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bound in equity to make good the losses which they have sus. tained. 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 admit. ted 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
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.
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.