the case itself, which, however, embodied some important doctrines of
the law of prize, and a large sum of money, deserves a passing allusion.
The name of the case is the Santissima Trinidad, and the St. Andre,
which was argued in the Supreme Court of the United States in 1822, on
an appeal from the Circuit Court of Virginia, and is reported in seventh
Wheaton (283-355). This was a libel filed by the Consul of Spain in the
District Court of Virginia, in April, 1817, against 89 bales of
cochineal, two bales of jalap, and one box of Vanilla, originally
constituting part of the cargoes of the Spanish ships Santissima
Trinidad and St. Andre, and alleged to be unlawfully and piratically
taken out of those vessels on the high seas by a squadron consisting of
two armed vessels, the Independencia del Sud, and the Altravida, under
the command of Don Diego Chator, who sailed under a commission from the
Government of the United Provinces of the Rio de la Plata--that
Government having been, or being a dependency of Spain, and its
independence not having been acknowledged by Spain or by the United
States. Tazewell was employed by the Spanish Consul, M. Chacon, whose
person is so familiar to our older citizens; and he gained the case in
the Federal District and Circuit Courts, following it, contrary to his
usual custom, to the Supreme Court. The case was argued in 1822, Winder
and Ogden for the appellants, and Tazewell and Webster for the
appellees. The questions involved were points of the law of prize, and
are too technical for this presence; but the speech of Tazewell,
condensed and mutilated as it is in the report, is an admirable specimen
of argument on purely legal topics which were to be worked out in the
new political relations of the world, and to be settled by the law of
nations. He gained the case in all the courts. John Randolph attended
the trial in Washington, and was evidently alarmed at the trepidation
which was always visible in Tazewell's manner on arising to address a
court in a great case, and especially in a new scene, and felt some
misgivings about the result. The trepidation, however, soon passed away;
and when Tazewell proceeded to establish point after point, and was in
the full headway of his argument--a large audience, consisting of the
ablest lawyers and statesmen of the Union, watching every syllable that
fell from his lips, and following him through the mazes of his mighty
plea--Randolph could restrain himself no longer, but said in a tone
audible to those about him: "_I told you so--I told you so; Old Virginny
never tires._"
It is known that Mr. Pinkney was engaged for the appellants; and much
interest was excited at the approaching contest between two men whose
peculiar province was the law of admiralty; but before the appointed
time, Pinkney was summoned to another and higher tribunal; and among
those who deplored the loss which our whole country suffered in his
death, none was more sincere than Mr. Tazewell. A friend, who had heard
the current rumors concerning the death of Pinkney in connexion with the
case, ventured to ask Mr. Tazewell about the truth of the matter. He
instantly said that it was all a fiction,--that Pinkney, who was of a
full temperament, died of an inflammatory disease (as we all know from
his life by Wheaton); that there were no extremely difficult points in
the case, and that, if there had been, Pinkney feared the face of no man
living. Of Mr. Tazewell, intellectually and physically as he appeared at
this time, an eloquent likeness is presented in the sketch of Francis
Walker Gilmer.[5]
Tazewell had argued the Cochineal case in Norfolk and in Richmond
before it reached the Supreme Court, and had exhibited such an abounding
wealth of argument, it was believed that his last speech would be a mere
reflection of its predecessors in the cause; but he was as wary as he
was able; and, knowing from the magnitude of the case it would be
carried up, and would be maintained by the greatest legal talents of the
age, he wisely reserved some of his strongest points for the court of
the last resort. When General Taylor, who went up to hear the final
argument, returned to Norfolk, he told the bar, that to his surprise
Tazewell had taken six new points in the case.
When M. Chacon, the Spanish Consul, called on Mr. Tazewell to engage him
in behalf of the Spanish claimants, he was informed that he would
undertake it in all the other points, if those connected with the then
recent treaty with Spain, under which he had been appointed a
commissioner by Monroe, were assigned to other counsel; and he suggested
the name of Webster. He ever held the abilities of Mr. Webster in the
highest respect; and when asked, on reaching Norfolk after the argument,
what he thought of Webster, who was then, comparatively, a young man, he
said he was excessively clever, but a lazy dog.
We now approach an epoch in the history of parties which materially
involves the consistency of Mr. Tazewell as a politician. Although he
had not been in public life since his withdrawal from Congress, he held
no unimportant place in popular estimation. His course in the House of
Delegates during four troublous years, and in the House of
Representatives where he had taken an active and fearless part in the
fierce strife for the election of a President, had commended him to the
affections of that majority which has ruled the politics of Virginia
since the adoption of the present federal constitution. He was the son
of a beloved statesman who had fallen while in the innermost councils of
that great party, and whose name was held in honor. His talents had now
gained him a position among the ablest members of the bar; and his old
political associates looked to him for aid in the crisis which was
drawing near; and they looked in vain. This aspect of his political life
it is my office to present before you.
Up to 1805 the administration of Jefferson was floating, to use one of
his own figures, on the full tide of successful experiment. The
obnoxious measures of the federal party, where repeal was possible, had
been repealed. The alien act, which Tazewell condemned not only as
unconstitutional but to the last degree unwise, as tending to repress
the emigration of those who would not only settle our waste lands, but
to serve to defend the country during the crisis which he saw was
rapidly approaching, and the sedition act, had expired by their own
limitation. The judiciary act, which had been passed and carried into
effect in the descending twilight of the late administration, had been
repealed. Economy had been introduced into the public expenditures; and
a considerable portion of the public debt had been extinguished. The
foreign policy of the administration had been as successful as the
domestic. Partly by chance, partly by that wise foresight which
anticipates the possibilities of the future and provides for them, the
administration had acquired from France the vast domain of Louisiana;
and thenceforth the exclusive navigation of that mighty river, on which
hitherto we dared not lift a sail or dip an oar without the consent of a
foreign power, and on the banks of which, since its transfer from Spain
to France, we had been vainly begging a place of deposit, became the
birthright of every American citizen.
But this flattering prospect was soon to be overcast. England and France
had long been at war; and, at the period of which we are treating,
France had become the ruthless bandit of the land, and England the
wanton pirate of the sea. Each desired the cooperation of the United
States in the war--and each determined, in the event of our refusal to
take part in the controversy in its favor, to cripple our commerce by
all means within its reach. That commerce, fostered by our accidental
position as neutrals when the two great commercial nations of the world
were at war, had reached a marvellous height. Its keels vexed every sea.
Its flag was now seen in the frozen circles; and now it reflected from
its waving folds the fervors of the southern cross. Our merchants,
springing, as it were, in a single night from the station of ordinary
dealers and dependents on foreign countries to that of arbiters and
rulers of the commerce of the globe, were equal to their new position;
and our sailors, responsive to their will, gathered with their Briarean
arms the wealth of every realm. Foreign statesmen in the recesses of the
cabinet, and economists in the closet, beheld with amazement the rapid
growth of our marine. They saw a nation, which had not then attained its
seventeenth year, enjoying a commerce which nearly equalled in tonnage
that which England had been gradually forming from the date of the
Norman Conquest to that hour--a period of near eight hundred years. At
such an epoch a strict neutrality in respect of the contending powers
was the dictate alike of duty and interest. But such a policy was
distasteful to England and France; and the result was the issuing of his
successive decrees by Napoleon from Berlin and Milan, and the
promulgation of the successive British orders in council. These
iniquitous measures, the last mentioned of which, the British orders in
council, have been since pronounced illegal by the courts of England
herself, declared our ships with their cargoes forfeitable to England if
they touched a French port, and to France if they touched a port in
England or her dependencies.
In such a conjuncture opinions might well differ in respect of the
proper means of redress. The administration of Jefferson sought it by
long, able, and most urgent appeals to the sense of justice of the
contending parties, but sought in vain. When mere diplomacy, though
managed by the consummate ability and adroitness of William Pinkney at
the court of St. James, and by our ablest men fit the court of Napoleon,
proved fruitless, the administration, at the earnest solicitation of its
representatives at the hostile courts, determined to sustain our
diplomatic action by such legislative measures as were likely to reach
the interests of the contending powers. Non-intercourse and the embargo,
which kept our ships in port, followed; and the administration, still
pressing upon the belligerents the injustice and impolicy of their
conduct, awaited the effect of their restrictive policy. Meantime its
opponents were neither idle nor silent; and one long, universal cry rose
from all the commercial cities. Their ships, the merchants said, were
rotting at the wharf; if kept at home, they would soon become worthless;
if sent to sea, they could but be taken. It was urged by the merchants
that, even if England and France sequestered a number of their ships,
still the profits earned by such as might escape confiscation would
cover their losses on their investments. An able minority in Congress
sustained the views held by the mercantile interest; but a large
majority of both Houses of Congress, and of the people, approved the
policy of the administration.
At this eventful moment a new political party, consisting almost wholly
of Southern men, sprung into being. What added to its importance was,
that, though ridiculously small in respect of the numbers who composed
it, the members possessed great parliamentary eloquence and tact, and
had previously been regarded as among the firmest friends of the
administration. Its numbers were indeed so small both in Congress and
out of it, as to exercise no weight in the call of the ayes and noes, or
at the polls; but its members mingled in every debate, wrote plausible
essays in the papers, and used all justifiable means as well as some
that were questionable, in attaining their ends. Of this party, Mr.
Tazewell, though never a member, and only a casual coadjutor, was
considered to belong; but there was no evidence to show that he approved
the vile scheme of its leaders of embroiling the country in a war with
Spain. On the contrary, he held that the true remedy of existing
grievances in the first instance was an immediate declaration of war
against both belligerents, which, now that the curtain is lifted, we see
was the true remedy of the hour; but that, if from prudence a
declaration of war was withheld, it was unwise, by a total cessation of
our most gainful commerce, to inflict upon our own people all the
injuries which war would produce without any of the advantages that
might accrue from a successful prosecution of hostilities; that the
commercial regulations of England and France, though bearing
disastrously on us, were chiefly designed to injure each other during
actual war; and that, being war measures, they would determine on a
restoration of peace, when we could obtain from the respective powers
full redress for all our grievances.
He accordingly opposed the election of Mr. Madison to the presidency,
whom he regarded as the impersonation of the restrictive policy which he
had defended in his diplomatic writings, and from the press; and which
was deemed the pledge of its continuance; and, in the spring of 1809,
voted for the federal candidate for Congress, in opposition to Newton,
who, though coming from a sea-port, had gallantly upheld the commercial
policy of Jefferson, and who was returned by a decisive majority.
That epoch was the most mortifying in the annals of our country; and
posterity must decide whether any action of ours could have averted the
difficulty, and on whose shoulders the responsibility shall rest. When I
reflect upon the incidents of that day; when I recount the millions of
American capital sacrificed by the remorseless rapacity of England and
France; when I call up from their graves the hundreds and thousands of
American sailors, the sons of the men who had fought at Bunker Hill, who
had led the forlorn hope at Stony Point, who had bled on the sweltering
field of Eutaw, and who had stormed the outworks at York; when I reflect
that such men were forcibly taken from their ships, and were compelled
to fight the battles of England, to be doomed to the prison-ship, or to
be scourged by the lash, and that not one dollar of those pilfered
millions has yet been paid by one of the belligerents; and that all
those injuries are yet unavenged;--passions, which I fondly hoped had
long been quenched in my bosom, flame once more; and I am led to cherish
with still deeper affection that Federal Union which will enable us
henceforth to right such wrongs even though attempted by the combined
navies of the world.
The same reasons which induced Mr. Tazewell to oppose the restrictive
policy of the administrations of Jefferson and Madison, led him
necessarily to oppose the war of 1812 with Great Britain. He believed
that, if a declaration of war had been expedient at any period of the
commercial difficulties with England and France, the proper time for
declaring it was when the offence was given, and when our commerce was
at the height, and our ability to sustain hostilities was proportionally
greater; that the administration, having waived the opportunity of
making a declaration in the first instance, and deliberately adopted the
policy of diplomacy and of commercial regulation as the proper means of
relief, our resources meantime having become crippled and our revenue
almost annihilated, it was bound to adhere to it during the existing
crisis; that the long and expensive war had impaired the resources of
England and France, who would soon be compelled from mere exhaustion to
make peace, and with the restoration of peace our difficulties would
necessarily terminate, and we might demand redress for the grievances
which we had sustained at their hands; that a declaration of war with
England would be substantially, as it turned out to be, a receipt in
full for our enormous commercial losses caused by her orders in council,
which losses must then be assumed by our own government, or fall on the
merchants, who would be crushed by their weight; that peace among the
belligerents might happen at any moment, while a war with one of them
would certainly involve a large expenditure of blood and money, and
might continue at the pleasure of the belligerent long after a general
pacification in Europe; and that, if war was to be waged as a measure of
redress for our violated rights, as both belligerents were equally
guilty, it should be declared against both.
In weighing the reasons on which any measure of public policy is
founded, we must always refer to the time when the deed was done and to
the position of the actors. At the present day, looking at the results
which are believed to have flowed from the war of 1812, and especially
our victories on the sea, we are inclined to blame those who opposed its
declaration, and extol the wisdom and gallantry of those who approved
it. This test, however, is neither philosophical nor just; and, as a
proof of the soundness of Mr. Tazewell's opinions, or that at least they
were not taken up, as has been alleged, from hostility to a democratic
administration, we may state the fact that Madison himself, of whose
administration the war shines as the crowning honor, was, like his
predecessor in the presidency, opposed originally to its declaration;
but was overruled or over-persuaded by the able and gallant young men
whose eloquence carried that measure through Congress; and it should
ever be remembered that, if the declaration had been postponed a few
weeks, the repeal of the British orders in council would have rendered
it unnecessary; and the thousands of precious lives and the millions of
treasure which it cost would have been saved to the country.
If war, with all its possible compensations, be at all times a dangerous
and uncertain measure--if all the treasures and glories which human
hands can hold, and the imaginations of men may compute, in the
estimation of the true patriot as well as the true Christian, sink into
dust, when compared with the unnecessary and wanton sacrifice of the
life of the humblest citizen of the Republic--if the war with England
cost millions of wealth, and the shedding of the blood of tens of
thousands of our fellow-men,--then it is something to say that, if the
policy of Tazewell had been pursued for a few weeks--a policy which, so
far as war was concerned, had been, up to its declaration, the
deliberate policy of Jefferson and Madison--that war which had been
postponed to the dawn of the pacification in Europe, would not have
occurred.
The question for posterity to decide is, not whether, if we judge by
results, Tazewell was right or wrong--a mode of judging too fallacious
and too dangerous in human affairs, and subjecting the responsibility of
human actors to too fearful a test,--but which, even if applied to the
course of Mr. Tazewell, would confirm, beyond question, the wisdom of
the policy which he advised at the time; but the question is, whether
his policy was not such as a great statesman, intent solely upon the
welfare of his country, might not have pursued, not only without
impairing the public confidence in his patriotism, integrity, and
attachment to the cardinal principles of his political faith, but such
as, even with the facts then before him, reflected high credit upon his
sagacity and courage.
But whatever were his views about the policy of declaring war at any
particular time, no sooner was war declared than he gave it a cordial
support. In concert with the administration, and in connection with his
friend and associate, Gen. Taylor, to whom was assigned the command of
the forces at Norfolk, he exerted all his powers to put our port in a
posture of defence. He hailed, especially, our victories on the sea with
enthusiastic applause, and ever rejoiced that the treaty of Ghent was
preceded, at least in this country, by the glorious Eighth of January.
To confirm the remark that Mr. Tazewell, though opposed to the
restrictive policy of Jefferson, was still friendly to that statesman,
and was unwilling to be considered hostile to him, I may recall to the
recollection of my elder hearers an incident which created much
amusement when it occurred. It appears that, in the winter of 1807, when
Tazewell had been sent to the Assembly to attend to some local interests
of Norfolk, a caucus of the republican members had been called in
Richmond with a view of denouncing those who opposed the restrictive
policy as deserters from the party. When the night of the caucus
arrived, Tazewell, who was confined to his bed by sickness, heard of the
gathering for the first time. Ill as he was, he hastened to the place of
meeting, and, with his head bound with napkins, and in haggard attire,
made his appearance in the middle of the caucus. The clever young men
who then managed the machinery of the party were struck dumb by his
presence as by that of an apparition. Then Tazewell spoke. He reasoned
upon the impolicy of forcing a third party into existence, when, while
he was speaking, the winds might bear over the waters the revocation of
the British orders and the French decrees, and all would be well. He
showed that, while he disapproved a single measure of the
administration, he heartily approved its general policy, and the
constitutional doctrines which composed its faith. There was no reply.
The meeting dispersed, and my democratic friends have ever since been
cautious how they undertook to read clever fellows out of the party.
In 1807 occurred one of those painful incidents which roused the people
of that day to madness--which fills the heart, even at this late day,
with pain and sadness, but which has such a connection with Mr.
Tazewell, that I, a Norfolk man, addressing Norfolk men, cannot pass it
by in silence. On the early morn of the 22d of June, a frigate, built by
your own mechanics, in sight of your city, baptized in the waters of
your own Elizabeth, bearing the name of your own noble bay, and under
the command of as gallant a Virginian as ever trod a deck, lifting her
anchor in the Roads, put out to sea on the errand of her country. On the
following day, unsuspecting of danger, she was attacked by the British
frigate Leopard, and became her prize. The commander of the Leopard,
when he had taken from the Chesapeake certain men whom he alleged were
deserters from the British flag, declined to take further possession of
the captured frigate, which returned to the Roads. Three of our men were
killed, and sixteen wounded, during the attack. These wounded men were
brought to the marine hospital, and received every possible attention.
One of them died, and was buried with all the solemnities of public
sorrow.