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

Let me ask your attention to this proposition of the Southern States, and this catalogue of the learned counsel. As it is only the interest of slavery, social and political (for it is an interest, lawfully existing), that leads to the destruction of our Government and of their Government, let us see what there is in the actual circumstances of this interest, as being able, under the forms of our Constitution, to look out for itself, as well, at least, as any other interest in the country, that can justify them in finding an example or a precedent in the appeal of our fathers to arms to assert their rights by the strong hand, because in the Government of England they had no representation. Did our fathers say that, because they had not a majority in the English Parliament, they had a right to rebel? No! They said they had not a share or vote in the Parliament. That was their proposition.

I now invite you to consider this fundamental view of the right and power of Government, and the right and freedom of the people,—to wit, that every citizen is entitled to be counted and considered as good as every other citizen,—as a natural and abstract right—as the basis of our Government, however other arrangements may have adjusted or regulated that simple and abstract right. Then, let us see whether the arrangement of the Federal Government, in departing from that natural right of one man to be as good as another, and to be counted equal in the representation of his Government, has operated to the prejudice of the interest of slavery. We have not heard anything in this country of any other interest for many a long year,—much to my disgust and discontent. There are other interests,—manufacturing interests, agricultural interests, commercial interests, all sorts of interests,—some of them discordant, if you please. Let us see whether this interest of slavery has a fair chance to be heard, and enjoys its fair share of political power under our Government, or whether, from a denial to it of its fair share, it has some pretext for appealing to force. Why, gentlemen, take the fifteen Slave States, which, under the census of 1850, had six millions of white people—that is, of citizens—and, under the census of 1860, about eight millions, and compare them with the white people of the State of New York, which, under the census of 1850, had three millions, and, under the census of 1860, something like four millions.

Now, here we are,—they as good as we, and we as good as they,—we having our interests, and opinions, and feelings—they their opinions, interests, and feelings,—and let us see how the arrangement of representation, in every part of our Government, is distributed between these interests. Why, with a population just double that of the State of New York, the interest of slavery has thirty Senators to vote and to speak for it, and the people of New York have two Senators to vote and to speak for them. In the House of Representatives these same Slave States have ninety Representatives to speak and to vote for them; and the people of the State of New York have thirty-three to vote and to speak for them. And, in the Electoral College, which raises to the chief magistracy the citizen who receives the constitutional vote, these same States have one hundred and twenty electoral votes, and the State of New York has thirty-five. Why, the three coterminous States—New York, Pennsylvania, and Ohio—have, under either census, as great or a greater population than the fifteen Slave States, and they have but six Senators, against the Slave States' thirty.

Do I mention this in complaint? Not in the least. I only mention it to show you that the vote and the voice of this interest has not been defrauded in the artificial distribution of Federal power. And, if I may be allowed to refer to the other august department of our Federal Government, the Supreme Court of the United States, in which the Presiding Justice has his seat as one of the members of that Court, you will see how the vast population, the vast interests of business, commerce, and what not, that reside in the Free States, as compared with the lesser population, the lesser business, and the lesser demand for the authority or intervention of the judiciary in the Slave States, have been represented for years, by the distribution of the nine Judges of that Court, so that the eighteen millions of white people who compose the population of the Free States have been represented (not in any political sense) by four of these Justices; and the rest of the country, the fifteen Slave States, with their population of six or eight millions, have been represented by five. Now, of this I do not complain. It is law—it is government; and no injustice has been done to the Constitution, nor has it been violated in this arrangement. But, has there been any fraud upon the interest of slavery, in the favor the Federal Government has shown in the marking out of the Judicial Districts, and in the apportionment of the Judges to the different regions of the country, and to the population of those regions? If you look at it as regards the business in the different Circuits, the learned Justice who now presides here, and who holds his place for the Second Circuit, including our State, disposes annually, here and in the other Courts, of more business than, I may perhaps say, all the Circuits that are made up from the Slave States. And, if you look at it as regards the population, there was one Circuit—that which was represented by the learned Mr. Justice McLean, lately deceased—which contained within itself five millions of white, free population; while one other Circuit, represented by another learned Justice, lately deceased—a Circuit composed of Mississippi and Arkansas—contained only 450,000, at the time of the completion of the census of 1850. Who complains of this? Do we? Never. But, when it is said to you that there is a parallelism between the right of revolt, because of lack of representation, in the case of our people and the Parliament of England, and the case of these people and the United States, or any of the forms of its administration of power, remember these things. I produce this in the simple duty of forensic reply to the causes put forward as a justification of this revolt—that is to say that, the Government oppressing them, or the Government closed against them, and they excluded from it, they had a right to resort to the revolution of force.

You, therefore, must adopt the proposition of South Carolina, that, when any interest ceases to be the majority in a Government, it has a right to secede. How long would such a Government last? Why, there never was any interest in this country which imagined that it had a majority. Did the tariff interest have a majority? Did the grain interest have a majority? Did the commercial interest have a majority? Did the States of the West have a majority? Does California gold represent itself by a majority? Why, the very safety of such a Government as this is, that no interest shall or can be a majority; but that the concurring, consenting wisdom drawn out of these conflicting interests shall work out a system of law which will conduce to the general interest.

Now, that I have not done my learned friend, Mr. Brady, any injustice in presenting the catalogue of grievances (not in his own view, but in the view of those who have led in this rebellion), let us see what they are:

"The claim to abolish slavery." Is there any statute of the United States anywhere that has abolished it? Has any Act been introduced into Congress to abolish it? Has the measure had a vote?

"Stoppage of the inter-state slave-trade." I may say the same thing of that.

"No more slavery in the Territories." Where is the Act of Congress, where is the movement of the Federal Government, where the decision of the Supreme Court, that holds that slavery cannot go into a territory? Why, so far as acts go, everything has gone in the way of recognizing the confirmation of the right—the repeal of the Missouri Compromise by Congress, and the decision of the Federal Court, if it go to that extent, as is claimed, in the case of Dred Scott.

"Nullification of the fugitive-slave law." Who passed the fugitive-slave law? Congress. Who have enforced it? The Federal power, by arms, in the city of Boston. Who have enjoined its observation, to Grand Juries and to Juries? The Justices of the Supreme Court of the United States, in their Circuits. Who have held it to be constitutional? The Supreme Court of the United States, and the subordinate Courts of the United States, and every State Court that has passed upon the subject, except it be the State Court of the State of Wisconsin, if I am correctly advised.