenable: for 
 
 1. It has been pro^^ed that John Brown was a fa- 
 natic, and not a Republican. 
 
 In this case the violation of the rule is apparent mainly 
 in the loose reasoning that characterizes the ordering of 
 the thought. Aside from the general assertiveness of the 
 brief, it will be noticed that A. 1. is practically contra- 
 dictory of I : the contention that Southerners are unable to 
 prove their charge against the Republican Party is scarcely 
 refuted by saying that they have never attempted to 
 bring such charge. A simplification of the brief will bring 
 out more clearly the ideas that really underlie the writer's 
 line of reasoning: 
 
 (b) 
 I. The contention made by Southerners to the effect that the 
 Republican Party, by its policies and doctrines, is stirring 
 up insurrection among the slaves is not to be maintained : for 
 
 A. No actual evidence has been cited in support of this 
 charge. 
 
 B. The charge that John Brown's raid was conducted 
 under Republican auspices has no weight: for 
 
 1. History has demonstrated the fact that John 
 Brown was an irresponsible fanatic. 
 
 .il 
 
 (3) The use of ** hence, ^' 'therefore,'' or other illative 
 ^\connective at once indicates faulty organization of material. 
 
 The reason for this rule has already been indicated under 
 the third of the general rules of the brief (p. 20). As the 
 whole system of brief-ordering is based on the principle that 
 first the main contention must be laid down, and then that 
 the contention itself be established through the citation 
 of evidence, the use of " hence," " therefore," and similar 
 
THE ARGUMENTATIVE BRIEF 27 
 
 connectives at once brings about a revtersal of the brief r 
 ord^. For example: 
 
 («) 
 I. The proposed law excludes "all persons" ineligible to citi- 
 zenship from holding land: therefore 
 
 A. The bill does not specify the Japanese: hence 
 
 1. The proposed law does not discriminate against 
 the Japanese. 
 
 In the brief as here presented the matter included 
 under 1 is, in fact, the principal contention, the point to 
 be proved; and yet it is relegated to the position of great- 
 est insignificance. The entire scheme of organization 
 should be reversed, thus : 
 
 (b) 
 
 I. The contention that the proposed legislation establishes 
 discrimination against the Japanese is not to be maintained: 
 for 
 
 A. The bill in question does not specify any particular 
 nation by name: for 
 
 1. By its own terms it excludes "all persons" who 
 are ineligible to citizenship from the right to 
 hold land. 
 
 The confusion resulting from the use of "hence," " there- 
 fore," etc., is particularly difficult to handle when the con- 
 nective crops out in the very midst of a complex argument; 
 in such cases there is not even the consistency of logical 
 method that is found in the foregoing specimen, and the 
 entire structure falls to pieces. If the reader will attempt 
 to reorganize the following example of briefing into co- 
 herent and logical arrangement, he will realize the obstacle 
 presented at the point where " hence " appears in the 
 argument: 
 
 I. Douglas's statement to the effect that Lincoln had charged 
 the Dred Scott case with prohibiting the negro from be- 
 
w 
 
 28 - THE BRIEF 
 
 coming a citizen of the United States misrepresents Lincoln's 
 position: for 
 
 A. Lincoln merely mentioned the following decisions of 
 the Supreme Court in connection with the Dred Scott 
 decision as indicating a conspiracy for nationalizing 
 slavery, viz.: 
 
 1. That a negro cannot become a citizen: hence 
 a. Lincoln supposed that this decision had 
 been rendered in order to prevent the 
 negro from ever securing the rights of 
 citizenship. 
 2. That taking a negro into territory where slavery 
 is prohibited does not make him free. 
 
 (4) Double notation should not be prefixed to a statement 
 in a brief. 
 
 The symbol prefixed to a statement is for the purpose 
 of showing its coordination with statements of equal 
 rank or its subordination to statements of superior rank. 
 To affix two symbols to a statement would therefore seem 
 to indicate the impossible situation that the proposition 
 in question is coordinate with another proposition and 
 at the same time subordinate to it. For example: 
 
 ^ («) . 
 I. Shortening the college course to three years is unnecessary: 
 for 
 
 A. Provision is already made for students who are unable 
 to spend four years in college. 
 
 B. 1. One's educational career can be shortened at other 
 
 points: for 
 a. It can be shortened in the preparatory school 
 or in the professional school. 
 2. Either of these is better than to cut short the college 
 course. 
 
 At the point marked B, the brief -maker evidently 
 was conscious of the logical correlation between the pro- 
 vision already made for students and the possibility of 
 
THE AEGUMENTATIVE BRIEF 29 
 
 shortening the college course at various points. But as 
 the matter has been ordered, there is a logical paradox at 
 the statement B. 1. That one's education can be shortened 
 at other points, as shown by the symbol B, is parallel with 
 A, and yet, by the presence of the symbol 1, it is appar- 
 ently subordinate either to A, or to some point coordinate 
 with A, namely, with itself. Disregarding the assertive 
 character of the argument, which is almost totally lacking 
 in evidence, we may improve the general structure as 
 follows: 
 
 (b) 
 I. To shorten the college course from four to three years is 
 unnecessary: for 
 
 A. Provision is already made whereby the college course 
 may be completed in less than four years. 
 
 B. Other portions of one's educational career, such as the 
 preparatory school or the professional school, can be 
 cut short with less loss than would result from cur- 
 tailing the work of the college. 
 
 (5) When coordinated statements in a brief stand in con- 
 trast to one another, or in any suspended relation, the several 
 related propositions constitute, in reality, a single compound 
 argument, rather than a succession of equivalent contentions. 
 In such cases the relation may be fittingly expressed by the 
 use of the symbols A, A', A"; 1, V, 1", etxi. For example: 
 
 I. The contention that we should not consider the provision 
 of the treaty relating to "equality" as intended to be inter- 
 preted literally is untenable: for 
 
 A. Although the treaty does not expressly confer upon 
 the United States sovereign rights for the protection of 
 the territory embracing the Canal, yet 
 A'. The omission of a clause to that effect is easily to be 
 explained: for 
 
 1. The fact that neither party to the treaty enjoyed 
 any title to the region to be traversed by the 
 Canal precluded the insertion of such a clause. 
 
so THE BRIEF 
 
 In this case it is apparent that A is not complete without 
 A', and vice versa. The advantage of the notation hes in 
 the fact that the coordination and the unity of the two 
 statements are both indicated, and at the same time it is 
 possible to subordinate under either or both of the main 
 statements such proof as may be required. This method 
 of notation, however, should be used with discrimination. 
 The tendency of beginners is always to over-use the A- A' 
 typ>e of ordering and to bind together in this compound 
 relation arguments that are merely simple coordinations. 
 The use of " although . . . yet," " whereas . . . yet," etc., 
 will always supply a test showing whether the balanced 
 method is properly selected. 
 
 (6) Statements presented in proof of a contention should 
 he, in turn, supported by proof whenever possible, or estab- 
 lished by the citation of definite authority. 
 
 The failure to observe the j&rst part of this rule results 
 in mere assertiveness, and the unsupported ipse dixit of 
 the brief-maker is not likely to carry conviction. The 
 extent to which the presentation of proof shall be carried 
 must depend on the general character of the argument. In 
 any case, however, the purpose of the brief is defeated 
 when the reader, at the end of a division in the demon- 
 stration, still asks, " But why is this true? " Consequently 
 it is always desirable, when possible, to carry the demon- 
 stration down to the point where the statements become 
 axiomatic in character or may be fairly regarded as ad- 
 mitted matter. The following brief illustrates the case 
 in point: 
 
 I. Experimental vivisection has resulted in practical benefit 
 to mankind: for 
 
 A. It has brought to light many psychological facts: for 
 1. All the senses have been analyzed through experi- 
 ments on living creatures, brute and human: for 
 
THE ARGUMENTATIVE BRIEF SI 
 
 a. According to Leffingwell " It is the only way 
 in which these facts can be ascertained." 
 B. It has proved of great benefit to the medical profes- 
 sion: for 
 
 1. It has discovered many needful remedies for 
 otherwise fatal diseases, such as virus and anti- 
 toxin. 
 
 2. It has revealed to our great physicians the value 
 of the human body. 
 
 This brief is characterized by pervasive looseness of 
 reasoning; it would carry little conviction to one opposed 
 to the cause of vivisection. At the point 1, under B, the 
 reader is likely to feel considerable doubt as to how the dis- 
 covery of virus and anti-toxin has proceeded from the 
 practice in question, — a consideration fundamental to the 
 entire argument. Furthermore, the reader will certainly 
 balk at accepting the vague generalization stated in 2, 
 under the same head; even were it clear what is meant by 
 " the value of the human body," the assertion that its 
 revelation is due to vivisection will need considerable elab- 
 oration. 
 
 The necessity for detailed proof is often met by the cita- 
 tion of authorities, but this is satisfactory and convincing 
 only in so far as it is acceptable to the reader of the brief. 
 Consequently the citation of an authority must be definite 
 both as to the identification of the authority cited and as 
 to the location of the opinion presented in proof. In the 
 brief just quoted, for example, a judicious reader will give 
 little weight to the statement regarding the analysis of the 
 senses through experiments on living creatures unless he 
 has some definite knowledge regarding Leflingwell, and 
 the source of the statement quoted. Who is Leffingwell.'^ 
 Is he an unprejudiced authority? Is he capable of speaking 
 authoritatively on this matter? Why is he alone cited in 
 support of the argument? Where does he make any such 
 assertion as cited in the brief? Unless the reader is satis- 
 
32 THE BRIEF 
 
 iSed on these and similar matters, the citation from LeflSng- 
 well might just as well be omitted altogether and the state- 
 ment regarding the analysis of the senses made on the 
 unsupported authority of the brief -maker. 
 
 An interesting example of the unsatisfactory presenta- 
 tion of authorities is contained in the following extract 
 from a brief regarding the advisability of subsidizing our 
 merchant marine: 
 
 I. The United States possesses all the manufacturing facilities 
 necessary to establish a successful merchant marine: for 
 
 A. The United States can sell plates for steel ships at a 
 lower figure than that at which England must buy 
 them, says an English expert : for 
 
 1. He shows that the United States can make 
 rails at Pittsburg, ship them across to Eng- 
 land, pay railway and ocean freights, and even 
 then undersell the English manufacturer. 
 
 B. Francis Bowles, recently, in the face of close com- 
 petition from the leading shipyards of Great Britain 
 and the Continent, was able to secure to the United 
 States a contract of $22,000,000 for two Argentine 
 battleships. 
 
 n. The United States has the material for providing eflScient 
 seamen to man an efficient merchant marine: for 
 A. A British marine officer has recently spoken favorably 
 of our seafaring material : for 
 
 1. He has said, "There are hordes of men in the 
 United States of the calibre of such men as 
 Peary and those engaged in the 'Frisco and 
 New Bedford whalers." 
 
 2. He has said also, "There must be thousands 
 of sons of Britishers and Scandinavians in 
 America who have the 'call of the sea' in their 
 blood, and who would take to the water like 
 a duck if they had the scope." 
 
 in. The United States has the scientific marine knowledge to 
 handle efficiently her own merchant marine: for 
 
 A. In a recent magazine article the following state- 
 ments are made by an authority on marine matters, 
 . . . etc. 
 
THE ARGUMENTATIVE BRIEF 33 
 
 The unsatisfactory argumentative character of the fore- 
 going is rendered even more clear if one places beside it, by 
 way of contrast, the following extract from a brief assailing 
 the right of the United States to interfere in the affairs of 
 the Congo Free State: 
 
 I. The contention that international law would justify the 
 United States in interfering in order to prevent alleged 
 cruelties in the Congo Free State is not well maintained : for 
 A. That international law would condemn such inter- 
 ference both in theory and in practice will appear 
 from the following considerations: 
 
 1. It would condemn interference in theory: for 
 
 a. Wharton, on page 202 of his International 
 Law, writes, "It is not permissible for one 
 sovereign to address another sovereign on 
 political questions pending in the latter's 
 domains unless invited to do so." 
 
 h. Hengstler, in vol. i of the California Univer- 
 sity Chronicle, writes, "As long as the inde- 
 pendence of states is a principle of interna- 
 tional law, it cannot be perceived how the 
 limits of legal intervention can be extended 
 beyond the scope of the self-interests of the 
 intervening state." 
 
 c. Lawrence's International Law lays down 
 the following principle: "So prone are 
 powerful states to interfere in the affairs 
 of others, and so great are the evils of in- 
 terference, that a doctrine of absolute non- 
 intervention has been put forth as a protest 
 against incessant meddling." 
 
 2. It would condemn interference in practice as 
 maintained by the United States: for 
 
 a. In the case of the Jews in Morocco in 
 1878 this country refrained from interfer- 
 ence on the ground that such action would 
 be improper, as shown in the letter of 
 Secretary of State Evarts to the United 
 States Minister at Morocco. 
 
 b. In the case of the Russian Jews in 1882 the 
 
34 THE BPJEF 
 
 United States again refrained from inter- 
 ference on the same ground, as shown by 
 the letter of Secretary of State Frelinghuy- 
 sen to the United States Minister at St. 
 Petersburg. 
 II. Interference by the United States in the affairs of the 
 Congo Free State would be inexpedient: for 
 
 1. It would be opposed to the traditional policy 
 of the Government: for 
 
 a. Washington in 1797 stated that "it must 
 be unwise for us to implicate ourselves by 
 artificial ties in the vicissitudes of European 
 politics." 
 
 b. Monroe, in his message to Congress in 1823, 
 wrote "Our policy in regard to Europe re- 
 mains the same, which is not to interfere 
 in the internal concerns of any of its 
 powers." 
 
 c. Henry Clay in 1828 said: "The Government 
 of the United States scrupulously refrains 
 from taking part in the internal dissensions 
 of foreign states." 
 
 d. In 1863 Secretary of State Seward main- 
 tained: "Our policy of non-intervention in 
 the internal affairs of sovereign states has 
 become a traditional one, which could not 
 be abandoned without the most urgent oc- 
 casion, amounting to a manifest necessity." 
 
 2. It is opposed to the present policy of the United 
 States: for 
 
 a. With reference to the very question of the 
 Congo Free State, President Cleveland, in 
 1885, made the following statement: "This 
 reserve to give plenipotentiary powers to 
 our delegates at the Berlin Congress was 
 due to the indisposition of this Govern- 
 ment to share in jurisdictional questions of 
 remote foreign territories." 
 
 b. President Roosevelt, through Secretary of 
 State Hay, in defining the grounds upon 
 which this Government became a party to 
 the Hague Convention, states: "Nothing 
 
THE ARGUMENTATIVE BRIEF 35 
 
 contained in the convention shall be so con- 
 strued as to require the United States of 
 America to depart from its traditional pol- 
 icy of not intruding upon, interfering with, 
 or entangling itself in the political ques- 
 tions, or policy, or internal administration 
 of any foreign state." 
 
 (7) One should not cite in support of a contention a state- 
 \ment that is, in reality, no more than a mere repetition of the 
 contention under discussion. 
 
 This rule follows from the preceding as a natural corol- 
 lary : any violation results in adducing evidence that proves 
 nothing; it presents the fallacy of arguing in a circle, 
 without advancing the demonstration of the proposition. 
 A single example will illustrate the principle: 
 
 I. In opportunities for joining a fraternity the man of limited 
 means is at a distinct disadvantage: for 
 
 A. In the selection of candidates, the fraternities must, of 
 necessity, consider the ability of the candidates to 
 meet expenses: for 
 
 1. Outstanding debts, upkeep of chapter-houses, 
 and the like render it necessary that the mem- 
 bers shall be able to contribute their part toward 
 the expenses of the organizations. 
 
 In this argument there is little progress from A to 1. 
 Reduced to their lowest terms, these arguments amount 
 to much the same thing, and it is quite possible to pass 
 from I to 1 without making use of the intermediate step 
 in A. Condensation into two principal statements would 
 improve the logical analysis of the argument. 
 
 Vi (8) Each proposition contained in the brief should con- 
 \ sist of but a single statement. 
 
 This rule follows from the first of the general rules of 
 brief -construction as a corollary, and the reason for it is 
 
36 THE BRIEF 
 
 clear. In case a double proposition be followed by proof, 
 the relation of the proof will not be evident; it may bear on 
 one portion of the compound statement, or it may bear on 
 another; in few cases would the proof apply with equal 
 force to both clauses. An example will make the principle 
 clear: 
 
 I. Douglas in his reply misrepresented Lincoln's position with 
 reference to the Declaration of Independence, and deliber- 
 ately garbled Lincoln's remarks contained in the Spring- 
 field speech: for 
 
 A. He represented Lincoln as maintaining that the Decla- 
 ration of Independence conferred upon the negro ab- 
 solute and complete equality with the white man: for 
 1. Although Lincoln had distinctly limited the 
 
 equality of rights enjoyed by the negro, 
 1'. Yet Douglas quoted him as saying . . . etc. 4 
 
 In this brief the confusion of reasoning is evident. The 
 vn*iter in A, with its succeeding subdivisions, demonstrates 
 Douglas's misrepresentation of Lincoln's attitude with 
 reference to the position of the negro as defined in the 
 Declaration; but it will be noted that because Douglas 
 misrepresented Lincoln he did not necessarily garble one 
 of Lincoln's speeches. Yet in the two final propositions 
 the writer has evidently returned to the second idea con- 
 tained in the original statement. 
 
 Closely allied to this same looseness of phrasing is that 
 in which ambiguity arises from the presence of two pred- 
 icates, one independent and the other dependent, so 
 closely placed one to the other that the reader has diflS- 
 culty in determining to which the proof belongs. An ex- 
 ample of this faulty phrasing appears in the following: 
 
 I. The Democrats maintain that the Filipino should have im- 
 mediate self-government: for 
 A. He is capable of it: for 
 
 1. All men are free and equal and endowed with 
 equal powers. 
 
THE ARGUMENTATIVE BRIEF 37 
 
 In this case the presence of the two italicized verbs 
 arouses some doubt as to whether the following proof is 
 applicable to the one or to the other. In the one case the 
 argument is to prove the statement that the Democrats 
 maintain a certain position, a statement that would prob- 
 ably require no demonstration; in the other case, the ar- 
 gument presents the reason justifying the Democrats in 
 their contention, a far more likely course of reasoning. 
 Were the original statement to avoid the double predica- 
 tion in some such way as " The Filipino, according to the 
 Democrats, should have immediate seK-government," 
 the ambiguity would at once disappear. 
 
 (9) Care should be taken not to introduce into the body of 
 a statement, as an essential part of it, a phrase or clause 
 that should be subordinated as proof. 
 
 (a) 
 I. All these laws were so framed as to depend one upon the 
 other: hence 
 
 A. Being a part of a system of compromises, the Utah and 
 New Mexico Bills cannot be considered as models: for 
 1. Even Judge Douglas himself did not use them 
 as models when he drew up his Nebraska Bill. 
 
 Aside from the faulty coordination at the end of I, which 
 ruins the articulation of the reasoning, the phrase " Being a 
 part of a system of compromises " is, in reality, an argument 
 in proof of the contention that the Utah and New Mexico 
 Bills cannot be considered as models. The phrase should, 
 therefore, be expanded into a complete statement and 
 properly subordinated to the proposition of which it is a 
 proof. The brief, expanded into proper form, would read as 
 follows : 
 
 I. The contention of Douglas to the effect that the Nebraska 
 Bill merely embodies the principles of the Compromise Bill 
 
38 THE BRIEF 
 
 of 1850, of which the Utah and New Mexico Bills are but a 
 part, is not to be maintained : for 
 
 A. The Compromise Bill of 1850 establishes no precedent 
 for bills concerning territorial legislation: for 
 
 1. The system of compromises of which it is com- 
 posed was intended merely to meet the peculiar 
 exigencies of the moment: and 
 
 2. Judge Douglas himself, in framing his Nebraska 
 Act did not use the Utah and New Mexico Bills 
 as models: for . . . etc. 
 
 The following proposition from an undergraduate brief 
 further illustrates the point under consideration: 
 
 The government has made a number of appropriations for the 
 improvement of the Upper Mississippi, but of uncertain and vary- 
 ing amounts, thus adding an element of insecurity to the pres- 
 ent situation. 
 
 The writer of the foregoing has merged into a single 
 proposition both cause and effect, fact and demonstration. 
 The core of the matter appears after the word " thus," 
 and the ordering requires complete reorganization. 
 
 The illustration presented under Rule 8 also exempli- 
 fies the violation of this rule, for the statement that Douglas 
 garbled Lincoln's remarks as contained in the Springfield 
 speech may be regarded as evidence of the first portion of 
 I, that he misrepresented Lincoln's position with reference 
 to the Declaration of Independence. 
 
 \\ (10) Refutation should he so phrased as to present clearly 
 the contention against which it is directed. 
 
 It is always desirable, and often essential, that the 
 maker of a brief distinguish between the constructive 
 arguments whereby he establishes his own contentions, 
 and the destructive arguments whereby he attacks the 
 contentions of his opponent. And in attacking an oppo- 
 nent's position one must present the point at issue clearly 
 
THE ARGUMENTATIVE BRIEF 39 
 
 and fairly. With this end in view, a conventional form for 
 the presentation of refutation has been developed: " The 
 contention that (followed by the issue under discussion) 
 is untenable: f or . . . " etc. In this way the maker of the 
 brief has the opportunity of presenting his opponent's posi- 
 tion as fully and as clearly as need be, and of showing the 
 ground of attack. The following specimen of briefing will 
 illustrate the presentation of both constructive and refu- 
 tatory arguments: 
 
 I. The treaty relations existing between the United States and 
 Great Britain with reference to an Isthmian Canal preclude 
 the United States from making discrimination in tolls be- 
 tween its own ships and those of Great Britain : for 
 
 A. The Clayton-Bulwer Treaty of 1850, by the circum- 
 stances attending its adoption, binds the United States 
 to observe equality between the two countries con- 
 cerned: for 
 
 1. The United States took the initiative in seeking 
 to secure the treaty. 
 
 B. The contention that the United States is relieved of 
 treaty obligations by the fact that matters relating to 
 the coasting-trade are not of international but of 
 peculiar domestic concern is not to be maintained: 
 for 
 
 1. This contention has already been disproved in 
 the case of the Canadian Canal question and the 
 Treaty of Washington in 1871. 
 
 C. The contention that the clause in the treaty regarding 
 equality of tolls is not to be interpreted literally, on 
 the ground that it deprives the United States of the 
 right to defend itself and to protect its own territory, 
 is not to be maintained: for 
 
 1. Great Britain has already admitted the sover- 
 eignty of the United States over the Canal Zone: 
 for 
 
 a. Sir Edward Grey in his note of November 
 
 14, 1912, has specifically so stated: for 
 
 (1) He writes, "After summarizing the 
 
 circumstances, . . . His Majesty's 
 
 Government does not question the 
 
40 THE BRIEF 
 
 title of the United States to exercise 
 belligerent rights for the protection of 
 the Canal." 
 
 The beginner in brief -making is prone to state his ref- 
 utation in the simple negative form, leaving the reader 
 to infer the refutatory character of the proposition. For 
 example, one might thus state B in the foregoing brief: 
 " The United States is not relieved of treaty obligations 
 by the fact that ..." etc. This loose phrasing, however, 
 is faulty in that (1) the maker of the brief must not leave 
 the reader to form his own inferences as to what the brief 
 may perhaps mean, but must make the character of all the 
 propositions clear beyond question; and (2) it encourages a 
 tendency to slight the explicit phrasing of one's opponent's 
 position. The following brief thus violates the proper form 
 of presenting refutation: 
 
 (fl) 
 I. Governor Johnson of California is justified in signing the bill 
 now pending in the State Legislature, excluding the Japanese 
 from holding land within the State: for 
 
 A. The proposed bill is not unprecedented: for 
 
 1. At least three States in the Union have, in the 
 past, enacted laws similar to that now contem- 
 plated in California. 
 
 B. The proposed law violates no treaty rights: for 
 
 1. It reads: "All aliens not entitled to citizenship 
 may acquire real property to the extent of any 
 treaty now existing between the United States 
 and any other Government." 
 
 While the arguments marked A and B might be con- 
 structive arguments advanced by one supporting the action 
 of Governor Johnson, yet those who are familiar with the 
 discussion know that the two points in question contain, 
 in reality, two of the principal contentions advanced by 
 those who assail his position. Consequently the phrasing 
 
THE ARGUMENTATIVE BRIEF 41 
 
 should be changed so as to indicate that the two conten- 
 tions are destructive rather than constructive; thus: 
 
 (&) 
 I. Governor Johnson of CaHfornia is justified in signing the 
 bill now pending in the State Legislature, whereby the Japa- 
 nese are excluded from holding land within the State: for 
 
 A. The contention that the bill in question is unprece- 
 dented is not to be maintained : for 
 
 1. At least three other States have, without protest 
 or objection, passed similar bills (see Governor 
 Johnson's letter to Secretary of State Bryan, 
 May 12, 1912). 
 
 B. The contention that the proposed bill is in violation 
 of the treaty between the United States and Japan 
 is not to be maintained: for 
 
 1. The phraseology of the treaty on the point in 
 question is . . . etc. 
 
 (11) In the Conclusion of a brief it is customary to pre- 
 sent in order the main contentions, prefaced by the word 
 " since,'' and to close with the proposition under discussion; 
 thus : 
 
 Conclusion 
 I. Since the United States possesses the necessary resources 
 
 for successful competition with other nations; and 
 II. Since the United States has sufficient population from 
 which to man an efficient merchant marine; and 
 
 III. Since the United States has sufficient trade in foreign mar- 
 kets to make a merchant marine profitable; and 
 
 IV. Since the United States Navy would be benefited by an 
 increase in the merchant marine: 
 
 Therefore, the United States Government should establish by 
 subsidation a Merchant Marine. 
 
 The various rules for the construction of the brief may 
 be thus presented in tabular form : 
 
 General Rules 
 
 1. All portions of the brief must be expressed in the form 
 of complete sentences. 
 
42 THE BRIEF 
 
 2. The coordination and subordination of the several prop- 
 ositions contained in the brief are indicated by the vary- 
 ing widths of the margins assigned to the respective proposi- 
 tions and by symbols indicating the logical relations. 
 
 3. Each step of subordination should be expressed by a suit- 
 able connective. 
 
 Special Rules 
 
 1. The Main Issues, constituting the fourth principal divi- 
 sion of the argumentative brief, reappear as the principal 
 subdivisions of the Main Argument. 
 
 2. Each subordinated statement should present a clear and 
 definite reason establishing the contention to which it is 
 appended. 
 
 3. The use of "hence," "therefore," or other illative connec- 
 tive at once indicates faulty organization of material. 
 
 4. Double notation should not be prefixed to a statement in 
 a brief. 
 
 5. When coordinated statements in a brief stand in contrast 
 to one another, or in any antithetical relation, the several 
 related propositions constitute, in reality, a single com- 
 pound argument, rather than a succession of equivalent con- 
 tentions. In such cases the relation may be fittingly ex- 
 pressed by the use of the symbols A, A', A", 1, 1', 1", etc. 
 
 6. Statements presented in proof of a contention should be, 
 in turn, supported by proof, whenever possible, or estab- 
 lished by the citation of definite authority. 
 
 7. One should not cite in support of a contention a statement 
 that is, in reality, no more than a mere repetition of the 
 contention under discussion. 
 
 8. Each proposition contained in the brief should consist of 
 but a single statement. 
 
 9. Care should be taken not to introduce into the body of a 
 statement, as an essential part of it, a phrase or clause that 
 should be subordinated as proof. 
 
 10. Refutation should be so phrased as to present clearly the 
 contention against which it is directed. 
 
 11. In the Conclusion of a brief it is customary to present in 
 order the main contentions, prefaced by the word "since," 
 and to close with the proposition under discussion. 
 
II 
 
 A LEGAL BRIEF 
 
 The following ^ is, in part, a brief prepared by Mr. Charles E. 
 Feirich, a member of the class of 1907 in the Chicago-Kent 
 College of Law, in a brief-making contest conducted by the 
 American Law School Review. Out of a large number of briefs sub- 
 mitted by students in various law schools, this was selected as 
 the best, and was awarded first prize, — the judges being Wil- 
 liam T. Spear, Judge of the Supreme Court of Ohio; Joseph D. 
 Moore, Judge of the Supreme Court of Michigan; and Edwin A. 
 Jaggard, Judge of the Supreme Court of Minnesota. In the brief 
 as here presented, only the main subdivisions of II in the Argu- 
 ment are given in full, as the general rules for the fornj and con- 
 tents of a legal brief are sufficiently illustrated in the other 
 portions retained. 
 
 SUPREME COURT OF IOWA 
 
 DECEMBER TERM. 1907 
 
 George C. Smith, 
 Plaintiff-Appellant, 
 vs. 
 
 Arthur B. Russell, 
 Defendant- Appellee. 
 
 No. 365. 
 
 Preliminary Statement 
 This is an appeal by George C. Smith from an order of 
 the District Court of Oregon County, sustaining a de- 
 
 1 From The Brief and the Use of Law Books, by William M. Lile, 
 Hem-y S. Redfield, Eugene Wambaugh, Edson R. Sunderland, Alfred 
 F. Mason, and Roger W. Cooley. By kind permission of the publishers. 
 The West Publishing Company, St. Paul, Minnesota. 
 
44 THE BRIEF 
 
 murrer to the amended petition in an action brought by- 
 said George C. Smith, on a note executed by Arthur B. 
 Russell. 
 
 Statement of Facts 
 
 The agreed facts, so far as they are material to this ap- 
 peal, are as follows: On December 21, 1894, the defendant, 
 Arthur B. Russell, in part payment of a debt long past 
 due, executed and delivered to George C. Smith his note 
 for $300, due in two years from the date thereof. The note 
 was payable " to the order of " George C. Smith. Smith 
 lost the note, and it was found by R. N. Jackson, who, 
 however, refused to give it up on demand. On May 15, 
 1906, Smith brought his action to recover the amount 
 due on the note, and, as an excuse for his inability to pro- 
 duce the note, alleged in his petition that it was " wrong- 
 fully held by a third person." (Abs. p. 2.) The defendant 
 demurred. (Abs. p. 3.) The demurrer was sustained, and 
 on October 10, 1906, judgment was entered on the de- 
 murrer in favor of defendant Russell. (Abs. p. 4.) 
 
 From the judgment so entered, the plaintiff, on Novem- 
 ber 10, 1906, perfected his appeal to this court. (Abs. 
 p. 5.) On March 28, 1907, this court rendered its decision, 
 approving the ruling of the district court sustaining the 
 demurrer, but remanding the case for new trial, with leave 
 to the plaintiff to amend his petition. (Abs. p. 6.) The 
 ten years prescribed by the Statute of Limitations, within 
 which an action could be brought on the note, expired 
 December 21, 1906. On April 2, 1907, plaintiff filed an 
 amended petition, setting forth the facts in connection with 
 the loss of the note, the demand therefor on Jackson, and 
 Jackson's refusal to surrender it, and offered to indemnify 
 the defendant Russell against any claim on account of the 
 note in the hands of another person. (Abs. p. 7.) Defend- 
 ant demurred to the amended petition on the ground that 
 
A LEGAL BRIEF 45 
 
 the debt was barred by the Statute of Limitations. (Abs. 
 p. 8.) The demurrer being sustained, the plaintiff ap- 
 peals. 
 
 Specifications of Error 
 
 The court erred in sustaining the demurrer to plaintiff's 
 amended petition. 
 
 Points 
 
 I. The defense of the Statute of Limitations must be 
 specially pleaded, and cannot be availed of by demurrer, 
 in an action at law, even though it appears on the face of 
 the petition that the limitation prescribed by the statute 
 has expired. 
 
 II. Where an amendment does not set up a new cause 
 of action, or bring in any new parties, the running of the 
 Statute of Limitations is arrested at the date of filing the 
 original pleadings. 
 
 III. The Statute of Limitations is suspended during the 
 pendency of an appeal. 
 
 Argument 
 
 I 
 
 The defense of the Statute of Limitations must be specially 
 pleaded, and cannot be availed of by demurrer in an action at 
 law, even though it appears on the face of the declaration that 
 the limitation prescribed by the Statute of Limitations has 
 expired. 
 
 The defense of the Statute of Limitations was permitted 
 by the court below to be interposed by a demurrer filed by 
 the defendant, which demurrer was sustained. This was 
 error, because in an action at law the Statute of Limitations 
 must be pleaded specially if the defendant desires to avail 
 himself of that defense. 
 
46 THE BRIEF 
 
 "In actions at law, as contradistinguished from actions 
 under the code, it has always been the established rule that 
 if the defendant desires to avail himself of the Statute of 
 Limitations as a bar to the demand in suit, he must plead 
 the defense. He cannot demur to the declaration, even where 
 it appears on its face that the limitation prescribed by the 
 statute has expired, for the principal reason that thereby 
 the plaintiff would be deprived of the opportunity of reply- 
 ing that the case was within some of the exceptions to the 
 statute, or any other matter which would prevent the bar 
 from attaching." 
 
 13 Enc. PL & Pr. 200, citing 
 
 Condon v. Enger, 113 Ala. 233, 21 South. 227; 
 
 Huss V. Central R., etc., Co., 66 Ala. 472; 
 
 Smith V. Richmond, 19 Cal. 476; 
 
 Bowman v. Mallory, 14 Ind. 424; 
 
 Matlock V. Todd, 25 Ind. 128; 
 
 Sleeth V. Murphy, 1 Morris (Iowa) 321, 41 Am. Dec. 
 
 232; 
 Zane v. Zane, 5 Kan. 134; 
 Hines v. Potts, 56 Miss. 352; 
 McNair v, Lott, 25 Mo. 182; 
 Allen i). Word, 6 Humph. (Tenn.) 284; 
 Chicago City Ry. Co. v. Cooney, 196 111. 466, 63 N.E. 
 
 1029; 
 Gunton v. Hughes, 181 111. 132, 54 N.E. 895; 
 Thomas v. Morgan, 96 111. App. 629; 
 Wall, Adm'x., v. C. & O. R.R. Co., 200 HI. 66, 65 N.E. 
 
 632; 
 Renackowsky v. Water Com'rs., 122 Mich. 613, 81 N.W. 
 
 581; 
 Norton v. Kumpe, 121 Ala. 446, 25 South. 841; 
 Huntville v. Ewing, 116 Ala. 576, 22 South. 984; 
 Barclay v. Barclay, 206 Pa. St. 307, 55 Atl. 985. 
 
 A few extracts are made from the opinions of the courts 
 in some of the cases above cited, which will suflB.ce to show 
 the rule of law on this point. 
 
A LEGAL BRIEF 47 
 
 In Wall, Adm'x., v. C. & O. R.R. Co., 200 111. 66, 65 
 N.E. 632, the court said: 
 
 **From the face of the declaration it appears that more 
 than two years elapsed from the time of the injury to the 
 bringing of the suit, and it is insisted by defendant in error 
 that therefore the action could not be sustained, and hence 
 the defense of the Statute of Limitations could be made by 
 demurrer. Mainly on this ground it is insisted that the trial 
 court properly sustained the demurrer. In equity, where it ap- 
 pears on the face of the bill that the cause of action is barred 
 by laches or the Statute of Limitations, the defect may be 
 reached by demurrer to the bill. But the rule is otherwise 
 in common law pleading. The defendant cannot demur to 
 a declaration even where it appears on its face that the 
 limitation prescribed by the statute has expired, because 
 plaintiff would be thus deprived of the opportunity of reply- 
 ing and pleading any matter which would prevent the bar 
 from attaching. The defendant must plead the statute if 
 he wishes to avail himself of it." 
 
 In Thomas v. Morgan, 96 111. App. 629, the Appellate 
 Court of Illinois discusses this question at length, citing 
 many authorities from various jurisdictions. The court 
 remanded the case for the error of the trial court in sus- 
 taining a demurrer to the declaration based on the Statute 
 of Limitations, although the declaration showed on its 
 face that the time allowed by the Statute of Limitations 
 had expired. 
 
 In Hines v. Potts, 5Q Miss. 346, 362, the court said: 
 
 "It is urged that this case is barred by the Statute of 
 Limitations. We cannot express an opinion as to this, be- 
 cause the bar of the Statute of Limitations cannot be availed 
 of by a demurrer to the declaration, even though the cause 
 of action set forth may appear to be barred. The Statute of 
 Limitations must be pleaded, so that the plaintiff may, if 
 he can, avoid the bar by replying facts which prevent it.'* 
 
48 THE BRIEF 
 
 In Allen v. Word, 6 Humph. (Tenn.) 284, the court said: 
 
 "The Statute of Limitations in a suit at law must be 
 pleaded, and this whether the cause of action as stated ap- 
 pears to be barred or not; because the plaintiff may reply 
 and prove a subsequent promise to pay the debt." 
 
 In Sleeth v. Murphy, 1 Morris (Iowa) 321 (2d edition 
 or reprint, vol. 1, p. 422), 41 Am. Dec. 232, in a Per Curiam 
 opinion it is said: 
 
 "We feel controlled in this matter by the decisions of 
 other courts on like statutes. It has been of late years in- 
 variably held that a Statute of Limitations must be pleaded; 
 that a demurrer will not lie, although the lapse of a sufficient 
 time between the accruing of the action and the commence- 
 ment of the suit should appear from the face of the declara- 
 tion." 
 
 In Matlock v. Todd, 25 Ind. 128, 133, speaking of the 
 Statute of Limitations, the court said: 
 
 "But we do not decide the question, for the reason that 
 it is not properly before us. It is raised on a demurrer to the 
 complaint, and it has been held by this court, that in suits 
 at law, to make the statute availing, it should be pleaded." 
 
 Extracts might be made from the opinions in the other 
 cases cited to the same effect, but the foregoing clearly 
 show that the rule is based on reason and appears to be 
 invariably enforced by courts of the last resort. If the 
 defendant in the case at bar desired to avail himself of 
 this defense, he should have pleaded it in bar instead of 
 demurring to the declaration, for by doing the former the 
 plaintiff would have had the right to plead any matter 
 which would take the case out of the Statute of Limitations. 
 
 It is, therefore, urged that the decision of the trial 
 court should be reversed, because of the error of the trial 
 court in allowing the defense of the Statute of Limitations 
 to be raised by a demurrer. 
 
A LEGAL BRIEF 49 
 
 II 
 
 Where an amendment does not set up a new cause of 
 action, or bring in any new parties, the running of the Statute 
 of Limitations is arrested at the date of filing the original 
 pleading. 
 
 (A) An appellate court has power, in its discretion, to 
 direct the trial court to allow an amendment to a declaration.^ 
 
 (B) An appellate court will, in a meritorious case, allow 
 an amendment to the declaration for the express purpose of 
 saving the cause of action from the bar of the Statute of 
 Limitations.^ 
 
 (C) The amendment introduced no new cause of action; 
 hence it relates back to the time of filing the original petition, 
 and the running of the Statute of Limitations was arrested 
 at that date.^ 
 
 (D) The fact that the Supreme Court on the previous appeal 
 sustained the finding of the lower court does not affect the 
 question, because the Supreme Court directed the trial court 
 to allow an amendment to be filed, which was done.^ 
 
 m 
 
 The Statute of Limitations is suspended during the pend- 
 ency of an appeal. 
 
 While many, if not all, of the States in the Union have 
 passed statutes giving the party who has his judgment 
 reversed in an appellate court a specified time within 
 which to commence a new action, so as to avoid the bar 
 of the general Statute of Limitations, it appears from the 
 following extracts from decisions of the supreme courts of 
 various States, that the general rule is that the Statute 
 of Limitations is suspended during the pendency of an 
 appeal from the judgment of the trial court: 
 
 ^ The extended citations and proof of these contentions, presented 
 in the original brief, are here omitted for considerations of space. 
 
50 THE BRIEF 
 
 In Kirsch v. Kirsch, 113 Cal. 56, 45 Pac. 164, an action 
 to recover the possession of real property, the court said: 
 
 "The judgment entered in March, 1888, was appealed 
 from by Mrs. Kirsch. In 1890, less than three years before 
 the application for the order here appealed from, that 
 judgment became final by affirmance in this court. The 
 action was then pending until June, 1890, and, while it 
 was pending, she could not acquire title by adverse posses- 
 sion, since, during the pendency of the appeal, all rights 
 under the judgment were suspended." 
 
 In Fields v. Austin (Tex. Civ. App.), 30 S.W. 386, an 
 action by the guardian of minors to have land of their 
 deceased father set aside to them, the trial court, in its 
 findings of law, which were approved by the Court of 
 Civil Appeals of Texas, said: 
 
 "I hold that appeal from the judgment of the County 
 Court suspended the right of plaintiff to recover possession 
 of the land until the case was reversed by the judgment 
 of the Supreme Court, and that limitation had not begun 
 to run until the rendition of the judgment of the Supreme 
 Court." 
 
 In Clark v. Bay Circuit Judge, 62 Mich. 355, 28 N.W. 
 894, an application for a writ of mandamus recalling the 
 execution on a judgment rendered in an action of eject- 
 ment, the court said: 
 
 "The question now arises as to when the one-year limit 
 prescribed by the statute begins to run. The relator claims 
 it commenced at the date of the entry of the judgment, 
 April 15, 1884, while the plaintiffs insist that the time was 
 held in abeyance while the cause was removed to and pend- 
 ing in this court, and until the judgment of this court af- 
 firming the judgment below, which was of date April 15, 
 1885. It seems to me that the judgment intended by the 
 statute is the final judgment in this case until April 15, 
 1885. ... I think the time in this case should run from the 
 fifteenth of April, 1885." 
 
A LEGAL BRIEF 51 
 
 In Miller v. Gist, 91 Tex. 335, 43 S.W. 263, it was held 
 that during the time of an appeal the Statute of Limita- 
 tions is suspended but not vacated. 
 
 See also: 
 
 Nix V. Draughton, 54 Ark. 340, 15 S.W. 893; 
 
 Hesters v. Coats, 32 Ga. 448; 
 
 Williams v. Banks, 19 Md. 22; 
 
 Chouteau v. Rowse, 90 Mo. 191, 2 S.W. 209; 
 
 Martel v. Somers, 26 Tex. 551. 
 
 This rule is based upon the soundest reason. It is ele- 
 mentary that when the Statute of Limitations has once 
 commenced to run it will not ordinarily be stopped, except 
 by the bringing of a suit in a court of competent jurisdic- 
 tion. But when this suit is brought, what argument can be 
 advanced for holding the Statute of Limitations in abey- 
 ance, during the trial of the case in the lower court, and then 
 allowing it to run on again during the time the case is under 
 consideration by the Appellate Court .^ Yet this would be the 
 effect of holding that this case is barred by the Statute of 
 Limitations. The plaintiff in this case originally had six 
 years within which to bring his action on the promissory 
 note, which six years expired September 4, 1906. The first 
 petition by plaintiff's attorney was filed May 5, 1906, about 
 four months before the time allowed by the Statute of 
 Limitations expired. The decision of this court on the first 
 appeal was rendered October 3, 1906. The filing of suit by 
 plaintiff on May 5, 1906, certainly stopped the running 
 of the Statute of Limitations. The case was then pending 
 on trial and appeal from May 5, 1906, to October 3, 1906, 
 or nearly six months. Now, if the Statute of Limitations 
 is suspended during the pendency of an appeal, as the fore- 
 going cases unite in holding, these six months during which 
 the case was pending on appeal must be excluded in com- 
 puting the time during which the Statute of Limitations 
 actually did run. Since, therefore, the plaintijff had about 
 
5£ THE BRIEF 
 
 four months before his claim would be barred by the Stat- 
 ute of Limitations, when he filed his original petition, and 
 the six months immediately following were consumed by 
 the appeal of the case, it follows clearly that when the 
 judgment of the Supreme Court was rendered, October 3, 
 1906, he still had about four months within which to sue, 
 even if no amendment or new trial had been granted him, 
 for the Statute of Limitations was suspended during the 
 time the appeal was pending. In other words, so far as the 
 Statute of Limitations is concerned, if plaintiff filed his 
 suit within the time allowed by the statute, and an appeal 
 was taken from the judgment of the trial court, he was 
 entitled to be placed in statu quo after the decision of the 
 Supreme Court, because the running of the statute is sus- 
 pended during the time occupied by appellate proceed- 
 ings. And this is indeed a just, as well as a necessary, 
 rule. Very few cases are appealed which would not be 
 barred by the Statute of Limitations in the event of a re- 
 versal by the Supreme Court, if the decision of the lower 
 court in the case at bar be followed. A plaintiff might have 
 an eminently just claim, but, by reason of an erroneous 
 decision of the trial court, he might easily be deprived of it 
 altogether, as there would be absolutely no advantage to 
 be gained by appealing the case to a higher court, where 
 justice might be done, because, even if such higher court 
 decided in his favor, when he reentered the trial court he 
 would find his claim barred by the Statute of Limitations. 
 Thus, instead of the decision of the Supreme Court be- 
 ing superior to that of the trial court, the order is re- 
 versed and for all practical purposes the decision of the trial 
 court is final, inasmuch as from the date of that decision 
 the Statute of Limitations would again commence to run 
 and would continue to nm, notwithstanding the fact that 
 an appeal was taken to the Supreme Court. But it is 
 quite unnecessary to go further to show what great hard- 
 
A LEGAL BRIEF 53 
 
 ship and confusion would result from so obviously wrong 
 doctrine. Immediately upon the decision of the Supreme 
 Court being handed down in this case, plaintiff, in accord- 
 ance with that decision, filed an amendment to his petition 
 and began a new trial, although he really had about four 
 months still remaining before his cause of action would 
 have been barred by the Statute of Limitations. It is, 
 therefore, earnestly contended that the lower court was in 
 error in holding that the plaintiff's cause of action was 
 barred, and it is believed that this court will not do other- 
 wise than to reverse the judgment of the lower court and 
 remand the case with directions. 
 
 Conclusion 
 
 In conclusion, the attention of the court is called to the 
 three separate grounds hereinbefore laid down, any one 
 of which, it is believed, will be sufficient to secure a re- 
 versal of the decision of the lower court. In brief, these 
 grounds are: 
 
 I. The decision of the lower court should be reversed, 
 because it was error to allow the defense of the Statute of 
 Limitations to be raised by demurrer, the rule of law being 
 that that defense must be specially pleaded if a party 
 desires to avail himself of it. 
 
 II. The decision of the lower court should be reversed, 
 because the amendment filed to the original petition did 
 not set up a new cause of action, and the rule of law in 
 such an amendment is that the running of the Statute 
 of Limitations is arrested at the date of filing the original 
 pleading. 
 
 III. The decision of the lower court should be reversed, 
 because, at the date of taking an appeal from the first de- 
 cision of the trial court in this case, holding that plaintiff's 
 petition stated no cause of action, plaintiff still had about 
 
54 THE BRIEF 
 
 four fiionths, so far as the Statute of Limitations was con- 
 cerned, within which to bring a new action; and the law is 
 that the running of the Statute of Limitations is suspended 
 during the pendency of an appeal. Therefore the four 
 months above mentioned still remained to plaintiff within 
 which to bring a suit, after the decision of the Supreme 
 Court, sustaining the holding of the court below. 
 
 In addition to these grounds, the attention of the court 
 is called to the proposition that if an appellate court decides 
 that plaintiff's original petition states no cause of action, 
 but, believing that plaintiff may have a meritorious cause 
 of action, gives plaintiff the right to amend his petition 
 and a new trial, such appellate court will not subsequently 
 sustain a ruling of the lower court that the amended 
 petition is barred by the Statute of Limitations, where the 
 original petition was not barred, for to do so would be to 
 deprive of efficacy its own previous ruling. On the previous 
 appeal of this case, the Supreme Court gave plaintiff the 
 right to amend his petition and a new trial. Appellee is 
 now before the bar of this court, asking that it render 
 void and of no effect its own previous ruling in the case. It 
 seems reasonable to assume that plaintiff was given the 
 right to amend his petition in order to avoid the necessity 
 of bringing a new suit. If this had not been intended, the 
 court would undoubtedly have stopped when it affirmed 
 the finding of the lower court, and plaintiff would have 
 been compelled to seek his remedy as best he could, pos- 
 sibly by a new suit. Instead of doing this, however, the 
 Supreme Court went further and granted plaintiff the right 
 to amend his petition and a new trial. When this right was 
 granted by the Supreme Court it was obligatory upon the 
 court below to see that it was not defeated. Both the 
 letter and the spirit of the decision of the Supreme Court 
 were disregarded by the trial court in holding that plaintiff's 
 cause of action was barred by the Statute of Limitations. 
 
A LEGAL BRIEF 55 
 
 Plaintiff was not given a new trial, but was thrown* out of 
 the lower court on the ground that his amended petition 
 was barred by the Statute of Limitations. This, in effect, 
 deprived him of the right to amend his petition, for, if 
 his amendment had been properly allowed, it would have 
 dated back to the commencement of the original suit, 
 which was brought within the time prescribed by the 
 Statute. If the cause of action was barred by the Statute 
 of Limitations when the Supreme Court directed that 
 plaintiff have another trial, the question may be asked: 
 " Why, then, did not the Supreme Court simply affirm 
 the judgment for the defendant? " Surely no object of 
 justice could be furthered by having plaintiff amend his 
 petition and begin a second suit, if his cause of action was 
 already barred by the Statute of Limitations. In short, 
 since the Supreme Court directed that plaintiff have the 
 right to amend his petition and a new trial, it will see that 
 such mandate is carried out by the lower court. The 
 Supreme Court will not sustain any holding of the lower 
 court by which justice is defeated or its order to the lower 
 court is avoided or altogether disobeyed. To do so would 
 be to relinquish its own authority in favor of the lower 
 court. Plaintiff, immediately upon ascertaining the de- 
 cision of the Supreme Court, amended his petition and 
 began a second trial, and, under these circumstances, he 
 is entitled to have a trial upon the merits of his cause of 
 action. 
 
 It may be that defendant prefers to have this case de- 
 cided upon some theory which prevents the real merits of 
 the case from being considered; but this is not at all in 
 accord with the tendency of great modern jurists, who use 
 every endeavor to see that justice is done upon the merits 
 of each individual case, and that no one may lose a right- 
 eous cause of action through a mere inadvertence, not in 
 any way affecting the substantial justice of the case. In 
 
56 THE BRIEF 
 
 the language of Circuit Judge Caldwell, in McDonald v. 
 State of Nebraska, supra: 
 
 "There are in the history of the jurisprudence of every 
 country certain epochs which mark the beginning of distinct 
 trains of legal ideas and judicial conceptions of justice. There 
 was a time in England and in this country when the funda- 
 mental principles of right and justice, which courts were 
 created to uphold and enforce, were esteemed of minor im- 
 portance, compared to the quibbles, refinements, and tech- 
 nicalities of special pleading. In that period, the great fun- 
 damentals of the law seemed little, aiid the trifling things 
 great. The courts were not concerned with the merits of a 
 case, but with the mode of starting it. And they adopted 
 so many subtile, artificial, and technical rules governing the 
 statement of actions and defenses — for the entire system 
 of special pleading was built up by the judges without the 
 sanction of any written law — that in many cases the whole 
 contention was whether these rules had been observed, and 
 the merits of the case were never reached, and frequently 
 never thought of. Happily for mankind, and for the law 
 itself, that epoch is past in England and in this country, 
 and we now have an epoch in which substance is more con- 
 sidered than form, in which the justice and right of the case 
 determines its decision, and not some technical error or 
 mistake in the pleadings. In England to-day the amend- 
 ment complained of in this case would be allowed quite as 
 a matter of course, and the suggestion that defendant had 
 gained some advantage by the mistake would not be enter- 
 tained for a moment. There, as here, every error or mistake 
 in the pleadings which does not afiFect the substantial rights 
 of the adverse party may be cured by amendment; and 
 what is meant by substantial right is a right going to the 
 actual merits of the case. Such right is not acquired by a 
 mistake or error in pleadings which has not misled the other 
 party to his prejudice. And the prejudice must be actual 
 and irreparable, and not merely theoretical. At this day, the 
 party who seeks to profit by an error or mistake in pleading 
 must be able to invoke the principle upon which the law 
 of estoppel is founded. And the emotion of surprise, once 
 so assiduously cultivated by lawyers, has lost its virtue. 
 
A LEGAL BRIEF 57 
 
 Extreme sensitiveness to that emotion no longer avails to 
 turn a suitor out of court, or to delay justice." 
 
 It is, therefore, most earnestly urged by counsel for 
 appellant that in the light of the decisions above cited, 
 and the manifest error of the lower court, both in allowing 
 the defense to be set up by demurrer, and in holding that 
 the cause of action was barred by the Statute of Limita- 
 tions, this court will reverse the case with such directions 
 as justice and the law may require, and give the appellant 
 the benefit of a trial upon the real merits of the case. 
 Respectfully submitted, 
 
 Charles E. Feirich, 
 
 Attorney for Appellant. 
 
Ill 
 
 AN ARGUMENTATIVE BRIEF 
 
 WILLIAMS COLLEGE 
 
 Brief of an Argument on 
 
 THE SOLUTION OF THE LIQUOR PROBLEM 
 
 WALTER MILLS HINKLE,'14i 
 
 June 10, 191i 
 
 ^eliminary Introduction 
 
 This is a brief of an argument supporting the proposi- 
 tion thatlthe elimination of private profit will afford the 
 best solution of the liquor problem. 
 
 Main Introduction 
 
 I. The Origin of the Question : The liquor question is just 
 now exciting great interest throughout the United 
 States: for 
 
 A. At present 46,000,000 people are living in 
 prohibition territory. (U. S. B.A. Yearbook,^ 
 1913; p. 249.) 
 
 B. A constitutional amendment to prohibit, 
 throughout the United States, the manufac- 
 ture, sale, and distribution of alcoholic bev- 
 erages has been recently introduced into Con- 
 gress, and is being agitated throughout the 
 country. (N. Y. Tribune, June 10, 1914; p. 1.) 
 
 * By the kind permission of Mr. W. M. Hinkle. 
 
 * U.S. Barkeepers' Association Yearbook. 
 
AN ARGUMENTATIVE BRIEF 59 
 
 C. At every election in those States in which there 
 are local option laws there is a bitter fight in 
 each district between the supporters of pro- 
 hibition (no license; " Dry's ") and the op' 
 ponents of prohibition (license; " Wet's "). 
 
 D. Between 1907 and 1914 a " temperance wave *' 
 essentially similar to that of 1850-1860, has 
 swept over the country. 
 
 II. The History of the Question: Since colonial days 
 there have been various attempts to solve the 
 liquor problem: e.g., 
 
 A. From 1635 to 1770 various Colonies passed 
 laws to prevent the sale of distilled spirits. 
 ( Textbook of True Temperance, 1911; pp. 38- 
 40.) 
 
 B. From 1846 to 1860 a great " temperance 
 wave " passed over the country v and during 
 that period fourteen States adopted pro- 
 hibition. (Joseph Debar, Prohibition, Its Re- 
 lation to Good Government; pp. 7-17.) 
 
 C. The following organizations have been founded 
 for the purpose of combating the liquor prob- 
 lem: viz.: 
 
 The Woman's Christian Temperance 
 
 Union (1874); 
 The National Temperance Society 
 
 (1865); 
 The Church Temperance Society (1881) ; 
 The Anti-Saloon League (1895) ; 
 The Catholic Total Abstinence Union; 
 The Intercollegiate Prohibition Associa- 
 tion; 
 The National Prohibition Party. 
 
60 THE BRIEF \ 
 
 III. The Definition of Terms : For the purposes of the 
 ensuing discussion the terms are hmited and the 
 question restricted as follows: 
 
 A. The term " elimination of private profit " is 
 taken to mean that, to all intents and pur- 
 poses, the government, through suitable agen- 
 cies, shall take control of the liquor traflSc. 
 
 B. This control of the liquor traffic shall be limited 
 to the control of the retail distribution of 
 liquor. 
 
 C. The term "government," as here used, is in- 
 terpreted to indicate the municipality, incor- 
 porated town or township, county, or other 
 
 ' governmental xmit by which licenses are issued 
 under the present laws. 
 
 D. The restatement of the question will, then, 
 read: The control of the retail distribution of 
 liquors by the municipality, county, ot^piher 
 governmental unit by' which licens^^re isstLed 
 under tM present laws ajffhrds the best solution 
 of the liquor problem. 
 
 IV. Waived and admitted matter : 
 
 A. At the present time (1914) there are ten 
 States under the system of prohibition ; twenty- 
 three under local option and license laws; and 
 fifteen under license laws but without local 
 option. (World Almanac, 1914; p. 248.) 
 
 B. In the territory of the United States where 
 there is no prohibition, liquor can be sold 
 only by a license granted under state law by 
 the county, municipality, incorporated town 
 or township. (World Almanac : as above.) 
 
 C. The number of licenses that can be issued in 
 proportion to the population is determined 
 
AN ARGUMENTATIVE BRIEF d 
 
 61 
 
 D. 
 
 absolutely by the State, which has full author- 
 ity over the liquor traffic. {World Almanac : 
 as above.) 
 
 Licenses are taxed in every State that per- 
 mits their issue, the tax varying from $100 
 to $1500. (World Almanac : as above.) 
 
 V. Clash of Opinion: 
 
 A. None of the methods here- 
 tofore advocated have been . 
 adequate to solve the liquor 
 problem: for 
 
 1. Prohibition has failed 
 to solve it. 
 
 2. Local option has failed 
 to solve it. 
 
 3. The license system 
 with regulation has 
 failed to solve it. 
 
 B. The methods heretofore 
 used in the attempt to solve 
 the liquor problem are 
 bound in the future to re- 
 peat their failures of the 
 past. 
 
 C. The solution offered by the 
 affirmative will furnish a 
 fundamentally sound and 
 intelligent basis for dealing 
 with the liquor problem : for 
 
 1. Governmental au- 
 thorities will be able to 
 take care of a definite 
 and real social need, 
 without that need's 
 being debauched by 
 greed of gain. 
 
 B. 
 
 The methods of handling 
 the liquor problem, hereto- 
 fore advocated, have al- 
 ready partially solved the 
 problem: for 
 
 1. Prohibition has been 
 extended over many 
 States. 
 
 2. Local option laws are 
 in successful operation 
 in ma,ny States. 
 
 3. In license States strict 
 laws regulate the sale 
 and distribution of 
 liquor. 
 
 The methods heretofore 
 used will tend to advance 
 even farther the solution 
 of the liquor problem, as 
 they are more and more 
 widely extended. 
 
 The solution offered by the 
 affirmative is inadequate 
 to deal with the liquor 
 problem: for 
 
 1. The government can- 
 not supply a social 
 need as well as can 
 private enterprise. 
 
62 THE BRIEF 
 
 2. Direct governmental 2. Governmentafl con- 
 control of the distri- trol means increased 
 bution of liquor will opportunity for graft, 
 be of great advan- 
 tage to the commu- 
 nity. 
 
 3. The solution offered 3. The solution offered 
 by the affirmative is by the affirmative is 
 eminently practical. impractical and inex- 
 pedient. 
 
 ^ The Issues 
 
 I. Are the- methods heretofore advocated adequate 
 
 to solve the Hquor problem? 
 II. Will these same methods avail to solve the prob- 
 lem in the future? 
 III. Is the solution offered by the affirmative adequate 
 to solve the liquor problem? 
 
 The Main Argument 
 
 \ I. None of the methods heretofore advocated have 
 
 been adequate to solve the liquor problem: for 
 A<A. Prohibition has utterly failed to accomplish 
 this end: for 
 
 1. Its gains have proved fitful and erratic: 
 for 
 
 a. Of the fourteen States (Connecti- 
 cut, Delaware, Illinois, Indiana, 
 Maine, Maryland, Massachusetts, 
 Michigan, Nebraska, New Hamp- 
 shire, New York, Ohio, Rhode 
 Island, Vermont) that adopted pro- 
 hibition during the ten years fol- 
 lowing 1860, all save one (Maine) 
 have given it up. (Joseph Debar: 
 Prohibition, Its Relation to Good 
 Government; pp. 8-15.) 
 
 V 
 
AN ARGUMENTATIVE BRIEF 63 
 
 h. Three States (Alabama, Iowa, 
 South Dakota) that have adopted 
 prohibition since the sixth decade 
 of the nineteenth century have 
 given it up. {Id.) 
 c. Of the ten States that at present 
 (1914) have prohibition, seven (Ar- 
 kansas, Georgia, Mississippi, North 
 Carohna, Oklahoma, Tennessee, 
 West Virginia) have adopted it 
 since 1907; two (Kansas and North 
 Dakota) adopted it during the 80's; 
 and only one (Maine) remains of 
 the original fourteen that adopted 
 it during the " temperance wave " 
 of 1860-1870. {World Almanac, 
 1914; p. 248, and Textbook of True 
 Temperance, 1911; pp. 68-69.) 
 2. Where prohibition has been embodied 
 in law it has failed to prohibit: for 
 a. It has failed in Maine: for 
 
 (1) In spite of prohibition, Port- 
 land has one saloon per 269 
 inhabitants; Augusta, one 
 per 170; Gardiner, one per 
 274; Rockland, one per 171; 
 Bangor, one per 100. (M. N. 
 Clement, ex-Excise Commis- 
 sioner of New York, U.S.B.A. 
 Yearbook, 1911; p. 172.) 
 
 (2) In spite of prohibition, Port- 
 land shows one arrest per 24 
 inhabitants; Augusta, one 
 per 110; Rockland, one per 
 21; Bangor, one per 18. 
 
64 THE BRIEF 
 
 (Textbook of True Temper^ 
 ance; p. 126.) 
 (3) The prohibition law is sub- 
 ject to constant violation 
 with resulting evil conse- 
 quences. (Major Holman F. 
 Day, The Muddle in Maine, 
 Harper's Weekly, both quoted 
 in U.S.B.A. Yearbook, 1911, 
 pp. 242-249; Textbook of True 
 Temperance; pp. 106-108.) 
 b. Prohibition has failed in the South- 
 ern States: for 
 
 (1) In Tennessee the law has 
 proved a farce: for 
 
 (a) In the cities of Ten- 
 nessee (Chattanooga, 
 Memphis, Nashville) 
 liquor can be readily 
 obtained from " near- 
 beer " saloons, " social 
 clubs " formed for that 
 particular purpose, etc. 
 (R. E. Pritchard, Fail- 
 ure of Prohibition in 
 the South, in Harper's 
 Weekly, quoted in 
 U.S.B.A, Yearbook, 
 1911; pp. 199-206.) 
 (6) Indictments in this 
 State for violation of 
 the law amount to 
 nothing, the convicted 
 escaping with light 
 fines which are more 
 
AN ARGUMENTATIVE BRIEF 65 
 
 than recompensed by 
 their enormous profits. 
 
 (Id.) 
 
 (2) In Georgia the law has re- 
 mained unenforced: for 
 
 (a) In the cities of Greor- 
 gia (Atlanta, Mobile, 
 Montgomery, and Sa- 
 vannah) liquor can be 
 freely obtained from 
 " near-beer " saloons, 
 " social clubs," and 
 small druggists 
 C*boot-leggers"). 
 (R. E. Pritchard, as 
 above; John Kirk, 
 Encouraging the 
 Moonshiner, in Har- 
 per*s Weekly, quoted 
 in U.S.B.A. Year- 
 book, 1911; pp. 217- 
 220.) 
 
 (6) The number of licenses 
 issued to druggists in 
 Atlanta for the sale of 
 alcohol since Georgia 
 adopted prohibition 
 (1907) has increased 
 from 100 to 500. (N. 
 W. Johnson, U.S. In- 
 ternal Revenue Dep't., 
 Textbook of True Tem- 
 perance; p. 114.) 
 
 (3) Prohibition has similarly 
 failed in Mississippi and 
 
66 THE BRIEF 
 
 North Carolina. (See R. E. 
 Pritchard and John Kirk as 
 quoted above.) 
 
 3. The effect of prohibition has been to 
 increase in prohibition territory the use 
 of harmful substitutes for alcohol, such 
 as cocaine and opium: for 
 
 a. The use of opium in Maine has 
 . steadily increased, particularly in 
 
 the rural districts. (Dr. Hamilton 
 E. Wright, Textbook of True Tem- 
 perance; pp. 115-116.) 
 
 b. The use of opium and cocaine in 
 the South has been steadily on the 
 increase of late years, especially in 
 " dry " territory. (Hugh C. Weir, 
 The Opium Peril in America, in 
 Putnam^ s Magazine, quoted in Jo- 
 seph Debar's Prohibition, Its Re- 
 lation to Good Government; pp. 102- 
 105; also the Currier Commission, 
 Judge Harris Dickson, of Vicksburg, 
 Miss., and Bishop C.'H. Brent, all 
 quoted in Textbook of True Tem- 
 perance, 1911; pp. 115-116.) 
 
 4. In spite of the fact that 46,000,000 peo- 
 ple are now living in " dry " territory, the 
 consumption of alcoholic liquors has in- 
 creased in the United States from 6.43 
 gallons per capita in 1850 to 22.77 gallons 
 per capita in 1911. (M. N. Clement, N. Y. 
 ex-Excise Commissioner, U.S.B.A. Year- 
 book, 1911; p. 169.) 
 
 B. Local option laws have failed to solve the 
 liquor problem: for 
 
AN ARGUMENTATIVE BRIEF 67 
 
 1. Local option is ineffective from its very 
 nature : for 
 
 a. Liquor can easily be secured by 
 those living in " dry " districts from 
 adjoining " wet '* districts. 
 
 b. The " dry " cities of Massachusetts 
 show high records of arrests for 
 drunkenness: for example, 
 
 \ (1) During the year 1905 " dry " 
 Brockton had 284 arrests per 
 1000 inhabitants on this 
 charge. {Textbook of True 
 Temperance; pp. 132-135.) 
 
 (2) In 1907 there were in " dry " 
 Cambridge a total of 1500 
 arrests for drunkenness. (Id.) 
 
 (3) In " dry " Worcester there 
 were 135 arrests for drunken- 
 ness in July, 1908, and 220 
 in July, 1909. (Id.) 
 
 2. Local option works hardship to surround- 
 ing license districts: for 
 
 a. People flock to the license districts 
 from the no-license districts when 
 they wish alcoholic liquor, and are 
 disposed to over-indulgence with the 
 opportunity thus obtained. 
 
 b: In Boston, in the year 1907, of the 
 35,728 arrests for drunkenness 11,- 
 528 were those of persons coming 
 from no-license districts in the 
 vicinity of Boston. (Textbook of 
 True Temperance; p. 131.) 
 C. The license system with regulation has failed 
 to solve the liquor problem: for 
 
THE BRIEF 
 
 The very fact that the liquor question 
 is being violently agitated throughout 
 the country is prima facie evidence that 
 this system — that longest in use — has 
 failed to give satisfactory solution. 
 By the system of license and regulation, 
 the business of selling liquor is placed 
 under unhealthy conditions: for 
 
 a. It is to the interest of the saloon- 
 keeper to sell the maximum 
 amount of liquor. 
 h. It is to his interest to permit his 
 saloon to be used for immoral and 
 illegal purposes: for 
 
 (1) He will naturally be impelled 
 to pursue the course that 
 will most quickly and easily 
 increase his profits: for 
 (a) Profit is the goal for 
 which he enters the 
 business. 
 (6) On the analogy of 
 seemingly respectable 
 concerns which, nev- 
 ertheless, adulterate 
 their goods and other- 
 wise deceive the pub- 
 lic, the saloon-keepers 
 will not be models of 
 business virtue. (Chi- 
 cago Vice Commission : 
 The Social Evil in Chi- 
 cago ; p. 130 et seq.) 
 c. Investigations of the saloons bear 
 out this contention: for 
 
AN ARGUMENTATIVE BRIEF 69 
 
 (1) An investigation by the N.Y. 
 Vice Commission, carried on 
 from January to November, 
 1912, shows that out of 794 
 saloons and concert halls 
 visited 308 were found " dis- 
 orderly." (Commercialized 
 Prostitution in New York; 
 p. 145.) 
 
 (2) Of 445 saloons investigated 
 by the Chicago Vice Com- 
 mission, July to October, 
 1910, 236 were found " dis- 
 orderly." (The Social Evil 
 in Chicago; p. 122.) 
 
 II. The methods heretofore adopted in the attempt 
 to solve this problem are bound, if continued, to 
 repeat in the future the failures of the past: for 
 A. Prohibition is bound to fail: for 
 
 1. It is based upon fundamentally unsound 
 principles: for 
 
 a. It is an attempt by a majority to 
 prevent a minority from exercising 
 a form of individual liberty to which 
 that minority believes itself entitled. 
 h. It is a breeder of contempt for the 
 law: for 
 
 (1) It encourages tricky and un- 
 derhand subterfuges to evade 
 a law that is regarded as 
 unjust and unwise. (Prohibi- 
 tion in America, quoted in 
 U.S.B.A. Yearbook, 1911; 
 pp. 191-198, especially 197; 
 
70 THE BRIEF 
 
 Hugo Muensterberg, Text- 
 hook of True Temperance; 
 p. 75.) 
 (2) It promotes the growth of 
 law-violating establishments, 
 such as " speak-easies,*' 
 " blind tigers," etc. (John 
 Kirk, Encouraging the Moon- 
 shiner; and U.S.B.A. Year- 
 hook; pp. 217-220.) 
 
 c. It rests upon an unsound moral 
 basis: for 
 
 (1) It fails to recognize that true 
 morals are the result of self- 
 control, voluntarily effected: 
 for 
 
 (a) It tries to effect re- 
 form through legisla- 
 tive enactment, ac- 
 cording to a conception 
 of morals entertained 
 at a given time by a 
 mere majority. 
 
 d. It is purely negative in character: 
 for 
 
 (1) It fails to recognize that the 
 saloon exists in response to a 
 very definite and real social 
 need. (Committee of Fifty, 
 Economic Aspects of the 
 Liquor Problem; pp. 210- 
 240.) 
 
 (2) It offers no substitute for the 
 saloon. 
 
 e. It is unjust: for 
 
AN ARGUMENTATIVE BRIEF 71 
 
 (1) Whereas the law is designed 
 to punish the seller; 
 
 (!') Yet it does not affect the 
 purchaser. 
 
 (2) Whereas the rich can secure 
 liquor by importation, etc.; 
 
 (2') Yet the poor can secure it 
 only by violation of the law. 
 
 B. Local option is bound to fail: for 
 
 1. Under the most favorable conditions the 
 system can serve only as a temporary 
 makeshift: for 
 
 a. It affects only small districts as 
 units, and for a limited period of 
 time, ranging from one to two 
 years, according to the frequency 
 of elections in those districts. (Jo- 
 seph Debar, Prohibition, Its Rela- 
 tion to Good Government; pp. 15- 
 16.) 
 
 C. The system of high license and government 
 regulation will necessarily remain ineffective: 
 for 
 
 1. Control by the government can be se- 
 cured only at second hand : for 
 
 a. Government agents are subject to 
 fatally strong temptation to shirk 
 their duty: for 
 
 (1) Profits under private man- 
 agement are suflSciently high 
 to pay well for " police pro- 
 tection," to offer " graft " to 
 those " higher up," and in 
 other ways to secure immu- 
 nity for violation of the law. 
 
72 THE BRIEF 
 
 b. The government is dealing with 
 men whose greatest interest is to 
 use their property for immoral and 
 illegal purposes. (Chicago Vice 
 Commission, The Social Vice in 
 Chicago; pp. 119-140.) 
 2. The saloon business is necessarily de- 
 graded by the element of private profit: 
 for 
 
 a. The strong inducement of high 
 profits is often sufficient to turn 
 the saloon into an institution that 
 panders to vicious elements and 
 tastes: for 
 
 (1) A saloon-keeper's success is 
 measured not by the way in 
 which his business is run, but 
 by the amount of his profits. 
 
 b. The temptation to increase profits 
 in illegal ways is especially strong: 
 for 
 
 (1) The saloon is a social center 
 and an attraction to great 
 numbers who have no other 
 place in which to gather. 
 (Committee of Fifty, Eco- 
 nomic Aspects of the Liquor 
 Problem; pp. 210-240.) 
 
 (2) The opportunities of gain 
 from the establishment of 
 d a n c e-h alls, gambling- 
 rooms, and brothels are 
 ready at hand for the sa- 
 loon-keeper. (Vice Commis- 
 sion of Chicago, The Social 
 
AN ARGUMENTATIVE BRIEF 73 
 
 Evil in Chicago; pp. 119- 
 140.) 
 3. Control by the government is too dif- 
 ficult of enforcement : for 
 
 a. Whereas the investigation made 
 by the New York Vice Commission 
 shows that out of 794 saloons 
 visited from January to November, 
 1912, 308 were found to be " dis- 
 orderly*'; 
 a'. Yet in the year from September, 
 1911, to September, 1912, there 
 were but six revocations of licenses 
 f or " disorderliness. ' ' {Commercial 
 Prostitution in New York; pp. 145 
 and 161.) 
 
 III. The solution offered by the plan proposed presents 
 
 a fundamentally sound and intelligent basis for 
 
 dealing with the liquor problem: for 
 
 A. Governmental authorities will be able to take 
 
 care of a definite and real social need without 
 
 the debauchery of that need by the greed of 
 
 gain: for 
 
 1. The object of running a saloon will, tm- 
 der this plan, be to sell good liquor under 
 healthy conditions and in a respectable 
 atmosphere: for 
 
 a. The success of the institution under 
 the proposed plan would be meas- 
 ured by the efficiency and ability 
 with which it should satisfy a social 
 need, rather than by the amount 
 of the profit gained. 
 
 2. There will be no inducement to promote 
 
74 THE BRIEF 
 
 the illegal uses now m^de of the saloon: 
 for 
 
 a. Profit is not the motive underlying 
 the enterprize. 
 
 3. Under the proposed plan a more gener- 
 ally organized method of handling the 
 entire saloon question can be scientifi- 
 cally and intelligently evolved in place of 
 the present chaotic method. 
 
 4. Other institutions of a social nature, such 
 as dance-halls, etc., now allied with the 
 saloon, could be operated for the benefit 
 of the public under conditions of decency. 
 
 B. Direct control of the distribution of liquor 
 will be of great advantage to the community: 
 for 
 
 1. Such profits as are made can be used for 
 lessening the tax rate, for building roads, 
 schools, and for other commimity pur- 
 poses. 
 
 2. Under the proposed plan an effective 
 distinction can be made between the 
 grades of liquor sold: for 
 
 a. Regulations discriminating be- 
 tween the more harmful spirituous 
 liquors and the more beneficial malt 
 and vinous liquors can be put into 
 effect: for 
 
 (1) The whole business will be 
 under the control of govern- 
 mental authorities. 
 
 3. Direct governmental control will afford 
 more adequate opportunities than will 
 
 I any other system to effect certain types 
 
 \; 
 
 I \) \ of social regulation: for example, 
 
 / 
 
AN ARGUMENTATIVE BRIEF 75 
 
 a. Selling to minors. 
 
 h. Dispensing immoderate quantities 
 
 of liquor to single individuals, 
 c. Hours of closing. 
 C. ^The solution offered in the plan proposed is 
 eminently practical: for 
 
 1. Whereas, at present, in all license dis- 
 tricts, save those of South Carolina, the 
 municipality, or similar unit, cedes the 
 license to private individuals in return 
 for a definite tax; 
 
 1'. Under the proposed plan, the munici- 
 pality, or other unit (i.e., the govern- 
 ment), will retain the title to the license, 
 or licenses, hiring a competent mana- 
 ger, under fixed salary, to conduct the 
 saloon. 
 
 2. The plan proposed has already met with 
 success: for 
 
 a. It has been adopted by Sisseton, 
 South Dakota, and has been 
 operated effectively for the year 
 that has elapsed since its adoption. 
 {N.Y. Tribune, March 24, 1914; 
 
 p.l.) 
 h. A variant of the scheme has been 
 successful in South Carolina for 
 some time (i.e., the County Dispen- 
 sary System). 
 
 Conclusion 
 
 I. Since: None of the methods heretofore advocated 
 have proved an adequate station of the 
 liquor problem; and 
 II. Since: The methods heretofore used in the attempt 
 
76 
 
 THE BRIEF 
 
 to solve this problem are bound to repeat 
 in the future the failures of the past; and 
 III. Since: The solution offered in the plan of govern- 
 ment control will give a fundamentally 
 sound and intelligent basis for dealing with 
 this problem; 
 TheUbfoee: The elimination of private profit by placing 
 the sale of liquor under government control 
 offers the best solution of the liquor problem. 
 
IV 
 
 EXAMPLES OF FAULTY BRIEFING FOR 
 CRITICISM AND CORRECTION 
 
 (1) 
 Proposition: The growth of the university in the United 
 States will result in the destruction of the 
 small college, 
 
 {Argument for the negative) ^ 
 
 I. Every college has a natural supply: for 
 
 A. The alumni, wishing their Alma Mater to be 
 strong, direct their sons, younger brothers, 
 and friends to their own college. 
 
 II. The prestige of well-known universities will not 
 greatly aid a man in his later life: for 
 
 A. The business world is becoming too practical 
 to accept a man simply because he has been 
 graduated from one of these large institutions. 
 
 III. The educational value of the university is not so 
 great as that of the college: for 
 A. The contention that there is a greater choice 
 of studies is weak: for 
 
 1. The average student can and will follow 
 the same line in the college or in the 
 university; yet 
 
 2. We admit that the exceptional student 
 has greater chance to specialize in the 
 imiversity. 
 
78 THE BRIEF 
 
 B. The method, wherein lies the difference be- 
 tween the two classes of institutions, rather 
 than the subject, is better in the college: for 
 
 1. In the university the lecture method is 
 more generally used on account of the 
 larger numbers of students: whereas 
 
 2. In the college the students receive per- 
 sonal attention and come into personal 
 contact with the professors. 
 
 3. The students in the small college derive 
 the great advantage of recitation and 
 public speaking. 
 
 IV. The social life of the college is a great benefit to the 
 students, and is not obtained at the university: for 
 A. In the college the student is able to become 
 personally acquainted with his own class- 
 mates and many of the other classes: whereas 
 1. This is impossible in the university. 
 
 (2) 
 
 Proposition: Should the course leading to the degree of 
 A.B. he shortened to three years? 
 
 (Argument for the negative) 
 Introductory 
 
 Of late years there has been a tendency to specializa- 
 tion in almost every subject. 
 
 This necessitates giving more time to the preparation 
 of one's specialty after college than was given in the early 
 days. 
 
 There is also a tendency to attempt to raise the standard 
 of many colleges by making the requirements for entrance 
 greater. 
 
EXAI^IPLES OF FAULTY BRIEFING 79 
 
 This necessitates a more thorough college preparation, 
 and consequently that more time be devoted to prepara- 
 tion. 
 
 Thus it is that the college course is pressed more and 
 more at both ends. 
 
 For this reason many urge that too much time is devoted 
 to the college course, and that it ought to be shortened at 
 least one year. 
 
 What we wish to find out is whether such a shortening 
 is necessary, and would be expedient. 
 
 Argument 
 
 I. Shortening the college course is not necessary: for 
 
 A. It is not necessary for those who feel that 
 they must get through college in less than four 
 years: for 
 
 1. In very many colleges at the present day 
 provision is made for those who are willing 
 to do four years' work in three. 
 
 B. An educational career can be shortened in the 
 preparatory school or in the professional school: 
 
 . and hence 
 
 1. There are other places than the college 
 in which one's course can be shortened. 
 
 C. It is better to shorten one's course in either 
 of these two places than in the college: for 
 
 1. It is better to shorten the professional 
 course: for 
 
 a. A professional education only starts 
 in the professional school: for . 
 
 (1) It is a life-long education. 
 
 b. A liberal education is, at best, but 
 restricted at the present time. 
 
 2. It is better to shorten it at the prepara- 
 tory school: for 
 
80 THE BRIEF 
 
 a. According to President Bartlett of 
 Dartmouth College, a year at college 
 has a much better effect on a man's 
 mind than one at preparatory school. 
 
 h. More time is devoted to the courses 
 in the preparatory schools than is 
 necessary : ^ for 
 
 (1) They teach in many cases sub- 
 jects that ought to be taught 
 earlier. 
 
 (2) They teach in many cases sub- 
 jects that can be better taught 
 in college: for 
 
 (a) They teach higher math- 
 ematics. 
 
 (6) They teach two years of 
 physics. 
 
 (c) Such subjects would 
 have better apparatus 
 at college. 
 
 (d) The teachers in college 
 would be better. 
 
 c. The statement of a prominent edu- 
 cator that it is becoming more and 
 more necessary to shorten a college 
 course because students enter contin- 
 ually at greater age is not true: for 
 
 (1) While it is true of Harvard, 
 yet statistics show that it is 
 not true of other colleges. 
 
 (2) The age of entrance at Har- 
 vard is becoming more and 
 more uniform. 
 
 * President Eliot. 
 
EXAMPLES OF FAULTY BRIEFING 81 
 
 (3) 
 
 Proposition: The restoration of the Canteen System would 
 best serve the interests of the United States 
 Army, 
 
 (An Introduction) 
 
 I. Two terms in this question need explanation. 
 
 A. Canteen system means a club for enlisted men 
 where they may meet for a social evening and 
 enjoy a talk over a glass of beer. 
 
 B. Best interests of the United States Army 
 means, in this question, that the soldiers 
 may have a place for drinking beer in the 
 army grounds. 
 
 1. If liquor is sold in the army, no drunken- 
 ness will result ; the soldiers will be content. 
 
 2. If liquor is not sold in the army, the men 
 will go outside to low dives and degen- 
 erate houses, and will fall morally and 
 physically. 
 
 II. The question, then, resolves itself into this : Is it right 
 to sell liquor in the United States Army? 
 
 (4) 
 
 Proposition: The college course leading to the degree B.A, 
 should he limited to three years. 
 
 {Argument for the negative) 
 
 I. The plan of shortening the course by dropping the 
 present senior year should not be adopted: for 
 A. The instruction received during the senior 
 year is, however theoretical, indispensable to 
 the well-educated, cultured man: since 
 
THE BRIEF 
 
 1. The instruction of the first three years 
 is mere book-learning; whereas 
 
 2. Senior year teaches ethics and theories 
 of hfe. 
 
 B. The plan would be unfair to present holders 
 of the degree: as 
 
 1. The dropping of senior year would admit 
 men to an equal standing with them, 
 who 
 a. Had not an equal education or 
 
 knowledge; or 
 h. Had not done an equal amount 
 of work. 
 
 II. The plan of shortening the course by doing four 
 years' work in three should not be adopted: for 
 
 A. Fewer persons would receive the degree: 
 for 
 
 1. Only the brightest students could meet 
 the requirement: since 
 
 a. The curriculum is already crowded 
 
 {Ear. Mo. 1899). 
 h. This method would make it even 
 more crowded, and hence, 
 
 (1) The number of educated citi- 
 zens would become smaller 
 year by year. 
 
 B. The health of the students could not stand 
 the increased strain: for 
 
 1. Climatic conditions in America are not 
 suitable for prolonged study, day after 
 day {Ear. Mo. 1899). 
 
 C. No time could be given to 
 
 1. The cultivation of friendships, not the 
 least valuable part of college life. 
 
EXAMPLES OF FAULTY BRIEFING 83 
 
 2. Debating interests or literary efforts, an- 
 other valuable part of college life. 
 
 3. Athletics, since 
 
 a. The students' time would be ab- 
 sorbed by the curriculum. 
 
 III. The plan of dropping freshman year and increasing 
 the admission requirements should not be adopted: 
 for 
 
 A. It would throw the work back into the pre- 
 paratory schools or into the hands of tutors. 
 
 B. The student would not receive proper instruc- 
 tion: for 
 
 1. Most preparatory schools have not the 
 funds necessary to secure the most com- 
 petent instructors. 
 
 2. The colleges have the best teachers in 
 the various departments. 
 
 C. The same amount of time would be required 
 in the end: for 
 
 1. The proposed method would only force 
 the student to spend the time now oc- 
 cupied in freshman year in another year 
 at the preparatory school in order to 
 meet the higher requirements : hence 
 a. He would secure no gain in time. 
 
 (5) 
 
 An argument in favor of the establishment of a merchant 
 marine under the auspices of the Government 
 
 I. The fact that the shipping interests oppose the pend- 
 ing bill for the establishment of a merchant marine 
 is an argument in favor of the bill: for 
 
 A. It would be a bad thing for the shipping inter- 
 
84 THE BRIEF 
 
 ests to have the Government in the field as a 
 
 rival: for 
 
 1. Although the shipping interests fear, to 
 
 some extent, Government competition; 
 1'. Yet they fear even more that the en- 
 trance of the Government-owned ships 
 will be a protection to the independent 
 companies that will enter the field if it is 
 known that fair play and equal competi- 
 tion will be accorded them. 
 
 (6) 
 An argument from the Lincoln-Douglas Debate at Alton 
 
 I. The contention of the correspondent of the Chicago 
 Times, signing himself " An Old Line Whig," that 
 previous to three years ago it had been maintained 
 that the words " all men " in the Declaration of In- 
 dependence do not include the negro is not to be 
 advanced: for 
 A. The contention that Henry Clay had denied that 
 this clause includes the negro is untenable: for 
 1. He upholds this contention by quoting a 
 portion of a speech by Henry Clay which 
 proves exactly the opposite of his conten- 
 tion: for 
 
 a. In this same speech Henry Clay says 
 that it is true, as an abstract princi- 
 ple, that ** all men are created equal," 
 but we cannot practically apply it in 
 all cases: for 
 
 (1) In the cases of females, minors, 
 and insane persons it is inap- 
 plicable. 
 
 (2) Henry Clay says elsewhere in 
 
EXAMPLES OF FAULTY BRIEFING 85 
 
 the same speech that the dec- 
 laration that " all men are cre- 
 ated equal " is a great funda- 
 mental truth. 
 2. Mr. Clay states a little farther on in this 
 same speech that he looked on the in- 
 stitution of slavery as a great evil. 
 
 (7) 
 
 An argument from the Lincoln- Douglas Debate at Alton 
 
 I. The contention advanced by Mr. Lincoln to the effect 
 that the Union cannot continue to exist half slave 
 and half free is not to be maintained: for 
 
 A. It is contrary to the principles of those who 
 framed the Constitution to legislate for all the 
 States alike, in disregard of local conditions : for 
 
 1. Whereas a law may be adapted to the 
 Green Mountains of Vermont; 
 
 1'. Yet this same law may be unsuited to 
 the rice plantations of South Carolina. 
 
 2. Whereas a law may be well adapted to 
 the prairies of Illinois; 
 
 £'. Yet it might not be suited to the mining 
 regions of California. 
 
SELECTIONS FOR BRIEFING 
 
 In basing a brief upon arguments already set in order by an- 
 other person, two methods of procedure are to be noted: the 
 brief may be the mere analytical ordering of the arguments as 
 contained in the work under consideration; or the arguments 
 may furnish the material from which one draws an original 
 brief, — selecting, omitting, reinforcing, rearranging the evi- 
 dence as best suits one's purpose. Of course, the second of 
 these two methods is the natural and more common order of 
 procedure for one whose brief is to serve the normal purpose, — 
 that of convincing another person of the truth of the proposition 
 under discussion. However, for drill and discipline, it is very use- 
 ful to analyze and set in order a written argument, following the 
 logical processes of the writer, — reconstructing, as it were by 
 conjecture, the brief upon which the elaborated argument was 
 based in the first place. 
 
 The following selections constitute material suitable for such 
 "second-hand briefing." The first two — newspaper editorials — 
 have been developed into brief-form as illustrations of the 
 method. In cases of this sort, consisting generally of but a para- 
 graph or two, it would be needless routine to elaborate all the 
 formalities of title, preliminary introduction, main introduction, 
 statement of issues, main argument, and conclusion. In fact, the 
 items in such cases usually present no more than what would, in 
 extended form, constitute the fifth of these subdivisions, the main 
 argument. In the longer selections, however, the student may 
 well develop, as far as the matter will justify, the fully elaborated 
 and formal forensic brief. 
 
EDITORIALS 87 
 
 1. EDITORIALS 
 
 (1) 
 RECENT POLICE ACTIVITIES 
 
 However biased its source, there is point in the conten- 
 tion of the former chief of the New York poHce, Wilham S. 
 Devery, that the police did wrong to risk the cathedral by 
 letting the dynamiters go so far with their plot. If the 
 bomb had gone off prematurely, the death or arrest of the 
 culprits would have been no consolation for the damage 
 done to the great edifice. In fact, the theatrical way in 
 which the scene was staged does not inspire confidence in 
 the police, and unhappily the very haste made to star the 
 detective concerned as a hero, to the detriment of his future 
 usefulness, gives a certain color to the charge of the con- 
 spirators that he was something more than a detective, that 
 he had been playing the part, more familiar in Russia than 
 here, of agent 'provocateur. Such a charge is not easy to 
 prove, and mere assertion is no proof at all, but a wide- 
 spread suspicion of this sort is harmful, and the tactics of 
 the police ought not to be such as to encourage it. A little 
 less of the dramatic might help to prevent distrust. {New 
 York Times. ^) 
 
 I. The recent action of the New York City police au- 
 thorities in allowing dynamiters to manufacture, lo- 
 cate, and even light their bombs before their arrest, 
 was unwise: for 
 A. Ex-Police Captain William S. Devery, a practi- 
 cal police expert, has expressed himself to this 
 effect. 
 
 * This ajfl the following three editorials are included by the kind 
 permission of the New York Times. 
 
THE BRIEF 
 
 B. Any slight miscarriage in the plans of the de- 
 tectives engaged on the case might easily have 
 resulted in serious damage and loss of life. 
 
 C. The plan of the department does not inspire 
 public confidence: for 
 
 1. Their method of procedure in the case 
 has been distinctly un-American: for 
 
 a. The detective in charge of the case 
 was practically an agent provocateur, 
 as utilized imder the Russian Gov- 
 ernment. 
 
 2. Their plan savors suspiciously of the melo- 
 dramatic: for 
 
 a. It seems to have been staged for 
 public effect, rather than for securing 
 the ends of justice: for 
 
 (1) The " starring " of the princi- 
 pal detective in the press has 
 of necessity largely destroyed 
 his further usefulness to the 
 department: for 
 
 (a) His identity has now be- 
 come public. 
 
 (2) 
 DELAWARE CLINGS TO THE WHIPPING-POST 
 
 In voting by a large majority against the abolition of the 
 whipping-post the House of Representatives in Delaware 
 has shown how conservatism can degenerate into stupidity. 
 Delaware's archaic whipping-post law can justify itself only 
 by pointing to its lineage from the Middle Ages. True, 
 penologists like Magistrate House and Colonel Roosevelt, 
 in their horror of wife-beaters, have urged this brutish pun- 
 
EDITORIALS 89 
 
 ishment for brutish men. But it defeats its own object. 
 The disgrace of a pubUc flogging reacts upon the beaten 
 wife. She will fear and feel the stigma, and she will shrink 
 from bringing it on her family by complaining. If she enters 
 complaint, the man returns from the lashing angry and in- 
 censed, not against the strong-armed jailer, but against the 
 weak woman who was the occasion of his suffering. 
 
 But lashes are also bestowed in Delaware on tramps, 
 " confidence " men, thieves, highwaymen, and disorderly 
 persons. A large proportion of men who become tramps is 
 of broken-down drunkards, or the otherwise physically and 
 mentally defective. They need medical treatment, not the 
 cat-o'-nine-tails, and work in the open air on State farms. 
 As for the others, we recall that Warden Meserve, of the 
 New Castle County Workhouse in Delaware, resigned after 
 scourging 235 men, saying that those who were lashed 
 never reformed, but became hardened criminals. It is 
 possible that Delaware is to some extent protected from 
 invasion of the criminally minded from other States by the 
 prevalent fear of the whipping-post. But this advantage, 
 so far as it is obtained, is acquired at the expense of any 
 sane effort at reform of criminals and by a means that 
 brutalizes prisoners, executioners, and — it seems certain 
 — legislators. {New York Times.) 
 
 I. The retention of the whipping-post by the House of 
 Representatives in Delaware is an unjudicious meas- 
 ure of legislation: for 
 
 A. As an effective punishment for the crime of 
 wife-beating public flogging is ineffective: for 
 1. Although Magistrate House and Colonel 
 Roosevelt, well-known penologists, have 
 urged its continuance; 
 1'. Yet the punishment defeats its own end: 
 for 
 
90 THE BRIEF 
 
 a. The woman in the case is, by the 
 character of the penalty, restrained 
 ^ from bringing complaint against the 
 offender: for 
 
 (1) The disgrace of the public 
 flogging brings a stigma upon 
 herself and her family as well 
 as upon the offender himself. 
 
 (2) The guilty husband is en- 
 couraged to direct further 
 hostility against his wife: for 
 
 (a) He naturally feels that 
 she was the immediate 
 cause of his physical 
 suffering. 
 
 B. As a punishment for tramps and vagrants the 
 punishment is ineffective: for 
 
 1. A large proportion of those who are con- 
 victed on these counts are in need of 
 medical treatment rather than of corporal 
 discipline: fOr 
 
 a. They are composed in great degree 
 of men broken down physically or 
 deficient mentally. 
 
 2. Those who do not fall under the classifi- 
 cation of " deficients " are not reformed 
 by flogging: for 
 
 a. Warden Meserve, of the New Cas- 
 tle County Workhouse, who has 
 scourged 235 men, is authority for 
 the statement. 
 
 C. The contention that fear of public flogging has 
 protected Delaware from an invasion of crimi- 
 nals from neighboring States is not a sufficient 
 argument for the retention of the penalty: for 
 
EDITORIALS 91 
 
 1. The protection alleged has been secured 
 only at the expense of sane efforts on the 
 part of the state to substitute modern 
 methods of reforming the criminal for 
 the antiquated and brutal methods of 
 physical punishment. 
 
 (3) 
 GOVERNOR VAN WYCK AND THE CANAL RING 
 
 Does any man doubt that if Judge Van Wyck is elected 
 Governor he will turn out the thieving Republican canal 
 deepeners and smash their ring? Will he not have the most 
 powerful imaginable motive for putting as many as possi- 
 ble of them in the State prison; the desire, that is, of win- 
 ning public confidence and approbation in a high degree? 
 
 Governor Tilden's pursuit of the Tweed ring thieves 
 made him Governor. His pursuit of the canal ring thieves 
 made him the Democratic candidate for President. No- 
 body has f orgotteji that great example of popular trust and 
 admiration centering upon a public officer who had exhib- 
 ited great zeal and diligence in bringing to justice the 
 rascals who had stolen the people's money. But let no man 
 forget that the rascals Tilden pursued were his political 
 enemies. Tweed had opposed him in the party, and at last, 
 in his coarse and brutal way, had given him a public and 
 moral insult which Tilden could neither forget nor forgive. 
 Tweed was doomed from that day. The biggest canal 
 rascals were Republicans. 
 
 Every consideration, personal and political, will urge on 
 Governor Van Wyck to be swift and stern in his dealings 
 with the Republican canal thieves. No consideration of any 
 kind will hold him back. 
 "^ With Governor Roosevelt, on the contrary, the most 
 
92 THE BRIEF 
 
 powerful considerations will be those that restrain. Van 
 Wyck will build up his party by dragging this corruption 
 into the light. Roosevelt will destroy his party if he touches 
 it. A Democratic Governor might open the way to the 
 Presidency by a triumphant campaign against the corrup- 
 tionists. A Republican Governor who attacks George 
 Aldridge and the other powerful Republicans who are re- 
 sponsible for the canal scandal must abandon all higher 
 ambitions. He may smash the canal ring, but he will go 
 out of politics at the end of his term just as Black goes out 
 on January 1. 
 
 There is nothing but Roosevelt's native dislike of un- 
 worthy public servants that would prompt him to make 
 war on the canal rascals of his party. But how much of that 
 dislike remains? He is making his campaign in strange 
 companionship — Piatt, Aldridge, Woodruff. If he can be 
 on such good terms with Republican maladministration in 
 the campaign, what reason have we to expect him after 
 election to turn upon his present intimate associates with 
 sudden austerity? 
 
 There is a deadly certainty of doom fo^: the canal rascals 
 if Van Wyck is elected. There is very grave doubt whether 
 Roosevelt's big *' if " would n't blind his eyes all through 
 his term. If any voter wants the canal frauds punished 
 he will vote against his intent if he votes for Roosevelt. 
 {New York Times,) 
 
 (4) 
 NOT A MODEL INVESTIGATION 
 
 It would, indeed, be a humiliation for the Public Service 
 Commissioners in the First District to be put out of office 
 as the result of the investigation and report of the Thomp- 
 son Committee. The committee finds as the conclusion of 
 
EDITORIALS 93 
 
 one of the three reports it has prepared that the Commis- 
 sioners in the First District " have not put in operation the 
 provisions of the PubHc Service Commission's law for the 
 regulation of public service corporations in a manner which 
 has produced the results reasonably to be expected." That 
 judgment might be passed upon the work of the Thompson 
 Committee itself. Its labors ended in a disagreement, al- 
 most in a fight, and there are two Republican reports and 
 one Democratic. The minority Democrats of the commit- 
 tee have discovered nothing to censure in the doings of the 
 Commissioners, while the two Republican reports find 
 much that is blameworthy, mainly acts of omission, negli- 
 gence, and inefficiency rather than positive wrong. 
 
 The charges which the majority report makes against 
 the Commissioners are not very startling; considered each 
 by itself, they are not very serious. Taken together, they 
 do appear to constitute a case of not enforcing the provi- 
 sions of the law, particularly in not compelling the public 
 service corporations to obey the orders of the Commission. 
 That raises again the old question whether service corpor- 
 ations would be able to carry on their business if they 
 obeyed all the many orders the regulating commissions 
 issue. Mr. Whitridge, who has come to be considered an 
 authority on these matters, declares in effect that if a cor- 
 poration in good faith attempted to carry out all the orders 
 issued to it, it would end its days in bankruptcy, and its 
 officers would end theirs in a madhouse. Mr. Whitridge's 
 fondness for the picturesque may have betrayed him into 
 making an extreme statement. But certain it is that com- 
 mission orders are frequently conflicting, and they some- 
 times appear to be unreasonable, because to carry them out 
 faithfully would be a public injury, not a public relief. The 
 Commissioners are accused, too, of making altogether too 
 free use of automobiles maintained at the expense of the 
 taxpayers. These charges appear to be proved, and the 
 
94 THE BRIEF 
 
 guilty Commissioners ought to be thoroughly ashamed of 
 themselves. Men to whom large salaries are paid, and who 
 have a responsibility for the control of a great part of the 
 actual management of corporations employing billions of 
 capital, ought to be above such petty practices. 
 
 Altogether, the results of the work done by the investi- 
 gating committee are unsatisfactory. The Commissioners 
 appear to have laid themselves open to censure; it is possi- 
 ble that they have not given due attention to their duties; 
 they may be incompetent. But three reports from an in- 
 vestigating committee, differing one from the other, and 
 not very positive in their conclusions, are not a very good 
 basis for final action in such a case. Using the material ob- 
 tained by the committee, Governor Whitman might call 
 upon the Commissioners to answer these and other charges, 
 and by a supplementary investigation of his own he might 
 be able to determine whether it was his duty to remove 
 the Commissioners or to recommend suitable action to the 
 Legislature. The enactment of the Thompson bill without 
 further inquiry would be attributed to a desire to get de- 
 sirable offices for Republicans. {New York Times.) 
 
 (5) 
 
 STANDARDS OF EDUCATION IN THE WOMEN'S 
 COLLEGES 
 
 I suppose no one will question that the leading Eastern 
 colleges for women are, in order of age, approximately, 
 Vassar, Wellesley, Smith, Bryn Mawr, Radcliffe, and Bar- 
 nard. If will consult the catalogues of these col- 
 leges, he will find, I think, that many of his suggestions as 
 to ideal courses have already been anticipated; that the 
 colleges themselves, in fact, are leading the way to a truer 
 standard of education. Many of these courses, however. 
 
EDITORIALS 95 
 
 indicate changes in curriculum made within a few years. If 
 the sister and the cousins and the friends were graduated 
 even four or five years ago, they had perhaps no opportu- 
 nity to elect them. But the point remains that the colleges 
 have recognized the worth of special courses in psychology, 
 pedagogy, hygiene, physical chemistry, chemistry of foods, 
 physiology, social science, social ethics, organized charities, 
 daily themes, sesthetics, history of art, and kindred sub- 
 jects. These courses, moreover, are offered, as our kind 
 critic suggests would be appropriate, " as electives of equal 
 value with literature and mathematics, and not as added 
 burdens to overworked students.'* I may add that almost 
 all of these electives attract large numbers of students. At 
 least one college offers a course, under the department of 
 philosophy, in the study of child-nature; and the same col- 
 lege has a course devoted to a study of the organized chari- 
 ties of the city in which it is situated. That the head of the 
 department of history in another college has published the 
 most important book of the present day on "Domestic 
 Service," goes to show that such subjects are at least not 
 despised in the colleges for women. I do not present these 
 instances as evidence that all the work done in women's 
 colleges is differentiated to meet the special needs of 
 women, but only as evidence, so far as it goes, that there 
 is a marked tendency in that direction. I question, indeed, 
 whether the colleges are not moving as rapidly in this 
 matter as the public can follow — the limit of any reform, 
 history tells us. 
 
 To the second charge, " Imitation of man," we must 
 again, I fear, plead guilty. The university professor who is 
 quoted as saying that " the women will not have any im- 
 provement; they wish just the same education as the col- 
 lege men, not a better one," undoubtedly voiced the ideal 
 of the average college girl, at least before she enters col- 
 lege. But, fortimately for her and for her womanhood, she 
 
96 THE BRIEF 
 
 does not, in most colleges, control either the curriculum or 
 the environment of four of the most impressionable years 
 of life; and thus environment, in spite of the charge brought 
 against it of '* Lack of refining influence and tendencies," is 
 often the most culturing influence of her life. In most of 
 the leading colleges for women, art and music are recog- 
 nized as educational forces, and more or less provision is 
 made for them. In one well-known instance the school of 
 music connected with the college is so managed that its 
 concerts, analysis classes, and rehearsals form a natural 
 part of the college life. The same college has a fine art- 
 gallery, and frequent talks on art are open to the students. 
 Most colleges, too, provide lectures by specialists on music, 
 art, and literature. Much that is beautiful in life comes 
 thus naturally into the life of the college girl. She is, more- 
 over, surrounded by cultured men and women, in spite, 
 again, of the indictment, " Lack of social training." If 
 
 has time for a tour of the colleges, he can find no 
 
 better refutation of his theory that they lack refining in- 
 fluences than the students themselves. The difference be- 
 tween the senior and the freshman class of any college 
 is one of the marked features of college life; that in wo- 
 men's colleges this difference is chiefly in the direction of 
 greater womanliness and refinement is perhaps sufficient 
 evidence of the influences at work. Some of the finest 
 women I have known have been members of college facul- 
 ties. That their very fineness is an indirect argument for 
 celibacy, as suggested, is perhaps true. But why assume, 
 a priori, that this is necessarily a misfortune? When I was 
 a freshman in college, I remember, the wife of the president 
 called individually on each member of the freshman class. 
 I should not like to be cited as maintaining that a ten-min- 
 utes social call, even from the wife of a college president, 
 would leaven the four years of college life. But the college 
 that can thus take thought for its freshmen is not likely to 
 
EDITORIALS 07 
 
 neglect entirely the social graces of life. Using the word 
 social in its broader sense, if the colleges for women fail to 
 give their students an interest in the problems of humanity, 
 as asserted, is it not a little singular that one of the most 
 effective philanthropic movements of the day should be 
 known as the College Settlement? — Jennette Barbour 
 Perry: The Critic^ September 11, 1897. 
 
98 THE BRIEF 
 
 2. THE COOPER INSTITUTE ADDRESS 
 
 Delivered by Abraham Lincoln in New York City, February 27, 1860 
 
 This speech was delivered by Mr. Lincoln after the conclusion 
 of the senatorial campaign in Illinois, during which the debate 
 with Senator Douglas took place and in which Mr. Lincoln was 
 defeated. The address, generally considered the most masterly 
 presentation of the anti-slavery position delivered previous to the 
 Civil War, was made in response to a request that Mr. Lincoln 
 speak before the Young Men's Central Republican Union of 
 New York City, and it afforded him his first opportunity of 
 appearing before an Eastern audience. He felt serious misgivings 
 regarding his ability to address such an audience acceptably, and 
 suffered from all the miseries of personal embarrassment. As he 
 proceeded, however, his self-consciousness disappeared, and his 
 hearers followed his simple but effective argument with the in- 
 terest and absorption that only the master of forensic oratory 
 can command. 
 
 With reference to this speech Horace Greeley wrote: **I do 
 not hesitate to pronounce Mr. Lincoln's speech at Cooper Insti- 
 tute in the spring of 1860 the very best political address to which 
 I ever listened, and I have heard some of Webster's grandest. 
 As a literary effort, it would not, of course, bear comparison with 
 many of Webster's speeches; but, regarded as an effort to con- 
 vince the largest possible number that they ought to be on the 
 speaker's side, not on the other, I do not hesitate to pronounce 
 it unsurpassed." 
 
 Mr. President and Fellow-citizens of New York: 
 
 The facts with which I shall deal this evening are mainly 
 old and familiar; nor is there anything new in the general 
 use I shall make of them. If there shall be any novelty, it 
 will be in the mode of presenting the facts, and the infer- 
 ences and observations following that presentation. In his 
 speech last autumn at Columbus, Ohio, as reported in the 
 New York Times , Senator Douglas said : — 
 
 Our fathers, when they framed the government under which we 
 live, understood this question just as well, and even better, than 
 we do now. 
 
THE COOPER INSTITUTE ADDRESS 99 
 
 1 fully endorse this, and I adopt it as a text for this dis- 
 course. I so adopt it because it furnishes a precise and 
 an agreed starting-point for a discussion between Repub- 
 licans and that wing of the Democracy headed by Sena- 
 tor Douglas. It simply leaves the inquiry: What was the 
 understanding those fathers had of the question men- 
 tioned? 
 
 What is the frame of government under which we live? 
 The answer must be, *' The Constitution of the United 
 States." That Constitution consists of the original, framed 
 in 1787, and under which the present government first went 
 into operation, and twelve subsequently framed amend- 
 ments, the first ten of which were framed in 1789. 
 
 Who were our fathers that framed the Constitution? I 
 suppose the " thirty-nine " who signed the original instru- 
 ment may be fairly called our fathers who framed that part 
 of the present government. It is almost exactly true to say 
 they framed it, and it is altogether true to say they fairly 
 represented the opinion and sentiment of the whole nation 
 at that time. Their names, being familiar to nearly all, and 
 accessible to quite all, need not now be repeated. 
 
 I take these *' thirty-nine," for the present, as being "our 
 fathers who framed the government under which we live." 
 What is the question which, according to the text, those 
 fathers understood "just as well, and even better, than we 
 do now"? 
 
 It is this : Does the proper division of local from Federal 
 authority, or anything in the Constitution, forbid our 
 Federal Government to control as to slavery in our Federal 
 Territories? 
 
 Upon this. Senator Douglas holds the affirmative, and 
 Republicans the negative. This affirmation and denial form 
 an issue; and this issue — this question — is precisely what 
 the text declares our fathers understood "better than we." 
 Let us now inquire whether the "thirty-nine," or any of 
 
100 THE BRIEF 
 
 them, ever acted upon this question; and if they did, how 
 they acted upon it — how they expressed that better un- 
 derstanding. In 1784, three years before the Constitution, 
 the United States then owning the Northwestern Territory, 
 and no other, the Congress of the Confederation had before 
 them the question of prohibiting slavery in that Territory, 
 and four of the "thirty-nine" who afterward framed the 
 Constitution were in that Congress, and voted on that 
 question. Of these, Roger Sherman, Thomas Mifflin, and 
 Hugh WilHamson voted for the prohibition, thus showing 
 that, in their understanding, no Hue dividing local from 
 Federal authority, nor anything else, properly forbade the 
 Federal Government to control as to slavery in Federal 
 territory. The other of the four, James McHenry, voted 
 against the prohibition, showing that for some cause he 
 thought it improper to vote for it. 
 
 In 1787, still before the Constitution, but while the con- 
 vention was in session framing it, and while the North- 
 western Territory still was the only Territory owned by 
 the United States, the same question of prohibiting slavery 
 in the Territory again came before the Congress of the Con- 
 federation; and two more of the "thirty-nine" who after- 
 ward signed the Constitution were in that Congress, and 
 voted on the question. They were William Blount and 
 William Few; and they both voted for the prohibition — ■ 
 thus showing that in their understanding no line dividing 
 local from Federal authority, nor anything else, properly 
 forbade the Federal Government to control as to slavery in 
 Federal territory. This time the prohibition became a law, 
 being part of what is now well known as the Ordinance 
 of '87. 
 
 The question of Federal control of slavery in the Terri- 
 tories seems not to have been directly before the conven- 
 tion which framed the original Constitution; and hence it is 
 not recorded that the "thirty-nine," or any of them, while 
 
THE COOPER INSTITUTE ADDI^iE^S, ; ., :l^,i 
 
 engaged on that instrument, expressed any opinion on that 
 precise question. 
 
 In 1789, by the first Congress which sat under the Con- 
 stitution, an act was passed to enforce the Ordinance of '87, 
 including the prohibition of slavery in the Northwestern 
 Territory. The bill for this act was reported by one of the 
 "thirty-nine" — Thomas Fitzsimmons, then a member of 
 the House of Representatives from Pennsylvania. It went 
 through all its stages without a word of opposition, and 
 finally passed both branches without ayes and nays, which 
 is equivalent to a unanimous passage. In this Congress 
 there were sixteen of the thirty-nine fathers who framed 
 the original Constitution. They were John Langdon, 
 Nicholas Oilman, Wm. S. Johnson, Roger Sherman, Robert 
 Morris, Thomas Fitzsimmons, Abraham Baldwin, William 
 Few, Rufus King, William Patterson, George Clymer, 
 Richard Bassett, George Read, Pierce Butler, Daniel Car- 
 roll, and James Madison. 
 
 This shows that, in their understanding, no line dividing 
 local from Federal authority, nor anything in the Constitu- 
 tion, properly forbade Congress to prohibit slavery in the 
 Federal territory; else both their fidelity to correct princi- 
 ple, and their oath to support the Constitution, would have 
 constrained them* to oppose the prohibition. 
 
 Again, George Washington, another of the "thirty- 
 nine," was then President of the United States, and as such 
 approved and signed the bill, thus completing its validity 
 as a law, and thus showing that, in his understanding, no 
 line dividing local from Federal authority, nor anything in 
 the Constitution, forbade the Federal Government to con- 
 trol as to slavery in Federal territory. 
 
 No great while after the adoption of the original Consti- 
 tution, North Carolina ceded to the Federal Government 
 the country now constituting the State of Tennessee; and a 
 few years later Georgia ceded that which now constitutes 
 
^Q2^ ;, :: V THE BRIEF 
 
 the States of Mississippi and Alabama. In both deeds of 
 cession it was made a condition by the ceding States that 
 the Federal Government should not prohibit slavery in the 
 ceded country. Besides this, slavery was then actually in 
 the ceded country. Under these circumstances, Congress, 
 on taking charge of these countries, did not absolutely pro- 
 hibit slavery within them. But they did interfere with it — 
 take control of it — even there, to a certain extent. In 1798 
 Congress organized the Territory of Mississippi. In the act 
 of organization they prohibited the bringing of slaves into 
 the Territory from any place without the United States, 
 by fine, and giving freedom to slaves so brought. This act 
 passed both branches of Congress without yeas and nays. 
 In that Congress were three of the "thirty-nine" who 
 framed the original Constitution. They were John Lang- 
 don, George Read, and Abraham Baldwin. They all prob- 
 ably voted for it. Certainly they would have placed their 
 opposition to it upon record if, in their understanding, any 
 line dividing local from Federal authority, or anything in 
 the Constitution, properly forbade the Federal Government 
 to control as to slavery in Federal Territory. 
 
 In 1803, the Federal Government purchased the Louisi- 
 ana country. Our former territorial acquisitions came from 
 certain of our own States; but this Louisiana country was 
 acquired from a foreign nation. In 1804, Congress gave a 
 territorial organization to that part of it which now con- 
 stitutes the State of Louisiana. New Orleans, lying within 
 that part, was an old and comparatively large city. There 
 were other considerable towns and settlements, and slav- 
 ery was extensively and thoroughly intermingled with the 
 people. Congress did not, in the Territorial Act, prohibit 
 slavery; but they did interfere with it — take control of 
 it — in a more marked and extensive way than they did 
 in the case of Mississippi. The substance of the provision 
 therein made in relation to slaves was: 
 
THE COOPER INSTITUTE ADDRESS 103 
 
 1st. That no slave should be imported into the Territory 
 from foreign parts. 
 
 2d, That no slave should be carried into it who had been 
 imported into the United States since the first day of 
 May, 1798. 
 
 3d. That no slave should be carried into it, except by 
 the owner, and for his own use as a settler; the penalty in 
 all cases being a fine upon the violator of the law, and free- 
 dom to the slave. 
 
 This act also was passed without ayes or nays. In the 
 Congress which passed it there were two of the "thirty- 
 nine." They were Abraham Baldwin and Jonathan Dayton. 
 As stated in the case of Mississippi, it is probable they both 
 voted for it. They would not have allowed it to pass with- 
 out recording their opposition to it if, in their understand- 
 ing, it violated either the line properly dividing local from 
 Federal authority, or any provision of the Constitution. 
 
 In 1819-20 came and passed the Missouri question. 
 Many votes were taken, by yeas and nays, in both branches 
 of Congress, upon the various phases of the general ques- 
 tion. Two of the "thirty-nine " — Rufus King and Charles 
 Pinckney — were members of that Congress. Mr. King 
 steadily voted for slavery prohibition and against all com- 
 promises, while Mr. Pinckney as steadily voted against 
 slavery prohibition and against all compromises. By this, 
 Mr. King showed that, in his understanding, no line divid- 
 ing local from Federal authority, nor anything in the Con- 
 stitution, was violated by Congress prohibiting slavery in 
 Federal territory; while Mr. Pinckney, by his votes, showed 
 that, in his understanding, there was some sufficient reason 
 for opposing such prohibition in that case. 
 
 The cases I have mentioned are the only acts of the 
 "thirty-nine," or of any of them, upon the direct issue, 
 which I have been able to discover. 
 
 To enumerate the persons who thus acted as being four 
 
104 THE BRIEF 
 
 in 1784, two in 1787, seventeen in 1789, three in 1798, two 
 in 1804, and two in 1819-20, there would be thirty of th-em. 
 But this would be counting John Langdon, Roger Sherman, 
 William Few, Rufus King, and George Read each twice, 
 and Abraham Baldwin three times. The true number of 
 those of the "thirty-nine " whom I have shown to have 
 acted upon the question which, by the text, they under- 
 stood better than we, is twenty-three, leaving sixteen not 
 shown to have acted upon it in any way. 
 
 Here, then, we have twenty-three out of our thirty-iiine 
 fathers '* who framed the government under which we live," 
 who have, upon their official responsibility and their cor- 
 poral oaths, acting upon the very question which the text 
 affirms they "understood just as well, and even better, than 
 we do now " ; and twenty-one of them — a clear majority of 
 the whole "thirty-nine " — so acting upon it as to make 
 them guilty of gross political impropriety and wilful per- 
 jury if, in their understanding, any proper division between 
 local and Federal authority, or anything in the Constitution 
 they had made themselves, and sworn to support, forbade 
 the Federal Government to control as to slavery in the 
 Federal Territories. Thus the twenty-one acted; and, as 
 actions speak louder than words, so actions under such 
 responsibility speak still louder. 
 
 Two of the twenty-three voted against Congressional 
 prohibition of slavery in the Federal Territories, in the in- 
 stances in which they acted upon the question. But for 
 what reasons they so voted is not known. They may have 
 done so because they thought a proper division of local 
 from Federal authority, or some provision or principle of 
 the Constitution, stood in the way; or they may, without 
 any such question, have voted against the prohibition on 
 what appeared to them to be sufficient grounds of expedi- 
 ency. No one who has sworn to support the Constitution 
 can conscientiously vote for what he understands to be an 
 
THE COOPER INSTITUTE ADDRESS 105 
 
 unconstitutional measure, however expedient he may think 
 it; but one may and ought to vote against a measure which 
 he deems constitutional if, at the same time, he deems it 
 inexpedient. It, therefore, would be unsafe to set down 
 even the two who voted against the prohibition as having 
 done so because, in their understanding, any proper divi- 
 sion of local from Federal authority, or anything in the 
 Constitution, forbade the Federal Government to control 
 as to slavery in Federal territory. 
 
 The remaining sixteen of the "thirty-nine," so far as I 
 have discovered, have left no record of their understanding 
 upon the direct question of Federal control of slavery in 
 the Federal Territories. But there is much reason to believe 
 that their understanding upon that question would not 
 have appeared different from that of their twenty-three 
 compeers, had it been manifested at all. 
 
 For the purpose of adhering rigidly to the text, I have 
 purposely omitted whatever understanding may have been 
 manifested by any person, however distinguished, other 
 than the thirty-nine fathers who framed the original Con- 
 stitution; and, for the same reason, I have also omitted 
 whatever understanding may have been manifested by any 
 of the "thirty-nine " even on any other phase of the general 
 question of slavery. If we should look into their acts and 
 declarations on those other phases, as the foreign slave- 
 trade, and the morality and policy of slavery generally, it 
 would appear to us that on the direct question of Federal 
 control of slavery in Federal Territories, the sixteen, if they 
 had acted at all, would probably have acted just as the 
 twenty-three did. Among that sixteen were several of the 
 most noted anti-slavery men of those times — Dr. Frank- 
 lin, Alexander Hamilton, and Gouverneur Morris — while 
 there was not one now known to have been otherwise, 
 unless it may be John Rutledge, of South Carolina. 
 
 The sum of the whole is that of our thirty-nine fathers 
 
106 THE BRIEF 
 
 who framed the original Constitution, twenty-one — a 
 clear majority of the whole — certainly understood that no 
 proper division of local from Federal authority, nor any 
 part of the Constitution, forbade the Federal Government 
 to control slavery in the Federal Territories; while all the 
 rest had probably the same understanding. Such, unques- 
 tionably, was the understanding of our fathers who framed 
 the original Constitution; and the text affirms that they 
 understood the question "better than we." 
 
 But, so far, I have been considering the understanding 
 of the question manifested by the framers of the original 
 Constitution. In and by the original instrument, a mode 
 was provided for amending it; and, as I have already 
 stated, the present frame of "the government under which 
 we live" consists of that original, and twelve amendatory 
 articles framed and adopted since. Those who now insist 
 that Federal control of slavery in Federal Territories violates 
 the Constitution, point us to the provisions which they sup- 
 pose it thus violates; and, as I understand, they all fix upon 
 provisions in these amendatory articles, and not in the origi- 
 nal instrument. The Supreme Court, in the Dred Scott case, 
 plant themselves upon the fifth amendment, which provides 
 that no person shall be deprived of "life, liberty, or prop- 
 erty without due process of law"; while Senator Douglas 
 and his peculiar adherents plant themselves upon the tenth 
 amendment, providing that "the powers not delegated to 
 the United States by the Constitution" "are reserved to 
 the States respectively, or to the people." 
 
 Now it so happens that these amendments were framed 
 by the first Congress which sat under the Constitution — 
 the identical Congress which passed the act, already men- 
 tioned, enforcing the prohibition of slavery in the North- 
 western Territory. Not only was it the same Congress, but 
 they were the identical, same individual men who, at the 
 same session, and at the same time within the session, had 
 
THE COOPER INSTITUTE ADDRESS 107 
 
 under consideration, and in progress toward maturity, these 
 constitutional amendments, and this act prohibiting slav- 
 ery in all the territory the nation then owned. The consti- 
 tutional amendments were introduced before, and passed 
 after the act enforcing the Ordinance of '87; so that, during 
 the whole pendency of the act to enforce the Ordinance, the 
 constitutional amendments were also pending. 
 
 The seventy-six members of that Congress, including six- 
 teen of the framers of the original Constitution, as before 
 stated, were pre-eminently our fathers who framed that 
 part of " the government under which we live," which is now 
 claimed as forbidding the Federal Government to control 
 slavery in the Federal Territories. 
 
 Is it not a little presumptuous in anyone at this day to 
 affirm that the two things which that Congress deliberately 
 framed, and carried to maturity at the same time, are ab- 
 solutely inconsistent with each other .^^ And does not such 
 affirmation become impudently absurd when coupled with 
 the other affirmation, from the same mouth, that those who 
 did the two things alleged to be inconsistent, understood 
 whether they really were inconsistent better than we — 
 better than he who affirms that they are inconsistent? 
 
 It is surely safe to assume that the thirty-nine framers of 
 the original Constitution, and the seventy-six members of 
 the Congress which framed the amendments thereto, taken 
 together, do certainly include those who may be fairly 
 called "our fathers who framed the government under 
 which we live." And so assuming, I defy any man to show 
 that any one of them ever, in his whole life, declared that, in 
 his understanding, any proper division of local from Federal 
 authority, or any part of the Constitution, forbade the Fed- 
 eral Government to control as to slavery in the Federal 
 Territories. I go a step further. I defy anyone to show that 
 any living man in the world ever did, prior to the beginning 
 of the present century (and I might almost say prior to the 
 
108 THE BRIEF 
 
 beginning of the last half of the present century), declare 
 that, in his understanding, any proper division of local 
 from Federal authority, or any part of the Constitution, 
 forbade the Federal Government to control as to slavery 
 in the Federal Territories. To those who now so declare I 
 give not only "our fathers who framed the government 
 under which we live," but with them all other living men 
 within the century in which it was framed, among whom to 
 search, and they shall not be able to find the evidence of a 
 single man agreeing with them. 
 
 Now, and here, let me guard a little against being mis- 
 understood. I do not mean to say we are bound to follow 
 implicitly in whatever our fathers did. To do so would be 
 to discard all the lights of current experience — to reject all 
 progress, all improvement. What I do say is that if we 
 would supplant the opinions and policy of our fathers in 
 any case, we should do so upon evidence so conclusive, and 
 argument so clear, that even their great authority, fairly 
 considered and weighed, cannot stand; and most surely not 
 in a case whereof we ourselves declare they understood the 
 question better than we. 
 
 If any man at this day sincerely believes that a proper 
 division of local from Federal authority, or any part of the 
 Constitution, forbids the Federal Government to control 
 as to slavery in the Federal Territories, he is right to say so, 
 and to enforce his position by all truthful evidence and fair 
 argument which he can. But he has no right to mislead 
 others, who have less access to history, and less leisure to 
 study it, into the false belief that "our fathers who framed 
 the government under which we live" were of the same 
 opinion — thus substituting falsehood and deception for 
 truthful evidence and fair argument. If any man at this 
 day sincerely believes "our fathers who framed the govern- 
 ment under which we live" used and applied principles, in 
 other cases, which ought to have led them to understand 
 
THE COOPER INSTITUTE ADDRESS 109 
 
 that a proper division of local from Federal authority, or 
 some part of the Constitution, forbids the Federal Govern- 
 ment to control as to slavery in the Federal Territories, he 
 is right to say so. But he should, at the same time, brave 
 the responsibility of declaring that, in his opinion, he un- 
 derstands their principles better than they did themselves; 
 and especially should he not shirk that responsibility by 
 asserting that they "understood the question just as well, 
 and even better, than we do now." 
 
 But enough! Let all who believe that "our fathers who 
 framed the government under which we live understood 
 this question just as well, and even better, than we do 
 now," speak as they spoke, and act as they acted upon it. 
 This is all Republicans ask — all Republicans desire — in 
 relation to slavery. As those fathers marked it, so let it be 
 again marked, as an evil not to be extended, but to be 
 tolerated and protected only because of and so far as its 
 actual presence amongst us makes that toleration and pro- 
 tection a necessity. -Let all the guaranties those fathers 
 gave it be not grudgingly, but fully and fairly maintained. 
 For this Republicans contend, and with this, so far as I 
 know or believe, they will be content. 
 
 And now, if they would listen — as I suppose they will 
 not — I would address a few words to the Southern people. 
 
 I would say to them: You consider yourselves a reason- 
 able and a just people; and I consider that in the general 
 qualities of reason and justice you are not inferior to any 
 other people. Still, when you speak of us Republicans, you 
 do so only to denounce us as reptiles, or, at the best, as no 
 better than outlaws. You will grant a hearing to pirates or 
 murderers, but nothing like it to "Black Republicans." In 
 all your contentions with one another, each of you deems 
 an unconditional condemnation of " Black Republicanism," 
 as the first thing to be attended to. Indeed, such con- 
 demnation of us seems to be an indispensable prerequisite 
 
110 THE BRIEF 
 
 — license, so to speak — among you to be admitted or per- 
 mitted to speak at all. Now can you or not be prevailed 
 upon to pause and to consider whether this is quite just to 
 us, or even to yourselves? Bring forward your charges and 
 specifications, and then be patient long enough to hear us 
 deny or justify. 
 
 You say we are sectional. We deny it. That makes an 
 issue; and the burden of proof is upon you. You produce 
 your proof; and what is it.f^ Why, that our party has no 
 existence in your section — gets no votes in your section. 
 The fact is substantially true; but does it prove the issue? 
 If it does, then in case we should, without change of prin- 
 ciple, begin to get votes in your section, we should thereby 
 cease to be sectional. You cannot escape this conclusion; 
 and yet, are you willing to abide by it? If you are, you will 
 probably soon find that we have ceased to be sectional, for 
 we shall get votes in your section this very year. You will 
 then begin to discover, as the truth plainly is, that your 
 proof does not touch the issue. The fact that we get no 
 votes in your section is a fact of your making, and not of 
 ours. And if there be fault in that fact, that fault is pri- 
 marily yours, and remains so until you show that we repel 
 you by some wrong principle or practice. If we do repel you 
 by any wrong principle or practice, the fault is ours; but 
 this brings you to where you ought to have started — to a 
 discussion of the right or wrong of our principle. If our 
 principle, put in practice, would wrong your section for the 
 benefit of ours, or for any other object, then our principle, 
 and we with it, are sectional, and are justly opposed and 
 denounced as such. Meet us, then, on the question of 
 whether our principle, put in practice, would wrong your 
 section; and so meet us as if it were possible that something 
 may be said on your side. Do you accept the challenge? 
 No ! Then you really believe that the principle which " our 
 fathers who framed the government under which we live" 
 
THE COOPER INSTITUTE ADDRESS 111 
 
 thought so clearly right as to adopt it, and indorse it again 
 and again, upon their official oaths, is in fact so clearly 
 wrong as to demand your condemnation without a mo- 
 ment's consideration. 
 
 Some of you delight to flaunt in our faces the warning 
 against sectional parties given by Washington in his Fare- 
 well Address. Less than eight years before Washington 
 gave that warning, he had, as President of the United States, 
 approved and signed an act of Congress enforcing the pro- 
 hibition of slavery in the Northwestern Territory, which 
 act embodied the policy of the government upon that sub- 
 ject up to and at the very moment he penned that warning; 
 and about one year after he penned it, he wrote Lafayette 
 that he considered that prohibition a wise measure, express- 
 ing in the same connection his hope that we should at some 
 time have a confederacy of free States. 
 
 Bearing this in mind, and seeing that sectionalism has 
 since arisen upon this same subject, is that warning a 
 weapon in your hands against us, or in our hands against 
 you? Could Washington himself speak, would he cast the 
 blame of that sectionalism upon us, who sustain his policy, 
 or upon you, who repudiate it.^ We respect that warning of 
 Washington, and we commend it to you, together with his 
 example pointing to the right application of it. 
 
 But you say you are conservative — eminently conserva- 
 tive — while we are revolutionary, destructive, or some- 
 thing of the sort. What is conservatism .f^ Is it not adher- 
 ence to the old and tried, against the new and untried? We 
 stick to, contend for, the identical old policy on the point 
 in controversy which was adopted by "our fathers who 
 framed the government under which we live"; while you 
 with one accord reject, and scout, and spit upon that old 
 policy, and insist upon substituting something new. True, 
 you disagree among yourselves as to what that substitute 
 shall be. You are divided on new propositions and plans. 
 
112 THE BRIEF 
 
 but you are unanimous in rejecting and denouncing the old 
 policy of the fathers. Some of you are for reviving the 
 foreign slave-trade; some for a Congressional slave code for 
 the Territories; some for Congress forbidding the Terri- 
 tories to prohibit slavery within their limits; some for main- 
 taining slavery in the Territories through the judiciary; 
 some for the " gur-reat pur-rinciple " that " if one man would 
 enslave another, no third man should object," fantastically 
 called "popular sovereignty," but never a man among you 
 is in favor of Federal prohibition of slavery in Federal 
 Territories, according to the practice of "our fathers who 
 framed the government under which we live." Not one of 
 all your various plans can show a precedent or an advocate 
 in the century within which our government originated. 
 Consider, then, whether your claim of conservatism for 
 yourselves, and your charge of destructiveness against us, 
 are based on the most clear and stable foundations. 
 
 And again, you say we have made the slavery question 
 more prominent than it formerly was. We deny it. We 
 admit that it is more prominent, but we deny that we made 
 it so. It was not we, but you, who discarded the old policy 
 of the fathers. We resisted, and still resist, your innova- 
 tion; and thence comes the greater prominence of the 
 question. Would you have that question reduced to its 
 former proportions.? Go back to that old policy. What has 
 been will be again, under the same conditions. If you 
 would have the peace of the old times, re-adopt the precepts 
 and policy of the old times. 
 
 You charge that we stir up insurrections among your 
 slaves. We deny it; and what is your proof.? Harper's 
 Ferry! John Brown! ! John Brown was no Republican; 
 and you have failed to implicate a single Republican in his 
 Harper's Ferry enterprise. If any member of our party is 
 guilty in that matter, you know it or you do not know it. 
 If you do know it, you are inexcusable for not designating 
 
THE COOPER INSTITUTE ADDRESS 113 
 
 the man and proving the fact. If you do not know it, you 
 are inexcusable for asserting it, and especially for persisting 
 in the assertion after you have tried and failed to make 
 the proof. You need not be told that persisting in a charge 
 which one does not know to be true is simply malicious 
 slander. 
 
 Some of you admit that no Republican designedly aided 
 or encouraged the Harper's Ferry affair, but still insist that 
 our doctrines and declarations necessarily lead to such 
 results. We do not believe it. We know we hold no doc- 
 trine, and make no declaration which were not held to and 
 made by "our fathers who framed the government under 
 which we live." You never dealt fairly by us in relation to 
 this affair. When it occurred, some important State elec- 
 tions were near at hand, and you were in evident glee with 
 the belief that, by charging the blame upon us, you could 
 get an advantage of us in those elections. The elections 
 cg,me, and your expectations were not quite fulfilled. Every 
 Republican man knew that, as to himself at least, your 
 charge was a slander, and he was not much inclined by it 
 to cast his vote in your favor. Republican doctrines and 
 declarations are accompanied with a continual protest 
 against any interference whatever with your slaves, or with 
 you about your slaves. Surely, this does not encourage 
 them to revolt. True, we do, in common with "our fathers 
 who framed the government under which we live," declare 
 our belief that slavery is wrong; but the slaves do not hear 
 us declare even this. For anything we say or do, the slaves 
 would scarcely know there is a Republican party. I believe 
 they would not, in fact, generally know it but for your mis- 
 representations of us in their hearing. In your political 
 contests among yourselves each faction charges the other 
 with sympathy with Black Republicanism; and then, to give 
 point to the charge, defines Black Republicanism to simply 
 be insurrection, blood, and thunder among the slaves. 
 
114 THE BRIEF 
 
 Slave insurrections are no more common now than they 
 were before the RepubUcan party was organized. What 
 induced the Southampton insurrection/ twenty-eight years 
 ago, in which at least three times as many lives were lost 
 as at Harper's Ferry? You can scarcely stretch your very 
 elastic fancy to the conclusion that Southampton was 
 "got up by Black Republicanism." In the present state of 
 things in the United States, I do not think a general, or 
 even a very extensive, slave insurrection is possible. The 
 indispensable concert of action cannot be attained. The 
 slaves have no means of rapid communication; nor can 
 incendiary freeman, black or white, supply it. The explo- 
 sive materials are everywhere in parcels; but there neither 
 are, nor can be supplied, the indispensable connecting 
 trains. 
 
 Much is said by Southern people about the affection of 
 slaves for their masters and mistresses; and a part of it, at 
 least, is true. A plot for an uprising could scarcely be de- 
 vised and communicated to twenty individuals before some 
 one of them, to save the life of a favorite master or mistress, 
 would divulge it. This is the rule; and the slave revolution 
 in Hayti ^ was not an exception to it, but a case occurring 
 under peculiar circumstances. The Gunpowder Plot of 
 British history, though not connected with slaves, was more 
 in point. In that case, only about twenty were admitted to 
 the secret; and yet one of them, in his anxiety to save a 
 friend, betrayed the plot to that friend, and, by conse- 
 quence, averted the calamity. Occasional poisonings from 
 the kitchen, and open or stealthy assassinations in the field, 
 and local revolts extending to a score or so, will continue to 
 
 1 An uprising of slaves occurred at Southampton, Virginia, in 1831, 
 and a number of white persons lost their lives. 
 
 2 Bloody and revolutionary slave insurrections took place in Hayti 
 from 1790 to 1793. The negroes under the leadership of the famous 
 Toussaint I'Ouverture ultimately secured the supremacy, and the island 
 declared its independence as a republic in 1801. 
 
THE COOPER INSTITUTE ADDRESS 115 
 
 occur as the natural results of slavery; but no general in- 
 surrection of slaves, as I think, can happen in this country 
 for a long time. Whoever much fears, or much hopes for, 
 such an event will be alike disappointed. 
 
 In the language of Mr. Jefferson, uttered many years 
 ago, "It is still in our power to direct the process of eman- 
 cipation and deportation peaceably, and in such slow de- 
 grees as that the evil will wear off insensibly; and their 
 places be, pari passu, filled up by free white laborers. If, on 
 the contrary, it is left to force itself on, human nature must 
 shudder at the prospect held up." 
 
 Mr. Jefferson did not mean to say, nor do I, that the 
 power of emancipation is in the Federal Government. He 
 spoke of Virginia; and, as to the power of emancipation, I 
 speak of the slaveholding States only. The Federal Gov- 
 ernment, however, as we insist, has the power of restraining 
 the extension of the institution — the power to insure that 
 a slave insurrection shall never occur on any American soil 
 which is now free from slavery. 
 
 John Brown's effort was peculiar. It was not a slave in- 
 surrection. It was an attempt by white men to get up a 
 revolt among slaves, in which the slaves refused to partici- 
 pate. In fact, it was so absurd that the slaves, with all their 
 ignorance, saw plainly enough it could not succeed. That 
 affair, in its philosophy, corresponds with the many at- 
 tempts, related in history, at the assassination of kings and 
 emperors. An enthusiast broods over the oppression of a 
 people till he fancies himself commissioned by Heaven to 
 liberate them. He ventures the attempt, which ends in 
 little else than his own execution. Orsini*s attempt on 
 Louis Napoleon, and John Brown's attempt at Harper's 
 Ferry, were, in their philosophy, precisely the same. The 
 eagerness to cast blame on old England in the one case, 
 and on New England in the other, does not disprove the 
 sameness of the two things. 
 
116 THE BRIEF 
 
 And how much would it avail you, if you could, by the 
 use of John Brown, Helper's book,^ and the like, break 
 up the Republican organization? Human action can be 
 modified to some extent, but human nature cannot be 
 changed. There is a judgment and a feeling against slavery 
 in this nation, which cast at least a million and a half of 
 votes. You cannot destroy that judgment and feeling — 
 that sentiment — by breaking up the political organiza- 
 tion which rallies around it. You can scarcely scatter and 
 disperse an army which has been formed into order in the 
 face of your heaviest fire; but if you could, how much 
 would you gain by forcing the sentiment which created it out 
 of the peaceful channel of the ballot-box into some other 
 channel? What would that other channel probably be? 
 Would the number of John Browns be lessened or enlarged 
 by the operation? 
 
 But you will break up the Union rather than submit to 
 a denial of your constitutional rights. 
 
 That has a somewhat reckless sound; but it would be 
 palliated, if not fully justified, were we proposing, by the 
 mere force of numbers, to deprive you of some right plainly 
 written down in the Constitution. But we are proposing no 
 such thing. 
 
 When you make these declarations, you have a specific 
 and well-understood allusion to an assumed constitutional 
 right of yours to take slaves into the Federal Territories, 
 and to hold them there as property. But no such right is 
 specially written in the Constitution. That instrument is 
 literally silent about any such right. We, on the contrary, 
 deny that such a right has any existence in the Constitu- 
 tion, even by implication. 
 
 Your purpose, then, plainly stated, is that you will de- 
 stroy the government, unless you be allowed to construe 
 
 1 The Impending Crisis, by Hinton R. Helper, published in 1857, was 
 a bitter attack upon the moral and economic aspects of slavery. 
 
THE COOPER INSTITUTE ADDRESS 117 
 
 and force the Constitution as you please, on all points in 
 dispute between you and us. You will rule or ruin in all 
 events. 
 
 This, plainly stated, is your language. Perhaps you will 
 say the Supreme Court has decided the disputed constitu- 
 tional question in your favor. Not quite so. But, waiving 
 the lawyer's distinction between dictum and decision, the 
 court has decided the question for you in a sort of way. 
 The court has substantially said, it is your constitutional 
 right to take slaves into the Federal Territories, and to 
 hold them there as property. When I say the decision was 
 made in a sort, of way, I mean it was made in a divided 
 court, by a bare majority of the judges, and they not quite 
 agreeing with one another in the reasons for making it; 
 that it is so made as that its avowed supporters disagree 
 with one another about its meaning, and that it was mainly 
 based upon a mistaken statement of fact — the statement 
 in the opinion that "the right of property in a slave is dis- 
 tinctly and expressly affirmed in the Constitution." 
 
 An inspection of the Constitution will show that the 
 right of property in a slave is not "distinctly and expressly 
 affirmed" in it. Bear in mind, the judges do not pledge 
 their judicial opinion that such right is impliedly affirmed 
 in the Constitution; but they pledge their veracity that it is 
 "distinctly and expressly" affirmed there — "distinctly," 
 that is, not mingled with anything else — "expressly," that 
 is, in words meaning just that, without the aid of any infer- 
 ence, and susceptible of no other meaning. 
 
 If they had only pledged their judicial opinion that such 
 right is affirmed in the instrument by implication, it would 
 be open to others to show that neither the word "slave" 
 nor "slavery" is to be found in the Constitution, nor the 
 word "property" even, in any connection with language 
 alluding to the thing slave or slavery; and that wherever 
 in that instrument the slave is alluded to, he is called a 
 
118 THE BRIEF 
 
 "person"; and wherever his master's legal right in relation 
 to him is alluded to, it is spoken of as "service or labor 
 which may be due " — as a debt payable in service or labor. 
 Also it would be open to show, by contemporaneous history, 
 that this mode of alluding to slaves and slavery, instead of 
 speaking of them, was employed on purpose to exclude from 
 the Constitution the idea that there could be property in 
 man. 
 
 To show all this is easy and certain. 
 
 When this obvious mistake of the judges shall be brought 
 to their notice, is it not reasonable to expect that they will 
 withdraw the mistaken statement, and reconsider the con- 
 clusion based upon it.^* 
 
 And then it is to be remembered that "our fathers who 
 framed the government under which we live" — the men 
 who made the Constitution — decided this same constitu- 
 tional question in our favor long ago; decided it without 
 division among themselves when making the decision; with- 
 out division among themselves about the meaning of it 
 after it was made, and, so far as any evidence is left, with- 
 out basing it upon any mistaken statement of facts. 
 
 Under all these circumstances, do you really feel your- 
 selves justified to break up this government unless such a 
 court decision as yours is shall be at once submitted to as a 
 conclusive and final rule of political action? But you will 
 not abide the election of a Republican president! In that 
 supposed event, you say, you will destroy the Union; and 
 then, you say, the great crime of having destroyed it will 
 be upon us ! That is cool. A highwayman holds a pistol to 
 my ear, and mutters through his teeth, "Stand and deliver, 
 or I shall kill you, and then you will be a murderer!" 
 
 To be sure, what the robber demanded of me — my 
 money — was my own; and I had a clear right to keep it; 
 but it was no more my own than my vote is my own; and 
 th^ threat of death to me, to extort my money, and the 
 
THE COOPER INSTITUTE ADDRESS 119 
 
 threat of destruction to the Union, to extort my vote, can 
 scarcely be distinguished in principle. 
 
 A few words now to Republicans. It is exceedingly de- 
 sirable that all parts of this great Confederacy shall be at 
 peace, and in harmony one with another. Let us Republi- 
 cans do our part to have it so. Even though much pro- 
 voked, let us do nothing through passion and ill temper. 
 Even though the Southern people will not so much as lis- 
 ten to us, let us calmly consider their demands, and yield 
 to them if, in our deliberate view of our duty, we possibly 
 can. Judging by all they say and do, and by the subject 
 and nature of their controversy with us, let us determine, 
 if we can, what will satisfy them. 
 
 Will they be satisfied if the Territories be unconditionally 
 surrendered to them.^^ We know they will not. In all their 
 present complaints against us, the Territories are scarcely 
 mentioned. Invasions and insurrections are the rage now. 
 Will it satisfy them if, in the future, we have nothing to do 
 with invasions and insurrections? We know it will not. 
 We so know, because we know we never had anything to 
 do with invasions and insurrections; and yet this total 
 abstaining does not exempt us from the charge and the 
 denunciation. 
 
 The question recurs, What will satisfy them? Simply 
 this : we must not only let them alone, but we must some- 
 how convince them that we do let them alone. This, we 
 know by experience, is no easy task. We have been so 
 trying to convince them from the very beginning of our 
 organization, but with no success. In all our platforms and 
 speeches we have constantly protested our purpose to let 
 them alone; but this has had no tendency to convince them. 
 Alike unavailing to convince them is the fact that they 
 have never detected a man of us in any attempt to disturb 
 them. 
 
 These natural and apparently adequate means all failing, 
 
120 THE BRIEF 
 
 what will convince them? This, and this only: cease to call 
 slavery wrong, and join them in calling it right. And this 
 must be done thoroughly — done in acts as well as in 
 words. Silence will not be tolerated — we must place our- 
 selves avowedly with them. Senator Douglas's new sedi- 
 tion law must be enacted and enforced, suppressing all 
 declarations that slavery is wrong, whether made in poli- 
 tics, in presses, in pulpits, or in private. We must arrest 
 and return their fugitive slaves with greedy pleasure. We 
 must pull down our free State constitutions. The whole 
 atmosphere must be disinfected from all taint of opposition 
 to slavery, before they will cease to believe that all their 
 troubles proceed from us. 
 
 I am quite aware they do not state their case precisely in 
 this way. Most of them would probably say to us, "Let us 
 alone; do nothing to us, and say what you please about 
 slavery." But we do let them alone — have never dis- 
 turbed them — so that, after all, it is what we say which 
 dissatisfies them. They will continue to accuse us of doing, 
 until we cease saying. 
 
 I am also aware they have not as yet in terms demanded 
 the overthrow of our free-State constitutions. Yet those 
 constitutions declare the wrong of slavery with more sol- 
 emn emphasis than do all other sayings against it; and 
 when all these other sayings shall have been silenced, the 
 overthrow of these constitutions will be demanded, and 
 nothing be left to resist the demand. It is nothing to the 
 contrary that they do not demand the whole of this just 
 now. Demanding what they do, and for the reason they do, 
 they can voluntarily stop nowhere short of this consumma- 
 tion. Holding, as they do, that slavery is morally right and 
 socially elevating, they cannot cease to demand a full 
 national recognition of it as a legal right and a social bless- 
 ing. 
 
 Nor can we justifiably withhold this on any ground save 
 
THE COOPER INSTITUTE ADDRESS 121 
 
 our conviction that slavery is wrong. If slavery is right, all 
 words, acts, laws, and constitutions against it are them- 
 selves wrong, and should be silenced and swept away. If 
 it is right, we cannot justly object to its nationality — its 
 universality; if it is wrong, they cannot justly insist upon 
 its extension — its enlargement. All they ask we could 
 readily grant, if we thought slavery right; all we ask they 
 uould as readily grant, if they thought it wrong. Their 
 thinking it right and our thinking it wrong is the precise 
 fact upon which depends the whole controversy. Thinking 
 it right, as they do, they are not to blame for desiring its 
 full recognition as being right; but thinking it wrong, as we 
 do, can we yield to them? Can we cast our votes with their 
 view, and against our own? In view of our moral, social, 
 and political responsibilities, can we do this? 
 
 Wrong as we think slavery is, we can yet afford to let it 
 alone where it is, because that much is due to the necessity 
 arising from its actual presence in the nation; but can we, 
 while our votes will prevent it, allow it to spread into the 
 national Territories, and to overrun us here in these free 
 States? If our sense of duty forbids this, then let us stand 
 by our duty fearlessly and effectively. Let us be diverted 
 by none of those sophistical contrivances wherewith we are 
 so industriously plied and belabored — contrivances such 
 as groping for some middle ground between the right and 
 the wrong: vain as the search for a man who should be 
 neither a living man nor a dead man; such as a policy of 
 *' don't care" on a question about which all true men do 
 care; such as Union appeals beseeching true Union men to 
 yield to Disunionists, reversing the divine rule, and call- 
 ing, not the sinners, but the righteous to repentance; such 
 as invocations to Washington, imploring men to unsay 
 what Washington said and undo what Washington did. 
 
 Neither let us be slandered from our duty by false ac- 
 cusations against us, nor frightened from it by menaces of 
 
122 THE BRIEF 
 
 destruction to the government, nor of dungeons to our- 
 selves. Let us have faith that right makes might, and 
 in that faith let us to the end dare to do our duty as we 
 understand it. 
 
SPEECH ON THE PANAMA CANAL TOLLS 123 
 
 3. THE SPEECH OF THE HONORABLE ELIHU ROOT 
 OF NEW YORK 
 
 In the Senate of the United States, on the Panama Canal Tolls, 
 January 21, 1913^ 
 
 On August 24, 1912, the House of Representatives approved 
 an act "for the opening, maintenance, protection, and operation 
 of the Panama Canal, and the sanitation and government of the 
 Canal Zone." Section 5 of this bill provided: "That the Presi- 
 dent is hereby authorized to prescribe and from time to time 
 change the tolls that shall be levied by the Government of the 
 United States for the use of the Panama Canal: Provided, That 
 no tolls, when prescribed as above, shall be changed, unless six 
 months' notice thereof shall have been given by the President by 
 proclamation. No tolls shall he levied upon vessels engaged in the 
 coastwise trade of the United States. . . . When based upon net 
 registered tonnage for ships of commerce the tolls shall not ex- 
 ceed one dollar and twenty-five cents per net registered ton, nor 
 be less, other than for vessels of the United States and its citizens, 
 than the estimated proportionate cost of the actual maintenance 
 and operation of the Canal, subject, however, to the provisions of 
 article 19 of the convention between the United States and the 
 Republic of Panama." 
 
 On January 14, 1913, Mr. Root, of New York, introduced in 
 the Senate an amendment striking out from section 5 the words 
 italicized above: "No tolls shall be levied upon vessels engaged 
 in the coastwise trade of the United States," and also, "other 
 than for vessels of the United States and its citizens." Mr. 
 Root's amendment was read twice and referred to the Com- 
 mittee on Interoceanic Canals, where it died. 
 
 There was, however, a very considerable and non-partisan 
 sentiment throughout the country, supported by an influential 
 portion of the press and by small groups in both houses of Con- 
 gress, to the eflFect that the principle underlying Mr. Root's 
 amendment was right in principle, in that by section 5 the Pan- 
 ama Canal Act violated the Hay-Pauncefote Treaty with Great 
 Britain. Furthermore, President Wilson shared strongly in this 
 
 ' From the Congressional Record, by the kind permission of Mr. Root. 
 
124 THE BRIEF 
 
 opinion, and in February, 1914, read a message in Congress ask- 
 ing for a reversal of the objectionable legislation. 
 
 In March the House Committee reported favorably a bill re- 
 pealing the exemption clause of the Panama Canal Act. Debate 
 on the measure continued from March 6 to March 31, when the 
 bill passed the House by a vote of 247 to 162. When the measure 
 was brought before the Senate a long struggle ensued, but finally 
 on June 11, it was passed in the following amended form: 
 
 Provided, That the passage of this act shall not be construed 
 or held as a waiver or relinquishment of any right the United 
 States may have under the treaty with Great Britain, ratified 
 February 21, 1902, or the treaty with the Republic of Panama, 
 ratified February 26, 1904, or otherwise, to discriminate in favor 
 of its vessels by exempting the vessels of the United States or its 
 citizens from the payment of tolls for passage through said Canal, 
 or as in any way waiving, impairing, or affecting any right of the 
 United States under said treaties, or otherwise, with respect to 
 the sovereignty over or the ownership, control, and management 
 of said Canal, and the regulation of the conditions or charges of 
 traffic through the same. 
 
 On the following day, June 12, the House concurred in the 
 Senate amendment, and on June 15 it received the President's 
 signature. 
 
 Mr. President, in the late days of last summer, after 
 nearly nine months of continuous session, Congress enacted, 
 in the bill to provide for the administration of the Panama 
 Canal, a provision making a discrimination between the 
 tolls to be charged upon foreign vessels and the tolls to be 
 charged upon American vessels engaged in coastwise trade. 
 We all must realize, as we look back, that when that pro- 
 vision was adopted the members of both houses were much 
 exhausted; our minds were not working with their full vigor; 
 we were weary physically and mentally. Such discussion as 
 there was, was to empty seats. In neither House of Con- 
 gress, during the period that this provision was under dis- 
 cussion, could there be found more than a scant dozen or 
 two of members. The provision has been the cause of great 
 regret to a multitude of our fellow citizens, whose good 
 
SPEECH ON THE PANAMA CANAL TOLLS 125 
 
 opinion we all desire and whose leadership of opinion in the 
 country makes their approval of the course of our Congress 
 an important element in maintaining that confidence in 
 government which is so essential to its success. The pro- 
 vision has caused a painful impression throughout the 
 world that the United States has departed from its often- 
 announced rule of equality of opportunity in the use of the 
 Panama Canal, and is seeking a special advantage for itself 
 in what is believed to be a violation of the obligations of a 
 treaty. Mr. President, that opinion of the civilized world 
 is something which we may not lightly disregard. "A de- 
 cent respect to the opinions of mankind" was one of the 
 motives stated for the people of these colonies in the great 
 Declaration of American Independence. 
 
 The effect of the provision has thus been doubly unfor- 
 tunate, and I ask the Senate to listen to me while I endeavor 
 to state the situation in which we find ourselves; to state 
 the case which is made against the action that we have 
 taken, in order that I may present to the Senate the 
 question whether we should not either submit to an im- 
 partial tribunal the question whether we are right, so 
 that, if we are right, we may be vindicated in the eyes 
 of all the world; or whether we should not, by a repeal 
 of the provision, retire from the position which we have 
 taken. 
 
 In the year 1850, Mr. President, there were two great 
 powers in possession of the North American Continent to 
 the north of the Rio Grande. The United States had but 
 just come to its full stature. By the Webster-Ashburton 
 Treaty of 1842 our northeastern boundary had been 
 settled, leaving to Great Britain that tremendous stretch 
 of seacoast including Nova Scotia, New Brunswick, New- 
 foundland, Labrador, and the shores of the Gulf of St. 
 Lawrence, now forming the Province of Quebec. In 1846 
 the Oregon boundary had been settled, assuring to the 
 
126 THE BRIEF 
 
 United States a title to that vast region which now consti- 
 tutes the States of Washington, Oregon, and Idaho. In 
 1848 the Treaty of Guadalupe-Hidalgo had given to us that 
 great empire wrested from Mexico as a result of the Mexi- 
 can War, which now spreads along the coast of the Pacific 
 as the State of California and the great region between 
 California and Texas. 
 
 Inspired by the manifest requirements of this new em- 
 pire, the United States turned its attention to the possibil- 
 ity of realizing the dream of centuries and connecting its 
 two coasts — its old coast upon the Atlantic and its new 
 coast upon the Pacific — by a ship canal through the 
 Isthmus; but when it turned its attention in that direction, 
 it found the other empire holding the place of advantage. 
 Great Britain had also her coast upon the Atlantic and her 
 coast upon the Pacific, to be joined by a canal. Further 
 than that. Great Britain was a Caribbean power. She had 
 Bermuda and the Bahamas; she had Jamaica and Trinidad; 
 she had the Windward Islands and the Leeward Islands; 
 she had British Guiana and British Honduras; she had, 
 moreover, a protectorate over the Mosquito Coast, a great 
 stretch of territory upon the eastern shore of Central 
 America which included the river San Juan and the valley 
 and harbor of San Juan de Nicaragua, or Grey town. All 
 men's minds then were concentrated upon the Nicaragua 
 Canal route, as they were until after the Treaty of 1901 was 
 made. 
 
 And thus, when the United States turned its attention 
 toward joining these two coasts by a canal through the 
 Isthmus, it found Great Britain in possession of the eastern 
 end of the route which men generally believed would be the 
 most available route for the canal. Accordingly, the United 
 States sought a treaty with Great Britain by which Great 
 Britain should renounce the advantage which she had and 
 admit the United States to equal participation with her in 
 
SPEECH ON THE PANAMA CANAL TOLLS 127 
 
 the control and the protection of a canal across the Isthmus. 
 From that came the Clayton-Bulwer Treaty. 
 
 Let me repeat that this treaty was sought, not by 
 England, but by the United States. Mr. Clayton, who 
 was Secretary of State at the time, sent our Minister to 
 France, Mr. Rives, to London for the purpose of urging 
 upon Lord Palmerston the making of the treaty. The 
 treaty was made by Great Britain as a concession to the 
 urgent demands of the United States. 
 
 I should have said, in speaking about the urgency with 
 which the United States sought the Clayton-Bulwer Treaty, 
 that there were two treaties made with Nicaragua, one by 
 Mr. Heis and one by Mr. Squire, both representatives of 
 the United States. Each gave, so far as Nicaragua could, 
 great powers to the United States in regard to the con- 
 struction of a canal, but they were made without authoriza- 
 tion from the United States, and they were not approved 
 by the Government of the United States and were never 
 sent to the Senate. Mr. Clayton, however, held those 
 treaties in abeyance as a means of inducing Great Britain 
 to enter into the Clayton-Bulwer Treaty. He held them 
 practically as a whip over the British negotiators, and, 
 having accomplished the purpose, they were thrown into 
 the waste-basket. 
 
 By that treaty Great Britain agreed with the United 
 States that neither Government would "ever obtain or 
 maintain for itself any exclusive control over the ship 
 canal"; that neither would "make use of any protection" 
 which either afforded to a canal "or any alliance which 
 either" might have "with any State or people for the pur- 
 pose of erecting or maintaining any fortifications, or of 
 occupying, fortifying, or colonizing Nicaragua, Costa Rica, 
 the Mosquito Coast, or any part of Central America, or of 
 assuming or exercising dominion over the same "; and that 
 neither would " take advantage of any intimacy, or use any 
 
128 THE BRIEF 
 
 alliance, connection, or influence that either" might "pos- 
 sess with any State or Government through whose territory 
 the said canal may pass, for the purpose of acquiring or 
 holding, directly or indirectly, for the citizens or subjects 
 of the one, any rights or advantages in regard to commerce 
 or navigation through the said canal which shall not be 
 offered on the same terms to the citizens or subjects of the 
 other." 
 
 You will observe, Mr. President, that under these provi- 
 sions the United States gave up nothing that it then had. 
 Its obligations were entirely looking to the future; and 
 Great Britain gave up its rights under the protectorate 
 over the Mosquito Coast, gave up its rights to what was 
 supposed to be the eastern terminus of the canal. And, let 
 me say without recurring to it again, under this treaty, 
 after much discussion which ensued as to the m.eaning of 
 its terms, Great Britain did surrender her rights to the 
 Mosquito Coast, so that the position of the United States 
 and Great Britain became a position of absolute equality. 
 Under this treaty also both parties agreed that each would 
 "enter into treaty stipulations with such of the Central 
 American States as they" might "deem advisable for the 
 purpose" — I now quote the words of the treaty — "for 
 the purpose of more effectually carrying out the great de- 
 sign of this convention, namely, that of constructing and 
 maintaining the said canal as a ship communication be- 
 tween the two oceans for the benefit of mankind, on equal 
 terms to all, and of protecting the same." 
 
 That declaration, Mr. President, is the corner-stone of 
 the rights of the United States upon the Isthmus of Panama, 
 rights having their origin in a solemn declaration that there 
 should be constructed and maintained a ship canal "be- 
 tween the two oceans for the benefit of mankind, on equal 
 terms to all." 
 
 In the eighth article of that treaty the parties agreed: 
 
SPEECH ON THE PANAMA CANAL TOLLS 129 
 
 The Governments of the United States and Great Britain hav- 
 ing not only desired, in entering into this convention, to accom- 
 plish a particular object, but also to establish a general principle, 
 they hereby agree to extend their protection, by treaty stipula- 
 tions, to any other practicable communications, whether by canal 
 or railway, across the isthmus which connects North and South 
 America, and especially to the interoceanic communications, 
 should the same prove to be practicable, whether by canal or rail- 
 way, which are now proposed to be established by the way of 
 Tehuantepec or Panama. In granting, however, their joint pro- 
 tection to any such canals or railways as are by this article speci- 
 fied, it is always understood by the United States and Great 
 Britain that the parties constructing or owning the same shall 
 impose no other charges or conditions of traffic thereupon than 
 the aforesaid Governments shall approve of as just and equitable; 
 and that the same canals or railways, being open to the citizens 
 and subjects of the United States and Great Britain on equal 
 terms, shall also be open on like terms to the citizens and sub- 
 jects of every other State which is willing to grant thereto such 
 protection as the United States and Great Britain engage to 
 afford. 
 
 There, Mr. President, is the explicit agreement for 
 equality of treatment to the citizens of the United States 
 and to the citizens of Great Britain in any canal, wherever 
 it may be constructed, across the Isthmus. That was the 
 fundamental principle embodied in the Treaty of 1850. 
 And we are not without an authoritative construction as 
 to the scope and requirements of an agreement of that 
 description, because we have another treaty with Great 
 Britain — a treaty which formed one of the great land- 
 marks in the diplomatic history of the world, and one of 
 the great steps in the progress of civilization — the Treaty 
 of Washington of 1871, under which the Alabama claims 
 were submitted to arbitration. Under that treaty there 
 were provisions for the use of the American canals along 
 the waterway of the Great Lakes, and the Canadian canals 
 along the same line of communication, upon equal terms to 
 the citizens of the two countries. 
 
130 THE BRIEF 
 
 Some years after the treaty, Canada undertook to do 
 something quite similar to what we have undertaken to do 
 in this law about the Panama Canal. It provided that while 
 nominally a toll of twenty cents a ton should be charged 
 upon the merchandise both of Canada and of the United 
 States there should be a rebate of eighteen cents for all 
 merchandise which went to Montreal or beyond, leaving a 
 toll of but two cents a ton for that merchandise. The 
 United States objected; and I beg your indulgence while I 
 read from the message of President Cleveland upon that 
 subject, sent to the Congress August 23, 1888. He says: 
 
 By article 27 of the Treaty of 1871 provision was made to se- 
 cure to the citizens of the United States the use of the Welland, St. 
 Lawrence, and other canals in the Dominion of Canada on terms 
 of equality with the inhabitants of the Dominion, and to also 
 secure to the subjects of Great Britain the use of the St. Clair 
 Flats Canal on terms of equality with the inhabitants of the 
 United States. 
 
 The equality with the inhabitants of the Dominion which we 
 were promised in the use of the canals of Canada did not secure to 
 us freedom from tolls in their navigation, but we had a right to 
 expect that we, being Americans and interested in American com- 
 merce, would be no more burdened in regard to the same than 
 Canadians engaged in their own trade; and the whole spirit of 
 the concession made was, or should have been, that merchandise 
 and property transported to an American market through these 
 canals should not be enhanced in its cost by tolls many times 
 higher than such as were carried to an adjoining Canadian market. 
 All our citizens, producers and consumers, as well as vessel owners, 
 were to enjoy the equality promised. 
 
 And yet evidence has for some time been before the Congress, 
 furnished by the Secretary of the Treasury, showing that, while 
 the tolls charged in the first instance are the same to all, such 
 vessels and cargoes as are destined to certain Canadian ports — 
 
 their coastwise trade — 
 
 are allowed a refund of nearly the entire tolls, while those bound 
 for American ports are not allowed any such advantage. 
 
 To promise equality and then in practice make it conditional 
 
SPEECH ON THE PANAMA CANAL TOLLS 131 
 
 upon our vessels doing Canadian business instead of their own, is 
 to fulfill a promise with the shadow of performance. 
 
 Upon the representations of the United States embody- 
 ing that viewi Canada retired from the position which she 
 had taken, rescinded the provision for differential tolls, and 
 put American trade going to American markets on the same 
 basis of tolls as Canadian trade going to Canadian markets. 
 She did not base her action upon any idea that there was 
 no competition between trade to American ports and trade 
 to Canadian ports, but she recognized the law of equality 
 in good faith and honor; and to this day that law is being 
 accorded to us, and by each great Nation to the other. 
 
 I have said, Mr. President, that the Clayton-Bulwer 
 Treaty was sought by us. In seeking it we declared to 
 Great Britain what it was that we sought. I ask the Senate 
 to listen to the declaration that we made to induce Great 
 Britain to enter into that treaty — to listen to it because 
 it is the declaration by which we are in honor bound as 
 truly as if it were signed and sealed. 
 
 Here I will read from the report made to the Senate on 
 the 5th day of April, 1900, by Senator Cushman K. Davis, 
 then chairman of the Committee on Foreign Relations. So 
 you will perceive that this is no new matter to the Senate of 
 the United States, and that I am not proceeding upon my 
 own authority in thinking it worthy of your attention. 
 
 Mr. Rives was instructed to say and did say to Lord 
 Palmerston, in urging upon him the making of the Clayton- 
 Bulwer Treaty, this : 
 
 The United States sought no exclusive privilege or preferential 
 right of any kind in regard to the proposed communication, and 
 their sincere wish, if it should be found practicable, was to see it 
 dedicated to the common use of all nations on the most liberal 
 terms and a footing of perfect equality for all. 
 
 That the United States would not, if they could, obtain any 
 exclusive right or privilege in a great highway which naturally 
 belonged to all mankind. 
 
132 THE BRIEF 
 
 That, sir, was the spirit of the Clayton-Bulwer Con- 
 vention. That was what the United States asked Great 
 Britain to agree upon. That self-denying declaration under- 
 lay and permeated and found expression in the terms of the 
 Clayton-Bulwer Convention. And upon that representa- 
 tion Great Britain in that convention relinquished her 
 coign of vantage which she herself had for the benefit of her 
 great North American empire for the control of the canal 
 across the Isthmus. 
 
 Mr. Cummins. The Senator has stated that at the time 
 of the Clayton-Bulwer Treaty we were excluded from the 
 Mosquito Coast by the protectorate exercised by Great 
 Britain over that coast. My question is this : Had we not at 
 that time a treaty with New Granada that gave us equal 
 or greater rights upon the Isthmus of Panama than were 
 claimed even by Great Britain over the Mosquito Coast.^^ 
 
 Mr. Root. Mr. President, we had the Treaty of 1846 
 with New Granada, under which we undertook to protect 
 any railway or canal across the Isthmus. But that did not 
 apply to the Nicaragua route, which was then supposed 
 to be the most available route for a canal. 
 
 Mr. Cummins. I quite agree with the Senator about 
 that. I only wanted it to appear in the course of the argu- 
 ment that we were then under no disability so far as con- 
 cerned building a canal across the Isthmus of Panama. 
 
 Mr. Root. We were under a disability so far as con- 
 cerned building a canal by the Nicaragua route, which was 
 regarded as the available route until the discussion in the 
 Senate after 1901, in which Senator Spooner and Senator 
 Hanna practically changed the judgment of the Senate with 
 regard to what was the proper route to take. And in the 
 Treaty of 1850, so anxious were we to secure freedom from 
 the claims of Great Britain on the eastern end of the Nica- 
 ragua route that, as I have read, we agreed that the same 
 contract should apply, not merely to the Nicaragua route, 
 
SPEECH ON THE PANAMA CANAL TOLLS 133 
 
 but to the whole of the Isthmus. So that, from that time on, 
 the whole Isthmus was impressed by the same obligations 
 which were impressed upon the Nicaragua route, and what- 
 ever rights we had under our Treaty of 1846 with New 
 Granada we were thenceforth bound to exercise with due 
 regard and subordination to the provisions of the Clayton- 
 Bulwer Treaty. 
 
 Mr. President, after the lapse of some thirty years, dur- 
 ing the early part of which we were strenuously insisting 
 upon the observance by Great Britain of her obligations 
 under the Clayton-Bulwer Treaty and during the latter 
 part of which we were beginning to be restive under our 
 obligations by reason of that treaty, we undertook to secure 
 a modification of it from Great Britain. In the course of 
 that undertaking there was much discussion and some 
 difference of opinion as to the continued obligations of the 
 treaty. But I think that was finally put at rest by the 
 decision of Secretary Olney in the memorandum upon the 
 subject made by him in the year 1896. In that memo- 
 randum he said: 
 
 Under these circumstances, upon every principle which gov- 
 erns the relation to each other, either of nations or of individuals, 
 the United States is completely estopped from denying that the 
 treaty is in full force and vigor. 
 
 If changed conditions now make stipulations, which were once 
 deemed advantageous, either inapplicable or injurious, the true 
 remedy is not in ingenious attempts to deny the existence of the 
 treaty or to explain away its provisions, but in a direct and 
 straightforward application to Great Britain for a reconsideration 
 of the whole matter. 
 
 We did apply to Great Britain for a reconsideration of 
 the whole matter, and the result of the application was the 
 Hay-Pauncefote Treaty. That treaty came before the 
 Senate in two forms: First, in the form of an instrument 
 signed on the 5th of February, 1900, which was amended by 
 the Senate; and, second, in the form of an instrument 
 
134 THE BRIEF 
 
 signed on the 18th of November, 1901, which continued the 
 greater part of the provisions of the earher instrument, but 
 somewhat modified or varied the amendments which had 
 been made by the Senate to that earlier instrument. 
 
 It is really but one process by which the paper sent to 
 the Senate in February, 1900, passed through a course of 
 amendment; first, at the hands of the Senate, and then at 
 the hands of the negotiators between Great Britain and the 
 United States, with the subsequent approval of the Senate. 
 In both the first form and the last of this treaty the pre- 
 amble provides for preserving the provisions of article 8 of 
 the Clayton-Bulwer Treaty. Both forms provide for the 
 construction of the canal under the auspices of the United 
 States alone, instead of its construction under the auspices 
 of both countries. 
 
 Both forms of that treaty provide that the canal might 
 be 
 
 constructed under the auspices of the Government of the United 
 States, either directly at its own cost or by gift or loan of money 
 ' to individuals or corporations or through subscription to or pur- 
 
 chase of stock or shares — 
 
 that being substituted for the provisions of the Clayton- 
 Bulwer Treaty under which both countries were to be 
 patrons of the enterprise. 
 
 Under both forms it was further provided that — 
 
 Subject to the provisions of the present convention, the said 
 Government — 
 
 The United States — 
 
 shall have and enjoy all the rights incident to such construction, 
 as well as the exclusive right of providing for the regulation and 
 management of the canal. 
 
 That provision, however, for the exclusive patronage of 
 the United States was subject to the initial provision that 
 the modification or change from the Clayton-Bulwer Treaty 
 
SPEECH ON THE PANAMA CANAL TOLLS 135 
 
 was to be for the construction of such canal under the aus- 
 pices of the Government of the United States, without im- 
 pairing the general principle of neutralization established 
 in article 8 of that convention. 
 
 ' Then the treaty, as it was finally agreed to, provides that 
 the United States "adopt, as the basis of such neutraliza- 
 tion of such ship canal," the following rules, substantially 
 as embodied in the convention "of Constantinople, signed 
 the 29th of October, 1888," for the free navigation of the 
 Suez Maritime Canal; that is to say: 
 
 First. The canal shall be free and open ... to the vessels 
 of commerce and of war of all nations "observing these 
 rules on terms of entire equality, so that there shall be no 
 discrimination against any nation or its citizens or subjects 
 in respect to the conditions or charges of traffic, or other- 
 wise." Such conditions and charges of traffic shall be just 
 and equitable. 
 
 Then follow rules relating to blockade and vessels of war, 
 the embarkation and disembarkation of troops, and the ex- 
 tension of the provisions to the waters adjacent to the canal. 
 
 Now, Mr. President, that rule must, of course, be read in 
 connection with the provision for the preservation of the 
 principle of neutralization established in article 8 of the 
 Clayton-Bulwer Convention. 
 
 Let me take your minds back again to article 8 of the 
 Clayton-Bulwer Convention, consistently with which we 
 are bound to construe the rule established by the Hay- 
 Pauncefote Convention. The principle of neutralization 
 provided for by the eighth article is neutralization upon 
 terms of absolute equality both between the United States 
 and Great Britain and between the United States and all 
 other powers. 
 
 It is always understood — 
 
 ' Says the eighth article — 
 
136 THE BRIEF 
 
 by the United States and Great Britain that the parties construct- 
 ing or owning the same — 
 
 That is, the canal — 
 
 shall im])ose no other charges or conditions of traffic thereupon 
 than the aforesaid Governments shall approve of as just and 
 equitable, and that the same canals or railways, being open to the 
 citizens and subjects of the United States and Great Britain on 
 equal terms, shall also be open on like terms to the citizens and 
 subjects of every other State which is willing to grant thereto 
 such protection as the United States and Great Britain engage to 
 afford. 
 
 Now, we are not at liberty to put any construction upon 
 the Hay-Pauncef ote Treaty which violates that controlling 
 declaration of absolute equality between the citizens and 
 subjects of Great Britain and the United States. 
 
 Mr. President, when the Hay-Pauncefote Convention 
 was ratified by the Senate it was in full view of this con- 
 trolling principle, in accordance with which their act must 
 be construed, for Senator Davis, in his report from the 
 Committee on Foreign Relations, to which I have already 
 referred, said, after referring to the Suez Convention of 
 1888: 
 
 The United States cannot take an attitude of opposition to the 
 principles of the great act of October 22, 1888, without discredit- 
 ing the official declarations of our Government for fifty j^ears on 
 the neutrality of an Isthmian canal and its equal use by all nations 
 without discrimination. 
 
 To set up the selfish motive of gain by establishing a monopoly 
 of a highway that must derive its income from the patronage of all 
 maritime countries would be unworthy of the United States, if we 
 owned the country through which the canal is to be built. 
 
 But the location of the canal belongs to other Governments, 
 from whom we must obtain any right to construct a canal on their 
 territory, and it is not unreasonable, if the question was new and 
 was not involved in a subsisting treaty with Great Britain, that she 
 should question the right of even Nicaragua and Costa Rica to 
 grant to our ships of commerce and of war extraordinary privi- 
 leges of transit through the canal. 
 
SPEECH ON THE PANAMA CANAL TOLLS 137 
 
 I shall revert to that principle declared by Senator 
 Davis. I continue the quotation: 
 
 It is not reasonable to suppose that Nicaragua and Costa Rica 
 would grant to the United States the exclusive control of a canal 
 through those States on terms less generous to the other maritime 
 nations than those prescribed in the great act of October 22, 1888, 
 or, if we could compel them to give us such advantages over other 
 nations, it would not be creditable to our country to accept them. 
 
 That our Government or our people will furnish the money to 
 build the canal presents the single question whether it is profitable 
 to do so. If the canal, as property, is worth more than its cost, we 
 are not called on to divide the profits with other nations. If it is 
 worth less and we are compelled by national necessities to build 
 the canal, we have no right to call on other nations to make up the 
 loss to us. In any view, it is a venture that we will enter upon if 
 it is to our interest, and if it is otherwise we will withdraw from 
 its further consideration. 
 
 The Suez Canal makes no discrimination in its tolls in favor of 
 its stockholders, and, taking its profits or the half of them as our 
 basis of calculation, we will never find it necessary to differentiate 
 our rates of toll in favor of our own people in order to secure a very 
 great profit on the investment. 
 
 Mr. President, in view of that declaration of principle, in 
 the face of that declaration, the United States cannot afford 
 to take a position at variance with the rule of universal 
 equality established in the Suez Canal Convention — 
 equality as to every stockholder and all non-stockholders, 
 equality as to every nation whether in possession or out 
 of possession. In the face of that declaration the United 
 States cannot afford to take any other position than upon 
 the rule of universal equality of the Suez Canal Convention, 
 and upon the further declaration that the country owning 
 the territory through which this canal was to be built would 
 not and ought not to give any special advantage or prefer- 
 ence to the United States as compared with all the other 
 nations of the earth. In view of that report, the Senate 
 rejected the amendment which was offered by Senator 
 
138 THE BRIEF 
 
 Bard, of California, providing for preference to the coast- 
 wise trade of the United States. This is the amendment 
 which was proposed: 
 
 The United States reserves the right in the regulation and 
 management of the canal to discriminate in respect of the charges 
 of traffic in favor of vessels of its own citizens engaged in the coast- 
 wise trade. 
 
 I say the Senate rejected that amendment upon this 
 report, which declared the rule of universal equality with- 
 out any preference or discrimination in favor of the United 
 States as being the meaning of the treaty and the necessary 
 meaning of the treaty. 
 
 There was still more before the Senate, there was still 
 more before the country to fix the meaning of the treaty. I 
 have read the representations that were made, the solemn 
 declarations made by the United States to Great Britain 
 establishing the rule of absolute equality without discrimi- 
 nation in favor of the United States or its citizens to induce 
 Great Britain to enter into the Clayton-Bulwer Treaty. 
 
 Now, let me read the declaration made to Great Britain 
 to induce her to modify the Clayton-Bulwer Treaty and 
 give up her right to joint control of the canal and put in our 
 hands the sole power to construct it or patronize it or con- 
 trol it. 
 
 Mr. Blaine said in his instructions to Mr. Lowell on 
 June 24, 1881, directing Mr. Lowell to propose to Great 
 Britain the modification of the Clayton-Bulwer Treaty, — • 
 I read his words: 
 
 The United States recognizes a proper guaranty of neutrality as 
 essential to the construction and successful operation of any high- 
 way across the Isthmus of Panama, and in the last generation 
 every step was taken by this Government that is deemed requisite 
 in the premises. The necessity was foreseen and abundantly pro- 
 vided for, long in advance of any possible call for the actual exer- 
 cise of power. . . . Nor, in time of peace, does the United States seek 
 to have any exclusive privileges accorded to American ships in respect 
 
SPEECH ON THE PANAMA CANAL TOLLS 139 
 
 to precedence or tolls through an interoceanic canal any more than it 
 has sought like privileges f(yr American goods in transit over the 
 Panama Railway y under the excluMve control of an American corpo- 
 ration. The extent of the privileges of American citizens and ships 
 is measurable under the Treaty of 1846 by those of Colombian 
 citizens and ships. It would be our earnest desire and expectation to 
 see the world's peaceful commerce enjoy the same jitst, liberaly and 
 rational treatment. 
 
 Again, he said to Great Britain: 
 
 The United States, as I have before had occasion to assure your 
 Lordship, demand no excluMve privileges in these passages, but will 
 always exert their influence to secure their free and unrestricted 
 benefits, both in peace and war, to the commerce of the world. 
 
 Mr. President, it was upon that declaration, upon that 
 self-denying declaration, upon that solemn assurance, that 
 the United States sought not and would not have any pref- 
 erence for its own citizens over the subjects and citizens of 
 other countries that Great Britain abandoned her rights 
 under the Clayton-Bulwer Treaty and entered into the Hay- 
 Pauncefote Treaty, with the clause continuing the princi- 
 ples of clause 8, which embodied these same declarations, 
 and the clause establishing the rule of equality taken from 
 the Suez Canal Convention. We are not at liberty to give 
 any other construction to the Hay-Pauncef ote Treaty than 
 the construction which is consistent with that declaration. 
 
 Mr. President, these declarations, made specifically and 
 directly to secure the making of these treaties, do not stand 
 alone. For a longer period than the oldest Senator has 
 lived, the United States has been from time to time making 
 open and public declarations of her disinterestedness, her 
 altruism, her purposes for the benefit of mankind, her free- 
 dom from desire or willingness to secure special and peculiar 
 advantage in respect of transit across the Isthmus. In 1826 
 Mr. Clay, then Secretary of State in the Cabinet of John 
 Quincy Adams, said, in his instructions to the delegates to 
 the I*anama Congress of that year: 
 
140 THE BRIEF 
 
 If a canal across the Isthmus be opened "so as to admit of the 
 passage of sea vessels from ocean to ocean, the benefit of it ought 
 not to be exclusively appropriated to any one nation, but should 
 be extended to all parts of the globe upon the payment of a just 
 compensation for reasonable tolls." 
 
 Mr. Cleveland, in his annual message of 1885, said: 
 
 The lapse of years has abundantly confirmed the wisdom and 
 foresight of those earlier administrations which, long before the 
 conditions of maritime intercourse were changed and enlarged by 
 the progress of the age, proclaimed the vital need of interoceanic 
 transit across the American Isthmus and consecrated it in advance 
 to the common use of mankind by their positive declarations and 
 through the formal obligations of treaties. Toward such realiza- 
 tion the efforts of my administration will be applied, ever bearing 
 in mind the principles on which it must rest and which were de- 
 clared in no uncertain tones by Mr. Cass, who, while Secretary of 
 State in 1858, announced that ''What the United States want in 
 Central America, next to the happiness of its people, is the security 
 and neutrality of the interoceanic routes which lead through it." 
 
 By public declarations, by the solemn asseverations of 
 our treaties with Colombia in 1846, with Great Britain in 
 1850, our treaties with Nicaragua, our treaty with Great 
 Britain in 1901, our treaty with Panama in 1903, we have 
 presented to the world the most unequivocal guaranty of 
 disinterested action for the common benefit of mankind 
 and not for our selfish advantage. 
 
 In the message which was sent to Congress by President 
 Roosevelt on the 4th of January, 1904, explaining the 
 course of this Government regarding the revolution in 
 Panama and the making of the treaty by which we acquired 
 all the title that we have upon the Isthmus, President 
 Roosevelt said: 
 
 If ever a Government could be said to have received a mandate 
 from civilization to effect an object the accomplishment of which 
 was demanded in the interest of mankind, the United States holds 
 that position with regard to the interoceanic canal. 
 
 Mr. President, there has been much discussion for many 
 
SPEECH ON THE PANAMA CANAL TOLLS 141 
 
 years among authorities upon international law as to 
 whether artificial canals for the convenience of commerce 
 did not partake of the character of natural passageways to 
 such a degree that, by the rules of international law, equal- 
 ity must be observed in the treatment of mankind by the 
 nation which has possession and control. Many very high 
 authorities have asserted that that rule applies to the 
 Panama Canal even without a treaty. We base our title 
 upon the right of mankind in the Isthmus, treaty or no 
 treaty. We have long asserted, beginning with Secretary 
 Cass, that the nations of Central America had no right 
 to debar the world from its right of passage across the 
 Isthmus. Upon that view, in the words which I have quoted 
 from President Roosevelt's message to Congress, we base 
 the justice of our entire action upon the Isthmus, which re- 
 sulted in our having the Canal Zone. We could not have 
 taken it for our selfish interest; we could not have taken it 
 for the purpose of securing an advantage to the people of 
 the United States over the other peoples of the world; it 
 was only because civilization had its rights to passage 
 across the Isthmus and because we made ourselves the 
 mandatory of civilization to assert those rights that we are 
 entitled to be there at all. On the principles which underlie 
 our action and upon all the declarations that we have 
 made for more than half a century, as well as upon the 
 express and positive stipulations of our treaties, we are 
 forbidden to say we have taken the custody of the Canal 
 Zone to give ourselves any right of preference over the 
 other civilized nations of the world beyond those rights 
 which go to the owner of a canal to have the tolls that are 
 charged for passage. 
 
 Well, Mr. President, asserting that we were acting for 
 the common benefit of mankind, willing to accept no pref- 
 erential right of our own, just as we asserted it to secure the 
 Clayton-Bulwer Treaty, just as we asserted it to secure the 
 
142 THE BRIEF 
 
 Hay-Pauncefote Treaty, when we had recognized the Re- 
 public of Panama, we made a treaty with her on the 18th 
 of November, 1903. I ask your attention now to the pro- 
 visions of that treaty. In that treaty both Panama and the 
 United States recognize the fact that the United States was 
 acting, not for its own special and selfish interest, but in the 
 interest of mankind. 
 
 The suggestion has been made that we are relieved from 
 the obligations of our treaties with Great Britain because 
 the Canal Zone is our territory. It is said that, because it 
 has become ours, we are entitled to build the canal on our 
 own territory and do what we please with it. Nothing can 
 be further from the fact. It is not our territory, except in 
 trust. Article 2 of the treaty with Panama provides : 
 
 The Republic of Panama grants to the United States in perpe- 
 tuity the use, occupation, and control of a zone of land and land 
 under water for the construction, maintenance, operation, sanita- 
 tion, and protection of said canal — 
 
 and for no other purpose — 
 
 of the width of ten miles extending to the distance of five miles on 
 each side of the center line of the route of the canal to be con- 
 structed. 
 
 The Republic of Panama further grants to the United States in 
 perpetuity the use, occupation, and control of any other lands 
 and waters outside of the zone above described which may be 
 necessary and convenient for the construction, maintenance, 
 operation, sanitation, and protection of the said canal or of any 
 auxiliary canals or other works necessary and convenient for the 
 construction, maintenance, operation, sanitation, and protection 
 of the said enterprise. 
 
 Article 3 provides: 
 
 The Republic of Panama grants to the United States all the 
 rights, power, and authority within the zone mentioned and de- 
 scribed in article 2 of this agreement — 
 
 from which I have just read — 
 
SPEECH ON THE PANAMA CANAL TOLLS 143 
 
 and within the limits of all auxiliary lands and waters mentioned 
 and described in said article 2, which the United States would 
 possess and exercise if it were the sovereign of the territory within 
 which said lands and waters are located, to the entire exclusion of 
 the exercise by the Republic of Panama of any such sovereign 
 rights, power, or authority. 
 
 Article 5 provides: 
 
 The Republic of Panama grants to the United States in per- 
 petuity a monopoly for the construction, maintenance, and opera- 
 tion of any system of communication by means of canal or rail- 
 road across its territory between the Caribbean Sea and the 
 Pacific Ocean. 
 
 I now read from article 18: 
 
 The canal, when constructed, and the entrances thereto shall 
 be neutral in perpetuity, and shall be opened upon the terms pro- 
 vided for by section 1 of article 3 of, and in conformity with all 
 the stipulations of, the treaty entered into by the Governments of 
 the United States and Great Britain on November 18, 1901. 
 
 So, Mr. President, far from our being relieved of the ob- 
 ligations of the treaty with Great Britain by reason of the 
 title that we have obtained to the Canal Zone, we have 
 taken that title, impressed with a solemn trust. We have 
 taken it for no purpose except the construction and mainte- 
 nance of a canal in accordance with all the stipulations of 
 our treaty with Great Britain. We cannot be false to those 
 stipulations without adding to the breach of contract a 
 breach of the trust which we have assumed, according to 
 our own declarations, for the benefit of mankind as the 
 mandatory of civilization. 
 
 In anticipation of the plainly-to-be-foreseen contingency 
 of our having to acquire some kind of title in order to con- 
 struct the canal, the Hay-Pauncefote Treaty provided 
 expressly in article 4: 
 
 It is agreed that no change of territorial sovereignty or of in- 
 ternational relations of the country or countries traversed by the 
 before-mentioned canal shall affect the general principle of neu- 
 
144 THE BRIEF 
 
 tralization or the obligation of the high contracting parties under 
 the present treaty. 
 
 So you will see that the treaty with Great Britain ex- 
 pressly provides that its obligations shall continue, no 
 matter what title we get to the Canal Zone; and the treaty 
 by which we get the title expressly impresses upon it as a 
 trust the obligations of the treaty with Great Britain. How 
 idle it is to say that because the Canal Zone is ours we can 
 do with it what we please. 
 
 There is another suggestion made regarding the obliga- 
 tions of this treaty, and that is that matters relating to the 
 coasting trade are matters of special domestic concern, and 
 that nobody else has any right to say anything about them. 
 We did not think so when we were dealing with the Cana- 
 dian canals. But that may not be conclusive as to rights 
 under this treaty. But examine it for a moment. 
 
 It is rather poverty of language than a genius for defini- 
 tion which leads us to call a voyage from New York to 
 San Francisco, passing along countries thousands of miles 
 away from our territory, "coasting trade," or to call a voy- 
 age from New York to Manila, on the other side of the 
 world, "coasting trade." When we use the term "coasting 
 trade," what we really mean is that under our navigation 
 laws a voyage which begins and ends at an American port 
 has certain privileges and immunities and rights, and it is 
 necessarily in that sense that the term is used in this 
 statute. It must be construed in accordance with our 
 statutes. 
 
 Sir, I do not for a moment dispute that ordinary coasting 
 trade is a special kind of trade that is entitled to be treated 
 differently from trade to or from distant foreign points. It 
 is ordinarily neighborhood trade, from port to port, by 
 which the people of a country carry on their intercommuni- 
 cation, often by small vessels, poor vessels, carrying car- 
 goes of slight value. It would be quite impracticable to 
 
SPEECH ON THE PANAMA CANAL TOLLS 145 
 
 impose upon trade of that kind the same kind of burdens 
 which great ocean-going steamers, trading to the farthest 
 parts of the earth, can well bear. We make that distinction. 
 Indeed, Great Britain herself makes it, although Great 
 Britain admits all the world to her coasting trade. But it 
 is by quite a different basis of classification — that is, the 
 statutory basis — that we call a voyage from the eastern 
 coast of the United States to the Orient a coasting voyage, 
 because it begins and ends in an American port. 
 
 This is a special, peculiar kind of trade which passes 
 through the Panama Canal. You may call it "coasting 
 trade," but it is unlike any other coasting trade. It is spe- 
 cial and peculiar to itself. 
 
 Grant that we are entitled to fix a different rate of tolls 
 for that class of trade from that which would be fixed for 
 other classes of trade. Ah, yes; but Great Britain has her 
 coasting trade through the canal under the same definition, 
 and Mexico has her coasting trade, and Germany has her 
 coasting trade, and Colombia has her coasting trade, in the 
 same sense that we have. You are not at liberty to dis- 
 criminate in fixing tolls between a voyage from Portland, 
 Maine, to Portland, Oregon, by an American ship, and a 
 voyage from Plalifax to Victoria in a British ship, or a voy- 
 age from Vera Cruz to Acapulco in a Mexican ship, because 
 when you do so you discriminate, not between coasting 
 trade and other trade, but between American ships and 
 British ships, Mexican ships, or Colombian ships. That is a 
 violation of the rule of equality which we have solemnly 
 adopted, and asserted and reasserted, and to which we are 
 bound by every consideration of honor and good faith. 
 Whatever this treaty means, it means for that kind of trade 
 as well as for any other kind of trade. 
 
 The suggestion has been made, also, that we should not 
 consider that the provision in this treaty about equality as 
 to tolls really means what it says, because it is not to be 
 
146 THE BRIEF 
 
 supposed that the United States would give up the right 
 to defend itself, to protect its own territory, to land its own 
 troops, and to send through the canal as it pleases its own 
 ships of war. That is disposed of by the considerations 
 which were presented to the Senate in the Davis report, to 
 which I have already referred, in regard to the Suez Con- 
 vention. 
 
 The Suez Convention, from which these rules of the Hay- 
 Pauncef ote Treaty were taken almost — though not quite 
 — textually, contained other provisions which reserved to 
 Turkey and to Egypt, as sovereigns of the territory through 
 which the canal passed, — Egypt as the sovereign and 
 Turkey as the suzerain over Egypt, — all of the rights that 
 pertained to sovereigns for the protection of their own 
 territory. As when the Hay-Pauncefote Treaty was made 
 neither party to the treaty had any title to the region which 
 would be traversed by the canal, no such clauses could be 
 introduced. But, as was pointed out, the rules which were 
 taken from the Suez Canal for the control of the canal 
 management would necessarily be subject to these rights 
 of sovereignty which were still to be secured from the 
 countries owning the territory. That is recognized by the 
 British Government in the note which has been sent to us 
 and has been laid before the Senate, or is in the possession 
 of the Senate, from the British Foreign Office. 
 
 In Sir Edward Grey's note of November 14, 1912, he says 
 what I am about to read. This is an explicit disclaimer of 
 any contention that the provisions of the Hay-Pauncefote 
 Treaty exclude us from the same rights of protection of 
 territory which Nicaragua or Colombia or Panama would 
 have had as sovereigns, and which we succeed to, pro tanto, 
 by virtue of the Panama Canal Treaty. 
 
 Sir Edward Grey says: 
 
 I notice that in the course of the debate in the Senate on the 
 Panama Canal Bill the argument was used by one of the speakers 
 
SPEECH ON THE PANAMA CANAL TOLLS 147 
 
 that the third, fourth, and fifth rules embodied in article 3 of the 
 treaty show that the words "all nations" cannot include the 
 United States, because, if the United States were at war, it is im- 
 possible to believe that it could be intended to be debarred by the 
 treaty from using its own territory for revictualling its warships 
 or landing troops. 
 
 The same point may strike others who read nothing but the text 
 of the Hay-Pauncefote Treaty itself, and I think it is therefore 
 worth while that I should briefly show that this argument is not 
 well founded. 
 
 I read this not as an argument, but because it is a formal, 
 official disclaimer which is binding. 
 Sir Edward Grey proceeds: 
 
 The Hay-Pauncefote Treaty of 1901 aimed at carrying out the 
 principle of the neutralization of the Panama Canal by subjecting 
 it to the same regime as the Suez Canal. Rules 3, 4, and 5 of 
 article 3 of the treaty are taken almost textually from articles 4, 
 5, and 6 of the Suez Canal Convention of 1888. At the date of 
 the signature of the Hay-Pauncefote Treaty the territory on 
 which the Isthmian Canal was to be constructed did not belong to 
 the United States, consequently there was no need to insert in the 
 draft treaty provisions corresponding to those in articles 10 and 
 13 of the Suez Canal Convention, which preserve the sovereign 
 rights of Turkey and of Egypt, and stipulate that articles 4 and 5 
 shall not affect the right of Turkey, as the local sovereign, and of 
 Egypt, within the measure of her autonomy, to take such meas- 
 ures as may be necessary for securing the defense of Egypt and 
 the maintenance of public order, and, in the case of Turkey, the 
 defense of her possessions on the Red Sea. 
 
 Now that the United States has become the practical sovereign 
 of the canal, His Majesty's Government do not question its title 
 to exercise belligerent rights for its protection. 
 
 Mr. President, Great Britain has asserted the construc- 
 tion of the Hay-Pauncefote Treaty of 1901, the arguments 
 for which I have been stating to the Senate. I realize, sir, 
 that I may be wrong. I have often been wrong. I realize 
 that the gentlemen who have taken a diflerent view re- 
 garding the meaning of this treaty may be right. I do not 
 
148 THE BRIEF 
 
 think so. But their abihty and fairness of mind would 
 make it idle for me not to entertain the possibiHty that 
 they are right and I am wrong. Yet, Mr. President, the 
 question whether they are right and I am wrong depends 
 upon the interpretation of the treaty. It depends upon the 
 interpretation of the treaty in the light of all the declara- 
 tions that have been made by the parties to it, in the light 
 of the nature of the subject-matter with which it deals. 
 
 Gentlemen say the question of imposing tolls or not im- 
 posing tolls upon our coastwise commerce is a matter of 
 our concern. Ah! we have made a treaty about it. If the 
 interpretation of the treaty is as England claims, then it is 
 not a matter of our concern; it is a matter of treaty rights 
 and duties. But, sir, it is not a question as to our rights to 
 remit tolls to our commerce. It is a question whether we 
 can impose tolls upon British commerce when we have re- 
 mitted them from our own. That is the question. Nobody 
 disputes our right to allow our own ships to go through the 
 canal without paying tolls. What is disputed is our right 
 to charge tolls against other ships when we do not charge 
 them against our own. That is, pure and simple, a question 
 of international right and duty, and depends upon the in- 
 terpretation of the treaty. 
 
 Sir, we have another treaty, made between the United 
 States and Great Britain on the 4th of April, 1908, in which 
 the two nations have agreed as follows: 
 
 Differences which may arise of a legal nature or relating to the 
 interpretation of treaties existing between the two contracting 
 parties and which it may not have been possible to settle by diplo- 
 macy, shall be referred to the Permanent Court of Arbitration es- 
 tablished at The Hague by the convention of the 29th of July, 
 1899, provided, nevertheless, that they do not affect the vital 
 interests, the independence, or the honor of the two contracting 
 States, and do not concern the interests of third parties. 
 
 Of course, the question of the rate of tolls on the Panama 
 
SPEECH ON THE PANAMA CANAL TOLLS 149 
 
 Canal does not affect any nation's vital interests. It does 
 not affect the independence or the honor of either of these 
 contracting States. We have a difference relating to the 
 interpretation of this treaty, and that is all there is to it. 
 We are bound, by this treaty of arbitration, not to stand 
 with arrogant assertion upon our own Government's 
 opinion as to the interpretation of the treaty, not to require 
 that Great Britain shall suffer what she deems injustice by 
 violation of the treaty, or else go to war. We are bound to 
 say, "We keep the faith of our treaty of arbitration, and 
 we will submit the question as to what this treaty means 
 to an impartial tribunal of arbitration." 
 
 Mr. President, if we stand in the position of arrogant 
 refusal to submit the questions arising upon the interpreta- 
 tion of this treaty to arbitration, we shall not only violate 
 our solemn obhgation, but we shall be false to all the 
 principles that we have asserted to the world, and that we 
 have urged upon mankind. We have been the apostle of 
 arbitration. We have been urging it upon the other civi- 
 lized nations. Presidents, Secretaries of State, Ambassa- 
 dors, and Ministers — aye. Congresses, the Senate and the 
 House, all branches of our Government have committed the 
 United States to the principle of arbitration irrevocably, 
 unequivocally, and we have urged it in season and out of 
 season on the rest of mankind. 
 
 Sir, I cannot detain the Senate by more than beginning 
 upon the expressions that have come from our Govern- 
 ment upon this subject, but I will ask your indulgence 
 while I call your attention to a few selected from the others. 
 
 On the 9th of June, 1874, the Senate Committee on 
 Foreign Relations reported and the Senate adopted this 
 resolution : 
 
 Resolved, That the United States, having at heart the cause of 
 peace everywhere, and hoping to help its permanent establishment 
 between nations, hereby recommend the adoption of arbitration 
 
150 THE BRIEF 
 
 as a great and practical method for the determination of inter- 
 national difference, to be maintained sincerely and in good faith, 
 so that war may cease to be regarded as a proper form of trial 
 between nations. 
 
 On the 17th of June, 1874, the Committee on Foreign 
 Affairs of the House adopted this resolution: 
 
 Whereas war is at all times destructive of the material interests 
 of a people, demoralizing in its tendencies, and at variance with 
 an enlightened public sentiment; and whereas differences between 
 nations should in the interests of humanity and fraternity he ad- 
 justed, if possible, by international arbitration : Therefore, 
 
 Resolved, That the people of the United States, being devoted to 
 the policy of peace with all mankind, enjoining its blessings and 
 hoping for its permanence and its universal adoption, hereby 
 through their representatives in Congress recommend such arbi- 
 tration as a rational substitute for war; and they further recom- 
 mend to the treaty-making power of the Government to provide, 
 if practicable, that hereafter in treaties made between the United 
 States and foreign powers war shall not be declared by either of 
 the contracting parties against the other until efforts shall have 
 been made to adjust all alleged cause of difference by impartial 
 arbitration. 
 
 On the same 17th of June, 1874, the Senate adopted this 
 resolution: 
 
 Resolved, etc.. That the President of the United States is hereby 
 authorized and requested to negotiate with all civilized powers 
 who may be willing to enter into such negotiations for the estab- 
 lishment of an international system whereby matters in dispute 
 between different Governments agreeing thereto may be adjusted 
 by arbitration, and, if possible, without recourse to war. 
 
 On the 14th of June, 1888, and again on the 14th of 
 February, 1890, the Senate and the House adopted a con- 
 current resolution in the words which I now read: 
 
 Resolved by the Senate (the House of Representatives concurring). 
 That the President be, and is hereby, requested to invite, from 
 time to time, as fit occasions may arise, negotiations with any 
 Government with which the United States has, or may have. 
 
SPEECH ON THE PANAMA CANAL TOLLS 151 
 
 diplomatic relations, to the end that any differences or disputes 
 arising between the two Governments which cannot be adjusted 
 by diplomatic agency may be referred to arbitration and be peace- 
 ably adjusted by such means. 
 
 This was concurred in by the House on the 3d of April, 
 1890. 
 
 Mr. President, in pursuance of those declarations by 
 both Houses of Congress the Presidents and the Secretaries 
 of State and the diplomatic agents of the United States, 
 doing their bounden duty, have been urging arbitration 
 upon the people of the world. Our representatives in The 
 Hague Conference of 1899, and in The Hague Conference 
 of 1907, and in the Pan-American Conference in Washing- 
 ton, and in the Pan-American Conference in Mexico, and in 
 the Pan-American Conference in Rio de Janeiro were in- 
 structed to urge and did urge and pledge the United States 
 in the most unequivocal and urgent terms to support the 
 principle of arbitration upon all questions capable of being 
 submitted to a tribunal for a decision. 
 
 Under those instructions Mr. Hay addressed the people 
 of the entire civilized world with the request to come into 
 treaties of arbitration with the United States. Here was 
 his letter. After quoting from the resolutions and from 
 expressions by the President he said: 
 
 Moved by these views, the President has charged me to in- 
 struct you to ascertain whether the Government to which you are 
 accredited, which he has reason to believe is equally desirous of 
 advancing the principle of international arbitration, is willing to 
 conclude with the Government of the United States an arbitration 
 treaty of like tenor to the arrangement concluded between France 
 and Great Britain on October 14, 1903. 
 
 That was the origin of this treaty. The treaties made by 
 Mr. Hay were not satisfactory to the Senate because of the 
 question about the participation of the Senate in the make- 
 up of the special agreement of submission. Mr. Hay's 
 successor modified that on conference with the Committee 
 
152 THE BRIEF 
 
 on Foreign Relations of the Senate, and secured the assent 
 of the other countries of the world to the treaty with that 
 modification. We have made twenty-five of these treaties 
 of arbitration, covering the greater part of the world, under 
 the direction of the Senate of the United States and the 
 House of Representatives of the United States and in 
 accordance with the traditional policy of the United States, 
 holding up to the world the principle of peaceful arbitra- 
 tion. 
 
 One of these treaties is here, and under it Great Britain is 
 demanding that the question as to what the true interpreta- 
 tion of our treaty about the canal is shall be submitted to 
 decision and not be made the subject of war or of sub- 
 mission to what she deems injustice to avoid war. 
 
 In response to the last resolution which I have read, the 
 concurrent resolution passed by the Senate and the House 
 requesting the President to enter into the negotiations 
 which resulted in these treaties of arbitration, the British 
 House of Commons passed a resolution accepting the over- 
 ture. On the 16th of July, 1893, the House of Commons 
 adopted this resolution: 
 
 Resolved, That this house has learnt with satisfaction that both 
 Houses of the United States Congress have, by resolution, re- 
 quested the President to invite from time to time, as fit occasions 
 may arise, negotiations with any Government with which the 
 United States have or may have diplomatic relations, to the end 
 that any differences or disputes arising between the two Govern- 
 ments which cannot be adjusted by diplomatic agency may be 
 referred to arbitration and peaceably adjusted by such means, and 
 that this house, cordially sympathizing with the purpose in view, 
 expresses the hope that Her Majesty's Government will lend their 
 ready cooperation to the Government of the United States upon 
 the basis of the foregoing resolution. 
 
 Her Majesty's Government did, and thence came this 
 treaty. 
 
 Mr. President, what revolting hypocrisy we convict our- 
 
SPEECH ON THE PANAMA CANAL TOLLS 153 
 
 selves of, if, after all this, the first time there comes up a 
 question in which we have an interest, the first time there 
 comes up a question of difference about the meaning of a 
 treaty as to which we fear we may be beaten in an arbitra- 
 tion, we refuse to keep our agreement ! Where will be our 
 self-respect if we do that? Where will be that respect to 
 which a great nation is entitled from the other nations of 
 the earth? 
 
 I have read from what Congress has said. 
 
 Let me read something from President Grant's annual 
 message of December 4, 1871. He is commenting upon the 
 arbitration provisions of the Treaty of 1871, in which Great 
 Britain submitted to arbitration our claims against her, 
 known as the Alabama claims, in which Great Britain sub- 
 mitted those claims where she stood possibly to lose but not 
 possibly to gain anything, and submitted them against the 
 most earnest and violent protest of many of her own citi- 
 zens. General Grant said : 
 
 The year has been an eventful one in witnessing two great 
 nations speaking one language and having one lineage, settHng 
 by peaceful arbitration disputes of long standing and liable at any 
 time to bring those nations into costly and bloody conflict. An 
 example has been set which, if successful in its final issue, may 
 be followed by other civilized nations and finally be the means of 
 returning to productive industry millions of men now maintained 
 to settle the disputes of nations by the bayonet and by broadside. 
 
 Under the authority of these resolutions our delegates in 
 the first Pan-American Conference at Washington secured 
 the adoption of this resolution April 18, 1890: 
 
 Article 1. The Republics of North, Central, and South America 
 hereby adopt arbitration as a principle of American international 
 law for the settlement of the differences, disputes, or controversies 
 that may arise between two or more of them. 
 
 And this: 
 
 The International American Conference resolves that this con- 
 ference, having recommended arbitration for the settlement of 
 
154 THE BRIEF 
 
 disputes among the Republics of America, begs leave to express 
 the wish that controversies between them and the nations of 
 Europe may be settled in the same friendly manner. 
 
 It is further recommended that the Government of each nation 
 herein represented communicate this wish to all friendly powers. 
 
 Upon that Mr. Blaine, that most vigorous and virile 
 American, in his address as the presiding oflBcer of that 
 first Pan-American Conference in Washington said : 
 
 If, in this closing hour, the conference had but one deed to cele- 
 brate we should dare call the world's attention to the deliberate, 
 confident, solemn dedication of two great continents to peace and 
 to the prosperity which has peace for its foundation. We hold up 
 this new Magna Charta, which abolishes war and substitutes ar- 
 bitration between the American Republics, as the first and great 
 fruit of the International American Conference. That noblest of 
 Americans, the aged poet and philanthropist, Whittier, is the 
 first to send his salutation and his benediction, declaring, "If in 
 the spirit of peace the American conference agrees upon a rule of 
 arbitration which shall make war in this hemisphere well-nigh 
 impossible, its sessions will prove one of the most important events 
 in the history of the world." 
 
 President Arthur, in his annual message of December 4, 
 1882, said, in discussing the proposition for a Pan-American 
 Conference: 
 
 I am unwilling to dismiss this subject without assuring you of 
 my support of any measure the wisdom of Congress may devise 
 for the promotion of peace on this continent and throughout the 
 world, and I trust the time is nigh when, with the universal assent 
 of civilized peoples, all international differences shall be deter- 
 mined without resort to arms by the benignant processes of arbi- 
 tration. 
 
 President Harrison, in his message of December 3, 1889, 
 said concerning the Pan-American Conference: 
 
 But while the commercial results which it is hoped will follow 
 this conference are worthy of pursuit and of the great interests 
 they have excited, it is believed that the crowning benefit will be 
 found in the better securities which may be devised for the main- 
 tenance of peace among all American nations and the settlement 
 
SPEECH ON THE PANAMA CANAL TOLLS 155 
 
 of all contentions by methods that a Christian civilization can 
 approve. 
 
 President Cleveland, in his message of December 4, 
 1893, said, concerning the resolution of the British Parha- 
 ment of July 16, 1893, which I have already read, and com- 
 menting on the concurrent resolution of February 14 and 
 April 18, 1890: 
 
 It affords me signal pleasure to lay this parliamentary resolu- 
 tion before the Congress and to express my sincere gratification 
 that the sentiment of two great kindred nations is thus authori- 
 tatively manifested in favor of the rational and peaceable settle- 
 ment of international quarrels by honorable resort to arbitration. 
 
 President McKinley, in his message of December 6, 1897, 
 said: 
 
 International arbitration cannot be omitted from the list of 
 subjects claiming our consideration. Events have only served to 
 strengthen the general views on this question expressed in my 
 inaugural address. The best sentiment of the civilized world is 
 moving toward the settlement of differences between nations 
 without resorting to the horrors of war. Treaties embodying these 
 humane principles on broad lines without in any way imperilling 
 our interests or our honor shall have my constant encouragement. 
 
 President Roosevelt, in his message of December 3, 1905, 
 said: 
 
 I earnestly hope that the conference — 
 
 the second Hague Conference — 
 
 may be able to devise some way to make arbitration between 
 nations the customary way of settling international disputes in all 
 save a few classes of cases, which should themselves be sharply 
 defined and rigidly limited as the present governmental and social 
 development of the world will permit. If possible, there should 
 be a general arbitration treaty negotiated among all nations 
 represented at the conference. 
 
 Oh, Mr. President, are we Pharisees? Have we been in- 
 sincere and false .f* Have we been pretending in all these 
 long years of resolution and declaration and proposal and 
 
156 THE BRIEF 
 
 urgency for arbitration? Are we ready now to admit that 
 our country, that its Congresses and its Presidents, have 
 all been guilty of false pretense, of humbug, of talking to 
 the galleries, of fine words to secure applause, and that the 
 instant we have an interest we are ready to falsify every 
 declaration, every promise, and every principle? But we 
 must do that if we arrogantly insist that we alone will de- 
 termine upon the interpretation of this treaty and will 
 refuse to abide by the agreement of our treaty of arbi- 
 tration. 
 
 Mr. President, what is all this for? Is the game worth 
 the candle? Is it worth while to put ourselves in a position 
 and to remain in a position to maintain which we may be 
 driven to repudiate our principles, our professions, and our 
 agreements for the purpose of conferring a money benefit, 
 
 — not very great, not very important, but a money benefit, 
 
 — at the expense of the Treasury of the United States, 
 upon the most highly and absolutely protected special in- 
 dustry in the United States? Is it worth while? We refuse 
 to help our foreign shipping, which is in competition with 
 the lower wages and the lower standard of living of foreign 
 countries, and we are proposing to do this for a part of 
 our coastwise shipping which has now by law the absolute 
 protection of a statutory monopoly and which needs no 
 help. 
 
 Mr. President, there is but one alternative consistent 
 with self-respect. We must arbitrate the interpretation of 
 this treaty or we must retire from the position we have 
 taken. 
 
 O Senators, consider for a moment what it is that we are 
 doing. We all love our country; we are all proud of its 
 history; we are all full of hope and courage for its future; 
 we love its good name; we desire for it that power among 
 the nations of the earth which will enable it to accomplish 
 still greater things for civilization than it has accomplished 
 
SPEECH ON THE PANAMA CANAL TOLLS 157 
 
 in its noble past. Shall we make ourselves in the minds of 
 the world like unto the man who in his own community is 
 marked as astute and cunning to get out of his obligations? 
 Shall we make ourselves like unto the man who is known 
 to be false to his agreements; false to his pledged word? 
 Shall we have it understood the whole world over that "you 
 must look out for the United States or she will get the 
 advantage of you"; that we are clever and cunning to get 
 the better of the other party to an agreement, and that at 
 the end — 
 
 Mr. Brandegee. "Slippery" would be a better word. 
 
 Mr. Root. Yes; I thank the Senator for the suggestion 
 — "slippery." Shall we in our generation add to those 
 claims to honor and respect that our fathers have estab- 
 lished for our country good cause that we shall be con- 
 sidered "slippery"? 
 
 It is worth while, Mr. President, to be a citizen of a great 
 country, but size alone is not enough to make a country 
 great. A country must be great in its ideals; it must be 
 great-hearted; it must be noble; it must despise and reject 
 all smallness and meanness; it must be faithful to its word; 
 it must keep the faith of treaties; it must be faithful to its 
 mission of civilization in order that it shall be truly great. 
 It is because we believe that of our country that we are 
 proud, aye, that the alien with the first step of his foot upon 
 our soil is proud to be a part of this great democracy. 
 
 Let us put aside the idea of small, petty advantage; let 
 us treat this situation and these obligations in our rela- 
 tion to this canal in that large way which befits a great 
 nation. 
 
 Mr. President, how sad it would be if we were to dim the 
 splendor of that great achievement by drawing across it the 
 mark of petty selfishness; if we were to diminish and reduce 
 for generations to come the power and influence of this free 
 Republic for the uplifting and the progress of mankind by 
 
158 THE BRIEF 
 
 destroying the respect of mankind for us ! How sad it would 
 be if you and I, Senators, were to make ourselves responsi- 
 ble for destroying that bright and inspiring ideal which has 
 enabled free America to lead the world in progress toward 
 liberty and justice! 
 
SPEECH ON THE SLAVERY QUESTION 159 
 
 4. SPEECH ON THE SLAVERY QUESTION 
 
 By John C. Calhoun, Senator from South Carolina.^ Read in the 
 
 Senate March ^, 1850, by James M. Mason^ 
 
 Senator from Virginia 
 
 This speech is said to mark the culmination of Calhoun's politi- 
 cal career. Although seriously ill, he came to the Senate on March 
 4, but, at the urgent advice of his friends, he did not undertake 
 the physical strain of delivering the speech that he had carefully 
 prepared; he gave the manuscript to Senator James M. Mason, 
 of Virginia, and Mr. Mason read it with dramatic effect, while 
 Calhoun sat at his side. Calhoun was able to appear for a brief 
 time on one or two subsequent occasions, but was too weak to 
 speak at any length. Scarcely more than three weeks after the 
 reading of this speech, the "Great NuUifier " died — March 31, 
 1850. 
 
 I HAVE, Senators, believed from the first that the agita- 
 tion of the subject of slavery would, if not prevented by 
 some timely and effective measure, end in disunion. En- 
 tertaining this opinion, I have, on all proper occasions, 
 endeavored to call the attention of both the two great 
 parties which div^ide the country to adopt some measure to 
 prevent so great a disaster, but without success. The agi- 
 tation has been permitted to proceed, with almost no 
 attempt to resist it, until it has reached a point when it 
 can no longer be disguised or denied that the Union is in 
 danger. You have thus had forced upon you the greatest 
 and the gravest question that can ever come under your 
 consideration — How can the Union be preserved? 
 
 To give a satisfactory answer to this mighty question, 
 it is indispensable to have an accurate and thorough knowl- 
 edge of the nature and the character of the cause by which 
 
 1 With slight alterations in punctuation, from The Works of Calhoun, 
 edited by Richard K. Cralle (1857). By the kind permission of the pub- 
 lishers, D. Appleton & Co. 
 
160 THE BRIEF 
 
 the Union is endangered. Without such knowledge it is 
 impossible to pronounce, with any certainty, by what 
 measure it can be saved; just as it would be impossible for 
 a physician to pronounce, in the case of some dangerous 
 disease, with any certainty, by what remedy the patient 
 could be saved, without similar knowledge of the nature 
 and character of the cause which produced it. The first 
 question, then, presented for consideration, in the investi- 
 gation I propose to make, in order to obtain such knowl- 
 edge, is — What is it that has endangered the Union? 
 
 To this question there can be but one answer — That 
 the immediate cause is the almost universal discontent 
 which pervades all the States composing the Southern 
 section of the Union. This widely extended discontent is 
 not of recent origin. It commenced with the agitation of 
 the slavery question, and has been increasing ever since. 
 The next question, going one step further back, is — What 
 has caused this widely diffused and almost universal dis- 
 content .^^ 
 
 It is a great mistake to suppose, as is by some, that it 
 originated with demagogues, who excited the discontent 
 with the intention of aiding their personal advancement, 
 or with the disappointed ambition of certain politicians, 
 who resorted to it as the means of retrieving their fortunes. 
 On the contrary, all the great political influences of the 
 section were arrayed against excitement, and exerted to 
 the utmost to keep the people quiet. The great mass of the 
 people of the South were divided, as in the other section, 
 into Whigs and Democrats. The leaders and the presses of 
 both parties in the South were very solicitous to prevent 
 excitement and to preserve quiet; because it was seen that 
 the effects of the former would necessarily tend to weaken, 
 if not destroy, the political ties which united them with 
 their respective parties in the other section. Those who 
 know the strength of party ties will readily appreciate the 
 
SPEECH ON THE SLAVERY QUESTION 161 
 
 immense force which this cause exerted against agitation, 
 and in favor of preserving quiet. But, great as it was, it 
 was not sufficient to prevent the widespread discontent 
 which now pervades the section. No; some cause, far 
 deeper and more powerful than the one supposed, must 
 exist, to account for discontent so wide and deep. The 
 question then recurs — What is the cause of this discon- 
 tent? It will be found in the belief of the people of the 
 Southern States, as prevalent as the discontent itself, that 
 they cannot remain, as things now are, consistently with 
 honor and safety, in the Union. The next question to be 
 considered is — What has caused this belief.? 
 
 One of the causes is, undoubtedly, to be traced to the 
 long-continued agitation of the slave question on the part 
 of the North, and the many aggressions which they have 
 made on the rights of the South during the time. I will 
 not enumerate them at present, as it will be done hereafter 
 in its proper place. 
 
 There is another lying back of it — with which this is 
 intimately connected — that may be regarded as the great 
 and primary cause. This is to be found in the fact that the 
 equilibrium between the two sections, in the Government 
 as it stood when the Constitution was ratified and the 
 Government put in action, has been destroyed. At that 
 time there was nearly a perfect equilibrium between the two, 
 which afforded ample means to each to protect itself against 
 the aggression of the other; but, as it now stands, one sec- 
 tion has the exclusive power of controlling the Government, 
 which leaves the other without any adequate means of 
 protecting itself against its encroachment and aggression. 
 To place this subject distinctly before you, I have. Senators, 
 prepared a brief statistical statement, showing the relative 
 weight of the two sections in the Government under the 
 first census of 1790 and the last census of 1840. 
 
 According to the former, the population of the United 
 
162 THE BRIEF 
 
 States, including Vermont, Kentucky, and Tennessee, 
 which then were in their incipient condition of becoming 
 States but were not actually admitted, amounted to 
 3,997,827. Of this number the Northern States had 
 1,997,899, and the Southern 1,952,072, making a differ- 
 ence of only 45,827 in favor of the former States. The 
 number of States, including Vermont, Kentucky, and 
 Tennessee, were sixteen; of which eight, including Ver- 
 mont, belonged to the Northern section, and eight, in- 
 cluding Kentucky and Tennessee, to the Southern — 
 making an equal division of the States between the two 
 sections under the first census. 
 
 There was a small preponderance in the House of Repre- 
 sentatives and in the Electoral College in favor of the 
 Northern, owing to the fact that, according to the pro- 
 visions of the Constitution, in estimating federal numbers 
 five slaves count but three; but it was too small to affect 
 sensibly the perfect equilibrium which, with that exception, 
 existed at the time. Such was the equality of the two sec- 
 tions when the States composing them agreed to enter into 
 a Federal Union. Since then the equilibrium between them 
 has been greatly disturbed. 
 
 According to the last census the aggregate population of 
 the United States amounted to 17,063,357, of which the 
 Northern section contained 9,728,920, and the Southern 
 7,334,437, making a difference, in round numbers, of 
 2,400,000. The number of States had increased from six- 
 teen to twenty-six, making an addition of ten States. In 
 the mean time the position of Delaware had become doubt- 
 ful as to which section she properly belonged. Considering 
 her as neutral, the Northern States will have thirteen and 
 the Southern States twelve, making a difference in the 
 Senate of two Senators in favor of the former. According 
 to the apportionment omder the census of 1840, there were 
 two hundred and twenty-three members of the House of 
 
SPEECH ON THE SLAVERY QUESTION 163 
 
 Representatives, of which the Northern States had one 
 hundred and thirty-five, and the Southern States (con- 
 sidering Delaware as neutral) eighty-seven, making a differ- 
 ence in favor of the former in the House of Representatives 
 of forty-eight. The difference in the Senate of two members, 
 added to this, gives to the North, in the Electoral College, 
 a majority of fifty. Since the census of 1840, four States 
 have been added to the Union — Iowa, Wisconsin, Florida, 
 and Texas. They leave the difference in the Senate as it 
 stood when the census was taken; but add two to the side 
 of the North in the House, making the present majority in 
 the House in its favor fifty, and in the Electoral College 
 fifty-two. 
 
 The result of the whole is to give the Northern section a 
 predominance in every department of the Government, and 
 thereby concentrate in it the two elements which consti- 
 tute the Federal Government — majority of States, and a 
 majority of their population, estimated in federal numbers. 
 Whatever section concentrates the two in itself possesses 
 the control of the entire Government. 
 
 But we are just at the close of the sixth decade and the 
 commencement of the seventh. The census is to be taken 
 this year, which must add greatly to the decided prepon- 
 derance of the North in the House of Representatives and in 
 the Electoral College. The prospect is, also, that a great 
 increase will be added to its present preponderance in the 
 Senate during the period of the decade, by the addition 
 of new States. Two Territories, Oregon and Minnesota, 
 are already in progress, and strenuous efforts are making 
 to bring in three additional States from the territory re- 
 cently conquered from Mexico; which, if successful, will 
 add three other States in a short time to the Northern sec- 
 tion, making five States; and increasing the present num- 
 ber of its States from fiif teen to twenty, and of its Senators 
 from thirty to forty. On the contrary, there is not a single 
 
164 THE BRIEF 
 
 Territory in progress in the Southern section, and no 
 certainty that any additional State will be added to it dur- 
 ing the decade. The prospect, then, is that the two sections 
 in the Senate, should the efforts now made to exclude the 
 South from the newly acquired Territories succeed, will 
 stand, before the end of the decade, twenty Northern 
 States to fourteen Southern, (considering Delaware as 
 neutral,) and forty Northern Senators to twenty-eight 
 Southern. This great increase of Senators, added to the 
 great increase of members of the House of Representatives 
 and the Electoral College on the part of the North, which 
 must take place under the next decade, will effectually and 
 irretrievably destroy the equilibrium which existed when 
 the Government commenced. 
 
 Had this destruction been the operation of time, with- 
 out the interference of Government, the South would have 
 had no reason to complain; but such was not the fact. It 
 was caused by the legislation of this Government, which 
 was appointed as the common agent of all and charged 
 with the protection of the interests and security of all. 
 The legislation by which it has been effected may be 
 classed under three heads. The first is, that series of acts 
 by which the South has been excluded from the common 
 territory belonging to all the States as members of the 
 Federal Union — which have had the effect of extending 
 vastly the portion allotted to the Northern section, and 
 restricting within narrow limits the portion left the South. 
 The next consists in adopting a system of revenue and dis- 
 bursements, by which an undue proportion of the burden 
 of taxation has been imposed upon the South, and an un- 
 due proportion of its proceeds appropriated to the North; 
 and the last is a system of political measures by which the 
 original character of the Government has been radically 
 changed. I propose to bestow upon each of these, in the 
 order they stand, a few remarks, with the view of showing 
 
SPEECH ON THE SLAVERY QUESTION 165 
 
 that it is owing to the action of this Government that the 
 equilibrium between the two sections has been destroyed, 
 and the whole power of the system centered in a sectional 
 majority. 
 
 The first of the series of acts by which the South was 
 deprived of its due share of the Territories originated with 
 the Confederacy which preceded the existence of this 
 Government. It is to be found in the provision of the Ordi- 
 nance of 1787. Its effect was to exclude the South entirely 
 from that vast and fertile region which lies between the 
 Ohio and the Mississippi Rivers, now embracing five States 
 and one Territory. The next of the series is the Missouri 
 Compromise, which excluded the South from that large 
 portion of Louisiana which lies north of 36° 30', excepting 
 what is included in the State of Missouri. The last of the 
 series excluded the South from the whole of the Oregon 
 Territory. All these, in the slang of the day, were what are 
 called slave Territories, and not free soil; that is. Territories 
 belonging to slave-holding powers and open to the emigra- 
 tion of masters with their slaves. By these several acts the 
 South was excluded from 1,238,025 square miles — an ex- 
 tent of country considerably exceeding the entire valley of 
 the Mississippi. To the South was left the portion of the 
 Territory of Louisiana lying south of 36° 30', and the por- 
 tion north of it included in the State of Missouri, with the 
 portion lying south of 36° 30', including the States of 
 Louisiana and Arkansas, and the Territory lying west of 
 the latter, and south of 36° 30', called the Indian Country. 
 These, with the Territory of Florida, now the State, make, 
 in the whole, 283,503 square miles. To this must be added 
 the territory acquired with Texas. If the whole should be 
 added to the Southern section, it would make an increase 
 of 325,520, which would make the whole left to the South 
 609,023. But a large part of Texas is still in contest be- 
 tween the two sections, which leaves it uncertain what will 
 
166 THE BRIEF 
 
 be the real extent of the portion of territory that may be 
 left to the South. 
 
 I have not included the territory recently acquired by 
 the treaty with Mexico. The North is making the most 
 strenuous efforts to appropriate the whole to herself, by 
 excluding the South from every foot of it. If she should 
 succeed, it will add to that from which the South has al- 
 ready been excluded 526,078 square miles, and would in- 
 crease the whole which the North has appropriated to her- 
 self to 1,764,123, not including the portion that she may 
 succeed in excluding us from in Texas. To sum up the 
 whole, the United States, since they declared their inde- 
 pendence, have acquired 2,373,046 square miles of terri- 
 tory, from which the North will have excluded the South, 
 if she should succeed in monopolizing the newly acquired 
 territories, about three fourths of the whole, leaving to the 
 South but about one fourth. 
 
 Such is the first and great cause that has destroyed the 
 equilibrium between the two sections in the Government. 
 
 The next is the system of revenue and disbursements 
 which has been adopted by the Government. It is well 
 known that the Government has derived its revenue 
 mainly from duties on imports. I shall not undertake to 
 show that such duties must necessarily fall mainly on the 
 exporting States, and that the South, as the great export- 
 ing section of the Union, has, in reality, paid vastly more 
 than her due proportion of the revenue; because I deem it 
 unnecessary, as the subject has on so many occasions been 
 fully discussed. Nor shall I, for the same reason, under- 
 take to show that a far greater portion of the revenue has 
 been disbursed at the North than its due share; and that 
 the joint effect of these causes has been to transfer a vast 
 amount from South to North, which, under an equal sys- 
 tem of revenue and disbursements, would not have been 
 lost to her. If to this be added that many of the duties 
 
SPEECH ON THE SLAVERY QUESTION 167 
 
 were imposed, not for revenue, but for protection, — that 
 is, intended to put money, not in the treasury, but directly 
 in the pocket of the manufacturers, — some conception 
 may be formed of the immense amount which, in the long 
 course of sixty years, has been transferred from South to 
 North. There are no data by which it can be estimated 
 with any certainty; but it is safe to say that it amounts to 
 hundreds of millions of dollars. Under the most moderate 
 estimate, it would be sufficient to add greatly to the wealth 
 of the North, and thus greatly increase her population by 
 attracting emigration from all quarters to that section. 
 
 This, combined with the great primary cause, amply 
 explains why the North has acquired a preponderance in 
 every department of the Government by its disproportion- 
 ate increase of population and States. The former, as has 
 been shown, has increased, in fifty years, 2,400,000 over 
 that of the South. This increase of population, during so 
 long a period, is satisfactorily accounted for by the number 
 of emigrants and the increase of their descendants, which 
 have been attracted to the Northern section from Europe 
 and the South in consequence of the advantages derived 
 from the causes assigned. If they had not existed — if the 
 South had retained all the capital which has been extracted 
 from her by the fiscal action of the Government; and, if she 
 had not been excluded by the Ordinance of 1787 and the 
 Missouri Compromise from the region lying between the 
 Ohio and the Mississippi Rivers, and between the Missis- 
 sippi and the Rocky Mountains north of 36° 30' — it 
 scarcely admits of a doubt that she would have divided 
 the emigration with the North, and, by retaining her own 
 people, would have at least equalled the North in popula- 
 tion under the census of 1840, and probably under that 
 about to be taken. She would also, if she had retained her 
 equal rights in those territories, have maintained an equal- 
 ity in the number of States with the North, and have pre- 
 
168 THE BRIEF 
 
 served the equilibrium between the two sections that ex- 
 isted at the commencement of the Government. The loss, 
 then, of the equilibrium is to be attributed to the action of 
 this Government. 
 
 But while these measures were destroying the equilib- 
 rium between the two sections the action of the Govern- 
 ment was leading to a radical change in its character, by 
 concentrating all the power of the system in itself. The 
 occasion will not permit me to trace the measures by 
 which this great change has been consummated. If it did, 
 it would not be difficult to show that the process com- 
 menced at an early period of the Government; and that 
 it proceeded, almost without interruption, step by step, 
 until it absorbed virtually its entire powers; but, without 
 going through the whole process to establish the fact, it 
 may be done satisfactorily by a very short statement. 
 
 That the Government claims and practically maintains 
 the right to decide, in the last resort, as to the extent of its 
 powers will scarcely be denied by any one conversant with 
 the political history of the country. That it also claims the 
 right to resort to force to maintain whatever power it 
 claims, against all opposition, is equally certain. Indeed, 
 it is apparent from what we daily hear that this has be- 
 come the prevailing and fixed opinion of a great majority 
 of the community. Now, I ask, what limitation can possi- 
 bly be placed upon the powers of a Government claiming 
 and exercising such rights? And, if none can be, how can 
 the separate Governments of the States maintain those 
 which are reserved to them, and, among others, the sov- 
 ereign powers by which they ordained and established, not 
 only their separate State Constitutions and Governments, 
 but also the Constitution and Government of the United 
 States.? But, if they have no constitutional means of main- 
 taining them against the right claimed by this Government, 
 it necessarily follows that they hold them at its pleasure 
 
SPEECH ON THE SLAVERY QUESTION 169 
 
 and discretion, and that all the powers of the system are 
 in reality concentrated in it. It also follows that the char- 
 acter of the Government has been changed in consequence 
 from a federal republic, as it originally came from the 
 hands of its framers, into a great national consolidated 
 democracy. It has, indeed, at present, all the characteris- 
 tics of the latter, and not one of the former, although it 
 still retains its outward form. 
 
 The result of the whole of these causes combined is — 
 that the North has acquired a decided ascendency over 
 every department of this Government and, through it, a 
 control over all the powers of the system. A single section 
 governed by the will of the numerical majority has now, in 
 fact, the control of the Government and the entire powers 
 of the system. What was once a constitutional federal re- 
 public is now converted, in reality, into one as absolute as 
 that of the Autocrat of Russia, and as despotic in its tend- 
 ency as any absolute government that ever existed. 
 
 As, then, the North has the absolute control over the 
 Government, it is manifest that on all questions between it 
 and the South, where there is a diversity of interests, the 
 interest of the latter will be sacrificed to the former, how- 
 ever oppressive the effects may be; as the South possesses 
 no means by which it can resist through the action of the 
 Government. But, if there was no question of vital impor- 
 tance to the South, in reference to which there was a diver- 
 sity of views between the two sections, this state of things 
 might be endured without the hazard of destruction to the 
 South. But such is not the fact. There is a question of vital 
 importance to the Southern section, in reference to which 
 the views and feelings of the two sections are as opposite 
 and hostile as they can possibly be. 
 
 I refer to the relation between the two races in the 
 Southern section, which constitutes a vital portion of her 
 social organization. Every portion of the North entertains 
 
170 THE BRIEF 
 
 views and feelings more or less hostile to it. Those most 
 opposed and hostile regard it as a sin, and consider them- 
 selves under the most sacred obligation to use every effort 
 to destroy it. Indeed, to the extent that they conceive they 
 have power, they regard themselves as implicated in the 
 sin, and responsible for not suppressing it by the use of all 
 and every means. Those less opposed and hostile regard 
 it as a crime — an offense against humanity, as they call it; 
 and, although not so fanatical, feel themselves bound to 
 use all efforts to effect the same object; while those who are 
 least opposed and hostile regard it as a blot and a stain on 
 the character of what they call the Nation, and feel them- 
 selves accordingly bound to give it no countenance or sup- 
 port. On the contrary, the Southern section regards the 
 relation as one which cannot be destroyed without subject- 
 ing the two races to the greatest calamity, and the section 
 to poverty, desolation, and wretchedness; and, accordingly, 
 they feel bound, by every consideration of interest and 
 safety, to defend it. 
 
 This hostile feeling on the part of the North towards the 
 social organization of the South long lay dormant, but it 
 only required some cause to act on those who felt most 
 intensely that they were responsible for its continuance to 
 call it into action. The increasing power of this Govern- 
 ment, and of the control of the Northern section over all its 
 departments, furnished the cause. It was this which made 
 an impression on the minds of many that there was little or 
 no restraint to prevent the Government from doing what- 
 ever it might choose to do. This was sufficient of itself to 
 put the most fanatical portion of the North in action, for 
 the purpose of destroying the existing relation between the 
 two races in the South. 
 
 The first organized movement towards it commenced in 
 1835. Then, for the first time, societies were organized, 
 presses established, lecturers sent forth to excite the people 
 
SPEECH ON THE SLAVERY QUESTION 171 
 
 of the North, and incendiary publications scattered over 
 the whole South through the mail. The South was thor- 
 oughly aroused. Meetings were held everywhere, and reso- 
 lutions adopted, calling upon the North to apply a remedy 
 to arrest the threatened evil, and pledging themselves to 
 adopt measures for their own protection if it was not 
 arrested. At the meeting of Congress, petitions poured in 
 from the North, calling upon Congress to abolish slavery in 
 the District of Columbia, and to prohibit what they called 
 the internal slave trade between the States — announcing, 
 at the same time, that their ultimate object was to abolish 
 slavery, not only in the District, but in the States and 
 throughout the Union. At this period the number engaged 
 in the agitation was small and possessed little or no personal 
 injfluence. 
 
 Neither party in Congress had, at that time, any sym- 
 pathy with them or their cause. The members of each 
 party presented their petitions with great reluctance. 
 Nevertheless, small and contemptible as the party then 
 was, both of the great parties of the North dreaded them. 
 They felt that, though small, they were organized in refer- 
 ence to a subject which had a great and a commanding 
 influence over the Northern mind. Each party, on that 
 account, feared to oppose their petitions, lest the opposite 
 party should take advantage of the one who might do so, 
 by favoring them. The effect was that both united in in- 
 sisting that the petitions should be received, and that Con- 
 gress should take jurisdiction over the subject. To justify 
 their course, they took the extraordinary ground that Con- 
 gress was bound to receive petitions on every subject, how- 
 ever objectionable they might be, and whether they had 
 or had not jurisdiction over the subject. These views pre- 
 vailed in the House of Representatives, and partially in the 
 Senate; and thus the party succeeded in their first move- 
 ments, in gaining what they proposed — a position in 
 
172 THE BRIEF 
 
 Congress, from which agitation could be extended over 
 the whole Union. This was the commencement of the 
 agitation, which has ever since continued, and which, as is 
 now acknowledged, has endangered the Union itself. 
 
 As for myself, I believed at that early period if the party 
 who got up the petitions should succeed in getting Con- 
 gress to take jurisdiction, that agitation would follow, and 
 that it would in the end, if not arrested, destroy the Union. 
 I then so expressed myself in debate, and called upon both 
 parties to take grounds against assuming jurisdiction; but 
 in vain. Had my voice been heeded, and had Congress 
 refused to take jurisdiction, by the united votes of all 
 parties the agitation which followed would have been pre- 
 vented, and the fanatical zeal that gives impulse to the 
 agitation and which has brought us to our present perilous 
 condition, would have become extinguished, from the want 
 of fuel to feed the flame. That was the time for the North 
 to have shown her devotion to the Union; but, unfortu- 
 nately, both of the great parties of that section were so 
 intent on obtaining or retaining party ascendency that all 
 other considerations were overlooked or forgotten. 
 
 What has since followed is but the natural consequence. 
 With the success of their first movement, this small fanati- 
 cal party began to acquire strength; and, with that, to be- 
 come an object of courtship to both the great parties. The 
 necessary consequence was a further increase of power, and 
 a gradual tainting of the opinions of both of the other 
 parties with their doctrines, until the infection has ex- 
 tended over both; and the great mass of the population 
 of the North, who, whatever may be their opinion of the 
 original Abolition party, which still preserves its distinc- 
 tive organization, hardly ever fail, when it comes to acting, 
 to cooperate in carrying out their measures. With the in- 
 crease of their influence, they extended the sphere of their 
 action. In a short time after the commencement of their 
 
SPEECH ON THE SLAVERY QUESTION 173 
 
 first movement, they had acquired sufficient influence to 
 induce the legislatures of most of the Northern States to 
 pass acts, which, in effect, abrogated the clause of the Con- 
 stitution that provides for the delivery up of fugitive slaves. 
 Not long after, petitions followed to abolish slavery in forts, 
 magazines, and dock-yards, and all other places where 
 Congress had exclusive power of legislation. This was fol- 
 lowed by petitions and resolutions of legislatures of the 
 Northern States, and popular meetings, to exclude the 
 Southern States from all Territories acquired or to be ac- 
 quired, and to prevent the admission of any State here- 
 after into the Union, which, by its constitution, does not 
 prohibit slavery. And Congress is invoked to do all this 
 expressly with the view to the final abolition of slavery in 
 the States. That has been avowed to be the ultimate ob- 
 ject from the beginning of the agitation until the present 
 time; and yet the great body of both parties of the North, 
 with the full knowledge of the fact, although disavowing 
 the abolitionists, have cooperated with them in almost all 
 their measures. 
 
 Such is a brief history of the agitation, as far as it has 
 yet advanced. Now, I ask, Senators, what is there to pre- 
 vent its further progress, until it fulfills the ultimate end 
 proposed, unless some decisive measure should be adopted 
 to prevent it? Has any one of the causes, which has added 
 to its increase, from its original small and contemptible 
 beginning until it has attained its present magnitude, di- 
 minished in force? Is the original cause of the movement — 
 that slavery is a sin, and ought to be suppressed — weaker 
 now than at the commencement? Or is the Abolition 
 party less numerous or influential, or have they less influ- 
 ence with or control over the two great parties of the North 
 in elections? Or has the South greater means of influencing 
 or controlling the movements of this Government now than 
 it had when the agitation commenced? To all these ques- 
 
174 THE BRIEF 
 
 tions but one answer can be given: No — no — no. The 
 very reverse is true. Instead of being weaker, all the ele- 
 ments in favor of agitation are stronger now than they were 
 in 1835, when it first commenced, while all the elements of 
 influence on the part of the South are weaker. Unless some- 
 thing decisive is done, I again ask, what is to stop this 
 agitation before the great and final object at which it aims 
 — the abolition of slavery in the States — is consummated? 
 Is it, then, not certain that if something is not done to 
 arrest it, the South will be forced to choose between aboli- 
 tion and secession? Indeed, as events are now moving, it 
 will not require the South to secede in order to dissolve the 
 Union. Agitation will of itself effect it, of which its past 
 history furnishes abundant proof — as I shall next proceed 
 to show. 
 
 It is a great mistake to suppose that disunion can be 
 effected by a single blow. The cords which bound these 
 States together in one common Union are far too numer- 
 ous and powerful for that. Disunion must be the work of 
 time. It is only through a long process, and successively, 
 that the cords can be snapped, until the whole fabric falls 
 asunder. Already the agitation of the slavery question 
 has snapped some of the most important, and has greatly 
 weakened all the others, as I shall proceed to show. 
 
 The cords that bind the States together are not only 
 many, but various in character. Some are spiritual or ec- 
 clesiastical; some political; others social. Some appertain 
 to the benefit conferred by the Union, and others to the 
 feeling of duty and obligation. 
 
 The strongest of those of a spiritual and ecclesiastical 
 nature consisted in the unity of the great religious denomi- 
 nations, all of which originally embraced the whole Union. 
 All these denominations, with the exception, perhaps, of 
 the Catholics, were organized very much upon the princi- 
 ple of our political institutions. Beginning with smaller 
 
SPEECH ON THE SLAVERY QUESTION 175 
 
 meetings, corresponding with the poHtical divisions of the 
 country, their organization terminated in one great central 
 assemblage, corresponding very much with the character of 
 Congress. At these meetings the principal clergymen and 
 lay members of the respective denominations, from all 
 parts of the Union, met to transact business relating to their 
 common concerns. It was not confined to what appertained 
 to the doctrines and discipline of the respective denomi- 
 nations, but extended to plans for disseminating the Bible 
 — establishing missions, distributing tracts — and of es- 
 tablishing presses for the publication of tracts, newspapers, 
 and periodicals, with a view of diffusing religious informa- 
 tion — and for the support of their respective doctrines and 
 creeds. All this combined contributed greatly to strengthen 
 the bonds of the Union. The ties which held each denomi- 
 nation together formed a strong cord to hold the whole 
 Union together; but, powerful as they were, they have not 
 been able to resist the explosive effect of slavery agitation. 
 
 The first of these cords which snapped under its explosive 
 force was that of the powerful Methodist Episcopal Church. 
 The numerous and strong ties which held it together are 
 all broken and its unity gone. They now form separate 
 churches; and, instead of that feeling of attachment and 
 devotion to the interests of the whole church which was 
 formerly felt, they are now arrayed into two hostile bodies, 
 engaged in litigation about what was formerly their common 
 property. 
 
 The next cord that snapped was that of the Baptists — 
 one of the largest and most respectable of the denomina- 
 tions. That of the Presbyterian is not entirely snapped, 
 but some of its strands have given way. That of the Epis- 
 copal Church is the only one of the four great Protestant 
 denominations which remains unbroken and entire. 
 
 The strongest cord of a political character consists of the 
 many and powerful ties that have held together the two 
 
176 THE BRIEF 
 
 great parties which have, with some modifications, existed 
 from the beginning of the Government. They both ex- 
 tended to every portion of the Union, and strongly con- 
 tributed to hold all its parts together. But this powerful 
 cord has fared no better than the spiritual. It resisted for 
 a long time the explosive tendency of the agitation, but has 
 finally snapped under its force — if not entirely, in a great 
 measure. Nor is there one of the remaining cords which has 
 not been greatly weakened. To this extent the Union has 
 already been destroyed by agitation, in the only way it can 
 be, by sundering and weakening the cords which bind it 
 together. 
 
 If the agitation goes on, the same force, acting with in- 
 creased intensity, as has been shown, will finally snap every 
 cord, when nothing will be left to hold the States together 
 except force. But, surely, that can, with no propriety of 
 language, be called a Union, when the only means by which 
 the weaker is held connected with the stronger portion is 
 force. It may, indeed, keep them connected; but the con- 
 nection will partake much more of the character of subju- 
 gation on the part of the weaker to the stronger than the 
 union of free, independent, and sovereign States, in one 
 confederation, as they stood in the early stages of the 
 Government, and which only is worthy of the sacred name 
 of Union. 
 
 Having now, Senators, explained what it is that endan- 
 gers the Union, and traced it to its cause and explained its 
 nature and character, the question again recurs — How 
 can the Union be saved? To this I answer, there is but one 
 way by which it can be — and that is — by adopting such 
 measures as will satisfy the States belonging to the South- 
 ern section that they can remain in the Union consistently 
 with their honor and their safety. There is, again, only one 
 way by which this can be effected, and that is — by remov- 
 ing the causes by which this belief has been produced. Do 
 
SPEECH ON THE SLAVERY QUESTION 177 
 
 this, and discontent will cease — harmony and kind feelings 
 between the sections be restored — and every apprehen- 
 sion of danger to the Union removed. The question, then, 
 is — How can this be done? But, before I undertake to 
 answer this question, I propose to show by what the Union 
 cannot be saved. 
 
 It cannot, then, be saved by eulogies on the Union, how- 
 ever splendid or numerous. The cry of "Union, Union — 
 the glorious Union!" can no more prevent disunion than 
 the cry of " Health, health — glorious health ! " on the part 
 of the physician can save a patient lying dangerously ill. 
 So long as the Union, instead of being regarded as a pro- 
 tector, is regarded in the opposite character by not much 
 less than a majority of the States, it will be in vain to 
 attempt to conciliate them by pronouncing eulogies on it. 
 
 Besides, this cry of Union comes commonly from those 
 whom we cannot believe to be sincere. It usually comes 
 from our assailants. But we cannot believe them to be sin- 
 cere; for, if they loved the Union, they would necessarily be 
 devoted to the Constitution. It made the Union, — and 
 to destroy the Constitution would be to destroy the Union. 
 But the only reliable and certain evidence of devotion to 
 the Constitution is to abstain, on the one hand, from 
 violating it, and to repel, on the other, all attempts to vio- 
 late it. It is only by faithfully performing these high du- 
 ties that the Constitution can be preserved and, with it, 
 the Union. 
 
 But how stands the profession of devotion to the Union 
 by our assailants, when brought to this test.^^ Have they 
 abstained from violating the Constitution? Let the many 
 acts passed by the Northern States to set aside and annul 
 the clause of the Constitution providing for the delivery up 
 of fugitive slaves answer. I cite this, not that it is the only 
 instance (for there are many others), but because the viola- 
 tion in this particular is too notorious and palpable to be 
 
178 THE BRIEF 
 
 denied. Again: Have they stood forth faithfully to repel 
 violations of the Constitution? Let their course in refer- 
 ence to the agitation of the slavery question, which was 
 commenced and has been carried on for fifteen years, 
 avowedly for the purpose of abolishing slavery in the 
 States, — an object all acknowledged to be unconstitu- 
 tional, — answer. Let them show a single instance during 
 this long period, in which they have denounced the agita- 
 tors or their attempts to effect what is admitted to be un- 
 constitutional, or a single measure which they have brought 
 forward for that purpose. How can we, with all these facts 
 before us, believe that they are sincere in their profession 
 of devotion to the Union, or avoid believing their profession 
 is but intended to increase the vigor of their assaults and to 
 weaken the force of our resistance? 
 
 Nor can we regard the profession of devotion to the 
 Union on the part of those who are not our assailants as 
 sincere, when they pronounce eulogies upon the Union, 
 evidently with the intent of charging us with disunion, 
 without uttering one word of denunciation against our 
 assailants. If friends of the Union, their course should be to 
 unite with us in repelling these assaults, and denouncing 
 the authors as enemies of the Union. Why they avoid this 
 and pursue the course they do it is for them to explain. 
 
 Nor can the Union be saved by invoking the name of the 
 illustrious Southerner whose mortal remains repose on the 
 western bank of the Potomac. He was one of us — a slave- 
 holder and a planter. We have studied his history, and find 
 nothing in it to justify submission to wrong. On the con- 
 trary, his great fame rests on the solid foundation that, 
 while he was careful to avoid doing wrong to others, he was 
 prompt and decided in repelling wrong. I trust that, in 
 this respect, we profited by his example. 
 
 Nor can we find anything in his history to deter us 
 from seceding from the Union, should it fail to fulfill the 
 
SPEECH ON THE SLAVERY QUESTION 179 
 
 objects for which it was instituted, by being permanently 
 and hopelessly converted into the means of oppressing in- 
 stead of protecting us. On the contrary, we find much in 
 his example to encourage us, should we be forced to the 
 extremity of deciding between submission and disunion. 
 
 There existed then, as well as now, a union — that be- 
 tween the parent country and her then colonies. It was a 
 union that had much to endear it to the p>eople of the col- 
 onies. Under its protecting and superintending care the 
 colonies were planted and grew up and prospered, through 
 a long course of years, until they became populous and 
 wealthy. Its benefits were not limited to them. Their 
 extensive agricultural and other productions gave birth to 
 a flourishing commerce, which richly rewarded the parent 
 country for the trouble and expense of establishing and 
 protecting them. Washington was born and grew up to 
 manhood under that union. He acquired his early distinc- 
 tion in its service, and there is every reason to beheve that 
 he was devotedly attached to it. But his devotion was a 
 rational one. He was attached to it, not as an end, but as 
 a means to an end. When it failed to fulfill its end, and, 
 instead of affording protection, was converted into the 
 means of oppressing the colonies, he did not hesitate to 
 draw his sword and head the great movement by which 
 that union was forever severed, and the independence of 
 these States established. This was the great and crowning 
 glory of his life, which has spread his fame over the whole 
 globe, and will transmit it to the latest posterity. 
 
 Nor can the plan proposed by the distinguished Senator 
 from Kentucky, nor that of the Administration, save the 
 Union. I shall pass by, without remark, the plan proposed 
 by the Senator, and proceed directly to the consideration 
 of that of the Administration. I, however, assure the dis- 
 tinguished and able Senator, that, in taking this course, no 
 disrespect whatever is intended to him or his plan. I have 
 
180 THE BRIEF 
 
 adopted it because so many Senators of distinguished 
 abilities, who were present when he delivered his speech and 
 explained his plan, and who were fully capable to do justice 
 to the side they support, have replied to him. 
 
 The plan of the Administration cannot save the Union, 
 because it can have no effect whatever towards satisfying 
 the States composing the Southern section of the Union. 
 It is, in fact, but a modification of the Wilmot Proviso. 
 It proposes to effect the same object — to exclude the 
 South from all territory acquired by the Mexican treaty. 
 It is well known that the South is united against the Wilmot 
 Proviso, and has committed itself by solemn resolution to 
 resist, should it be adopted. Its opposition is not to the name^ 
 but that which it proposes to effect. That, the Southern 
 States hold to be unconstitutional, unjust, inconsistent 
 with their equality as members of the common Union, and 
 calculated to destroy irretrievably the equilibrium between 
 the two sections. These objections equally apply to what, 
 for brevity, I will call the Executive Proviso. There is 
 no difference between it and the Wilmot, except in the 
 mode of effecting the object; and in that respect, I must 
 say, that the latter is much the least objectionable. It goes 
 to its object openly, boldly, and distinctly. It claims for 
 Congress unlimited power over the Territories, and pro- 
 poses to exert it over the Territories acquired from Mexico 
 by a positive prohibition of slavery. Not so the Executive 
 Proviso. It takes an indirect course, and, in order to elude 
 the Wilmot Proviso and thereby avoid encountering the 
 united and determined resistance of the South, denies, by 
 implication, the authority of Congress to legislate for the 
 Territories, and claims the right as belonging exclusively 
 to the inhabitants of the Territories. But to effect the 
 object of excluding the South, it takes care, in the mean 
 time, to let in emigrants freely from the Northern States 
 and all other quarters, except from the South, which it 
 
SPEECH ON THE SLAVERY QUESTION 181 
 
 takes special care to exclude by holding up to them the 
 danger of having their slaves liberated by the Mexican 
 laws. The necessary consequence is to exclude the South 
 from the Territory, just as effectually as would the Wilmot 
 Proviso. The only difference in this respect is that what 
 one proposes to effect directly and openly the other pro- 
 poses to effect indirectly and covertly. 
 
 But the Executive Proviso is more objectionable than the 
 Wilmot, in another and more important particular. The 
 latter, to effect its object, inflicts a dangerous wound upon 
 the Constitution by depriving the Southern States as joint 
 partners and owners of the Territories, of their rights in 
 them; but it inflicts no greater wound than is necessary to 
 effect its object. The former, on the contrary, while it in- 
 flicts the same wound, inflicts others equally great, and, if 
 possible, greater, as I shall next proceed to explain. 
 
 In claiming the right for the inhabitants, instead of Con- 
 gress, to legislate for the Territories, the Executive Proviso 
 assumes that the sovereignty over the Territories is vested 
 in the former: or, to express it in the language used in 
 a resolution offered by one of the Senators from Texas 
 (General Houston, now absent), they have "the same in- 
 herent right of self-government as the people in the States." 
 The assumption is utterly unfounded, unconstitutional, 
 without example, and contrary to the entire practice of the 
 Government from its commencement to the present time, 
 as I shall proceed to show. 
 
 The recent movement of individuals in California to 
 form a constitution and a State Government, and to ap- 
 point Senators and Representatives, is the first fruit of this 
 monstrous assumption. If the individuals who made this 
 movement had gone into California as adventurers, and if, 
 as such, they had conquered the territory and established 
 their independence, the sovereignty of the country would 
 have been vested in them, as a separate and independent 
 
182 THE BRIEF 
 
 community. In that case, they would have had the right 
 to form a constitution, and to establish a government for 
 themselves; and if, afterwards, they thought proper to 
 apply to Congress for admission into the Union as a sov- 
 ereign and independent State, all this would have been 
 regular, and according to established principles. But such 
 was not the case. It was the United States who conquered 
 California and finally acquired it by treaty. The sov- 
 ereignty, of course, is vested in them, and not in the individ- 
 uals who have attempted to form a constitution and a State 
 without their consent. All this is clear, beyond controversy, 
 unless it can be shown that they have since lost or been 
 divested of their sovereignty. . 
 
 Nor is it less clear that the power of legislating over the 
 acquired territory is vested in Congress, and not, as is 
 assumed, in the inhabitants of the Territories. None can 
 deny that the Government of the United States has the 
 power to acquire territories, either by war or treaty; but, 
 if the power to acquire exists, it belongs to Congress to 
 carry it into execution. On this point there can be no 
 doubt, for the Constitution expressly provides that Con- 
 gress shall have power "to make all laws which shall be 
 necessary and proper to carry into execution the foregoing 
 powers" (those vested in Congress) "and all other powers 
 vested by this Constitution in the Government of the United 
 States, or in any department or officer thereof." It matters 
 not, then, where the power is vested; for, if vested at all in 
 the Government of the United States or any of its depart- 
 ments or officers, the power of carrying it into execution is 
 clearly vested in Congress. But this important provision, 
 while it gives to Congress the power of legislating over 
 Territories, imposes important limitations on its exercise, 
 by restricting Congress to passing laws necessary and 
 proper for carrying the power into execution. The pro- 
 hibition extends not only to all laws not suitable or appro- 
 
SPEECH ON THE SLAVERY QUESTION 183 
 
 priate to the object of the power, but also to all that are 
 unjust, unequal, or unfair, — for all such laws would be 
 unnecessary and improp>er, and, therefore, unconstitutional. 
 
 Having now established, beyond controversy, that the 
 sovereignty over the Territories is vested in the United 
 States, — that is, in the several States composing the 
 Union, — and that the power of legislating over them is 
 expressly vested in Congress, it follows that the individuals 
 in California who have undertaken to form a constitution 
 and a State, and to exercise the power of legislating without 
 the consent of Congress, have usurped the sovereignty of 
 the State and the authority of Congress, and have acted in 
 open defiance of both. In other words, what they have done 
 is revolutionary and rebellious in its character, anarchical 
 in its tendency, and calculated to lead to the most danger- 
 ous consequences. Had they acted from premeditation and 
 design, it would have been, in fact, actual rebellion; but 
 such is not the case. The blame lies much less upon them 
 than upon those who have induced them to take a course so 
 unconstitutional and dangerous. They have been led into 
 it by language held here and the course pursued by the 
 Executive branch of the Government. 
 
 I have not seen the answer of the Executive to the calls 
 made by the two Houses of Congress for information as to 
 the course which it took, or the part which it acted, in ref- 
 erence to what was done in California. I understand the 
 answers have not yet been printed. But there is enough 
 known to justify the assertion that those who profess to 
 represent and act under the authority of the Executive have 
 advised, aided, and encouraged the movement, which ter- 
 minated in forming what they call a constitution and a 
 State. General Riley, who professed to act as civil Gov- 
 ernor, called the convention — determined on the number 
 and distribution of the delegates — appointed the time and 
 place of its meeting — was present during the session — 
 
184 THE BRIEF 
 
 and gave its proceedings his approbation and sanction. If 
 he acted without authority, he ought to have been tried, or, 
 at least, reprimanded, and his course disavowed. Neither 
 having been done, the presumption is that his course has 
 been approved. This, of itself, is suflBcient to identify the 
 Executive with his acts, and to make it responsible for 
 them. I touch not the question whether General Riley was 
 appointed or received the instructions under which he pro- 
 fessed to act from the present Executive or its predecessor. 
 If from the former, it would implicate the preceding as well 
 as the present Administration. If not, the responsibility 
 rests exclusively on the present. 
 
 It is manifest from this statement that the Executive 
 Department has undertaken to perform acts preparatory 
 to the meeting of the individuals to form their so-called 
 constitution and government, which appertain exclusively 
 to Congress. Indeed, they are identical, in many respects, 
 with the provisions adopted by Congress when it gives per- 
 mission to a Territory to form a constitution and govern- 
 ment in order to be admitted as a State into the Union. 
 
 Having now shown that the assumption upon which the 
 Executive and the individuals in California acted through- 
 out this whole affair is unfounded, unconstitutional, and 
 dangerous, it remains to make a few remarks, in order to 
 show that what has been done is contrary to the entire 
 practice of the Government, from the commencement to 
 the present time. 
 
 From its commencement to the time that Michigan was 
 admitted the practice was uniform. Territorial Govern- 
 ments were first organized by Congress. The Government 
 of the United States appointed the governors, judges, secre- 
 taries, marshals, and other officers; and the inhabitants of 
 the Territory were represented by legislative bodies, whose 
 acts were subject to the revision of Congress. This state 
 of things continued until the Government of a Territory 
 
SPEECH ON THE SLAVERY QUESTION 185 
 
 applied to Congress to permit its inhabitants to form a 
 constitution and government, preparatory to admission 
 into the Union. The act preHminary to giving permission 
 was to ascertain whether the inhabitants were suflficiently 
 numerous to authorize them to be formed into a State. 
 This was done by taking a census. That being done and 
 the number proving sufficient, permission was granted. 
 The act granting it fixed all the preliminaries — the time 
 and place of holding the convention, the qualification of 
 the voters, establishment of its boundaries, and all other 
 measures necessary to be settled previous to admission. 
 The act giving permission necessarily withdraws the sov- 
 ereignty of the United States, and leaves the inhabitants 
 of the incipient State as free to form their constitution and 
 government as were the original States of the Union after 
 they had declared their independence. At this stage the 
 inhabitants of the Territory became, for the first time, a 
 people, in legal and constitutional language. Prior to this, 
 they were, by the old acts of Congress, called inhabitants, 
 and not people. All this is perfectly consistent with the 
 sovereignty of the United States, with the powers of Con- 
 gress, and with the right of a people to self-government. 
 
 Michigan was the first case in which there was any de- 
 parture from the uniform rule of acting. Hers was a very 
 slight departure from the established usage. The Ordinance 
 of 1787 secured to her the right of becoming a State when 
 she should have sixty thousand inhabitants. Owing to some 
 neglect, Congress delayed taking the census. In the mean 
 time her population increased until it clearly exceeded more 
 than twice the number which entitled her to admission. At 
 this stage she formed a constitution and government, with- 
 out a census being taken by the United States, and Con- 
 gress waived the omission, as there was no doubt she had 
 more than a sufficient number to entitle her to admission. 
 She was not admitted at the first session she applied, owing 
 
186 THE BRIEF 
 
 to some difficulty respecting the boundary between her 
 and Ohio. The great irregularity as to her admission took 
 place at the next session — but on a point which can have 
 no possible connection with the case of California. 
 
 Their regularities in all other cases that have since oc- 
 curred are of similar nature. In all, there existed Terri- 
 torial Governments established by Congress, with officers 
 appointed by the United States. In all, the Territorial 
 Government took the lead in calling conventions and fix- 
 ing the preliminaries preparatory to the formation of a 
 constitution and admission into the Union. They all rec- 
 ognized the sovereignty of the United States and the 
 authority of Congress over the Territories; and wherever 
 there was any departiu-e from established usage, it was done 
 on the presumed consent of Congress, and not in defiance 
 of its authority or the sovereignty of the United States over 
 the Territories. In this respect California stands alone, 
 without usage or a single example to cover her case. 
 
 It belongs now. Senators, to you to decide what part you 
 will act in reference to this unprecedented transaction. The 
 Executive has laid the paper purporting to be the constitu- 
 tion of California before you, and asks you to admit her 
 into the Union as a State; and the question is. Will you or 
 will you not admit her? It is a grave question, and there 
 rests upon you a heavy responsibility. Much, very much, 
 will depend upon your decision. If you admit her, you 
 endorse and give your sanction to ail that has been done. 
 Are you prepared to do so? Are you prepared to surrender 
 your power of legislation for the Territories — a power 
 expressly vested in Congress by the Constitution, as has 
 been fully established? Can you, consistently with your 
 oath to support the Constitution, surrender the power? 
 Are you prepared to admit that the inhabitants of the 
 Territories possess the sovereignty over them, and that any 
 number, more or less, may claim any extent of territory 
 
SPEECH ON THE SLAVERY QUESTION 187 
 
 they please; may form a constitution and government, and 
 erect it into a State, without asking your permission? Are 
 you prepared to surrender the sovereignty of the United 
 States over whatever territory may be hereafter acquired 
 to the first adventurers who may rush into it? Are you 
 prepared to surrender virtually to the Executive Depart- 
 ment all the powers which you have heretofore exercised 
 over the Territories? If not, how can you, consistently with 
 your duty and your oaths to support the Constitution, give 
 your assent to the admission of California as a State, under 
 a pretended constitution and government? Again, can you 
 believe that the project of a constitution which they have 
 adopted has the least validity? Can you believe that there 
 is such a State in reality as the State of California? No; 
 there is no such State. It has no legal or constitutional 
 existence. It has no vahdity, and can have none, without 
 your sanction. How, then, can you admit it as a State y when, 
 according to the provision of the Constitution, your power 
 is limited to admitting new States 9 To be admitted, it must 
 be a State — and an existing State, independent of your 
 sanction, before you can admit it. When you give your 
 permission to the inhabitants of a Territory to form a con- 
 stitution and a State, the constitution and State they form 
 derive their authority from the people, and not from you. 
 The State, before it is admitted, is actually a State, and 
 does not become so by the act of admission, as would be the 
 case with California, should you admit her contrary to the 
 constitutional provision and established usage heretofore. 
 The Senators on the other side of the Chamber must 
 permit me to make a few remarks in this connection par- 
 ticularly applicable to them — with the exception of a few 
 Senators from the South, sitting on the other side of the 
 Chamber. When the Oregon question was before this body, 
 not two years since, you took (if I mistake not) universally 
 the ground that Congress had the sole and absolute power 
 
188 THE BRIEF 
 
 of legislating for the Territories. How, then, can you now, 
 after the short interval which has elapsed, abandon the 
 ground which you took, and thereby virtually admit that 
 the power of legislating, instead of being in Congress, is in 
 the inhabitants of the Territories? How can you justify 
 and sanction by your votes the acts of the Executive, which 
 are in direct derogation of what you then contended for? 
 But, to approach still nearer to the present time, how can 
 you, after condemning, little more than a year since, the 
 grounds taken by the party which you defeated at the last 
 election, wheel round and support by your votes the 
 grounds which, as explained recently on this floor by the 
 candidate of the party in the last election, are identical 
 with those on which the Executive has acted in reference to 
 California? What are we to understand by all this? Must 
 we conclude that there is no sincerity, no faith in the acts 
 and declarations of public men, and that all is mere acting 
 or hollow profession? Or are we to conclude that the exclu- 
 sion of the South from the territory acquired from Mexico 
 is an object of so paramount a character in your estimation, 
 that right, justice. Constitution, and consistency must all 
 yield when they stand in the way of our exclusion? 
 
 But, it may be asked, what is to be done with California? 
 Should she not be admitted? I answer, remand her back 
 to the Territorial condition, as was done in the case of 
 Tennessee, in the early stage of the Government. Congress, 
 in her case, had established a Territorial Government in 
 the usual form^ with a governor, judge, and other officers 
 appointed by the United States. She was entitled, under 
 the deed of cession, to be admitted into the Union as a 
 State, as soon as she had sixty thousand inhabitants. The 
 Territorial Government, beheving it had that number, took 
 a census, by which it appeared it exceeded it. She then 
 formed a constitution, and applied for admission. Con- 
 gress refused to admit her, on the ground that the census 
 
SPEECH ON THE SLAVERY QUESTION 189 
 
 should be taken by the United States, and that Congress 
 had not determined v^hether the Territory should be formed 
 into one or two States, as it was authorized to do under the 
 cession. She returned quietly to her territorial condition. 
 An act was passed to take a census by the United States, 
 containing a provision that the Territory should form one 
 State. All afterwards was regularly conducted, and the 
 Territory admitted as a State in due form. The irregulari- 
 ties in the case of California are immeasurably greater, and 
 offer much stronger reasons for pursuing the same course. 
 But, it may be said, California may not submit. That is 
 not probable; but if she should not, when she refuses, it 
 will then be time for us to decide what is to be done. 
 
 Having now shown what cannot save the Union, I return 
 to the question with which I commenced, How can the 
 Union be saved? There is but one way by which it can 
 with any certainty; and that is, by a full and final settle- 
 ment, on the principles of justice, of all the questions at 
 issue between the two sections. The South asks for justice, 
 simple justice, and less she ought not to take. She has no 
 compromise to offer but the Constitution; and no conces- 
 sion or surrender to make. She has aheady surrendered so 
 much that she has little left to siu'render. Such a settle- 
 ment would go to the root of the evil, and remove all 
 cause of discontent; by satisfying the South, she could 
 remain honorably and safely in the Union, and thereby 
 restore the harmony and fraternal feelings between the 
 sections, which existed anterior to the Missouri agitation. 
 Nothing else can, with any certainty, finally and forever 
 settle the questions at issue, terminate agitation, and save 
 the Union. 
 
 But can this be done? Yes, easily; not by the weaker 
 party, for it can of itself do nothing, — not even protect 
 itself, — but by the stronger. The North has only to will 
 it to accomplish it — to do justice by conceding to the 
 
190 THE BRIEF 
 
 South an equal right in the acquired territory, and to do 
 her duty by causing the stipulations relative to fugitive 
 slaves to be faithfully fulfilled — to cease the agitation of 
 the slave question, and to provide for the insertion of a 
 provision in the Constitution, by an amendment, which will 
 restore to the South, in substance, the power she possessed 
 of protecting herself, before the equilibrium between the 
 sections was destroyed by the action of this Government. 
 There will be no difficulty in devising such a provision — 
 one that will protect the South, and which, at the same 
 time, will improve and strengthen the Government, instead 
 of impairing and weakening it. 
 
 But will the North agree to this? It is for her to answer 
 the question. But, I will say, she cannot refuse, if she has 
 half the love of the Union which she professes to have, or 
 without justly exposing herself to the charge that her love 
 of power and aggrandizement is far greater than her love of 
 the Union. At all events, the responsibility of saving the 
 Union rests on the North, and not on the South. The 
 South cannot save it by any act of hers, and the North 
 may save it without any sacrifice whatever, unless to do 
 justice and to perform her duties under the Constitution 
 should be regarded by her as a sacrifice. 
 
 It is time. Senators, that there should be an open and 
 manly avowal on all sides as to what is intended to be done. 
 If the question is not now settled, it is uncertain whether 
 it ever can hereafter be; and we, as the representatives of 
 the States of this Union, regarded as governments, should 
 come to a distinct understanding as to our respective views, 
 in order to ascertaift whether the great questions at issue 
 can be settled or not. If you, who represent the stronger 
 portion, cannot agree to settle them on the broad principle 
 of justice and duty, say so; and let the States we both 
 represent agree to separate and part in peace. If you are 
 unwilling we should part in peace, tell us so, and we shall 
 
SPEECH ON THE SLAVERY QUESTION 191 
 
 know what to do when you reduce the question to sub- 
 mission or resistance. If you remain silent, you will compel 
 us to infer by your acts what you intend. In that case, 
 California will become the test question. If you admit her, 
 under all the difficulties that oppose her admission, you 
 compel us to infer that you intend to exclude us from the 
 whole of the acquired territories, with the intention of 
 destroying irretrievably the equilibrium between the two 
 sections. We would be blind not to perceive in that case 
 that your real objects are power and aggrandizement, and 
 infatuated not to act accordingly. 
 
 I have now. Senators, done my duty in expressing my 
 opinions fully, freely, and candidly, on this solemn occa- 
 sion. In doing so, I have been governed by the motives 
 which have governed me in all the stages of the agitation 
 of the slavery question since its commencement. I have 
 exerted myself, during the whole period, to arrest it, with 
 the intention of saving the Union, if it could be done; and, 
 if it could not, to save the section where it has pleased 
 Providence to cast my lot, and which I sincerely believe has 
 justice and the Constitution on its side. Having faithfully 
 done my duty to the best of my ability, both to the Union 
 and my section, throughout this agitation, I shall have the 
 consolation, let what will come, that I am free from all 
 responsibility.. 
 
192 THE BRIEF 
 
 5. THE SPEECH OF BENJAMIN R. CURTIS 1 
 
 Before the Senate of the United States, in defense of President 
 
 Andrew Johnson, accused of High Treason. Delivered 
 
 May 9, 1868 
 
 On February 22, 1868, the House of Representatives recom- 
 mended that Andrew Johnson, President of the United States, 
 be impeached "of high crimes and misdemeanors in office,'* and, 
 three days later, Thaddeus Stevens and John A. Bingham 
 appeared before the Senate to announce the vote of the House 
 and to give notice that in due time that body would present be- 
 fore the Senate "the particular articles of impeachment against 
 the President and make good the same." 
 
 The principal charge brought against President Johnson was 
 to the effect that he had violated the Constitution and had over- 
 stepped the Tenure-of -Office Act in removing Edwin M. Stanton 
 from his position as Secretary of War, to which he had been 
 appointed by President Lincoln. It was also contended that the 
 character of many of President Johnson's public speeches con- 
 stituted a "high misdemeanor in office." 
 
 The House of Representatives appointed as the managers of 
 the prosecution John A. Bingham, George S. Boutwell, James 
 S. Wilson, Benjamin F. Butler, Thomas Williams, Thaddeus 
 Stevens, and John A. Logan. The President selected as his 
 counsel for the defense Henry Stanbery, Benjamin R. Curtis, 
 Thomas A. R. Nelson, William M. Evarts, and William S. 
 Groesbeck. 
 
 The case was presented for trial March 5, before the Senate 
 "sitting on the trial of impeachment," the Honorable Salmon P. 
 Chase, Chief Justice of the Supreme Court, acting as presiding 
 officer. The trial proper began March 30. 
 
 The speech of Mr. Curtis, which follows, was delivered on 
 April 9, and opened the President's defense. Regarding Mr. 
 Curtis, James G. Blaine, in Twenty Years of Congress, writes: 
 
 Benjamin R. Curtis, when he appeared in the Impeachment case, 
 was in the fullness of his powers, in the fifty-ninth year of his age. At 
 forty-one he had been appointed to the Supreme Bench of the United 
 States at the earnest request and warm recommendation of Mr. Webster, 
 then Secretary of State. Mr. Webster is reported to have said that he had 
 
 1 From the Congressional Globe. 
 
DEFENSE OF PRESIDENT JOHNSON 193 
 
 placed the people of Massachusetts under lasting obligation to him by 
 inducing Governor Lincoln, in 1830, to appoint Lemuel Shaw Chief 
 Justice of the Supreme Court of the State, a position which he honored 
 and adorned for thirty years. Mr. Webster thought he was doing an equal 
 service to the people of the entire Union when he induced the President 
 to call Mr. Curtis to the Supreme Bench. But judicial life had not proved 
 altogether agreeable to Judge Curtis, and, after a remarkable and brilliant 
 career of six years, he resigned, in October, 1857, and returned to the 
 practice of the law — his learning increased, his mind enriched and 
 broadened by the grave national questions engaging the attention of the 
 court during the period of his service. Thenceforward during his life no 
 man at the bar of the United States held higher rank. He was entirely 
 devoted to his profession. He had taken no interest in party strife, and, 
 with the exception of serving two sessions in the Massachusetts Legisla- 
 ture, he had never held a political office. In arguing a case his style was 
 peculiarly felicitous — simple, direct, clear. In the full maturity of his 
 powers and with all the earnestness of his nature he engaged in the 
 President's defense; and he brought to it a wealth of learning, a dignity 
 of character, an impressiveness of speech, which attracted the admiration 
 and respect of all who had the good fortune to hear his great argument. 
 
 On May 11 the case was completed, and the Senate proceeded 
 to vote on the eleventh and last article of the impeachment. 
 Fifty-four votes were cast, and a two-thirds majority, thirty-six, 
 was necessary for conviction. Thirty-five senators voted *' guilty, " 
 and nineteen " not guilty." The Senate then adjourned to May 26, 
 when it voted upon the second and third articles respectively, 
 with precisely the same result as upon the first article considered. 
 As it appeared hopeless to bring about a change in the ballot, 
 each Senator holding to his verdict, — although it has been 
 charged that great influence was brought to bear in certain cases 
 to effect an alteration in the vote, — the remaining articles were 
 abandoned, and the Senate adjourned, after what ranks as one of 
 the most important trials in the history of our National Govern- 
 ment. 
 
 Mr. Chief Justice, I am here to speak to the Senate of 
 the United States sitting in its judicial capacity as a court 
 of impeachment, presided over by the Chief Justice of the 
 United States, for the trial of the President of the United 
 States. This statement sufficiently characterizes what I 
 have to say. Here party spirit, political schemes, foregone 
 conclusions, outrageous biases can have no fit operation. 
 
194 THE BRIEF 
 
 The Constitution requires that here Should be a "trial," 
 and as in that trial the oath which each one of you has 
 taken is to administer "impartial justice according to the 
 Constitution and the laws," the only appeal which I can 
 make in behaK of the President is an appeal to the con- 
 science and the reason of each judge who sits before me. 
 Upon the law and the facts, upon the judicial merits of the 
 case, upon the duties incumbent on that high oflficer by 
 virtue of his office, and his honest endeavor to discharge 
 those duties, the President rests his defense. And I pray 
 each one of you to listen to me with that patience which 
 belongs to a judge for his own sake, which I cannot expect 
 to command by. any efforts of mine, while I open to you 
 what that defense is. 
 
 The honorable Managers, through their associate who 
 has addressed you [Mr. Butler], has informed you that this 
 is not a court, and that, whatever may be the character of 
 this body, it is bound by no law. Upon those subjects 
 I shall have something hereafter to say. The honorable 
 Manager did not tell you, in terms at least, that here are 
 no articles before you, because a statement of that fact 
 would be in substance to say that here are no honorable 
 Managers before you, inasmuch as the only authority with 
 which the honorable Managers are clothed by the House 
 of Representatives is an authority to present here at your 
 bar certain articles, and, within their limits, conduct this 
 prosecution; and, therefore, I shall make no apology, 
 Senators, for asking your close attention to these articles, 
 one after the other, in manner and form as they are here 
 presented, to ascertain, in the first place, what are the 
 substantial allegations in each of them, what is the legal 
 operation and effect of those allegations, and what proof is 
 necessary to be adduced in order to sustain them; and I 
 shall begin with the first, not merely because the House of 
 Representatives, in arranging these articles, have placed 
 
DEFENSE OF PRESIDENT JOHNSON 195 
 
 that first in order, but because the subject-matter of that 
 article is of such a character that it forms the foundation 
 of the first eight articles in the series, and enters materially 
 into two of the remaining three. 
 
 What, then, is the substance of this first article? What, 
 as the lawyers say, are the gravamina contained in it? 
 There is a great deal of verbiage — I do not mean by that 
 unnecessary verbiage — in the description of the sub- 
 stantive matters set down in this article. Stripped of that 
 verbiage, it amounts exactly to these things : first, that the 
 order set out in the article for the removal of Mr. Stanton, 
 if executed, would be a violation of the Tenure-of-Office 
 Act; second, that it was a violation of the Tenure-of-Office 
 Act; third, that it was an intentional violation of the Ten- 
 ure-of-Office Act; fourth, that it was a violation of the 
 Constitution of the United States; and fifth, was by the 
 President intended to be so. Or, to draw all this into one 
 sentence which yet may be intelligible and clear enough, I 
 suppose the substance of this first article is that the order 
 for the removal of Mr. Stanton was and was intended to be 
 a violation of the Tenure-of-Office Act, and was intended to 
 be a violation of the Constitution of the United States. 
 These are the allegations which it is necessary for the 
 honorable Managers to make out in proof to support that 
 article. 
 
 Now, there is a question involved here which enters 
 deeply, as I have already intimated, into the first eight 
 articles in this series, and materially touches two of the 
 others; and to that question I desire in the first place to 
 invite the attention of the court. That question is, whether 
 Mr. Stanton's case comes under the Tenure-of-Office Act. 
 If it does not, if the true construction and effect of the 
 Tenure-of-Office Act when applied to the facts of his case 
 excludes it, then it will be found by honorable Senators, 
 when they come to examine this and the other articles, that 
 
196 THE BRIEF 
 
 a mortal wound has been inflicted upon them by that 
 decision. I must, therefore, ask your attention to the con- 
 struction and appHcation of the first section of the Tenure- 
 of-Oflice Act. It is, as Senators know, but dry work; it 
 requires close, careful attention and reflection; no doubt it 
 will receive them. Allow me, in the first place, to read that 
 section : 
 
 That every person holding any official office to which he has 
 been appointed by and with the advice and consent of the Senate, 
 and every person who shall hereafter be appointed to any such 
 office, and shall become duly qualified to act therein, is and shall 
 be entitled to hold such office until a successor shall have been in 
 like manner appointed and duly qualified, except as herein other- 
 wise provided. 
 
 Then comes what is "otherwise provided": 
 
 Provided, That the Secretaries of State, of the Treasury, of War, 
 of the Navy, and of the Interior, the Postmaster General, and the 
 Attorney General, shall hold their offices respectively for and 
 during the term of the President by whom they may have been 
 appointed, and for one month thereafter, subject to removal by 
 and with the advice and consent of the Senate. 
 
 Here is a section, then, the body of which applies to all 
 civil officers, as well to those then in office as to those who 
 should thereafter be appointed. The body of that section 
 contains a declaration that every such officer "is," that 
 is, if he is now in office, "and shall be," that is, if he shall 
 hereafter be appointed to office, entitled to hold until a 
 successor is appointed and qualified in his place. That is 
 the body of the section. But out of this body of the section 
 it is explicitly declared that there is to be excepted a 
 particular class of officers — "except as herein otherwise 
 provided." There is to be excepted out of this general de- 
 scription of all civil officers a particular class of officers 
 as to whom something is "otherwise provided"; that is, a 
 different rule is to be announced for them. 
 
DEFENSE OF PRESIDENT JOHNSON 197 
 
 The Senate will perceive that in the body of the section 
 all officers, as well those then holding office as those there- 
 after to be appointed, are included. The language is: 
 
 Every person holding any civil office to which he has been 
 appointed, . . . and every person who shall hereafter be ap- 
 pointed, ... is and shall be entitled, etc. 
 
 It affects the present; it sweeps over all who are in office 
 and come within the body of the section; it includes by its 
 terms as well all those now in office as those who may be here- 
 after appointed. But when you come to the proviso the first 
 noticeable thing is that this language is changed; it is not 
 that "every Secretary who now is, and hereafter may be, in 
 office shall be entitled to hold that office" by a certain rule 
 which is here prescribed; but the proviso, while it fixes a 
 rule for the future only, makes no declaration of the present 
 right of one of this class of officers, and the question whether 
 any particular Secretary comes within that rule depends on 
 another question, whether his case comes within the de- 
 scription contained in the proviso. There is no language 
 which expressly brings him within the proviso; there is no 
 express declaration, as in the body of the section, that "he 
 is, and hereafter shall be, entitled" merely because he holds 
 the office of Secretary at the time of the passage of the 
 law. There is nothing to bring him within the proviso, I 
 repeat, unless the description which the proviso contains 
 applies to and includes his case. Now, let us see if it does. 
 
 That the Secretaries of State, etc., shall hold their offices re- 
 spectively for and during the term of the President by whom 
 they may have been appointed. 
 
 The first inquiry which arises on this language is as to 
 the meaning of the words "for and during the term of the 
 President." Mr. Stanton, as appears by the commission 
 which has been put into the case by the honorable Man- 
 agers, was appointed in January, 1862, during the first 
 
198 THE BRIEF 
 
 term of President Lincoln. Are these words, "during the 
 term of the President," applicable to Mr. Stanton's case? 
 That depends upon whether an expounder of this law 
 judicially, who finds set down in it as a part of the descrip- 
 tive words "during the term of the President,'* has any 
 right to add, " and any other term for which he may after- 
 ward be elected." By what authority short of legislative 
 power can those words be put into the statute so that 
 "during the term of the President" shall be held to mean 
 " and any other term or terms for which the President may 
 be elected"? I respectfully submit no such judicial inter- 
 pretation can be put on the words. 
 
 Then, if you please, take the next step. "During the 
 term of the President by whom he was appointed." At the 
 time when this order was issued for the removal of Mr. 
 Stanton, was he holding " during the term of the President 
 by whom he was appointed"? The honorable Managers 
 say yes, because, as they say, Mr. Johnson is merely serv- 
 ing out the residue of Mr. Lincoln's term. But is that so 
 under the provisions of the Constitution of the United 
 States? I pray you to allow me to read two clauses which 
 are applicable to this question. The first is the first section 
 of the second article: 
 
 The executive power shall be vested in a President of the 
 United States of America. He shall hold his office during the 
 term of four years, and, together with the Vice-President, chosen 
 for the same term, be elected, as follows. 
 
 There is a declaration that the President and the Vice- 
 President is each respectively to hold his office for the term 
 of four years; but that does not stand alone; here is its 
 qualification: 
 
 In case of the removal of the President from office, or of his 
 death, resignation, or inability to discharge the powers and duties 
 of the said office, the same shall devolve on the Vice-President. 
 
DEFENSE OF PRESIDENT JOHNSON 199 
 
 So that, although the President, Hke the Vice-President, 
 is elected for a term of four years, and each is elected for 
 the same term, the President is not to hold his office 
 absolutely during four years. .The limit of four years is not 
 an absolute limit. Death is a limit. A "conditional limita- 
 tion," as the lawyers call it, is imposed on his tenure of 
 office. And when, according to this second passage which 
 I have read, the President dies, his term of four years for 
 which he was elected, and during which he was to hold, 
 provided he should so long live, terminates, and the office 
 devolves on the Vice-President. For what period of time? 
 For the remainder of the term for which the Vice-President 
 was elected. And there is no more propriety, under these 
 provisions of the Constitution of the United States, in call- 
 ing the time during which Mr. Johnson holds the office of 
 President after it was devolved upon him a part of Mr. 
 Lincoln's term than there would be propriety in saying 
 that one sovereign who succeeded to another sovereign by 
 death holds a part of his predecessor's term. The term 
 assigned to Mr. Lincoln by the Constitution was condi- 
 tionally assigned to him. It was to last four years if not 
 sooner ended; but if sooner ended by his death, then the 
 office was devolved on the Vice-President, and the term of 
 the Vice-President to hold the office then began. 
 
 I submit, then, that upon this language of the act it is 
 apparent that Mr. Stanton's case cannot be considered as 
 within it. This law, however, as Senators very well know, 
 had a purpose; there was a practical object in the view of 
 Congress; and however clear it might seem that the lan- 
 guage of the law when applied to Mr. Stanton's case would 
 exclude that case, however clear that might seem on the 
 mere words of the law, if the purpose of the law could be 
 discerned, and that purpose plainly required a different 
 interpretation, that different interpretation should be given. 
 But, on the other hand, if the purpose in view was one 
 
200 THE BRIEF 
 
 requiring that interpretation to which I have been drawing 
 your attention, then it greatly strengthens the argument; 
 because, not only the language of the act itself, but the 
 practical object which the legislature had in view in using 
 that language demands that interpretation. 
 
 Now, there can be no dispute concerning what that 
 purpose was, as I suppose. Here is a peculiar class of 
 officers singled out from all others and brought within this 
 provision. Why is this? It is because the Constitution has 
 provided that these principal officers in the several Exec- 
 utive Departments may be called upon by the President 
 tor advice "respecting" — for that is the language of the 
 Constitution — "their several duties" — not, as I read 
 the Constitution, that he may call upon the Secretary of 
 War for advice concerning questions arising in the Depart- 
 ment of War. He may call upon him for advice concerning 
 questions which are a part of the duty of the President, as 
 well as questions which belong only to the Department of 
 War. Allow me to read that clause of the Constitution, and 
 see if this be not its true interpretation. The language of 
 the Constitution is, that — 
 
 He [the President] may require the opinion in writing of the 
 principal officer in each of the Executive Departments upon any 
 subject relating to the duties of their respective offices. 
 
 As I read it, relating to the duties of the offices of these 
 principal officers, or relating to the duties of the President 
 himself. At all events, such was the practical interpreta- 
 tion put upon the Constitution from the beginning of the 
 Government; and every gentleman who listens to me who 
 is familiar, as you all are, with the political history of the 
 country, knows that from an early period of the Adminis- 
 tration of General Washington his Secretaries were called 
 upon for advice concerning matters not within their re- 
 spective Departments, and so the practice has continued 
 
DEFENSE OF PRESIDENT JOHNSON 201 
 
 from that time to this. This is one thing which distin- 
 guishes this class of officers from any other embraced 
 within the body of the law. 
 
 But there is another. The Constitution undoubtedly 
 contemplated that there should be Executive Departments 
 created, the heads of which were to assist the President in 
 the administration of the laws as well as by their advice. 
 They were to be the hands and the voice of the President; 
 and accordingly that has been so practiced from the be- 
 ginning, and the legislation of Congress has been framed on 
 this assumption in the organization of the Departments, 
 and emphatically in the act which constituted the Depart- 
 ment of War. That provides, as Senators well remember, 
 in so many words, that the Secretary of War is to dis- 
 charge such duties of a general description there given as 
 shall be assigned to him by the President, and that he is 
 to perform them under the President's instructions and 
 directions. 
 
 Let me repeat, that the Secretary of War and the other 
 Secretaries, the Postmaster-General and the Attorney- 
 General, are deemed to be the assistants of the President in 
 the performance of his great duty to take care that the laws 
 are faithfully executed; that they speak for and act for him. 
 Now, do not these two views furnish the reasons why this 
 class of officers was excepted out of the law? They were to 
 be the advisers of the President; they were to be the imme- 
 diate confidential assistants of the President, for whom he 
 was to be responsible, but in whom he was expected to 
 repose a great amount of trust and confidence; and there- 
 fore it was that this act has connected the tenure of office 
 of these Secretaries to which it applies with the President 
 by whom they were appointed. It says, in the description 
 which the act gives of the future tenure of office of Secre- 
 taries, that a controlling regard is to be had to the fact that 
 the Secretary whose tenure is to be regulated was appointed 
 
202 THE BRIEF 
 
 by some particular President; and during the term of that 
 President he shall continue to hold his office; but as for 
 Secretaries who are in office, not appointed by the Presi- 
 dent, we have nothing to say; we leave them as they hereto- 
 fore have been. I submit to Senators that this is the natural 
 and, having regard to the character of these officers, the 
 necessary conclusion, that the tenure of the office of a 
 Secretary here described is a tenure during the term of 
 service of the President by whom he was appointed; that 
 it was not the intention of Congress to compel a President 
 of the United States to continue in office a Secretary not 
 appointed by himself. 
 
 We have, however, fortunately, not only the means of 
 interpreting this law which I have alluded to, namely, the 
 language of the act, the evident character and purpose of 
 the act, but we have decisive evidence of what was in- 
 tended and understood to be the meaning and effect of this 
 law in each branch of Congress at the time when it was 
 passed. In order to make this more apparent and its just 
 weight more evident, allow me to state what is very famil- 
 iar, no doubt, to Senators, but which I wish to recall to 
 their minds, the history of this proviso, this exception. 
 
 The bill, as Senators will recollect, originally excluded 
 these officers altogether. It made no attempt, indeed it 
 rejected all attempts, to prescribe a tenure of office for 
 them, as inappropriate to the necessities of the Govern- 
 ment. So the bill went to the House of Representatives. 
 It was there amended by putting the Secretaries on the 
 same footing as all other civil officers appointed with the 
 advice and consent of the Senate, and, thus amended, came 
 back to this body. This body disagreed to the amendment. 
 Thereupon a committee of conference was appointed, and 
 that committee, on the part of the House, had for its 
 chairman Hon. Mr. Schenck, of Ohio, and on the part of 
 this body Hon. Mr. Williams, of Oregon, and Hon. Mr. 
 
DEFENSE OF PRESIDENT JOHNSON 203 
 
 Sherman, of Ohio. The committee of conference came to 
 an agreement to alter the bill by striking these Secretaries 
 out of the body of the bill and inserting them in the proviso 
 containing the matter now under consideration. Of course, 
 when this report was made to the House of Representa- 
 tives and to this body it was incumbent on the committee 
 charged with looking after its intentions and estimates of 
 the public necessities in reference to that conference — it 
 was expected that they would explain what had been agreed 
 to, with a view that the body itself, thus understanding 
 what had been agreed to be done, could proceed to act 
 intelligently on the matter. 
 
 Now, I wish to read to the Senate the explanation given 
 by Hon. Mr. Schenck, the chairman of this conference on 
 the part of the House, when he made his report to the 
 House concerning this proviso. After the reading of the 
 report, Mr. Schenck said: 
 
 I propose to demand the previous question upon the question 
 of agreeing to the report of the committee of conference. But 
 before doing so, I will explain to the House the condition of the 
 bill and the decision of the conference committee upon it. It will 
 be remembered that by the bill as it passed the Senate it was pro- 
 vided that the concurrence of the Senate should be required in all 
 removals from office, except in the case of the heads of Depart- 
 ments. The House amended the bill of the Senate so as to extend 
 this requirement to the heads of Departments as well as to other 
 officers. 
 
 The committee of conference have agreed that the Senate shall 
 accept the amendment of the House. But, inasmuch as this would 
 compel the President to keep around him heads of Departments 
 until the end of his term, who would hold over to another term, 
 a compromise was made by which a further amendment is added 
 to this portion of the bill, so that the term of office of the heads 
 of Departments shall expire with the term of the President who 
 appointed them, allowing those heads of Departments one month 
 longer, in which, in case of death or otherwise, other heads of 
 Departments can be named. This is the whole effect of the propo- 
 sition reported by the committee of conference; it is, in fact, an 
 
204. THE BRIEF 
 
 acceptance by the Senate of the position taken by the House. 
 {Congressional Globe , Thirty-ninth Congress, Second Session, 
 p. 1340.) 
 
 Then a question was asked, whether it would be neces- 
 sary that the Senate should concur in all other appoint- 
 ments, etc.; in reply to which Mr. Schenck said: 
 
 That is the case. But their terms of office — 
 
 That is, the Secretaries* terms of office — 
 
 are limited, as they are not now limited by law, so that they 
 expire with the term of service of the President who appoints 
 them, and one month after, in case of death or other accident, 
 until others can be substituted for them by the incoming Presi- 
 dent. (Ibid.) 
 
 Allow me to repeat that sentence: 
 
 They expire with the term of service of the President who 
 appoints them, and one month after, in case of death or other 
 accident. 
 
 In this body, on the report being made, the chairman, 
 Hon. Mr. Williams, made an explanation. That explana- 
 tion was in substance the same as that made by Mr. 
 Schenck in the House, and thereupon a considerable de- 
 bate sprang up, which was not the case in the House, 
 for this explanation of Mr. Schenck was accepted by the 
 House as correct, and unquestionably was acted upon by 
 the House as giving the true sense, meaning, and effect of 
 this bill. In this body, as I have said, a considerable de- 
 bate sprang up. It would take too much of your time and 
 too much of my strength to undertake to read this debate, 
 and there is not a great deal of it which I can select so as 
 to present it fairly and intelligibly without reading the ac- 
 companying parts; but I think the whole of it may fairly 
 be summed up in this statement: that it was charged 
 by one of the honorable Senators from Wisconsin that it 
 was the intention of those who favored this bill to keep in 
 
DEFENSE OF PRESIDENT JOHNSON 205 
 
 ojQSce Mr. Stanton and certain other Secretaries. That was 
 directly met by the honorable Senator from Ohio, one of 
 the members of the committee of conference, by this 
 statement : 
 
 I do not understand the logic of the Senator from Wisconsin. 
 He first attributes a purpose to the committee of conference which 
 I say is not true. I say that the Senate have not legislated with a 
 view to any persons or any President, and therefore he commences 
 by asserting what is not true. We do not legislate in order to 
 keep in the Secretary of War, the Secretary of the Navy, or the 
 Secretary of State. (Ibid.y p. 1516.) 
 
 Then a conversation arose between the honorable 
 Senator from Ohio and another honorable Senator, and the 
 honorable Senator from Ohio continued thus: 
 
 That the Senate had no such purpose is shown by its vote twice 
 to make this exception. That this provision does not apply to the 
 present case is shown by the fact that its language is so framed as 
 not to apply to the present President. The Senator shows that 
 himself, and argues truly that it would not prevent the present 
 President from removing the Secretary of War, the Secretary of 
 the Navy, and the Secretary of State. And if I supposed that 
 either of these gentlemen was so wanting in manhood, in honor, 
 as to hold his place after the politest intimation by the President 
 of the United States that his services were no longer needed, I 
 certainly, as a Senator, would consent to his removal at any time, 
 and so would we all. {Ibid., p. 1516.) 
 
 I read this, Senators, not as expressing the opinion of an 
 individual Senator concerning the meaning of a law which 
 was under discussion and was about to pass into legislation. 
 I read it as the report; for it is that in effect — the explana- 
 tion, rather, of the report of the committee of conference 
 appointed by this body to see whether this body could agree 
 with the House of Representatives in the frame of this bill, 
 which committee came back here with a report that a 
 certain alteration had been made and agreed upon by the 
 committee of conference, and that its effect was what is 
 
206 THE BRIEF 
 
 above stated. And now I ask the Senate, looking at the 
 language of this law, looking at its purpose, looking at the 
 circumstances under which it was passed, the meaning thus 
 attached to it by each of the bodies which consented to it, 
 whether it is possible to hold that Mr. Stanton's case is 
 within the scope of that Tenure-of -Office Act? I submit it 
 is not possible. 
 
 I now return to the allegations in this first article; and 
 the first allegation, as Senators will remember, is that the 
 issuing of the order which is set out in the article was a 
 violation of the Tenure-of -Office Act. It is perfectly clear 
 that that is not true. The Tenure-of -Office Act in its sixth 
 section enacts "that every removal, appointment, or em- 
 ployment, made, had, or exercised, contrary to the provi- 
 sions of this act," etc., shall be deemed a high misdemeanor. 
 "Every removal contrary to the provisions of this act." 
 In the first place no removal has taken place. They set out 
 an order. If Mr. Stanton had obeyed that order there would 
 have been a removal; but, inasmuch as Mr. Stanton dis- 
 obeyed that order, there was no removal. So it is quite clear 
 that, looking to this sixth section of the act, they have 
 made out no case of a removal within its terms; and, there- 
 fore, no case of violation of the act by a removal. But it 
 must not only be a removal, it must be "contrary to the 
 provisions of this act"; and, therefore, if you could hold 
 the order to be in effect a removal, unless Mr. Stanton's 
 case was within this act, unless this act gave Mr. Stanton 
 a tenure of office and protected it, of course the removal, 
 even if it had been actual instead of attempted merely, 
 would not have been "contrary to the provisions of the 
 act," for the act had nothing to do with it. 
 
 But this article, as Senators will perceive on looking at 
 it, does not allege simply that the order for the removal of 
 Mr. Stanton was a violation of the Tenure-of -Office Act. 
 The honorable House of Representatives have not, by this 
 
DEFENSE OF PRESIDENT JOHNSON 207 
 
 article, attempted to erect a mistake into a crime. I have 
 been arguing to you at considerable length, no doubt trying 
 your patience thereby, the construction of that Tenure-of- 
 Office Law. I have a clear idea of what its construction 
 ought to be. Senators, more or less of them who have lis- 
 tened to me, may have a different view of its construction, 
 but I think they will in all candor admit that there is a 
 question of construction; there is a question what the mean- 
 ing of this law was; a question whether it was applicable to 
 Mr. Stanton's case; a very honest and solid question which 
 any man could entertain, and therefore I repeat it is im- 
 portant to observe that the honorable House of Repre- 
 sentatives have not, by this article, endeavored to charge 
 the President with a high misdemeanor because he had 
 been honestly mistaken in construing that law. They go 
 further and take the necessary step. They charge him with 
 intentionally misconstruing it; they say, "Which order 
 was unlawfully issued with intention then and there to vio- 
 late said act." So that, in order to maintain the substance 
 of this article, without which it was not designed by the 
 House of Representatives to stand and cannot stand, it is 
 necessary for them to show that the President willfully mis- 
 construed this law; that having reason to believe and ac- 
 tually believing, after the use of due inquiry, that Mr. 
 Stanton's case was within the law, he acted as if it was not 
 within the law. That is the substance of the charge. 
 
 What is the proof in support of that allegation offered 
 by the honorable Managers? Senators must undoubtedly 
 be familiar with the fact that the office of President of the 
 United States, as well as many other executive offices, and, 
 to some extent, legislative offices, call upon those who hold 
 them for the exercise of judgment and skill in the construc- 
 tion and application of laws. It is true that the strictly 
 judicial power of the country, technically speaking, is 
 vested in the Supreme Court and such inferior courts as 
 
208 I THE BRIEF 
 
 Congress from time to time have established or may estab- 
 lish. But there is a great mass of work to be performed by 
 executive officers in the discharge of their duties, which is 
 of a judicial character. Take, for instance, all that is done 
 in the auditing of accounts; that is judicial whether it be 
 done by an auditor or a comptroller, or whether it be done 
 by a chancellor; and the work has the same character 
 whether done by one or by the other. They must construe 
 and apply the laws; they must investigate and ascertain 
 facts; they must come to some results compounded of the 
 law and of the facts. 
 
 Now, this class of duties the President of the United 
 States has to perform. A case is brought before him, which, 
 in his judgment, calls for action; his first inquiry must be, 
 What is the law on the subject? He encounters, among 
 other things, this Tenure-of -Office Law in the course of his 
 inquiry. His first duty is to construe that law; to see 
 whether it applies to the case; to use, of course, in doing so, 
 all those means and appliances which the Constitution 
 and the laws of the country have put into his hands to 
 enable him to come to a correct decision. But, after all, he 
 must decide, in order either to act or to refrain from action. 
 
 That process the President in this case was obliged to 
 go through, and did go through; and he came to the con- 
 clusion that the case of Mr. Stanton was not within this 
 law. He came to that conclusion, not merely by an exami- 
 nation of this law himself, but by resorting to the advice 
 which the Constitution and laws of the country enable him 
 to call for to assist him in coming to a correct conclusion. 
 Having done so, are the Senate prepared to say that the 
 conclusion he reached must have been a willful mis- 
 construction — so willful, so wrong, that it can justly and 
 properly, and for the purpose of this prosecution, effectively 
 be termed a high misdemeanor? How does the law read? 
 What are its purposes and objects? How was it understood 
 
DEFENSE OF PRESIDENT JOHNSON 209 
 
 here at the time when it was passed? How is it possible for 
 this body to convict the President of the United States of a 
 high misdemeanor for construing a law as those who made 
 it construed it at the time when it was made? 
 
 I submit to the Senate that thus far no great advance 
 has been made toward the conclusion either that the allega- 
 tion in this article that this order was a violation of the 
 Tenure-of -Office Act is true, or that there was an intent on 
 the part of the President thus to violate it. And, although 
 we have not yet gone over all the allegations in this article, 
 we have met its "head and front," and what remains will 
 be found to be nothing but incidental and circumstantial, 
 and not the principal subject. If Mr. Stanton was not 
 within this act, if he held the office of Secretary for the 
 Department of War at the pleasure of President Johnson, 
 as he held it at the pleasure of President Lincoln, if he 
 was bound by law to obey that order which was given 
 to him, and quit the place, instead of being sustained by 
 law in resisting that order, I think the honorable Managers 
 will find it extremely difficult to construct out of the broken 
 fragments of this article anything which will amount to a 
 high misdemeanor. What are they? They are, in the first 
 place, that the President did violate, and intended to vio- 
 late, the Constitution of the United States by giving this 
 order. Why? They say, as I understand it, because the 
 order of removal was made during the session of the Senate; 
 that for that reason the order was a violation of the Con- 
 stitution of the United States. 
 
 I desire to be understood on this subject. If I can make 
 my own ideas of it plain, I think nothing is left of this alle- 
 gation. In the first place, the case, as Senators will observe, 
 which is now under consideration, is the case of a Secretary 
 of War holding during the pleasure of the President by the 
 terms of his commission; holding under the Act of 1789, 
 which created that Department, which, although it does 
 
210 THE BRIEF 
 
 not affect to confer on the President the power to remove 
 the Secretary, does clearly imply that he has that power 
 by making a provision for what shall happen in case he 
 exercises it. That is the case which is under consideration, 
 and the question is this: whether under the law of 1789 and 
 the tenure of office created by that law, designedly created 
 by that law, after the great debate of 1789, and whether 
 under a commission which conforms to it, holding during 
 the pleasure of the President, the President could remove 
 such a Secretary during the session of the Senate. Why 
 not? Certainly there is nothing in the Constitution of the 
 United States to prohibit it. The Constitution has made 
 two distinct provisions for filling offices. One is by nom- 
 ination to the Senate and confirmation by them and a com- 
 mission by the President upon that confirmation. The 
 other is by commissioning an officer when a vacancy hap- 
 pens during a recess of the Senate. But the question now 
 before you is not a question how vacancies shall be filled; 
 that the Constitution has thus provided for; it is a question 
 how they may be created and when they may be created — 
 a totally distinct question. 
 
 Whatever may be thought of the soundness of the con- 
 clusion arrived at upon the great debate in 1789 concerning 
 the tenure of office, or concerning the power of removal 
 from office, no one, I suppose, will question that a conclu- 
 sion was arrived at; and that conclusion was that the Con- 
 stitution had lodged with the President the power of re- 
 moval from office independently of the Senate. This may 
 be a decision proper to be reversed; it may have been now 
 reversed; of that I say nothing at present; but that it was 
 made, and that the legislation of Congress in 1789 and so 
 on down during the whole period of legislation to 1867 pro- 
 ceeded upon the assumption, express or implied, that that 
 decision had been made," nobody who understands the 
 history of the legislation of the country will deny. 
 
DEFENSE OF PRESIDENT JOHNSON 211 
 
 Consider, if you please, what this decision was. It was 
 that the Constitution had lodged this power in the Presi- 
 dent; that he alone was to exercise it; that the Senate had 
 not, and could not have, any control whatever over it. If 
 that be so, of what materiality is it whether the Senate is 
 in session or not? If the Senate is not in session, and the 
 President has this power, a vacancy is created, and the 
 Constitution has made provision for filling that vacancy by 
 commission until the end of the next session of the Senate. 
 If the Senate is in session, then the Constitution has made 
 provision for filling a vacancy which is created by a nomi- 
 nation to the Senate; and the laws of the country, as I am 
 presently going to show you somewhat in detail, have made 
 provisions for filling it ad interim without any nomination, 
 if the President is not prepared to make a nomination at the 
 moment when he finds the public service requires the re- 
 moval of an officer. So that, if this be a case within the 
 scope of the decision made by Congress in 1789, and within 
 the scope of the legislation which followed upon that de- 
 cision, it is a case where, either by force of the Constitution 
 the President had the power of removal without consulting 
 the Senate, or else the legislation of Congress had given it to 
 him; and either way neither the Constitution nor the legis- 
 lation of Congress had made it incumbent on him to con- 
 sult the Senate on the subject. 
 
 I submit, then, that if you look at this matter of Mr. 
 Stanton's removal just as it stands on the decision in 178.9 
 or on the legislation of Congress following upon that deci- 
 sion, and in accordance with which are the terms of the 
 commission under which Mr. Stanton held office, you must 
 come to the conclusion, without any further evidence on the 
 subject, that the Senate had nothing whatever to do with 
 the removal of Mr. Stanton, either to advise for it or to 
 advise against it; that it came either under the constitu- 
 tional power of the President as it had been interpreted in 
 
212 THE BRIEF 
 
 1789 or it came under the grant made by the Legislature to 
 the President in regard to all those Secretaries not included 
 within the Tenure-of-Office Bill. This, however, does not 
 rest simply upon this application of the Constitution and 
 of the legislation of Congress. There has been, and we 
 shall bring it before you, a practice by the Government, 
 going back to a very early day, and coming down to a recent 
 period, for the President to make removals from office when 
 the case called for them, without regard to the fact whether 
 the Senate was in session or not. The instances, of course, 
 would not be numerous. If the Senate was in session the 
 President would send a nomination to the Senate saying, 
 " A B in place of C D, removed " ; but then there were occa- 
 sions, not frequent, I agree, but there were occasions, as 
 you will see might naturally happen, when the President, 
 perhaps, had not had time to select a person whom he 
 would nominate, and when he could not trust the officer 
 then in possession of the office to continue in it, when it 
 was necessary for him by a special order to remove him 
 from the office wholly independent of any nomination sent 
 in to the Senate. Let me bring before your consideration 
 for a moment a very striking case which happened recently 
 enough to be within the knowledge of many of you. We 
 were on the eve of a civil war; the War Department was in 
 the hands of a man who was disloyal and unfaithful to his 
 trust; his chief clerk who, on his removal or resignation, 
 would come into the place, was believed to be in the same 
 category with his master. Under those circumstances the 
 President of the United States said to Mr. Floyd, "I must 
 have possession of this office"; and Mr. Floyd had too 
 much good sense or good manners or something else to do 
 anything but resign; and instantly the President put into 
 the place General Holt, the Postmaster-General of the 
 United States at the time, without the delay of an hour. 
 It was a time when a delay of twenty-four hours might 
 
DEFENSE OF PRESIDENT JOHNSON 213 
 
 have been of vast practical consequence to the country. 
 There are classes of cases arising in all the Departments of 
 that character followed by that action; and we shall bring 
 before you evidence showing what those cases have been, 
 so that it will appear that so long as officers held at the 
 pleasure of the President and wholly independent of the 
 advice which he might receive in regard to their removal 
 from the Senate, so long, whenever there was an occasion, 
 the President used the power, whether the Senate was in 
 session or not. 
 
 I have now gone over. Senators, the considerations which 
 seem to me to be applicable to the Tenure-of-Office Bill, 
 and to this allegation which is made that the President 
 knowingly violated the Constitution of the United States 
 in the order for the removal of Mr. Stanton from office 
 while the Senate was in session; and the counsel for the 
 President feel that it is not essential to his vindication from 
 this charge to go further upon this subject. Nevertheless, 
 there is a broader view of this matter, which is an actual 
 part of the case, and it is due to the President it should be 
 brought before you, that I now propose to open to your 
 consideration. 
 
 The Constitution requires the President of the United 
 States to take care that the laws be faithfully executed. 
 It also requires of him, as a qualification for his office, to 
 swear that he will faithfully execute the laws, and that, to 
 the best of his ability, he will preserve, protect, and defend 
 the Constitution of the United States. I suppose every 
 one will agree that so long as the President of the United 
 States, in good faith, is endeavoring to take care that the 
 laws be faithfully executed, and in good faith and to the 
 best of his ability is preserving, protecting, and defending 
 the Constitution of the United States, although he may be 
 making mistakes, he is not committing high crimes or mis- 
 demeanors. 
 
214 THE BRIEF 
 
 In the execution of these duties the President found, for 
 reasons which it is not my province at this time to enter 
 upon, but which will be exhibited to you hereafter, that it 
 was impossible to allow Mr. Stanton to continue to hold 
 the office of one of his advisers, and to be responsible for 
 his conduct in the manner he was required by the Constitu- 
 tion and laws to be responsible, any longer. This was in- 
 timated to Mr. Stanton, and did not produce the effect 
 which, according to the general judgment of well-informed 
 men, such intimations usually produce. Thereupon the 
 President first suspended Mr. Stanton, and reported that to 
 the Senate. Certain proceedings took place which will be 
 adverted to more particularly presently. They resulted in 
 the return of Mr. Stanton to the occupation by him of this 
 office. Then it became necessary for the President to con- 
 sider, first, whether this Tenure-of-Office Law applied to 
 the case of Mr. Stanton; secondly, if it did apply to the 
 case of Mr. Stanton, whether the law itself was the law 
 of the land, or was merely inoperative because it exceeded 
 the constitutional power of the Legislature. 
 
 I am aware that it is asserted to be the civil and moral 
 duty of all men to obey those laws which have been passed 
 through all the forms of legislation until they shall have 
 been decreed by judicial authority not to be binding; but 
 this is too broad a statement of the civil and moral duty 
 incumbent either upon private citizens or public officers. 
 If this is the measure of duty, there never could be a judicial 
 decision that a law is unconstitutional, inasmuch as it is 
 only by disregarding a law that any question can be raised 
 judicially under it. I submit to Senators that not only is 
 there no such rule of civil or moral duty, but that it may 
 be and has been a high and patriotic duty of a citizen to 
 raise a question whether a law is within the Constitution of 
 the country. Will any man question the patriotism or the 
 propriety of John Hampden's act when he brought the 
 
DEFENSE OF PRESIDENT JOHNSON 215 
 
 question whether "ship money" was within the Constitu- 
 tion of England before the courts of England? Not only is 
 there no such rule incumbent upon private citizens which 
 forbids them to raise such questions, but, let me repeat, 
 there may be, as there not unfrequently have been, in- 
 stances in which the highest patriotism and the purest civil 
 and moral duty require it to be done. Let me ask any one 
 of you, if you were a trustee for the rights of third persons, 
 and those rights of third persons, which they could not 
 defend themselves by reason, perhaps, of sex or age, should 
 be attacked by an unconstitutional law, should you not 
 deem it to be your sacred duty to resist it and have the 
 question tried? And, if a private trustee may be subject to 
 such a duty, and impelled by it to such action, how is it 
 possible to maintain that he who is a trustee for the people 
 of powers confided to him for their protection, for their 
 security, for their benefit, may not, in that character of 
 trustee, defend what has thus been confided to him? 
 
 Do not let me be misunderstood on this subject. I am 
 not intending to advance upon or occupy any extreme 
 ground, because no such extreme ground has been advanced 
 upon or occupied by the President of the United States. 
 He is to take care that the laws are faithfully executed. 
 When a law has been passed through the forms of legisla- 
 tion, either with his assent or without his assent, it is his 
 duty to see that that law is faithfully executed so long as 
 nothing is required of him but ministerial action. He is not 
 to erect himself into a judicial court and decide that the 
 law is unconstitutional, and that therefore he will not 
 execute it; for, if that were done, manifestly there never 
 could be a judicial decision. He would not only veto a law, 
 but he would refuse all action under the law after it had 
 been passed, and thus prevent any judicial decision from 
 being made. He asserts no such power. He has no such 
 idea of his duty. His idea of his duty is that if a law is 
 
216 THE BRIEF 
 
 passed over his veto which he beheves to be unconstitu- 
 tional, and that law affects the interests of third persons, 
 those whose interests are affected must take care of them, 
 vindicate them, raise questions concerning them, if they 
 should be so advised. If such a law affects the general and 
 public interests of the people the people must take care at 
 the polls that it is remedied in a constitutional way. 
 
 But when. Senators, a question arises whether a par- 
 ticular law has cut off a power confided to him by the 
 people through the Constitution, and he alone can raise 
 that question, and he alone can cause a judicial decision to 
 come between the two branches of the Government to say 
 which of them is right, and, after due deliberation, with the 
 advice of those who are his proper advisers, he settles down 
 firmly upon the opinion that such is the character of the 
 law, it remains to be decided by you whether there is any 
 violation of his duty when he takes the needful steps to 
 raise that question and have it peacefully decided. 
 
 Where shall the line be drawn? Suppose a law should 
 provide that the President of the United States should not 
 make a treaty with England or with any other country.^ 
 It would be a plain infraction of his constitutional power, 
 and if an occasion arose when such a treaty was in his 
 judgment expedient and necessary it would be his duty to 
 make it; and the fact that it should be declared to be a 
 high misdemeanor if he made it would no more relieve him 
 from the responsibility of acting through the fear of that 
 law than he would be relieved of that responsibility by a 
 bribe not to act. 
 
 Suppose a law that he shall not be Commander-in-Chief 
 in part or in whole — a plain case, I will suppose, of an 
 infraction of that provision of the Constitution which has 
 confided to him that command; the Constitution intending 
 that the head of all the military power of the country should 
 be a civil magistrate, to the end that the law may always be 
 
DEFENSE OF PRESIDENT JOHNSON 217 
 
 superior to arms. Suppose he should resist a statute of that 
 kind in the manner I have spoken of by bringing it to a 
 judicial decision? 
 
 It may be said these are plain cases of express infractions 
 of the Constitution; but what is the difference between a 
 power conferred upon the President by the express words of 
 the Constitution and a power conferred upon the President 
 by a clear and sufficient implication in the Constitution? 
 Where does the power to make banks come from? Where 
 does the power come from to limit Congress in assigning 
 original jurisdiction to the Supreme Court of the United 
 States, one of the cases referred to the other day? Where do 
 a multitude of powers upon which Congress acts come from 
 in the Constitution except by fair implications? Whence 
 do you derive the power, while you are limiting the tenure 
 of office, to confer on the Senate the right to prevent re- 
 tnovals without their consent? Is that expressly given in 
 the Constitution, or is it an implication which is made from 
 some of its provisions? 
 
 I submit it is impossible to draw any line of duty for the 
 President simply because a power is derived from an im- 
 plication in the Constitution instead of from an express 
 provision. One thing unquestionably is to be expected of 
 the President on all such occasions, that is, that he should 
 carefully consider the question; that he should ascertain 
 that it necessarily arises; that he should be of opinion that 
 it is necessary to the public service that it should be de- 
 cided; that he should take all competent and proper advice 
 on the subject. When he has done all this, if he finds that 
 he cannot allow the law to operate in the particular case 
 without abandoning a power which he believes has been 
 confided to him by the people, it is his solemn conviction 
 that it is his duty to assert the power and obtain a judicial 
 decision thereon. And although he does not perceive, nor 
 do his counsel perceive, that it is essential to his defense in 
 
218 THE BRIEF 
 
 this case to maintain this part of the argument, neverthe- 
 less, if this tribunal should be of that opinion, then before 
 this tribunal, before all the people of the United States, 
 and before the civilized world, he asserts the truth of this 
 position. 
 
 I am compelled now to ask your attention, quite briefly, 
 however, to some considerations which weighed upon the 
 mind of the President and led him to the conclusion that this 
 was one of the powers of his office which it was his duty, 
 in the manner I have indicated, to endeavor to preserve. 
 
 The question whether the Constitution has lodged the 
 power of removal with the President alone, with the Presi- 
 dent and Senate, or left it to Congress to be determined at 
 its will in fixing the tenure of offices, was, as all Senators 
 know, debated in 1789 with surpassing ability and knowl- 
 edge of the frame and necessities of our Government. 
 
 Now, it is a rule long settled, existing, I suppose, in all 
 civilized countries, certainly in every system of law that I 
 have any acquaintance with, that a contemporary expo- 
 sition of a law made by those who were competent to give 
 it a construction is of very great weight; and that when 
 such contemporary exposition has been made of a law, and 
 it has been followed by an actual and practical construc- 
 tion in accordance with that contemporary exposition, con- 
 tinued during a long period of time and applied to great 
 numbers of cases, it is afterward too late to call in question 
 the correctness of such a construction. The rule is laid 
 down, in the quaint language of Lord Coke, in this form : 
 
 Great regard ought, in construing a law, to be paid to the con- 
 struction which the sages who lived about the time or soon after 
 it was made put upon it, because they were best able to judge of 
 the intention of the makers at the time when the law was made. 
 Contemporania expositio est fortissima in legem. 
 
 I desire to bring before the Senate in this connection, 
 inasmuch as I think the subject has been frequently mis- 
 
DEFENSE OF PRESIDENT JOHNSON 219 
 
 understood, the form taken by that debate of 1789 and the 
 result which was attained. In order to do so, and at the 
 same time to avoid fatiguing your attention by looking 
 minutely into the debate itseK, I beg leave to read a pas- 
 sage from Chief Justice Marshall's Life of Washington^ 
 where he has summed up the whole. The writer says, on 
 page 162 of the second volume of the Philadelphia edition: 
 
 After an ardent discussion, which consumed several days, the 
 committee divided, and the amendment was negatived by a 
 majority of thirty- four to twenty. The opinion thus expressed 
 by the House of Representatives did not explicitly convey their 
 sense of the Constitution. Indeed, the express grant of the power 
 to the President rather implied a right in the Legislature to give 
 or withhold it at their discretion. To obviate any misunderstand- 
 ing of the principle on which the question had been decided, Mr. 
 Benson moved in the House, when the report of the Committee 
 of the Whole was taken up, to amend the second clause in the bill 
 so as clearly to imply the power of removal to be solely in the 
 President. He gave notice that if he should succeed in this he 
 would move to strike out the words which had been the subject 
 of debate. If those words continued, he said, the power of removal 
 by the President might hereafter appear to be exercised by virtue 
 of a legislative grant only, and consequently be subjected to legis- 
 lative instability; when he was well satisfied in his own mind that 
 it was by fair construction fixed in the Constitution. The motion 
 was seconded by Mr. Madison, and both amendments were 
 adopted. As the bill passed into a law, it has ever been considered 
 as a full expression of the sense of the Legislature on this impor- 
 tant part of the American Constitution. 
 
 Some allusion has been made to the fact that this law 
 was passed in the Senate only by the casting vote of the 
 Vice-President; and upon that subject I beg leave to refer 
 to the life of Mr. Adams by his grandson, volume one of 
 his works, pages 448 to 450. He here gives an account, so 
 far as could be ascertained from the papers of President 
 Adams, of what that debate was, and finally terminates 
 the subject in this way: 
 
220 THE BRIEF 
 
 These reasons — 
 That is, the reasons of Vice-President Adams — 
 
 were not committed to paper, however, and can therefore 
 never be known. But in their soundness it is certain that he never 
 had the shadow of a doubt. 
 
 I desire leave, also, to refer on this subject to the first 
 volume of Story's Commentaries on the Constitution, section 
 four hundred and eight, in support of the rule of interpreta- 
 tion which I have stated to the Senate. It will there be 
 found that it is stated by the learned commentator that a 
 contemporaneous construction of the Constitution made 
 under certain circumstances, which he describes, is of very 
 great weight in determining its meaning. He says: 
 
 After all, the most unexceptionable source of collateral interpre- 
 tation is from the practical exposition of the Government itself in 
 its various departments upon particular questions discussed and 
 settled upon their own single merits. These approach the nearest 
 in their own nature to judicial expositions, and have the same 
 general recommendation that belongs to the latter. They are 
 decided upon solemn argument, 'pro re nata, upon a doubt raised, 
 upon a lis mota, upon a deep sense of their importance and diffi- 
 culty, in the face of the nation, with a view to present action in 
 the midst of jealous interests, and by men capable of urging or 
 repelling the grounds of argument from their exquisite genius, 
 their comprehensive learning, or their deep meditation upon the 
 absorbing topic. How light, compared with these means of in- 
 struction, are the private lucubrations of the closet or the retired 
 speculations of ingenious minds, intent on theory or general views, 
 and unused to encounter a practical difficulty at every step! 
 
 On comparing the decision made in 1789 with the tests 
 which are here suggested by the learned commentator, it 
 will be found, in the first place, that the precise question 
 was under discussion; secondly, that there was a deep sense 
 of its importance, for it was seen that the decision was not 
 to affect a few cases lying here and there in the course of 
 
DEFENSE OF PRESIDENT JOHNSON 221 
 
 the Government, but that it would enter deeply into its 
 practical and daily administration ; and, in the next place, 
 the determination was, so far as such determination could 
 be entertained, thereby to fix a system for the future; and, 
 in the last place, the men who participated in it must be 
 admitted to have been exceedingly well qualified for their 
 work. 
 
 There is another rule to be added to this, which is also 
 one of very frequent application, and it is that a long- 
 continued practical application of a decision of this char- 
 acter by those to whom the execution of a law is confided 
 is of decisive weight. To borrow again from Lord Coke 
 on this subject, ^'Optimus legum inter pr es consuetudo^' — 
 *' Practice is the best interpreter of law." Now, what fol- 
 lowed this original decision? From 1789 down to 1867 every 
 President and every Congress participated in and acted 
 under the construction given in 1789. Not only did the 
 Government so conduct, but it was a subject sufficiently 
 discussed among the people to bring to their consideration 
 that such a question had existed, had been started, had 
 been settled in this manner, had been raised again from 
 time to time, and yet, as everybody knows, so far from the 
 people interfering with this decision, so far from ever ex- 
 pressing in any manner their disapprobation of the practice 
 which had grown up under it, not one party nor two parties 
 but all parties favored and acted upon this system of 
 Government. . . . 
 
 This is a subject which has been heretofore examined and 
 passed upon judicially in very numerous cases. I do not 
 speak now, of course, of judicial decisions of this particular 
 question which is under consideration, whether the Con- 
 stitution has lodged the power of removal in the President 
 alone, or in the President and Senate, or has left it to be a 
 part of the legislative power; but I speak of the judicial 
 exposition of the effect of such a practical construction of 
 
222 ' THE BRIEF 
 
 the Constitution of the United States originated in the way 
 in which this was originated, continued in the way in which 
 this was continued, and sanctioned in the way in which 
 this has been sanctioned. 
 
 There was a very early case that arose soon after the 
 organization of the Government, and which is reported 
 under the name of Stuart vs. Laird, in 1 Cranch's Reports, 
 299. It was a question concerning the interpretation of the 
 Constitution concerning the power which the Congress had 
 to assign to the judges of the Supreme Court circuit duties. 
 From that time down to the decision in the case of Cooley 
 vs. The Port Wardens of Philadelphia, reported in 12 
 Howard, 315, a period of more than half a century, there 
 has been a series of decisions upon the effect of such a 
 contemporaneous construction of the Constitution, fol- 
 lowed by such a practice in accordance with it; and it is now 
 a fixed and settled rule, which, I think, no lawyer will 
 undertake to controvert, that the effect of such a construc- 
 tion is not merely to give weight to an argument, but to fix 
 an interpretation. And accordingly it will be found by 
 looking into the books written by those who were conver- 
 sant with this subject that they have so considered and 
 received it. I beg leave to refer to the most eminent of all 
 the commentators on American law, and to read a line or 
 two from Chancellor Kent's Lectures, found in the first 
 volmne, page 310, marginal paging. After considering this 
 subject, — and, it should be noted in reference to this very 
 learned and experienced jurist, considering it in an unfa- 
 vorable light, because he himself thought that as an original 
 question it had better have been settled the other way, that 
 it would have been more logical, more in conformity with 
 his views of what the practical needs of the Government 
 were, that the Senate should participate with the President 
 in the power of removal, — nevertheless he sums it all up in 
 these words: 
 
DEFENSE OF PRESIDENT JOHNSON 223 
 
 This amounted to a legislative construction of the Constitution, 
 and it has ever since been acquiesced in and acted upon as of 
 decisive authority in the case. It applies equally to every other 
 officer of the Government appointed by the President and Senate 
 whose term of duration is not specially declared. It is supported 
 by the weighty reason that the subordinate officers in the exec- 
 utive department ought to hold at the pleasure of the head of 
 that department, because he is invested generally with the exec- 
 utive authority, and every participation in that authority by the 
 Senate was an exception to a general principle, and ought to be 
 taken strictly. The President is the great responsible officer for 
 the faithful execution of the law, and the power of removal was 
 incidental to that duty, and might often be requisite to fulfill it. 
 
 This, I believe, will be found to be a fair expression of 
 the opinions of those who have had occasion to examine 
 this subject in their closets or as a matter of speculation. 
 
 In this case, however, the President of the United States 
 had to consider not merely the general question where this 
 power was lodged, not merely the effect of this decision 
 made in 1789, and the practice of the Government under 
 it since, but he had to consider a particular law, the pro- 
 visions of which were before him, and might have an appli- 
 cation to the case upon which he felt called upon to act; 
 and it is necessary, in order to do justice to the President 
 in reference to this matter, to see what the theory of that 
 law is and what its operation is or must be, if any, upon 
 the case which he had before him; namely, the case of 
 Mr. Stanton. 
 
 During the debate in 1789 there were three distinct 
 theories held by different persons in the House of Repre- 
 sentatives. One was that the Constitution had lodged the 
 power of removal with the President alone; another was 
 that the Constitution had lodged that power with the 
 President, acting with the advice and consent of the Senate; 
 the third was that the Constitution had lodged it nowhere, 
 but had left it to the legislative power, to be acted upon in 
 connection with the prescription of the tenure of office. 
 
224 THE BRIEF 
 
 The last of these theories was at that day held by com- 
 paratively few persons. The first two received not only 
 much the greatest number of votes but much the greatest 
 weight of reasoning in the course of that debate; so much 
 so that when this subject came under the consideration of 
 the Supreme Court of the United States, in the case of 
 Ex parte Hennan, collaterally only, Mr. Justice Thomp- 
 son, who delivered the opinion of the Court on that occa- 
 sion, says that it has never been doubted that the Consti- 
 tution had lodged the power either in the President alone 
 or in the President and Senate — certainly an inaccuracy; 
 but then it required a very close scrutiny of the debates 
 and a careful examination of the few individual opinions 
 expressed in that debate, in that direction, to ascertain 
 that it ever had been doubted that, one way or the other, 
 the Constitution settled the question. 
 
 Nevertheless, as I understand it — I may be mistaken in 
 this — but, as I understand it, it is the theory of this law 
 which the President had before him, that both these opin- 
 ions were wrong; that the Constitution has not lodged the 
 power anywhere; that it has left it as an incident to the 
 legislative power, which incident may be controlled, of 
 course, by the Legislature itself, according to its own 
 will; because, as Chief Justice Marshall somewhere re- 
 marks (and it is one of those profound remarks which will 
 be found to have been carried by him into many of his 
 decisions), when it comes to a question whether a power 
 exists, the particular mode in which it may be exercised 
 must be left to the will of the body that possesses it; and, 
 therefore, if this be a legislative power, it was very appar- 
 ent to the President of the United States, as it had been 
 very apparent to Mr. Madison, as was declared by him in 
 the course of his correspondence with Mr. Coles, which is, 
 no doubt, familiar to Senators, that if this be a legislative 
 power the Legislature may lodge it in the Senate, may re- 
 
DEFENSE OF PRESIDENT JOHNSON 225 
 
 tain it in the whole body of Congress, the two Houses of 
 Congress, or may give it to the House of Representatives. 
 I repeat, the President had to consider this particular law; 
 and that, as I understand it, is the theory of that law. I 
 do not undertake to say it is an unfounded theory; I do 
 not undertake to say that it may not be maintained success- 
 fully; but I do undertake to say that it is one which was 
 originally rejected by the ablest minds that had this sub- 
 ject under consideration in 1789; that, whenever the ques- 
 tion has been started since, it has had, to a recent period, 
 very few advocates; and that no fair and candid mind can 
 deny that it is capable of being doubted and disbelieved 
 after examination. It may be the truth, after all; but it is 
 not a truth which shines with such clear and certain light 
 that a man is guilty of a crime because he does not see it. 
 The President not only had to consider this particular 
 law, but he had to consider its constitutional application 
 to this particular case, supposing the case of Mr. Stanton 
 to be, what I have endeavored to argue it was not, within 
 its terms. Let us assume, then, that his case was within 
 its terms; let us assume that this proviso, in describing the 
 cases of Secretaries, described the case of Mr. Stanton; that 
 Mr. Stanton, having been appointed by President Lincoln 
 in January, 1862, and commissioned to hold during the 
 pleasure of the President, by force of this law acquired a 
 right to hold this office against the will of the President 
 down to April, 1869. Now, there is one thing which has 
 never been doubted under the Constitution, is incapable 
 of being doubted, allow me to say, and that is, that the 
 President is to make the choice of officers. Whether, having 
 made the choice, and they being inducted into office, they 
 can be removed by him alone, is another question. But to 
 the President alone is confided the power of choice. In the 
 first place, he alone can nominate. When the Senate has 
 advised the nomination, consented to the nomination, he is 
 
226 THE BRIEF 
 
 not bound to commission the officer. He has a second op- 
 portunity for consideration, and acceptance or rejection of 
 the choice he had originally made. On this subject allow me 
 to read from the opinion of Chief Justice Marshall, in the 
 case of Marbury vs. Madison, where it is expressed more 
 clearly than I can express it. After enumerating the differ- 
 ent clauses of the Constitution which bear upon this sub- 
 ject, he says: 
 
 These are the clauses of the Constitution and laws of the United 
 States which affect this part of the case. They seem to con- 
 template tliree distinct operations: 
 
 1. The nomination. This is the sole act of the President, and 
 is completely voluntary. 
 
 2. The appointment. This is also the act of the President, and 
 is also a voluntary act, though it can only be performed by and 
 with the advice and consent of the Senate. 
 
 3. The commission. To grant a commission to a person 
 appointed might, perhaps, be deemed a duty enjoined by the 
 Constitution. "He shall," says that instrument, *' commission all 
 the officers of the United States." (1 Cranch, 155.) 
 
 He then goes into various considerations to show that 
 it is not a duty enjoined by the Constitution; that it is 
 optional with him whether he will commission even after 
 an appointment has been confirmed, and he says: 
 
 The last act to be done by the President is the signature of the 
 commission. He has then acted on the advice and consent of the 
 Senate to his own nomination. The time for deliberation has then 
 passed. He has decided. His judgment, on the advice and con- 
 sent of the Senate concurring with his nomination, has been made, 
 and the officer is appointed. {Ibid., 157.) 
 
 The choice, then, is with the President. The action of 
 the Senate upon that choice is an advisory action only at a 
 particular stage after the nomination, before the appoint- 
 ment or the commission. Now, as I have said before, Mr. 
 Stanton was appointed under the law of 1789, constituting 
 the War Department, and in accordance with that law 
 
DEFENSE OF PRESIDENT JOHNSON 227 
 
 he was commissioned to hold during the pleasure of the 
 President. President Lincoln had said to the Senate, "I 
 nominate Mr. Stanton to hold the office of Secretary for 
 the Department of War during the pleasure of the Presi- 
 dent." The Senate had said, "We assent to Mr. Stanton's 
 holding the office of Secretary for the Department of War 
 during the pleasure of the President." What does this 
 Tenure-of-Office Law say, if it operates on the case of Mr. 
 Stanton? It says Mr. Stanton shall hold office against the 
 will of the President, contrary to the terms of his commis- 
 sion, contrary to the law under which he was appointed, 
 down to the 4th of April, 1869. For this new, fixed, and ex- 
 tended term, where is Mr. Stanton's commission.^ Who has 
 made the appointment? Who has assented to it? It is a 
 legislative commission; it is a legislative appointment; it 
 is assented to by Congress acting in its legislative capacity. 
 The President has had no voice in the matter. The Senate, 
 as the advisers of the President, have had no voice in the 
 matter. If he holds at all, he holds by force of legislation, 
 and not by any choice made by the President, or assented 
 to by the Senate. And this was the case, and the only case, 
 which the President had before him, and on which he was 
 called to act. 
 
 Now, I ask Senators to consider whether, for having 
 formed an opinion that the Constitution of the United 
 States had lodged this power with the President — an 
 opinion which he shares with every President who has pre- 
 ceded him, with every Congress which has preceded the 
 last; an opinion formed on the grounds which I have im- 
 perfectly indicated; an opinion which, when applied to this 
 particular case, raises the difficulties which I have indicated 
 here, arising out of the fact that this law does not pursue 
 either of the opinions which were originally held in this 
 Government, and have occasionally been started and main- 
 tained by those who are restless under its administration; 
 
228 THE BRIEF 
 
 an opinion thus supported by the practice of the Govern- 
 ment from its origin down to his own day, — is he to be 
 impeached for holding that opinion? If not, if he might 
 honestly and properly form such an opinion under the 
 lights which he had, and with the aid of the advice which 
 we shall show you he received, then is he to be impeached 
 for acting upon it to the extent of obtaining a judicial de- 
 cision whether the executive department of the Govern- 
 ment was right in its opinion, or the legislative department 
 was right in its opinion? Strangely enough, as it struck me, 
 the honorable Managers themselves say, *'No; he is not 
 to be impeached for that. I beg leave to read a passage 
 from the argument of the honorable Manager by whom 
 the prosecution was opened: 
 
 If the President had really desired solely to test the constitu- 
 tionality of the law or his legal right to remove Mr, Stanton, in- 
 stead of his defiant message to the Senate of the 21st of February, 
 informing them of the removal, but not suggesting this purpose, 
 which is thus shown to be an afterthought, he would have said, in 
 substance: "Gentlemen of the Senate, in order to test the con- 
 stitutionality of the law entitled, 'An act regulating the tenure of 
 certain civil offices,' which I verily believe to be unconstitutional 
 and void, I have issued an order of removal of E. M. Stanton 
 from the office of Secretary of the Department of War. I felt 
 myself constrained to make this removal lest Mr. Stanton should 
 answer the information in the nature of a quo warranto, which I 
 intend the Attorney- General shall file at an early day, by saying 
 that he holds the office of Secretary of War by the appointment 
 and authority of Mr. Lincoln, which has never been revoked. 
 Anxious that there shall be no collision or disagreement between 
 the several departments of the Government and the Executive, 
 I lay before the Senate this message, that the reasons for my 
 action, as well as the action itself, for the purpose indicated, may 
 meet your concurrence." 
 
 Thus far are marks of quotation showing the communi- 
 cation which the President should have obtained from the 
 honorable Manager and sent to the Senate in order to 
 make this matter exactly right. Then follows this: 
 
DEFENSE OF PRESIDENT JOHNSON 229 
 
 Had the Senate received such a message, the Representatives 
 of the people might never have deemed it necessary to impeach 
 the President for such an act to insure the safety of the country, 
 even if they had denied the accuracy of his legal positions. 
 
 So that it seems that it is, after all, not the removal of 
 Mr. Stanton but the manner in which the President com- 
 municated the fact of that removal to the Senate after it 
 was made. That manner is called here the "defiant mes- 
 sage'* of the 21st of February. That is a question of taste. 
 I have read the message as you all have read it. If you can 
 find anything in it but what is decorous and respectful to 
 this body and to all concerned, your taste will differ from 
 mine. But whether it be a point of manners well or ill taken, 
 one thing seems to be quite clear: that the President is not 
 impeached here because he entertained an opinion that this 
 law was unconstitutional; he is not impeached here because 
 he acted on that opinion and removed Mr. Stanton; but he 
 is impeached here because the House of Representatives 
 considers that this honorable body was addressed by a 
 "defiant message," when they should have been addressed 
 in the terms which the honorable Manager has dictated. 
 
 I now come, Mr. Chief Justice and Senators, to another 
 topic connected with this matter of the removal of Mr. 
 Stanton and the action of the President under this law. 
 The honorable Managers take the ground, among others, 
 that whether upon a true construction of this Tenure-of- 
 Office Act Mr. Stanton be within it, or even if you should 
 believe that the President thought the law unconstitutional 
 and had a right, if not trammeled in some way, to try that 
 question, still by his own conduct and declarations the 
 President, as they phrase it, is estopped. He is not to be 
 permitted here to assert the true interpretation of this law; 
 he is not to be permitted to allege that his purpose was to 
 raise a question concerning its constitutionality; and the 
 reason is that he has done and said certain things. All of 
 
230 THE BRIEF 
 
 us who have read law books know that there is in the com- 
 mon law a doctrine called rules of estoppel, founded, un- 
 doubtedly, on good reason, although, as they are called 
 from the time of Lord Coke, or even earlier, down to the 
 present day, odious, because they shut out the truth. 
 Nevertheless there are circumstances when it is proper that 
 the truth should be shut out. What are the circumstances? 
 They are where a question of private right is involved, 
 where on a matter of fact that private right depends, and 
 where one of the parties to the controversy has so con- 
 ducted himself that he ought not in good conscience to be 
 allowed either to assert or deny that matter of fact. 
 
 But did any one ever hear of an estoppel on a matter of 
 law.f* Did any one ever hear that a party had put himself 
 into such a condition that when he came into a court of 
 justice even to claim a private right, he could not ask the 
 judge correctly to construe a statute, and insist on the con- 
 struction when it was arrived at in his favor? Did any- 
 body ever hear, last of all, that a man was convicted of 
 crime by reason of an estoppel under any system of law 
 that ever prevailed in any civilized State? That the Presi- 
 dent of the United States should be impeached and re- 
 moved from office, not by reason of the truth of his case, 
 but because he is estopped from telling it, would be a 
 spectacle for gods and men. Undoubtedly it would have a 
 place in history, which it is not necessary for me to attempt 
 to foreshadow. 
 
 There is no matter of fact here. They have themselves 
 put in Mr. Stanton's commission, which shows the date of 
 the commission and the terms of the commission; and that 
 is the whole matter of fact which is involved. The rest is 
 the construction of the tenure of the Tenure-of -Office Act 
 and the application of it to the case, which they have thus 
 made themselves; and also the construction of the Con- 
 stitution of the United States, and the abstract public 
 
DEFENSE OF PRESIDENT JOHNSON 231 
 
 question whether that has lodged the power of removal 
 with the President alone, or with the President and Sen- 
 ate, or left it to Congress. I respectfully submit, there- 
 fore, that the ground is untenable that there can be an 
 estoppel by any conduct of the President, who comes here 
 to assert not a private right, but a great public right con- 
 fided to the office by the people, in which, if anybody is 
 estopped, the people will be estopped. The President never 
 could do or say anything which would put this great public 
 right into that extraordinary predicament. 
 
 But what has he done? What are the facts upon which 
 they rely, out of which to work this estoppel, as they call 
 it.f* In the first place, he sent a message to the Senate on the 
 12th of December, 1867, in which he informed the Senate 
 that he had suspended Mr. Stanton by a certain order, a 
 copy of which he gave; that he had appointed General 
 Grant to exercise the duties of the office ad interim by a 
 certain other order, a copy of which he gave; and then he 
 entered into a discussion in which he showed the existence 
 of this question, whether Mr. Stanton was within the 
 Tenure-of -Office Bill; the existence of the other question, 
 whether this was or was not a constitutional law; and then 
 he invoked the action of the Senate. There was nothing 
 misrepresented. There was nothing concealed which he 
 was bound to state. It is complained of by the honorable 
 Managers that he did not tell the Senate that, if their action 
 should be such as to restore Mr. Stanton practically to the 
 possession of the office, he should go to law about it. That 
 is the complaint: that he did not tell that to the Senate. 
 It may have been a possible omission, though I rather 
 think not. I rather think that that good taste which is so 
 prevalent among the Managers, and which they so insist 
 upon here, would hardly dictate that the President should 
 have held out to the Senate something which might possi- 
 bly have been construed into a threat upon that subject. 
 
232 THE BRIEF 
 
 He laid the case before the Senate for their action; and 
 now, forsooth, they say he was too deferential to this law, 
 both by reason of this conduct of his, and also what he did 
 upon other occasions, to which I shall presently advert. 
 
 Senators, there is no inconsistency in the President's 
 position or conduct in reference to this matter. Suppose 
 this case : a party who has a private right in question sub- 
 mits to the same tribunal in the same proceeding these 
 questions: jfirst, I deny the constitutionality of the law 
 under which the right is claimed against me; second, I 
 assert that the true interpretation of that law will not 
 affect this right which is claimed against me; third, I insist 
 that, even if it is within the law, I make a case within the 
 law — is there any inconsistency in that? Is not that done 
 every day, or something analogous to it, in courts of jus- 
 tice? And where was the inconsistency on this occasion? 
 Suppose the President had summed up the message which 
 he sent to the Senate in this way: "Gentlemen of the Sen- 
 ate, I insist, in the first place, that this law is unconsti- 
 tutional; I insist, in the second place, that Mr. Stanton 
 is not within it; I respectfully submit for your considera- 
 tion whether, if it be a constitutional law and Mr. Stan- 
 ton's case be within it, the facts which I present to you 
 do not make such a case that you will not advise me to 
 receive him back into office." Suppose he had summed up 
 in that way, would there have been any inconsistency then? 
 And why is not the substance of that found in this mes- 
 sage? Here it is pointed out that the question existed 
 whether the law was unconstitutional; here it is pointed 
 out that the question existed whether Mr. Stanton was 
 within the law; and then the President goes on to submit 
 for the consideration of the Senate, who he had reason to 
 believe, and did believe, thought the law was constitutional, 
 though he had no reason to believe that they thought Mr. 
 Stanton was within the law, the facts to be acted upon 
 
DEFENSE OF PRESIDENT JOHNSON 233 
 
 within the law, if the case was there. It seems the Presi- 
 dent has not only been thus anxious to avoid a collision 
 with this law; he has not only on this occasion taken this 
 means to avoid it, but it seems that he ha^ actually in some 
 particulars obeyed the law; he has made changes in the 
 commissions, or rather they have been made in the depart- 
 ments, and, as he has signed the commissions, I suppose 
 they must be taken, although his attention does not appear 
 to have been called to the subject at all, to have been made 
 with his sanction, just so far, and because he sanctions that 
 which is done by his Secretaries, if he does not interfere 
 actively to prevent it. 
 
 He has done not merely this, but he has also in several 
 cases — four cases : three collectors, and one consul, I think 
 they are — sent into the Senate notice of suspension, notice 
 that he had acted under this law and suspended these 
 officers. This objection proceeds upon an entire mis- 
 apprehension of the position of the President and of the 
 views which he has of his own duty. It assumes that be- 
 cause, when the emergency comes, as it did come in the 
 case of Mr. Stanton, when he must act or else abandon a 
 power which he finds in the particular instance it is neces- 
 sary for him to insist upon in order to carry on the Govern- 
 ment; that because he holds that opinion he must run 
 amuck against the law, and take every possible opportu- 
 nity to give it a blow, if he can. He holds no such opinion. 
 
 So long as it is a question of administrative duty merely, 
 he holds that he is bound to obey the law. It is only when 
 the emergency arises, when the question is put to him so 
 that he must answer it, "Can you carry on this depart- 
 ment of the Government any longer in this way.^*" "No." 
 "Have you power to carry it on as the public service de- 
 mands?'* "I believe I have." Then comes the question 
 how he shall act. But whether a consul is to be suspended 
 or removed, whether a defaulting collector is to be sus- 
 
234 THE BRIEF 
 
 pended or removed, does not involve the execution of the 
 great powers of the Government. It may be carried on; he 
 may be of opinion with less advantage; he may be of opinion 
 not in accordance with the requirements of the Constitu- 
 tion, but it may be carried* on without serious embarrass- 
 ment or diflSculty. Until that question is settled he does not 
 find it necessary to make it — settled in some way, by some 
 person who has an interest to raise and have it settled. 
 
 I wish to observe, also (the correctness of which observa- 
 tion I think the Senate will agree with), that these changes 
 which have been made in the forms of the commissions 
 really have nothing to do with this subject; for instance, 
 the change is made in the Department of State, ** subject 
 to the conditions prescribed by law." That is the tenure on 
 which I think all commissions should originally have run, 
 and ought to continue to run. It is general enough to em- 
 brace all. If it is a condition prescribed by law that the 
 Senate must consent to the removal of the incumbent be- 
 fore he is rightfully out of office, it covers that case. If the 
 Tenure-of -Office Bill be not a law of the land because it is 
 not in accordance with the Constitution, it covers that 
 case. It covers every case necessarily from its terms, for 
 every officer does, and should, and must hold subject to the 
 conditions prescribed by law — not necessarily a law of 
 Congress, but a law of the land — the Constitution being 
 supreme in that particular. 
 
 There is another observation, also, and that is, that the 
 change that was made in the Department of the Treasury 
 — "until a successor be appointed and qualified" — has 
 manifestly nothing whatever to do with the subject of re- 
 moval. Whether the power of removal be vested in the 
 President alone, or vested in the President by and with the 
 advice and consent of the Senate, this clause does not touch 
 it. It is just as inconsistent with removal by the President 
 with the consent of the Senate as it is inconsistent with the 
 
DEFENSE OF PRESIDENT JOHNSON 235 
 
 removal by the President alone. In other words, it is the 
 general tenure of the office which is described, according 
 to which the officer is to continue to hold; but he and all 
 other officers hold subject to some power of removal vested 
 somewhere, and this change which has been made in the 
 commission does not declare where it is vested, nor has it 
 any influence on the question in whom it is vested. 
 
 I wish to add to this, that there is nothing, so far as I see, 
 on this subject of estoppel, growing out of the action of the 
 President, either in sending the message to the Senate of 
 the 12th of December, or in the changes in the commissions, 
 or in his sending to the Senate notices of suspensions of 
 different officers, which has any bearing whatever upon the 
 Tenure-of-Office Act as affecting the case of Mr. Stanton. 
 That is a case that stands by itself. The law may be a con- 
 stitutional law; it may not only be a law under which the 
 President has acted in this instance, but under which he 
 is bound to act, and is wilhng to act, if you please, in every 
 instance; still, if Mr. Stanton is not within that law, the 
 case remains as it was originally presented, and that case is, 
 that, not being within that law, the first article is entirely 
 without foundation. . . . 
 
 Mr. Chief Justice and Senators, among the points which 
 I accidentally omitted to notice yesterday, was one to which 
 it seems to me of sufficient importance to return, and for a 
 few moments to ask the attention of the Senate to it. It 
 will best be exhibited by reading from Saturday's proceed- 
 ings a short passage. In the course of those proceedings 
 Mr. Manager Butler said: 
 
 It will be seen, therefore, Mr. President and Senators, that the 
 President of the United States says in his answer that he sus- 
 pended Mr. Stanton under the Constitution, indefinitely and at 
 his pleasure. I propose, now, unless it be objected to, to show 
 that that is false under his own hand, and I have his letter to 
 that effect, which, if there is no objection, I will read, the sig- 
 nature of which was identified by C. E. Creecy. 
 
236 THE BRIEF 
 
 Then followed the reading of the letter, which was this : 
 
 Executive Mansion, 
 Washington, D.C, August 14, 1867. 
 
 Sir: In compliance with the requirements of the eighth section 
 of the act of Congress of March 2, 1867, entitled "An act regu- 
 lating the tenure of certain civil offices," you are hereby notified 
 that on the 12th instant Hon. Edwin M. Stanton was suspended 
 from office as Secretary of War and General Ulysses S. Grant 
 authorized and empowered to act as Secretary of War ad interim, 
 I am, sir, very respectfully, yours, 
 
 Andrew Johnson. 
 
 This is the letter which was to show, under the hand of 
 the President, that when he said in his answer he did not 
 suspend Mr. Stanton by virtue of the Tenure-of -Office Act 
 that statement was a falsehood. Allow me now to read the 
 eighth section of that act: 
 
 That whenever the President shall, without the advice and 
 consent of the Senate, designate, authorize, or employ any person 
 to perform the duties of any office he shall forthwith notify the 
 Secretary of the Treasury thereof; and it shall be the duty of the 
 Secretary of the Treasury thereupon to communicate such notice 
 to all the proper accounting and disbursing officers of his Depart- 
 ment. 
 
 The Senate will perceive that this section has nothing to 
 do with the suspension of an officer and no description of 
 what suspensions are to take place; but the purpose of the 
 section is that if in any case the President, without the 
 advice and consent of the Senate, shall, under any circum- 
 stances, designate a third person to perform temporarily 
 the duties of an office, he is to make a report of that designa- 
 tion to the Secretary of the Treasury, and that officer is to 
 give the necessary information of the event to his subor- 
 dinate officers. The section applies in terms to and in- 
 cludes all cases. It applies to and includes cases of designa- 
 tion on account of sickness or absence or resignation or any 
 
DEFENSE OF PRESIDENT JOHNSON 237 
 
 cause of vacancy, whether temporary or permanent, and 
 whether occurring by reason of a suspension or of a removal 
 from office. And therefore, when the President says to the 
 Secretary of the Treasury, "I give you notice that I have 
 designated General Thomas to perform the duties ad in- 
 terim of Secretary of War," he makes no allusion, by force 
 of that letter, to the manner in which that vacancy has 
 occurred or the authority by which it has been created; and 
 hence, instead of this letter showing, under the President's 
 own hand, that he had stated a falsehood, it has no refer- 
 ence to the subject-matter of the power or the occasion of 
 Mr. Stanton's removal. 
 
 Mr. Manager Butler. Read the second section, please; 
 the first clause of it. 
 
 Mr. Curtis. What did the Manager call for? 
 
 Mr. Manager Butler. Read the first clause of the sec- 
 ond section of the act, which says that in no other case 
 except when he suspends shall he appoint. 
 
 Mr. Curtis. The second section provides: 
 
 That when any officer appointed as aforesaid, excepting judges 
 of the United States courts, shall, during a recess of the Senate, be 
 shown by satisfactory evidence, etc. 
 
 The President is allowed to suspend such an officer. Now, 
 the President states in his answer that he did not act under 
 that section. 
 
 Mr. Manager Butler. That is not reading the section. 
 That is not what I desired. 
 
 Mr. Curtis. I am aware that is not reading the section, 
 Mr. Manager. You need not point that out. It is a very 
 long section, and I do not propose to read it. 
 
 Mr. Manager Butler. The first half a dozen lines. 
 
 Mr. Curtis. This section authorizes the President to 
 suspend in cases of crime and other cases which are de- 
 scribed in this section. By force of it the President may 
 
238 THE BRIEF 
 
 suspend an officer. This eighth section applies to all cases 
 of temporary designations and appointments, whether re- 
 sulting from suspensions under the second section, whether 
 arising from temporary absence or sickness or death or 
 resignation; no matter what the cause may be, if for any 
 reason there is a temporary designation of a person to 
 supply an office ad interim, notice is to be given to the 
 Secretary of the Treasury; and therefore I repeat, Sena- 
 tors, that the subject-matter of this eighth section and the 
 letter which the President wrote in consequence of it have 
 no reference to the question under what authority he sus- 
 pended Mr. Stanton. 
 
 I now ask the attention of the Senate to the second 
 article in the series; and I will begin as I began before, by 
 stating what the substance of this article is, what allega- 
 tions it makes, so as to be the subjects of proof, and then 
 the Senate will be prepared to see how far each one of these 
 allegations is supported by what is already in the case, and I 
 shall be enabled to state what we propose to offer by way of 
 proof in respect to each of them. The substantive allega- 
 tions of this second article are that the delivery of the letter 
 of authority to General Thomas was without authority of 
 law; that it was an intentional violation of the Tenure-of- 
 Office Act; that it was an intentional violation of the Con- 
 stitution of the United States; that the delivery of this order 
 to General Thomas was made with intent to violate both 
 that act and the Constitution of the United States. That 
 is the substance of the second article. The Senate will at 
 once perceive that if the suspension of Mr. Stanton was not 
 a violation of the Tenure-of -Office Act in point of fact, or, 
 to state it in other terms, if the case of Mr. Stanton is not 
 within the act, then his removal, if he had been removed, 
 could not be a violation of the act. 
 
 If his case is not within the act at all, if the act does not 
 apply to the case of Mr. Stanton, of course his removal is 
 
DEFENSE OF PRESIDENT JOHNSON 239 
 
 not a violation of that act. If Mr. Stanton continued to 
 hold under the commission which he received from Presi- 
 dent Lincoln, and his tenure continued to be under the act 
 of 1789, and under his only commission, which was at the 
 pleasure of the President, it was no violation of the Tenure- 
 of -Office Act for Mr. Johnson to remove, or attempt to re- 
 move, Mr. Stanton; and therefore the Senate will perceive 
 that it is necessary to come back again, to recur under this 
 article, as it will be necessary to recur under the whole of 
 the first eight articles, to the inquiries, first, whether Mr. 
 Stanton's case was within the Tenure-of -Office Act; and 
 secondly, whether it was so clearly and plainly within that 
 act that it can be attributed to the President as a high mis- 
 demeanor that he construed it not to include his case. But 
 suppose the case of Mr. Stanton is within the Tenure-of- 
 Office Act, still the inquiry arises, whether what was done 
 in delivering this letter of authority to General Thomas was 
 a violation of that act; and that renders it necessary that 
 I should ask your careful attention to the general subject- 
 matter of this act and the particular provisions which are 
 inserted in it in reference to each of those subjects. 
 
 Senators will recollect undoubtedly that this law, as it 
 was finally passed, differs from the bill as it was originally 
 introduced. The law relates to two distinct subjects. One 
 is removal from office, the other subject is appointments of 
 a certain character made under certain circumstances to 
 fill offices. It seems that a practice had grown up under the 
 Government that where a person was nominated to the 
 Senate to fill an office, and the Senate either did not act on 
 his nomination during their session or rejected the nomina- 
 tion, after the adjournment of the Senate and in the recess 
 it was considered competent for the President by a tem- 
 porary commission to appoint that same person to that 
 same office; and that was deemed by many Senators, un- 
 questionably by a majority, and I should judge from read- 
 
240 THE BRIEF 
 
 ing the debates by a large majority of the Senate, to be an 
 abuse of power — not an intentional abuse. But it was a 
 practice which had prevailed under the Government to a 
 very considerable extent. It was not limited to very recent 
 times. It had been supported by the opinions of different 
 Attorneys-General given to different Presidents. But still 
 it was considered by many Senators to be a departure from 
 the spirit of the Constitution, and a substantial derogation 
 from the just power of the Senate in resi>ect to nominations 
 for office. That being so, it will be found on an examination 
 of this law that the first and second sections of the act 
 relate exclusively to removals from office and temporary 
 suspensions in the recess of the Senate; while the third 
 section and several of the following sections, to which I 
 shall ask your particular attention, relate exclusively to 
 this other subject of appointments made to office after 
 the Senate had refused to concur in the nomination of 
 the person appointed. Allow me now to read from the 
 third section: 
 
 That the President shall have power to fill all vacancies which 
 may happen during the recess of the Senate, by reason of death 
 or resignation — 
 
 I pause here to remark that this does not include all 
 cases. It does not include any case of the expiration of a 
 commission. It includes simply death and resignation, not 
 cases of the expiration of a commission during the recess of 
 the Senate. Why these were thus omitted I do not know; 
 but it is manifest that the law does not affect to, and in 
 point of fact does not, cover all cases which might arise 
 belonging to this general class to which this section was 
 designed to refer. 
 
 The law goes on to say — 
 
 That the President shall have power to fill all vacancies which 
 may happen during the recess of the Senate, by reason of death 
 or resignation, by granting commissions which shall expire at the 
 
DEFENSE OF PRESIDENT JOHNSON 241 
 
 end of their next session thereafter. And if no appointment, by 
 and with the advice and consent of the Senate, shall be made to 
 such office so vacant or temporarily filled as aforesaid during such 
 next session of the Senate, such office shall remain in abeyance, 
 without any salary, fees, or emoluments attached thereto, until 
 the same shall be filled by appointment thereto, by and with the 
 advice and consent of the Senate; and during such time all the 
 powers and duties belonging to such office shall be exercised by 
 such other officer as may by law exercise such powers and duties 
 in case of a vacancy in such office. 
 
 Here all the described vacancies in oflSce occurring during 
 the recess of the Senate and the failure to fill those vacan- 
 cies in accordance with the advice of the Senate are treated 
 as occasioning an abeyance of such oflfices. That applies, as 
 I have said, to two classes of cases, vacancies happening 
 by reason of death or resignation. It does not apply to any 
 other vacancies. 
 
 The next section of this law does not relate to this subject 
 of filling oflSces, but to the subject of removals: 
 
 That nothing in this act contained shall be construed to extend 
 the term of any office the duration of which is limited by law. 
 
 The fifth section is : 
 
 That if any person shall, contrary to the provisions of this act, 
 accept any appointment to or employment in any office, or shall 
 hold or exercise, or attempt to hold or exercise, any such office 
 or employment, he shall be deemed, and is hereby declared to be, 
 guilty of a high misdemeanor, and, upon trial and conviction 
 thereof, he shall be punished therefor by a fine not exceeding 
 ten thousand dollars, or by imprisonment, etc. 
 
 Any person who shall, "contrary to the provisions of this 
 act," accept any appointment. What are the "provisions 
 of this act" in respect to accepting any appointment? 
 They are found in the third section of the act putting cer- 
 tain oflfices in abeyance under the circumstances which are 
 described in that section. If any person does accept an 
 oflfice which is thus put into abeyance, or any employment 
 
242 THE BRIEF 
 
 or authority in respect to such office, he comes within the 
 penal provisions of the fifth section; but outside of that 
 there is no such thing as accepting an office contrary to the 
 provisions of the act, because the provisions of the act, in 
 respect to fiUing offices, extend no further than to these 
 cases; and so, in the next section, it is declared: 
 
 That every removal, appointment, or employment made, had, 
 or exercised contrary to the provisions of this act, and the mak- 
 ing, signing, sealing, countersigning, or issuing of any commission 
 or letter of authority for or in respect to any such appointment or 
 employment, shall be deemed, and are hereby declared to be, 
 high misdemeanors, etc. 
 
 Here, again, the making of a letter of authority, con- 
 trary to the provisions of the act, can refer only to those 
 cases which the act itself has described, which the act itseK 
 has prohibited; and any other cases which are outside of 
 such prohibition, as this case manifestly is, do not come 
 within its provisions. 
 
 The stress of this article, however, does not seem to me 
 to depend at all upon this question of the construction of 
 this law, but upon a totally different matter, which I agree 
 should be fairly and carefully considered. The important 
 allegation of the article is that this letter of authority was 
 given to General Thomas enabling him to perform the 
 duties of Secretary of War ad interim without authority 
 of law; that I conceive to be the main inquiry which arises 
 under this article, provided the case of Mr. Stanton and 
 his removal are within the Tenure-of-Office Bill at all. 
 
 I wish first to bring to the attention of the Senate the Act 
 of 1795, which is found in 1 Statutes-at-Large, page 415. 
 It is a short act, and I will read the whole of it: 
 
 That in case of vacancy in the office of Secretary of State, 
 Secretary of the Treasury, or of the Secretary of the Department 
 of War, or of any officer of either of the said Departments, whose 
 appointment is not in the head thereof, whereby they cannot per- 
 
DEFENSE OF PRESIDENT JOHNSON 243 
 
 form the duties of their said respective offices, it shall be lawful 
 for the President of the United States, in case he shall think it 
 necessary, to authorize any person or persons, at his discretion, 
 to perform the duties of the said respective offices until a suc- 
 cessor be appointed or such vacancy be filled: Provided, That no 
 one vacancy shall be supplied, in manner aforesaid, for a longer 
 term than six months. 
 
 This act, it has been suggested, may have been repealed 
 by the Act of February 20, 1863, which is found in 12 
 Statutes-at-Large, page Q5Q. This also is a short act, and 
 I will trespass on the patience of the Senate by reading it: 
 
 That in case of the death, resignation, absence from the seat of 
 Government, or sickness of the head of any executive Depart- 
 ment of the Government, or of any officer of either of the said 
 Departments whose appointment is not in the head thereof, 
 whereby they cannot perform the duties of their respective 
 offices, it shall be lawful for the President of the United States, in 
 case he shall think it necessary, to authorize the head of any other 
 executive Department, or other officer in either of said Depart- 
 ments whose appointment is vested in the President, at his dis- 
 cretion, to perform the duties of the said respective offices until a 
 successor be appointed, or until such absence or inability by sick- 
 ness shall cease: Provided, That no one vacancy shall be supplied 
 in manner aforesaid for a longer term than six months. 
 
 These acts, as the Senate will perceive, although they 
 may be said in some sense to relate to the same general 
 subject-matter, contain very different provisions, and the 
 later law contains no express repeal of the other. If, there- 
 fore, the later law operates as a repeal, it is only as a repeal 
 by implication. It says in terms that "all acts and parts 
 of acts inconsistent with this act are hereby repealed.'* 
 That a general principle of law would say if the statute did 
 not speak those words. The addition of those words adds 
 nothing to its repealing power. The same inquiry arises 
 under them that would arise if they did not exist, namely, 
 how far is this later law inconsistent with the provisions of 
 the earlier law? 
 
244 THE BRIEF 
 
 There are certain rules which I shall not fatigue the Sen- 
 ate by citing cases to prove, because every lawyer will rec- 
 ognize them as settled rules upon this subject. 
 
 In the first place there is a rule that repeals by implica- 
 tion are not favored by the courts. This is, as I understand 
 it, because the courts act on the assumption or the princi- 
 ple that if the Legislature really intended to repeal the law 
 they would have said so; not that they necessarily must 
 say so, because there are repeals by implication; but the 
 presumption is that if the Legislature entertained a clear 
 and fixed purpose to repeal a former law they would be 
 likely at least to have said so; and, therefore, the rule is a 
 settled one that repeals by implication are not favored by 
 the courts. Another rule is that the repugnancy between 
 the two statutes must be clear. It is not enough that under 
 some circumstances one may possibly be repugnant to the 
 other. The repugnancy, as the language of the books is, 
 between the two must be clear, and if the two laws can 
 stand together the latter does not impliedly repeal the 
 former. If Senators have any desire to recur to the author- 
 ities on this subject, they will find a sufficient number of 
 them collected in Sedgwick on Statute Law, page IW. 
 
 Now, there is no repugnancy whatsoever between these 
 two laws that I can perceive. The Act of 1795 applies to all 
 vacancies, however created. The Act of 1863 applies only 
 to vacancies, temporary or otherwise, occasioned by death 
 and resignation; removals from office, expiration of com- 
 missions, are not included. The Act of 1795 applies only to 
 vacancies; the Act of 1863 to temporary absences or sick- 
 ness. The subject-matter, therefore, of the law is different; 
 there is no inconsistency between them; each may stand 
 together and operate upon the cases to which each applies; 
 and therefore I submit that, in the strictest view which 
 may ultimately be taken of this subject, it is not prac- 
 ticable to maintain that the later law here repealed alto- 
 
DEFENSE OF PRESIDENT JOHNSON 245 
 
 gether the Act of 1795. But, whether it did or not, I state 
 again what I have had so often occasion to repeat before, 
 is it not a fair question, is it a crime to be on one side of that 
 question and not on the other? Is it a high misdemeanor to 
 beheve that a certain view taken of the repeal of this earher 
 law by the later one is a sound view? I submit that that 
 would be altogether too stringent a rule even for the honor- 
 able Managers themselves to contend for; and they do not, 
 and the House of Representatives does not, contend for 
 any such rule. Their article alleges as matter of fact that 
 there was a willful intention on the part of the President to 
 issue this letter to General Thomas without authority of 
 law; not on mistaken judgment, not upon an opinion which, 
 after due consideration, lawyers might differ about; but by 
 reason of a willful intention to act without authority; and 
 that, I submit, from the nature of the case, cannot be 
 made out. 
 
 The next allegation in this article to which I desire to 
 invite the attention of the Senate is, that the giving of this 
 letter to General Thomas during the session of the Senate 
 was a violation of the Constitution of the United States. 
 That will require your attentive consideration. The Consti- 
 tution, as you are well aware, has provided for two modes 
 of filling oflfices. The one is by temporary commissions 
 during the recess of the Senate, when the vacancy happens 
 in the recess; the other is by appointment with the advice 
 and consent of the Senate, followed by a commission from 
 the President; but it very early became apparent to those 
 who administered the Government that cases must occur 
 to which neither of those modes dictated by the Constitu- 
 tion would be applicable, but which must be provided for; 
 cases of temporary absence of the head of a Department the 
 business of which, especially during the session of Congress, 
 must, for the public interest, continue to be administered; 
 cases of sickness, cases of resignation or removal, — for the 
 
246 THE BRIEF 
 
 power of removal, at any rate in that day, was held to be 
 in the President; cases of resignation or removal in refer- 
 ence to which the President was not, owing to the sudden- 
 ness of the occurrence, in a condition immediately to make 
 a nomination to fill the office, or even to issue a commission 
 to fill the office, if such vacancy occurred in vacation; and 
 therefore it became necessary by legislation to supply 
 these administrative defects which existed and were not 
 provided for by the Constitution. And accordingly, begin- 
 ning in 1792, there will be found to be a series of acts on this 
 subject of filling vacancies by temporary or ad interim au- 
 thority; not appointments, not filling vacancies in offices 
 by a commission in the recess of the Senate, nor by a 
 commission signed by the President in consequence of the 
 advice and consent of the Senate; but a mode of designat- 
 ing a particular person to perform temporarily the duties 
 of some particular office which otherwise, before the office 
 can be filled in accordance with the Constitution, would 
 remain unperformed. These acts are one of May 8, 1792, 
 section 8 (1 Statutes-at-Large, p. 281) ; February 17, 1795 
 (1 Statutes-at-Large, p. 415); and the last in February 20, 
 1863 (12 Statutes-at-Large, p. 656). 
 
 The Senate will observe what particular difficulty these 
 laws were designed to meet. This difficulty was the occur- 
 rence of some sudden vacancy in office or some sudden in- 
 ability to perform the duties of an office; and the intention 
 of each of these laws was, each being applied to some par- 
 ticular class of cases, to make provision that, notwithstand- 
 ing there was a vacancy in the office, or notwithstanding 
 there was a temporary disability in the officer without a 
 vacancy, still the duties of the office should be temporarily 
 discharged. That was the purpose of these laws. It is 
 entirely evident that these temporary vacancies are just as 
 liable to occur during the session of the Senate as during 
 the recess of the Senate; that it is just as necessary to have 
 
DEFENSE OF PRESIDENT JOHNSON 247 
 
 a set of legislative provisions to enable the President to 
 carry on the public service in case of these vacancies and 
 inabilities during the session of the Senate as during the 
 recess of Senate; and, accordingly, it will be found, by look- 
 ing into these laws, that they make no distinction between 
 the sessions of the Senate and the recesses of the Senate in 
 reference to these temporary authorities. "Whenever a 
 vacancy shall occur" is the language of the law — "when- 
 ever there shall be a death or a resignation or an absence or 
 a sickness." The law applies when the event occurs that 
 the law contemplates as an emergency; and the particular 
 time when it occurs is of no consequence in itself, and is 
 deemed by the law of no consequence. In accordance with 
 this view. Senators, has been the uniform and settled and 
 frequent practice of the Government from its very earliest 
 date, as I am instructed we shall prove, not in any one or 
 two or few instances, but in great numbers of instances. 
 That has been the practical construction put upon these 
 laws from the time when the earliest law was passed in 
 1792, and it has continued down to this day. 
 
 The honorable Managers themselves read a list a few 
 days since of temporary appointments during the session 
 of the Senate of heads of Departments, which amounted in 
 number, if I counted them accurately, to upward of thirty; 
 and if you add to these the cases of officers below the heads 
 of Departments the number will be found, of course, to be 
 much increased; and, in the course of exhibiting this evi- 
 dence, it will be found that, although the instances are not 
 numerous, for they are not very likely to occur in practice, 
 yet instances have occurred on all fours with the one which 
 is now before the Senate, where there has been a removal or 
 a suspension of an officer, sometimes one and sometimes the 
 other, and the designation of a person has been made at the 
 same time temporarily to discharge the duties of that office. 
 
 The Senate will see that in practice such things must 
 
248 THE BRIEF 
 
 naturally occur. Take the case, for instance, of Mr. Floyd, 
 which I alluded to yesterday. Mr. Floyd went out of office. 
 His chief clerk was a person believed to be in sympathy 
 with him and under his control. If the third section of the 
 Act of 1789 was allowed to operate the control of the office 
 went into the hands of that clerk. The Senate was in ses- 
 sion. The public safety did not permit the War Depart- 
 ment to be left in that predicament for one hour, if it 
 could be avoided, and President Buchanan sent down to 
 the Post-Office Department and brought the Postmaster- 
 General to the War Department, and put it in his charge. 
 There was then in this body a sufficient number of persons 
 to look after that matter; they felt an interest in it; and 
 consequently they passed a resolve inquiring of President 
 Buchanan by what authority he had made an appointment 
 of a person to take charge of the War Department without 
 their consent, without a nomination to them, and their 
 advising and consent to it; to which a message was sent in 
 answer containing the facts on this subject, and showing 
 to the Senate of that day the propriety, the necessity, and 
 the long-continued practice under which this authority was 
 exercised by him; and giving a schedule running through 
 the time of General Jackson and his two immediate succes- 
 sors, I think, showing great numbers of ad interim appoint- 
 ments of this character, and to those, as I have said, we 
 shall add a very considerable number of others. 
 
 I submit, then, that there can be no ground whatever 
 for the allegation that this ad interim appointment was a 
 violation of the Constitution of the United States. The 
 legislation of Congress is a sufficient answer to that charge. 
 
 I pass, therefore, to the next article which I wish to con- 
 sider, and that is not the next in number, but the eighth; 
 and I take it in this order because the eighth article, as I 
 have analyzed it, differs from the second only in one par- 
 ticular; and therefore, taking that in connection with the 
 
DEFENSE OF PRESIDENT JOHNSON 249 
 
 second, of which I have just been speaking, it will be neces- 
 sary for me to say but a very few words concerning it. 
 
 It charges an attempt unlawfully to control the appro- 
 priations made by Congress for the military service, and 
 that is all there is in it except what is in the second article. 
 
 Upon that, certainly, at this stage of the case, I do not 
 deem it necessary to make any observations. The Senate 
 will remember the offer of proof on the part of the Man- 
 agers, designed, as was stated, to connect the President of 
 the United States, through his Private Secretary, with the 
 Treasury, and thus enable him to use unlawfully appropri- 
 ations made for the military service. The Senate will recol- 
 lect the fate of that offer, and that the evidence was not 
 received; and therefore it seems to me quite unnecessary 
 to pause to comment any further upon this eighth article. 
 
 I advance to the third article, and here the allegations 
 are, that the President appointed General Thomas; second, 
 that he did this without the advice and consent of the Sen- 
 ate; third, that he did it when no vacancy had happened 
 in the recess of the Senate; fourth, that he did it when 
 there was no vacancy at the time of the appointment; and 
 fifth, that he committed a high misdemeanor by thus in- 
 tentionally violating the Constitution of the United States. 
 
 I desire to say a word or two upon each of these points; 
 and first we deny that he ever appointed General Thomas 
 to an office. An appointment can be made to an office only 
 by the advice and consent of the Senate, and through a 
 commission signed by the President, and bearing the great 
 seal of the Government. That is the only mode in which the 
 appointment can be made. The President, as I have said, 
 may temporarily commission officers when vacancies occur 
 during the recess of the Senate. That is not an appoint- 
 ment. It is not so termed in the Constitution. A clear 
 distinction is drawn between the two. The President also 
 may, under the Acts of 1795 and 1863, designate persons 
 
250 THE BRIEF 
 
 who shall temporarily exercise the authority and perform 
 the duties of a certain office when there is a vacancy; but 
 that is not an appointment. The office is not filled by such 
 a designation. Now, all which the President did was to 
 issue a letter of authority to General Thomas, authorizing 
 him ad interim to perform the duties of Secretary of War. 
 In no sense was this an appointment. 
 
 It is said it was made without the advice and consent of 
 the Senate. Certainly it was. How can the advice and 
 consent of the Senate be obtained to an ad interim author- 
 ity of this kind under any of these acts of Congress.? It is 
 not an appointment that is in view. It is to supply tem- 
 porarily a defect in the administrative machinery of the 
 Government. If he had gone to the Senate for their advice 
 and consent, he must have gone on a nomination made by 
 him of General Thomas to this office, a thing he never 
 intended to do, and never made any attempt to carry into 
 effect. 
 
 It is said no vacancy happened in the recess. That I have 
 already considered. Temporary appointments are not 
 limited to the temporary supply of vacancies happening in 
 the recess of the Senate, as I have already endeavored to 
 show. 
 
 It is said there was no vacancy at the time the act was 
 done. That is begging the question. If Mr. Stanton's case 
 was not within the Tenure-of -Office Act, if, as I have so often 
 repeated, he held under the Act of 1789, and at the pleasure 
 of the President, the moment he received that order which 
 General Thomas carried to him there was a vacancy in 
 point of law, however he may have refused to perform his 
 duty and prevented a vacancy from occurring in point of 
 fact. But the Senate will perceive these two letters were to 
 be delivered to General Thomas at the same time. One 
 of them is an order to Mr. Stanton to vacate the office; the 
 other is a direction to General Thomas to take possession 
 
DEFENSE OF PRESIDENT JOHNSON 251 
 
 when Mr. Stanton obeys the order thus given. Now, may 
 not the President of the United States issue a letter of au- 
 thority in contemplation that a vacancy is about to occur? 
 Is he bound to take a technical view of this subject, and 
 have the order creating the vacancy first sent and deliv- 
 ered, and then sit down at his table and sign the letter of 
 authority afterward? If he expects a vacancy, if he has 
 done an act which in his judgment is sufficient to create a 
 vacancy, may he not, in contemplation that that vacancy 
 is to happen, sign the necessary paper to give the temporary 
 authority to carry on the duties of the office? 
 
 Last of all, it is said he committed a high misdemeanor 
 by intentionally violating the Constitution of the United 
 States when he gave General Thomas this letter of author- 
 ity. If I have been successful in the argument I have al- 
 ready addressed to you you will be of opinion that in point 
 of fact there was no violation of the Constitution of the 
 United States by delivering this letter of authority, because 
 the Constitution of the United States makes no provision 
 on the subject of these temporary authorities, and the law 
 of Congress has made provision equally applicable to the 
 recess of the Senate and to its session. 
 
 Here, also, I beg leave to remind the Senate that if Mr. 
 Stanton's case does not fall within the Tenure-of -Office Act, 
 if the order which the President gave to him to vacate the 
 office was a lawful order and one which he was bound to 
 obey, everything which is contained in this article, as well 
 as in the preceding articles, fails. It is impossible, I sub- 
 mit, for the honorable Managers to construct a case of an 
 intention on the part of the President to violate the Con- 
 stitution of the United States out of anything which he did 
 in reference to the appointment of General Thomas, pro- 
 vided the order to Mr. Stanton was a lawful order and Mr. 
 Stanton was bound to obey it. 
 
 I advance now, Senators, to a different class of articles. 
 
252 THE BRIEF 
 
 and they may properly enough, I suppose, be called the 
 conspiracy articles, because they rest upon charges of con- 
 spiracy between the President and General Thomas. There 
 are four of them, the fourth, fifth, sixth, and seventh in 
 number as they stand. The fourth and the sixth are framed 
 under the Act of July 31, 1861, which is foimd in 12 Stat- 
 utes-at-Large, page 284. The fifth and seventh are framed 
 under no act of Congress. They allege an unlawful con- 
 spiracy, but they refer to no law by which the acts charged 
 are made unlawful. The acts charged are called unlawful, 
 but there is no law referred to and no case made by the 
 articles within any law of the United States that is known 
 to the President's counsel. I shall treat these articles, 
 therefore, the fourth and sixth together, and the fifth 
 and seventh together, because I think they belong in that 
 order. In the first place, let me consider the fourth and 
 sixth, which charge a conspiracy within this act which I 
 have just mentioned. It is necessary for me to read the 
 substance of this law in order that you may see whether 
 it can have any possible application to this case. It was 
 passed on the 31st of July, 1861, as a war measure, and is 
 entitled, "An act to define and punish certain conspir- 
 acies." It provides — 
 
 That if two or more persons within any State or Territory of 
 the United States shall conspire together to overthrow or to put 
 down or to destroy by force the Government of the United States, 
 or to levy war against the United States, or to oppose by force the 
 authority of the Government of the United States; or by force to 
 prevent, hinder, or delay the execution of any law of the United 
 States; or by force to seize, take, or possess any property of the 
 United States against the will or contrary to the authority of 
 the United States; or by force, or intimidation, or threat to pre- 
 vent any person from accepting or holding any office or trust or 
 place of confidence under the United States. 
 
 These are the descriptions of the offenses. The fourth 
 and sixth articles contain allegations that the President and 
 
DEFENSE OF PRESIDENT JOHNSON 253 
 
 General Thomas conspired together by force, intimidation, 
 and threats to prevent Mr. Stanton from continuing to 
 hold the office of Secretary for the Department of War; and 
 also that they conspired together by force to obtain pos- 
 session of property belonging to the United States. These 
 are the two articles which I suppose are designed to be 
 drawn under this act; and these are the allegations which are 
 intended to bring the articles within it. 
 
 Now, it does seem to me that the attempt to wrest this 
 law to any bearing whatsoever upon this prosecution is one 
 of the extraordinary things which the case contains. In the 
 first place, so far from having been designed to apply to the 
 President of the United States or to any act he might do in 
 the course of the execution of what he believed to be his 
 duty, it does not apply to any man or any thing within the 
 District of Columbia at all. 
 
 If two or more persons within any State or Territory of the 
 United States. 
 
 Not within the District of Columbia. This is a highly 
 penal law, and an indictment found in the very words of 
 this act charging things to have been in the District of 
 Columbia and returned into the proper court of this Dis- 
 trict, I will undertake to say, would not bear a general de- 
 murrer, because there is locality given to those things made 
 penal by this act of Congress. It is made applicable to cer- 
 tain portions of the country, but not made applicable to 
 the District of Columbia. 
 
 But not to dwell upon that technical view of the matter, 
 and on which we should not choose to stand, let us see what 
 is this case. The President of the United States is of opin- 
 ion that Mr. Stanton holds the office of Secretary for the 
 Department of War at his pleasure. He thinks so, first, be- 
 cause he believes the case of Mr. Stanton is not provided 
 for in the Tenure-of -Office Act, and no tenure of office is 
 
254 THE BRIEF 
 
 secured to him. He thinks so, secondly, because he believes 
 that it would be judicially decided, if the question could be 
 raised, that a law depriving the President of the power of 
 removing such an officer at his pleasure is not a constitu- 
 tional law. He is of opinion that in this case he cannot allow 
 this officer to continue to act as his adviser and as his agent 
 to execute the laws if he has lawful power to remove him; 
 and under these circumstances he gives this order to Gen- 
 eral Thomas. 
 
 I do not view this letter of authority to General Thomas 
 as a purely military order. The service which General 
 Thomas was invoked for is a civil service; but, at the same 
 time. Senators will perceive that the person who gave the 
 order is the Commander-in-Chief of the Army; that the per- 
 son to whom it was given is the Adjutant-General of the 
 Army; that the subject-matter to which the order relates 
 is the performance of services essential to carry on the mili- 
 tary service; and, therefore, when such an order was given 
 by the Commander-in-Chief to the Adjutant-General re- 
 specting a subject of this kind, is it too much to say that 
 there was invoked that spirit of military obedience which 
 constitutes the strength of the service? Not that it was 
 a purely military order; not that General Thomas would 
 have been subject to a court-martial for disobeying it; but 
 that as a faithful Adjutant-General of the Army of the 
 United States, interested personally and professionally and 
 patriotically to have the duties of the office of Secretary 
 for the Department of War performed in a temporary va- 
 cancy, was it not his duty to accept the appointment, unless 
 he saw and knew that it was unlawful to accept it? I do 
 not know how, in fact, he personally considered it; there 
 has been no proof given on the subject; but I have always 
 assumed — I think Senators will assume — that when the 
 distinguished General of the Army of the United States, 
 on a previous occasion, accepted a similar appointment, it 
 
DEFENSE OF PRESIDENT JOHNSON 255 
 
 was under views of propriety and duty such as those which 
 I have now been speaking of; and how and why is there to 
 be attributed to General Thomas, as a co-conspirator, the 
 guilty intent of designing to overthrow the laws of his 
 country, when a fair and just view of his conduct would 
 leave him entirely without reproach? 
 
 And when you come, Senators, to the other co-conspira- 
 tor, the President of the United States, is not the case still 
 clearer? Make it a case of private right, if you please; put it 
 as strongly as possible against the President in order to test 
 the question. One of you has a claim to property; it may 
 be a disputed claim; it is a claim which he believes may 
 prove, when judicially examined, to be sound and good. 
 He says to A B, "Go to C D, who is in possession of that 
 property; I give you this order to him to give it up to you; 
 and if he gives it up take possession." Did anybody ever 
 imagine that that was a conspiracy? Does not every lawyer 
 know that the moment you introduce into any transaction 
 of this kind the element of a claim of right all criminal ele- 
 ments are purged at once; and that this is always true be- 
 tween man and man where it is a simple assertion of private 
 right, the parties to which are at liberty either to assert 
 them or forego them, as they please? But this was not such 
 a case; this was a case of public right, of public duty, of 
 public right claimed upon constitutional grounds and upon 
 the interpretation of the law which had been given to it by 
 the lawmakers themselves. How can the President of the 
 United States, under such circumstances, be looked upon 
 by anybody, whether he may or may not be guilty or not 
 guilty of other things as a co-conspirator under this act? 
 
 These articles say that the conspiracy between the Presi- 
 dent and General Thomas was to employ force, threats, in- 
 timidation. What they have proved against the President 
 is that he issued these orders, and that alone. Now, on the 
 face of these orders, there is no apology for the assertion 
 
256 THE BRIEF 
 
 that it was the design of the President that anybody at 
 any time should use force, threats, or intimidation. The 
 order is to Mr. Stanton to dehver up possession. The order 
 to General Thomas is to receive possession from Mr. Stan- 
 ton when he delivers it up. No force is assigned to him; 
 no authority is given to him to apply for or use any force, 
 threats, or intimidation. There is not only no express au- 
 thority, but there is no implication of any authority to 
 apply for or obtain or use anything but the order which was 
 given him to hand to Mr. Stanton; and we shall offer proof. 
 Senators, which we think cannot fail to be satisfactory in 
 point of fact, that the President from the first had in view 
 simply and solely to test this question by the law; that if 
 this was a conspiracy it was a conspiracy to go to law, and 
 that was the whole of it. We shall show you what advice 
 the President received on this subject, what views in con- 
 cert with his advisers he entertained, which, of course, it is 
 not my province now to comment upon; the evidence must 
 first be adduced, then it will be time to consider it. 
 
 The other two conspiracy articles will require very little 
 observation from me, because they contain no new allega- 
 tions of fact which are not in the fourth and sixth articles, 
 which I have already adverted to; and the only distinction 
 between them and the others is that they are not founded 
 upon this conspiracy act of 1861; they simply allege an 
 unlawful conspiracy, and leave the matter there. They do 
 not allege sufficient facts to bring the case within the Act of 
 1861. In other words, they do not allege force, threats, or 
 intimidation. I shall have occasion to remark upon these 
 articles when I come to speak of the tenth article, because 
 these articles, as you perceive, come within that category 
 which the honorable Manager announced here at an early 
 period of the trial; articles which require no law to support 
 them; and when I come to speak of the tenth article, as I 
 shall have occasion to discuss this subject, I wish that my 
 
DEFENSE OF PRESIDENT JOHNSON 257 
 
 remarks, so far as they may be deemed applicable, should 
 be applied to these fifth and seventh articles which I have 
 thus passed over. 
 
 I shall detain the Senate but a moment upon the ninth 
 article, which is the one relating to the conversation with 
 General Emory. The meaning of this article, as I read it, is 
 that the President brought General Emory before himself 
 as Commander-in-Chief of the Army for the purpose of 
 instructing him to disobey the law, with an intent to induce 
 General Emory to disobey it, and with intent to enable 
 himself unlawfully and by the use of military force through 
 General Emory, to prevent Mr. Stanton from continuing 
 to hold office. Now, I submit that, not only does this ar- 
 ticle fail of proof in its substance as thus detailed, but that 
 it is disproved by the witness whom they have introduced 
 to support it. In the first place, it appears clearly from 
 General Emory's statement that the President did not 
 bring him there for any purpose connected with this appro- 
 priation bill affecting the command of the Army, or the 
 orders given to the Army. This subject General Emory 
 introduced himself, and when the conversation was broken 
 off it was again recurred to by himself asking the Presi- 
 dent's permission to bring it to his attention. Whatsoever 
 was said upon that subject was said not because the Presi- 
 dent of the United States had brought the commander of 
 the department of Washington before him for that purpose, 
 but because, having brought him there for another purpose, 
 to which I shall allude in a moment, the commanding Gen- 
 eral chose himself to introduce that subject and converse 
 upon it, and obtain the President's views upon it. 
 
 In the next place, having his attention called to the act 
 of Congress and to the order under it, the President ex- 
 pressed precisely the same opinion to General Emory that 
 he had previously publicly expressed to Congress itself at 
 the time when the act was sent to him for his signature; 
 
258 THE BRIEF 
 
 and there is found set out in his answer on page 32 of the 
 official report of these proceedings what that opinion was : 
 that he considered that this provision interfered with his 
 constitutional right as the Commander-in-Chief of the 
 Army; and that is what he said to General Emory. There is 
 not even probable cause to believe that he said it for any 
 other than the natural reason that General Emory had in- 
 troduced the subject, had asked leave to call his attention 
 to it, and evidently expected and desired that the President 
 should say something on the subject; and if he said any- 
 thing was he not to tell the truth? That is exactly what he 
 did say. I mean the truth as he apprehended it. It will ap- 
 pear in proof, as I am instructed, that the reason why the 
 President sent for General Emory was not that he might 
 endeavor to seduce that distinguished officer from his alle- 
 giance to the laws and the Constitution of his country, but 
 because he wished to obtain information about military 
 movements which he was informed upon authority which 
 he had a right to and was bound to respect might require 
 his personal attention. 
 
 I pass, then, from this article, as being one upon which I 
 ought not to detain the Senate, and I come to the last one, 
 concerning which I shall have much to say, and that is the 
 tenth article, which is all of and concerning the speeches of 
 the President. 
 
 In the front of this inquiry the question presents itself: 
 What are impeachable offenses under the Constitution of 
 the United States? Upon this question learned disserta- 
 tions have been written and printed. One of them is an- 
 nexed to the argument of the honorable Manager who 
 opened the cause for the prosecution. Another one on the 
 other side of the question, written by one of the honorable 
 Managers themselves, may be found annexed to the pro- 
 ceedings in the House of Representatives upon the occasion 
 of the first attempt to impeach the President. And there 
 
DEFENSE OF PRESIDENT JOHNSON 259 
 
 have been others written and pubHshed by learned jurists 
 touching this subject. I do not propose to vex the ear of 
 the Senate with any of the precedents drawn from the Mid- 
 dle Ages. The framers of our Constitution were quite as 
 familiar with them as the learned authors of these treatises, 
 and the framers of our Constitution, as I conceive, have 
 drawn from them the lesson which I desire the Senate to 
 receive, that these precedents are not fit to govern their 
 conduct on this trial. 
 
 In my apprehension, the teachings, the requirements, the 
 prohibitions of the Constitution of the United States prove 
 all that is necessary to be attended to for the purposes of 
 this trial. I propose, therefore, instead of a search through 
 the precedents which were made in the times of the Plan- 
 tagenets, the Tudors, and the Stuarts, and which have been 
 repeated since, to come nearer home and see what provi- 
 sions of the Constitution of the United States bear on this 
 question, and whether they are not sufficient to settle it. 
 If they are it is quite immaterial what exists elsewhere. 
 
 My first position is, that when the Constitution speaks 
 of "treason, bribery, and other high crimes and misde- 
 meanors" it refers to, and includes only, high criminal 
 offenses against the United States, made so by some law of 
 the United States existing when the acts complained of 
 were done; and I say that this is plainly to be inferred from 
 each and every provision of the Constitution on the subject 
 of impeachment. 
 
 "Treason" and "bribery." Nobody will doubt that 
 these are here designated high crimes and misdemeanors 
 against the United States, made such by the laws of the 
 United States, which the framers of the Constitution knew 
 must be passed in the nature of the Government they were 
 about .to create, because these are offenses which strike at 
 the existence of that Government. "Other high crimes 
 and misdemeanors." Noscitur a sociis. High crimes and 
 
260 THE BRIEF 
 
 misdemeanors; so high that they belong in this company 
 with treason and bribery. That is plain on the face of the 
 Constitution; in the very first step it takes on the sub- 
 ject of impeachment. "High crimes and misdemeanors" 
 against what law.^ There can be no crime, there can be no 
 misdemeanor without a law, written or unwritten, express 
 or implied. There must be some law; otherwise there is no 
 crime. My interpretation of it is that the language "high 
 crimes and misdemeanors" means "offenses against the 
 laws of the United States." Let us see if the Constitution 
 has not said so. 
 
 The first clause of the second section of the second article 
 of the Constitution reads thus: "The President of the 
 United States shall have the power to grant reprieves and 
 pardons for offenses against the United States, except 
 in cases of impeachment." "Offenses against the United 
 States" would include "cases of impeachment," and they 
 might be pardoned by the President if they were not ex- 
 cepted. Then cases of impeachment are, according to the 
 express declaration of the Constitution itself, cases of 
 offenses against the United States. 
 
 Still, the learned Manager says that this is not a court, 
 and that, whatever may be the character of this body, it is 
 bound by no law. Very different was the understanding of 
 the fathers of the Constitution on this subject. 
 
 Mr. Manager Butler. Will you state where it was I 
 said it was bound by no law? 
 
 Mr. Stanbery. "A law unto itself." 
 
 Mr. Manager Butler. "No common or statute law" 
 was my language. 
 
 Mr. Curtis. I desire to refer to the sixty-fourth number 
 of the Federalist which is found in Dawson's edition, on 
 page 453: 
 
 The remaining powers which the plan of the Convention allots 
 to the Senate, in a distinct capacity, are comprised in their partici- 
 
DEFENSE OF PRESIDENT JOHNSON 261 
 
 pation with the Executive in the appointment to offices, and in 
 their judicial character as a court for the trial of impeachments, 
 as in the business of appointments the Executive will be the 
 principal agent, the provisions relating to it will most properly 
 be discussed in the examination of that department. We will 
 therefore conclude this head with a view of the judicial character 
 of the Senate. 
 
 And then it is discussed. The next position to which I 
 desire the attention of the Senate is, that there is enough 
 written in the Constitution to prove that this is a court in 
 which a judicial trial is now being carried on. "The Senate 
 of the United States shall have the sole power to try all 
 impeachments." "When the President is tried the Chief 
 Justice shall preside." The trial of all crimes, except in case 
 of impeachment, shall be by jury. This, then, is the trial 
 of a crime. You are the triers, presided over by the Chief 
 Justice of the United States in this particular case, and that 
 on the express words of the Constitution. There is also, 
 according to its express words, to be an acquittal or a con- 
 viction on this trial for a crime. "No person shall be con- 
 victed without the concurrence of two thirds of the mem- 
 bers present." There is also to be a judgment in case there 
 shall be a conviction. 
 
 Judgment in cases of impeachment shall not extend further 
 than removal from office and disqualification to hold any office 
 of honor, trust, or profit under the United States. 
 
 Here, then, there is the trial of a crime, a trial by a tri- 
 bunal designated by the Constitution in place of court and 
 jury, a conviction, if guilt is proved, a judgment on that 
 conviction, a punishment inflicted by the judgment for a 
 crime; and this on the express terms of the Constitution 
 itself. And yet, say the honorable Managers, there is no 
 court to try the crime and no law by which the act is to be 
 judged. The honorable Manager interrupted me to say 
 that he qualified that expression of no law; his expression 
 
262 THE BRIEF 
 
 was "no common or statute law." Well, when you get out 
 of that field you are in a limbo, a vacuum, so far as law is 
 concerned, to the best of my knowledge and belief. 
 
 I say, then, that it is impossible not to come to the con- 
 clusion that the Constitution of the United States has 
 designated impeachable offenses as offenses against the 
 United States, that it has provided for the trial of those 
 offenses, that it has established a tribunal for the purpose of 
 trying them, that it has directed the tribunal in case of 
 conviction to pronounce a judgment upon the conviction 
 and inflict a punishment. All this being provided for, can 
 it be maintained that this is not a court, or that it is bound 
 by no law? 
 
 But the argument does not rest mainly, I think, upon the 
 provisions of the Constitution concerning impeachment. It 
 is, at any rate, vastly strengthened by the direct prohibi- 
 tions of the Constitution. " Congress shall pass no bill of at- 
 tainder or ex post facto law." According to that prohibition 
 of the Constitution, if every member of this body sitting in 
 its legislative capacity and every member of the other body 
 sitting in its legislative capacity, should unite in passing a 
 law to punish an act after the act was done, that law would 
 be a mere nullity. Yet what is claimed by the honorable 
 Managers in behalf of members of this body? As a Con- 
 gress you cannot create a law to punish these acts if no 
 law existed at the time they were done; but sitting here as 
 judges, not only after the fact but while the case is on trial, 
 you may individually, each one of you, create a law by 
 himself to govern the case. 
 
 According to this assumption the same Constitution 
 which has made it a bill of rights of the American citizen, 
 not only as against Congress but as against the Legislature 
 of every State in the Union, that no ex post facto law shall 
 be passed — this same Constitution has erected you into a 
 body and empowered every one of you to say aut inveniam 
 
DEFENSE OF PRESIDENT JOHNSON 263 
 
 aut faciam viam : if I cannot find a law I will make one. 
 Nay, it has clothed every one of you with imperial power; 
 it has enabled you to say, sic volo, sic jubeOy stat pro ratione 
 voluntas : I am a law unto myself, by which law I shall gov- 
 ern this case. And, more than that, when each one of you, 
 before he took his place here, called God to witness that he 
 would administer impartial justice in this case according 
 to the Constitution and the laws, he meant such laws as he 
 might make as he went along. The Constitution, which had 
 prohibited anybody from making such laws, he swore to 
 observe; but he also swore to be governed by his own will; 
 his own individual will was the law which he thus swore to 
 observe; and this special provision of the Constitution that 
 when the Senate sits in this capacity to try an impeachment 
 the Senators shall be on oath means mwely that they shall 
 swear to follow their own individual wills ! I respectfully 
 submit this view cannot consistently and properly be taken 
 of the character of this body or of the duties and powers 
 incumbent upon it. 
 
 Look for a moment, if you please, to the other provision. 
 This same search into the English precedents, so far from 
 having made our ancestors who framed and adopted the 
 Constitution in love with them, led them to put into the 
 Constitution a positive and absolute prohibition against 
 any bill of attainder. What is a bill of attainder.^ It is a 
 case before the Parliament where the Parliament make the 
 law for the facts they find. Each legislator (for it is in their 
 legislative capacity they act, not in a judicial one) is, to use 
 the phrase of the honorable Managers, "a law unto him- 
 self"; and according to his discretion, his views of what is 
 politic or proper under the circumstances, he frames a law 
 to meet the case and enacts it or votes in its enactment. 
 According to the doctrine now advanced, bills of attainder 
 are not prohibited by this Constitution; they are only 
 slightly modified. It is only necessary for the House of 
 
264 THE BRIEF 
 
 Representatives by a majority to vote an impeachment and 
 send up certain articles and have two thirds of this body 
 vote in favor of conviction, and there is an attainder; and it 
 is done by the same process and depends on identically the 
 same principles as a bill of attainder in the English Parlia- 
 ment. The individual wills of the legislators, instead of the 
 conscientious discharge of the duty of the judges, settle the 
 result. 
 
 I submit, then. Senators, that this view of the honorable 
 Managers of the duties and powers of this body cannot be 
 maintained. But the attempt made by the honorable Man- 
 agers to obtain a conviction upon this tenth article is at- 
 tended with some peculiarities which I think it is the duty 
 of the counsel to the President to advert to. So far as 
 regards the preceding articles, the first eight articles are 
 framed upon allegations that the President broke a law. I 
 suppose the honorable Managers do not intend to carry 
 their doctrine so far as to say that unless you find the Presi- 
 dent did intentionally break a law those articles are sup- 
 ported. As to those articles there is some law unquestion- 
 ably, the very gist of the charge being that he broke a law. 
 You must find that the law existed; you must construe it 
 and apply it to the case; you must find his criminal intent 
 willfully to break the law, before the articles can be sup- 
 ported. But we come now to this tenth article, which de- 
 pends upon no law at all, but, as I have said, is attended 
 with some extraordinary peculiarities. 
 
 The complaint is that the President made speeches 
 against Congress. The true statement here would be much 
 more restricted than that; for although in those speeches 
 the President used the word "Congress," undoubtedly he 
 did not mean the entire constitutional body organized 
 under the Constitution of the United States; he meant the 
 dominant majority in Congress. Everybody so understood 
 it; everybody must so understand it. But the complaint is 
 
 I 
 
DEFENSE OF PRESIDENT JOHNSON 265 
 
 that he made speeches against those who governed in Con- 
 gress. Well, who are the grand jury in this case? One of the 
 parties spoken against. And who are the triers? The other 
 party spoken against. One would think there was some 
 incongruity in this; some reason for giving pause before 
 taking any very great stride in that direction. The honor- 
 able House of Representatives sends its Managers here to 
 take notice of what? That the House of Representatives 
 has erected itself into a school of manners, selecting from 
 its ranks those gentlemen whom it deems most competent 
 by precept and example to teach decorum of speech; and 
 they desire the judgment of this body whether the Presi- 
 dent has not been guilty of indecorum, whether he has 
 spoken properly, to use the phrase of the honorable Man- 
 ager. Now, there used to be an old-fashioned notion that 
 although there might be a difference of taste about oral 
 speeches, and, no doubt, always has been and always will 
 be many such differences, there was one very important 
 test in reference to them, and that is whether they are true 
 or false; but it seems that in this case that is no test at all. 
 The honorable Manager, in opening the case, finding, I sup- 
 pose, that it was necessary, in some manner, to advert to 
 that subject, has done it in terms which I will read to you: 
 
 The words are not alleged to be either false or defamatory, be- 
 cause it is not within the power of any man, however high his 
 official position, in effect to slander the Congress of the United 
 States, in the ordinary sense of that word, so as to call on Con- 
 gress to answer as to the truth of the accusation. 
 
 Considering the nature of our Government, considering 
 the experience which we have gone through on this sub- 
 ject, that is a pretty lofty claim. Why, if the Senate please, 
 if you go back to the time of the Plantagenets and seek for 
 precedents there, you will not find so lofty a claim as that. 
 I beg leave to read from two statutes, the first being 
 8 Edward I, ch. 34, and the second 2 Richard II, ch. 1, a 
 
266 THE BRIEF 
 
 short passage. The statute, 3 Edward I, ch. 34, after the 
 preamble, enacts — 
 
 That from henceforth none be so hardy to tell or publish any 
 false news or tales, whereby discord or occasion of discord or 
 slander may grow between the king and his people, or the great 
 men of the realm; and he that doeth so shall be taken and kept in 
 until he hath brought him into court which was the first author 
 of the tale. 
 
 The statute 2 Richard II, c. 1, s. 5, enacted with some 
 alterations the previous statute. It commenced thus : 
 
 Of devisors of false news and of horrible and false lies of prel- 
 ates, dukes, earls, barons, and other nobles and great men of the 
 realm; and also of the chancellor, treasurer, clerk of the privy 
 seal, steward of the king's house, justices of the one bench or of 
 the other, and of other great officers of the realm. 
 
 The great men of the realm in the time of Richard II 
 were protected only against "horrible and false lies," and 
 when we arrive in the course of our national experience 
 during the war with France and the administration of Mr. 
 Adams to that attempt to check, not free speech, but free 
 writing. Senators will find that, although it applied only 
 to written libels, it contained an express section that the 
 truth might be given in evidence. That was a law, as 
 Senators know, making it penal by written libels to excite 
 the hatred or contempt of the people against Congress 
 among other offenses; but the estimate of the elevation of 
 Congress above the people was not so high but that it was 
 thought proper to allow a defense of the truth to be given 
 in evidence. I beg leave to read from this sedition act a 
 part of one section and make a reference to another to sup- 
 port the correctness of what I have said. It is found in 
 Statutes-at-Large, page 596 : 
 
 That if any person shall write, print, utter, or publish, or shall 
 cause or procure to be written, printed, uttered, or published, or 
 
DEFENSE OF PRESIDENT JOHNSON 267 
 
 shall knowingly and willingly assist or aid in writing, printing, 
 uttering, or publishing any false, scandalous, and malicious writ- 
 ing or writings against the Government of the United States, or 
 either House of the Congress of the United States, or the Presi- 
 dent of the United States, with intent to defame the said Govern- 
 ment, or either House of the said Congress, or the said President, 
 or to bring them, or either or any of them the hatred of the good 
 people of the United States, or to stir up sedition within the 
 United States, or to excite any unlawful combinations therein, 
 etc. 
 
 Section 3 provides — 
 
 That if any person shall be prosecuted under this act for the 
 writing or publishing any libel aforesaid, it shall be lawful for the 
 defendant, upon the trial of the cause, to give in evidence in his 
 defense the truth of the matter contained in the publication 
 charged as a libel. And the jury who shall try the cause shall have 
 a right to determine the law and the fact, under the direction of 
 the court, as in other cases. 
 
 In contrast with the views expressed here, I desire now to 
 read from the fourth volume of Mr. Madison's works, pages 
 542 and 547, passages which, in my judgment, are as mas- 
 terly as anything Mr. Madison ever wrote, upon the rela- 
 tions of the Congress of the United States to the people of 
 the United States in contrast with the relations of the Gov- 
 ernment of Great Britain to the people of that island; and 
 the necessity which the nature of our Government lays us 
 under to preserve freedom of the press and freedom of 
 speech: 
 
 The essential difference between the British Government and 
 the American Constitution will place this subject in the clearest 
 light. 
 
 In the British Government the danger of encroachments on the 
 rights of the people is understood to be confined to the Executive 
 Magistrate. The Representatives of the people in the Legislature 
 are only exempt themselves from distrust, but are considered as 
 sufficient guardians of the rights of their constituents against the 
 danger from the Executive. Hence it is a principle that the Par- 
 
268 THE BRIEF 
 
 liament is unlimited in its power, or, in their own language, is 
 omnipotent. Hence, too, all the ramparts for protecting the 
 rights of the people — such as their Magna Charta, their Bill of 
 Rights, etc. — are not reared against the Parliament, but against 
 the royal prerogative. They are merely legislative precautions 
 against Executive usurpations. Under such a Government as this, 
 an exemption of the press from previous restraint, by licensers 
 appointed by the king, is all the freedom that can be secured to it. 
 In the United States the case is altogether different. The 
 people, not the Government, possess the absolute sovereignty. 
 The Legislature, no less than the Executive, is under limitations 
 of power. Encroachments are regarded as possible from the one 
 as well as from the other. Hence, in the United States, the great 
 and essential rights of the people are secured against legislative as 
 well as against executive ambition. They are secured, not by laws 
 paramount to prerogative, but by constitutions paramount to 
 laws. This security of the freedom of the press requires that it 
 should be exempt not only from previous restraint by the Exec- 
 utive, as in Great Britain, but from legislative restraint also; and 
 this exemption, to be effectual, must be an exemption not only 
 from the previous inspection of licenses, but from the subsequent 
 penalty of laws. 
 
 One other passage on page 547, which has an extraordi- 
 nary application to the subject now before you: 
 
 1. The Constitution supposes that the President, the Congress, 
 and each of its Houses may not discharge their trusts, either from 
 defect of judgment or other causes. Hence they are all made 
 responsible to their constituents at the returning periods of elec- 
 tion; and the President, who is singly intrusted with very great 
 powers, is, as a further guard, subjected to an intermediate im- 
 peachment. 
 
 2. Should it happen, as the Constitution supposes it may 
 happen, that either of these branches of the Government may 
 not have duly discharged its trust, it is natural and proper that, 
 according to the cause and degree of their faults, they should be 
 brought into contempt or disrepute, and Lacur the hatred of the 
 people. 
 
 3. Whether it has, in any case, happened that the proceedings 
 of either or all of those branches evince such a violation of duty 
 as to justify a contempt, a disrepute, or hatred among the people. 
 
DEFENSE OF PRESIDENT JOHNSON 269 
 
 can only be determined by a free examination thereof, and a free 
 communication among the people thereon. 
 
 4. Whenever it may have actually happened that proceedings 
 of this sort are chargeable on all or either of the branches of the 
 Government, it is the duty, as well as right, of intelligent and 
 faithful citizens to discuss and promulge them freely, as well to 
 control them by the censorship of the public opinion as to promote 
 a remedy according to the rules of the Constitution. And it can- 
 not be avoided that those who are to apply the remedy must feel, 
 in some degree, a contempt or hatred against the transgressing 
 party. 
 
 These observations of Mr. Madison were made in respect 
 to the freedom of the press. There were two views enter- 
 tained at the time when the sedition law was passed con- 
 cerning the power of Congress over this subject. The one 
 view was that when the Constitution spoke of freedom of 
 the press it referred to the common-law definition of that 
 freedom. That was the view which Mr. Madison was con- 
 troverting in one of the passages which I have read to you. 
 The other view was that the common-law definition could 
 not be deemed applicable, and that the freedom provided 
 for by the Constitution, so far as the action of Congress was 
 concerned, was an absolute freedom of the press. But no 
 one ever imagined that freedom of speech, in contradistinc- 
 tion from written libel, could be restrained by a law of 
 Congress; for whether you treat the prohibition in the Con- 
 stitution as absolute in itself or whether you refer to the 
 common law for a definition of its limits and meaning, the 
 result will be the same. Under the common law no man was 
 ever punished criminally for spoken words. If he slandered 
 his neighbor and injured him, he must make good in dam- 
 ages to his neighbor the injury he had done; but there was 
 no such thing at the common law as an indictment for 
 spoken words. So that this prohibition in the Constitution 
 against any legislation by Congress in restraint of the free- 
 dom of speech is necessarily an absolute prohibition; and 
 
27d [ THE BRIEF 
 
 therefore this is a case not only where there is no law made 
 prior to the act to punish the act, but a case where Congress 
 is expressly prohibited from making any law to operate 
 even on subsequent acts. 
 
 What is the law to be? Suppose it is, as the honorable 
 Managers seem to think it should be, the sense of propriety 
 of each Senator appealed to. What is it to be? The only 
 rule I have heard — the only rule which can be announced 
 — is that you may require the speaker to speak properly. 
 Who are to be the judges whether he speaks properly? In 
 this case the Senate of the United States on the presenta- 
 tion of the House of Representatives of the United States; 
 and that is supposed to be the freedom of speech secured by 
 this absolute prohibition of the Constitution. That is the 
 same freedom of speech, Senators, in consequence of which 
 thousands of men went to the scaffold under the Tudors 
 and the Stuarts. That is the same freedom of speech 
 which caused thousands of heads of men and of women to 
 roll from the guillotine in France. That is the same free- 
 dom of speech which has caused in our day more than once 
 "order to reign in Warsaw." The persons did not speak 
 properly in the apprehension of the judges before whom 
 they were brought. Is that the freedom of speech intended 
 to be secured by our Constitution? 
 
 Mr. Chief Justice and Senators, I have to detain you but 
 a very short time longer, and that is by a few observations 
 concerning the eleventh article, and they will be very few, 
 for the reason that the eleventh article, as I understand it, 
 contains nothing new which needs any notice from me. It 
 appears by the official copy of the articles which is before 
 us, the printed copy, that this article was adopted at a later 
 period than the preceding nine articles, and I suppose it has 
 that appearance, that the honorable Managers, looking 
 over the work they had already performed, perhaps not 
 feeling perfectly satisfied to leave it in the shape in which it 
 
DEFENSE OF PRESIDENT JOHNSON 271 
 
 then stood, came to the conclusion to add this eleventh 
 article, and they have compounded it out of the materials 
 which they had previously worked up into the others. In 
 the first place, they said, here are the speeches; we will have 
 something about them; and accordingly they begin by the 
 allegation that the President at the Executive Mansion, on 
 a certain occasion, made a speech, and without giving his 
 words, but it is attributed to him that he had an intention 
 to declare that this was not a Congress within the meaning 
 of the Constitution; all of which is denied in his answer, and 
 there is no proof to support it. The President, by his whole 
 course of conduct, has shown that he could have enter- 
 tained no such intention as that. He has explained that 
 fully in his answer, and I do not think it necessary to repeat 
 the explanation. 
 
 Then they come to the old matter of the removal of Mr. 
 Stanton. They say he made this speech denying the com- 
 petency of Congress to legislate, and following up its intent 
 he endeavored to remove Mr. Stanton. I have sufficiently 
 discussed that, and I shall not weary the patience of the 
 Senate by doing so any further. 
 
 Then they say that he made this speech and followed up 
 its intent by endeavoring to get possession of the money 
 appropriated for the military service of the United States. 
 I have said all I desire to say upon that. 
 
 Then they say that he made it with the intent to obstruct 
 what is called the law *'for the better government of the 
 rebel States," passed in March, 1867, and in support of that 
 they have offered a telegram to him from Governor Parsons 
 and an answer to that telegram from the President, upon 
 the subject of an amendment of the Constitution, sent in 
 January before the March when the law came into existence, 
 and, so far as I know, that is the only evidence which they 
 have offered upon that subject. I leave, therefore, with these 
 remarks, that article for the consideration of the Senate. 
 
272 THE BRIEF 
 
 It must be unnecessary for me to say anything concern- 
 ing the importance of this case, not only now but in the 
 future. It must be apparent to every one, in any way con- 
 nected with or concerned in this trial, that this is and will 
 be the most conspicuous instance which ever has been or 
 ever can be expected to be found of American justice or 
 American injustice, of that justice which Mr. Burke says 
 is the great standing policy of all civilized States, or of that 
 injustice which is sure to be discovered and which makes 
 even the wise man mad, and which, in the fixed and im- 
 mutable order of God's providence, is certain to return to 
 plague its inventors. 
 
SPEECH IN BEHALF OF JOHN STOCKDALE 273 
 
 6. SPEECH IN BEHALF OF JOHN STOCKDALE 
 
 When tried for a libel on the House of Commons. Delivered bejore 
 the Court of King's Bench, December 9, 1789, by Lord Er shine. ^ 
 
 Mr. Stockdale was a London bookseller, who published a 
 pamphlet, written by a Scottish clergyman named Logan, while 
 the trial of Warren Hastings was going on, reflecting severely on 
 the House of Commons for their proceedings therein. Mr. Fox, 
 one of the managers of the impeachment, brought this publication 
 before the House, as impugning the motives of those who had pro- 
 posed the trial, and moved that the Attorney-General be directed 
 to prosecute the author and publisher of the pamphlet for a libel 
 on the Commons. The fact of publication was admitted, and the 
 case, therefore, turned on the true nature of the crime alleged. 
 
 In this speech Mr. Erskine has stated, with admirable precision 
 and force, the great principles involved in the law of libel : namely, 
 that every composition of this kind is to be taken as a whole, and 
 not judged of by detached passages; that if its general spirit and 
 intention are good, it is not to be punished for hasty or rash ex- 
 pressions thrown off in the heat of discussion, and which might 
 even amount to libels when considered by themselves; that the 
 interests of society demand great freedom in canvassing the 
 measures of Government; and that if a publication is decent in 
 its language and peaceable in its import, much indulgence ought 
 to be shown toward its author, when his real design is to discuss 
 the subject, and not to bring contempt on the Government — 
 though in doing so he may be led, by the strength of his feelings, 
 to transcend the bounds of candor and propriety. 
 
 This is universally considered the finest of Mr. Erskine's 
 speeches, "whether we regard the wonderful skill with which the 
 argument is conducted — the soundness of the principles laid 
 down, and their happy application to the case — the exquisite 
 fancy with which they are embellished and illustrated — or the 
 powerful and touching language in which they are conveyed. It 
 is justly regarded by all English lawyers as a consummate speci- 
 men of the art of addressing a jury — as a standard, a sort of 
 precedent for treating cases of libel, by keeping which in his eye 
 a man may hope to succeed in special pleading his client's case 
 
 1 From Select British Eloquence, by Chauncey A. Goodrich, D.D. 
 (Harper and Brothers, 1874) ; by the kind permission of the publishers. 
 
274 THE BRIEF 
 
 within its principle, who is destitute of the talent required even 
 to comprehend the other and higher merits of his original. By 
 these merits it is recommended to lovers of pure diction — of 
 copious and animated description — of lively, picturesque, and 
 fanciful illustration — of all that constitutes, if we may so speak, 
 the poetry of eloquence" {Edinburgh RevieWy vol. xvi, p. 109). 
 — Goodrich. 
 
 Gentlemen of the Jury: 
 
 Mr. Stockdale, who is brought as a criminal before you 
 for the publication of this book, has, by employing me as 
 his advocate, reposed what must appear to many an ex- 
 traordinary degree of confidence; since, although he well 
 knows that I am personally connected in friendship with 
 most of those whose conduct and opinions are principally 
 arraigned by its author, he nevertheless commits to my 
 hands his defense and justification. 
 
 From a trust apparently so delicate and singular, vanity 
 is but too apt to whisper an application to some fancied 
 merit of one's own; but it is proper, for the honor of the 
 English bar, that the world should know that such things 
 happen to all of us daily, and of course; and that the de- 
 fendant, without any knowledge of me, or any confidence 
 that was personal, was only not afraid to follow up an acci- 
 dental retainer, from the knowledge he has of the general 
 character of the profession. Happy, indeed, is it for this 
 country that, whatever interested divisions may charac- 
 terize other placeSy of which I may have occasion to speak 
 to-day, however the counsels of the highest departments of 
 the state may be occasionally distracted by personal con- 
 siderations, they never enter these walls to disturb the ad- 
 ministration of justice. Whatever may be our public prin- 
 ciples, or the private habits of our lives, they never cast 
 even a shade across the path of our professional duties. 
 If this be the characteristic even of the bar of an English 
 court of justice, what sacred impartiality may not every 
 man expect from its jurors and its bench.? 
 
SPEECH IN BEHALF OF JOHN STOCKDALE 275 
 
 As, from the indulgence which the court was yesterday 
 pleased to give to my indisposition, this information was 
 not proceeded on when you were attending to try it, it is 
 probable you were not altogether inattentive to what 
 passed at the trial of the other indictment, prosecuted also 
 by the House of Commons. Without, therefore, a restate- 
 ment of the same principles, and a similar quotation of 
 authorities to support them, I need only remind you of the 
 law applicable to this subject, as it was then admitted by 
 the Attorney-General; in concession to my propositions, 
 and confirmed by the higher authority of the court, namely, 
 that every information or indictment must contain such a 
 description of the crime that. 
 
 First, the defendant may know what crime it is which he 
 is called upon to answer. 
 
 Secondly, the jury may appear to be warranted in their 
 conclusion of guilty or not guilty. 
 
 And, thirdly, the court may see such a precise and defi- 
 nite transgression upon the record as to be able to apply 
 the punishment which judicial discretion may dictate, or 
 which positive law may inflict. 
 
 It was admitted also to follow as a mere corollary from 
 these propositions, that where an information charges a 
 writing to be composed or published of and concerning the 
 Commons of Great Britain, with an intent to bring that 
 body into scandal and disgrace with the public, the author 
 cannot be brought within the scope of such a charge, unless 
 the jury, on examination and comparison of the whole 
 matter written or published, shall be satisfied that the par- 
 ticular passages charged as criminal, when explained by the 
 context, and considered as part of one entire work, were 
 meant and intended by the author to vilify the House of 
 Commons as a body, and were written of and concerning 
 them in Parliament assembled. 
 
 These principles being settled, we are now to see what the 
 present information is. 
 
276 THE BRIEF 
 
 It charges that the defendant — " unlawfully, wickedly, 
 and maliciously devising, contriving, and intending to 
 asperse, scandalize, and vilify the Commons of Great Brit- 
 ain in Parliament assembled; and most wickedly and auda- 
 ciously to represent their proceedings as corrupt and unjust, 
 and to make it believed and thought as if the Commons of 
 Great Britain in Parliament assembled were a most wicked, 
 tyrannical, base, and corrupt set of persons, and to bring 
 them into disgrace with the public" — the defendant pub- 
 lished — What ? Not those latter ends of sentences which 
 the Attorney-General has read from his brief, as if they had 
 followed one another in order in this book. Not those scraps 
 and tails of passages which are patched together upon this 
 record, and pronounced in one breath, as if they existed 
 without intermediate matter in the same page, and without 
 context anywhere. No! This is not the accusation, even 
 mutilated as it is; for the information charges that, with in- 
 tention to vilify the House of Commons, the defendant pub- 
 lished the whole book, describing it on the record by its 
 title: "A Review of the Principal Charges against Warren 
 Hastings, Esq., late Governor-General of Bengal " : in which, 
 among other things, the matter particularly selected is to 
 be found. 
 
 Your inquiry, therefore, is not confined to this, whether 
 the defendant published those selected parts of it; and 
 whether, looking at them as they are distorted by the in- 
 formation, they carry, in fair construction, the sense and 
 meaning which the innuendoes put upon them; but whether 
 the author of the entire work — I say the author, since, if he 
 could defend himself, the publisher unquestionably can — 
 whether the author wrote the volume which I hold in my 
 hand, as a free, manly, bona-fide disquisition of criminal 
 charges against his fellow-citizen. Or whether the long, 
 eloquent discussion of them, which fills so many pages, was 
 a mere cloak and cover for the introduction of the supposed 
 
SPEECH IN BEHALF OF JOHN STOCKDALE 277 
 
 scandal imputed to the selected passages; the mind of the 
 writer all along being intent on traducing the House of Com- 
 mons, and not on fairly answering their charges against 
 Mr. Hastings. This, gentlemen, is the principal matter 
 for your consideration. And therefore, if, after you shall 
 have taken the book itself into the chamber which will be 
 provided for you, and shall have read the whole of it with 
 impartial attention — if, after the performance of this duty, 
 you can return here, and with clear consciences pro- 
 nounce upon your oaths that the impression made upon 
 you by these pages is, that the author wrote them with the 
 wicked, seditious, and corrupt intentions charged by the 
 information — you have then my full permission to find the 
 defendant guilty. But if, on the other hand, the general 
 tenor of the composition shall impress you with respect for 
 the author, and point him out to you as a man mistaken, 
 perhaps, himself, but not seeking to deceive others — if 
 every line of the work shall present to you an intelligent, 
 animated mind, glowing with a Christian compassion to- 
 ward a fellow-man, whom he believed to be innocent, and 
 with a patriot zeal for the liberty of his country, which he 
 considered as wounded through the sides of an oppressed 
 fellow-citizen — if this shall be the impression on your con- 
 sciences and understandings, when you are called upon 
 to deliver your verdict — then hear from me that you not 
 only work private injustice, but break up the press of Eng- 
 land, and surrender her rights and liberties forever, if you 
 convict the defendant. 
 
 Gentlemen, to enable you to form a true judgment of the 
 meaning of this book and of the intention of its author, and 
 to expose the miserable juggle that is played off in the in- 
 formation, by the combination of sentences which, in the 
 work itself, have no bearing upon one another, I will first 
 give you the publication as it is charged upon the rec- 
 ord, and presented by the Attorney-General in opening the 
 
278 THE BRIEF 
 
 case for the Crown; and I will then, by reading the inter- 
 jacent matter which is studiously kept out of view, convince 
 you of its true interpretation. 
 
 The information, beginning with the first page of the 
 book, charges as a libel upon the House of Commons the 
 following sentence: 
 
 The House of Commons has now given its final decision with 
 regard to the merits and demerits of Mr. Hastings. The Grand 
 Inquest of England have delivered their charges, and preferred 
 their impeachment; their allegations are referred to proof; and 
 from the appeal to the collective wisdom and justice of the nation 
 in the supreme tribunal of the kingdom, the question comes to be 
 determined whether Mr. Hastings be guilty or not guilty? 
 
 It is but fair, however, to admit that this first sentence, 
 which the most ingenious malice cannot torture into a 
 criminal construction, is charged by the information rather 
 as introductory to what is made to follow it than as libelous 
 in itself. For the Attorney-General, from this introductory 
 passage in the first page, goes on at a leap to page thir- 
 teenth, and reads — almost without a stop, as if it immedi- 
 ately followed the other — this sentence: 
 
 What credit can we give to multiplied and accumulated charges, 
 when we find that they originate from misrepresentation and 
 falsehood? 
 
 From these two passages thus standing together, without 
 the intervenient matter which occupies thirteen pages, one 
 would imagine that — instead of investigating the prob- 
 ability or improbability of the guilt imputed to Mr. Hast- 
 ings — instead of carefully examining the charges of the 
 Commons, and the defense of them which had been deliv- 
 ered before them, or which was preparing for the Lords — 
 the author had immediately, and in a moment after stating 
 the mere fact of the impeachment, decided that the act 
 of the Commons originated from misrepresentation and 
 falsehood. 
 
SPEECH IN BEHALF OF JOHN STOCKDALE 279 
 
 Gentlemen, in the same manner a veil is cast over all that 
 is written in the next seven pages; for, knowing that the 
 context would help to the true construction, not only of the 
 passages charged before, but of those in the sequel of this 
 information, the Attorney-General, aware that it would 
 convince every man who read it that there was no inten- 
 tion in the author to calumniate the House of Commons, 
 passes over, by another leap, to page twenty; and in the 
 same manner, without drawing his breath, and as if it di- 
 rectly followed the two former sentences in the first and 
 thirteenth pages, reads from page twentieth : 
 
 An impeachment of error in judgment with regard to the 
 quantum of a fine, and for an intention that never was executed 
 and never known to the offending party, characterizes a tribunal 
 of inquisition rather than a Court of Parliament. 
 
 From this passage, by another vault, he leaps over one- 
 and-thirty pages more, to page fifty-one, where he reads 
 the following sentence, which he mainly relies on, and 
 upon which I shall by and by trouble you with some obser- 
 vations : 
 
 Thirteen of them passed in the House of Commons, not only 
 without investigation, but without being read; and the votes were 
 given without inquiry, argument, or conviction. A majority had 
 determined to impeach; opposite parties met each other, and 
 "jostled in the dark, to perplex the political drama, and bring the 
 hero to a tragic catastrophe." 
 
 From thence, deriving new vigor from every exertion, he 
 makes his last grand stride over forty-four pages more, 
 almost to the end of the book, charging a sentence in the 
 ninety-fifth page. 
 
 So that out of a volume of one hundred and ten pages, 
 the defendant is only charged with a few scattered frag- 
 ments of sentences, picked out of three or four. Out of a 
 work consisting of about two thousand five hundred and 
 thirty lines, of manly, spirited eloquence, only forty or fifty 
 
280 THE BRIEF 
 
 lines are culled from different parts of it, and artfully put 
 together, so as to rear up a libel, out of a false context, by a 
 supposed connection of sentences with one another, which 
 are not only entirely independent, but which, when com- 
 pared with their antecedents, bear a totally different con- 
 struction. In this manner, the greatest works upon gov- 
 ernment, the most excellent books of science, the sacred 
 Scriptures themselves, might be distorted into libels, by 
 forsaking the general context, and hanging a meaning upon 
 selected parts. Thus, as in the text put by Algernon Sid- 
 ney, "The fool hath said in his heart, there is no God," the 
 Attorney-General, on the principle of the present proceed- 
 ing against this pamphlet, might indict the publisher of the 
 Bible for blasphemously denying the existence of heaven, 
 in printing, "There is no God," for these words alone, with- 
 out the context, would be selected by the information, and 
 the Bible, like this book, would be underscored to meet it. 
 Nor could the defendant, in such a case, have any possible 
 defense, unless the jury were permitted to see, by the book 
 itself, that the verse, instead of denying the existence of the 
 Divinity, only imputed that imagination to a fool. 
 
 Gentlemen, having now gone through the Attorney- 
 General's reading, the book shall presently come forward 
 and speak for itself. But before I can venture to lay it be- 
 fore you, it is proper to call your attention to how matters 
 stood at the time of its publication: without which the 
 author's meaning and intention cannot possibly be under- 
 stood. 
 
 The Commons of Great Britain, in Parliament assem- 
 bled, had accused Mr. Hastings, as Governor-General of 
 Bengal, of high crimes and misdemeanors; and their juris- 
 diction for that high purpose of national justice was un- 
 questionably competent. But it is proper you should know 
 the nature of this inquisitorial capacity. The Commons, 
 in voting an impeachment, may be compared to a grand 
 
SPEECH IN BEHALF OF JOHN STOCKDALE 281 
 
 jury finding a bill of indictment for the Crown. Neither the 
 one nor the other can be supposed to proceed but upon the 
 matter which is brought before them; neither of them can 
 find guilt without accusation, nor the truth of accusation 
 without evidence. When, therefore, we speak of the 
 "accuser," or "accusers," of a person indicted for any 
 crime, although the grand jury are the accusers inform, by 
 giving effect to the accusation, yet, in common parlance, 
 we do not consider them as the responsible authors of the 
 prosecution. If I were to write of a most wicked indict- 
 ment, found against an innocent man, which was prepar- 
 ing for trial, nobody who read it would conceive I meant 
 to stigmatize the grand jury that found the bill; but it 
 would be inquired immediately, who was the prosecutor, 
 and who were the witnesses on the back of it? In the same 
 manner, I mean to contend, that if this book is read with 
 only common attention, the whole scope of it will be dis- 
 covered to be this : that, in the opinion of the author, Mr. 
 Hastings had been accused of maladministration in India, 
 from the heat and spleen of political divisions in Parlia- 
 ment, and not from any zeal for national honor or justice; 
 that the impeachment did not originate from government, 
 but from a faction banded against it, which, by misrepre- 
 sentation and violence, had fastened it on an unwilling 
 House of Commons; that, prepossessed with this sentiment 
 (which, however unfounded, makes no part of the present 
 business, since the publisher is not called before you for 
 defaming individual members of the Commons, but for a 
 contempt of the Commons as a body), the author pursues 
 the charges, article by article; enters into a warm and ani- 
 mated vindication of Mr. Hastings, by regular answers to 
 each of them; and that, as far as the mind and soul of a man 
 can be visible, I might almost say embodied in his writings, 
 his intention throughout the whole volume appears to have 
 been to charge with injustice the private accusers of Mr. 
 
282 THE BRIEF 
 
 Hastings, and not the House of Commons as a body; which 
 undoubtedly rather reluctantly gave way to, than heartily 
 adopted the impeachment. This will be found to be the 
 palpable scope of the book; and no man who can read Eng- 
 lish, and who, at the same time, will have the candor and 
 common sense to take up his impressions from what is 
 written in it, instead of bringing his own along with him 
 to the reading of it, can possibly understand it otherwise. 
 But it may be said, admitting this to be the scope and 
 design of the author, what right had he to canvass the mer- 
 its of an accusation upon the records of the Commons, 
 more especially while it was in the course of legal proce- 
 dure? This, I confess, might have been a serious question, 
 but the Commons, as prosecutors of this information, seem 
 to have waived or forfeited their right to ask it. Before they 
 sent the Attorney-General into this place, to punish the 
 publication of answers to their charges, they should have 
 recollected that their own want of circumspection in the 
 maintenance of their privileges, and in the protection of 
 persons accused before them, had given to the public the 
 charges themselves, which should have been confined to 
 their own journals. The course and practice of Parlia- 
 ment might warrant the printing of them for the use of 
 their own members; but there the publication should have 
 stopped, and all further progress been resisted by author- 
 ity. If they were resolved to consider answers to their 
 charges as a contempt of their privileges, and to punish 
 the publication of them by such severe prosecutions, it 
 would have well become them to have begun first with 
 those printers who, by publishing the charges themselves 
 throughout the whole kingdom, or rather throughout the 
 whole civilized world, were anticipating the passions and 
 judgments of the public against a subject of England upon 
 his trial, so as to make the publication of answers to them 
 not merely a privilege, but a debt and duty to humanity 
 
SPEECH IN BEHALF OF JOHN STOCKDALE 283 
 
 and justice. The Commons of Great Britain claimed and 
 exercised the privileges of questioning the innocence of 
 Mr. Hastings by their impeachment : but as, however ques- 
 tioned, it was still to be presumed and protected, until 
 guilt was established by a judgment, he whom they had 
 accused had an equal claim upon their justice, to guard 
 him from prejudice and misrepresentation until the hour 
 of trial. 
 
 Had the Commons, therefore, by the exercise of their 
 high, necessary, and legal privileges, kept the public aloof 
 from all canvass of their proceedings, by an early punish- 
 ment of printers, who, without reserve or secrecy, had sent 
 out the charges into the world from a thousand presses 
 in every form of publication, they would have then stood 
 upon ground to-day from whence no argument of policy or 
 justice could have removed them; because nothing can be 
 more incompatible with either than appeals to the many 
 upon subjects of judicature, which, by common consent, a 
 few are appointed to determine, and which must be deter- 
 mined by facts and principles, which the multitude have 
 neither leisure nor knowledge to investigate. But then, let 
 it be remembered that it is for those who have the author- 
 ity to accuse and punish, to set the example of, and to en- 
 force this reserve, which is so necessary for the ends of 
 justice. Courts of law, therefore, in England, never endure 
 the publication of their records. A prosecutor of an indict- 
 ment would be attached for such a publication; and, upon 
 the same principle, a defendant would be punished for 
 anticipating the justice of his country, by the publication 
 of his defense, the public being no party to it, until the 
 tribunal appointed for its determination be open for its 
 decision. 
 
 Gentlemen, you have a right to take judicial notice of 
 these matters, without the proof of them by witnesses. For 
 jurors may not only, without evidence, found their verdicts 
 
284 THE BRIEF 
 
 on facts that are notorious, but upon what they know pri- 
 vately themselves, after revealing it upon oath to one an- 
 other. Therefore, you are always to remember that this 
 book was written when the charges against Mr. Hastings, 
 to which it is an answer, were, to the knowledge of the Com- 
 mons (for we cannot presume our watchmen to have been 
 asleep), publicly hawked about in every pamphlet, maga- 
 zine, and newspaper in the kingdom. You well know with 
 what a curious appetite these charges were devoured by 
 the whole public, interesting as they were, not only from 
 their importance, but from the merit of their composition; 
 certainly not so intended by the honorable and excellent 
 composer to oppress the accused, but because the common- 
 est subjects swell into eloquence under the touch of his 
 sublime genius. Thus, by the remissness of the Commons, 
 who are now the prosecutors of this information, a subject 
 of England, who was not even charged with contumacious 
 resistance to authority, much less a proclaimed outlaw, and 
 therefore fully entitled to every protection which the cus- 
 toms and statutes of the kingdom hold out for the protec- 
 tion of British liberty, saw himself pierced with the arrows 
 of thousands and ten thousands of libels. 
 
 Gentlemen, before I venture to lay the book before you, 
 it must be yet further remembered (for the fact is equally 
 notorious) that under these inauspicious circumstances the 
 trial of Mr. Hastings at the bar of the Lords had actually 
 commenced long before its publication. 
 
 There the most august and striking spectacle was daily 
 exhibited which the world ever witnessed. A vast stage of 
 justice was erected, awful from its high authority, splendid 
 from its illustrious dignity, venerable from the learning and 
 wisdom of its judges, captivating and affecting from the 
 mighty concourse of all ranks and conditions which daily 
 flocked into it, as into a theater of pleasure. There, when 
 the whole public mind was at once awed and softened to 
 
SPEECH IN BEHALF OF JOHN STOCKDALE 285 
 
 the impression of every human affection, there appeared, 
 day after day, one after another, men of the most powerful 
 and exalted talents, eclipsing by their accusing eloquence 
 the most boasted harangues of antiquity; rousing the pride 
 of national resentment by the boldest invectives against 
 broken faith and violated treaties, and shaking the bosom 
 with alternate pity and horror by the most glowing pic- 
 tures of insulted nature and humanity; ever animated and 
 energetic, from the love of fame, which is the inherent pas- 
 sion of genius; firm and indefatigable, from a strong pre- 
 possession of the justice of their cause. 
 
 Gentlemen, when the author sat down to write the book 
 now before you, all this terrible, unceasing, exhaustless 
 artillery of warm zeal, matchless vigor of understanding, 
 consuming and devouring eloquence, united with the high- 
 est dignity, was daily, and without prospect of conclusion, 
 pouring forth upon one private unprotected man, who was 
 bound to hear it, in the face of the whole people of Eng- 
 land, with reverential submission and silence. I do not 
 complain of this, as I did of the publication of the charges, 
 because it is what the law allowed and sanctioned in the 
 course of a public trial. But, when it is remembered that we 
 are not angels, but weak, fallible men, and that even the 
 noble judges of that high tribunal are clothed beneath their 
 ermines with the common infirmities of man's nature, it 
 will bring us all to a proper temper for considering the book 
 itself, which will in a few moments be laid before you. But 
 first, let me once more remind you, that it was under all 
 these circumstances, and amid the blaze of passion and 
 prejudice, which the scene I have been endeavoring faintly 
 to describe to you might be supposed likely to produce, that 
 the author, whose name I will now give to you, sat down 
 to compose the book which is prosecuted to-day as a libel. 
 
 The history of it is very short and natural. 
 
 The Rev. Mr. Logan, minister of the Gospel at Leith, in 
 
286 THE BRIEF 
 
 Scotland, a clergyman of the purest morals, and, as you 
 will see by and by, of very superior talents, well acquainted 
 with the human character, and knowing the difficulty of 
 bringing back public opinion after it is settled on any sub- 
 ject, took a warm, unbought, unsolicited interest in the 
 situation of Mr. Hastings, and determined, if possible, to 
 arrest and suspend the public judgment concerning him. 
 He felt for the situation of a fellow-citizen exposed to a 
 trial which, whether right or wrong, is undoubtedly a severe 
 one — a trial certainly not confined to a few criminal acts 
 like those we are accustomed to, but comprehending the 
 transactions of a whole life, and the complicated policies 
 of numerous and distant nations — a trial which had nei- 
 ther visible limits to its duration,^ bounds to its expense, 
 nor circumscribed compass for the grasp of memory or 
 understanding — a trial which had, therefore, broke loose 
 from the common form of decision, and had become the 
 universal topic of discussion in the world, superseding 
 not only every other grave pursuit, but every fashionable 
 dissipation. 
 
 Gentlemen, the question you have, therefore, to try upon 
 all this matter is extremely simple. It is neither more nor 
 less than this : At a time when the charges against Mr. Hast- 
 ings were, by the implied consent of the Commons, in every 
 hand and on every table — when, by their managers, the 
 lightning of eloquence was incessantly consuming him and 
 flashing in the eyes of the public — when every man was 
 with perfect impunity saying, and writing, and publishing 
 just what he pleased of the supposed plunderer and devas- 
 tator of nations — would it have been criminal in Mr. 
 Hastings himself to have reminded the public that he was 
 
 1 The trial began 13th February, 1788, and was protracted until 
 April 22, 1795 (occupying one hundred and forty-eight days), when Mr. 
 Hastings was acquitted by a large majority on every separate article 
 charged against him. The cost of the defense amounted to £76,080. — 
 Goodrich. 
 
SPEECH IN BEHALF OF JOHN STOCKDALE 287 
 
 a native of this free land, entitled to the common protec- 
 tion of her justice, and that he had a defense, in his turn, 
 to offer to them, the outlines of which he implored them, 
 in the mean time, to receive as an antidote to the unlimited 
 and unpunished poison in circulation against him? This is, 
 without color or exaggeration, the true question you are 
 to decide. For I assert, without the hazard of contradic- 
 tion, that if Mr. Hastings himself could have stood justified 
 or excused in your eyes for publishing this volume in his 
 own defense, the author, if he wrote it bona fide to defend 
 him, must stand equally excused and justified; and, if the 
 author be justified, the publisher cannot be criminal, un- 
 less you have evidence that it was published by him with 
 a different spirit and intention from those in which it was 
 written. The question, therefore, is correctly what I just 
 now stated it to be: Could Mr. Hastings have been con- 
 demned to infamy for writing this book? 
 
 Gentlemen, I tremble with indignation, to be driven to 
 put such a question in England. Shall it be endured that 
 a subject of this country (instead of being arraigned and 
 tried for some single act in her ordinary courts, where the 
 accusation, as soon, at least, as it is made public, is followed 
 within a few hours by the decision) may be impeached by 
 the Commons for the transactions of twenty years — that 
 the accusation shall spread as wide as the region of letters 
 — that the accused shall stand, day after day, and year 
 after year, as a spectacle before the public, which shall be 
 kept in a perpetual state of inflammation against him; yet 
 that he shall not, without the severest penalties, be permit- 
 ted to submit anything to the judgment of mankind in his 
 defense? If this be law (which it is for you to-day to de- 
 cide), such a man has no trial! That great hall, built by 
 our fathers for English justice, is no longer a court, but an 
 altar; and an Englishman, instead of being judged in it by 
 God and his country, is a victim and a sacrifice! 
 
288 THE BRIEF 
 
 You will carefully remember that I am not presuming to 
 question either the right or duty of the Commons of Great 
 Britain to impeach; neither am I arraigning the propriety 
 of their selecting, as they have done, the most extraordi- 
 nary persons for ability which the age has produced, to 
 manage their impeachment. Much less am I censuring the 
 managers themselves, charged with the conduct of it before 
 the Lords, who are undoubtedly bound, by their duty to 
 the House and to the public, to expatiate upon the crimes 
 of the persons whom they had accused. None of these 
 points are questioned by me, nor are in this place ques- 
 tionable. I only desire to have it decided whether, if the 
 Commons, when national expediency happens to call in 
 their judgment for an impeachment, shall, instead of keep- 
 ing it on their own records and carrying it with due solem- 
 nity to the Peers for trial, permit it, without censure and 
 punishment, to be sold like a common newspaper in the 
 shop of my client, so crowded with their own members that 
 no plain man, without privilege of Parliament, can hope 
 even for a sight of the fire in the winter's day, every man 
 buying it, reading it, and commenting upon it — the gentle- 
 man himself who is the object of it, or his friend in his ab- 
 sence, may not, without stepping beyond the bounds of 
 English freedom, put a copy of what is thus published 
 into his pocket, and send back to the very same shop for 
 publication a hona-jide, rational, able answer to it, in order 
 that the bane and antidote may circulate together, and the 
 public be kept straight till the day of decision. If you 
 think, gentlemen, that this common duty of self-preserva- 
 tion to the accused himself, which nature writes as a law 
 upon the hearts of even savages and brutes, is nevertheless 
 too high a privilege to be enjoyed by an impeached and 
 suffering Englishman; or if you think it beyond the oflfices 
 of humanity and justice, when brought home to the hand 
 of a brother or a friend, you will say so by your verdict of 
 
SPEECH IN BEHALF OF JOHN STOCKDALE 289 
 
 guilty; the decision will then be yours; and the consolation 
 miney that I have labored to avert it. A very small part of 
 the misery which will follow from it is likely to light upon 
 me; the rest will be divided among yourselves and your 
 children. 
 
 Gentlemen, I observe plainly and with infinite satisfac- 
 tion, that you are shocked and offended at my even sup- 
 posing it possible you should pronounce such a detestable 
 judgment; and that you only require of me to make out to 
 your satisfaction, as I promised, that the real scope and 
 object of this book is a hona-fide defense of Mr. Hastings, 
 and not a cloak and cover for scandal on the House of 
 Commons. I engage to do this, and I engage for nothing 
 more. I shall make an open, manly defense. I mean to 
 torture no expressions from their natural constructions, to 
 dispute no innuendoes on the record, should any of them 
 have a fair application; nor to conceal from your notice any 
 unguarded, intemperate expressions, which may, perhaps, 
 be found to checker the vigorous and animated career of 
 the work. Such a conduct might, by accident, shelter the 
 defendant; but it would be the surrender of the very princi- 
 ple on which alone the liberty of the English press can 
 stand; and I shall never defend any man from a temporary 
 imprisonment by the permanent loss of my own liberty, 
 and the ruin of my country. I mean, therefore, to submit 
 to you that, though you should find a few lines in page 
 thirteen or twenty-one; a few more in page fifty-one, and 
 some others in other places; containing expressions bearing 
 on the House of Commons, even as a body, which, if writ- 
 ten as independent paragraphs by themselves, would be 
 indefensible libels, yet, that you have a right to pass them 
 over in judgment, provided the substance clearly appears 
 to be a bona-fide conclusion, arising from the honest in- 
 vestigation of a subject which it was lawful to investigate, 
 and the questionable expressions, the visible effusion of a 
 
290 THE BRIEF 
 
 zealous temper, engaged in an honorable and legal pursuit. 
 After this preparation, I am not afraid to lay the book in 
 its genuine state before you. 
 The pamphlet begins thus: 
 
 The House of Commons has now given its final decision with 
 regard to the merits and demerits of Mr. Hastings. The Grand 
 Inquest of England have delivered their charges, and preferred 
 their impeachment; their allegations are referred to proof; and, 
 from the appeal to the collective wisdom and justice of the nation 
 in the supreme tribunal of the kingdom, the question comes to be 
 determined, whether Mr. Hastings be guilty or not guilty. 
 
 Now if, immediately after what I have just read to you 
 — which is the first part charged by the information — the 
 author had said, *' Will accusations, built on such a baseless 
 fabric, prepossess the public in favor of the impeachment? 
 What credit can we give to multiplied and accumulated 
 charges, when we find that they originate from misrepre- 
 sentation and falsehood?" every man would have been 
 justified in pronouncing that he was attacking the House of 
 Commons; because the groundless accusations mentioned 
 in the second sentence could have no reference but to the 
 House itself mentioned by name in the first and only sen- 
 tence which preceded it. 
 
 But, gentlemen, to your astonishment I will now read 
 what intervenes between these two passages. From this you 
 will see, beyond a possibility of doubt, that the author 
 never meant to calumniate the House of Commons, but to 
 say that the accusations of Mr. Hastings before the whole 
 House grew out of a Committee of Secrecy established 
 some years before, and were afterward brought forward by 
 the spleen of private enemies and a faction in the Govern- 
 ment. This will appear not only from the grammatical 
 construction of the words, but from what is better than 
 words, from the meaning which a person writing as a friend 
 of Mr. Hastings must be supposed to have intended to 
 
SPEECH IN BEHALF OF JOHN STOCKDALE 291 
 
 convey. Why should such a friend attack the House of 
 Commons? Will any man gravely tell me that the House 
 of Commons, as a hody^ ever wished to impeach Mr. Hast- 
 ings.^ Do we not all know that they constantly hung back 
 from it, and hardly knew where they were, or what to do 
 when they found themselves entangled with it? My learned 
 friend, the Attorney-General, is a member of this Assem- 
 bly: perhaps he may tell you by and by what he thought 
 of it, and whether he ever marked any disposition in the 
 majority of the Commons hostile to Mr. Hastings. But 
 why should I distress my friend by the question? The fact 
 is sufficiently notorious; and what I am going to read from 
 the book itself — which is left out in the information — 
 is too plain for controversy. 
 
 Whatever may be the event of the impeachment, the proper 
 exercise of such power is a valuable privilege of the British Con- 
 stitution, a formidable guardian of the public liberty and the 
 dignity of the nation. The only danger is, that, from the influence 
 of faction, and the awe which is annexed to great names, they may be 
 prompted to determine before they inquire, and to pronounce judg- 
 ment without examination. 
 
 Here is the clue to the whole pamphlet. The author 
 trusts to, and respects, the House of Commons, but is 
 afraid their mature and just examination may be disturbed 
 by faction. Now, does he mean government by faction? 
 Does he mean the majority of the Commons by faction ? 
 Will the House, which is the prosecutor here, sanction that 
 application of the phrase? or will the Attorney-General 
 admit the majority to be the true innuendo of faction ? I 
 wish he would; I should then have gained something at 
 least by this extraordinary debate. But I have no expec- 
 tation of the sort; such a concession would be too great a 
 sacrific^e to any prosecution, at a time when everything is 
 considered as faction that disturbs the repose of the min- 
 ister in Parliament. But, indeed, gentlemen, some things 
 
292 THE BRIEF 
 
 are too plain for argument. The author certainly means 
 Tny friends, who, whatever qualifications may belong to 
 them, must be contented with the appellation of faction, 
 while they oppose the minister in the House of Commons; 
 but the House, having given this meaning to the phrase of 
 faction for its own purposes, cannot in decency change the 
 interpretation, in order to convict my client. I take that 
 to be beyond the privilege of Parliament. 
 
 The same bearing upon individual members of the Com- 
 mons, and not on the Commons as a body, is obvious through- 
 out. Thus, after saying, in page ninth, that the East India 
 Company had thanked Mr. Hastings for his meritorious 
 services — which is unquestionably true — he adds, "that 
 mankind would abide by their deliberate decision, rather 
 than by the intemperate assertion of a committee.^* 
 
 This he writes after the impeachment was found by the 
 Commons at large. But he takes no account of their pro- 
 ceedings; imputing the whole to the original committee — 
 that is, the Committee of Secrecy — so called, I suppose, 
 from their being the authors of twenty volumes in folio, 
 which will remain a secret to all posterity, as nobody will 
 ever read them. The same construction is equally plain 
 from what immediately follows : 
 
 The report of the Committee of Secrecy also states that the 
 happiness of the native inhabitants of India has been deeply 
 affected, their confidence in English faith and lenity shaken and 
 impaired, and the character of this nation wantonly and wickedly 
 degraded. 
 
 Here, again, you are grossly misled by the omission of 
 nearly twenty-one pages. For the author, though he is 
 here speaking of this committee by name, which brought 
 forward the charges to the notice of the House, and which 
 he continues to do onward to the next selected paragraph, 
 yet, by arbitrarily sinking the whole context, is taken to 
 be speaking to the House as a body, when, in the passage 
 
SPEECH IN BEHALF OF JOHN STOCKDALE 293 
 
 next charged by the information, he reproaches the accusers 
 of Mr. Hastings; although, so far is he from considering 
 them as the House of Commons, that in the very same page 
 he speaks of the articles as the charges not even of the com- 
 mittee, but of Mr. Burke alone, the most active and intelli- 
 gent member of that body, having been circulated in India 
 by a relation of that gentleman : 
 
 The charges of Mr. Burke have been carried to Calcutta, and 
 carefully circulated in India. 
 
 Now, if we were considering these passages of the work 
 as calumniating a body of gentlemen, many of whom I 
 must be supposed highly to respect, or as reflecting upon 
 my worthy friend whose name I have mentioned, it would 
 give rise to a totally different inquiry, which it is neither 
 my duty nor yours to agitate. But, surely, the more that 
 consideration obtrudes itself upon us, the more clearly it 
 demonstrates that the author's whole direction was against 
 the individual accusers of Mr. Hastings, and not against 
 the House of Commons, which merely trusted to the mat- 
 ter they had collected. 
 
 Although, from a caution which my situation dictates, 
 as representing another, I have thought it my duty thus to 
 point out to you the real intention of the author, as it ap- 
 pears by the fair construction of the work, yet I protest, that 
 in my own apprehension it is very immaterial whether he 
 speaks of the committee or of the House, provided you shall 
 think the whole volume a bona-fide defense of Mr. Hastings. 
 This is the great point I am, by all my observations, en- 
 deavoring to establish, and which, I think, no man who 
 reads the following short passages can doubt. Very intelli- 
 gent persons have, indeed, considered them, if founded in 
 facts, to render every other amplification unnecessary. The 
 first of them is as follows : 
 
 It was known at that time that Mr. Hastings had not only 
 
294 THE BRIEF 
 
 descended from a public to a private station, but that he was 
 persecuted with accusations and impeachments. But none of 
 these svffenng millions have sent their complaints to this country; 
 not a sigh nor a groan has been wafted from India to Britain. On 
 the contrary, testimonies the most honorable to the character 
 and merit of Mr. Hastings have been transmitted by those very 
 princes whom he has been supposed to have loaded with the deep- 
 est injuries. 
 
 Here, gentlemen, we must be permitted to pause together 
 a little; for, in examining whether these pages were written 
 as an honest answer to the charges of the Commons, or as 
 a prostituted defense of a notorious criminal, whom the 
 writer believed to be guilty, truth becomes material at 
 every step. For, if, in any instance, he be detected of a 
 willful misrepresentation, he is no longer an object of your 
 attention. 
 
 Will the Attorney-General proceed, then, to detect the 
 hypocrisy of our author, by giving us some details of the 
 proofs by which these personal enormities have been estab- 
 lished, and which the writer must be supposed to have been 
 acquainted with? I ask this as the defender of Mr. Stock- 
 dale, not of Mr. Hastings, with whom I have no concern. 
 I am sorry, indeed, to be so often obliged to repeat this pro- 
 test; but I really feel myself embarrassed with those re- 
 peated coincidences of defense which thicken on me as I 
 advance, and which were, no doubt, overlooked by the 
 Commons when they directed this interlocutory inquiry 
 into his conduct. I ask, then, as counsel for Mr. Stockdale, 
 whether, when a great state criminal is brought for justice 
 at an immense expense to the public, accused of the most 
 oppressive cruelties, and charged with the robbery of 
 princes and the destruction of nations, is it not open to any 
 one to ask. Who are his accusers? What are the sources 
 and the authorities of these shocking complaints? Where 
 are the Ambassadors or memorials of those princes whose 
 revenues he has plundered? Where are the witnesses for 
 
SPEECH IN BEHALF OF JOHN STOCKDALE 295 
 
 those unhappy men in whose persons the rights of human- 
 ity have been violated? How deeply buried is the blood 
 of the innocent, that it does not rise up in retributive 
 judgment to confound the guilty! These, surely, are ques- 
 tions which, when a fellow-citizen is upon a long, pain- 
 ful, and expensive trial, humanity has a right to propose; 
 which the plain sense of the most unlettered man may be 
 expected to dictate, and which all history must provoke 
 from the more enlightened. When Cicero impeached Ver- 
 RES ^ before the great tribunal of Rome, of similar cruel- 
 ties and depredations in her provinces, the Roman people 
 were not left to such inquiries. All Sicily surrounded the 
 Forum, demanding justice upon her plunderer and spoiler, 
 with tears and imprecations. It was not by the eloquence 
 of the orator, but by the cries and tears of the miserable, 
 that Cicero prevailed in that illustrious cause. Verres fled 
 from the oaths of his accusers and their witnesses, and not 
 from the voice of Tully. To preserve the fame of his elo- 
 quence, he composed his five celebrated speeches, but they 
 were never delivered against the criminal, because he had 
 fled from the city, appalled with the sight of the persecuted 
 and the oppressed. It may be said that the cases of Sicily 
 and India are widely different; perhaps they may be; 
 whether they are or not, is foreign to my purpose. I am 
 not bound to deny the possibility of answers to such 
 questions; I am only vindicating the right to ask them. 
 
 Gentlemen, the author, in the other passage which I 
 marked out to your attention, goes on thus: 
 
 Lord Comwallis and Sir John Macpherson, his successors in 
 office, have given the same voluntary tribute of approbation to his 
 
 * Verres, as praetor and governor of Sicily, was guilty of such extortion 
 and oppression, that the Sicilian people brought an accusation against 
 him in the Senate, and Cicero conducted the impeachment. Verres was 
 defended by Hortensius, the celebrated Roman orator; but, aware of the 
 justice of the accusation, he left Rome without waiting the result. — 
 Goodrich. 
 
296 THE BRIEF 
 
 measures as Governor-General of India. A letter from the former, 
 dated the 10th of August, 1786, gives the following account of 
 our dominions in Asia: "The native inhabitants of this kingdom 
 are the happiest and best protected subjects in India; our native 
 allies and tributaries confide in our protection; the country pow- 
 ers are aspiring to the friendship of the English; and from the 
 King of Tidore, toward New Guinea, to Timur Shah, on the banks 
 of the Indus, there is not a state that has not lately given us 
 proofs of confidence and respect." 
 
 Still pursuing the same test of sincerity, let us examine 
 this defensive allegation. 
 
 Will the Attorney-General say that he does not believe 
 such a letter from Lord Cornwallis ever existed? No : for he 
 knows that it is as authentic as any document from India 
 upon the table of the House of Commons. What, then, 
 is the letter? "The native inhabitants of this kingdom, 
 says Lord Cornwallis [writing from the very spot], are the 
 happiest and best protected subjects in India," etc., etc., 
 etc. The inhabitants of this kingdom! Of what kingdom? 
 Of the very kingdom which Mr. Hastings has just returned 
 from governing for thirteen years, and for the misgovern- 
 ment and desolation of which he stands every day as a 
 criminal, or, rather, as a spectacle, before us. This is mat- 
 ter for serious reflection, and fully entitles the author to 
 put the question which immediately follows : 
 
 Does this authentic account of the administration of Mr. 
 Hastings, and of the state of India, correspond with the gloomy 
 picture of despotism and despair drawn by the Committee of 
 Secrecy f 
 
 Had that picture been even drawn by the House of Com- 
 mons itself, he would have been fully justified in asking 
 this question; but you observe it has no bearing on it; the 
 last words not only entirely destroy that interpretation, 
 but also the meaning of the very next passage, which is 
 selected by the information as criminal, namely : 
 
SPEECH IN BEHALF OF JOHN STOCKDALE 297 
 
 What credit can we give to multiplied and accumulated charges, 
 when we find that they originate from misrepresentation and 
 falsehood? 
 
 This passage, which is charged as a libel on the Com- 
 mons, when thus compared with its immediate antecedent, 
 can bear but one construction. It is impossible to contend 
 that it charges misrepresentation on the House that found 
 the impeachment, but upon the Committee of Secrecy just 
 before adverted to, who were supposed to have selected the 
 matter, and brought it before the whole House for judg- 
 ment. 
 
 I do not mean, as I have often told you, to vindicate any 
 calumny on that honorable committee, or upon any indi- 
 vidual of it, any more than upon the Commons at large; 
 
 BUT THE DEFENDANT IS NOT CHARGED BY THIS INFORMA- 
 TION WITH ANY SUCH OFFENSES. 
 
 Let me here pause once more to ask you, whether the 
 book in its genuine state, as far as we have advanced in it, 
 makes the same impression on your minds now as when 
 it was first read to you in detached passages; and whether, 
 if I were to tear off the first part of it which I hold in my 
 hand, and give it to you as an entire work, the first and last 
 passages, which have been selected as libels on the Com- 
 mons, would now appear to be so, when blended with the 
 interjacent parts? I do not ask your answer; I shall have 
 it in your verdict. The question is only put to direct your 
 attention in pursuing the remainder of the volume to this 
 main point — Is it an honest, serious defense ? For 
 this purpose, and as an example for all others, I will read 
 the author's entire answer to the first article of charge 
 concerning Cheyte Sing, the Zemindar of Benares, and 
 leave it to your impartial judgments to determine whether 
 it be a mere cloak and cover for the slander imputed by the 
 information to the concluding sentence of it, which is the 
 only part attacked; or whether, on the contrary, that con- 
 
298 THE BRIEF 
 
 elusion itself, when embodied with what goes before it, does 
 not stand explained and justified? 
 
 The first article of impeachment [continues our author] is con- 
 cerning Cheyte Sing, the Zemindar of Benares. Bulwart Sing, 
 the father of this Rajah, was merely an aumil, or farmer and 
 collector of the revenues for Sujah ul Dowlah, Nabob of Oude, 
 and Vizier of the Mogul Empire. When, on the decease of his 
 father, Cheyte Sing was confirmed in the office of collector for the 
 Vizier, he paid £200,000 as a gift, or nuzzeranah, and an addi- 
 tional rent of £30,000 per annum. 
 
 As the father was no more than an aumil [agent], the son suc- 
 ceeded only to his rights and pretensions. But by a sunnud 
 [decree] granted to him by the Nabob Sujah Dowlah in September, 
 1773, through the influence of Mr. Hastings, he acquired a legal 
 title to property in the land, and was raised from the office of 
 aumil to the rank of Zemindar. About four years after the death 
 of Bulwart Sing, the Governor-General and council of Bengal 
 obtained the sovereignty paramount of the province of Benares. 
 On the transfer of this sovereignty the governor and council pro- 
 posed a new grant to Cheyte Sing, confirming his former privi- 
 leges, and conferring upon him the addition of the sovereign rights 
 of the Mint, and the powers of criminal justice with regard to life 
 and death. He was then recognized by the Company as one of 
 their Zemindars: a tributary subject, or feudatory vassal, of the 
 British Empire in Hindostan. The feudal system, which was 
 formerly supposed to be peculiar to our Gothic ancestors, has 
 always prevailed in the East. In every description of that form 
 of government, notwithstanding accidental variations, there are 
 two associations expressed or understood: one for internal security, 
 the other for external defense. The King or Nabob confers pro- 
 tection on the feudatory baron as tributary prince, on condition 
 of an annual revenue in the time of peace, and of military service, 
 partly commutable for money, in the time of war. The feudal 
 incidents in the Middle Ages in Europe, the fine paid to the supe- 
 rior on marriage, wardship, relief, etc., correspond to the annual 
 tribute in Asia. MiUtary service in war, and extraordinary aids in 
 the event of extraordinary emergencies, were common to both. 
 
 When the Governor-General of Bengal, in 1778, made an ex- 
 traordinary demand on the Zemindar of Benares for five lacks of 
 rupees, the British Empire, in that part of the world, was sur- 
 rounded with enemies which threatened its destruction. In 1779, 
 
SPEECH IN BEHALF OF JOHN STOCKDALE 299 
 
 a general confederacy was formed among the great powers of 
 Hindostan for the expulsion of the English from their Asiatic 
 dominions. At this crisis the expectation of a French armament 
 augmented the general calamities of the country. Mr. Hastings is 
 charged by the committee with making his first demand under 
 the false pretense that hostilities had commenced with France. 
 Such an insidious attempt to pervert a meritorious action into a 
 crime is new, even in the history of impeachments. On the 7th of 
 July, 1778, Mr. Hastings received private intelligence from an 
 English merchant at Cairo, that war had been declared by Great 
 Britain on the 23d of March, and by France on the 30th of April. 
 Upon this intelligence, considered as authentic, it was determined 
 to attack all the French settlements in India. The information 
 was afterward found to be premature; but in the latter end of 
 August a secret dispatch was received from England, authorizing 
 and appointing Mr. Hastings to take the measures which he had 
 already adopted in the preceding month. The Directors and the 
 Board of Control have expressed their approbation of this trans- 
 action by liberally rewarding Mr. Baldwyn, the merchant, for 
 sending the earliest intelligence he could procure to Bengal. It 
 was two days after Mr. Hastings's information of the French war 
 that he formed the resolution of exacting the five lacks of rupees 
 from Cheyte Sing, and would have made similar exactions from all 
 the dependencies of the Company in India, had they been in the 
 same circumstances. The fact is, that the great Zemindars of 
 Bengal pay as much to Government as their lands can afford. 
 Cheyte Sing's collections were above fifty lacks, and his rent not 
 twenty-four. 
 
 The right of calling for extraordinary aids and military 
 service in times of danger being universally established in 
 India, as it was formerly in Europe during the feudal 
 times, the subsequent conduct of Mr. Hastings is explained 
 and vindicated. The Governor-General and Council of 
 Bengal having made a demand upon a tributary Zemindar 
 for three successive years, and that demand having been 
 resisted by their vassal, they are justified in his punishment. 
 The necessities of the Company, in consequence of the crit- 
 ical situation of their affairs in 1781, calling for a high fine 
 — the ability of the Zemindar, who possessed near two 
 
300 THE BRIEF 
 
 crores of rupees in money and jewels, to pay the sum re- 
 quired — his backwardness to comply with the demands of 
 his superiors — his disaffection to the EngUsh interest, and 
 desire of revolt, which even then began to appear, and 
 were afterward conspicuous, fully justify Mr. Hastings 
 in every subsequent step of his conduct. In the whole of 
 his proceedings, it is manifest that he had not early formed 
 a design hostile to the Zemindar, but was regulated by 
 events which he could neither foresee nor control. When 
 the necessary measures which he had taken for supporting 
 the authority of the Company, by punishing a refractory 
 vassal, were thwarted and defeated by the barbarous mas- 
 sacre of the British troops, and the rebellion of Cheyte 
 Sing, the appeal was made to arms, an unavoidable revolu- 
 tion took place in Benares, and the Zemindar became the 
 author of his own destruction. 
 
 Here follows the concluding passage, which is arraigned 
 by the information : 
 
 The decision of the House of Commons on this charge against 
 Mr. Hastings is one of the most singular to be met with in the 
 annals of Parliament. The minister, who was followed by the 
 majority, vindicated him in everything that he had done, and 
 found him blamable only for what he intended to do; justified 
 every step of his conduct, and only criminated his proposed in- 
 tention of converting the crimes of the Zemindar to the benefit of 
 the -state, by a fine of fifty lacks of rupees. An impeachment of 
 error in judgment with regard to the quantum of a fine, and for 
 an intention that never was executed, and never known to the 
 offending party, characterizes a tribunal of inquisition rather than 
 a court of Parliament. 
 
 Gentlemen, I am ready to admit that this sentiment 
 might have been expressed in language more reserved and 
 guarded; but you will look to the sentiment itself, rather 
 than to its dress — to the mind of the writer, and not to the 
 bluntness with which he may happen to express it. It is 
 obviously the language of a warm man, engaged in the hon- 
 
SPEECH IN BEHALF OF JOHN STOCKDALE 301 
 
 est defense of his friend, and who is brought to what he 
 thinks a just conclusion in argument, which, perhaps, be- 
 comes offensive in proportion to its truth. Truth is un- 
 doubtedly no warrant for writing what is reproachful of any- 
 private man. If a member of society lives within the law, 
 then, if he offends, it is against God alone, and man has 
 nothing to do with him; and, if he transgress the laws, the 
 libeler should arraign him before them, instead of presum- 
 ing to try him himself. But as to writings on general sub- 
 jects, which are not charged as an infringement on the rights 
 of individuals, but as of a seditious tendency, it is far other- 
 wise. When, in the progress either of legislation or of high 
 national justice in Parliament, they who are amenable to 
 no law are supposed to have adopted, through mistake or 
 error, a principle which, if drawn into precedent, might be 
 dangerous to the public, I shall not admit it to be a libel in 
 the course of a legal and bona-fide publication, to state that 
 such a principle had in fact been adopted. The people of 
 England are not to be kept in the dark touching the pro- 
 ceedings of their own representatives. Let us, therefore, 
 coolly examine this supposed offense, and see what it 
 amounts to. 
 
 First, was not the conduct of the right honorable gentle- 
 man, whose name is here mentioned, exactly what it is 
 represented .f^ Will the Attorney-General, who was present 
 in the House of Commons, say that it was not.^ Did not 
 the minister vindicate Mr. Hastings in what he had done,^ 
 and was not his consent to that article of the impeachment 
 founded on the intention only of levying a fine on the Ze- 
 mindar for the service of the state, beyond the quantum 
 which he, the minister, thought reasonable? What else is 
 this but an impeachment of error in judgment in the quan- 
 tum of a fine? 
 
 ^ Mr. Pitt expressed his opinion that, admitting the right of Mr. Hast- 
 ings to tax the Zemindar, his general conduct in the business had been 
 unnecessarily severe. — Goodrich. 
 
802 THE BRIEF 
 
 So much for the first part of the sentence, which, regard- 
 ing Mr. Pitt only, is foreign to our purpose. And as to the 
 last part of it, which imputes the sentiments of the minister 
 to the majority that followed him with their votes on the 
 question, that appears to me to be giving handsome credit 
 to the majority for having voted from conviction, and not 
 from courtesy to the minister. To have supposed other- 
 wise, I dare not say, would have been a more natural libel, 
 but it would certainly have been a greater one. The sum 
 and substance, therefore, of the paragraph is only this 
 — that an impeachment for an error in judgment is not 
 consistent with the theory or the practice of the English 
 Government. So say I. I say, without reserve, speaking 
 merely in the abstract, and not meaning to decide upon the 
 merits of Mr. Hastings's cause, that an impeachment for 
 an error in judgment is contrary to the whole spirit of 
 English criminal justice, which, though not binding on the 
 House of Commons, ought to be a guide to its proceedings. 
 I say that the extraordinary jurisdiction of impeachment 
 ought never to be assumed to expose error or to scourge 
 misfortune, but to hold up a terrible example to corruption 
 and willful abuse of authority by extra legal pains. If 
 public men are always punished with due severity when 
 the source of their misconduct appears to have been self- 
 ishly corrupt and criminal, the public can never suffer 
 when their errors are treated with gentleness. From such 
 protection to the magistrate, no man can think lightly of 
 the charge of magistracy itself, when he sees, by the lan- 
 guage of the saving judgment, that the only title to it is 
 an honest and zealous intention. If at this moment, gentle- 
 men, or indeed in any other in the whole course of our his- 
 tory, the people of England were to call upon every man in 
 this impeaching House of Commons who had given his voice 
 on public questions, or acted in authority, civil or military, 
 to answer for the issues of our councils and our wars, and if 
 
SPEECH IN BEHALF OF JOHN STOCKDALE 303 
 
 honest single intentions for the pubhc service were refused 
 as answers to impeachments, we should have many rela- 
 tions to mourn for, and many friends to deplore. For my 
 own part, gentlemen, I feel, I hope, for my country as 
 much as any man that inhabits it; but I would rather see 
 it fall, and be buried in its ruins, than lend my voice to 
 wound any minister, or other responsible person, however 
 unfortunate, who had fairly followed the lights of his under- 
 standing and the dictates of his conscience for their preser- 
 vation. 
 
 Gentlemen, this is no theory of mine; it is the language of 
 English law, and the protection which it affords to every 
 man in office, from the highest to the lowest trust of gov- 
 ernment. In no one instance that can be named, foreign 
 or domestic, did the Court of King's Bench ever interpose 
 its extraordinary jurisdiction, by information, against any 
 magistrate for the widest departure from the rule of his 
 duty, without the plainest and clearest proof of corruption. 
 To every such application, not so supported, the constant 
 answer has been. Go to a grand jury with your complaint. 
 God forbid that a magistrate should suffer from an error in 
 judgment, if his purpose was honestly to discharge his 
 trust. We cannot stop the ordinary course of justice; but 
 wherever the court has a discretion, such a magistrate is 
 entitled to its protection. I appeal to the noble judge, and 
 to every man who hears me, for the truth and universality 
 of this position. And it would be a strange solecism, in- 
 deed, to assert that, in a case where the supreme court of 
 criminal justice in the nation would refuse to interpose an 
 extraordinary though a legal jurisdiction, on the principle 
 that the ordinary execution of the laws should never be 
 exceeded, but for the punishment of malignant guilt, the 
 Commons, in their higher capacity, growing out of the same 
 Constitution, should reject that principle, and stretch 
 them still further by a jurisdiction still more eccentric. 
 
304 THE BRIEF 
 
 Many impeachments have taken place, because the law 
 could not adequately punish the objects of them; but who 
 ever heard of one being set on foot because the law, upon 
 principle, would not punish them? Many impeachments 
 have been adopted for a higher example than a prosecution 
 in the ordinary courts, but surely never for a different ex- 
 ample. The matter, therefore, in the offensive paragraph 
 is not only an indisputable truth, but a truth in the propa- 
 gation of which we are all deeply concerned. 
 
 Whether Mr. Hastings, in the particular instance, acted 
 from corruption or from zeal for his employers, is what I 
 have nothing to do with; it is to be decided in judgment; 
 my duty stops with wishing him, as I do, an honorable 
 deliverance. Whether the minister or the Commons meant 
 to found this article of the impeachment on mere error, 
 without corruption, is likewise foreign to the purpose. The 
 author could only judge from what was said and done on 
 the occasion. He only sought to guard the principle, which 
 is a common interest, and the rights of Mr. Hastings under 
 it. He was, therefore, justified in publishing that an im- 
 peachment, founded in error in judgment, was, to all in- 
 tents and purposes, illegal, unconstitutional, and unjust. 
 
 Gentlemen, it is now time for us to return again to the 
 work under examination. The author, having discussed the 
 whole of the first article through so many pages, without 
 even the imputation of an incorrect or intemperate expres- 
 sion, except in the concluding passage (the meaning of 
 which I trust I have explained), goes on with the same ear- 
 nest disposition to the discussion of the second charge, 
 respecting the princesses of Oude, which occupies eighteen 
 pages, not one syllable of which the Attorney-General has 
 read, and on which there is not even a glance at the House 
 of Commons. The whole of this answer is, indeed, so far 
 from being a mere cloak for the introduction of slander, that 
 I aver it to be one of the most masterly pieces of writing 
 
SPEECH IN BEHALF OF JOHN STOCKDALE 305 
 
 I ever read in my life. From thence he goes on to the charge 
 of contracts and salaries, which occupies five pages more, 
 in which there is not a glance at the House of Commons, 
 nor a word read by the Attorney-General. He afterward 
 defends Mr. Hastings against the charges respecting the 
 opium contracts. Not a glance at the House of Commons; 
 not a word by the Attorney-General. And, in short, in this 
 manner he goes on with the others, to the end of the book. 
 
 Now, is it possible for any human being to believe that a 
 man, having no other intention than to vilify the House of 
 Commons (as this information charges), should yet keep 
 his mind thus fixed and settled as the needle to the pole, 
 upon the serious merits of Mr. Hastings's defense, without 
 ever straying into matter even questionable, except in the 
 two or three selected parts out of two or three hundred 
 pages? This is a forbearance which could not have existed, 
 if calumny and detraction had been the malignant objects 
 which led him to the inquiry and publication. The whole 
 fallacy, therefore, arises from holding up to view a few 
 detached passages, and carefully concealing the general 
 tenor of the book. 
 
 Having now finished most, if not all of these critical ob- 
 servations, which it has been my duty to make upon this 
 unfair mode of prosecution, it is but a tribute of common 
 justice to the Attorney-General, (and which my personal 
 regard for him makes it more pleasant to pay,) that none of 
 my commentaries reflect in the most distant manner upon 
 him; nor upon the Solicitor for the Crown, who sits near 
 me, who is a person of the most correct honor; far from it. 
 The Attorney-General having orders to prosecute, in con- 
 sequence of the address of the House to His Majesty, had 
 no choice in the mode — no means at all of keeping the 
 prosecutors before you in countenance, but by the course 
 which has been pursued. But so far has he been from enlist- 
 ing into the cause those prejudices, which it is not difficult 
 
306 THE BRIEF 
 
 to slide into a business originating from such exalted 
 authority, he has honorably guarded you against them; 
 pressing, indeed, severely upon my client with the weight 
 of his ability, but not with the glare and trappings of his 
 high office. 
 
 Gentlemen, I wish that my strength would enable me to 
 convince you of the author's singleness of intention, and 
 of the merit and ability of his work, by reading the whole 
 that remains of it. But my voice is already nearly ex- 
 hausted; I am sorry my client should be a sufferer by my 
 infirmity. One passage, however, is too striking and im- 
 portant to be passed over; the rest I must trust to your 
 private examination. The author having discussed all the 
 charges, article by article, sums them all up with this 
 striking appeal to his readers: 
 
 The authentic statement of facts which has been given, and the 
 arguments which have been employed, are, I think, sufficient to 
 vindicate the character and conduct of Mr. Hastings, even on the 
 maxims of European policy. When he was appointed Governor- 
 General of Bengal, he was invested with a discretionary power 
 to promote the interests of the India Company, and of the British 
 Empire in that quarter of the globe. The general instructions sent 
 to him from his constituents were, *' That in all your deliberations 
 and resolutions, you make the safety and prosperity of Bengal your 
 principal object, and fix your attention on the security of the posses- 
 sions and revenues of the Company." His superior genius some- 
 times acted in the spirit, rather than complied with the letter of 
 the law; but he discharged the trust, and preserved the empire 
 committed to his care, in the same way, and with greater splendor 
 and success than any of his predecessors in office; his departure 
 from India was marked with the lamentations of the natives and 
 the gratitude of his countrymen; and, on his return to England, 
 he received the cordial congratulations of that numerous and 
 respectable society, whose interests he had promoted, and whose 
 dominions he had protected and extended. 
 
 Gentlemen of the jury — if this be a willfully false ac- 
 count of the instructions given to Mr. Hastings for his 
 
SPEECH IN BEHALF OF JOHN STOCKDALE 307 
 
 Government, and of his conduct under them, the author 
 and pubHsher of this defense deserves the severest punish- 
 ment, for a mercenary imposition on the pubUc. But if it 
 be true that he was directed to make the safety and prosper- 
 ity of Bengal the first object of his attention^ and that, under 
 his administration, it has been safe and prosperous; if it be 
 true that the security and preservation of our possessions 
 and revenues in Asia were marked out to him as the great 
 leading principle of his Government, and that those posses- 
 sions and revenues, amid unexampled dangers, have been 
 secured and preserved, then a question may be unaccount- 
 ably mixed with your consideration, much beyond the con- 
 sequence of the present prosecution, involving, perhaps, the 
 merit of the impeachment itseK which gave it birth — a 
 question which the Commons, as prosecutors of Mr. Hast- 
 ings, should, in common prudence, have avoided; unless, 
 regretting the unwieldy length of their proceedings against 
 him, they wish to afford him the opportunity of this strange 
 anomalous defense. For, although I am neither his counsel, 
 nor desire to have anything to do with his guilt or inno- 
 cence; yet, in the collateral defense of my client, I am 
 driven to state matter which may be considered by many 
 as hostile to the impeachment. For if our dependencies 
 have been secured, and their interests promoted, I am 
 driven, in the defense of my client, to remark that it is 
 mad and preposterous to bring to the standard of justice 
 and humanity the exercise of a dominion founded upon 
 violence and terror. It may and must be true that Mr. 
 Hastings has repeatedly offended against the rights and 
 privileges of Asiatic government, if he was the faithful 
 deputy of a power which could not maintain itself for an 
 hour without trampling upon both. He may and must 
 have offended against the laws of God and nature, if he was 
 the faithful viceroy of an empire wrested in blood from the 
 people to whom God and nature had given it. He may and 
 
308 THE BRIEF 
 
 must have preserved that unjust dominion over timorous 
 and abject nations by a terrifying, overbearing, insulting 
 superiority, if he was the faithful administrator of your 
 Government, which, having no root in consent or affection 
 — no foundation in similarity of interests — no support 
 from any one principle which cements men together in 
 society, could only be upheld by alternate stratagem and 
 force. The unhappy people of India, feeble and effeminate 
 as they are from the softness of their climate, and subdued 
 and broken as they have been by the knavery and strength 
 of civilization, still occasionally start up in all the vigor 
 and intelligence of insulted nature. To be governed at all, 
 they must be governed with a rod of iron; and our empire 
 in the East would, long since, have been lost to Great 
 Britain, if civil skill and military prowess had not united 
 their efforts to support an authority — which Heaven 
 never gave — by means which it never can sanction.^ 
 
 Gentlemen, I think I can observe that you are touched 
 with this way of considering the subject, and I can account 
 for it. I have not been considering it through the cold 
 medium of books, but have been speaking of man and his 
 nature, and of human dominion, from what I have seen of 
 them myself among reluctant nations submitting to our au- 
 thority. I know what they feel, and how such feelings can 
 
 1 Mr. Hastings was unquestionably guilty of nearly all the acts charged 
 upon him by Mr. Burke. Still it was felt by the court, and at last by the 
 public at large, that great allowance ought to be made for him when it 
 was remembered that he completely restored the finances of the country, 
 which he found in the utmost disorder; that he established the British 
 Empire in India on a firm basis, at a time when, under a less energetic 
 government than his own, it would inevitably have fallen altogether; 
 and, in addition to this, he was constantly pressed by the Directors of 
 the East India Company for remittances of money, which could only be 
 extorted by oppression. Although his government was arbitrary, yet it 
 was popular among the natives, being milder and more just than that of 
 their own princes; while he himself was respected for the unusual regard 
 which he paid to native prejudices and customs, and his patronage of 
 literature and the fine arts. — Goodrich. 
 
SPEECH IN BEHALF OF JOHN STOCKDALE 309 
 
 alone be repressed. I have heard them in my youth from 
 a naked savage, in the indignant character of a prince sur- 
 rounded by his subjects, addressing the governor of a Brit- 
 ish colony, holding a bundle of sticks in his hand, as the 
 notes of his unlettered eloquence. "Who is it," said the 
 jealous ruler over the desert, encroached upon by the rest- 
 less foot of English adventure — "who is it that causes this 
 river to rise in the high mountains, and to empty itself into 
 the ocean? Who is it that causes to blow the loud winds of 
 winter, and that calms them again in summer? Who is it 
 that rears up the shade of those lofty forests, and blasts 
 them with the quick lightning at his pleasure? The same 
 Being who gave to you a country on the other side of the 
 waters, and gave ours to us; and by this title we will defend 
 it," said the warrior, throwing down his tomahawk upon 
 the ground, and raising the war-sound of his nation. These 
 are the feelings of subjugated man all round the globe; and, 
 depend upon it, nothing but fear will control where it is 
 vain to look for affection. 
 
 These reflections are the only antidotes to those anath- 
 emas of superhuman eloquence which have lately shaken 
 these walls that surround us, but which it unaccountably 
 falls to my province, whether I will or no, a little to stem the 
 torrent of, by reminding you that you have a mighty sway 
 in Asia, which cannot be maintained by the finer sympa- 
 thies of life, or the practice of its charities and affections. 
 What will they do for you when surrounded by two hundred 
 thousand men with artillery, cavalry, and elephants, call- 
 ing upon you for their dominions which you have robbed 
 them of? Justice may, no doubt, in such a case forbid the 
 levying of a fine to pay a revolting soldiery; a treaty may 
 stand in the way of increasing a tribute to keep up the very 
 existence of the Government; and delicacy for women may 
 forbid all entrance into a Zenana for money, whatever 
 may be the necessity for taking it. All these things must 
 
310 THE BRIEF 
 
 ever be occurring. But, under the pressure of such con- 
 stant diflficulties, so dangerous to national honor, it might 
 be better, perhaps, to think of effectually securing it alto- 
 gether, by recalling our troops and our merchants, and 
 abandoning our Oriental empire. Until this be done, nei- 
 ther religion nor philosophy can be pressed very far into 
 the aid of reformation and punishment. If England, from 
 a lust of ambition and dominion, will insist on maintaining 
 despotic rule over distant and hostile nations, beyond all 
 comparison more numerous and extended than herself, 
 and gives commission to her viceroys to govern them with 
 no other instructions than to preserve them, and to secure 
 permanently their revenues, with what color of consistency 
 or reason can she place herself in the moral chair, and affect 
 to be shocked at the execution of her own orders; adverting 
 to the exact measure of wickedness and injustice necessary 
 to their execution, and complaining only of the excess as 
 the immorality, considering her authority as a dispensation 
 for breaking the commands of God, and the breach of them 
 as only punishable when contrary to the ordinances of man? 
 
 Such a proceeding, gentlemen, begets serious reflection. 
 It would be better, perhaps, for the masters and the serv- 
 ants of all such governments to join in supplication, that 
 the great Author of violated humanity may not confound 
 them together in one common judgment. 
 
 Gentlemen, I find, as I said before, I have not sufficient 
 strength to go on with the remaining parts of the book. I 
 hope, however, that notwithstanding my omissions, you 
 are now completely satisfied that, whatever errors or mis- 
 conceptions may have misled the writer of these pages, the 
 justification of a person whom he believed to be innocent, 
 and whose accusers had themselves appealed to the public, 
 was the single object of his contemplation. If I have suc- 
 ceeded in that object, every purpose which I had in ad- 
 dressing you has been answered. 
 
SPEECH IN BEHALF OF JOHN STOCKDALE 311 
 
 It only now remains to remind you that another consid- 
 eration has been strongly pressed upon you, and, no doubt, 
 will be insisted on in reply. You will be told that the mat- 
 ters which I have been justifying as legal, and even meri- 
 torious, have therefore not been made the subject of 
 complaint; and that, whatever intrinsic merit parts of the 
 book may be supposed or even admitted to possess, such 
 merit can afford no justification to the selected passages, 
 some of which, even with the context, carry the meaning 
 charged by the information, and which are indecent ani- 
 madversions on authority. To this I would answer (still 
 protesting as I do against the application of any one of the 
 innuendoes) that, if you are firmly persuaded of the single- 
 ness and purity of the author's intentions, you are not 
 bound to subject him to infamy, because, in the zealous 
 career of a just and animated composition, he happens to 
 have tripped with his pen into an intemperate expression in 
 one or two instances of a long work. If this severe duty 
 were binding on your consciences, the liberty of the press 
 would be an empty sound, and no man could venture to 
 write on any subject, however pure his purpose, without 
 an attorney at one elbow and a counsel at the other. 
 
 From minds thus subdued by the terrors of punishment, 
 there could issue no works of genius to expand the empire 
 of human reason, nor any masterly compositions on the 
 general nature of government, by the help of which the 
 great commonwealths of mankind have founded their es- 
 tablishments; much less any of those useful applications of 
 them to critical conjunctures, by which, from time to time, 
 our own Constitution, by the exertion of patriot citizens, 
 has been brought back to its standard. Under such terrors, 
 all the great lights of science and civilization must be 
 extinguished; for men cannot communicate their free 
 thoughts to one another with a lash held over their heads. 
 It is the nature of everything that is great and useful, both 
 
312 THE BRIEF 
 
 in the animate and inanimate world, to be wild and irregu- 
 lar, and we must be contented to take them with the alloys 
 which belong to them, or live without them. Genius 
 breaks from the fetters of criticism, but its wanderings are 
 sanctioned by its majesty and wisdom when it advances in 
 its path : subject it to the critic, and you tame it into dull- 
 ness. Mighty rivers break down their banks in the winter, 
 sweeping away to death the flocks which are fattened on the 
 soil that they fertilize in the summer: the few may be saved 
 by embankments from drowning, but the flock must perish 
 for hunger. Tempests occasionally shake our dwellings and 
 dissipate our commerce; but they scourge before them the 
 lazy elements, which without them would stagnate into 
 pestilence.^ In like manner. Liberty herself, the last and 
 best gift of God to his creatures, must be taken just as she 
 is: you might pare her down into bashful regularity, and 
 shape her into a perfect model of severe, scrupulous law, 
 but she would then be Liberty no longer; and you must 
 be content to die under the lash of this inexorable justice 
 which you had exchanged for the banners of Freedom. 
 
 If it be asked where the line to this indulgence and im- 
 punity is to be drawn, the answer is easy. The liberty of 
 the press, on general subjects, comprehends and implies as 
 much strict observance of positive law as is consistent with 
 perfect purity of intention, and equal and useful society. 
 What that latitude is, cannot be promulgated in the ab- 
 
 1 This is one of the finest amplifications in English oratory, beautiful 
 in itself, justified by the importance of the subject which it enforces, and 
 admirably suited to produce the designed impression. The seminal idea 
 was probably suggested by a remark of Burke, whose writings Mr. 
 Erskine incessantly studied: " It is the nature of all greatness not to be exact." 
 We see in this case, how a man of genius may borrow from another, with- 
 out detracting in the least from the freshness and originality with which 
 his ideas are expressed and applied. At the present day, there can be very 
 little of that originality which presents an idea /or the first time. All that 
 can be expected is, that we make it our own, and apply it to new purposes. 
 — Goodrich. 
 
SPEECH IN BEHALF OF JOHN STOCKDALE 313 
 
 stract, but must be judged of in the particular instance, 
 and consequently, upon this occasion, must be judged of 
 by you, without forming any possible precedent for any 
 other case; and where can the judgment be possibly so safe 
 as with the members of that society which alone can suffer, 
 if the writing is calculated to do mischief to the public? 
 You must, therefore, try the book by that criterion, and 
 say whether the publication was premature and offensive, 
 or, in other words, whether the publisher is bound to have 
 suppressed it until the public ear was anticipated and 
 abused, and every avenue to the human heart or under- 
 standing secured and blocked up. I see around me those 
 by whom, by and by, Mr. Hastings will be most ably and 
 eloquently defended; ^ but I am sorry to remind my friends 
 that, but for the right of suspending the public judg- 
 ment concerning him till their season of exertion comes 
 round, the tongues of angels would be insufficient for the 
 task. 
 
 Gentlemen, I hope I have now performed my duty to my 
 client: I sincerely hope that I have; for, cert-ainly, if ever 
 there was a man pulled the other way by his interests and 
 affections — if ever there was a man who should have 
 trembled at the situation in which I have been placed on 
 this occasion, it is myself, who not only love, honor, and 
 respect, but whose future hopes and preferments are 
 linked, from free choice, with those who, from the mistakes 
 of the author, are treated with great severity and injus- 
 tice. These are strong retardments; but I have been urged 
 on to activity by considerations which can never be incon- 
 sistent with honorable attachments, either in the political 
 or social world — the love of justice and of liberty, and a 
 zeal for the Constitution of my country, which is the inher- 
 itance of our posterity, of the public, and of the world. 
 
 1 Mr. Law (afterward Lord EUenborough), Mr. Plumer, and Mr. 
 Dallas. — Goodrich. 
 
314 THE BRIEF 
 
 These are the motives which have animated me in defense 
 of this person, who is an entire stranger to me — whose 
 shop I never go to — and the author of whose pubhcation, 
 as well as Mr. Hastings, who is the object of it, I never 
 spoke to in my life. 
 
 One word more, gentlemen, and I have done. Every 
 human tribunal ought to take care to administer justice, 
 as we look hereafter to have justice administered to our- 
 selves. Upon the principle on which the Attorney-General 
 prays sentence upon my client — God have mercy upon 
 us! Instead of standing before Him in judgment with the 
 hopes and consolations of Christians, we must call upon the 
 mountains to cover us; for which of us can present, for 
 omniscient examination, a pure, unspotted, and faultless 
 course? But I humbly expect that the benevolent Author 
 of our being will judge us as I have been pointing out for 
 your example. Holding up the great volume of our lives 
 in his hands, and regarding the general scope of them; if 
 He discovers benevolence, charity, and good-will to man 
 beating in the heart, where He alone can look; if He finds 
 that our conduct, though often forced out of the path by 
 our infirmities, has been in general well directed; his all- 
 searching eye will assuredly never pursue us into those little 
 corners of our lives, much less will his justice select them 
 for punishment, without the general context of our exist- 
 ence, by which faults may be sometimes found to have 
 grown out of virtues, and very many of our heaviest of- 
 fenses to have been grafted by human imperfection upon 
 the best and kindest of our affections. No, gentlemen, be- 
 lieve me, this is not the course of divine justice, or there is 
 no truth in the Gospels of Heaven. If the general tenor of 
 a man's conduct be such as I have represented it, he may 
 walk through the shadow of death, with all his faults about 
 him, with as much cheerfulness as in the common paths of 
 life; because he knows that, instead of a stern accuser to 
 
SPEECH IN BEHALF OF JOHN STOCKDALE 315 
 
 expose before the Author of his nature those frail pas- 
 sages which, Uke the scored matter in the book before you, 
 checker the volume of the brightest and best-spent life, his 
 mercy will obscure them from the eye of his purity, and 
 our repentance blot them out forever. 
 
 All this would, I admit, be perfectly foreign and irrele- 
 vant, if you were sitting here in a case of property between 
 man and man, where a strict rule of law must operate, or 
 there would be an end of civil life and society. It would 
 be equally foreign, and still more irrelevant, if applied to 
 those shameful attacks upon private reputation which are 
 the bane and disgrace of the press; by which whole families 
 have been rendered unhappy during life, by aspersions, 
 cruel, scandalous, and unjust. Let such libelers remember 
 that no one of my principles of defense can, at any time or 
 upon any occasion, ever apply to shield them from punish- 
 ment; because such conduct is not only an infringement of 
 the rights of men, as they are defined by strict law, but is 
 absolutely incompatible with honor, honesty, or mistaken 
 good intention. On such men let the Attorney-General 
 bring forth all the artillery of his office, and the thanks and 
 blessings of the whole public will follow him. But this is 
 a totally different case. Whatever private calumny may 
 mark this work, it has not been made the subject of com- 
 plaint, and we have therefore nothing to do with that, nor 
 any right to consider it. We are trying whether the public 
 could have been considered as offended and endangered if 
 Mr. Hastings himself, in whose place the author and pub- 
 lisher have a right to put themselves, had, under all the 
 circumstances which have been considered, composed and 
 published the volume under examination. That question 
 cannot, in common sense, be anything resembling a ques- 
 tion of LAW, but is a pure question of fact, to be decided 
 on the principles which I have humbly recommended. I, 
 therefore, ask of the court that the book itself may now be 
 
316 THE BRIEF 
 
 delivered to you. Read it with attention, and, as you shall 
 find it, pronounce your verdict. 
 
 This trial took place before the passing of Mr. Fox's Libel Bill; 
 and Lord Kenyon charged the jury that they were not to consider 
 whether the pamphlet was libelous, but simply whether it had 
 been published by the defendant. Under these circumstances, 
 they spent two hours in deliberation, but finally broke through 
 the instructions of the court, and found the defendant not 
 GUILTY, thus anticipating the rights soon after secured to juries 
 by an act of Parliament. 
 
THE UTILITY OF PRAYER 317 
 
 7. THE UTILITY OF PRAYER 
 
 A Discourse by the Reverend Charles Reynolds BrovMy D.D.y 
 Dean of the Yale Divinity School ^ 
 
 This discourse is presented as an admirable example of orderly 
 and well-analyzed homiletic writing. 
 
 The moment we believe in God we are face to face with 
 a strong presumption in favor of the utility of prayer. If 
 He is the Almighty, He can hear. If He is a moral being. 
 He will make reply. This argument was suggested by the 
 psalmist of old, *'He that planted the ear, shall he not 
 hear? He that formed the eye, shall he not see? " The man 
 who believes that God is and that He is a God of character, 
 by that faith affirms his further confidence that "He is a 
 rewarder of them that diligently seek Him." 
 
 Prayer, reduced to its simplest terms, is the natural, ajffec- 
 tionate intercourse between a father and his children. The 
 Gospels assert that 
 
 these two mysterious beings, man and God, have such a kinship 
 between them that their relationship to each other can in no other 
 way be so well named as by the terms "father" and "child." 
 This conception makes room for that infinite distance between 
 God and man which so profoundly impresses all whose minds 
 dwell upon the subject. Between the man of power, knowledge 
 and wise range of interest, and the infant whose face is breaking 
 into its first intelligent smile, the distance is well-nigh immeasur- 
 able, though it in no way destroys the genuineness of the kinship 
 between them. Toward the Infinite Father our path is to be trod- 
 den in the same way the child treads the path toward equality 
 with the human parent. 2 
 
 The method of prayer is not found in the action of crim- 
 inals entreating a judge for mercy, or of courtiers beseech- 
 ing their king for favors, or of adepts seeking to manipulate 
 
 1 From The Main Points ; by the kind permission of The Pilgrim Press. 
 
 2 John P. Coyle, The Imperial Christ, p. 74. 
 
818 THE BRIEF 
 
 certain mysterious forces in the world for personal ends. It 
 is found in the form and the spirit of family life. "When 
 ye pray, say, ' Our Father.' " Prayer is the act of a child 
 entering into companionship with his Father. Prayer is 
 thus natural and rational. The man who never speaks to 
 his Father is morbid ! If you, with all your imperfections, 
 love to have your children come to you; if they are bene- 
 fited by coming; if you give them bread and fish, instruc- 
 tion and help, affection and companionship, when they 
 come, how much more will your heavenly Father give good 
 things to them that ask Him! 
 
 The definite promises of Scripture encourage the habit 
 of prayer. The Bible speaks of the moral needs and priv- 
 ileges of men with accuracy and authority. Its words about 
 prayer are clear and confident. It never seems to be feeling 
 its way. It walks with firm tread, as in the light of ascer- 
 tained facts. "Men ought always to pray." "Ask, and ye 
 shall receive." "Seek, and ye shall find." "Ejiock," — 
 if you desire to advance where the way seems closed, — 
 "and it shall be opened unto you." The utility of prayer 
 is steadily assumed. 
 
 Two familiar passages illustrate what perseverance will 
 accomplish in the face of unfavorable conditions. A selfish 
 man was in bed at midnight, angrily unwilhng to be dis- 
 turbed, but because his neighbor persisted in knocking, the 
 crabbed fellow arose and gave him bread to set before those 
 guests who had overtaken him with an empty larder. An 
 unjust judge, who neither feared God nor man, was so 
 moved by the persistence of a poor widow — a type of help- 
 lessness in a corrupt court of law — that simply through 
 dread of being wearied by her continual coming, he gave 
 her justice. These are arguments e contrario. If persever- 
 ance in the face of such adverse conditions gains its end, 
 how much more will persevering prayer secure its object 
 when directed to the benevolent Father! These are sam- 
 
THE UTILITY OF PRAYER 319 
 
 pies of the many confident assurances the Scriptures offer 
 us regarding the eflficacy of honest prayer. 
 
 A further encouragement to our faith in the efficacy of 
 prayer arises from the example of Jesus. Even those who 
 refuse assent to the claim that he was the Son of God 
 regard him as the best man that ever lived — in fact, a 
 perfect man. It is significant that this perfect man was 
 preeminently a man of prayer. Humanity at its best prays. 
 The Son of Man, whose moral achievements have never 
 been surpassed, spent whole nights in prayer. His habit 
 of prayer was so manifestly helpful that his disciples came 
 to him and said, "Lord, teach us to pray." We have no 
 record of their saying, "Lord, teach us to heal," or, "Teach 
 us to preach." They saw that his power to heal, and to 
 speak as never man spake, sprang from his sense of vital 
 fellowship with the Father, sustained by prayer. They 
 asked, therefore, that they might be taught to pray. 
 
 Jesus left one prayer so beautiful, so comprehensive, so 
 satisfying to the human heart, that it is being repeated this 
 very day in more than three hundred languages by prayer- 
 ful men. When the representatives of all religions met in a 
 parliament at the World's Fair in Chicago, the "Lord's 
 Prayer" was by universal consent adopted as the form of 
 petition for the opening of the sessions. Jews and Gentiles, 
 Cretes and Arabians, Buddhists and Christians, Moham- 
 medans and Hindus, all spoke to the Father through those 
 simple words, as in a language to which they were born. 
 
 Jesus, the author of this universal prayer, made the 
 most confident promises as to the efficacy of prayer. He 
 saw life whole, and with clear-eyed intelligence he set his 
 seal upon the noble utility of prayer. The whole life of this 
 perfect man was bathed in prayer. He prayed even when 
 his enemies were unjustly putting him to death. The dis- 
 ciple cannot do better than be as his Lord. When men 
 grow so wise that they do not pray, scoffing at the idea of 
 
320 THE BRIEF 
 
 prayer accomplishing anything, we may well compare their 
 moral intelligence and spiritual effectiveness with that of 
 Jesus; and then recall the fact that his confidence in prayer 
 never wavered. 
 
 Another strong presumption in favor of the value of 
 prayer arises when we turn to the long, broad lines of hu- 
 man experience. The scientific way of reaching the truth 
 is not to sit down and reason out in advance what ought to 
 be the fact, what is possible or probable in this great world 
 of which we know so little; the scientific method is to go and 
 see. Human beings have always had the habit of prayer. 
 There have been cities without walls, without schools, with- 
 out markets, without books, without many things that we 
 ordinarily associate with city life, but never a city without 
 its places of prayer. Prayer is the persistent, incurable 
 habit of the race. 
 
 The fact that it is thus widespread and has endured 
 through all the centuries indicates that it has utility. When 
 we find a fin on a fish, a wing on a bird, an "instinct" in an 
 animal, the fact that it is there indicates that it is useful — 
 it would not otherwise have been retained. Useless organs 
 disappear or become rudimentary. Unless prayer sustains 
 some vital relation to man's well-being it would not have 
 thus endured. The fact that the race always has prayed 
 and the fact that a greater volume of intelligent prayer is 
 being offered in this twentieth century than ever before 
 raise a strong presumption that such an exercise of one's 
 powers is rational and useful. 
 
 In the face of this persistent habit of mankind, it is in- 
 structive to recall the testimony of a distinguished evolu- 
 tionist that in Nature we have found it to be true that 
 
 everywhere the internal adjustment has been brought about so as 
 to harmonize with some actually existing external fact. The eye 
 was developed in response to the outward existence of radiant 
 light, the ear in response to the outward existence of acoustic 
 
THE UTILITY OF PRAYER 321 
 
 vibrations, the mother's love came in response to the infant's 
 needs. If the relation established in the morning twilight of man's 
 existence between the human soul and a world invisible and im- 
 material is a relation of which only the subjective term is real and 
 the objective term is non-existent, then, I say, it is something 
 utterly without precedent in the whole history of creation. 
 
 If the capacity of man for fellowship with God through 
 prayer were real only at our end of the line and unreal at 
 the other, then it is an utter break in the whole method dis- 
 covered in the ascertained uniformities of Nature. 
 
 The lesson of evolution, therefore, is that through all these weary 
 ages the human soul has not been cherishing in religion a delusive 
 phantom, but, in spite of seemingly endless groping and stumbling, 
 it has been rising to the recognition of its essential kinship with 
 the ever-living God.^ 
 
 And what has been the broadly ascertained result of 
 this widespread and long-continued effort to realize kinship 
 with God through prayer? The cumulative answer comes 
 back from multitudes of praying men — hearts have been 
 renewed, affections purified, wills strengthened, aspirations 
 lifted; great and gracious answers of peace have come; 
 added security and confidence have been enjoyed. We 
 need not turn to those exceptional and surprising "answers 
 to prayer" sometimes collected into books of anecdote. 
 Curious coincidences have sometimes been urged as foun- 
 dation-stones for confidences in the efficacy of prayer. For- 
 tunate occurrences have been overworked in the supposed 
 interests of a conquering faith. In this consideration I 
 would ground my faith in prayer rather upon the broad and 
 ordinary lines, where there are uninterrupted answers com- 
 ing back to men as they pray. The spiritual results of the 
 habit of honest prayer are so well ascertained as to lend 
 strong aid in lifting this exercise into the place of dignity 
 and the region of high confidence where it belongs. 
 1 John Fiske, Through Nature to God, pp. 189, 191. 
 
322 THE BRIEF 
 
 These four presumptions, then, taken from the natural 
 implications of our beHef in God, from the confident prom- 
 ises of those writings which contain Supreme Court deci- 
 sions and form the common law of spiritual life, from the 
 habit and the teaching of Jesus, and from long lines of 
 human experience, must have weight in determining any 
 one's attitude toward prayer. 
 
 Two objections to prayer on rational grounds are made, 
 — one from a scientific and the other from a philosophical 
 point of view. The claim is made that an answer to prayer 
 would involve the interruption of the established order; 
 it would mean, therefore, a violation of law. In the pres- 
 ence of the unbending constancy of the physical system 
 which surrounds us, impressing the average man with its 
 moral indifference, prayer seems like an irrational proceed- 
 ing. It appears to some minds as the act of a puny being 
 urging upon the Omnipotent that the great through traflfic 
 of the world be side-tracked in order to give his local train 
 the right of way. 
 
 The other objection is to the effect that, if God is wise and 
 good. He will do what is best for us, and for every one, 
 without our asking — indeed, to ask Him for anything 
 implies a certain solicitude as to his appropriate action. 
 "Your heavenly Father knoweth that ye have need of all 
 these things." Then why should we ask? It is an imperti- 
 nence in that it calls upon Him to change his line of action 
 in obedience to our suggestion. All the lesser questions 
 which arise are really comprehended within these two fun- 
 damental ones. 
 
 In regard to the first, that an answer to prayer involves 
 the violation of law, we sometimes frighten ourselves un- 
 necessarily by writing the word "Law '* with a capital let- 
 ter, and then imagining that it is "a kind of second-hand 
 deity of itself," never to be interfered with by any one in 
 heaven or on earth. All this is purely verbal. "Natural 
 
THE UTILITY OF PRAYER 323 
 
 law'* is simply a phrase to indicate the regular, orderly 
 habits of the Creator who is above all and in all things. We 
 have noted some of his cosmic habits as being regular and 
 we call them "laws." But God is not bound by them. He 
 has not tied his own hands by certain of his own habits. 
 On the whole, He apparently deems it best to observe them 
 regularly, that his creatures may depend upon his activity 
 in certain matters — the rising of the sun, the return of the 
 seasons, the growth of seed, the bodily conditions of health 
 and disease — with solid certainty. These habits are wise 
 and good or He would not have adopted them. But to 
 fancy that He will not and cannot vary his action; to im- 
 agine, for instance, that He could not reinforce and quicken 
 that energy which we lightly call "the healing process of 
 nature" in the case of the sick; to deny his power to help by 
 some unusual movement of his silent energy for the relief 
 of one of his children in an emergency, would be to make 
 Him less than God. 
 
 Praying people are sometimes unnecessarily frightened 
 by a pretentious phrase — "the uniformity of nature." 
 There is such a thing, but no one knows enough to define 
 it. No one would undertake to name all "the laws of na- 
 ture." The interrelation of spiritual forces with physical 
 forces is but dimly understood. We are feeling our way 
 toward an understanding of the total "uniformity of na- 
 ture " which includes all such interaction, but that perfect 
 knowledge is at present too high for us; we cannot attain 
 imto it. It is therefore dogmatic assumption to claim that 
 the few things we have learned about "natural law" en- 
 tirely block the way and make it impossible for God to 
 answer the prayers of his children. 
 
 These scientific laws, which are often held up as bogies to 
 frighten the children of the Father out of their confidence 
 in Him, are simply the best we know thus far about some 
 manifestations of an Eternal Energy. The truly scientific 
 
324 THE BRIEF 
 
 man does not undertake to say what may or may not be 
 possible in realms where his knowledge is confessedly in- 
 complete. He does not deny the possibility of miracles, or 
 the possibility of answers to prayer — it is purely a matter 
 of evidence as to what does actually occur. 
 
 This must be so in the nature of the case. We have been 
 surprised so many times that possibly we may be surprised 
 again. There are more things in this world than men have 
 dreamed of, and more things wrought by prayer than hasty 
 philosophies allow. Men were saying fifty years ago that 
 it was scientifically impossible to run a heavy street-car 
 through the streets, loaded with a hundred people, heated, 
 lighted, and moved by a current of electricity from a single 
 wire. They said it was scientifically impossible to talk from 
 New York to Chicago and have the familiar tones of a 
 friend's voice recognized, or to transmit by electricity a 
 signature preserving its well-known individuality. They 
 said it was scientifically impossible to telegraph with ac- 
 curacy for hundreds of miles across the open sea without 
 wires. They said that the present phenomena of hypno- 
 tism and healing by suggestion, recognized by scientific 
 men as beyond a peradventure, were scientifically impossi- 
 ble. In all these and in many other cases they were mis- 
 taken in their presuppositions. We are constantly learning 
 more about the subtle, invisible forces in this world. We 
 are not prepared offhand to decide upon what is or what is 
 not impossible, or to pass upon the claims that many of the 
 earth's wisest and best men have made regarding prayer, 
 without painstaking investigation. 
 
 When I begin to pray for my own physical health, for the 
 recovery of some sick friend, for success in my undertak- 
 ings, for moral peace and strength, or for any legitimate 
 object, I set in motion new forces. They begin to act not in 
 violation of law, but in accordance with a higher law; they 
 introduce a new element to be reckoned with. The man 
 
THE UTILITY OF PRAYER 325 
 
 drawing water out of a well, where the force of gravitation 
 would cause the water to remain, is not violating a univer- 
 sal law, he is bringing to bear another force which alters 
 what would have been the natural position of the water. 
 Human energy and volition are constantly playing into the 
 great natural order, realizing purposes which would not 
 have been realized if the system had been left to itself. The 
 man who prays puts in operation a kind of energy, invisible 
 as electricity or as the atmospheric waves which make 
 possible wireless telegraphy, or as the force that acts in 
 the influence of thought upon digestion, but just as real. 
 Prayer is the act of a man bringing up his need by a moral 
 act and linking it with the offered help of God. This brings 
 to bear upon the situation a new force. 
 
 When we thus stand amazed, on the one hand, at the 
 results accomplished by certain invisible forces with which 
 we are slowly becoming acquainted, and when we turn on 
 the other hand to the confident words of a Master in the 
 kingdom of the spirit, we are not disturbed in our faith by 
 these would-be scientific objections as to the efficacy of 
 prayer. 
 
 A man standing in his noblest attitude before God, turn- 
 ing the whole of his inner life Godward, bending the full 
 energy of will and affection toward the attainment of some 
 holy end, is wielding a force not easily estimated. As Presi- 
 dent Eliot of Harvard said, "Prayer is the transcendant 
 effort of human intelligence." Jesus did not use scientific 
 language; he used popular language, but he made this point 
 clear — for moral ends, for the purpose of rich spiritual 
 development, God has within his keeping certain great aids 
 which are only obtainable by that noble exercise of the 
 highest faculties which we call prayer. 
 
 We are in no wise disturbed by the fact that we have not 
 reduced the possibilities of this prayer force, acting within 
 the larger uniformities of God, to an exact science. We 
 
326 THE BRIEF 
 
 have not reduced to an exact science the influence of a 
 mother's love upon her children, or the effect of a good 
 name upon one's prospect of success, or the physical bene- 
 fits of a cheerful habit of mind. We have not reduced to 
 an exact science the forces at work in a wheat-field — they 
 are too intricate for our present knowledge. Perfect intelli- 
 gence would know how many grains in each bushel would 
 sprout and grow, but no man can tell. Perfect intelligence 
 could indicate why certain prayers are answered and why 
 some are not, but such complete understanding of all the 
 forces to be considered is not within our reach. But even 
 though in all these fields our knowledge stops far short of 
 completeness, enough is known to encourage the effort — 
 mothers love their children; a right-minded man guards his 
 good name; sensible people promote health by good cheer. 
 Farmers sow in the confidence that they will reap; and 
 thoughtful people keep on praying, assured by the promises 
 of Christ and by an ever-increasing volume of religious 
 experience, that prayer works its own beneficent results. 
 
 The other objection raises the question as to why a wise 
 and good God should withhold action until we ask. How 
 can we indeed ask Him to vary what must already have 
 been perfect action ! 
 
 Such a priori objections might be carried into other fields 
 as well. Why does a good God withhold from his children 
 a wheat harvest until they have ploughed and sowed and 
 reaped ? Why does God hide away treasures of gold in the 
 hills, locking it up in quartz, scattering its grains through 
 the clay and sand, covering it with mountains? He does it 
 because toil is good for men. It would have been a doubt- 
 ful kindness to lay these values in heaps ready to man's 
 hand. All things have been done and are being done now 
 for the moral education of the race. In all that God does, 
 whether in the renewal of the spiritual life, or in healing 
 the body, or in ordering the seasons, He has in mind the 
 
THE UTILITY OF PRAYER 327 
 
 moral improvement of his people. Benefits are conditioned 
 upon appropriate effort because of the moral ends which 
 are thereby served. Blessings wait upon our asking, be- 
 cause men nowhere receive more effective moral education 
 than in waiting upon God in prayer. The soul never stands 
 in such dignity of privilege, never asserts its richest pre- 
 rogative so fully as when, standing face to face with its 
 Maker, it talks with Him of the things that belong to its 
 peace. 
 
 This is a strange objection to prayer! Why does a wise 
 and good God, knowing our needs, require us to come and 
 ask Him before He grants his help ? That is to say, why 
 does He not proceed to do what is best, leaving us free to 
 spend our time with some one else, instead of spending it 
 with Him.? 
 
 The objection vanishes the moment we remember that 
 all things are ordered with reference to strengthening the 
 moral bond between the Father and his children. If any 
 one of you is a father, why do you love to have your chil- 
 dren come to you, talk over their affairs with you, ask you 
 for what they want, sometimes wisely and sometimes un- 
 wisely? You know that their coming and the consequent 
 reinforcement of the bond between you and them is not 
 only a joy to you, it is for the lasting advantage of the chil- 
 dren. Thus a wise and good God, for the same sacred ends, 
 withholds certain blessings until his children obediently 
 and lovingly come to Him in prayer. 
 
 It is an unspeakable loss for children never to have 
 known the companionship of the earthly father and mother. 
 It is a greater loss for a man never to know, through heart 
 to heart commxmion, the companionship of a heavenly 
 Father. Therefore, because of the incompleteness of our 
 moral nurture without this experience, God has made cer- 
 tain benefits, temporal as well as spiritual, conditional upon 
 our coming to Him in prayer. He has ordained this method 
 
328 THE BRIEF 
 
 of securing blessings untold, that we may be attracted and 
 encouraged to know Him whom to know is life eternal. 
 
 Prayer will bear the scientific and the philosophic test, 
 and its realities can be stated in the language of the schools. 
 Yet the simple, familiar language Jesus used puts it more 
 clearly and effectively. As a boy you did not stand outside 
 your father's door when you were conscious of some need 
 which he could supply. You did not tarry, reasoning, in 
 metaphysical fashion, that if your father were wise and 
 good he would do what was best; or that any suggested 
 deviation would be a violation of the family order which 
 must be right since he established it. You went in and 
 asked. It was better for you to ask, even though your re- 
 quests lacked wisdom. The eight-year-old boy who asked 
 for a shotgun did not get it, but he received something 
 better than a shotgun through that hour of companionship 
 with his father. Except ye become as little children in your 
 method of procedure, ye shall in no wise enter into the 
 deeper meaning of prayer. 
 
 Practical men have sometimes turned away from prayer 
 as a thing well enough for women and children, but having 
 no attraction for clear-headed men of affairs. But they in 
 the stress of this workaday world, feel the need of some- 
 thing to lift their lives to a higher plane of thought and ac- 
 tion. They need to know Him whom the wisest of men 
 called "the Father." If they would go in, not troubling 
 themselves about the particular range of their requests, 
 not embarrassing themselves by scientific and metaphysical 
 questions that once seemed to block the way, but becoming 
 as little children speaking to their father, the philosophy 
 of prayer would be cleared of its difficulties by blessed per- 
 sonal experience. 
 
 Two things ought ever to be borne in mind: the chief 
 object of prayer is not to get something. The claim has 
 been made that if we have faith we can get anything wc 
 
THE UTILITY OF PRAYER 329 
 
 want. Jesus had faith. He prayed, "Let this cup pass from 
 me.'* It did not pass. He drank it next day upon the cross. 
 But he continued in prayer until he could say, " If I must 
 drink it, not my will, but thine, be done." The purpose of 
 prayer is not to enable a man to stand before God and say, 
 "Not as thou wilt, but as I will." Its deeper purpose is to 
 bring him into that harmony with God, where he will say, 
 "Thy will be done." 
 
 That of itself is a mighty answer. What better thing 
 could come than that he should be made able to say to the 
 Perfect One, "Thy will be done"? This would not mean 
 mere passive acquiescence in the inevitable. It would imply 
 conscious self-devotement to the will of God. Jesus prayed 
 until he could say, "Thy will be done." He then added 
 "Rise, let us be going," as he went forth to do the Father's 
 will. The prayer that brings us into voluntary harmony 
 with the divine purpose has in that very fact achieved a 
 gracious answer. 
 
 We are not intent upon having our own way in every 
 situation, nor do we suppose that such a result would be for 
 our highest good. God has not resigned the management 
 of the world into the hands of his fumbling children, 
 whether they stand or kneel. It would be a strange family 
 where the will of the children ruled the home. Many a 
 prayer fails to bring the specific thing sought. "The 
 prayer of faith shall save the sick," yet the writer knew 
 there would come a last sickness when each would die, even 
 though prayer for his recovery might be offered. "The 
 effectual fervent prayer of a righteous man availeth much** 
 — much, but not everything which imperfect knowledge 
 might ask. 
 
 The universe is not a democracy where the people rule, 
 even though their wishes be expressed in prayer. It is a 
 kingdom where God rules in a fatherly way over the lives 
 of his growing but immature children. It would be a calam- 
 
330 THE BRIEF 
 
 ity if every ignorant prayer were answered; if the world 
 were wholly managed by our wishes rather than by his 
 higher wisdom. The chief purpose of prayer throughout is 
 not that of getting our will done, but the enjoyment of that 
 richer privilege of being with the Father, and of being 
 brought into active harmony with his holy will. 
 
 Jesus looked ahead to the time when the clamorous, in- 
 sistent type of prayer, intent upon its own ends, would 
 pass. He reminded us that men are not heard for their 
 much speaking. He said, "In that day ye shall ask me 
 nothing." The petitionary element would be overshad- 
 owed by the sense of holy companionship. When you are 
 praying you are in the highest company possible. The fact 
 that you are there in conscious fellowship with the heav- 
 enly Father is a rich reward for your ^ct. "Hours are 
 well spent when they are spent with Him." 
 
 When you fail of obtaining some specific request it does 
 not destroy your faith in prayer, nor incline you to cease. 
 The eight-year-old boy who failed of the shotgun did not 
 stop associating with his father. The parent who in plead- 
 ing for a child's life looked up defiantly, silently vowing 
 that if the child died she would never pray again, thought 
 better of it; she saw that such an attitude was not in the 
 spirit of prayer. She gratefully recalled the fact that a 
 higher wisdom controls all things, and that, whatever the 
 issue, she enjoyed an unspeakable advantage in that she 
 was brought by her prayer into closer fellowship with the 
 Father. 
 
 The other consideration is that prayer is not a mere in- 
 tellectual exercise or an effort of the will; prayer is ethical 
 and must be the act of the entire nature. It is the "effec- 
 tual fervent prayer" of a righteous man that "availeth 
 much." The assurance is given to "the rightened man who 
 is in line with the laws under which he makes his experi- 
 ments." 
 
THE UTILITY OF PRAYER 331 
 
 "When ye pray, say, * Our Father.' " We ask as his chil- 
 dren. We make our requests with fihal freedom and con- 
 fidence, but they proceed from a fihal nature. We stand in 
 reverent, obedient trust before Him in uttering even the 
 first two words of genuine prayer. We must find our places 
 in his house, at his table, in his service, as obedient children, 
 before the total nature can look up and say, "Our Father.'* 
 Even the sinful man, in order to pray for his own forgive- 
 ness, must come in penitence, cherishing that new purpose 
 which enables him to say, "Father, forgive." 
 
 Jesus added further, "If ye shall ask anything in my 
 name, I will do it." His name was to be used, not as a for- 
 mal endorsement, or a graceful conclusion of the request. 
 "The thought is not that of using the name of Jesus as a 
 password or a talisman, but of entering into his person and 
 appropriating his will, so that when we pray it shall be as 
 though Jesus himself stood in God's presence and made 
 intercession." ^ To pray in the name of Jesus is to pray in 
 his spirit, and to pray for the things he would pray for. 
 
 And what did Jesus pray for in his recorded prayers? 
 Not for wealth, ease, fame, personal pleasure, or even suc- 
 cess, except along moral lines. The Lord's Prayer contains 
 but one petition for material blessing, and that modestly 
 limits itself to asking one day's bread for immediate need. 
 The other five petitions are for the hallowing of God's 
 name, for the coming of his kingdom, for the doing of his 
 will on earth, for forgiveness, and for deliverance from evil. 
 This furnishes us what might be called the "norm" of 
 appropriate peitition. The model prayer moves chiefly in 
 the realm of moral things, and all prayer offered in the spirit 
 of Christ will lay the emphasis there. 
 
 We have Scriptural warrant for praying in regard to in- 
 terests other than those directly spiritual, but always with 
 an eye to the bearing of those benefits on the coming of his 
 * A. J. Gordon, The Ministry of the Spirit, p. 147. 
 
332 THE BRIEF 
 
 kingdom in our hearts and in the world. The material ad- 
 vantages sought are subordinate to the spiritual benefits 
 which stand as the supreme ends to be gained in prayer. 
 Pray for health, for intelligence, for opportunities, for the 
 success of legitimate plans, but always that in and through 
 these you may the more perfectly glorify God as a useful 
 servant of his holy will! To pray with this subordination of 
 private interest to the larger demands of the coming king- 
 dom is to pray in the name of Jesus Christ. This indicates 
 that prayer must be ethical, and that it can only be effec- 
 tively offered by those who are bringing their lives by per- 
 sonal consecration into right relations with the King of the 
 kingdom. When it is thus offered, the hand of the petitioner 
 is knocking at a door which opens on the treasure-house of 
 the Unseen — and he may do it in the confident assurance 
 that "to him that knocketh, it shall be opened." 
 
UNIVERSITY OF CALIFORNIA LIBRARY 
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