David J. (David Josiah) Brewer.

Crowned masterpieces of eloquence, representing the advance of civilization, as collected in The world's best orations, from the earliest period to the present time (Volume 10) online

. (page 21 of 56)
Online LibraryDavid J. (David Josiah) BrewerCrowned masterpieces of eloquence, representing the advance of civilization, as collected in The world's best orations, from the earliest period to the present time (Volume 10) → online text (page 21 of 56)
Font size
QR-code for this ebook

putting him forth to incur the dangers of war, as well as the polit-
ical hazards of the times, we promised to adhere to him, in every
extremity, with our fortunes and our lives ? I know there is not a
man here who would not rather see a general conflagration sweep
over the land, or an earthquake sink it, than one jot or tittle of that
plighted faith fall to the ground. For myself, having twelve months
ago in this place moved you that George Washington be appointed
commander of the forces, raised or to be raised, for defense of
American liberty, may my right hand forget her cunning, and my
tongue cleave to the roof of my mouth, if I hesitate or waver in the
support I give him. The war, then, must go on. We must fight it
through. And, if the war must go on, why put off longer the Dec-
laration of Independence ? That measure will strengthen us. It
will give us character abroad. The nations will then treat with us,


which they never can do while we acknowledge ourselves subjects
in arms against our sovereign. Nay, I maintain that England herself
will sooner treat for peace with us on the footing of independence,
than consent, by repealing her acts, to acknowledge that her whole
conduct towards us has been a course of injustice and oppression.
Her pride will be less wounded by submitting to that course of
things which now predestinates our independence, than by yielding
the points in controversy to her rebellious subjects. The former she
would regard as the result of fortune; the latter she would feel as
her own deep disgrace. Why, then — why, then, sir, do we not, as
soon as possible, change this from a civil to a national war? And
since we must fight it through, why not put ourselves in a state to
enjoy all the benefits of victory, if we gain the victory?

«If we fail, it can be no worse for us. But we shall not fail. The
cause will raise up armies; the cause will create navies. The people
— the people, if we are true to them, will carry us, and will carry
themselves, gloriously through this struggle. I care not how fickle
other people have been found. I know the people of these colonies,
and I know that resistance to British aggression is deep and settled
in their hearts and cannot be eradicated. Every colony, indeed, has
expressed its willingness to follow, if we but take the lead. Sir, the
Declaration will inspire the people with increased courage. Instead
of a long and bloody war for restoration of privileges, for redress of
grievances, for chartered immunities, held under a British king, set
before them the glorious object of entire independence, and it will
breathe into them anew the breath of life. Read this Declaration at
the head of the army; every sword will be drawn from its scabbard,
and the solemn vow uttered to maintain it, or to perish on the bed
of honor. Publish it from the pulpit; religion will approve it, and
the love of religious liberty will cling round it, resolved to stand
with it, or fall with it. Send it to the public halls; proclaim it
there; let them hear it, who heard the first roar of the enemy's can-
non; let them see it, who saw their brothers and their sons fall on
the field of Bunker Hill, and in the streets of Lexington and Con-
cord, and the very walls will cry out in its support.

«Sir, I know the uncertainty of human affairs, but I see, I see
clearly, through this day's business. You and I, indeed, may rue it.
We may not live to the time when this Declaration shall be made
good. We may die; die, colonists; die, slaves; die, it may be, igno-
miniously and on the scaffold. Be it so. Be it so. If it be the
pleasure of heaven that my country shall require the poor offering
of my life, the victim shall be readv at the appointed hour of sacri-
fice, come when that hour may. But while I do live, let me have a
country, or at least the hope of a country, and that a free country.
10 — 14


« But, whatever may be our fate, be assured, be assured, that this
Declaration will stand. It may cost treasure, and it may cost blood;
but it will stand, and it will richly compensate for both. Through
the thick gloom of the present I see the brightness of the future as
the sun in heaven. We shall make this a glorious, an immortal day.
When we are in our graves, our children will honor it. They will
celebrate it with thanksgiving, with festivity, with bonfires, and illu-
minations. On its annual return they will shed tears, copious, gush-
ing tears, not of subjection and slavery, not of agony and distress,
but of exultation, of gratitude, and of joy. Sir, before God, I believe
the hour has come. My judgment approves this measure, and my
whole heart is in it. All that I have, and all that I am, and all that
I hope, in this life, I am now ready here to stake upon it; and I
leave off as I began, that, live or die, survive or perish, I am for the
Declaration. It is my living sentiment, and, by the blessing of God,
it shall be my dying sentiment; independence now, and independ-
ence forever. '>

And so that day shall be honored, illustrious prophet and pa-
triot! so that day shall be honored, and, as often as it returns,
thy renown shall come along with it, and the glory of thy life,
like the day of thy death, shall not fail from the remembrance
of men.

(Delivered Before the Boston Mechanics' Institution, 1828)

HUMAN sagacity, stimulated by human wants, seizes first on the
nearest natural assistant. The power of his own arm is an
early lesson among the studies of primitive man. This is
animal strength; and from this he rises to the conception of em-
ploying for his own use the strength of other animals. A stone
impelled by the power of his arm he finds will produce a greater
effect than the arm itself; this is a species of mechanical power.
The effect results from a combination of the moving force with
the gravity of a hea\^ body. The limb of a tree is a rude but
powerful instrument; it is a lever. And the mechanical power
being all discovered, like other natural qualities, by induction (I
use the word as Bacon used it), or experience, and not by any
reasoning a priori, their progress has kept pace with the general
civilization and education of nations. The history of mechanical


philosophy, while it strongly illustrates in its general results the
force of the human mind, exhibits in its details most interesting
pictures of ingenuity struggling with the conception of new com-
binations, and of deep, intense, and powerful thought stretched
to its utmost to find out, or deduce, the general principle from
the indications of particular facts. We are now so far advanced
beyond the age when the principal, leading, important mathemat-
ical discoveries were made, and they have become so much a
matter of common knowledge that it is not easy to feel their
importance, or be justly sensible what an epoch in the history of
science each constituted. The half-frantic exultation of Archi-
medes when he had solved the problem respecting the crown of
Hiero was on an occasion and for a cause certainly well allowing
very high joy. . . .

The Ancients knew nothing of our present system of arith-
metical notation; nothing of algebra, and, of course, nothing of
the important application of algebra to geometry. They had not
learned the use of logarithms and were ignorant of fluxions.
They had not attained to any just method for the mensuration
of the earth, a matter of great moment to astronom.y, navigation,
and other branches of useful knowledge. It is scarcely neces-
sary to add that they were ignorant of the great results which
have followed the development of the principle of gravitation.

In the useful and practical arts many inventions and con-
trivances to the production of which the degree of ancient knowl-
edge would appear to us to have been adequate and which seem
quite obvious are yet of late origin. The application of water,
for example, to turn a mill, is a thing not known to have been
accomplished at all in Greece, and is not supposed to have been
attempted at Rome till in or near the age of Augustus. The pro-
duction of the same effect by wind is a still later invention. It
dates only in the seventh century of our era. The propulsion
of the saw by any other power than that of the arm is treated
as a novelty in England so late as in the middle of the sixteenth
century. The Bishop of Ely, embassador from the Queen of
England to the Pope, says he saw ^^at Lyons, a sawmill driven
with an upright wheel, and the water that makes it go is gath-
ered into a narrow trough which delivereth the same water to
the wheels. This wheel hath a piece of timber put to the axle-
tree and like the handle of a brocJi (a hand organ), and fastened
to the end of the saw_ which being turned with the force of



water hoisteth up the saw that it continually eateth in, and the
handle of the same is kept in a rigall of wood from severing.
Also the timber lieth, as it were, upon a ladder which is brought
by little and little to the saw by another vice.** From this de-
scription of the primitive power-saw it would seem that it was
probably fast only at one end and that the broch and rigall per-
formed the part of the arm in the common use of the hand-saw.

It must always have been a very considerable object for men
to possess, or obtain, the power of raising water otherwise than
by mere manual labor. Yet nothing like the common suction
pump has been found among rude nations. It has arrived at its
present state only by slow and doubtful steps of improvement; and,
indeed, in that present state, however obvious and unattractive,
it is something of an abstruse and refined invention. It was un-
known in China until Europeans visited the " Celestial Empire '* ;
and is still unknown in other parts of Asia, beyond the pale of
European settlements, or the reach of European communication.
The Greeks and Romans are supposed to have been ignorant of
it in the early times of their history; and it is usually said to
have come from Alexandria, where physical science was much
cultivated by the Greek school, under the patronage of the Ptol-

These few and scattered historical notices of important inven-
tions have been introduced only for the purpose of suggesting
that there is much which is both curious and instructive in the
history of mechanics; and that many things which to us, in our
state of knowledge, seem so obvious that we should think they
would at once force themselves on men's adoption, have, never-
theless, been accomplished slowly, and by painful efforts.

But if the history of the progress of the mechanical arts be in-
teresting, still more so, doubtless, would be the exhibition of their
present state, and a full display of the extent to which they are
now carried. The slightest glance must convince us that me-
chanical power and mechanical skill, as they are now exhibited
in Europe and America, mark an epoch in human history worthy
of all admiration. Machinery is made to perform what has for-
merly been the toil of human hands, to an extent that astonishes
the most sanguine, with a degree of power to which no number
of human arms is equal, and with such precision and exactness
as almost to suggest the notion of reason and intelligence in the
machines themselves. Every natural agent is put unrelentin;.,^!y


to the Lt^^iiT. The winds work, the waters work, the elasticity of
metals work; gravity is solicited into a thousand new forms of
action; levers are multiplied upon levers; wheels revolve upon
the peripheries of other wheels. The saw and the plane are
tortured into an accommodation to new uses; and, last of all,
with inimitable power, and " with whirlwind sound, " comes the
potent agency of steam. In comparison with the past, what cen-
turies of improvement has this single agent comprised in the
short compass of fifty years! Everywhere practicable, every-
where efficient, it has an arm a thousand times stronger than
that of Hercules, and to which human ingenuity is capable of
fitting a thousand times as many heads as belonged to Briareus.
Steam is found in triumphant operation on the seas; and under
the influence of its strong propulsion the gallant ship —

* Against the wind, against the tide,
Still steadies with an upright keel."

it is on the rivers that the boatman may repose on his oars;
it is in highways, and exerts itself along the courses of land
conveyance; it is at the bottom of mines, a thousand feet below
the earth's surface; it is in the mill, and in the workshops of
trade. It rows, it pumps, it excavates, it carries, it draws, it lifts,
it hammers, it spins, it weaves, it prints. It seems to say to
men, at least to the class of artisans : * Leave off your manual
labor, give over your bodily toil; bestow but your skill and rea-
son to the directing of my power, and I will bear the toil, — with
no muscle to grow weary, no nerve to relax, no breast to feel
faintness." What further improvements may still be made in the
use of this astonishing power it is impossible to know, and it
were vain to conjecture. What we do know is that it has most
essentially altered the face of affairs, and that no visible limit
yet appears beyond which its progress is seen to be impossible.
If its power were now to be annihilated, if we were to miss it
on the water and in the mills, it would seem as if we were going
back to the rude ages.



(From the Speech Delivered in the United States Supreme Court,

March loth, 1818)

THE plaintiffs contend that the acts in question are repugnant
to the tenth section of the first article of the Constitution
of the United States. The material words of that section
are: —

" No State shall pass any bill of attainder, ex post facto law, or law
impairing the obligation of contracts. ^^

The object of these most important provisions in the national
Constitution has often been discussed, both here and elsewhere.
It is exhibited with great clearness and force by one of the dis-
tinguished persons who framed that instrument: —

« Bills of attainder, ex post facto laws, and laws impairing the obli-
gation of contracts, are contrary to the first principles of the social
compact and to every principle of sound legislation. The two former
are expressly prohibited by the declarations prefixed to some of the
State constitutions, and all of them are prohibited by the spirit and
scope of these fundamental charters. Our own experience has taught
us, nevertheless, that additional fences against these dangers ought
not to be omitted. Very properly, therefore, have the convention
added this constitutional bulwark in favor of personal security and
private rights; and I am much deceived if they have not in so doing
as faithfully consulted the genuine sentiments as the undoubted in-
terests of their constituents. The sober people of America are weary
of the fluctuating policy which has directed the public councils. They
have seen with regret and with indignation that sudden changes and
legislative interferences in cases affecting personal rights become
jobs in the hands of enterprising and influential speculators, and
snares to the more industrious and less informed part of the commu-
nity. They have seen, too, that one legislative interference is but the
link of a long chain of repetitions; every subsequent interference be-
ing naturally produced by the effects of the preceding.*^

It has already been decided in this court that a grant is a
contract within the meaning of this provision; and that a grant


of a State is also a contract as much as the grant of an indi-
vidual. In Fletcher versus Peck, this court says : —

^'A contract is a compact between two or more parties, and is
either executory or executed. An executory contract is one in which
a party binds himself to do, or not to do, a particular thing; such
was the law under which the conveyance was made by the Govern-
ment. A contract executed is one in which the object of contract is
performed; and this, says Blackstone, differs in nothing from a grant.
The contract between Georgia and the purchasers was executed by
the grant. A contract executed, as well as one which is executory,
contains obligations binding on the parties. A grant, in its own nat-
ure, amounts to an extinguishment of the right of the grantor, and
implies a contract not to reassert that right. If, under a fair con-
struction of the Constitution, grants are comprehended under the
term ^ contracts,^ is a grant from the State excluded from the oper-
ation of the provision ? Is the clause to be considered as inhibit-
ing the State from impairing the obligation of contracts between
two individuals, but as excluding from that inhibition contracts made
with itself? The words themselves contain no such distinction. They
are general, and are applicable to contracts of every description. If
contracts made with the State are to be exempted from their opera-
tion, the exception must arise from the character of the contracting
party, not from the words which are employed. Whatever respect
might have been felt for the State sovereignties, it is not to be dis-
guised that the framers of the Constitution viewed with some appre-
hension the violent acts which might grow out of the feelings of the
moment; and that the people of the United States, in adopting that
instrument, have manifested a determination to shield themselves
and their property from the effects of those sudden and strong pas-
sions to which men are exposed. The restrictions on the legislative
power of the States are obviously founded in this sentiment; and the
Constitution of the United States contains what may be deemed a
bill of rights for the people of each State. *^

It has also been decided that a grant by a State before the
Revolution is as much to be protected as a grant since. But the
case of Terrett versus Taylor, before cited, is of all others most
pertinent to the present argument. Indeed, the judgment of the
court in that case seems to leave little to be argued or decided
in this. "A private corporation,** says the court, ^^ created by the
legislature, may lose its franchises by a misuser or a nonuser of
them; and they may be resumed by the Government under a
judicial judgment upon a quo warranto to ascertain and enforce


the forfeiture. This is the common law of the land, and is a
tacit condition annexed to the creation of every such corporation.
Upon a change of government, too, it may be admitted that such
exclusive privileges attached to a private corporation as are in-
consistent with the new government may be abolished. In re-
spect, also, to public corporations which exist only for public
purposes, such as counties, towns, cities, and so forth, the legisla-
ture may, under proper limitations, have a right to change, mod-
ify, enlarge, or restrain them, securing, however, the property for
the uses of those for whom and at whose expense it was origin-
ally purchased. But that the legislature can repeal statutes cre-
ating private corporations, or confirming to them property already
acquired under the faith of previous laws, and by such repeal
can vest the property of such corporations exclusively in the
State, or dispose of the same to such purposes as they please,
without the consent or default of the corporators, we are not
prepared to admit; and we think ourselves standing upon the
principles of natural justice, upon the fundamental laws of every
free government, upon the spirit and letter of the Constitution
of the United States, and upon the decisions of most respectable
judicial tribunals, in resisting such a doctrine.^*

This court, then, does not admit the doctrine that a legislature
can repeal statutes creating private corporations. If it cannot
repeal them altogether, of course it cannot repeal any part of
them, or impair them, or essentially alter them, without the con-
sent of the corporators. If, therefore, it has been shown that
this college is to be regarded as a private charity, this case is
embraced within the very terms of that decision. A grant of
corporate powers and privileges is as much a contract as a grant
of land. What proves all charters of this sort to be contracts is,
that they must be accepted to give them force and effect. If
they are not accepted, they are void. And in the case of an ex-
isting corporation, if a new charter is given it, it may even ac-
cept part and reject the rest. In Rex versus Vice-Chancellor of
Cambridge, Lord Mansfield says: —

" There is a vast deal of difference between a new charter granted
to a new corporation (who must take it as it is given), and a new
charter given to a corporation already in being, and acting either
under a former charter or under prescriptive usage. The latter, a
corporation already existing, are not obliged to accept the new char-
ter in toto, and to receive either all or none of it; they may act partly


under it, and partly under their old charter or prescription. The
validity of these new charters must turn upon the acceptance of

In the same case Mr. Justice Wilmot says: —

*^ It is the concurrence and acceptance of the university that gives
the force to the charter of the crown. >>

In the King versus Pasmore, Lord Kenyon observes: —

*Sonie things are clear: when a corporation exists capable of dis-
charging its functions, the crown cannot obtrude another charter
upon them; they may either accept or reject it.'^

In all cases relative to charters, the acceptance of them is
uniformly alleged in the pleadings. This shows the general un-
derstanding of the law, that they are grants or contracts; and
that parties are necessary to giwe them force and validity. In
King versus Doctor Askew, it is said: —

<<The crown cannot oblige a man to be a corporator, without his
consent; he shall not be subject to the inconveniences of it, without
accepting it and assenting to it.^*

These terms, ** acceptances^ and "assent,® are the very language
of contract. In Ellis versus Marshall, it was expressly adjudged
that the naming of the defendant among others, in an act of in-
corporation, did not, of itself, make him a corporator; and that
his assent was necessary to that end. The court speaks of the
act of incorporation as a grant, and observes: —

"That a man may refuse a grant, whether from the Government
or an individual, seems to be a principle too clear to require the
support of authorities, ss

But Justice Buller, in King versus Pasmore, furnishes, if pos-
sible, a still more direct and explicit authority. Speaking of a
corporation for government, he says : —

" I do not know how to reason on this point better than in the
manner urged by one of the relator's counsel, who considered the
grant of incorporation to be a compact between the crown and a
certain number of the subjects, the latter of whom undertake, in
consideration of the privileges which are bestowed, to exert them-
selves for the good government of the place."



This language applies with peculiar propriety and force to the
case before the court. It was in consequence of the ^* privileges
bestowed,*^ that Doctor Wheelock and his associates undertook to
exert themselves for the instruction and education of youth in
this college; and it was on the same consideration that the
founder endowed it with his property.

And because charters of incorporation are of the nature of
contracts, they cannot be altered or varied but by consent of the
original parties. If a charter be granted by the King, it may be
altered by a new charter granted by the King, and accepted by
the corporators. But, if the first charter be granted by Parlia-
ment, the consent of Parliament must be obtained to any altera-
tion. In King versus Miller, Lord Kenyon says: —

" Where a corporation takes its rise from the king's charter, the
king by granting, and the corporation by accepting another charter,
may alter it, because it is done with the consent of all the parties
who are competent to consent to the alteration.'^

There are, in this case, all the essential constituent parts of
a contract. There is something to be contracted about, there
are parties, and there are plain terms in which the agreement
of the parties on the subject of the contract is expressed. There
are mutual considerations and inducements. The charter recites

Online LibraryDavid J. (David Josiah) BrewerCrowned masterpieces of eloquence, representing the advance of civilization, as collected in The world's best orations, from the earliest period to the present time (Volume 10) → online text (page 21 of 56)