REFUSAL TO BE A CANDIDATE FOR CONGRESS.

After the appearance of Mr. Sumner's letter to Mr. Winthrop, there was a disposition with certain persons feeling strongly on Slavery and the Mexican War to seek a candidate against the latter. Mr. Sumner again and again refused to accept a nomination. Besides his constant unwillingness to enter into public life, he would not consent that his criticism of Mr. Winthrop should be weakened by the imputation of an unworthy desire for his place. In his absence from Boston, lecturing before Lyceums in Maine, a meeting of citizens was convened at the Tremont Temple on the evening of October 29, 1846, to make what was called an "independent nomination for Congress." The meeting was called to order by Dr. S.G. Howe, and organized by the choice of the following officers: Hon. Charles F. Adams, President,—J.P. Blanchard, Samuel May, George Merrill, Dr. Walter Channing, Dr. Henry I. Bowditch, and R. I. Attwill, Vice-Presidents,—Charles G. Davis and J.H. Frevert, Secretaries. A committee was appointed to draft resolutions and nominate a candidate. This committee, by its chairman, John A. Andrew, afterwards Governor of Massachusetts, reported an elaborate series of resolutions, setting forth reasons for a separate nomination, and concluding with a resolution in the following terms.

---

"Resolved, That we recommend to the citizens of this District as a candidate for Representative in the National Congress a man raised by his pure character above reproach, whose firmness, intelligence, distinguished ability, rational patriotism, manly independence, and glowing love of liberty and truth entitle him to the unbought confidence of his fellow-citizens,—CHARLES SUMNER, of Boston,—fitted to adorn any station, always found on the side of the Right, and especially worthy at the present crisis to represent the interests of the city and the cardinal principles of Truth, Justice, Liberty, and Peace, which have not yet died out from the hearts of her citizens."

---

Mr. Andrew followed the reading of the resolutions with a speech, in which he vindicated the position of Mr. Sumner as follows.

"Mr. President, I shall have done no adequate justice to the views of the committee, to this meeting, to the distinguished friend of Peace and Liberty to whose nomination this crowded assembly has with such gratifying and enthusiastic heartiness so unequivocally responded, nor, indeed, to my own feelings, until I shall have made a single statement of fact in regard to the attitude of Mr. Sumner himself towards the act we have just felt it our duty to perform.

"This nomination, grateful as it may be to his feelings, considered as an evidence of personal attachment and respect on the part of so many of his friends and fellow-citizens, will find him wholly unprepared for its reception; more than that, as I myself do know, he will hear of it with surprise and regret. Though I am unaware that any member of the committee, other than myself, has had any immediate personal knowledge of the views likely to be entertained by him in this regard, I say, what no living man can truly dispute or honestly question, that this nomination has been made upon the entire responsibility and sense of duty of this committee,—not only without the knowledge, approbation, or consent of Mr. Sumner, but in the face of his constant, repeated, and determined refusal, at all times, to allow his name, even for a moment, to be held at the disposal of friends for such a purpose.

"A delicate and sensitive appreciation of his attitude, as one of the earliest, strongest, and most open of those opposed to the dealings of our present member of Congress with the matter of the Mexican War, determined Mr. Sumner, although looked to by—may I not say every individual who sympathizes in this present movement of opposition, as the man to bear our standard on the field of controversy?—determined him to resist every effort to draw him forth from the humblest station in our ranks.

"He would think, write, and speak as his own mind and heart were moved; but he would do nothing, he would permit nothing to be done, for himself, for his own personal promotion."

---

Mr. Andrew then proceeded to mention what induced the committee to disregard Mr. Sumner's known wishes.

The resolutions were adopted unanimously. A committee of vigilance was appointed. Mr. Sumner's letter to Mr. Winthrop, with the report of this meeting, signed by the President and Secretaries, was printed on a broad-side.

Meanwhile Mr. Sumner returned from Maine, when, on learning what had passed, he at once withdrew his name in the following notice.

Late last evening, on my return from Bangor, where I had been in pursuance of an engagement made last August, I was surprised to find myself nominated as candidate for Congress.

I have never on any occasion sought or desired public office of any kind. I do not now. My tastes are alien to official life; and I have long been accustomed to look to other fields of usefulness.

My name has been brought forward, in my absence, without any knowledge or suspicion on my part of such a purpose, and contrary to express declarations, repeatedly made, that I would not, under any circumstances, consent to be a candidate.

Grateful for the kindness of friends who have thought me worthy of political confidence, and regretting much that it is not bestowed upon some one else, who would fitly represent the idea of opposition to the longer continuance of the unjust war with Mexico, I beg leave respectfully, but explicitly, to withdraw my name from the canvass.

Charles Sumner.

Saturday, October 31.

SLAVERY AND THE MEXICAN WAR.

Mr. Chairman,—When, in the month of July, 1830, the people of Paris rose against the arbitrary ordinances of Charles the Tenth, and, after three days of bloody contest, succeeded in that Revolution which gave the dynasty of Orléans to the throne of France, Lafayette, votary of Liberty in two hemispheres, placing himself at the head of the movement, made his way on foot to the City Hall, through streets impassable to carriages, filled with barricades, and strewn with wrecks of war. Moving along with a thin attendance, he was unexpectedly joined by a gallant Bostonian, who, though young in life, was already eminent by seven years of disinterested service in the struggle for Grecian independence against the Turks, who had listened to the whizzing of bullets, and narrowly escaped the descending scimitar. Lafayette, considerate as brave, turned to his faithful friend, and said, "Do not join me; this is a danger for Frenchmen only; reserve yourself for your own country, where you will be needed." Our fellow-citizen heeded him not, but continued by his side, sharing his perils. That Bostonian was Dr. Howe. And now the words of Lafayette are verified. He is needed by his country. At the present crisis, in our Revolution of "Three Days," he comes forward to the post of danger.

I do not disguise the satisfaction I shall feel in voting for him, beyond even the gratification of personal friendship, because he is not a politician. His life is thickly studded with labors in the best of all causes, the good of man. He is the friend of the poor, the blind, the prisoner, the slave. Wherever there is suffering, there his friendship is manifest. Generosity, disinterestedness, self-sacrifice, and courage have been his inspiring sentiments, directed by rare sagacity and intelligence; and now, wherever Humanity is regarded, wherever bosoms beat responsive to philanthropic effort, his name is cherished. Such a character reflects lustre upon the place of his birth, far more than if he had excelled only in the strife of politics or the servitude of party.

He has qualities which especially commend him at this time. He is firm, ever true, honest, determined, a lover of the Right. With a courage that charms opposition, he would not fear to stand alone against a fervid majority. Knowing war by fearful familiarity, he is an earnest defender of peace. With a singular experience of life in other countries, he now brings the stores he has garnered up, and his noble spirit, to the service of his fellow-citizens.

But we are assembled to-night less to consider his praises—grateful as these would be to me, who claim him as friend—than to examine the principles now in issue. Not names, but principles, are now in issue. Proud as we may be of our candidate, we feel, and he too feels, that his principles on the grave questions now pending are his truest recommendation.

In examining these questions, I shall regard those only which are put in issue by the Whigs. It is with the Whigs that I have heretofore acted, and may hereafter act,—always confessing loyalty to principles above any party.

The Resolutions of the recent Whig State Convention present five different questions, with the opinions of the party thereupon. These are the Veto of the President, the Sub-Treasury, the Tariff, Slavery, and the Mexican War. Now, of these five questions, it will not be disguised that the last two are the most important. Slavery is a wrong which justice and humanity alike condemn. The Mexican War is an enormity born of Slavery. Viewed as a question of dollars and cents, it overshadows the others; while the blackness of its guilt compels them to the darkness of a total eclipse. Base in object, atrocious in beginning, immoral in all its influences, vainly prodigal of treasure and life; it is a war of infamy, which must blot the pages of our history. No success, no bravery, no victory can change its character. Vainly will our flag wave in triumph over twenty fields. Shame, and not glory, will attend our footsteps, while, in the spirit of a bully, we employ superior resources of wealth and numbers in carrying death and devastation to a poor, distracted, long afflicted sister republic. Without disparaging the other questions, every just and humane person will recognize Slavery and the Mexican War as paramount to all else,—so much so, that whoever is wrong on these must be so entirely wrong as not to deserve the votes of Massachusetts men.

The Whig Convention has furnished a rule or measure of opinion. It has expressly pledged the Whigs "to promote all constitutional measures for the overthrow of Slavery, and to oppose at all times, with uncompromising zeal and firmness, any further addition of slaveholding States to this Union, out of whatever territory formed." The Mexican War it has denounced as having its origin in an invasion of Mexico by our troops.

Now on these subjects Dr. Howe's opinions are clear and explicit. He is an earnest, hearty, conscientious opponent of Slavery, and in his speech at your former meeting he denounced the injustice of the Mexican War, and, as a natural consequence, demanded the instant retreat of General Taylor's troops to the Nueces.

And this brings me to Mr. Winthrop. Here let me carefully disclaim any sentiment except of kindness towards him as a citizen. It is of Mr. Winthrop the politician that I speak, and not of Mr. Winthrop the honorable gentleman.

And, first, what may we expect from him against Slavery? Will he promote all constitutional measures for its overthrow? Clearly one of these is the Abolition of Slavery in the District of Columbia. This is within the constitutional powers of Congress, and has been called for expressly by our State. It has sometimes occurred to me that Slavery in our country is like the image in Nebuchadnezzar's dream, whose feet of clay are in the District of Columbia, where they may be shivered by Congressional legislation, directed by an enlightened Northern sentiment, so that the whole image shall tumble to the earth. Other measures against Slavery are sanctioned by the Massachusetts Whigs, and by the Legislature of our State, in formal resolutions, duly transmitted to Washington. I have never heard of Mr. Winthrop's voice for any of these,—nor, judging by the past, have I any reason to believe that he will support them earnestly. On these important points he fails, if tried by Whig standards.

Will he oppose, at all times, without compromise, any further addition of slaveholding States? Here again, if we judge him by the past, he is wanting. None can forget that in 1845, on the Fourth of July, a day ever sacred to memories of Freedom, in a speech at Faneuil Hall, he volunteered, in advance of any other Northern Whig, to receive Texas with a welcome into the family of States, although on that very day she was preparing a Constitution placing Slavery beyond the reach of legislative change.

The conclusion is irresistible, that Mr. Winthrop cannot fitly represent the feeling palpitating in Massachusetts bosoms, and so often expressed by our Legislature, with regard to Slavery.

What may we expect from him as to the Mexican War? This brings me to a melancholy inquiry, on which I am the less disposed to dwell because it has already been so fully considered. Will he ascend to the heights of a true civilization, and, while branding the war as unjust, call at once for its cessation, and the withdrawal of our forces? There is no reason to believe that he will. He voted for the Act of Congress under which it is now waged, and by that disastrous vote made his constituents partakers in a wicked and bloody war. At a later day, in an elaborate speech,[200] he vindicated his action, and promised "not to withhold his vote from any reasonable supplies which may be called for" in the prosecution of the war,—adding, that he should vote for them "to enable the President to achieve that honorable peace which he has solemnly promised to bring about at the earliest possible moment" by the sword. And, pray, what is Mr. Winthrop's idea of an "honorable peace"? Is it peace imposed upon a weak neighbor by brute force, the successful consummation of unrighteous war? Is it the triumph of wrong? Is it the Saturnalia of Slavery? Is it the fruit of sin? Is it a baptism of blood unjustly shed? In the same speech, with grievous insensibility to the sordid character of the suggestion, he pleads for the maintenance of the old Tariff, as necessary to meet "the exigencies" of the Mexican War. "In a time of war, like the present, more especially," he says, "an ample revenue should be the primary aim and end of all our custom-house duties." Perish manufactures, let me rather say, if the duties by which they seem to be protected are swollen to feed "the exigencies" of unjust war! Afterwards, at Faneuil Hall, before the Whig Convention, he shows a similar insensibility. Nowhere does he sound the word Duty. Nowhere does he tell his country to begin by doing right. Nowhere does he give assurance of aid by calling for the instant stay of the war.

There are those who, admitting that his vote was a mistake, say that we are not to judge him on this account. Can we afford to send a representative who can make such a mistake? But it is a mistake never by him acknowledged as such. It is still persisted in, and hugged. Among the last words of warning from the lips of Chatham, as he fell at his post in the British Senate, almost his dying words, were "against co-operation with men who still persist in unretracted error."

In his vote for the Mexican War Mr. Winthrop was not a Whig. He then left the party: for surely the party is not where numbers prevail, but where its principles are recognized. The true Whigs are the valiant minority of fourteen. Once in Roman history, the vestal fire, the archives, the sacred volumes of the Republic, were in the custody of a single individual, in a humble vehicle, fleeing from the burning city. With him was the life of the Republic. So in that small minority was the life of the Whig party, with its principles and its sacred fire.

The true Whig ground, the only ground consistent with professed loyalty to the sentiment of duty, is uncompromising opposition to the war, wheresoever and howsoever opposition may be made. Expecting right from Mexico, we must begin by doing right. We are aggressors, and must cease to be so.

This is the proper course, having its foundations in immutable laws. Let me repeat, that our country must do as an individual in like circumstances. For, though politicians may disown it, there is but one rule for nations and for individuals. If any one of you, fellow-citizens, finding yourself in dispute with a neighbor, had unfortunately felled him to earth, but, with returning reason, discovered that you were wrong, what would you do? Of course, cease instantly from wrong-doing. You would help your neighbor to his feet, and with awakened benevolence soothe his wounded nature. Precisely so must our country do now. This can be only by the withdrawal of our forces. Peace would then follow. The very response sent to the Roman Senate by a province of Italy might be repeated by the Mexicans: "The Romans, having preferred justice to conquest, have taught us to be satisfied with submission instead of liberty."

That I may not found these conclusions upon general principles only, I would invoke the example of English Whigs, Chatham, Camden, Burke, Fox, and Sheridan, in opposition to the war of our Revolution,—denouncing it at the outset as unjust, and ever, during its whole progress, declaring their condemnation of it,—voting against supplies for its prosecution, and against thanks for the military services by which it was waged. Holding their example as of the highest practical authority on the present question, and as particularly fit to be regarded by all professing to be Whigs in America, I make no apology for introducing the authentic evidence which places it beyond doubt. This is to be found in the volumes of the Parliamentary Debates. I am not aware that it has ever before been applied to the present discussion, although it is in every word especially applicable.

I begin with that famous instance where two officers—one the son of Lord Chatham, and the other the Earl of Effingham—flung up their commissions rather than fight against constitutional liberty as upheld by our fathers. In the case of the latter especially the sacrifice was great; for he was bred to arms, and enjoyed the service. From his place in the House of Lords, May 18, 1775, he vindicated his act in the following terms.

"Ever since I was of an age to have any ambition at all, my highest has been to serve my country in a military capacity. If there was on earth an event I dreaded, it was to see this country so situated as to make that profession incompatible with my duty as a citizen. That period is in my opinion arrived.... When the duties of a soldier and a citizen become inconsistent, I shall always think myself obliged to sink the character of the soldier in that of the citizen, till such time as those duties shall again, by the malice of our real enemies, become united."

These generous words found an echo at the time. A note in the Parliamentary History says, "The Twenty-second Regiment of Foot, in which he held a captain's commission, being ordered to America, he resolved, though not possessed of an ample patrimony, to resign a darling profession, and all hopes of advancement, rather than bear arms in a cause he did not approve"; and the record proceeds to say that "the cities of London and Dublin voted him their thanks for this conduct."[201] If a soldier could bear testimony against an unjust war, it was easy for others not under the constraint of martial prejudice to do so. The sequel shows how the example prevailed.

First came the famous Duke of Grafton, who, in the House of Lords, on the Address of Thanks, October 26, 1775, after the Battles of Lexington and Bunker Hill, said:—

"I pledge myself to your Lordships and my country, that, if necessity should require it, and my health not otherwise permit it, I mean to come down to this House in a litter, in order to express my full and hearty disapprobation of the measures now pursuing, and, as I understand from the noble Lords in office, meant to be pursued. I do protest to your Lordships, that, if my brother or my dearest friend were to be affected by the vote I mean to give this evening, I could not possibly resist the faithful discharge of my conscience and my duty. Were I to lose my fortune and every other thing I esteem, were I to be reduced to beggary itself, the strong conviction and compulsion at once operating on my mind and conscience would not permit me to take any other part on the present occasion than that I now mean to adopt."

A protest at the close of this debate was signed by several peers, containing the following emphatic clause:—

"Because we cannot, as Englishmen, as Christians, or as men of common humanity, consent to the prosecution of a cruel civil war, so little supported by justice, and so very fatal in its necessary consequences, as that which is now waging against our brethren and fellow-subjects in America."

This was echoed in the House of Commons, where, on the same Address, Mr. Wilkes said:—

"I call the war with our brethren in America an unjust, felonious war.... I assert that it is a murderous war, because it is an effort to deprive men of their lives for standing up in the just cause of the defence of their property and their clear rights. It becomes no less a murderous war with respect to many of our fellow-subjects of this island; for every man, either of the navy or army, who has been sent by Government to America, and fallen a victim in this unnatural and unjust contest, has in my opinion been murdered by Administration, and his blood lies at their door. Such a war, I fear, Sir, will draw down the vengeance of Heaven upon this devoted kingdom."

Mr. Fox expressed himself as follows:—

"He could not consent to the bloody consequences of so silly a contest about so silly an object, conducted in the silliest manner that history or observation had ever furnished an instance of, and from which we were likely to derive nothing but poverty, misery, disgrace, defeat, and ruin."

He was followed by the eminent lawyer, Serjeant Adair:—

"I am against the present war, because I think it unjust in its commencement, injurious to both countries in its prosecution, and ruinous in its event.... I think, from the bottom of my soul, that the Colonies are engaged in a noble and glorious struggle.... Sir, I could not be easy in my own mind without entering the strongest and most public protestations against measures which appear to me to be fraught with the destruction of this mighty empire. I wash my hands of the blood of my fellow-subjects, and shall at least have this satisfaction, amidst the impending calamities of the public, not only to think that I have not contributed to, but that I have done all in my power to oppose and avert, the ruin of my country."

During another debate in the Lords, November 15, 1775, that strenuous friend of freedom and upholder of Whig principles, Lord Camden, declared himself thus:—

"Peace is still within our power; nay, we may command it. A suspension of arms on our part, if adopted in time, will secure it for us, and, I may add, on our own terms. From which it is plain, as we have been the original aggressors in this business, if we obstinately persist, we are fairly answerable for all the consequences. I again repeat, what I often urged before, that I was against this unnatural war from the beginning. I was equally against every measure, from the instant the first tax was proposed to this minute. When, therefore, it is insisted that we aim only to defend and enforce our own rights, I positively deny it. I contend that America has been driven by cruel necessity to defend her rights from the united attacks of violence, oppression, and injustice. I contend that America has been indisputably aggrieved.... I must still think, and shall uniformly continue to assert, that Great Britain was the aggressor, that most, if not all, the acts were founded in oppression, and that, if I were an American, I should resist to the last such manifest exertion of tyranny, violence, and injustice."

On another occasion, in the Commons, December 8, 1775, Mr. Fox expressed himself thus sententiously:—

"I have always said that the war carrying on against the Americans is unjust."

Again, in the Lords, March 5, 1776, the Earl of Effingham said:—

"I never can stand up in your Lordships' presence without throwing in a few words on the justice of this unnatural war."

In the Commons, March 11, 1776, Colonel Barré, Mr. Burke, Mr. Fox, all vied in eulogy of General Montgomery, the account of whose death before Quebec had arrived a few days before.

The same spirit was constantly manifest. In the Commons, April 24, 1776, in the debate on the Budget, embodying taxes to carry on the war against America, Mr. Fox laid down the constitutional rule of opposition to an unjust war.

"To the resolutions he should give his flat negative, and that not because of any particular objections to the taxes proposed (although there might be a sufficient ground for urging many), but because he could not conscientiously agree to grant any money for so destructive, so ignoble a purpose as the carrying on a war commenced unjustly, and supported with no other view than to the extirpation of freedom and the violation of every social compact. This he conceived to be the strict line of conduct to be observed by a member of Parliament.... He then painted the quarrel with America as unjust, and the pursuance of the war as blood-thirsty and oppressive."

Colonel Barré followed, and adopted the phrase of Mr. Fox, "giving his flat negative to the resolutions, as they were calculated to tax the subject for an unjust purpose."

The Duke of Grafton, in the Lords, October 31, 1776, repeated the sentiments he had avowed at an earlier day.

"He pledged himself to the House, and to the public, that, while he had a leg to stand on, he would come down day after day to express the most marked abhorrence of the measures hitherto pursued, and meant to be adhered to, in respect to America."

On the same night, in the Commons, Mr. Fox exclaimed:—

"The noble Lord who moved the amendment said that we were in the dilemma of conquering or abandoning America. If we are reduced to that, I am for abandoning America."

In the Commons, November 6, 1776, Mr. Burke likened England to a "cruel conqueror."

"You simply tell the Colonists to lay down their arms, and then you will do just as you please. Could the most cruel conqueror say less? Had you conquered the Devil himself in Hell, could you be less liberal?"

Colonel Barré, in the Commons, February 10, 1777, insisted:—

"America must be reclaimed, not conquered or subdued. Conciliation or concession are the only sure means of either gaining or retaining America."

The Budget came up again in the Commons, May 14, 1777, when Mr. Burke spoke nobly:—

"He was, and ever would be, ready to support a just war, whether against subjects or alien enemies; but where justice, or a color of justice, was wanting, he should ever be the first to oppose it."

All these declarations were crowned by Lord Chatham's motion in the Lords, May 30, 1777, to put a stop to American hostilities, when he spoke so wisely and bravely.

"We have tried for unconditional submission: try what can be gained by unconditional redress.... We are the aggressors. We have invaded them. We have invaded them as much as the Spanish Armada invaded England.... In the sportsman's phrase, when you have found yourselves at fault, you must try back.... I shall no doubt hear it objected, 'Why should we submit or concede? Has America done anything, on her part, to induce us to agree to so large a ground of concession?' I will tell you, my Lords, why I think you should. You have been the aggressors from the beginning.... If, then, we are the aggressors, it is your Lordships' business to make the first overture. I say again, this country has been the aggressor. You have made descents upon their coasts; you have burnt their towns, plundered their country, made war upon the inhabitants, confiscated their property, proscribed and imprisoned their persons. I do therefore affirm, that, instead of exacting unconditional submission from the Colonies, we should grant them unconditional redress. We have injured them; we have endeavored to enslave and oppress them. Upon this clear ground, instead of chastisement, they are entitled to redress."

Again Lord Chatham broke out, November 18, 1777, in words most applicable to the present occasion.

"I would sell my shirt off my back to assist in proper measures, properly and wisely conducted; but I would not part with a single shilling to the present ministers. Their plans are founded in destruction and disgrace. It is, my Lords, a ruinous and destructive war; it is full of danger; it teems with disgrace, and must end in ruin.... If I were an American, as I am an Englishman, while a foreign troop was landed in my country, I never would lay down my arms!—never!—never!—never!"

The Duke of Richmond, in the Lords, on the same occasion, returned to the charge in a similar spirit.

"Can we too soon put a stop to such a scene of carnage? My Lords, I know that what I am going to say is not fashionable language; but a time will come when every one of us must account to God for his actions, and how can we justify causing so many innocent lives to be lost?"

In the Commons, December 5, 1777, Mr. Hartley, the constant friend of America, brought forward a motion:—

"That it is unbecoming the wisdom and prudence of Parliament to proceed any farther in the support of this fruitless, expensive, and destructive war, more especially without any specific terms of accommodation declared."

The Marquis of Rockingham, in the Lords, February 16, 1778, exclaimed:—

"He was determined to serve his country by making peace at any rate."

At last, in the Lords, March 23, 1778, the Duke of Richmond brought forward a motion for the withdrawal of the forces from America.

The same question was presented again in the Commons, November 27, 1780, on a motion to thank General Clinton and others for their military services in America, when Mr. Wilkes laid down the true rule.

"I think it my duty to oppose this motion, because in my idea every part of it conveys an approbation of the American War,—a war unfounded in principle, and fatal in its consequences to this country.... Sir, I will not thank for victories which only tend to protract a destructive war.... As I reprobate the want of principle in the origin of the American War, I the more lament all the spirited exertions of valor and the wisdom of conduct which in a good cause I should warmly applaud. Thinking as I do, I see more matter of grief than of triumph, of bewailing than thanksgiving, in this civil contest, and the deluge of blood which has overflowed America.... I deeply lament that the lustre of such splendid victories is obscured and darkened by the want of a good cause, without which no war, in the eye of truth and reason, before God or man, can be justified."

Mr. Fox followed in similar strain.

"He allowed the merits of the officers now in question, but he made a distinction between thanks and praise. He might, admire their valor, but he could not separate the intention from the action; they were united in his mind; there they formed one whole, and he would not attempt to divide them."

Mr. Sheridan joined in these declarations.

"There were in that House different descriptions of men who could not assent to a vote that seemed to imply a recognition or approbation of the American War."

All these words are memorable from the occasion of their utterance, from the statesmen who uttered them, and from the sentiments avowed. The occasion was the war of Great Britain upon our fathers. The statesmen were the greatest masters of political wisdom and eloquence that England has given to the world. The sentiments were all in harmony with what I have urged on the present occasion. Orators contended with each other in the strength of their language. Lord Camden averred that "Great Britain was the aggressor." The Duke of Grafton declared, that, "while he had a leg to stand on," he would express his "abhorrence" of the war. Chatham gave utterance to the same sentiment in one of his most magnificent orations. And Wilkes, Sheridan, Fox, and Burke echoed this strain, all insisting that the war was unjust, and must therefore be stopped.

Thus far I have quoted testimony from Parliamentary debates on our own Revolution; but going farther back, we find similar authority. When Charles the First sent assistance to the French against the Huguenots in Rochelle, the officers and men did more than murmur; and here our authority is Hume. The commander of one of the ships "declared that he would rather be hanged in England for disobedience than fight against his brother Protestants in France."[202]

They went back to the Downs. Having received new orders, they sailed again for France.

"When they arrived at Dieppe, they found that they had been deceived. Sir Ferdinando Gorges, who commanded one of the vessels, broke through and returned to England. All the officers and sailors of all the other ships, notwithstanding great offers made them by the French, immediately deserted. One gunner alone preferred duty towards his king to the cause of religion, and he was afterwards killed in charging a cannon before Rochelle."[203]

The same sentiment prevailed also in the war upon Spain by Cromwell, when several naval officers, having scruples of conscience with regard to the justice of the war, threw up their commissions and retired. Here again Hume is our authority.

"No commands, they thought, of their superiors could justify a war which was contrary to the principles of natural equity, and which the civil magistrate had no right to order. Individuals, they maintained, in resigning to the public their natural liberty, could bestow on it only what they themselves were possessed of, a right of performing lawful actions, and could invest it with no authority of commanding what is contrary to the decrees of Heaven."[204]

Here again it is soldiers who refuse to fight in unjust war.

Such is the doctrine of morals sanctioned by English examples. Such should be the doctrine of an American statesman. If we apply it to the existing exigency, or try the candidates by this standard, we find, that, as Dr. Howe is unquestionably right, so Mr. Winthrop is too certainly wrong. Exalting our own candidate, I would not unduly disparage another. It is for the sake of the cause in which we are engaged, by the side of which individuals dwindle into insignificance, that we now oppose Mr. Winthrop, bearing our testimony against Slavery and the longer continuance of the Mexican War, demanding the retreat of General Taylor and the instant withdrawal of the American forces. Even if we seem to fail in this election, we shall not fail in reality. The influence of this effort will help to awaken and organize that powerful public opinion by which this war will at last be arrested.

Hang out, fellow-citizens, the white banner of Peace; let the citizens of Boston rally about it; and may it be borne forward by an enlightened, conscientious people, aroused to condemnation of this murderous war, until Mexico, now wet with blood unjustly shed, shall repose undisturbed beneath its folds.

INVALIDITY OF ENLISTMENTS

IN THE MASSACHUSETTS REGIMENT OF VOLUNTEERS FOR THE MEXICAN WAR.

Argument before the Supreme Court of Massachusetts, January, 1847.

By the Mexican War Bill (approved May 13, 1846) the President was authorized "to call for and accept the services of any number of volunteers, not exceeding fifty thousand," and provision was made for their organization. The Governor of Massachusetts, by proclamation, called for a Regiment in this Commonwealth, which was organized under the Act of Congress. Before it had left the Commonwealth, applications for discharge were made to the Supreme Court of Massachusetts in behalf of several persons repenting their too hasty enlistment. At the hearing, the proceedings by which the Regiment had been organized were called in question. Their validity was denied on the ground that the Act of Congress, in some of its essential provisions concerning volunteers, was unconstitutional,—that the enlistments were not in conformity with the Act,—and also that the militia laws of Massachusetts had been fraudulently used in forming the regiment. These points, and the further question, whether a minor is bound by his contract of enlistment under the Act, were argued by Mr. Sumner, who appeared as counsel for one of the petitioners. The Court sustained the validity of the proceedings, but discharged the minors.—See In Re Kimball, Murray, and Stone, 9 Law Reporter, 500, where the case is reported.

May it please your Honors,

This cause has a strong claim upon the careful consideration of the Court. It comes with a trinoda necessitas, a triple cord, to bind its judgment. It is important as respects the parties, the public, and the principles involved.

To the parties, it is one of the highest questions known to the law, being a question of human freedom. It is proposed to hold the petitioner in the servitude of the army for an indefinite space of time, namely, "for the duration of the war with Mexico." During all this period, he will be subject to martial law, and to the Articles of War, with the terrible penalties of desertion. He will be under the command of officers, at whose word he must move from place to place beyond the confines of the country, and perform unwelcome duties, involving his own life and the lives of others.

To the public, it is important, as it is surely of especial consequence, in whose hands is placed the power of life and death. The soldier is vested with extraordinary attributes. He is at times more than marshal or sheriff. He is also surrounded by the law with certain immunities, one of which is exemption from imprisonment for debt.

It is important from the principles involved. These are the distinctions between the different kinds of military force under the Constitution of the United States, the constitutionality of the Act of Congress of May, 1846, and the legality of the enlistments under it. The determination of these questions will establish or annul the immense and complex Volunteer System now set in motion.

In a case of such magnitude, I shall be pardoned for dwelling carefully upon the different questions. In the course of my argument I hope to establish the following propositions.

First. That the forces contemplated by the Act of May, 1846, are a part of the "army" of the United States, or its general military force, and not of the "militia."

Secondly. That the part of the Act of Congress of 1846 providing for the officering of the companies is unconstitutional, and the proceedings thereunder are void.

Thirdly. That the present contract is illegal, inasmuch as it is not according to the terms of the Statute, which prescribes that it shall be for "twelve months or the war," whereas it is "for the war" only.

Fourthly. That it is illegal, being entered into by an improper use of the militia laws of Massachusetts, so as to be a fraud on those laws.

Fifthly. That minors cannot be held by contract of enlistment under the present Act.

I shall now consider these different propositions.

First. The force contemplated by the Act of May, 1846, is a part of the army of the United States, or of its general military force, and not of the militia.

It is called "volunteers"; but on inquiry it will appear that it has elements inconsistent with militia, while it wants elements essential to militia.

Without stopping to consider what these elements are, it will be proper, first, to consider the powers of Congress over the land forces. Congress is not omnipotent, like the British Parliament. It can do only what is permitted by the Constitution of the United States, and in the manner permitted. We are, then, to search the Constitution.

Here we find two different species of land forces, and only two. These are "armies" and "militia." There is between the two no hybrid or heteroclite,—no tertium quid.

These forces are referred to and sanctioned by the following clauses, and by no others: "The Congress shall have power to raise and support armies; to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions; to provide for organizing arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States, respectively, the appointment of the officers, and the authority of training the militia, according to the discipline prescribed by Congress." (Art. I. § 8.) And again: "The President shall be commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States." (Art. II. § 2.)

It has been ably argued by Mr. Lanier, in the Virginia Assembly, that the distinction between army and militia is, that the first stands on contract or voluntary enlistment, and the second on the law compelling parties to serve; that this simple test determines the character of the service, Did the party enter voluntarily or by operation of law? If voluntarily, then he is in the "army"; if compulsorily, or by operation of law, then he is in the "militia." This distinction is palpable, and is true, I think, beyond question, with regard to the "army" and "militia" under existing laws. I am not prepared to say that Congress, under the clause authorizing it "to raise and support armies," may not, following the example of other countries, enforce a conscription, or levy, which shall act compulsorily throughout the country, being in this respect like the militia, although unlike it in other respects. Such a plan was recommended by Mr. Monroe, when Secretary of War, October 17, 1814, who speaks of it as follows.

"The limited power which the United States have in organizing the militia may be urged as an argument against their right to raise regular troops in the mode proposed. If any argument could be drawn from that circumstance, I should suppose that it would be in favor of an opposite conclusion. The power of the United States over the militia has been limited, and that for raising regular armies granted without limitation. There was, doubtless, some object in this arrangement. The fair inference seems to be, that it was made on great consideration,—that the limitation in the first instance was intentional, the consequence of the unqualified grant of the second.

"But it is said, that by drawing the men from the militia service into the regular army and putting them under regular officers you violate a principle of the Constitution which provides that the militia shall be commanded by their own officers. If this was the fact, the conclusion would follow. But it is not the fact. The men are not drawn from the militia, but from the population of the country. When they enlist voluntarily, it is not as militia-men that they act, but as citizens. If they are drafted, it must be in the same sense. In both instances they are enrolled in the militia corps; but that, as is presumed, cannot prevent the voluntary act in one instance or the compulsive in the other. The whole population of the United States, within certain ages, belong to these corps. If the United States could not form regular armies from them, they could raise none."[205]

If Mr. Monroe's views are sound, the "army" of the United States, as well as the "militia," may be raised by draft. It may consist of regulars and irregulars.

But whatever may be the powers of Congress on this subject, it is certain that there is no legislation now in force, providing for the "army," except by means of voluntary enlistment. The whole army of the United States is, at present, an army of volunteers; and all persons who are volunteers are of the army, and not of the militia. To call them volunteers does not take them out of the category of the army, or general military force of the United States.

On the other hand, the militia, when in the service of the United States as militia, are not volunteers. They come by draft or conscription. This distinction is derived from England, to whom we are indebted for so much of our jurisprudence, and so many principles of constitutional law. We find from Blackstone (Vol. I. p. 412), that the English militia consists of "the inhabitants of the county, chosen by lot for three years." They are called "the constitutional security which the laws have provided for the public peace and for protecting the realm against foreign or domestic violence"; and "they are not compellable to march out of their counties, unless in case of invasion or actual rebellion within the realm, nor in any case compellable to march out of the kingdom." They are "officered by the lord-lieutenant, the deputy-lieutenants, and other principal landholders, under a commission from the crown." It will be observed, from this description, that there are four distinct elements in the English militia. 1. It is in its nature a draft or conscription. 2. It is local in its character. 3. It is officered by persons in the county. 4. It can be called out only on peculiar exigencies, expressly designated. In all these respects it is distinguishable from what is called the army of England.

Mr. Burke somewhere says that nearly half of the early editions of Blackstone's Commentaries found their way to America. The framers of our Constitution were familiar with this work, and they have reproduced all these four features of the English militia, substituting "State" for "county," and adopting even the peculiar exigencies when they are compellable to march "out of the State." Thus following Blackstone, they have recognized an "army" and a "militia," without any third or intermediate military body.

This same distinction between the militia and army was recognized by Mr. Charles Turner, in the British Parliament, in a speech on the Bill for embodying the Militia, November 2, 1775. "The proper men," he says, "to recruit and supply your troops are the scum and outcast of cities and manufactories: fellows who voluntarily submit to be slaves by an apprenticeship of seven years are the proper persons to be military ones. But to take the honest, sober, industrious fellow from the plough is doing an essential mischief to the community, and laying a double tax."[206]

Let us now apply these general considerations to the present case.

The Act of May, 1846, recognizes a clear distinction between militia and volunteers. It authorizes the President "to employ the militia, naval, and military forces of the United States, and to call for and accept the services of any number of volunteers, not exceeding fifty thousand, ... to serve twelve months after they shall have arrived at the place of rendezvous, or to the end of the war, unless sooner discharged." The next section (§ 2) provides that "the militia, when called into the service of the United States by virtue of this Act or any other Act, may, if in the opinion of the President of the United States the public interest requires it, be compelled to serve for a term not exceeding six months after their arrival at the place of rendezvous." The ninth section speaks of "militia or volunteers," referring to the two distinct classes.

Now on the face of this Act there are at least two distinct recognitions that "volunteers" are not of the militia: 1st, in providing for the employment of volunteers and also of militia, treating the two as distinct; and, 2d, in providing that the service for volunteers shall be "twelve months or the war," while that of the militia is "six months" only.

There are other reasons. 1st, The volunteers do not come by draft, but by contract. 2d, Then, again, the President is expressly empowered to apportion the staff, field, and general officers among the respective States and Territories from which the volunteers shall tender their services, while, in the supplementary Act of June 26, major-generals and brigadier-generals are to be appointed by the President by and with the advice and consent of the Senate, all of which, notwithstanding the sop to the States in the apportionment provision, is inconsistent with the character of militia. 3d, Another reason why these cannot be militia is, that no such exigency has occurred as authorizes the President to call for the militia,—as, for instance, "to execute the laws of the Union, suppress insurrections, and repel invasions."

Thus far I have sought to bring the proposed body of volunteers to the touchstone of the Constitution and laws of the United States. Let us now see how they conform to the Constitution and laws of Massachusetts.

1. By the Constitution of Massachusetts, the Governor is commander-in-chief of the militia; but he cannot command these volunteers.

2. By our State laws (Chap. 92, March 24, 1840) volunteers in the militia are "to do duty for five years", while volunteers under the Act in question are for "twelve months or the war."

3. "A uniform such as the commander-in-chief shall prescribe" is appointed for the volunteer militia, while volunteers under the Act are subject to no such regulation.

4. The statute of 1846, chap. 218, § 10, provides that each company shall have "one first, one second, one third, and one fourth lieutenant." Mr. Secretary Marcy's requisition (p. 30 of Mr. Cushing's Report[207]) allows to each company "one first lieutenant and two second lieutenants."

By provisions like these Massachusetts has marked her militia that she may know them. She tells them how they shall be apparelled and officered. But the body now called out is so apparelled and officered that the Commonwealth cannot recognize it as her militia.

It seems clear, that, in the light of the Constitution and laws of the United States, and also of the Constitution and laws of Massachusetts, this body cannot be a part of the militia.

But it is suggested on the other side that the companies now raised may be regarded as companies of militia who volunteer as companies into the army of the United States; and it is urged that the requisitions of the Constitution are complied with, inasmuch as the officers of the regiment are commissioned by the Governor. To this it may be replied, that the militia of the Commonwealth have certain specific duties detailed in the statute on the subject (Chap. 92, 1840). For instance (§ 23), three parades in each year, and inspection on the last Wednesday of May; (§ 24) an inspection and review in each year; (§ 27) and particularly to aid the posse comitatus in case of riot. These all contemplate that they shall remain at home. Now it is not to be questioned, that, in any of the exigencies mentioned by the Constitution, they may be ordered from home, in the manner prescribed by the Constitution and laws; but it certainly cannot be allowable for a company of militia to VOLUNTEER as a company into a service inconsistent with the duties prescribed by the laws under which it is established. Adopting Mr. Monroe's distinction, the individuals can volunteer as citizens, but not as a company.

Let us try this point by an analogy. The Commonwealth by its legislation (Rev. Stat., chap. 18) establishes companies of engine-men, who are to be appointed by the selectmen of towns, to protect from fires. Is it supposed that these companies can volunteer, as companies, to enter the army of the United States, and go far away from the scene of the duties for which they were established? But the companies of militia are hardly less local and home-abiding in character than the companies of engine-men. It is impossible to suppose that they can volunteer as companies into the "army" of the United States.

But suppose, for the sake of argument, that companies of militia, as such, may volunteer into the service of the United States, under the Act of May, 1846,—do they continue to be militia? Clearly not. They are in no wise subject to the laws of Massachusetts. Her Governor, who was so unfortunately prompt to put them in motion, cannot recall them, although he is commander-in-chief of her militia. They have not her uniform. Their officers are not her officers, but officers of the United States. The corps has become part of the army of the United States, or of its general military force.

And this is the legal character of the present Massachusetts Regiment, if it have any legal character.