Part 46

Do I mention this in complaint? Not in the least. I only mention it to show you that the vote and the voice of this interest has not been defrauded in the artificial distribution of Federal power. And, if I may be allowed to refer to the other august department of our Federal Government, the Supreme Court of the United States, in which the Presiding Justice has his seat as one of the members of that Court, you will see how the vast population, the vast interests of business, commerce, and what not, that reside in the Free States, as compared with the lesser population, the lesser business, and the lesser demand for the authority or intervention of the judiciary in the Slave States, have been represented for years, by the distribution of the nine Judges of that Court, so that the eighteen millions of white people who compose the population of the Free States have been represented (not in any political sense) by four of these Justices; and the rest of the country, the fifteen Slave States, with their population of six or eight millions, have been represented by five. Now, of this I do not complain. It is law--it is government; and no injustice has been done to the Constitution, nor has it been violated in this arrangement. But, has there been any fraud upon the interest of slavery, in the favor the Federal Government has shown in the marking out of the Judicial Districts, and in the apportionment of the Judges to the different regions of the country, and to the population of those regions? If you look at it as regards the business in the different Circuits, the learned Justice who now presides here, and who holds his place for the Second Circuit, including our State, disposes annually, here and in the other Courts, of more business than, I may perhaps say, all the Circuits that are made up from the Slave States. And, if you look at it as regards the population, there was one Circuit--that which was represented by the learned Mr. Justice McLean, lately deceased--which contained within itself five millions of white, free population; while one other Circuit, represented by another learned Justice, lately deceased--a Circuit composed of Mississippi and Arkansas--contained only 450,000, at the time of the completion of the census of 1850. Who complains of this? Do we? Never. But, when it is said to you that there is a parallelism between the right of revolt, because of lack of representation, in the case of our people and the Parliament of England, and the case of these people and the United States, or any of the forms of its administration of power, remember these things. I produce this in the simple duty of forensic reply to the causes put forward as a justification of this revolt--that is to say that, the Government oppressing them, or the Government closed against them, and they excluded from it, they had a right to resort to the revolution of force.

You, therefore, must adopt the proposition of South Carolina, that, when any interest ceases to be the majority in a Government, it has a right to secede. How long would such a Government last? Why, there never was any interest in this country which imagined that it had a majority. Did the tariff interest have a majority? Did the grain interest have a majority? Did the commercial interest have a majority? Did the States of the West have a majority? Does California gold represent itself by a majority? Why, the very safety of such a Government as this is, that no interest shall or can be a majority; but that the concurring, consenting wisdom drawn out of these conflicting interests shall work out a system of law which will conduce to the general interest.

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

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

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

"No more slavery in the Territories." Where is the Act of Congress, where is the movement of the Federal Government, where the decision of the Supreme Court, that holds that slavery cannot go into a territory? Why, so far as acts go, everything has gone in the way of recognizing the confirmation of the right--the repeal of the Missouri Compromise by Congress, and the decision of the Federal Court, if it go to that extent, as is claimed, in the case of Dred Scott.

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

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

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

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

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

Now, my learned friends, pressed by this difficulty as to the sufficiency of the causes, are driven finally to this--that there is a right of revolution when anybody thinks there is a right of revolution, and that that is the doctrine upon which our Government rests, and upon which the grave, serious action of our forefathers proceeded. And it comes down to the proposition of my learned friend, Mr. Brady, that it all comes to the same thing, the _power_ and the _right_. All the argument, most unquestionably, comes to that. But do morals, does reason, does common sense recognize that, because power and right may result in the same consequences, therefore there is no difference in their quality, or in their support, or in their theory? If I am slain by the sword of justice for my crime, or by the dagger of an assassin for my virtue, I am dead, under the stroke of either. But is one as right as the other? An oppressive Government may be overthrown by the uprising of the oppressed, and Lord Camden's maxim may be adhered to, that "when oppression begins, resistance becomes a right;" but a Government, beneficent and free, may be attacked, may be overthrown by tyranny, by enemies, by mere power. The Colonies may be severed from Great Britain, on the principle of the right of the people asserting itself against the tyranny of the parent Government; and Poland may be dismembered by the interested tyranny of Russia and Austria; and each is a revolution and destruction of the Government, and its displacement by another--a dismemberment of the community, and the establishment of a new one under another Government. But, do my learned friends say that they equally come to the test of power as establishing the right? Will my learned friend plant himself, in justification of this dismemberment of a great, free, and prosperous people, upon the example of the dismemberment of Poland, by the introduction of such influences within, and by the co-operation of such influences without, as secured that result? Certainly not. And yet, if he puts it upon the right and the power, as coming to the same thing, it certainly cannot make any difference whether the power proceeds from within or from without. There is no such right. Both the public action of communities and the private action of individuals must be tried, if there is any trial, any scrutiny, any judgment, any determination, upon some principles that are deeper than the question of counting bayonets. When we are referred to the ease of Victor Emannuel overthrowing the throne of the King of Naples, and thus securing the unity of the Italian people under a benign Government, are we to be told that the same principle and the same proposition would have secured acceptance before the forum of civilization, and in the eye of morality, to a successful effort of the tyrant of Naples to overthrow the throne of Victor Emannuel, and include the whole of Italy under his, King Bomba's, tyranny? No one. The quality of the act, the reason, the support, and the method of it, are traits that impress their character on those great public and national transactions as well as upon any other.

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

Now, we have heard a great deal of the assertion and of the execration of the doctrine of the "higher law," in the discussions of legislation, and in the discussions before the popular mind; but I never yet have heard good faith or sincere opinion pressed, in a Court of Justice, as a bar to the penalty which the law has soberly affixed, in the discreet and deliberate action of the Legislature. And here my learned friend furnishes me, by his reference to the grave instance of injury to the property, and the security, and the authority of the State of Virginia, which he has spoken of as "John Brown's raid," with a ready instance, in which these great principles of public justice, the authority of Government, and the sanctions of human law were met, in the circumstances of the transaction, by a complete, and thorough, and remarkable reliance, for the motive, the support, the stimulus, the solace, against all the penalties which the law had decreed for such a crime, on this interior authority of conscience, and this supremacy of personal duty, according to the convictions of him who acts. The great State of Virginia administered its justice, and it found, as its principal victim, this most remarkable man, in regard to whom it was utterly impossible to impute anything like present or future, near or remote, personal interest or object of any kind--a man in regard to whom Governor Wise, of Virginia, said, in the very presence of the transaction of his trial, that he was the bravest, the sincerest, the truthfulest man that he ever knew. And now, let us look at the question in the light in which our learned friend presents it--that John Brown, as matter of theoretical opinion of what he had a right to do, under the Constitution and laws of his country, was justified, upon the pure basis of conscientious duty to God--and let us see whether, before the tribunals of Virginia, as matter of fact, or matter of law, or right, or duty, any recognition was given to it. No. John Brown was not hung for his theoretical heresies, nor was he hung for the hallucinations of his judgment and the aberration of his wrong moral sense, if you so call it, instead of the interior light of conscience, as he regarded it. He was hung for attacking the sovereignty, the safety, the citizens, the property, and the people of Virginia. And, when my learned friend talks about this question of hanging for political, moral, or social heresy, and that you cannot thus coerce the moral power of the mind, he vainly seeks to beguile your judgment. When Ravaillac takes the life of good King Henry, of France, is it a justification that, in the interests of his faith, holy to him--of the religion he professed--he felt impelled thus to take the life of the monarch? When the assassin takes, at the door of the House of Commons, the life of the Prime Minister, Mr. Percival, because he thinks that the course of measures his administration proposes to carry out is dangerous to the country, and falls a victim to violated laws, I ask, in the name of common sense and common fairness--are these executions to be called hanging for political or religious heresies? No. And shall it ever be said that sincere convictions on these theories of secession and of revolution are entitled to more respect than sincere convictions and opinions on the subject of human rights? Shall it be said that faith in Jefferson Davis is a greater protection from the penalty of the law than faith in God was to John Brown or Francis Ravaillac?

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

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

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

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

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

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

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

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