Benjamin Franklin Thomas.

Speeches in the second and third sessions of the Thirty-seventh Congress, and in the vacation (Volume 2) online

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land and sea, amid fire and smoke, the shrieks of the
wounded, the groans of the dying, the wail of defeat,
and the shouts of triumph, the angel-reapers are gar-
nering in fields seemingly not white for the harvest.
The flower of our youth, the beauty of our Israel, is
slain in our high places. The victories in this holy
struggle for national life and "liberty in law" are
sealed with our most precious blood. Yet in this hour
of chastened triumph, of mingled joy and sadness, that
tranquil death in a far-off" New-England home comes
very nigh to us with its solemn, I trust not unheeded
warning, " Be ye also ready."

I off"er the following resolutions: —

Resolved, That the House has heard with profound sorrow the
annouucement of the death of Hon. Goldsmith F. Bailey, a member
of this House from the Ninth Congressional District of the State of
Massachusetts.

* Samuel F. Vinton.
12



90



DEATH OF HON. GOLDSMITH F. BAILEY.



Resolved, That this House tenders to the widow and relatives of
the deceased the expression of its deep sympathy in this afflicting
bereavement.

Resolved., That the Clerk of this Honse communicate to the widow
of the deceased a copy of these resolutions.

Resolved (as a further mark of respect), That a copy of these
resolutions be communicated to the Senate, and that the House do
now adjourn.



91



CASE OF THE "TEENT.'



HOUSE OF REPRESENTATIVES, JAN. 7, 1862.

I DESIRE to say a word upon the subject to which
the motion* refers.

Mr. Speaker, the surrender is made, the thing done.
In the presence of great duties, we have no time for
the hixury of grief. Complaint of the Government
would be useless, if not groundless. It was too much
to ask of it to take another war on its hands. Pos-
sibly the elaborate and ingenious argument of the
Secretary might have been spared. The matter was
in a nutshell; the answer, in a word: "Take them.
There are duties lying nearer to us. We can wait."

But we are not called upon, Mr. Speaker, to say
that the demand of England was manly or just. It was
unmanly and unjust. It was a demand, which, in view
of her history, of the rights she had always claimed
and used as a belligerent power, of the principles which
her greatest of jurists, Lord Stowell, had embedded
in the law of nations, England was fairly estopped
to make. But I rely on no estoppel: I pause not to
inquire as to the consistency of England, or how far
she is influenced by the consideration that she is now a

* The motion to refer the message of the President, transnaitting the correspondence
on this case, to the Committee on Foreign Affairs.



92 CASE OF THE TRENT.

neutral power, and we are in a struggle for national
life ; or to express surprise that her belligerent doc-
trines, so suddenly become obsolete, have been swept
as cobwebs from her path. This is a question of legal
right; and, as such, I will look it in the face. We
may feel compelled to make concessions : we will ask
none. The claim of England is that the " Trent " was
pursuing a lawful and innocent voyage, and that the
taking from her of Messrs. Mason and Slidell was an
affront to the British flag and a violation of interna-
tional law.

The legal questions involved are simple, and may
be briefly and plainly stated.

Had we the right of visitation and search? There
is no controversy on this point. Nothing is better
settled in the law of nations than the right of a belli-
gerent to visit and search the vessel of a neutral for
contraband of war, or to ascertain if she is employed
in the transportation of military persons or despatches
of the enemy. Was the " Trent " so employed ? How is
that question to be settled 1 The obious answer is by
the existing law of nations. The question is, not what
rule oicght now to be adopted, but what is the existing
rule 1 New rules are guides for future action, not
tests of the past. The common law of nations, like
that of England and of this country, is, to a large extent,
a law of precedents. These precedents are, however,
of weight and authority for the ^n*«cy}j?es involved in
their determination, and not merely in cases where all
the facts are identical. The whole body of the common
law is the result of this distinction. It could not



CASE OF THE TRENT. 93

otherwise be a science or intelligent rule of action.
The province of courts, of jurists, and of statesmen, is
to apply settled principles to new combinations of facts.
From the mass of authorities let us extract the prin-
ci^jles applicable to the case.

1. The fair result of the authorities, and especially
of the English authorities, is that the carrying of the
despatches of a belligerent is a violation of neutrality,
the penalty of which is not only the seizure of the de-
spatches, but the seizure and confiscation of the vehicle
which carries them, if the carriage be with the know-
ledge or complicity of the owner or master.

2. The rule includes the official despatches of the
enemy, whether relating to civil or military affairs.

3. The form in which the despatches are borne is
immaterial. They may be oral as well as written, em-
bodied as well as upon parchment. The mischief is the
same. The reason of the rule covers the substance,
which is the thing sent.

4. If the neutral is serving the belligerent, doing his
work, the fact that the despatches, living or written,
were taken at a neutral port, and that, at the time of
the seizure, the vessel was going from one neutral port
to another, is material only upon the question of the for-
feiture of the vessel, and as tending to show that the
despatches were taken without the privity of master
or owner. The result to be eifected — the aid to the
one belligerent, and the injury to the other — is the
same. The sanction of the exception would be the
constant evasion, the practical suspension, of the rule
itself



94 CASE OF THE TRENT.

The substance of the whole matter is this : By carry-
ing the despatches of the enemy, in whatever form
embodied, the greatest possible service may be done
to one belligerent, and the greatest possible injury to
another.

If, then, the "Trent" had been brought in for adju-
dication, and had been condemned, England could not
have said, that, as matter of law, the condemnation was
wrong. She might and would have said, that, as mat-
ter of courtesy, our officers should have foreborne the
exercise of their extreme right, and have suffered the
vessel, the other passengers and cargo, to proceed on
the voyage.

We might well have said, that, from the beginning, it
had been the policy of this Government to enlarge and
strengthen the rights of neutrals ; to free neutral com-
merce from every unnecessary restraint ; that especially
had this been the case with respect to the treating of
persons as within the rule of contraband of war. We
might have shown with what anxiety we had sought to
limit the rule on this point " to soldiers in the actual ser-
vice of the enemy ; " that in our treaties with France, in
our treaties with Mexico and the South- American States,
we had inserted this important exception to, and limita-
tion of, the rule of international law ; in all cases, how-
ever, providing that the limitation should not extend to
those nations with which we had no such treaty; of which
England was one. We might have well said, that the
propriety of this limitation is every day becoming more
apparent ; that the introduction of steam into naviga-
tion had brought nations into closer proximity, and into



CASE OF THE TRENT. 95

more frequent and regular intercourse ; that the wants
of modern commerce and modern culture had made
mail-routes as necessary on the sea as on the land ; and
that we ought to remove all obstructions from the path-
way of these messengers of civilization and of peace.
We might have said, We will gladly assent to such mo-
difications of the law of nations as shall meet and satisfy
these wants ; the modifications most clearly demanded
being, that no persons shall be deemed within the prin-
ciple of contraband of war but soldiers in service ; and
that, when hostile despatches are taken from neutral
mail-steamers, the claims of humanity and the interests
of the commercial world shall be respected, and the
vessel be permitted to proceed on its voyage without
unnecessary delay, — the legality of the seizure being
determined without the presence of the ship.

As to this case, we stand upon the existing law ; v)e
feel ourselves to he justified hy the law as written.
If you think otherwise, we will, in deference to the
excellent suggestion made by the British Government to
the Paris Congress of 1856, have " recourse to the
offices of a friendly power." We will submit the whole
matter to arbitration, and abide the result.

But it is said, Mr. Speaker, that the omission to bring
in the vessel for adjudication rendered the whole pro-
ceeding void ah initio. A word upon this point. There
is no just ground for complaint of the proceedings, so
far as they went. The complaint is, not of what was
done, but what was left undone. Two questions arise
here : First, was there a sufficient legal reason for not
bringing in the vessel ? Secondly, what, in the ab-



96 CASE OF THE TRENT.

sence of such legal reason, is the effect of the omis-
sion'?

1. Was there a sufficient reason for not bringing in
the " Trent " ?

Some things are plain. It is plain that Capt. Wilkes
understood that the " Trent " was lawful prize, and
that his course was a proceeding in the capture of
prize of war. It is plain also that he determined to
waive his right to take in the vessel as prize, and to suffer
her to proceed on her voyage. These facts are of the
highest importance. The difference between the board-
ing of a vessel by a boat's crew, and taking from her
men or goods, — the act constituting no part of a prize
proceeding, — and the release of a prize by a captor
in the exercise of his discretion, and for reasons of
necessity or of humanity, is plain and vital: neither
ingenuity nor dulness can confound them. The whole
proceedings of Capt. Wilkes were characterized by the
utmost good faith. Had he a legal excuse for not
bringing in the vessel for adjudication 'i We do not
expect from a sailor, however gallant and accomplished,
the precision of special pleading. He gives as the
first reason the want of a sufficient prize-crew, in con-
sequence of his being so reduced in officers and men.
Was that the fact ^. It will, I have no doubt, be found
to be so. We have now the statement of an officer and
a gentleman, and nothing to control it. If such was
the fact, and Capt. Wilkes acted upon it, he was justi-
fied in law for not bringing the " Trent" in. It is im-
material that motives of humanity concurred with and
fortified that conclusion. The heart responded to the



CASE OF THE TRENT. 97

head. It neither assumed its prerogative nor questioned
it. It only said, "Amen." If the legal excuse existed
and was acted upon, it was enough; and the ground
upon which the Crown advisers are reported to have
proceeded falls from under them.

2. But suppose there was error in not bringing in
the vessel : what is the result 1 It is, that the questions
at issue must be settled by the sovereigns of the parties
without the aid of a prize-court. The prize-court is
the inquest of the sovereign of the captor, and for his
protection. It settles the question of seizure, so far as
the rights of property are concerned. It does not set-
tle the question of right as between the sovereigns. In
this case, the question would have been as to the for-
feiture of the vessel : the persons or despatches would
not have been directly involved ; the judgment would
not have operated upon them. If the vessel had been
brought in and condemned by a court of admiralty, and
England had believed that the judgment of the court
was against the law of nations, she would not have
acquiesced ; she would not have been bound to ac-
quiesce. The same controversy would have opened ;
the same questions to be settled as now. — Pinhieys
Statement of the Laio in the Case of the " Betsey^''
Wheaton's Memoirs of Pinkney, p. 199.

Those questions would have been. Had we the right
of search X was it fairly exercised ? were the persons
taken within the prohibition ? and to every one of these
questions the law of nations would have answered in
the affirmative ; and, if England had consulted her
oracles, she Avould have heard the same response. It

13



98 CASE OF THE TRENT.

is not too much to say, that Lord Stowell would have
condemned the " Trent " on the double ground of carry-
ing despatches of the enemy and of resistance to
search.

Mr. Speaker, when this whole matter shall have
been calmly and thoroughly considered and weighed,
the judgment of the civilized world will be, or should be,
with us. We have the first impression, and not the
sober second thought. The question which has been
considered is, rather what the law should he made to he,
than what it is. When the matter is more carefully
weighed, it will be seen and felt that no wrong was done
to England ; that there was no wrong in the forbear-
ance to exercise an extreme right ; no insult, for none
was intended ; that our " failing," if any, " leaned to
virtue's side," was a relaxation of the iron rigor of law
from motives of humanity and Christian courtesy ; that,
on the other hand, England has done to us a great wrong
in availing herself of our moment of weakness to make
a demand, which, accompanied as it was by " the pomp
and circumstance of war," was insolent in spirit, unman-
ly and unjust. It was indeed courteous in language ;
it was the courtesy of Joab to Amasa as he smote him
in the fifth rib : " Art thou in health, my brother ? "
That message of Lord Russell to Lord Lyons which
could cross the Atlantic would not have had projectile
force enough to have passed from Dover to Calais.

Such is the penalty of weakness, even temporary
weakness.

Upon the grounds upon which this surrender has been
made, nothing is gained for the cause of neutral rights.



CASE OF THE TRENT. 99

The lesson taught us by this case is, that not only may
every mail steamer of a neutral be seized, and searched
for contraband of war or despatches of the enemy, but
that her voyage may and must be broken up, and the
vessel brought in for adjudication. Neutral commerce
may well pray relief from her friends.

But will England feel herself bound by the precedent
such as it is 1 So long as it is convenient, — not a mo-
ment longer. Her standard of right has been, is, and
will be, the maritime power and interests of England.
There is nothing in the " law of nature and of" nations
that will stand in the way of her imperious will.



100



SPEECH AT THE MASS MEETING FOR RECRUITING,
ON BOSTON COMMON.



August 27, 1862.



Mr. President and Fellow-Citizens, — If you could
analyze the feelings of a candle upon being lit up just
as the sun was going down, you would appreciate my
feelings in succeeding New England's most accomplished
orator.* But you neither expect, nor would you tolerate,
an elaborate speech. Indeed, if I consulted my own
heart, my lips would be sealed.

When the beauty of our Israel is slain on her high
places ; when the sons of our love are perishing in loath-
some dungeons ; when armed treason is battering the
gates of the capital ; when the nation itself is struggling,
gasping, for the breath of its life ; rhetoric, logic, elo-
quence even, seem mean and paltry. Nothing, indeed,
is eloquent but the roar of the cannon and the crack
of the rifle, nothing logical but the sword and the
bayonet.

The issues before the country are of life or death,
glory or shame, order or anarchy, union or chaos, a
nation or a Mexico. And, in this hour of awful peril,
there is for us but one hope, one way of salvation ; and

» Mr. Everett.



MASS MEETING FOR RECRUITING. 101

that is to subdue armed rebellion by arms, — to over-
whelm it by superior force on the field of battle.

Processions and banners, touching allusions to Bunker
Hill and Faneuil Hall, sentimental resolutions, procla-
mations beginning and ending in words, bills of confis-
cation and emancipation, after much travail utterly still
born, won't do the work. If you mean to save the coun-
try, you have got to fight for it. The negro can't do it
for you ; Providence won't do it for you, unless you put
your shoulders to the wheel. You have got to work
out your own salvation ; in this case, without " fear or
trembling."

The only alternative is to sue for peace, and submit
to dissolution ; to betray the sublime trust committed to
us by God and our fathers, and to rot into dishonored
graves at home.

If this be so, men of Boston, patriotic, self-sacri-
ficing men, capable of living and dying for your
country, what wait you for '? The path of duty lies
open before you. Interest, duty, honor, patriotism, the
sense of manhood, all point one way: that way leads
to struggle and to victory, and, through victory, to
union and peace. Controversy as to the causes of the
war is useless now. Grumbling, carping criticism of
the past is mean and disloyal now. Side-issues, parti-
san or philanthropic, are moral treason now. They
weaken and divide us in a struggle that requires all
our wisdom, all our energy, all our strength, directed
and converged to the single work and duty of subduing
the foe in arms. Not a man, not a dollar, not a thought,
can be wasted on any other issue. Now or never is the



102 MASS MEETING FOR RECRUITING.

salvation of the country possible. Hard words won't
do it ; threats and curses won't do it ; violence won't do
it. Nothing will do it but superior physical force in the
field, wielded with an energy all the more terrible be-
cause it is calm, and knows how to obey as well as to
command.

Fellow-citizens, we have cause for anxiety, — none
for despair. We have under-estimated the strength and
resources of our opponents. We have greatly under-
estimated our own strength and resources. Rebelhon
has, we may believe, made its crowning efi'ort: its
bucket has touched bottom. The water in our well is
yet deep. We can maintain a million men in the
field ; and, on the sea, five hundred ships of war. With
these, twenty millions of intelligent, united, devoted
people can vindicate the integrity of the nation, and defy
a world in arms.

If you would avoid intervention by foreign powers,
the only way is to be prepared for it. Put your million
of men into the field, and your five hundred ships upon
your seas and rivers. Bear up the old flag, resolved to
live under it, to conquer with it, or die beneath its folds.
In an hour of your weakness, other nations may inter-
vene; never, if you put forth your real strength, —
never.

Would you consent to separation, to give up this glo-
rious Union of your fathers, where will you draw the
line \ Are the Gulf States only to be severed % Your
enemy will not consent to that division. Will you give
up the Border States % The Border States will not go.
Let me say in the face of the men of Boston, that a



MASS MEETING FOR RECRUITING. 103

nobler, truer, more patriotic set of men, the sun does
not shine upon, than the Union men of the Border
States. I feel that I know them ; and I tell you, they
will not go. If finally driven from you, no man can
say how much of the great West would go with them,
or where the ultimate line of division would fall.

[Mr. Thomas here enlarged upon the geographical
and commercial ties which bind the West to the South,
and said there is no safety for us but in clinging to the
Union as it was and the Constitution as it is.]

Let us be manly, be just, be tolerant. It is the easi-
est thing in the world to find fault, but not the wisest
thing. In conducting war upon so vast a scale, and
requiring so many and varied agencies, mistakes and
blunders will be made. The race is not always to the
swift, nor the battle to the strong. We have a great
and powerful people, and at their head an upright, con-
scientious, conservative Chief Magistrate. Let us work,
and not grumble ; let us labor, and not faint.



104



THE ARMY OF THE EESERVE.



ADDRESS BEFORE THE PHI BETA KAPPA SOCIETY OF BOWDOIN

COLLEGE, AUGUST 7, 1862.

Mr. President and Gentlemen, — Human culture in
some one of its aspects is the appropriate theme of the
occasion. In selectmg the speaker from the field of
active and busy life, you did not require nor look for an
elaborate discussion of its philosophy. The fair question
put to us, wrestlers on the dusty arena, is this : Looking
at the subject from your stand-point, have you any prac-
tical suggestions to make that may aid us in this noblest
of Avorks, — the building-up not only of the living battle-
ments of the State, but of the beings that we are, and
are to be ?

One of the most important matters in modern war-
fare is the composition of the army of the reserve.
It is relied upon to supply fresh forces at the instant
of need, to support points that are shaken, to be ready
to act at decisive moments. It should be composed of
select troops, well appointed, thoroughly trained, under
the eye of a cool, sagacious, and resolute commander.
The need of such reserved force has been pamfuUy
illustrated in this war for national life. In the most im-
portant junctures, we have failed to win victory or secure
its fruits from the lack of an army m reserve.



THE ARMY OF THE RESERVE. 105

No better example of such a reserve can be found
than the Imperial Guard of Napoleon, nor of its use
than on the field of Austerlitz.

Our life is a campaign and a warfare. It has its deci-
sive moments, whose issues for good or evil, for victory
or defeat, must depend on oiu' reserved power. On the
field of letters, on the broader field of human life, he
only organizes victory, and commands success, behind
whose van and corps of battle is heard the steady tramp
of the army of the reserve.

To some illustrations of this thought I give the hour
your kindness has assigned to me.

It is a stern lesson, and hard to be learned, that though
the ordinary duties of life require large power, intel-
lectual and moral, the supply must constantly exceed the
immediate demand. It is a hard lesson, but a necessary
one.

Life is not all routine. It has its great temptations,
its golden opportunities. To withstand the one, to seize
the other, we must organize and maintain our spiritual
army of the reserve. There is no hope of large
achievement, or of safety even, in impressing forces or
foraging for suppUes on the line of march, much less on
the eve of battle. In youth for manhood, in summer for
winter, in sunshine for storm, in peace for war, in the
actual for the possible, the law of Providence and fore-
sight is luiiversal.

The rules for the composition of the spiritual reserve
are simple, whatever of difficulty there may be m their
just application. Faculties trained by patient, thorough,
protracted discipline ; supplies carefully garnered, and

14



106 THE ARMY OF THE RESERVE.

then so thoroughly digested that they will enter into the
bone and muscle of the mind, and become power ; this
was what Lord Bacon meant by saying knowledge was
power.

The nucleus is to be formed before the campaign of
active life opens ; after that, growmg rigor of discipline
and daily accessions of strength.

The magnitude and extent of the reserve are to be
measured, not by the wants of to-day or of the next cam-
paign, but by the possible exigencies of human hfe, — a
life whose horizon is ever Hfting up, whose possibilities
of to-day are the necessities of to-morrow.

And though there must be limitation, and exclusion
even, no more forces than can be well kept up and main-
tained, no half-grown conscripts, none maimed or blmd,
diseased or leprous, yet the recruiting-office is never
closed ; for the campaign is never ended.

We have thrift and providence ; but they take a mate-
rial direction. We save for the dark and rainy day ; but
we save money and houses and lands. Intellectually, we
live from hand to mouth. We begin the life of action
before the life of study. The result is, that, with most
of us, the life of patient study and quiet thought never
begins. " Quid enim aut didicimus aut scire potuimus
qui ante ad agendum quam ad cognescendum venimus."

Getting knowledge for immediate use, cramming for
the occasion, we limit ourselves to the narrowest range
of the useful and practical : meaning, by useful, value in
the shambles of the market ; and by practical, dexterity


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Online LibraryBenjamin Franklin ThomasSpeeches in the second and third sessions of the Thirty-seventh Congress, and in the vacation (Volume 2) → online text (page 7 of 15)