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

I think that is pretty strong secession doctrine. I do not see that it is possible, in terms, to state it more distinctly. Well, it is true that candid people in that section of the country did not approve these views, but disapproved them; and yet they were the views, clearly and forcibly expressed, of a large number of intelligent and moral people.

Now, this enables me to repeat, with a clearer view derived from history, the proposition that the Confederate States are—under the law of nations, and the principles embodied in the Declaration of Independence, sustained in the Revolution, and recognized by our people—in a condition not distinguishable from that of the Colonies in '76, except that, if there be a difference, the position of the Confederates, in reference to legality, as a judicial question, is more justifiable, as it is certainly more formidable. This word "secession" is, after all, only a word; a word, as Mr. Webster said in one of his great speeches, answering Mr. Calhoun, of fearful import; a word for which he could not according to his views, too strongly express condemnation. But whether you use the word "secession," or the familiar expression, "going out of the Union," or, "not consenting to remain in the Union," the idea is one and the same. Much acumen and ingenuity have been displayed, even by a mind profound as that of Mr. Calhoun—a most acute man and a pure man, as Mr. Webster eloquently attested in the Senate chamber, after the decease of that South Carolina statesman—I say a good deal of acumen has been spent on the question whether a State, or any number of States, have a right under the Constitution to secede from the Union. It is a quarrel about phrases. It is not necessary in any point of view, political, philological or moral, to use the word "secession" as either excusing or justifying the act of the Confederate States. Suppose I grant, as a distinct proposition, in accordance with what I admit to be the opinion of the great majority of jurists, and orators, and statesmen at the North, that there is no right in a State, under the Constitution, to recede from the Union—what then? I shall not stop to give you the argument with which the South presents a view of the question entirely different from that of the North. Of what consequence is it, practically, whether the right of the State to go out be found in any part of the compact called the Constitution, or be derived from a source extrinsic of it? You (let me suppose) are twelve States, and I am the thirteenth. There is the original Confederacy of States, pure and simple, under the agreement with each other; and there, according to the views of Mr. Webster and the prosecution here, we became constituted in a general Government, or, as Wheaton says, in a "composite Government," giving great power to the general center. Now, what difference does it make, if you twelve States conclude to leave me, whether you do it by virtue of anything contained in the Constitution, or inferable from the Constitution, or in virtue of some right or claim of right that resides out of the Constitution? It is not of the least consequence. I do not care for the word "secession." It would be, at the worst, revolution. In that same great speech of Mr. Webster's against Calhoun, in which I think I am justified in saying he exhausts the subject and makes the most formidable argument against the theory of secession that was ever uttered in the United States, all the conclusion he comes to is this:—"'Peaceable secession!' I cannot agree to such a name. I cannot think it possible. It would be revolution." Very well. Of what consequence is the designation? Who cares for the baptism or the sponsors? It is the thing you look to. And if they have either the right or the power to secede or revolutionize, they may do it, and there is no tribunal on earth to sit in judgment upon them; though we have the right and the power, on the other hand, to battle for the maintenance of the whole Union. Our friend, Mr. Justice Grier, says: "No band of conspirators can overcome the Government merely because they are dissatisfied with the result of an election." Now, gentlemen, with the deference he deserves, I would ask the learned Justice Grier, or any other Justice, or my learned friend, Mr. Evarts, how he will proceed to dispose of the case which I am about to put? Suppose that all but one of our States meet in their Legislatures, and, by the universal acclaim, and with the entire approval of all the people, resolve that they will remain no longer in association with the others—what will you do with them? That solitary State, which may be Rhode Island, says: "I have in me the sovereignty; I have in me all the attributes that belong to empire or national existence; but I think I will have to let you go. Whether you call it secession, or rebellion, or revolution, you may go, because you have the power to go, if there be no better reason." And power and right become, in reference to this subject, the same thing in the end. Do they not? Is there any relation on earth that has a higher sanction than marriage? So long as two parties, who have contracted that holy obligation, have, in truth, no fault to find with each other, is there any right in either to go away from the other? There is no such right, either by the law of God or of man. But there is a power to do it, is there not? And if the wife flee from her husband, instead of towards him, or if a husband go from his wife, is there any law of society that can compel them to unite? And why not? Because mankind, though they have perpetrated many follies, have, at least, recognized that this was a remedy utterly impossible. In the relation of partnership between two individuals, does not the same state of things exist? and do not the same arguments suggest themselves? I ask my learned brother what he can do in reference to the ten States that have claimed to secede from the Union, and have organized themselves into a Government? I will give him all the army he demands, and will let him retain in the chair of State this honest, pleasant Mr. Lincoln, who is not the greatest man in the world—nobody will pretend that—but is as good and honest a person as there is in the world. There is not the slightest question but that, in all his movements, he only proposes what he deems consistent with the welfare and honor of the country. I will give my learned brother the army now on the banks of the Potomac, doing nothing, and millions of money, and then I desire him to tell us how, with all these aids, he can coerce those ten States to remain in the Confederacy. What was said by Mr. Buchanan on the subject, in his Message of December last? "I do not propose" said he, "to attempt any coercion of the States. I believe that it would be utterly impossible. You cannot compel a State to remain in the Union. They may refuse to send Senators to the Senate of the United States. They may refuse to choose electors, and the Government stops." Well, I grant you that this is not the view of other men quite as eminent as Mr. Buchanan. I grant you that the great Chief Justice Marshall—a man to whom it would be bad taste to apply any other word than great, because that includes everything which characterized him—I grant you that brilliant son of Virginia met an argument like this with the great power that distinguished all his judgments, when a question arose in the Supreme Court of the United States, affecting the State of Virginia and a citizen. But of what importance is it what any man thinks about it? What is your theory as compared with your practice? Now, I will give my friend all the power he wants, and ask him to deal with these ten States. Do you believe it to be within the compass of a possibility to compel them to remain in the Union, as States, if they do not wish it?

Thus I reach the conclusion, on even the weakest view of the case for us, that the power to secede, and the power to organize a Government existing, there is no power on earth which, on any rule of law, can interfere with it, except that of war, conducted on the principles of civilized war.

Now, then, let us look at those Confederate States a little more closely. What says Vattel, in the passage referred to by my learned friend, Mr. Larocque, and which it is of the utmost importance, in this connection, to keep in mind?

[Here Mr. Brady read an extract, which will be found in the argument of Mr. Larocque. [ [5]]

Is not that clearly expressed, and easy to understand? All of us comprehend and can readily apply it in this case. That resolves the question, if indeed this be the law of the land, into this: Have the Confederate States, on any show of reason, or without it—for that does not affect the inquiry—attained sufficient strength, and become sufficiently formidable, to entitle them to be treated, under that law of nations, as in a condition of civil war, even if they have not constituted a separate, sovereign, and independent nation? Really, it seems to me, too clear for doubt, that they have. We had, in the Revolution, thirteen Colonies, with a limited treasury, almost destitute of means, and with some of our soldiers so behaving themselves, in the early part of the struggle, that General Washington, on one memorable occasion, threw down his hat on the ground and asked, "Are these the men with whom I am to defend the liberties of America?" And those of you, gentlemen, who have read his correspondence, know how constantly he was complaining to Congress about the inefficiency of the troops, and their liability to desertion. I remember that he says something like this: "There is no doubt that patriotism may accomplish much. It has already effected a good deal. But he who relies on it as the means of carrying him through a long war will find himself, in the end, grievously mistaken. It is not to be disguised that the great majority of those who enter the service do so with a view to the pay which they are to receive; and, unless they are satisfied, desertions may be expected." He also remarked, at another period, in regard to the troops of a certain portion of our country, which I will not name, that they would have their own way; that when their term of enlistment expired they would go home; and that they would sometimes go before that period arrived. That, I am mortified to say, has been imitated in the present struggle.

Such was the early condition of the Colonies.

Now, the Southern Confederacy have ten States—they had seven when this commission was issued—with about eight millions of people. They have separate State governments, which have existed ever since the Union was formed, and which would exist if this revolution were entirely put down. They have excluded us from every part of their territory, except a little foothold in the Eastern part of Virginia, and "debateable ground" in Western Virginia. We have not yet been able to penetrate farther into the Confederate States. We cannot send even food to the hungry or medicine to the afflicted there. We cannot interchange the commonest acts of humanity with those of our friends who are shut up in the South. I do think, with the conceded fact looking directly into the face of the American people that, with all the millions at the command of the Administration, there is yet found sufficient force and power in the Confederate States to maintain their territory, their Government, their legislature, their judiciary, their executive, and their army and navy, it is vain and idle to say that they are not now in a state of civil war, and that they ought to be excluded from the humanities incident to that condition. Such an idea should not, I think, find sanction in either the heart, the conscience, or intelligence of any right-minded man.

Not only are the facts already stated true, but the Confederate States have been recognized as a belligerent power by France and England, as we have proved by the proclamations placed before you; and they have been recognized by our Government as belligerents, at least. That I submit, as a distinct question of fact, to the Jury, unless the Court conceive that it is a pure question of law,—in which case I am perfectly content that the Court shall dispose of it.

And where do I find this? I find it in the admission of Mr. Lincoln, in his Inaugural Address, that there is to be no attempt at any physical coercion of these States—a concession that it is a thing not called for, not consistent with the views of the Administration, or with the general course of policy of the American people. According to his view, there was to be no war. I find it in the correspondence of General Anderson with Governor Pickens, which has been read in the course of the trial—which of course has been communicated to the Government, will be found among its archives, and of which no disapprobation has been expressed. And here I borrow a doctrine from the District Attorney, who said, when I declared that the legislative branch of the Government had not given their declaration as to what was the true condition of the South, that their silence indicated what it was; and so, the silence of the Government, in not protesting against this correspondence, is good enough for my purpose.