qualified. Dr. Robinson meant only to say, that the resistance of the enemy master, on that occasion, did not affect the neutral cargo; presuming that the reader of his note would read the judgment to which it belonged, and in which he could not fail to find the nature of that occasion. This is what I have done, and what I trust your honors will do. "Territus insisto prioris margine ripo,"* may come with a good grace from the learned counsel whose interest it is to take refuge there from the doctrine of the case itself; but it does not suit me. I shall, on the contrary, pass to the case from the margin. Now what is that case? An enemy master endeavors to recover his captured property, or rather, as appears to have been the fact, to take the captured vessel; and Sir William Scott informs us that there is no harm in this, as regards the enemy master himself, and that it is quite clear that it cannot affect the neutral owner of the cargo. As to the enemy master, the quotation from Terence, "Lupum auribus teneo," explains the whole matter. If I capture an enemy I must take care to hold him. He is not forced, unless under parole, to acquiesce; and, if when opportunity offers he tries to withdraw himself and his property, or even to capture the captors, he does just what might be expected and what he has a right to do. He violates no duty, and infringes no obligation. I admit all this to be perfectly true; and I am ready to admit, if it will be of any service to the claimant, that the captain of the Nereide had a right not only to resist the Governor Tompkins, but to capture her if he could. What I object against the claimant is, not that the captain of the Nereide resisted unlawfully, with a view to his own rights, but that the claimant, whose property was liable to unresisted visitation and search, and whose rights and obligations were very different from those of the captain of the Nereide, had identified himself with him, and was a party to that resistance, inasmuch as he was the hirer of the force with which it was made, knowing its hostile character, and had associated it upon the ocean with his property, aware of the hostile control to which it was subject. For a force thus qualified, and so employed by a neutral, I say that he is responsible upon the plainest grounds of law and reason, if it be used, as from its nature it must be, in a way in which he is not authorized to use it. I say, further, that a neutral cannot at all employ such a force, placed under such hostile control, without guilt; and that he incurs the confiscation of his goods if they are found connected with it, although there be no resistance on account of its being hopeless. I say, further, that if a neutral will have a resort to force, it must at his peril be such as is not from its character hurtful to the opposite belligerent, or inconsistent with a peaceable compliance on his part with all his neutral duties. And, surely, there Ovid Lib. 5 Fab. 9, 1. 597. VOL. II-8 is nothing in the case of the Catharina Elizabeth which says otherwise. Another case in the same collection, vol. 3, p. 278. The Despatch, tells us that if a neutral master endeavors to rescue or recover by force the captured property, it shall be condemned, because the captor is not bound as against a neutral to keep military possession of the thing captured, or justified in holding the neutral master and crew as prisoners. On the contrary, he is to rely upon the duty of the neutral to submit, and hope for restitution and compensation from a court of prize; and if this duty be violated by the neutral master and crew, confiscation is the result. This is explanatory of the judgment in the case of the Catharina Elizabeth, and is there used by Sir William Scott for that purpose. It shows, as the facts of the case also show, that the court intended to confine its decision in the Catharina Elizabeth to the case of an enemy master already captured, for whom, as he is in the custody of the captor, whose business it is, not to trust, but to guard and keep him, the neutral shipper is no longer answerable. That the enemy master ceases the moment he becomes a prisoner, and his vessel prize, to be, for any purpose, the agent, or in any sense the associate of the neutral owner of the cargo, and that their connection is utterly dissolved by the seizure, is perfectly clear. It would, therefore, be monstrous to fasten upon the neutral owner of the goods a continuing suretiship for the peaceful conduct of the enemy master, after he has passed into the state of a prisoner of war. But in the consideration of the case of the Catharina Elizabeth, it must, in an especial manner, be borne in mind, that the French vessel was not armed at all, and of course not by or for the owner of the cargo; that she did not resist visitation, search or seizure; that the single circumstance upon which condemnation of the American cargo was urged, was some hostile attempt of the enemy master after capture consummated-which attempt was really and constructively his own personal act, not procured or facilitated, or influenced, directly or indirectly, remotely or immediately, by the owner of the cargo, to whom in law he had become a stranger. Who is it that can persuade himself that there is any resemblance between that case and the present, or that, if in that case there was supposed to be an arguable reason, if I may be allowed that expression, for visiting upon the neutral shipper the hostile conduct of the enemy master, the same tribunal would, in our case, have hesitated to condemn ? Observe the contrast between the two cases. In our case, at the epoch of the resistance, the relation was subsisting in its full extent between him who made that resistance, and him who provides the means without providing any check upon the use of those means; in the other case, it was extinguished. In our case, the force employed was the original force, hired by the owner of the cargo, and left by We are now, thank God, once more at peace. Our belligerent rights may, therefore, sleep for a season. May their repose be long and profound! But the time must arrive, when the interests and honor of this great nation will command them to awake, and when it does arrive, I feel undoubting confidence that they will rise from their slumber in the fulness of their strength and majesty, unenfeebled and unimpaired by the judgment of this high court. him to the direction of a hostile agent, who used it, as he could not but be sure he would, hostilely; in the other case, there was no original force; and that which was used was the personal force of the enemy master, and not that of the vessel. In our case, the force was exerted in direct opposition to the neutral's obligation of submission with reference to the cargo; and in the other, the neutral had already submitted, and his goods were in the quiet possession of the captors. In our case, a general The skill and valor of our infant navy, which capacity, legal and actual, of annoyance, as has illuminated every sea, and dazzled the maswell as of resistance, had been given, by or for ter states of Europe by the splendor of its trithe neutral, to the vessel as a belligerent ves-umphs, have given us a pledge, which, I trust, sel, (a capacity which she preserved during her will continue to be dear to every American voyage,) for which alone, independently of re- heart, and influence the future course of our sistance in fact, the neutral is, as I confidently policy, that the ocean is destined to acknowcontend, liable to the penalty of confiscation; ledge the youthful dominion of the West. I am in the other, the vessel was an ordinary, un- not likely to live to see it, and, therefore, the armed, commercial vehicle, which the neutral more do I seize upon the enjoyment presented might hire and employ with perfect innocence by the glorious anticipation. That this dominand safety. ion, when God shall suffer us to wrest it from those who have abused it, will be exercised with such justice and moderation as will put to shame the maritime tyranny of recent times, and fix upon our power the affections of mankind, it is the duty of us all to hope; but it is equally our duty to hope that we shall not be so inordinately just to others as to be unjust to ourselves. * * The little strength, with which I set out, is at last exhausted, and I must hasten to a conclusion. I commit to you, therefore, without further discussion, the cause of my clients, identified with the rights of the American people, and with those wholesome rules which give to public law simplicity and system, and tend to the quiet of the world. SPEECH ON THE MISSOURI QUESTION. This speech on a bill for the admission of Missouri into the Union, with a clause prohibiting the introduction of slaves into the new State, was delivered by Mr. Pinkney in the United States Senate on the fifteenth of February, 1820.* As I am not a very frequent speaker in this assembly, and have shown a desire, I trust, rather to listen to the wisdom of others than to lay claim to superior knowledge by undertaking to advise, even when advice, by being seasonable in point of time, might have some chance of being profitable, you will, perhaps, bear with me if I venture to trouble you once more on that eternal subject which has lingered here, until all its natural interest is exhausted, and every topic connected with it is literally worn to tatters. I shall, I assure you, sir, speak with laudable brevity-not merely on account of the feeble state of my health, and from some reverence for the laws of good taste which forbid me to speak otherwise, but also from a sense of justice to those who honor me with their *See the speech of Rufus King, on the same subject, at page 44, preceding. attention. My single purpose, as I suggested yesterday, is to subject to a friendly, yet close examination, some portions of a speech, imposing, certainly, on account of the distinguished quarter from whence it came-not very imposing (if I may so say, without departing from that respect which I sincerely feel and intend to manifest for eminent abilities and long experience) for any other reason. I believe, Mr. President, that I am about as likely to retract an opinion which I have formed, as any member of this body, who, being a lover of truth, inquires after it with diligence before he imagines that he has found it; but I suspect that we are all of us so constituted as that neither argument nor declamation, levelled against recorded and published decision, can easily discover a practicable avenue through which it may hope to reach either our heads or our hearts. I mention this, lest it may excite surprise, when I take the liberty to add, that the speech of the honorable gentleman from New York, upon the great subject with which it was principally occupied, has left me as great an infidel as it found me. It is possible, indeed, that if I had had the good fortune to hear that speech at an earlier stage of this debate, when all was fresh and new, although I feel confident but reduce it to a melancholy ruin. The people of this country, if I do not wholly mistake their character, are wise as well as virtuous. They know the value of that federal association which is to them the single pledge and guarantee of power and peace. Their warm and pious affections will cling to it as to their only hope of prosperity and happiness, in defiance of pernicious abstractions, by whomsoever inculcated, or howsoever seductive or alluring in their aspect. that the analysis which it contained of the con- | the goodly fabric of the Union to its foundations, stitution, illustrated as it was by historial anecdote rather than by reasoning, would have been just as unsatisfactory to me then as it is now, I might not have been altogether unmoved by those warnings of approaching evil which it seemed to intimate, especially when taken in connection with the observations of the same honorable gentleman on a preceding day, "that delays in disposing of this subject, in the manner he desires, are dangerous, and that we stand on slippery ground." I must be permitted, however, (speaking only for myself) to say, that the hour of dismay is passed. I have heard the tones of the larum bell on all sides, until they have become familiar to my ear, and have lost their power to appal, if, indeed, they ever possessed it. Notwithstanding occasional appearances of rather an unfavorable description, I have long since persuaded myself that the Missouri question, as it is called, might be laid to rest, with innocence and safety, by some conciliatory compromise at least, by which, as is our duty, we might reconcile the extremes of conflicting views and feelings, without any sacrifice of constitutional principle; and in any event, that the Union would easily and triumphantly emerge from those portentous clouds with which this controversy is supposed to have environed it. I confess to you, nevertheless, that some of the principles announced by the honorable gentleman from New York,* with an explicitness that reflected the highest credit on his candor, did, when they were first presented, startle me not a little. They were not perhaps entirely new. Perhaps I had seen them before in some shadowy and doubtful shape, "If shape it might be called, that shape had none, Distinguishable in member, joint, or limb." But in the honorable gentleman's speech they were shadowy and doubtful no longer. He exhibited them in forms so boldly and accurately defined-with contours so distinctly traced with features so pronounced and striking, that I was unconscious for a moment that they might be old acquaintances. I received them as "novi hospites" within these walls, and gazed upon them with astonishment and alarm. I have recovered, however, thank God, from this paroxysm of terror, although not from that of astonishment. I have sought and found tranquillity and courage in my former consolatory faith. My reliance is that these principles will obtain no general currency; for, if they should, it requires no gloomy imagination to sadden the perspective of the future. My reliance is upon the unsophisticated good sense and noble spirit of the American people. I have what I may be allowed to call a proud and patriotic trust, that they will give countenance to no principles, which, if followed out to their obvious consequences, will not only shake • Mr. King. Sir, it is not an occasion like this, although connected, as contrary to all reasonable expectation it has been, with fearful and disorganizing theories, which would make our estimates, whether fanciful or sound, of natural law, the measure of civil rights and political sovereignty in the social state, that can harm the Union. It must, indeed, be a mighty storm that can push from its moorings this sacred ark of the common safety. It is not every trifling breeze, however it may be made to sob and howl in imitation of the tempest, by the auxiliary breath of the ambitious, the timid, or the discontented, that can drive this gallant vessel, freighted with every thing that is dear to an American bosom, upon the rocks, or lay it a sheer hulk upon the ocean. I may perhaps mistake the flattering suggestions of hope, (the greatest of all flatterers, as we are told,) for the conclusions of sober reason. Yet it is a pleasing error, if it be an error, and no man shall take it from me. I will continue to cherish the belief, in defiance of the public patronage given by the honorable gentleman from New York, with more than his ordinary zeal and solemnity, to deadly speculations, which, invoking the name of God to aid their faculties for mischief, strike at all establishments, that the union of these States is formed to bear up against far greater shocks than, through all vicissitudes, it is ever likely to encounter. I will continue to cherish the belief, that, although like all other human institutions it may for a season be disturbed, or suffer momentary eclipse by the transit across its disk of some malignant planet, it possesses a recuperative force, a redeeming energy in the hearts of the people, that will soon restore it to its wonted calm, and give it back its accustomed splendor. On such a subject I will discard all hysterical apprehensions-I will deal in no sinister auguries-I will indulge in no hypochondriacal forebodings. I will look forward to the future with gay and cheerful hope; and will make the prospect smile, in fancy at least, until overwhelming reality shall render it no longer possible. I have said thus much, sir, in order that I may be understood as meeting the constitutional question as a mere question of interpretation, and as disdaining to press into the service of my argument upon it prophetic fears of any sort, however they may be countenanced by an avowal, formidable by reason of the high reputation of the individual by whom it has been hazarded, of sentiments the most destruc- Sir, it was but the other day that we were forbidden, (properly forbidden I am sure, for the prohibition came from you,) to assume that there existed any intention to impose a prospective restraint on the domestic legislation of Missouri-a restraint to act upon it contemporaneously with its origin as a State, and to continue adhesive to it through all the stages of its political existence. We are now, however, permitted to know that it is determined by a sort of political surgery to amputate one of the limbs of its local sovereignty, and thus mangled and disparaged, and thus only, to receive it into the bosom of the constitution. It is now avowed that, while Maine is to be ushered into the Union with every possible demonstration of studious reverence on our part, and on hers with colors flying, and all the other graceful accompaniments of honorable triumph, this illconditioned upstart of the West, this obscure foundling of a wilderness that was but yesterday the hunting ground of the savage, is to find her way into the American family as she can, with an humiliating badge of remediless inferiority patched upon her garments, with the mark of recent, qualified manumission upon her, or rather with a brand upon her forehead to tell the story of her territorial vassalage, and to perpetuate the memory of her evil propensities. It is now avowed that, while the robust district of Maine is to be seated by the side of her truly respectable parent, co-ordinate in authority and honor, and is to be dandled into that power and dignity of which she does not stand in need, but which undoubtedly she deserves, the more infantine and feeble Missouri is to be repelled with harshness, and forbidden to come at all, unless with the iron collar of servitude about her neck, instead of the civic crown of republican freedom upon her brows, and is to be doomed for ever to leading-strings, unless she will exchange those leading-strings for shackles. I am told that you have the power to establish this odious and revolting distinction, and I am referred for the proofs of that power to various parts of the constitution, but principally to that part of it which authorizes the admission of new States into the Union. I am myself of opinion that it is in that part only that the advocates for this restriction can, with any hope of success, apply for a license to impose it; and that the efforts which have been made to find it in other portions of that instrument, are too desperate to require to be encountered. shall, however, examine those other portions before I have done, lest it should be supposed by those who have relied upon them, that what I omit to answer I believe to be unanswerable. The clause of the constitution which relates to the admission of new States is in these words: "The Congress may admit new States into this Union," &c., and the advocates for restriction maintain that the use of the word "may" imports discretion to admit or to reject; and that in this discretion is wrapped up another-that of prescribing the terms and conditions of admission in case you are willing to admit: "Cujus est dare ejus est disponere." I will not for the present inquire whether this involved discretion to dictate the terms of admission belongs to you or not. It is fit that I should first look to the nature and extent of it. I think I may assume that if such a power be any thing but nominal, it is much more than adequate to the present object that it is a power of vast expansion, to which human sagacity can assign no reasonable limits that it is a capacious reservoir of authority, from which you may take, in all time to come, as occasion may serve, the means of oppression as well as of benefaction. I know that it professes at this moment to be the chosen instrument of protecting mercy, and would win upon us by its benignant smiles: but I know too it can frown, and play the tyrant, if it be so disposed. Notwithstanding the softness which it now assumes, and the care with which it conceals its giant proportions beneath the deceitful drapery of sentiment, when it next appears before you it may show itself with a sterner countenance and in more awful dimensions. It is, to speak the truth, sir, a power of colossal size-if indeed it be not an abuse of language to call it by the gentle name of a power. Sir, it is a wilderness of powers, of which fancy in her happiest mood is unable to perceive the far distant and shadowy boundary. Armed with such a power, with religion in one hand and philanthropy in the other, and followed with a goodly train of public and private virtues, you may achieve more conquests over sovereignties not your own, than falls to the common lot of even uncommon ambition. By the aid of such a power, skilfully employed, you may "bridge your way" over the Hellespont that separates State legislation from that of Congress; and you may do so for pretty much the same purpose with which Xerxes once bridged his way across the Hellespont that separates Asia from Europe. He did so, in the language of Milton, | memorial, and speech, with which the press has "the liberties of Greece to yoke.' You may lately groaned, is a foul blot upon our otherwise do so for the analogous purpose of subjugating immaculate reputation. Let this be conceded and reducing the sovereignties of States, as-yet you are no nearer than before to the your taste or convenience may suggest, and conclusion that you possess power which may fashioning them to your imperial will. There deal with other subjects as effectually as with are those in this House who appear to think, this. Slavery, we are further told, with some and I doubt not sincerely, that the particular pomp of metaphor, is a canker at the root of restraint now under consideration is wise, and all that is excellent in this republican empire, benevolent, and good; wise as respects the a pestilent disease that is snatching the youthful Union-good as respects Missouri-benevolent bloom from its cheek, prostrating its honor and as respects the unhappy victims whom with a withering its strength. Be it so-yet if you novel kindness it would incarcerate in the south, have power to medicine to it in the way proand bless by decay and extirpation. Let all posed, and in virtue of the diploma which you such beware, lest in their desire for the effect claim, you have also power in the distribution which they believe the restriction will produce, of your political alexipharmics to present the they are too easily satisfied that they have the deadliest drugs to every territory that would right to impose it. The moral beauty of the become a State, and bid it drink or remain a present purpose, or even its political recom- colony forever. Slavery, we are also told, is now mendations, (whatever they may be,) can do"rolling onward with a rapid tide towards the nothing for a power like this, which claims to boundless regions of the west," threatening to prescribe conditions "ad libitum," and to be doom them to sterility and sorrow, unless some competent to this purpose, because it is com- potent voice can say to it-thus far shalt thou petent to all. This restriction, if it be not go, and no farther. Slavery engenders pride smothered in its birth, will be but a small part and indolence in him who commands, and inof the progeny of that prolific power. It teems flicts intellectual and moral degradation on him with a mighty brood, of which this may be who serves. Slavery, in fine, is unchristian entitled to the distinction of comeliness as well and abominable. Sir, I shall not stop to deny as of primogeniture. The rest may want the that slavery is all this and more; but I shall boasted loveliness of their predecessor, and be not think myself the less authorized to deny even uglier than "Lapland witches." that it is for you to stay the course of this dark torrent, by opposing to it a mound raised up by the labors of this portentous discretion on the domain of others a mound which you cannot erect but through the instrumentality of a trespass of no ordinary kind-not the comparatively innocent trespass that beats down a few blades of grass which the first kind sun or the next refreshing shower may cause to spring again-but that which levels with the ground the lordliest trees of the forest, and claims immortality for the destruction which it inflicts. I shall not, I am sure, be told that I exaggerate this power. It has been admitted here and elsewhere that I do not. But I want no such concession. It is manifest that as a discretionary power it is every thing or nothingthat its head is in the clouds, or that it is a mere figment of enthusiastic speculation--that it has no existence, or that it is an alarming vortex ready to swallow up all such portions of the sovereignty of an infant State as you may think fit to cast into it as preparatory to the introduction into the union of the miserable residue. No man can contradict me when I say, that if you have this power, you may squeeze down a new-born sovereign State to the size of a pigmy, and then taking it between finger and thumb, stick it into some nitch of the Union, and still continue by way of mockery to call it a State in the sense of the constitution. You may waste it to a shadow, and then introduce it into the society of flesh and blood an object of scorn and derision. You may sweat and reduce it to a thing of skin and bone, and then place the ominous skeleton beside the Perhaps, sir, you will permit me to remind you, that it is almost always in company with those considerations that interest the heart in some way or other, that encroachment steals into the world. A bad purpose throws no veil over the licenses of power. It leaves them to be seen as they are. It affords them no protection from the inquiring eye of jealousy. The danger is when a tremendous discretion like the present is attempted to be assumed, as on this occasion, in the names of pity, of religion, of national honor and national prosperity; when encroachment tricks itself out in the robes of piety, or humanity, or addresses itself to pride of country, with all its kindred passions and motives. It is then that the guardians of the constitution are apt to slumber on their watch, or, if awake, to mistake for lawful rule some pernicious arrogation of power. I would not discourage authorized legislation upon those kindly, generous, and noble feelings which Providence has given to us for the best of purposes: but when power to act is under discussion, I will not look to the end in view, lest I should become indifferent to the lawfulness of the means. Let us discard from this high constitutional question, all those extrinsic considerations which have been forced into its discussion. Let us endeavor to approach it with a philosophic impartiality of temperwith a sincere desire to ascertain the boundaries of our authority, and a determination to keep our wishes in subjection to our allegiance to the constitution. Slavery, we are told in many a pamphlet, |