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.)