Chapter XVIII: Appendix: Impressment (17)

Mr. Adams remained in Congress from its first meeting till November, 1777, when he was appointed Minister to France. He proceeded on that service in the February following, embarking in the frigate Boston, from the shore of his native town, at the foot of Mount Wollaston. The year following, he was appointed commissioner to treat of peace with England. Returning to the United States, he was a delegate from Braintree in the Convention for framing the Constitution of this Commonwealth, in 1780.[10] At the latter end of the same year, he again went abroad in the diplomatic service of the country, and was employed at various courts, and occupied with various negotiations, until 1788. The particulars of these interesting and important services this occasion does not allow time to relate. In 1782 he concluded our first treaty with Holland. His negotiations with that republic, his efforts to persuade the States-General to recognize our independence, his incessant and indefatigable exertions to represent the American cause favorably on the Continent, and to counteract the designs of its enemies, open and secret, and his successful undertaking to obtain loans on the credit of a nation yet new and unknown, are among his most arduous, most useful, most honorable services. It was his fortune to bear a part in the negotiation for peace with England, and in something more than six years from the Declaration which he had so strenuously supported, he had the satisfaction of seeing the minister plenipotentiary of the crown subscribe his name to the instrument which declared that his "Britannic Majesty acknowledged the United States to be free, sovereign, and independent." In these important transactions, Mr. Adams's conduct received the marked approbation of Congress and of the country.

While abroad, in 1787, he published his "Defence of the American Constitutions"; a work of merit and ability, though composed with haste, on the spur of a particular occasion, in the midst of other occupations, and under circumstances not admitting of careful revision. The immediate object of the work was to counteract the weight of opinions advanced by several popular European writers of that day, M. Turgot, the Abbé de Mably, and Dr. Price, at a time when the people of the United States were employed in forming and revising their systems of government.

Returning to the United States in 1788, he found the new government about going into operation, and was himself elected the first Vice-President, a situation which he filled with reputation for eight years, at the expiration of which he was raised to the Presidential chair, as immediate successor to the immortal Washington. In this high station he was succeeded by Mr. Jefferson, after a memorable controversy between their respective friends, in 1801; and from that period his manner of life has been known to all who hear me. He has lived, for five-and-twenty years, with every enjoyment that could render old age happy. Not inattentive to the occurrences of the times, political cares have yet not materially, or for any long time, disturbed his repose. In 1820 he acted as Elector of President and Vice-President, and in the same year we saw him, then at the age of eighty-five, a member of the Convention of this Commonwealth called to revise the Constitution. Forty years before, he had been one of those who formed that Constitution; and he had now the pleasure of witnessing that there was little which the people desired to change.[11] Possessing all his faculties to the end of his long life, with an unabated love of reading and contemplation, in the centre of interesting circles of friendship and affection, he was blessed in his retirement with whatever of repose and felicity the condition of man allows. He had, also, other enjoyments. He saw around him that prosperity and general happiness which had been the object of his public cares and labors. No man ever beheld more clearly, and for a longer time, the great and beneficial effects of the services rendered by himself to his country. That liberty which he so early defended, that independence of which he was so able an advocate and supporter, he saw, we trust, firmly and securely established. The population of the country thickened around him faster, and extended wider, than his own sanguine predictions had anticipated; and the wealth, respectability, and power of the nation sprang up to a magnitude which it is quite impossible he could have expected to witness in his day. He lived also to behold those principles of civil freedom which had been developed, established, and practically applied in America, attract attention, command respect, and awaken imitation, in other regions of the globe; and well might, and well did, he exclaim, "Where will the consequences of the American Revolution end?"

If any thing yet remain to fill this cup of happiness, let it be added, that he lived to see a great and intelligent people bestow the highest honor in their gift where he had bestowed his own kindest parental affections and lodged his fondest hopes. Thus honored in life, thus happy at death, he saw the JUBILEE, and he died; and with the last prayers which trembled on his lips was the fervent supplication for his country, "Independence for ever!"[12]

Mr. Jefferson, having been occupied in the years 1778 and 1779 in the important service of revising the laws of Virginia, was elected Governor of that State, as successor to Patrick Henry, and held the situation when the State was invaded by the British arms. In 1781 he published his Notes on Virginia, a work which attracted attention in Europe as well as America, dispelled many misconceptions respecting this continent, and gave its author a place among men distinguished for science. In November, 1783, he again took his seat in the Continental Congress, but in the May following was appointed Minister Plenipotentiary, to act abroad, in the negotiation of commercial treaties, with Dr. Franklin and Mr. Adams. He proceeded to France, in execution of this mission, embarking at Boston; and that was the only occasion on which he ever visited this place. In 1785 he was appointed Minister to France, the duties of which situation he continued to perform until October, 1789, when he obtained leave to retire, just on the eve of that tremendous revolution which has so much agitated the world in our times. Mr. Jefferson's discharge of his diplomatic duties was marked by great ability, diligence, and patriotism; and while he resided at Paris, in one of the most interesting periods, his character for intelligence, his love of knowledge and of the society of learned men, distinguished him in the highest circles of the French capital. No court in Europe had at that time in Paris a representative commanding or enjoying higher regard, for political knowledge or for general attainments, than the minister of this then infant republic. Immediately on his return to his native country, at the organization of the government under the present Constitution, his talents and experience recommended him to President Washington for the first office in his gift. He was placed at the head of the Department of State. In this situation, also, he manifested conspicuous ability. His correspondence with the ministers of other powers residing here, and his instructions to our own diplomatic agents abroad, are among our ablest state papers. A thorough knowledge of the laws and usages of nations, perfect acquaintance with the immediate subject before him, great felicity, and still greater facility, in writing, show themselves in whatever effort his official situation called on him to make. It is believed by competent judges, that the diplomatic intercourse of the government of the United States, from the first meeting of the Continental Congress in 1774 to the present time, taken together, would not suffer, in respect to the talent with which it has been conducted, by comparison with any thing which other and older governments can produce; and to the attainment of this respectability and distinction Mr. Jefferson has contributed his full part.

On the retirement of General Washington from the Presidency, and the election of Mr. Adams to that office in 1797, he was chosen Vice-President. While presiding in this capacity over the deliberations of the Senate, he compiled and published a Manual of Parliamentary Practice, a work of more labor and more merit than is indicated by its size. It is now received as the general standard by which proceedings are regulated, not only in both Houses of Congress, but in most of the other legislative bodies in the country. In 1801 he was elected President, in opposition to Mr. Adams, and re-elected in 1805, by a vote approaching towards unanimity.

From the time of his final retirement from public life, in 1809, Mr. Jefferson lived as became a wise man. Surrounded by affectionate friends, his ardor in the pursuit of knowledge undiminished, with uncommon health and unbroken spirits, he was able to enjoy largely the rational pleasures of life, and to partake in that public prosperity which he had so much contributed to produce. His kindness and hospitality, the charm of his conversation, the ease of his manners, the extent of his acquirements, and, especially, the full store of Revolutionary incidents which he had treasured in his memory, and which he knew when and how to dispense, rendered his abode in a high degree attractive to his admiring countrymen, while his high public and scientific character drew towards him every intelligent and educated traveller from abroad. Both Mr. Adams and Mr. Jefferson had the pleasure of knowing that the respect which they so largely received was not paid to their official stations. They were not men made great by office; but great men, on whom the country for its own benefit had conferred office. There was that in them which office did not give, and which the relinquishment of office did not, and could not, take away. In their retirement, in the midst of their fellow-citizens, themselves private citizens, they enjoyed as high regard and esteem as when filling the most important places of public trust.

There remained to Mr. Jefferson yet one other work of patriotism and beneficence, the establishment of a university in his native State. To this object he devoted years of incessant and anxious attention, and by the enlightened liberality of the Legislature of Virginia, and the co-operation of other able and zealous friends, he lived to see it accomplished. May all success attend this infant seminary; and may those who enjoy its advantages, as often as their eyes shall rest on the neighboring height, recollect what they owe to their disinterested and indefatigable benefactor; and may letters honor him who thus labored in the cause of letters![13]

Thus useful, and thus respected, passed the old age of Thomas Jefferson. But time was on its ever-ceaseless wing, and was now bringing the last hour of this illustrious man. He saw its approach with undisturbed serenity. He counted the moments as they passed, and beheld that his last sands were falling. That day, too, was at hand which he had helped to make immortal. One wish, one hope, if it were not presumptuous, beat in his fainting breast. Could it be so, might it please God, he would desire once more to see the sun, once more to look abroad on the scene around him, on the great day of liberty. Heaven, in its mercy, fulfilled that prayer. He saw that sun, he enjoyed its sacred light, he thanked God for this mercy, and bowed his aged head to the grave. "Felix, non vitae tantum claritate, sed etiam opportunitate mortis."

The last public labor of Mr. Jefferson naturally suggests the expression of the high praise which is due, both to him and to Mr. Adams, for their uniform and zealous attachment to learning, and to the cause of general knowledge. Of the advantages of learning, indeed, and of literary accomplishments, their own characters were striking recommendations and illustrations. They were scholars, ripe and good scholars; widely acquainted with ancient, as well as modern literature, and not altogether uninstructed in the deeper sciences. Their acquirements, doubtless, were different, and so were the particular objects of their literary pursuits; as their tastes and characters, in these respects, differed like those of other men. Being, also, men of busy lives, with great objects requiring action constantly before them, their attainments in letters did not become showy or obtrusive. Yet I would hazard the opinion, that, if we could now ascertain all the causes which gave them eminence and distinction in the midst of the great men with whom they acted, we should find not among the least their early acquisitions in literature, the resources which it furnished, the promptitude and facility which it communicated, and the wide field it opened for analogy and illustration; giving them thus, on every subject, a larger view and a broader range, as well for discussion as for the government of their own conduct.

Literature sometimes disgusts, and pretension to it much oftener disgusts, by appearing to hang loosely on the character, like something foreign or extraneous, not a part, but an ill-adjusted appendage; or by seeming to overload and weigh it down by its unsightly bulk, like the productions of bad taste in architecture, where there is massy and cumbrous ornament without strength or solidity of column. This has exposed learning, and especially classical learning, to reproach. Men have seen that it might exist without mental superiority, without vigor, without good taste, and without utility. But in such cases classical learning has only not inspired natural talent; or, at most, it has but made original feebleness of intellect, and natural bluntness of perception, something more conspicuous. The question, after all, if it be a question, is, whether literature, ancient as well as modern, does not assist a good understanding, improve natural good taste, add polished armor to native strength, and render its possessor, not only more capable of deriving private happiness from contemplation and reflection, but more accomplished also for action in the affairs of life, and especially for public action. Those whose memories we now honor were learned men; but their learning was kept in its proper place, and made subservient to the uses and objects of life. They were scholars, not common nor superficial; but their scholarship was so in keeping with their character, so blended and inwrought, that careless observers, or bad judges, not seeing an ostentatious display of it, might infer that it did not exist; forgetting, or not knowing, that classical learning in men who act in conspicuous public stations, perform duties which exercise the faculty of writing, or address popular, deliberative, or judicial bodies, is often felt where it is little seen, and sometimes felt more effectually because it is not seen at all.

But the cause of knowledge, in a more enlarged sense, the cause of general knowledge and of popular education, had no warmer friends, nor more powerful advocates, than Mr. Adams and Mr. Jefferson. On this foundation they knew the whole republican system rested; and this great and all-important truth they strove to impress, by all the means in their power. In the early publication already referred to, Mr. Adams expresses the strong and just sentiment, that the education of the poor is more important, even to the rich themselves, than all their own riches. On this great truth, indeed, is founded that unrivalled, that invaluable political and moral institution, our own blessing and the glory of our fathers, the New England system of free schools.

As the promotion of knowledge had been the object of their regard through life, so these great men made it the subject of their testamentary bounty. Mr. Jefferson is understood to have bequeathed his library to the University of Virginia, and that of Mr. Adams is bestowed on the inhabitants of Quincy.

Mr. Adams and Mr. Jefferson, fellow-citizens, were successively Presidents of the United States. The comparative merits of their respective administrations for a long time agitated and divided public opinion. They were rivals, each supported by numerous and powerful portions of the people, for the highest office. This contest, partly the cause and partly the consequence of the long existence of two great political parties in the country, is now part of the history of our government. We may naturally regret that any thing should have occurred to create difference and discord between those who had acted harmoniously and efficiently in the great concerns of the Revolution. But this is not the time, nor this the occasion, for entering into the grounds of that difference, or for attempting to discuss the merits of the questions which it involves. As practical questions, they were canvassed when the measures which they regarded were acted on and adopted; and as belonging to history, the time has not come for their consideration.

It is, perhaps, not wonderful, that, when the Constitution of the United States first went into operation, different opinions should be entertained as to the extent of the powers conferred by it. Here was a natural source of diversity of sentiment. It is still less wonderful, that that event, nearly contemporary with our government under the present Constitution, which so entirely shocked all Europe, and disturbed our relations with her leading powers, should be thought, by different men, to have different bearings on our own prosperity; and that the early measures adopted by the government of the United States, in consequence of this new state of things, should be seen in opposite lights. It is for the future historian, when what now remains of prejudice and misconception shall have passed away, to state these different opinions, and pronounce impartial judgment. In the mean time, all good men rejoice, and well may rejoice, that the sharpest differences sprung out of measures which, whether right or wrong, have ceased with the exigencies that gave them birth, and have left no permanent effect, either on the Constitution or on the general prosperity of the country. This remark, I am aware, may be supposed to have its exception in one measure, the alteration of the Constitution as to the mode of choosing President; but it is true in its general application. Thus the course of policy pursued towards France in 1798, on the one hand, and the measures of commercial restriction commenced in 1807, on the other, both subjects of warm and severe opposition, have passed away and left nothing behind them. They were temporary, and, whether wise or unwise, their consequences were limited to their respective occasions. It is equally clear, at the same time, and it is equally gratifying, that those measures of both administrations which were of durable importance, and which drew after them momentous and long remaining consequences, have received general approbation. Such was the organization, or rather the creation, of the navy, in the administration of Mr. Adams; such the acquisition of Louisiana in that of Mr. Jefferson. The country, it may safely be added, is not likely to be willing either to approve, or to reprobate, indiscriminately, and in the aggregate, all the measures of either, or of any, administration. The dictate of reason and of justice is, that, holding each one his own sentiments on the points of difference, we imitate the great men themselves in the forbearance and moderation which they have cherished, and in the mutual respect and kindness which they have been so much inclined to feel and to reciprocate.

No men, fellow-citizens, ever served their country with more entire exemption from every imputation of selfish and mercenary motives, than those to whose memory we are paying these proofs of respect. A suspicion of any disposition to enrich themselves or to profit by their public employments, never rested on either. No sordid motive approached them. The inheritance which they have left to their children is of their character and their fame.

Fellow-citizens, I will detain you no longer by this faint and feeble tribute to the memory of the illustrious dead. Even in other hands, adequate justice could not be done to them, within the limits of this occasion. Their highest, their best praise, is your deep conviction of their merits, your affectionate gratitude for their labors and their services. It is not my voice, it is this cessation of ordinary pursuits, this arresting of all attention, these solemn ceremonies, and this crowded house, which speak their eulogy. Their fame, indeed, is safe. That is now treasured up beyond the reach of accident. Although no sculptured marble should rise to their memory, nor engraved stone bear record of their deeds, yet will their remembrance be as lasting as the land they honored. Marble columns may, indeed, moulder into dust, time may erase all impress from the crumbling stone, but their fame remains; for with AMERICAN LIBERTY it rose, and with AMERICAN LIBERTY ONLY can it perish. It was the last swelling peal of yonder choir, "THEIR BODIES ARE BURIED IN PEACE, BUT THEIR NAME LIVETH EVERMORE." I catch that solemn song, I echo that lofty strain of funeral triumph, "THEIR NAME LIVETH EVERMORE."

Of the illustrious signers of the Declaration of Independence there now remains only CHARLES CARROLL. He seems an aged oak, standing alone on the plain, which time has spared a little longer after all its contemporaries have been levelled with the dust. Venerable object! we delight to gather round its trunk, while yet it stands, and to dwell beneath its shadow. Sole survivor of an assembly of as great men as the world has witnessed, in a transaction one of the most important that history records, what thoughts, what interesting reflections, must fill his elevated and devout soul! If he dwell on the past, how touching its recollections; if he survey the present, how happy, how joyous, how full of the fruition of that hope which his ardent patriotism indulged; if he glance at the future, how does the prospect of his country's advancement almost bewilder his weakened conception! Fortunate, distinguished patriot! Interesting relic of the past! Let him know that, while we honor the dead, we do not forget the living; and that there is not a heart here which does not fervently pray that Heaven may keep him yet back from the society of his companions.

And now, fellow-citizens, let us not retire from this occasion without a deep and solemn conviction of the duties which have devolved upon us. This lovely land, this glorious liberty, these benign institutions, the dear purchase of our fathers, are ours; ours to enjoy, ours to preserve, ours to transmit. Generations past and generations to come hold us responsible for this sacred trust. Our fathers, from behind, admonish us, with their anxious paternal voices; posterity calls out to us, from the bosom of the future; the world turns hither its solicitous eyes; all, all conjure us to act wisely, and faithfully, in the relation which we sustain. We can never, indeed, pay the debt which is upon us; but by virtue, by morality, by religion, by the cultivation of every good principle and every good habit, we may hope to enjoy the blessing, through our day, and to leave it unimpaired to our children. Let us feel deeply how much of what we are and of what we possess we owe to this liberty, and to these institutions of government. Nature has, indeed, given us a soil which yields bounteously to the hand of industry, the mighty and fruitful ocean is before us, and the skies over our heads shed health and vigor. But what are lands, and seas, and skies, to civilized man, without society, without knowledge, without morals, without religious culture; and how can these be enjoyed, in all their extent and all their excellence, but under the protection of wise institutions and a free government? Fellow-citizens, there is not one of us, there is not one of us here present, who does not, at this moment, and at every moment, experience, in his own condition, and in the condition of those most near and dear to him, the influence and the benefits of this liberty and these institutions. Let us then acknowledge the blessing, let us feel it deeply and powerfully, let us cherish a strong affection for it, and resolve to maintain and perpetuate it. The blood of our fathers, let it not have been shed in vain; the great hope of posterity, let it not be blasted.

The striking attitude, too, in which we stand to the world around us, a topic to which, I fear, I advert too often, and dwell on too long, cannot be altogether omitted here. Neither individuals nor nations can perform their part well, until they understand and feel its importance, and comprehend and justly appreciate all the duties belonging to it. It is not to inflate national vanity, nor to swell a light and empty feeling of self-importance, but it is that we may judge justly of our situation, and of our own duties, that I earnestly urge upon you this consideration of our position and our character among the nations of the earth. It cannot be denied, but by those who would dispute against the sun, that with America, and in America, a new era commences in human affairs. This era is distinguished by free representative governments, by entire religious liberty, by improved systems of national intercourse, by a newly awakened and an unconquerable spirit of free inquiry, and by a diffusion of knowledge through the community, such as has been before altogether unknown and unheard of. America, America, our country, fellow-citizens, our own dear and native land, is inseparably connected, fast bound up, in fortune and by fate, with these great interests. If they fall, we fall with them; if they stand, it will be because we have maintained them. Let us contemplate, then, this connection, which binds the prosperity of others to our own; and let us manfully discharge all the duties which it imposes. If we cherish the virtues and the principles of our fathers, Heaven will assist us to carry on the work of human liberty and human happiness. Auspicious omens cheer us. Great examples are before us. Our own firmament now shines brightly upon our path. WASHINGTON is in the clear, upper sky. These other stars have now joined the American constellation; they circle round their centre, and the heavens beam with new light. Beneath this illumination let us walk the course of life, and at its close devoutly commend our beloved country, the common parent of us all, to the Divine Benignity.

* * * * *

NOTE.

Page 170.

The question has often been asked, whether the anonymous speech against the Declaration of Independence, and the speech in support of it ascribed to John Adams in the preceding Discourse, are a portion of the debates which actually took place in 1776 in the Continental Congress. Not only has this inquiry been propounded in the public papers, but several letters on the subject have been addressed to Mr. Webster and his friends. For this reason, it may be proper to state, that those speeches were composed by Mr. Webster, after the manner of the ancient historians, as embodying in an impressive form the arguments relied upon by the friends and opponents of the measure, respectively. They of course represent the speeches that were actually made on both sides, but no report of the debates of this period has been preserved, and the orator on the present occasion had no aid in framing these addresses, but what was furnished by general tradition and the known line of argument pursued by the speakers and writers of that day for and against the measure of Independence. The first sentence of the speech ascribed to Mr. Adams was of course suggested by the parting scene with Jonathan Sewall, as described by Mr. Adams himself, in the Preface to the Letters of Novanglus and Massachusettensis.

So much interest has been taken in this subject, that it has been thought proper, by way of settling the question in the most authentic manner, to give publicity to the following answer, written by Mr. Webster to one of the letters of inquiry above alluded to.

"_Washington, 22 January, 1846._

"Dear Sir:--

"I have the honor to acknowledge the receipt of your letter of the 18th instant. Its contents hardly surprise me, as I have received very many similar communications.

"Your inquiry is easily answered. The Congress of the Revolution sat with closed doors. Its proceedings were made known to the public from time to time, by printing its journal; but the debates were not published. So far as I know, there is not existing, in print or manuscript, the speech, or any part or fragment of the speech, delivered by Mr. Adams on the question of the Declaration of Independence. We only know, from the testimony of his auditors, that he spoke with remarkable ability and characteristic earnestness.

"The day after the Declaration was made, Mr. Adams, in writing to a friend,[14] declared the event to be one that 'ought to be commemorated, as the day of deliverance, by solemn acts of devotion to God Almighty. It ought to be solemnized with pomp and parade, with shows, games, sports, guns, bells, bonfires, and illuminations, from one end of this continent to the other, from this time forward, for evermore.'

"And on the day of his death, hearing the noise of bells and cannon, he asked the occasion. On being reminded that it was 'Independent day,' he replied, 'Independence for ever!' These expressions were introduced into the speech _supposed_ to have been made by him. For the rest I must be answerable. The speech was written by me, in my house in Boston, the day before the delivery of the Discourse in Faneuil Hall; a poor substitute, I am sure it would appear to be, if we could now see the speech actually made by Mr. Adams on that transcendently important occasion.

"I am, respectfully,

"Your obedient servant,

"DANIEL WEBSTER."

[Footnote 1: Hon. Josiah Quincy.]

[Footnote 2: Nearly all that was known of this celebrated argument, at the time the present Discourse was delivered, was derived from the recollections of John Adams, as preserved in Minot's History of Massachusetts, Vol. II. p. 91. See Life and Works of John Adams, Vol. II. p. 124, published in the course of the past year (1850), in the Appendix to which, p. 521, will be found a paper hitherto unpublished, containing notes of the argument of Otis, "which seem to be the foundation of the sketch published by Minot." Tudor's Life of James Otis, p. 61.]

[Footnote 3: See Life and Works of John Adams, Vol. II. p. 150, Vol. III. p. 447, and North American Review, Vol. LXXI. p. 430.]

[Footnote 4: Cicero de Officiis, Lib. I. § 43.]

[Footnote 5: A fac-simile of this ever-memorable state paper, as drafted by Mr. Jefferson, with the interlineations alluded to in the text, is contained in Mr. Jefferson's Writings, Vol. I. p. 146. See, also, in reference to the history of the Declaration, the Life and Works of John Adams, Vol. II. p. 512 _et seq._]

[Footnote 6: This question, of the power of Parliament over the Colonies, was discussed, with singular ability, by Governor Hutchinson on the one side, and the House of Representatives of Massachusetts on the other, in 1773. The argument of the House is in the form of an answer to the Governor's Message, and was reported by Mr. Samuel Adams, Mr. Hancock, Mr. Hawley, Mr. Bowers, Mr. Hobson, Mr. Foster, Mr. Phillips, and Mr. Thayer. As the power of the Parliament had been acknowledged, so far at least as to affect us by laws of trade, it was not easy to settle the line of distinction. It was thought, however, to be very clear, that the charters of the Colonies had exempted them from the general legislation of the British Parliament. See Massachusetts State Papers, p. 351. The important assistance rendered by John Adams in the preparation of the answer of the House to the Message of the Governor may be learned from the Life and Works of John Adams, Vol. II. p. 311 _et seq._]

[Footnote 7: The official copy of the Declaration, as engrossed and signed by the members of Congress, is framed and preserved in the Hall over the Patent-Office at Washington.]

[Footnote 8: See Life and Works of John Adams, Vol. II. p. 417 _et seq._]

[Footnote 9: On the authorship of this speech, see Note at the end of the Discourse.]

[Footnote 10: In this Convention he served as chairman of the committee for preparing the draft of a Constitution.]

[Footnote 11: Upon the organization of this body, 15th November, 1820, John Adams was elected its President; an office which the infirmities of age compelled him to decline. For the interesting proceedings of the Convention on this occasion, the address of Chief Justice Parker, and the reply of Mr. Adams, see Journal of Debates and Proceedings in the Convention of Delegates chosen to revise the Constitution of Massachusetts, p. 8 _et seq._]

[Footnote 12: For an account of Mr. Webster's last interview with Mr. Adams, see March's Reminiscences of Congress, p. 62.]

[Footnote 13: Mr. Jefferson himself considered his services in establishing the University of Virginia as among the most important rendered by him to the country. In Mr. Wirt's Eulogy, it is stated that a private memorandum was found among his papers, containing the following inscription to be placed on his monument.--"Here was buried Thomas Jefferson, Author of the Declaration of Independence, of the Statutes of Virginia for Religious Freedom, and Father of the University of Virginia." Eulogies on Adams and Jefferson, p. 426.]

[Footnote 14: See Letters of John Adams to his Wife, Vol. I. p. 128, note.]

THE CASE OF OGDEN AND SAUNDERS.

AN ARGUMENT MADE IN THE CASE OF OGDEN AND SAUNDERS, IN THE SUPREME COURT OF THE UNITED STATES, JANUARY TERM, 1827.

[This was an action of _assumpsit_, brought originally in the Circuit Court of Louisiana, by Saunders, a citizen of Kentucky, against Ogden, a citizen of Louisiana. The plaintiff below declared upon certain bills of exchange, drawn on the 30th of September, 1806, by one Jordan, at Lexington, in the State of Kentucky, upon the defendant below, Ogden, in the city of New York, (the defendant then being a citizen and resident of the State of New York,) accepted by him at the city of New York, and protested for non-payment.

The defendant below pleaded several pleas, among which was a certificate of discharge under the act of the legislature of the State of New York, of April 3d, 1801, for the relief of insolvent debtors, commonly called the Three-Fourths Act.

The jury found the facts in the form of a special verdict, on which the court rendered a judgment for the plaintiff below, and the cause was brought by writ of error before this court. The question which arose under this plea, as to the validity of the law of New York as being repugnant to the Constitution of the United States, was argued at February term, 1824, by Mr. Clay, Mr. D.B. Ogden, and Mr. Haines, for the plaintiff in error, and by Mr. Webster and Mr. Wheaton, for the defendant in error, and the cause was continued for advisement until the present term. It was again argued at the present term, by Mr. Webster and Mr. Wheaton, against the validity, and by the Attorney-General, Mr. E. Livingston, Mr. D.B. Ogden, Mr. Jones, and Mr. Sampson, for the validity.

Mr. Wheaton opened the argument for the defendant in error; he was followed by the counsel for the plaintiff in error; and Mr. Webster replied as follows.]

The question arising in this case is not more important, nor so important even, in its bearing on individual cases of private right, as in its character of a public political question. The Constitution was intended to accomplish a great political object. Its design was not so much to prevent injustice or injury in one case, or in successive single cases, as it was to make general salutary provisions, which, in their operation, should give security to all contracts, stability to credit, uniformity among all the States in those things which materially concern the foreign commerce of the country, and their own credit, trade, and intercourse with each other. The real question, is, therefore, a much broader one than has been argued. It is this: Whether the Constitution has not, for general political purposes, ordained that bankrupt laws should be established only by national authority? We contend that such was the intention of the Constitution; an intention, as we think, plainly manifested in several of its provisions.

The act of New York, under which this question arises, provides that a debtor may be discharged from all his debts, upon assigning his property to trustees for the use of his creditors. When applied to the discharge of debts contracted before the date of the law, this court has decided that the act is invalid.[1] The act itself makes no distinction between past and future debts, but provides for the discharge of both in the same manner. In the case, then, of a debt already existing, it is admitted that the act does impair the obligation of contracts. We wish the full extent of this decision to be well considered. It is not merely that the legislature of the State cannot interfere by law, in the particular case of A or B, to injure or impair rights which have become vested under contracts; but it is, that they have no power by general law to regulate the manner in which all debtors may be discharged from subsisting contracts; in other wrords, they cannot pass general bankrupt laws to be applied _in presenti_. Now, it is not contended that such laws are unjust, and ought not to be passed by any legislature. It is not said that they are unwise or impolitic. On the contrary, we know the general practice to be, that, when bankrupt laws are established, they make no distinction between present and future debts. While all agree that special acts, made for individual cases, are unjust, all admit that a general law, made for all cases, may be both just and politic. The question, then, which meets us on the threshold is this: If the Constitution meant to leave the States the power of establishing systems of bankruptcy to act upon future debts, what great or important object of a political nature is answered by denying the power of making such systems applicable to existing debts?

The argument used in _Sturges v. Crowninshield_ was, at least, a plausible and consistent argument. It maintained that the prohibition of the Constitution was levelled only against interferences in individual cases, and did not apply to general laws, whether those laws were retrospective or prospective in their operation. But the court rejected that conclusion. It decided that the Constitution was intended to apply to general laws or systems of bankruptcy; that an act providing that all debtors might be discharged from all creditors, upon certain conditions, was of no more validity than an act providing that a particular debtor, A, should be discharged on the same conditions from his particular creditor, B.

It being thus decided that general laws are within the prohibition of the Constitution, it is for the plaintiff in error now to show on what ground, consistent with the general objects of the Constitution, he can establish a distinction which can give effect to those general laws in their application to future debts, while it denies them effect in their application to subsisting debts. The words are, that "no State shall pass any law impairing the obligation of contracts." The general operation of all such laws is to impair that obligation; that is, to discharge the obligation without fulfilling it. This is admitted; and the only ground taken for the distinction to stand on is, that, when the law was in existence at the time of the making of the contract, the parties must be supposed to have reference to it, or, as it is usually expressed, the law is made a part of the contract. Before considering what foundation there is for this argument, it may be well to inquire what is that obligation of contracts of which the Constitution speaks, and whence is it derived.

The definition given by the court in _Sturges v. Crowninshield_ is sufficient for our present purpose. "A contract," say the court, "is an agreement to do some particular thing; the law binds the party to perform this agreement, and this is the obligation of the contract."

It is indeed probable that the Constitution used the words in a somewhat more popular sense. We speak, for example, familiarly of a usurious contract, and yet we say, speaking technically, that a usurious agreement is no contract.

By the obligation of a contract, we should understand the Constitution to mean, the duty of performing a legal agreement. If the contract be lawful, the party is bound to perform it. But bound by what? What is it that binds him? And this leads us to what we regard as a principal fallacy in the argument on the other side. That argument supposes, and insists, that the whole obligation of a contract has its origin in the municipal law. This position we controvert. We do not say that it is that obligation which springs from conscience merely; but we deny that it is only such as springs from the particular law of the place where the contract is made. It must be a lawful contract, doubtless; that is, permitted and allowed; because society has a right to prohibit all such contracts, as well as all such actions, as it deems to be mischievous or injurious. But if the contract be such as the law of society tolerates, in other words, if it be lawful, then we say, the duty of performing it springs from universal law. And this is the concurrent sense of all the writers of authority.

The duty of performing promises is thus shown to rest on universal law; and if, departing from this well-established principle, we now follow the teachers who instruct us that the obligation of a contract has its origin in the law of a particular State, and is in all cases what that law makes it, and no more, and no less, we shall probably find ourselves involved in inextricable difficulties. A man promises, for a valuable consideration, to pay money in New York. Is the obligation of that contract created by the laws of that State, or does it subsist independent of those laws? We contend that the obligation of a contract, that is, the duty of performing it, is not created by the law of the particular place where it is made, and dependent on that law for its existence; but that it may subsist, and does subsist, without that law, and independent of it. The obligation is in the contract itself, in the assent of the parties, and in the sanction of universal law. This is the doctrine of Grotius, Vattel, Burlamaqui, Pothier, and Rutherforth. The contract, doubtless, is necessarily to be enforced by the municipal law of the place where performance is demanded. The municipal law acts on the contract after it is made, to compel its execution, or give damages for its violation. But this is a very different thing from the same law being the origin or fountain of the contract.

Let us illustrate this matter by an example. Two persons contract together in New York for the delivery, by one to the other, of a domestic animal, a utensil of husbandry, or a weapon of war. This is a lawful contract, and, while the parties remain in New York, it is to be enforced by the laws of that State. But if they remove with the article to Pennsylvania or Maryland, there a new law comes to act upon the contract, and to apply other remedies if it be broken. Thus far the remedies are furnished by the laws of society. But suppose the same parties to go together to a savage wilderness, or a desert island, beyond the reach of the laws of any society. The obligation of the contract still subsists, and is as perfect as ever, and is now to be enforced by another law, that is, the law of nature; and the party to whom the promise was made has a right to take by force the animal, the utensil, or the weapon that was promised him. The right is as perfect here as it was in Pennsylvania, or even in New York; but this could not be so if the obligation were created by the law of New York, or were dependent on that law for its existence, because the laws of that State can have no operation beyond its territory. Let us reverse this example. Suppose a contract to be made between two persons cast ashore on an uninhabited territory, or in a place over which no law of society extends. There are such places, and contracts have been made by individuals casually there, and these contracts have been enforced in courts of law in civilized communities. Whence do such contracts derive their obligation, if not from universal law?

If these considerations show us that the obligation of a lawful contract does not derive its force from the particular law of the place where made, but may exist where that law does not exist, and be enforced where that law has no validity, then it follows, we contend, that any statute which diminishes or lessens its obligation does impair it, whether it precedes or succeeds the contract in date. The contract having an independent origin, whenever the law comes to exist together with it, and interferes with it, it lessens, we say, and impairs, its own original and independent obligation. In the case before the court, the contract did not owe its existence to the particular law of New York; it did not depend on that law, but could be enforced without the territory of that State, as well as within it. Nevertheless, though legal, though thus independently existing, though thus binding the party everywhere, and capable of being enforced everywhere, yet the statute of New York says that it shall be discharged without payment. This, we say, impairs the obligation of that contract. It is admitted to have been legal in its inception, legal in its full extent, and capable of being enforced by other tribunals according to its terms. An act, then, purporting to discharge it without payment, is, as we contend, an act impairing its obligation.

Here, however, we meet the opposite argument, stated on different occasions in different terms, but usually summed up in this, that the law itself is a part of the contract, and therefore cannot impair it. What does this mean? Let us seek for clear ideas. It does not mean that the law gives any particular construction to the terms of the contract, or that it makes the promise, or the consideration, or the time of performance, other than is expressed in the instrument itself. It can only mean, that it is to be taken as a part of the contract, or understanding of the parties, that the contract itself shall be enforced by such laws and regulations, respecting remedy and for the enforcement of contracts, as are in being in the State where it is made at the time of entering into it. This is meant, or nothing very clearly intelligible is meant, by saying the law is part of the contract.

There is no authority in adjudged cases for the plaintiff in error but the State decisions which have been cited, and, as has already been stated, they all rest on this reason, that the law is part of the contract.

Against this we contend,--

1st. That, if the proposition were true, the consequence would not follow.

2d. That the proposition itself cannot be maintained.

1. If it were true that the law is to be considered as part of the contract, the consequence contended for would not follow; because, if this statute be part of the contract, so is every other legal or constitutional provision existing at the time which affects the contract, or which is capable of affecting it; and especially this very article of the Constitution of the United States is part of the contract. The plaintiff in error argues in a complete circle. He supposes the parties to have had reference to it because it was a binding law, and yet he proves it to be a binding law only upon the ground that such reference was made to it. We come before the court alleging the law to be void, as unconstitutional; they stop the inquiry by opposing to us the law itself. Is this logical? Is it not precisely _objectio ejus, cujus dissolutio petitur_? If one bring a bill to set aside a judgment, is that judgment itself a good plea in bar to the bill? We propose to inquire if this law is of force to control our contract, or whether, by the Constitution of the United States, such force be not denied to it. The plaintiff in error stops us by saying that it does control the contract, and so arrives shortly at the end of the debate. Is it not obvious, that, supposing the act of New York to be a part of the contract, the question still remains as undecided as ever. What is that act? Is it a law, or is it a nullity? a thing of force, or a thing of no force? Suppose the parties to have contemplated this act, what did they contemplate? its words only, or its legal effect? its words, or the force which the Constitution of the United States allows to it? If the parties contemplated any law, they contemplated all the law that bore on their contract, the aggregate of all the statute and constitutional provisions. To suppose that they had in view one statute without regarding others, or that they contemplated a statute without considering that paramount constitutional provisions might control or qualify that statute, or abrogate it altogether, is unreasonable and inadmissible. "This contract," says one of the authorities relied on, "is to be construed as if the law were specially recited in it." Let it be so for the sake of argument. But it is also to be construed as if the prohibitory clause of the Constitution were recited in it, and this brings us back again to the precise point from which we departed.

The Constitution always accompanies the law, and the latter can have no force which the former does not allow to it. If the reasoning were thrown into the form of special pleading, it would stand thus: the plaintiff declares on his debt; the defendant pleads his discharge under the law; the plaintiff alleges the law unconstitutional; but the defendant says, You knew of its existence; to which the answer is obvious and irresistible, I knew its existence on the statute-book of New York, but I knew, at the same time, it was null and void under the Constitution of the United States.

The language of another leading decision is, "A law in force at the time of making the contract does not violate that contract"; but the very question is, whether there be any such law "in force"; for if the States have no authority to pass such laws, then no such law can be in force. The Constitution is a part of the contract as much as the law, and was as much in the contemplation of the parties. So that the proposition, if it be admitted that the law is part of the contract, leaves us just where it found us: that is to say, under the necessity of comparing the law with the Constitution, and of deciding by such comparison whether it be valid or invalid. If the law be unconstitutional, it is void, and no party can be supposed to have had reference to a void law. If it be constitutional, no reference to it need be supposed.