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

by A. F. Warburton

The learned counsel who spoke last Saturday, referred to privateering as a relic of the barbarous age. No one agrees with the learned counsel in that respect more than I do; and from the bottom of my heart I hope that he may be yet able to take his share in banishing from the world this relic of the olden time. But, really, I see very little chance of advancement in that line, so long as a vessel of war is allowed to take private property on the seas. There should be perfect immunity for all property on the ocean belonging to individuals; but the letter of Mr. Marcy shows that we are not yet exactly up to that point.

The learned counsel stated that, before he could concede the commission in this case to be a justification, two things must be shown: First, there must be a state of war; and, second, the privateer must have received his commission from some public, national, sovereign power. Well, we think we have shown the existence of war sufficiently strongly; and as to this point, I fancy that few gentlemen of the bar can forget the pointed and admirable allusion of the learned counsel himself (Mr. Evarts), in his argument in the District Court, some time since, to the absent clerk, in illustrating the fact of the existence of war. I remember how forcibly it struck me when I read it. The decisions in the case of the South American privateers settles the point as to the nationality.

But, gentlemen, there is another subject to which I will briefly allude—that is, the abstract right of these States legally to secede. Now, gentlemen, we do not deny that there is no such right. I concede all that. Yet, still, these men have ever held different notions; and, on this subject, a line has been drawn for many years through an immense tract of this our country. The right or the wrong of it does not affect us here. You have failed to convince them, and they have failed to convince you. There is no common arbiter between you, because they contend that, being sovereigns, they cannot submit to the Courts questions between themselves and the United States. Now, they may be wrong, but have you the right to declare them so? You ought to be perfectly certain. Justice, reason, and duty prompt that there ought to be no mistake. When you hold a party for a criminal charge, there ought not to be a reasonable doubt. Is there no possibility that, in the course of the proceedings between the Federal and State Governments, you may be wrong? Does truth only consort with one side of the line, and falsehood with the other? May you not be mistaken? Look at the different lights in which, for years, you have respectively viewed various questions. See how gradually the change has been effected; and yet how stronger and stronger it has grown day by day. Can any one forget the deep and intense anxiety with which that great statesman, Mr. Clay, just before his death, regarded the division between the Methodist and Baptist Churches of the North and the South? And yet no man was a truer or firmer patriot, or an abler advocate of the Government; and no man saw with more unerring certainty that the line, sooner or later, was destined to be drawn between the two sections, unless some compromise was effected.

Now, the doctrine in which these men have been brought up may be political heresy; but, do you crush a heresy with chains? Does history not tell us how utterly vain and futile such an attempt is? Have you to go back farther than the days of James the Second, to see the attempt of that despot to enforce upon the English people a religion which they did not choose to adopt? Can you forget the bloody assizes of Jeffreys, when hundreds were carried to the block and thousands were sent into exile to all parts of the world? Can you forget the great scene, when the noble Duke of Argyle, with his head bared and his limbs in chains, was led through Edinburgh amidst the reproaches and contempt of the populace; and do you forget the cold and manly dignity with which he endured it all? And do you reflect that, with all these things, the religion of England to-day is the same as it was then? Can you expect, by a system like this, to mould the human mind as you would mould potter's clay? Oh, no! gentlemen, the human heart is a different thing; love and tenderness may melt and control it, but chains and manacles never yet subdued it. Call this piracy! why this is, indeed, confounding the order of things; and when the real piracy comes, you will feel no dislike or contempt for the offence. You give it a dignity by thus confounding it with crimes of a different nature. If these men are pirates, all are pirates who have taken naval commissions from the Confederate States, and all are robbers who have served them on land. Pirates! Is Tatnall a pirate—Tatnall who, by his skill, and valor, and daring, succeeded in landing your gallant army in Mexico, challenging on that occasion the admiration alike of the army and navy? Tatnall a pirate! Tatnall, whose name has been for forty years the synonym of all that is high and noble and brave in the American navy! Is Hartsteine a pirate—Hartsteine, the modest but hardy sailor, who carried your ensign into the far, remote, and unfriendly regions of the frigid zone? Is Ingraham a pirate—Ingraham, who, when the down-trodden naturalized refugee from Austria asked for the protection of the American flag said, "Do you want the protection of this flag?—then you shall have it!" Are these men pirates? Oh, no! gentlemen; there is some mistake about this. Is Lee a robber—Lee, the chosen and bosom friend of your venerable commander in Washington, and who, but a few months ago, parted from him with an aching heart and eyes brimful of tears? Lee, a robber! Lee, whose glory is yours, and whose name is written on every page of your country's history which attests the triumphant march of your army from Vera Cruz to the gates of Mexico? Methinks I see the flash of fire light the eye, and the curl of contempt play upon the lips, of the old hero of Lundy's Lane, as he hears the foul imputation upon the stainless honor of the well-tried friend of many years. No, gentlemen, these men are not pirates! they are not robbers! Your own hearts tell you they are not. Truly, it may indeed be said, that civil war does pervert the natural taste, and relish of equity and of justice.

But, gentlemen, what is the object of this prosecution? Can the united States desire revenge on these men? That is a passion not attributable to States. States have no passion. The dignity and the power of a State ought to make it tolerant. Is it because the President's proclamation has pronounced these men pirates? Certainly, the respected Chief Magistrate of these United States has no disposition to enforce this law, simply because he has declared it, as in the case of King Ahasuerus. Is their punishment sought for the good of the community? If it is designed for such a purpose, its effect is very questionable.

It is extremely strange, gentlemen, that the prosecution should have been, any how, brought on now, and under this Act. Is it a strange fact, gentlemen, that, under the Act of William the Third, which has been cited to you, there was not, during the American Revolution, a single American privateersman ever brought to trial in England. And yet the English Government repeatedly captured them, and put them in prison. That Act is just as strong as this, for the ninth section of our Act of 1790 is copied from it. I suppose the truth is, gentlemen, that the English Government felt the utter inapplicability of that law to a case of this kind.

But, it is time that I should draw to a close. If these men have been brought into the position in which they now stand, much depends upon their political education—much depends upon the different views with which they have regarded this question from ourselves. It is the part of humanity to err. These men are the representatives of those who were once united with us in the gentle tie of brotherhood. That tie is now rent, and it may be years before the kindly and good feeling which once subsisted between the sections is restored. God grant that the hour may not be far distant! But, gentlemen, to treat these men with kindness; to treat them with humanity; to have respect for that great principle which underlies the bottom of our own Government—the right of resistance (and I mean here legal resistance, and not that revolutionary resistance which the Courts of justice do not adopt, and never have, and cannot sanction),—I say, to treat them with kindness and humanity will do more, in my honest belief, to knit together the two sections than a hundred battle-fields would do.

Gentlemen, if there has been a division between you, remember that that division has sprung up from honest conviction. Can you think otherwise? Shoulder to shoulder with your fathers, in the days of the Revolution, their fathers fought the battles of freedom. Side by side with you, they trod the burning plains of Mexico, and encountered, in hostile strife, the foes of your country; and when the shock of battle was over, wrapped in the same honored flag, their dead and yours were borne to their final resting place. Is it for a light and a trifling cause that they have thus separated from you?

In conclusion, gentlemen, let me beg you to meet this issue like men. No matter what the pressure upon you is, stand firm, do justice, and discharge these prisoners. In so doing, you will but do your duty, and God himself will sanction the act. But, gentlemen, if deaf to the promptings of reason, of justice, and of humanity—if, impelled by political rancor and passion—you condemn these prisoners, and execution follows condemnation, be assured that they will meet their fate like men; and that these manacled hands, which you have so often disported through your streets to excited crowds, will, "though impotent here," be lifted, and not in vain, to a far more august tribunal than this, before whose unerring decrees Courts and nations alike must bow with awful reverence.

ARGUMENT OF MR. SULLIVAN.