Chapter 5

In tracing the career of a great lawyer, we should follow him through the courts in which his life was spent; but here, unfortunately, no records appear which can throw any light upon the subject. The grandest efforts of counsel are made in the presence of the court and of the jury, and of those spectators who may happen to be in the court-room at the time, and are soon forgotten. Many heroes, the poet tells us, lived before Agamemnon, but are forgotten, because they had no poet to record their praise; and, before the days of the stenographer, the most brilliant harangues in our inferior courts perished with the breath of them who uttered, and of those who heard them. Such has been the fate of Mr. Tazewell. Of all the speeches which he addressed to the courts and juries of Norfolk, from 1802 to 1821, not a vestige remains; and all that we know is, that he was employed on one side or other of all the important cases of that interval; and that he exhibited abilities which easily placed him at the head of the bar of the Commonwealth, and attracted the attention of all who, whether in foreign countries or our own, held any connexion with our city. I shall pass over his criminal cases altogether, though they abound in striking passages; and of his civil cases in the courts of the State during his practice, I shall select two only, and rather by way of allusion than in full detail, one of which was tried at the beginning of this period, and the other in 1821 near its close.

About the year 1798, an eccentric individual named John Taylor, but better known as Solomon John, to distinguish him from two other persons of the same name living in Norfolk at the same time, a man of wealth and position, but believed to be slightly deranged in some respects, was returning from a hunting excursion, and, stopping at Burk's Gardens, which have long since given way to the houses now composing Hartshorne's Court, deliberately discharged his piece, which was loaded with small shot, at a crowd of people, and wounded a man named Rainbow in the leg, which was at length amputated. Rainbow instituted a suit, an action of trespass on the case, in the Borough Court, and filed a declaration in that form. Tazewell, as Taylor's attorney, offered to demur to the declaration, a mode of pleading which, though old as the English law itself, was a novelty in the borough; and the Court refused to receive it. Mr. Tazewell took a bill of exceptions to the District Court at Suffolk. The point of the demurrer was that the action should have been trespass _vi et armis_. The District Court affirmed the decision of the Borough Court; and an appeal was taken to the Court of Appeals, which reversed the decision of the inferior courts. Until this time the distinction, which is merely technical, had been hardly perceptible to the courts of England and of this country, and was by no means settled law; but thereafter the points of difference were regarded as clearly defined; and both in England and in the courts of the United States, the case of Taylor vs. Rainbow has always been cited as conclusive of the question.

The other case, which was one of the last in which he appeared at the Virginia bar, was Long vs. Colston, and was argued in 1820, in the Court of Appeals. His associate in the case was Mr. Wickham, and the opposing counsel were Gen. Walter Jones and Mr. Stanard; and it was decided by Judges Roane, Cabell, and Coalter. The arguments of Tazewell are not stated; but Mr. Gilmer, who reports the decision, laments that no official reporter was present "to give to the profession even a sketch of the profound and comprehensive views of the counsel." The question was on the doctrine of Covenant; and I am told by learned counsel who have examined Mr. Tazewell's notes in the case, that this was, in their opinion, the greatest forensic display ever made in this country.

I recall an anecdote which was current at the time, and which shows the effect of Tazewell's argument on the court. Roane, one of the judges whose reputation has been held almost sacred in Virginia, was not prejudiced in favor of Tazewell, in consequence of old political feuds; but he was so transported by his argument that he could hardly think or speak of anything else during the day. It is said that, on the day of the argument, Roane had invited a party to dine with him, and after the adjournment of the court went to his study at home, where he appeared moody and abstracted. Meantime his company had arrived, and, as the Judge still lingered in his office, his wife went to him and informed him that the company was waiting; but all she could get from him were such broken sentences as these: "Yes, the first man that ever argued a law case," "the greatest of all our lawyers," "beyond all comparison our first lawyer;" while she, abandoning him to his reveries, led the guests to the table.

An incident which shows the character of Tazewell in an amiable point of view deserves a passing allusion. When he had retired for some time from general practice in our courts, he was induced to argue in the Superior Court in Portsmouth a memorable case of insurance in which he had been consulted; and, for the benefit of the junior members of the bar, he discussed all the difficult and leading points of the case at full length, and with all his ability, and made an impression upon the court, and upon the bar, which was gratefully and delightfully remembered.

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.