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. Warburton Adolphus Frederick
Virginia, Kentucky, Missouri, and other States—and where the opposing forces are not larger than those that met in any battle of the Revolution which gave this country its independence. Does humanity, which rules war as well as peace, permit that while whole States, forming almost one half of the Confederacy; have arrayed themselves as one man—for aught we know to the contrary—while they think, no matter how mistakenly, that they have grievances to be redressed, and that they have a right to exercise that privilege of electing their own Government, which we claimed for ourselves in the day of our own Revolution—does humanity, I say, permit, in such a state of things, one side or the other to treat its opponents as pirates and robbers, as enemies of the human race? Gentlemen, our brave men who are fighting our battles on land and sea have a deep interest in this question; and if the votes of our whole army could be taken on the question of whether, as a matter of State policy, these men should be treated as pirates and robbers, I believe, in my heart, that an almost unanimous vote would go up from its ranks not to permit such a state of things to take place.
I wish to say a word here, gentlemen, preliminarily, on another subject, and that is, what the duty and right of counsel is on a trial of this kind. I hold the doctrine that counsel, when he appears in Court to defend the life of one man, much less the lives of twelve men, is the alter ego of his clients—that he has no trammels on his lips, and that his conscience, and his duty to God, and to his profession, must direct him in his best efforts to save the lives of his clients,—and that it becomes his duty; regardless of all other considerations, except adherence to truth and the laws of rectitude, to present every argument for his clients which influenced their minds when they embarked in the enterprise for which they are placed before the Jury on trial for their lives. It is not the fault of counsel, in a case of this kind, if he is obliged to call the attention of the Jury to the past history of his own country, to the cotemporaneous expositions of its Constitution, to the decisions of its Courts of Judicature, and of the highest Court of the Union, which have laid down doctrines with reference to the Constitution of the Government, which are accepted at the present day, entirely incompatible with the success of this prosecution. In doing so, you will certainly perceive that, however much these men on trial for their lives may have been deceived and deluded, as I sincerely think they have been to a very great extent, and, as was frankly admitted by the learned counsel who opened the case for the prosecution, that at least, there was the strongest excuse for that deception and delusion among those of them who had read the Constitution of their Government, who had read its Declaration of Independence, who had read the cotemporaneous exposition of its Constitution, put forward by the wisest of the men who framed it, and on the honeyed accents of whose lips the plain citizens of the States reposed when they adopted the Constitution. If it had been their good fortune to be familiar with the decisions of its Courts, they had learned what the Supreme Court had said with reference to the sovereign rights of the States, and with reference to the strict limit and measure of power which they had conceded to the General Government, and there was, at least, a very strong excuse for their following those doctrines, however unpopular they may have become in a later day of the Republic.
One of the reasons why I most regret that the Government has thought fit to force these cases to trial at the present time is, that it forces the counsel for the prisoners, in the solemn discharge of their duty to their clients, whose lives hang in the balance, to call the attention of the Jury and the attention of the public to those doctrines, doing which, under other circumstances, might be considered as a needless interference with the efforts of the Government to restore peace to the country. But, as I say, I hold that our clients in this case have a right to all the resources of intelligence with which it has pleased God to bless their counsel. They have a right to every pulsation of their hearts, and I do not know that I can sum up the whole subject in more appropriate language than that used by the Marquis of Beccaria, which was quoted by John Adams on the trial of some British soldiers in Boston, who, in a time of great public excitement, had shot some citizens, and were placed on trial for their lives before a Jury in Boston. He quoted and adopted on that occasion, as his own, these memorable words of that great philanthropist: "If I can be but the instrument of saving one human life, his blessing and tears of gratitude will be a sufficient consolation to me for the contempt of all mankind." I hold, with John Adams, that counsel on a trial like this has no right to let any earthly consideration interfere with the full and free discharge of his duty to his client; and in what I have to say, and in my course on this trial, I will be actuated by that feeling, and by none other. And, gentlemen, I love my country when I say that; I feel as deep a stake in her prosperity as does any man within the hearing of my voice, and as deep a stake as any man who lives under the protection of her flag.
The Jury have a great and solemn duty to discharge on this occasion. They have the great and solemn duty to discharge of forgetting, if possible, that they are Americans, and of thinking, for the moment, that they have been transformed into subjects of other lands; of forgetting that there is a North or a South, an East or a West, and of remembering only that these twelve men are in peril of their lives, and that this Jury is to judge whether they have feloniously and piratically, with a criminal intent, done the act for which it is claimed their lives are forfeited to their country. I wish to dispel from the minds of the Jury, at the outset of this case, an illusion which has been attempted to be produced on them, with no improper motive, I am sure, by the counsel who opened the case on the part of the Government—that this trial is a mere matter of form. I tell you, gentlemen, that it is a trial involving the lives of twelve men, and this Jury are bound to assume, from the beginning to the end of the case, that if their verdict shall pronounce these men guilty of the crime of piracy, with which they are charged, every one of them will as surely terminate his life on the scaffold, as the sun will rise on the morrow of the day on which the verdict shall be pronounced. We have nothing to do with what the Government in its justice and clemency may see fit to do after that verdict has been pronounced. We are bound to believe that the Government does not put these men upon their trial with an intention to make the verdict, if it shall be one of guilty, a mere idle mockery. I, for one, while I love my country, and wish its Government to enjoy the respect of the whole world, would not be willing to believe that it would perform a solemn farce of that kind; and, gentlemen, as you value the peace and repose of your own consciences, you will, in the progress of this trial, from its beginning to its end, look on it in this light, and in none other.
Now, gentlemen, what is the crime of piracy, as we have all been taught to understand it from our cradle? My learned friend has given one definition of what a pirate is, by saying that he is the enemy of the human race. And how does his crime commence? Is it blazoned, before he starts on his wicked career, in the full light of the sun, or is it hatched in secret? Does it commence openly and frankly, with the eyes of his fellow-citizens looking on from the time that the design is conceived, or does it originate in the dark forecastle of some vessel on the seas, manned by wicked men, to whom murder and robbery have been familiar from their earliest days, and who usually commence by murdering the crew of the vessel, the safety of which has been partly entrusted to them? And when the first deed of wickedness has been done which makes pirates and outcasts of the men who perpetrated it, what is their career from that moment to the time when they end their lives, probably on the scaffold? Is it not one of utter disregard to the laws of God and man, and to those of humanity? Is it not a succession of deeds of cruelty, of rapine, of pillage, of wanton destruction? Who ever heard of pirates who, in the first place, commenced the execution of their design by public placards posted in the streets of a populous city like Charleston, approved of by their fellow-citizens of a great and populous city, and not only by them, but by the people of ten great and populous States? And who ever heard of pirates who, coming upon a vessel that was within the limits of the commission under which they were acting, took her as a prize, with an apology to her Captain for the necessity of depriving him of his property, and claiming to act under the authority of ten great and populous States, and under that authority alone? And who ever heard of pirates doing what has been testified to in this case by the witnesses for the Government,—taking one ship because she belonged to the enemies of the Confederate States, to which they sincerely believed they owed the duty of allegiance, and passing immediately under the stern of another vessel, because they knew by her build and appearance that she was a British vessel, and not an enemy of their country, as they believed?
But, gentlemen, the difficulties with which the prosecution had to contend, in