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

Nevertheless, gentlemen, these subjects have been so extensively opened, and in so many points attacks have been made upon what seems to me not only the very vital structure and necessary support of this, our Government, but the very necessary and indispensable support of any Government whatever, and we have been so distinctly challenged, both on the ground of an absolute right to overthrow this Government, whenever any State thinks fit—and, next, upon the clear right, on general principles of human equity, of each State to raise itself against any Government with which it is dissatisfied—and upon the general right of conscience—as well as on the complete support by what has been assumed to have been the parallel case, on all those principles, of the conduct of the Colonies which became the United States of America and established our Government—that I shall find it necessary, in the discharge of my duty, to say something, however briefly, on that subject. Now, gentlemen, these are novel discussions in a Court of Justice, within the United States of America. We have talked about the oppressions of other nations, and rejoiced in our exemption from all of them, under the free, and benignant, and powerful Government which was, by the favor of Providence, established by the wisdom, and courage, and virtue of our ancestors. We had, for more than two generations, reposed under the shadow of our all-protecting Government, with the same conscious security as under the firmament of the heavens. We knew, to be sure, that for all that made life hopeful and valuable—for all that made life possible—we depended upon the all-protecting power, and the continued favor of Divine Providence. We knew, just as well, that, without civil society, without equal and benignant laws, without the administration of justice, without the maintenance of commerce, without a suitable Government, without a powerful nationality, all the motives and springs of human exertion and labor would be dried up at their source. But we felt no more secure in the Divine promise that "summer and winter, seed-time and harvest," should not cease, than we did in the permanent endurance of that great fabric established by the wisdom and the courage of a renowned ancestry, to be the habitation of liberty and justice for us and our children to every generation. We felt no solicitude whatever that this great structure of our constituted liberties should pass away as a scroll, or its firm power crumble in the dust. But, by the actual circumstances of our situation,—and, if not by them, certainly by the destructive theories which are presented for your consideration,—it becomes necessary for us, as citizens, and, in the judgment at least of the learned counsel, for these prisoners, for you, and for this learned Court, in the conduct of this trial, and in the disposition of the issue of "guilty" or "not guilty" as to these prisoners, to pay some attention to these considerations. If, in the order of this discussion, gentlemen, I should not seem to follow in any degree, or even to include by name, many of the propositions, of the distinctions, and of the arguments which our learned friends have pressed against the whole solidity, the whole character, the whole permanence, the whole strength of our Government, I yet think you will find that I have included the principal ideas they have advanced, and have commented upon the views that seem to us—at least so far as we think them to be at all connected with this case—suitable to be considered.

Now, gentlemen, let us start with this business where our friends, in their argument, where many of the philosophers, and partisans, and statesmen of the Southern people, have found many of their grounds of support. Let us start with this very subject of the American Revolution, with the condition that we were in, and with the place that we found ourselves raised to, among the nations of the earth, as the result of that great transaction in the affairs of men. What were we before the Revolution commenced? Was any one of the original thirteen States out of which our nation was made, and which, previous to the Revolution, were Colonies of Great Britain—was any one of them an independent nation at the time they all slumbered under the protection of the British Crown? Why, not only had they not the least pretension to be a nation, any of them, but they had scarcely the position of a thoroughly incorporated part of the great nation of England. Now, how did they stand towards the British power, and under what motives of dignity, and importance, and necessity did they undertake their severance from the parent country? With all their history of colonization, the settlement of their different charters, and the changes they went through, I will not detain you. For general purposes, we all know enough, and I, certainly not more than the rest of you. This, however, was their condition. The population were all subjects of the British Crown; and they all had forms of local Government which they had derived from the British Crown; and they claimed and possessed, as I suppose, all the civil and political rights of Englishmen. They were not subject to any despotic power, but claimed and possessed that right to a share in the Government, which was the privilege of Englishmen, and under which they protected themselves against the encroachment of the Crown. But, in England, as you know, the monarch was attended by his Houses of Parliament, and all the power of the Government was controlled by the people, through their representatives in the House of Commons. And how? Why, because, although the King had prerogatives, executive authority, a vast degree of pomp and wealth, and of strength, yet the people, represented in the House of Commons, by controlling the question of taxation, held all the wealth of the kingdom—the power of the purse, as it was described—and without supplies, without money for the army, for the navy, for all the purposes of Government, what authority, actual and effective, had the Crown of England? These were the rights of Englishmen; these made them a free people, not subject to despotic power. They cherished it and loved it. Now, what relation did these Colonies, becoming off-shoots from the great fabric of the national frame of England, bring with them, and assert, and enjoy here? Why, the king was their king, just as he was the king of the people whom they left in England, but they had their legislatures here, which made their laws for them in Massachusetts, in Connecticut, in Virginia, in South Carolina, and in the rest of these provinces; and among those laws, in the power of law-making, they had asserted, and possessed, and enjoyed the right of laying taxes for the expenses and charges of their Government. They formed no part of the Parliament of England, but, as the subjects of England within the four seas were obedient to the king, and were represented in the Parliament that made laws for them, the Colonies of America were subject to the king, but had local legislatures, to pass laws, raise and levy taxes, and graduate the expenses and contributions which they would bear.

Now, gentlemen, it is quite true that the local legislatures were subject to the revision, as to their statutes, to a certain extent, of the sovereign power of England. The king had the veto power—as he had the veto power over Acts of Parliament—the power of revision—and other powers, as may have been the casual outgrowth of the forms of different charters. In an evil hour—as these Colonies, from being poor, despised, and feeble communities, gained a strength and numbers that attracted the attention of the Crown of England, as important and productive communities, capable of being taxed—the Government undertook to assert, as the principle of the Constitution of England, that the king and Parliament, sitting in London, could tax as they pleased, when they pleased, and in the form, and on the subjects, and to the amount, they pleased, the free people of these Colonies. Now, you will understand, there was not an incidental, a casual, a limited subject of controversy, of right, of danger, but there was an attack upon the first principles of English liberty, which prevented the English people from being the subjects of a despot, and an attempt to make us subject to a despotic Government, in which we took no share, and in which we had no control of the power of the purse. What matter did it make to us that, instead of there being a despotic authority, in which we had no share or representation of vote or voice, exercised by the king alone, it was exercised by the king and Parliament? They were both of them powers of Government that were away from us, and in which we had no share; and we, then, forewarned by the voices of the great statesmen whose sentiments have been read to you, saw in time that, whatever might be said or thought of the particular exercise of authority, the proposition was that we were not entitled to the privilege and freedom of Englishmen, but that the power was confined to those who resided within the four seas—within the islands that made up that Kingdom—and that we were provinces which their King and their Parliament governed. Therefore, you may call it a question of taxation, and my friend may call it "a question of three pence a pound on tea;" but it was the proposition that the power of the purse, in this country, resided in England. We had not been accustomed to it. We did not believe in it. And our first revolutionary act was to fight for our rights as Englishmen (subject to the King, whose power we admitted), and to assert the rights of our local legislature in the overthrow of this usurpation of Parliament. Now, of the course which we took before we resorted to the violence and vehemence of war, I shall have hereafter occasion to present you, very briefly and conclusively, a condensed recital; but this notion, that we here claimed any right to rise up against a Government that was in accordance with our rights, and was such as we had made it, and as we enjoyed it, equally with all others over whom it was exercised—which lies at the bottom of the revolt in this country—had not the least place, or the opportunity of a place, in our relations with England. We expected and desired, as the correspondence of Washington shows—as some of the observations of Hamilton, I think, read in your presence by the learned counsel, show—as the records of history show—we expected to establish security for ourselves under the British Crown, and as a part of the British Empire, and to maintain the right of Englishmen, to wit, the right of legislation and taxation where we were represented. But the parent Government, against the voice and counsels of such statesmen as Burke, and the warnings of such powerful champions of liberty as Chatham, undertook to insist, upon the extreme logic of their Constitution, that we were British subjects, and that the king and Parliament governed all British subjects; and they had a theory, I believe, that we were represented in Parliament, as one English jurist put it, in the fact that all the grants in all the Colonies were, under the force of English law, "to have and to hold, as the Manor of East Greenwich," and that, as the Manor of East Greenwich was represented in Parliament, all this people were represented. But this did not suit our notions. The lawyers of this country, the Judges of this country, and many of the lawyers of England, as mere matter of strict legal right, held that the American view of the Constitution of England, and of the rights of Englishmen who enjoy it, was the true one. But, at any rate, it was not upon an irritation about public sentiment; nor was it upon the pressure of public taxes; nor because we did not constitute a majority of Parliament; nor anything of that kind; but it was on clear criteria of whether we were slaves, as Hamilton presents it, or part of the free people of a Government. We, therefore, by degrees, and somewhat unconscious, perhaps, of our own enlightened progress, but yet wisely, fortunately, prosperously, determined upon our independence, as the necessary means of securing those rights which were denied to us under the Constitution of our country.

Now, there was not the least pretence of the right of a people to overthrow a Government because they so desire—which seems to be the proposition here—because they think they do not like it—and because there are some points or difficulties in its working they would like to have adjusted. No; it was on the mere proposition that the working of the administration in England was converting us into subjects, not of the Crown, with the rights of Englishmen, but subjects of the despotic power of Parliament and the king of England. Now, how did we go to work, and what was the result of that Revolution? In the first place, did we ever become thirteen nations? Was Massachusetts a nation? Was South Carolina a nation? Did either of them ever declare its independence, or ever engage in a war, by itself and of itself, against England, to accomplish its independence? No, never; the first and preliminary step before independence was union. The circumstances of the Colonies, we may well believe, made it absolutely necessary that they should settle beforehand the question of whether they could combine themselves into one effectual, national force, to contend with England, before they undertook to fight her. It was pretty plain that Massachusetts could not conquer England, or its own independence, and that Virginia could not do so, and that the New England States alone could not do it, and that the Southern States alone could not do it. It was quite plain that New York, Pennsylvania and New Jersey, alone, could not do it; and, therefore, in the very womb, as it were, and preceding our birth as a nation, we were articulated together into the frame of one people, one community, one nationality. Now, however imperfectly, and however clumsily, and however unsuitably we were first connected, and however necessary and serious the changes which substituted for that inchoate shape of nationality the complete, firm, noble and perfect structure which made us one people as the United States of America, yet you will find, in all the documents, and in all the history, that there was a United States of America, in some form represented, before there was anything like a separation, on the part of any of the Colonies, from the parent country, except in these discontents, and these efforts at an assertion of our liberties, which had a local origin.

The great part of the argument of my learned friend rests upon the fact that these States were nations, each one of them, once upon a time; and that, having made themselves this Government, they have remained nations, in it and under it, ever since, subject only to the Confederate authority, in the terms of a certain instrument called a compact, and with the reserved right of nationality ready, at all times, to spring forth and manifest itself in complete separation of any one of the States from the rest. And I find, strangely enough, in the argument as well of the promoters of these political movements at the South as in the voice of my learned friends who have commented on this subject, a reference to the early diplomacy of the United States, as indicative of the fact that they were separate and independent communities—regarded as such by the contracting Powers into connection with whom they were brought by their treaties and conventions, and, more particularly, in the definitive treaty whereby their independence was recognized by Great Britain. Now, if the Court please, both upon the point (if it can be called a point, connected with your judicial inquiry) that these Colonies were formed into a Union before they secured their national independence, and that there was no moment of time wherein they were not included, either as united Colonies, under the parental protection of Great Britain, or as united in a struggling Provisional Government, or in the perfect Government of the Confederation, and, finally, under the present Constitution—I apprehend there can be no doubt that our diplomacy, commencing, in 1778, with the Treaty of Alliance with France, contains the same enumeration of States that is so much relied upon by the reasoners for independent nationality on the part of all the States. In the preamble to that Treaty, found at page 6 of the 8th volume of the Statutes at Large, the language was: "The Most Christian King and the United States of North America, to wit, New Hampshire, &c., having this day concluded," &c. The United States are here treated as a strictly single power, with whom his Most Christian Majesty comes into league; and the credentials or ratifications pursued the same form. The Treaty of Commerce with the same nation, made at the same time, follows the same idea; and the Treaty with the Netherlands, made in 1782, contains the same enumeration of the States, and speaks of each of the contracting parties as being "countries." The Convention with the Netherlands, on page 50 of the same volume, and which was a part of the same diplomatic arrangement, and made at the same time, speaks, in Article 1, of the vessels of the "two nations." Now, the only argument of my learned friends, on the two treaties with Great Britain, of November, 1782, and September, 1783, is, that they are an agreement between England and the thirteen nations; and it is founded upon the fact, that the United States of America, after being described as such, are enumerated under a "viz." as being so many provinces. Now, the 5th and 6th articles of that Convention of 1782 with the Netherlands speak of "the vessels of war and privateers of one and of the other of the two nations." So that, pending the Revolution, we certainly, in the only acts of nationality that were possible for a contending power, set ourselves forth as only one nation, and were so recognized. And the same views are derivable from the language of the Provisional Treaty with Great Britain of November, 1782, and of the Definitive Treaty of Peace with Great Britain of September, 1783, which Treaties are to be found at pages 54 and 80 of the same 8th volume. The Preamble to the latter Treaty recites:

"It having pleased the Divine Providence to dispose the hearts of the most serene and most potent Prince George the Third, &c., and of the United States of America to forget all past misunderstandings and differences that have unhappily interrupted the good correspondence and friendship, which they mutually wish to restore; and to establish such a beneficial and satisfactory intercourse 'between the two countries, &c.'"

And then comes the 1st article, which is identical in language with the Treaty with the Netherlands, of 1782:

"His Britannic Majesty acknowledges the said United States, viz., New Hampshire, &c., to be free, sovereign and independent States."

The United States had previously, in the Treaty, been spoken of as one country, and the language I have just quoted is only a statement of the provinces of which they were composed; for, we all know, as matter of history, that there were other British provinces that might have joined in this Revolution, and might, perhaps, have been included in the settlement of peace; and this rendered it suitable and necessary that the provinces whose independence was acknowledged should be specifically described. But, in the 2d article, so far from the separateness of the nationalities with which the convention was made being at all recognized, that important article, which is the one of boundaries, goes on to bound the entire nation as one undivided and integral territory, without the least attention to the divisions between them. It may be very well to say that England was only concerned to have one continuous boundary, coterminous to her own possessions, described, and that that was the object of the geographical bounding; but the entire Western, Eastern, and Southern boundaries are gone through as those of one integral nation. The 3d article speaks, again, of securing certain rights to the citizens or inhabitants of "both countries." Now, that "country" and "nation," in the language of diplomacy, are descriptive, not of territory, in either case, but of the nationality, admits of no discussion; and yet, I believe that the most substantial of all the citations and of all the propositions from the documentary evidence of the Revolution, which seeks to make out the fact that we came into being as thirteen nations, grows out of this British Treaty, which, in its preamble, takes notice of but one country, called the United States of America, and, then, in recognition of the United States of America, names the States under a "viz."—they being included in the single collective nation before mentioned as the United States.

Now, gentlemen, after the Revolution had completed our independence, how were we left as respects our rights, our interests, our hopes, and our prospects on this very subject of nationality? Why, we were left in this condition—that we always had been accustomed to a parent or general Government, and to a local subordinate administration of our domestic affairs within the limits of our particular provinces. Under the good fortune, as well as the great wisdom which saw that this arrangement—a new one—quite a new one in the affairs of men—now that we were completely independent, and capable of being masters of our whole Government, both local and general, admitted of none of those discontents and dangers which belonged to our being subject collectively to the dominion of a remote power beyond the seas—under the good fortune and great wisdom of that opportunity, we undertook and determined to establish, and had already established provisionally, a complete Government, which we supposed would answer the purpose of having a general representation and protection of ourselves toward the world at large, and yet would limit the local power and authority, consistently with good and free Government, as respected populations homeogeneous, and acquainted with each other, and with their own wants and the methods of supplying them.

The Articles of Confederation, framed during the Revolution, ratified at different times during its progress, and at its close, was a Government under which we subsisted—for how long? Until 1787—but four years from the time that we had an independent nationality—we were satisfied with the imperfect Union that our provisional Government had originated, and that we had shaped into somewhat more consistency under the Articles of Confederation. Why did we not stay under that? We were a feeble community. We had but little population, but little wealth. We had but few of the occasions of discontent that belong to great, and wealthy, and populous States. But the fault, the difficulty, was, that there were, in that Confederation, too many features which our learned friends, their clients here, and theoretical teachers of theirs elsewhere, contend, make the distinctive character of the American Constitution, as finally developed and established. The difficulty was that, although we were apparently and intentionally a nation, as respected the rest of the world, and for all the purposes of common interest and common protection and common development, yet this element of separate independency, and these views that the Government thus framed operated, not as a Government over individuals, but as a Government over local communities in an organized form, made its working imperfect, impossible, and the necessary occasion of dissension, and weakness, and hostility, and left it without the least power, except by continued force and war, to maintain nationality.

Now, it was not because we were sovereigns, all of us, because we had departed from sovereignty. There was not the least right in any State to send an ambassador, or make a treaty, or have anything signed; but the vice was, that the General Government had no power or authority, directly, on the citizens of the States, but had to send its mandates for contributions to the common treasury, and its requirements for quotas for the common army and the common navy, directly to the States. Now, I tarry no longer on this than to say, that the brief experience of four years showed that it was an impossible proposition for a Government, that there should be in it even these imperfect, clipped and crippled independencies, that were made out of the original provinces and called States. In 1787, the great Convention had its origin, and in 1789 the adoption of the Constitution made something that was supposed to be, and entitled to be, and our citizens required to be, as completely different, on this question of double sovereignty, and divided allegiance, and equal right of the nation to require and of a State to refuse, as was possible. If, indeed, instead of the Confederation having changed itself from an imperfect connection of States limited and reduced in sovereignty, into a Government where the nation is the coequal and co-ordinate power (as our friends express it) of every State in it, why surely our brief experience of weakness and disorder, and of contempt, such as was visited upon us by the various nations with whom we had made treaties, that we could not fulfil them, found, in the practical wisdom of the intelligent American people, but a very imperfect and unsatisfactory solution, if the theories of the learned counsel are correct, that these United States are, on the one part, a power, and on the other part, thirty-four different powers, all sovereign, and the two having complete rights of sovereignty, and dividing the allegiance of our citizens in every part of our territory.