Trial of the Officers and Crew of the Privateer Savannah on the Charge of Piracy Part 55

Now, wherein is it that this Government deserves these encomiums, which come from the intelligent and profound wisdom of statesmen, and gush spontaneously from the unlearned hearts of the ma.s.ses of the people? Why, it is precisely in this point, of its not being a consolidated Government, and of its not being a narrow, and feeble, and weak community and Government. Indeed, I may be permitted to say that I once heard, from the lips of Mr. Calhoun himself, this recognition, both of the good fortune of this country in possessing such a Government, and of the princ.i.p.al sources to which the grat.i.tude of a nation should attribute that good fortune. I heard him once say, that it was to the wisdom, in the great Convention, of the delegates from the State of Connecticut, and of Judge Patterson, a delegate from the State of New Jersey, that we owed the fact that this Government was what it was, the best Government in the world, a confederated Government, and not what it would have been--and, apparently, would have been but for those statesmen--the worst Government in the world--a consolidated Government. These statesmen, he said, were wiser for the South than the South was for herself.

I need not say to you, gentlemen that, if all this encomium on the great fabric of our Government is brought to naught, and is made nonsense by the proposition that, although thus praised and thus admired, it contains within itself the principle, the right, the duty of being torn to pieces, whenever a fragment of its people shall be discontented and desire its destruction, then all this encomium comes but as sounding bra.s.s and a tinkling cymbal; and the glory of our ancestors, Was.h.i.+ngton, and Madison, and Jefferson, and Adams--the glory of their successors, Webster, and Clay, and Wright, and even Calhoun--for he was no votary of this nonsense of secession--pa.s.ses away, and their fame grows visibly paler, and the watchful eye of the English monarchy looks on for the bitter fruits to be reaped by us for our own destruction, and as an example to the world--the bitter fruits of the principle of revolution and of the right of self-government which we dared to a.s.sert against her perfect control. Pointing to our exhibition of an actual concourse of armies, she will say--"It is in the dragon's teeth, in the right of rebellion against the monarchy of England, that these armed hosts have found their seed and sprung up on your soil."

Now, gentlemen, such is our Government, such is its beneficence, such is its adaptation, and such are its successes. Look at its successes.

Not three-quarters of a century have pa.s.sed away since the adoption of its Const.i.tution, and now it rules over a territory that extends from the Atlantic to the Pacific. It fills the wide belt of the earth's surface that is bounded by the provinces of England on the North, and by the crumbling, and weak, and contemptible Governments or no Governments that shake the frame of Mexico on the South. Have Nature and Providence left us without resources to hold together social unity, notwithstanding the vast expanse of the earth's surface which our population has traversed and possessed? No. Keeping pace with our wants in that regard, the rapid locomotion of steam on the ocean, and on our rivers and lakes, and on the iron roads that bind the country together, and the instantaneous electric communication of thought, which fills with the same facts, and with the same news, and with the same sentiments, at the same moment, a great, enlightened, and intelligent people, have overcome all the resistance and all the dangers which might be attributed to natural obstructions. Even now, while this trial proceeds, San Francisco and New York, Boston and Portland, and the still farther East, communicate together as by a flash of lightning--indeed, it may be said, making an electric flash farther across the earth's surface, and intelligible too, to man, than ever, in the natural phenomena of the heavens, the lightning displayed itself. No--the same Author of all good, to whom Pinckney avowed his grat.i.tude, has been our friend and our protector, and has removed, step by step, every impediment to our expansion which the laws of nature and of s.p.a.ce had been supposed to interpose. No, no--neither in the patriotism nor in the wisdom of our fathers was there any defect; nor shall we find, in the disposition and purposes of Divine Providence, as we can see them, any excuse or any aid for the destruction of this magnificent system of empire. No--it is in ourselves, in our own time and in our own generation, in our own failing powers and failing duties, that the crash and ruin of this magnificent fabric, and the blasting of the future hopes of mankind, is to find its cause and its execution.

I have shown you, gentlemen, how, when the usurpations of the British Parliament, striking at the vital point of the independence of this country, had raised for consideration and determination, by a brave and free people, the question of their destiny, our fathers dealt with it. My learned friends, in various forms, have spoken poetically, logically and practically about all that course of proceedings that has been going on in this country, as finding a complete parallelism, support, and justification in the course of the American Revolution; and a pa.s.sage in the Declaration of Independence has been read to you as calculated to show that, on a mere theoretical opinion of the right of a people to govern themselves, any portion of that people are at liberty, as well against a good Government as against a bad one, to establish a bad Government as well as overthrow a bad Government--have the right to do as they please, and, I suppose, to force all the rest of the world and all the rest of the nation to just such a fate as their doing as they please may bring with it.

Let us see how this Declaration of Independence, called by the great forensic orator, Mr. Choate, "a pa.s.sionate and eloquent manifesto,"

and stigmatized as containing "glittering generalities"--let us see, I say, how sober, how discreet, how cautious it is in the presentation of this right, even of revolution. I read what, both in the newspapers and in political discussions, as well as before you, by the learned counsel, have been presented as the doctrines of the Declaration of Independence, and then I add to it the qualifying propositions, and the practical, stern requisitions, which that instrument appends to these general views:

"To secure these rights, Governments are inst.i.tuted among men, deriving their just powers from the consent of the governed; that whenever any form of Government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to inst.i.tute new Government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate, that Governments long established should not be changed for light and transient causes. And, accordingly, all experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolis.h.i.+ng the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such Government, and to provide new guards for their future security. Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these States. To prove this, let facts be submitted to a candid world."

And it then proceeds to enumerate the facts, in the eloquent language of the Declaration, made familiar to us all by its repeated and reverent recitals on the day which celebrates its adoption. There is not anything of moons.h.i.+ne about any one of them. There is not anything of perhaps, or antic.i.p.ation of fear, or suspicion. There is not anything of this or that newspaper malediction, of this or that rhetorical disquisition, of this or that theory, or of this or that opprobrium, but a recital of direct governmental acts of Great Britain, all tending to the purpose of establis.h.i.+ng complete despotism over this country. And, then, even that not being deemed sufficient, on the part of our great ancestors, to justify this appeal to the enlightened opinion of the world, and to the G.o.d who directs the fate of armies, they say:

"In every stage of these oppressions, we have pet.i.tioned for redress, in the most humble terms; our repeated pet.i.tions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.

"Nor have we been wanting in attentions to our British brethren.

We have warned them, from time to time, of attempts by their Legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circ.u.mstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them, by the ties of our common kindred, to disavow these usurpations, which would inevitably interrupt our connection and correspondence. They, too, have been deaf to the voice of justice and of consanguinity."

Now, gentlemen, this doctrine of revolution, which our learned friends rely upon, appeals to our own sense of right and duty. It rests upon facts, and upon the purpose, as indicated by those facts, to deprive our ancestors of the rights of Englishmen, and to subject them to the power of a Government in which they were not represented. Now, whence come the occasions and the grievances urged before you, and of what kind are they? My learned friend, Mr. Brady, has given you a distinct enumeration, under nine heads, of what the occasions are, and what the grievances are. There is not one of them that, in form or substance, proceeded from the Federal Government. There is not a statute, there is not a proclamation, there is not an action, judicial, executive, or legislative, on the part of the Federal Government, that finds a place, either in consummation or in purpose, in this indictment drawn by my friend Mr. Brady against the Government, on behalf of his clients. The letter of South Carolina, on completing the revocation of her adoption of the Const.i.tution, addressed to the States, dwells upon the interest of slavery (as does my learned friend Mr. Brady, in all his propositions), and discloses but two ideas--one, that when any body or set of people cease to be a majority in a Government, they have a right to leave it; and the other, that State action, on the part of some of the Northern States, had been inconsistent with, threatening to, or opprobrious of the inst.i.tution of slavery in the Southern States.

Let me ask your attention to this proposition of the Southern States, and this catalogue of the learned counsel. As it is only the interest of slavery, social and political (for it is an interest, lawfully existing), that leads to the destruction of our Government and of their Government, let us see what there is in the actual circ.u.mstances of this interest, as being able, under the forms of our Const.i.tution, to look out for itself, as well, at least, as any other interest in the country, that can justify them in finding an example or a precedent in the appeal of our fathers to arms to a.s.sert their rights by the strong hand, because in the Government of England they had no representation. Did our fathers say that, because they had not a majority in the English Parliament, they had a right to rebel? No!

They said they had not a share or vote in the Parliament. That was their proposition.

I now invite you to consider this fundamental view of the right and power of Government, and the right and freedom of the people,--to wit, that every citizen is ent.i.tled to be counted and considered as good as every other citizen,--as a natural and abstract right--as the basis of our Government, however other arrangements may have adjusted or regulated that simple and abstract right. Then, let us see whether the arrangement of the Federal Government, in departing from that natural right of one man to be as good as another, and to be counted equal in the representation of his Government, has operated to the prejudice of the interest of slavery. We have not heard anything in this country of any other interest for many a long year,--much to my disgust and discontent. There are other interests,--manufacturing interests, agricultural interests, commercial interests, all sorts of interests,--some of them discordant, if you please. Let us see whether this interest of slavery has a fair chance to be heard, and enjoys its fair share of political power under our Government, or whether, from a denial to it of its fair share, it has some pretext for appealing to force. Why, gentlemen, take the fifteen Slave States, which, under the census of 1850, had six millions of white people--that is, of citizens--and, under the census of 1860, about eight millions, and compare them with the white people of the State of New York, which, under the census of 1850, had three millions, and, under the census of 1860, something like four millions.

Now, here we are,--they as good as we, and we as good as they,--we having our interests, and opinions, and feelings--they their opinions, interests, and feelings,--and let us see how the arrangement of representation, in every part of our Government, is distributed between these interests. Why, with a population just double that of the State of New York, the interest of slavery has _thirty_ Senators to vote and to speak for it, and the people of New York have _two_ Senators to vote and to speak for them. In the House of Representatives these same Slave States have _ninety_ Representatives to speak and to vote for them; and the people of the State of New York have _thirty-three_ to vote and to speak for them. And, in the Electoral College, which raises to the chief magistracy the citizen who receives the const.i.tutional vote, these same States have _one hundred and twenty_ electoral votes, and the State of New York has _thirty-five_. Why, the three coterminous States--New York, Pennsylvania, and Ohio--have, under either census, as great or a greater population than the fifteen Slave States, and they have but six Senators, against the Slave States' thirty.

Do I mention this in complaint? Not in the least. I only mention it to show you that the vote and the voice of this interest has not been defrauded in the artificial distribution of Federal power. And, if I may be allowed to refer to the other august department of our Federal Government, the Supreme Court of the United States, in which the Presiding Justice has his seat as one of the members of that Court, you will see how the vast population, the vast interests of business, commerce, and what not, that reside in the Free States, as compared with the lesser population, the lesser business, and the lesser demand for the authority or intervention of the judiciary in the Slave States, have been represented for years, by the distribution of the nine Judges of that Court, so that the eighteen millions of white people who compose the population of the Free States have been represented (not in any political sense) by four of these Justices; and the rest of the country, the fifteen Slave States, with their population of six or eight millions, have been represented by five.

Now, of this I do not complain. It is law--it is government; and no injustice has been done to the Const.i.tution, nor has it been violated in this arrangement. But, has there been any fraud upon the interest of slavery, in the favor the Federal Government has shown in the marking out of the Judicial Districts, and in the apportionment of the Judges to the different regions of the country, and to the population of those regions? If you look at it as regards the business in the different Circuits, the learned Justice who now presides here, and who holds his place for the Second Circuit, including our State, disposes annually, here and in the other Courts, of more business than, I may perhaps say, all the Circuits that are made up from the Slave States.

And, if you look at it as regards the population, there was one Circuit--that which was represented by the learned Mr. Justice McLean, lately deceased--which contained within itself five millions of white, free population; while one other Circuit, represented by another learned Justice, lately deceased--a Circuit composed of Mississippi and Arkansas--contained only 450,000, at the time of the completion of the census of 1850. Who complains of this? Do we? Never. But, when it is said to you that there is a parallelism between the right of revolt, because of lack of representation, in the case of our people and the Parliament of England, and the case of these people and the United States, or any of the forms of its administration of power, remember these things. I produce this in the simple duty of forensic reply to the causes put forward as a justification of this revolt--that is to say that, the Government oppressing them, or the Government closed against them, and they excluded from it, they had a right to resort to the revolution of force.

You, therefore, must adopt the proposition of South Carolina, that, when any interest ceases to be the majority in a Government, it has a right to secede. How long would such a Government last? Why, there never was any interest in this country which imagined that it had a majority. Did the tariff interest have a majority? Did the grain interest have a majority? Did the commercial interest have a majority?

Did the States of the West have a majority? Does California gold represent itself by a majority? Why, the very safety of such a Government as this is, that no interest shall or can be a majority; but that the concurring, consenting wisdom drawn out of these conflicting interests shall work out a system of law which will conduce to the general interest.

Now, that I have not done my learned friend, Mr. Brady, any injustice in presenting the catalogue of grievances (not in his own view, but in the view of those who have led in this rebellion), let us see what they are:

"The claim to abolish slavery." Is there any statute of the United States anywhere that has abolished it? Has any Act been introduced into Congress to abolish it? Has the measure had a vote?

"Stoppage of the inter-state slave-trade." I may say the same thing of that.

"No more slavery in the Territories." Where is the Act of Congress, where is the movement of the Federal Government, where the decision of the Supreme Court, that holds that slavery cannot go into a territory?

Why, so far as acts go, everything has gone in the way of recognizing the confirmation of the right--the repeal of the Missouri Compromise by Congress, and the decision of the Federal Court, if it go to that extent, as is claimed, in the case of Dred Scott.

"Nullification of the fugitive-slave law." Who pa.s.sed the fugitive-slave law? Congress. Who have enforced it? The Federal power, by arms, in the city of Boston. Who have enjoined its observation, to Grand Juries and to Juries? The Justices of the Supreme Court of the United States, in their Circuits. Who have held it to be const.i.tutional? The Supreme Court of the United States, and the subordinate Courts of the United States, and every State Court that has pa.s.sed upon the subject, except it be the State Court of the State of Wisconsin, if I am correctly advised.

"Under-ground railroads, supported by the Government, and paid by them." Are they? Not in the least.

"The case of the Creole"--where, they say, no protection was given to slaves on the high seas. Is there any judicial interpretation to that effect? Nothing but the refusal of Congress to pa.s.s a bill, under some circ.u.mstances of this or that nature, presented for its consideration; and, because it has refused, it is alleged there is the a.s.sertion of some principle that should charge upon this Government the inflamed and particular views generally maintained on slavery by Garrison, Phillips, and Theodore Parker.

The other enormities they clothe in general phrase, and do not particularly specify, except one particular subject--what is known as the "John Brown raid"--in regard to which, as it has been introduced, I shall have occasion to say something in another connection, and, therefore, I will not comment upon it now.

I find, however, I have omitted the last--Mr. Lincoln's doctrine, that it is impossible, theoretically, for slave and free States to co-exist. For many years that was considered to be Mr. Seward's doctrine, but, when Mr. Lincoln became a candidate for the Presidency, it was charged on him, being supported by some brief extracts from former speeches made by him in canva.s.sing his State. I cannot discuss all these matters. They are beneath the gravity of State necessity, and of the question of the right of revolution. They are the opinions, the sentiments, the rhetoric, the folly, the local rage and madness, if you please, in some instances, of particular inflammations, either of sentiment or of action, rising in the bosom of so vast, so impetuous a community as ours. But, suppose the tariff States, suppose the grain States, were to attempt to topple down the Government, and maintain a separate and sectional independence upon their interests, of only the degree and gravity, and resting in the proof of facts like these? Now, for the purpose of the argument, let us suppose all these things to be wrong. My learned friends, who have made so great and so pa.s.sionate an appeal that individual lives should not be sacrificed for opinion, certainly might listen to a proposition that the life of a great nation should not be destroyed on these questions of the opinions of individual citizens. No--you never can put either the fate of a nation that it must submit, or the right of malcontents to a.s.sert their power for its overthrow, upon any such proposition, of the ill-working, or of the irritations that arise, and do not come up to the effect of oppression, in the actual, the formal, and the persistent movement of Government. Never for an instant. For that would be, what Mr. Stephens has so ably presented the folly of doing, to require that a great Government, counting in its population thirty millions of men, should not only be perfect in its design and general form and working, but that it should secure perfect action, perfect opinions, perfect spirit and sentiments from every one of its people--and that, made out of mere imperfect individuals who have nothing but poor human nature for their possession, it should suddenly become so transformed, as to be without a flaw, not only in its administration, but in the conduct of every body under it.

Now, my learned friends, pressed by this difficulty as to the sufficiency of the causes, are driven finally to this--that there is a right of revolution when anybody thinks there is a right of revolution, and that that is the doctrine upon which our Government rests, and upon which the grave, serious action of our forefathers proceeded. And it comes down to the proposition of my learned friend, Mr. Brady, that it all comes to the same thing, the _power_ and the _right_. All the argument, most unquestionably, comes to that. But do morals, does reason, does common sense recognize that, because power and right may result in the same consequences, therefore there is no difference in their quality, or in their support, or in their theory?

If I am slain by the sword of justice for my crime, or by the dagger of an a.s.sa.s.sin for my virtue, I am dead, under the stroke of either.

But is one as right as the other? An oppressive Government may be overthrown by the uprising of the oppressed, and Lord Camden's maxim may be adhered to, that "when oppression begins, resistance becomes a right;" but a Government, beneficent and free, may be attacked, may be overthrown by tyranny, by enemies, by mere power. The Colonies may be severed from Great Britain, on the principle of the right of the people a.s.serting itself against the tyranny of the parent Government; and Poland may be dismembered by the interested tyranny of Russia and Austria; and each is a revolution and destruction of the Government, and its displacement by another--a dismemberment of the community, and the establishment of a new one under another Government. But, do my learned friends say that they equally come to the test of power as establis.h.i.+ng the right? Will my learned friend plant himself, in justification of this dismemberment of a great, free, and prosperous people, upon the example of the dismemberment of Poland, by the introduction of such influences within, and by the co-operation of such influences without, as secured that result? Certainly not. And yet, if he puts it upon the right and the power, as coming to the same thing, it certainly cannot make any difference whether the power proceeds from within or from without. There is no such right. Both the public action of communities and the private action of individuals must be tried, if there is any trial, any scrutiny, any judgment, any determination, upon some principles that are deeper than the question of counting bayonets. When we are referred to the ease of Victor Emannuel overthrowing the throne of the King of Naples, and thus securing the unity of the Italian people under a benign Government, are we to be told that the same principle and the same proposition would have secured acceptance before the forum of civilization, and in the eye of morality, to a successful effort of the tyrant of Naples to overthrow the throne of Victor Emannuel, and include the whole of Italy under his, King Bomba's, tyranny? No one. The quality of the act, the reason, the support, and the method of it, are traits that impress their character on those great public and national transactions as well as upon any other.

There is but one proposition, in reason and morality, beyond those I have stated, which is pressed for the extrication and absolution of these prisoners from the guilt that the law, as we say, impresses upon their action and visits with its punishment. It is said that, however little, as matter of law, these various rights and protections may come to, good faith, or sincere, conscientious conviction on the part of these men as to what they have done, should protect them against the public justice.

Now, we have heard a great deal of the a.s.sertion and of the execration of the doctrine of the "higher law," in the discussions of legislation, and in the discussions before the popular mind; but I never yet have heard good faith or sincere opinion pressed, in a Court of Justice, as a bar to the penalty which the law has soberly affixed, in the discreet and deliberate action of the Legislature. And here my learned friend furnishes me, by his reference to the grave instance of injury to the property, and the security, and the authority of the State of Virginia, which he has spoken of as "John Brown's raid," with a ready instance, in which these great principles of public justice, the authority of Government, and the sanctions of human law were met, in the circ.u.mstances of the transaction, by a complete, and thorough, and remarkable reliance, for the motive, the support, the stimulus, the solace, against all the penalties which the law had decreed for such a crime, on this interior authority of conscience, and this supremacy of personal duty, according to the convictions of him who acts. The great State of Virginia administered its justice, and it found, as its princ.i.p.al victim, this most remarkable man, in regard to whom it was utterly impossible to impute anything like present or future, near or remote, personal interest or object of any kind--a man in regard to whom Governor Wise, of Virginia, said, in the very presence of the transaction of his trial, that he was the bravest, the sincerest, the truthfulest man that he ever knew. And now, let us look at the question in the light in which our learned friend presents it--that John Brown, as matter of theoretical opinion of what he had a right to do, under the Const.i.tution and laws of his country, was justified, upon the pure basis of conscientious duty to G.o.d--and let us see whether, before the tribunals of Virginia, as matter of fact, or matter of law, or right, or duty, any recognition was given to it.

No. John Brown was not hung for his theoretical heresies, nor was he hung for the hallucinations of his judgment and the aberration of his wrong moral sense, if you so call it, instead of the interior light of conscience, as he regarded it. He was hung for attacking the sovereignty, the safety, the citizens, the property, and the people of Virginia. And, when my learned friend talks about this question of hanging for political, moral, or social heresy, and that you cannot thus coerce the moral power of the mind, he vainly seeks to beguile your judgment. When Ravaillac takes the life of good King Henry, of France, is it a justification that, in the interests of his faith, holy to him--of the religion he professed--he felt impelled thus to take the life of the monarch? When the a.s.sa.s.sin takes, at the door of the House of Commons, the life of the Prime Minister, Mr. Percival, because he thinks that the course of measures his administration proposes to carry out is dangerous to the country, and falls a victim to violated laws, I ask, in the name of common sense and common fairness--are these executions to be called hanging for political or religious heresies? No. And shall it ever be said that sincere convictions on these theories of secession and of revolution are ent.i.tled to more respect than sincere convictions and opinions on the subject of human rights? Shall it be said that faith in Jefferson Davis is a greater protection from the penalty of the law than faith in G.o.d was to John Brown or Francis Ravaillac?

But, gentlemen, it was said that certain isolated acts of some military or civil authority of the United States, or some promulgation of orders, or affirmation of measures by the Government, had recognized the belligerent right, or the right to be considered as a power fighting for independence, of this portion of our countrymen.

The flags of truce, and the capitulation at Hatteras Inlet, and the announcement that we would not invade Virginia, but would protect the Capital, are claimed as having recognized this point. Now, gentlemen, this attempts either too much or too little. Is it gravely to be said that, when the Government is pressing its whole power for the restoration of peace and for the suppression of this rebellion, it is recognizing a right to rebel, or has liberated from the penalties of the criminal law such actors in it as it may choose to bring to punishment? Is it to be claimed here that, by reason of these proceedings, the Government has barred itself from taking such other proceedings, under the same circ.u.mstances, as it may think fit? Why, certainly not. The Government may, at any time, refuse to continue this amenity of flags of truce. It can, the next time, refuse to receive a capitulation as "prisoners of war," and may, in any future action--as, indeed, in its active measures for the suppression of the rebellion it is doing--affirm its control over every part of the revolted regions of this country. There is nothing in this fact that determines anything for the occasion, but the occasion itself. The idea that the commander of an expedition to Hatteras Inlet has it in his power to commit the Government, so as to empty the prisons, to overthrow the Courts, and to discharge Jurors from their duty, and criminals from the penalties of their crimes, is absurd.

I shall now advert to the opinion of Judge Cadwalader, on the trial in Philadelphia, and to the propositions of the counsel there, on behalf of the prisoners, as containing and including the general views and points urged, in one form or another, and with greater prolixity, at least, if not earnestness and force, by the learned counsel who defend the prisoners here. It will be found that those points cover all these considerations:

_First._ If the Confederate States of America is a Government, either _de facto_ or _de jure_, it had a right to issue letters of marque and reprisal; and if issued before the commission of the alleged offence, that the defendant, acting under the authority of such letters, would be a privateer, and not a pirate, and, as such, is ent.i.tled to be acquitted.

_Second._ That if, at the time of the alleged offence, the Southern Confederacy, by actual occupation, as well as acts of Government, had so far acquired the mastery or control of the particular territory within its limits as to enable it to exercise authority over, and to demand and exact allegiance from, its residents, that then a resident of such Confederacy owes allegiance to the Government under which he lives, or, at least, that by rendering allegiance to such Government, whether on sea or land, he did not thereby become a traitor to the Government of the United States.

_Third._ That if, at the time of the alleged offence and the issuing of the letters of marque and reprisal upon which the defendant acted, the Courts of the United States were so suspended or closed in the Southern Confederacy, as to be no longer able to administer justice and enforce the law in such Confederacy, that the defendant thereby became so far absolved from his allegiance to the United States as to enable him to take up arms for, and to enter the service of, the Southern Confederacy, either on land or sea, without becoming a traitor to the Government of the United States.

_Fourth._ That if, at the time of the alleged offence and his entering into the service of the Southern Confederacy, the defendant was so situated as to be unable to obtain either civil or military protection from the United States, whilst at the same time he was compelled to render either military or naval service to the Southern Confederacy, or to leave the country, and, in this event, to have his property sequestrated or confiscated by the laws of the said Confederacy, that such a state of things, if they existed, would amount in law to such duress as ent.i.tles the defendant here to an acquittal.

_Fifth._ That this Court has no jurisdiction of the case, because the prisoner, after his apprehension on the high seas, was first brought into another District, and ought to have been there tried.

And now, gentlemen, even a more remote, unconnected topic, has been introduced into this examination, and discussed and pursued with a good deal of force and feeling, by my learned friend, Mr. Brady; and that is, what this war is for, and what is expected to be accomplished by it. Well, gentlemen, is your verdict to depend upon any question of that kind? Is it to depend either upon the purpose of the Government in waging the war, or upon its success in that purpose? If so, the trial had been better postponed to the end of the war, and then you will find your verdict in the result. What is the meaning of this? Let those who began the war say what the war is for. Is it to overthrow this Government and to dismember its territory? Is it to acquire dominion over as large a portion of what const.i.tutes the possessions of the American people, and over as large a share of its population, as the policy or the military power of the interest that establishes for itself an independent Government, for its own protection, can accomplish? Who are seeking to subjugate, and who is seeking to protect? No subjugation is attempted or desired, in respect of the people of these revolting States, except that subjugation which they themselves made for themselves when they adopted the Const.i.tution of the United States, and thanked G.o.d, with Charles Cotesworth Pinckney, that his blessing permitted them to do so,--and, up to this time, with Alexander Stephens, have found it to be a Government that can only be likened, on this terrestrial sphere, to the Eden and Paradise of the nations of men. What is the interest that is seeking to wrest from the authority of that benign Government portions of its territory and authority, but the social and political interest of slavery, about which I make no other reproach or question than this--that it has purposes, and objects, and principles which do not consult the general or equal interests of the population of these revolting States themselves, nor contemplate a form of Government that any Charles Cotesworth Pinckney, now, or any Alexander Stephens, hereafter, can thank G.o.d for having been permitted to establish; and that, as Mr.

Stephens has said, instead of becoming G.o.ds, by bursting from the restraints of this Eden, they will discover their own nakedness, and, instead of finding peace and prosperity, they will come to cutting their own throats.

Now, what is the duty of a Government that finds this a.s.sault made by the hands of terror and of force against the judgment and wishes of the discreet, sober, and temperate, at least, to those to whom it owes protection, as they owe allegiance to it? What, but to carry on, by the force of the Government, the actual suppression of the rebellion, so that arms may be laid down, peace may exist, and the law and the Const.i.tution be reinstated, and the great debate of opinion be restored, that has been interrupted by this vehement recourse to arms?

What, but to see to it that, instead of the consequences of this revolt being an expulsion, from this Paradise of free Government, of these people whom we ought to keep within it, it shall end in the expulsion of that tempting serpent--be it secession or be it slavery--that would drive them out of it. Government has duties, gentlemen, as well as rights. If our lives and our property are subject to its demands under the penal laws, or for its protection and enforcement as an authority in the world, it carries to every citizen, on the farthest sea, in the humblest schooner, and to the great population of these Southern States in their ma.s.ses at home, that firm protection which shall secure him against the wicked and the willful a.s.saults, whether it be of a pirate on a distant sea, or of an ambitious and violent tyranny upon land. When this state of peace and repose is accomplished by Conventions, by pet.i.tions, by representations against Federal laws, Federal oppressions, or Federal principles of government, the right of the people to be relieved from oppression is presented; and then may the spirit and the action of our fathers be invoked, and their condemnation of the British Parliament come in play, if we do not do what is right and just in liberating an oppressed people. But I need not say to you that the whole active energies of this system of terror and of force in the Southern States have been directed to make impossible precisely the same debate, the same discussion, the same appeal, and the same just and equal attention to the appeal. And you will find this avowed by many of their speakers and by many of their writers--as, when Mr. Toombs interrupts Mr. Stephens in the speech I have quoted from, when urging that the people of Georgia should be consulted, by saying: "I am afraid of Conventions and afraid of the people; I do not want to hear from the cross-roads and the groceries," which are the opportunities of public discussion and influence, it appears, in the State of Georgia. That is exactly what they did not want to hear from; and their rash withdrawal of this great question from such honest, sensible consideration, will finally bring them to a point that the people, interested in the subject, will take it by force; and then, besides their own nakedness, which they have now discovered, the second prophecy of Mr. Stephens, that they will cut their own throats, will come about; and nothing but the powerful yet temperate, the firm yet benign, authority of this Government, compelling peace upon these agitations, will save those communities from social destruction and from internecine strife at home.

Now, having such an object, can it be accomplished? It cannot, unless you try; and it cannot, if every soldier who goes into the field concludes that he will not fire off his gun, for it is uncertain whether it will end the war; or if, on any post of duty that is devolved upon citizens in private life, we desert our Government, and our full duty to the Government. But that it can be done, and that it will be done, and that all this talk and folly about conquering eight millions of people will result in nothing, I find no room to doubt. In the first place, where are your eight millions? Why, there are the fifteen Slave States, and four of them--Maryland, Delaware, Kentucky, and Missouri--are not yet within the Confederacy. So we will subtract three millions, at least, for that part of the concern. Then there are five millions to be conquered; and how are they to be conquered? Why, not by destruction, not by slaughter, not by chains and manacles; but by the impression of the power of the Government, showing that the struggle is vain, that the appeal to arms was an error and a crime, and that, in the region of debate and opinion, and in equal representation in the Government itself, is the remedy for all grievances and evils. Be sure that, whatever may be said or thought of this question of war, these people can be, not subjugated, but compelled to entertain those inquiries by peaceful means; and I am happy to be able to say that the feeble hopes and despairing views which my learned friend, Mr. Brady, has thought it his duty to express before you, as to the hopelessness of any useful result to these hostilities, is not shared by one whom my friend, in the eloquent climax to an oration, placed before us as "starting, in a red s.h.i.+rt, to secure the liberties of Italy." I read his letter:

"CAPRERA, _Sept. 10_.

"_Dear Sir_: I saw Mr. Sandford, and regret to be obliged to announce to you that I shall not be able to go to the United States at present. I do not doubt of the triumph of the cause of the Union, and that shortly; but, if the war should unfortunately continue in your beautiful country, I shall overcome the obstacles which detain me and hasten to the defence of a people who are dear to me.

"G. GARIBALDI."

Garibaldi has had some experience, and knows the difference between efforts to make a people free, and the warlike and apparently successful efforts of tyranny; and he knows that a failure, even temporary, does not necessarily secure to force, and fraud, and violence a permanent success. He knows the difference between restoring a misguided people to a free Government, and putting down the efforts of a people to get up a free Government. He knows those are two different things; and, if the war be not shortly ended, as he thinks it will be, then he deems it right for him, fresh from the glories of securing the liberties of Italy, to a.s.sist in maintaining--what? Despotism? No! the liberties of America.

One of the learned counsel, who addressed you in a strain of very effective and persuasive eloquence, charmed us all by the grace of his allusion to a pa.s.sage in cla.s.sical history, and recalled your attention to the fact that, when the States of Greece which had warred against Athens, antic.i.p.ating her downfall beneath the prowess of their arms, met to determine her fate, and when vindictive Thebes and envious Corinth counseled her destruction, the genius of the Athenian Sophocles, by the recital of the chorus of the Electra, disarmed this cruel purpose, by reviving the early glories of united Greece. And the counsel asked that no voice should be given to punish harshly these revolted States, if they should be conquered.

The voice of Sophocles in the chorus of the Electra, and those glorious memories of the early union, were produced to bring back into the circle of the old confederation the erring and rebellious Attica.

So, too, what shall we find in the memories of the Revolution, or in the eloquence with which we have been taught to revere them, that will not urge us all, by every duty to the past, to the present, and to the future, to do what we can, whenever a duty is reposed in us, to sustain the Government in its rightful a.s.sertion of authority and in the maintenance of its power? Let me ask your attention to what has been said by the genius of Webster on so great a theme as the memory of Was.h.i.+ngton, bearing directly on all these questions of union, of glory, of hope, and of duty, which are involved in this inquiry. See whether, from the views thus invoked, there will not follow the same influence as from the chorus of the Electra, for the preservation, the protection, the restoration of every portion of what once was, and now is, and, let us hope, ever shall be, our common country.