A. F. Warburton

“ You expose either the freedom of the nation, by making the Government too strong for the preservation of individual independence, or you expose its existence, by making it too weak to maintain itself against the passions, interests and power of neighboring nations. If you have a large nation—counting its population by many millions, and the circumference of its territory by thousands of miles—how can you arrange the strength of Government, so that it shall not, in the interests of human passions, grow too strong for the liberties of the people? ”

“ I am an American, and feel the strongest attachment to my country, growing out of affection and duty; but I cannot see that we present before the world, in carrying on this war, anything like a distinct and palpable theory. But I tell you, and I stand upon that prophecy, as embodying all the little intelligence I possess, that if it be a war for any purposes of mere subjugation—that if it be for the purpose of establishing a dictatorship, or designedly waged for the emancipation of all the slaves, our people never will sustain it at the North. ”

“ Oh, no! gentlemen, the human heart is a different thing; love and tenderness may melt and control it, but chains and manacles never yet subdued it. Call this piracy! why this is, indeed, confounding the order of things; and when the real piracy comes, you will feel no dislike or contempt for the offence. You give it a dignity by thus confounding it with crimes of a different nature. If these men are pirates, all are pirates who have taken naval commissions from the Confederate States, and all are robbers who have served them on land. Pirates! ”

“ Well, gentlemen, what is the duty of Government, when it has brought in prisoners arrested on the high seas, but to deliver them promptly to the civil authorities, as was done in this case—and then, in the language of the Constitution, which secures the right to them, to give them a speedy and impartial trial? That it is impartial, they all confess. How speedy is it? They say, they regret that it proceeds in time of war. Surely, our learned friends do not wish to be understood as having had denied to them in this Court any application which they have made for postponement. ”

“ All the prowess of the war, all the spirit of the Revolution, all the fortitude of the effort, all the self-denial of the sacrifice of that period, were for nothing, and worse than nothing, if the result and consummation of the whole were to be but a Government that contained within itself the seeds of its own destruction, and existed only at the caprice and whim of whatever part of the people should choose to deny its rightfulness or seek to overthrow its authority. ”

“ Government has duties, gentlemen, as well as rights. If our lives and our property are subject to its demands under the penal laws, or for its protection and enforcement as an authority in the world, it carries to every citizen, on the farthest sea, in the humblest schooner, and to the great population of these Southern States in their masses at home, that firm protection which shall secure him against the wicked and the willful assaults, whether it be of a pirate on a distant sea, or of an ambitious and violent tyranny upon land. ”

“ Away, then, with the notion, so foreign to our actual, constituted Government, that this Government of the United States of America is a Government that is extended over these States, with an origin, a power, a support independent of them, and that it contains in itself an arrangement, a principle, a composition that can by possibility excite or sustain these hostilities! Why, every act of Congress must govern the whole Union. ”

“ If disastrous war should sweep our commerce from the ocean, another generation may renew it; if it exhaust our treasury, future industry may replenish it; if it desolate and lay waste our fields, still, under a new cultivation, they will grow green again, and ripen to future harvests. It were but a trifle even if the walls of yonder Capitol were to crumble, if its lofty pillars should fall, and its gorgeous decorations be all covered by the dust of the valley. All these might be rebuilt. But who shall reconstruct the fabric of demolished Government? ”

“ Would it not be very strange if our nation should extend to those who revolt in any other country, when they have attained a certain formidable position before the world, the rights and humanities of civil war; and that, when any of our own people, under the claim of right and justice, however ill-founded, unfortunate, or otherwise, put themselves in an attitude of hostility to the Government, they are to be treated as outlaws and enemies to the human race, having no rights whatever incident to humanity and growing out of benign jurisprudence? ”

“ 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. ”

“ Stephens has so ably presented the folly of doing, to require that a great Government, counting in its population thirty millions of men, should not only be perfect in its design and general form and working, but that it should secure perfect action, perfect opinions, perfect spirit and sentiments from every one of its people—and that, made out of mere imperfect individuals who have nothing but poor human nature for their possession, it should suddenly become so transformed, as to be without a flaw, not only in its administration, but in the conduct of every body under it. ”

“ I need not say to you, gentlemen that, if all this encomium on the great fabric of our Government is brought to naught, and is made nonsense by the proposition that, although thus praised and thus admired, it contains within itself the principle, the right, the duty of being torn to pieces, whenever a fragment of its people shall be discontented and desire its destruction, then all this encomium comes but as sounding brass and a tinkling cymbal ”

“ How can a little nation, made up of Massachusetts, or made up of South Carolina, have a flag and a power which can protect its commerce in the East Indies and in the Southern Ocean? Again—we find that nations, unless they are separated by wide barriers, necessarily, in the course of human affairs, come into collision; and, as I have shown to you, the only arbitrament for their settlement is war. But war is a scourge—an unmitigated scourge—so long as it lasts, and in itself considered. ”

“ There has been, certainly, in modern times, no occasion when a Sovereign has not drawn, in his discretion, and under the influence of these principles of humanity and justice, this distinction, and has not interposed the shield of his own mercy between the offences of misled and misguided masses of his people and offended laws. We know the difference between law and its condemnation, and mercy and its saving grace; and we know that every Government exercises its discretion. ”

“ Though piracy may be, in the eye of the law, a less offence than treason, yet, as both are, in effect, punished with the same death, the same forfeiture, and the same corruption of the blood, I never would take from any fellow-creature whatever any sort of advantage which he may derive to his safety from the pity of mankind, or to his reputation from their general feelings by degrading his offence, when I cannot soften his punishment. ”

“ The reply of the United States is still, "We have no place there. But, notwithstanding we admit that throughout that territory we have no practical existence; we have no Court; we have no civil functionaries; we have no protection for allegiance to us; we have not a citizen who acknowledges his allegiance to us; we admit that the people in those States have excluded our government and established another, which is in active and exclusive control—notwithstanding all this, you are still our citizens; and none, nor all of these facts, relieve you from the guilt and liability to punishment." ”

“ 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? ”

“ And now, gentlemen, on the 23d March, 1776, on a Saturday, the little Continental Congress was sitting in the chamber, of which you have often seen the picture, composed of the great, wise, and good men, who sat there in deliberation over the most momentous event that has ever occurred in modern times, if we except that now agitating and convulsing our beloved country. I never heard one of those men stigmatized as a pirate. I never heard one of those men calumniated as an enemy of the human race. ”

“ In God's name, gentlemen, let us, if necessary, fight them; if we must have civil war, let us convince them, by the argument of arms, and by other arguments that we can bring to bear, that they are in the wrong; let us bring them back into the Union, and show them, when they get back, that they have made a great mistake; but do not let us tarnish the escutcheon of our country, and disgrace ourselves in the eyes of the civilized world, by treating this mighty subject, when States are meeting in mortal shock and conflict, with the ax and the halter. ”

“ Gentlemen of the Jury, you have a duty to perform that requires almost superhuman nerve and moral courage—requiring more prowess than to face the cannon's mouth. You have it in your power to prove to the nation, and to the whole civilized world, that in the administration of the criminal laws of the country, in a case involving the rights and interests of this Republic, before a Jury of New York citizens, that "justice can triumph over passion, and reason prevail over prejudice." ”

“ And, may it please the Court, this is the safe and true principle of construction—to give as little as possible to the discretion of the Courts; for it has been well said, that the arbitrary discretion of any man is the law of tyrants. It is always unknown; it is different in different men; it is casual, and depends on constitution, temper, and passion. In the best of us it is oftentimes caprice; in the worst of us it is every vice, folly and passion to which human nature is liable. It is by defining crime clearly that the citizen has his strongest guarantee for his personal safety. ”

“ There is nothing perfect in this world, of a human origin. Nothing connected with human nature, from man himself to any of his works. You may select the wisest and best men for your Judges, and yet how many defects are there in the administration of justice? You may select the wisest and best men for your legislators, and yet how many defects are apparent in your laws? And it is so in our Government.
"But that this Government of our fathers, with all its defects, comes nearer the objects of all good Governments than any on the face of the earth, is my settled conviction. ”

“ Now, it is quite immaterial whether this statute is accurate in declaring the offender to be "a pirate, felon, and robber." It has made the offence a crime. Under what restrictions has it made it a crime? Has it undertaken to extend the jurisdiction of the Federal Government, as supported by the law of nations respecting piracy, which is a right on the part of every nation to legislate not only for its own citizens—not only in protection of its own property—but in punishment of all pirates, of whatever origin, and in protection of all property on sea, and wherever owned? ”

“ Well, gentlemen, with these facts staring you in the face, I ask you if it is not flying in the face of history—if it is not rejecting and trampling in the dust the glorious traditions of our own country—to be asked seriously to sit in that jury box and try these men for their lives, as pirates and enemies of the human race, on the state of things existing here? ”