The Cochineal case, rather from the rumors growing out of it, than from

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.

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