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 this whole series of devices and measures for raising men, this Convention discerns a total disregard for the Constitution, and a disposition to violate its provisions, demanding from the individual States a firm and decided opposition. An iron despotism can impose no harder service upon the citizen than to force him from his home and occupation to wage offensive war, undertaken to gratify the pride or passions of his master. In cases of deliberate, dangerous and palpable infraction of the Constitution, affecting the sovereignty of a State and the liberties of the people, it is not only the right but the duty of such State to interpose its authority for the protection, in the manner best calculated to secure that end. When emergencies occur, which are either beyond the reach of the judicial tribunals or too pressing to admit of the delay incident to their forms, States which have no common umpire must be their own judges and execute their own decisions."

I think that is pretty strong secession doctrine. I do not see that it is possible, in terms, to state it more distinctly. Well, it is true that candid people in that section of the country did not approve these views, but disapproved them; and yet they were the views, clearly and forcibly expressed, of a large number of intelligent and moral people.

Now, this enables me to repeat, with a clearer view derived from history, the proposition that the Confederate States are—under the law of nations, and the principles embodied in the Declaration of Independence, sustained in the Revolution, and recognized by our people—in a condition not distinguishable from that of the Colonies in '76, except that, if there be a difference, the position of the Confederates, in reference to legality, as a judicial question, is more justifiable, as it is certainly more formidable. This word "secession" is, after all, only a word; a word, as Mr. Webster said in one of his great speeches, answering Mr. Calhoun, of fearful import; a word for which he could not according to his views, too strongly express condemnation. But whether you use the word "secession," or the familiar expression, "going out of the Union," or, "not consenting to remain in the Union," the idea is one and the same. Much acumen and ingenuity have been displayed, even by a mind profound as that of Mr. Calhoun—a most acute man and a pure man, as Mr. Webster eloquently attested in the Senate chamber, after the decease of that South Carolina statesman—I say a good deal of acumen has been spent on the question whether a State, or any number of States, have a right under the Constitution to secede from the Union. It is a quarrel about phrases. It is not necessary in any point of view, political, philological or moral, to use the word "secession" as either excusing or justifying the act of the Confederate States. Suppose I grant, as a distinct proposition, in accordance with what I admit to be the opinion of the great majority of jurists, and orators, and statesmen at the North, that there is no right in a State, under the Constitution, to recede from the Union—what then? I shall not stop to give you the argument with which the South presents a view of the question entirely different from that of the North. Of what consequence is it, practically, whether the right of the State to go out be found in any part of the compact called the Constitution, or be derived from a source extrinsic of it? You (let me suppose) are twelve States, and I am the thirteenth. There is the original Confederacy of States, pure and simple, under the agreement with each other; and there, according to the views of Mr. Webster and the prosecution here, we became constituted in a general Government, or, as Wheaton says, in a "composite Government," giving great power to the general center. Now, what difference does it make, if you twelve States conclude to leave me, whether you do it by virtue of anything contained in the Constitution, or inferable from the Constitution, or in virtue of some right or claim of right that resides out of the Constitution? It is not of the least consequence. I do not care for the word "secession." It would be, at the worst, revolution. In that same great speech of Mr. Webster's against Calhoun, in which I think I am justified in saying he exhausts the subject and makes the most formidable argument against the theory of secession that was ever uttered in the United States, all the conclusion he comes to is this:—"'Peaceable secession!' I cannot agree to such a name. I cannot think it possible. It would be revolution." Very well. Of what consequence is the designation? Who cares for the baptism or the sponsors? It is the thing you look to. And if they have either the right or the power to secede or revolutionize, they may do it, and there is no tribunal on earth to sit in judgment upon them; though we have the right and the power, on the other hand, to battle for the maintenance of the whole Union. Our friend, Mr. Justice Grier, says: "No band of conspirators can overcome the Government merely because they are dissatisfied with the result of an election." Now, gentlemen, with the deference he deserves, I would ask the learned Justice Grier, or any other Justice, or my learned friend, Mr. Evarts, how he will proceed to dispose of the case which I am about to put? Suppose that all but one of our States meet in their Legislatures, and, by the universal acclaim, and with the entire approval of all the people, resolve that they will remain no longer in association with the others—what will you do with them? That solitary State, which may be Rhode Island, says: "I have in me the sovereignty; I have in me all the attributes that belong to empire or national existence; but I think I will have to let you go. Whether you call it secession, or rebellion, or revolution, you may go, because you have the power to go, if there be no better reason." And power and right become, in reference to this subject, the same thing in the end. Do they not? Is there any relation on earth that has a higher sanction than marriage? So long as two parties, who have contracted that holy obligation, have, in truth, no fault to find with each other, is there any right in either to go away from the other? There is no such right, either by the law of God or of man. But there is a power to do it, is there not? And if the wife flee from her husband, instead of towards him, or if a husband go from his wife, is there any law of society that can compel them to unite? And why not? Because mankind, though they have perpetrated many follies, have, at least, recognized that this was a remedy utterly impossible. In the relation of partnership between two individuals, does not the same state of things exist? and do not the same arguments suggest themselves? I ask my learned brother what he can do in reference to the ten States that have claimed to secede from the Union, and have organized themselves into a Government? I will give him all the army he demands, and will let him retain in the chair of State this honest, pleasant Mr. Lincoln, who is not the greatest man in the world—nobody will pretend that—but is as good and honest a person as there is in the world. There is not the slightest question but that, in all his movements, he only proposes what he deems consistent with the welfare and honor of the country. I will give my learned brother the army now on the banks of the Potomac, doing nothing, and millions of money, and then I desire him to tell us how, with all these aids, he can coerce those ten States to remain in the Confederacy. What was said by Mr. Buchanan on the subject, in his Message of December last? "I do not propose" said he, "to attempt any coercion of the States. I believe that it would be utterly impossible. You cannot compel a State to remain in the Union. They may refuse to send Senators to the Senate of the United States. They may refuse to choose electors, and the Government stops." Well, I grant you that this is not the view of other men quite as eminent as Mr. Buchanan. I grant you that the great Chief Justice Marshall—a man to whom it would be bad taste to apply any other word than great, because that includes everything which characterized him—I grant you that brilliant son of Virginia met an argument like this with the great power that distinguished all his judgments, when a question arose in the Supreme Court of the United States, affecting the State of Virginia and a citizen. But of what importance is it what any man thinks about it? What is your theory as compared with your practice? Now, I will give my friend all the power he wants, and ask him to deal with these ten States. Do you believe it to be within the compass of a possibility to compel them to remain in the Union, as States, if they do not wish it?

Thus I reach the conclusion, on even the weakest view of the case for us, that the power to secede, and the power to organize a Government existing, there is no power on earth which, on any rule of law, can interfere with it, except that of war, conducted on the principles of civilized war.

Now, then, let us look at those Confederate States a little more closely. What says Vattel, in the passage referred to by my learned friend, Mr. Larocque, and which it is of the utmost importance, in this connection, to keep in mind?

[Here Mr. Brady read an extract, which will be found in the argument of Mr. Larocque.5]

Is not that clearly expressed, and easy to understand? All of us comprehend and can readily apply it in this case. That resolves the question, if indeed this be the law of the land, into this: Have the Confederate States, on any show of reason, or without it—for that does not affect the inquiry—attained sufficient strength, and become sufficiently formidable, to entitle them to be treated, under that law of nations, as in a condition of civil war, even if they have not constituted a separate, sovereign, and independent nation? Really, it seems to me, too clear for doubt, that they have. We had, in the Revolution, thirteen Colonies, with a limited treasury, almost destitute of means, and with some of our soldiers so behaving themselves, in the early part of the struggle, that General Washington, on one memorable occasion, threw down his hat on the ground and asked, "Are these the men with whom I am to defend the liberties of America?" And those of you, gentlemen, who have read his correspondence, know how constantly he was complaining to Congress about the inefficiency of the troops, and their liability to desertion. I remember that he says something like this: "There is no doubt that patriotism may accomplish much. It has already effected a good deal. But he who relies on it as the means of carrying him through a long war will find himself, in the end, grievously mistaken. It is not to be disguised that the great majority of those who enter the service do so with a view to the pay which they are to receive; and, unless they are satisfied, desertions may be expected." He also remarked, at another period, in regard to the troops of a certain portion of our country, which I will not name, that they would have their own way; that when their term of enlistment expired they would go home; and that they would sometimes go before that period arrived. That, I am mortified to say, has been imitated in the present struggle.

Such was the early condition of the Colonies.

Now, the Southern Confederacy have ten States—they had seven when this commission was issued—with about eight millions of people. They have separate State governments, which have existed ever since the Union was formed, and which would exist if this revolution were entirely put down. They have excluded us from every part of their territory, except a little foothold in the Eastern part of Virginia, and "debateable ground" in Western Virginia. We have not yet been able to penetrate farther into the Confederate States. We cannot send even food to the hungry or medicine to the afflicted there. We cannot interchange the commonest acts of humanity with those of our friends who are shut up in the South. I do think, with the conceded fact looking directly into the face of the American people that, with all the millions at the command of the Administration, there is yet found sufficient force and power in the Confederate States to maintain their territory, their Government, their legislature, their judiciary, their executive, and their army and navy, it is vain and idle to say that they are not now in a state of civil war, and that they ought to be excluded from the humanities incident to that condition. Such an idea should not, I think, find sanction in either the heart, the conscience, or intelligence of any right-minded man.

Not only are the facts already stated true, but the Confederate States have been recognized as a belligerent power by France and England, as we have proved by the proclamations placed before you; and they have been recognized by our Government as belligerents, at least. That I submit, as a distinct question of fact, to the Jury, unless the Court conceive that it is a pure question of law,—in which case I am perfectly content that the Court shall dispose of it.

And where do I find this? I find it in the admission of Mr. Lincoln, in his Inaugural Address, that there is to be no attempt at any physical coercion of these States—a concession that it is a thing not called for, not consistent with the views of the Administration, or with the general course of policy of the American people. According to his view, there was to be no war. I find it in the correspondence of General Anderson with Governor Pickens, which has been read in the course of the trial—which of course has been communicated to the Government, will be found among its archives, and of which no disapprobation has been expressed. And here I borrow a doctrine from the District Attorney, who said, when I declared that the legislative branch of the Government had not given their declaration as to what was the true condition of the South, that their silence indicated what it was; and so, the silence of the Government, in not protesting against this correspondence, is good enough for my purpose.

The proclamation of the President, calling for 75,000 troops, and then calling for a greater number, would, in any Court in Christendom, outside of the United States, be regarded, under international law, as conclusive evidence that those troops were to be used against a belligerent power. Who ever heard of eight millions of people, or of one million of people, being all traitors, and being all liable to prosecution for treason at once. I find this recognition in the exchange of prisoners, which we know, as a matter of history, has occurred. I find it in the capitulation at Hatteras, at which, and by which, General Butler, of his own accord, when he refused the terms of surrender proposed by Commodore Barron, declared that the garrison should be taken as prisoners of war; and that has been communicated to the Government, and no dissatisfaction expressed about it.

And, gentlemen, I rest it, also, as to the recognition by our Government, on the fact to which Mr. Sullivan so appropriately alluded—the exchange of flags of truce between the two contending forces, as proved by one of the officers of the navy. A flag of truce sent to rebels—to men engaged in lawless insurrection, in treasonable hostility to the Government, with a view to its overthrow! Why, gentlemen, it is the grandest, as it is the most characteristic, device by which humanity protects men against atrocities which they might otherwise perpetrate upon each other—that little white flag, showing itself like a speck of divine snow on the red and bloody field of battle; coming covered all over with divinity; coming in the hand of peace, who rejoices to see another place where her foot may rest; welcome as the dove which returned to the ark; coming, I say, in the hand of peace, who is the great conqueror, and before whom the power of armies and the bad ambitions and great struggles of men must ultimately be extinguished. This, of itself, will be regarded by mankind, when they reflect wisely, as sufficient to show that our Government must not be brutal; and we seek to rescue the Administration from any imputation that it wants to deny to the South the common humanities which belong to warfare, by your refusing to let men be executed as pirates, or to make a distinction between him who wars on the deep and him who wars upon the land.

It is very strange if the poor fellows who had no means of earning a meal of victuals in the city of Charleston, like some of those who composed the crew of this vessel, shut up as if in a trap, should be hanged as pirates for being on board a privateer, under a commission from the Confederate States, and that those who have slain your brothers in battle should be taken as prisoners of war, carefully provided for, and treated with the benevolence which we extend to all prisoners who fall into our hands—the same humanities that, as you perceive, are provided for in the instructions from Jefferson Davis, found on board the privateer, directing that the prisoners taken should be dealt with gently and leniently, and to give them the same rations as were supplied to persons in the Confederate service.

But it seems to be suggested in Vattel, and certainly is promulgated in the opinion of Mr. Justice Grier, that, although the Confederate States have obtained any proportions however large, any power however great, there must be some sound cause, some reasonable pretext, for this revolt. Well, who is to judge of that? We do not, says the Government, admit that the cause is sufficient. The United States Government says there is none. Now, I propose to show you what the South says on that subject—to lay before you matters of history with which you are all acquainted—to show you what is supposed by men as able as any of us, as well acquainted with the history of the country, and as pure—what is supposed by them to have created this state of things, entitling the Confederate States to leave us and be a community by themselves. I will hereafter appeal to the late Daniel Webster as a witness that one of the causes assigned by the Southern States for their act is at least the expression and proof of a great wrong done them.

In the first place, a large proportion of our people at the North claim the right to abolish slavery in places ceded to the United States, or formed by contributions from the States, such as the District of Columbia. I do not know what my learned friends' views on that subject are, but I know that the two great political parties of the country have had distinct opinions on that subject. By one, it has been steadily maintained, and with great energy, that, so far as the nation has power over the subject of slavery, it shall exercise it to abolish slavery. And the South says: "If you undertake to abolish slavery in any fort, any ceded place, any territory that we have given you for the purposes of the National Government, we will regard that as a breach of faith; for, whether you abhor slavery, or only pretend to abhor it, it is the means of our life. I, a Southerner, whose mother was virtuous as yours—whom I loved as you loved your mother—received from her at her death, as my inheritance, the slaves whom my father purchased—whom I am taught, under my religious belief, to regard as property, and whom I will so continue to regard as long as I live." That is the argument of the South; and if men at the South conscientiously believe that, from their knowledge of the sentiments, factions, or agitations at the North, such as these, there is an intention to make a raid and foray on the institution of slavery, deprive them of all the property they have in the world, and condemn them to any stigma—is it any wonder that they should express and act upon such an opinion?

Next, gentlemen, in the category of their complaints, is the agitation for the prohibition of what is called the inter-State slave trade. Next is the exclusion of slavery from new territory, which, says the South, "we helped to acquire by our blood and treasure—towards which we contributed as you did. If you had a gallant regiment in the field in Mexico, had we not the Palmetto and other regiments, which came back—such of them as survived—covered with glory?"

This has been the great subject that has recently divided our political parties—the Republican party, so-called, proclaiming with great earnestness and great decency its sincere conviction that it was a moral and political right to prevent slavery from being carried into new territory, and insisting that the slave-owner, if he went there with his slaves, must bring them to a state of freedom.

There is another party of intelligent and upright men, claiming that the South has the same right to go into the Territories with their slaves as the North has to go with their implements of agriculture; and these irreconcilable differences of opinion are only to be settled at the polls, by determining the question which shall have sway either in the executive councils or in the legislation of the Government. A grand subject of debate, for some time, was the endeavor to acquire Texas; and I need not tell you that the great reason why the acquisition of Texas was opposed by the Whig party was, that they thought it might induce to the extension of slavery. When Mr. Choate made his great speech against it in New York, he confessed that that was the point, and said: "You may be told that this is a new garden of the Hesperides; but do not receive any of its fruits: touch not, taste not, handle not, for in the hour that you eat thereof you shall surely die."

Next, gentlemen, is the nullification of the Fugitive-Slave Law by several of the States of New England, which say: "True it is that the Constitution of the United States declares that the fugitive shall be delivered up to his master; true it is that Congress has made provision for his restoration; true it is that the Supreme Court of the United States has declared that he must be given up; but we say—we, a sovereign State—that if any officer of our Government lends any aid or sanction for such purpose he shall be guilty of a crime. If you want any slave delivered to his master, you must do it exclusively by the authority of the Federal Government, by its power and officers." And because, in the city of Boston, Mr. Loring, a virtuous citizen, a respectable lawyer, performed, in his official capacity, an official act toward the restoration of a slave to his master, he was removed from his judicial station by the Executive of Massachusetts.

The District Attorney: (To Mr. Evarts) He was not removed for that reason.

Mr. Brady: The District Attorney says he was not removed for that reason. Well, he was removed just about that time. (Laughter.) It was a remarkable coincidence; it was like the caution given to the elder Weller, when he was transferring a number of voters to the Eatonsville election, not to upset them in a certain ditch, and, as he said, by a very extraordinary coincidence, he got them into that very place.

But, gentlemen, this is a solemn subject, and is not to be dealt with lightly. And here it is that I will refer to the great speech of Mr. Webster, in the Senate of the United States, on the 7th of March, 1850—to be found in the fifth volume of his works, page 353. Mr. Webster was a great man, gentlemen, like John Marshall, and he could stand that test of a great man—to be looked at closely. Our country produces an abundance of so-called great men. The very paving-stones are prolific with them. Every village, and hamlet, and blind alley has one, at least. And when we catch a foreigner, just arrived, we first ask him what he thinks of our country, and then, pointing to some person, say, "He is one of the most remarkable men in the country;" until, finally, the foreigner begins to conclude that we are all remarkable men; that, like children, we are all prodigies until we grow up, when we give up the business of being prodigies very soon, as most of us have had occasion to illustrate.

Mr. Webster, I say, was a great man, because he could stand the test of being looked at very near, and he grew greater all the time. There is no incident in my life of which I cherish a more pleasant or more vivid recollection than being once in a small room, with some other counsel, associated with Mr. Webster, about the time he made his last professional effort, when, in a moment of melancholy, one night about twelve o'clock, he came up, and, sitting down on the corner of a very old-fashioned bedstead, put his arm around the post, and proceeded to enlighten and fascinate us with a familiar, and sometimes playful, account of his early life; his first arguments in the Supreme Court of the United States; and the course, in its inner developments, of that life which, in its public features, has been so interesting to the country, and is to be always so interesting to mankind.