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

Now, this may be conceded for all sides of the controversy. I do not claim any more than these proofs show, and what we all know to be true; and I am but fair in conceding that they do show all the proportions and extent which make up a contest by the forces of the nation, as a nation, against an armed array, with all the form and circumstances, and with a number and strength, which make up military aggression and military attack on the part of these revolting or disaffected communities, or people.

Now, some observations have been made, at various stages of this argument, of the course the Government has taken in its declaration of a blockade, and in its seizure of prizes by its armed vessels, and its bringing them before the Prize Courts; and my learned friend, Mr. Brady, has done me the favor to allude to some particular occasion on which I, on behalf of the Government, in the Admiralty Court, have contended for certain principles, which would lead to the judicial confiscation of prizes, under the law of the land, or under the law of nations adopted and enforced as part of the law of the land. Well, now, gentlemen, I understand and agree that, for certain purposes, there is a condition of war which forces itself on the attention and the duty of Governments, and calls on them to exert the power and force of war for their protection and maintenance. And I have had occasion to contend—and the learned Courts have decided—that this nation, undertaking to suppress an armed military rebellion, which arrays itself, by land and by sea, in the forms of naval and military attack, has a right to exert—under the necessary principles which control and require the action of a nation for its own preservation, in these circumstances of danger and of peril—not only the usual magisterial force of the country—not only the usual criminal laws—not only such civil posses or aids to the officers of the law as may be obtained for their assistance—but to take the army and the navy, the strength and the manhood of the nation, which it can rally around it, and in every form, and by every authority, human and divine, suppress and reduce a revolt, a rebellion, a treason, that seeks to overthrow this Government in, at least, a large portion of its territory, and among a large portion of its people. In doing so, it may resort—as it has resorted—to the method of a warlike blockade, which, by mere force of naval obstruction, closes the harbors of the disaffected portion of the country against all commerce. Having done that, it has a right, in its Admiralty Courts, to adjudicate upon and condemn as prizes, under the laws of blockade, all vessels that shall seek to violate the blockade. Nor, gentlemen, have I ever denied—nor shall I here deny—that, when the proportions of a civil dissension, or controversy, come to the port and dignity of war, good sense and common intelligence require the Government to recognize it as a question of fact, according to the actual circumstances of the case, and to act accordingly. I, therefore, have no difficulty in conceding that, outside of any question of law and right—outside of any question as to whether there is a Government down there, whether nominal or real, or that can be described as having any consistency of any kind, under our law and our Government—there is prevailing in this country a controversy, which is carried on by the methods, and which has the proportions and extent, of what we call war.

War, gentlemen, as distinguished from peace, is so distinguished by this proposition—that it is a condition in which force on one side and force on the other are the means used in the actual prosecution of the controversy. Now, gentlemen, if the Court please, I believe that that is all that can be claimed, and all that has been claimed, on behalf of these prisoners, in regard to the actual facts, and the condition of things in this country. And I admit that, if this Government of ours were not a party to this controversy,—if it looked on it from the outside, as England and France have done,—our Government would have had the full right to treat these contending parties, in its Courts and before its laws, as belligerents, engaged in hostilities, as it would have had an equal right to take the opposite course. Which course it would have taken, I neither know, nor should you require to know.

But, I answer to the whole of this, if the Court please, that it is a war in which the Government recognizes no right whatever on the part of the persons with whom it is contending; and that, in the eye of the law, as well as in the eye of reason and sound political morality, every person who has, from the beginning of the first act of levying war against the United States until now, taken part in this war, actively and effectively, in any form—who has adhered to the rebels—who has given aid, information, or help of any kind, wherever he lives, whether he sends it from New Hampshire or New York, from Wisconsin or from Baltimore—whether he be found within or without the armed lines—is, in his own overt actions, or open espousal of the side of this warring power, against the Government of the United States, a traitor and a rebel. I do not know that there is any proposition whatever, of law, or any authority whatever, that has been adduced by my learned friends, in which they will claim, as matter of law, that they are not rebels. I invited the attention of my learned friends, as I purposed to call that of the Court, to the fact, that the difficulty about all this business was, that the plea of authority or of war, which these prisoners interposed against the crime of piracy, was nothing but a plea of their implication in treason. I would like to hear a sober and solemn proposition from any lawyer, that a Government, as matter of law, and a Court, as matter of law, cannot proceed on an infraction of a law against violence either to person or property, instead of proceeding on an indictment for treason. The facts proved must, of course, maintain the personal crime; and there are many degrees of treason, or facts of treason, which do not include violent crime. But, to say that a person who has acted as a rebel cannot be indicted as an assassin, or that a man who has acted, on the high seas, as a pirate, if our statutes so pronounce him, cannot be indicted, tried and convicted as a pirate, because he could plead, as the shield of his piracy, that he committed it as part of his treason, is, to my apprehension, entirely new, and inconsistent with the first principles of justice.

Now, this very statute of piracy is really a general Crimes Act. The first section is:

"If any person or persons owing allegiance to the United States of America shall levy war against them, or shall adhere to their enemies, giving them aid and comfort within the United States, or elsewhere, and shall be thereof convicted," "such person or persons shall be adjudged guilty of treason against the United States, and shall suffer death."

Now, you will observe that treason is not a defence against piracy; nor is good faith in treason a defence against treason, or a defence against piracy. What would be the posture of these prisoners, if, instead of being indicted for piracy, they were indicted for treason? Should we then hear anything about this notion that there was a war raging, and that they were a party engaged in the war? Why, that is the very definition of treason. Against whom is the war? Against the United States of America. Did you owe allegiance to the United States of America? Yes, the citizens did; and I need not say to you, gentlemen, that those residents who are not citizens owe allegiance. There is no dispute about that. Those foreigners who are living here unnaturalized are just as much guilty of treason, if they act treasonably against the Government, as any of our own citizens can be. That is the law of England, the law of treason, the necessary law of civilized communities. If we are hospitable, if we make no distinction, as we do not, in this country, between citizens, and foreigners resident here and protected by our laws, it is very clear we cannot make any distinction when we come to the question of who are faithful to the laws. So, therefore, if they were indicted for treason, what would become of all this defence? It would be simply a confession in open Court that they were guilty of treason. Well, then, if they fell back on the proposition,—"We thought, in our consciences and judgments, that either these States had a right to secede, or that they had a right to carry on a revolution; that they were oppressed, and were entitled to assert themselves against an oppressive Government, and we, in good faith, and with a fair expectation of success, entered into it,"—what would become of them? The answer would be, "Good faith in your attempt to overthrow the Government, does not excuse you from responsibility for the crime of attempting it." Our statute is made for the purpose of protecting our Government against efforts made, in good faith or in bad faith, for its overthrow.

And now, in this connection, gentlemen, as your attention, as well as that of the Court, has been repeatedly called to it, let me advert again to the citation from that enlightened public writer, Vattel, who has done as much, perhaps, as our learned friends have suggested, to place on a sure foundation the amelioration of the law of nations in time of war, and their intercourse in time of peace, as any writer and thinker whom our race has produced. You remember, that he asks—How shall it be, when two contending factions divide a State, in all the forms and extent of civil war—what shall be the right and what the duty of a sovereign in this regard? Shall he put himself on the pride of a king, or on the flattery of a courtier, and say, I am still monarch, and will enforce against every one of this multitude engaged in this rebellion the strict penalties of my laws? Vattel reasons, and reasons very properly: You must submit to the principles of humanity and of justice; you must govern your conduct by them, and not proceed to an extermination of your subjects because they have revolted, whether with or without cause. You must not enforce the sanctions of your Government, or maintain its authority, on methods which would produce a destruction of your people. And you must not further, by insisting, under the enforced circumstances which surround you, on the extreme and logical right of a king, furnish occasion for the contending rebels, who have their moments of success and power, as well as you, to retaliate on your loyal people, victims of their struggle on your behalf, and thrown into the power of your rebellious subjects,—to retaliate, I say, on them the same extreme penalties, without right, without law, but by mere power, which you have exerted under your claim of right.

And now, gentlemen of the Jury, as the Court very well understands, this general reasoning, which should govern the conduct of a Sovereign, or of a Government, against a mere local insurrection, does not touch the question as to whether the law of the nation in which the Sovereign presides, and in violation of which the crime of the rebels has been perpetrated, shall be enforced. There has been, certainly, in modern times, no occasion when a Sovereign has not drawn, in his discretion, and under the influence of these principles of humanity and justice, this distinction, and has not interposed the shield of his own mercy between the offences of misled and misguided masses of his people and offended laws. We know the difference between law and its condemnation, and mercy and its saving grace; and we know that every Government exercises its discretion. And, I should like to know why these learned counsel, who are seeking to interpose, as a legal defence on the part of a criminal, the principles of policy and mercy which should guide the Government, are disposed to insist that this Government, in its prosecutions and its trials, has shown a disposition to absolve great masses of criminals from the penalties of its laws. I should like to know, when my learned friend Mr. Brady, near the close of his remarks, suggested that there had been no trial for treason, whether this Government, from the first steps in the outbreak, down to the final and extensive rage of the war, has not foreborne to take satisfaction for the wrongs committed against it, and has not been disposed to carry on and sustain the strength of the Government, without bloody sacrifices for its maintenance, and for the offended justice of the land. But it is certainly very strange if, when a Government influenced by those principles of humanity of which Vattel speaks, and which my learned friends so much insist upon, has foreborne, except in signal instances, or, if you please, in single instances that are not signal, to assert the standard of the law's authority and of the Government's right,—that it may be seen that the sword of justice, although kept sheathed for the most part, has yet not rusted in its scabbard, and that the Government is not faithless to itself, or to its laws, its powers, or its duties, in these particular prosecutions that have been carried, one to its conclusion, in Philadelphia, and the other to this stage of its progress, here,—it is strange, indeed, that the appeal is to be thrust upon it—"Do not include the masses of the misguided men!" and, when it yields so mercifully to that appeal, and says—"I will limit myself to the least maintenance and assertion of a right," that the answer is to come back: "Why, how execrable—how abominable, to make distinctions of that kind!"

But, gentlemen, the mercy of the Government, as I have said to you, remains after conviction, as well as in its determination not to press numerous trials for treason; but it is an attribute, both in forbearing to try and in forbearing to execute, which is safely left where the precedents that are to shape the authority of law cannot be urged against its exercise. Now, I look upon the conduct and duty of the Government on somewhat larger considerations than have been pressed before you here. The Government, it is said, does not desire the conviction of these men, or, at least, should not desire it. The Government does not desire the blood of any of its misguided people. The Government—the prosecution—should have no passion, no animosities, in this or in any other case; and our learned friends have done us the favor to say that the case is presented to you as the law should require it to be; that you, and all, are unaffected and unimpeded in your judgment; and that, with a full hearing of what could be said on the part of these criminals, you have the case candidly and openly before you.