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

He decides the question, and what more have we then? He is, by his office, commander-in-chief of the military and naval forces of the State; for the State can have both military and naval forces. It has its militia at all times. It is authorized expressly by the Constitution to keep ships of war, in time of war. There is, certainly, a prohibition in the Constitution of the United States against a State granting letters of marque; but that is a prohibition against its granting letters of marque in a war against foreign States; it has no reference whatever to any possible collision that may take place between the State and the Federal Government. And that rule is laid down by Grotius and Vattel both; for they both maintain and assert the right of the people, under every limited Constitution, in the case of a palpable infringement of power by the chief of the State, forcibly to resist it; and Grotius puts the case of a State with a limited Constitution, having both a King and a Senate, in which the power of declaring war was in express terms reserved to the King alone, and he says that by no means prevents the Senate, in case of an infringement of the Constitution by the King, from declaring and making war against him; because the phrase is to be understood of a war with foreign nations and not of an internal war. I say, therefore, that in a case of that kind—a palpable infringement by the General Government of the Constitution—the Governor of the State, in the first place, has the only means and the only right of deciding whether that infringement has taken place.

In each State the Governor is commander-in-chief of the naval and military forces; he has a right to give military orders to citizens; he has a right to order them to muster in the service of the State; and if they disobey him they can be punished the same as they can in any civilized country.

And more than that: suppose a case arises of that kind, in which the General and State Governments come into forcible collision, and suppose a citizen should take arms against the State; there is the law of the State which punishes for treason every citizen of the State who adheres to its enemies, giving them aid and comfort; and, under the theory of the prosecution, if he adheres to the State, and the Federal Government should happen to be the victor in the contest, there is the law of the Federal Government which punishes him for adhering to the State. So that the poor citizen of the State, if this theory be correct, is to be punished and hanged, whichever party may succeed in the unhappy contest.

But, gentlemen, the law perpetrates no such absurdity as that; for the very moment the doctrine for which I contend is admitted, the citizen, in a conflict like that between the Federal Government and the State, is not liable to be considered a traitor or punished as such, let him adhere to which of the two parties he pleases, in good faith. The reason of which is clear. He is the subject of two sovereigns,—the one the Federal Government and the other the State in which he lives. Either of these sovereigns has jurisdiction to decide for him the question whether the other is committing a usurpation of power or not; and it inevitably follows that if these two sovereigns decide that question differently, the citizen is not to be punished as a traitor, let him adhere to which he pleases in good faith. And I submit to you, gentlemen, that is the only doctrine, under the Constitution of the United States, and under our complex system of government, which can be admitted for a moment. I will give you a confirmation of that. I have already stated to you the clause of the Constitution of the United States which defines the punishment of the crime of treason against the United States,—and by looking at the reports of the debates in the Convention which adopted the Constitution, you will find that the clause, as originally reported to the Convention, read: "Treason against the United States shall consist in levying war against the United States or any of them, or in adhering to the enemies of the United States, or any of them, giving them aid and comfort,"—and the clause, as reported, was amended by striking out the words, "or any of them," and making it read: "Treason against the United States shall consist in levying war against them or in adhering to their enemies," &c. Therefore, under our Constitution, treason against the United States must be levying war against all the States of this Confederacy. It does not mean the Government. The amendment which I have spoken of shows it must be an act of hostility which is, in judgment of law, an act of hostility against all the States of the Union. Therefore I say that a citizen who owes allegiance to a State of the Union, when he acts in good faith, under the jurisdiction of one of the sovereigns to whom he owes allegiance—to wit, the State—does not levy war against the United States. He levies war against the Government which claims to represent him, in that case,—his other sovereign, to whom he equally owes allegiance, deciding that that Government is committing an usurpation of power; and he is acting under the authority of those in whom he rightly and justly reposes faith,—to whom has been delegated the right to decide; and however the Governor of the State may be punished by impeachment, if he has acted in bad faith, the citizen cannot be subject to the halter for doing that which he was under a legal obligation to do.

Then, gentlemen, to show the application of the rule for which I have been contending—and with the necessary details of which I fear I must have wearied you—to the case in hand: The moment it is conceded that any possible case can arise in which a State would have the right to resist by force the General Government,—the moment it is conceded that it is the Governor of the State, who, co-ordinately with the President of the Union, has a right to decide that question for himself,—then I say we have nothing whatever to do with the question, whether, under the unhappy circumstances which have arisen, the Governor of the State, or of any of the States, decided right or wrong. We know they did claim that the General Government was usurping power which did not belong to it. In fact, I think we have the confession of the President of the United States that, with an honest heart and with honest purposes, which I believe have actuated him all through, he has, as he says, for the preservation of the Union, the hope of humanity in all ages, and the greatest Government, as I shall ever believe, that man has ever created,—that he has been compelled to, and did, usurp power which did not belong to him. President Buchanan, before and after this controversy arose, asserted plainly and unequivocally that he had searched the Constitution and laws of the United States for the purpose of finding any color of authority for the invasion of a State by military force, or the using of force against it; and that he could find no such warrant in the Constitution. He was right. There was nothing of the kind in the Constitution; but he failed to see (in my humble judgment) that the law of nature gave him the power to enforce the legitimate authority of the Union, as it gave to the State government the power to repel usurpation. President Lincoln, when he assumed the reins of power, admitted that there was a doubt on that subject. He declared at first that it was not expedient to exercise that power, and that he would not exercise it. He changed his mind afterwards, and did exercise it; and on the 13th of April he issued a proclamation calling for 75,000 volunteers, the first duty assigned to whom, as he stated in his proclamation, would be to invade the Southern States, for the purpose of recapturing the forts and retaking the places that had passed out of the jurisdiction of the United States. And in a subsequent proclamation he declared that he had granted to the military commanders of these forces, without the sanction of an Act of Congress, authority to suspend the writ of habeas corpus, within certain limits and in certain cases, in those States. And he makes the frank admission that, in his own belief at least, some of the powers which he had found himself compelled to exercise were not warranted in the Constitution of the United States.

Now these acts of hostility complained of in the indictment took place long subsequent to that. This proclamation was in the month of April. These commissions were not issued, and the Act of the Confederate States to authorize their issue was not passed, until some time afterwards—after they had learned of this proclamation; and this commission was not granted until the month of June subsequent.

I say, therefore, a case was presented for the exercise of the jurisdiction of the Government of the United States, to decide whether it was exercising its rightful powers, under the Constitution, and for the Governor of the State to decide, for the State, that same question; and that an unhappy case of collision, ever to be regretted and deplored, had arisen between the Government of the United States and the Government of those States; and I say that the citizens of any one of those States owing the duty of allegiance to two sovereigns—to the government of their State and to the Government of the United States—had a right honestly to make their election to which of the two sovereigns they would adhere, and are not to be punished as traitors or pirates if they have decided not wisely, nor as we would have done in the section of the country where we live.

I am sorry, gentlemen, to detain you on the question; but it is a most important one—one that enters into the very marrow of this case; and we do claim that the issuing of this commission, whether on the footing of its having been issued by a de facto Government, or by authority from the State, considering it as remaining under the Constitution, was a commission that forms a protection to the defendants, and one which is not within the purview of the Act of 1790; because it was not, in the language of that section, a commission taken by a citizen of the United States to cruise against other citizens of the United States, either from a foreign Prince or State, or a person merely.

You will observe that if the claim of the Confederate States, that the ordinances of secession are valid, be correct, then it is true that they are foreign States; but their citizens have ceased to be citizens of the United States, and are therefore not within the purview of the ninth section of the Act of 1700.

If, on the contrary, the claim on the part of the Government of the United States, that these ordinances are absolutely void, be correct, then the States are still States of this Union, and the commission, being issued by their authority, is not a commission issued by a foreign State, and therefore the case is not within the purview of the ninth section of the Act of 1790.

I must allude very briefly, before closing, to another ground on which this defence will be placed: and that is, that conceding (if we were obliged to concede) that this was not an authority, such as contemplated, to give protection to cruisers as privateers, there was a state of war existing in which hostile forces were arrayed against each other in this country, and which made this capture of the Joseph a belligerent act, even obliterating State lines altogether, for the purpose of the argument.

But before I pass from what I have said to you on the subject of the claim of authority of the States of this Union to come into collision with the General Government, allow me to call attention to the forcible precedents shown in the history of our own glorious Revolution, when the thirteen Colonies, numbering little more than three millions, instead of thirty, separated from Great Britain. At the time when that occurred, in 1776, this very statute of 1790 was in force in England, as I have shown you. It was passed in England, if I recollect right, in 1694. The position of the thirteen Colonies towards the mother country, at that time, was precisely the position that those States which call themselves the "Confederate States" now occupy towards the General Government of the Union.

Appealing to God, as the Supreme Ruler of the Universe, for the rectitude of their intentions, and acknowledging their accountability to no other power, they had claimed to resist the usurpation of the King of Great Britain. They had not even claimed, at the time of which I speak—for I speak of the end of the year 1775 and the beginning of 1776—to declare their independence and to throw off their subjection to Great Britain. At that very early day there were very few in these Colonies that contemplated a thing of that kind, or whose minds could be brought to contemplate such an act. They had risen in resistance against what they claimed to be arbitrary power; they claimed that the King of Great Britain had encroached upon their rights and privileges in a manner not warranted by the Constitution of Great Britain. They did not claim to secede from Great Britain; they did not claim to make themselves independent of subjection to her rule; they claimed to stop the course of usurpation which, they held, had been commenced; and they proposed to return under subjection to the British crown the very moment that an accommodation should be made, yielding allegiance to the King of Great Britain as in all time before. And now, gentlemen, on the 23d March, 1776, on a Saturday, the little Continental Congress was sitting in the chamber, of which you have often seen the picture, composed of the great, wise, and good men, who sat there in deliberation over the most momentous event that has ever occurred in modern times, if we except that now agitating and convulsing our beloved country. I never heard one of those men stigmatized as a pirate. I never heard one of those men calumniated as an enemy of the human race. I have often heard them called the greatest, wisest, and best men that ever lived on the face of God's earth. I will read to you what occurred on the 23d March, 1776;—they being subjects of the King of Great Britain, and having never claimed to throw off allegiance to him, but claiming that he was usurping power which did not belong to him, and that they, as representatives of the thirteen Colonies of America, were the judges of that question and those facts, as we claim that the States are now the judges of this question and these facts. They adopted the following preamble and resolutions:

"The Congress resumed the consideration of the Declaration, which was agreed to, as follows:

"Whereas, The petitions of the United Colonies to the King for the redress of great and manifold grievances have not only been rejected, but treated with scorn and contempt, and the opposition to designs evidently formed to reduce them to a state of servile subjection, and their necessary defence against hostile forces actually employed to subdue them, declared rebellion;

"And Whereas, An unjust war hath been commenced against them which the commanders of the British fleets and armies have prosecuted and still continue to prosecute with their utmost vigor, in a cruel manner, wasting, spoiling, and destroying the country, burning houses and defenceless towns, and exposing the helpless inhabitants to every misery, from the inclemency of the winter, and not only urging savages to invade the country, but instigating negroes to murder their masters;

"And Whereas, The Parliament of Great Britain hath lately passed an Act, affirming these Colonies to be in open rebellion; forbidding all trade and commerce with the inhabitants thereof until they shall accept pardons, and submit to despotic rule; declaring their property wherever found upon the water liable to seizure and confiscation, and enacting that what had been done there by virtue of the royal authority were just and lawful acts, and shall be so deemed; from all which it is manifest that the iniquitous schemes concerted to deprive them of the liberty they have a right to by the laws of nature, and the English Constitution, will be pertinaciously pursued. It being, therefore, necessary to provide for their defence and security, and justifiable to make reprisals upon their enemies and otherwise to annoy them according to the laws and usages of nations; the Congress, trusting that such of their friends in Great Britain (of whom it is confessed there are many entitled to applause and gratitude for their patriotism and benevolence, and in whose favor a discrimination of property cannot be made) as shall suffer by captures will impute it to the authors of our common calamities, Do Declare and Resolve as follows, to wit:

"Resolved, That the Inhabitants of these Colonies be permitted to fit out armed vessels to cruise on the enemies of these United Colonies.

"Resolved, That all ships and other vessels, their tackle, apparel and furniture, and all goods, wares and merchandize belonging to any inhabitant of Great Britain, taken on the high seas, or between high and low water-mark, by any armed vessel fitted out by any private person or persons, and to whom commissions shall be granted, and being libelled and prosecuted in any Court erected for the trial of maritime affairs in any of these Colonies, shall be deemed and adjudged to be lawful prize, and after deducting and paying the wages which the seamen and mariners on board of such captures as are merchant ships and vessels shall be entitled to, according to the terms of their contracts, until the time of their adjudication, shall be condemned to and for the use of the owner or owners, and the officers, marines, and mariners of such armed vessels, according to such rules and proportions as they shall agree on. Provided, always, that this resolution shall not extend to any vessel bringing settlers, arms, ammunition or warlike stores to and for the use of these Colonies, or any of the inhabitants thereof who are friends to the American cause, or to such warlike stores, or to the effects of such settlers.

"Resolved, That all ships or vessels, with their tackle, apparel and furniture, goods, wares and merchandize, belonging to any inhabitant of Great Britain, as aforesaid, which shall be taken by any of the vessels of war of these United Colonies, shall be deemed forfeited; one-third, after deducting and paying the wages of seamen and mariners, as aforesaid, to the officers and men on board, and two-thirds to the use of the United Colonies.

"Resolved, That all ships or vessels, with their tackle, apparel and goods, wares and merchandizes, belonging to any inhabitant of Great Britain, as aforesaid, which shall be taken by any vessel of war fitted out by and at the expense of any of the United Colonies, shall be deemed forfeited and divided, after deducting and paying the wages of seamen and mariners, as aforesaid, in such manner and proportions as the Assembly or Convention of such Colony shall direct."

There are two or three other resolutions, which it is not necessary for me to trouble you with the reading of. You will bear in mind that there were no two sovereignties over these United Colonies at that time. They had no sovereignty or independence whatever; they were mere Provinces of the British Crown; the Governors derived their appointment from the Crown itself, or from the proprietors of the Colonies; and these wise and good men, on the 23d March, 1776, claimed that the King of Great Britain had usurped powers which did not belong to him under the Constitution of Great Britain, and that they had the right to resist his encroachments; and they authorized letters of marque to cruise against the ships and property of their fellow subjects of Great Britain, because of the state of things which arose from a collision between them and the Crown. They were enemies, and although they regretted that they had to injure in their property men who were their friends, they trusted they would excuse them, owing to the inevitable necessity that existed and the impossibility of discriminating between friends and foes in the case of inhabitants of Great Britain.

And now, gentlemen, to trouble you with one more brief reference, let me show you what took place before that Act of the Provincial Congress was passed in the Province of Massachusetts. They had already passed a Provincial Act of the General Assembly, couched in similar language, authorizing cruisers and privateers against the enemies of that Province; and you will see what occurred. I read again from Cooper's Naval History, 1st Vol., p. 42. He is speaking of the year 1775:

"The first nautical enterprise that succeeded the battle of Lexington was one purely of private adventure. The intelligence of this conflict was brought to Machias, in Maine, on Saturday, the 9th of May, 1775. An armed schooner, in the service of the Crown, called the Margaretta, was lying in port, with two sloops under her convoy, that were loading with lumber on behalf of the King's Government.

"The bearers of the news were enjoined to be silent,—a plan to capture the Margaretta having been immediately projected among some of the more spirited of the inhabitants. The next day being Sunday, it was hoped that the officers of the schooner might be seized while in church; but the scheme failed, in consequence of the precipitation of some engaged. Captain Moore, who commanded the Margaretta, saw the assailants, and, with his officers, escaped through the windows of the church to the shore, where they were protected by the guns of their vessel. The alarm was now taken; springs were got on the Margaretta's cables, and a few harmless shot were fired over the town by way of intimidation. After a little delay, however, the schooner dropped down below the town to a distance exceeding a league. Here she was followed, summoned to surrender, and fired on from a high bank, which her own shot could not reach. The Margaretta again weighed, and running into the bay, at the confluence of the two rivers, anchored. The following morning, which was Monday, the 11th of May, four young men took possession of one of the lumber sloops, and, bringing her alongside of a wharf, they gave three cheers as a signal for volunteers. On explaining that their intentions were to make an attack on the Margaretta, a party of about thirty-five athletic men was soon collected. Arming themselves with firearms, pitchforks, and axes, and throwing a small stock of provisions into the sloop, these spirited freemen made sail on their craft, with a light breeze at northwest. When the Margaretta observed the approach of the sloop, she weighed and crowded sail to avoid a conflict that was every way undesirable,—her commander not yet being apprised of all the facts that had occurred near Boston. In jibing, the schooner carried away her main-boom, but, continuing to stand on, she ran into Holmes' Bay, and took a spar out of a vessel that was lying there. While these repairs were making, the sloop hove in sight again, and the Margaretta stood out to sea, in the hope of avoiding her. The breeze freshened, and, with the wind on the quarter, the sloop proved to be the better sailer. So anxious was the Margaretta to avoid a collision, that Captain Moore now cut away his boats; but, finding this ineffectual, and that his assailants were fast closing with him, he opened a fire—the schooner having an armament of four light guns and fourteen swivels. A man was killed on board the sloop, which immediately returned the fire with a wall-piece. This discharge killed the man at the Margaretta's helm, and cleared her quarter-deck. The schooner broached to, when the sloop gave a general discharge. Almost at the same instant the two vessels came foul of each other. A short conflict now took place with musketry,—Captain Moore throwing hand-grenades, with considerable effect, in person. This officer was immediately afterwards shot down, however, when the people of the sloop boarded and took possession of their prize. The loss of life in this affair was not very great, though twenty men, on both sides, are said to have been killed and wounded. The force of the Margaretta, even in men, was much the most considerable; though the crew of no regular cruiser can ever equal, in spirit and energy, a body of volunteers assembled on an occasion like this. There was, originally, no commander in the sloop; but, previously to engaging the schooner, Jeremiah O'Brien was selected for that station. This affair was the Lexington of the sea,—for, like that celebrated land conflict, it was a rising of the people against a regular force; was characterized by a long chase, a bloody struggle, and a triumph. It was also the first blow struck on the water, after the war of the American Revolution had actually commenced."