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

"Mr. President," said he, "in the excited times in which we live there is found to exist a state of crimination and recrimination between the North and South. There are lists of grievances produced by each, and those grievances, real or supposed, alienate the minds of one portion of the country from the other, exasperate the feelings, and subdue the sense of fraternal affection, patriotic love, and mutual regard. I shall bestow a little attention, sir, upon these various grievances existing on the one side and on the other. I begin with complaints of the South. I will not answer further than I have the general statements of the honorable Senator from South Carolina, that the North has prospered at the expense of the South, in consequence of the manner of administering this Government, in the collecting of its revenues, and so forth. These are disputed topics, and I have no inclination to enter into them. But I will allude to other complaints of the South, and especially to one which has, in my opinion, just foundation; and that is, that there has been found at the North, among individuals and among legislators, a disinclination to perform fully their constitutional duties in regard to the return of persons bound to service who have escaped into the Free States. In that respect the South, in my judgment, is right, and the North is wrong. Every member of any Northern Legislature is bound by oath, like every other officer in the country, to support the Constitution of the United States; and the article of the Constitution (Art. iv., sec. 2, subd. 2) which says to these States that they shall deliver up fugitives from service, is as binding in honor and conscience as any other article. No man fulfills his duty in any Legislature who sets himself to find excuses, evasions, escapes, from this constitutional obligation. I have always thought that the Constitution addressed itself to the Legislatures of the States, or to the States themselves. It says that those persons escaping to other States 'shall be delivered up;' and I confess I have always been of the opinion that it was an injunction upon the States themselves. When it is said that a person escaping into another State, and coming, therefore, within the jurisdiction of that State, shall be delivered up, it seems to me the import of the clause is, that the State itself, in obedience to the Constitution, shall cause him to be delivered up. That is my judgment. I have always entertained that opinion, and I entertain it now. But when the subject, some years ago, was before the Supreme Court of the United States, the majority of the Judges held that the power to cause fugitives from service to be delivered up was a power to be exercised under the authority of this Government. I do not know, on the whole, that it may not have been a fortunate decision. My habit is to respect the result of judicial deliberations and the solemnity of judicial decisions. As it now stands, the business of seeing that these fugitives are delivered up resides in the power of Congress and the national judicature; and my friend at the head of the Judiciary Committee (Mr. Mason) has a bill on the subject now before the Senate, which, with some amendments to it, I propose to support, with all its provisions, to the fullest extent. And I desire to call the attention of all sober-minded men at the North, of all conscientious men, of all men who are not carried away by some fanatical idea or some false impression, to their constitutional obligations. I put it to all the sober and sound minds at the North, as a question of morals and a question of conscience: What right have they, in their legislative capacity or any other capacity, to endeavor to get around this Constitution, or to embarrass the free exercise of the rights secured by the Constitution to the persons whose slaves escape from them? None at all—none at all. Neither in the forum of conscience, nor before the face of this Constitution, are they, in my opinion, justified in such an attempt. Of course, it is a matter for their consideration. They, probably, in the excitement of the times, have not stopped to consider of this. They followed what seemed to be the current of thought and of motives, as the occasion arose; and they have neglected to investigate fully the real question, and to consider their constitutional obligations; which I am sure, if they did consider, they would fulfill with alacrity. I repeat, therefore, sir, that here is a well-founded ground of complaint against the North, which ought to be removed; which it is now in the power of the different departments of this Government to remove; which calls for the enactment of proper laws authorizing the judicature of this Government in the several States to do all that is necessary for the recapture of fugitive slaves, and for their restoration to those who claim them. Wherever I go, and whenever I speak on the subject,—and when I speak here I desire to speak to the whole North,—I say that the South has been injured in this respect, and has a right to complain; and the North has been too careless of what I think the Constitution peremptorily and emphatically enjoins upon her as a duty."

Now, gentlemen, this may not accord with the sentiments of some of you; but what right have you—if you should differ entirely with Mr. Webster—if you should believe that there is a great law of our Maker, a higher law than any created on earth, which requires you to refuse obedience to that Fugitive-Slave Law, and makes it a high duty to resist its execution—what right, I say, have you to force that opinion upon me? What right have you to require that I shall yield an allegiance to all parts of the Constitution which you approve, while you refuse it allegiance whenever you please?

They have assigned, as another cause, the notorious fact of the establishment of what is known as "the Underground Railroad," aiding in the escape and running off of slaves, and the clandestine removal of property which belongs to the people of the South. They assign, as another, the rescue of persons claimed as fugitive slaves, as in the case of the Jerry rescue, in or near Syracuse. Passing once through that city, I saw a placard announcing a grand demonstration to come off in honor of that achievement—the forcible rescue of a man from the hands of the Government who was claimed under the provisions of the Constitution and an act of Congress which the Federal Courts had declared to be constitutional!

They refer, also, to the Creole case, in which, according to the Southern view of the subject, it was virtually and practically decided that no protection was to be afforded to slaves, as property of Southern men, on the high seas. That is their view of it, and it has been expressed by able men with a great deal of force.

They also refer to the John Brown raid, which we have not forgotten—to the invasion of Virginia by that man, who furnished the negroes with implements of slaughter. With the results of that outrage you are all familiar.

They refer to the general assault on the institution of slavery which many men at the North have felt it on their conscience to make, including such distinguished orators as Lloyd Garrison, Gerrit Smith, the fascinating and silver-tongued Phillips—to whom I have listened with pleasure, much as I detested his sentiments—and Theodore Parker, the greatest of them all.

They refer to the declarations of cultivated men at the North, that there were no means to which men might not resort to extirpate slavery; and who, when against them were cited certain passages of Scripture that were supposed to sanction the institution of slavery, fell back on the position that our Constitution was an "infidel Constitution," and that even the Bible was not to be regarded as any authority for such a monstrous error as that.

They refer to the declaration of Mr. Lincoln, in one of his addresses to the public, that Government could not endure half slave and half free.

But, gentlemen, it was not strange to the American people to know that there was danger of such a secession as has occurred. Some years ago it would have been esteemed the most impossible thing in the world. It has come to happen in your time and mine. It has been predicted. I know a very remarkable instance in which that prediction was stated so clearly that the author of it would seem to have been invested with the spirit and power of prophecy. We cherished the abiding hope that this would not occur; but we now see that the causes moving toward it were irresistible, and that it has become an event of history.

Now, if these seceded States, on any reasoning, good or bad, on sufficient cause, or on a belief that they had sufficient cause, determined that it was not their interest to remain in the Union, they only subscribed to those doctrines promulgated by the Hartford Convention, and agreed with Blackstone, and with all the writers on civil law, that a state of things having happened in which they could have no redress, except by their own act, what course were they to adopt? It is not for you or for me to say, at this time, whether they were right or wrong in their opinions or reasons. I ask you, what course were they to adopt? and what has been the argument heretofore? Why, the argument that, when such a collision of interest took place—when the States supposed that the General Government was trespassing on them and usurping powers, making war upon their institutions, oppressing them, or failing to accomplish the ends for which the Government was established—they should appeal to the Supreme Court of the United States as common arbiter, and that its decision should be final. My friend, Mr. Larocque, has called attention to cases that might happen, of collision between executives of States and of the United States, which could not possibly be submitted to the decision of the Supreme Court of the United States, and I shall not mar his argument or his examples by repeating them or saying anything in addition.

But, suppose that the next Congress should pass a law providing that the State of New York should pay all the expenses of this war for ten years to come, if it last so long; and that every boy of eighteen years, in the State of New York, should be mustered into the service, and coerced to march to Washington within ten days; and that no man in the State of New York should be permitted to go into another State without permission from the Executive; or should do anything of a similar character,—what course would the State of New York have under such circumstances? What course, but disobedience to the law, or insurrection, or revolution? Will my learned friends say that, in a case like that, you could appeal to the arbitrament of the Supreme Court of the United States? Is that so? Has the Supreme Court of the United States, under such circumstances, any way of redressing this wrong? But, suppose I concede that it has: what said the Republican party in reference to that Court? I instance that party, because it has the administration of the General Government.

I remember distinctly that Mr. Chase, now one of the Cabinet officers, in a public speech, shortly before the Presidential election, and Mr. Wade, of Ohio, a Senator of the United States—both able men, grave men, honorable men—insisted, before the people, that the Supreme Court of the United States was a mere organization of a certain number of respectable gentlemen, whose opinions were entirely conclusive, no doubt, as between parties litigant, but had no control over the political sentiments, rights, or actions of the people; that their adjudications would be a rule and a precedent in future cases of just the same character; but, beyond that, should have no efficacy whatever.

Gentlemen, I will tell you what, in confirmation of these views, Mr. Lincoln says. In the Message that has been read to you he states exactly the same thing, with the addition that, if we were to submit to the Supreme Court of the United States to decide for us what is right in our Government, and what principles should be maintained, and what course the Administration should adopt, we would be surrendering to the Supreme Court the political power of the nation, and would become a species of serfs and slaves.

When nullification reared its head within our territory, and the people of South Carolina claimed that an Act of the General Government was an aggression upon them, against which they had a right to make physical resistance, if necessary, the parties of this country were divided into Whigs and Democrats. They were two formidable parties. There had not then grown up any of these little schismatic organizations, which are, in these latter days, numerous as the eddies on the biggest stream. They were not the days for certain clubs of professional politicians, with very imperfect wardrobes and more imperfect consciences, who sit in judgment on the qualifications of judicial officers, and measure their fitness for office by their capacity to pay money to strikers.

"Now," said that great party claiming to be conservative, "South Carolina has no right to resist. If she has suffered any wrong—if the General Government has attempted any aggression on her—let her submit the whole matter to the Supreme Court of the United States, and let its arbitration be final." Yes; and so the cry continued, till it was supposed that the Supreme Court of the United States was said to have decided that the owner of slave property might carry it into the Territories. Then the note was changed. Instantly the doctrine was reversed, and the Supreme Court was no longer the great, solemn, majestic, and omnipotent arbiter to dispose of this question. Then that Court became "a convention of very respectable gentlemen," who took their seats with black robes, and who were very competent to decide the right of a controversy between John Doe and Richard Roe, but must not lay their hands on politics. Why, they talk about the Earl of Warwick being a King-maker; but your man who seats himself on the head of a whisky barrel, in a corner grocery store, is a greater King-maker than ever Warwick was; and such a man as that, in his prerogatives, is not to be displaced by the Supreme Court of the United States! He may get up a town meeting, at which it will be declared that the doctrine laid down by the Supreme Court of the United States is all preposterous and absurd, and that the people are not going to submit to that tribunal.

There is no recognition, therefore, by this Administration, of the idea that the Supreme Court of the United States is capable of affording any relief in such a case as that which has led to the action of the seceded States. And so, that argument being out of the way, I ask you, I ask the learned Court, and I ask our opponents, whether, under the law of nations, as expounded, there was any other course left except that which the seceding States have adopted, assuming that any action whatever was to be taken?

Adjourned till Tuesday, 29th October, at 11 o'clock A.M.

SIXTH DAY

Tuesday, Oct. 29th, 1861.

Mr. Brady resumed his address, and said:

In the same general line of discussion which I adopted yesterday, I will refer you to a striking passage from a distinguished gentleman, and, when I have read the extract, will state from whom it emanated:

"Any people anywhere, being inclined and having the power, have a right to rise up and shake off the existing Government, and form a new one that suits them better. This is a most valuable, a most sacred right—a right which, we hope and believe, is to liberate the world. Nor is this right confined to cases in which the whole people of an existing Government may choose to exercise it. Any portion of such people that can, may revolutionize and make their own of so much of the territory as they inhabit. More than this: a majority of any portion of such people may revolutionize—putting down a minority intermingled with or near about them who may oppose their movements. it is a quality of revolutions not to go by old lines or old laws, but to break up both and make new ones."—Appendix Con. Globe, 1st Session 35th Congress, p. 94.

Would you suppose, gentlemen, that it was an ardent South Carolina secessionist who declared that any people may revolutionize and hold mastery of any territory which they occupy? Would you suppose that was from Jefferson Davis, in the Senate of the United States? No, gentlemen; it is from Abraham Lincoln, the President of the United States, when he was a member of Congress, and was delivered on the 12th of January, 1848.

Now, gentlemen, I do not think that an intelligent gentleman born in South Carolina, Kentucky, or Virginia, and educated by his parents in a certain political faith, has not as much right to adhere to it as he has to the religious faith in which he is brought up; and if he should happen to say all that is substantially claimed by these seceding States, he would be sustained by authority quoted here, and have the express sanction of the distinguished and excellent gentleman now at the head of this nation.

Let me now cite to you Wheaton's International Law, page 30, in which he says, that "sovereignty is acquired by a State, either at the origin of the civil society of which it is composed, or when it separates itself from the community of which it previously formed a part, and on which it was dependent." Then he says, that "civil war between the members of the same society is, by the general usages of nations, such a war as entitles both the contending parties to all the rights of war as against each other, and as against neutral nations."

This, if your honors please, seems to me an answer to the doctrine put forward in this case, that the Judges are to treat this question in reference to the seceding States as it has been viewed by the executive and legislative branches of the Government. If it be true that when a state of civil war exists, as stated by Wheaton, both the contending parties have all the rights of war as against each other, as well as against neutral nations, then it follows very clearly that the seceding States, as well as our own, have all the rights of war; and there is no such rule as that they must have those rights determined only by the executive or legislative branches of the Government, or by both.

And here, gentlemen, let us refer to the matter of blockade, which I take to be the highest evidence of a distinct recognition, by the General Government, of a state of war as between the United and the Confederate States. I see no escape from that conclusion. It is true that a learned Judge in New England, an eminent and pure man, has determined, as we see from the newspapers, that in his judgment it is not a blockade which exists, but merely the exercise by the General Government of its authority over commerce and territory in a state of insurrection—that it is a mere police or municipal regulation. Well, gentlemen, that is not the view taken by the Judges elsewhere. Certainly it is not adopted in this District, where prize cases have arisen, instituted by the Government, which calls this a blockade; and I undertake to say that, in the history of the human race, that word, blockade, never was applied except in a state of war; and the exercise of that power never can occur except in a state of war, because, as the writers inform us, blockade is the right of a belligerent affecting a neutral, and only allowable in a state of war. Why is it that France and England and all the other countries of the world do not attempt to send their vessels to any of the ports in guard of which we place armed vessels?

A word more about piracy: A pirate is an offender against the law of nations. He is called in the Latin, and by the jurists, the enemy of the human race. Any nation can lay hold of him on the high seas, take him to its country, and punish him. Now, if a ship of war—British, French, Russian, or of any other nation—should meet with a piratical craft, she would capture and condemn it in the courts of her country, and the crew would suffer the punishment of pirates. No one will dispute that proposition. But if such a ship of war had met with the privateer Savannah, even in the very act of capturing the Joseph, would she have captured the Savannah, or attempted to arrest her crew as pirates? If not, does it not follow, as a necessary consequence, that the "Savannah" was not engaged in piratical business? and does it not involve a palpable absurdity to say, that a vessel on the high seas, cruising under a privateer's commission, can be treated as a pirate by the power with which it is at war, and yet be declared not a pirate by all the other powers of the earth? This must be so, if there is anything in the idea that piracy is an offence against the law of nations.

There is not a case in our books where any man, under a commission emanating from any authority or person, was ever treated as a pirate, and so condemned, unless the actual intent to steal was proved. In the case of Aurey such was the fact, as in many other cases which have been cited. And so it seems that if the Confederate States were either an actual Government, established in virtue of the principles of right to which I have referred, or if a Government de facto, as distinguished from one having that right, or if these men believed that the commission emanated from either kind of Government was—lawfully issued—we claim that it is impossible in law, and would be wrong in morals, and unjust in all its consequences, to hold them as pirates, or to treat them otherwise than as prisoners of war. And, gentlemen, I am sorry to say, or rather I am glad to say, that if they should be acquitted of the crime of piracy, they would yet remain as prisoners of war. The worst thing to do with them is to hang them. By preserving their lives we have just their number to exchange for prisoners taken by the enemy.

You, gentlemen, will do your duty under the law, whatever be the consequences. If you have no doubt that these men have committed piracy, they should be convicted of piracy. No threat of retaliation from any quarter should or will influence right-minded men in the disposition to be made of cases where they have to give a verdict according to their conscience, the evidence, and the law of the land.

But the fact of retaliation, as a danger that may ensue from treating as pirates men engaged in war, is referred to by Vattel in his treatise on the laws of nations. It is one of the considerations which enjoin on Courts and Governments the duty of seeing that, when people are prosecuting civil war, they shall enjoy the humanities of war.

I will now consider this case under the ninth section of the Act of 1790, which is as follows:

"If any citizen shall commit any piracy or robbery aforesaid, or any act of hostility against the United States, or any of the citizens thereof, on the high seas, under color of any commission from any foreign Prince or State, or on pretence of authority from any person, such offender shall, notwithstanding the pretence of any such authority, be deemed, adjudged, and taken to be a pirate, felon, and robber, and, on being thereof convicted, shall suffer death."

Now, in the first place, we say, as was before urged, that statute has no bearing whatever on the case of the eight foreigners, and you are to disregard them entirely in passing upon all the questions which this Act may raise; and we say that it has no bearing on the four Americans before you, even if it be a valid Act and applicable to a case of this character, because, at the time of the acts charged, they were citizens of another Government, owing it allegiance, receiving its protection, engaged in its service, and bound to perform such service. We have been told that allegiance and protection are reciprocal. The people of the Southern States would be placed in a very extraordinary condition if the arguments of my learned opponent are to prevail. Look at the citizens of Charleston. There are men in that city who love the Union, among whom is Mr. Pettigrew, an able lawyer, a patriot, and a man of great virtue, talents, and distinction. If those loyal people wanted to leave Charleston and come North, they could not do it. If they felt inclined to utter, at this moment, their sentiments in favor of reunion of the States, it would be an act of folly and danger. They are living in a State, under its government and jurisdiction, and bound to perform their duties as citizens. Can they refuse? They may be ordered into the service of the government—sent to sea—enlisted as soldiers. They cannot refuse to fight. If they do, they make themselves amenable to their own Judges. I refer to 1st Hawkins, Pl. Crown, 87, 89, where it is said: