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 proclamation of the President, calling for 75,000 troops, and then calling for a greater number, would, in any Court in Christendom, outside of the United States, be regarded, under international law, as conclusive evidence that those troops were to be used against a belligerent power. Who ever heard of eight millions of people, or of one million of people, being all traitors, and being all liable to prosecution for treason at once. I find this recognition in the exchange of prisoners, which we know, as a matter of history, has occurred. I find it in the capitulation at Hatteras, at which, and by which, General Butler, of his own accord, when he refused the terms of surrender proposed by Commodore Barron, declared that the garrison should be taken as prisoners of war; and that has been communicated to the Government, and no dissatisfaction expressed about it.

And, gentlemen, I rest it, also, as to the recognition by our Government, on the fact to which Mr. Sullivan so appropriately alluded—the exchange of flags of truce between the two contending forces, as proved by one of the officers of the navy. A flag of truce sent to rebels—to men engaged in lawless insurrection, in treasonable hostility to the Government, with a view to its overthrow! Why, gentlemen, it is the grandest, as it is the most characteristic, device by which humanity protects men against atrocities which they might otherwise perpetrate upon each other—that little white flag, showing itself like a speck of divine snow on the red and bloody field of battle; coming covered all over with divinity; coming in the hand of peace, who rejoices to see another place where her foot may rest; welcome as the dove which returned to the ark; coming, I say, in the hand of peace, who is the great conqueror, and before whom the power of armies and the bad ambitions and great struggles of men must ultimately be extinguished. This, of itself, will be regarded by mankind, when they reflect wisely, as sufficient to show that our Government must not be brutal; and we seek to rescue the Administration from any imputation that it wants to deny to the South the common humanities which belong to warfare, by your refusing to let men be executed as pirates, or to make a distinction between him who wars on the deep and him who wars upon the land.

It is very strange if the poor fellows who had no means of earning a meal of victuals in the city of Charleston, like some of those who composed the crew of this vessel, shut up as if in a trap, should be hanged as pirates for being on board a privateer, under a commission from the Confederate States, and that those who have slain your brothers in battle should be taken as prisoners of war, carefully provided for, and treated with the benevolence which we extend to all prisoners who fall into our hands—the same humanities that, as you perceive, are provided for in the instructions from Jefferson Davis, found on board the privateer, directing that the prisoners taken should be dealt with gently and leniently, and to give them the same rations as were supplied to persons in the Confederate service.

But it seems to be suggested in Vattel, and certainly is promulgated in the opinion of Mr. Justice Grier, that, although the Confederate States have obtained any proportions however large, any power however great, there must be some sound cause, some reasonable pretext, for this revolt. Well, who is to judge of that? We do not, says the Government, admit that the cause is sufficient. The United States Government says there is none. Now, I propose to show you what the South says on that subject—to lay before you matters of history with which you are all acquainted—to show you what is supposed by men as able as any of us, as well acquainted with the history of the country, and as pure—what is supposed by them to have created this state of things, entitling the Confederate States to leave us and be a community by themselves. I will hereafter appeal to the late Daniel Webster as a witness that one of the causes assigned by the Southern States for their act is at least the expression and proof of a great wrong done them.

In the first place, a large proportion of our people at the North claim the right to abolish slavery in places ceded to the United States, or formed by contributions from the States, such as the District of Columbia. I do not know what my learned friends' views on that subject are, but I know that the two great political parties of the country have had distinct opinions on that subject. By one, it has been steadily maintained, and with great energy, that, so far as the nation has power over the subject of slavery, it shall exercise it to abolish slavery. And the South says: "If you undertake to abolish slavery in any fort, any ceded place, any territory that we have given you for the purposes of the National Government, we will regard that as a breach of faith; for, whether you abhor slavery, or only pretend to abhor it, it is the means of our life. I, a Southerner, whose mother was virtuous as yours—whom I loved as you loved your mother—received from her at her death, as my inheritance, the slaves whom my father purchased—whom I am taught, under my religious belief, to regard as property, and whom I will so continue to regard as long as I live." That is the argument of the South; and if men at the South conscientiously believe that, from their knowledge of the sentiments, factions, or agitations at the North, such as these, there is an intention to make a raid and foray on the institution of slavery, deprive them of all the property they have in the world, and condemn them to any stigma—is it any wonder that they should express and act upon such an opinion?

Next, gentlemen, in the category of their complaints, is the agitation for the prohibition of what is called the inter-State slave trade. Next is the exclusion of slavery from new territory, which, says the South, "we helped to acquire by our blood and treasure—towards which we contributed as you did. If you had a gallant regiment in the field in Mexico, had we not the Palmetto and other regiments, which came back—such of them as survived—covered with glory?"

This has been the great subject that has recently divided our political parties—the Republican party, so-called, proclaiming with great earnestness and great decency its sincere conviction that it was a moral and political right to prevent slavery from being carried into new territory, and insisting that the slave-owner, if he went there with his slaves, must bring them to a state of freedom.

There is another party of intelligent and upright men, claiming that the South has the same right to go into the Territories with their slaves as the North has to go with their implements of agriculture; and these irreconcilable differences of opinion are only to be settled at the polls, by determining the question which shall have sway either in the executive councils or in the legislation of the Government. A grand subject of debate, for some time, was the endeavor to acquire Texas; and I need not tell you that the great reason why the acquisition of Texas was opposed by the Whig party was, that they thought it might induce to the extension of slavery. When Mr. Choate made his great speech against it in New York, he confessed that that was the point, and said: "You may be told that this is a new garden of the Hesperides; but do not receive any of its fruits: touch not, taste not, handle not, for in the hour that you eat thereof you shall surely die."

Next, gentlemen, is the nullification of the Fugitive-Slave Law by several of the States of New England, which say: "True it is that the Constitution of the United States declares that the fugitive shall be delivered up to his master; true it is that Congress has made provision for his restoration; true it is that the Supreme Court of the United States has declared that he must be given up; but we say—we, a sovereign State—that if any officer of our Government lends any aid or sanction for such purpose he shall be guilty of a crime. If you want any slave delivered to his master, you must do it exclusively by the authority of the Federal Government, by its power and officers." And because, in the city of Boston, Mr. Loring, a virtuous citizen, a respectable lawyer, performed, in his official capacity, an official act toward the restoration of a slave to his master, he was removed from his judicial station by the Executive of Massachusetts.

The District Attorney: (To Mr. Evarts) He was not removed for that reason.