Trial of the Officers and Crew of the Privateer Savannah, on the Charge of Piracy, in the United States Circuit Court for the Southern District of New York

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."