"In answer to this question, I have the honor to state that, in my

opinion, the capture of the American ship _Pocket_ can in no view

of it be deemed an act of piracy, _unless it shall appear that the

principal actors in the capture were citizens of the United

States_. The ninth section of the Crimes Act of 30th April, 1790,

declares 'that if any citizen shall commit any piracy or robbery,

or any act of hostility against the United States, or any citizen

thereof, upon the high seas, under color of any commission from any

foreign Prince, or State, or on pretence of authority from any

person, such offender shall, notwithstanding the pretence of any

such authority, be deemed, adjudged and taken to be a pirate, felon

and robber, and on being thereof convicted, shall suffer death.'

This provision is yet in force, and _should it be found that any of

those who participated in the capture of the Pocket are American

citizens, the flag and commission of the Government of Texas would

not protect them from the charge of piracy_."

It will be seen here, that the condition of belligerents will not

protect our citizens from aggressions against our commerce; and there

is no place for my learned friends to put this authority, and this

assumed belligerent power and right, on any footing that must not make

it, either actually or in pretence, at least, proceed from a separate

contending power. And, if they say, (as, in one of their points

substantially is said,) that the 9th section cannot apply, because the

alleged authority is not from a foreign State, or a foreign personage,

but from a personage of our own country,--why, then, we are thrown back

at once to the 8th section entirely, and there is either no pretence of

authority at all, and it is just like arguing that the pirate accused

was authorized by the merchant owner of a vessel in South street, to

commit piracy, or we are put in the position, which is unquestionably

the true one, that the 9th section was intended to cover all possible

although unimagined forms in which the justice of the country could be

attempted to be impeded under the claim of authority.

Now, gentlemen, if the Court please, I come to a consideration of the

political theories or views on which these prisoners are sought to be

protected against the penalties of this law. In that argument, as in my

argument, it must be assumed that these penalties, but for those

protections, would be visited upon them; for we are not to be drawn

hither and thither by this inquiry, and to have it said, at one time,

that the crime itself, in its own nature, is not proved, and, at

another time, that, if it be proved, these are defences. I have said

all I need to say, and all I should say, about the crime itself. The

law of the case on that point will be given to you by the Court, and,

if it should be, as I suppose it must, in accordance with that laid

down by the Court in the Circuit of Pennsylvania, then, as my learned

friend Mr. Brady has said of that, that he could not see how the Jury

could find any verdict but guilty, it necessarily follows, if that is a

sound view of the law, that you cannot find any other verdict but

guilty. I proceed, therefore, to consider these other defences which

grow out of the particular circumstances of the piracy.

Now, there are, as I suggested, three views in which this subject of

the license, or authority, or protection against our criminal laws in

favor of these prisoners, is urged, from their connection with

particular occurrences disclosed in the evidence. One is, that they are

privateers; but I have shown you that, to be privateers, their

commission must come from an independent nation, or from an incipient

nation, which our Government recognizes as such. Therefore, they fail

entirely to occupy that explicit and clear position, under the law of

the land, and the law of nations. But, as they say, they are privateers

either of a nation or a Power that exists, as the phrase is, _de

jure_,--that has a right, the same as we, or England, or France,--or of

a Power that has had sufficient force and strength to establish itself,

as matter of fact. Without considering the question of right, as

recognized under the system of nations, they contend, and with a great

deal of force and earnestness, in the impression of their views upon

the Jury, and great skill and discretion in handling the matter,--they

contend that there is a state of civil war in this country, and that a

state of civil war gives to all nations engaged in it, against the

Government with which they are warring, rights of impunity, of

protection, of respect, of regard, of courtesy, which belong to the

laws of war; and that, without caring to say whether they are a

Government, or ever will be a Government, so long as they fight, they

cannot be punished.

That is the proposition,--there is nothing else to it. They come down

from the region of _de jure_ Government and _de facto_ Government, and

have nothing to prove but the rage of war on the part of rebels, in

force enough to be called war. Then they say that, by their own act,

they are liberated from the laws, and from their duty to the laws,

which would otherwise, they admit, have sway over them, and against

which they have not as yet prevailed. That is the proposition.

Another proposition, on which they put themselves, is that whatever may

be the law, and whatever the extent of the facts, if any of these

persons believed that there was a state of war, rightful to be

recognized, and believed, in good faith, that they were fighting

against the United States Government, they had a right to seize the

property of United States' citizens; and that, if they believed that

they constituted part of a force co-operating, in any form or effect,

with the military power which has risen up against the United States of

America, then, so long as they had that opinion, they, by their own

act, and their own construction of their own act, impose the law upon

this Government, and upon this Bench, and upon this Jury, and compel

you to say to them that if, in taking, in a manner which would have

been robbery, this vessel, the Joseph, they were also fighting against

the United States of America, they have not committed the crime of

piracy.

Now, if the Court please, and gentlemen of the Jury, let us, before we

explore and dissect these propositions,--before we discover how utterly

subversive they are of any notions of Government, of fixity in the

interpretation of the law, or certainty in the enforcement of it,--let

us see what you will fairly consider as being proved, as matter of

fact, concerning the condition of affairs in this country. Let us see

what legal discrimination or description of this state of things is

likely to be significant and instructive, in determining the power and

authority of the Government, and the responsibility of these

defendants. They began with an Ordinance of South Carolina, passed on

the 20th of December of last year, which, in form and substance, simply

annulled the Ordinance of that State with which, as they say, they

ratified or accepted the Constitution of the United States. They then

went on with similar proceedings on the part of the States of Georgia,

Alabama, Mississippi, and Florida, showing the establishment and

adoption of a Provisional Constitution, by which they constituted and

called themselves the Confederate States of America. They proved, then,

the organization of the Government, the election of Mr. Davis and Mr.

Stephens as President and Vice-President, and the appointment of

Secretaries of War, and of the Navy, and other portions of the civil

establishment. They proved, then, the occurrences at Fort Sumter, and

gave particular evidence of the original acts at Charleston--the firing

on the Star of the West, and the correspondence which then took place

between Major Anderson and the Governor of South Carolina. They then

went on to prove the evacuation of Fort Moultrie; the storming of Fort

Sumter; the Proclamation of the President of the United States, of the

15th of April, calling for 75,000 troops; Mr. Davis' Proclamation, of

the 17th of April, inviting privateers; and then the President's

Proclamation, of the 19th of April, denouncing the punishment of piracy

against privateers, and putting under blockade the coasts of the

revolted States. The laws about privateering passed by what is called

the Confederate Government, have, also, been read to you; and this

seems to complete the documentary, and constitutional, and statutory

proceedings in that disaffected portion of the country. But what do the

prisoners prove further? That an actual military conflict and collision

commenced, has proceeded, and is now raging in this country, wherein we

find, not one section of the country engaged in a military contest with

another section of the country--not two contending factions, in the

phrase of Vattel, dividing the nation for the sake of national

power--but the Government of the United States, still standing, without

the diminution of one tittle of its power and dignity--without the

displacement or disturbance of a single function of its executive, of

its legislative, of its judicial establishments--without the

disturbance or the defection of its army or its navy--without any

displacement in or among the nations of the world--without any retreat,

on its part, or any repulsion, on the part of any force whatever, from

its general control over the affairs of the nation, over all its

relations to foreign States, over the high seas, and over every part of

the United States themselves, in their whole length and breadth, except

just so far as military occupation and military contest have controlled

the peaceful maintenance of the authority and laws of the Government.

Now, this may be conceded for all sides of the controversy. I do not

claim any more than these proofs show, and what we all know to be true;

and I am but fair in conceding that they do show all the proportions

and extent which make up a contest by the forces of the nation, as a

nation, against an armed array, with all the form and circumstances,

and with a number and strength, which make up military aggression and

military attack on the part of these revolting or disaffected

communities, or people.

Now, some observations have been made, at various stages of this

argument, of the course the Government has taken in its declaration of

a blockade, and in its seizure of prizes by its armed vessels, and its

bringing them before the Prize Courts; and my learned friend, Mr.

Brady, has done me the favor to allude to some particular occasion on

which I, on behalf of the Government, in the Admiralty Court, have

contended for certain principles, which would lead to the judicial

confiscation of prizes, under the law of the land, or under the law of

nations adopted and enforced as part of the law of the land. Well, now,

gentlemen, I understand and agree that, for certain purposes, there is

a condition of war which forces itself on the attention and the duty of

Governments, and calls on them to exert the power and force of war for

their protection and maintenance. And I have had occasion to

contend--and the learned Courts have decided--that this nation,

undertaking to suppress an armed military rebellion, which arrays

itself, by land and by sea, in the forms of naval and military attack,

has a right to exert--under the necessary principles which control and

require the action of a nation for its own preservation, in these

circumstances of danger and of peril--not only the usual magisterial

force of the country--not only the usual criminal laws--not only such

civil posses or aids to the officers of the law as may be obtained for

their assistance--but to take the army and the navy, the strength and

the manhood of the nation, which it can rally around it, and in every

form, and by every authority, human and divine, suppress and reduce a

revolt, a rebellion, a treason, that seeks to overthrow this Government

in, at least, a large portion of its territory, and among a large

portion of its people. In doing so, it may resort--as it has

resorted--to the method of a warlike blockade, which, by mere force of

naval obstruction, closes the harbors of the disaffected portion of the

country against all commerce. Having done that, it has a right, in its

Admiralty Courts, to adjudicate upon and condemn as prizes, under the

laws of blockade, all vessels that shall seek to violate the blockade.

Nor, gentlemen, have I ever denied--nor shall I here deny--that, when

the proportions of a civil dissension, or controversy, come to the port

and dignity of war, good sense and common intelligence require the

Government to recognize it as a question of fact, according to the

actual circumstances of the case, and to act accordingly. I, therefore,

have no difficulty in conceding that, outside of any question of law

and right--outside of any question as to whether there is a Government

down there, whether nominal or real, or that can be described as having

any consistency of any kind, under our law and our Government--there is

prevailing in this country a controversy, which is carried on by the

methods, and which has the proportions and extent, of what we call war.

War, gentlemen, as distinguished from peace, is so distinguished by

this proposition--that it is a condition in which force on one side and

force on the other are the means used in the actual prosecution of the

controversy. Now, gentlemen, if the Court please, I believe that that

is all that can be claimed, and all that has been claimed, on behalf of

these prisoners, in regard to the actual facts, and the condition of

things in this country. And I admit that, if this Government of ours

were not a party to this controversy,--if it looked on it from the

outside, as England and France have done,--our Government would have

had the full right to treat these contending parties, in its Courts and

before its laws, as belligerents, engaged in hostilities, as it would

have had an equal right to take the opposite course. Which course it

would have taken, I neither know, nor should you require to know.

But, I answer to the whole of this, if the Court please, that it is a

war in which the Government recognizes no right whatever on the part of

the persons with whom it is contending; and that, in the eye of the

law, as well as in the eye of reason and sound political morality,

every person who has, from the beginning of the first act of levying

war against the United States until now, taken part in this war,

actively and effectively, in any form--who has adhered to the

rebels--who has given aid, information, or help of any kind, wherever

he lives, whether he sends it from New Hampshire or New York, from

Wisconsin or from Baltimore--whether he be found within or without the

armed lines--is, in his own overt actions, or open espousal of the side

of this warring power, against the Government of the United States, a

traitor and a rebel. I do not know that there is any proposition

whatever, of law, or any authority whatever, that has been adduced by

my learned friends, in which they will claim, as matter of law, that

they are not _rebels_. I invited the attention of my learned friends,

as I purposed to call that of the Court, to the fact, that the

difficulty about all this business was, that the plea of authority or

of war, which these prisoners interposed against the crime of piracy,

was nothing but a plea of their implication in treason. I would like to

hear a sober and solemn proposition from any lawyer, that a Government,

as matter of law, and a Court, as matter of law, cannot proceed on an

infraction of a law against violence either to person or property,

instead of proceeding on an indictment for treason. The facts proved

must, of course, maintain the personal crime; and there are many

degrees of treason, or facts of treason, which do not include violent

crime. But, to say that a person who has acted as a rebel cannot be

indicted as an assassin, or that a man who has acted, on the high seas,

as a pirate, if our statutes so pronounce him, cannot be indicted,

tried and convicted as a pirate, because he could plead, as the shield

of his piracy, that he committed it as part of his treason, is, to my

apprehension, entirely new, and inconsistent with the first principles

of justice.

Now, this very statute of piracy is really a general Crimes Act. The

first section is:

"If any person or persons owing allegiance to the United States of

America shall levy war against them, or shall adhere to their

enemies, giving them aid and comfort within the United States, or

elsewhere, and shall be thereof convicted," "such person or persons

shall be adjudged guilty of treason against the United States, and

shall suffer death."

Now, you will observe that treason is not a defence against piracy; nor

is good faith in treason a defence against treason, or a defence

against piracy. What would be the posture of these prisoners, if,

instead of being indicted for piracy, they were indicted for treason?

Should we then hear anything about this notion that there was a war

raging, and that they were a party engaged in the war? Why, that is the

very definition of treason. Against whom is the war? Against the United

States of America. Did you owe allegiance to the United States of

America? Yes, the citizens did; and I need not say to you, gentlemen,

that those residents who are not citizens owe allegiance. There is no

dispute about that. Those foreigners who are living here unnaturalized

are just as much guilty of treason, if they act treasonably against the

Government, as any of our own citizens can be. That is the law of

England, the law of treason, the necessary law of civilized

communities. If we are hospitable, if we make no distinction, as we do

not, in this country, between citizens, and foreigners resident here

and protected by our laws, it is very clear we cannot make any

distinction when we come to the question of who are faithful to the

laws. So, therefore, if they were indicted for treason, what would

become of all this defence? It would be simply a confession in open

Court that they were guilty of treason. Well, then, if they fell back

on the proposition,--"We thought, in our consciences and judgments,

that either these States had a right to secede, or that they had a

right to carry on a revolution; that they were oppressed, and were

entitled to assert themselves against an oppressive Government, and we,

in good faith, and with a fair expectation of success, entered into

it,"--what would become of them? The answer would be, "Good faith in

your attempt to overthrow the Government, does not excuse you from

responsibility for the crime of attempting it." Our statute is made for

the purpose of protecting our Government against efforts made, in good

faith or in bad faith, for its overthrow.

And now, in this connection, gentlemen, as your attention, as well as

that of the Court, has been repeatedly called to it, let me advert

again to the citation from that enlightened public writer, Vattel, who

has done as much, perhaps, as our learned friends have suggested, to

place on a sure foundation the amelioration of the law of nations in

time of war, and their intercourse in time of peace, as any writer and

thinker whom our race has produced. You remember, that he asks--How

shall it be, when two contending factions divide a State, in all the

forms and extent of civil war--what shall be the right and what the

duty of a sovereign in this regard? Shall he put himself on the pride

of a king, or on the flattery of a courtier, and say, I am still

monarch, and will enforce against every one of this multitude engaged

in this rebellion the strict penalties of my laws? Vattel reasons, and

reasons very properly: You must submit to the principles of humanity

and of justice; you must govern your conduct by them, and not proceed

to an extermination of your subjects because they have revolted,

whether with or without cause. You must not enforce the sanctions of

your Government, or maintain its authority, on methods which would

produce a destruction of your people. And you must not further, by

insisting, under the enforced circumstances which surround you, on the

extreme and logical right of a king, furnish occasion for the

contending rebels, who have their moments of success and power, as well

as you, to retaliate on your loyal people, victims of their struggle on

your behalf, and thrown into the power of your rebellious subjects,--to

retaliate, I say, on them the same extreme penalties, without right,

without law, but by mere power, which you have exerted under your claim

of right.

And now, gentlemen of the Jury, as the Court very well understands,

this general reasoning, which should govern the conduct of a Sovereign,

or of a Government, against a mere local insurrection, does not touch

the question as to whether the law of the nation in which the Sovereign

presides, and in violation of which the crime of the rebels has been

perpetrated, shall be enforced. There has been, certainly, in modern

times, no occasion when a Sovereign has not drawn, in his discretion,

and under the influence of these principles of humanity and justice,

this distinction, and has not interposed the shield of his own mercy

between the offences of misled and misguided masses of his people and

offended laws. We know the difference between law and its condemnation,

and mercy and its saving grace; and we know that every Government

exercises its discretion. And, I should like to know why these learned

counsel, who are seeking to interpose, as a legal defence on the part

of a criminal, the principles of policy and mercy which should guide

the Government, are disposed to insist that this Government, in its

prosecutions and its trials, has shown a disposition to absolve great

masses of criminals from the penalties of its laws. I should like to

know, when my learned friend Mr. Brady, near the close of his remarks,

suggested that there had been no trial for treason, whether this

Government, from the first steps in the outbreak, down to the final and

extensive rage of the war, has not foreborne to take satisfaction for

the wrongs committed against it, and has not been disposed to carry on

and sustain the strength of the Government, without bloody sacrifices

for its maintenance, and for the offended justice of the land. But it

is certainly very strange if, when a Government influenced by those

principles of humanity of which Vattel speaks, and which my learned

friends so much insist upon, has foreborne, except in signal instances,

or, if you please, in single instances that are not signal, to assert

the standard of the law's authority and of the Government's

right,--that it may be seen that the sword of justice, although kept

sheathed for the most part, has yet not rusted in its scabbard, and

that the Government is not faithless to itself, or to its laws, its

powers, or its duties, in these particular prosecutions that have been

carried, one to its conclusion, in Philadelphia, and the other to this

stage of its progress, here,--it is strange, indeed, that the appeal is

to be thrust upon it--"Do not include the masses of the misguided men!"

and, when it yields so mercifully to that appeal, and says--"I will

limit myself to the least maintenance and assertion of a right," that

the answer is to come back: "Why, how execrable--how abominable, to

make distinctions of that kind!"

But, gentlemen, the mercy of the Government, as I have said to you,

remains after conviction, as well as in its determination not to press

numerous trials for treason; but it is an attribute, both in forbearing

to try and in forbearing to execute, which is safely left where the

precedents that are to shape the authority of law cannot be urged

against its exercise. Now, I look upon the conduct and duty of the

Government on somewhat larger considerations than have been pressed

before you here. The Government, it is said, does not desire the

conviction of these men, or, at least, should not desire it. The

Government does not desire the blood of any of its misguided people.

The Government--the prosecution--should have no passion, no

animosities, in this or in any other case; and our learned friends have

done us the favor to say that the case is presented to you as the law

should require it to be; that you, and all, are unaffected and

unimpeded in your judgment; and that, with a full hearing of what could

be said on the part of these criminals, you have the case candidly and

openly before you.

Now, gentlemen, the Government, although having a large measure of

discretion, has no right, in a country where the Government is one

wholly of law, to repeal the criminal law, and no right to leave it

without presenting it to the observation, the understanding, and the

recognition of all its citizens, whether in rebellion or not, in its

majesty, in its might, and in its impartiality. The Government has

behind it the people, and it has behind it all the great forces which

are breathing on our agitated society, all the strong passions, all the

deep emotions, all the powerful convictions, which impress the loyal

people of this country as to the outrage, as to the wickedness, as to

the perils of this great rebellion. Do you not recollect how, when the

proclamation of Mr. Davis invited marauders to prey upon our commerce,

from whatever quarter and from whatever motives--(patriotism and duty

not being requisite before they would be received)--the cry of the

wounded sensibilities of a great commercial people burst upon this

whole scene of conflict? What was there that as a nation we had more to

be proud of, more to be glad for in our history, than our flag? To

think that in an early stage of what was claimed to be first a

constitutional, and then a peaceful, and then a deliberate political

agitation and maintenance of right, this last extreme act, the arming

of private persons against private property on the sea, was appealed to

before even a force was drawn on the field on behalf of the United

States of America! The proclamation of the President was but two days

old when privateers were invited to rush to the standard. The

indignation of the community, the sense of outrage and hatred was so

severe and so strong, that at that time, if the sentiment of the people

had been consulted, it would have found a true expression in what was

asserted in the newspapers, in public speeches, in private

conversations--that the duty of every merchantman and of every armed

vessel of the country, which arrested any of these so-called

privateers, under this new commission, without a nation and without

authority, was, to treat them as pirates caught in the act, and execute

them at the yard-arm by a summary justice.

Well, I need not say to you, gentlemen, that I am sure you and I and

all of us would have had occasion to regret, in every sense, as wrong,

as violent, as unnecessary, and, therefore, as wholly unjustifiable, on

the part of a powerful nation like ourselves, any such rash execution

of the penalties of the law of nations, and of the law of the land,

while our Government had power on the sea, had authority on the land,

had Courts and laws and juries under its authority to inquire and look

into the transaction.

The public passions on this subject being all cool at this time, after

an interval of four months or more from the arrest, we are here trying

this case. Yet my learned friends can find complaint against the mercy

of the Government and its justice, that it brings any prosecution; and

great complaint is made before you, without the least ground or cause,

as it seems to me, that the prosecution is pressed in a time of war,

when the sentiments of the community are supposed to be inflamed.

Well, gentlemen, what is the duty of Government, when it has brought in

prisoners arrested on the high seas, but to deliver them promptly to

the civil authorities, as was done in this case--and then, in the

language of the Constitution, which secures the right to them, to give

them a speedy and impartial trial? That it is impartial, they all

confess. How speedy is it? They say, they regret that it proceeds in

time of war. Surely, our learned friends do not wish to be understood

as having had denied to them in this Court any application which they

have made for postponement. The promptness of the judicial and

prosecuting authorities here had produced this indictment in the month

of June, I believe, the very month in which the prisoners were

arrested, or certainly early in July; and then the Government was ready

to proceed with the trial, so far as I am advised. But, at any rate, an

application--a very proper and necessary application--was made by our

learned friends, that the trial should be postponed till, I believe,

the very day on which it was brought on. That application was not

objected to, was acquiesced in, and the time was fixed, and no further

suggestion was made that the prisoners desired further delay; and, if

the Government had undertaken to ask for further delay, on the ground

of being unprepared, there was no fact to sustain any such application.

If it was the wish of the prisoners, or for their convenience, that

there should be further delay, it was for them to suggest it. But,

being entitled by the Constitution to a speedy as well as an impartial

trial, and the day being fixed by themselves on which they would be

ready, and they being considered ready, and no difficulty or

embarrassment in the way of proof having been suggested on the part of

the Government, it seems to me very strange that this regret should be

expressed, unless it should take that form of regret which all of us

participate in, that the war is not over. That, I agree, is a subject

of regret. But how there has ever been any pressure, or any--the

least--exercise of authority adverse to their wishes in this matter, it

is very difficult for me to understand.

Now, gentlemen, I approach a part of this discussion which I confess I

would gladly decline. I have not the least objection--no one, I am

sure, can feel the least objection--to the privilege or supposed duty

of counsel, who are defending prisoners on a grave charge,--certainly

not in a case which includes, as a possible result, the penalty of

their client's lives,--to go into all the inquiries, discussions and

arguments, however extensive, varied, or remote, that can affect the

judgment of the Jury, properly or fairly, or that can rightly be

invoked. But, I confess that, looking at the very interesting, able,

extensive and numerous arguments, theories and illustrations, that have

been presented in succession by, I think, in one form or another, seven

counsel for these prisoners, as the introduction into a judicial forum,

and before a Jury, of inquiries concerning the theories of Government,

the course of politics, the occasion of strife on one side or the

other, within the region of politics and the region of peace, in any

portion of the great communities that composed this powerful nation--in

that point of view, I aver, they seem to me very little inviting and

instructive, as they certainly are extremely unusual in forensic

discussions. Certainly, gentlemen of the Jury, we must conceive some

starting point somewhere in the stability of human affairs, as they are

entrusted to the control and defence of human Governments. But, in the

very persistent and resolute views of the learned counsel upon this

point--first on the right of secession as constitutional; second, if

not constitutional, as being supposed by somebody to be constitutional;

third, on the right of revolution as existing on the part of a people

oppressed, or deeming themselves oppressed, to try their strength in

the overthrow of the subsisting Government; fourth, on the right to

press the discontents inside of civil war; and then finally and at

last, that whoever thinks the Government oppresses him, or thinks that

a better Government would suit his case, has not only the right to try

the venture, but that, unsuccessful, or at any stage of the effort, his

right becomes so complete that the Government must and should surrender

at once and to every attempt--I see only what is equivalent to a

subversion of Government, and to saying that the right of revolution,

in substance and in fact, involves the right of Government in the first

place, and its duty in the second place, to surrender to the

revolutionist, and to treat him as having overthrown it in point of

law, and in contemplation of its duty. That is a proposition which I

cannot understand.

Nevertheless, gentlemen, these subjects have been so extensively

opened, and in so many points attacks have been made upon what seems to

me not only the very vital structure and necessary support of this, our

Government, but the very necessary and indispensable support of any

Government whatever, and we have been so distinctly challenged, both on

the ground of an absolute right to overthrow this Government, whenever

any State thinks fit--and, next, upon the clear right, on general

principles of human equity, of each State to raise itself against any

Government with which it is dissatisfied--and upon the general right of

conscience--as well as on the complete support by what has been assumed

to have been the parallel case, on all those principles, of the conduct

of the Colonies which became the United States of America and

established our Government--that I shall find it necessary, in the

discharge of my duty, to say something, however briefly, on that

subject. Now, gentlemen, these are novel discussions in a Court of

Justice, within the United States of America. We have talked about the

oppressions of other nations, and rejoiced in our exemption from all of

them, under the free, and benignant, and powerful Government which was,

by the favor of Providence, established by the wisdom, and courage, and

virtue of our ancestors. We had, for more than two generations, reposed

under the shadow of our all-protecting Government, with the same

conscious security as under the firmament of the heavens. We knew, to

be sure, that for all that made life hopeful and valuable--for all that

made life possible--we depended upon the all-protecting power, and the

continued favor of Divine Providence. We knew, just as well, that,

without civil society, without equal and benignant laws, without the

administration of justice, without the maintenance of commerce, without

a suitable Government, without a powerful nationality, all the motives

and springs of human exertion and labor would be dried up at their

source. But we felt no more secure in the Divine promise that "summer

and winter, seed-time and harvest," should not cease, than we did in

the permanent endurance of that great fabric established by the wisdom

and the courage of a renowned ancestry, to be the habitation of liberty

and justice for us and our children to every generation. We felt no

solicitude whatever that this great structure of our constituted

liberties should pass away as a scroll, or its firm power crumble in

the dust. But, by the actual circumstances of our situation,--and, if

not by them, certainly by the destructive theories which are presented

for your consideration,--it becomes necessary for us, as citizens, and,

in the judgment at least of the learned counsel, for these prisoners,

for you, and for this learned Court, in the conduct of this trial, and

in the disposition of the issue of "guilty" or "not guilty" as to these

prisoners, to pay some attention to these considerations. If, in the

order of this discussion, gentlemen, I should not seem to follow in any

degree, or even to include by name, many of the propositions, of the

distinctions, and of the arguments which our learned friends have

pressed against the whole solidity, the whole character, the whole

permanence, the whole strength of our Government, I yet think you will

find that I have included the principal ideas they have advanced, and

have commented upon the views that seem to us--at least so far as we

think them to be at all connected with this case--suitable to be

considered.

Now, gentlemen, let us start with this business where our friends, in

their argument, where many of the philosophers, and partisans, and

statesmen of the Southern people, have found many of their grounds of

support. Let us start with this very subject of the American

Revolution, with the condition that we were in, and with the place that

we found ourselves raised to, among the nations of the earth, as the

result of that great transaction in the affairs of men. What were we

before the Revolution commenced? Was any one of the original thirteen

States out of which our nation was made, and which, previous to the

Revolution, were Colonies of Great Britain--was any one of them an

independent nation at the time they all slumbered under the protection

of the British Crown? Why, not only had they not the least pretension

to be a nation, any of them, but they had scarcely the position of a

thoroughly incorporated part of the great nation of England. Now, how

did they stand towards the British power, and under what motives of

dignity, and importance, and necessity did they undertake their

severance from the parent country? With all their history of

colonization, the settlement of their different charters, and the

changes they went through, I will not detain you. For general purposes,

we all know enough, and I, certainly not more than the rest of you.

This, however, was their condition. The population were all subjects of

the British Crown; and they all had forms of local Government which

they had derived from the British Crown; and they claimed and

possessed, as I suppose, all the civil and political rights of

Englishmen. They were not subject to any despotic power, but claimed

and possessed that right to a share in the Government, which was the

privilege of Englishmen, and under which they protected themselves

against the encroachment of the Crown. But, in England, as you know,

the monarch was attended by his Houses of Parliament, and all the power

of the Government was controlled by the people, through their

representatives in the House of Commons. And how? Why, because,

although the King had prerogatives, executive authority, a vast degree

of pomp and wealth, and of strength, yet the people, represented in the

House of Commons, by controlling the question of taxation, held all the

wealth of the kingdom--the power of the purse, as it was described--and

without supplies, without money for the army, for the navy, for all the

purposes of Government, what authority, actual and effective, had the

Crown of England? These were the rights of Englishmen; these made them

a free people, not subject to despotic power. They cherished it and

loved it. Now, what relation did these Colonies, becoming off-shoots

from the great fabric of the national frame of England, bring with

them, and assert, and enjoy here? Why, the king was their king, just as

he was the king of the people whom they left in England, but they had

their legislatures here, which made their laws for them in

Massachusetts, in Connecticut, in Virginia, in South Carolina, and in

the rest of these provinces; and among those laws, in the power of

law-making, they had asserted, and possessed, and enjoyed the right of

laying taxes for the expenses and charges of their Government. They

formed no part of the Parliament of England, but, as the subjects of

England within the four seas were obedient to the king, and were

represented in the Parliament that made laws for them, the Colonies of

America were subject to the king, but had local legislatures, to pass

laws, raise and levy taxes, and graduate the expenses and contributions

which they would bear.

Now, gentlemen, it is quite true that the local legislatures were

subject to the revision, as to their statutes, to a certain extent, of

the sovereign power of England. The king had the veto power--as he had

the veto power over Acts of Parliament--the power of revision--and

other powers, as may have been the casual outgrowth of the forms of

different charters. In an evil hour--as these Colonies, from being

poor, despised, and feeble communities, gained a strength and numbers

that attracted the attention of the Crown of England, as important and

productive communities, capable of being taxed--the Government

undertook to assert, as the principle of the Constitution of England,

that the king and Parliament, sitting in London, could tax as they

pleased, when they pleased, and in the form, and on the subjects, and

to the amount, they pleased, the free people of these Colonies. Now,

you will understand, there was not an incidental, a casual, a limited

subject of controversy, of right, of danger, but there was an attack

upon the first principles of English liberty, which prevented the

English people from being the subjects of a despot, and an attempt to

make us subject to a despotic Government, in which we took no share,

and in which we had no control of the power of the purse. What matter

did it make to us that, instead of there being a despotic authority, in

which we had no share or representation of vote or voice, exercised by

the king alone, it was exercised by the king and Parliament? They were

both of them powers of Government that were away from us, and in which

we had no share; and we, then, forewarned by the voices of the great

statesmen whose sentiments have been read to you, saw in time that,

whatever might be said or thought of the particular exercise of

authority, the proposition was that we were not entitled to the

privilege and freedom of Englishmen, but that the power was confined to

those who resided within the four seas--within the islands that made up

that Kingdom--and that we were provinces which their King and their

Parliament governed. Therefore, you may call it a question of taxation,

and my friend may call it "a question of three pence a pound on tea;"

but it was the proposition that the power of the purse, in this

country, resided in England. We had not been accustomed to it. We did

not believe in it. And our first revolutionary act was to fight for our

rights as Englishmen (subject to the King, whose power we admitted),

and to assert the rights of our local legislature in the overthrow of

this usurpation of Parliament. Now, of the course which we took before

we resorted to the violence and vehemence of war, I shall have

hereafter occasion to present you, very briefly and conclusively, a

condensed recital; but this notion, that we here claimed any right to

rise up against a Government that was in accordance with our rights,

and was such as we had made it, and as we enjoyed it, equally with all

others over whom it was exercised--which lies at the bottom of the

revolt in this country--had not the least place, or the opportunity of

a place, in our relations with England. We expected and desired, as the

correspondence of Washington shows--as some of the observations of

Hamilton, I think, read in your presence by the learned counsel,

show--as the records of history show--we expected to establish security

for ourselves under the British Crown, and as a part of the British

Empire, and to maintain the right of Englishmen, to wit, the right of

legislation and taxation where we were represented. But the parent

Government, against the voice and counsels of such statesmen as Burke,

and the warnings of such powerful champions of liberty as Chatham,

undertook to insist, upon the extreme logic of their Constitution, that

we were British subjects, and that the king and Parliament governed all

British subjects; and they had a theory, I believe, that we were

represented in Parliament, as one English jurist put it, in the fact

that all the grants in all the Colonies were, under the force of

English law, "to have and to hold, as the Manor of East Greenwich," and

that, as the Manor of East Greenwich was represented in Parliament, all

this people were represented. But this did not suit our notions. The

lawyers of this country, the Judges of this country, and many of the

lawyers of England, as mere matter of strict legal right, held that the

American view of the Constitution of England, and of the rights of

Englishmen who enjoy it, was the true one. But, at any rate, it was not

upon an irritation about public sentiment; nor was it upon the pressure

of public taxes; nor because we did not constitute a majority of

Parliament; nor anything of that kind; but it was on clear criteria of

whether we were slaves, as Hamilton presents it, or part of the free

people of a Government. We, therefore, by degrees, and somewhat

unconscious, perhaps, of our own enlightened progress, but yet wisely,

fortunately, prosperously, determined upon our independence, as the

necessary means of securing those rights which were denied to us under

the Constitution of our country.

Now, there was not the least pretence of the right of a people to

overthrow a Government because they so desire--which seems to be the

proposition here--because they think they do not like it--and because

there are some points or difficulties in its working they would like to

have adjusted. No; it was on the mere proposition that the working of

the administration in England was converting us into subjects, not of

the Crown, with the rights of Englishmen, but subjects of the despotic

power of Parliament and the king of England. Now, how did we go to

work, and what was the result of that Revolution? In the first place,

did we ever become _thirteen_ nations? Was Massachusetts a nation? Was

South Carolina a nation? Did either of them ever declare its

independence, or ever engage in a war, by itself and of itself, against

England, to accomplish its independence? No, never; the first and

preliminary step before independence was union. The circumstances of

the Colonies, we may well believe, made it absolutely necessary that

they should settle beforehand the question of whether they could

combine themselves into one effectual, national force, to contend with

England, before they undertook to fight her. It was pretty plain that

Massachusetts could not conquer England, or its own independence, and

that Virginia could not do so, and that the New England States alone

could not do it, and that the Southern States alone could not do it. It

was quite plain that New York, Pennsylvania and New Jersey, alone,

could not do it; and, therefore, in the very womb, as it were, and

preceding our birth as a nation, we were articulated together into the

frame of one people, one community, one nationality. Now, however

imperfectly, and however clumsily, and however unsuitably we were first

connected, and however necessary and serious the changes which

substituted for that inchoate shape of nationality the complete, firm,

noble and perfect structure which made us one people as the United

States of America, yet you will find, in all the documents, and in all

the history, that there was a United States of America, in some form

represented, before there was anything like a separation, on the part

of any of the Colonies, from the parent country, except in these

discontents, and these efforts at an assertion of our liberties, which

had a local origin.

The great part of the argument of my learned friend rests upon the fact

that these States were nations, each one of them, once upon a time; and

that, having made themselves this Government, they have remained

nations, in it and under it, ever since, subject only to the

Confederate authority, in the terms of a certain instrument called a

compact, and with the reserved right of nationality ready, at all

times, to spring forth and manifest itself in complete separation of

any one of the States from the rest. And I find, strangely enough, in

the argument as well of the promoters of these political movements at

the South as in the voice of my learned friends who have commented on

this subject, a reference to the early diplomacy of the United States,

as indicative of the fact that they were separate and independent

communities--regarded as such by the contracting Powers into connection

with whom they were brought by their treaties and conventions, and,

more particularly, in the definitive treaty whereby their independence

was recognized by Great Britain. Now, if the Court please, both upon

the point (if it can be called a point, connected with your judicial

inquiry) that these Colonies were formed into a Union before they

secured their national independence, and that there was no moment of

time wherein they were not included, either as united Colonies, under

the parental protection of Great Britain, or as united in a struggling

Provisional Government, or in the perfect Government of the

Confederation, and, finally, under the present Constitution--I

apprehend there can be no doubt that our diplomacy, commencing, in

1778, with the Treaty of Alliance with France, contains the same

enumeration of States that is so much relied upon by the reasoners for

independent nationality on the part of all the States. In the preamble

to that Treaty, found at page 6 of the 8th volume of the Statutes at

Large, the language was: "The Most Christian King and the United States

of North America, to wit, New Hampshire, &c., having this day

concluded," &c. The United States are here treated as a strictly single

power, with whom his Most Christian Majesty comes into league; and the

credentials or ratifications pursued the same form. The Treaty of

Commerce with the same nation, made at the same time, follows the same

idea; and the Treaty with the Netherlands, made in 1782, contains the

same enumeration of the States, and speaks of each of the contracting

parties as being "countries." The Convention with the Netherlands, on

page 50 of the same volume, and which was a part of the same diplomatic

arrangement, and made at the same time, speaks, in Article 1, of the

vessels of the "two nations." Now, the only argument of my learned

friends, on the two treaties with Great Britain, of November, 1782, and

September, 1783, is, that they are an agreement between England and the

thirteen nations; and it is founded upon the fact, that the United

States of America, after being described as such, are enumerated under

a "viz." as being so many provinces. Now, the 5th and 6th articles of

that Convention of 1782 with the Netherlands speak of "the vessels of

war and privateers of one and of the other of the two nations." So

that, pending the Revolution, we certainly, in the only acts of

nationality that were possible for a contending power, set ourselves

forth as only one nation, and were so recognized. And the same views

are derivable from the language of the Provisional Treaty with Great

Britain of November, 1782, and of the Definitive Treaty of Peace with

Great Britain of September, 1783, which Treaties are to be found at

pages 54 and 80 of the same 8th volume. The Preamble to the latter

Treaty recites:

"It having pleased the Divine Providence to dispose the hearts of

the most serene and most potent Prince George the Third, &c., and

of the United States of America to forget all past misunderstandings

and differences that have unhappily interrupted the good

correspondence and friendship, which they mutually wish to

restore; and to establish such a beneficial and satisfactory

intercourse '_between the two countries_, &c.'"

And then comes the 1st article, which is identical in language with the

Treaty with the Netherlands, of 1782:

"His Britannic Majesty acknowledges the said United States, viz.,

New Hampshire, &c., to be free, sovereign and independent States."

The United States had previously, in the Treaty, been spoken of as one

country, and the language I have just quoted is only a statement of the

provinces of which they were composed; for, we all know, as matter of

history, that there were other British provinces that might have joined

in this Revolution, and might, perhaps, have been included in the

settlement of peace; and this rendered it suitable and necessary that

the provinces whose independence was acknowledged should be

specifically described. But, in the 2d article, so far from the

separateness of the nationalities with which the convention was made

being at all recognized, that important article, which is the one of

boundaries, goes on to bound the entire nation as one undivided and

integral territory, without the least attention to the divisions

between them. It may be very well to say that England was only

concerned to have one continuous boundary, coterminous to her own

possessions, described, and that that was the object of the

geographical bounding; but the entire Western, Eastern, and Southern

boundaries are gone through as those of one integral nation. The 3d

article speaks, again, of securing certain rights to the citizens or

inhabitants of "both countries." Now, that "country" and "nation," in

the language of diplomacy, are descriptive, not of territory, in either

case, but of the nationality, admits of no discussion; and yet, I

believe that the most substantial of all the citations and of all the

propositions from the documentary evidence of the Revolution, which

seeks to make out the fact that we came into being as thirteen nations,

grows out of this British Treaty, which, in its preamble, takes notice

of but one country, called the United States of America, and, then, in

recognition of the United States of America, names the States under a

"viz."--they being included in the single collective nation before

mentioned as the United States.

Now, gentlemen, after the Revolution had completed our independence,

how were we left as respects our rights, our interests, our hopes, and

our prospects on this very subject of nationality? Why, we were left in

this condition--that we always had been accustomed to a parent or

general Government, and to a local subordinate administration of our

domestic affairs within the limits of our particular provinces. Under

the good fortune, as well as the great wisdom which saw that this

arrangement--a new one--quite a new one in the affairs of men--now that

we were completely independent, and capable of being masters of our

whole Government, both local and general, admitted of none of those

discontents and dangers which belonged to our being subject

collectively to the dominion of a remote power beyond the seas--under

the good fortune and great wisdom of that opportunity, we undertook and

determined to establish, and had already established provisionally, a

complete Government, which we supposed would answer the purpose of

having a general representation and protection of ourselves toward the

world at large, and yet would limit the local power and authority,

consistently with good and free Government, as respected populations

homeogeneous, and acquainted with each other, and with their own wants

and the methods of supplying them.

The Articles of Confederation, framed during the Revolution, ratified

at different times during its progress, and at its close, was a

Government under which we subsisted--for how long? Until 1787--but four

years from the time that we had an independent nationality--we were

satisfied with the imperfect Union that our provisional Government had

originated, and that we had shaped into somewhat more consistency under

the Articles of Confederation. Why did we not stay under that? We were

a feeble community. We had but little population, but little wealth. We

had but few of the occasions of discontent that belong to great, and

wealthy, and populous States. But the fault, the difficulty, was, that

there were, in that Confederation, too many features which our learned

friends, their clients here, and theoretical teachers of theirs

elsewhere, contend, make the distinctive character of the American

Constitution, as finally developed and established. The difficulty was

that, although we were apparently and intentionally a nation, as

respected the rest of the world, and for all the purposes of common

interest and common protection and common development, yet this element

of separate independency, and these views that the Government thus

framed operated, not as a Government over individuals, but as a

Government over local communities in an organized form, made its

working imperfect, impossible, and the necessary occasion of

dissension, and weakness, and hostility, and left it without the least

power, except by continued force and war, to maintain nationality.

Now, it was not because we were sovereigns, all of us, because we had

departed from sovereignty. There was not the least right in any State

to send an ambassador, or make a treaty, or have anything signed; but

the vice was, that the General Government had no power or authority,

directly, on the citizens of the States, but had to send its mandates

for contributions to the common treasury, and its requirements for

quotas for the common army and the common navy, directly to the States.

Now, I tarry no longer on this than to say, that the brief experience

of four years showed that it was an impossible proposition for a

Government, that there should be in it even these imperfect, clipped

and crippled independencies, that were made out of the original

provinces and called States. In 1787, the great Convention had its

origin, and in 1789 the adoption of the Constitution made something

that was supposed to be, and entitled to be, and our citizens required

to be, as completely different, on this question of double sovereignty,

and divided allegiance, and equal right of the nation to require and of

a State to refuse, as was possible. If, indeed, instead of the

Confederation having changed itself from an imperfect connection of

States limited and reduced in sovereignty, into a Government where the

nation is the coequal and co-ordinate power (as our friends express it)

of every State in it, why surely our brief experience of weakness and

disorder, and of contempt, such as was visited upon us by the various

nations with whom we had made treaties, that we could not fulfil them,

found, in the practical wisdom of the intelligent American people, but

a very imperfect and unsatisfactory solution, if the theories of the

learned counsel are correct, that these United States are, on the one

part, a power, and on the other part, thirty-four different powers, all

sovereign, and the two having complete rights of sovereignty, and

dividing the allegiance of our citizens in every part of our territory.

Now, the language of the Constitution is familiar to all of you. That

it embodies the principle of a General Government acting upon all the

States, and upon you, and upon me, and upon every one in the United

States; that it has its own established Courts--its own mandate by

which jurors are brought together--its own laws upon all the subjects

that are attributed to its authority; that there is an establishment

known as the Supreme Court, which, with the appropriate inferior

establishments, controls and finally disposes of every question of law,

and right, and political power, and political duty; and that this

adjusted system of one nation with distributed local power, is, in its

working, adequate to all the varied occasions which human life

develops--we all know. We have lived under it, we have prospered under

it, we have been made a great nation, an united people, free, happy,

and powerful.

Now, gentlemen, it is said--and several points in our history have been

appealed to, as well as the disturbances that have torn our country for

the last year--that this complete and independent sovereignty of the

States has been recognized. Now, there have been several occasions on

which this subject has come up. The first was under the administration

of the first successor of General Washington--John Adams,--when the

famous Virginia and Kentucky resolutions had their origin. About these

one of my learned friends gave you a very extensive discussion, and

another frankly admitted that he could not understand the doctrine of

the co-ordinate, equal sovereignty of two powers within the same State.

On the subject of these Virginia resolutions, and on the question of

whether they were the recognized doctrines of this Government, I ask

your attention to but one consideration of the most conclusive

character, and to be disposed of in the briefest possible space. The

proposition of the Virginia resolutions was, that the States who are

parties to the compact have the right and are in duty bound to

interpose to arrest the progress of the evil (that is, when

unconstitutional laws are passed), and to maintain, within their

respective limits, the authority, rights, and liberties pertaining to

them. That is to say, that where any law is passed by the Congress of

the United States, which the State of Virginia, in its wise and

independent judgment, pronounces to be in excess of the constitutional

power, it is its right and duty to interpose. How? By secession? No. By

rebellion? No. But by protecting and maintaining, within its territory,

the authority, rights, and liberties pertaining to it. Now, these

resolutions grew out of what? Certain laws, one called the "Alien" and

the other the "Sedition" law, rendered necessary by the disturbances

communicated by the French revolution to this country, and which

necessarily came within the doctrine of my friend, Mr. Larocque, that

there is not the least right of secession when the laws are capable of

being the subject of judicial investigation. Well, those laws were

capable of being the subject of judicial investigation, and the

resolutions did not claim the right of secession, but of nullification.

My learned friend says that the doctrine of "secession" has no ground.

But what was the fate of the "Virginia resolutions"? For Virginia did

not pretend that she had all the wisdom, and virtue, and patriotism of

the country within her borders. She sent these resolutions to every

State in the Union, and desired the opinion of their legislatures and

their governors on the subject. Kentucky passed similar resolutions;

and Kentucky, you will notice, had just been made a State, in 1793--an

off-shoot from Virginia; and, as the gentleman has told you, Mr.

Madison wrote the resolutions of Virginia, and Mr. Jefferson those of

Kentucky. So that there was not any great independent support, in

either State, for the views, thus identical, and thus promulgated by

these two Virginians. Their great patriotism, and wisdom, and

intelligence, are a part of the inheritance we are all proud of. But,

when the appeal was sent for concurrence to New York, South Carolina,

Georgia, Massachusetts, and the New England States, what was the

result? Why, Kentucky, in 1799, regrets that, of all the States, none,

except Virginia, acquiesced in the doctrines; and the answers of every

one of the States that made response are contained in the record which

also contains the Virginia and Kentucky resolutions. And that doctrine

there exploded, and exploded forever, until its recurrence in the shape

of nullification, in South Carolina, as part of the doctrines of this

Constitution.

We had another pressure on the subject of local dissatisfaction, in

1812; and then the seat of discontent and heresy was New England. I do

not contend, and never did contend, in any views I have taken of the

history of affairs in this country, that the people of any portion of

it have a right to set themselves in judgment as superiors over the

people of any other portion. I never have had any doubt that, just as

circumstances press on the interests of one community or another, just

so are they likely to carry their theoretical opinions on the questions

of the power of their Government and of their own rights, and just so

to express themselves. So long as they confine themselves to

resolutions and politics, to the hustings and to the elections, nobody

cares very much what their political theories are. But my learned

friend Mr. Brady has taken the greatest satisfaction in showing, that

this notion of the co-ordinate authority of the States with the nation,

found its expression and adoption, during the war of 1812, in some of

the States of New England. Well, gentlemen, I believe that all sober

and sensible people agree that, whether or not the New England States

carried their heresies to the extent of justifying the nullification of

a law, or the revocation of their assent to the Confederacy, and their

withdrawal from the common Government, the doctrines there maintained

were not suitable for the strength and the harmony, for the unity and

the permanency, of the American Government. I believe that the

condemnation of those principles that followed, from South Carolina,

from Virginia, from New York, and from other parts of the country, and

the resistance which a large, and important, and intelligent, and

influential portion of their own local community manifested,

exterminated those heresies forever from the New England mind.

Next, we come to 1832, and then, under the special instruction and

authority of a great Southern statesman, (Mr. Calhoun,) whose acuteness

and power of reasoning have certainly been scarcely, if at all,

surpassed by any of our great men, the State of South Carolina

undertook, not to secede, but to nullify; and yet Mr. Larocque says,

that this pet doctrine of Mr. Calhoun,--nullification, and nothing

else,--is the absurdest thing ever presented in this country; and we

are fortunate, I suppose, in not having wrecked our Union upon that

doctrine.

Now we come, next, to the doctrine of secession. Nullification,

rejected in 1798 by all the States, except Virginia and Kentucky, and

never revived by them,--nullification, rejected by the sober sense of

the American People,--nullification was put down by the strong will of

Jackson, in 1832,--having no place to disturb the strength and hopes

and future of this country. And what do we find is the proposition now

put forward, as matter of law, to your Honors, to relieve armed and

open war from the penalties of treason, and from the condemnation of a

lesser crime? What is it, as unfolded here by the learned advocate (Mr.

Larocque), with all his acuteness, but so manifest an absurdity that

its recognition by a lawyer, or an intelligent Jury, seems almost

impossible? It is this: This Union has its power, its authority, its

laws. It acts directly upon all the individuals inside of every State,

and they owe it allegiance as their Government. It is a Government

which is limited, in the exercise of its power, to certain general and

common objects, not interfering with the domestic affairs of any

community. Within that same State there is a State government, framed

into this General Government, to be certainly a part of it in its

territories, a part of it in its population, a part of it in every

organization, and every department of its Government. The whole body of

its administration of law, the Legislature and the Executive, are

bound, by a particular oath, to sustain the Constitution of the United

States. But, although it is true that the State Government has

authority only where the United States Government has not, and that the

United States have authority only where the State has not; and although

there is a written Constitution, which says what the line of separation

is; and although there is a Supreme Court, which, when they come into

collision, has authority to determine between them, and no case

whatever, affecting the right or the conduct of any individual man, can

be subtracted from its decision; yet, when there comes a difference

between the State and the General Government, the State has the moral

right, and political right, to insist upon its view, and to maintain it

by force of arms, and the General Government has the right to insist

upon its view, and to maintain it by force of arms. And then we have

this poor predicament for every citizen of that unlucky State,--that he

is bound by allegiance, and under the penalty of treason, to follow

each and both of these powers. And as, should he follow the State, the

United States, if it be treason, would hang him, and, if he should

follow the United States, the State, if it be treason, would hang him,

this peculiar and whimsical result is produced,--that when the United

States undertake to hang him for treason his answer is--"Why, if I had

not done as I did, the State would have hanged me for treason, and,

surely, I cannot be compelled to be hanged one way or the other--so, I

must be protected from hanging, as to both!" Well, _that_, I admit, is

a sensible way to get out of the difficulty, for the man and for the

argument, if you can do it. But, it is a peculiar result, to start with

two sovereigns, each of which has a right over the citizen, and to end

with the citizen's right to choose which he shall serve, and to throw

it in the face of offended majesty and justice--"Why, your statute of

treason is repealed as against me, because the State, of which I am a

subject, has counseled a particular course of conduct!"

Now, gentlemen, my learned friend qualifies even this theory--which

probably must fall within the condemnation of the perhaps somewhat

harsh and rough suggestion of Mr. Justice Grier, of a "political

platitude"--by the suggestion that it only applies to questions where

the united States cannot settle the controversy. And when my learned

friend is looking around for an instance or an occasion that is likely

to arise in human affairs, and in this nation, and in this time of

ours, he is obliged to resort to the most extraordinary and extravagant

proposition by way of illustration, and one that has, in itself, so

many of the ingredients of remoteness and impossibility, that you can

hardly think a Government deficient in not having provided for it. He

says, first--suppose we have a President, who is a Massachusetts man.

Well, that is not very likely in the course of politics at present. And

then, suppose that he is a bad man,--which, probably, my learned

friends would think not as unlikely as I should wish it to be. And,

then, suppose he should undertake to build up Boston, in its commerce,

at the expense of New York; and should put a blockading squadron

outside New York, by mere force of caprice and tyranny, without any

law, and without any provision for the payment of the men of the Navy,

or any commission or authority to any of them under which they could

find they were protected for what they should do, in actually and

effectually blockading our port. My learned friend acknowledges that

this is a pretty violent sort of suggestion, and that no man in his

senses would pretend to do such a thing, however bad he was, unless he

could find a reasonable sort of pretext for it. Therefore he would,

wisely and craftily, pretend that he had private advices that England

was going to bombard New York. Now that is the practical case created

by my learned friend's ingenuity and reflection, as a contingency in

which this contest by war between New York and the United States of

America would be the only practical and sensible mode of protecting our

commerce, and keeping you and me in the enjoyment of our rights as

citizens of the State of New York. Well, to begin with, if we had a

fleet off New York harbor, what is there that would require vessels to

go to Boston instead of to Philadelphia, Baltimore, and other places

that are open? In the second place, how long could we be at war, and

how great an army could we raise in New York, to put in the field

against the Federal Government, before this pretence of private advices

that England was going to bombard New York, would pass away, and the

naked deformity of this bad Massachusetts President be exposed? Why,

gentlemen, it is too true to need suggestion, that the wisdom which

made this a Government over all individual citizens, and made every

case of right and interest that touches the pocket and person of any

man in it a question of judicial settlement, made it a Government which

requires for the solution of none of the controversies within it, a

resort to the last appeal--to battle, and the right of kings.

(Adjourned to 11 o'clock to-morrow.)

Trial of the Officers and Crew of the Privateer Savannah, on the Charge of Piracy, in the United States Circuit Court for the Southern District of New York · 第 52 / 77 题