I will give a few references to other proceedings of this new government. The new const.i.tution was proclaimed on the 13th of January, 1842, by some of the officers of the convention. On the 13th of April, officers were appointed under it, and Mr. Dorr was chosen governor. On Tuesday, the 3d of May, the new legislature met, was organized, and then, it is insisted, the new const.i.tution became the law of the land.

The legislature sat through that whole day, morning and evening; adjourned; met the next day, and sat through all that day, morning and evening, and did a great deal of paper business. It went through the forms of choosing a Supreme Court, and transacting other business of a similar kind, and on the evening of the 4th of May it adjourned, to meet again on the first Monday of July, in Providence,

"And word spake never more."

It never rea.s.sembled. This government, then, whatever it was, came into existence on the _third_ day of May, and went out of existence on the _fourth_ day of May.

I will now give some references concerning the new const.i.tution authorized by the government, the old government, and which is now the const.i.tution of Rhode Island. It was framed in November, 1842. It was voted upon by the people on the 21st, 22d, and 23d days of November, was then by them accepted, and became by its own provisions the const.i.tution of Rhode Island on the first Tuesday of May, 1843.

Now, what, in the mean time, had become of Mr. Dorr's government?

According to the principle of its friends, they are forced to admit that it was superseded by the new, that is to say, the present government, because the people accepted the new government. But there was no new government till May, 1843. According to them, then, there was an _interregnum_ of a whole year. If Mr. Dorr had had a government, what became of it? If it ever came in, what put it out of existence? Why did it not meet on the day to which it had adjourned? It was not displaced by the new const.i.tution, because that had not been agreed upon in convention till November. It was not adopted by the people till the last of November, and it did not go into operation till May. What then had become of Mr. Dorr's government?

I think it is important to note that the new const.i.tution, established according to the prescribed forms, came thus into operation in May, 1843, and was admitted by all to be the const.i.tution of the State. What then happened in the State of Rhode Island? I do not mean to go through all the trials that were had after this ideal government of Mr. Dorr ceased to exist; but I will ask attention to the report of the trial of Dorr for treason, which took place in 1844, before all the judges of the Supreme Court of the State. He was indicted in August, 1842, and the trial came on in March, 1844. The indictment was found while the charter government was in force, and the trial was had under the new const.i.tution. He was found guilty of treason.

And I turn to the report of the trial now, to call attention to the language of the court in its charge, as delivered by Chief Justice Durfee. I present the following extract from that charge:--

"It may be, Gentlemen, that he really believed himself to be the governor of the State, and that he acted throughout under this delusion. However this may go to extenuate the offence, it does not take from it its legal guilt. It is no defence to an indictment for the violation of any law for the defendant to come into court and say, 'I thought that I was but exercising a const.i.tutional right, and I claim an acquittal on the ground of mistake,' Were it so, there would be an end to all law and all government. Courts and juries would have nothing to do but to sit in judgment upon indictments, in order to acquit or excuse. The accused has only to prove that he has been systematic in committing crime, and that he thought that he had a right to commit it; and, according to this doctrine, you must acquit. The main ground upon which the prisoner sought for a justification was, that a const.i.tution had been adopted by a majority of the male adult population of this State, voting in their primary or natural capacity or condition, and that he was subsequently elected, and did the acts charged, as governor under it. He offered the votes themselves to prove its adoption, which were also to be followed by proof of his election. This evidence we have ruled out. Courts and juries, Gentlemen, do not count votes to determine whether a const.i.tution has been adopted or a governor elected, or not. Courts take notice, without proof offered from the bar, what the const.i.tution is or was, and who is or was the governor of their own State. It belongs to the legislature to exercise this high duty. It is the legislature which, in the exercise of its delegated sovereignty, counts the votes and declares whether a const.i.tution be adopted or a governor elected, or not; and we cannot revise and reverse their acts in this particular, without usurping their power. Were the votes on the adoption of our present const.i.tution now offered here to prove that it was or was not adopted; or those given for the governor under it, to prove that he was or was not elected; we could not receive the evidence ourselves, we could not permit it to pa.s.s to the jury. And why not? Because, if we did so, we should cease to be a mere judicial, and become a political tribunal, with the whole sovereignty in our hands. Neither the people nor the legislature would be sovereign. We should be sovereign, or you would be sovereign; and we should deal out to parties litigant, here at our bar, sovereignty to this or that, according to rules or laws of our own making, and heretofore unknown in courts.

"In what condition would this country be, if appeals could be thus taken to courts and juries? _This_ jury might decide one way, and _that_ another, and the sovereignty might be found here to-day, and there to-morrow. Sovereignty is above courts or juries, and the creature cannot sit in judgment upon its creator. Were this instrument offered as the const.i.tution of a foreign state, we might, perhaps, under some circ.u.mstances, require proof of its existence; but, even in that case, the fact would not be ascertained by counting the votes given at its adoption, but by the certificate of the secretary of state, under the broad seal of the state. This instrument is not offered as a foreign const.i.tution, and this court is bound to know what the const.i.tution of the government is under which it acts, without any proof even of that high character. We know nothing of the existence of the so-called 'people's const.i.tution' as law, and there is no proof before you of its adoption, and of the election of the prisoner as governor under it; and you can return a verdict only on the evidence that has pa.s.sed to you."

Having thus, may it please your honors, attempted to state the questions as they arise, and having referred to what has taken place in Rhode Island, I shall present what further I have to say in three propositions:--

1st. I say, first, that the matters offered to be proved by the plaintiff in the court below are not of judicial cognizance; and proof of them, therefore, was properly rejected by the court.

2d. If all these matters could be, and had been, legally proved, they would have const.i.tuted no defence, because they show nothing but an _illegal_ attempt to overthrow the government of Rhode Island.

3d. No proof was offered by the plaintiff to show that, in fact, another government had gone into operation, by which the Charter government had become displaced.

And first, these matters are not of judicial cognizance. Does this need arguing? Are the various matters of fact alleged, the meetings, the appointment of committees, the qualifications of voters,--is there any one of all these matters of which a court of law can take cognizance in a case in which it is to decide on sovereignty? Are fundamental changes in the frame of a government to be thus proved? The thing to be proved is a change of the sovereign power. Two legislatures existed at the same time, both claiming power to pa.s.s laws. Both could not have a legal existence. What, then, is the attempt of our adversaries? To put down one sovereign government, and to put another up, by facts and proceedings in regard to elections out of doors, unauthorized by any law whatever. Regular proceedings for a change of government may in some cases, perhaps, be taken notice of by a court; but this court must look elsewhere than out of doors, and to public meetings, irregular and unauthorized, for the decision of such a question as this. It naturally looks to that authority under which it sits here, to the provisions of the Const.i.tution which have created this tribunal, and to the laws by which its proceedings are regulated. It must look to the acts of the government of the United States, in its various branches.

This Rhode Island disturbance, as everybody knows, was brought to the knowledge of the President of the United States[3] by the public authorities of Rhode Island; and how did he treat it? The United States have guaranteed to each State a republican form of government. And a law of Congress has directed the President, in a const.i.tutional case requiring the adoption of such a proceeding, to call out the militia to put down domestic violence, and suppress insurrection. Well, then, application was made to the President of the United States, to the executive power of the United States. For, according to our system, it devolves upon the executive to determine, in the first instance, what are and what are not governments. The President recognizes governments, foreign governments, as they appear from time to time in the occurrences of this changeful world. And the Const.i.tution and the laws, if an insurrection exists against the government of any State, rendering it necessary to appear with an armed force, make it his duty to call out the militia and suppress it.

Two things may here be properly considered. The first is, that the Const.i.tution declares that the United States shall protect every State against domestic violence; and the law of 1795, making provision for carrying this const.i.tutional duty into effect in all proper cases, declares, that, "in case of an insurrection in any State against the government thereof, it shall be lawful for the President of the United States to call out the militia of other States to suppress such insurrection." These const.i.tutional and legal provisions make it the indispensable duty of the President to decide, in cases of commotion, what is the rightful government of the State. He cannot avoid such decision. And in this case he decided, of course, that the existing government, the charter government, was the rightful government. He could not possibly have decided otherwise.

In the next place, if events had made it necessary to call out the militia, and the officers and soldiers of such militia, in protecting the existing government, had done precisely what the defendants in this case did, could an action have been maintained against them? No one would a.s.sert so absurd a proposition.

In reply to the requisition of the Governor, the President stated that he did not think it was yet time for the application of force; but he wrote a letter to the Secretary of War, in which he directed him to confer with the Governor of Rhode Island; and, whenever it should appear to them to be necessary, to call out from Ma.s.sachusetts and Connecticut a militia force sufficient to _terminate at once_ this insurrection, by the authority of the government of the United States. We are at no loss, therefore, to know how the executive government of the United States treated this insurrection. It was regarded as fit _to be suppressed_.

That is manifest from the President's letters to the Secretary of War and to Governor King.

Now, the eye of this court must be directed to the proceedings of the general government, which had its attention called to the subject, and which did inst.i.tute proceedings respecting it. And the court will learn from the proceedings of the executive branch of the government, and of the two chambers above us, how the disturbances in Rhode Island were regarded; whether they were looked upon as the establishment of any government, or as a mere pure, unauthorized, unqualified _insurrection_ against the authority of the existing government of the State.

I say, therefore, that, upon that ground, these facts are not facts which this court can inquire into, or which the court below could try; because they are facts going to prove (if they prove any thing) the establishment of a new sovereignty; and that is a question to be settled elsewhere and otherwise. From the very nature of the case, it is not a question to be decided by judicial inquiry. Take, for example, one of the points which it involves. My adversary offered to prove that the const.i.tution was adopted by a majority of the people of Rhode Island; by a large majority, as he alleges. What does this offer call on your honors to do? Why, to ascertain, by proof, what is the number of citizens of Rhode Island, and how many attended the meetings at which the delegates to the convention were elected; and then you have to add them all up, and prove by testimony the qualifications of every one of them to be an elector. It is enough to state such a proposition to show its absurdity. As none such ever was sustained in a court of law, so none can be or ought to be sustained. Observe that minutes of proceedings can be no proof, for they were made by no authentic persons; registers were kept by no warranted officers; chairmen and moderators were chosen without authority. In short, there are no official records; there is no testimony in the case but parol. Chief Justice Durfee has stated this so plainly, that I need not dwell upon it.

But, again, I say you cannot look into the facts attempted to be proved, because of the certainty of the continuance of the old government till the new and legal const.i.tution went into effect on the 3d of May, 1843.

To prove that there was another const.i.tution of two days' duration would be ridiculous. And I say that the decision of Rhode Island herself, by her legislature, by her executive, by the adjudication of her highest court of law, on the trial of Dorr, has shut up the whole case. Do you propose,--I will not put it in that form,--but would it be proper for this court to reverse that adjudication? That declares that the judges of Rhode Island know nothing of the "People's Const.i.tution." Is it possible, then, for this court, or for the court below, to know any thing of it?

It appears to me that, if there were nothing else in the case, the proceedings of Rhode Island herself must close everybody's mouth, in the court and out of it. Rhode Island is competent to decide the question herself, and everybody else ought to be bound by her decision. And she has decided it.

And it is but a branch of this to say, according to my second proposition,--

2. That if every thing offered had been proved, if in the nature of the case these facts and proceedings could have been received as proof, the court could not have listened to them, because every one of them is regarded by the State in which they took place as a _criminal_ act. Who can derive any authority from acts declared to be criminal? The very proceedings which are now set up here show that this pretended const.i.tution was founded upon acts which the legislature of the State had provided punishment for, and which the courts of the State have punished. All, therefore, which the plaintiff has attempted to prove, are acts which he was not allowed to prove, because they were criminal in themselves, and have been so treated and punished, so far as the State government, in its discretion, has thought proper to punish them.

3. Thirdly, and lastly, I say that there is no evidence offered, nor has any distinct allegation been made, that there was an actual government established and put in operation to displace the Charter government, even for a single day. That is evident enough. You find the whole embraced in those two days, the 3d and 4th of May. The French revolution was thought to be somewhat rapid. That took _three_ days. But this work was accomplished in two. It is all there, and what is it? Its birth, its whole life, and its death were accomplished in forty-eight hours. What does it appear that the members of this government did? Why, they voted that A should be treasurer, and C, secretary, and Mr. Dorr, governor; and chose officers of the Supreme Court. But did ever any man under that authority attempt to exercise a particle of official power? Did any man ever bring a suit? Did ever an officer make an arrest? Did any act proceed from any member of this government, or from any agent of it, to touch a citizen of Rhode Island in his person, his safety, or his property, so as to make the party answerable upon an indictment or in a civil suit? Never. It never performed one single act of government. It never did a thing in the world! All was patriotism, and all was paper; and with patriotism and with paper it went out on the 4th of May, admitting itself to be, as all must regard it, a contemptible _sham_!

I have now done with the principles involved in this case, and the questions presented on this record.

In regard to the other case, I have but few words to say. And, first, I think it is to be regretted that the court below sent up such a list of points on which it was divided. I shall not go through them, and shall leave it to the court to say whether, after they shall have disposed of the first cause, there is any thing left. I shall only draw attention to the subject of martial law; and in respect to that, instead of going back to martial law as it existed in England at the time the charter of Rhode Island was granted, I shall merely observe that martial law confers power of arrest, of summary trial, and prompt execution; and that when it has been proclaimed, the land becomes a camp, and the law of the camp is the law of the land. Mr. Justice Story defines martial law to be the law of war, a resort to military authority in cases where the civil law is not sufficient; and it confers summary power, not to be used arbitrarily or for the gratification of personal feelings of hatred or revenge, but for the preservation of order and of the public peace.

The officer clothed with it is to judge of the degree of force that the necessity of the case may demand; and there is no limit to this, except such as is to be found in the nature and character of the exigency.

I now take leave of this whole case. That it is an interesting incident in the history of our inst.i.tutions, I freely admit. That it has come hither is a subject of no regret to me. I might have said, that I see nothing to complain of in the proceedings of what is called the Charter government of Rhode Island, except that it might perhaps have discreetly taken measures at an earlier period for revising the const.i.tution. If in that delay it erred, it was the error into which prudent and cautious men would fall. As to the enormity of freehold suffrage, how long is it since Virginia, the parent of States, gave up her freehold suffrage? How long is it since n.o.body voted for governor in New York without a freehold qualification? There are now States in which no man can vote for members of the upper branch of the legislature who does not own fifty acres of land. Every State requires more or less of a property qualification in its officers and electors; and it is for discreet legislation, or const.i.tutional provisions, to determine what its amount shall be. Even the Dorr const.i.tution had a property qualification.

According to its provisions, for officers of the State, to be sure, anybody could vote; but its authors remembered that taxation and representation go together, and therefore they declared that no man, in any town, should vote to lay a tax for town purposes who had not the means to pay his portion. It said to him, You cannot vote in the town of Providence to levy a tax for repairing the streets of Providence; but you may vote for governor, and for thirteen representatives from the town of Providence, and send them to the legislature, and there they may tax the people of Rhode Island at their sovereign will and pleasure.

I believe that no harm can come of the Rhode Island agitation in 1841, but rather good. It will purify the political atmosphere from some of its noxious mists, and I hope it will clear men's minds from unfounded notions and dangerous delusions. I hope it will bring them to look at the regularity, the order, with which we carry on what, if the word were not so much abused, I would call our _glorious_ representative system of popular government. Its principles will stand the test of this crisis, as they have stood the test and torture of others. They are exposed always, and they always will be exposed, to dangers. There are dangers from the extremes of too much and of too little popular liberty; from monarchy, or military despotism, on one side, and from licentiousness and anarchy on the other. This always will be the case. The cla.s.sical navigator had been told that he must pa.s.s a narrow and dangerous strait:

"Dextrum Scylla latus, laevum implacata Charybdis, Obsidet."

Forewarned he was alive to his danger, and knew, by signs not doubtful, where he was, when he approached its scene:

"Et gemitum ingentem pelagi, pulsataque saxa, Audimus longe, fractasque ad litora voces; Exsultantque vada, atque aestu miscentur arenae.

... Nimirum haec ilia Charybdis!"

The long-seeing sagacity of our fathers enables us to know equally well where we are, when we hear the voices of tumultuary a.s.semblies, and see the turbulence created by numbers meeting and acting without the restraints of law; and has most wisely provided const.i.tutional means of escape and security. When the established authority of government is openly contemned; when no deference is paid to the regular and authentic declarations of the public will; when a.s.sembled ma.s.ses put themselves above the law, and, calling themselves the people, attempt by force to seize on the government; when the social and political order of the state is thus threatened with overthrow, and the spray of the waves of violent popular commotion lashes the stars,--our political pilots may well cry out:

"Nimirum haec illa Charybdis!"

The prudence of the country, the sober wisdom of the people, has thus far enabled us to carry this Const.i.tution, and all our const.i.tutions, through the perils which have surrounded them, without running upon the rocks on one side, or being swallowed up in the eddying whirlpools of the other. And I fervently hope that this signal happiness and good fortune will continue, and that our children after us will exercise a similar prudence, and wisdom, and justice; and that, under the Divine blessing, our system of free government may continue to go on, with equal prosperity, to the end of time.

[Footnote 1: Art. IV. -- 4.]

[Footnote 2: Statutes at Large, Vol. I. p. 424.]

[Footnote 3: Mr. Tyler.]

OBJECTS OF THE MEXICAN WAR.

A SPEECH DELIVERED IN THE SENATE OF THE UNITED STATES, ON THE 23D OF MARCH, 1848, ON THE BILL FROM THE HOUSE OF REPRESENTATIVES FOR RAISING A LOAN OF SIXTEEN MILLIONS OF DOLLARS.

[On the 2d of February, 1848, the treaty called a "treaty of peace, friendship, limits, and settlement, between the United States of America and the Mexican Republic," was signed at Guadalupe Hidalgo. This treaty, with the advice and consent of the Senate, was ratified by the President of the United States on the 16th of March. In the mean time, a bill, introduced into the House of Representatives on the 18th of February, to authorize a loan of sixteen millions of dollars for the purpose of carrying on the war, pa.s.sed through that house, and was considered in the Senate. Other war measures were considered and adopted by the two houses, after the signature and ratification of the treaty. On the 23d of March, the Sixteen Million Loan Bill being under consideration, Mr.

Webster spoke as follows.]

MR. PRESIDENT,--On Friday a bill pa.s.sed the Senate for raising ten regiments of new troops for the further prosecution of the war against Mexico; and we have been informed that that measure is shortly to be followed, in this branch of the legislature, by a bill to raise twenty regiments of volunteers for the same service. I was desirous of expressing my opinions against the object of these bills, against the supposed necessity which leads to their enactment, and against the general policy which they are apparently designed to promote.

Circ.u.mstances personal to myself, but beyond my control, compelled me to forego, on that day, the execution of that design. The bill now before the Senate is a measure for raising money to meet the exigencies of the government, and to provide the means, as well as for other things, for the pay and support of these thirty regiments.

Sir, the scenes through which we have pa.s.sed, and are pa.s.sing, here, are various. For a fortnight the world supposes we have been occupied with the ratification of a treaty of peace, and that within these walls, "the world shut out," notes of peace, and hopes of peace, nay, strong a.s.surances of peace, and indications of peace, have been uttered to console and to cheer us. Sir, it has been over and over stated, and is public, that we have ratified a treaty, of course a treaty of peace, and, as the country has been led to suppose, not of an uncertain, empty, and delusive peace, but of real and substantial, a gratifying and an enduring peace, a peace which would stanch the wounds of war, prevent the further flow of human blood, cut off these enormous expenses, and return our friends, and our brothers, and our children, if they be yet living, from the land of slaughter, and the land of still more dismal destruction by climate, to our firesides and our arms.