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, gentlemen, the Government, although having a large measure of discretion, has no right, in a country where the Government is one wholly of law, to repeal the criminal law, and no right to leave it without presenting it to the observation, the understanding, and the recognition of all its citizens, whether in rebellion or not, in its majesty, in its might, and in its impartiality. The Government has behind it the people, and it has behind it all the great forces which are breathing on our agitated society, all the strong passions, all the deep emotions, all the powerful convictions, which impress the loyal people of this country as to the outrage, as to the wickedness, as to the perils of this great rebellion. Do you not recollect how, when the proclamation of Mr. Davis invited marauders to prey upon our commerce, from whatever quarter and from whatever motives—(patriotism and duty not being requisite before they would be received)—the cry of the wounded sensibilities of a great commercial people burst upon this whole scene of conflict? What was there that as a nation we had more to be proud of, more to be glad for in our history, than our flag? To think that in an early stage of what was claimed to be first a constitutional, and then a peaceful, and then a deliberate political agitation and maintenance of right, this last extreme act, the arming of private persons against private property on the sea, was appealed to before even a force was drawn on the field on behalf of the United States of America! The proclamation of the President was but two days old when privateers were invited to rush to the standard. The indignation of the community, the sense of outrage and hatred was so severe and so strong, that at that time, if the sentiment of the people had been consulted, it would have found a true expression in what was asserted in the newspapers, in public speeches, in private conversations—that the duty of every merchantman and of every armed vessel of the country, which arrested any of these so-called privateers, under this new commission, without a nation and without authority, was, to treat them as pirates caught in the act, and execute them at the yard-arm by a summary justice.

Well, I need not say to you, gentlemen, that I am sure you and I and all of us would have had occasion to regret, in every sense, as wrong, as violent, as unnecessary, and, therefore, as wholly unjustifiable, on the part of a powerful nation like ourselves, any such rash execution of the penalties of the law of nations, and of the law of the land, while our Government had power on the sea, had authority on the land, had Courts and laws and juries under its authority to inquire and look into the transaction.

The public passions on this subject being all cool at this time, after an interval of four months or more from the arrest, we are here trying this case. Yet my learned friends can find complaint against the mercy of the Government and its justice, that it brings any prosecution; and great complaint is made before you, without the least ground or cause, as it seems to me, that the prosecution is pressed in a time of war, when the sentiments of the community are supposed to be inflamed.

Well, gentlemen, what is the duty of Government, when it has brought in prisoners arrested on the high seas, but to deliver them promptly to the civil authorities, as was done in this case—and then, in the language of the Constitution, which secures the right to them, to give them a speedy and impartial trial? That it is impartial, they all confess. How speedy is it? They say, they regret that it proceeds in time of war. Surely, our learned friends do not wish to be understood as having had denied to them in this Court any application which they have made for postponement. The promptness of the judicial and prosecuting authorities here had produced this indictment in the month of June, I believe, the very month in which the prisoners were arrested, or certainly early in July; and then the Government was ready to proceed with the trial, so far as I am advised. But, at any rate, an application—a very proper and necessary application—was made by our learned friends, that the trial should be postponed till, I believe, the very day on which it was brought on. That application was not objected to, was acquiesced in, and the time was fixed, and no further suggestion was made that the prisoners desired further delay; and, if the Government had undertaken to ask for further delay, on the ground of being unprepared, there was no fact to sustain any such application. If it was the wish of the prisoners, or for their convenience, that there should be further delay, it was for them to suggest it. But, being entitled by the Constitution to a speedy as well as an impartial trial, and the day being fixed by themselves on which they would be ready, and they being considered ready, and no difficulty or embarrassment in the way of proof having been suggested on the part of the Government, it seems to me very strange that this regret should be expressed, unless it should take that form of regret which all of us participate in, that the war is not over. That, I agree, is a subject of regret. But how there has ever been any pressure, or any—the least—exercise of authority adverse to their wishes in this matter, it is very difficult for me to understand.

Now, gentlemen, I approach a part of this discussion which I confess I would gladly decline. I have not the least objection—no one, I am sure, can feel the least objection—to the privilege or supposed duty of counsel, who are defending prisoners on a grave charge,—certainly not in a case which includes, as a possible result, the penalty of their client's lives,—to go into all the inquiries, discussions and arguments, however extensive, varied, or remote, that can affect the judgment of the Jury, properly or fairly, or that can rightly be invoked. But, I confess that, looking at the very interesting, able, extensive and numerous arguments, theories and illustrations, that have been presented in succession by, I think, in one form or another, seven counsel for these prisoners, as the introduction into a judicial forum, and before a Jury, of inquiries concerning the theories of Government, the course of politics, the occasion of strife on one side or the other, within the region of politics and the region of peace, in any portion of the great communities that composed this powerful nation—in that point of view, I aver, they seem to me very little inviting and instructive, as they certainly are extremely unusual in forensic discussions. Certainly, gentlemen of the Jury, we must conceive some starting point somewhere in the stability of human affairs, as they are entrusted to the control and defence of human Governments. But, in the very persistent and resolute views of the learned counsel upon this point—first on the right of secession as constitutional; second, if not constitutional, as being supposed by somebody to be constitutional; third, on the right of revolution as existing on the part of a people oppressed, or deeming themselves oppressed, to try their strength in the overthrow of the subsisting Government; fourth, on the right to press the discontents inside of civil war; and then finally and at last, that whoever thinks the Government oppresses him, or thinks that a better Government would suit his case, has not only the right to try the venture, but that, unsuccessful, or at any stage of the effort, his right becomes so complete that the Government must and should surrender at once and to every attempt—I see only what is equivalent to a subversion of Government, and to saying that the right of revolution, in substance and in fact, involves the right of Government in the first place, and its duty in the second place, to surrender to the revolutionist, and to treat him as having overthrown it in point of law, and in contemplation of its duty. That is a proposition which I cannot understand.

Nevertheless, gentlemen, these subjects have been so extensively opened, and in so many points attacks have been made upon what seems to me not only the very vital structure and necessary support of this, our Government, but the very necessary and indispensable support of any Government whatever, and we have been so distinctly challenged, both on the ground of an absolute right to overthrow this Government, whenever any State thinks fit—and, next, upon the clear right, on general principles of human equity, of each State to raise itself against any Government with which it is dissatisfied—and upon the general right of conscience—as well as on the complete support by what has been assumed to have been the parallel case, on all those principles, of the conduct of the Colonies which became the United States of America and established our Government—that I shall find it necessary, in the discharge of my duty, to say something, however briefly, on that subject. Now, gentlemen, these are novel discussions in a Court of Justice, within the United States of America. We have talked about the oppressions of other nations, and rejoiced in our exemption from all of them, under the free, and benignant, and powerful Government which was, by the favor of Providence, established by the wisdom, and courage, and virtue of our ancestors. We had, for more than two generations, reposed under the shadow of our all-protecting Government, with the same conscious security as under the firmament of the heavens. We knew, to be sure, that for all that made life hopeful and valuable—for all that made life possible—we depended upon the all-protecting power, and the continued favor of Divine Providence. We knew, just as well, that, without civil society, without equal and benignant laws, without the administration of justice, without the maintenance of commerce, without a suitable Government, without a powerful nationality, all the motives and springs of human exertion and labor would be dried up at their source. But we felt no more secure in the Divine promise that "summer and winter, seed-time and harvest," should not cease, than we did in the permanent endurance of that great fabric established by the wisdom and the courage of a renowned ancestry, to be the habitation of liberty and justice for us and our children to every generation. We felt no solicitude whatever that this great structure of our constituted liberties should pass away as a scroll, or its firm power crumble in the dust. But, by the actual circumstances of our situation,—and, if not by them, certainly by the destructive theories which are presented for your consideration,—it becomes necessary for us, as citizens, and, in the judgment at least of the learned counsel, for these prisoners, for you, and for this learned Court, in the conduct of this trial, and in the disposition of the issue of "guilty" or "not guilty" as to these prisoners, to pay some attention to these considerations. If, in the order of this discussion, gentlemen, I should not seem to follow in any degree, or even to include by name, many of the propositions, of the distinctions, and of the arguments which our learned friends have pressed against the whole solidity, the whole character, the whole permanence, the whole strength of our Government, I yet think you will find that I have included the principal ideas they have advanced, and have commented upon the views that seem to us—at least so far as we think them to be at all connected with this case—suitable to be considered.

Now, gentlemen, let us start with this business where our friends, in their argument, where many of the philosophers, and partisans, and statesmen of the Southern people, have found many of their grounds of support. Let us start with this very subject of the American Revolution, with the condition that we were in, and with the place that we found ourselves raised to, among the nations of the earth, as the result of that great transaction in the affairs of men. What were we before the Revolution commenced? Was any one of the original thirteen States out of which our nation was made, and which, previous to the Revolution, were Colonies of Great Britain—was any one of them an independent nation at the time they all slumbered under the protection of the British Crown? Why, not only had they not the least pretension to be a nation, any of them, but they had scarcely the position of a thoroughly incorporated part of the great nation of England. Now, how did they stand towards the British power, and under what motives of dignity, and importance, and necessity did they undertake their severance from the parent country? With all their history of colonization, the settlement of their different charters, and the changes they went through, I will not detain you. For general purposes, we all know enough, and I, certainly not more than the rest of you. This, however, was their condition. The population were all subjects of the British Crown; and they all had forms of local Government which they had derived from the British Crown; and they claimed and possessed, as I suppose, all the civil and political rights of Englishmen. They were not subject to any despotic power, but claimed and possessed that right to a share in the Government, which was the privilege of Englishmen, and under which they protected themselves against the encroachment of the Crown. But, in England, as you know, the monarch was attended by his Houses of Parliament, and all the power of the Government was controlled by the people, through their representatives in the House of Commons. And how? Why, because, although the King had prerogatives, executive authority, a vast degree of pomp and wealth, and of strength, yet the people, represented in the House of Commons, by controlling the question of taxation, held all the wealth of the kingdom—the power of the purse, as it was described—and without supplies, without money for the army, for the navy, for all the purposes of Government, what authority, actual and effective, had the Crown of England? These were the rights of Englishmen; these made them a free people, not subject to despotic power. They cherished it and loved it. Now, what relation did these Colonies, becoming off-shoots from the great fabric of the national frame of England, bring with them, and assert, and enjoy here? Why, the king was their king, just as he was the king of the people whom they left in England, but they had their legislatures here, which made their laws for them in Massachusetts, in Connecticut, in Virginia, in South Carolina, and in the rest of these provinces; and among those laws, in the power of law-making, they had asserted, and possessed, and enjoyed the right of laying taxes for the expenses and charges of their Government. They formed no part of the Parliament of England, but, as the subjects of England within the four seas were obedient to the king, and were represented in the Parliament that made laws for them, the Colonies of America were subject to the king, but had local legislatures, to pass laws, raise and levy taxes, and graduate the expenses and contributions which they would bear.

Now, gentlemen, it is quite true that the local legislatures were subject to the revision, as to their statutes, to a certain extent, of the sovereign power of England. The king had the veto power—as he had the veto power over Acts of Parliament—the power of revision—and other powers, as may have been the casual outgrowth of the forms of different charters. In an evil hour—as these Colonies, from being poor, despised, and feeble communities, gained a strength and numbers that attracted the attention of the Crown of England, as important and productive communities, capable of being taxed—the Government undertook to assert, as the principle of the Constitution of England, that the king and Parliament, sitting in London, could tax as they pleased, when they pleased, and in the form, and on the subjects, and to the amount, they pleased, the free people of these Colonies. Now, you will understand, there was not an incidental, a casual, a limited subject of controversy, of right, of danger, but there was an attack upon the first principles of English liberty, which prevented the English people from being the subjects of a despot, and an attempt to make us subject to a despotic Government, in which we took no share, and in which we had no control of the power of the purse. What matter did it make to us that, instead of there being a despotic authority, in which we had no share or representation of vote or voice, exercised by the king alone, it was exercised by the king and Parliament? They were both of them powers of Government that were away from us, and in which we had no share; and we, then, forewarned by the voices of the great statesmen whose sentiments have been read to you, saw in time that, whatever might be said or thought of the particular exercise of authority, the proposition was that we were not entitled to the privilege and freedom of Englishmen, but that the power was confined to those who resided within the four seas—within the islands that made up that Kingdom—and that we were provinces which their King and their Parliament governed. Therefore, you may call it a question of taxation, and my friend may call it "a question of three pence a pound on tea;" but it was the proposition that the power of the purse, in this country, resided in England. We had not been accustomed to it. We did not believe in it. And our first revolutionary act was to fight for our rights as Englishmen (subject to the King, whose power we admitted), and to assert the rights of our local legislature in the overthrow of this usurpation of Parliament. Now, of the course which we took before we resorted to the violence and vehemence of war, I shall have hereafter occasion to present you, very briefly and conclusively, a condensed recital; but this notion, that we here claimed any right to rise up against a Government that was in accordance with our rights, and was such as we had made it, and as we enjoyed it, equally with all others over whom it was exercised—which lies at the bottom of the revolt in this country—had not the least place, or the opportunity of a place, in our relations with England. We expected and desired, as the correspondence of Washington shows—as some of the observations of Hamilton, I think, read in your presence by the learned counsel, show—as the records of history show—we expected to establish security for ourselves under the British Crown, and as a part of the British Empire, and to maintain the right of Englishmen, to wit, the right of legislation and taxation where we were represented. But the parent Government, against the voice and counsels of such statesmen as Burke, and the warnings of such powerful champions of liberty as Chatham, undertook to insist, upon the extreme logic of their Constitution, that we were British subjects, and that the king and Parliament governed all British subjects; and they had a theory, I believe, that we were represented in Parliament, as one English jurist put it, in the fact that all the grants in all the Colonies were, under the force of English law, "to have and to hold, as the Manor of East Greenwich," and that, as the Manor of East Greenwich was represented in Parliament, all this people were represented. But this did not suit our notions. The lawyers of this country, the Judges of this country, and many of the lawyers of England, as mere matter of strict legal right, held that the American view of the Constitution of England, and of the rights of Englishmen who enjoy it, was the true one. But, at any rate, it was not upon an irritation about public sentiment; nor was it upon the pressure of public taxes; nor because we did not constitute a majority of Parliament; nor anything of that kind; but it was on clear criteria of whether we were slaves, as Hamilton presents it, or part of the free people of a Government. We, therefore, by degrees, and somewhat unconscious, perhaps, of our own enlightened progress, but yet wisely, fortunately, prosperously, determined upon our independence, as the necessary means of securing those rights which were denied to us under the Constitution of our country.

Now, there was not the least pretence of the right of a people to overthrow a Government because they so desire—which seems to be the proposition here—because they think they do not like it—and because there are some points or difficulties in its working they would like to have adjusted. No; it was on the mere proposition that the working of the administration in England was converting us into subjects, not of the Crown, with the rights of Englishmen, but subjects of the despotic power of Parliament and the king of England. Now, how did we go to work, and what was the result of that Revolution? In the first place, did we ever become thirteen nations? Was Massachusetts a nation? Was South Carolina a nation? Did either of them ever declare its independence, or ever engage in a war, by itself and of itself, against England, to accomplish its independence? No, never; the first and preliminary step before independence was union. The circumstances of the Colonies, we may well believe, made it absolutely necessary that they should settle beforehand the question of whether they could combine themselves into one effectual, national force, to contend with England, before they undertook to fight her. It was pretty plain that Massachusetts could not conquer England, or its own independence, and that Virginia could not do so, and that the New England States alone could not do it, and that the Southern States alone could not do it. It was quite plain that New York, Pennsylvania and New Jersey, alone, could not do it; and, therefore, in the very womb, as it were, and preceding our birth as a nation, we were articulated together into the frame of one people, one community, one nationality. Now, however imperfectly, and however clumsily, and however unsuitably we were first connected, and however necessary and serious the changes which substituted for that inchoate shape of nationality the complete, firm, noble and perfect structure which made us one people as the United States of America, yet you will find, in all the documents, and in all the history, that there was a United States of America, in some form represented, before there was anything like a separation, on the part of any of the Colonies, from the parent country, except in these discontents, and these efforts at an assertion of our liberties, which had a local origin.

The great part of the argument of my learned friend rests upon the fact that these States were nations, each one of them, once upon a time; and that, having made themselves this Government, they have remained nations, in it and under it, ever since, subject only to the Confederate authority, in the terms of a certain instrument called a compact, and with the reserved right of nationality ready, at all times, to spring forth and manifest itself in complete separation of any one of the States from the rest. And I find, strangely enough, in the argument as well of the promoters of these political movements at the South as in the voice of my learned friends who have commented on this subject, a reference to the early diplomacy of the United States, as indicative of the fact that they were separate and independent communities—regarded as such by the contracting Powers into connection with whom they were brought by their treaties and conventions, and, more particularly, in the definitive treaty whereby their independence was recognized by Great Britain. Now, if the Court please, both upon the point (if it can be called a point, connected with your judicial inquiry) that these Colonies were formed into a Union before they secured their national independence, and that there was no moment of time wherein they were not included, either as united Colonies, under the parental protection of Great Britain, or as united in a struggling Provisional Government, or in the perfect Government of the Confederation, and, finally, under the present Constitution—I apprehend there can be no doubt that our diplomacy, commencing, in 1778, with the Treaty of Alliance with France, contains the same enumeration of States that is so much relied upon by the reasoners for independent nationality on the part of all the States. In the preamble to that Treaty, found at page 6 of the 8th volume of the Statutes at Large, the language was: "The Most Christian King and the United States of North America, to wit, New Hampshire, &c., having this day concluded," &c. The United States are here treated as a strictly single power, with whom his Most Christian Majesty comes into league; and the credentials or ratifications pursued the same form. The Treaty of Commerce with the same nation, made at the same time, follows the same idea; and the Treaty with the Netherlands, made in 1782, contains the same enumeration of the States, and speaks of each of the contracting parties as being "countries." The Convention with the Netherlands, on page 50 of the same volume, and which was a part of the same diplomatic arrangement, and made at the same time, speaks, in Article 1, of the vessels of the "two nations." Now, the only argument of my learned friends, on the two treaties with Great Britain, of November, 1782, and September, 1783, is, that they are an agreement between England and the thirteen nations; and it is founded upon the fact, that the United States of America, after being described as such, are enumerated under a "viz." as being so many provinces. Now, the 5th and 6th articles of that Convention of 1782 with the Netherlands speak of "the vessels of war and privateers of one and of the other of the two nations." So that, pending the Revolution, we certainly, in the only acts of nationality that were possible for a contending power, set ourselves forth as only one nation, and were so recognized. And the same views are derivable from the language of the Provisional Treaty with Great Britain of November, 1782, and of the Definitive Treaty of Peace with Great Britain of September, 1783, which Treaties are to be found at pages 54 and 80 of the same 8th volume. The Preamble to the latter Treaty recites: