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

In October, 1774, the King, in his Message to Parliament, said that a most daring spirit of resistance and disobedience to the laws existed in Massachusetts, and was countenanced and encouraged in others of his Colonies.

Now, I want you to keep your minds fairly applied to the point, on which the Court will declare itself, as to whether I am right in saying, that the day when that Message was sent to Parliament the Colonies occupied towards the old Government a position similar to that of the Confederate States in their hour of revolt to the United States. But we will possibly see that the Confederate States occupy a stronger position.

In the course of the discussion which ensued upon the Message, the famous Wilkes remarked: "Rebellion, indeed, appears on the back of a flying enemy, but revolution flames on the breastplate of the victorious warrior."

If an illegal assemblage set itself up in opposition to the municipal Government, it is a mere insurrection, though ordinary officers of the law be incapable of quelling it, and the military power has to be called out. That is one thing. But when a whole State places itself in an attitude of hostility to the other States of a Confederacy, assumes a distinct existence, and has the power to maintain independence, though only for a time, that is quite a different affair.

We remember how beautifully expressed is that passage of the Irish poet, so familiar to all of us, and especially to those who, like myself, coming from Irish ancestry, know so well what is the name and history of rebellion:

"Rebellion—foul, dishonoring word,Whose wrongful blight so oft hath stainedThe holiest cause that tongue or swordOf mortal ever lost or gained!How many a spirit born to blessHas sunk beneath thy withering bane,Whom but a day's—an hour's success,Had wafted to eternal fame!"

A remarkable instance, illustrating the sentiment of this passage, is found in the history of that brave man, emerging from obscurity, stepping suddenly forth from the common ranks of men, whose name is so generally mentioned with reverence and love, and who so lately freed Naples from the rule of the tyrant. This brave patriot was driven from his native land, after a heroic struggle in Rome. History has recorded how he was followed in this exile by a devoted wife, who perished because she would not desert her husband; and how he came to this country, where he established himself in business until such time as he saw a speck of hope glimmer on the horizon over his lovely and beloved native land. Then he went back almost alone. Red-shirted, like a common toiling man, he gathered round him a few trusty followers who had unlimited confidence in him as a leader, and accomplished the revolution which dethroned the son of Bomba, and placed Victor Emanuel in his stead. You already know that I speak of Garibaldi. And yet, Garibaldi, it seems, should have been denounced as a pirate, had the sea been the theatre of his failure; and a robber, had he been unsuccessful upon land!

What do you think an eminent man said, in the British Parliament, about the outbreak of our Revolution, and the condition of things then existing in America? "Whenever oppression begins, resistance becomes lawful and right." Who said that? The great associate of Chatham and Burke—Lord Camden. At that time Franklin was in Europe, seeking to obtain a hearing before a committee of Parliament in respect to the grievances of the American people. It was refused.

The Lords and Commons, in an address to the King, declared in express terms, that a "rebellion actually existed in massachusetts;" and yet, in view of all that, no legal prosecution of any rebel ever followed. So matters continued till the war effectively began, Washington having been appointed Commander-in-chief. Then some Americans were taken by the British and detained as prisoners. Of this Washington complained to General Gage, then in command of the British army. Gage returned answer that he had treated the prisoners only too kindly, seeing that they were rebels, and that "their lives, by the law of the land, were destined for the cord." Yet not one of them so perished.

In view of these things, even so far as I have now advanced; in view of the sacrifices of the Southern Colonies in the Revolution; in view of the great struggle for independence, and the great doctrine laid down, that, whenever oppression begins, resistance becomes lawful and right,—is it possible to forget the history of the past, and the great principles which gleamed through the darkness and the perils of our early history? Are we to assert that the Constitution establishing our Government is perfect in all its parts, and stands upon a corner stone equivalent to what the globe itself might be supposed to rest on, if we did not know it was ever wheeling through space? Is all the history of our past, its triumphs and reverses, and the glorious consummation which crowned the efforts of the people, all alike to be thrown aside now, upon the belief that we have established a Government so perfect, and a Union so complete, that no portion of the States can ever, under any circumstances, secede, or revolt, or dispute the authority of the others, without danger of being treated as pirates and robbers? The Declaration of Independence has never been repudiated, I believe, and I suppose I have a right to refer to it as containing the political creed of the American people. I do not know how many people in the old world agree with it, and a most eminent lawyer of our own country characterized the maxims stated at its commencement as "glittering generalities." But I believe the American people have never withdrawn their approbation from the principles and doctrines it declares. Among those we find the self-evident truth, that man has an inalienable right to life, liberty, and the pursuit of happiness; that it is to secure these rights that Governments are instituted among men, deriving their just powers from the consent of the governed; and that whenever any form of Government becomes destructive of those ends, it is right and patriotic to alter and abolish it, and to institute a new Government, laying its foundations on such principles, and conferring power in such a form, as to them may seem most likely to secure their safety and happiness. Is this a mockery? Is this a falsehood? Have these ideas been just put forward for the first time? There has been a dispute among men as to who should be justly denominated the author of this document. The debate may be interesting to the historian; but these principles, though they are embodied in the Constitution, were not created by it. They have lived in the hearts of man since man first trod the earth. I can imagine the time, too, when Egypt was in her early glory, and in fancy see one of the poor, miserable wretches, deprived of any right of humanity, harnessed, like a brute beast, to the immense stone about being erected in honor of some monarch, whose very name was destined to perish. I can imagine the degraded slave pausing in his loathsome toil to delight over the idea that there might come a time when the meanest of men would enjoy natural rights, under a Government of the multitude formed to secure them.

Now, what says Blackstone (1st vol., 212), the great commentator on the law of England, when speaking of the revolution which dethroned James II.: "Whenever a question arises between the society at large and any magistrate originally vested with powers originally delegated by that society, it must be decided by the voice of the society itself. There is not upon earth any other tribunal to resort to."

Prior to the 23d March, 1776, the legislature of Massachusetts authorized the issuing of letters of marque to privateers upon the ocean, and when my learned friend, Mr. Lord, in his remarks so clear and convincing, called attention to the lawfulness of privateering, my brother Evarts attempted to qualify it by designating the granting of letters of marque as reluctantly tolerated, and as if no such practice as despoiling commerce should be permitted even in a state of war. I will not again read from Mr. Marcy's letter, but I will say here that the position he took gratified the heart of the whole American people. He said in substance, If you, England and France, have the right to despoil commerce with armed national vessels we have a right to adopt such means of protection and retaliation as we possess. We do not propose, if you make war upon us, or we find it necessary to make war upon you, that we, with a poor, miserable fleet, shall not be at liberty to send out privateers, but yield to you, who may come with your steel-clad vessels and powerful armament to practice upon us any amount of devastation. No. We never had a navy strong enough to place us in such a position as that with regard to foreign powers. Look at it. Do you think that France or England has any feeling of friendship towards this country as a nation? I do not speak of the people of these countries, but of the cabinets and governments. No. Nations are selfish. Nearly all the laws of nations are founded on interest. Nations conduct their political affairs on that basis. They never receive laws from one another—not even against crime. And when you want to obtain back from another country a man who has committed depredations against society, you do it only by virtue of a treaty, and from no love or affection to the country demanding it. And if this war continues much longer, I, for one, entertain the most profound apprehension that both these powers, France and England, will combine to break the blockade if they do not enter upon more aggressive measures. If they for a moment find it their interest to do so, they will, and no power, moral or physical, can prevent them. I say, then, the right of revolution is a right to be exercised, not according to what the Government revolted against may think, but according to the necessities or the belief of the people revolting. If you belonged to a State which was in any way deprived of its rights, the moment that oppression began resistance became a duty. A slave does not ask his master when he is to have his freedom, but he strikes for it at the proper opportunity. A man threatened with death at the hands of another, does not stop to ask whether he has a right to slay his assailant in self-defence. If self-preservation is the first law of individuals, so also is it of masses and of nations. Therefore, when the American Colonies made up their minds to achieve independence, whether their reasons were sufficient or not, they did not consent to have the question decided by Great Britain, but at once decided it for themselves. Very early in our history, in 1778, France recognized the American Government. England, as you know, complained, and the French Government sent back an answer saying, Yes, we have formed a treaty with this new Government; we have recognized it, and you have no right to complain; for you remember, England, said France, that during the reign of Elizabeth, when the Netherlands revolted against Spain, you, in the first place, negotiated secret treaties with the revolutionists, and then recognized them; but, when Spain complained of this, you said to Spain—The reasons which justify the Netherlands in their revolt entitle them to our support. Was success necessary? Was the doctrine of our opponents correct, that, though people may be in absolute revolt against the parent Government, with an army in the field, and in exclusive possession of the territories they occupy, yet they have no right to be recognized by the law of nations, and are not entitled to the humanities that accompany the conditions of a war between foreign powers? Is success necessary? Why was it not necessary in the case of the Colonies when recognized by France? Why not necessary in the case of the Netherlands when recognized by England? Never has been put forward such a doctrine for adjudication since the days of Ogden and Smith, tried in this city in 1806. That was a period when we were in profound peace with all the world. Our new country was proceeding on the march towards that greatness which every one hoped would be as perpetual as it was progressive. We had invited to our shores not only the oppressed of other lands, but all they could yield us of genius, eloquence, industry and wisdom. Among others who came to assist our progress and adorn our history was that eminent lawyer and patriot—that good and pure man whose monument stands beside St. Paul's Church, on Broadway, and may be considered as pointing its white finger to heaven in appeal against the severe doctrines under which these prisoners are sought to be punished. I refer to Thomas Addis Emmett.

In 1806, two men, Smith and Ogden, were put upon trial, charged with aiding Miranda and the people of Caraccas to effect a revolt against the Government of Spain, which, it was said, was at peace with the United States. They were indicted under a statute of the United States; and if it had turned out on the trial that the United States was certainly in a condition of peace with Spain, they might have been convicted. However, that was a question of fact left to the Jury. The learned Judges, pure and able men, entertained views very hostile to the notions of the accused, and were quite as decided in those views as his honor Judge Grier in the summary disposition he made of the so-called pirates in Philadelphia. The trial came on, and, with the names of the Jurors on that trial, there are preserved to us the names of Counsel, whose career is part of history. Among them were Nathan Sanford, Pierpoint Edwards, Washington Morton, Cadwallader D. Colden, Josiah Ogden Hoffman, Richard Harrison, and Mr. Emmett, already named. Well, there was an effort made to disparage any such enterprise as Miranda's, and any such aid thereto as the accused were charged with giving. The Counsel endeavored to prove that the intent was a question of law, and the fact had nothing to do with it. Colden, in his argument, said, "Gentlemen, all guilt is rooted in the mind, and if not to be found there, does not exist, and whoever will contend against the proposition must fight against human nature, and silence his own conscience."

We do not often find an opportunity, gentlemen, to regale ourselves with anything that emanated from the mind of Mr. Emmett. It is peculiar to the nature of his profession that most of what the advocate says passes away almost at the moment of its utterance. When Mr. Emmett comes to allude to the disfavor sought to be thrown on revolutionary ideas by the eminent counsel for the prosecution, he says:

"In particular, I remember, he termed Miranda a fugitive on the face of the earth, and characterized the object of the expedition as something audacious, novel, and dangerous. It has often struck me, gentlemen, as matter of curious observation, how speedily new nations, like new made nobility and emperors, acquire the cant and jargon of their station.

"Let me exemplify this observation by remarking, that here within the United States, which scarcely thirty years ago were colonies, engaged in a bloody struggle, for the purpose of shaking off their dependence on the parent State, the attempt to free a colony from the oppressive yoke of its mother country is called 'audacious, novel, and dangerous.' It is true, General Miranda's attempt is daring, and, if you will, 'audacious,' but wherefore is it novel and dangerous?

"Because he, a private individual, unaided by the public succor of any state, attempts to liberate South America. Thrasybulus! expeller of the thirty tyrants! Restorer of Athenian freedom! Wherefore are you named with honor in the records of history?

"Because, while a fugitive and an exile, you collected together a band of brave adventurers, who confided in your integrity and talents—because, without the acknowledged assistance of any state or nation, with no commission but what you derived from patriotism, liberty, and justice, you marched with your chosen friends and overthrew the tyranny of Sparta in the land that gave you birth. Nor are Argos and Thebes censured for having afforded you refuge, countenance, and protection. Nor is Ismenias, then at the head of the Theban government, accused of having departed from the duties of his station because he obeyed the impulse of benevolence and compassion towards an oppressed people, and gave that private assistance which he could not publicly avow."

Mr. Emmett, remembering the history of his own name, and the fate of that brother who perished ignominiously on the scaffold for an effort to disenthrall his native land, after that outburst of eloquence, indulged in the following exclamation:

"In whatever country the contest may be carried on, whoever may be the oppressor of the oppressed, may the Almighty Lord of Hosts strengthen the right arms of those who fight for the freedom of their native land! May he guide them in their counsels, assist them in their difficulties, comfort them in their distress, and give them victory in their battles!"

I have thought proper to fortify myself, gentlemen, by reference to this man of pure purpose, finished education, and thorough knowledge of international law, in what I said to you, that the principles which lie at the base of this American revolution, call it by what name you please, have been known and recognized at least as long as the English language has been spoken on the earth, and will be known forever—they furnishing certain rules, the benefit of which, I hope and trust, under the providence of God, after the enlightened remarks of the Court, and through your intervention, may be extended to our clients.

Some people in New England take particular offence at applying these doctrines to the present state of affairs. Has New England ever repudiated them? Has the South ever maintained with more unhesitating declaration, more vigorous resolve, more readiness for the deadly encounter, than the North, these views which I present? Gentlemen, when we look at history, we must take it as we find it. In the war of 1812, the New England States, which had taken offence before at the embargo of 1809, were found, to a very great extent among her people, in an attitude of direct resistance to the war; and they were not afraid to say so. New England said so through her individual citizens. She said so in her public associations. She said so in the form of conventions and solemn resolves. To one of these I will call attention. I do this for no other purpose than to present analogies, principles, and precedents showing what rights belong to those who oppose the Government, or to a state of civil war, or revolution,—that men situated like our clients are not to be treated as pirates and robbers.

I have here a book called "The Union Forever; the Southern Rebellion, and the War for the Union." It is an excellent compilation, prepared and published under the superintendence of James D. Torrey, of this city. I read from it:

"The declaration of war against Great Britain, June, 1812, brought the excitement to its climax. A peace party was formed in New England, pledged to offer all possible resistance to the war.* * * The State Legislatures of Massachusetts, Connecticut, Vermont, &c., passed laws forbidding the use of their jails by the United States for the confinement of prisoners committed by any other than judicial authority, and directing the jailors at the end of thirty days to discharge all British officers, prisoners of war, committed to them. The President, however, applied to other States of the confederacy for the use of their prisons, and thus the difficulty was, in a measure, obviated."

Thus these men set themselves up pretty strongly against the Government. It is an act of which I do not approve, gentlemen; but, suppose I should say that the men who did that were, because their political sentiments differed from mine, fools or idiots, knaves or traitors, what would you think of the taste or justice of such an observation? It is the intolerance, gentlemen, which abides in the heart of almost every man, woman, and child, and the diffusion of it over the land, that has led to our present dreadful condition. It is the endeavor of one party, or of one set, to set itself up in absolute judgment over the opinions, rights, persons, liberties and hearts of other men. It is that notion which Cromwell expressed when he said (I quote from memory alone), "I will interfere with no man's liberty of conscience; but, if you mean by that, solemnizing a mass, that shall not be permitted so long as there is a Parliament in England." I have no doubt that the men who did these acts in New England, which we would call unpatriotic, were actuated by conscientious motives; and I want to claim the same thing for the men who, in the South, are doing what is very offensive to you and very offensive to me, and the more offensive because I honestly and conscientiously believe that it is unnecessary and wanton. I know that I differ with very eminent men who belonged to the same political organization as myself when I make that remark; but it is the result of the best judgment that I can form, after a careful and just review of the circumstances attending the present unfortunate breach in our relation to each other. And certainly, gentlemen, it is in no spirit of anger that we, in this sacred temple of justice, should deal with our erring brethren. We do not mean to pronounce, through the forms of justice, from this jury-box, any anathema or denunciation against our fellow-men, merely for holding erroneous opinions. All the dictates of every enlightened religion on earth are against any such conduct. I take for granted that there is not one of you who has not some friend engaged in the war, on one side or the other. I took up a newspaper the other morning, and discovered that two men, with whom I had been in the most intimate relations of personal friendship, were in the same engagement, each commanding as colonel, and fighting against each other. They were men who had been close friends during a long series of years—men whom you and I might well be proud to know—each of them a graduate of West Point. One of them is said to have been seen to fall from his saddle, and the fate of the other (Colonel Cogswell) is at this moment uncertain. You or I, while we remain loyal to our flag and our country—while we wish and hope for success to our arms in all the conflicts that may occur—may regard with pity men born on the same territory, as well educated, as deftly brought up, as generous and as high minded as ourselves, because we consider them wrong. But, to look upon them as mere outlaws and outcasts, entitled to no protection, sympathy, or courtesy, is something which I am perfectly sure this Jury will never do, and which no community would feel justified or excusable in doing.

Now, let me read more to you from this book:

"On the 18th of October, twelve delegates were elected to confer with delegates from the other New England States. Seven delegates were also appointed by Connecticut, and four by Rhode Island. New Hampshire was represented by two, and Vermont by one. The Convention met at Hartford, Connecticut, on the 15th of December, 1814. After a session of twenty days a report was adopted, which, with a slight stretch of imagination, we may suppose to have originated from a kind of en rapport association with the South Carolina Convention of 1861. We may quote from the report."

Listen to this, gentlemen, and say how much right we have to stigmatize as novel, unprecedented, base, or wicked, the notions on which the Southern revolt is, in a certain degree, founded:

"Whenever it shall appear" (says this Report, the result of twenty days' labor among calm and cool men of New England) "that the causes are radical and permanent, a separation, by equitable arrangement will be preferable to an alliance by constraint among nominal friends, but real enemies, inflamed by mutual hatred and jealousy, and inviting, by intestine divisions, contempt and aggressions from abroad; but a severance of the Union by one or more States against the will of the rest, and especially in time of war, can be justified only by actual necessity."

The report then proceeds to consider the several subjects of complaint, the principal of which is the national power over the militia, claimed by Government. We will not agree, say they, that the general Government shall have authority over the militia; we claim that it shall belong to us. The report goes on to say: