Front matter (continued 11)

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.)

SEVENTH DAY.

Wednesday, October 30, 1861.

The Court met at 11 o'clock A.M., when Mr. Evarts resumed his argument.

Gentlemen of the Jury: In resuming the course of my remarks, already necessarily drawn to a very considerable length, I must recall to your attention the point that I had reached when the Court adjourned. I was speaking of this right of secession, as inconsistent with the frame, the purpose, and the occasion upon which the General Government was formed; and of the illustration invented by my learned friend, and so improbable in its circumstances, of the position of the United States and one of the States of the Union, that could bring into play and justify this resort to armed opposition. I had said what I had to say, for the most part, as to the absurdity and improbability of the case supposed, and the inadequacy, the worthlessness, the chimerical nature of the remedy proposed. Now, you will observe that, in the case supposed, the blockade of New York was to be without law, without authority, upon the mere capricious pretence of the President—a pretence so absurd that it could not stand the inspection of the people for a moment. What is the use of a pretence unless it is a cover for the act which it is intended to cloak? In such a case, the only proper, peaceful course would be to raise the question, which might be raised judicially, by attempting, in a peaceful manner, to pass the blockade, and throw the consequences upon the subordinate officers who attempted to execute the mere usurpation of the President, and, following the declaration of the Divine writings, that "wisdom is better than weapons of war," wait until the question could be disposed of under the Constitution of the United States. For you will observe that, in the case supposed, there is no threat to the integrity, no threat to the authority, no threat to the existence of the State Government, or its Constitution; but an impeding of the trade or interests of the people of this city, and of the residents of all parts of the country interested in the commerce of New York. That port is not the port of New York alone. It is the port of the United States of America, and all the communities in the Western country, who derive their supplies of foreign commodities through our internal navigation, when commerce has introduced them into this port, are just as much affected—just as much injured and oppressed—by this blockade of our great port and emporium, as are the people of the State of New York. So that, so far from its being a collision between the Government of the State of New York and the Government of the United States, it is a violent oppression, by usurpation—exposing to the highest penalties of the law the magistrate who has attempted it—exercised upon the people of the United States wherever residing, in the far West, in the surrounding States, in the whole country, who are interested in the maintenance of the commerce of this port. I need not say that the action of our institutions provides a ready solution for this difficulty. Two or three weeks must bring to the notice of every one the frivolity of the pretence of the Executive, that there was a threat of armed attack by a foreign nation. But if two or three weeks should bring the evidence that this was not an idle fear, and that, by information conveyed to the Government, this threat was substantial, and was followed by its attempted execution,—why, then, how absurd the proposition that, under the opinion of the State of New York, that this was but an idle pretext, for purposes of oppression, the State should fly into arms against the power exercised to protect the city from foreign attack! The working of our affairs, which brings around the session of Congress at a time fixed by law—not at all determinable by the will of the President—exposes him to the grand inquest of the people, which sits upon his crime, and, by his presentation and trial before the great Court of Impeachment, in the course of one week—nay, in scarcely more than one day after its coming into session—both stamps this act as an usurpation, and dispossesses the magistrate who has violated the Constitution. And yet, rather than wait for this assertion of the power of the Constitution peacefully to depose the usurping magistrate, my friend must resort to this violent intervention of armed collision, that would keep us—in theory, at least—constantly maintaining our rights by the mere method of force, and would make of this Government—at the same time that they eulogize the founders of it, as the best and wisest of men—but an organization of armed hostilities, and its framers only the architects of an ever-impending ruin!

My learned friend, Mr. Brady, has asked my attention to the solution of a case wherein he thinks the State Government might be called upon to protect the rights of its citizens against the operation of an Act of Congress, by proposing this question: Suppose Congress should require that all the expenses of this great war, as we call it, should be paid by the State of New York,—what should we do in that case? Nothing but hostilities are a solution for that case, it is suggested. Now, I would freely say to my learned friend, Mr. Brady, that if the General Government, by its law, should impose the whole taxation of the war upon the State of New York, I should advise the State of New York, or any citizen in it, not to pay the taxes. That is the end of the matter. And I would like to know if there is any warlike process by which the General Government of the United States exacts its tribute of taxation, that could impose the whole amount on New York? As the process of taxation goes on, it is distributed through different channels, and presents itself as an actual and effective process, from the tax-gatherer to the tax-payer: "Give me so many dollars." And the tax-payer says: "There is no law for it, and I will not do it." Then the process of collection raises for consideration this inquiry—whether the tax is according to law, and according to the constitutional law of the United States of America. And this tribunal, formed to decide such questions—formed to settle principles in single cases, that shall protect against hostilities these great communities—disposes of the question. If the law is constitutional, then the tax is to be paid—if unconstitutional, then the tax is not collectable; and the question is settled. But my learned friends, in their suggestions of what is a possible state of law that may arise in this country, forget the great distinction between our situation under the Federal Government and our situation as Colonies under the authority of the King and Parliament of England. It is the distinction between not being represented and being represented.

Why, my learned friends, in order to get the basis of a possible suggestion of contrariety of duty and of interest between the Government of the United States and the people in these States, must overlook, and do overlook the fact that there is not a functionary in the Federal Government, from the President down to the Houses of Congress, that does not derive his authority from the people, not of one State, not of any number of States, but of all the States. And thus standing, they are guardians and custodians, in their own interests—in their own knowledge of the interests of their own people—in their own knowledge that their place in the protection, power, and authority of the Government of the United States, proceeds by the favor and the approval of the local community in which they reside. So far, therefore, from anything in the arrangement or the working of these political systems being such as to make the Representatives or Senators that compose Congress the masters or the enemies of the local population of the States from which they respectively come, they come there under the authority of the local population which they represent, dependent upon it for their place and continuance, and not on the Federal Government.

Away, then, with the notion, so foreign to our actual, constituted Government, that this Government of the United States of America is a Government that is extended over these States, with an origin, a power, a support independent of them, and that it contains in itself an arrangement, a principle, a composition that can by possibility excite or sustain these hostilities! Why, every act of Congress must govern the whole Union. Every tax must, to be constitutional, be extended over the whole Union, and according to a fixed ratio of distribution between the States, established by the Constitution itself. Now, therefore, when any particular interest, any particular occasion, any supposed necessity, any political motive, suggests a departure, on the part of the General Government, from a necessary adherence to this principle of the Constitution, you will perceive that not only are the Representatives and Senators who come from the State against which this exercise of power is attempted, interested to oppose, in their places in Congress, the violation of the Constitution, but the Representatives and the Senators from every other State, in support of the rights of the local communities in which they reside, have the same interest and the same duty, and may be practically relied upon to exercise the same right, and authority, and opposition, in protection of their communities, against an application of the same principle, or an obedience to the same usurpation, on subsequent occasions, in reference to other questions that may arise. Therefore, my learned friends, when they are talking to you, theoretically or practically, about the opposition that may arise between co-ordinate and independent sovereignties, and would make the glorious Constitution of this Federal Government an instance of misshapen, and disjointed, and impractical inconsistencies, forget that the great basis of both of them rests in the people, and in the same people—equally interested, equally powerful, to restrain and to continue the movements of each, within the separate, constitutional rights of each. Now, unquestionably, in vast communities, with great interests, diverse and various, opinions may vary, and honest sentiments may produce the enactment of laws of Congress, which equally honest sentiments, on the part of local communities, expressed through the action of State legislation, may regard as inconsistent with the Government and the Constitution of the United States, and with the rights of the States. But, for these purposes, for these occasions, an ample and complete theoretical and practical protection of the rights of all is found, in this absolute identity of the interests of the people and of their authority in both the form and the structure of their complex Government, and in the means provided by the Constitution itself for testing every question that touches the right, the interest, the liberty, the property, the freedom of any citizen, in all and any of these communities, before the Supreme Court of the United States. Let us not be drawn into any of these shadowy propositions, that the whole people may be oppressed, and not a single individual in it be deprived of any personal right. Whenever the liberty of the citizen is abridged in respect to any personal right, the counsel concede that the Courts are open to him; and that is the theory, the wisdom, and the practical success of the American Constitution.

Now, gentlemen of the Jury, but one word more on this speculative right of secession. It is founded, if at all, upon the theory, that the States, having been, anterior to the formation of the Constitution, independent sovereignties, are, themselves, the creators, and that the Constitution is the creature proceeding from their power. I have said all I have to say about either the fact, or the result of the fact, if it be one, of the existence of these antecedent, complete national sovereignties on the part of any of the original States. But, will my learned friends tell me how this theory of theirs, in respect to the original thirteen States, has any application to the States, now quite outnumbering the original thirteen, which have, since the Constitution was formed, entered into the Government of this our territory, this our people? Out of thirty-four States, eleven have derived their existence, their permission to exist, their territory, their power to make a Constitution, from the General Government itself, out of whose territory—either acquired originally by the wealth or conquest of the Federal Government, or derived directly or indirectly through the cession or partition or separation of the original Colonies—they have sprung into existence. Of these eleven allied and confederate States, but four came from the stock of the original thirteen, and seven derived their whole power and authority from the permission of the Constitution of the United States, and have sprung into existence, with the breath of their lives breathed into them through the Federal Government. When the State of Louisiana talks of its right to secede by reason of its sovereignty, by reason of its being one of the creators of the Federal Government, and of the Federal Constitution—one of the actors in the principles of the American Revolution, and in the conquest of our liberties from the English power—we may well lift our hands in surprise at the arrogance of such a suggestion. Why, what was Louisiana, in all her territory, at the time of the great transaction of the Federal Revolution, and for a long time afterwards, but a province of Spain, first, and afterwards of France? How did her territory—the land upon which her population and her property rest—come to be a part of our territory, and to give support to a State government, and to State interests? Why, by its acquisition, under the wise policy of Mr. Jefferson, early in this century, upon the opportunity offered, by the necessity or policy of the Emperor Napoleon, for its purchase, by money, as you would buy a ship, or a strip of land to build a fort on. Coming thus to the United States, by its purchase, how did Louisiana come to be set apart, carved out of the immense territory comprehended under the name of Louisiana, but by lines of division and concession of power, proceeding from the Government of the United States? And why did we purchase it? We purchased it preliminarily, not so much to seize the opportunity for excluding from a foothold on this Continent a great foreign Power, which, although its territory here was waste and uninhabited, had the legal right to fill it, and might, in the course of time, fill it, with a population hostile in interests to our own,—not so much for this remote contingency, as to meet the actual and pressing necessity, on the part of the population that was beginning to fill up the left or eastern bank of the Mississippi, from its source to near its mouth, that they should have the mouth of the Mississippi also within their territory, governed by the same laws and under the same Government. And now, forsooth, the money and the policy of the United States having acquired this territory, and conceded the political rights contained in the Constitution of Louisiana, we are to justify the secession of the territory of Louisiana, carrying the mouth of the Mississippi with her, on the theory that she was one of the original sovereignties, and one of the creators of the Constitution of the United States! Well, gentlemen, how are our learned friends to escape from this dilemma? Are they to say that our constituted Government, complex, composed of State and of Federal power, has two sets of State and Federal relations within it, to wit, that which existed between the General Government and the thirteen sovereign, original States, and that which exists between the Federal Government and the other twenty-one States of the Union? Is it to follow, from this severance, that these original Colonies, declaring their independence—South Carolina, North Carolina, Virginia and Georgia—are to draw back to themselves the portions of their original territory that have since, under the authority of the Constitution, been formed into separate communities? Our Constitution was made by and between the States, and the people of the States—not for themselves alone—not limited to existing territory, and arranged State and Provincial Governments—but made as a Government, and made with principles in respect to Government that should admit of its extension by purchase, by conquest, by all the means that could bring accretion to a people in territory and in strength, and that should be, in its principles, a form of Government applicable to and sufficient for the old and the new States, and the old and the new population. I need but refer to the later instances, where, by purchase, we acquired Florida, also one of the seceded States, and where, by our armies, we gained the western coast of the Pacific. Are these the relations into which the power, and blood, and treasure of this Government bring it, in respect to the new communities and new States which, under its protection, and from its conceded power, have derived their very existence? Why, gentlemen, our Government is said, by those who complain of it, or who expose what they regard as its difficulties, to have one element of weakness in it, to wit, the possibility of discord between the State and the Federal authorities. But, if you adopt the principle, that there is one set of rules, one set of rights, between the Federal Government and the original States that formed the Union, and another set of rules between the Federal Government and the new States, I would like to know what becomes of the provision of the Constitution, that the new States may be admitted on the same footing with the old? What becomes of the harmony and accord among the local Governments of this great nation, which we call State Governments, if there be this superiority, in every political sense, on the part of the old States, and this absolute inferiority and subjection on the part of the new?

And now, gentlemen, having done with this doctrine of secession, as utterly inconsistent with the theory of our Government, and utterly unimportant, as a practical right, for any supposable or even imaginable case that may be suggested, I come to consider the question of the right of revolution. I have shown to you upon what principles, and upon what substantial question, between being subjects as slaves, or being participants in the British Government, our Colonies attempted and achieved their independence. As I have said to you, a very brief experience showed that they needed, to meet the exigencies of their situation, the establishment of a Government that should be in accordance with the wishes and spirit of the people, in regard of freedom, and yet should be of such strength, and such unity, as would admit of prosperity being enjoyed under it, and of its name and power being established among the nations of the earth. Now, without going into the theories of Government, and of the rights of the people, and of the rights of the rulers, to any great extent, we all know that there has been every variety of experiment tried, in the course of human affairs, between the great extreme alluded to by my learned friend (Mr. Brady) of the slavery of Egyptians to their king—the extreme instance of an entire population scarcely lifted above the brutes in their absolute subjection to the tyranny of a ruler, so that the life, and the soul, and the sweat, and the blood of a whole generation of men are consumed in the task of building a mausoleum as the grave of a king—and the later efforts of our race, culminating in the happy success of our own form of Government, to establish, on foundations where liberty and law find equal support, the principle of Government, that Government is by, and for, and from all the people—that the rulers, instead of being their masters and their owners, are their agents and their servants—and that the greatest good of the greatest number is the plain, practical and equal rule which, by gift from our Creator, we enjoy.

Now this, you will observe, is a question which readily receives our acceptance. But the great problem in reference to the freedom of a people, in the establishment of their Government, presents itself in this wise: The people, in order to maintain their freedom, must be masters of their Government, so that the Government may not be too strong, in its arrangement of power, to overmaster the people; but yet, the Government must be strong enough to maintain and protect the independence of the nation against the aggressions, the usurpations, and the oppressions of foreign nations. Here you have a difficulty raised at once. You expose either the freedom of the nation, by making the Government too strong for the preservation of individual independence, or you expose its existence, by making it too weak to maintain itself against the passions, interests and power of neighboring nations. If you have a large nation—counting its population by many millions, and the circumference of its territory by thousands of miles—how can you arrange the strength of Government, so that it shall not, in the interests of human passions, grow too strong for the liberties of the people? And if, abandoning in despair that effort and that hope, you circumscribe the limits of your territory, and reduce your population within a narrow range, how can you have a Government and a nation strong enough to maintain itself in the contests of the great family of nations, impelled and urged by interests and passions?

Here is the first peril, which has never been successfully met and disposed of in any of the forms of Government that have been known in the history of mankind, until, at least, our solution of it was attempted, and unless it has succeeded and can maintain itself. But, again, this business of self-government by a people has but one practical and sensible spirit and object. The object of free Government is, that the people, as individuals, may, with security, pursue their own happiness. We do not tolerate the theory that all the people constituting the nation are absorbed into the national growth and life. The reason why we want a free Government is, that we may be happy under it, and pursue our own activities according to our nature and our faculties. But, you will see, at once, that it is of the essence of being able to pursue our own interests under the Government under which we live, that we can do so according to our own notions of what they are, or the notions of those who are intelligently informed of, participate in, and sympathize with, those interests. Therefore, it seems necessary that all of the every-day rights of property, of social arrangements, of marriage, of contracts—everything that makes up the life of a social community—shall be under the control, not of a remote or distant authority, but of one that is limited to, and derives its ideas and principles from, a local community.

Now, how can this be in a large nation—in a nation of thirty millions, distributed over a zone of the earth? How are we to get along in New York, and how are others to get along in South Carolina, and others in New England, in the every-day arrangements that proceed from Government, and affect the prosperity, the freedom, the independence, the satisfaction of the community with the condition in which it lives? How can we get along, if all these minute and every-day arrangements are to proceed from a Government which has to deal with the diverse opinions, the diverse sentiments, the diverse interests, of so extensive a nation? But if, fleeing from this peril, you say that you may reduce your nation, you fall into another difficulty. The advanced civilization of the present day requires, for our commercial activity, for our enjoyment of the comforts and luxuries of life, that the whole globe shall be ransacked, and that the power of the nation which we recognize as our superior shall be able to protect our citizens in their enterprises, in their activities, in their objects, all over the world. How can a little nation, made up of Massachusetts, or made up of South Carolina, have a flag and a power which can protect its commerce in the East Indies and in the Southern Ocean? Again—we find that nations, unless they are separated by wide barriers, necessarily, in the course of human affairs, come into collision; and, as I have shown to you, the only arbitrament for their settlement is war. But war is a scourge—an unmitigated scourge—so long as it lasts, and in itself considered. But for objects which make it meritorious and useful, it is a scourge never to be tolerated. It puts in abeyance all individual rights, interests, and schemes, until the great controversy is settled.

If, then, we are a small nation, surrounded on all sides by other nations, with no natural barriers, with competing interests, with occasions of strife and collision on all sides, how can we escape war, as a necessary result of that miserable situation? But war strengthens the power of Government, weakens the power of the individual, and establishes maxims and creates forces, that go to increase the weight and the power of Government, and to weaken the rights of the people. Then, we see that, to escape war, we must either establish a great nation, which occupies an extent of territory, and has a fund of power sufficient to protect itself against border strifes, and against the ambition, the envy, the hatred of neighbors; or else one which, being small, is exposed to war from abroad to subjugate it, or to the greater peril to its own liberties, of war made by its own Government, thus establishing principles and introducing interests which are inconsistent with liberty.

I have thus ventured, gentlemen, to lay before you some of these general principles, because, in the course of the arguments of my learned friends, as well as in many of the discussions before the public mind, it seems to be considered that the ties, the affections and the interests, which oblige us to the maintenance of this Government of ours, find their support and proper strength and nourishment only in the sentiments of patriotism and duty, because it happens to be our own Government; and that, when the considerations of force or of feeling which bring a people to submit to a surrender of their Government, or to a successful conquest of a part of their territory, or to a wresting of a part of their people from the control of the Government, shall be brought to bear upon us, we shall be, in our loss and our surrender, only suffering what other nations have been called upon to lose and to surrender, and that it will be but a change in the actual condition of the country and its territory. But you will perceive that, by the superior fortune which attended our introduction into the family of nations, and by the great wisdom, forecast, and courage of our ancestors, we avoided, at the outset, all the difficulties between a large territory and a numerous population on the one hand, and a small territory and a reduced population on the other hand, and all those opposing dangers of the Government being either too weak to protect the nation, or too strong, and thus oppressive of the people, by a distribution of powers and authorities, novel in the affairs of men, dependent on experiment, and to receive its final fate as the result of that experiment. We went on this view—that these feeble Colonies had not, each in itself, the life and strength of a nation; and, yet, these feeble Colonies, and their poor and sparse population, were nourished on a love of liberty and self-government. These sentiments had carried them through a successful war against one of the great powers of the earth. They were not to surrender that for which they had been fighting to any scheme, to any theory of a great, consolidated nation, the Government of which should subdue the people and re-introduce the old fashion in human affairs—that the people were made for the rulers, and not the rulers by and for the people. They undertook to meet, they did meet, this difficult dilemma in the constitution of Government, by separating the great fund of power, and reposing it in two distinct organizations. They reserved to the local communities the control of their domestic affairs, and attributed the maintenance and preservation of them to the State governments. They undertook to collect and deposit, under the form of a written Constitution, with the general Government, all those larger and common interests which enter into the conception and practical establishment of a distinct nation among the nations of the earth, and determined that they would have a central power which should be adequate, by drawing its resources from the patriotism, from the duty, from the wealth, from the numbers, of a great nation, to represent them in peace and in war,—a nation that could protect the interests, encourage the activities, and maintain the development of its people, in spite of the opposing interests or the envious or hostile attacks of any nation. They determined that this great Government, thus furnished with this range of authority and this extent of power, should not have anything to do with the every-day institutions, operations and social arrangements of the community into which the vast population and territory of the nation were distributed. They determined that the people of Massachusetts, the people of New York, and the people of South Carolina, each of them, should have their own laws about agriculture, about internal trade, about marriage, about apprenticeship, about slavery, about religion, about schools, about all the every-day pulsations of individual life and happiness, controlled by communities that moved with the same pulsations, obeyed the same instincts, and were animated by the same purposes. And, as this latter class of authority contains in itself the principal means of oppression by a Government, and is the principal point where oppression is to be feared by a people, they had thus robbed the new system of all the dangers which attend the too extensive powers of a Government. They divided the fund of power, to prevent a great concentration and a great consolidation of the army of magistrates and officers of the law and of the Government which would have been combined by a united and consolidated authority, having jurisdiction of all the purposes of Government, of all the interests of citizens, and of the entire population and entire territory in these respects. They thus made a Government, complex in its arrangements, which met those opposing difficulties, inherent in human affairs, that make the distinction between free Governments and oppressive Governments. They preserved the people in their enjoyment and control of all the local matters entering into their every-day life, and yet gave them an establishment, springing from the same interests and controlled by the same people, which has sustained and protected us in our relations to the family of nations on the high seas and in the remote corners of the world.

Now, this is the scheme, and this is the purpose, with which this Government was formed; and you will observe that there is contained in it this separation, and this distribution. And our learned friends, who have argued before you respecting this theory, and this arrangement and practice of the power of a Government, as inconsistent with the interests and the freedom of the people, have substantially said to you that it was a whimsical contrivance, that it was an impossible arrangement of inconsistent principles, and that we must go back to a simple Government composed of one of the States, or of a similar arrangement of territory and people, which would make each of us a weak and contemptible power in the family of nations—or we must go back to the old consolidation of power, such as is represented by the frame of France or England in its Government, or, more distinctly, more absolutely, and more likely to be the case, for so vast a territory and so extensive a population as ours, to the simple notion of Russian Autocracy.

That, then, being the object, and that the character, of our institutions, and this right of secession not being provided for, or imagined, or tolerated in the scheme, let us look at the right of revolution, as justifying an attempt to overthrow the Government; and let us look at the occasions of revolution, which are pretended here, as giving a support, before the world, in the forum of conscience, and in the judgment of mankind, for the exercise of that right.

And first, let me ask you whether, in all the citations from the great men of the Revolution, and in the later stages of our history, any opinion has been cited which has condemned this scheme, as unsuitable and insufficient for the freedom and happiness of the people, if it can be successful? I think not. The whole history of the country is full of records of the approval, of the support, of the admiration, of the reverent language which our people at large, and the great leaders of public opinion—the great statesmen of the country—have spoken of this system of Government. Let me ask your attention to but two encomiums upon it, as represented by that central idea of a great nation, and yet a divided and local administration of popular interests—to wit, one in the first stage of its adoption, before its ratification by the people was complete; and the other, a speech made at the very eve of, if not in the very smoke of, this hostile dissolution of it.

Mr. Pinckney, of South Carolina, who had been one of the delegates from that State in the National Convention, and had co-operated with the Northern statesmen, and with the great men of Virginia, in forming the Government as it was, in urging on the Convention of South Carolina the adoption of the Constitution, and its ratification, said:

"To the Union we will look up as the temple of our freedom,—a temple founded in the affections and supported by the virtue of the people. Here we will pour out our gratitude to the Author of all good, for suffering us to participate in the rights of a people who govern themselves. Is there, at this moment, a nation on the earth which enjoys this right, where the true principles of representation are understood and practised, and where all authority flows from, and returns at stated periods to, the people? I answer, there is not. Can a Government be said to be free where those do not exist? It cannot. On what depends the enjoyment of those rare, inestimable rights? On the firmness and on the power of the Union to protect and defend them."

Had we anything from that great patriot and statesman of this right of secession, or independence of a State, as an important or a useful element in securing these rare, these unheard of, these inestimable privileges of Government, which the Author of all good had suffered the people of South Carolina to participate in? No—they depended "on the firmness and on the power of the Union to protect and defend them." Mr. Pinckney goes on to say:

"To the philosophic mind, how new and awful an instance do the United States at present exhibit to the people of the world! They exhibit, sir, the first instance of a people who, being thus dissatisfied with their Government, unattacked by a foreign force and undisturbed by domestic uneasiness, coolly and deliberately resort to the virtue and good sense of the country for a correction of their public errors."

That is, for the abandonment of the weakness and the danger of the imperfect Confederation, and the adoption of the constitutional and formal establishment of Federal power. Mr. Pinckney goes on to say:

"It must be obvious that, without a superintending Government, it is impossible the liberties of this country can long be secure. Single and unconnected, how weak and contemptible are the largest of our States! how unable to protect themselves from external or domestic insult! how incompetent, to national purposes, would even the present Union be! how liable to intestine war and confusion! how little able to secure the blessings of peace! Let us, therefore, be careful in strengthening the Union. Let us remember we are bounded by vigilant and attentive neighbors"—(and now Europe is within ten days, and they are near neighbors)—"who view with a jealous eye our rights to empire."

Pursuing my design of limiting my citations of the opinions of public men to those who have received honor from, and conferred honor on, that portion of our country and those of our countrymen now engaged in this strife with the General Government, let me ask your attention to a speech delivered by Mr. Stephens, now the Vice-President of the so-called Confederate States, on the very eve of, and protesting against, this effort to dissolve the Union. I read from page 220 and subsequent pages of the documents that have been the subject of reference heretofore:

"The first question that presents itself"—(says Mr. Stephens to the assembled Legislature of Georgia, of which he was not a member, but which, as an eminent and leading public man, he had been invited to address)—"is, shall the people of the South secede from the Union in consequence of the election of Mr. Lincoln to the Presidency of the United States? My countrymen, I tell you frankly, candidly, and earnestly, that I do not think that they ought. In my judgment, the election of no man, constitutionally elected to that high office, is sufficient cause for any State to separate from the Union. It ought to stand by and aid still in maintaining the Constitution of the country. To make a point of resistance to the Government—to withdraw from it because a man has been constitutionally elected—puts us in the wrong. We are pledged to maintain the Constitution. Many of us have sworn to support it.

"But it is said Mr. Lincoln's policy and principles are against the Constitution, and that if he carries them out it will be destructive of our rights. Let us not anticipate a threatened evil. If he violates the Constitution, then will come our time to act. Do not let us break it because, forsooth, he may. If he does, that is the time for us to strike. * * * My countrymen, I am not of those who believe this Union has been a curse up to this time. True men—men of integrity—entertain different views from me on this subject. I do not question their right to do so; I would not impugn their motives in so doing. Nor will I undertake to say that this Government of our fathers is perfect. There is nothing perfect in this world, of a human origin. Nothing connected with human nature, from man himself to any of his works. You may select the wisest and best men for your Judges, and yet how many defects are there in the administration of justice? You may select the wisest and best men for your legislators, and yet how many defects are apparent in your laws? And it is so in our Government.

"But that this Government of our fathers, with all its defects, comes nearer the objects of all good Governments than any on the face of the earth, is my settled conviction. Contrast it now with any on the face of the earth." ["England," said Mr. Toombs.] "England, my friend says. Well, that is the next best, I grant; but I think we have improved upon England. Statesmen tried their apprentice hand on the Government of England, and then ours was made. Ours sprung from that, avoiding many of its defects, taking most of the good and leaving out many of its errors, and, from the whole, constructing and building up this model Republic—the best which the history of the world gives any account of.

"Compare, my friends, this Government with that of Spain, Mexico, the South American Republics, Germany, Ireland—are there any sons of that down-trodden nation here to-night?—Prussia, or, if you travel further east, to Turkey or China. Where will you go, following the sun in his circuit round our globe, to find a Government that better protects the liberties of its people, and secures to them the blessings we enjoy? I think that one of the evils that beset us is a surfeit of liberty, an exuberance of the priceless blessings for which we are ungrateful. * * * * *

"When I look around and see our prosperity in every thing—agriculture, commerce, art, science, and every department of education, physical and mental, as well as moral advancement, and our colleges—I think, in the face of such an exhibition, if we can, without the loss of power, or any essential right or interest, remain in the Union, it is our duty to ourselves and to posterity to—let us not too readily yield to this temptation—do so. Our first parents, the great progenitors of the human race, were not without a like temptation when in the garden of Eden. They were led to believe that their condition would be bettered—that their eyes would be opened—and that they would become as gods. They in an evil hour yielded. Instead of becoming gods, they only saw their own nakedness.

"I look upon this country, with our institutions, as the Eden of the world, the paradise of the Universe. It may be that out of it we may become greater and more prosperous, but I am candid and sincere in telling you that I fear if we rashly evince passion, and, without sufficient cause, shall take that step, that instead of becoming greater or more peaceful, prosperous and happy—instead of becoming gods—we will become demons, and, at no distant day, commence cutting one another's throats."

Still speaking of our Government, he says:

"Thus far, it is a noble example, worthy of imitation. The gentleman (Mr. Cobb) the other night said it had proven a failure. A failure in what? In growth? Look at our expanse in national power. Look at our population and increase in all that makes a people great. A failure? Why, we are the admiration of the civilized world, and present the brightest hopes of mankind.

"Some of our public men have failed in their aspirations; that is true, and from that comes a great part of our troubles.

"No, there is no failure of this Government yet. We have made great advancement under the Constitution, and I cannot but hope that we shall advance higher still. Let us be true to our cause."

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 masses 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 principal sources to which the gratitude 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 brass and a tinkling cymbal; and the glory of our ancestors, Washington, 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—passes 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 assert 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 passed away since the adoption of its Constitution, 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 gratitude, 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 space 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.