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ble, from every circumstance appealing to the mere feelings of men. I would throw out from both sides of it all that is calculated to excite either sympathy or prejudice, and would hold an even hand between a blind commiseration on the one side, and an averted hostility on the other.
And now, Sir, what is the exact question before us? It appears that on the night of the eleventh of August last, an institution, established partly for purposes of religion, partly for purposes of education, and partly for purposes of charity, - an institution established under the laws of the land, and paying the price of protection to the government in the prescribed form of annual taxes, was besieged by a mob, sacked, pillaged, and burned; and this not silently, not secretly, not in a moment, in the twinkling of an eye- but by a course of concerted measures, openly and publicly carried on for a period of six or seven hours in succession, in the presence of thousands of spectators, while not a single arm was lifted in its defence.
Upon these facts, universally admitted, the proprietors of the institution have presented a claim for indemnification, and upon this claim the two counter Reports, now under consideration, have been submitted to this House.
There are some things in both of these Reports with which I cordially agree; there are other things in both of them from which I entirely disagree. Not that I intend, by this remark, to couple the two documents as having, in my humble judgment, equal claims upon our favorable consideration. By no means. The whole spirit of that presented by the majority of the com mittee, I am happy to agree with; in one single principle only do I differ from them. The whole spirit, on the other hand, of that submitted by the minority of the committee, I am as happy to dissent from; in one accidental, and perhaps unintentional, admission, only, can I at all agree with them. I do not propose, Sir, to enter into any very detailed analysis of either of these papers. But before I proceed further, I beg leave to call the attention of the House to two or three paragraphs in the report of the minority. And especially would I call to them the attention of the signers of that report themselves; for I am willing to believe that they are as yet unaware of its full import.
On the nineteenth page of the printed document containing these reports, is this extraordinary sentence, "The moment this Commonwealth consents to tax herself for the repair of damages, which have, or have not, resulted from her own injustice or criminal neglect, she countenances a belief that she is willing to admit her own responsibility as an accessory to the wrong. Dignity, then, is not preserved nor regained in this way." Countenance a belief! Why, Sir, if damages have resulted from the injustice or criminal neglect of the Commonwealth, she is already an accessory to the wrong; and no admission of her responsibility is required to countenance, nor will any denial of her responsibility suffice to discountenance, such a belief. And as to her dignity, — I leave the gentlemen to judge whether it is least compromised in such a case by denying and refusing to repair the wrong, or by confessing and making amends. One thing, Mr. Speaker, I will grant to the gentlemen, and that is, that the whole strength of this paragraph, inconsistent and absurd as it is, is needed to sustain the conclusions at which they have arrived.
Again, on the twenty-third page of the document, it is thus written, "Let the fathers and guardians of our State help the friends and professors of their own religion." Pray, Sir, what is their own religion? What distinction less broad than that which includes the whole Christian church, throughout all the world, — Roman Catholic and Protestant Catholic alike,—comprehends the religion of the fathers and guardians of our State? The people of Massachusetts are indeed, for the most part, Protestants, and ever may they continue so! But the State, thank heaven, is yet allied to no Church, and never may it become so! Religious freedom, and not merely religious toleration, is her motto, and the minority of the committee will strive in vain to blot it out.
But the argument of the minority report is mainly based upon a form of oath, which previously to 1820 was a part of the Constitution of Massachusetts, and which was ordered to be taken and subscribed by all the officers of the Commonwealth. Now, the Convention of 1820 abolished this oath; but the minority report, having been written originally in professed
and admitted ignorance of its abolition, asserts, in its amended form, that it was only "laid aside for one more concise." Sir, my friend from Worcester (Mr. Kinnicutt) has sufficiently answered this singular position. He has told us truly that the Convention of 1820, composed as it was of the most distinguished men of Massachusetts, did not assemble for the purpose of criticizing and amending the phraseology of the Constitution, and spent none of their time in that frivolous employment. But even if it were not so, even if the oath itself still disfigured our charter, I undertake to say that the doctrines of the minority report could not be legitimately drawn from it. Some years ago, there was published, under the direction of this Legislature, a little volume containing the records of the Convention which originally framed our Constitution. In this meagre skeleton of a book, there is one fact clearly and distinctly set forth. In every instance in which the word Christian is used, or in which any allusion to religion or to the privileges of its professors occurs in the Constitution, it appears that an effort was made to introduce an exception, excluding Roman Catholics from the common family of Christians. And in every instance it failed. And what does that prove, Sir? Why, that our fathers in 1780 were unwilling to assume the ground, which the minority of this committee in the year 1835 have taken, that Roman Catholics were, ipso facto, aliens from our Commonwealth, honoring "the Pope as their liege lord," and having their country in Italy." Even at that day, if any Roman Catholic chose to renounce his allegiance to all foreign. sovereigns, potentates, and prelates, or to declare upon oath that no such allegiance existed, our fathers were willing to believe him; and he was eligible to the chief magistracy, or any other office in the State. And even this renunciation, or declaration, was only required of Roman Catholics in common with all other candidates for office, whatever might be their creed. So much, Sir, for the basis and superstructure of the minority report!
And now, Mr. Speaker, let me declare distinctly the opinion which I have formed upon the question before us. I go for the claim of the Petitioners, and I think this Commonwealth is
bound in equity to make good the losses which they have sustained. And in support of this opinion, I rely upon the first principles of society and of our own government, as applied to the circumstances of the case. What are those principles, and
where shall we find them laid down? They are inscribed on the very portals of our Constitution. The Bill of Rights contains a clear and explicit declaration of them. Besides asserting that government is instituted for the protection and safety of the people, who are consequently bound to contribute their share of personal service or pecuniary equivalent to the expense of this protection, it has this plain and express provision: "each individual of the society has a right to be protected by it, in the enjoyment of his life, liberty, and property, according to standing laws." Now if every individual has a right to be protected, society is under an obligation to afford that protection; and this obligation of society is admitted on all sides of the House, and in both reports. But, we are told, society is bound to protect by standing laws, and in no other way. That may be very true, Sir, but it has nothing to do with the justice of this claim. The Petitioners have not come here to ask for protection. It is altogether too late for them to present such a claim. Their property has been destroyed, and their claim is for indemnification; and the question now is whether society, being under an admitted obligation to afford them protection, and having failed to discharge that obligation, is or is not justly responsible for the damages arising from that failure.
Well, Sir, how is it with other obligations? Suppose, for a moment, that any gentleman in this House is under an obligation to convey to me a certain piece of estate, and he fails from any cause to discharge that obligation;- will he presume to tell me that, though he was bound to convey that estate, he was bound to do nothing else, and that having failed in that, my claim upon him is at an end. Why, the idea is too absurd to require an answer. It needs no lawyer to tell him that any court of competent jurisdiction would make him respond to me in damages. And how do the obligations of society or of the State differ from those of an individual? The State has entered into a direct contract with every one of its citizens, and every one of the
citizens with the State;-protection is the consideration on one side, and allegiance on the other. If the citizen fails to discharge his part of the contract, the State proceeds at once to compel or to punish him; and if the State fails to discharge her part, she is bound, in good faith, to make reparation. There is indeed no court of law into which the citizen can summon her. This "Great and General Court" is his first place of hearing, and his final place of appeal. And that appeal is at best but an appeal from Cæsar to Cæsar. But this does not at all affect the justice of the claim, however it may affect the fairness of the hearing.
There is no doubt, Mr. Speaker, that this doctrine needs some qualification and some limitation. But none other are required, as I think, than such as common law and common sense will readily suggest. It is equally a maxim of both, Lex cogit neminem ad impossibilia;-no one is bound to do that which is impossible. Society cannot always stop the hand of the secret assassin, the midnight incendiary, the expert thief, or the cunning counterfeiter. Protection of this sort is often in its own nature impossible, and all that society can do, in cases of this kind, is to hunt out and punish the guilty. But wherever protection is practicable, she is absolutely bound to provide it.
And it is in relation to this particular principle that I dissent from the opinion expressed by the majority of the committee. They tell us that "it is true that by the theory of our institutions, the government is bound to afford protection to the citizen in consideration of his allegiance," but then they go on to say, "your committee suppose that this protection is afforded to every practicable extent, by the enactment, from time to time, as they shall be deemed necessary, of wholesome and proper laws, with remedies for their infraction." Now it seems to me Sir, that this assertion, and I say it with all due deference to the Committee, is a begging of the whole question at issue, which is, as I conceive, whether the government has afforded to these petitioners every practicable protection. The argument of the Report seems to be this,-that the existing laws at any particular period, whether good, bad, or indifferent, are to be considered as affording to the citizens every practicable protection.