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In this opinion I cannot concur. Suppose, for a moment, there had been no law at all about riots, and no power vested in any body to quell them. Would that be affording all practicable protection to the citizen? And what difference is there, either in principle or in practice, whether there be no law at all, or whether the law be defective and impotent? I resign my right of self-defence, I put my wrists in fetters, and allow my arms to be tied behind me, on condition that society will protect me; and I pay my taxes annually for the same consideration. It matters not to me whether it be from the want of any law, or from the defect of an existing law, or from an inefficient execution of the law, if the State could have protected me from injury, and did not, she is bound to make reparation.
And this doctrine is implied, unintentionally perhaps, but still plainly implied, in the report of the minority. And in this implication, and in this only can I find any thing in their argument to agree with. They tell you "that they know the State should guard against such evils, yet not by making itself liable, if they happen in spite of the wisest precautions that can be employed to prevent them." And they add," the duty of the Legislature is to enact the best, the most energetic laws to restrain and punish the lawless." Sir, I entirely agree in this position. But will these gentlemen or any other person pretend, that this destruction of property took place in spite of the wisest precautions, and in defiance of the best and most energetic laws? Will any one of common sense be willing to admit, that hundreds of men may meet together, light up their signal fires, sound their alarm-bells, and proceed deliberately to rob, plunder, break, and burn, in presence of thousands of spectators, public officers and others, for six or eight hours in succession, in spite of the wisest precautions and in the face of the best and most energetic laws? Why, Sir, the wisdom of this world must indeed be foolishness, and its power impotency, and its strength must be to sit still, if this be the case. It is perfectly clear that there must either have been some great deficiency in the laws themselves, or some palpable neglect in the execution of those laws. And for the latter the State is equally responsible as for the former, both because the mode of execution is itself a matter
of legal provision, and because those to whom that execution. is intrusted are her own agents, and of her own appointment.
It is to this extent, Mr. Speaker, that I would carry the obligation of society to afford protection; - an extent marked and measured, as it seems to me, by the maxims of common sense and common justice. And if it be not so, all protection, all society, all government appears to me to be little better than a cheat and a mockery. For what is the right of the citizen to protection worth, if he has no remedy for the infraction of that right? What does the obligation of society to protect him amount to, if there is no responsibility for the discharge of that obligation? Sir, it may be true, in one sense, that kings can do no wrong; but it is not true in any sense, nor in any country, that governments can do no wrong. Power is one thing, and right is another. Every human being has rights. Human breath is God's passport to human rights. And the State is bound to protect those rights. She may fail to do so by omission, as well as by commission. If, in this very case, she had presumed to lay her hands upon the property of these petitioners, and appropriate it to her own use, every one knows they would have been entitled to compensation. And if she suffer others to lay their hands upon it and appropriate it to their own use, even though that use be only the feeding of their own rancorous and ravenous passions, the State is, and ought to be, equally answerable.
But, we are told, she has provided a remedy. The courts of law, with all their pleas and processes, are at the service of the injured, and society is not responsible for the deficiency of evidence, or the escape of the guilty. This again is all very true, but it has no bearing upon the claim of the petitioners. They do not come here for indemnification, because their remedies elsewhere have failed. They impute no fault to the State on this score. The guilt of the State was at a much earlier stage of the transaction. It consisted in not affording protection, when it had power and opportunity to do so. And no remedy against others will atone for this guilt of its own. Society has two duties. They are described in two distinct and separate articles of the Bill of Rights. They are, in their own essence, distinct and
separate. And society is, and ought to be, distinctly and separately responsible for the discharge of both. The first duty is to afford protection wherever it is practicable. The second is to provide a remedy against the aggressor wherever that is practicable. And it is the confounding of these distinct and separate duties of the government, and of the consequent rights of the citizens, which has led to what I hold to be the mistaken conclusion of both reports, in relation to the claim of these petitioners.
Gentlemen talk about a remedy in the courts of justice. Why, Sir, what is this remedy worth in a case like this? What has it proved to be worth in this very case? We all know; —and we all knew as well before the trials as since. It will always be so. Wherever the public mind is so prejudiced and poisoned against any individual or any institution, that the hand of violence may be openly and successfully raised against them, and no one will come to their aid, it is matter almost of certainty, that the same prejudice will infect the channels of evidence, and obstruct the course of justice.
I forbear, Mr. Speaker, to urge this argument further, though I am sensible that it is susceptible of being much further and much better enforced and illustrated. There is another view of this case which I proceed to present to the House. And I am aware that in doing so, I shall tread upon dangerous ground. Sir, this act was not the mere momentary violence of an ordinary mob. The committee have truly told us, that it is not to be supposed that the idle reports concerning Miss Harrison could have led to its perpetration. They were but sparks to the tinder, and only kindled and inflamed those combustible materials which had long been accumulating. The destruction of the Ursuline Convent had a deep-struck and wide-spread source in public opinion. Hundreds of men were actually concerned in the deed; thousands were quiet spectators of its accomplishment; and tens of thousands, I had almost said, had ministered to the delusion, fanaticism, and fury, which caused it to be attempted. We may almost say of it, what was said of one of the dark deeds of other times by a great Roman historian,- Is habitus animorum fuit, ut pessimum facinus auderent pauci, plures vellent, omnes paterentur.
Such was the state of the public mind, that though few dared to engage in the transaction, many more desired that it might be accomplished, and all, all permitted it to be done.
I would not be thought to imply, that I believe that the people of Massachusetts, or any considerable portion of them, would have deliberately sanctioned such an act. No; if it could have been previously put to vote, not one hand do I believe would have been held up in its favor, not even in Middlesex, or in Suffolk, or wherever the infected district was, unless, indeed, by the perpetrators themselves. Upon nobody but them do I charge deliberate wrong, or malice aforethought. But we all know something of the influences by which events are brought to pass. Some men speak daggers which they will not use,-nay, which they may not intend or expect that any body else shall use. A few warmer and less prudent spirits take them at their word, and deal home the blow. If, Sir, as I am disposed to think, it was as common a thing before the 11th of August, to say, that "the Convent ought to come down," as it has been since to say, that "we are glad it is down," reserving, perhaps, in this latter case, some faint and feeble salvo as to the manner of its destruction, it is only a wonder that it was permitted so long to cumber the ground on which it stood.
It is this view of the matter, Sir, which, to my mind, makes it reasonable that the whole community should contribute to repair the losses which have been sustained. Asleep in my bed, though I was, when the act was committed, I can hardly help feeling a personal share in its guilt, and would gladly contribute my proportion of the indemnity.
But we are told, Sir, that if we make an indemnification, or grant any gratuity, in this case, it will be recorded as a precedent, and will thus involve the State in endless responsibilities. Why, if it only be right, equitable, and just, to do this, the sooner it is recorded as a precedent, the better; and the more such precedents there are upon our records, the more will it be for the honor of the State, and the welfare of the people.
But do not gentlemen perceive the horror with which this idea is fraught; and what a fearful looking-for in all time to come it implies? Recorded as a precedent! This indemni
fication, or this gratuity, can never be fairly adduced as a precedent, except when the outrage itself has been followed as a precedent. And will gentlemen not only contemplate, but calculate, upon its recurrence? I can only say for one, Sir, that if I believed that this event were about to be a precedent in our history, and other acts of a similar character were about to be perpetrated within the borders of Massachusetts, I should be for plucking up at once such small stakes as I may have planted in her soil, for fleeing from the protection of her free and enlightened government, and for seeking shelter under any, the sternest tyranny, the darkest despotism on earth. Yes, upon the same principle that I would sooner pitch my tent at the foot of a volcano, whose friendly quake or monitory rumbling would warn me when its flames were about to burst above my head, than maintain a residence in one of your clear and balmy atmo spheres, where ruin, ruin like this, might blaze down upon me at any moment, as lightning from a cloudless sky!
But, Mr. Speaker, if we are wise, if we do our duty, no such event will again occur. The fires of that fatal night have disThey have made manifest the insuffi
played to us our danger. ciency of our laws and the insecurity of our possessions. They have shone in upon and illumined a fearful chasm in our system, yawning at our very feet; and if we do not neglect our duty, we shall fill it up, or bridge it over, before we quit these seats. Its first victims will thus be its last; and if we should pay them to the uttermost farthing of their loss, we shall have cheaply purchased the experience.
But if the laws are to be left in their present impotent condition, let the House look well to another consideration. Do gentlemen flatter themselves that the Roman Catholics are to be the only sufferers? Are there to be no losses but what light on their shoulders; no sighs but of their breathing; no tears but of their shedding? Sir, if the spirit of violence is to have free vent; if religious, or moral, or political intolerance is to rage unchecked; if every now and then some portion of the people
The Legislature of Massachusetts, in 1839, passed a Law making towns and cities responsible to the amount of three quarters of the value of any property within their limits destroyed by rioters.