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diff --git a/36306-8.txt b/36306-8.txt new file mode 100644 index 0000000..0ec5c8e --- /dev/null +++ b/36306-8.txt @@ -0,0 +1,20978 @@ +The Project Gutenberg EBook of 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, by A. F. Warburton + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: 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 + +Author: A. F. Warburton + +Release Date: June 3, 2011 [EBook #36306] + +Language: English + +Character set encoding: ISO-8859-1 + +*** START OF THIS PROJECT GUTENBERG EBOOK TRIAL OF THE OFFICERS AND *** + + + + +Produced by Robert Cicconetti and the Online Distributed +Proofreading Team at http://www.pgdp.net (This file was +produced from images generously made available by The +Internet Archive/American Libraries.) + + + + + + +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. + + +HON. JUDGES NELSON AND SHIPMAN, PRESIDING. + + +REPORTED BY A. F. WARBURTON, STENOGRAPHER, +AND CORRECTED BY THE COUNSEL. + + +NEW YORK: +BAKER & GODWIN, PRINTERS, +PRINTING-HOUSE SQUARE, OPPOSITE CITY HALL. +1862. + + + + +CONTENTS. + + + Page + +PRELIMINARY PROCEEDINGS: + Capture of the Savannah; the removal of the prisoners to + New York, and their committal for trial, v + The Indictment, vi + The Arraignment, xiii + +TRIAL OF THE PRISONERS. FIRST DAY: + Organization of the Court, 1 + Impaneling of the Jury, 2 + Opening of Mr. E. Delafield Smith, United States + District Attorney, 14 + Testimony for the Prosecution: + Albert G. Ferris, 20 + William Habeson, 41 + George Thomas, 41 + George H. Cables, 41 + Thies N. Meyer, 42 + Horace W. Bridges, 46 + Silas H. Stringham, 48 + Argument on the Jurisdiction: + Mr. Larocque, 49 + Mr. Brady, 50 + Mr. Evarts, 50 + Mr. Larocque, 51 + +TRIAL. SECOND DAY: + Decision on the Jurisdiction, 54 + Testimony for the Prosecution, resumed: + Silas H. Stringham, 55 + David C. Constable, 60 + Daniel D. Tompkins, 62 + J. Buchanan Henry, 63 + Ethan Allen, 64 + Mr. Larocque's Opening for the Defence, 66 + Documentary Testimony, 108 + +TRIAL. THIRD DAY: + Documentary Testimony, 110 + Testimony for the Defence: + Daniel D. Tompkins, 112 + Presentation of Authorities by Counsel for the Prosecution, 113 + Arguments of Counsel on the Points of Law: + Mr. Lord, 117 + Mr. Larocque, 133 + +TRIAL. FOURTH DAY: + Arguments of Counsel on the Points of Law: + Mr. Larocque, continued, 144 + Mr. Mayer, 164 + Mr. Brady, 169 + Mr. Evarts, 170 + +TRIAL. FIFTH DAY: + Summings up of Counsel to the Jury: + Mr. Dukes, 204 + Mr. Sullivan, 218 + Mr. Davega, 231 + Mr. Brady, 236 + +TRIAL. SIXTH DAY: + Summings up of Counsel to the Jury: + Mr. Brady, continued, 270 + Mr. Evarts, 283 + +TRIAL. SEVENTH DAY: + Summings up of Counsel to the Jury: + Mr. Evarts, continued, 334 + Charge to the Jury, by Judge Nelson, 368 + Return of the Jury and further instructions, 373 + +TRIAL. EIGHTH DAY: + Discharge of the Jury, 375 + +APPENDIX: + President's Proclamation, April 15, 1861, 377 + Proclamation of the President, declaring a Blockade, 378 + Correspondence between Gov. Pickens and Major Anderson, 379 + Extracts from President Lincoln's Inaugural, 380 + The President's Speech to the Virginia Commissioners, 381 + Extracts from President Lincoln's Message to Congress, + July 4, 1861, 382 + Extracts from President Buchanan's Message to Congress, + December 4, 1860, 383 + Proclamation of August 16, 1861, 384 + + + + +PRELIMINARY PROCEEDINGS + + +During the month of May, 1861, the schooner Savannah, of Charleston, of +about fifty-three tons burden, and mounting one pivot gun, was fitted +out as a privateer, in the City of Charleston; and on the second of +June, under the authority of "a paper, purporting to be a letter of +marque, signed by Jefferson Davis," she sailed from that port for the +purpose of making captures among the commercial marine of the United +States. + +On the following day (Monday, June 3), after having captured the brig +Joseph, laden with sugar, she was, in turn, herself taken by the United +States brig-of-war Perry, Captain Parrott, and carried to the +blockading squadron, off Charleston, to the commander of which +(Commodore Stringham) she was surrendered by her captors. + +On the fifth of June the officers and crew of the Savannah were +transferred from the Perry to the United States steam-frigate +Minnesota, while the prize was taken in charge by a prize crew from the +Perry and sent to New York. + +The Minnesota, with the prisoners on board, proceeded, on her way to +New York, to Hampton Roads, where the prisoners were transferred to the +steam-cutter Harriet Lane; and thence, on board that vessel, they were +conveyed to New York, at which port they arrived in the course of the +month of June. + +On the arrival of the Harriet Lane at New York, the prisoners were +given in charge to the United States Marshal; and, on application of +the District Attorney of the United States, a warrant was issued, under +which the prisoners were committed for trial. + +On the 16th of July following, the Grand Jury of the Federal Court, +then sitting in this city, came into court and presented a true bill +against the prisoners, a copy of which Indictment is as follows:-- + + CIRCUIT COURT OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN + DISTRICT OF NEW YORK, IN THE SECOND CIRCUIT.[1] + + At a stated Term of the Circuit Court of the United States of + America for the Southern District of New York, in the Second + Circuit, begun and held at the City of New York, within and for the + District and Circuit aforesaid, on the first Monday of April, in + the year of our Lord 1861, and continued by adjournments to the + 26th day of June in the year last aforesaid: + + [1] At the request of the United States District Attorney, + the publishers state that the Indictment was mainly the work + of Mr. JOHN SEDGWICK, of the New York bar. + + Southern District of New York, ss.:--The Jurors of the United + States of America, within and for the District and Circuit + aforesaid, on their oath, present: + + That Thomas Harrison Baker, late of the City and County of New + York, in the District and Circuit aforesaid, mariner; and John + Harleston, late of the same place, mariner; Charles Sidney + Passalaigue, late of the same place, mariner; Henry Cashman Howard, + late of the same place, mariner; Joseph Cruz del Carno, late of the + same place, mariner; Henry Oman, late of the same place, mariner; + Patrick Daly, late of the same place, mariner; William Charles + Clark, late of the same place, mariner; Albert Gallatin Ferris, + late of the same place, mariner; Richard Palmer, late of the same + place, mariner; John Murphy, late of the same place, mariner; + Alexander Carter Coid, late of the same place, mariner; and Martin + Galvin, late of the same place, mariner, on the 3d day of June, + A.D. 1861, upon the high seas, out of the jurisdiction of any + particular State, and within the admiralty and maritime + jurisdiction of the said United States of America, and within the + jurisdiction of this Court, did, with force and arms, piratically, + feloniously, and violently set upon, board, break, and enter a + certain vessel, to wit, a brig called the Joseph, the same being + then and there owned in whole or in part, by a citizen or citizens + of the United States of America, whose name or names are to the + Jurors aforesaid unknown, and did then and there in and on board of + the said brig, the Joseph, in and upon one Thies N. Meyer, then and + there being a mariner, and then and there one of the ship's company + of the said brig, the Joseph, and then and there master and + commander thereof, and in and upon Horace W. Bridges, Albert Nash, + William H. Clanning, John J. Merritt, John Quin, and Joseph H. + Golden, each then and there being a mariner and one of the ship's + company of the said brig, the Joseph, piratically, feloniously, and + violently make an assault, and them did then and there piratically, + feloniously, and violently, put in personal fear and danger of + their lives, and did then and there, the brig, the said Joseph, of + the value of $3,000, and the tackle, apparel, and furniture + thereof, of the value of $500, and 250 hogsheads of sugar, of the + value of $100 each hogshead, of the goods, chattels, and personal + property of certain persons whose names are to the jurors aforesaid + unknown, the said 250 hogsheads of sugar being then and there in + and on board of the said brig, and being then and there the lading + thereof, and the said brig, the tackle, apparel, and furniture + thereof, and the said 250 hogsheads of sugar, being then and there + in the care, custody, and possession of the said Thies N. Meyer, + Horace W. Bridges, Albert Nash, William H. Clanning, John J. + Merritt, John Quin, and Joseph H. Golden, from the said Thies N. + Meyer, Horace W. Bridges, Albert Nash, William H. Clanning, John J. + Merritt, John Quin, and Joseph H. Golden, and from their said + possession, care, and custody, and in their presence and against + their will, violently, piratically, and feloniously seize, rob, + steal, take, and carry away against the form of the statute of the + said United States of America in such case made and provided, and + against the peace of the said United States and their dignity. + + _Second Count_: And the jurors aforesaid, upon their oath + aforesaid, do further present: That Thomas Harrison Baker, late of + the City and County of New York, in the District and Circuit + aforesaid, mariner; and John Harleston, late of the same place, + mariner; Charles Sidney Passalaigue, late of the same place, + mariner; Henry Cashman Howard, late of the same place, mariner; + Joseph Cruz del Carno, late of the same place, mariner; Henry Oman, + late of the same place, mariner; Patrick Daly, late of the same + place, mariner; William Charles Clark, late of the same place, + mariner; Albert Gallatin Ferris, late of the same place, mariner; + Richard Palmer, late of the same place, mariner; John Murphy, late + of the same place, mariner; Alexander Carter Coid, late of the same + place, mariner; and Martin Galvin, late of the same place, mariner, + on the third day of June, in the year of our Lord 1861, upon the + high seas, out of the jurisdiction of any particular State, and + within the admiralty and maritime jurisdiction of the said United + States of America, and within the jurisdiction of this Court, did, + with force and arms, piratically, feloniously, and violently set + upon, board, break, and enter a certain American vessel, to wit, a + brig called the Joseph, the same then and there being owned, in + part, by George H. Cables, John Cables, and Stephen Hatch, then + citizens of the United State of America, and did then and there, in + and on board of the said brig, the Joseph, in and upon one Thies N. + Meyer, then and there being a mariner and one of the ship's company + of the said brig, the Joseph, and master and commander thereof, and + in and upon divers other persons, each then and there being a + mariner and one of the ship's company of the said brig, the Joseph, + whose names are to the jurors aforesaid unknown, piratically, + feloniously, and violently make an assault, and them did then and + there piratically, feloniously, and violently put in bodily fear + and danger of their lives, and did then and there, the said brig, + the said Joseph, of the value of three thousand dollars, and the + tackle, apparel, and furniture of the same, of the value of five + hundred dollars, of the goods, chattels, and personal property of + George H. Cables, John Cables, and Stephen Hatch, citizens of the + United States of America, and two hundred and fifty hogsheads of + sugar, of the value of one hundred dollars each hogshead, of the + goods, chattels, and personal property of one Morales, whose + Christian name is to the jurors aforesaid unknown, the said sugar + being then and there in and on board of the said brig, the Joseph, + and being then and there the lading thereof, and the said brig and + the tackle, apparel, and furniture thereof, and the said two + hundred and fifty hogsheads of sugar then and there being in the + care, custody, and possession of the said Thies N. Meyer, and the + said divers other persons, mariners, as aforesaid, and of the + ship's company of the said brig, the Joseph, and whose names are to + the jurors aforesaid unknown, from the said Thies N. Meyer and the + said divers other persons, mariners, aforesaid, and of the ship's + company of the said brig, the Joseph, whose names are, as + aforesaid, to the jurors aforesaid, unknown, and from their care, + custody, and possession, and in their presence and against their + will, piratically, feloniously, and violently, rob, seize, steal, + take and carry away, against the form of the statute of the said + United States of America in such case made and provided, and + against the peace of the said United States and their dignity. + + _Third Count_: And the jurors aforesaid, upon their oath aforesaid, + do further present: That Thomas Harrison Baker, late of the City + and County of New York, in the District and Circuit aforesaid, + mariner; and John Harleston, late of the same place, mariner; + Charles Sidney Passalaigue, late of the same place, mariner; Henry + Cashman Howard, late of the same place, mariner; Joseph Cruz del + Carno, late of the same place, mariner; Henry Oman, late of the + same place, mariner; Patrick Daly, late of the same place, mariner; + William Charles Clark, late of the same place, mariner; Albert + Gallatin Ferris, late of the same place, mariner; Richard Palmer, + late of the same place, mariner; John Murphy, late of the same + place, mariner; Alexander Carter Coid, late of the same place, + mariner; and Martin Galvin, late of the same place, mariner, on the + 3d day of June, A.D. 1861, upon the high seas, out of the + jurisdiction of any particular State, and within the admiralty and + maritime jurisdiction of the said United States of America, and + within the jurisdiction of this Court, did, with force and arms, + piratically, feloniously, and violently set upon, board, break, and + enter a certain vessel, to wit: a brig called the Joseph, then and + there being owned by certain persons, citizens of the United States + of America, to wit: George H. Cables, John Cables, and Stephen + Hatch, of Rockland, in the State of Maine, and in and upon certain + divers persons whose names are to the jurors aforesaid unknown, the + said last-mentioned persons each being then and there a mariner, + and of the ship's company of the said brig called the Joseph, and + then and there being in and on board of the said brig the Joseph, + did then and there, piratically, feloniously, and violently make an + assault, and them did then and there piratically, feloniously, and + violently put in bodily fear, and the said brig, the Joseph, of the + value of $3,000; the apparel, tackle, and furniture thereof, of the + value of $500; of the goods, chattels, and personal property of the + said George H. Cables, John Cables, and Stephen Hatch, and 250 + hogsheads of sugar of the value of $100 each hogshead, of the + goods, chattels, and personal property of one Thies N. Meyer, from + the said divers persons, mariners, as aforesaid, whose names are to + the jurors aforesaid unknown, in their presence, then and there, + and against their will, did then and there piratically, + feloniously, and violently seize, rob, steal, take, and carry away, + against the form of the statute of the said United States of + America in such case made and provided, and against the peace of + the said United States and their dignity. + + _Fourth Count_: And the jurors aforesaid, upon their oath + aforesaid, do further present: That Thomas Harrison Baker, late of + the City and County of New York, in the District and Circuit + aforesaid, mariner; and John Harleston, late of the same place, + mariner; Charles Sidney Passalaigue, late of the same place, + mariner; Henry Cashman Howard, late of the same place, mariner; + Joseph Cruz del Carno, late of the same place, mariner; Henry Oman, + late of the same place, mariner; Patrick Daly, late of the same + place, mariner; William Charles Clark, late of the same place, + mariner; Albert Gallatin Ferris, late of the same place, mariner; + Richard Palmer, late of the same place, mariner; John Murphy, late + of the same place, mariner; Alexander Carter Coid, late of the same + place, mariner; and Martin Galvin, late of the same place, mariner, + on the third day of June, in the year of our Lord one thousand + eight hundred and sixty one, upon the high seas, out of the + jurisdiction of any particular State, and within the admiralty and + maritime jurisdiction of the said United States of America, and + within the jurisdiction of this Court, did, with force and arms, + piratically, feloniously, and violently set upon, board, break, and + enter a certain vessel then and there being, to wit, a brig called + the Joseph, and in and upon one Thies N. Meyer, then and there + being in and on board of the said brig, and being a mariner and + master and commander of the said brig, and the said Thies N. Meyer + then and there being a citizen of the United States of America, did + then and there piratically, feloniously, and violently make an + assault, and him, the said Thies N. Meyer, did then and there + piratically, feloniously, and violently put in great bodily fear, + and the said brig, the Joseph, of the value of $3,000, and the + tackle, apparel, and furniture thereof, of the value of $500, and + 250 hogsheads of sugar, of the value of $100 each hogshead, the + same then and there being of the lading of the said brig, of the + goods, chattels, and personal property of the said Thies N. Meyer, + in his presence and against his will, did violently, feloniously, + and piratically rob, steal, seize, take, and carry away, against + the form of the statute of the said United States of America in + such case made and provided, and against the peace of the said + United States and their dignity. + + _Fifth Count_: And the jurors aforesaid, upon their oath aforesaid, + do further present: That Thomas Harrison Baker, late of the City + and County of Nev York, in the District and Circuit aforesaid, + mariner; and John Harleston, late of the same place, mariner; + Charles Sidney Passalaigue, late of the same place, mariner; Henry + Cashman Howard, late of the same place, mariner; Joseph Cruz del + Carno, late of the same place, mariner; Henry Oman, late of the + same place, mariner; Patrick Daly, late of the same place, mariner; + William Charles Clark, late of the same place, mariner; Albert + Gallatin Ferris, late of the same place, mariner; Richard Palmer, + late of the same place, mariner; John Murphy, late of the same + place, mariner; Alexander Carter Coid, late of the same place, + mariner; and Martin Galvin, late of the same place, mariner, each + being a citizen of the United States of America, on the 3d day of + June, in the year of our Lord 1861, upon the high seas, out of the + jurisdiction of any particular State, and within the admiralty and + maritime jurisdiction of the United States of America, and within + the jurisdiction of this Court, in and upon one Thies N. Meyer, + then and there being, the said Thies N. Meyer then and there being + a citizen of the said United States, and he, the said Thies N. + Meyer, then and there being in and on board of a certain American + vessel of the United States of America, to wit, a brig called the + Joseph, and the said brig then and there being on the high seas as + aforesaid, did, piratically, feloniously and violently, make an + assault, and him, the said Thies N. Meyer, did, piratically, + feloniously and violently, then and there put in bodily fear, and + the said brig, the Joseph, of the value of $3,000, the tackle, + apparel and furniture of the same, of the value of $500, and 250 + hogsheads of sugar, of the value of $100 each hogshead, of the + goods, chattels and personal property of the said Thies N. Meyer, + from the said Thies N. Meyer, and in his presence, and against his + will, did, piratically, feloniously and violently, seize, rob, + steal, take and carry away, against the form of the statute of the + said United States of America in such case made and provided, and + against the peace of the said United States and their dignity. + + _Sixth Count_: And the Jurors aforesaid, upon their oath aforesaid, + do further present: That Thomas Harrison Baker, late of the City + and County of New York, in the District and Circuit aforesaid, + mariner; and John Harleston, late of the same place, mariner; + Charles Sidney Passalaigue, late of the same place, mariner; Henry + Cashman Howard, late of the same place, mariner; Joseph Cruz del + Carno, late of the same place, mariner; Henry Oman, late-of the + same place, mariner; Patrick Daly, late of the same place, mariner; + William Charles Clark, late of the same place, mariner; Albert + Gallatin Ferris, late of the same place, mariner; Richard Palmer, + late of the same place, mariner; John Murphy, late of the same + place, mariner; Alexander Carter Coid, late of the same place, + mariner; and Martin Galvin, late of the same place, mariner, on the + 3d day of June, in the year of our Lord 1861, upon the high seas, + out of the jurisdiction of any particular State, and within the + admiralty and maritime jurisdiction of the said United States of + America, and within the jurisdiction of this Court, each then and + there being a citizen of the said United States of America, did, on + pretense of authority from a person, to wit, one Jefferson Davis, + with force and arms, piratically, feloniously and violently set + upon, board, break and enter, a certain vessel, to wit, a brig + called the Joseph, the same being then and there owned, in whole or + in part, by a citizen or citizens of the United States of America, + whose name or names are to the Jurors aforesaid unknown, and did, + on pretense of authority from a person, to wit, one Jefferson + Davis, then and there in and on board of the said brig, the Joseph, + in and upon one Thies N. Meyer, then and there being a mariner, and + then and there one of the ship's company of the said brig, the + Joseph, and then and there master and commander thereof, and in and + upon Horace W. Bridges, Albert Nash, William H. Clanning, John J. + Merritt, John Quin, and Joseph H. Golden, each then and there being + a mariner and one of the ship's company of the said brig, the + Joseph, piratically, feloniously and violently make an assault, and + them did, on pretense of authority from a person, to wit, one + Jefferson Davis, then and there piratically, feloniously and + violently, put in personal fear and danger of their lives, and did, + on pretense of authority from a person, to wit, one Jefferson + Davis, then and there, the brig, the said Joseph, of the value of + $3,000, and the tackle, apparel and furniture thereof, of the value + of $500, and two hundred and fifty hogsheads of sugar, of the value + of $100 each hogshead, of the goods, chattels and personal property + of certain persons whose names are to the Jurors aforesaid unknown, + the said two hundred and fifty hogsheads of sugar being then and + there in and on board of the said brig, and being then and there + the lading thereof, and the said brig, the tackle, apparel and + furniture thereof and the said two hundred and fifty hogsheads of + sugar, being then and there in the care, custody and possession of + the said Thies N. Meyer, Horace W. Bridges, Albert Nash, William H. + Clanning, John J. Merritt, John Quin and Joseph H. Golden, from the + said Thies N. Meyer, Horace W. Bridges, Albert Nash, William H. + Clanning, John J. Merritt, John Quin and Joseph H. Golden, and from + their said possession, care and custody, and in their presence and + against their will, violently, piratically and feloniously, seize, + rob, steal, take and carry away, against the form of the statute of + the said United States of America in such case made and provided, + and against the peace of the said United States and their dignity. + + _Seventh Count_: And the Jurors aforesaid upon their oath + aforesaid, do further present: That Thomas Harrison Baker, late of + the City and County of New York, in the District and Circuit + aforesaid, mariner; and John Harleston, late of the same place, + mariner; Charles Sidney Passalaigue, late of the same place, + mariner; Henry Cashman Howard, late of the same place, mariner; + Joseph Cruz del Carno, late of the same place, mariner; Henry Oman, + late of the same place, mariner; Patrick Daly, late of the same + place, mariner; William Charles Clark, late of the same place, + mariner; Albert Gallatin Ferris, late of the same place, mariner; + Richard Palmer, late of the same place, mariner; John Murphy, late + of the same place, mariner; Alexander Carter Coid, late of the same + place, mariner; and Martin Galvin, late of the same place, mariner, + on the third day of June, in the year of our Lord one thousand + eight hundred and sixty-one, upon the high seas, out of the + jurisdiction of any particular State, and within the admiralty and + maritime jurisdiction of the said United States of America, and + within the jurisdiction of this Court, each then and there being a + citizen of the said United States of America, did, on pretense of + authority from a person, to wit, one Jefferson Davis, with force + and arms, piratically, feloniously and violently set upon, board, + break and enter a certain American vessel, to wit, a brig called + the Joseph, the same then and there being owned in part by George + H. Cables, John Cables and Stephen Hatch, then citizens of the + United States of America, and did, on pretense of authority from a + person, to wit, one Jefferson Davis, then and there in and on board + of the said brig, the Joseph, in and upon one Thies N. Meyer, then + and there being a mariner and one of the ship's company of the said + brig, the Joseph, and master and commander thereof, and in and upon + divers other persons, each then and there being a mariner, and one + of the ship's company of the said brig, the Joseph, whose names are + to the Jurors aforesaid unknown, piratically, feloniously and + violently make an assault, and them did, on pretense of authority + from a person, to wit, one Jefferson Davis, then and there, + piratically, feloniously and violently, put in bodily fear and + danger of their lives, and did, on pretense of authority from a + person, to wit, one Jefferson Davis, then and there, the said brig, + the said Joseph, of the value of $3,000, and the tackle, apparel + and furniture of the same, of the value of $500, of the goods, + chattels and personal property of George H. Cables, John Cables and + Stephen Hatch, citizens of the United States of America, and two + hundred and fifty hogsheads of sugar, of the value of $100 each + hogshead, of the goods, chattels and personal property of one + Morales, whose Christian name is to the Jurors aforesaid unknown, + the said sugar being then and there in and on board the said brig, + the Joseph, and being then and there the lading thereof, and the + said brig, and the tackle, apparel and furniture thereof, and the + said two hundred and fifty hogsheads of sugar, then and there being + in the care, custody and possession of the said Thies N. Meyer and + the said divers other persons, mariners as aforesaid, and of the + ship's company of the said brig, the Joseph, and whose names are to + the Jurors aforesaid unknown, from the said Thies N. Meyer and the + said divers other persons, mariners as aforesaid, and of the ship's + company of the said brig, the Joseph, whose names are as aforesaid + to the Jurors aforesaid unknown, and from their care, custody and + possession, and in their presence and against their will, + piratically, feloniously, and violently, rob, seize, steal, take + and carry away, against the form of the statute of the said United + States of America in such case made and provided, and against the + peace of the said United States and their dignity. + + _Eighth Count_: And the Jurors aforesaid, upon their oath + aforesaid, do further present: That Thomas Harrison Baker, late of + the City and County of New York, in the District and Circuit + aforesaid, mariner; and John Harleston, late of the same place, + mariner; Charles Sidney Passalaigue, late of the same place, + mariner; Henry Cashman Howard, late of the same place, mariner; + Joseph Cruz del Carno, late of the same place, mariner; Henry Oman, + late of the same place, mariner; Patrick Daly, late of the same + place, mariner; William Charles Clark, late of the same place, + mariner; Albert Gallatin Ferris, late of the same place, mariner; + Richard Palmer, late of the same place, mariner; John Murphy, late + of the same place, mariner; Alexander Carter Coid, late of the same + place, mariner; and Martin Galvin, late of the same place, mariner, + on the 3d day of June, in the year of our Lord, 1861, upon the high + seas, out of the jurisdiction of any particular State and within + the admiralty and maritime jurisdiction of the said United States + of America and within the jurisdiction of this Court, each then and + there being a citizen of the said United States of America, did, on + pretense of authority from a person, to wit, one Jefferson Davis, + with force and arms, piratically, feloniously, and violently, set + upon, board, break, and enter a certain vessel, to wit, a brig, + called the Joseph, then and there being owned by certain persons, + citizens of the United States of America, to wit, George H. Cables, + John Cables, and Stephen Hatch, of Rockland, in the State of Maine, + and in and upon certain divers persons whose names are to the + Jurors aforesaid unknown, the said last-mentioned persons each + being then and there a mariner, and of the ship's company of the + said brig called the Joseph, and then and there being in and on + board of the said brig, the Joseph, did, on pretense of authority + from a person, to wit, one Jefferson Davis, then and there, + piratically, feloniously, and violently, make an assault, and them + did, on pretense of authority from a person, to wit, one Jefferson + Davis, then and there, piratically, feloniously, and violently, put + in bodily fear, and the said brig, the Joseph, of the value of + $3,000, and the apparel, tackle, and furniture thereof, of the + value of $500, of the goods, chattels, and personal property of the + said George H. Cables, John Cables, and Stephen Hatch, and 250 + hogsheads of sugar, of the value of $100 each hogshead, of the + goods, chattels, and personal property of one Thies N. Meyer, from + the said divers persons, mariners as aforesaid, whose names are to + the Jurors aforesaid unknown, in their presence, then and there, + and against their will, did, on pretense of authority from a + person, to wit, one Jefferson Davis, then and there, piratically, + feloniously, and violently, seize, rob, steal, take and carry away, + against the form of the statute of the said United States of + America in such case made and provided, and against the peace of + the said United States and their dignity. + + _Ninth Count_: And the Jurors aforesaid, upon their oath aforesaid, + do further present: That Thomas Harrison Baker, late of the City + and County of New York, in the District and Circuit aforesaid, + mariner; and John Harleston, late of the same place, mariner; + Charles Sidney Passalaigue, late of the same place, mariner; Henry + Cashman Howard, late of the same place, mariner; Joseph Cruz del + Carno, late of the same place, mariner; Henry Oman, late of the + same place, mariner; Patrick Daly, late of the same place, mariner; + William Charles Clark, late of the same place, mariner; Albert + Gallatin Ferris, late of the same place, mariner; Richard Palmer, + late of the same place, mariner; John Murphy, late of the same + place, mariner; Alexander Carter Coid, late of the same place, + mariner; and Martin Galvin, late of the same place, mariner, on the + 3d day of June, in the year of our Lord 1861, upon the high seas, + out of the jurisdiction of any particular State, and within the + admiralty and maritime jurisdiction of the said United States of + America, and within the jurisdiction of this Court, each then and + there being a citizen of the said United States of America, did, on + pretense of authority from a person, to wit, one Jefferson Davis, + with force and arms, piratically, feloniously, and violently set + upon, board, break, and enter a certain vessel then and there + being, to wit, a brig called the Joseph, and in and upon one Thies + N. Meyer, then and there being in and on board of the said brig, + and being a mariner and master and commander of the said brig, and + the said Thies N. Meyer then and there being a citizen of the + United States of America, did, on pretense of authority from a + person, to wit, one Jefferson Davis, then and there, piratically, + feloniously, and violently, make an assault, and him, the said + Thies N. Meyer, did, on pretense of authority from a person, to + wit, one Jefferson Davis, then and there, piratically, feloniously, + and violently, put in great bodily fear, and the said brig, the + Joseph, of the value of $3,000, and the tackle, apparel, and + furniture thereof, of the value of $500, and 250 hogsheads of + sugar, of the value of $100 each hogshead, the same then and there + being of the lading of the said brig, of the goods, chattels, and + personal property of the said Thies N. Meyer, in his presence and + against his will, did, on pretense of authority from a person, to + wit, one Jefferson Davis, violently, feloniously, and piratically, + rob, steal, seize, take, and carry away, against the form of the + statute of the said United States of America in such case made and + provided, and against the peace of the said United States and their + dignity. + + _Tenth Count_: And the Jurors aforesaid, upon their oath aforesaid, + do further present: That Thomas Harrison Baker, late of the City + and County of New York, in the District and Circuit aforesaid, + mariner; and John Harleston, late of the same place, mariner; + Charles Sidney Passalaigue, late of the same place, mariner; Henry + Cashman Howard, late of the same place, mariner; Joseph Cruz del + Carno, late of the same place, mariner; Henry Oman, late of the + same place, mariner; Patrick Daly, late of the same place, mariner; + William Charles Clark, late of the same place, mariner; Albert + Gallatin Ferris, late of the same place, mariner; Richard Palmer, + late of the same place, mariner; John Murphy, late of the same + place, mariner; Alexander Carter Coid, late of the same place, + mariner; and Martin Galvin, late of the same place, mariner, each + being a citizen of the United States of America, on the 3d day of + June, in the year of our Lord 1861, upon the high seas, out of the + jurisdiction of any particular State, and within the admiralty and + maritime jurisdiction of the United States of America, and within + the jurisdiction of this Court, in and upon one Thies N. Meyer, + then and there being, the said Thies N. Meyer, then and there being + a citizen of the said United States, and he, the said Thies N. + Meyer, then and there being in and on board of a certain American + vessel, of the United States of America, to wit, a brig called the + Joseph, and the said brig then and there being on the high seas as + aforesaid, did, on pretense of authority from a person, to wit, one + Jefferson Davis, piratically, feloniously and violently, make an + assault, and him, the said Thies N. Meyer, did, on pretense of + authority from a person, to wit, one Jefferson Davis, piratically, + feloniously and violently, then and there put in bodily fear, and + the said brig, the Joseph, of the value of $3,000, the tackle, + apparel and furniture of the same, of the value of $500, and 250 + hogsheads of sugar, of the value of $100 each hogshead, of the + goods, chattels and personal property of the said Thies N. Meyer, + from the said Thies N. Meyer, and in his presence, and against his + will, did, on pretense of authority from a person, to wit, one + Jefferson Davis, piratically, feloniously and violently seize, rob, + steal, take and carry away, against the form of the statute of the + said United States of America in such case made and provided, and + against the peace of the said United States and their dignity. + + And the Jurors aforesaid, on their oath aforesaid, do further + present: That the Southern District of New York, in the Second + Circuit, is the district and circuit in which the said Thomas + Harrison Baker, John Harleston, Charles Sidney Passalaigue, Henry + Cashman Howard, Joseph Cruz del Carno, Henry Oman, Patrick Daly, + William Charles Clark, Albert Gallatin Ferris, Richard Palmer, John + Murphy, Alexander Carter Coid, and Martin Galvin, were brought and + in which they were found, and is the district and circuit where + they were apprehended, and into which they were first brought, for + the said offense. + + E. DELAFIELD SMITH, + + Attorney of the United States for the Southern District of New + York. + + +On Wednesday, the seventeenth of July, the prisoners were brought into +Court to plead to the Indictment, when MR. E. DELAFIELD SMITH, United +States District Attorney, said: + +_If the Court please_,--In the case of Baker and others, the prisoners +now at the bar, indicted for robbery on the high seas, I move that they +be arraigned. I may here remark, that I have caused the service of a +notice of this motion upon all the counsel known to me as engaged in +the case; and if any gentleman has not received a notification, the +omission proceeds from the fact that his name has not been given to the +District Attorney. I understand that Mr. Larocque is counsel for one or +two of the prisoners, and that he is in the building. + + +_Mr. Larocque_ here entered the Court. + + +_The District Attorney_: I would now renew my motion that the prisoners +at the bar be arraigned under the indictment presented yesterday. + +_Mr. Larocque_: If your honor please, I represent but one of the +prisoners. There are other counsel, I believe, who represent them +generally. I appear for Mr. Harleston (the mate), and I will now state +what I have to say with respect to the motion made by the District +Attorney. Mr. Daniel Lord is associated with me, and I believe he is +now engaged in the adjoining Court, but will soon be here. The Court +will perceive that the learned District Attorney has very properly +taken a considerable period of time for the framing of this indictment. +It is some weeks now since the warrant of arrest was issued, and the +course which he has taken certainly deserves great commendation; for +the indictment in this case, more than any other that has ever been +found in this Court, required greater care in its preparation, and it +is one which will certainly present more important questions than +probably any that has ever been tried in this Court. The indictment was +only presented yesterday, and, as far as I am concerned, I was only +informed of its presentation late yesterday afternoon. Of course, I had +no opportunity to examine it. I believe it is quite a voluminous +document, and contains a great many counts; and before the prisoners at +the bar would be prepared to plead to the indictment, it will certainly +be necessary that their counsel should examine it with care, and +determine what course to take with regard to it; and then, probably, +there may be some application that it will be necessary to make to the +Court before the prisoners will be prepared to plead. I therefore +desire a postponement for that purpose, until we can have time to +examine this indictment. + +_The District Attorney_: I doubt not it is proper that time should be +given to examine this indictment, and to adopt such course with respect +to it as gentlemen standing in the sacred relation of counsel may deem +it their duty to take. I should be very glad, however, if that time +could be, with due regard to the convenience of counsel, so near as +that the pleas may be recorded and the trial set down for some day +before the Court adjourns. I shall be ready, if your honor please, on +behalf of the Government, to try the prisoners on any day. I shall be +prepared to try them within two or three days; but, certainly, it is +right that counsel should have time to examine the indictment, as +suggested. I hope only that such examination may be made speedily, as I +understand your honor will adjourn the Court at an early day. + +_Mr. Larocque_: It would be utterly impossible for this case to be +tried this term. In conversation with the counsel for the Government, a +few days ago, the gentleman himself declared that the case could not be +tried this term of the Court, and it would be impossible, your honor, +for us to be ready for trial during this term. It will be necessary for +us to obtain testimony from abroad, out of the limits of this State, +and that cannot be procured in time to try the case this term. +Certainly, no interest of public justice can suffer by a delay of the +trial of this case; and I think it is eminently proper, and I am sure +the Court will agree with me, that a proceeding of this importance +should be conducted with deliberation, and that ample time should be +given to the prisoners to prepare their defence. I had understood, +moreover, that some intimation had been made by your honor's associate +on the bench (Judge Nelson) that he would attend upon the trial of this +case. I am told that Judge Nelson met with an accident shortly after +his return home from his attendance upon his judicial duties, by being +run away with by a horse, and that he is so lame that he is unable to +move at present; and I am very credibly assured that Judge Nelson has +expressed his conviction that it was his duty to attend and to sit on +the trial of this case. Very important questions of law will be +presented, and your honor is aware that in a criminal case in this +Court there is no writ of error. The prisoner has the right to a review +of any decision that might be made in this Court, in case a difference +of opinion should arise between the Judges who preside. And certainly, +in a case of such great importance as this is, where the lives of so +many prisoners are at stake, it is of the utmost consequence that there +should be a full Court present when the prisoners are tried. So far +with respect to the trial of the case. Now, your honor is also aware +that, by the statutes of the United States, the prisoners have a right +to a certain period of time before any movement can be made with a view +to trial. We certainly cannot be ready to plead to this indictment in +less than a week. + +_The District Attorney_: The Court will permit a single remark +concerning the conversation to which my learned friend has alluded. I +never intended to say decidedly that the trial could not take place +during the present term. I did, however, at one time, express an +opinion that, as the term was nearly ended, and as the summer was upon +us, probably I should not succeed in bringing the case on for trial +until the autumn. As, however, the indictment has been promptly found, +delay till fall is, I trust, unnecessary. Events continually taking +place upon the ocean seem to render it important that the trial should +take place at an early day. With these suggestions, I leave the matter +entirely with the Court, where, of course, it ultimately belongs. + +_Mr. Sullivan_: May it please the Court, I appear for Captain Baker, +the first prisoner named in the indictment. + +_Judge Shipman_ asked who appeared for the other prisoners. He wished +to know if all the prisoners were supplied with counsel; if not, he +would assign them counsel. + +_Mr. Sullivan_ said he did not desire a week's postponement, as he +understood his honor had intimated that the Court would adjourn on +Wednesday. As to the time of trial, he was authorized and instructed +specially to say for Captain Baker that he would ask for no delay other +than what was absolutely necessary for his counsel to prepare. He (Mr. +Sullivan) hoped that the Court would continue its session specially to +hear the case, or at least to try some portion of the defendants. He +made that remark on the presumption that the defendants would ask to be +tried separately. + +_Mr. Mayer_ said he appeared for one of the seamen, Wm. C. Clark; and +he concurred in Mr. Larocque's remarks. + +_Judge Shipman_: It is hardly necessary now to discuss when the case +will be set down for trial. The motion now before the Court is for the +arraignment of the prisoners, and counsel asks for time to plead. I +should like to know the names of the counsel who appear for the +prisoners. + +_Mr. Larocque_ said he appeared, in conjunction with Mr. Lord, for Mr. +Harleston. + +_Mr. Ridgway_ appeared for the sailors Carno, Oman, Daly, Palmer, +Murphy, Galvin, and Coid; and he, also, concurred in the motion for +time to plead. + +_Mr. Sandford_ appeared for Albert G. Ferris, and desired that the +trial should be brought on as speedily as possible. + +_The District Attorney_: I have a suggestion to make as to the time of +pleading. With regard to the indictment, when counsel come to examine +it, I think they will find, that although the counts are numerous, yet, +after all, the indictment is simple. I would suggest that counsel +should examine the record between this and to-morrow morning, and then +the prisoners could undoubtedly be arraigned without objection. + +_Mr. Daniel Lord_: I perceive that the prisoners are brought here to +plead in chains. If that is to be repeated each time they are brought +here, I would wish to have the time named when they are to plead. + +_Mr. James T. Brady_ said that he believed the engagement under which +he acted, in connection with some other gentlemen, covered the cases of +all the accused who had not already been represented before his honor +by distinct counsel. + +_Judge Shipman_: There is no necessity, then, for the Court to assign +counsel? + +_Mr. Brady_: In response to your honor, allow me to say that I +represent Captain Baker more particularly. From the very necessity of +this case a number of counsel have been employed, and more, probably, +than will take part, as your honor is well aware, in the trial. I have +had the pleasure of conferring with Mr. Lord only once since this case +arose; and as he is in every respect the senior of the gentlemen who +are employed in the case, we should like an opportunity for conference. +It is highly important to determine what species of plea should be put +into the indictment; and while, as I remarked, all the counsel may not +take a prominent part in the argument or the trial, yet their judgments +ought to be considered by each other, and some decisive course +concluded upon. There certainly can be no great occasion for hurry, as +these men are closely confined, and certainly are under the closest +kind of restraint, from what I see around me (glancing at the +prisoners, handcuffed). I don't suppose there is any apprehension, even +if the prison doors were opened, that they would be likely to escape, +from the state of feeling which at present exists in this city and this +section of the country. We only wish for time that is necessary to +determine what kind of an answer to make to this indictment; and after +that we will proceed, I venture to say, with the utmost diligence, to +have this case prepared for trial, or it may probably turn out that +there will be no necessity for any trial. That may occur to a legal +mind, or it may not. + +_Judge Shipman_: Well, let the prisoners be remanded until Tuesday +morning next. + +The Court then adjourned. + + +On Tuesday, the twenty-third of July, the prisoners were again brought +into Court, and were placed within the bar, at the south end of the +room. + +_E. Delafield Smith, Esq._, District Attorney, moved that the prisoners +be arraigned. + +_Algernon S. Sullivan, Esq._, of counsel for the prisoners, stated that +all the prisoners were represented by counsel, and that they were +acquainted with the charges contained in the indictment. + +The prisoners were ordered to stand up; and the Clerk of the Court +called T. Harrison Baker, saying: "You have been indicted for robbery +on the high seas; how do you plead--guilty, or not guilty?" To which +Mr. Baker replied, "Not guilty." + +_The District Attorney_ suggested that the indictment be read to the +prisoners, unless each one of them expressly waived the reading. He +would prefer to have it read, however. + +The prisoners' counsel respectively submitted that it was of no +consequence. The accused knew the contents of it. + +_Judge Shipman_ remarked that the reading of the indictment would +consume some time; but the District Attorney said that questions had +been raised on this point, and, to insure regularity, he desired to +have the indictment read; whereupon the Court ordered the Clerk to read +the instrument. + +At the conclusion of the reading, the prisoners severally pleaded, each +for himself, "not guilty." + +_District Attorney Smith_: If the Court please, the facts in this case +are exceedingly simple. The evidence in reference to them--as well such +as is required by the prosecution, as that which we may suppose to be +desired by the defendants--is within a narrow range and easily +attainable. I have examined the testimony with care. There can be no +doubt, upon the evidence in the case, that the prisoners are guilty, +and that as a matter of law, as well as a matter of fact, they ought to +be convicted. It is impossible to close our eyes to the facts relating +to this case, as they bear upon what is daily taking place upon the +high seas. The merchant marine of the country is subjected to piratical +seizure from day to day. Murder is the natural child of robbery, and we +may daily expect to hear of bloodshed on the ocean, in attempting the +execution of the purpose conceived by so many of our countrymen, to +deal a death-blow to American commerce. + +It seems to me, that the ends of public justice require that I should +urge upon your Honor the propriety and necessity of an early trial of +this issue. If, peradventure, the prisoners are innocent, it can work +no injury to them; if guilty, they ought to be convicted, and in my +judgment, the law ought to take its course to the end, in order that an +example may be set to those who are pursuing the species of marauding, +of which I think the testimony will show the prisoners to have been +guilty. + +I respectfully urge, that the trial be set down for Wednesday, July +31st, a week from to-morrow. I may add that I shall be happy to render +to the counsel for the prisoners every facility within my power for the +presentation of all the facts. The plea of authority, which we can +anticipate, is set forth in the indictment, and a copy of the letter of +marque has been furnished to counsel for the defence. I can see no +valid reason for postponing the trial; none, certainly, in the present +state of the country. + +_Mr. Larocque_ said, it seemed to him the idea might have occurred to +the District Attorney, that these men had not yet been convicted. The +law presumed every man to be innocent until he was proved guilty. The +counsel should not presume these men to be guilty until they were +tried. There were questions of international law involved in this case +which would be entitled to consideration. The counsel for the United +States would learn that he had misunderstood the meaning of the statute +under which these men were indicted. The prisoners' counsel were not +ready. They required documentary evidence and witnesses to be procured +from a distance. They could not be ready to go on at this term of the +Court. He submitted that a cause of this magnitude should not be +disposed of so hurriedly. What had the prisoners to do with others on +the ocean? Did the counsel for the Government desire to hurry them to +trial unprepared for the purpose of striking terror to those on the +ocean? He could not believe it to be so. + +_Mr. Sullivan_ said the prisoners would not ask any further delay after +procuring their testimony. Some of the evidence could not be obtained +this side of Charleston, and it would be impossible to procure it under +three or four weeks. The case involved the legal status between the +United States and the seceded States. He opposed setting down the case +for trial on next Wednesday. + +_Mr. Davega_, of counsel for the prisoners, also opposed the motion, +reiterating the statements in relation to the testimony to be procured. + +_Mr. Mayer_ called the attention of the District Attorney to the fifth +count of the indictment, describing the prisoners as citizens of the +United States. His client was a citizen of Hamburg, and he would not be +ready to try the case in several weeks. + +_Mr. Daniel Lord_, in behalf of Mr. Harleston, said this case involved +the lives of thirteen men. If the District Attorney supposed the law of +the case was simple, he took a very different view of it from what that +gentleman did. + +_The District Attorney_, in reply, said that in respect to the +intimation of a necessity to refer to Charleston, it was a matter of +notoriety that the prisoners were in constant communication with that +city. Counsel were bound to disclose the nature of testimony required, +that the Court might judge of the sufficiency of the reasons for a +postponement. Much of it might be to facts which the prosecution would +admit; as, in reference to the question of citizenship, there would be +no difficulty in conceding the fact that certain of the prisoners were +not citizens of the United States. He was not tenacious as to the very +day named. Without throwing the case over to the fall term, the trial +could be so fixed as to afford counsel ample opportunity to collect +their proofs and examine the questions of law involved. All the +difficulties suggested to impede the trial were obstructions created by +these defendants themselves and their confederates, and it was in the +nature of taking advantage of their own wrong to seek a postponement +because of the existence of a state of things for which they were +responsible. It had been said, thirteen lives are at issue. He would +say that many more lives were at stake--lives, in his judgment, of far +greater value--the lives of innocent officers and sailors in the +merchant marine. The facts are simple. The law appears to be certain. +There can be no defence here, the nature of which is not visible. The +only justification for the piracy would seem to be the treason. If the +prisoners ought justly to be convicted, such conviction should be +speedy, in order to deter their confederates from expeditions partaking +of the character of both treason and piracy. + +_Judge Shipman_ said, that he had no doubt in relation to the +disposition to be made of this motion. The Court could not have several +sets of rules to apply at will to the same class of cases; and even if +the Court had power to adopt a different rule in some criminal cases +from that fixed in others of the same grade, it would be very +questionable whether such power ought to be exercised. The law had made +no distinction in regard to this class of criminal offences. Upon the +statute book of the United States are various acts of Congress defining +atrocious crimes punishable capitally; and among these, is the crime of +piracy, or robbery upon the high seas, for which the defendants are +indicted. In all cases where parties are charged with criminal +offences, and especially with capital crimes, it is customary to give +the defendants a reasonable time for the preparation of their defence; +and the Court must always assume and act, so far as the technical +proceedings are concerned, upon the presumption of innocence which the +law always interposes. The Court cannot take into consideration many of +the suggestions made by counsel for the Government or for the defence; +and in disposing of this motion, I wish it to be distinctly understood +that I do so just as I should in any other case of alleged robbery or +piracy upon the high seas, where, if the defendants be convicted, they +must suffer, according to the statute, the penalty of death. I cannot +look at other considerations. I cannot anticipate other defences. In +the administration of the criminal law, although the principles are +usually very simple, and although, for aught I know, they may be as +simple when applied to this case as to any other, yet in the +application of those principles, there is often ground for difference +of opinion. Courts that have been long regarded as entitled to very +great respect for learning, discrimination, and experience, frequently +differ as to the application of principles of law to particular cases. +In view of this fact, in capital cases, it has been a rule usually +adhered to in the United States Circuit Courts (which are so +constituted by the Act of Congress that two Judges are authorized to +sit) to have, if applied for, a full Court, so that the defendant might +have the benefit, if I may so speak, of the chance of a division of +opinion. For such division of opinion constitutes the only ground upon +which the case can be removed to a higher Court for revision. In this +view of the case, and upon the strenuous application of the defendants +for the presence of a full Court, I certainly cannot deny the +application consistently with my judgment of what is right and proper; +and I say this with a full recognition of the importance of this trial. +I might add, it may be desirable for the Government, in the event of a +certain determination of this case, that in the preliminary +proceedings--the time fixed for trial and the constitution of the +Court--there should be nothing to weaken the full and appropriate +effect of such determination. + +After some observations in regard to two exceptional cases--that of +Gordon, on his first trial for engaging in the slave trade,[2] and the +case of the parties convicted of murder on board the ship "Gen. +Parkhill," both cases having been tried before a District Judge sitting +alone, the counsel for the defendant in each case making no request to +have a full Court--Judge Shipman went on to say, that in consequence of +Judge Nelson's engagements in another District, in September, and in +view of his confinement with the effects of a fall from his carriage, +which would prevent his sitting in August, he (Judge Nelson) could not +probably hear this case until the October term. He therefore ordered +the trial to be set down for the third Monday of October, at eleven +o'clock. + + [2] The second trial of Gordon, resulting in a conviction, + took place before a full Court, Mr. Justice NELSON sitting + with Judge SHIPMAN. + +The prisoners were remanded to the custody of the Marshal, and their +manacles, which had been removed while they were in Court, being +replaced, they were taken to the Tombs. + + + + + TRIAL OF THE OFFICERS AND CREW OF THE SCHOONER SAVANNAH, ON THE + CHARGE OF PIRACY. + + + UNITED STATES CIRCUIT COURT, SOUTHERN DISTRICT OF NEW YORK. + + + Wednesday, Oct. 23, 1861. + + + THE UNITED STATES + + _against_ + + THOMAS HARRISON BAKER, + CHARLES SYDNEY PASSALAIGUE, + JOHN HARLESTON, + JOSEPH CRUSE DEL CARNO, + PATRICK DALY, + JOHN MURPHY, + MARTIN GALVIN, + HENRY CASHMAN HOWARD, + HENRY OMAN, + WILLIAM CHARLES CLARKE, + RICHARD PALMER, + ALEXANDER CARTER COID, + ALBERT G. FERRIS. + + + HON. JUDGES NELSON AND SHIPMAN PRESIDING. + + _Counsel for the United States_: + + E. DELAFIELD SMITH, WM. M. EVARTS, SAML. BLATCHFORD, ETHAN ALLEN. + + _Counsel for the Defendants_: + + BOWDOIN, LAROCQUES & BARLOW, DANIEL LORD, JAMES T. BRADY, ALGERNON S. + SULLIVAN, JOSEPH H. DUKES, ISAAC DAVEGA, MAURICE MAYER. + + + + +_E. Delafield Smith, Esq._, United States District Attorney, stated +that he desired to use Albert Gallatin Ferris, one of the prisoners +indicted, as a witness, and would therefore enter a _nolle prosequi_ in +regard to him. + +_The Court_: Are the prisoners to be tried jointly? + +_Mr. Lord_: I believe so, sir. + +_The Clerk_ called over the names of the prisoners, directing them to +challenge the Jurors as called. + +_Judge Nelson_: Those of the prisoners who desire to do so may take +seats by the side of their counsel. + +_The Clerk_ proceeded to call the panel. + + +_Edward Werner_ called, and challenged for principal cause by Mr. +Smith: + +_Q._ Have you any conscientious scruples that would prevent your +finding a verdict of guilty, in a capital case, where the evidence was +sufficient to convince you that the prisoner was guilty? + +_A._ No, sir. + +_By Mr. Larocque_, for the prisoners: + +_Q._ Have you read the account in the newspapers of the capture of the +Savannah privateers? + +_A._ Yes, sir. + +_Q._ Have you ever formed or expressed any opinion as to the guilt or +innocence of these prisoners? + +_A._ No, sir. + +_Q._ Have you ever formed or expressed any opinion as to whether they +were guilty of piracy, if the facts were as alleged? + +_A._ No, sir. + +Challenge withdrawn. _Juror sworn._ + + +_William H. Marshall_ called, and challenged for principal cause: + +_Q._ Have you any conscientious scruples that would prevent your +finding a verdict of guilty in a capital case, where the evidence was +sufficient to convince you that the prisoner was guilty? + +_A._ No, sir. + +_By Mr. Larocque_, for the prisoners: + +_Q._ You read the account of the privateer Savannah? + +_A._ I believe I have. + +_Q._ Have you formed or expressed any opinion as to the guilt or +innocence of the prisoners? + +_A._ No, sir. + +_Q._ Have you ever formed or expressed any opinion as to whether they +were guilty of piracy, if the facts were as alleged? + +_A._ I have not formed any opinion as to these men. + +_Q._ As to the general question, whether cruising under a commission +from the Confederate States is piracy? + +_A._ I do not think I have formed any opinion, or expressed one. + +Challenge withdrawn. _Juror sworn._ + + +_William Powell_ called, and challenged for principal cause by Mr. +Smith: + +_Q._ Have you any conscientious scruples that would prevent your +finding a verdict of guilty, in a capital case, where the evidence was +sufficient to convince you that the prisoner was guilty? + +_A._ No, sir. + +_By Mr. Larocque_, for the prisoners: + +_Q._ Have you formed or expressed any opinion as to the guilt or +innocence of these prisoners? + +_A._ I have not formed any opinion that would prevent me from giving a +verdict according to the facts of the case. I have read the account, +and I presume have formed such an opinion as most men do from reading +an account, if the facts be so and so. + +_Q._ Have you formed any opinion as to whether cruising, under a +commission from the Confederate States, is piracy? + +_A._ Yes, sir, I have. + +_Mr. Evarts_ objected that this was purely a question of law, and one +jurors should not be inquired of. + +_The Court_ sustained the objection. + +_Q._ Did you believe the accounts which you read of this transaction? + +_A._ Well, it is difficult to say. There is so much published in the +papers now-a-days that is not correct, that I am hardly prepared to say +I believe anything I see, without palpable evidence. I believe the fact +of the capture of the Savannah. + +_Q._ Did you read what had been done by the Savannah before she was +captured? + +_A._ Well, I formed no opinion with regard to that. + +_Q._ Did you form an opinion of the character of the act with which the +defendants were charged? + +_A._ No, sir. + +_Q._ Do you entertain the settled opinion that acting under a +commission from President Davis, or the Confederate Government, +constitutes piracy? + +_Mr. Evarts_ objected that this was a question of law. + +_The Court_: I doubt whether that is a question that would be proper. + +_Mr. Larocque_: This is a very peculiar case, as your honor is well +aware. It is a case of first impression in the courts of the United +States. It is a case in which, probably, there will be very little +difference between the prosecution and the defendants as to the mere +facts which are charged in this indictment, and it is a case in which +jurors who present themselves to be sworn, if they have any bias or +prejudice whatever, have it rather in reference to the character of the +acts than as to the acts themselves having been committed or not having +been committed. Now, we all know, if your honor please, that in all +criminal trials a great deal of discussion has always taken place with +reference to the jurisdiction of the jury over questions of law. The +Courts have held that they are bound to receive their instructions on +the law from the Court; but, at the same time, if they do not act in +pursuance of the instructions which they receive, it is a matter +between them and their own consciences, and it is a matter which no +form of review in these Courts will reach. Now, one of my associates +has handed to me an authority upon this subject from 1st Baldwin's +Reports--that on the trial of Handy, in 1832, for treason, Judge Grier +held that a juror who had formed an opinion that the riots in question +did not amount to treason, was incompetent; and, in the case of the +United States _v._ Wilson, it was held that a juror was incompetent who +stated, on being challenged, that he had read the newspaper account of +the facts at the time, and had come to his own conclusion, and had made +up his mind that the offence was treason, although he had not expressed +that opinion, nor formed or expressed an opinion that the defendant was +or was not engaged in the offence. It seems to me that these +authorities cover precisely the case before the Court, the only +difference being that this is a charge of piracy, and the other a +charge of treason. + +_Judge Nelson_: The only difference is that there the question was put +to the juror as to the crime, after it appeared he had read the account +of the transaction, which involved both the law and the facts--involved +the whole case; but as we understand your question, you put a pure +question of law, which we do not think belongs to the juror. + +_Mr. Larocque_: I understand your honor to rule the question is not +admissible. + +_Judge Nelson_: Yes. + +Defendants' Counsel took exception. + +_Mr. Larocque_: Permit me to put the question in two forms. + +_Q._ Have you formed or expressed the opinion that the acts charged, if +proved, constitute the offence of piracy? + +_The Court_: That question is admissible. + +_A._ I have not expressed the opinion, and I can hardly say I have +formed an opinion, because I am not sufficiently informed on the law to +do so. + +Challenge withdrawn. _Juror sworn._ + +_The Court_: Then the other form of the question is withdrawn? + +_Mr. Larocque_: Yes, sir; we are satisfied with the form of the +question the Court allows us to put. + + +_James Cassidy_ called. Challenged for principal cause, by Mr. +Larocque, for the defendants. + +_Q._ Did you read the account of the capture of the Savannah privateer? + +_A._ I believe I did. + +_Q._ Have you formed or expressed any opinion upon the guilt or +innocence of these prisoners? + +_A._ I believe not, sir. I may have made some mention of it at the time +of reading the transaction, but not to express any opinion. + +_Q._ Have you formed or expressed an opinion whether the facts, if +proved, constitute the offence of piracy? + +_A._ No, sir. + +_By Mr. Smith_: + +_Q._ Have you any conscientious scruples on the subject of capital +punishment that would interfere with your rendering a verdict of +guilty, if the evidence proved the prisoners to be guilty? + +_A._ No, sir. + +Challenge withdrawn. _Juror sworn._ + + +_Joel W. Poor_ called. Challenged for principal cause by Mr. Smith: + +_Q._ Have you any opinion on the subject of capital punishment which +would prevent your rendering a verdict of guilty, if the evidence was +such as to satisfy you? + +_A._ No, sir. + +_By Mr. Larocque_, for the prisoners: + +_Q._ Have you read the account of the capture of the Savannah +privateers? + +_A._ I have. + +_Q._ Have you formed or expressed any opinion as to the guilt or +innocence of the prisoners? + +_A._ I think not, sir. + +_Q._ Have you formed or expressed any opinion whether the facts +charged, if proved, constitute the offence of piracy? + +_A._ I have not. + +_Q._ Have you never conversed on this subject? + +_A._ I do not think I have. + +_Q._ Have you no recollection of having conversed upon it at all? + +_A._ I may have talked about it something at the time, but I do not +recollect. + +_Q._ Are you a stockholder, or connected with any marine insurance +company? + +_A._ No, sir. + +_Q._ Have you been engaged in Northern trade? + +_A._ No, sir. + +_Challenged peremptorily_, by prisoners. + + +_Thomas Dugan_ called. Challenged for principal cause, by Mr. Smith: + +_Q._ Have you any conscientious scruples that would interfere with your +rendering a verdict of guilty, if you deemed the prisoners guilty upon +the evidence? + +_A._ I have strong conscientious scruples. + +_Mr. Smith_ asked that the juror stand aside. + +Defendants' Counsel objected to the question, as not proper in form. +Objection sustained. + +_Q._ In a capital case, where the evidence is sufficient to satisfy +your mind of the prisoner's guilt, have you any conscientious scruples +that would prevent your finding a verdict of guilty? + +_A._ If I may explain, I would endeavor to find a verdict; but I +believe my sympathy would control my judgment to that extent that I +would not be able to do my duty between the people and the prisoner. I +have been on a jury before, and I doubt that my judgment would be +controlled by my sympathy. + +_Mr. Larocque_: The witness has not said his sympathies would be of +that strength that would prevent his finding a verdict of guilty, if +the evidence was satisfactory. A juror that has doubts of himself is +the most honest and reliable, according to all experience in criminal +trials. + +_The Court_: Examine him on that point. + +_By Mr. Larocque_: + +_Q._ Suppose that upon this trial the facts charged in this indictment +were proved by clear and satisfactory evidence, and the Court should +instruct you, upon that evidence, that those facts constitute the +offence of piracy, would your conscientious scruples be so strong as to +prevent your finding a verdict of guilty in such a case as that? + +_A._ There must be not a shadow of doubt. It must be strong and +conclusive in my mind before a verdict is rendered. + +_Q._ But where there was strong, conclusive evidence, you would render +a verdict of guilty? + +_A._ Yes, sir. + +_Mr. Evarts_: It is pretty apparent that the juror does not regard +himself as in a position to deal impartially with this question, which +involves human life. The intention of this cause of challenge is, that +the juror should be in a position to yield to the evidence that just +assent which its character is entitled to call for, unimpeded by his +repugnance to the result when fatal to human life. Still, if your honor +should not think that upon this ground he ought to be excluded +absolutely, certainly it would be consistent with the course of +practice, and with the just feeling of the juror, that he should stand +aside until the panel be made up. + +_Mr. Brady_: That practice I understand not to prevail any longer, +since it has been provided that the empanneling of jurors in the United +States Courts shall be the same as in the State Courts, and we do not +consent to any such principle as the gentleman proposes. Your honor has +decided that a juror, to disqualify him from serving in a capital case, +must say that his conscientious scruples are of such a character that, +though the evidence be clear and conclusive under the law, as stated by +the Court, they would prevent his doing his duty and giving a verdict +of guilty. To my mind, nothing can be more clear and satisfactory than +the statement of the juror himself, which exhibits a state of mind that +should be possessed by every juror; that is, that he must be satisfied +beyond all reasonable doubt of the guilt of the accused before +rendering a verdict of guilty; and when be speaks of his sympathy on +behalf of human life, it is only that sympathy which the law recognizes +where it gives the prisoner the benefit of every doubt. It is true he +does use the expression that there must not be the shadow of a doubt; +but when the Court comes to expound the law, he will be instructed that +it must be a reasonable doubt. I do not see anything against the juror +on the ground of conscientious scruples. Your honor knows that the +prosecution have no peremptory challenge in cases of piracy or treason, +and the old practice of setting aside jurors until the panel is +exhausted, and then, if not able to make up twelve without the rejected +jurors, requiring their acceptance, has passed. That is decided in the +case of Shackleford, in 18 Howard's Reports. + +_The Court_ (to the Juror): We do not exactly comprehend the views you +entertain upon this question; therefore we desire, for our own +satisfaction, to put some questions to you, to ascertain, if we can, +the state of your mind and opinions upon these questions, and see +whether you are a competent juryman or not in a capital case. It is a +very high duty, and a common duty, devolving upon every respectable +citizen. The question is this--and we desire that there may be no +delusion or misapprehension on your mind in respect to it--in a capital +case, if the proof on behalf of the Government should be such as to +satisfy your mind that the prisoner was guilty of the capital offence, +whether or not you have any conscientious scruples as respects capital +punishment, that would prevent your rendering a verdict of guilty? + +_A._ In answer to that I would say that this is what troubles me: I +want to do my duty; I want to render a verdict fairly and squarely as +between the prisoner and the people; but I have this to contend with--I +have read that people have been convicted upon the clearest testimony, +and afterwards found to be innocent; and before I would have such +feelings I would as soon go to the scaffold as send a person there who +was not guilty. Therefore my sympathy is so strong that I am afraid to +trust myself. I did serve on a former occasion, and I do not know that +even then I did my duty. + +_Q._ What do you mean by being afraid to trust yourself? Is it a +conscientious feeling and opinion against the penalty of capital +punishment? + +_A._ Yes, sir, it is. I have a great abhorrence of it, if I may so +express myself. Yet I should like to render a verdict, and do what is +right; but I believe my feelings are too great to trust myself. + +_The Court_: We think we are bound to set the juror aside. + +_Mr. Larocque_: Permit me to put one question. + +_Q._ It strikes me that you are a little at fault as to what the +purport of this question is. It is not whether you have an abhorrence +of convicting a prisoner of a capital offence. The question is, whether +you have such conscientious scruples against capital punishment as +would prevent your finding the prisoner guilty, if the facts were +proved, and the Court instructed you that those facts constituted the +offence? + +_A._ I answered before. It places me in rather a peculiar position. As +I said, I want it understood distinctly, I desire to do my duty; but +there is a struggle between that and my sympathy, and I am afraid to +trust myself. + +_Q._ But you can draw a distinction between your sympathy and any +conscientious scruples against the punishment of death, can you not? + +_A._ Well, sir, where it comes to the point---- + +_Q._ Allow me to put the question in another way: If you are entirely +satisfied, upon the evidence and instructions of the Court, that the +prisoner was guilty, your conscience would not trouble you in finding +him guilty? + +_A._ Well, sir, there would be this: I would feel that persons, under +the strongest kind of testimony, have been found guilty, wrongfully, +and it would operate on me--the fear that I had judged wrong on the +facts, and committed murder. That feeling is very strong. + +_Q._ If the evidence satisfied you that the prisoner was guilty, would +your conscience prevent your saying so? + +_A._ It would not now. It might in the jury-room. When it comes to the +point, and I feel that I hold the life of a human being, it is pretty +hard to know what I would do then. + +_Q._ Your conscience would only trouble you if you doubted that your +judgment was right? + +_A._ Yes, sir. + +_Mr. Larocque_: I submit that the juror is competent. + +_Juror_: You must take your chances if you take me. I still think I am +not fit to sit on a jury to represent the people. + +_The Court_: I think we must take the opinion of the juror as against +himself. + +Set aside. [Defendants took exception.] + + +_John Fife_ called, and challenged for principal cause: + +_Q._ In a capital case, where the evidence is sufficient to convince +you of the guilt of the prisoner, have you any conscientious scruples +that would prevent your finding a verdict of guilty? + +_A._ No, sir. + +_By Mr. Larocque_, for the prisoners: + +_Q._ Did you read the account of the capture of the privateer Savannah? + +_A._ I did. + +_Q._ Have you formed or expressed an opinion as to the guilt or +innocence of the prisoners? + +_A._ I believe not, sir. + +_Q._ Have you formed or expressed an opinion whether the facts charged, +if proved, constitute the offence of piracy? + +_A._ I have not, sir. + +_Q._ You think you have no bias or prejudice in this case? + +_A._ No, sir. + +Challenge withdrawn. _Juror sworn._ + + +_Thomas Costello_ called. Challenged for principal cause. + +_By Mr. Smith_: + +_Q._ In a capital case, where the evidence is sufficient to convince +you of the guilt of the prisoner, have you any conscientious scruples +that would prevent your finding a verdict of guilty? + +_A._ No, sir. + +_By Mr. Larocque_, for the prisoners: + +_Q._ You know that this case is an indictment for piracy against the +prisoners. Have you formed or expressed any opinion upon their guilt or +innocence? + +_A._ No, sir. + +_Q._ Have you formed or expressed any opinion whether the facts charged +against them, if proved, constitute the offence of piracy? + +_A._ I have not, sir. + +Challenge withdrawn. _Juror sworn._ + + +_Tuganhold Kron_ called. Challenged for principal cause. + +_By Mr. Smith_: + +_Q._ In a capital case, where the evidence was sufficient to convince +you of the guilt of the prisoner, have you any conscientious scruples +that would prevent your finding a verdict of guilty? + +_A._ Yes, sir. (Question repeated.) + +_A._ No, sir. + +_Q._ Do you readily understand English? + +_A._ Pretty well. + +_Q._ You did not understand me when I asked the question the first +time? + +_A._ No, sir. + +_Q._ Do you understand English well? + +_A._ Yes, pretty well. There may be some words I do not understand. + +_Q._ Did you ever sit as a juror on a trial? + +_A._ Yes, sir. + +_Q._ Did you understand all the witnesses said? + +_A._ No, because I did not hear, sometimes. + +_Q._ Do you think you understand English well enough, so that you can +hear a trial intelligently? + +_A._ I cannot say, sir. + +_Q._ You are not sure? + +_A._ No, sir. + +_By Mr. Larocque_: + +_Q._ What is your occupation? + +_A._ A bookbinder. + +_Q._ Have you an establishment of your own? + +_A._ Yes, sir. + +_Q._ The men you employ--do they speak English or German? + +_A._ Some English--the most of them German. + +_Q._ And you transact your business with gentlemen who speak English? + +_A._ Yes, sir. + +_Q._ How long have you done so? + +_A._ Eight years. + +_By the Court_: + +_Q._ How long have you been in this country? + +_A._ Seventeen years. + +_Q._ Have you been in business all that time? + +_A._ I worked as journeyman ten years, and have been seven years in +business of my own. + +_By Mr. Smith_: + +_Q._ Do you think you can understand English well enough so that you +can, from the evidence, form an opinion of your own? + +_A._ I think I will. + +_By Mr. Larocque_: + +_Q._ You read the account of the capture of the privateer Savannah in +the newspapers? + +_A._ Yes, sir; in some German paper. + +_Q._ Did you form or express any opinion as to the guilt or innocence +of these prisoners? + +_A._ No, sir. + +_Q._ Did you form or express an opinion whether the facts charged +against them, if proved, constitute the offence of piracy? + +_A._ No, sir. + +_Mr. Evarts_: We think the juror's knowledge of the language is shown, +by his own examination, to be such as should at least entitle the +Government to ask that he should stand aside until it is seen if the +panel shall be filled from other jurors--if that right exists. Your +honor held, in the case of the United States _v._ Douglass--a piracy +case tried some ten years ago--that that right did exist. + +_The Court_: I think we have since qualified that in the case of +Shackleford. It was intended to settle that debatable question, and it +was held that the Act of Congress, requiring the empanneling of jurors +to be according to the practice in State Courts, did not necessarily +draw after it this right of setting aside. We think the objection taken +is not sustained. + +_Juror sworn._ + + +_Matthew P. Bogart_ called. Challenged for principal cause by Mr. +Smith: + +_Q._ In a capital case, where the evidence is sufficient to convince +you of the guilt of the prisoner, have you any conscientious scruples +that would prevent your rendering a verdict of guilty? + +_A._ No, sir. + +_By Mr. Larocque_, for the prisoners: + +_Q._ Have you read the account of the capture of the privateer Savannah +in the newspapers? + +_A._ I recollect reading it at the time--not since. + +_Q._ Have you ever formed or expressed an opinion upon the guilt or +innocence of these prisoners? + +_A._ Not to my recollection. + +_Q._ Have you ever formed or expressed an opinion whether the facts +charged against them, if proved, constitute the offence of piracy? + +_A._ I have not. + +Challenge withdrawn. _Juror sworn._ + + +_George Moeller_ called. Challenged for principal cause by Mr. Smith: + +_Q._ In a capital case, where the evidence is sufficient to convince +you of the guilt of the prisoner, have you any conscientious scruples +that would prevent your finding a verdict of guilty? + +_A._ No, sir. + +_By Mr. Larocque_, for the prisoners: + +_Q._ Have you read the account of the capture of the Savannah? _A._ +Yes, sir. + +_Q._ Have you formed or expressed any opinion as to the guilt or +innocence of these prisoners? + +_A._ No, sir. + +_Q._ Have you formed or expressed any opinion as to whether, if the +facts were proved, as alleged, it was piracy? + +_A._ I do not know what the facts are, sir. I have only read an account +of the capture. + +Challenge withdrawn. _Juror sworn._ + + +_Robert Taylor_ called. Challenged for principal cause, by Mr. Smith: + +_Q._ In a capital case, where the evidence is sufficient to convince +you of the guilt of the prisoner, have you any conscientious scruples +that would prevent your finding a verdict of guilty? + +_A._ No, sir. + +_By Mr. Larocque_, for the prisoners: + +_Q._ You read of the capture of the privateer Savannah? + +_A._ I think I have. + +_Q._ Did you form or express any opinion as to the guilt or innocence +of the prisoners? + +_A._ Not that I know of, sir. + +_Q._ Have you formed or expressed any opinion whether the facts, if +proved, constitute the offence of piracy? + +_A._ No, sir, not any. + +Challenge withdrawn. _Juror sworn._ + + +_Daniel Bixby_ called. Challenged for principal cause, by Mr. Smith: + +_Q._ In a capital case, where the evidence is sufficient to convince +you of the guilt of the prisoner, have you any conscientious scruples +that would prevent your finding a verdict of guilty? + +_A._ I have not. + +_By Mr. Larocque_: + +_Q._ Have you ever formed or expressed any opinion as to the guilt or +innocence of the prisoners? + +_A._ I have not. + +_Q._ Or whether the facts, if proved, constitute the offence of piracy? + +_A._ No, sir. + +Challenge withdrawn. _Juror sworn._ + + +_Ira L. Cady_ called. Challenged for principal cause, by Mr. Smith: + +_Q._ In a capital case, where the evidence is sufficient to convince +you of the guilt of the prisoner, have you any conscientious scruples +that would prevent your finding a verdict of guilty? + +_A._ No, sir. + +_By Mr. Larocque_: + +_Q._ You know what this case is for? + +_A._ I believe I understand it. + +_Q._ An indictment of piracy against the privateersmen captured on the +Savannah? + +_A._ Yes, sir. + +_Q._ Have you formed or expressed any opinion upon the guilt or +innocence of the prisoners? + +_A._ I do not recollect that I have. + +_Q._ Have you formed or expressed any opinion whether the facts, if +proved, constitute piracy? + +_A._ I do not think I have. + +_Q._ Have you any opinion now upon either of these subjects? + +_A._ I cannot say that I am entirely indifferent of opinion on the +subject, but still I have not formed any definite opinion. + +_Q._ Your mind, however, is not entirely unbiased upon the question? + +_A._ Well, no, sir--not if I understand the question; that is, the +question whether the facts, if proved, constitute the offence of +piracy? + +_Mr. Larocque_ submitted that the juror was not indifferent. + +_Mr. Evarts_: All that has been said by the juror is that, on the +question of whether the facts charged constitute the offence of piracy, +he has no fixed opinion; but he cannot say he has no opinion on the +subject. He is ready to receive instruction from the Court. + +_Mr. Larocque_ contended that, as the question of whether the facts +alleged constituted piracy, or not, was a most important one to be +discussed, they were entitled to have the mind of the juror entirely +blank and unbiased on that subject. + +_The Court_: Let us see what the state of mind of the juror is. + +_Q._ You mentioned, in response to a question put to you, that you had +read an account in the newspapers of the capture of this vessel. + +_A._ I was not asked that question. I have no mind made up in respect +to the subject that would prevent my finding a verdict in accordance +with the evidence; but I said I was not entirely devoid of an opinion +in regard to the case--that is, the offence. + +_Q._ Have you read an account of the capture of this vessel? + +_A._ Yes, sir; I read it at the time. + +_Q._ Is it from the account, thus read, of the transaction of the +capture, that you found this opinion upon? + +_A._ No, sir; it is not that. It is upon the general subject that I +mean to be understood--not in reference to this case particularly. + +_Q._ Do you say, upon the general question, that you have an opinion? + +_A._ Well, not fully made up. I have the shadow of an opinion about it. + +_Q._ Not a fixed opinion? + +_A._ No, sir; I would be governed by the law and instructions of the +Court. + +_Q._ You are open to the control of your opinion upon the facts and law +as developed in the course of the trial? + +_A._ Certainly, sir. + +_The Court_: We do not think the objection sustained. + +Challenged peremptorily by the prisoners. + + +_Samuel Mudget_ called. Challenged for principal cause. + +_By Mr. Smith_: + +_Q._ In a capital case, where the evidence is sufficient, in your +opinion, to convict the prisoner, have you any conscientious scruples +that would prevent your finding a verdict of guilty? + +_A._ I have not. + +_By Mr. Larocque_: + +_Q._ You have read the account of the capture of the privateer +Savannah? + +_A._ Yes, sir; at the time. + +_Q._ Have you formed or expressed any opinion upon the guilt or +innocence of these privateersmen? + +_A._ I have not. + +_Q._ Have you formed or expressed an opinion whether the acts charged +upon them, if proved, constitute piracy? + +_A._ No, sir; I have not formed any opinion with regard to the question +whether it was piracy or not. + +Challenged peremptorily by the prisoners. + + +_George H. Hansell_ challenged for principal cause. + +_Q._ In a capital case, where the evidence is sufficient to convince +you that the prisoner was guilty, have you any conscientious scruples +that would prevent your finding a verdict of guilty? + +_A._ No, sir. + +_By Mr. Larocque_: + +_Q._ Have you read the account of the capture of the Savannah +privateer? + +_A._ I believe I read the account at the time. I have a very indistinct +recollection of it. + +_Q._ Have you formed or expressed an opinion as to the guilt or +innocence of the prisoners? + +_A._ I do not remember that I have, sir. I certainly do not have any +opinion now; and certainly would not have until I have heard the +evidence. + +_Q._ Do you say you do not recollect whether you have formed or +expressed any opinion? + +_A._ I do not remember that I have, sir. I may, on reading the article, +have expressed an opinion on it; but I am not positive of that. + +_Q._ Have you formed or expressed an opinion whether the facts charged, +if proved, amount to piracy? + +_A._ I should not consider myself competent to form an opinion upon +that until I have heard the law on the subject. + +Challenge withdrawn. _Juror sworn._ + +Panel completed. + + +DISTRICT ATTORNEY'S OPENING. + +MR. E. DELAFIELD SMITH opened the case for the prosecution. He said: + +_May it please the Court, and you, Gentlemen of the Jury_: + +The Constitution of the United States, in the eighth section of the +first article, authorized the Congress, among other things, to define +and punish piracies and felonies committed on the high seas, and +offences against the law of nations. + +In pursuance of that authority, the Congress, on the 30th of April, +1790, made provisions contained in an act entitled "An Act for the +punishment of certain crimes against the United States." I refer to the +8th and 9th sections of that act, which is to be found in the first +volume of the U.S. Statutes at Large, page 112. + +In the State Courts, gentlemen, it is common to say that the jury is +judge both of the law and the fact; but such is not the case in the +United States Courts. The Court will state to you the law, which you +are morally bound to follow. But in opening this case, I refer to the +statutes for the purpose of showing you precisely what the law is +supposed to be under which this indictment is found, and under which we +shall ask you for a verdict. + +The 8th section of the act of 1790, commonly called "The Crimes Act," +and to which I have just referred, declares, that if any person or +persons shall commit, upon the high seas, or in any river, haven, +basin, or bay, out of the jurisdiction of any particular State, murder +or robbery, or any other offence which, if committed within the body of +a county, would, by the laws of the United States, be punishable with +death; or if any captain or mariner of any ship or other vessel shall +piratically and feloniously run away with such ship or vessel, or any +goods or merchandize to the value of fifty dollars, or yield up such +ship or vessel voluntarily to any pirate; or if any seaman shall lay +violent hands upon his commander, thereby to hinder and prevent his +fighting in defence of his ship or goods committed to his trust, or +shall make a revolt in the ship; every such offender shall be deemed, +taken, and adjudged to be a pirate and felon, and, being thereof +convicted, shall suffer death; and the trial of crimes committed on the +high seas, or in any place out of the jurisdiction of any particular +State, shall be in the district where the offender is apprehended, or +into which he may first be brought. + +The 9th section of the same act provides, that if any citizen shall +commit any piracy or robbery aforesaid, or any act of hostility against +the United States, or any citizen thereof, upon the high sea, 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. + +A statute, on this subject, enacted in 1819, expired by its own +limitation; but on the 15th of May, 1820, an act was passed making +further provisions for punishing the crime of piracy. This law is +printed in the third volume of the U.S. Statutes at Large, page 600. +The 3d section provides, that if any person shall, upon the high seas, +or in any open roadstead, or in any haven, basin, or bay, or in any +river where the sea ebbs and flows, commit the crime of robbery in or +upon any ship or vessel, or upon any of the ship's company of any ship +or vessel, or the lading thereof, such person shall be adjudged to be a +pirate; and, being thereof convicted before the Circuit Court of the +United States for the district into which he shall be brought, or in +which he shall be found, shall suffer death. + +I now refer to the act of March 3d, 1825, to be found in the 4th volume +of the Statutes at Large, page 115. It is entitled, "An act more +effectually to provide for the punishment of certain crimes against the +United States, and for other purposes." I cite it simply on the +question of jurisdiction. The 14th section provides, that the trial of +all offences which shall be committed upon the high seas or elsewhere, +out of the limits of any State or district, shall be in the district +where the offender is apprehended, or into which he may be first +brought. The twenty-fifth section of this act repeals all acts, or +parts of acts, inconsistent therewith. + +Under the act of 1790 a question of construction arose, in the Supreme +Court of the United States, as to whether robbery on the high seas was +punishable with death. It was settled (3 Wheaton, 610) that the statute +did punish robbery with death if committed on the high seas, even +though robbery on land might not incur that extreme penalty. I refer to +the United States _v._ Palmer, 3 Wheaton, 610; the United States _v._ +Jones, 3 Washington's Circuit Court Reports, 209; United States _v._ +Howard, Id., 340; 2 Whar. Crim. Law, fifth ed., p. 543. + +I have been thus particular in referring to the laws under which this +indictment is framed, in order that you may perceive precisely the +inquiry which we now have to make. It is, whether the statutory law of +the United States has or has not been violated? You have all, +undoubtedly, heard more or less of the crime of piracy as generally and +popularly understood. A pirate is deemed by the law of nations, and has +always been regarded as the enemy of the human race,--as a man who +depredates generally and indiscriminately on the commerce of all +nations. Whether or not the crime alleged here is piracy under the law +of nations, is not material to the issue. It might well be a question +whether, in regard to depredations committed on the high seas, by +persons in a foreign vessel, under the acknowledged authority of a +foreign country, Congress could effectively declare that to be piracy +which is not piracy under the law of nations; but it is not material in +this case. Congress is unquestionably empowered to pass laws for the +protection of our national commerce and for the punishment of those who +prey upon it. Congress has done so in the statutes to which I have +referred. If the words "pirate and felon" were stricken out from the +act of 1790, and if the statutes simply read that any person committing +robbery on the high seas should suffer death, the law would be +complete, and could be administered without reference to what +constitutes piracy by the law of nations. + +Having thus referred to the statutory law under which this indictment +was found, I will state as succinctly as possible, with due regard to +fullness, fairness, and completeness, the facts in this case. In the +middle or latter part of May, 1861, a number of persons in the city of +Charleston, South Carolina, conceived the purpose of purchasing or +employing a vessel to cruise on the Atlantic with the object of +depredating on the commerce of the United States. They proceeded to the +fulfillment of that design by procuring persons willing to act as +captain, officers, and crew of such piratical vessel. This there was at +first considerable difficulty in effecting, and it was not until many +men were thrown out of employment in Charleston, by the acts of South +Carolina and of what is called the Confederate Government, and by the +action of the United States Government in blockading the port of +Charleston and other Southern ports, that a crew could be found to man +this vessel. There were no shipping articles or agreement as to wages; +but it was understood that all were to share in the plunder or proceeds +arising from the capture of American vessels on the high seas. We shall +show to you that the prisoners at the bar were finally induced to +embark on this enterprise; that Captain Baker was one of the first to +engage in it; that he used exertions to obtain a crew, and succeeded, +after considerable difficulty. On Saturday, the first of June, 1861, +the crew were embarked on a small pilot boat and proceeded down to +opposite Fort Sumter, where they were transferred, in small boats, to +the schooner Savannah. We shall show, by the declarations of the +parties who stand charged here to-day, and also by the facts and +circumstances of the equipment of the vessel, the intent and purpose of +this voyage. The Savannah, a schooner of fifty-three or fifty-four +tons, was armed with cannon and small arms. Pistols and cutlasses were +provided for her men. On Sunday afternoon, the 2d of June, she sailed +from opposite Fort Sumter, her crew numbering about twenty men, all of +whom are here with the exception of six, who were detached to form a +prize crew of the brig Joseph. On the morning of Monday, the 3d of +June, a sail was descried; it was remarked among the crew that the +vessel, from her appearance, was undoubtedly a Yankee vessel, as they +termed it--a vessel owned in one of the Northern States of the Union. +She proved to be the brig Joseph, laden with sugar, and bound from +Cardenas, in Cuba, to Philadelphia. The Savannah, displaying the +American flag, gave chase. When within hailing distance, Captain Baker +spoke the Joseph, ordered her captain on board his schooner, and ran up +the rebel standard. Captain Meyer, of the Joseph, perceiving that the +Savannah was armed, and that her men were ready for assault, fearing +for his safety and that of his crew, obeyed the summons. A prize crew +was placed on board the Joseph--the captain of the Savannah declaring +that he "was sailing under the flag of the Confederate Government." The +Savannah proceeded on her cruise. In a few hours afterward, she +descried the United States brig-of-war Perry. Supposing her to be a +merchant vessel, she started in pursuit, fired a gun, and finally fired +several guns. On discovering, however, that the brig was a United +States vessel-of-war, she attempted resistance, Captain Baker saying to +his men, "Now, boys, prepare for action!" When within speaking +distance, the commander of the Perry asked Captain Baker whether he +surrendered, and he replied that he did. The prisoners were transferred +from the Savannah to the Perry; thence to the United States steam +ship-of-war, Minnesota. The Savannah was then taken in charge by a +prize crew from on board the Perry and brought to New York. The +Minnesota, with the prisoners on board, proceeded--on her way to New +York--to Hampton Roads, where, after two days, she transferred the +prisoners to the Harriet Lane, which delivered them at New York. Here +they were given in charge to the United States Marshal. On my official +application, a warrant was issued by a United States Commissioner, and +under it the Marshal, as directed, took formal possession of and held +the prisoners. They were committed for trial and were, within a few +weeks afterwards, indicted by the United States Grand Jury. Although +the guilt and mischief of both piracy and treason may be embraced in +the crime and its consequences, the charge is not one of treason, nor +necessarily of piracy, as commonly understood, but the simple one of +violating the statutes to which I have referred. + +The learned District Attorney here stated the evidence which he was +prepared to submit, with the decisions upon which he would rest the +case, and he proceeded to cite and comment upon the following, among +other authorities:--U.S. _v._ Furlong, 5 Wheaton, 184; U.S. _v._ +Klintock, 5 _Id._, 144; Nueva Anna and Liebre, 6 _Id._, 193; U.S. _v._ +Holmes, 5 _Id._, 412; U.S. _v._ Palmer, 3 _Id._, 610; U.S. _v._ Tully, +1 Gallison, first ed., 247; U.S. _v._ Jones, 3 Wash. Circuit Court +Rep., 209; U.S. _v._ Howard, 3 _Id._, 340; U.S. _v._ Gibert, 2 Sumner, +19; U.S. _v._ Smith, 5 Wheaton, 153; 3 Chitty's Criminal Law, 1128; 1 +Kent's Com., 25, note _c_, and cases cited; 1 _Id._, 99, 100, and cases +cited; 1 _Id._, 184, 185, 186, 187, 188, 191, and cases cited. +Decisions as to jurisdiction: U.S. _v._ Hicks, MS. Judge Nelson; Irvine +_v._ Lowry, 14 Peters, 293, 299; Sheppard _v._ Graves, 14 Howard, 505; +D'Wolf _v._ Rabaud, 1 Peters, 476, 498. Mr. SMITH then continued as +follows: + +The atrocity of the authors and leaders of this rebellion against a +government whose authority has never been felt, with the weight of a +feather, upon the humblest citizen, except for crime, has been +portrayed so much more eloquently than I could present it, that I +should not indulge in extended remarks on that subject, even if +relevant to the case. Ignominy and death will be their just portion. +The crime of those who have acted as the agents and servants of these +leaders is also a grave one--a very grave one--mitigated, no doubt, by +ignorance, softened by a credulous belief of misrepresentations, and +modified by the very air and atmosphere of the place from which these +prisoners embarked. It is, undoubtedly, a case where the sympathies of +the jury and of counsel--whether for the prosecution or the +defence--may be well excited in reference to many, if not all, of the +prisoners at the bar, misguided and misdirected as they have been. But +it will be your duty, gentlemen, while allowing these considerations to +induce caution in rendering your verdict, to disregard them so far as +to give an honest and truthful return on the evidence, and on the law +as it will be stated to you by the Court. This is all the prosecution +asks. As to the policy of ultimately allowing the law to take its +course in this case, it is not necessary for us to express any opinion +whatever. That is a question which the President of the United States +must determine if this trial should result in a conviction. It is for +him, not for us. You must leave it wholly to those who are charged with +high duties, after you shall have performed yours. + +The case is of magnitude; but the issue for you to determine is simple. +Leaving out of view the alleged authority under which the prisoners +claim to have acted, you will inquire, in the first instance, whether +the seizure of the Joseph and her lading was robbery. You will be +unable to discover that any element of the crime was wanting. If no +actual force was employed in compelling the surrender, it is enough +that the captain and crew were put in bodily fear. So the traveler +delivers his purse in obedience to a request, and the crime is +complete, although violence proves unnecessary. That the humble owners +of the brig were despoiled of their property--how hardly earned we know +not--will not be disputed. Nor is it material that the proceeds were to +be shared between the prisoners and absent confederates. As to the +question of intent, it cannot be denied that the prisoners designed to +do, and to profit by, what they did. They are without excuse, unless +possessed of a valid commission. This brings us to the plea of +authority. + +A paper, purporting to be a letter of marque, signed by Jefferson +Davis, was found on the Savannah. Such a commission is of no effect, in +our courts of law, unless emanating from some government recognized by +the Government of the United States. The political authority of the +nation, at Washington, has never recognized the so-called Confederate +States as one of the family of nations. On the contrary, it resists +their pretensions, and proclaims them in rebellion. In this position of +affairs, a court of justice will not, nor can you as its officers, +regard the letter as any answer to the case which the prosecution will +establish. Such is the law. It is so determined in decisions of the +Supreme Court of the United States, which I have just cited. + +I will now proceed with the examination of the witnesses. + + +_Albert G. Ferris_ called and sworn. Examined by District Attorney +Smith: + +_Q._ Where were you born? + +_A._ In Barnstable, Massachusetts. + +_Q._ How old are you? + +_A._ Fifty on the 10th of September last. + +_Q._ Have you a family? + +_A._ Yes, sir. + +_Q._ Does your family reside at Charleston? + +_A._ Yes, sir, at Charleston, South Carolina. + +_Q._ How long have you resided at Charleston? + +_A._ Since 1837. + +_Q._ What has been your business there? + +_A._ Sea-faring man. + +_Q._ In what capacity have you acted as a sea-faring man? + +_A._ As master and mate. + +_Q._ In what crafts? + +_A._ In various crafts, small and large, and steamers. + +_Q._ Sailing out of the port of Charleston? + +_A._ Yes, and from ports of New York, and Virginia, and other places. + +_Q._ In what capacity were you acting just prior to the time you +embarked on board the Savannah? + +_A._ I was acting as master of a vessel sailing from Charleston on the +Southern rivers, in the rice and cotton trade. + +_Q._ What was the name of the vessel? + +_A._ The James H. Ladson, a schooner of about seventy-five tons. + +_Q._ Was the business in which you were engaged stopped? + +_A._ Yes, sir. + +_Q._ At what time? + +_A._ In December, 1860. + +_Q._ What was your employment after that? + +_A._ I had no employment after that. The blockade prevented vessels +from going out, although some did get out after the blockade was +established. + +_Q._ State the facts and circumstances which preceded your connection +with the Savannah? + +_A._ I joined the Savannah as a privateer, through the influence of +acquaintances of mine, with whom I had sailed, and from the necessity +of having something to do, and under the idea of legal rights from the +Confederate Government. + +_Q._ What did you first do in reference to shipping on the Savannah? + +_A._ I was on the bay with an acquaintance of mine, named James Evans, +who is now, I believe, at Charleston, and who spoke to me about it. + +_Q._ Was Evans one of the crew of the Savannah? + +_A._ Yes, he was one of the prize crew that went off with the Joseph. +He solicited me to join him, and said that he knew Captain Baker, and +that he and others were going in the Savannah. + +_Q._ Where did you see him? + +_A._ I saw him on the bay at Charleston. + +_Q._ Did you go anywhere with him in reference to enlisting? + +_A._ Yes, we went to the house of Bancroft & Son, and I was there +introduced to Captain Baker. + +_Q._ Did you recognize Captain Baker on the cruise? + +_A._ Yes, I recognized him then and since. + +_Q._ State the conversation? + +_A._ Mr. Evans recommended me to Captain Baker as a man who was +acquainted with the coast, and who was likely to be just the man to +answer his purpose. I partly made arrangements with Captain Baker +to--that is, he was to send for me when he wanted me. He further +proposed, as nothing was doing, that he would give me a job to go to +work on board the Savannah and fit her out; but I had some little +business to attend to at the time and declined. + +_Q._ State the conversation at Bancroft & Son's when you and Evans and +Captain Baker were there? + +_A._ These were the items, as near as my memory serves me: that we were +going on a cruise of privateering. I considered it was no secret. It +was well known, and posted through the city. Previous to that I had met +some of the party, who talked about going, and who asked me whether I +had an idea of going, and I said I had talked about it. They said that +Captain Baker was the officer. I then declined to go, and did not mean +to go in her until Saturday morning. + +_Q._ Did you have a further interview with Captain Baker, or any others +of these men? + +_A._ I had no other interview with Captain Baker at that time. I had no +acquaintance with Captain Baker, or any on board, except these men who +came from shore with me. + +_Q._ Did you see any one else in reference to shipping on this vessel, +except those you mentioned? + +_A._ I believe there was a man by the name of Mills who talked of it. +He did not proceed in the vessel. I believe he fitted her out, but did +not go in her. + +_Q._ Did you talk to any one else in regard to going? + +_A._ No; he only told me he was going to get a crew. + +_Q._ What articles did you see drawn up? + +_A._ There were no articles whatever drawn up, and I do not know what +arrangements were made. I understood since I have been here that +arrangements were made, but they were not proposed to me. It was a mere +short cruise to be undertaken. + +_Q._ Was the purpose or object of the cruise stated? + +_A._ It was the object of going out on a cruise of privateering. + +_Q._ When did you embark on the vessel? + +_A._ On Saturday night, the 1st of June, 1861. + +_Q._ Do you recollect who embarked with you that night? + +_A._ Some five or six of us. + +_Q._ Give their names? + +_A._ Alexander Coid was one (witness identified him in Court), Charles +Clarke was another, and Livingston or Knickerbocker was another. I do +not recollect any more names. There was a soldier, whose name I do not +know, who went on the prize vessel. + +_Q._ How did you get from the dock at Charleston? + +_A._ In a small boat to a pilot-boat, and in the pilot-boat to the +Savannah in the stream. She was lying about three miles from the city, +and about three-quarters of a mile from Fort Sumter. + +_Q._ How did you get from the pilot-boat to the Savannah? + +_A._ In a small boat. + +_Q._ And from the dock at Charleston to the pilot-boat? + +_A._ In a small boat. + +_Q._ Did any one have any direction in the embarkation? + +_A._ No one, particular. There were some agents employed to carry us +down. There was no authority used whatever. + +_Q._ When did you sail from Charleston in the Savannah? + +_A._ On Sunday afternoon from the outer roads. + +_Q._ When did you weigh anchor and sail from Fort Sumter? + +_A._ On Sunday morning, about 9 or 10 o'clock. + +_Q._ Do you know the men you saw on board? + +_A._ Yes, sir. + +_Q._ Do you know the names of all the prisoners? + +_A._ I believe I do, pretty nearly. I do not know that I could +pronounce the name of the steward or cook, but I know that they were +with us. + +(The prisoner, Passalaigue, was asked to stand up, and the witness +identified him.) + +_Q._ What was his position on board? + +_A._ I do not know what his position was. I never learned that. He was +on board as if superintending the provisions, or something of that +kind. + +(The prisoner, John Harleston, was asked to stand up, and witness +identified him.) + +_Q._ What position had he on board? + +_A._ I do not know what he did on board, anything more than that he +arranged the big gun, and asked assistance to lend him a hand in +managing the gun. + +_Q._ Was he an officer, or seaman? + +_A._ I believe he is no seaman. + +_Q._ In what capacity did he act on board? + +_A._ Nothing further than that, so far as I learned. + +_Q._ Did you hear him give any directions? + +_A._ No, sir; I was at the helm most of the time, when anything was +done at the gun. + +(The prisoner, Henry Howard, was asked to stand up, and witness +identified him.) + +_Q._ In what capacity was he? + +_A._ That was more than I learned. They were all on board when I joined +her. + +_Q._ Was he a seaman or officer? + +_A._ He stood aft with the rest of us, and assisted in working the +vessel. + +(The prisoner, Del Carno, was directed to stand up, and witness +identified him as being the steward. He also identified Henry Oman as +attending to the cooking department. The prisoner was directed to stand +up, and was identified by the witness.) + +_Q._ In what capacity was he? + +_A._ The same as the rest--a seaman. + +(Witness also identified William Charles Clarke, Richard Palmer, and +John Murphy, as seamen, and Alexander C. Coid, as seaman. Martin +Galvin, the prisoner, was directed to stand up, and was identified by +the witness.) + +_Q._ Was he a seaman? + +_A._ I do not think he was either seaman or officer. + +_Q._ What did he do on board? + +_A._ Little of anything. There was very little done any way. + +_Q._ Did he take part in working the vessel? + +_A._ Very little, if anything at all. I believe he took part in +weighing anchor. + +_Q._ You identify Captain Baker as captain of the vessel? + +_A._ Yes, I could not well avoid that. + +_Q._ How many more were there besides those you have identified? + +_A._ Some six. I think about eighteen all told, not including +Knickerbocker and myself. + +_Q._ How many went off on the Joseph? + +_A._ There were six of them. + +_Q._ Did any of those that are now here go off on the Joseph? + +_A._ No, I believe not. I know all here. We have been long enough in +shackles together to know one another. + +_Q._ Do you remember the names of those that went on the Joseph? + +_A._ I know two of them--one named Hayes, and Evans, the Charleston +pilot. + +_Q._ The same Evans who went on board with you? + +_A._ Yes, sir; he was a Charleston pilot. + +_Q._ What did Hayes and Evans do on board? + +_A._ They did the same as the rest--all that was to be done. + +_Q._ Were either of them officers? + +_A._ Mr. Evans was the Charleston pilot. He gave the orders when to +raise anchor and go out. He acted as mate and pilot when he was there. +I presume he had as much authority, and a little more, than any one +else; he was pilot. + +_Q._ What did Hayes do? + +_A._ He was an old, experienced man--did the same as the rest--lived +aft with the rest. He was a seaman. + +_Q._ The other four, whose names you do not recollect, did they act as +seamen? + +_A._ Exactly, sir. + +_Q._ Any of them as officers? + +_A._ No, sir; if they were, they were not inaugurated in any position +while I was there. + +_Q._ What did you do? + +_A._ I did as I was told by the captain's orders--steered and made +sail. + +_Q._ What time did you get off from the bar in Charleston? + +_A._ We got off Sunday afternoon and made sail east, outside of the +bar, and proceeded to sea. + +_Q._ Do you remember any conversation on board when any of the +prisoners were present? + +_A._ Yes; we talked as a party of men would talk on an expedition of +that kind. + +_Q._ What was said about the expedition? + +_A._ That we were going out privateering. The object was to follow some +vessels, and that was the talk among ourselves. + +_Q._ Did anything happen that night, particularly? + +_A._ No, sir; nothing happened, except losing a little main-top mast. + +_Q._ What course did you take? + +_A._ We steered off to the eastward. + +_Q._ Did you steer to any port? + +_A._ No, sir; we were not bound to any port, exactly. + +_Q._ What directions were given in respect to steering the vessel? + +_A._ To steer off to the eastward, or east by south, just as the wind +was; that was near the course that was ordered. + +_Q._ When did you fall in with the Joseph? + +_A._ On Monday morning, the 3d. + +_Q._ Do you remember who discovered the Joseph? + +_A._ I think it was Evans, at the masthead. + +_Q._ What did he cry out? + +_A._ He sung out there was a sail on the starboard bow, running down, +which proved afterwards to be the brig Joseph. + +_Q._ State all that was said by or in the presence of the prisoners +when and after the vessel was descried? + +_A._ We continued on that course for two or three hours. We saw her +early in the morning, and did not get up to her until 9 or 10 o'clock. + +_Q._ How early did you see her? + +_A._ About 6 o'clock. There were other vessels in sight. We stood off +on the same course, when we saw this brig,--I think steering northeast +by east. We made an angle to cut her off, and proceeded on that course +until we fell in with her. + +_Q._ What was said while running her down? + +_A._ When near enough to be seen visibly to the eye, our men, Mr. +Hayes, and the others, said she was a Yankee vessel; she was from the +West Indies, laden with sugar and molasses. The general language was +very little among the men; in fact, sailor-like, being on a flare-up +before we left port, not much was said. + +_Q._ State what was said? + +_A._ Well, first the proposition was made that it was a Yankee prize; +to run her down and take her. That was repeated several times. Nothing +further, so far as I know of. + +_Q._ During the conversation were all hands on deck? + +_A._ Yes, sir, all hands on deck. In fact, they had been on deck. It +was very warm; our place was very small for men below. In fact, we +slept on deck. No one slept below, while there, much. It was a very +short time we were on board of her--from Saturday to Monday night--when +we were taken off. + +_Q._ What was said was said loud, so as to be heard? + +_A._ Yes; it was heard all about deck. That was the principal of our +concern in going out; it was our object and our conversation. + +_Q._ When you ran along down towards the Joseph, state what was said. + +_A._ That was about the whole of what occurred--the men talking among +themselves. + +_Q._ When you got to the Joseph what occurred? + +_A._ She was hailed by Captain Baker, and requested to send a boat on +board. + +_Q._ Who answered the hail? + +_A._ I believe Captain Meyer, of the brig. + +_Q._ Would you recognize Captain Meyer now? + +_A._ Yes, sir. + +_Q._ State what Captain Baker said? + +_A._ Captain Baker, as near as I can bear in mind, hailed him, and told +him to come on board and fetch his papers. + +_Q._ Did Captain Meyer come on board? + +_A._ He lowered his boat, and came on board with his own boat and crew. +Captain Baker said to him that he was under the Confederate flag, and +he considered him a prisoner, and his vessel a prize to the Confederate +Government. + +_Q._ Repeat that? + +_A._ If I bear in mind, Captain Meyer asked what authority he had to +hail his vessel, or to that effect. The reply of Captain Baker, I +think, was that he was under a letter of marque of the Confederate +Government, and he would take him as a prisoner, and his vessel as a +prize to the Southern Confederacy. I do not know the very words, but +that was the purport of the statement, as near as I understood. + +_Q._ When Captain Baker hailed the Joseph, do you remember the language +in which he hailed her? + +_A._ I think, "Brig, ahoy! Where are you from?" He answered him where +from--I think, from Cardenas; I think, bound to Philadelphia or New +York. + +_Q._ Did he inquire about the cargo? + +_A._ No, sir, I think not, until Captain Meyer came on board. We were +but a short distance from the brig. The brig was hove to. + +_Q._ Do you remember anything further said by Captain Baker, or any of +the prisoners? + +_A._ He had some further conversation with Captain Meyer, on the deck, +with respect to the vessel, where from, the cargo, and the like of +that. She had in sugars, as near as my memory serves me. + +_Q._ What flag had the Savannah, or how many? + +_A._ She had the Confederate flag. + +_Q._ What other flags, if any? + +_A._ She had the United States flag. + +_Q._ Any other? + +_A._ No, sir, I do not know that she had any other. + +_Q._ Did you notice what flag the Joseph had? + +_A._ I did not see her flag, or did not notice it. I saw her name, and +where she hailed from. I knew where she belonged. + +_Q._ What was on her stern? + +_A._ I think "The Joseph, of Rockland." I knew where it was. I had been +there several times. + +_Q._ When the sail was first descried was there any flag flying on the +Savannah? + +_A._ No, sir. + +_Q._ When you ran down towards the Joseph was there any flying? + +_A._ Yes, sir, we had the Confederate flag flying, and, I believe, the +American flag. + +_Q._ Which was it? + +_A._ I believe both flying--first one, and then the other. + +_Q._ Which first? + +_A._ I think the Stars and Stripes first. I am pretty certain that Mr. +Evans then hauled that down. + +_Q._ When running down toward the Joseph you had the American flag +flying? + +_A._ Yes, sir; I think so; and Mr. Evans hauled down that, and put up +the Confederate flag, when we got close to her. + +_Q._ She ran with the American flag until close to her, and then ran up +the Confederate flag? + +_A._ Yes, when some mile or so of her--in that neighborhood. + +_Q._ Do you remember who gave the order to the prize crew to leave the +Savannah and go on board the Joseph? + +_A._ Issued the orders? Well, Captain Baker, I believe, told the pilot, +Mr. Evans, to select his men, and go with the boat. + +_Q._ And they went on board? + +_A._ Yes, they went on board. + +_Q._ Do you remember anything said among the men, after the prize crew +went off, in respect to the Joseph, or her cargo, or her capture? + +_A._ Captain Meyer was there, and stated what he had in her, and where +he was from, and so forth. We were merely talking about that from one +to the other. + +_Q._ Do you remember any directions given to the prize crew, as to the +Joseph--where to go to? + +_A._ I do not recollect Captain Baker directing where to get her in, or +where to proceed with her. Evans was better authority, I presume, than +Captain Baker, where to get her in. + +_Q._ Any directions as to where the vessel was to be taken? + +_A._ No, sir; either to Charleston or Georgetown--the nearest place +where they could get in, and evade the blockade. That was the reason of +having the pilot there. + +_Q._ Did Captain Meyer remain on board the Savannah? + +_A._ Yes, sir, until we were captured, and then he was transferred to +the brig Perry, with the rest of us. + +_Q._ What direction did the Joseph take after she parted from you? + +_A._ Stood in northward and westward. Made her course about northwest, +or in that neighborhood. + +_Q._ In what direction from Charleston and how far from Charleston was +the Joseph? + +_A._ I think Charleston Bar was west of us about 50 or 55 miles. + +_Q._ Out in the open ocean? + +_A._ Yes, sir. I calculated that Georgetown light bore up about 35 +miles in the west; but whether that is correct or not I cannot say. + +_Q._ Where was the nearest land, as nearly as you can state? + +_A._ I think the nearest land was Ball's Island, somewhere in the +neighborhood of north and west, 35 or 40 miles. + +_Q._ What sail did you next fall in with? + +_A._ We fell in with a British bark called the Berkshire. + +_Q._ What did you do when you fell in with her? + +_A._ We passed closely across her stern. She was steering to the +northward and eastward--I suppose bound to some Northern port. + +_Q._ That was a British brig? + +_A._ Yes, sir. + +_Q._ What was the next sail you fell in with? + +_A._ The next sail we fell in with was the brig-of-war Perry. + +_Q._ At what time did you descry her? + +_A._ I suppose about 3 o'clock in the afternoon of the same day. + +_Q._ Where were you when you fell in with her? + +_A._ We were somewhere in the same parallel. We saw the brig Perry from +the masthead, and stood towards her. + +_Q._ What was said when she was seen? + +_A._ We took her to be a merchant vessel. That was our idea, and we +stood to the westward. + +_Q._ Did you make chase? + +_A._ Yes, sir, we stood to the westward when we saw her; and the brig +Joseph, that we took, saw her. The Perry, I presume, saw us before we +saw her, and was steering for us at the time we were in company with +the Joseph. + +_Q._ How far off was the Joseph at the time? + +_A._ Not more than three or four miles. When we made her out to be the +brig-of-war Perry, we then tacked ship and proceeded to sea, to clear +her. + +_Q._ How near was the brig Perry when you first discovered she was a +man-of-war? + +_A._ I should think she was all of 10 or 11 miles off. + +_Q._ The brig Perry made chase for you? + +_A._ Yes, sir. + +_Mr. Larocque_: If the Court please, from the opening of counsel I +suppose he is now proceeding to that part of the case that he laid +before the jury in his opening, that consists in an exchange of shots +between the brig Perry and the Savannah. We object to that. There is no +charge in the indictment of resisting a United States cruiser, or of +any assault whatever. + +_Mr. Smith_: What the vessel did on the same day, before and after the +main charge, goes to show the purpose of the voyage--the general object +of the Savannah and her crew. It may be relevant in that respect. + +_Mr. Larocque_: We are not going to dispute the facts testified to by +this witness. There will be no dispute on this trial that this was a +privateer--that her object was privateering under the flag of the +Confederate Government, and by authority of that Government, and, under +these circumstances, the gentleman has no need to trouble himself to +characterize these acts by showing anything that occurred between the +Savannah and the Perry. Your honor perceives at once that this +indictment might have been framed in a different way, under the 8th +section of the Act of 1790, with a view of proving acts of treason, if +you please, which are made piracy, as a capital offence, by that act. +The counsel has elected his charge, and he has strictly confined the +charge in the indictment to the allegation of what occurred between the +Savannah and the Joseph. There is not one word in the indictment of any +hostilities between the Perry and the Savannah, and therefore it must +be utterly irrelevant and immaterial under this indictment. Evidence on +that subject would go to introduce a new and substantial charge that we +have not been warned to appear here and defend against, and have not +come prepared to defend against, for that reason. So far as +characterizing the acts we are charged with in the indictment, there +can be no difficulty whatever. + +_The Court_: I take it there is no necessity for this inquiry after the +admission made. + +_Mr. Evarts_: We propose to show the arrest and bringing of the vessel +in, with her crew. + +_The Court_: Of course. + +_Mr. Evarts_: That cannot very well be done without showing the way in +which it was done. + +_The Court_: But it is not worth while to take up much time with it. + +_Mr. Brady_: The witness has stated that this vessel was captured, and +he has stated the place of her capture; and of course it is not only +proper, but, in our view, absolutely necessary, that the prosecution +should show that, being captured, she was taken into some place out of +which arose jurisdiction to take cognizance of the alleged crime. But +the cannonading is no part of that. + +_Q._ _By Mr. Smith_: State the facts in regard to the capture of the +Savannah by the Perry. + +_A._ Well, the brig Perry ran down after dark and overtook us; came +within hail. + +_Q._ At what time? + +_A._ Near 8 o'clock at night. Without any firing at all, she hailed the +captain to heave to, and he said yes; she told him to send his boat on +board. He said that he had no boat sufficient to go with. They then +resolved to send a boat for us, and did so, and took us off. That was +the result. + +_Q._ The Perry sent her boat to the Savannah? + +_A._ Yes, sir; we had no boat sufficient to take our crew aboard of +her. We had a small boat, considerably warped, and it would not float. + +_Q._ Where at sea was the capture made of the Savannah by the Perry? + +_A._ It was in the Atlantic Ocean. + +_Q._ About how far from Charleston? + +_A._ Well, about 50 miles from Charleston light-house, in about 45 +fathoms of water. + +_Q._ How far from land? + +_A._ I suppose the nearest land was Georgetown light, about 35 or 40 +miles; I should judge that from my experience and the course we were +running. + +_Q._ Were you all transferred to the Perry? + +_A._ Yes, sir. + +_Q._ When was that? + +_A._ Monday night; it was later than 8 o'clock. + +_Q._ Transferred by boats? + +_A._ Yes, sir; the Perry's boats. She sent her boat, with arms and men, +and took us on board. There we were all arrested and put in irons that +night, except the captain and Mr. Harleston, I believe. I do not know +whether they were, or not. + +_Q._ Was Mr. Knickerbocker put on board the Perry, with the rest? + +_A._ Yes, sir, and on board the Minnesota, with us. + +_Q._ Who were put in charge of the Savannah? Were there any men of the +Perry? + +_A._ Yes, sir; I believe they sent a naval officer on board to take +charge of her, and a crew; and I think they took Mr. Knickerbocker and +Capt. Meyer, too, on board the Savannah. + +_Q._ Did you hear the direction as to the port the Savannah should sail +to after the prize crew were put on board? + +_A._ To New York I understood it was ordered. I was told that she was +ordered to New York. + +(Objected to as incompetent.) + +_Q._ In respect to the Perry, what course did she take after you were +taken on board? + +_A._ As informed by the captain, next day, she was bound to Florida, to +Fernandina, to blockade. + +_Q._ When did she fall in with the Minnesota? + +_A._ About the third day after our capture, I think; lying 8 or 10 +miles off Charleston. + +_Q._ In the open ocean? + +_A._ Yes, sir. + +_Q._ You were all transferred to the Minnesota? + +_A._ Yes, sir. + +_Q._ What did the Minnesota do? + +_A._ We were confined on board the Minnesota. + +_Q._ When was it you went on board the Minnesota? + +_A._ I think on Wednesday or Thursday; I forget which. + +_Q._ You were captured on Monday night? + +_A._ Yes, sir, the 3d of June, and I think it was on Wednesday or +Thursday (I do not know which) we went on board the Minnesota. + +_Q._ How long did you lie off Charleston? + +_A._ Several days. + +_Q._ At anchor? + +_A._ The ship was under way sometimes, steering off and on the coast. + +_Q._ How far from Charleston? + +_A._ I think in 8 or 9 fathoms of water, 8 or 10 miles from the land. + +_Q._ Where did the Minnesota proceed from there? + +_A._ To Hampton Roads. + +_Q._ Were all the persons you have identified here on board the +Minnesota? + +_A._ Yes, sir. + +_Q._ State the facts as to transfer from ship to ship? + +_A._ We were transferred from the Savannah to the Perry; from the Perry +to the Minnesota; from the Minnesota to the Harriet Lane. + +_Q._ All of you? + +_A._ Yes, sir; all. + +_Q._ State, as near as you can, where, at Hampton Roads, the Minnesota +came? + +_A._ She came a little to the westward of the Rip Raps; I suppose +Sewall's Point was bearing a little to the west of us, 3/4 or 1/2 a +mile to the west of us; I should judge west by south. I am well +acquainted there. We call it 24 miles from Old Point Comfort. + +_Q._ What was the nearest port of entry to where you were anchored? + +_A._ Norfolk, Va. + +_Q._ How far from Fortress Monroe? + +_A._ A mile, or 1-1/8 or 1-1/4--not a great distance. + +_Q._ How long did you lie there before you were transferred to the +Harriet Lane? + +_A._ Several days. I did not keep any account. Some two or three days. + +_Q._ And you were brought to this port in the Harriet Lane? + +_A._ Yes, sir. + +_Q._ And all the prisoners you identified to-day were brought here? + +_A._ Yes, sir, to the Navy Yard, Brooklyn; there transferred to a +ferry-boat and brought to the Marshal's office here. + + +_Mr. Evarts_: If the Court please, we deem it a regular and necessary +part of our proof to show the manner of the seizure of this vessel by +the U.S. ship Perry; to show that it was a forcible seizure, by main +force, and against armed forcible resistance of this vessel. Besides +being almost a necessary part of the circumstances of the seizure, it +is material as characterizing the purpose of this cruise, and the depth +and force of the sentiment which led to it, and the concurrence and +cohesion of the whole ship's crew in it. + +_The Court_: What necessity for that after what has been conceded on +the other side? + +_Mr. Evarts_: They concede that she was seized; but do they concede +that, as against all those accused, the crime of piracy is proved--the +concurrence of the whole--and that the only question is, whether the +protection claimed from what is called the privateering character of +the vessel shields them? + +_The Court_: I understand the admission to be broad. + +_Mr. Evarts_: If as broad as that, that there is no distinction taken +between the concurrence of these men, it is sufficient. + +_Mr. Brady_: We have said nothing about that? + +_The Court_: So far as the capture is concerned, that does not enter +into any part of the crime, and has no materiality to the elements of +this case at all. The force that may enter into the crime is in the +capture by the privateer of the Joseph. I do not want to confound this +case by getting off on collateral issues; and so far as concerns the +animus, or intent, I understand it to be admitted. + +_Mr. Evarts_: My learned friends say that on this point they have not +said anything as to the jointness or complicity of the parties in this +crime. Now I think your honor would understand that a concurrence in +resistance, by force, of an armed vessel of the United States, bearing +the flag of the United States, and undertaking to exercise authority +over it, would show their design. + +_The Court_: Have you any question as to the facts? + +_Mr. Evarts_: The Government have all the facts. Stripped of all the +circumstances that attended the actual transaction, it would appear as +if, when the brig Perry came along, these people at once surrendered, +gave up, and submitted quietly and peacefully. As against that, we +submit the Government should protect itself by proving the actual +transaction. + +_Mr. Brady_: One thing is certain, that if these men committed any +offence whatever, it was committed before they saw the Perry; it was an +act consummated and perfect, whatever may have been its legal +character, and whatever may have been the consequences which the law +would attach to it. The proof of the capture of the Savannah by the +Perry is in no way relevant, except in proving jurisdiction, for which +purpose alone is it of any importance that it should be mentioned here. +And whether the capture was effected after a chase, or without one, +against resistance, or by the consent of the persons to that from which +they could not escape, is of no possible consequence in any aspect of +the case. Whether there was firing or armed resistance can make no +difference. It cannot bear on the question whether all the defendants +are responsible for the acts of each other, like conspirators. It may +be, as the counsel for the prosecution holds, that when you show they +did set out on a common venture each became the agent of the other. +That may be, and they must take the responsibility of trying the case +on such a theory of the law as they think proper. We would not feel any +hesitation in saying they all acted with a common design, only that +there are some of the prisoners that we have had no communication with, +and it may be that some of them went on board without knowing what the +true character of the enterprise was. It is sufficient now to object +that the question, whether there was resistance or not, after the Perry +came up, is of no consequence in deciding the question of whether the +men are responsible. + +_Mr. Evarts_: My learned friend is certainly right in saying that the +crime was completed when the Joseph was seized; but it does not follow +that the proof of what the crime was, and what the nature of the act +was, is completed by the termination of that particular transaction. +You might as well say that the fact of a robbery or theft has been +completed by a pickpocket or highwayman when his victim has been +despoiled of his property; and that proof of the crime prohibits the +Government from showing the conduct of the alleged culprit after the +transaction--such as evading the officer, running away from or +resisting the officer. + +_The Court_: You do not take into account the admission of the counsel. +I believe the subsequent conduct of the privateers, if the intent with +which they seized and captured the Joseph was in question, would be +admissible; but when this is admitted broadly by the counsel for the +defendants, I do not see why it is necessary to go into proof with a +view to make out that fact, except to occupy the time of the Court. + +_Mr. Evarts_: I am sure your honor will not impute to us any such +motive. The point of difficulty is: my learned friends do not admit the +completeness of the crime by all the prisoners, subject only to the +answer whether the privateering character of the enterprise protects +them. The moment that is admitted, I have no occasion to dwell upon the +facts. + +_The Court_: I understand the admission as covering all the prisoners, +as to the intent. + +_Mr. Brady_: That she was fitted out as a privateer--the enterprise, +and capture of the Joseph. + +_Mr. Smith_: Is the admission that all were engaged in a common +enterprise, and all participators in the fact? + +_The Court_: So I understand the admission, without any qualification. + +_Mr. Smith_: Do we understand the counsel as assenting to the Court's +interpretation as to the breadth of the admission? + +_Mr. Brady_: There is no misunderstanding between the Court and the +counsel; but the learned gentlemen seem not to be satisfied with the +admission we made. The intent is, of course, an element in the crime of +piracy. There must be an _animus furandi_ established, in making out +the crime; and that is, of course, a question about which we have a +great deal to say, both as to the law and the fact, at a subsequent +stage of the case. When the counsel proposed to prove the firing of +cannon, and armed resistance, we said--what we say now--that we do not +intend to dispute the facts proved by the witness on the stand: that +the Savannah was, at the port of Charleston, openly and publicly, +without any secresy (to use the witness's language, it was "posted"), +fitted out as a privateer, in the service of the Confederate States, +under their flag, and by their authority; that it was so announced, and +that these men were shipped on board of her as a privateer. All that, +there is no intention to dispute at all; and, of course, that all the +men who shipped for that purpose were equally responsible for the +consequences, we admit. + +_Mr. Evarts_: Do you admit that all shipped for the purpose? If we can +prove their conduct, concurring in this armed resistance, then I show +that they were not there under any deception about its being a +peaceable mercantile transaction. I may be met by the suggestion that, +so far as the transaction disclosed about the Joseph is concerned, +there was not any such depth of purpose in this enterprise as would +have opposed force and military power in case of overhauling the +vessel. It would seem to me, with great respect to the learned Court, +that when the facts of the transaction can be brought within very +narrow compass, as regards time, it is safer that we should disclose +the facts than that admissions should be accepted by the Court and +counsel when there is so much room for difference of opinion as to the +breadth of the admission. We may run into some misunderstanding or +difference of view as to how far the actual complicity of these men, or +the strength of their purpose and concurrence in this piratical (as we +call it) enterprise, was carried. + +_Mr. Lord_: If your honor will permit, it appears to me that this is +exceedingly plain. The notoriety and equipment of the vessel--all the +character of the equipment--the sailing together--all that is covered +by the admission of my friend, Mr. Brady. So far as to there being a +joint enterprise up to the time of the capture of the Joseph, it seems +to me there is nothing left. Now, what do they wish? They wish to show, +what is in reality another, additional, and greater crime, after this +capture of the Joseph, for which we alone are indicted, as they say, +for the purpose of showing that we assented to this, which we went out +to do. + +Your honor knows that, if we have any fact to go to the jury, they are +getting into this case a crime of a very different character and of a +deeper dye, for which they have made no charge, and which does not bear +upon that which, if a crime at all, was consummated in the capture of +the Joseph--the only crime alleged in the indictment. I submit that +they cannot, with a view of showing complicity in a crime completed, +show that the next day the men committed another crime of a deeper +character. I think it is not only irrelevant, but highly objectionable. + +_The Court_: We are of opinion that this testimony is superfluous, and +superseded by the admission of the counsel. I understand the admission +of the counsel to be, that the vessel was fitted out and manned by +common understanding on the part of all the persons on board, as a +privateer; and that in pursuance of that design and intent, and the +completion of it, the Joseph was captured. That is all the counsel can +ask. That shows the intent--all that can be proved by this subsequent +testimony; and unless there is some legitimate purpose for introducing +this testimony, which might, of itself, go to show another crime, we +are bound to exclude it. + +_Mr. Evarts_: We consider the decision of your honor rests upon that +view of the admission, and we shall proceed upon that as being the +admission. + +_The Court_: Certainly; if anything should occur hereafter that makes +it necessary, or makes it a serious point, the Court will look into it. + + +_Examination resumed by District Attorney Smith._ + +_Q._ You stated, I believe, that it was after 8 o'clock in the evening +when the boat of the Perry came to the Savannah? + +_A._ Yes, sir. + +_Q._ Who was in that boat? + +_A._ There was a gentleman from the Perry; I do not know that I ever +saw him before; an officer and boat's crew,--I suppose 15 or 20 men. + +_Q._ One of the United States officers? + +_A._ Yes, sir; some officer from the brig Perry boarded us, and +demanded us to go on board the Perry. + +_Q._ Where were the crew of the Savannah at the time the boat came from +the Perry? + +_A._ All on deck, sir. + +_Q._ At the time the Savannah was running down the Joseph, what time +was it? + +_A._ We got up to the Joseph somewhere late in the forenoon, as near as +my memory serves me. + +_Q._ I want to know whether all the officers and crew of the Savannah +were on duty, or not, at the time you were running down? + +_A._ Yes, sir; there were some walking the deck, and some lying down, +right out of port; the men, after taking a drink, did not feel much +like moving about; they were all on deck. + +_Q._ Was there any refusal to perform duty on the part of any one? + +_A._ No, sir; all did just as they were told. + +_Q._ How was the Savannah armed, if armed at all? + +_A._ I never saw all her arms, sir. + +_Q._ What was there on deck? + +_A._ A big gun on deck. + +_Q._ What sort of a gun? + +_A._ They said an eighteen-pounder; I am no judge; I never saw one +loaded before. + +_Q._ A pivot gun? + +_A._ No, sir, not much of a pivot. They had to take two or three +handspikes to round it about. + +_Q._ It was mounted on a carriage, the same as other guns? + +_A._ Yes, sir. + +_Q._ With wheels? + +_A._ I believe so; I took no notice of the gun. + +_Q._ Reflect, and tell us how the gun was mounted? + +_A._ It was mounted so that it could be altered in its position by the +aid of handspikes; it could be swung by the use of handspikes. + +_Q._ The gun could be swung on the carriage without moving the +carriage? + +_A._ I do not know that part of it; I know the men complained that +moving the gun was hard work. + +_Q._ What other arms had you on board? + +_A._ I saw other arms on board,--pistols, I believe, and cutlasses. + +_Q._ How many pistols did you see? + +_A._ I saw several; I do not know how many. + +_Q._ About how many cutlasses? + +_A._ I cannot say how many; I saw several, such as they were--cutlasses +or knives, such as they were. + +_Q._ Where were the cutlasses? + +_A._ Those were in the lockers that I saw; I never saw them until +Monday noon, when we ran down the Joseph; I saw them then. + +_Q._ Where were they then? + +_A._ I saw them in the lockers that lay in the cabin. + +_Q._ When the Perry's boat came to you where were they? + +_A._ Some out on the table, and some in the lockers. + +_Q._ When you captured the Joseph where were they? + +_A._ I think there were some out on the table, and about the cabin; the +pistols, too; but there were none used. + +_Q._ Were any of the men armed? + +_A._ No, sir; I saw none of our men armed, except in their belt they +might have a sheath knife. + +_Q._ Where were all hands when you captured the Joseph, in the forenoon +of Monday? + +_A._ All on deck, sir; there might be one or two in the forecastle, but +most on deck, some lying down, and some asleep. + +_Q._ What size is the Savannah? + +_A._ I think in the neighborhood of 50 to 60 tons. + +_Q._ What is the usual crew for sailing such a vessel, for mercantile +purposes? + +_A._ I have been out in such a boat with four men and a boy, besides +myself; that was all-sufficient. + +_Q._ Where did you run to? + +_A._ I ran to Havana, and to Key West, with the mails, and returned +again in a pilot boat of that size, with four men and a boy, some years +ago. + +_Q._ Was the Savannah in use as a pilot boat before that expedition? + +_A._ Yes; that is what she was used for. + +_Q._ Do you know where the Savannah was owned? + +_A._ I believe she was owned in Charleston. + +_Q._ How long have you known her? + +_A._ Two or three years, as a pilot boat. + +_Q._ Do you know her owners? + +_A._ I know one of them. + +_Q._ What was his name? + +_A._ Mr. Lawson. + +_Q._ Is he a citizen of the United States? + +_A._ Yes, I believe so. + + +_Cross-examined by Mr. Larocque._ + +_Q._ In speaking of your meeting with the Joseph, you spoke of a +conversation that took place between Captain Baker and Captain Meyer, +after Captain Meyer came on board the Savannah. Do you not recollect +that before that, when Captain Meyer was still on the deck of the +Joseph, Captain Baker having called him to come on board the Savannah, +and bring his papers, he asked Captain Baker by what authority he +called on him to do that? + +_A._ I think this conversation occurred on board the Savannah. + +_Q._ The way you stated was this: that Captain Baker, on board the +Savannah, stated to Captain Meyer that he must consider himself and +crew prisoners, and his vessel a prize to the Confederate States? + +_A._ Yes, sir. + +_Q._ That was on board the Savannah? + +_A._ It was. + +_Q._ But do you not recollect that before that, when Captain Baker +called on the Captain of the Joseph to come on board the Savannah, and +bring his papers, Captain Meyer asked by what authority Captain Baker +called on him to do that? + +_A._ I do not bear that in mind. I cannot vouch for that. I do not +exactly recollect those words, I think the proposition was only made +when he was on board the Savannah, but probably it might have been made +before. + +_Q._ Did Captain Meyer bring his papers with him? + +_A._ I do not know. I did not see them. + +_Q._ You spoke of having met another vessel after that, and before you +fell in with the Perry--I mean the Berkshire--you spoke of her as a +British vessel? + +_A._ Yes. We did not speak her. + +_Q._ How did you ascertain the fact that she was a British vessel? + +_A._ We could tell a British vessel by the cut of her sails. + +_Q._ Was the Berkshire, so far as you observed, an armed or an unarmed +vessel? + +_A._ I think she was an unarmed vessel. I considered she had been at +some of the Southern ports, and had been ordered off. + +_Q._ She was a merchant vessel? + +_A._ Yes. + +_Q._ Which you, from your seamanlike knowledge, thought to be a British +vessel? + +_A._ Yes; and I think that the words, "Berkshire, of Liverpool," were +on her stern. + +_Q._ Did you read the name on the stern? + +_A._ I think I did. + +_Q._ You had fallen in with the Joseph, one unarmed vessel, and had +made her a prize, and her crew prisoners? + +_A._ Yes. + +_Q._ You fell in with the Berkshire, another unarmed vessel, and passed +under her stern and did not interfere with her. What was the reason of +that difference? + +_A._ We had no right to interfere with her. + +_Q._ Why not? + +_A._ She was not an enemy of the Confederate Government. The policy we +were going on, as I understood it, was to take Northern vessels. + +_Q._ Then you were not to seize all the vessels you met with? + +_A._ No; we were not to trouble any others but those that were enemies +to the Confederate Government. That was the orders from headquarters. +The Captain showed no disposition to trouble any other vessels. + +_Q._ When you were taken on board the Perry were you put in irons? + +_A._ Yes. + +_Q._ Where were those irons put on. Was it on board the Savannah, or +after you were put on board the Perry? + +_A._ When we got on board the Perry. + +_Q._ How soon after you went on board the Perry were those irons put +on? + +_A._ As soon as our baggage was searched. We were put in the +between-decks on board the Perry and irons put on us immediately after +we were searched. + +_Q._ Were you in irons when you were transferred from the Perry to the +Minnesota? + +_A._ No, sir. + +_Q._ When were the irons taken off? + +_A._ On board the Perry, when we were going into the boat to go on +board the Minnesota. + +_Q._ When you were on board the Minnesota were your irons put on again? + +_A._ They were, at night. + +_Q._ Was that the practice--taking them off in the day, and putting +them on at night? + +_A._ Yes; we were not ironed at all on that day on board the Minnesota. + +_Q._ When you arrived in Hampton Roads,--you have described the place +where the Minnesota lay, about half a mile from the Rip Raps? + +_A._ Yes. (A chart was here handed to witness, and he marked on it the +position of the Minnesota off Fortress Monroe.) + +_Q._ As I understand it, you have marked the position of the anchorage +of the Minnesota a little further up into the land than on a direct +line between the Rip Raps and Fortress Monroe? _A._ Yes, sir. + +_Q._ You were then taken on board the Harriet Lane, from the Minnesota? + +_A._ Yes. + +_Q._ Where did the Harriet Lane lie when you were taken on board of +her? + +_A._ She was further up into the Roads, about half a mile from the +Minnesota, westward. (Witness marked the position of the Harriet Lane +on the chart.) + +_Q._ You are familiar with these Roads? + +_A._ Yes, sir; for years. + +_Q._ You know the town of Hampton? + +_A._ Yes. + +_Q._ And the college there? + +_A._ Yes. + +_Q._ How, with reference to the college at Hampton, did the Harriet +Lane lie? + +_A._ The college at Hampton appeared N.N.W., and at a distance of a +mile and a quarter, or a mile and a half. + +_Q._ How were you taken from the Minnesota on board the Harriet Lane? + +_A._ The ship's crew took us in a boat. + +_Q._ In one trip, or more trips? + +_A._ We all went in one of the ship's boats. + +_Q._ On what day was that? + +_A._ I do not bear in mind exactly. + +_Q._ Was the Harriet Lane ready to sail when you were taken on board of +her? + +_A._ Yes; she sailed in a few hours afterwards. + +_Q._ She had already had steam up? + +_A._ Yes; they were waiting for the commander, who was on shore. + +_Q._ How long were you lying on board the Minnesota after your arrival +there? + +_A._ I think we were transferred from the Minnesota on Saturday, the +20th of June. + +_Q._ How long had you been lying on board the Minnesota, in Hampton +Roads? + +_A._ Two or three days; I do not recollect exactly. + +_Q._ You have been a seafaring man a good many years? + +_A._ I have been about 34 years at it. + +_Q._ In the capacity of master and mate? + +_A._ Yes, sir. + +_Q._ As pilot, also? + +_A._ I have run pilot on all the coasts of America. + +_Q._ How often had you been in Hampton Roads? + +_A._ Many a time. I sailed a vessel in and out in the West India trade. + +_Q._ How familiar are you with the localities about there? + +_A._ I am so familiar that I could go in, either night or day, or into +Norfolk. + +_Q._ Do you know the ranges, bearings, distances, depth of water, and +all about it? + +_A._ Yes; and could always find my way along there. + +_Q._ (_By a Juror._) I understood you to say that the Savannah carried +both the American flag and the Confederate flag? + +_A._ Yes. + +_Q._ And that the American flag was flying when you were bearing on the +Joseph? + +_A._ Yes. + +_Q._ What was the object of sailing under that flag? + +_A._ I presume our object was to let her know that we were coming; and, +no doubt, the vessel heaved to for us. Suddenly enough we raised the +Confederate flag. + +_Q._ Then it was deception? + +_A._ Of course; that was our business--that was as near as I understood +it. + + +_William Habeson_ called, and sworn. Examined by District Attorney +Smith. + +_Q._ You are the Deputy Collector of the port of Philadelphia? _A._ +Yes, sir. + +_Q._ Have you charge of the register of vessels there? + +_A._ Yes. + +_Q._ Did you take this certified copy of the register of the Joseph +from the original book? + +_A._ It is copied from the original book. + +_Mr. Evarts_: It is a temporary register, dated 26th January, 1861, +showing the building of the vessel, and the fact of her owners being +citizens of the United States. + +_Q._ Who was the master of the vessel then? + +_A._ George H. Cables. + +_Q._ Do you know who was the master afterwards? + +_A._ Yes; I saw him afterwards. That man (pointing to Captain Meyer) is +the man. He was endorsed as master after the issuing of this register. + +_Q._ And you recollect this person being master of the vessel mentioned +in that register? + +_A._ I do, sir. + + +_George Thomas_ called, and sworn. Examined by District Attorney Smith. + +_Q._ Where do you reside? + +_A._ Quincy, Massachusetts. + +_Q._ What is your business? + +_A._ Shipbuilder. + +_Q._ Do you know the brig Joseph? + +_A._ I have known her; I built her. + +_Q._ Where did you build her? + +_A._ At Rockland, Maine. + +_Q._ Who did you build her for? + +_A._ For Messrs. Crocket, Shaller, Ingraham, and Stephen N. Hatch--all +of Rockland. + +_Q._ Were they American citizens? + +_A._ They were all American citizens. + +_Q._ What was the tonnage of the vessel? + +_A._ About 177 tons. She was a hermaphrodite brig. + +_Q._ Look at this description in the register and say whether it was +the vessel you built. + +_A._ I have no doubt that this is the vessel. + + +_George H. Cables_ called, and sworn. Examined by District Attorney +Smith. + +_Q._ Where do you reside? + +_A._ Rockland, Maine. + +_Q._ Look at the description of the brig Joseph, in this register, and +see if you know her? + +_A._ Yes, sir. + +_Q._ You were formerly master of the vessel? + +_A._ Yes, sir. + +_Q._ Who was the master that succeeded you? + +_A._ I put Captain Meyer in charge of her. + +_Q._ You recognize Mr. Meyer here? + +_A._ Yes, sir. + +_Q._ Did you own any part of that vessel? + +_A._ I bought a part of it, and gave it to my wife. + +_Q._ Is your wife an American-born woman? + +_A._ She is. + +_Q._ Where does she reside? + +_A._ In Rockland. + +_Q._ Do you know any others of the part-owners of her? + +_A._ Yes; my brother and myself bought a three-eighth interest. + +_Q._ Where does your brother reside? + +_A._ In Rockland. + +_Q._ Is he an American-born citizen? + +_A._ Yes. + +_Q._ Are you an American citizen? + +_A._ Yes. + +_Q._ You spoke of some other owner? + +_A._ Yes; Messrs. Hatch and Shaler. + +_Q._ Are they American citizens? + +_A._ Yes. + +_Q._ Did you know all the owners? + +_A._ Yes. + +_Q._ Were they all American citizens? + +_A._ Yes. + +_Q._ When did you put Meyer in charge of the vessel? + +_A._ On the 26th or 27th of April last. + +_Q._ Where? + +_A._ In Philadelphia. + +_Q._ Where did you sail from? + +_A._ From Cardenas, in Cuba, on a round charter which I made at +Cardenas myself with J. L. Morales & Co., consigned to S. H. Walsh & +Co. + +_Q._ The ownership remained the same? + +_A._ Just the same. + +_Q._ Was there any change up to the time of her capture? + +_A._ No, sir. + + +_Thies N. Meyer_, examined by District Attorney Smith. + +_Q._ You were Captain of the brig Joseph at the time of her capture? + +_A._ I was. + +_Q._ What American port had you sailed from? + +_A._ Philadelphia. + +_Q._ Where did you go to? + +_A._ Cardenas, in Cuba. + +_Q._ What port did you sail for from Cardenas? + +_A._ Back to Philadelphia. + +_Q._ What cargo had you? + +_A._ Sugar. + +_Q._ By whom was it owned? + +_A._ By J. M. Morales & Co., of Cardenas. + +_Q._ When did you leave the port of Cardenas? + +_A._ 28th May, 1861. + +_Q._ And you were captured by the Savannah on the 3d June? + +_A._ Yes. + +_Q._ State the particulars of the capture by the Savannah of the brig +Joseph from the time she first hove in sight? + +_A._ Mr. Bridges, my mate, called me some time between 6 and 7 o'clock +in the morning, and told me there was a suspicious looking vessel in +sight, and he wished me to look at her. I went on deck and asked him +how long he had seen her, he told me he had seen her ever since +day-light. When I took the spy-glass and looked at her I found that she +was a style of vessel that we do not generally see so far off as that. +I hauled my vessel to E.N.E., and when I found that she was gaining on +me I hauled her E. by N. and so until she ran E. About 8 o'clock she +came near enough for me to see a rather nasty looking thing amid-ships, +so that I mistrusted something; but when I saw the American flag +hanging on her main rigging, on her port side, I felt a little +easier--still, I rather mistrusted something, and kept on till I found +I could not get away at all. When she got within half a gun shot of me +I heaved my vessel to, hoping the other might be an American vessel. + +_Q._ Had she any gun on board? + +_A._ I saw a big gun amid-ships, on a pivot. + +_Q._ How far on was she when you saw the gun? + +_A._ About a mile and a half or two miles; I could see it with the +spy-glass very plainly. + +_Q._ Can you give us the size of the gun? + +_A._ Not exactly; I believe it was an old eighteen pound cannonade. + +_Q._ How was it mounted? + +_A._ On a kind of sliding gutter, which goes on an iron pivot: it was +on a round platform on deck, so that it could be hauled round and +round. + +_Q._ So that it could be pointed in any direction? + +_A._ Yes, in any direction. After she came up alongside of me, Captain +Baker asked me where I was from, and where bound, and ordered me with +my boat and papers on board his vessel. I asked him by what authority +he ordered me on board, and he said, by authority of the Confederate +States. I lowered my boat and went on board with two of my men. When I +got alongside, Captain Baker helped me over the bulwarks, or fence, and +said he was sorry to take my vessel, but he had to retaliate, because +the North had been making war upon them. I told him that that was all +right, but that he ought to do it under his own flag. He then hoisted +his own flag, and ordered a boat's crew to go on board the brig. Some +of them afterwards returned, leaving six on board the brig. + +_Q._ Did Captain Baker take your papers? + +_A._ Yes. + +_Q._ Do you recognize Captain Baker in court? + +_A._ Yes. As soon as they secured my crew they hauled the brig on the +other tack, and stood into the westward, with the privateer in company. +Captain Baker desired me to ask my mate to take the sun, as he had a +chronometer on board, and the privateer had not. At 3 o'clock the +privateer stood back to find out the longitude; while so doing she got +astern of the brig, and about that time the brig Perry hove in sight, +steering southward and eastward. When they saw the brig Perry they +hauled the privateer more on the wind, because she would go a point or +two nearer to the wind than the brig Joseph, so as to cut off the Perry +if they could. They went aloft a good deal with opera glasses, to find +out what she was, and they made her out to be a merchant vessel, as +they thought. Then they saw the Perry's quarter boats, and rather +mistrusted her. They backed ship and stood the same as the Perry. The +Perry then set gallant stern-sail, and kept her more free, because she +got the weather-gauge of the privateer. + +_Q._ At the time of the capture of the Joseph by the Savannah did you +observe all the crew, and in what attitude they were on deck? + +_A._ I saw them working around the gun and hauling at it. Whether it +was loaded or not, I could not say. + +_Q._ Were any of the men armed? + +_A._ None at that time that I know of; but after I went on board I saw +them armed with a kind of cutlass, and old-fashioned boarding-pistols; +and they had muskets with bayonets on. + +_Q._ At the time you left your vessel for the Savannah, in what +attitude were the men on board the Savannah? + +_A._ They were all around on deck. Perhaps half of them were armed. + +_Q._ How was the gun pointed? + +_A._ The gun was pointing toward the brig. + +_Q._ Who were about the gun? + +_A._ Before I went on board I saw that a man was stationed beside the +gun; I could not say which of them it was. + +_Q._ What crew had you? + +_A._ I had four men, a cook, and mate. + +_Q._ Were they armed? + +_A._ No, sir. + +_Q._ Were you armed? + +_A._ I had one old musket that would go off at half-cock. + +_Q._ Was there any gun on board your vessel? + +_A._ None except that. + +_Q._ How many men did you see on the deck of the Savannah? _A._ Some +16, or 18, or 20. + +_Q._ Were you transferred to the Perry from the Savannah? + +_A._ Yes. + +_Q._ And from the Perry to the Minnesota? + +_A._ Yes. + +_Q._ And from the Minnesota to the Harriet Lane? + +_A._ No; to the Savannah. I came to New York in the Savannah. + +_Q._ Then the Savannah sailed to New York before the Harriet Lane did? + +_A._ Yes, sir. + +_Q._ Where were you born? + +_A._ In the Duchy of Holstein, under the flag of Denmark. + +_Q._ You have been naturalized? + +_A._ Yes. + +_Q._ In what Court? + +_A._ In the Court of Common Pleas, New York. + +_Q._ When did you come to this country? + +_A._ In the winter of '47. + +_Q._ Did you hail from here ever since? + +_A._ I hailed from almost all over the States. I never had a home until +lately. I have hailed from here about a year. Before that, wherever my +chest was was my home. + +_Q._ You have resided in the United States ever since you were +naturalized? + +_A._ Yes, sir; I have never been out of it except on voyages. + +_Q._ You have continued to be a citizen of the United States since you +were naturalized? + +_A._ Yes. + +_Q._ And to reside in the United States? + +_A._ Yes. + +_Q._ Do you recollect the names of your crew? + +_A._ No, sir; none except the mate; his name was Bridges. + +_Q._ Is he here? + +_A._ Yes. + +_Q._ When the Joseph was seized by the Savannah, what was done with the +Joseph? + +_A._ She was taken a prize, a crew of six was put on board of her, and +they started with her to westward. + +_Q._ What became of the rest of the men of the Joseph besides yourself? + +_A._ They were carried on with the Joseph; I continued on the Savannah. + +_Q._ When did you first observe, on board the Savannah, that the +American flag was flying? + +_A._ When she was within about a mile and a half off. + +_Q._ At what time, in reference to her distance from you, did she run +up the Confederate flag? + +_A._ The Confederate flag was not run up until after I had asked +Captain Baker by what authority he ordered me to go on board; then the +Confederate flag was run up; that was just before I went on board. + + +_Cross-examined by Mr. Larocque._ + +_Q._ Be good enough to spell your name. + +_A._ Thies N. Meyer. + +_Q._ Was there any flag hoisted on board the Savannah at the time she +was captured by the Perry, or immediately preceding that? + +_A._ They were trying to hoist the Stars and Stripes up, but it got +foul and they could not get it up, and they had to haul it down again. + +_Q._ Then she had no flag flying at the time? + +_A._ No, sir. + +The District Attorney here put in evidence the certified copy of the +record of naturalization of Thies N. Meyer, captain of the Joseph, +dated 28th January, 1856. + + +_Horace W. Bridges_, examined by District Attorney Smith. + +_Q._ You were mate of the Joseph when she was captured by the Savannah? + +_A._ Yes. + +_Q._ Do you know the names of the others of the crew beside yourself +and the captain? + +_A._ I do not know all of them. + +_Q._ State those you know? + +_A._ The cook's name is Nash, and there was another man named Harry +Quincy; that is all I know. + +_Q._ Were they citizens of the United States? + +_A._ I think they were both. + +_Q._ Are you a citizen of the United States? + +_A._ Yes; I was born in the State of Maine. + +_Q._ You have heard the statement of Captain Meyer as to the seizure of +the vessel? + +_A._ Yes. + +_Q._ You were on board the Joseph after she parted company with the +Savannah and sailed for South Carolina? + +_A._ Yes, sir. + +_Q._ Under whose direction did she sail? + +_A._ By the direction of the prize-master. + +_Q._ With a prize crew from the Savannah? + +_A._ Yes. + +_Q._ Do you recollect the name of the prize-master? + +_A._ Evans. + +_Q._ How many men did the crew consist of? + +_A._ Six, with the prize-master. + +_Q._ What did they do with the vessel? + +_A._ Took her into Georgetown. + +_Q._ What was done with you and the others of the crew? + +_A._ We were taken to jail at Georgetown. + +_Q._ What was done with the vessel? + +_A._ I believe she was sold, from what I saw in the papers and what I +was told. + +_Q._ Where were you taken from Georgetown? + +_A._ To Charleston. + +_Q._ What was done with you there? + +_A._ We were put in jail again. + +_Q._ How long were you kept in jail in Georgetown? + +_A._ About 2 months and 20 days. + +_Q._ How long were you kept in jail in Charleston? + +_A._ Three days. + + +_Cross-examined by Mr. Larocque._ + +_Q._ You said that, while you were held as a prisoner at Georgetown, +you saw something in reference to the sale of the Joseph in the papers? + +_A._ Yes. + +_Q._ What was the purport of it? + +_A._ She was advertised for sale. + +_Q._ Under legal process? + +_A._ I do not know about that. I was also told of it by one of the +prize crew that took us in. + +_Q._ You saw in the newspapers an advertisement of the sale? + +_A._ Yes. + +_Q._ Was that of a sale by order of a Court? + +_A._ It was a sale by order of the Sheriff or Marshal. + +_Q._ As a prize? + +Objected to by District Attorney Smith, for two reasons: + +_First_--That it was a mere newspaper account; and, + +_Secondly_--That the newspaper was not produced. + +After argument, the Court decided that there was no foundation laid for +this hearsay evidence. + +_Q._ Did the advertisement state by whose authority the sale was to +take place? + +_A._ I do not recollect anything about that. + +_Q._ Do you recollect the name of a judge as connected with it? + +_A._ No, sir. There was no judge connected with the sale. + +_Q._ Do you recollect the name of Judge Magrath in connection with it? + +_A._ No, sir; I recollect his name in connection with some prize cases, +but not in connection with the sale of the Joseph. + +_Q._ Since your arrival at New York, you have been examined partially +by the District Attorney, and have made a statement to him? + +_A._ Yes. + +_Q._ Did you not state on that examination that while you were in +confinement the vessel was confiscated by Judge Magrath, and sold at +Georgetown? + +_A._ No, sir; I do not think I did. + +_Q._ You were released at Charleston, after a confinement of three +days? + +_A._ Yes. + +_Q._ How did you get out? + +_A._ The Marshal let us out. + +_Q._ While you were in confinement at Georgetown or Charleston was your +examination taken in any proceeding against the bark Joseph, or in +relation to her? + +_A._ Yes, sir. In Georgetown. + +_Q._ By whom was that examination taken? + +_Mr. Evarts_ suggested that there was a certain method of proving a +judicial inquiry. + +_Judge Nelson_: They may prove the fact of the examination. + +_Q._ Before whom were you examined? + +_A._ Before a man who came from Charleston. + +_Q._ Did he take your examination in writing? + +_A._ Yes, sir. + +_Q._ Did you learn what his name was? + +_A._ I think his name was Gilchrist. + +_Q._ Were you sworn, as a witness? + +_A._ Yes. + +_Q._ What proceeding was that, as you were given to understand, and +what was the object of the examination? + +_A._ The object of it was to find out what vessel she was, what was her +nationality, and who owned the cargo belonging to her. + +_Q._ And you gave your testimony on these subjects. + +_A._ Yes. + +_Q._ Was it in written questions put to you? + +_A._ I think so. + +_Q._ And you signed your examination? + +_A._ Yes. + +_Q._ And what came of it afterwards? + +_A._ I do not know. + +_Q._ Was it taken away by Mr. Gilchrist? + +_A._ I expect so. + +_Q._ Was there any other of the crew besides yourself examined? _A._ +Yes; all of them. + +_Q._ On the same subject? + +_A._ I expect so. + +_Q._ Were you present during the examination of them all? + +_A._ No; only at my own. + +_Q._ What newspaper was it that you saw that advertisement in? + +_A._ I think in the Charleston Courier. + +_Q._ Do you recollect its date? + +_A._ No, sir. + +_Q._ What had become of the vessel when you went to Charleston? + +_A._ She was lying in Georgetown. + +_Q._ Do you know in whose possession, or under whose charge, she was? + +_A._ I do not. + +_Q._ Was she in Georgetown, in the hands of the Marshal, to your +knowledge? + +_A._ No, sir; not to my knowledge. I was in prison at the time. + + +_Commodore Silas H. Stringham_, examined by District Attorney Smith. + +_Q._ You are in the United States Navy? + +_A._ I am. + +_Q._ The Minnesota was the flag ship of the Atlantic Blockading +Squadron, off Charleston? + +_A._ Yes, sir. I was the commanding officer. + +_Q._ The Minnesota took the prisoners off the Perry? + +_A._ Yes; on the 5th of June, in the afternoon. + +_Q._ State precisely where the transfer from the Perry to the Minnesota +was made? + +_A._ I discovered, about mid-day, a vessel close in to Charleston. I +stood off to make out what she was. A short time afterwards we +discovered it was the Perry, and were surprised to find her there, as +she had been ordered, some time previously, to Fernandina, Fla. She +hailed us, and informed us she had captured a piratical vessel. The +vessel was half a mile astern. Captain Parrott, of the Perry, came and +made to me a report of what had taken place. I ordered him to send the +prisoners on board, and sent a few men on board the Savannah to take +charge of her during the night. The vessels were then anchored. The +next morning I made arrangements to put a prize crew on board the +Savannah, and send her to New York, and I directed the Captain of the +Joseph to take passage in her. I took the prisoners from the Perry, and +directed the Perry to proceed on her cruise, according to her previous +orders. I then got the Minnesota under weigh, and took the privateer in +tow, and brought her close in to Charleston harbor, within 3 miles, so +as to let them see that their vessel was captured. Some slaves in a +boat told me next day that they had seen and recognized the vessel. + +_Mr. Brady_: The question you were called upon to answer is, as to the +place where the prisoners were transferred from the Perry to the +Minnesota. + +_A._ The transfer was made about 10 miles from Charleston Harbor, out +at sea. It was fully 10 miles off. + +_Q._ State the design of transferring the prisoners to the Minnesota? + +Objected to by Mr. Larocque. + + +ARGUMENT ON THE JURISDICTION. + +The District Attorney, Mr. Smith, stated that he would prove that every +thing done from that time onward was done in pursuance of a design then +conceived of sending the prisoners, to the port of New York. + +_Mr. Larocque_ contended that the naked question of jurisdiction, or +want of jurisdiction, could not be affected by showing that the +prisoners were taken on board a particular vessel, with or without a +particular design. All that affected that question was, the place where +the prisoners were first taken to after they were captured. The only +question their honors could consider was, whether, after their +apprehension, the prisoners were or were not brought within the +District of Virginia, so as to give the Court of Virginia jurisdiction, +before they were brought to New York. The fact that Commodore Stringham +did, or did not, entertain in his own mind a design to bring the +prisoners to New York, was of no relevancy whatever. Their objection +was based on the broad ground, that the statute had fixed the only +District that was to have jurisdiction of these criminals, namely, the +District within which they are first brought. If they were first +brought within the District of Virginia, the design which the Commodore +might have entertained made no manner of difference, and the fact could +not be got rid of by any evidence to show that the design was not to +put themselves in that dilemma. + +_Mr. James T. Brady_ submitted an argument on the same side. He said +that the true test of the correctness of the objection could be +ascertained thus: If a man were arrested anywhere on the high seas, +supposed to be amenable to the Act of 1790, and was brought into a port +of the United States, within a Judicial District of the United States, +could he not demand, under the Act of Congress, to be tried in that +District? Could the commander of the vessel supersede that Act of +Congress, and say he would take the prisoner into the port of New York, +or any other port? What answer would that be to a writ of _habeas +corpus_ sued out by either of these men confined on that ship, within +that Judicial District? If any such rule as that could prevail, the Act +of Congress would become perfectly nugatory and subservient to the will +of the individual who apprehended prisoners on the high seas. If he had +started on a cruise round the world, he could carry them with him, and, +after returning to the United States, could take them into every +District till he came to the one that suited him. Mr. Brady, therefore, +claimed that it was wholly immaterial what might have been the design +of Commodore Stringham; and that the question of jurisdiction was +determined by the physical fact, as to what was the first Judicial +District into which these men were brought after being apprehended on +the high seas. + +_Mr. Evarts_ considered that this was a question rather of regularity +of discussion, than a question to be now absolutely determined by the +Court. He supposed that they were entitled to lay before the Court all +the attendant facts governing the question of, whether the introduction +of these criminals from the point of seizure on the high seas was, +within the legal sense, made into the District of New York, or into +that of Virginia--whether the physical introduction of prisoners, in +the course of a voyage toward the port of New York, into the roads at +Hampton, is, within the meaning of the law, a bringing them into the +District of Virginia. If the substantial qualification of the course of +the voyage from the point of seizure to the place of actual debarcation +was to affect the act, this was the time for the prosecution to produce +that piece of evidence; and he supposed that that important inquiry +should be reserved till the termination of the case, when the proof +would be all before the Court. He suggested that no large ship could +enter the port of New York without physically passing through what +might be called the District of New Jersey; and argued that, in no +sense of the act, and in no just sense, should these prisoners be tried +in New Jersey, because the ship carrying them had passed through her +waters. + +_Mr. Larocque_, for the defendants, contended that the arrest of the +parties as criminals was at the moment when they were taken from on +board the Savannah, placed on board the Perry, and put in irons. The +learned gentleman (Mr. Evarts) had said that it would be impossible to +bring them within the District of New York without first bringing them +within the District of New Jersey; but that objection was met by the +fact that, over the waters of the bay of New York, the States of New +Jersey and New York exercised concurrent jurisdiction, and therefore +they came within the District of New York, to all intents and purposes. +He proposed to refer to the authorities on which the point rested. + +In this case, the place where the arrest was made was the Perry, a +United States cruiser, which, in one sense, was equivalent to a part of +the national soil; and he held that the idea under this statute was, +that their apprehension and confinement from the moment they were +arrested as criminals was complete, without being required to be under +legal process, it being sufficient that they were arrested by the +constituted authorities of the United States. The moment they were +brought within a Judicial District of the United States, that moment +the jurisdiction attached; and no jurisdiction could attach anywhere +else. This was an offence committed on the high seas. All the Districts +of the country could not have concurrent jurisdiction over it; and this +very case was an exemplification of the injustice that would result +from permitting an officer, in times of high political excitement, to +have the privilege, at his mere pleasure or caprice, of selecting the +place of jurisdiction, and the place of trial. Suppose these prisoners, +instead of being landed at the first place where the vessel touched, +could have been taken up the Mississippi river in a boat, and up the +Ohio river in another boat, and landed within the District of Ohio, for +the purpose of being tried there,--would not their honors' sense of +justice and propriety revolt at that? The same injustice would result +in a different degree, and under different circumstances, if, after +taking these prisoners to Virginia and ascertaining the difficulties in +the way of their being tried there, the officer could change their +course and bring them into the port of New York. The prisoners were +entitled to the benefit of being tried in the District where they were +first taken, in preference to any other District; and justice would be +more surely done by holding a strict rule on that subject, by requiring +that the facts should control, and that no mere intention on the part +of the captors should be allowed to govern. + +One of the cases on this subject which had produced a misapprehension +of the question was that of the United States _vs._ Thompson, 1st +Sumner's Reports, which was an indictment for endeavoring to create a +revolt, under the Act of 1790. It was in the Massachusetts District. +The facts in the case were these:--"The vessel arrived at Stonington, +Connecticut, and from thence sailed to New Bedford, Massachusetts, +where the defendant was arrested, and committed for trial. It did not +appear that he had been in confinement before. Judge Story ruled on the +question of jurisdiction. He said: 'The language of the Crimes Act of +1790 (Cap. 36, sec. 8) is, that the trial of crimes committed on the +high seas, or in any place out of the jurisdiction of any particular +State, shall be in the District in which the offender is apprehended, +or into which he shall first be brought. The provision is in the +alternative, and therefore the crime is cognizable in either District. +And there is wisdom in the provision; for otherwise, if a ship should, +by stress of weather, be driven to take shelter temporarily in any port +of the Union, however distant from her home port, the master and all +the crew, as well as the ship, might be detained, and the trial had far +from the port to which she belonged, or to which she was destined. And +if the offender should escape into another District, or voluntarily +depart from that into which he was first brought, he would, upon an +arrest, be necessarily required to be sent back for trial to the +latter. And now there is no particular propriety, as to crimes +committed on the high seas, in assigning one District rather than +another for the place of trial, except what arises from general +convenience; and the present alternative provision is well adapted to +this purpose.'" + +This was noticed, in the first place, in the case of the United States +_vs._ Edward C. Townsend, of which he (Mr. Larocque) held in his hand a +copy of the exemplication of the record. Townsend was charged, in the +District Court of Massachusetts, with piracy, in having been engaged in +the slave trade, in 1858. He was captured on board the brig Echo, by a +United States cruiser. That vessel first made the port of Key West, +putting in there for water; and thence proceeded to Massachusetts, +where the prisoner was landed, taken into custody under a warrant of +the Commissioner, and the matter brought before the Grand Jury, for the +purpose of having an indictment found against him. In that case Judge +Sprague charged the Grand Jury that, under the law, the prisoner could +only be tried in Key West, because that was the first port which the +vessel had made after he had been captured and confined as a prisoner. +Under that instruction the Grand Jury refused to find a bill of +indictment; and thereupon the District Attorney (Mr. Woodbury) applied +to the court for a warrant of removal, to remove him to Key West, for +trial; and also to have the witnesses recognized to appear at Key West, +to testify on the trial. The counsel read a note from Mr. Woodbury on +the subject, showing that Mr. Justice Clifford, of the Supreme Court of +the United States, sat and concurred with Judge Sprague in granting the +warrant of removal. He referred also to another case, decided by Judge +Sprague--the United States _vs._ Bird--volume of Judge Sprague's +Decisions, page 299: "This indictment alleged an offence to have been +committed on the high seas, and that the prisoner was first brought +into the District of Massachusetts. Questions of jurisdiction arose +upon the evidence. The counsel for the prisoner contended that the +offence, if any, was committed on the Mississippi river, and within the +State of Louisiana; and, further, that if committed beyond the limits +of that State, the prisoner was not first brought into this District. +Sprague, J., said that, if an offence be committed within the United +States, it must be tried in the State and District within which it was +committed. Constitution Amendment 6, If the offence be committed +without the limits of the United States, on the high seas, or in a +foreign port, the trial must be had in the District 'where the offender +is apprehended, or into which he may be first brought.'--Stat. 1790, +cap. 9, sec. 8; Stat. 1825, cap. 65, sec. 14. By being brought within a +District, is not meant merely being conveyed thither by the ship on +which the offender may first arrive; but the statute contemplates two +classes of cases: one, in which the offender shall have been +apprehended without the limits of the United States, and brought in +custody into some Judicial District; the other, in which he shall not +have been so apprehended and brought, but shall have been first taken +into legal custody, after his arrival within some District of the +United States, and provides in what District each of these classes +shall be tried. It does not contemplate that the Government shall have +the election in which of two Districts to proceed to trial. It is true +that, in United States _vs._ Thompson, 1 Sumner, 168, Judge Story seems +to think that a prisoner might be tried either in the District where he +is apprehended, or in the District into which he is first brought. But +the objection in that case did not call for any careful consideration +of the meaning of the word 'brought,' as used in the statute; nor does +he discuss the question, whether the accused, having come in his own +ship, satisfies that requisition. In that case the party had not been +apprehended abroad; and the decision was clearly right, as the first +arrest was in the District of Massachusetts. The statute of 1819, cap. +101, sec. 1 (3 U.S. Statutes at Large, 532), for the suppression of the +slave trade, is an example of a case in which an offender may be +apprehended without the limits of the United States, and sent to the +United States for trial. Ex parte Bollman _vs._ Swartwout, 4 Cranch, +136." + +Their honors would observe that in both the cases cited, correcting the +manifest misapprehension of Judge Story, the point was distinctly held +that the question of jurisdiction was controlled exclusively by the +fact as to what District the prisoner was first brought into after his +arrest on the high seas, out of the United States, for a crime +committed on the high seas. + + +Judge Nelson stated that, as it was now late (half-past 5 P. M.), the +question might go over till morning. + +The counsel on each side assenting, the Jury were allowed to separate, +with a caution from the Court against conversing in respect to the +case. + +Adjourned to Thursday, at 11 A.M. + + + + +SECOND DAY. + + +_Thursday, Oct. 24, 1861._ + +The Court met at 11 o'clock A.M. + +_Judge Nelson_, in deciding the question raised yesterday, said: + +So far as regards the question heretofore under consideration of Judge +Sprague, we do not think that at present involved in the case. We will +confine ourselves to the decision of the admissibility of the question +as it was put by the District Attorney and objected to, as respects the +purpose with which the Minnesota, with the prisoners, was sent to +Hampton Roads. We think that the fact of their being sent by the +commanding officer of that place, with the prisoners, to Hampton Roads, +is material and necessary; and, in order to appreciate fully the fact +itself, the purpose is a part of the _res gestæ_ that characterizes the +fact. What effect it may have upon the more general question, involving +the jurisdiction of the Court, is not material or necessary now to +consider. We think the question is proper. + +Counsel for defendants took exception to the ruling of the Court. + + +_Commodore Stringham_ recalled. Direct examination resumed by Mr. +Smith. + +_Q._ What was your object in transferring the prisoners from the Perry +to the Minnesota? + +_A._ Sending them to a Northern port. The port of New York was the port +I had in my mind. To send them by the first ship from the station, as +soon as possible, to a Northern port, for trial. I could not send them +to a Southern port for trial. The only way I could do so would be by +guns. I could get no landing in those places otherwise; and I could get +no judge or jury to give them a trial. + +_Mr. Larocque_ asked if, conceding the propriety of the inquiry, the +statement of the witness was competent, viz.: that he had a port in his +mind. + +_The Court_: No; the question was not put in the shape I supposed. The +question should have been--for what purpose or object did he send the +prisoners in the Minnesota to Hampton Roads? That is the point in the +case--the intent with which the vessel was sent to Hampton Roads? + +_A._ I sent them there with the intention of sending them to a Northern +port, for trial. The Harriet Lane being the first vessel that left, +after my arrival there, they were sent in the Harriet Lane to the +Northern port of New York. + +_Q._ Why did you not take them in the Minnesota directly to New York, +instead of taking them to Hampton Roads? + +_A._ My station was at Hampton Roads, and I went there to arrange the +squadron that might be there, and to get a supply of fuel for the ship. +I do not think we had enough to go to New York, if we wished to go +there. I had supplied vessels on the coast below, and had exhausted +pretty nearly all the coal from the Minnesota when we arrived at +Hampton Roads. + +_Q._ What directions did you give to the officers of the Harriet Lane? + +_A._ I gave no directions to the officers of the Harriet Lane. I gave +directions to the commander of the Minnesota. I left on the day +previous, I think, to their being transferred to the Harriet +Lane,--giving directions that, as soon as she came down from Newport +News, to send her to New York, with the prisoners. I had been called to +Washington, by the Secretary of the Navy, the day before she sailed. + +_Q._ Are you aware of any facts which rendered it impossible to land +the prisoners in the Virginia District, or on the Virginia shore? + +_A._ It was impossible to land without force of arms, and taking +possession of any port. We _could_ land them there, but not for trial, +certainly. The Harriet Lane had been fired into but a short time +previous; and that was one cause of sending her to New York. + +_Q._ Fired into from the Virginia shore? + +_A._ Yes, sir; from Field Point; I should judge, about 8 miles from +Norfolk port, on the southern shore, nearly opposite Newport News. I +was not there, but it was reported to me. She was fired into, and she +was ordered to New York to change her armament. + +_Q._ Was that fort in the way, proceeding to Norfolk? + +_A._ Not on the direct way to Hampton Roads, but a little point on the +left. + +_Q._ Would a vessel, going the usual way to Norfolk, be in range of the +guns that were fired at the Harriet Lane? + +_A._ Not of these; but she would be in the range of four or five forts +that it would be necessary to pass in order to land the prisoners at +Norfolk. + +_Q._ What was the nearest port to where the Minnesota went with the +prisoners? + +_A._ The nearest port of entry was Norfolk. Hampton Roads was a little +higher up. We were not anchored exactly at the Roads, but off Old +Point, which is not considered Hampton Roads. + +[_Map produced._] I have marked the position of the Minnesota on this +map, in blue ink. [Exhibits the position to the Court.] + +_Q._ State the position of the Minnesota? + +_A._ That is as near as I can put it--between the Rip Raps and Fortress +Monroe--a little outside of the Rip Raps. + +_Q._ In what jurisdiction is the Fort? + +_A._ In the United States. + +(Objected to, as matter of law.) + +_Q._ At what distance were you from Fortress Monroe? + +_A._ About three-quarters of a mile, and nearly the same from the Rip +Raps. + +_Q._ What distance from Norfolk? + +_A._ I think 14 miles, as near as I can judge; 12 or 14. + +_Q._ Had you any instructions from the Government, in respect to any +prisoners that might be arrested on the high seas, as to the place they +were to be taken to? + +_A._ Not previous to my arriving at Hampton Roads. After that, I had. +Those instructions were in writing. + +_Q._ You had no particular or general instructions previous to that? + +_A._ No, sir; it was discretionary with me, previous to that, where to +send the prisoners I had. + +_Q._ When vessels are sent from one place to another, state whether it +is not frequently the case that they take shelter in roadsteads? + +(Objected to. Excluded.) + +_Q._ Where did your duties, as flag-officer of the squadron, require +you to be with your ship, the Minnesota? + +(Objected to. Excluded.) + +_Q._ Where do Hampton Roads commence on this map, and where end? + +_A._ In my experience, I have always considered it higher up than where +we were anchored. This is anchoring off Fortress Monroe, when anchoring +there. When they go a little higher up, they go to Hampton Roads; and, +before the war, small vessels anchored up in Newport News, in a gale of +wind. + +_Q._ Where did the Minnesota anchor, in respect to Hampton Roads? + +_A._ We anchored outside, sir. I can only say this from the pilot. When +commanding the Ohio, he asked me whether I wished to anchor inside the +Roads. Baltimore pilots have permission to go into Hampton Roads, and +no farther. That is considered as neutral ground for all vessels. + +_By the Court_: + +_Q._ What is the width of the entrance to the Hampton Roads? + +_A._ I should judge about 3-1/2 miles, or 3-1/4, from Old Point over to +Sewall's Point. I have not measured it accurately. It is from 3 to 4 +miles. + +_By Mr. Smith_: + +_Q._ Was the Minnesota brought inside or outside of a line drawn from +Old Point to the Rip Raps? + +_A._ A little outside of the line, sir. + +_By a Juror_: + +_Q._ Would a person be subject to any port-charges where the Minnesota +lay? + +_A._ No, sir. + +Defendants' counsel objected to the question and answer. + +_The Court_: + +_Q._ What do you mean by port dues? + +_A._ I mean they do not have to enter into the custom-house to pay +port-charges. It is not a port of entry, that compels them to carry +their papers. The only port-charges I know of are the pilot-charges, in +and out. + +(The Court ruled it out as immaterial.) + + +_Cross-examined by Mr. Brady._ + +_Q._ I want, for the purpose of preventing any misapprehension, to ask +if there is any line that you know of, which you could draw upon that +map, distinguishing the place at which Hampton Roads begins? + +_A._ Nothing only among sea-faring men;--just as the lower bay of New +York, which is considered to be down below the Southwest Spit. When +anchored between this and that, it is called off a particular place, as +Coney Island, &c. So, there, after you pass up from Fortress Monroe, it +is called Hampton Roads. + +_Q._ Is there any specific point you can draw a line from on the map +that distinctly indicates where Hampton Roads begin? _A._ I cannot, +sir. + +_Q._ Designate where the Harriet Lane was? + +_A._ I cannot say, sir. She was at Newport News when I left, and came +down the next day, I believe, and took the prisoners on board and +proceeded to New York. + +_Q._ The Minnesota was anchored? + +_A._ Yes, sir, but not moored; with a single anchor. + +_Q._ How much cable was out? + +_A._ From 65 to 70 fathoms, I think. I generally order 65 fathoms; but +the captain gave her 5 fathoms more. + +_Q._ Would she swing far enough to affect the question whether she was +in or outside of Hampton Roads, as you understood it? + +_A._ No, sir. + +_Q._ Had you often been there before? + +_A._ I had, sir, often. I was there 51 years ago. I started there. + +_Q._ Did you ever have occasion, for any practical purposes, to locate +where Hampton Roads began? + +_A._ Yes, sir; several times I have anchored there with ships under my +command, and the pilots have said, "Will you go up into the Roads?" and +I said, "Yes;" and we never anchored within two or three miles of where +we lay with the Minnesota. + +_Q._ But it was not your object to get at any particular line which +separated Hampton Roads? + +_A._ No; we considered it a better anchorage. The only importance was a +better anchorage. + +_Q._ You had no instructions of any kind in regard to the prisoners +before you left for Washington? + +_A._ I would say I had not, before I arrived at Hampton Roads, or at +Old Point. + +_Q._ Did you receive any between the time of your arrival and your +departure for Washington? + +_A._ I cannot say, but I think not. + +_Q._ The only instructions you gave were that, when the Harriet Lane +came up, the prisoners should be removed, and sent to New York? + +_A._ I gave orders that they should be sent to New York and delivered +to the Marshal. + +_Q._ There would be no difficulty to transfer prisoners to Fortress +Monroe? + +_A._ No, sir, no difficulty. + +_Q._ Could they not have been taken to Hampton? + +_A._ I think not. Our troops had abandoned Hampton and moved in, I +think. There was nothing there to land at Hampton. We may have had +possession at that time. + +_Q._ Do you know of any obstacle whatever to these men having been +taken ashore at Old Point Comfort and carried to Hampton? + +_A._ I went up twice to Washington, with Colonel Baker, when he +abandoned Hampton; but I think at the time the prisoners were on board +we had the occupation of Hampton by our troops. My impression is, we +occupied it partly with our troops at that time. I went to Washington +at another time, when the troops had abandoned Hampton, and Colonel +Baker took his soldiers up in the same boat. + +_Q._ A college has been described on shore, and the locality described. +Was it not occupied as an hospital? + +_A._ Yes, sir, at the time the Minnesota arrived. It is not in Hampton. + +_Q._ When the Minnesota arrived with the prisoners was not that +building in possession of our Government? + +_A._ It was, sir, I believe. I was not in it. + +_By Mr. Evarts_: Is not the hospital at Old Point? + +_A._ Near Old Point. + +_By Mr. Brady_: Designate on the chart where it is? + +_A._ I have done so,--the square mark, on the shore, in the rear of the +fort, on the Virginia shore. + +_By the Court_: How much of a town is Hampton? + +_A._ There is none of it left now. I suppose it was a town of 4,000 or +5,000 inhabitants. + +_Q._ Was it not formerly a port of entry? + +_A._ No, sir, I believe not; not that I know of. That was 4 or 5 miles +off from the vessel. + +_By Mr. Brady_: How far was Hampton from Fortress Monroe? + +_A._ I should judge 3 miles. + +_Q._ I ask again, before you left the Minnesota, after the arrival of +the prisoners, had you any instructions from Washington in regard to +these prisoners? + +_A._ I cannot bring to my mind whether I had any or not. I had +instructions, subsequent to my arrival, about all prisoners, and that +was the reason why I came here. There was some question as to why I +came with 700 prisoners; but I had instructions to bring all prisoners +taken, and turn them over to Colonel Burke, of New York. + +_Q._ After you arrived at Washington did you receive any instructions +in regard to these prisoners? + +_A._ I do not know that I did. I had some discussion in Washington. + +_Q._ Did you communicate from Washington, in any way, to Fortress +Monroe, or the Minnesota, in regard to the prisoners? _A._ No, sir. + +_Q._ They went forward under the directions you gave before leaving to +go to Washington? + +_A._ They did, sir; I gave the instructions. I did not know whether the +Harriet Lane would be ready. She was waiting until the vessel arrived +to relieve her from the station. + +_Q._ Was General Butler at Fortress Monroe at the time of the arrival +of the prisoners? + +_A._ He was, sir. + +_Q._ Did you confer with him about it? + +_A._ No, sir. + +_Q._ Neither then nor at Washington? + +_A._ No, sir. + +_Q._ Was there any conversation between you and him in regard to that? + +_A._ I do not think there was until after my return and the prisoners +had gone to New York. + + +_Re-direct._ + +_Q._ How large a space is occupied by the hospital to which you have +referred? + +_A._ I cannot give the number of feet, but I think about 150 feet +square. I never was in it but once, when I passed in for a moment, and +right out of the hall. + + +_David C. Constable_ called by the prosecution and sworn. + +Examined by Mr. Smith. + +_Q._ You are a Lieutenant in the United States Navy? + +_A._ Not now; I am First Lieutenant of the _Harriet Lane_. We were then +serving under the Navy; I am now in a revenue cutter. + +_Q._ Were you on board the Harriet Lane when she received the prisoners +from the Minnesota? + +_A._ I was, sir. + +_Q._ Who did you receive your orders from on the subject? + +_A._ Captain Van Brunt, of the Minnesota. + +_Q._ Was that a verbal order? + +_A._ No; a written one, sir. + +_Q._ Was it an order to bring the prisoners to New York? + +_A._ To proceed with the prisoners to New York, and deliver them to the +civil authorities, I think. + +_Q._ Where was the Harriet Lane, in respect to the Rip Raps and fort at +Old Point Comfort, when the prisoners were taken on board from the +Minnesota? + +_A._ We were about half a mile, I should judge, from the Minnesota; a +little nearer in shore. + +_Q._ Where had the Harriet Lane come from? + +_A._ From Newport News. + +_Q._ Did she, or not, come from Newport News in pursuance of the object +to go to New York? + +_A._ Yes, sir; although at the time we had received no orders in regard +to any prisoners. We were coming on for a change of armament and for +repairs. + +_Q._ The Harriet Lane had been fired into? + +_A._ She had, sir. + +_Q._ Where was she when fired into? + +(Objected to. Offered to show the impossibility of landing. Ruled out +as immaterial.) + +_Q._ How was the transfer made from the Minnesota to the Harriet Lane? + +_A._ By boats. + +_Q._ Show on this map where the Harriet Lane was when the transfer was +made of the prisoners from the Minnesota, and also where the Minnesota +lay? + +[Witness marked the place on map.] + +_Q._ State the relative position of the vessels as you have marked it? + +_A._ I should judge we were about a mile from Old Point, in about +eleven fathoms of water, and probably about a mile from the Rip Raps. I +do not remember exactly. + +_Q._ The Harriet Lane was about half a mile further up? + +_A._ Yes, a little west of the Minnesota, but farther in shore. + +_Q._ What is your understanding in respect to where Hampton Roads +commence, in reference to the position of these vessels? + +_A._ I had always supposed it was inside of Old Point and the Rip Raps, +after passing through them,--taking Old Point as the Northern +extremity, and out to Sewall's Point. + +_Q._ How in respect to where the Harriet Lane lay? + +_A._ I consider she was off Old Point, and not, properly speaking, in +Hampton Roads. + +_Q._ The Minnesota was still further out? + +_A._ Yes, sir, a very little. + +_Q._ You brought the prisoners to New York in the Harriet Lane and +delivered them to the United States Marshal at New York? + +_A._ Yes, sir. + +_Q._ You delivered them from your vessel to the United States Marshal? + +_A._ Yes, sir; the United States Marshal came alongside our ship, while +in the Navy Yard, in a tug, and they were delivered to him. + +_Q._ Do you remember the day they arrived at New York? + +_A._ On the 25th of June, in the afternoon. + +_Q._ In what service was the Harriet Lane? + +_A._ In the naval service of the United States. + + +_Cross-examined by Mr. Brady._ + +_Q._ As has already been stated, there was no difficulty about landing +the prisoners from the Minnesota at Fortress Monroe, or at the College +Hospital, or at Hampton. Was there any difficulty in taking them to +Newport News? + +_A._ No, sir; I suppose they might have been taken to Newport News. + +_Q._ Who was in possession of Newport News at that time? + +_A._ The United States troops, sir. Our vessel had been stationed there +for six weeks preceding. + + +_Re-direct._ + +_Q._ What occupation had the United States of Fortress Monroe, and of +this hospital building, and of Newport News? Was it other than a +military possession? + +(Objected to by defendants' counsel.) + +_The Court:_ It is not relevant. + +_Mr. Evarts:_ We know there was no physical difficulty in landing them; +we want to know whether there was any other. + +_The Court:_ We need not go into any other. Practically, they could +have been landed there. That is all about it. As to being a military +fort, and under military authority, that is not of consequence. + +_Mr. Evarts:_ As to military forts receiving prisoners at all times? + +_The Court:_ We do not care about that. It is not important to go into +that. We know it is a military fort, altogether under military +officers. Civil justice is not administered there, I take it. + + +_Daniel T. Tompkins_ called by the Government; sworn. + +Examined by Mr. Smith. + +_Q._ You were Second Lieutenant on the Harriet Lane? + +_A._ I was, sir. + +_Q._ You were present at the transfer of these prisoners from the +Minnesota to the Harriet Lane? + +_A._ Yes, sir. + +_Q._ You were with them to New York? + +_A._ Yes; but I was ashore when they were delivered here. + +_Q._ You accompanied the prisoners on the voyage? + +_A._ Yes, sir. + +_Q._ Where did the Harriet Lane lie at Hampton Roads, in relation to +the Fort and Rip Raps? + +_A._ I should think we were about a mile from the Rip Raps, and +probably three-fourths of a mile from the Fort. + +_Q._ At the time of the transhipment? + +_A._ Yes, sir. + +_Q._ The transhipment was made in boats? + +_A._ Yes, sir,--in a boat from the Minnesota. I believe all came in one +boat. + +_Q._ Where do Hampton Roads commence, as you understand, in respect to +where the Harriet Lane was? + +_A._ I think they commence astern of where we lay; a little to the +westward, as we were lying off of Old Point. + +_Q._ Look upon that map and indicate, by a pencil, where the vessels +lay, without any reference to the marks already made there--in the +first place the Minnesota and then the Harriet Lane--when the +transhipment was made, taken in relation to the Fort and the Rip Raps? + +Witness marks the positions, and adds: We were about half a mile from +the Minnesota, I should say. + + +_J. Buchanan Henry_ called by the prosecution; sworn. Examined by Mr. +Smith. + +_Q._ In June and July last you were United States Commissioner? _A._ +From the 15th of June. + +_Q._ [Producing warrant.] Is that your signature? + +_A._ It is. + +Counsel for prosecution reads warrant, issued by J. Buchanan Henry, in +the name of the President, addressed to the Marshal, dated June 26, +1861. + +(Objected to as irrelevant. Objection overruled.) + +_Q._ This warrant was issued by you? + +_A._ It was, sir. + +_Q._ On an affidavit filed with you? + +_A._ Yes, sir. + + +_Cross-examined._ + +_Q._ Against all these prisoners? + +_A._ Yes, sir. + +Defendants take exception to the admission of the testimony. + +The U.S. District Attorney was about to call the Marshal, to prove that +he arrested the prisoners. + +Defendants' counsel admitted the prisoners were arrested, under this +warrant, by the Marshal, in this district. + +_Mr. Brady:_ Perhaps you can state, Mr. Smith, where they were when +arrested under that warrant? + +_Mr. Smith:_ They had been brought to the Marshal's office, I think. + +_Mr. Brady:_ They were in the Marshal's office when arrested? + +_Mr. Smith:_ They were brought to the Marshal's office before the writ +was served. + + +_Ethan Allen_ called by the prosecution; sworn. Examined by Mr. Smith. + +_Q._ You are Assistant District Attorney? + +_A._ I am, sir. + +_Q._ And were in June last? + +_A._ Yes, sir. + +_Q._ Do you remember, at my request, calling upon the prisoners now in +Court? + +_A._ I do, sir. + +_Q._ Did you call upon every one? + +_A._ I called upon all the prisoners at the Tombs. + +_Q._ Upon each one separately? + +_A._ I called upon them in the different cells. They were confined two +by two. + +_Q._ Had you previously attended, as Assistant District Attorney, upon +the examination of these prisoners? + +_A._ I had, upon one or two occasions. + +_Q._ Were the prisoners all present on those occasions? + +_A._ They were present once, I distinctly recollect. + +_Q._ Did you then talk with them? + +_A._ No, sir; I addressed myself to the Commissioner in adjourning the +case. + +_Q._ Was there any examination proceeded with? + +_A._ There was no examination. + +_Q._ State what you said to the prisoners, the object of your calling, +and what their reply was. I ask, first, did you make a memorandum at +the time? + +_A._ I did, sir. + +_Q._ Was it made at the very time you asked the questions? + +_A._ I took paper and pencil in hand, and asked the questions which you +requested, and took a note of it. + +_Q._ What was the object of your calling upon them? + +_A._ To ask them where they were born; and, if born elsewhere, were +they naturalized. + +_Q._ Did you state for what purpose you made this inquiry? + +_A._ I do not recollect that I made any statement to the prisoners for +what purpose I wanted the information. I told them I wanted it. They +seemed to recognize me as Assistant District Attorney; and as to those +that did not recognize me, I told them I was Assistant District +Attorney. The memorandum produced is the one I made at the time. + +_Q._ Referring to that, give the statements that were made by each of +the prisoners in reply to your questions? + +_A._ Henry Cashman Howard said he was born in Beaufort, North Carolina. + +Charles Sydney Passalaigue said he was born in Charleston, South +Carolina. + +Joseph Cruse del Carno said he was born in Manilla, in the Chinese +Seas, and was never naturalized. + +Thomas Harrison Baker said he was born in Philadelphia. + +John Harleston said he was born in Anderson District, or County, in +South Carolina. + +Patrick Daly was born in Belfast, Ireland. Has never been naturalized. + +William C. Clarke born in Hamburg, Germany. Never naturalized. + +Henry Oman born in Canton. Never was naturalized. + +Martin Galvin born in the County Clare, Ireland. Not naturalized. + +Richard Palmer born in Edinburgh. Never naturalized. + +Alexander C. Coid was born in Galloway, Scotland. Was naturalized in +Charleston,--about 1854 or 1855, he thinks. + +John Murphy born in Ireland. Never naturalized. + +_Mr. Brady_: We will insist, hereafter, that this admission of +naturalization cannot be used at all. + +_Mr. Evarts_: We will concede that. + +_By Mr. Smith_: Do you remember asking the prisoners for their full +names? + +_A._ I asked them particularly for their full names. + +_Q._ Are they correctly stated in the indictment? + +_A._ They are stated from the memorandum which I then took; that is my +only means of recollection. + +_Mr. Smith_: The Assistant District Attorney desires me to state that +he did not know that he was to be called as a witness in the case; that +if he had had any idea that he would be called as a witness, he would +not have made the visit. Yesterday, for the first time, he ascertained +that he would be called. I would also state that I did not send him +there for the purpose of making him a witness, but with the object of +obtaining particulars which might render the allegations in the +indictment entirely accurate in respect to every detail. + +_Mr. Smith_ added: I now close the case for the prosecution. + + + + +OPENING FOR THE DEFENCE. + + +Mr. LAROCQUE opened the case for the defence. He said: + +_May it please the Court, and you, Gentlemen of the Jury_: + +We have now reached that stage in this interesting trial where the duty +has been assigned to me, by my associates in this defence, of +presenting to you the state of facts and the rules of law on which we +expect to ask from you an acquittal of these prisoners. I could wish +that it had been assigned to some one more able to present it to you +than myself, for I feel the weight of this case pressing upon me, from +various considerations connected with it, in a manner almost +overpowering. I think that we have proceeded far enough in this case +for you to have perceived that it is one of the most interesting trials +that ever took place on the continent of America, if not in the +civilized world. For the first time, certainly in this controversy, +twelve men are put on trial for their lives, before twelve other men, +as pirates and--as has been well expressed to you by the learned +District Attorney who opened this case on behalf of the prosecution--as +enemies of the human race. If you have had time, in the exciting +progress of this trial, to reflect in your own minds as to what the +import of these words was, it must certainly, ere this, have occurred +to you that, in regard to these prisoners, whatever may be the legal +consequences of the acts charged upon them, it was a misapplication of +the term. Look for a moment, gentlemen, first, at the position of +things in our country under which this trial takes place. All these +prisoners come before you from a far distant section of the country. +Some of them were not born there--some of them were. At the time when +these events occurred all of the prisoners lived there, and were +identified with that country, with its welfare, with its Government, +whatever it was. They had there their homes, their families, everything +which attaches a man to the spot in which he lives. Those of them who +had not been born in America had sought it as an asylum. They had come +from distant regions of the earth--some from the Chinese Sea and the +remote East--because they had been taught there that America was the +freest land on the globe. They had lived there for years. Suddenly they +had seen the country convulsed from one end to the other. They had seen +hostile armies arrayed against each other, the combatants being for the +most part divided by geographical lines as to the place where they were +born or as to the State in which they lived. This very morning a +newspaper in the city of New York estimates the numbers thus arrayed in +hostility against each other at no less than seven hundred thousand +souls. These prisoners have the misfortune, as I say, of being placed +on their trial far from their homes. They have been now in confinement +and under arrest on this charge for some four or five months. During +that whole period they have had no opportunity whatever of +communicating with their friends or relatives. Intercourse has been cut +off. They have had no opportunity of procuring means to meet their +necessary expenses, or even to fee counsel in their defence. Without +the solace of the company of their families, immured in a prison among +those who, unfortunately, from friends and fellow-countrymen have +become enemies, they are now placed in this Court on trial for their +lives. You will certainly reflect, gentlemen, that it was not for a +case of this kind that any statute punishing the crime of piracy was +ever intended to be enacted. You will reflect, when you come to +consider this case, after the evidence shall have been laid before you, +and after you have received instructions from the Court, that however +by technical construction our ingenious friends on the other side may +endeavor to force on your minds the conviction that this was a case +intended to be provided for by statutes passed in the year 1790, and by +statutes passed in the year 1820,--it is a monstrous stretch of the +provisions of those statutes to ask for a conviction in a case of this +kind. And I may be permitted, with very great respect for the +constitutional authorities of our Government, to which we all owe our +allegiance and respect, to wonder that this case has been brought for +trial before you. I cannot help, under the circumstances surrounding +these trials--for while you are sitting here, another jury is passing +on a similar case in the neighboring City of Philadelphia--attributing +the determination of the Government to submit these cases to the +judicial tribunals at this time to a desire to satisfy the mind of the +community itself, which has been naturally excited on this subject, +that these men are not pirates within the meaning of the law. And I do +most sincerely hope, for the credit of our Government, that that is the +object which it has in view, and that the heart of every officer of the +Government, at Washington or elsewhere, will be most rejoiced at the +verdict of acquittal, which, I trust, on every consideration, you will +pronounce. We all know that in a time of civil commotion and civil war +like this, the minds of the people, particularly at the incipient +stages of the controversy, become terribly excited and aroused. We +could not listen, at the outbreak of these commotions, to any other +name but that of pirate or traitor, as connected with those arrayed +against our Government and countrymen. One of the misfortunes of a time +of popular excitement like this is, that it pervades not only the minds +of the community, but reaches the public halls of legislation, and the +executive and administrative departments of the Government. And it is +no disrespect, even to the Chief Magistrate of the country to say, that +he might, in a time like this, put forward proclamations and announce a +determination to do what his more sober judgment would tell him it was +imprudent to announce his intention of doing. You will all probably +recollect that when this outbreak occurred the Government at Washington +announced the determination of treating those who might be captured on +board of privateers fitted out in the Confederate States as pirates. +Such an announcement once made, it is difficult to depart from. And +therefore I do most sincerely hope that the administration in +Washington, as my heart tells me must be the case, are looking at these +trials in progress here and in Philadelphia, with an earnest desire +that the voice of the Juries shall be the voice of acquittal,--thus +disembarrassing the Government of the trammels of a proclamation which +it were better, perhaps, had never been issued. This civil war had at +that time reached no such proportions as those which it has since +acquired. It was then a mere beginning of a revolution. The cry was, +that Washington was in danger. There were no hostile forces arrayed on +the opposite sides of the Potomac. There was a fear that they would +soon make their appearance; and there was also an earnest hope--which I +lament most deeply has not been realized--that that outbreak would be +stopped in its commencement, and that no armies approaching to the +proportions of those which have since been in hostile conflict would be +arrayed on the field of battle. Look at the state of things now. +Scarcely a day elapses on which battles are not taking place, from one +end to the other of this broad continent--in 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 making out this case, are too great to be lost sight of; and +the Jury must certainly have seen how utterly preposterous it is to +characterize as piracy acts of this kind. Who ever heard of a pirate +who, having seized a prize, put a prize-crew on board of her, sent her +home to his native port--a great and civilized city, in a great and +populous country--to be submitted to the adjudication of the Courts in +that city, and to be disposed of as the authorities of his home should +direct? I beg to call your attention to the facts that have been brought +out on the testimony for the prosecution itself--that, in regard to this +vessel, instead of her crew having been murdered--instead of helpless +women and children having been sent to a watery grave, after having +suffered, perhaps, still greater indignities--that not a hair of the +head of any one was touched,--that not a man suffered a wound or an +indignity of any kind--that they were sent, as prisoners of war, into +the neighboring port of Georgetown, where, in due time, by decree of a +court, the vessel was condemned and sold--and the prisoners, having been +kept in confinement some time as prisoners of war, were released, and +have been enabled to come into Court and testify before you. + +Comparing this case, gentlemen, with the cases which are constantly +occurring in the land, what earthly motive can you conceive, on the +part of the Government, for having made the distinction between these +poor prisoners, taken on board of this paltry little vessel of 40 or 50 +tons, and the great bands in arms in all parts of the country? Look +what occurred a little while ago in Western Virginia, where a large +force of men, in open arms against the Government, who had been +carrying ravage and destruction through that populous country, and over +all parts of it, were captured as prisoners. Were any of those men sent +before a court, to be tried for their lives? Did not the commanding +officer of the forces there, acting under the authorization, and with +the approval, of the Government, release every one of those men, on his +parole of honor not to bear arms any more against the country? And what +earthly motive can be conceived for making the distinction which is +attempted to be made between these men and those? Shall it be said, to +the disgrace of our country--for it would be a disgrace if it could be +justly said--that we had not courage and confidence enough in our own +resources to believe that we would be able to cope with these +adversaries in the field in fair and equal warfare? Gentlemen, I think +it would be a cowardly act, which would redound to the lasting disgrace +of the country, to have it said, one century or two centuries hence, +that, in this great time of our country's troubles and trials, eighteen +States of this Confederacy, infinitely the most populous, infinitely +the most wealthy, abounding in resources, with a powerful army and +navy, were obliged to resort to the halter or the ax for the purpose of +intimidating those who were in arms against them. I do not think that +any one of this Jury would be willing to have such a thing said. + +Now, gentlemen, with regard to the conduct of these men, an impression +has been attempted to be created on your minds by one circumstance, and +that is, that at the time of the capture of the Joseph by the Savannah +the American flag was hoisted on board the Savannah, and that the +Joseph came down to her, and permitted her to approach from the false +security and confidence occasioned by that circumstance. The time has +now arrived to dispel the illusion from your mind that there was +anything reprehensible in that, or anything in it not warranted by the +strictest rules of honor and of naval warfare. Why, gentlemen, I could +not give you a more complete parallel on that subject than one which +occurred at the time of the chase of the Constitution by a British +fleet of men-of-war, and the escape of the Constitution from which +fleet at that time reflected such lasting honor on our country and her +naval history. You will all recollect that the Constitution, near the +coast of our country, fell in with and was chased for several days by a +large British fleet. Let me read to you one short sentence, showing +what occurred at that time. I read from Cooper's Naval History: + + "The scene, on the morning of this day, was very beautiful, and of + great interest to the lovers of nautical exhibitions. The weather + was mild and lovely, the sea smooth as a pond, and there was quite + wind enough to remove the necessity of any of the extraordinary + means of getting ahead that had been so freely used during the + previous eight and forty hours. All the English vessels had got on + the same tack with the Constitution again, and the five frigates + were clouds of canvas, from their trucks to the water. Including + the American ship, eleven sail were in sight; and shortly after + a twelfth appeared to windward; that was soon ascertained to be + an American merchantman. But the enemy were too intent on the + Constitution to regard anything else, and though it would have been + easy to capture the ships to leeward, no attention appears to have + been paid to them. _With a view, however, to deceive the ship to + windward, they hoisted American colors, when the Constitution set + an English ensign, by way of warning the stranger to keep aloof._" + +After that, I hope we will hear no more about the Savannah having +hoisted the American flag for the purpose of inducing the Joseph to +approach her. + +It now becomes my duty, gentlemen, to call your attention, very +briefly, to the grounds on which the prosecution rests this case. There +are two grounds, and I will notice them in their order. The first is, +that this was robbery. Well, I have had occasion, already, in what I +have said to you, to call your attention to some of the points that +distinguish this case from robbery. I say it was not robbery, because, +in the first place, one of the requisites of robbery on the sea, which +is called piracy, is, that it shall be done with a piratical and +felonious intent. The intent is what gives character to the crime; and +the point that we shall make on that part of the case is this, that if +these men, in the capture of the Joseph (leaving out of view for the +present the circumstance of their having acted under a commission from +the Confederate States), acted under the belief that they had a right +to take her, there was not the piratical and felonious intent, and the +crime of robbery was not committed. I will very briefly call your +attention to a few authorities on that subject. One of the most +standard English works, and the most universally referred to on this +subject of robberies, is _Hale's Pleas of the Crown_. Hale says: + + "As it is _cepit_ and _asportavit_ so it must be _felonice_ or + _animo furandi_, otherwise it is not felony, for it is the mind + that makes the taking of another's goods to be a felony, or a bare + trespass only; but because the intention and mind are secret, they + must be judged by the circumstances of the fact, and though these + circumstances are various and may sometimes deceive, yet regularly + and ordinarily these circumstances following direct in this case. + + "If _A_, thinking he hath a title to the horse of _B_, seizeth it + as his own, or supposing that _B_ holds of him, distrains the horse + of _B_ without cause, this regularly makes it no felony, but a + trespass, because there is a pretence of title; but yet this may be + but a trick to color a felony, and the ordinary discovery of a + felonious intent is, if the party does it secretly, or being + charged with the goods, denies it. * * * * * + + "But in cases of larceny, the variety of circumstances is so great, + and the complications thereof so weighty, that it is impossible to + prescribe all the circumstances evidencing a felonious intent; on + the contrary, the same must be left to the due and attentive + consideration of the Judge and Jury, wherein the best rule is, _in + dubiis_, rather to incline to acquittal than conviction." + +The next authority on that subject to which I will refer you is 2_d +East's Pleas of the Crown, p._ 649. The passage is: + + "And here it may be proper to remark, that in any case, if there be + _any fair pretence_ of property or _right_ in the prisoner, _or if + it be brought into doubt at all, the court will direct an + acquittal; for it is not fit that such disputes should be settled + in a manner to bring men's lives into jeopardy_. + + "The owner of ground takes a horse _damage feasant_, or a lord + seizes it as an estray, though perhaps without title; yet these + circumstances explain the intent, and show that it was not + felonious, unless some act be done which manifests the contrary: as + giving the horse new marks to disguise him, or altering the old + ones; for these are presumptive circumstances of a thievish + intent." + +I call attention also to the case of _Rex_ vs. _Hall_, _3d Carrington & +Payne_, 409, which was a case before one of the Barons of the Exchequer +in England. It was an indictment for robbing John Green, a gamekeeper +of Lord Ducie, of three hare-wires and a pheasant. It appeared that the +prisoner had set three hare-wires in a field belonging to Lord Ducie, +in one of which this pheasant was caught; and that Green, the +gamekeeper, seeing this, took up the wires and pheasant, and put them +into his pocket; and it further appeared that the prisoner, soon after +this, came up and said, "Have you got my wires?" The gamekeeper replied +that he had, and a pheasant that was caught in one of them. The +prisoner asked the gamekeeper to give the pheasant and wires up to him, +which the gamekeeper refused; whereupon the prisoner lifted up a large +stick, and threatened to beat the gamekeeper's brains out if he did not +give them up. The gamekeeper, fearing violence, did so. + +Maclean, for the prosecution, contended-- + + "That, by law, the prisoner could have no property in either the + wires or the pheasant; and as the gamekeeper had seized them for + the use of the Lord of the Manor, under the statute 5 Ann, c. 14, + s. 4, it was a robbery to take them from him by violence." + +Vaughan, B., said: + + "I shall leave it to the Jury to say whether the prisoner acted on + an impression that the wires and pheasant were his property, for, + however he might be liable to penalties for having them in his + possession, yet, if the Jury think that he took them under a _bona + fide_ impression that he was only getting back the possession of + his own property, there is no _animus furandi_, and I am of opinion + that the prosecution must fail. + + "Verdict--Not guilty." + +Without detaining the Court and Jury to read other cases, I will simply +give your honors a reference to them. I refer to the _King_ vs. +_Knight_, cited in 2_d East's Pleas of the Crown_, p. 510, decided by +Justices _Gould_ and _Buller_; the case of the _Queen_ vs. _Boden_, +1_st Carrington and Kirwan_, p. 395; and for the purpose of showing +that this is the same rule which has been applied by the Courts of the +United States, in these very cases of piracy, I need do nothing more +than read a few lines from a case cited by the counsel for the +prosecution in opening the case of the _United States_ vs. _Tully_, +1_st Gallison's Circuit Court Reports_, 247, where Justices Story and +Davis say, that to constitute the offence of piracy, within the Act of +30th April, 1790, by "piratically and feloniously" running away with a +vessel, "the act must have been done with the wrongful and fraudulent +intent thereby to convert the same to the taker's own use, and to make +the same his own property, against the will of the owner. The intent +must be _animo furandi_." + +Now, gentlemen, I think that when you come to consider this case in +your jury-box, whatever other difficulties you may have, you will very +speedily come to the conclusion that the taking of the Joseph was with +no intent of stealing on the part of these prisoners. + +But, gentlemen, there is another requisite to the crime of robbery, +which, I contend, and shall respectfully attempt to show to you, is +absent from this case. I mean, it must be by violence, or putting him +in fear that the property is taken from the owner, and that the crime +of robbery is committed. I beg to refer the Court to the definition of +robbery in _1st Blackstone's Commentaries_, p. 242, and _1st Hawkins' +Pleas of the Crown_, p. 233, where robbery at common law is defined to +be "open and violent _larceny_, the rapina of the civil law, the +_felonious_ and _forcible_ taking from the person of another of goods +or money to any value by violence, or putting him in fear." + +Now, gentlemen, I say there was nothing of that kind in this case. What +are the circumstances as testified to by the witnesses for the +prosecution? The circumstances are, that the Joseph and the Savannah, +having approached within hailing distance, the Captain of the Savannah +hailed the Captain of the Joseph, standing on the deck of his own +vessel, and requested him to come on board and bring his papers. The +answer of the Captain of the Joseph was an inquiry by what authority +that direction was given; and the Captain of the Savannah replied, "by +the authority of the Confederate States." Whereupon the Captain of the +Joseph, in his own boat, with two of his crew, went alongside the +Savannah, was helped over the side by the Captain of the Savannah, and +was informed by him that he was under the disagreeable necessity of +taking his vessel and taking them prisoners; and without the slightest +force or violence being used by the Captain, or by a single member of +the crew of the Savannah--without a gun being fired, or even loaded, so +far as anything appears--the Captain of the Joseph voluntarily +submitted, yielded up his vessel, and there was not the slightest +violence or putting any body in fear. + +Therefore, gentlemen, I say, that so far as the crime charged here is +the crime of robbery, there is no evidence in the case under which, on +either of these grounds, by reason of the secrecy of the act, or the +violence or putting in fear, or the showing a felonious intent, by the +evidence for the prosecution, these prisoners can be convicted under +the indictment before you. To show that the definition of robbery at +common law is the one that applies to these statutes of the United +States, I beg to refer your honors to cases in the Supreme Court of the +United States. I refer to the case of the _United States_ vs. _Palmer, +3 Wheaton, 610_; the _United States_ vs. _Wood, 3d Washington, 440_; +and the _United States_ vs. _Wilson, 1 Baldwin,_ p. 78. + +But, gentlemen, there is another set of counts in this indictment on +which, probably, as to those who are citizens, a conviction will be +pressed for by counsel on the part of the Government. That is a set of +counts to which I am about to call your attention in reference to the +acts under which they were framed. You will recollect this, gentlemen, +that under the counts charging the offence of robbery, the majority of +these prisoners must be convicted, or none of them can be convicted at +all, for reasons which I will immediately give you. The only statute +under which it is claimed on the part of the prosecution that a +conviction can be had, if not for robbery on the high seas, +imperatively requires that the prisoners to be convicted must be +citizens of the United States. There are twelve prisoners here, and by +the statement of the last witness produced on the part of the +prosecution, only four of them appear to be citizens of the United +States, or ever to have been citizens of the United States. The others +were all born in different countries in Europe and Asia, and had never +been naturalized; and the Court, whenever this case comes before you, +so far as that point is concerned, will give you the evidence on the +subject, by which you will see exactly which of these prisoners had +ever been citizens of the United States, and which of them had not +been. I therefore proceed to examine as to what the statute is, and +what the requisites are for a conviction of those who were citizens of +the United States at any time. I will read to you the section of the +statute to which I have reference. It is the 9th section of the Act of +1790. It reads, "That if any _citizen_ shall commit any piracy or +robbery aforesaid, or any act of hostility against the United States, +or any citizen thereof, upon 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, it will be interesting and necessary to understand the +circumstances under which that statute was passed, and the application +which it was intended to have. I will briefly read to you the +explanation of that subject, which your honors will find in _Hawkins' +Pleas of the Crown, 1st Vol., p. _268. Hawkins says: + + "It being also doubted by many eminent civilians whether, during + the Revolution, the persons who had captured English vessels by + virtue of commissions granted by James 2nd, at his court at St. + Germain, after his abdication of the throne of England, could be + deemed pirates, the grantor still having, as it was contended, the + right of war in him; it is enacted by 11 and 12 Will. III., chap. + 7, sec. 8, 'That if any of his Majesty's natural born subjects or + denizens of this Kingdom shall commit any piracy or robbery, or any + act of hostility against others of his Majesty's subjects upon the + sea, under color of any commission from any foreign Prince or + State, or pretence of authority from any person whatsoever, such + offender or offenders, and every of them, shall be deemed, + adjudged, and taken to be pirates, felons, and robbers; and they + and every of them, being duly convicted thereof according to this + Act or the aforesaid statute of King Henry the Eighth, shall have + and suffer such pains of death, loss of land and chattels, as + pirates, felons, and robbers upon the sea ought to have and + suffer.'" + +Your honors will find that further referred to in the case of the +_United States_ vs. _Jones_, _3d Wash. Cir. Court Reps. p._ 219, in +these terms: + + "The 9th sec. of this law (the Act of 1790) is in fact copied from + the statute of the 11th and 12th Wm. 3d, ch. 7, the history of + which statute is explained by Hawkins. It was aimed at Commissions + granted to Cruisers by James II., after his abdication, which, by + many, were considered as conferring a legal authority to cruise, so + as to protect those acting under them against a charge of piracy. + Still, we admit that unless some other reason can be assigned for + the introduction of a similar provision in our law, the argument + which has been founded on it would deserve serious consideration. + We do not think it difficult to assign a very satisfactory reason + for the adoption of this section without viewing it in the light of + a legislative construction of the 8th sec, or of the general law. + + "If a citizen of the United States should commit acts of + depredation against any of the citizens of the United States, it + might at least have been a question whether he could be guilty of + piracy if he acted under a foreign commission and within the scope + of his authority. He might say that he acted under a commission; + and not having transgressed the authority derived under it, he + could not be charged criminally. But the 9th sec. declares that + this shall be no plea, because the authority under which he acted + is not allowed to be legitimate. It declares to the person + contemplated by this section, that in cases where a commission from + his own Government would protect him from the charge of piracy, + that is, where he acted within the scope of it or even where he + acted fairly but under a mistake in transgressing it, yet that a + _foreign_ commission should afford him no protection, even although + he had not exceeded the authority which it professed to give him. + But it by no means follows from this that a citizen committing + depredations upon foreigners or citizens, not authorized by the + commission granted by his own Government, _and with a felonious + intention_, should be protected by that commission against a charge + of piracy. Another object of this section appears to have been to + declare that acts of hostility committed by a citizen against the + United States upon the high seas, _under pretence of a commission + issued by a foreign Government, though they might amount to + treason, were nevertheless piracy and to be tried as such_." + +Your honors will find another very interesting history in reference to +this statute in _Phillimore's International Law, 1st vol., sec. 398_. +Phillimore says: + + "Soon after the abdication of James II., an international question + of very great importance arose, namely, what character should be + ascribed to privateers commissioned by the monarch, who had + abdicated, to make war against the adherents of William III., or + rather against the English, while under his rule. The question, in + fact, involved a discussion of the general principle, whether a + deposed sovereign, claiming to be sovereign _de jure_, might + lawfully commission privateers against the subjects and adherents + of the sovereign _de facto_ on the throne; or whether such + privateers were not to be considered as pirates, inasmuch as they + were sailing _animo furandi et depraedundi_, without any _national_ + character. The question, it should be observed, did not arise in + its full breadth and importance _until James II. had been expelled + from Ireland as well as England, until, in fact, he was a + sovereign, claiming to be such de jure_, BUT CONFESSEDLY WITHOUT + TERRITORY. It appears that James, after he was in this condition, + continued to issue letters of marque to his followers. The Privy + Council of William III. desired to hear civilians upon the point of + the piratical character of such privateers. The arguments on both + sides are contained in a curious and rather rare pamphlet, + published by one of the counsel (Dr. Tindal) for King William, in + the years 1693-4. The principal arguments for the piratical + character of the privateers appear to have been-- + + "That they who acted under such commission may be dealt with as if + they had acted under their own authority or the authority of any + private person, and therefore might be treated as pirates. That if + such a titular Prince might grant commissions to seize the ships + and goods of all or most trading nations, he might derive a + considerable revenue as a chief of such freebooters, and that it + would be madness in nations not to use the utmost rigor of the law + against such vessels. + + "That the reason of the thing which pronounced that robbers and + pirates, when they formed themselves into a civil society, became + just enemies, pronounced also that A KING WITHOUT TERRITORY, + without power of protecting the innocent or punishing the guilty, + or in any way of administering justice, dwindled into a pirate if + he issued commissions to seize the goods and ships of nations; and + that they who took commissions from him must be held by legal + inference to have associated _sceleris causâ_, and could not be + considered as members of a civil society." + +I will not occupy the time of the Court and Jury by recapitulating the +rest of the arguments which were urged with very great ability by the +learned and distinguished civilians arrayed against each other in that +interesting debate. But the points which arise, and which the Court +will have, in due time, to instruct you upon, we respectfully claim and +insist are these: That this English statute, after which our own +statute was precisely copied, was intended only to apply to the case of +pirates cruising under a commission pretended to have been given, in +the first place, by a Prince deposed, abdicated, not having a foot of +territory yielding him obedience in any corner of the world; and, in +the next place, that it was intended to be aimed against those cruising +under a commission issued under the pretence of authority from a +foreigner, and not from the authorities over them _de jure_ or _de +facto_, or from any authorities of the land in which they lived, and +where the real object was depredation; because, where it was issued by +a monarch without territory--by a foreigner, having no rule, and no +country in subjection to him--there could be no prize-court, and none +of the ordinary machinery for disposing of prizes captured, according +to the rules of international law; and, lastly, it was intended to +apply to the case of a citizen, taking a privateer's commission from a +foreign Government as a pretence to enable him to cruise against the +commerce of his own countrymen. But it was never intended to apply to a +case of this kind, where the commission was issued by the authorities +of the land in which the parties receiving it live, exercising sway and +dominion over them, whether _de jure_ or _de facto_. + +Now, gentlemen, so far I have thought it necessary to go in explanation +of what the statutes were, of the circumstances bearing on them, and of +the requisites which the prosecution had to make out, in order to ask a +conviction at your hands. I come now, for the purpose of this opening, +to lay before you what we shall rely upon in our defence. The first +defence, as has already appeared to you from the course of the +examination of the prosecution's witnesses, has reference to the +question of the jurisdiction of this Court to hear and determine this +controversy. The statute has been already read to you, on which that +question of jurisdiction rests; but, for fear that you do not recollect +it, I will beg once more to call your attention to it. The concluding +paragraph of sec. 14 of the Act of 1825, 4th vol. of the Statutes at +Large, p. 118, is as follows: + + "And the trial of all offences which shall be committed on the high + seas or elsewhere out of the limits of any State or District, shall + be in the District where the offender is apprehended, or into which + he may first be brought." + +Now, you observe that the language of the statute is imperative--the +reasons which led to its adoption were also imperative and controlling. +It is necessary that the law shall make provision for the place where a +man shall be put on trial under an indictment against him; and the law +wisely provides that in cases of offences committed on the land, the +trial shall only take place where the offence was committed. It was +thought even necessary to provide for that by an amendment to the +Constitution of the United States, in order that there might be no +misunderstanding of, and no departure from, the rule. + +The Constitution, by one of its amendments, in the same paragraph which +provides for the right of every accused to a speedy and impartial +trial, provides also that that trial shall take place in the District, +which District shall first have been ascertained by law; and as I said +to you, in cases of crimes committed on the land, that District must be +the District where the offence was committed, and no other. + +Now look at the state of things here, gentlemen. These men are all +citizens or residents of the State of South Carolina, and have been so +for years. This vessel was fitted out in South Carolina. The authority +under which she professed to act was given there. The evidence for the +defence, if it could be got, must come from there. All the +circumstances bearing on the transaction occurred in that section of +the country, and not elsewhere,--occurred in a country which is now +under the same Government and domination as Virginia, because Virginia +is included at present under the domination and Government of the +Confederate States. + +Well, with reference to offences committed at sea, the officers +capturing a prize have a right to bring it into any port, it is true, +and the port where the prisoners are brought is, as we claim under the +construction of the statute, the port where the trial is to take place; +the port where the prisoners are first brought, whether they are landed +or not. On that question of jurisdiction the rule is this: The +jurisdiction of the State extends to the distance of a marine league +from shore; and if these prisoners were brought on this vessel within +the distance of three miles from the shores of Virginia, where the +vessel anchored, as in port, having communication with the land, the +jurisdiction of the Circuit Court of the Eastern District of Virginia +attached, and they could not, after that, be put on trial for that +offence elsewhere. It is not necessary for me now to trouble the Jury +with re-reading authorities which were read upon this subject +yesterday. In a case which occurred some years ago, before Judge Story, +the learned Judge had fallen into a misapprehension on a question which +did not necessarily arise, because the facts to give rise to it did not +occur in the case. An offence had been committed--an attempt to create +a revolt on board of a vessel at sea. Those who had made the attempt +had either repented of the design, or had not succeeded in it; at all +events, they had afterwards gone on to do their duty on the vessel, and +had not been incarcerated on board the vessel at all. The vessel first +got into a port in Connecticut, and finally got into a port in +Massachusetts, and there, for the first time, those prisoners were +arrested and put into confinement. Undoubtedly the Court in +Massachusetts had jurisdiction in that case; but Judge Story, speaking +on a question which did not arise, appeared to treat the language of +the statute as being alternative, giving the Government the right to +select one of two places for the trial. That was corrected in a late +case which came before the Court in Massachusetts, in the same District +where Judge Story had decided the previous case. Both Judge Sprague, of +the District Court, and Judge Clifford, of the Circuit Court, held that +in a case where prisoners had been captured as malefactors on the high +seas, and had been confined on board a United States vessel, where the +vessel had gone into Key West for a temporary purpose, to get water, +without the prisoners ever having been landed, and where they went from +thence to Massachusetts, where the prisoners were arrested by the civil +authorities and imprisoned, that the Court of Massachusetts had no +jurisdiction whatever. Under the instructions of the Court, the Grand +Jury refused to find an indictment, and a warrant of removal was +granted to remove the prisoners for trial in the Court at Key +West,--the Court of Massachusetts holding that that was the only place +where they could be tried for the offence, because the vessel having +them in custody as prisoners had touched there to get water on her +voyage. We have not even the information in that case as to whether the +vessel went within three miles of the shore; it was enough that she had +communicated with Key West, and that the prisoners might have been +landed there; but it was held that the Government had not a right to +elect the place of trial of the prisoners; and it is important, +particularly in cases of this kind, that no one shall have the right to +elect a place of trial. I say that, not with the slightest intention of +imputing any unfair motives to the Government, to the officers of the +Navy, or any one else. It is a great deal better that where men are to +be put on trial for their lives, they should have the benefit of the +chapter of accidents. + +If it would have been any better for these prisoners to have had a Jury +to try them in Virginia, they were entitled to the benefit of that. In +saying so, I mean no reflection on any Jury in New York. I have no +doubt you will try this case as honestly, as fairly, and as impartially +as any Jury in Virginia could try it. But at the same time we all know +that if this right of election can be resorted to on the part of the +United States, men might suffer, not from any wrong intention, but from +the natural and inevitable and often unconscious tendency of those who +are to prosecute, to select the place of prosecution most convenient +for themselves. + +We shall therefore claim before you, gentlemen, following the rule laid +down in Massachusetts by Judge Clifford and Judge Sprague, that this +vessel, having been within a marine league of the shore of Virginia, +was within the jurisdiction of the District Court of Virginia, and that +that was the only place where they could be tried. Suppose, as was well +suggested to me by one of my associates, that on the Minnesota, lying +where she did, or on the Harriet Lane, lying where she did in Hampton +Roads, a murder had been committed: could it be contended by any one +that the United States Court in Virginia would not have had +jurisdiction, and the only jurisdiction over the case? + +Now, gentlemen, that is all which, on the opening of this case, I am +going to say on the subject of jurisdiction. + +Our next defence will be, that the commission in this case affords +adequate protection to these prisoners; and we will put that before you +in several points of view. It will undoubtedly be read to you in +evidence. It was one of the documents found on board this vessel. + +_Mr. Evarts:_ It is not in evidence; and how can counsel open to the +Jury upon a commission which is not in evidence? + +_Judge Nelson:_ Counsel can refer to it as part of his opening. + +_Mr. Larocque:_ Now, gentlemen, you will recollect that the counsel for +the prosecution, in framing this indictment, has treated this in the +way in which we claim he was bound to treat it; that is to say, that +the 9th section of the Act of 1790 was intended to refer exclusively to +offences claimed to have been committed under a commission; throwing on +the prosecution the necessity of setting forth the commission or the +pretence of authority. Having set it forth, the prosecution is bound by +the manner in which it is described in the indictment; and if it is +described as something which it is not, the prisoners must have the +benefit of that mis-description. + +Now, in framing this indictment, the counsel for the prosecution has +set forth that the prisoners claimed to act under a commission issued +by one Jefferson Davis. That is to say, he has attempted to ground his +claim to a conviction on that section of the statute. You will +recollect that the statute reads, "under pretence of any commission +granted by any foreign Prince or State" (which the Courts of the United +States have held, to mean a foreign State), "or under pretence of +authority from any person." And it was necessary, in order to ground an +indictment on that section of the statute, to bring this case within +the exact letter or words of one or the other clause of that section of +this statute. It would not do for them to claim that this commission +was issued by a foreign Prince or foreign State, because, if by a +foreign Prince or foreign State, there would be no doubt or question +that all of these parties were citizens of that foreign State or +residents there, and were not citizens of the United States. Of course, +if this were a foreign State, they were foreign citizens, and not +citizens of the United States. + +What is this commission? As we shall lay it before you, it reads in +this way: + + "JEFFERSON DAVIS, + + "President of the Confederate States of America, + + "To all who shall see these Presents, Greeting: + + "Know ye, That by virtue of the power vested in me by law, I have + commissioned, and do hereby commission, have authorized, and do + hereby authorize, the schooner or vessel called the 'Savannah' + (more particularly described in the schedule hereunto annexed), + whereof T. Harrison Baker is commander, to act as a private armed + vessel in the service of the Confederate States, on the high seas, + against the United States of America, their ships, vessels, goods, + and effects, and those of their citizens, during the pendency of + the war now existing between the said Confederate States and the + said United States. + + "This commission to continue in force until revoked by the + President of the Confederate States for the time being. + + "Given under my hand and the seal of the Confederate States, + [c.s.] at Montgomery, this eighteenth day of May, A.D. 1861. + + "(Signed) JEFFERSON DAVIS. + + "By the President. + + "R. TOOMBS, + "_Secretary of State_. + + "SCHEDULE OF DESCRIPTION OF THE VESSEL. + + "Name--Schooner 'Savannah.' + "Tonnage--Fifty-three 41/95 tons. + "Armament--One large pivot gun and small arms. + "No. of Crew--Thirty." + +That is the document, bearing the seal of ten States, signed by +Jefferson Davis as President--signed by the Secretary of State for +those ten States, which the learned counsel who framed the indictment +has undertaken to call "a pretence of authority from one Jefferson +Davis." The counsel was forced to frame his indictment in that way; for +if he had alleged in the indictment that it was by pretence of +authority from the Confederate States--to wit, South Carolina, Georgia, +&c., naming States which this Government, for the purpose of bringing +this prosecution at all, must claim to be in the Union--it would be +clearly outside of the provision of the statute, and could never get +before a Jury, because it would have been dismissed on application to +the Court beforehand. But the learned counsel has sought, by stating an +argumentative conclusion of law in his indictment, according to his +understanding of it, to bring within the statute a case which the +statute was not meant to meet--an entirely different and distinct case. +I submit to you, that that cannot be done,--that the commission on its +face does not purport to be a commission granted by any person. It +purports to be, and, if anything, it is, a commission granted by +authority of the States that are joined together under the name of +Confederate States; and, gentlemen, as I said, we shall claim before +you that this commission is a protection to these parties, against the +charge of piracy, upon various distinct grounds. + +In the first place, we shall claim before you that the Government, +called the Government of the Confederate States (whether you call it a +Government _de jure_ or a Government _de facto_, or whatever name under +the nomenclature of nations you choose to give it), is the present +existing Government of those States, exercising dominion over them, +without any other Government having an officer or court, or any +insignia of Government within them. + +This is a point which, at a future stage of the case, my learned +associate, who is much better able to do so than I am, will have +occasion to dwell upon. I wish, however, to call your attention to the +rules as they have been laid down; and first, I would desire to refer +you, and also to call the attention of the Court, to what is said by +Vattel,--who, as you all probably know, is one of the most celebrated +authors upon international rights, and international law, and who is +received as authority upon that subject in every Court in Europe and +America. I refer to Vattel, book 1, chap. 17, secs. 201 and 202, where +he says: + + "_Sec. 201._ When a city or province is threatened, or actually + attacked, it must not, for the sake of escaping a danger, separate + itself, or abandon its natural Prince, even when the State or the + Prince is unable to give it immediate and effectual assistance. Its + duty, its political engagements, oblige it to make the greatest + efforts in order to maintain itself in its present state. If it is + overcome by force, necessity, that irresistible law, frees it from + its former engagements, and gives it a right to treat with the + conqueror, in order to obtain the best terms possible. If it must + either submit to him or perish, who can doubt but it may, and even + ought to prefer the former alternative? Modern usage is conformable + to this decision,--a city submits to the enemy, when it cannot + expect safety from vigorous resistance. It takes an oath of + fidelity to him, and its sovereign lays the blame on fortune + alone." + + "_Sec. 202._ The State is obliged to protect and defend all its + members; and the Prince owes the same assistance to his subjects. + If, therefore, the State or the Prince refuses or neglects to + succor a body of people who are exposed to imminent danger, the + latter, being thus abandoned, become perfectly free to provide for + their own safety and preservation in whatever manner they find most + convenient, without paying the least regard to those who, by + abandoning them, have been the first to fail in their duty. The + Canton of Zug, being attacked by the Swiss in 1352, sent for succor + to the Duke of Austria, its sovereign; but that Prince, being + engaged in discourse concerning his hawks at the time when the + deputies appeared before him, would scarcely condescend to hear + them. Thus abandoned, the people of Zug entered into the Helvetic + Confederacy. The city of Zurich had been in the same situation the + year before. Being attacked by a band of rebellious citizens, who + were supported by the neighboring nobility, and the House of + Austria, it made application to the head of the Empire; but Charles + IV., who was then Emperor, declared to its deputies that he could + not defend it, upon which Zurich secured its safety by an alliance + with the Swiss. The same reason has authorized the Swiss in general + to separate themselves entirely from the Empire which never + protected them in any emergency. They had not denied its authority + for a long time before their independence was acknowledged by the + Emperor, and the whole Germanic Body, at the treaty of Westphalia." + +I also refer to the case of the United States _v._ Hayward, 2 Gallison, +485, which was a writ of error to the District Court of Massachusetts, +in a case of alleged breach of the revenue laws. It appears that +Castine (in Maine) was taken possession of by the British troops on the +1st of September, 1814, and was held in their possession until after +the Treaty of Peace. + +Judge Story says: + + "The second objection is, that the Court directed the Jury that + Castine was, under the circumstance, a foreign port. By 'foreign + port,' as the terms are here used, may be understood a port within + the dominions of a foreign sovereign, and without the dominions of + the United States. The port of Castine is the port of entry for the + District of Penobscot, and is within the acknowledged territory of + the United States. But, at the time referred to in the bill of + exceptions, it had been captured, and was in the open and exclusive + possession of the enemy. _By the conquest and occupation of + Castine, that territory passed under the allegiance and sovereignty + of the enemy. The sovereignty of the United States over the + territory was, of course, suspended, and the laws of the United + States could no longer be rightfully enforced, or be obligatory + upon the inhabitants, who remained and submitted to the + conquerors._" + +Now, gentlemen, I must trouble you, very briefly, with a reference to +one or two other authorities on that subject. At page 188 of Foster's +Crown Law that learned author says: + + "_Sec 8._ Protection and allegiance are reciprocal obligations, and + consequently the allegiance due to the Crown must, as I said + before, be paid to him who is in the full and actual exercise of + the regal powers, and to none other. I have no occasion to meddle + with the distinction between Kings _de facto_ and Kings _de jure_, + because the warmest advocates for that distinction, and for the + principles upon which it hath been founded, admit that even a King + _de facto_, in the full and sole possession of the Crown, is a King + within the Statute of Treasons; it is admitted, too, that the + throne being full, any other person out of possession, but claiming + title, is no King within the act, be his pretensions what they may. + + "These principles, I think, no lawyer hath ever yet denied. They + are founded in reason, equity, and good policy." + +And again, at page 398, he continues: + + "His Lordship [Hale] admitted that a temporary allegiance was due + to Henry VI. as being King _de facto_. If this be true, as it + undoubtedly is, with what color of law could those who paid him + that allegiance before the accession of Edward IV. be considered as + traitors? For call it a temporary allegiance, or by what other + epithet of diminution you please, still it was due to him, while in + full possession of the Crown, and consequently those who paid him + that due allegiance could not, with any sort of propriety, be + considered as traitors for doing so. + + "The 11th of Henry VII., though subsequent to these transactions, + is full in point. For let it be remembered, that though the + enacting part of this excellent law can respect only future cases, + the preamble, which his Lordship doth not cite at large, is + declaratory of the common law: and consequently will enable us to + judge of the legality of past transactions. It reciteth to this + effect, 'That the subjects of England are bound by the duty of + their allegiance to serve their Prince and Sovereign Lord for the + time being, in defence of him and his realm, against every + rebellion, power, and might raised against him; and that whatsoever + may happen in the fortune of war against the mind and will of the + Prince, as in this land, some time past it hath been seen, it is + not reasonable, but against all laws, reason, and good conscience, + that such subjects attending upon such service should suffer for + doing their true duty and service of allegiance.' It then enacteth, + that no person attending upon the King for the time being in his + wars, shall for such service be convict or attaint of treason or + other offence by Act of Parliament, or otherwise by any process of + law." + +The author says then: + + "Here is a clear and full parliamentary declaration, that by the + antient law and Constitution of England, founded on principles of + reason, equity, and good conscience, the allegiance of the subject + is due to the King for the time being, and to him alone. This + putteth the duty of the subject upon a rational, safe bottom. He + knoweth that protection and allegiance are reciprocal duties. He + hopeth for protection from the Crown, and he payeth his allegiance + to it in the person of him whom he seeth in full and peaceable + possession of it. He entereth not into the question of title; he + hath neither leisure or abilities, nor is he at liberty to enter + into that question. But he seeth the fountain, from whence the + blessings of Government, liberty, peace, and plenty flow to him; + and there he payeth his allegiance. And this excellent law hath + secured him against all after reckonings on that account." + +And another author on that subject [Hawkins], in his Pleas of the +Crown, Book I., chap. 17, sec. 11, says: + + "As to the third point, who is a King within this act? [26 Edw. 3, + ch. 2.] It seems agreed that every King for the time being, in + actual possession of the crown, is a King within the meaning of + this statute. For there is a necessity that the realm should have a + King by whom and in whose name the laws shall be administered; and + the King in possession being the only person who either doth or can + administer those laws, must be the only person who has a right to + that obedience which is due to him who administers those laws; and + since by virtue thereof he secures to us the safety of our lives, + liberties, and properties, and all other advantages of Government, + he may justly claim returns of duty, allegiance, and subjection." + + "_Sec. 12._ And this plainly appears by the prevailing opinions in + the reign of King Edward IV., in whose reign the distinction + between a King _de jure_ and _de facto_ seems first to have begun; + and yet it was then laid down as a principle, and taken for granted + in the arguments of Bagot's case, that a treason against Henry VI. + while he was King, in compassing his death, was punishable after + Edward IV. came to the Crown; from which it follows that allegiance + was held to be due to Henry VI. while he was King, because every + indictment of treason must lay the offence _contra ligeantiæ + debitum_. + + "_Sec. 13._ It was also settled that all judicial acts done by + Henry VI. while he was King, and also all pardons of felony and + charters of denization granted by him, were valid; but that a + pardon made by Edward IV., before he was actually King, was void, + even after he came to the Crown." + + "And by the 11th Henry VII., ch. 1, it is declared 'that all + subjects are bound by their allegiance to serve their Prince and + Sovereign Lord for the time being in his wars for the defence of + him and his land against every rebellion, power, and might reared + against him, &c., and that it is against all laws, reason, and good + conscience that he should lose or forfeit any thing for so doing;' + and it is enacted 'that from thenceforth no person or persons that + attend on the King for the time being, and do him true and faithful + allegiance in his wars, within the realm or without, shall for the + said deed and true duty of allegiance _be convict of any + offence_.'" + + "_Sec. 15._ From hence it clearly follows: _First_, that every King + for the time being has a right to the people's allegiance, because + they are bound thereby to defend him in his wars, against every + power whatsoever. + + "_Sec. 16._ _Secondly_, that one out of possession is so far from + having any right to allegiance, by virtue of any other title which + he may set up against the King in being, that we are bound by the + duty of our allegiance to resist him." + +And these doctrines, if the Court please, have been recently acted upon +and enforced by a learned Judge in the case of the United States _vs._ +The General Parkhill, tried in Philadelphia, and published in the +newspapers, although not yet issued in the regular volumes of Reports. + +I need not tell you, gentlemen, that what is said there of the King, +applies to any other form of Government equally well, whether it be a +republican form of Government, or whatever it may be. These doctrines +belong to this country as well as they belong to England. They belong +to every country which has adopted the common law; and what would be +due to a King in the actual possession of the Government in England, +under our statutes and decisions, and under the rules adopted here, +would be equally due to a President of the United States in any part of +the country in which we live. + +I have only to call your attention, in that connection, in opening the +defence, to what the condition of things was in the South at the time +the acts charged in the indictment occurred. You will bear in mind +there is no pretence in this case that any one of these prisoners had +anything whatever to do with the initiation of this controversy,--with +the overthrow or disappearance of the United States authority in those +Confederate States, or with any act occurring anterior to the 2d of +June, when this vessel, the Savannah, started upon her career. Nothing, +so far, appears, and, in reality, nothing can be made to appear, to +show any event, before that time, with which they were connected. + +The question, then, is, What was the state of things existing in +Charleston, and in the Confederate States, at that time? In the course +of the evidence, we will lay that before you, in the completest form it +can be laid. We will show you, by the official documents, by the +messages of the President, by proclamations, and by the Acts of +Congress themselves, that there was not an officer of the United States +exercising jurisdiction in one of these Confederate States--not a +Judge, or Marshal, or District Attorney, or any other officer by whom +the Government had been previously administered on the part of the +United States. Every one of them had resigned his office. This new +Government had been formed. It was the existing Government, which had +replaced the United States in all these States, long anterior to the +time that this vessel was fitted out and sailed from the port of +Charleston; and upon these questions, whether that was a _de jure_ or +_de facto_ Government, we say it was the existing Government that was +in authority over these men--that exercised the power of life and death +over them, for it had Courts administering its decrees, as well as +every other form and all the other insignia of power; and they were +justified by overruling necessity, and by every other title, in +yielding obedience to that Government, and in yielding their allegiance +to it, as the cases I have read decide; and that duty enjoined upon +their consciences to aid and support it by all means in their power +from that time forward, until there was another Government over them. + +I say, therefore, gentlemen, that this was not a commission issued by a +"person, to wit, one Jefferson Davis." I say it was a commission issued +by several of the States of the Union, represented, if you please, by +Jefferson Davis, and by authority, in fact, from those States, and from +the Government in force over them. And more than that, gentlemen, to +bring the case still more clearly within the authorities I have read to +you, and which you, no doubt, carry in your minds, we will show by the +declarations of the Presidents of the United States--by the declaration +of Mr. Buchanan, in December, 1860, and by the declaration of Mr. +Lincoln, on the 4th of March, 1861--that neither of them, at either of +those dates, intended to interfere, or to attempt to interfere, by +force, with this existing Government. They both, publicly and solemnly, +in the presence of the United States, declared that they would not +attempt, by any forcible invasion of those States, to overthrow the +Government established over them;--that there would be no "invasion," +is the expression;--that they would leave it to the sober second +thought of the people of those States, by process of time, by maturer +thought and better reflection, to return, probably, to their former +position under the Government of the United States. And what were men +to do, in that condition of things, in the State of South Carolina, in +the State of Georgia, or in any one of those States, with not an +officer of the United States to protect them--with not a Court of +Justice to protect them--with Courts of Justice, on the contrary, +organized by the new Government, and exercising dominion of life and +death, and every other dominion that Government could exercise--but to +yield their allegiance to it, and from thenceforth to support it, as +honest men should do, who yield their allegiance to the Government? + +As I said before, in respect to this question, even if this were a +voluntary act on the part of the prisoners--if they were not controlled +by necessity--if they had a state of things before them which +authorized them to believe that their conduct was right--that the +States did nothing more than they had a right to do--they were +justified in giving allegiance to the Government in existence. We have +nothing to say as to the correctness of the political views or opinions +of the prisoners whatever. The question is, What did these men +believe--what were they taught to believe, by your own expounders of +the Constitution--what did they conscientiously and sincerely believe? +When they acted under this commission, did they believe that it was a +legitimate authority, and had they full color for the belief which they +held? + +And now, gentlemen, another point that we shall maintain before you is, +that under the Constitution of the United States, those States had +color of authority to grant this commission; and that the executive +government of the State had the jurisdiction to decide, for all the +citizens of the State, whether the emergency for taking hostile +proceedings against the General Government had arrived, or not. And I +know that, in saying that, I am speaking to this Jury an unpalatable +doctrine, at the present day; but it is a doctrine which is amply borne +out by the cotemporaneous expositions of the Constitution, penned by +its own framers, by the decisions of the Courts, and by authorities on +which we are accustomed to rely for questions of that character. + +Now, the Constitution of the country is a complex one. There are two +sovereigns in every State, exercising allegiance over the inhabitants +of the State. The one sovereign is the United States of America, and +the other sovereign is the State in which the citizen lives. And when I +say that, I am speaking in the language of the Supreme Court of the +United States itself, over and over repeated, as late as the 21st of +Howard's Reports (but a few removes, I believe, from the last volume +issued from that Court), without a dissenting voice. The theory of our +Government is, that the States are sovereign and independent, and that, +in coming into the Union, they have retained that sovereignty and +independence for every purpose, and in every case, except those in +which an express grant of power has been made to the Government of the +United States, either in express words, or by necessary implication; +and the Courts have held, over and over again, that any act of the +General Government of the United States, which transcends the express +grant of power made by the Constitution, is absolutely void, to all +intents and purposes whatever. + +And more than that, gentlemen, the citizen of a State cannot only +commit treason against the United States, or other kindred political +offences; but he can, in like manner, commit treason against the State +in which he lives, or other kindred political offences against its +government. + +The Constitution of the United States defines treason to be, "levying +war against the United States, or adhering to their enemies, giving +them aid and comfort." The Constitution of the State of New York +defines treason against the State of New York to be, "levying war +against the State, or adhering to its enemies, giving them aid and +comfort." The Constitution of South Carolina defines and punishes +treason against the State, in the language of the old English statute, +bringing it to precisely the same thing. + +As I said, therefore, the citizen of New York or the citizen of South +Carolina (because, whether in one or the other locality, it is the same +thing) is under two sovereigns, owing allegiance to each of them--the +sovereign State in which he is, owning the whole mass of residuary +power (as it has been happily expressed in the decisions of the Court) +beyond the express, limited power granted to the Federal Government by +the Constitution of the United States. + +I want to call your attention to another thing, as I go along with this +line of the argument. I contend that, among the powers which have been +delegated to the State governments by the Constitutions of the States, +is the power in the executive government of the State, co-ordinately +with the General Government, to decide whether itself or the General +Government has transcended the line which bounds their respective +jurisdictions, upon any case in which a collision may arise between +them, which affects the public domain of the State, or the whole State, +or its citizens, considered as a body politic. And you will see, in a +moment, the reason why I state my proposition in that way. + +You have all heard of what, in the history of the country, has been +called _nullification_, and you probably all understand very nearly +what that is. By _nullification_, as it has been spoken of in the +history of our country, was meant the claim on the part of a State, by +a convention of its people, or otherwise, to decide that the laws of +the United States should not operate within its limits upon its +citizens, in cases where the law could legitimately operate upon +individual citizens. Because you will all recollect that the laws of +the United States, in their operation throughout the Union--their +criminal laws, laws for the collection of duties, and similar +laws--operate upon individual citizens, without reference to whether +they are citizens of one State or another. The law operates upon them +as people of the United States. And therefore, if you are carrying on +business in the port of New York, and a consignment comes to you, it is +a question between you as a citizen of the United States and the +Government whether the tariff, under which duties are attempted to be +collected is valid, as between you and the Government, or not--whether +it was legitimate for Congress to pass that tariff; and, in all cases +arising on these subjects, the Constitution has provided a tribunal, an +arbiter, which is supreme and final, without any appeal. For instance, +if you deny the validity of the law under which duties are attempted to +be collected upon the goods imported by you, and the Collector attempts +to collect them, you refuse to pay, or pay under protest,--and the case +must come into the District Court of the United States; and if the +Court decides that the law was unconstitutional, you get immediate +redress; if it decides that it was constitutional, the question can be +carried to the Supreme Court of the United States, and there finally +settled. And, therefore, I say that in all cases that come within the +purview of the judicial department of the Government, the laws of the +United States, as administered by the Courts, and their decisions, bind +the citizens of the States in every part of the land. + +But, gentlemen, there are an immense class of cases constantly arising +where no opportunity can ever be presented to a Court to pass upon +them, which were never intended to be passed upon by a Court, which are +cases of collision between the executive department of the General +Government and the State government in matters, as I expressed it to +you before, affecting the public domain, or the State or its citizens +as a body politic. As laid down by the expounders of the Constitution +of the United States, that instrument is one to which the States are +parties, as well as the people of the United States and people of each +State. + +Suppose a case of this kind. It is not a case likely to arise; but +every case may arise, as we have been sadly admonished by the events of +the last few months. Suppose we had a President in the executive chair +at Washington who was a citizen of the State of Massachusetts, and +greatly interested in the prosperity of the commerce of the City of +Boston; and suppose that, being a wicked man (for wicked men have been +sometimes elected to offices in this and every country), he had +conceived the iniquitous design of ruining the commerce of New York, +for the purpose of benefiting the commerce of the City of Boston; and +suppose, in the prosecution of that wicked design, without the pretense +of authority to do so under the Constitution of the United States, +without a pretense that Congress had passed any law authorizing him to +do anything of the kind, he should station a fleet of vessels, by +orders to the commander of his squadron, off the harbor of New York, +and should say, from this day forward the commerce of the port of New +York is hermetically closed, and the commerce which has formerly gone +to New York must go to Boston. Is the State of New York, under a +condition of things of that kind, to submit to the closing of her +commerce, to her ruin and destruction? Can she get before the Courts +for redress against such an infringement of the Constitution by the +President? How is she to get there? She cannot go to the Supreme Court +of the United States, for in the Courts of the United States there is +no form of jurisdiction by which the question can be brought before the +Courts by any possibility whatever; and New York is a sovereign and +independent State, and, so far as she has not conceded jurisdiction to +the United States by the Constitution, has a right to exercise every +sovereign and independent power that she has. _There_ is a case, +therefore, in which the Courts of law can afford no redress,--in which +the Constitution has erected no common arbiter between the General +Government and the government of the State. + +Who, then, is the arbiter in such a case? Why, gentlemen, the books +have expressed it. It is the last argument of Kings--it is the law of +might; and in case of a collision of that kind, I maintain before you, +upon this trial, that the State has a right to redress herself by force +against the General Government; that she has a right, if necessary, to +commission cruisers, to drive the squadron away from the port of New +York; and she has a right, if more effectual, to commission private +armed vessels to aid in driving them away, or to capture or subdue +them. There being no common arbiter between her and the General +Government in a case of that kind, she has a right to use force in +redressing herself, and to take the power into her own hands. + +And the authorities are uniform upon that subject. I have been obliged +to detain you so long that I shall not read them to you; but I have +them collected before me, and in the future discussions which may take +place before the Court I shall be able to show that that right was +maintained by Hamilton, one of the most distinguished members of the +Convention who helped to frame the Constitution, and the strongest +advocate of placing large powers in the hands of the Federal +Government; by Madison, Jefferson, and all the Fathers of the +Constitution, and by all who have written upon the subject; that it is +a doctrine which has been asserted by the Legislature of the State of +New Jersey, and, indeed, by the State Legislatures of all the States, +pretty much, in which the question has arisen--that the Supreme Court +of the United States have themselves over and over again declared that +the only safeguard that existed, under the Constitution, against the +right of the State to come into collision with the General Government, +in all cases whatever, was the existence of the judiciary power, in +cases where that was applicable between them, and that in all cases +where that judiciary power failed, they were left to the law of nature +and the might of Kings to redress themselves. + +Now, gentlemen, if I am right in that step in my argument,--if that +right would exist at any time or under any circumstances,--there must +be some authority, in the State that has the jurisdiction, to decide +for the citizens of the State when that occasion has arisen; and there +must be some authority in the United States which has a right to decide +for the Government of the United States when that occasion has arisen; +whose decision (that is, in the General Government) is binding for the +people of all the States, except the State in collision with the +Federal Government and which makes a contrary decision; and whose +decision, in that State, is an authority and protection for all the +citizens of that State. + +I say to you, moreover, gentlemen, that that right, under the law of +nature, to resist the attempted usurpation of a power which has not +been granted by the Constitution, resides, in a State, in the executive +government, and necessarily in the Governor of the State; because you +will recollect one of the premises upon which we started was, that all +the residuary power in the government, beyond what had been expressly +ceded to the Government of the United States by the Federal +Constitution, is, by the Constitution, reserved to the State; and the +Governor of the State is the sentinel upon the watch-tower for the +protection of the rights of the State. He is placed in that position to +watch the danger from afar. He communicates with the General +Government. Any steps taken having reference to the State, pass under +his inspection; and he alone has the materials within his reach for +knowing the circumstances and deciding upon the facts in regard to the +question whether the General Government is acting within the +constitutional limit of its powers, or whether it is guilty of any +usurpation of power, in any claim of authority it makes with reference +to the affairs of the State. Because, in the case I have supposed, of a +President elected from the State of Massachusetts, seeking to destroy +the commerce of New York, and stationing a fleet off the harbor, it is +not likely that a President who was guilty of such wickedness would +avow that he did it for the purpose of building up the commerce of +Boston and destroying that of New York. No; he would say that he had +notice of a hostile invasion--a fleet leaving the coast of Great +Britain or of some other maritime power to make a descent upon New +York,--that he had notice of some threatened injury to New York, which +would make it necessary to station a fleet there, and to prevent +vessels from entering or leaving. The Governor alone would have the +means of ascertaining whether there was any foundation in truth for +that, or whether it was a mere pretence to cover his iniquitous +purpose; and in determining the case whether the Federal Government is +exceeding its power or not, or acting within the constitutional limit +of its power, the Governor has to deal with a compound question of law +and fact. He must first read the Constitution of the United States, and +ascertain its grant of power, and then compare that with the facts as +presented to him; and upon that comparison the jurisdiction is placed +in him to decide whether the act of the General Government is within +its power, or a transgression of it. + +He decides the question, and what more have we then? He is, by his +office, commander-in-chief of the military and naval forces of the +State; for the State can have both military and naval forces. It has +its militia at all times. It is authorized expressly by the +Constitution to keep ships of war, in time of war. There is, certainly, +a prohibition in the Constitution of the United States against a State +granting letters of marque; but that is a prohibition against its +granting letters of marque in a war against foreign States; it has no +reference whatever to any possible collision that may take place +between the State and the Federal Government. And that rule is laid +down by _Grotius_ and _Vattel_ both; for they both maintain and assert +the right of the people, under every limited Constitution, in the case +of a palpable infringement of power by the chief of the State, forcibly +to resist it; and GROTIUS puts the case of a State with a limited +Constitution, having both a King and a Senate, in which the power of +declaring war was in express terms reserved to the King alone, and he +says that by no means prevents the Senate, in case of an infringement +of the Constitution by the King, from declaring and making war against +him; because the phrase is to be understood of a war with foreign +nations and not of an internal war. I say, therefore, that in a case of +that kind--a palpable infringement by the General Government of the +Constitution--the Governor of the State, in the first place, has the +only means and the only right of deciding whether that infringement has +taken place. + +In each State the Governor is commander-in-chief of the naval and +military forces; he has a right to give military orders to citizens; he +has a right to order them to muster in the service of the State; and if +they disobey him they can be punished the same as they can in any +civilized country. + +And more than that: suppose a case arises of that kind, in which the +General and State Governments come into forcible collision, and suppose +a citizen should take arms against the State; there is the law of the +State which punishes for treason every citizen of the State who adheres +to its enemies, giving them aid and comfort; and, under the theory of +the prosecution, if he adheres to the State, and the Federal Government +should happen to be the victor in the contest, there is the law of the +Federal Government which punishes him for adhering to the State. So +that the poor citizen of the State, if this theory be correct, is to be +punished and hanged, whichever party may succeed in the unhappy +contest. + +But, gentlemen, the law perpetrates no such absurdity as that; for the +very moment the doctrine for which I contend is admitted, the citizen, +in a conflict like that between the Federal Government and the State, +is not liable to be considered a traitor or punished as such, let him +adhere to which of the two parties he pleases, in good faith. The +reason of which is clear. He is the subject of two sovereigns,--the one +the Federal Government and the other the State in which he lives. +Either of these sovereigns has jurisdiction to decide for him the +question whether the other is committing a usurpation of power or not; +and it inevitably follows that if these two sovereigns decide that +question differently, the citizen is not to be punished as a traitor, +let him adhere to which he pleases in good faith. And I submit to you, +gentlemen, that is the only doctrine, under the Constitution of the +United States, and under our complex system of government, which can be +admitted for a moment. I will give you a confirmation of that. I have +already stated to you the clause of the Constitution of the United +States which defines the punishment of the crime of treason against the +United States,--and by looking at the reports of the debates in the +Convention which adopted the Constitution, you will find that the +clause, as originally reported to the Convention, read: "Treason +against the United States shall consist in levying war against the +United States _or any of them_, or in adhering to the enemies of the +United States, _or any of them_, giving them aid and comfort,"--and the +clause, as reported, was amended by striking out the words, "or any of +them," and making it read: "Treason against the United States shall +consist in levying war against them or in adhering to their enemies," +&c. Therefore, under our Constitution, treason against the United +States must be levying war against all the States of this Confederacy. +It does not mean the Government. The amendment which I have spoken of +shows it must be an act of hostility which is, in judgment of law, an +act of hostility against all the States of the Union. Therefore I say +that a citizen who owes allegiance to a State of the Union, when he +acts in good faith, under the jurisdiction of one of the sovereigns to +whom he owes allegiance--to wit, the State--does not levy war against +the United States. He levies war against the Government which claims to +represent him, in that case,--his other sovereign, to whom he equally +owes allegiance, deciding that that Government is committing an +usurpation of power; and he is acting under the authority of those in +whom he rightly and justly reposes faith,--to whom has been delegated +the right to decide; and however the Governor of the State may be +punished by impeachment, if he has acted in bad faith, the citizen +cannot be subject to the halter for doing that which he was under a +legal obligation to do. + +Then, gentlemen, to show the application of the rule for which I have +been contending--and with the necessary details of which I fear I must +have wearied you--to the case in hand: The moment it is conceded that +any possible case can arise in which a State would have the right to +resist by force the General Government,--the moment it is conceded that +it is the Governor of the State, who, co-ordinately with the President +of the Union, has a right to decide that question for himself,--then I +say we have nothing whatever to do with the question, whether, under +the unhappy circumstances which have arisen, the Governor of the State, +or of any of the States, decided right or wrong. We know they did claim +that the General Government was usurping power which did not belong to +it. In fact, I think we have the confession of the President of the +United States that, with an honest heart and with honest purposes, +which I believe have actuated him all through, he has, as he says, for +the preservation of the Union, the hope of humanity in all ages, and +the greatest Government, as I shall ever believe, that man has ever +created,--that he has been compelled to, and did, usurp power which did +not belong to him. President Buchanan, before and after this +controversy arose, asserted plainly and unequivocally that he had +searched the Constitution and laws of the United States for the purpose +of finding any color of authority for the invasion of a State by +military force, or the using of force against it; and that he could +find no such warrant in the Constitution. He was right. There was +nothing of the kind in the Constitution; but he failed to see (in my +humble judgment) that the law of nature gave him the power to enforce +the legitimate authority of the Union, as it gave to the State +government the power to repel usurpation. President Lincoln, when he +assumed the reins of power, admitted that there was a doubt on that +subject. He declared at first that it was not expedient to exercise +that power, and that he would not exercise it. He changed his mind +afterwards, and did exercise it; and on the 13th of April he issued a +proclamation calling for 75,000 volunteers, the first duty assigned to +whom, as he stated in his proclamation, would be to invade the Southern +States, for the purpose of recapturing the forts and retaking the +places that had passed out of the jurisdiction of the United States. +And in a subsequent proclamation he declared that he had granted to the +military commanders of these forces, without the sanction of an Act of +Congress, authority to suspend the writ of _habeas corpus_, within +certain limits and in certain cases, in those States. And he makes the +frank admission that, in his own belief at least, some of the powers +which he had found himself compelled to exercise were not warranted in +the Constitution of the United States. + +Now these acts of hostility complained of in the indictment took place +long subsequent to that. This proclamation was in the month of April. +These commissions were not issued, and the Act of the Confederate +States to authorize their issue was not passed, until some time +afterwards--after they had learned of this proclamation; and this +commission was not granted until the month of June subsequent. + +I say, therefore, a case was presented for the exercise of the +jurisdiction of the Government of the United States, to decide whether +it was exercising its rightful powers, under the Constitution, and for +the Governor of the State to decide, for the State, that same question; +and that an unhappy case of collision, ever to be regretted and +deplored, had arisen between the Government of the United States and +the Government of those States; and I say that the citizens of any one +of those States owing the duty of allegiance to two sovereigns--to the +government of their State and to the Government of the United +States--had a right honestly to make their election to which of the two +sovereigns they would adhere, and are not to be punished as traitors or +pirates if they have decided not wisely, nor as we would have done in +the section of the country where we live. + +I am sorry, gentlemen, to detain you on the question; but it is a most +important one--one that enters into the very marrow of this case; and +we do claim that the issuing of this commission, whether on the footing +of its having been issued by a _de facto_ Government, or by authority +from the State, considering it as remaining under the Constitution, was +a commission that forms a protection to the defendants, and one which +is not within the purview of the Act of 1790; because it was not, in +the language of that section, a commission taken by a citizen of the +United States to cruise against other citizens of the United States, +either from a _foreign_ Prince or State, or a person merely. + +You will observe that if the claim of the Confederate States, that the +ordinances of secession are valid, be correct, then it is true that +they are foreign States; but their citizens have ceased to be citizens +of the United States, and are therefore not within the purview of the +ninth section of the Act of 1700. + +If, on the contrary, the claim on the part of the Government of the +United States, that these ordinances are absolutely void, be correct, +then the States are still States of this Union, and the commission, +being issued by their authority, is not a commission issued by a +_foreign_ State, and therefore the case is not within the purview of +the ninth section of the Act of 1790. + +I must allude very briefly, before closing, to another ground on which +this defence will be placed: and that is, that conceding (if we were +obliged to concede) that this was not an authority, such as +contemplated, to give protection to cruisers as privateers, there was a +state of war existing in which hostile forces were arrayed against each +other in this country, and which made this capture of the Joseph a +belligerent act, even obliterating State lines altogether, for the +purpose of the argument. + +But before I pass from what I have said to you on the subject of the +claim of authority of the States of this Union to come into collision +with the General Government, allow me to call attention to the forcible +precedents shown in the history of our own glorious Revolution, when +the thirteen Colonies, numbering little more than three millions, +instead of thirty, separated from Great Britain. At the time when that +occurred, in 1776, this very statute of 1790 was in force in England, +as I have shown you. It was passed in England, if I recollect right, in +1694. The position of the thirteen Colonies towards the mother country, +at that time, was precisely the position that those States which call +themselves the "Confederate States" now occupy towards the General +Government of the Union. + +Appealing to God, as the Supreme Ruler of the Universe, for the +rectitude of their intentions, and acknowledging their accountability +to no other power, they had claimed to resist the usurpation of the +King of Great Britain. They had not even claimed, at the time of which +I speak--for I speak of the end of the year 1775 and the beginning of +1776--to declare their independence and to throw off their subjection +to Great Britain. At that very early day there were very few in these +Colonies that contemplated a thing of that kind, or whose minds could +be brought to contemplate such an act. They had risen in resistance +against what they claimed to be arbitrary power; they claimed that the +King of Great Britain had encroached upon their rights and privileges +in a manner not warranted by the Constitution of Great Britain. They +did not claim to secede from Great Britain; they did not claim to make +themselves independent of subjection to her rule; they claimed to stop +the course of usurpation which, they held, had been commenced; and they +proposed to return under subjection to the British crown the very +moment that an accommodation should be made, yielding allegiance to the +King of Great Britain as in all time before. 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. I have often heard them called the greatest, wisest, and +best men that ever lived on the face of God's earth. I will read to you +what occurred on the 23d March, 1776;--they being subjects of the King +of Great Britain, and having never claimed to throw off allegiance to +him, but claiming that he was usurping power which did not belong to +him, and that they, as representatives of the thirteen Colonies of +America, were the judges of that question and those facts, as we claim +that the States are now the judges of this question and these facts. +They adopted the following preamble and resolutions: + + "The Congress resumed the consideration of the Declaration, which + was agreed to, as follows: + + "WHEREAS, The petitions of the United Colonies to the King for the + redress of great and manifold grievances have not only been + rejected, but treated with scorn and contempt, and the opposition + to designs evidently formed to reduce them to a state of servile + subjection, and their necessary defence against hostile forces + actually employed to subdue them, declared rebellion; + + "AND WHEREAS, An unjust war hath been commenced against them which + the commanders of the British fleets and armies have prosecuted and + still continue to prosecute with their utmost vigor, in a cruel + manner, wasting, spoiling, and destroying the country, burning + houses and defenceless towns, and exposing the helpless inhabitants + to every misery, from the inclemency of the winter, and not only + urging savages to invade the country, but instigating negroes to + murder their masters; + + "R. TOOMBS, The Parliament of Great Britain hath lately passed an + Act, affirming these Colonies to be in open rebellion; forbidding + all trade and commerce with the inhabitants thereof until they + shall accept pardons, and submit to despotic rule; declaring their + property wherever found upon the water liable to seizure and + confiscation, and enacting that what had been done there by virtue + of the royal authority were just and lawful acts, and shall be so + deemed; from all which it is manifest that the iniquitous schemes + concerted to deprive them of the liberty they have a right to by + the laws of nature, and the English Constitution, will be + pertinaciously pursued. It being, therefore, necessary to provide + for their defence and security, and justifiable to make reprisals + upon their enemies and otherwise to annoy them according to the + laws and usages of nations; the Congress, trusting that such of + their friends in Great Britain (of whom it is confessed there are + many entitled to applause and gratitude for their patriotism and + benevolence, and in whose favor a discrimination of property cannot + be made) as shall suffer by captures will impute it to the authors + of our common calamities, Do Declare and Resolve as follows, to + wit: + + "_Resolved_, That the Inhabitants of these Colonies be permitted to + fit out armed vessels to cruise on the enemies of these United + Colonies. + + "_Resolved_, That all ships and other vessels, their tackle, + apparel and furniture, and all goods, wares and merchandize + belonging to any inhabitant of Great Britain, taken on the high + seas, or between high and low water-mark, by any armed vessel + fitted out by any private person or persons, and to whom + commissions shall be granted, and being libelled and prosecuted in + any Court erected for the trial of maritime affairs in any of these + Colonies, shall be deemed and adjudged to be lawful prize, and + after deducting and paying the wages which the seamen and mariners + on board of such captures as are merchant ships and vessels shall + be entitled to, according to the terms of their contracts, until + the time of their adjudication, shall be condemned to and for the + use of the owner or owners, and the officers, marines, and mariners + of such armed vessels, according to such rules and proportions as + they shall agree on. Provided, always, that this resolution shall + not extend to any vessel bringing settlers, arms, ammunition or + warlike stores to and for the use of these Colonies, or any of the + inhabitants thereof who are friends to the American cause, or to + such warlike stores, or to the effects of such settlers. + + "_Resolved_, That all ships or vessels, with their tackle, apparel + and furniture, goods, wares and merchandize, belonging to any + inhabitant of Great Britain, as aforesaid, which shall be taken by + any of the vessels of war of these United Colonies, shall be deemed + forfeited; one-third, after deducting and paying the wages of + seamen and mariners, as aforesaid, to the officers and men on + board, and two-thirds to the use of the United Colonies. + + "_Resolved_, That all ships or vessels, with their tackle, apparel + and goods, wares and merchandizes, belonging to any inhabitant of + Great Britain, as aforesaid, which shall be taken by any vessel of + war fitted out by and at the expense of any of the United Colonies, + shall be deemed forfeited and divided, after deducting and paying + the wages of seamen and mariners, as aforesaid, in such manner and + proportions as the Assembly or Convention of such Colony shall + direct." + +There are two or three other resolutions, which it is not necessary for +me to trouble you with the reading of. You will bear in mind that there +were no two sovereignties over these United Colonies at that time. They +had no sovereignty or independence whatever; they were mere Provinces +of the British Crown; the Governors derived their appointment from the +Crown itself, or from the proprietors of the Colonies; and these wise +and good men, on the 23d March, 1776, claimed that the King of Great +Britain had usurped powers which did not belong to him under the +Constitution of Great Britain, and that they had the right to resist +his encroachments; and they authorized letters of marque to cruise +against the ships and property of their fellow subjects of Great +Britain, because of the state of things which arose from a collision +between them and the Crown. They were enemies, and although they +regretted that they had to injure in their property men who were their +friends, they trusted they would excuse them, owing to the inevitable +necessity that existed and the impossibility of discriminating between +friends and foes in the case of inhabitants of Great Britain. + +And now, gentlemen, to trouble you with one more brief reference, let +me show you what took place before that Act of the Provincial Congress +was passed in the Province of Massachusetts. They had already passed a +Provincial Act of the General Assembly, couched in similar language, +authorizing cruisers and privateers against the enemies of that +Province; and you will see what occurred. I read again from Cooper's +Naval History, 1st Vol., p. 42. He is speaking of the year 1775: + + "The first nautical enterprise that succeeded the battle of + Lexington was one purely of private adventure. The intelligence of + this conflict was brought to Machias, in Maine, on Saturday, the + 9th of May, 1775. An armed schooner, in the service of the Crown, + called the Margaretta, was lying in port, with two sloops under her + convoy, that were loading with lumber on behalf of the King's + Government. + + "The bearers of the news were enjoined to be silent,--a plan to + capture the Margaretta having been immediately projected among some + of the more spirited of the inhabitants. The next day being Sunday, + it was hoped that the officers of the schooner might be seized + while in church; but the scheme failed, in consequence of the + precipitation of some engaged. Captain Moore, who commanded the + Margaretta, saw the assailants, and, with his officers, escaped + through the windows of the church to the shore, where they were + protected by the guns of their vessel. The alarm was now taken; + springs were got on the Margaretta's cables, and a few harmless + shot were fired over the town by way of intimidation. After a + little delay, however, the schooner dropped down below the town to + a distance exceeding a league. Here she was followed, summoned to + surrender, and fired on from a high bank, which her own shot could + not reach. The Margaretta again weighed, and running into the bay, + at the confluence of the two rivers, anchored. The following + morning, which was Monday, the 11th of May, four young men took + possession of one of the lumber sloops, and, bringing her alongside + of a wharf, they gave three cheers as a signal for volunteers. On + explaining that their intentions were to make an attack on the + Margaretta, a party of about thirty-five athletic men was soon + collected. Arming themselves with firearms, pitchforks, and axes, + and throwing a small stock of provisions into the sloop, these + spirited freemen made sail on their craft, with a light breeze at + northwest. When the Margaretta observed the approach of the sloop, + she weighed and crowded sail to avoid a conflict that was every way + undesirable,--her commander not yet being apprised of all the facts + that had occurred near Boston. In jibing, the schooner carried away + her main-boom, but, continuing to stand on, she ran into Holmes' + Bay, and took a spar out of a vessel that was lying there. While + these repairs were making, the sloop hove in sight again, and the + Margaretta stood out to sea, in the hope of avoiding her. The + breeze freshened, and, with the wind on the quarter, the sloop + proved to be the better sailer. So anxious was the Margaretta to + avoid a collision, that Captain Moore now cut away his boats; but, + finding this ineffectual, and that his assailants were fast closing + with him, he opened a fire--the schooner having an armament of four + light guns and fourteen swivels. A man was killed on board the + sloop, which immediately returned the fire with a wall-piece. This + discharge killed the man at the Margaretta's helm, and cleared her + quarter-deck. The schooner broached to, when the sloop gave a + general discharge. Almost at the same instant the two vessels came + foul of each other. A short conflict now took place with + musketry,--Captain Moore throwing hand-grenades, with considerable + effect, in person. This officer was immediately afterwards shot + down, however, when the people of the sloop boarded and took + possession of their prize. The loss of life in this affair was not + very great, though twenty men, on both sides, are said to have been + killed and wounded. The force of the Margaretta, even in men, was + much the most considerable; though the crew of no regular cruiser + can ever equal, in spirit and energy, a body of volunteers + assembled on an occasion like this. There was, originally, no + commander in the sloop; but, previously to engaging the schooner, + Jeremiah O'Brien was selected for that station. This affair was the + Lexington of the sea,--for, like that celebrated land conflict, it + was a rising of the people against a regular force; was + characterized by a long chase, a bloody struggle, and a triumph. It + was also the first blow struck on the water, after the war of the + American Revolution had actually commenced." + +And that is the act, gentlemen, which, instead of being the act of +desperadoes, pirates, and enemies of the human race, is recorded in +history as an act of spirited freemen. You will remember that the act +was done without any commission; it was done while these Provinces were +Colonies of the British Crown; it was done long before the Declaration +of Independence. The Act of the Provincial Congress, so far as that +could have any validity, authorizing letters of marque, was not passed +until afterwards, on the 23d of March. The Declaration of Independence +was passed on the 4th July, 1776. According to the theory on the other +side, call this lawful secession--call it revolution--call it what you +please,--these Confederate States, as they are called, are not +independent. They have not any Government--they cannot do any thing +until their independence is acknowledged by the United States. +Therefore, according to the theory of the other side, no act of the +Provincial Congress, no act of any of the United Colonies, had any +validity in it until the treaty of peace between them and Great Britain +was signed, in 1783. But, I need not tell you, gentlemen, that in this +country, in all public documents, in all public proceedings, in the +decisions of our Courts, the actual establishment of the independence +of the United States is dated as having been accomplished on the 4th +July, 1776. All the state papers that run in the name and by the +authority of the United States of America, run in their name, and by +their authority, as of such a year of their independence, dating from +the 4th July, 1776. Let me, therefore, show you what was done by the +Colonies, in 1776, before and after the date of the Declaration of +Independence; and let me show how many piracies our hardy seamen of +those days must have committed, on the theory of the prosecution in +this case. I read again from Cooper's Naval History: + + "Some of the English accounts of this period state that near a + hundred privateers had been fitted out of New England alone, in the + two first years of the war; and the number of seamen in the service + of the Crown, employed against the new States of America, was + computed at 26,000. + + "The Colonies obtained many important supplies, colonial as well as + military, and even manufactured articles of ordinary use, by means + of their captures,--scarce a day passing that vessels of greater or + less value did not arrive in some one of the ports of their + extensive coast. By a list published in the 'Remembrancer,' an + English work of credit, it appears that 342 sail of English vessels + had been taken by American cruisers, in 1776; of which number 44 + were recaptured, 18 released, and 4 burned." + +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? Gentlemen, my mind may be under a strong hallucination +on the subject; but I cannot conceive the theory on which the +prosecution can come into Court, on the state of things existing, and +ask for a conviction. Remember that, in saying that, I am speaking as a +Northern man,--for I am a Northern man; I am speaking as a subject and +adherent to the Government of the Union; I am speaking as one who loves +the flag of this country--as one who was born under it--as one who +hopes to be permitted to die under it; and I am speaking with tears in +my eyes, because I do not want to see that flag tarnished by a judicial +murder, and by an act cowardly and dastardly, as I say it would be, if +we are to treat these men as pirates, while we are engaged in a +hand-to-hand conflict with them with arms in the field, and while they +are asserting and maintaining the rights which we claimed for ourselves +in former ages. 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. In God's name, let us have none of that! + +I have but one word more to say, gentlemen, before I close. I have +already said that we claim that this commission is an adequate +protection, considering that this is an inter-state war. It has been so +considered, and is now so considered by the Government of the United +States itself, because, after the conflict had commenced and had gone +on for some time, it being treated by the Government at Washington as a +mere rebellion or insurrection by insurgent and rebellious citizens in +some of the Southern States, it was found that it had assumed too +mighty proportions to be treated in that way, and therefore, in the +month of July last, the Congress then in session passed an Act, one of +the recitals of which was that this state of things had broken out and +still existed, and that the war was claimed to be waged under the +authority of the governments of the States, and that the governments of +the States did not repudiate the existence of that authority. Congress +then proceeded to legislate upon the assumption of the fact that the +war was carried on under the authority of the governments of the +States. There is a distinct recognition by your own Government of the +fact that this is an inter-state war, and that the enemies whom our +brave troops are encountering in the field are led on under authority +emanating from those who are rightfully and lawfully administering the +Government of the States. + +You will recollect, gentlemen, that in most of those States the State +governments are the same as they were before this condition of things +broke out. There has been no change in the State constitutions. In a +great many of them there has been no change in the personnel of those +administering the government. They are the recognized legitimate +Governors of the States, whatever may be said of those claiming to +administer the Government of the Confederate States. + +But, gentlemen, let us pass from that, and let us suppose it was not a +war carried on by authority of the States. It is, then, a civil war, +and a civil war of immense and vast proportions; and the authorities +are equally clear in that case, that, from the moment that a war of +that kind exists, captures on land and at sea are to be treated as +prizes of war, and prisoners treated as prisoners of war, and that the +vocation of the ax and the halter are gone. I refer you to but a single +authority on this subject, because I have already occupied more of your +time than I had intended doing, and I have reason to be very grateful +to you for the patience and attention with which you have listened to +me in the extended remarks that I was obliged to make. I refer to +Vattel, Book 3, cap. 18, secs. 287, 292 and 293: + + "_Sec. 287._ It is a question very much debated whether a sovereign + is bound to observe the common laws of war towards rebellious + subjects who have openly taken up arms against him. A flatterer, or + a Prince of cruel and arbitrary disposition, will immediately + pronounce that the laws of war were not made for rebels, for whom + no punishment can be too severe. Let us proceed more soberly, and + reason from the incontestible principles above laid down." + +The author then proceeds to enforce the duty of moderation towards mere +rebels, and proceeds: + + "_Sec. 292._ When a party is formed in a State who no longer obey + the sovereign, and are possessed of sufficient strength to oppose + him; or when, in a Republic, the nation is divided into two + opposite factions, and both sides take up arms, this is called a + civil war. Some writers confine this term to a just insurrection of + the subjects against their sovereign to distinguish that lawful + resistance from rebellion, which is an open and unjust resistance. + But what appellation will they give to a war which arises in a + Republic, torn by two factions, or, in a Monarchy, between two + competitors for the Crown? Custom appropriates the term of civil + war to every war between the members of one and the same political + society. If it be between part of the citizens on the one side, and + the sovereign with those who continue in obedience to him on the + other, provided the malcontents have any reason for taking up arms, + nothing further is required to entitle such disturbance to the name + of civil war, and not that of rebellion. This latter term is + applied only to such an insurrection against lawful authority as is + void of all appearance of justice. The sovereign, indeed, never + fails to bestow the appellation of rebels on all such of his + subjects as openly resist him; but when the latter have acquired + sufficient strength to give him effectual opposition, and to oblige + him to carry on the war against them according to the established + rules, he must necessarily submit to the use of the term civil war. + + "_Sec. 293._ It is foreign to our purpose, in this place, to weigh + the reasons which may authorize and justify a civil war; we have + elsewhere treated of the cases wherein subjects may resist the + sovereign. (Book 1, cap. 4.) Setting, therefore, the justice of the + cause wholly out of the question, it only remains for us to + consider the maxims which ought to be observed in a civil war, and + to examine whether the sovereign, in particular, is on such an + occasion bound to conform to the established laws of war. + + "A civil war breaks the bonds of society and Government, or at + least suspends their force and effect; it produces in the nation + two independent parties, who consider each other as enemies, and + acknowledge no common judge. Those two parties, therefore, must + necessarily be considered as thenceforward constituting, at least + for a time, two separate bodies--two distinct societies. Though one + of the parties may have been to blame in breaking the unity of the + State, and resisting the lawful authority, they are not the less + divided in fact. Besides, who shall judge them? Who should + pronounce on which side the right or the wrong lies? On each they + have no common superior. They stand, therefore, in precisely the + same predicament as two nations who engage in a contest, and, being + unable to come to an agreement, have recourse to arms. + + "This being the case, it is very evident that the common laws of + war--those maxims of humanity, moderation and honor, which we have + already detailed in the course of this work--ought to be observed + by both parties in every civil war. For the same reasons which + render the observance of those maxims a matter of obligation + between State and State, it becomes equally and even more necessary + in the unhappy circumstances of two incensed parties lacerating + their common country. Should the sovereign conceive he has a right + to hang up his prisoners as rebels, the opposite party will make + reprisals; if he does not religiously observe the capitulations, + and all other conventions made with his enemies, they will no + longer rely on his word; should he burn and ravage, they will + follow his example; the war will become cruel, horrible, and every + day more destructive to the nation." + +After noticing the cases of the Duc de Montpensier and Baron des +Adrets, he continues: + + "At length it became necessary to relinquish those pretensions to + judicial authority over men who proved themselves capable of + supporting their cause by force of arms, and to treat them not as + criminals, but as enemies. Even the troops have often refused to + serve in a war wherein the Prince exposed them to cruel reprisals. + Officers who had the highest sense of honor, though ready to shed + their blood on the field of battle for his service, have not + thought it any part of their duty to run the hazard of an + ignominious death. Whenever, therefore, a numerous body of men + think they have a right to resist the sovereign, and feel + themselves in a condition to appeal to the sword, the war ought to + be carried on by the contending parties in the same manner as by + two different nations, and they ought to leave open the same means + for preventing its being carried into outrageous extremities and + for the restoration of peace." + +Now, gentlemen, can anything be more explicit on this subject, leaving +out of view all questions of the authority of the States or of the +Confederate Government to issue this commission? Can anything be more +pointed or more direct on the question? Treat this as a mere civil +war--treat it as though all State lines of the Union were obliterated, +and as though this was a common people, actuated by some religious or +political fanaticism, who had set themselves to cutting each others' +throats--treat it as a purely civil strife, without any question of +State sovereignty or State jurisdiction connected with it,--and still +you have the authority of Vattel, an authority than which none can be +higher, as the Court will tell you--and I could multiply authorities on +that point from now until the shadows of night set in--that even in +that case it is obligatory to observe the laws of war just the same as +if it was a combat between two nations, instead of between two sections +of the same people. Even if there was no commission whatever here, by +any one having a color or pretence of right to issue it, but if those +belonging to one set of combatants, in a civil strife which had reached +the magnitude and proportions of which Vattel speaks, had set out to +cruise, and had captured this vessel, I submit to you that it could not +be treated as a case of piracy. + +I have closed, gentlemen, the argument which, on opening the case, I +have thought it necessary to advance in order that you may be able to +apply the evidence. Every word that Vattel says there endorses the +entreaty which I have made to you, as you love your country and as you +love her prosperity, to view this case without passion and without +prejudice created by the section in which you live, as I know and trust +by your looks and indications that you will. And I say to you, +gentlemen, that a greater stab could not be inflicted on our +Government--not a greater wound could be given to the cause in which we +all, in this section of the country, are enlisted--than to proclaim the +doctrine that these cases are to be treated as cases for the halter, +instead of as cases of prisoners of war between civilized people and +nations. The very course of enlistment of troops for the war has been +stopped in this city by that threat. As I said before, the officers and +soldiers on the banks of the Potomac, if they could be appealed to on +that question, would say, "For God's sake, leave this to the clash of +arms, and to regular and legitimate warfare, and do not expose us to +the double hazard of meeting death on the field, or meeting an +ignominious death if we are captured." And as history has recorded what +I have called your attention to as having occurred in the days of the +Revolution, so history will record the events of the year and of the +hour in which we are now enacting our little part in this mighty drama. +The history of this day will be preserved. The history of your verdict +will be preserved. You will carry the remembrance of your verdict when +you go to your homes. It will come to you in the solemn and still hours +of the night. It will come to you clothed in all the solemn importance +which attaches to it, with the lives of twelve men hanging upon it, +with the honor of your country at stake, with events which no one can +foresee to spring from it. And I have only to reiterate the prayer, for +our own sake and for the sake of the country, that God may inspire you +to render a verdict which will redound to the honor of the country, and +that will bring repose to your own consciences when you think of it, +long after this present fitful fever of excitement shall have passed +away. + + +DOCUMENTARY TESTIMONY. + +_Mr. Brady_, for the defence, put in evidence the following documents: + +1. Preliminary Chart of Part of the sea-coast of Virginia, and Entrance +to Chesapeake Bay.--Coast Survey Work, dated 1855. + +2. The Constitution of Virginia, adopted June 29, 1776. It refers only +to the western and northern boundaries of Virginia--Art. 21--but +recognizes the Charter of 1609. That charter (Hemmings' Statutes, 1st +vol., p. 88) gives to Virginia jurisdiction over all havens and ports, +and all islands lying within 100 miles of the shores. + +3. The Act to Ratify the Compact between Maryland and Virginia, passed +January 3, 1786--to be found in the Revised Code of Virginia, page 53. +It makes Chesapeake Bay, from the capes, entirely in Virginia. + +_Mr. Sullivan_ also put in evidence, from _Putnam's Rebellion Record_, +the following documents: + +1. Proclamation of the President of the United States, of 15th April, +1861. (_See Appendix._) + +2. Proclamation of the President, of 19th April, 1861, declaring a +blockade. (_See Appendix._) + +3. Proclamation of 27th April, 1861, extending the blockade to the +coasts of Virginia and North Carolina. + +4. Proclamation of May 3d, for an additional military force of 42,034 +men, and the increase of the regular army and navy. + +5. The Secession Ordinance of South Carolina, dated Dec. 20, 1860. + +_Mr. Smith_ stated that, in regard to several of the documents, the +prosecution objected to them,--not, however, as to any informality of +proof. He supposed that the argument as to their relevancy might be +reserved till the whole body of the testimony was in. + +_Judge Nelson_: That is the view we take of it. + +_Mr. Brady_ suggested that the defence would furnish, to-morrow, a list +of the documents which they desired to put in evidence. + +The Court then, at half-past 4 P.M., adjourned to Friday, at 11 A.M. + + + + +THIRD DAY. + + +_Friday, Oct. 25, 1861._ + +The Court met at 11 o'clock A.M. + +_Mr. Brady_ stated to the Court that two of the prisoners--Richard +Palmer and Alexander Coid--were exceedingly ill, suffering from +pulmonary consumption, and requested that they might be permitted to +leave the court-room when they wished. It was not necessary that they +should be present during all the proceedings. + +_Mr. Smith_: It would be proper that the prisoners make the +application. + +_Mr. Brady_: They will remain in Court as long as they can; and will, +of course, be present when the Court charges the Jury. + +_The Court_ directed the Marshal to provide a room for the prisoners to +retire to, when they desired. + +_Mr. Sullivan_: Before adjourning yesterday it was stated that the +different ordinances of the seceded States were all considered in +evidence without being read. + +_Mr. Smith_: Are any of them later in date than the commission to the +Savannah? + +_Mr. Sullivan_: No, sir. Some States have seceded since the date of the +commission, and have been received into the Confederacy. + +_Mr. Evarts_: We will assume, until the contrary appears, that there +are no documents of date later than the supposed authorization of the +privateer. + +_Mr. Larocque_: With this qualification,--that there are a great many +documents from our own Government which recognize a state of facts +existing anterior to those documents. + +_Mr. Sullivan_ read in evidence from page 10 of _Putnam's Rebellion +Record_: + + Letter from Secretary of War, John B. Floyd, to President James + Buchanan, dated December 29, 1860. + + President Buchanan's reply, dated December 31, 1860. + +Also, from page 11 of _Rebellion Record_: + +The Correspondence between the South Carolina Commissioners and the +President of the United States. + +[Considered as read.] + +Also, referred to page 19 of _Rebellion Record_, for the Correspondence +between Major Anderson and Governor Pickens, with reference to firing +on the _Star of the West_. + +Read Major Anderson's first letter (without date), copied from +_Charleston Courier_, of Jan. 10, 1861. (_See Appendix._) + +Governor Pickens' reply, and second communication from Major Anderson. +(_See Appendix._) + +Also, from page 29 of _Rebellion Record_, containing the sections of +the Constitution of the Confederate States which differ from the +Constitution of the United States. + +Also, from page 31 of _Rebellion Record_: Inaugural of Jefferson Davis, +as President of the Confederate States. + +Also, page 36 of _Rebellion Record_: Inaugural of Abraham Lincoln, +President of the United States, (for the passages, _see Appendix_.) + +Also, page 61 of _Rebellion Record_: The President's Speech to the +Virginia Commissioners. (_See Appendix._) + +Also, page 71 of _Rebellion Record_: Proclamation of Jefferson Davis, +with reference to the letters of marque, dated 17th April, 1861. + +Also, page 195 of _Rebellion Record_: An Act recognizing a state of +war, by the Confederate Congress,--published May 6, 1861. + +[Read Section 5.] + +_Mr. Lord_ read from pages 17, 19, and 20, of _Diary of Rebellion +Record_, to give the date of certain events: + + 1861, February 8. The Constitution of the Confederate States adopted. + February 18. Jefferson Davis inaugurated President. + February 21. The President of the Southern Confederacy nominates + members of his Cabinet. + February 21. Congress at Montgomery passed an Act declaring the + establishment of free navigation of the Mississippi. + March 19. Confederates passed an Act for organizing the + Confederate States. + April 8. South Carolina Convention ratified the Constitution of + the Confederate States by a vote of 119 to 16. + +_Mr. Sullivan_: We propose now to introduce the papers found on board +the Savannah when she was captured. The history of these papers is, +that they were captured by the United States officers, taken from the +Savannah, and come into our hands now, in Court, through the hands of +the United States District Attorney, in whose possession they have +been;--and they have been proceeded upon in the prize-court, for the +condemnation of the Savannah. The first I read, is-- + +The Commission to the Savannah, dated 18th May, 1861. + +Also, put in evidence, copy of Act recognizing the existence of war +between the United States and the Confederate States, and concerning +letters of marque,--approved May 6, 1861. + +Also, read _President Davis' Instructions to Private Armed +Vessels_,--appended to the Act. + +Also, an Act regulating the sale of prizes, dated May 6, +1861,--approved May 14, 1861. + +Also, an Act relative to prisoners of war, dated May 21, 1861. + +_Mr. Sullivan_ also read in evidence three extracts from the Message of +President Lincoln to Congress, at Special Session of July 4, 1861. +(_See Appendix._) + +Also, extracts from the Message of President Buchanan, at the opening +of regular Session of Congress, December 3d, 1860. (_See Appendix._) + +Also, from page 245 of _Rebellion Record_: Proclamation of the Queen of +Great Britain, dated May 13, 1861. + +_Mr. Evarts_ objected to this, on the ground that it could not have +been received here prior to the date of the commission. + +Objection overruled. + +Also, from page 170 of _Rebellion Record_: Proclamation of the Emperor +of France,--published June 11, 1861. + +Also, the Articles of Capitulation of the Forts at the Hatteras Inlet, +dated August 29th, on board the United States flagship Minnesota, off +Hatteras Inlet. + +_Mr. Evarts_ remarked that this latter document was not within any +propositions hitherto passed upon; but he did not desire to arrest the +matter by any discussion, if their honors thought it should be +received. + +_Judge Nelson_: It may be received provisionally. + +_Mr. Brady_ also put in evidence the _Charleston Daily Courier_, of +11th June, 1861, containing a Judicial Advertisement,--a monition on +the filing of a libel in the Admiralty Court of the Confederate States +of America, for the South Carolina District, and an advertisement of +the sale of the Joseph, she having been captured on the high seas by +the armed schooner Savannah, under the command of T. Harrison +Baker,--attested in the name of Judge Magrath, 6th June, 1861. + +And containing, also, a judicial Act, relating to the administration of +an estate in due course of law. + +_Mr. Brady_ stated that the reference was to show that they had a +judicial system established under their own Government. + + +_Lieutenant D. D. Tompkins_ recalled for the defence, and examined by +_Mr. Sullivan_. + +_Q._ State your knowledge as to the sending of any flags of truce while +your vessel, the Harriet Lane, was lying at Fortress Monroe? + +(Same objection; received provisionally.) + +_A._ I have seen flags of truce come down from the direction of +Norfolk. + +_Q._ Did your vessel have any communication with the officer bearing +the flag of truce? + +_A._ No, sir. + +_Q._ Did they come with the Confederate flag flying on the same vessel +with the flag of truce? + +_A._ Yes. One vessel came down with the Confederate flag flying, and a +flag of truce, also. + +_Q._ Where was it received, and by what officer? + +_A._ I am not positive whether it was received by the Cumberland or the +Minnesota. They communicated with either of those vessels. + +_Q._ Were any vessels or boats, with flags of truce, ever sent from +Fort Monroe toward the Confederate forces? + +_A._ I have seen vessels go up the Roads with a flag of truce. + +_Q._ And the United States flag on the same vessels? + +_A._ Yes. + +_Q._ You saw Captain Baker and the other prisoners--were they +uniformed? + +_A._ No, sir; I do not think they had any regular uniform. Captain +Baker had a uniform, with metal buttons on his coat. I did not notice +what was on the buttons. + +_Q._ He had on such a dress as he wears to-day? + +_A._ Something similar to that. He was the only one who had a uniform. + +_Q._ Do you know anything as to the exchange of prisoners between the +forces of the United States and of the Confederate States on any +station where you have been? + +_A._ No, sir. + + +The defence here closed. + + +The District Attorney stated that the prosecution had no rebutting +evidence to offer. + + +_Judge Nelson_: Before counsel commence summing up the case to the +Jury, they will please present the propositions of law on both sides. + +_Mr. Lord_: I was going to ask my friends on the other side to give us +their authorities, so that we shall know what we are to go to the Jury +upon. We would then be able to lay our views before the Court and to +divide the labor of summing up--some of us addressing ourselves +entirely to the Court. + +_Mr. Evarts_: I would have no objection to taking that course if I had +been prepared for it. In the presentation of the case, we rely on the +statute of the United States--on the fact that the defendants are +within the terms of the statute; and that the affirmative defence, +growing out of the state of things in this country, does not apply in a +Court of the United States, and under a statute of the United States, +which still covers the condition of the persons brought in. Whether +they are citizens or aliens, nothing has been shown which takes them +out of the general operation of our laws. On the question of the +ingredients of the crime of piracy--which is a particular inquiry, +irrespective of the considerations connected with the state of war--I +do not know that we need refer to anything which is not quite familiar. +The cases referred to by the learned counsel for the prisoners--the +United States _vs._ Jones, the United States _vs._ Palmer, and the +United States _vs._ Tully--contain all the views in reference to the +ingredients of the crime of piracy, or to the construction of the +statutes, that we need to present. In the general elementary books to +which the learned counsel have referred--the various books on the Pleas +of the Crown--there are passages to which we shall have occasion to +refer. + +_Judge Nelson_: The counsel for the Government should give to the +counsel on the other side, before the summing up is commenced, all the +authorities on which they intend to rely. + +_Mr. Evarts_: That we shall do, of course. + +_Judge Nelson_: We will take them now. + +_Mr. Evarts_: I refer to 1st East's Pleas of the Crown, 70-1. + +It is under the title of Treason, but it is on the point of the +character of the crime as qualified by the influence on the party, of +force, or of the state of the population by which the accused was +surrounded. I read from page 70: + + "Joining with rebels freely and voluntarily in any act of rebellion + is levying war against the King; and this, too, though the party + was not privy to their intent. This was holden in the case of the + Earl of Southampton, and again in Purchase's case, in 1710. But yet + it seems necessary, in this case, either that the party joining + with rebels, and ignorant of their intent at the time, should do + some deliberate act towards the execution of their design, or else + should be found to have aided and assisted those who did. * * * But + if the joining with rebels be from fear of present death, and while + the party is under actual force, such fear and compulsion will + excuse him. It is incumbent, however, on the party setting up this + defence, to give satisfactory proof that the compulsion continued + during all the time that he stayed with the rebels." + +The case of Axtell, one of the regicides, is referred to. The defense +was set up for him that he acted by command of his superior officer; +but that was ruled to be no defence. I now read from page 104: + + "One species of treason, namely, that of committing hostilities at + sea, under color of a foreign commission, or any other species of + adherence to the King's enemies there, may be indicted and tried as + piracy, by virtue of the statutes." + +That is, that although being guilty of treason, in its general +character of adhering to the enemy, yet it also falls within the +description of piracy, and may be proceeded against as such. On the +question of the element of force or intimidation as entering into the +crime of robbery, I refer to 1st Hawkins' Pleas of the Crown, page 235: + + "Wherever a person assaults another with such circumstances of + terror as put him into fear, and cause him, by reason of such fear, + to part with his money, the taking thereof is adjudged robbery, + whether there were any weapon drawn, or not, or whether the person + assaulted delivered his money upon the other's command, or + afterwards gave it him upon his ceasing to use force, and begging + an alms; for he was put into fear by his assault, and gives him his + money to get rid of him. + + "But it is not necessary that the fact of actual fear should either + be laid in the indictment or be proved upon the trial; it is + sufficient if the offence be charged to be done _violenter et + contra voluntatem_. And if it appear upon the evidence to have been + attended with those circumstances of violence or terror which in + common experience are likely to induce a man to part with his + property against his consent, either for the safety of his person + or for the preservation of his character and good name, it will + amount to a robbery." + +I refer to Hale's Pleas of the Crown, vol. I., p. 68, on the question +of double or doubtful allegiance: + + "Though there may be due from the same person subordinate + allegiances, which, though they are not without an exception of + the fidelity due to the superior Prince, yet are in their kind + _sacramenta ligea fidelitatis_, or subordinate allegiances, yet + there can not, or at least should not, be two or more co-ordinate + allegiances by one person to several independent or absolute + Princes; for that lawful Prince that hath the prior obligation of + allegiance from his subject can not lose that interest without + his own consent, by his subject's resigning himself to the + subjection of another." + +I refer to the case of the United States _against_ Tully, 1st +Gallison's Reports, p. 253-5, to show that the statute does not, in +terms, require that there shall be any personal violence or putting in +fear to constitute robbery, provided the offence is committed _animo +furandi_. + +I also refer to the case of the United States _vs._ Jones, 3 Washington +C.C.R., p. 219, on the point of the justification given by a +commission; to the case of United States _vs._ Hayward, 2 Gallison, +501; to the observations of Chancellor Kent, vol. I., p. 200, marginal +page 191; to the United States _vs._ Palmer, 3 Wheaton, p. 634, as to +the manner in which our Courts deal with international questions +respecting the recognition of nationalities; to the case of the +Santissima Trinidad, Kent's Commentaries, vol. I., p. 27, marginal page +25; to the case of Rose _vs._ Hinely, 4 Cranch, 241. I refer to the +latter case for the general doctrines therein contained on the +proposition that although a parent or original Government may find the +magnitude and power of the rebellion such as to induce or compel it to +resort to warlike means of suppression, so as that toward neutral +nations there will grow up such a state of authority as will compel the +recognition by neutral nations of the rights of war and belligerents, +that is not inconsistent with or in derogation of the general +proposition that the parent Government still maintains the sovereignty, +and can enforce its municipal laws, by all those sanctions, against its +rebellious subjects. In other words, that the flagrancy of civil war, +which gives rise to the aspect and draws after it the consequences of +war, does not destroy either the duty of allegiance or the power of +punishing any infraction of law which the rebels may be guilty of, +either in reference to the principal crime of treason, or in reference +to any other violation of municipal rights. + +I also ask your honors' attention to a recent charge of Judge Sprague, +to the Grand Jury in the Massachusetts District, in reference to the +crime of piracy. + +On the question of jurisdiction, I refer to the case of the United +States _vs._ Hicks, decided in this Court. + +I refer to the case of the Mariana Flora, to show that the arrest of a +pirate at sea arises under a general principle of the law of nations, +which authorizes either a public or a private vessel to make the +arrest. It is analogous to the common-law arrest of a felon. The point +in the case of the Mariana Flora is, that any public or private vessel +has a right to arrest a piratical vessel at sea and bring it in. It +differs in that respect from the authority to arrest a slaver. + +On the general question of the ingredients of robbery, I refer to +Archbold's Criminal Practice and Pleadings, 2 vol., p. 507, marginal +pages 417, 510, 526. + +In political connections I shall have occasion to refer to the +Constitution of the United States and to the Articles of the +Confederation, to the Virginia and Kentucky resolutions, and the +answers of the other States of the Union, which will be found collected +in Ellett's Debates, vol. 4, pages 528 to 545. + +I may refer also to Mr. Pinckney's speech in the Convention of South +Carolina which adopted the Constitution, same volume, p. 331; to the +formal ratifications of the Constitution by the different States of the +Union, same volume, p. 318; and I may have occasion to refer to Grotius +in connection with the discussion of the general state of war. The +citations will be--book 1st, chap. 1, secs. 1 and 2; chap. 3, secs. 1 +and 4; and chap. 4, sec. 1. + + +MR. LORD'S ARGUMENT. + +_Mr. Lord_, of counsel for the defence, said: + +May it please your honors,--The distribution of duties which counsel +for the defence have made among themselves is, that I shall briefly +present the propositions of law, somewhat irrespective of the wide +political range which my friends seem to think is to be involved. I +shall not pursue even the field which Mr. Larocque has opened, knowing +that he has cultivated it to a far greater degree than I have, and +therefore I will leave it to him to till. My friend, Mr. Brady, will +address the Jury on any questions of fact that may be supposed to be +involved. + +Before I enter upon the discussion, and with the view that this case +may be relieved from one prejudice which probably every man has felt on +first hearing of it, I beg leave to set ourselves all right on the idea +that there is something different in a private armed ship from a public +armed vessel, in the law, and in the view of the people of the country. +I desire to read on that subject a letter from Mr. Marcy to the Count +de Sartiges. + +_Mr. Lord_ read the letter, and continued: + +Therefore in this discussion, so far from a private armed vessel being +regarded with disfavor, it is regarded, and has to be regarded, with +all the favor which would belong to it as a regularly commissioned +cruiser, belonging to the State, and not to the individual. + +I now approach, with all the brevity due to your valuable time, the +question of jurisdiction. It seems to me to be very clear indeed that +after Harleston and the crew, of the Savannah were taken by the Perry, +he was confined as a prisoner, as one of a crew of a piratical vessel, +for an act charged as piratical, on board the United States ship-of-war +Minnesota, by order of its commander. That Harleston was taken by the +said commander into the District of Virginia, within a marine league of +its shores, where the said ship remained; and the said Harleston and +the other prisoners could have been there landed and detained for +trial. If the facts are so, the Circuit Court of this District has no +jurisdiction, and the prisoners should be acquitted. + +The evidence of our friend, Commodore Stringham, on that subject, +leaves us no doubt as to the character of the arrest. After seeing the +Perry close in to Charleston, she having been ordered by him to cruise +further off, and he, wondering what she was doing there--he says: + + "She hailed us and informed us she had captured a piratical vessel. + The vessel was half a mile astern. Captain Parrot, of the Perry, + came and made to me a report of what had taken place. I ordered him + to send the prisoners on board, and I sent a few men on board the + Savannah to take charge of her during the night. The vessels were + then anchored. Next morning I made arrangements to put a prize crew + on board the Savannah and send her to New York, and I directed the + Captain of the Joseph to take passage in her. I took the prisoners + from the Perry, and directed the Perry to proceed," &c. + +Again he testifies: + + "_Q._ What was your object in transferring the prisoners from the + Perry to the Minnesota? + + "_A._ Sending them to a Northern port. The port of New York was the + port I had in my mind to send them to, in the first ship from the + station." + +The prisoners, thus taken from a piratical vessel, he determined to +carry to Norfolk, and to send them thence to the North for trial. + +Now, if your honors please, my learned friend (Mr. Evarts) seems to say +that there is no authority in law for a United States vessel to arrest +pirates at sea; but if you will read the President's proclamation of +19th June you will find that he speaks of dealing with the persons who +may be taken on board private armed ships as pirates. I will then ask +to direct your attention to the Act of 1819 (3d Vol. Statutes, p. 510), +where the President is authorized to employ public armed vessels to +arrest offenders against that law. Therefore the capture of the prize +was not only a part of the general law of nations, but it was +particularly a thing which the commanders of ships of the United States +were charged by the proclamation of the President, and by Act of +Congress, to do. + +I now approach the other question, as to where these prisoners were +apprehended, or into what District they were first brought. That they +were apprehended by a warrant from the United States Commissioner in +New York, is not in dispute. The question, however, is, where they were +first brought. If an officer having them in charge could anchor his +vessel at Baltimore, and then at Philadelphia, and then bring his +prisoners to New York, it would be putting the law entirely in his +hands and dissipating all its force. In ordinary cases of crime the +jurisdiction is local; and that for many reasons. One is, that a man is +to be tried by his peers--meaning those of his own neighborhood,--and +that it is easier to procure evidence at the place where the crime is +committed. The law does not give to any man the power of assigning the +place of trial. In the case of offences committed on the high seas, the +law declares that the accused shall be tried in the District into which +he is first brought. + +Now, that tnese men were held by Capt. Stringham for the purpose of +being tried as pirates, the evidence is clear. They were transferred +from the Perry to the Minnesota, taken to the Norfolk station, and +there kept in irons on board the Minnesota till they were transferred +to the Harriet Lane. Could they have been detained there for trial? It +might be an inconvenience if there was no Court. They might have had to +be detained for a long time, or Congress might pass some law varying +the jurisdiction. But as the law stood, if these men could have been +landed and detained for trial, then that was the District in which they +were necessarily to be tried. Can any one say that it was not as easy +to have landed these men at Fortress Monroe, or at Hampton, as to +transfer them to the Harriet Lane? And could they not have been +detained there? You did not need a Court to detain them. They were +taken by force, and might have been detained in the fortress till a +trial should be had. There was no difficulty in their being landed in +Virginia; and, moreover, there were in Western Virginia loyal Courts, +where they could be tried. + +Now, what is there that takes away the jurisdiction which belongs to +that part of the country and not to this? "Why," says Captain +Stringham, "I wanted to send them to New York." But had he any right to +do so, when he had actually brought them to that station where his ship +belonged, and where he was bound to keep her unless he returned her to +the cruising ground? Remember that his ship remained there some time +before the transfer was made. They were detained as prisoners there, +and might as well have been detained on shore. Therefore, it seems to +me, that unless the capturing officer, and not Congress, has the right +to determine the place where the trial shall be had, these men were to +be tried in the District of Virginia. + +Now, it is no answer to this to say that, where a vessel is sailing +along the shores of a District, a prisoner on board is not brought +there in the proper sense of the word. The ship is not bound to stop +and break up her voyage in order to have the Court designated where he +is to be tried; but where the ship comes into port--where she stops at +a port--I submit to your honors that this is the bringing contemplated +by the statute. + +I now approach, if your honors please, the merits of this case. The +indictment is founded on two sections of the Crimes Act, originally two +separate and very distinct statutes. It is the eighth section which +makes robbery on the high seas piracy. That embraces the first five +counts of the indictment, which are varied in mere circumstances. The +remaining counts rest on the transcript into the legislation of this +country, from the Act of 11 and 12 William III., to the effect, +substantially, that if any citizen of the United States shall, under +color of a commission from any foreign Prince or State, or under +pretence of authority from any other person, commit acts of hostility +against the United States, or the citizens thereof, that shall be +piracy. In the argument which I shall address to your honors I will beg +leave to characterize the first as piracy by the laws of nations, and +the second as statutory piracy. But, before I discuss that subject, +permit me to say that, as to eight of these prisoners, it is conceded +that they do not come under that section, as the evidence for the +prosecution shows that they were not citizens of the United States. So +that, as to these eight, unless they are adjudged pirates under the +eighth section, they must be acquitted, if they can justify themselves +under the commission. + +_Judge Nelson_: Then the other four, you say, can only be convicted +under the ninth section? + +_Mr. Lord_: Yes; that is the statutory process, if I may be permitted +to give it that name. + +The act is charged as an act of robbery, not as an act of treason. It +is not alleged to have been done treasonably. If the prosecution wanted +to give it that character, they must have alleged it to be treason. +They must have alleged that this act, done on the high seas, was done +treasonably, traitorously, and therefore piratically. They have alleged +no such thing. I take pleasure in saying that the District Attorney, in +opening this case, did it with great fairness, and disavowed any idea +of introducing treason into the case. There are many reasons why, if +that were pretended, this whole trial should stop. The requisites of a +prosecution for treason have not been, in any degree, complied with. +The charge is robbery. It may be charged as done piratically, involving +_animus furandi_. Let us see, for an instant, what piratical is. Piracy +is, by all definitions, a crime against all nations. It enters into +every description of a pirate that he is _hostis humani generis_. That +is the common-law idea of piracy. It is not a political heresy that +will make piracy. It is not a political conformity that will always +exempt from the charge of piracy. For instance, if the officer of a +Government vessel, with the most full and complete commission, such as +my friend Commodore Stringham had, should invade a ship at sea, and +should, under pretence of capture, take jewels and secrete them, not +bringing them in for adjudication, he would be a pirate, because, +though he held a commission, he did the act _animo furandi_,--did it +out of the jurisdiction of any particular country,--did it against the +great principles of civilization and humanity. + +Again, if a commissioned vessel hails a private ship, and, on the idea +that she is a subject of prize, captures her, and it turns out that +that capture is illegal and unwarranted, that fact does not make the +act piracy. Although the act might be ever so irregular--although it +might subject the officer to the severest damages for trespass--yet it +is not piratical, and the officer is not to be hung at the yard-arm +because he mistakes a question of law. Your honors therefore see how +utterly it enters into the whole subject that the thing shall be done +_animo furandi_, piratically, as against the general law of nations and +the sense of right of the civilized world. + +Well, now, we are at once struck with this consideration: Suppose the +act is regarded as not piratical by millions of people having civilized +institutions, having Courts of Justice, giving every opportunity for a +trial of the question of forfeiture or no forfeiture--why, it shocks +the moral sense to say that that is done _animo furandi_, that it is a +theft and a robbery, and that the man who does it is an enemy to the +human race. Carry the idea a little further, and you find that the +commission under which a man acts in seizing a vessel with a view of +bringing it in as a prize is regarded by all the great commercial +nations of the world as regular, and that the act is regarded not as a +piratical, but as a belligerent act. Does it not shock the very +elements of justice to have it supposed that in such a case the man +acting under the commission, and within its powers, is to be deemed an +enemy of the whole human race, while all the human race, except the +power which seeks to subject him to punishment, says the act is not +piratical? + +Now, upon this subject my learned friends have cited many authorities, +which all bear on the effect of what should give validity to the +transfer of captured property under the circumstances of rebellions in +States. Now I beg leave, at the outset of the consideration of this +case, to say that the question of passing title to property is a thing +entirely different from the question of hanging a man for committing a +crime. In the first place, look at the numerous acts of trespass which +are committed on the high seas by vessels of every nation. The books +are full of cases of marine trespass, and of damages against captors +for their irregularities; but are the authorities which bear upon that +subject, which is a mere question of property--a question of title--of +the mere transfer of title--are they authorities which decide the +question that a man should be hanged if he mistakes the law, or if he +acts under the impulse of a wrong judgment as to the sovereign which he +should serve? I would call your attention to the case of Klintock, +reported in the 5th of Wheaton, where the Court say that they will not +regard the commission of General Aubrey as sufficient to give title to +the property, "although it might be sufficient to defend him from a +charge of piracy." I also refer to Phillimore on International Law, +vol. 3, p. 319. [Counsel read from the authority.] + +Now, under what circumstances was this done? And in the discussion I +give to this question I am entirely free from the necessity of +considering how the Government of this country shall regard the seceded +States,--as having a Government, or not. I am under the law of nations, +because this act which I am now discussing, of robbery on the high +seas, was evidently a transcript of the law of nations upon the subject +of piracy. What are the undeniable facts?--the facts about which, in +this case, there is not any dispute, either in this country or in the +whole world--about which there is but one opinion--what are they? At +the time the crew of the Savannah shipped for this cruise, and at the +time of the capture of the Joseph, the authorities of the State of +South Carolina (for the State of South Carolina had an organization +from its beginning, as a part of this country, and, as a government, +was well known to the Government of the United States)--the authorities +of the State of South Carolina, where the Savannah was fitted out and +the crew resided, had become parties to a confederation of others of +the United States. Now it is immaterial to me, in the light in which I +view this case, whether that was politically right or not--whether it +was legally right or not--whether this country could look at it as a +source of title to property or not; the fact is there, that a +State--one of the original, recognized States of the Union--united +itself, under an assumption of authority, revolutionary if you please, +with other similar States, and formed a league and a Government. That +fact is undoubtedly so. Under such confederation a Government, in fact, +existed, and exercised, in fact, the powers of civil and military +Government over the territories and peoples of those States, or a +principal part of them. Here we have eleven recognized States, doing, +if you please, an illegal thing, when you come to submit it to the just +principles of law. They form a league,--against an Act of +Congress,--but they do form a league, and do constitute a Government; +and this Government takes possession of a territory of some ten +millions of people, all of whom submit to it. It maintains the +Government in its domestic character of States, and originates a +Government for its foreign relations. It assumes to make war, and +declares war. The President's proclamation says that the said +Confederated States had in fact declared war against the United States +of America, and were openly prosecuting the same with large military +forces, under the military and civil organization of a Government; and +had assumed, and were in the exercise of, the power of issuing +commissions to private armed ships to make captures of the property of +the United States, and the citizens thereof, as prize of war, and to +send them into Court for adjudication as such. Now, all that is beyond +any doubt; and is it possible that it can be contended that an act of +that vast extent, of that wide publicity and great power, should fail +even to justify the killing of a chicken, without charge of petty +larceny? Does it not shock the common sense of mankind that, in the +case of men dwelling there, and acting in subordination to the existing +Government (you cannot say whether voluntarily or not), for every shot +fired and man killed you could have a trial for murder; that for every +horse shot you could have an action of trover; and for every trespass +you could have an action of trespass? This practically shocks us. How +is it in view of the doctrine of _hostis humani generis_? Here are ten +millions of people doing acts which, if done only by three or four, +would be murders and treasons. But justice must be equal. If required +to execute justice upon three or four, you are bound to execute it on +tens of millions? Why, that is the very thing which publicists tell us +constitutes civil war. A civil war is always a rebellion when it +begins. In the first instance it commences with a few individuals,--the +Catalines of the country; but when it gets to be formed, so that a +large force is collected, and, instead of the Courts of Justice before +existing, it substitutes Courts of its own, then comes up the doctrine +of humanity which belongs to the laws of war,--that you can no longer +speak of it as a rebellion. In the judgments of publicists when a +rebellion gets to that head that it represents States, and parts of a +nation, humanity stops the idea of private justice, and it goes upon +the principle of public and international law. That will be found +elaborately stated in Vattel; but I do not intend to trouble you with +any lengthened reading of citations. I refer to the 18th chap. on the +subject of civil war, page 424: + + "When a party is formed in a State, who no longer obey the + sovereign, and are possessed of sufficient force to oppose him; or + when, in a Republic, the nation is divided into two opposite + factions, and both sides take up arms,--this is called a _civil + war_. Some writers confine this term to a just insurrection of the + subjects against their sovereign, to distinguish that lawful + resistance from _rebellion_, which is an open and unjust + resistance. But what appellation will they give to a war which + arises in a Republic torn by two factions, or in a Monarchy, + between two competitors for the crown? Custom appropriates the term + of '_civil war_' to every war between the members of one and the + same political society. If it be between the part of the citizens, + on the one side, and the sovereign, with those who continue in + obedience to him, on the other,--provided the malcontents have any + reason for taking up arms, nothing further is required to entitle + such disturbance to the name of _civil war_, and not _rebellion_. + This latter term is applied only to such an insurrection against + lawful authority as is void of all appearance of justice. The + sovereign, indeed, never fails to bestow the appellation of + _rebels_ on all such of his subjects as openly resist him; but, + when the latter have acquired sufficient strength to give him + effectual opposition, and to oblige him to carry on the war against + them according to the established rules, he must necessarily submit + to the use of the term 'civil war.'" + +The moment the term "civil war" comes up, the idea of punishing, as +rebellion or as piracy, the capture of a vessel, is an abuse of +justice; and it is not only an abuse of justice, but it is an abuse of +the fact, to say that those who are large enough to be a nation are to +be considered as the enemies of all nations, because they undertake to +make civil war. The point is not founded upon any technical +considerations; it is founded upon the great doctrines of humanity and +civilization. Because, what is to be the end of it? If we hang twelve +men, they hang one hundred and fifty-six. If we treat them as rebels, +why they treat our captured forces as these rebels are treated. You +bring on a war without any civilizing rules. You bring in a war of +worse than Indian barbarity. You bring in a war which can know nothing +except bloodshed, in battle or upon the block. This is not a technical +notion. It is that, when civil war is found to exist (and that +altogether comes from the magnitude of the opposition), then the rules +of war apply, as much as in any public war, so far as to protect the +individuals acting under them. What would be said if you should take a +gentleman who was made prisoner at Fort Hatteras, and try him for +treason, and hang him? What would be said in this country, or in +Europe,--what would be said anywhere, in the present or in future +ages,--as to an act like that? Well, why not? Because justice must be +equal. If you do it to one, you must do it to all. If you do it to all, +you carry on an extermination of the human race, against all the +principles which can animate a Court of Justice, or find a seat in the +human bosom. Therefore, if we have the fact of civil war, we have the +rules of war introduced. + +Now, is this a civil war? I do not ask the question of how this country +simply should regard it; but on the question in a Criminal Court, as to +whether a civil war exists so as to give protection to those who act on +one side of it, I have the concurrent judgments of the Courts. Judge +Dunlop, in the case of the Tropic Wind, says there can be no blockade +except in a case of war; that this is a civil war, and therefore there +is a blockade. Judge Cadwalader says this is a civil war, and in civil +war you may make captures; and Judge Betts, in a vastly profitable +judgment, delivered in the other room, confiscating millions of +property of Union men in the South, says that this is civil war. Now, +if the Government of the United States forfeits the property of persons +residing in these seceded States, without the formality of a trial for +treason, because it is simply enemy's property, with what pretence can +they set up the principle that they will not treat them as enemies? +They will treat them as enemies, for the purpose of confiscation, and +not as enemies, but as traitors and pirates, for the purpose of +execution? Why, it is a glaring inconsistency. It strikes us off our +feet as a people fit to be looked at by any impartial or rational +person, in political jurisprudence. + +We submit, therefore, that there was a civil war. Then what was the +taking of the Joseph? I now pass by the Savannah's commission for a +moment. The capture of the Joseph was in this way: The Joseph was +approached by the Savannah, and her Captain ordered on board. I make no +question about its being a taking by force; I make no question but +that, if it was done piratically, there was force enough to make it +piratical. But when asked, Why do you do it? Captain Baker replied, "I +take this by authority of the Confederated States. I am sorry for it; +but you make war upon us, and we have, in retaliation, to make war upon +you." The vessel is taken; nothing is removed from her; and she is sent +in as a prize, and reaches Georgetown. Nothing is then taken from her, +but she is proceeded against in Court, and men are examined there as to +the vessel, just as fairly, and probably just as good men, as have been +examined in the other room. The question is tried. It is an undeniable +case that, if this is a civil war, they having declared war, the vessel +belongs to a belligerent, and she is taken, condemned and sold, +according to the laws which have dominion over that country--a +proceeding (erroneous as it may be in the ultimate object of it) +according to all the course of every civilized country. And yet, we are +told, that is piratical! I submit that this cannot be so. We cannot, +with any approach to consistency, hold that we can treat them both as +enemies and rebels at the same time. Not so. Treat them as rebels, and +confiscate the property by due course of law, and you can get nothing; +because it is a singular thing that in this country there is no such +thing as forfeiture for treason. You cannot forfeit the chattels, but +only the land, and that for life; and as the penalty of treason is +death, leaving no life estate for the forfeiture to act on, there is, +practically, no forfeiture for treason. When these men come and say, we +have taken this property as an enemy, you treat them as rebels. It +seems to me this is indulging a private animosity; it is indulging a +fanatical principle, an unworthy principle, that cannot be carried out +without disregarding the great rules that belong to civilized nations +with regard to war. + +Again, if your honors please, piracy and robbery always have secrecy +about them. The open robber, who meets you in noonday, yet secretes the +plunder. He does not go into a Court of Justice and say, "Behold what I +have taken! here are the jewels, and here the gold; adjudge if they are +lawful prize!" The robber never does that. Here there is nothing secret +or furtive. The vessel and cargo are taken before a Court and +adjudicated to be a prize. Let us take a case which, although unlikely +to happen, might occur. A man goes from seceding Virginia with an +execution to levy upon a man in loyal Virginia. The man there says, +"You are superseded; you have no authority;" and it is tried there. The +Court hold that the execution and levy from the seceded State does not +pass the property; but would it be possible to say, there was anything +furtive in the taking on the part of the officer? There is nothing more +plain, in criminal law, than that, if you act under color of authority, +although you may be ruined by suits in trespass, yet you are not to be +subjected to punishment as having done what was felonious. + +But there is one other consideration which I would present on the +subject of piracy: it is robbery upon the high seas,--an act _hostis +humani generis_. It is made an offence in this country, because it is +an offence against the law of nations; for this is a question on which +civilized nations do not differ. All the nations of Europe look on at +this controversy. Here comes a man that the District Attorney of New +York says is _hostis humani generis_. What says the great commercial +nation of Great Britain? We do not treat you as pirates, but as +belligerents. We do not recognize your independence, because you have +not achieved it; but when the question arises, whether we shall +consider you as pirates, whom we, in common with all other nations, +have a right to take up, we say it is no such thing. Judge Sprague +says, that they say it is no such thing. So, too, with France. Here is +the authority of a great Empire that this is not a piratical but a +belligerent act. And again, Spain reiterates the same decision. Suppose +I could bring the authority of the highest Court in Great Britain that, +just in such a case as this, the Court acquitted a man of piracy; and +suppose I could add to that a similar judgment under the law of France; +and bring a case from the Courts in Spain, deciding the question in the +same way; and so, too, from Holland,--and when I come down to New York, +the District Attorney says the man is _hostis humani generis_! Is it +not absurd? If piracy be a crime against public law, it is so. The +recognition and the application of the doctrines of common humanity to +this great struggle,--that they should be regarded as the determining +point upon this great question--it seems to me your honors will never +hesitate in admitting. I, therefore, present this point, and if your +honors will permit me, after this discursive argumentation, I will read +it as I think it ought to be decided in law: + + "There is evidence that at the time of the crew of the Savannah + shipping for the cruise, and at the time of the capture of the + Joseph, the authorities of the State of South Carolina had become + parties to a confederation of others of the United States of + America, named in the President's proclamation. That under such + confederation a Government, in fact, existed; and exercised, in + fact, the powers of civil and military Government over the + territories and people of those States, or the principal part + thereof. That the said Confederate States had, in fact, declared + war against the United States of America, and were openly + prosecuting the same, with large military forces, and the military + and civil organization of a Government; and had assumed, and were + in the exercise of, the power of issuing commissions to private + armed ships, to make captures of the property of the United States, + and the citizens thereof, as prize of war, and to send them into + port for adjudication as such. And that a civil war thus, in fact, + existed. That the taking of the Joseph was under such authority of + the Confederate States, and in the name of prize of war, and with + the purpose of having the same adjudged by a Prize Court in South + Carolina, or some other of the said Confederate States. And, if the + facts are so found, then the taking of the Joseph was not + piratical, under the eighth section of the Act of 1790, and the + prisoners must be acquitted from the charge under this count." + +Now I approach the case of the commission. I suppose that the District +Attorney, by not proving the commission as a part of the charge, is not +entitled to convict any of these prisoners under the commission which +is shown. He does not prove his case; and it is no matter what we have +proved,--he is not entitled to a conviction under evidence which he +does not bring. + +But now I take up the matter of the commission, and the consideration +of _piracy by statute_, under the 9th section. If your honors please, +it is right that I should give some history of that 9th section's +coming into the law of piracy. The 8th section you will find to be the +law of piracy, by the law of nations. All nations hold that to be +piracy which is there described. But, in the 11th and 12th of William +III., this state of things existed: King James had abdicated the Crown +of England twelve years before; William and Mary reigned together six +years; William survived her. Here, then, was a Government in England, +with a pretender, whom the English Government had declared was an alien +from the Throne; they had banished him. But he was at the Court of St. +Germain, in France; and there, through his instrumentality, privateers +were fitted out against English commerce. Then this Act was enacted +which I will now mention. You find it in _Hawkins' Pleas of the Crown_, +under the title _Piracy_, book I., chap. 37, sec. 7: + + "It being also doubted by many eminent civilians whether, during + the Revolution, the persons who had captured English vessels, by + virtue of commissions granted by James II., at his Court at St. + Germain, after his abdication of the Throne of England, could be + deemed pirates, the grantor still having, as it was contended, the + right of war in him, it is enacted--11 & 12 Wm. III., c. 7, s. + 8--'That if any of His Majesty's natural-born subjects, or denizens + of this Kingdom, shall commit any piracy or robbery, or any act of + hostility against others, His Majesty's subjects, upon the sea, + under color of any commission from any foreign Prince or State, or + pretence of authority from any person whatsoever, such offender or + offenders, and every of them, shall be deemed, adjudged, and taken + to be pirates, felons, and robbers; and they, and every of them, + being duly convicted thereof, according to this Act, or the + aforesaid statute of King Henry VIII., shall have and suffer such + pains of death, loss of lands, goods, and chattels, as pirates, + felons, and robbers upon the seas ought to have and suffer.'" + +When an Act of Congress, declaring the crime of piracy, was enacted, in +1790, it is perfectly apparent that those who drew up the Act were +acquainted with _Hawkins' Pleas_, containing the 8th section, which is +the recognized law of piracy by all nations, and from that book, then, +took in this 9th section; because there was no exigency in our +Government to call for it, and no reason for its introduction, except +that it was found in a book familiar to those who were legislating for +this country. In regard to the Act, there are some peculiarities which +are very striking, and which bear strongly on this subject. The first +is the fact that a commission, although from a foreign State, taken by +a British subject or denizen of England, and committed against British +commerce, protected the party against the charge of piracy,--because +the thing was taken as prize, and for adjudication according to the +principles of the laws of nations, for which national action the nation +which took it was responsible. But, in the case and condition of James +II., the English declared that he was no longer of England,--they +declared him fallen from the Crown, and a foreigner. He had no +dominions, and no place where the poor man could hold a Prize Court; +and, if he could authorize a capture, there was no Court to adjudicate +upon it; there was no sovereign to be responsible for the action of the +Prize Court. He was a King without responsibility, and without the +power of having Courts of Adjudication; and it was a necessity arising +in the history of English law that that kind of action should be +treated as piratical. The English adopted that, therefore, as the +statute piracy. I refer your honors to Phillimore's International Law +(vol. III., page 398), where all the discussion and reasons are +contained; and they all are reasons applicable to a Prince without +dominions, without Courts, without a country; and to a foreign Prince, +in regard to English property and English subjects. + +Now, then, let us see how these men stand. Under the 8th section, those +men who were not citizens of the United States, are, of course, +protected by a commission from a Government _de facto_. Their taking +was not _animo furandi_, because there was a commission. The very +enactment of the statute of William III. was upon the basis that it was +not piracy where there was a commission, even of this questionable +sort. + +I say, then, in my third point, that if the facts are found as supposed +in the preceding point, and if it also appears that the commission from +the Confederated States, or the President thereof, had been issued for +the Savannah, and that the capture was made under color thereof, then, +as to the prisoners shown not to be citizens of the United States, the +taking of the Joseph was not piratical under the eighth section of the +Act of 1790,--_first_, because it was under color of authority; nor, +_second_, was it piratical under the ninth section, because that only +applies to citizens of the United States; and the prisoners, Del Carno, +&c., must be acquitted under the ninth as well as under the eighth +section. + +But now we come to the American citizens who took that commission, and +we are to see with some accuracy how the case stands as to them,--which +involves two questions: One is, what kind of "other person" is embraced +in that law? And the other is, whether this indictment is supported as +under a commission from any _person_ whatever? Let me call your +attention to the form of the indictment in this last count of the +declaration. They all run in this way: that these persons, "being +citizens, did, _on pretence of authority from a person, to wit, one +Jefferson Davis_," &c. That is all that is said as to the pretence. Now +there is no lack of skill in this indictment. The pleader under this +indictment was surrounded with difficulties very grave indeed. He had +the commission. If he had described it as a commission from certain +foreign States, namely, South Carolina, Georgia, &c., the Government +would have recognized the existence of those States in the most formal +manner and by action of the most formal kind. If he said "Jefferson +Davis, President of certain Confederate States," that would be simply +that the pretence of authority was a pretence of authority from those +States, and the same consequence would result. Well, what could he do? +The only way in which he could make this stand at all was by saying +that it is an authority from Jefferson Davis, as an individual. That is +the meaning of this allegation. + +Now, then, under the facts already stated, including now the commission +and the action under it, the taking of the Joseph was not piratical, +under the ninth section, because the commission was from the +Confederate States, and not from "a person, to wit, one Jefferson +Davis," as described in the indictment. Now that leads me to a +consideration of this commission. We had something a little like it +here yesterday, when the warrant issued by Mr. Buchanan Henry was given +in evidence for the arrest of these men. I suppose I would be charged +with ridicule in the last degree if I said they were arrested by the +authority of Buchanan Henry, or under pretence of authority from +Buchanan Henry; yet the warrant ran in the name of Buchanan Henry. Now +let us see whether this commission supports the allegation of its being +a commission from a private person. The allegation is, that the capture +was made under pretence of authority from one Jefferson Davis. The +commission runs just as the President's commission to your honors: + + "JEFFERSON DAVIS, + + "PRESIDENT OF THE CONFEDERATE STATES OF AMERICA. + + _"To all who shall see these presents, greeting:_--Know ye, that by + virtue of the power vested in me by law, I have commissioned, and + do hereby commission, have authorized, and do hereby authorize, the + schooner or vessel called the Savannah (more particularly described + in the schedule hereunto annexed), whereof T. Harrison Baker is + commander, to act as a private armed vessel in the service of the + Confederate States, on the high seas, against the United States of + America, their ships, vessels, goods, and effects, and those of her + citizens, during the pendency of the war now existing between the + said Confederate States and the said United States. + + "This commission to continue in force until revoked by the + President of the Confederate States for the time being. + + "Schedule of description of the vessel:--Name, Schooner Savannah; + tonnage, 53-41/95 tons; armament, one large pivot gun and small + arms; number of crew, thirty. + + "Given under my hand and the seal of the Confederate States, at + Montgomery, this 18th day of May, A.D. 1861. + + "JEFFERSON DAVIS. + + "By the President--R. TOOMBS, Secretary of State." + +Now I submit that, if they had framed an indictment for taking a +commission under the King of England, and it had been under the +Government of England as a foreign State, without naming the +individual, such a commission as this would sustain it. If they had +indicted as taking a commission out under any foreign State or nation, +a commission in this way would have sustained that indictment; because +the officer is merely the authenticator of the instrument; the +authority is not his,--it is not under his authority; he is the mere +ministerial officer, in fact, of the Government. + +Now I submit, that this taking cannot be held piratical, under the +ninth section, on this indictment; because it was a taking, not on +pretence of authority from Jefferson Davis, but under authority of the +Confederate States, exercised by Jefferson Davis. And, in a case of +this kind, I must say that I consider it will prove the greatest +Godsend to the Government, and to the prisoners on both sides who now +anxiously await the result, if, without touching the other questions, +this indictment shall fall to the ground on a mere technical point. + +That is one reason. Another reason is this: The Act is for taking +vessels under a commission from any foreign Prince or State, or on +pretence of authority from any person. Now what is a foreign Prince or +a foreign State? If your honors please, at the time this Act was +enacted, within some three years of the United States coming together, +is it conceivable that the thought entered into the heart of any man +who had anything to do with it that it was to take effect against any +man acting under the authority of any of the States of this Union? The +States all were authorized, under certain circumstances, to have +ships-of-war and to have armies. There was no telling what collision +there might be; and the idea that this Act, almost a literal transcript +from the English statute of 11 and 12 William III., contemplated that +punishment for acting under the authority of domestic persons, is +inconceivable. + +In construing an Act so highly penal as this we must be very sure that +we are not only within the letter, but within the very spirit and +contemplation, of the Act; and can you think that the framers of this +Government gravely provided for the offence of taking a commission +under some of the persons acting as Governor, or in connection with the +domestic institutions of this country? I submit that the Act was +intended to operate against foreign States and nations, and a foreign +person; and it is inconceivable that the Act should have been +contemplated to embrace any such thing as is now brought up. I submit, +therefore, as the third of my specifications under this point, that +Jefferson Davis was not a foreign person, nor assuming the authority of +a foreign Prince or Ruler. The statute was one against commissions +under foreign authority of some kind or other, either Prince, or State, +or person. + +But I now draw your attention to another feature of the statute, which +seems to me equally decisive. This statute is transmitted to us from +England, and that which was the design and exigency of its adoption +there is to bear with great, if not decisive, force, upon its +construction here. We took it because they had it, and we took it, +therefore, for reasons similar to theirs. Now what was the real +difficulty there? It was this: that a Prince without dominion, a Prince +having no Government _de facto_, a mere nominal Prince, undertook to +issue commissions throughout the world against British commerce. Evils +that are very manifest and plain, in regard to the law of prizes, apply +to that case. The prizes could not be adjudicated in his Courts; he had +none. This was an enactment against Princes who had abdicated and were +without dominion. Such things were common, as well in the time of +William III. as since. Abdicated Princes very soon turn to be robbers, +whose only object is to get re-established, and they are not scrupulous +as to means. They stand as mere fictions, undertaking to exercise +authority, with none of the responsibilities which belong to Rulers. +How different it is with this Jefferson Davis! I speak now in no degree +of his merits, or as lessening that feeling which my fellow-citizens +and I share alike upon the subject of this rebellion. But here is a +man, not a nominal Prince or Ruler, but he is (if you please without +right) Ruler of ten millions of people. Is this Act, which is intended +to meet the case of a man without people, or dominion, or +force--without any thing but the name and claim of Ruler--to be applied +to a man who represents (rightfully or wrongfully) a large fraction of +a great nation? To say that every man who takes a commission (applying +as well to civil as to military commissions), that any man who takes a +commission, from him, is either a robber or a pirate--if on land, a +robber, if on sea, a pirate--is unjust and unreasonable--contrary to +every principle that governs the laws of nations. Patriotic +vituperation may go far--patriotic spirit and feeling may go far--but +there is a limit to every thing that is real. The human mind, as it +seems to me, and the human heart, cannot go to the extent of the +doctrine that they can be treated as robbers who act under a Government +extending _de facto_ so far and doing _de facto_ so many things +throughout upon the principles of civilized warfare, and having a vast +territory, and vast numbers of people acting as it dictates. It is +perverting the law of piracy to apply it to a case so entirely +different. + +Now it comes back to the fact that this "pretence of authority" was the +authority of all those States. Those States, when they come back to the +Union, if they ever do, will come back with all their powers as +original States. The Confederation you may call illegal and improper, +but it is a Confederation _de facto_; its right may be questioned, but +it is a _de facto_ Government, with this gentleman presiding over it, +and performing the duties which, as the Ruler of a great nation, +devolve upon him--bringing out armies by hundreds of thousands, +bringing out treasures by the million,--and yet you are to say it has +no color of authority. It is idle, it seems to me, to say that a man +situated as Jefferson Davis is was intended by a law against a mere +nominal Prince. I submit that because Jefferson Davis was actually the +Chief of a Confederation of States, not foreign, exercising actual +power and government over large territories, with a large population, +under an organized Government, having Courts within its territories for +the adjudication of captures,--that upon each of these grounds +Harleston, as well as the others who are citizens, should be acquitted +under the 9th section. + +That is all the argument which I address particularly; and I beg leave +to read two or three general propositions on the construction of the +law in this matter: + + I.--The recognition, by the great commercial nations of the world, of +the Confederate States as belligerents, and not pirates and robbers, +prevents the captures under authority from being held piratical under +the law of nations. + +II.--1. The ninth section of the Act of 1790 has not in view any +application to the States then recently united as the United States of +America, or to the persons having authority _de facto_ in them. + +2. That section had in view foreign Princes and States, and foreign +authority only. + +3. The authority from any person in that section has reference to +persons without the possession, in fact, of territory. + +If your honors please, I have endeavored, so far as it was possible, to +abbreviate what I have had to say on this subject. It is a very +interesting one, undoubtedly, not only to the legal student, but to all +persons in the country. This war is a war to reclaim those States. To +attempt to reclaim them by prosecutions for piracy, or by acts of +hostility which disregard them as having any form of society,--it seems +to me that no national evil could be greater. The idea that in a +commercial city it is very offensive that there should be privateers, +is a trifle. The navy can regulate that. Let them look more to the +privateers that want to get out than to the prizes that want to come +in, and that will be provided for. We need not violate principles of +law, or of humanity, or the common sense of the world, to produce an +effect of that kind. We need to show that, in the midst of all this +excitement and outcry against piracy--in the midst of a press that +never names any of these people without calling them "pirates"--the men +brought in always in chains, for the purpose of exciting public +indignation against them and preventing their being treated as men of +common rights and common interests with us--all which is very +humiliating, it seems to me--in a Court of Justice no such feelings +will be succumbed to. + +Certain I am that, where I stand, no such principles will be put in +use. Justice will come--severe and stern, it may be--but it will be +justice, with truth, and reason, and humanity, and political tenderness +accompanying all its acts and all its judgments. + +_Mr. Larocque_: If the Court please, I had hoped to be saved the +necessity of addressing your honors upon these propositions of law; +but, in the distribution that has been made among the counsel, it has +fallen to my lot to present the propositions in reference to which my +opening was made, yesterday, to the Jury, and which will be adverted to +by the counsel who, on our side, will close the case; and, simply, +without detaining your honors, at this late hour, with any remarks upon +them further than the reading of some extracts from authorities I have +collected, I will present the propositions, leaving them to the action +of your honors, and to the remarks of my associate, who will close this +case, after we have ascertained the direction it will take before the +Jury. + +The first proposition I had stated, with reference to jurisdiction: +"That the defendants, after their capture and confinement as criminals, +for the acts charged in this indictment, having been taken within the +District of Virginia, on board the vessel on which they were so +confined before being brought within the Southern District of New York, +cannot be convicted under this indictment." + +In reference to that, there are a number of additional authorities that +I will furnish to your honors. In the case of the _United States_ vs. +_Charles A. Greiner_, tried before Judge Cadwalader, in the +Philadelphia District, the defendant had been arrested under a charge +of treason committed in Georgia. It seems to have been understood, by +the learned counsel on the other side, that the question of +jurisdiction may be influenced by the fact of whether there was any +possibility of these prisoners being tried in Virginia or not; and it +is in reference to that point that I cite this case. Judge Cadwalader +says: + + "The questions in this case are more important than difficult. On + the 2d of January last an artillery company of the State of + Georgia, mustered in military array, took Fort Pulaski, in that + State, from the possession of the United States, without + encountering any forcible resistance. They garrisoned the post for + some time, and left it in the possession of the government of the + State. The accused, a native of Philadelphia, where he has many + connections, resides in Georgia. He was a member of this artillery + company when it occupied the fort, and, for aught that appears, may + still be one of its members. He was not its commander. Whether he + had any rank in it, or was only a private soldier, does not appear, + and is, I think, unimportant. He is charged with treason in levying + war against the United States. The overt act alleged is, that he + participated, as one of this military company, in the capture of + the fort, and in its detention until it was handed over to the + permanent occupation of the authorities of the State. + + "The primary question is whether, if his guilt has been + sufficiently proved, I can commit him for trial, detain him in + custody, or hold him to bail to answer the charge. The objection to + my doing so is, that the offence was committed in the State of + Georgia, where a Court of the United States cannot, at present, be + held, and where, as the District Attorney admits, a _speedy_ trial + cannot be had. The truth of this admission is of public notoriety. + + "The Constitution of the United States provides that in all + criminal prosecutions the accused shall enjoy the right to a + _speedy_ trial by a Jury of the _State and District_ wherein the + crime shall have been committed. The only statute which, if the + Courts of the United States for the State of Georgia were open, + would authorize me to do more than hold this party to security of + the peace, and for good behavior, is the 33d section of the + Judiciary Act of the 24th September, 1789. That section, after + authorizing commitments, &c., for trial, before any Court of the + United States having cognizance of the offence, provides that if + the commitment is in a District other than that in which the + offence is to be tried, it shall be the duty of the Judge of the + District where the delinquent is imprisoned _seasonably_ to issue, + and of the Marshal of the same District to execute, a warrant for + the removal of the offender to the District in which the trial is + to be had. The District Attorney of the United States does not ask + me to issue such a warrant for this party's removal to Georgia for + trial. Therefore I can do nothing under this Act of Congress. It + does not authorize me to detain him in custody to abide the + ultimate result of possible future hostilities in Georgia, or to + hold him to bail for trial in a Court there, of which the sessions + have been interrupted, and are indefinitely postponed." + +In reference to the counts of the indictment founded upon the 8th +section of the Act of 1790 and the Act of 1820, the propositions I have +are these: + +"_Second_, That to convict the defendants, under either of the first +five counts of the indictment, the Jury must have such evidence as +would warrant a conviction for robbery if the acts proved had been +performed on land. + +"_Third_, That the defendants cannot be convicted of robbery, in the +capture of the Joseph, unless she was taken with a piratical and +felonious intent. + +"_Fourth_, That if the defendants, at the time of her capture, were +acting under the commission in evidence, and, in good faith, believed +that such commission authorized her capture, they did not act with a +piratical or felonious intent, and cannot be convicted under either of +the first five counts in the indictment." + +There are one or two authorities I did not state yesterday, which I beg +now to furnish, as some additional authorities have been handed up on +the other side: + +The Josefa Segunda, 5 Wheaton, 357. In this case Judge Livingston says: + + "Was the General Arismendi a piratical cruiser? The Court thinks + not. Among the exhibits is a copy of a commission, which is all + that in such a case can be expected, which appears to have been + issued under the authority of the Government of Venezuela. This + Republic is composed of the inhabitants of a portion of the + dominions of Spain, in South America, which have been for some + time, and still are, maintaining a contest for independence with + the mother country. Although not acknowledged by our Government as + an independent nation, it is well known that open war exists + between them and His Catholic Majesty, in which the United States + maintain strict neutrality. In this state of things, this Court + cannot but respect the belligerent rights of both parties, and does + not treat as pirates the cruisers of either so long as they act + under and within the scope of their respective commissions." + +In the _United States_ vs. _The Brig Malek Adhel_ (2 Howard's U.S. Rep. +211), as to the Act of 1819, Judge Story (page 232) says: + + "Where the Act uses the word piratical, it does so in a general + sense,--importing that the aggression is unauthorized by the law of + nations, hostile in its character, wanton and cruel in its + commission, and _utterly without any sanction from any public + authority or sovereign power. In short, it means that the act + belongs to the class of offences which pirates are in the habit of + perpetrating, whether they do it for purposes of plunder, or + purposes of hatred, revenge, or wanton abuse of power. A pirate is + deemed--and properly deemed_--HOSTIS HUMANI GENERIS. But why is he + so deemed? _Because he commits hostilities upon the subjects and + property of any or all nations, without any regard to right or + duty, or any pretence of public authority._ If he willfully sinks + or destroys an innocent merchant ship, without any other object + than to gratify his lawless appetite for mischief, it is just as + much piratical aggression, in the sense of the law of nations, and + of the Act of Congress, as if he did it solely and exclusively for + the sake of plunder, _lucri causâ_. The law looks to it as an act + of hostility; and, being committed by a vessel not commissioned and + engaged in lawful warfare, it treats it as the act of a pirate, and + one who is emphatically _hostis humani generis_." + +Then upon the question that this commission is only by color of +authority from an unrecognized power, and that the authority to grant +such a commission is disputed, I refer to the case of _Davison_ vs. +_Certain Seal Skins_ (2 Paine's C.C.R. 332), which was a case of +salvage of property after a piracy alleged to have been committed by +Louis Vernet, at Port St. Louis, in the Eastern Falkland Islands, by +taking them from a vessel,--he wrongfully and unlawfully claiming and +pretending to be Governor of the Islands, under Buenos Ayres. The Court +says: + + "Robbery on the high seas is understood to be piracy by our law. + The taking must be _felonious_. A commissioned cruiser, by + exceeding his authority, is not thereby to be considered a pirate. + It may be a marine trespass, but not an act of piracy, _if the + vessel is taken as a prize_, unless taken feloniously, and with + intent to commit a robbery: the _quo animo_ may be inquired into. + _A pirate is one who acts solely on his own authority, without any + commission or authority from a sovereign State_, seizing by force + and appropriating to himself, without discrimination, every vessel + he meets with; and hence pirates have always been compared to + robbers. The only difference between them is that the sea is the + theatre of action for the one, and the land for the other." + +By referring to this case, pp. 334, 335, your honors will find that +Buenos Ayres had no lawful jurisdiction over the islands, and that our +Executive Government had so decided; but Buenos Ayres avowed the acts +of those claiming to act under her authority, and our Government +discharged the prisoners who had been captured as pirates, disclaiming, +under those circumstances, to hold them personally criminally +responsible. + +The next proposition which I state is this: "That, by the public law of +the world, the law of nations, and the laws of war, the commission in +evidence, supported by the proof in the case as to the color of +authority under which it was issued, would afford adequate protection +to the defendants against a conviction for piracy; and being an +authority emanating neither from a foreign Prince nor foreign State, +nor from a person merely, the offence charged in the last five counts +of the indictment, is not within the purview of the 9th section of the +Act of 1790, and the defendants cannot be convicted under either of +those counts, if they acted in good faith under that commission." + +I refer your honors to the case of the _Santissima Trinidad_, 7 +Wheaton, 283, to the opinion of Judge Story, in which he says: + + "There is another objection urged against the admission of this + vessel to the privileges and immunities of a public ship, which may + as well be disposed of in connection with the question already + considered. It is, that Buenos Ayres has not yet been acknowledged + as a sovereign independent Government, by the Executive or + Legislature of the United States, and therefore is not entitled to + have her ships-of-war recognized by our Courts as national ships. + We have, in former cases, had occasion to express our opinion on + this point. The Government of the United States has recognized the + existence of a civil war between Spain and her Colonies, and has + avowed a determination to remain neutral between the parties, and + to allow to each the same rights of asylum, and hospitality, and + intercourse. Each party is, therefore, deemed by us a belligerent + nation, having, so far as concerns us, the sovereign rights of war, + and entitled to be respected in the exercise of those rights. We + cannot interfere to the prejudice of either belligerent, without + making ourselves a party to the contest and departing from the + posture of neutrality. All captures made by each must be considered + as having the same validity; and all the immunities which may be + claimed by public ships in our ports, under the laws of nations, + must be considered as equally the right of each, and as such must + be recognized by our Courts of Justice, until Congress shall + prescribe a different rule. This is the doctrine heretofore + asserted by this Court, and we see no reason to depart from it." + +Your honors, by referring to the case of The Bello Corunnes, 6 Wheaton, +152, will see the doctrine laid down distinctly, that acts may be +piratical for all civil purposes which would not authorize the +conviction of the perpetrators criminally as pirates; _e.g._, a citizen +of the United States, taking from a State at war with Spain a +commission to cruise against that power, contrary to the 14th art. of +the Spanish Treaty;--and the Court held, in that case, that that would +involve the consequences of a piracy, for the purpose of condemnation +of property; but it would not be criminal piracy, under either the law +of nations or of the United States. + +On the general subject of privateers I had a reference to Vattel, but I +do not think it necessary to read it, because the authorities on that +subject cover it so fully. + +I come now, if your honors please, to what my learned friend, when he +addressed the Court on the part of the Government, has been pleased to +call the political part of this case; and I have distinctly stated in +my propositions what I contended for on that subject. In the first +place, that the Federal Executive Government, and the executive +governments of the States, under the Constitution of the United States, +each possess the jurisdiction to decide whether their respective acts +are within or exceed the limits of their respective constitutional +powers, in cases of collision between them in their administrative +acts, operating upon the public domain, or upon the State, or its +citizens as a body politic. + +I shall, without stopping for any discussion, simply state the +subordinate propositions by which I think that is established, and give +a reference to the authorities. I say, in the first place, as I said to +the Jury, that citizens of the United States owe a divided allegiance, +partly to the United States and partly to their respective States. They +can commit treason against either; for the State constitutions and laws +define and punish treason against the States, as the Constitution of +the United States does treason against them. + +The Federal and State Governments are each supreme and sovereign within +the limits of their respective jurisdictions under the Federal and +State Constitutions; each operates directly upon the citizen, and each +also operates as a check and restriction upon the other, and upon the +encroachments of the other, in seeking to extend beyond legitimate +limits its jurisdiction over the citizen, or over the public domain +common to both. Now, if your honors please, in regard to that, I will +very briefly refer you to what I rely upon. I refer, in the first +place, to sections 2 and 3, of Article 6th, of the Constitution of the +United States. + + "_Sec. 2._ This Constitution, and the laws of the United States, + _which shall be made in pursuance thereof_, and all treaties made, + or which shall be made, under the authority of the United States, + shall be the supreme law of the land; and the Judges in every State + shall be bound thereby, anything in the constitution or laws of any + State to the contrary notwithstanding. + + "_Sec. 3._ The Senators and Representatives before mentioned, and + the members of the several State Legislatures, and all executive + and judicial officers, both of the United States and of the several + States, shall be bound by oath or affirmation to support this + Constitution; but no religious test shall ever be required as a + qualification to any office or public trust under the United + States." + +In the amendments to the Constitution of the United States, Articles 9 +and 10, we find this language: + + "The enumeration in the Constitution of certain rights, shall not + be construed to deny or disparage others retained by the people. + The powers not delegated to the United States by the Constitution, + nor prohibited by it to the States, are reserved to the States + respectively, or to the people." + +I refer to the case of McCulloch _vs._ The State of Maryland, 4 +Wheaton, p. 400, in which the opinion was delivered by Chief Justice +Marshall. He says: + + "No political dreamer was ever wild enough to think of breaking + down the lines which separate the States, and of compounding the + American people into one common mass." + + I cite particularly from pp. 402 and 410. On page 410 his language + is as follows: + + "In America, the powers of sovereignty are divided between the + Government of the Union and those of the States. _They are each + sovereign with respect to the objects committed to it, and neither + sovereign with respect to the objects committed to the other._ We + cannot comprehend that train of reasoning which would maintain that + the extent of power granted by the people is to be ascertained, not + by the nature and terms of the grant, but by its date. Some State + constitutions were formed before, some since, that of the United + States. We cannot believe that their relation to each other is in + any degree dependent upon this circumstance. Their respective + powers must, we think, be precisely the same as if they had been + formed at the same time." + +The next I refer to is the case of _Rhode Island_ agst. _Massachusetts_, +12 Peters, 889, where Judge Baldwin says: + + "Before we can proceed in this cause, we must, therefore, inquire + whether we can hear and determine the matters in controversy + between the parties, who are two States of this Union, _sovereign + within their respective boundaries, save that portion of power + which they have granted to the Federal Government, and foreign to + each other for all but federal purposes_." + +I now refer to the case of _Livingston_ vs. _Van Ingen_, 9 Johnson, +574, where Chancellor Kent reasons thus: + + "When the people create a single entire Government, they grant at + once all the rights of sovereignty. The powers granted are + indefinite and incapable of enumeration. Every thing is granted + that is not expressly reserved in the constitutional charter, or + necessarily retained as inherent in the people. _But when a Federal + Government is erected with only a portion of the sovereign power, + the rule of construction is directly the reverse, and every power + is reserved to the members that is not, either in express terms or + by necessary implication, taken away from them and rested + exclusively in the Federal Head._" + + "This rule has not only been acknowledged by the most intelligent + friends to the Constitution, but is plainly declared by the + instrument itself. This principle might be illustrated by other + instances of grants of power to Congress, with a prohibition to the + States from exercising the like powers; but it becomes unnecessary + to enlarge upon so plain a proposition, as it is removed beyond all + doubt by the 10th article of the amendments to the Constitution. + That article declares that 'the powers not delegated to the United + States by the Constitution, nor prohibited by it to the States, are + reserved to the States respectively, or to the people.' The + ratification of the Constitution by the Convention of this State + was made with the explanation and understanding that 'every power, + jurisdiction and right which was not clearly delegated to the + General Government remained to the people of the several States, or + to their respective State governments.' There was a similar + provision in the articles of Confederation, and the principle + results from the very nature of the Federal Government, which + consists only of a defined portion of the undefined mass of + sovereignty vested in the several members of the Union. There may + be inconveniences, but generally there will be no serious + difficulty, and there cannot well be any interruption of the public + peace in the concurrent exercise of those powers. _The powers of + the two Governments are each supreme within their respective + constitutional spheres. They may each operate with full effect upon + different subjects, or they may, as in the case of taxation, + operate upon different parts of the same subject._" + +I now refer to the Massachusetts Bill of Rights of 1780, art. 4. It +reads: + + "The people of this Commonwealth have the sole and exclusive right + of governing themselves as a free, sovereign and independent State; + and do, and forever hereafter shall, exercise and enjoy every + power, jurisdiction and right, which is not, or may not hereafter + be, by them expressly delegated to the United States of America, in + Congress assembled." + +I also refer to the New Hampshire Bill of Rights, of September, 1792: + + "ART. 7. The people of this State have the sole and exclusive right + of governing themselves as a free, sovereign and independent State; + and do, and forever hereafter shall, exercise and enjoy every + power, jurisdiction and right pertaining thereto, which is not, or + may not hereafter be by them expressly delegated to the United + States of America, in Congress assembled." + +I next beg leave to refer your honors to No. 32 of the Federalist, by +Hamilton, who says: + + "An entire consolidation of the States into one complete national + sovereignty would imply an entire subordination of the parts, and + whatever power might remain in them would be altogether dependent + on the general will. But as the plan of the Convention aims only at + a partial union or consolidation, _the State governments would + clearly retain all the rights of sovereignty which they before had, + and which were not by that act exclusively delegated to the United + States_." + +Also, to the Federalist, No. 39, by Madison, in which he says: + + "The difference between a Federal and National Government, as it + relates to the operation of the Government, is, by the adversaries + of the plan of the Convention, supposed to consist in this, that in + the former the powers operate upon the political bodies composing + the Confederacy in their political capacities; in the latter, on + the individual citizens composing the nation in their individual + capacities. On trying the Constitution by this criterion, it falls + under the national and not the federal character, though perhaps + not so completely as has been understood. In several cases, and + particularly in the trial of controversies to which States may be + parties, they must be viewed and proceeded against in their + collective and political capacities only. But the operation of the + Government on the people in their individual capacities, in its + ordinary and most essential proceedings, will, on the whole, in the + sense of its opponents, designate it, in this relation, a National + Government. + + "But if the Government be national with regard to the operation of + its powers, it changes its aspect again when we contemplate it with + regard to the extent of its powers. The idea of a National + Government involves in it not only an authority over the individual + citizens, but an indefinite supremacy over all persons and things, + so far as they are objects of lawful government. Among a people + consolidated into one nation, this supremacy is completely vested + in the National Legislature. Among communities united for political + purposes, it is vested partly in the general and partly in the + municipal Legislatures. In the former case all local authorities + are subordinate to the supreme, and may be controlled, directed or + abolished by it at pleasure. _In the latter the local or municipal + authorities form_ DISTINCT AND INDEPENDENT PORTIONS OF THE + SUPREMACY, _no more subject, within their respective spheres, to + the general authority, than the general authority is subject to + them within its own sphere. In this relation, then, the proposed + Government cannot be deemed a national one, since its jurisdiction + extends to certain enumerated objects only, and leaves to the + several States a residuary and_ INVIOLABLE _sovereignty over all + other objects._ It is true that, in controversies relating to the + boundary line between the two jurisdictions, the tribunal which is + ultimately to decide is to be established under the General + Government. But this does not change the principle of the case. The + decision is to be impartially made according to the rules of the + Constitution; and all the usual and most effectual precautions are + taken to secure this impartiality. _Some such tribunal is clearly + essential to prevent an appeal to the sword and a dissolution of + the compact_; and that it ought to be established under the general + rather than the local Governments, or, to speak more properly, that + it could be safely established under the first alone, is a position + not likely to be combated." + +I will refer, also, to the letter of Gov. Seward, written to Gov. +Gilmore, of Virginia, October 24th, 1839, taken from the Assembly +Journal, 63d Sess., 1840, p. 55. That distinguished public man says: + + "You very justly observe, 'that neither the Government nor the + citizens of any other country can rightfully interfere with the + municipal regulations of any country in any way;' and in support of + this position you introduce the following extract from Vattel's Law + of Nations, 'that all have a right to be governed as they think + proper, and that no State has the smallest right to interfere in + the government of another. Of all the rights that belong to a + nation, sovereignty is doubtless the most precious, and that which + other nations ought the most scrupulously to respect if they would + not do her an injury.' + + "It might, perhaps, be inferred, from the earnestness with which + these principles are pressed in your communication, that they have + been controverted on my part. Permit me, therefore, to bring again + before you the following distinct admissions: 'I do not question + the constitutional right of a State to make such a penal code as it + shall deem necessary or expedient; nor do I claim that citizens of + other States shall be exempted from arrest, trial and punishment in + the State adopting such code, however different its enactments may + be from those existing in their own State.' Thus you will perceive + that I have admitted the sovereignty of the several States upon + which you so strenuously insist. To prevent, however, all possible + misconstruction upon this subject, I beg leave to add that no + person can maintain more firmly than I do the principle that the + States are sovereign and independent in regard to all matters + except those in relation to which sovereignty is expressly, or by + necessary implication, transferred to the Federal Government by the + Constitution of the United States. I have at least believed that my + non-compliance with the requisition made upon me in the present + case would be regarded as maintaining the equal sovereignty and + independence of this State, and by necessary consequence, those of + all the other States." + +I contend, then, that the people of the several States, in forming +the State governments, have surrendered to the latter supreme and +sovereign jurisdiction over all questions affecting the State, or its +citizens as a body politic, not included in the grant of power to the +General Government by the Federal Constitution. This surrender +necessarily includes the power and jurisdiction to determine, +co-ordinately with the Federal Government, whether the Federal +Executive Government is acting within or transgressing the limits of +its legitimate authority in any case affecting the State as such, or +its citizens as a body politic, when the question is not one of the +validity or constitutionality of a law of the United States, +operating directly upon individual citizens, and conformity to which +is to be enforced or resisted by suit or defence in the Federal or +State Courts, with the right of ultimate appeal, in either case, to +the Supreme Court of the United States; but, on the contrary, brings +into collision the Federal and State Executive Departments of the +Government, in the exercise of powers which, from their very nature +and the mode in which they are exerted, never can be presented for +the determination of a Court. + +And with regard to that proposition I would cite Vattel, Book I., +chap. 1, sec. 2, upon the proposition that jurisdiction to determine +such a mixed question of law and fact has been ceded equally to the +State as to the Federal Government. Vattel says: + + "It is evident that, by the very act of the civil or political + association, each citizen subjects himself to the authority of the + entire body in everything that relates to the common welfare. The + authority of all over each member therefore essentially belongs to + the body politic or State; but the exercise of that authority may + be placed in different hands, according as the society may have + ordained." + +I refer, also, to the Federalist, No. 40, by Madison. He uses this +language: + + "Will it be said that the fundamental principles of the + Confederation were not within the purview of the Convention, and + ought not to have been varied? I ask, what are those principles? Do + they require that, in the establishment of the Constitution, the + States should be regarded as distinct and independent sovereigns? + They are so regarded by the Constitution proposed. * * * Do they + require that the powers of the Government should act on the States, + and not immediately on individuals? In some instances, as has been + shown, the powers of the new Government will act on the States in + their collective character. In some instances, also, those of the + _existing_ Government act immediately on individuals. In cases of + capture, of piracy, of the post-office, of coins, weights and + measures; of trade with the Indians; of claims under grants of land + by different States; and, above all, in the cases of trial by + Courts Martial, in the Army and Navy, by which death may be + inflicted without the intervention of a Jury, or even of a Civil + Magistrate,--in all these cases the _powers of the Confederation_ + operate immediately on the persons and interests of individual + citizens." + +I would also refer your honors to the Report of the Committee of the +General Assembly of Connecticut, on a call for the militia, by the +General Government, in 1812. The Report reads: + + "The people of this State were among the first to adopt that + Constitution; they have been among the most prompt to satisfy all + its lawful demands, and to give facility to its fair operations; + they have enjoyed the benefits resulting from the Union of the + States; they have loved, and still love and cherish that Union, and + will deeply regret if any events shall occur to alienate their + affection from it. They have a deep interest in its preservation, + and are still disposed to yield a willing and prompt obedience to + all the legitimate requirements of the Constitution of the United + States. + + "But it must not be forgotten that the State of Connecticut is a + free, sovereign and independent State,--that the United States are + a Confederacy of States,--that we are a confederated and not a + consolidated Republic. The Governor of this State is under a high + and solemn obligation 'to maintain the lawful rights and privileges + thereof as a sovereign, free and independent State,' as he is 'to + support the Constitution of the United States,' and the obligation + to support the latter imposes an additional obligation to support + the former. The building cannot stand if the pillars upon which it + rests are impaired or destroyed. The same Constitution which + delegates powers to the General Government, forbids the exercise of + powers not delegated, and reserves those powers to the States + respectively." + +And that was "approved by both Houses," and the following resolution +passed: + + "_Resolved_, That the conduct of His Excellency, the Governor, in + refusing to order the militia of this State into the service of the + United States, on the requisition of the Secretary of War and + Major-General Dearborn, meets with the entire approbation of this + Assembly." + +I would also refer to the second speech of Mr. Webster on Mr. Foot's +resolution, in reply to Mr. Hayne, in the Senate of the United States, +where he thus expresses himself: + + "The States are unquestionably sovereign, so far as their + sovereignty is not affected by this supreme law (the Constitution). + * * * The General Government and the State governments derive their + authority from the same source. Neither can, in relation to the + other, be called primary; though one is definite and restricted, + and the other general and residuary." + +Also, to the case of _Luther_ vs. _Borden_, 7 Howard, 1--one of the +Dorr rebellion cases. The Supreme Court of the United States there +decided that the government of a State, by its Legislature, has the +power to protect itself from destruction by armed rebellion by +declaring martial law, and that the Legislature is the judge of the +necessary exigency. + + +At this point the Court intimated that they would adjourn to the +following day. + +The District Attorney, Mr. E. Delafield Smith, stated that the case of +the _United States_ vs. _William Smith_, one of the ship's company of +the privateer Jefferson Davis, the trial of which had been proceeding +in Philadelphia, had terminated in a verdict. That case involved the +main questions, and also the question of jurisdiction involved here. +Mr. Smith further stated that he had sent for a copy of the charge of +Mr. Justice Grier in that case, and expected to receive it by +telegraph, and he desired to reserve the right to refer to that charge +as one of his authorities in this case. + +_The Court_ assented. + +Adjourned to Saturday, October 26th, at 11 A.M. + + + + +FOURTH DAY. + + +_Saturday, Oct. 26, 1861._ + +The Court met at 11 o'clock, when-- + +_Mr. Larocque_ resumed: + +I will proceed very briefly, if your honors please, to close what I was +submitting to the Court upon the propositions which, as I maintain, +tend to show a colorable authority in the State government, in possible +cases that might arise, to authorize the issuing of letters of marque. +I will state them in their connection, in order that your honors may +see what they are. The first is the one I considered yesterday, viz., +that the Federal Executive Government and the executive governments of +the States, under the Constitution of the United States, each possess +the jurisdiction to decide whether their respective acts are within or +exceed the limits of their respective constitutional powers in cases of +collision between them in their administrative acts operating upon the +public domain, or upon the State, or its citizens as a body politic. + +I had concluded what I intended to submit upon that, and proceed to the +others, which are-- + +2. That in such cases, the Constitution having erected no common +arbiter between them, the right of forcible resistance to the exercise +of unlawful power, which, by the law of nature, resides in the people, +has been delegated by them, by the Federal and State Constitutions +respectively, to the Federal and State Governments respectively, and +each having the jurisdiction to judge whether its acts are within the +constitutional limit of its own powers, has also necessarily the right +to employ force in their assertion or defence, if needed. + +3. That in such cases the citizen of a State which, in its political +capacity, has come into forcible collision with the Federal Government, +owing allegiance to both within the limits of their respective +constitutional powers, and each possessing the jurisdiction to +determine for him the compound question of law and fact, whether the +constitutional limit of those powers has been exceeded by itself or the +other in the particular case, is protected from all criminal liability +for any act done by him, in good faith, in adhering to and under the +authority of either Government. + +I wish very briefly to refer your honors to a few authorities, which, I +hold, sustain these propositions. I say, in the first place, that this +right bears no analogy whatever to the right, once claimed and most +successfully refuted, of the inhabitants of a State, in Convention, to +decide by ordinance upon the unconstitutionally of a law of the Union, +and to prevent by force its operation within the limits of the State, +in a case legitimately falling within the cognizance of the Courts. The +claim to collect duties under an Act of Congress alleged to be +unconstitutional was strictly an instance of this latter class. The +citizen from whom the duties were claimed could simply refuse to pay, +and thereby refer the question of constitutionality of the law to the +judicial tribunals to which it properly belonged, and which must +necessarily pass upon the question before the duties could be +collected. On the other hand, the claim to hold or retake forts or +other public places within the limits of a State, as property of the +United States, is one against which, if unauthorized, the State could +not by possibility defend itself through the agency of the Courts. + +Now, if your honors please, I have stated most distinctly, and admitted +most fully, that, in whatever cases the judicial power of the United +States extends to, it is supreme. That is to say, if a collision takes +place in a suit in a State Court between the Federal and State laws, +and the decision of the State Court is against the right, privilege, or +exemption, as it is called in the judiciary Act, claimed under the +authority of the Union, the Supreme Court of the United States can +redress the error. But I am now speaking of that class of cases where +the judiciary have nothing whatever to do, and in which, I contend, the +Federal and State authorities are each supreme and sovereign, within +the limits of their respective power, and neither has any right or +authority beyond the lines which bound their respective jurisdiction. +And, if your honors please, I refer to the Inaugural Address of Mr. +Lincoln, not only for the proposition that the judicial authority has +nothing to do whatever in a case such as that I am now supposing, but +that, even in cases where the judiciary is competent to act, its +decisions do not form precedents, do not form rules for the government +of the co-ordinate departments of the Union, in future cases of State +policy, and that the executive and the legislative departments are +still left at liberty to act as if no decision had been made. I do not +mean to be understood as acquiescing in that claim; I consider it as a +doctrine infinitely more dangerous and destructive than the doctrine of +constitutional secession; but it comes to us as the claim set up on the +part of the President; and if that is at all correct, there is an end +of all pretence that the judiciary is competent to afford any relief or +protection in the other class of cases referred to. + +He says: + + "I do not forget the position assumed by some, that constitutional + questions are to be decided by the Supreme Court; nor do I deny + that such decision must be binding in any case upon the parties to + a suit, while they are also entitled to very high respect and + consideration in all parallel cases by all other departments of the + Government; and while it is obviously possible that such decision + may be erroneous in any given case, still the evil effect following + it being limited to that particular case, with the chances that it + may be overruled, and never become a precedent for other cases, can + better be borne than could the evils of a different practice. At + the same time the candid citizen must confess that, if the policy + of the Government upon the vital questions affecting the whole + people is to be irrevocably fixed by the decisions of the Supreme + Court, the instant they are made in ordinary litigations between + parties in personal actions, the people will have ceased to be + their own masters, having to that extent practically resigned the + Government into the hands of that eminent tribunal. Nor is there, + in this view, any assault upon the Court or the Judges. It is a + duty from which they may not shrink, to decide cases properly + brought before them, and it is no fault of theirs if others seek to + turn their decisions to political purposes." + +I have not the document at this moment; but your honors will probably +bear in mind that the Executive also lately consulted the law-officer +of the Government upon the question of suspending the privilege of +_habeas corpus_, and I well remember the clause in the opinion which +was delivered by that eminent legal gentleman and high officer of the +Government on that occasion, and which was afterwards communicated by +the President to Congress as the basis of his action. In that opinion +the present learned Attorney-General used this language: "To say that +the departments of our Government are co-ordinate, is to say that the +judgment of one of them is not binding upon the other two, as to the +arguments and principles involved in the judgment. It binds only the +parties to the case decided." And your honors will recollect that, +acting upon that enunciation of the law of the land and of the +construction of the Constitution, although he admitted that the Supreme +Court of the United States had decided that the privilege of _habeas +corpus_ could not be suspended by the Executive, without the +interposition of Congress, the legal adviser of the Government held, at +the same time, that that decision of the Supreme Court was not binding +upon the Executive. + +Now, for the purpose of showing what I mean by the right of resistance +reserved to the people by the law of nature, which, as I say, is +delegated by them to these two sovereigns, for the purpose that each +may maintain its own authority and prevent encroachment by the other, I +beg to refer your honors to _Rutherforth's Institutes of Natural Law, +vol. 1, page 391_, commencing with section 10. And as a proof than I +broach no novel or revolutionary doctrine, your honors will bear in +mind that these Institutes of Natural Law were a course of lectures +delivered in one of the great seminaries of learning of England, and +their doctrines thought fit and proper to be instilled into the minds +of the youth of that Kingdom, the loyalty of whose people to their +Government has become proverbial among all the nations of the world. + +The author says: + + "It is a question of some importance, and has been thought a + question not easily to be determined, whether the members of a + civil society have, upon any event, or in any circumstances + whatsoever, a right to resist their governors, or rather the + persons who are invested with the civil power of that society." + +Then he states several cases in which the civil governors, as he calls +them, lose their power over their subjects, and continues: + + "Fourthly, Though the governors of a society should be invested by + the constitution with all civil power in the highest degree and to + the greatest extent that the nature of a civil power will admit of, + yet this does not imply that the people are in a state of perfect + subjection. Civil power is, in its own nature, a limited power; as + it arose at first from social union, so it is limited by the ends + and purposes of such union, whether it is exercised, as it is in + democracies, by the body of the people, or, as it is in monarchies, + by one single person. But if the power of a Monarch, when he is + considered as a civil governor, is thus limited by the ends of + social union, whatever obedience and submission the people may owe + him whilst he keeps within these limits, he has no power at all, + and consequently the people owe him no subjection, when he goes + beyond them. + + "Having thus taken a short view of the several ways in which the + authority of the governors of a society fails, and the subjection + of the people ceases, we may now return to the question which was + before us. + + "If you ask whether the members of a civil society have a right to + resist the civil governors of it by force? your question is too + general to admit of a determinate answer. + + "As far as the just authority of the civil governors and the + subjection of the people extend, resistance by force is rebellion. + + "Subjection consists in an obligation to obey; as far, therefore, + as the people are in subjection, they can have no right to resist; + because an obligation to obey, and a right to resist, are + inconsistent with one another. + + "But the power of civil governors is neither necessarily connected + with their persons, nor infinite whilst it is in their possession. + + "It ceases by abdication; it is overruled by the laws of nature and + of God; and it does not extend beyond the limits which either the + civil constitution or the ends of social union have set to it. + + "Where their power thus fails in right, and they have no just + authority, the subjection of the people ceases; that is, as far as + of right they have no power, or no just authority, the people are + not obliged to obey them; so that any force which they make use of, + either to compel obedience or to punish disobedience, is unjust + force; the people may perhaps be at liberty to submit to it, if + they please; but, because it is unjust force, the law of nature + does not oblige them to submit to it. + + "But this law, if it does not oblige the people to submit to such + force, allows them to have recourse to the necessary means of + relieving themselves from it, and of securing themselves against + it, to the means of resistance by opposing force to force, if they + cannot be relieved from it and secured against it by any other + means." + +I continue my citation at-- + + "Sec. XV. In the general questions concerning the right of + resistance, it is usually objected that there is no common judge + who is vested with authority to determine, between the supreme + governors and the people, where the right of resistance begins; + and the want of such a judge is supposed to leave the people room + to abuse this right; they may possibly pretend that they are + unjustly oppressed, and, upon this pretence, may causelessly and + rebelliously take up arms against their governors, although they + are laid under no other restraints, and no other compulsion is + made use of, but what the general nature of civil society or the + particular circumstances of their own society require. + + "But, be this as it may, the possibility that the right may be + abused, does not prove that no such right subsists. + + "If we would conclude, on the one hand, that the people have no + right of resistance, because this right is capable of being abused, + we might, for the same reason, conclude, on the other hand, that + supreme governors have no authority. + + "Whatever authority these governors have in any civil society, it + was given them for the common benefit of the society; and it is + possible that, under the color of this authority, they may oppress + the people in order to promote their own separate benefit. + + "Sec. XVI. It is a groundless suggestion, that a right of + resistance in the people will occasion treason and rebellion, and + that it will weaken the authority of civil government, and will + render the office of those who are invested with it precarious and + unsafe, even though they administer it with the utmost prudence and + with all due regard to the common benefit. + + "The right of resistance will indeed render the general notion of + rebellion less extensive in its application to particular facts. + + "All use of force against such persons as are invested with supreme + power, would come under the notion of rebellion, if the people have + no right of this sort; whereas, if they have such a right, the use + of force to repel tyranical and unsocial oppression, when it cannot + be removed by any other means, must have some other name given to + it. So that, however true it may be that, in consequence of this + right of resistance, supreme government will be liable, of right, + to some external checks, arising out of the law of nature, to which + they would otherwise not be liable, yet it cannot properly be said + to expose them to rebellion." + +I beg, in the next place, to read to your honors, from the opinion of +Mr. Justice Johnson, a short paragraph. It is to be found in 1st +Wheaton, 363, in the case of _Martin_ vs. _Hunter's Lessee_. I believe +a paragraph from that has been already read, on the other side, and I +wish to give you, in connection with it, what he says, speaking of the +power of the judiciary, and the consequences that would result in any +case to which that power did not reach. He says: + + "On the other hand, so firmly am I persuaded that the American + people no longer can enjoy the blessings of a free Government, + whenever the State sovereignties shall be prostrated at the feet of + the General Government, nor the proud consciousness of equality and + security, any longer than the independence of judicial power shall + be maintained consecrated and intangible, that I could borrow the + language of a celebrated orator, and exclaim, 'I rejoice that + Virginia has resisted.'" + +I also wish to read a sentence from the case of _Moore_ vs. _The +State of Illinois_, in 14 Howard, p. 20--the opinion by Mr. Justice +Grier. He says: + + "Every citizen of the United States is also a citizen of a State or + Territory. He may be said to owe allegiance to two sovereigns, and + may be liable to punishment for an infraction of the laws of + either." + +And Mr. Justice McLean, in speaking of the same subject, in the same +case, at page 22, says: + + "It is true the criminal laws of the Federal and State Governments + emanated from different sovereignties; but they operate on the same + people, and should have the same end in view. In this respect the + Federal Government, though sovereign within the limitation of its + powers, may, in some sense, be considered as the agent of the + States, to provide for the general welfare by punishing offences + under its own laws within its jurisdiction." + +I wish also to refer to the case of the _United States_ vs. _Booth_, +in 21 Howard--the opinion of CHIEF JUSTICE TANEY--in connection with +the question of what the result is where the judiciary has not power +to act. He says: + + "The importance which the framers of the Constitution attached to + such a tribunal, for the purpose of preserving internal + tranquillity, is strikingly manifested by the clause which gives + this Court jurisdiction _over the sovereign States which compose + this Union_, when a controversy arises _between them_. Instead of + reserving the right to seek redress for injustice from another + State by their sovereign powers, they have bound themselves to + submit to the decision of this Court, and to abide by its judgment. + And it is not out of place to say, here, that experience has + demonstrated that this power was not unwisely surrendered by the + States; for, in the time that has already elapsed since this + Government came into existence, several irritating and angry + controversies have taken place between adjoining States, in + relation to their respective boundaries, and which have sometimes + threatened to end in force and violence, but for the power vested + in this Court to hear them and decide between them. + + "The same purposes are clearly indicated by the different language + employed when conferring supremacy upon the laws of the United + States and jurisdiction upon its Courts. In the first case, it + provides that 'this Constitution, and the laws of the United + States, _which shall be made in pursuance thereof_, shall be the + supreme law of the land, and obligatory upon the Judges in every + State.' The words in italics show the precision and foresight which + marks every clause in the instrument. The sovereignty to be created + was to be limited in its powers of legislation; and, if it passed a + law not authorized by its enumerated powers, it was not to be + regarded as the supreme law of the land, nor were the State Judges + bound to carry it into execution." + +And further on, speaking of the claimed right of the State of Wisconsin +to discharge a prisoner convicted in the United States Court upon a +criminal conviction, and to refuse afterwards to obey a writ of error +issued out of the Supreme Court of the United States to review that +judgment, he uses language of this kind: + + "This right to inquire by process of habeas corpus, and the duty of + the officer to make a return, grows necessarily out of the complex + character of our Government, and the existence of two distinct and + separate sovereignties within the same territorial space, each of + them restricted in its powers, and each, within its sphere of + action prescribed by the Constitution of the United States, + independent of the other." + +Now, if your honors please, upon that question still further--that +where there is no possibility of the power of the judiciary being +exercised, there being, as the learned Chief Justice expresses it in +his own language, "two distinct and separate sovereignties within the +same territorial space" exercising jurisdiction, the right of forcible +resistance exists in the State governments. I beg to refer to the +Federalist, No. 28, by Alexander Hamilton, p. 126. He says: + + "It may safely be received as an axiom in our political system, + that the State governments will in all possible contingencies + afford complete security against invasions of the public liberty by + the federal authority. Projects of usurpation cannot be masked + under pretences so likely to escape the penetration of select + bodies of men as of the people at large. The Legislatures will have + better means of information; they can discover the danger at a + distance, and, possessing all the organs of civil power and the + confidence of the people, they can at once adopt a regular plan of + opposition; they can combine all the resources of the community. + They can readily communicate with each other in the different + States, and unite their common forces for the protection of their + common liberty." + +I refer also to the _Federalist_, No. 46, by James Madison, where +he uses this language: + + "Were it admitted, however, that the Federal Government may feel an + equal disposition with the State governments to extend its power + beyond the due limits, the latter would still have the advantage in + the means of defeating such encroachments. If the act of a particular + State, though unfriendly to the National Government, be generally + popular in that State, and should not too grossly violate the oaths + of the State officers, it is executed immediately, and of course by + means on the spot, and depending on the State alone. * * * On the + other hand, should an unwarrantable measure of the Federal + Government be unpopular in particular States, which would seldom + fail to be the case, or even a warrantable measure be so, which + may sometimes be the case, the means of opposition to it are at + hand. * * * + + "But ambitious encroachments of the Federal Government on the + authority of the State governments would not excite the opposition + of a single State, or of a few States only. They would be signals + of general alarm. Every government would espouse the common cause; + a correspondence would be opened; plans of resistance would be + concerted; one spirit would animate and conduct the whole. The same + combination, in short, would result from an apprehension of the + _federal_ as was produced by the dread of a _foreign_ yoke; and, + unless the projected innovations should be voluntarily renounced, + the same appeal to a trial of force would be made in the one case + as was made in the other. But what degree of madness would ever + drive the Federal Government to such an extremity? * * * But what + would be the contest in the case we are supposing? Who would be the + parties? A few Representatives of the people would be opposed to + the people themselves; or, rather, one set of Representatives would + be contending against thirteen sets of Representatives, with the + whole body of their common constituents on the side of the latter. + The only refuge left for those who prophesy the downfall of the + State governments is the visionary supposition that the Federal + Government may previously accumulate a military force for the + projects of ambition. * * * Extravagant as the supposition is, let + it, however, be made. Let a regular army, fully equal to the + resources of the country, be formed, and let it be entirely at the + devotion of the Federal Government; still it would not be going too + far to say that the State governments, with the people on their + side, would be able to repel the danger. The highest number to + which, according to the best computation, a standing army can be + carried in any country, does not exceed 1/100th of the whole number + of souls, or 1/25th part of the number able to bear arms. This + proportion would not yield to the United States an army of more + than 25 or 30,000 men. To these would be opposed a militia + amounting to near 500,000 citizens, with arms in their hands, + officered by men chosen from among themselves, fighting for their + common liberties, and united and conducted by governments + possessing their affections and confidence." + +I shall not spend the time of your honors by reading the Virginia and +Kentucky resolutions--the one the production of James Madison, and the +other of Thomas Jefferson--with which you are so familiar. They fully +bear out the doctrine for which I contend, and much more than I +contend for. I wish, however, to read, from the American State Papers, +vol. 21, p. 6, a series of resolutions adopted by the Legislature of +Pennsylvania, on the 3d April, 1809. They are as follows: + + "_Resolved_, by the Senate and House of Representatives of the + Commonwealth of Pennsylvania: + + "That, as a member of the Federal Union, the Legislature of + Pennsylvania acknowledges the supremacy, and will cheerfully submit + to the authority, of the General Government, as far as that + authority is delegated by the Constitution of the United States. + But while they yield to this authority, when exerted within + constitutional limits, they trust they will not be considered as + acting hostile to the General Government _when, as the guardians of + the State rights_, they cannot permit an infringement of those + rights by an unconstitutional exercise of power in the United + States Courts. + + "_Resolved_, That in a Government like that of the United States, + where there are powers granted to the General Government and rights + reserved to the States, it is impossible, from the imperfection of + language, so to define the limits of each that difficulties should + not sometimes arise from a collision of powers; and it is to be + lamented that no provision is made in the Constitution for + determining disputes between the General and State Governments by + an impartial tribunal, when such cases occur. + + "_Resolved_, That, from the construction which the United States + Courts give to their powers, the harmony of the States, if they + resist the encroachments on their rights, will frequently be + interrupted; and if, to prevent this evil, they should on all + occasions yield to stretches of power, the reserved rights of the + States will depend on the arbitrary powers of the Courts. + + "_Resolved_, That should the independence of the States, as secured + by the Constitution, be destroyed, the liberties of the people in + so extensive a country cannot long survive. To suffer the United + States Courts to decide on State rights, will, from a bias in favor + of power, necessarily destroy the federal part of our Government; + and, whenever the Government of the United States becomes + consolidated we may learn from the history of nations what will be + the event." + +To prevent the balance between the General and State Governments from +being destroyed, and the harmony of the States from being interrupted-- + + "_Resolved_, That our Senators in Congress be instructed, and our + Representatives be requested, to use their influence to procure + amendment to the Constitution of the United States, that an + impartial tribunal may be established to determine disputes + between the General and State Governments; and that they be + further instructed to use their endeavors that, in the meantime, + such engagements may be made between the Governments of the Union + and of the State as will put an end to existing difficulties." + +Those resolutions were transmitted to Congress by President Madison. +They were never acted upon. + +My next reference is to the Remonstrance of the State of Massachusetts +against the War of 1812, adopted June 18th, 1813--from the _American +State Papers_, vol. 21, page 210: + + "The Legislature of Massachusetts, deeply impressed with the + sufferings of their constituents, and excited by the apprehension + of still greater evils in prospect, feel impelled by a solemn sense + of duty to lay before the National Government their views of the + public interests, and to express, with the plainness of freemen, + the sentiments of the people of this ancient and extensive + Commonwealth. + + "Although the precise limits of the powers reserved _to the several + State sovereignties_ have not been defined by the Constitution, yet + we fully concur in the correctness of the opinions advanced by our + venerable Chief Magistrate, that our Constitution secures to us the + freedom of speech, and that, at this momentous period, it is our + right and duty to inquire into the grounds and origin of the + present war, to reflect upon the state of public affairs, and to + express our sentiments concerning them with decency and frankness, + and to endeavor, so far as our limited influence extends, to + promote, by temperate and constitutional means, an honorable + reconciliation. * * * _The States, as well as the individuals + composing them, are parties to the National Compact; and it is + their peculiar duty, especially in times of peril, to watch over + the rights and guard the privileges solemnly guaranteed by that + instrument._" + +There were also a set of resolutions, which I will not take time to +read, passed by the Legislature of New Jersey, November 27th, 1827, +which will be found in the _American State Papers_, vol. 21, page 797. +They were based upon the then prevalent opinion that the Constitution +had not conferred upon the Supreme Court of the United States the power +to decide disputed questions of boundary, or similar questions, between +States of the Union, and proposed an amendment to remedy that +difficulty, expressly recognizing that the right to resort to force in +such cases necessarily resulted from the omission. The decision of the +Supreme Court, in the case of _Rhode Island_ vs. _Massachusetts_, that +it possessed that jurisdiction, conjured that danger. The greater one, +however, of there being no tribunal to administer justice between the +federal and State sovereignties, remains. + +I will also refer to one other resolution, passed by the Legislature of +the State of New York, on the 29th January, 1833, upon the +Nullification Ordinances, as they were called: + + "_Resolved_, That we regard the right of a single State to make + void within its limits the laws of the United States, as set forth + in the Ordinance of South Carolina, as wholly unauthorized by the + Constitution of the United States, and, in its tendency, subversive + to the Union and the Government thereof." + + I do not know that any sane man will now dispute that truth; but + this follows. The present Secretary of State of the United States, + at that time a member of the Senate of this State, then moved: + + "That this Legislature do adhere, in their construction of the + Constitution, to the principle that the reserved rights of the + States, not conceded to the General Government, ought to be + _maintained and defended_." + +This latter resolution was indefinitely postponed. + +I will not now stop to read what was said by President Buchanan, in his +Message to Congress, on December 4th, 1860, as to the consequences of a +refusal by the States to repeal the obnoxious laws which had been +enacted. You will recollect that he said that, if that was not done, +the injured States would be justified, standing on the basis of the +Constitution, in revolutionary resistance to the Government of the +Union. I do not need to claim that, for I have nothing to do, on this +trial, with the justice of these mighty questions, debated between the +General Government and the governments and people of these States. The +question of their justice or injustice does not arise upon this trial. +I was simply making these citations to show that, by the ablest writers +cotemporaneous with the Constitution, and who performed the work of +framing it--by the proceedings of legislative bodies and the decisions +of the Supreme Court--the principle has been recognized that, in all +cases in which jurisdiction has not been given to the judiciary over +questions between the General Government and the State, they are equal, +co-ordinate, each possessed of the right to decide for itself as to the +excess by the other, if it is claimed that there is an excess of +constitutional power, and to assert its own right or repel the +encroachments of the other by force. + +I say, in further confirmation of this, that the offence of treason +against the United States, under the 3d section of the 3d article of +the Constitution of the United States, must be a levying of war against +them all. The words, "United States," in that section, mean the States, +and not merely the Government of the Union. This is evident from the +fact that the section, as originally reported (being sec. 2 of art. 7), +read: "Treason against the United States shall consist only in levying +war against the United States, OR ANY OF THEM; and in adhering to the +enemies of the United States, OR ANY OF THEM," &c. (Journal of the +Convention, page 221). It was amended so as to read collectively only, +and not disjunctively. When, however, the act done is not under +authority of a State, I concede that levying war against the General +Government is levying war against all the States. + +And, in this connection, I wish to refer to the proceedings, which I +have hastily adverted to in opening to the Jury, upon the adoption of +the section of the Constitution relating to treason. I refer to the +_Madison Papers_, vol. 3, page 1370: + + "Art. 7, sec. 2, concerning treason, was then taken up. + + "_Mr. Gouverneur Morris_ was for giving to the Union an exclusive + right to declare what should be treason. In case of a contest + between the United States and a particular State, the people of the + latter must, under the disjunctive terms of the clause, be traitors + to one or other authority. + + "_Dr. Johnson_ contended that treason could not be both against the + United States and individual States, being an offence against the + sovereignty, which can be but one in the same community. + + "_Mr. Madison_ remarked that as the definition here was of treason + against the United States, it would seem that the individual States + would be left in possession of a concurrent power, so far as to + define and punish treason particularly against themselves, which + might involve double punishment." + +The words, "or any of them," were here stricken out by a vote. + + "_Mr. Madison_: This has not removed the difficulty. The same act + might be treason against the United States, as here defined, and + against a particular State, according to its laws. + + "_Dr. Johnson_ was still of opinion there could be no treason + against a particular State. It could not, even at present, as the + Confederation now stands--_the sovereignty being in the Union_; + much less can it be under the proposed system. + + "_Colonel Mason: The United States will have a qualified + sovereignty only. The individual States will retain a part of the + sovereignty._ An act may be treason against a particular State, + which is not so against the United States. He cited the rebellion + of Bacon, in Virginia, as an illustration of the doctrine. + + "_Mr. King_: No line can be drawn between levying war and adhering + to the enemy, against the United States, and against an individual + State. Treason against the latter must be so against the former. + + "_Mr. Sherman_: Resistance against the laws of the United States, + as distinguished from resistance against the laws of a particular + State, forms the line." + +_Mr. Ellsworth_, afterwards Chief Justice of the Supreme Court of the +United States, closed the debate in these memorable words: + + "The United States are sovereign on one side of the line dividing + the jurisdictions; the States, on the other. _Each ought to have + power to defend their respective sovereignties._" + +Now, if your honors please, it will probably be attempted to be +answered to the argument, that by section 10 of article 1 of the +Constitution of the Union, the States are forbidden to enter into any +treaty, alliance, or confederation, or to grant letters of marque and +reprisal; or, without the consent of Congress, to enter into any +agreement or compact with another State; or to engage in war, unless +actually invaded, or in such imminent danger as will not admit of +delay. This does not conflict with, but, on the contrary, confirms, the +views I have presented, for the following reasons: + +The prohibition against entering into any treaty, alliance, or +confederation, and against granting letters of marque and reprisal, has +clearly no reference whatever to the relations which the States of the +Union sustain to each other. It refers solely to their relations +towards foreign powers. + +I beg to cite, upon that subject, from Grotius, Lib. 1, chap. 4, sec. +13. He says: + + "In the sixth place, when a King has only a part of the + sovereignty, the rest being reserved to the people, or to a Senate, + if he encroaches upon the jurisdiction which does not belong to him + he may lawfully be opposed by force, since in that regard he is not + at all sovereign. This is the case, in my opinion, even when in the + distribution of the sovereign power the power of making war is + assigned to the King. _For the grant of such a power must in that + case be understood only in its relation to wars with foreign + powers, those who possess a part of the sovereignty necessarily + having at the same time the right of defending it_; and when a + necessity arises of having recourse to forcible resistance against + the King, he may, by right of war, lose even the part of the + sovereignty which incontestibly belonged to him." + +I say, then, in the next place, that if any of the States, having come +into collision with any of their sister States, or with the General +Government, and being threatened with invasion or overthrow in the +contest, resort to letters of marque as a means of weakening their +adversary, and thereby preventing or retarding the threatened invasion, +their right to do so is not at all affected or impaired by that +provision of the Federal Constitution. The right of resistance includes +it as well as every other means of rendering resistance effectual. + +So also with regard to the prohibition against entering into any +treaty, alliance, or confederation, which is coupled with the +prohibition against granting letters of marque in the first paragraph +of the tenth section. That that prohibition is restricted to compacts +or agreements with foreign powers, is manifest from the whole structure +of the section. + +The second paragraph of the section provides that no State shall, +without the consent of Congress, enter into any agreement or compact +with another State. It follows that, conceding the invalidity of the +State acts of separation from the Union, which the whole of the +preceding argument admits, the Confederation of the States claiming to +have separated is not valid against the authority of the Union; but the +individual States, in ratifying the Constitution of the so-called +Confederate States, have done more than to make an agreement or compact +with each other. Each one of them, separately, has conferred upon the +same agent the authority to issue the commission in question, as its +act. + +Moreover, this second paragraph of the tenth section strongly confirms +the doctrine of the right of forcible resistance of the States in the +Union. It permits a State, without the consent of Congress, to engage +in war when actually invaded, or in such imminent danger as will not +admit of delay. This, it will be remembered, is in the paragraph of the +section imposing restrictions upon the States, and clearly justifies +forcible resistance, rising even to the dignity of war, by one State, +to aggressive invasion, from another or others, when the danger is so +imminent that it will not admit of delay. + +The same paragraph also permits individual States to keep troops and +ships of war, in time of war. The word "troops" here is evidently used +in the sense of regular troops, forming an army, in contradistinction +to the ordinary State militia. + +To apply, then, these principles to the facts of this case: The +President of the United States had, by proclamation, on the 15th April +last, called for military contingents from the various States of the +Union, to put down resistance to the exercise of federal authority in +the State of South Carolina and other Southern States. + +Those States had, by their Legislatures and Conventions of their +people, decided that a proper case for resistance to the federal +authority claimed to be exercised within their borders had arisen, and +had authorized and commanded such resistance. + +The 5th section of the Act of July 13th, 1861, and the President's +Proclamation of August 16th, under that Act, concede that the +resistance was claimed to be under authority of the State governments; +that that claim was not disavowed by the State governments; and +Congress thereupon legislated, and the President exercised the +authority vested in him by the Act, on the assumption that such was the +fact,--prohibiting commercial intercourse with those States, +authorizing captures and confiscations of the property of their +citizens without regard to their political affinities, and placing +them, as we contend, in all respects, upon the footing of public +enemies. + +They were, moreover, threatened with immediate invasion. The +Proclamation of the President assigned, as their first probable duty, +to the military contingents called for from other States, to repossess +the Federal Government of property which it could not repossess without +an actual invasion of the discontented States. + +The Congress of the Union was not then in session. It had adjourned, +after having omitted to confer upon the Federal Executive the power to +resort to measures of coercion, which had been under discussion during +its sitting. + +The commission in question was issued as one of the measures of +forcible resistance to this exercise of federal power, claimed--whether +rightfully or wrongfully, is not the question here--to be unlawful by +the governments of all the States against which it was directed, and to +which those governments enjoined forcible resistance upon, and +authorized it by, their citizens. + +I contend, therefore, that whether the action of the Federal Government +or of the State government was justifiable or unjustifiable, no citizen +of any of the States which authorized and enjoined such resistance is +criminally responsible, whether he espoused one side or the other in +the unhappy controversy, either to the General Government or to the +government of the State of which he is a citizen, so long as he acted +in good faith, and in the honest belief that the government to which he +adhered was acting within the legitimate scope of its constitutional +powers. We contend that every sovereign has necessarily power to defend +its sovereignty, and to decide the mixed question of law and fact as to +whether it has been infringed; that there can be no sovereign, or +defence of sovereignty, without subjects to whom the sovereign's +mandate and authority are a protection; and that as one sovereign +cannot lawfully punish another, who is his equal, by personal pains and +penalties, for resistance, after he is subdued, so neither can punish +the subject of both who, in good faith and under honest convictions of +duty, adhered to either in the struggle. + +Now, if your honors please, I pass to the next proposition, which is: + +That the defendants, who are citizens of the States calling themselves +Confederate States, cannot be convicted under this indictment, if they +in good faith believed, at the time of the capture of the Joseph, that +the political _status_ of those States, as members of the Federal +Union, had been legally terminated, and that they had thereby ceased to +be citizens of the United States, and made the capture in good faith, +under the commission in evidence, as a belligerent act,--such States +being, as they supposed, at war with the United States. + +It is not necessary for me, if your honors please, to enlarge upon +that. I rely, for that proposition, on the same authorities that I have +already cited to the point, that robbery or piracy cannot be committed, +unless it is committed with felonious or piratical intent. But I say, +with reference to the validity or invalidity of those acts of +separation from the Union, that the counsel for the prisoners, whatever +their private convictions may be, are not at liberty to concede their +invalidity, so long as that concession may affect the lives of their +clients. Their validity has been maintained by some of the ablest +lawyers of the country, and in the Senate of the United States itself, +and by all the authorities, legislative, executive and judicial, of the +States which have adopted them. If, as they undoubtedly did, the +prisoners _bona fide_ believed in their validity, the argument in favor +of the protection afforded by the commission, or, by what comes to the +same thing, the absence of criminal intent, becomes so much the more +irresistible. And even though wholly invalid, such illegal action could +not deprive the citizen of the State of the shield and protection +afforded him by the action of the State government authorizing +resistance, and regarded as still continuing a member of the federal +Union. + +The next proposition is: + +That under the state of facts existing in South Carolina, as +established by the public documents and other evidence in the cause, +those administering the Government of the so-called Confederate States +constituted the _de facto_ Government which replaced the Government of +the United States in those States before and at the time of the +commission of the acts charged in the indictment; and the defendants +who are citizens of those States were justified by overpowering +necessity in submitting to that Government, in yielding their +allegiance to it, and thenceforth in actively aiding and supporting it; +and that the capture of the Joseph, having been a belligerent act in a +war between such _de facto_ Government, and the people of the States +which had submitted to its authority on the one side, and the United +States on the other, such defendants cannot be convicted under this +indictment. + +Now, with reference to that, allow me to call your honors' attention to +but a single authority, in addition to those which I cited in my +opening remarks to the Jury. It is the case of _The United States_ vs. +_The General Parkhill_, decided by Judge Cadwalader, in the United +States District Court, in Philadelphia, in July, 1861. He says: + + "The foregoing remarks do not suffice to define the legal character + of the contest in question. It is a civil war, as distinguished + from such unorganized intestine war as occurs in the case of a mere + insurrectionary rebellion. + + "Civil war may occur where a nation without an established + Government is divided into opposing hostile factions, each + contending for the acquisition of an exclusive administration of + her Government. If a simple case of this kind should occur at this + day, the Governments of the nations not parties to the contest + might regard it as peculiarly one of civil war. As between the + contending factions themselves, however, neither could easily + regard their hostile opponents in the contest otherwise than as + mere insurgents engaged in unorganized rebellion. Thus, in the + language of Sir M. Hale, every success of either party would + subject all hostile opponents of the conqueror to the penalties of + treason. A desire to prevent the frequency of such a result was the + origin of the rule of law, that allegiance is due to any peaceably + established Government, though it may have originated in + usurpation. The statute of 11 H. 7, c. 1 (A.D. 1494), excusing an + English subject who has yielded obedience, or who has even rendered + military service to a Ruler who was King in fact, though not in + law, was declaratory of a previous principle of judicial decision." + +After referring to Bracton, Coke, Hawkins, and Foster, the learned +Judge proceeds: + + "It has already been stated that a King in whose name justice was + administered in the Courts of law was usually regarded as in actual + possession of the Government. + + "Civil war of another kind occurs where an organized hostile + faction is contending against an established Government, whose laws + are still administered in all parts of its territory except places + in the actual military or naval occupation of insurgents or their + adherents. + + "In such a case the question has been, whether a place in the + actual military occupation of the revolutionary faction, or of its + adherents, may, under the law of war, be treated by that Government + as if the contest was a foreign war and the place occupied by + public enemies. In the case of a maritime blockade of such a place, + the affirmative of this question was decided in England, in the + year 1836. It had previously been so decided by the Supreme + Tribunal of Marine, at Lisbon (3 Scott, 201; 2 Bingh., N.C., 781)." + +Judge Cadwalader then refers to Grotius (Proleg., sec. 23), citing with +approval the statement by Demosthenes of the rule of public law in the +case of the invasion by Deiopeithes, the Athenian commander in the +Chersonese, of the dominions of Philip of Macedon, who had sent a +military force to the relief of Cardia, when sought to be reduced to +submission by Deiopeithes--that wherever judicial remedies are not +enforceable by a Government against its opponents, the proper mode of +restoring its authority is war,--and continues: + + "This doctrine is of obvious applicability to civil war of a third + kind, which occurs where the exercise of an established + Government's jurisdiction has been revolutionarily suspended in + one or more territorial Districts, whose willing or unwilling + submission to the revolutionary rule prevents the execution of the + suspended Government's laws in them, except at points occupied by + its military or naval forces. The present contest exemplifies a + civil war of this kind. It was also, with specific differences, + exemplified in the respective contests which resulted in the + independence of the United Netherlands and of the United States." + +He then proceeds: + + "Within the limits of two of the States in which so-called + ordinances of secession have been proclaimed the execution of the + laws of the United States has not been wholly suppressed. They are + enforceable in the Western Judicial District of Virginia, and + perhaps in the adjacent Eastern Division of Tennessee. In the + other nine States which profess to have seceded, including South + Carolina, those laws are not enforceable anywhere. + + "The Constitution of the United States prohibits the enactment by + Congress of a bill of attainder, and secures, in all criminal + prosecutions, to the accused, the right to a speedy public trial, + by Jury of the State and District wherein the crime shall have + been committed, which District must have been previously + ascertained by law. Therefore if a treasonable or other breach of + allegiance is committed within the limits of one of these nine + States, it is not at present punishable in any Court of the United + States. This was practically shown in a recent case (Greiner's + case, _Legal Intelligencer_, May 10, 1861). War is consequently + the only means of self-redress to which the United States can, in + such a case, resort, for the restoration of the constitutional + authority of their Government. + + "The rule of the common law is, that when the regular course of + justice is interrupted by revolt, rebellion, or insurrection, so + that the Courts of justice cannot be kept open, civil war exists, + and hostilities may be prosecuted on the same footing as if those + opposing the Government were foreign enemies invading the land. + The converse is also regularly true, that when the Courts of a + Government are open, it is ordinarily a time of peace. But though + the Courts be open, if they are so obstructed and overawed that + the laws cannot be peaceably enforced, there might perhaps be + cases in which this converse application of the rule would not be + admitted. (1 Knapp, 346, 360, 361; 1 Hale, P.C. 347; Co. Litt. 249 + _b_.)" + +Now, if your honors please, the last proposition with which I am +compelled to trouble you is: + +That the Acts of Congress and the Proclamations of the President since +the outbreak of the present struggle evidence the existence of a state +of war between the Federal Government and the States calling +themselves the Confederate States from a time anterior to the +performance of the acts charged in the indictment, in which all the +citizens of those States are involved and treated as public enemies of +the Federal Government, whether they had any agency in initiating the +conflict or not; and that the natural law of self-preservation, under +these circumstances, justified the defendants, who are citizens of +those States, in the commission of the acts charged in the indictment, +as a means of weakening the power of destruction possessed by the +Federal Government. + +Now the counsel on the other side, from the intimation which he gave +when he addressed the Court, intended to treat that subject of a _de +facto_ Government, or whatever it was, on the footing of men under +duress, not in danger of their lives, joining with rebels and aiding +them in a treasonable enterprise. Your honors will perceive that was +not the footing on which we put it at all. It was the footing on which +it stood at one time, when rebellion first broke out, when forts were +seized--acts which it is no part of the duty of counsel on this trial +to justify or say anything about, because there is no act connected +with that part of the struggle which is in evidence on this trial. But +on that I wish to refer to what Judge Cadwalader said in another +case--that of _Greiner_--which undoubtedly the learned counsel for the +Government had in his mind when he drew that distinction. Shortly +before the late so-called secession of Georgia, a volunteer military +company, of which _Greiner_ was a member, by order of the Governor, +took possession of a fort within her limits, over which jurisdiction +had been ceded by her to the United States, and garrisoned it until +her ordinance of secession was promulgated, when, without having +encountered any hostile resistance, they left it in the possession of +her Government. A member of this company, Charles A. Greiner, who had +participated in the capture and detention of the fort, afterwards +visited Pennsylvania, at a period of threatened if not actual +hostilities between the Confederate States and the United States. He +was arrested in Philadelphia, under a charge of treason. Your honors +will very readily perceive what a difference there was between that +case and this. Judge Cadwalader applies the rule in reference to that; +and, speaking of this doctrine of allegiance due to a Government in +fact, he says: + + "This doctrine is applicable wherever and so long as the duty of + allegiance to an existing Government remains unimpaired. When this + fort was captured, the accused, in the language of the Supreme + Court, owed allegiance to two Sovereigns, the United States and + the State of Georgia (see 14 How. 20). The duty of allegiance to + the United States was co-extensive with the constitutional + jurisdiction of their Government, and was, to this extent, + independent of, and paramount to, any duty of allegiance to the + State (6 Wheaton, 381, and 21 Howard, 517). His duty of allegiance + to the United States continued to be thus paramount so long at + least as their Government was able to maintain its peace through + its own Courts of Justice in Georgia, and thus extend there to the + citizen that protection which affords him security in his + allegiance, and is the foundation of his duty of allegiance. + Though the subsequent occurrences which have closed these Courts + in Georgia may have rendered the continuance of such protection + within her limits impossible at this time, we know that a + different state of things existed at the time of the hostile + occupation of the fort. The revolutionary secession of the State, + though threatened, had not then been consummated. This party's + duty of allegiance to the United States, therefore, could not then + be affected by any conflicting enforced allegiance of the State. + He could not then, as a citizen of Georgia, pretend to be an enemy + of the United States, in any sense of the word 'enemy' which + distinguishes its legal meaning from that of traitor. _Future + cases may perhaps require the definition of more precise + distinctions and possible differences under this head. The present + case is, in my opinion, one of no difficulty, so far as the + question of probable cause for the prosecution is concerned._" + +Having decided that, in the present state of things, he could not +commit the prisoner for trial, to be conveyed to Georgia, because +there were no Courts of the United States there, and because it would +be a violation of the Constitution of the United States--that he could +not have a speedy trial--he decided that, under a subsequent act of +Congress, he had a right to require the prisoner to find sureties to +be of good behavior towards the United States. + +I have thus ended what I had to say upon this subject, with but one +single exception. + +A great deal will be said, undoubtedly, on the part of the +prosecution, here, with reference to this being a revolutionary +overthrow of the Government of the United States in the States which +have taken these steps. I have only to ask, in reference to +that--conceding it, for the sake of argument, in its fullest +extent--what was the adoption of the Constitution of the United States +but a revolutionary overthrow of the previously existing +Confederation? It was done by nine States, without the consent of +four, whose consent was necessary, and the Government of the United +States went into operation; and it was a long time before at least two +of them came in under the new Government. + +_Mr. Evarts_: Will my learned friend allow me to ask him, in that part +of his argument which proceeds upon the right of a State, yet being a +State, to justify the acts of its citizens, to explain the proposition +that a State can oppose the United States, within and under the +Constitution, in regard to any law of the United States about which +this essential right of judgment, whether the aggression of the United +States has carried it beyond the powers of the Constitution, or not, +is claimed to exist? + +_Mr. Larocque_: I thought I had been very explicit on that. I said, in +the first place, that I had nothing to do with the question of right +or wrong. I said this: That a collision had occurred between the +government of the State and the Federal Government; that each being +sovereign, within the limitation of its powers, had a right to judge +for itself whether the occasion for such a collision had occurred, or +not; that these prisoners, citizens of the States which had decided +that such a case had occurred, as subjects owing allegiance to two +equal and co-ordinate sovereigns, which had come into hostile +collision with each other, must exercise, upon their consciences, +their election to which Sovereign they would adhere; and that, +whatever may be the unfortunate consequences, they are not responsible +before the tribunal of the other sovereignty because they adhered to +one of them; that they would be no more responsible before the +criminal tribunals of South Carolina if, in this contest, they had +adhered to the General Government and borne arms against their native +State, than they are responsible in the tribunals of the Federal +Government because, exercising their own consciences, they had adhered +to the State and not to the Federal Government. I say it is like the +case of a child whose parents disagree, and who is obliged to adhere +either to his father or his mother; and that he violates no law of God +or of man in adhering to either. + +_Mr. Smith_: If the Court please, I rise for a purpose different from +the remark that I wish to make in reply to the last illustration of my +learned friend. I might say that the instance of a child is one very +parallel to that we might have given--that the father is the superior +authority, where there is a difference between two parents. + +I rise, however, to present to the Court, as one of the authorities, +or rather a citation which will receive its respectful consideration, +the Charge of Mr. Justice Grier, in the case tried in Philadelphia; +and also the opinion of Judge Cadwalader, in the same case. + +_Mr. Brady:_ Who reported this? + +_Mr. Smith_: I received it, by telegraph, from the District Attorney +of Philadelphia; and it is also printed in a newspaper published last +evening in Philadelphia. I have compared them, and the two accounts +perfectly agree. I do not cite them as authority, but as entitled to +the respectful consideration of the Court. + +_Mr. Brady_: As, now-a-days, what the newspapers publish one day they +generally contradict the next, I think any report should be taken with +some grains of allowance, at least. I suppose I would recognize the +style of Judge Grier. + +_Mr. Blatchford_: I think you will, on examining it. It is evidently +printed from the manuscript. + +_Mr. Smith_ read the charge of Judge Grier in the case of the +privateers tried in Philadelphia. + +_Mr. Brady_: Tell me what question of fact was there left to the Jury? + +_Mr. Smith_: I refer you to Judge Cadwalader's opinion, which is much +longer. + +_Mr. Brady_: I do not see that there was anything left for the Jury. +Judge Grier decided that case,--which undoubtedly he could do, for he +is a very able man. + +_Mr. Sullivan_ put in evidence the log-book of the Savannah. + + +ARGUMENT OF MR. MAYER, OF COUNSEL FOR THE DEFENCE. + +MR. MAYER said:--May it please your honors,--A foreign-born citizen +now rises, on behalf of eight of the defendants, who, as it has been +conceded by the prosecution, are subjects of foreign States. It might +appear almost superfluous, after the full and eloquent argument of our +venerable brother--I was almost tempted to say father (Mr. LORD)--for +one of the junior counsel for the defence to say anything. Still, I +thought it incumbent on me to anticipate a construction or +interpretation which the prosecution may attempt to make, by offering, +myself, a proposition. But before reading it, I will, as briefly as my +proposition is brief, state my comment thereon. + +Let us, in the first place, look at the aspect of the relations in +which these foreigners stood at the time of their committing this +alleged offence. They are all sea-faring men. Their various crafts had +been locked up in the port of Charleston by the blockade there. +Business, as we have heard here in evidence, was prostrated. Nothing +was left for them but to enlist in the army of the Confederacy, or to +become privateers. It is certainly a pity that they did not choose the +first alternative; for, even if they had been caught with arms in +their hands, their fate would now be far better than it is. They would +not now be in jeopardy of their lives, threatened with the pains and +penalties of a law that is not applicable to them. But being, as I +said before, inured to the life of seafarers, they chose to become +privateers. + +We must, however, in judging of their act, place ourselves in their +position. They were foreigners. As foreigners, they brought to this +country views and notions as regards their act which are widely +different from those sought to be enforced here. They knew the +practice and theories of Europe in regard to their act. What are those +views and theories? I can state them in a very few words, and am sorry +that the authorities to which I shall refer are in a language which +may not be familiar to your honors. I will, however, state their +effect. It is this: Whenever a rebellion in any country has assumed +such extensive magnitude as no longer to be a simple insurrection, +which may be put down by police measures or regulations, but has come +to such a degree that mighty armies are opposed to each other, +although the revolted portion may not have been acknowledged by any +nation, yet belligerent rights must be granted to it. This is the +notion, or theory, which has entered into the mind of every European, +to whatever State or nation he may belong. I may be permitted to quote +a few historical facts to show why this is so. When the Netherland +Colonies revolted against Spain the privateers of the Prince of +Orange, even before he was elected Admiral General by those Colonies, +were by most nations recognized. They were only not recognized by some +of those nations against which they committed depredations; and it is +a historical fact that a great many of those privateers commissioned +by the Prince of Orange became pirates. + +Another case is furnished by our own Revolution. It is known to all +Europeans that, although in the beginning of the American Revolution +England did not recognize the belligerent rights of America, yet, +after some time, she did recognize those rights, even by a +Parliamentary Act. I refer to 16 George the Third, ch. 5. The same was +the case in the French Revolution; and there I may refer to a very +curious fact. England recognized the privateers of the revolutionary +Government of France, so far as those privateers went against other +nations; but when they cruised against her own commerce she did not +recognize them. She remonstrated with Denmark because Denmark had +recognized them, and Denmark simply pointed to her (England's) own +course. + +All these facts are very well known to every European, and it is with +a knowledge of these facts that every European looks upon a +revolution. To express it in a very short sentence, it is the theory +of "Let us have fair play." + +If your honors please, I may say that this notion of belligerent +rights in revolution has entered into the flesh and blood of every +European to such an extent, that the only nation which does not allow, +in revolution, that fair play, is despised and hated, except by these +United States. I mean Russia. Russia is now very friendly towards this +Union; not, however, I may be permitted to state--reversing an +oft-quoted passage of Shakspeare--not because she loves Rome more, but +that she loves Cæsar less. It is not out of love for this country, but +because the diplomatists of Russia--the farthest-seeing diplomatists +of Europe--hope that England and France will interfere in the contest +between these States, and that she may get an opportunity to return +the compliment to these two powers which she received from them at +Sebastopol. With a knowledge of these facts, and with these European +theories, these foreigners, now indicted under the Act of 1790, +entered into this privateering business. + +They saw, as I said before, Charleston blockaded. To them a blockade +is an act of belligerent rights. They saw a constitutional government +adopted in the Confederate States. They never dreamed that, if they +wished to embark in this privateering business, they should be treated +as pirates. They knew well, as every European knows who has any +knowledge of international law, that there are two kinds of +piracy--piracy by international law, and piracy under municipal +law--municipal piracy, or, as Mr. LORD called it yesterday, statutory +piracy. + +And now I refer, as to the right of one nation making anything piracy +that is not piracy by the law of nations, to Wheaton, volume 6, page +85; 1st Phillimore, 381; and to 1st Kent, 195. I will not take up the +time of your honors in reading all these passages, but I hold here the +last work on international law. It is, however, written in the German +language. It is of unbounded authority on the Continent, and has been +translated into French and Greek. It is very frequently referred to by +all those authors whom I have just quoted. It states this theory in +two lines, which I will read to your honors in a translation: + + "Laws of individual nations (as, for instance, the French law of + the 10th April, 1825) may, so far as their own subjects are + concerned, either alter the meaning of piracy, or extend its + operation; but they are not allowed to do that to the prejudice of + other States." + +I refer to Hefter on Modern International Law, 4th ed., page 191. + +From this we can see that there are two kinds of piracy--national +piracy and municipal piracy. No State can be prevented by any law of +nations from making anything piracy which that State pleases. For +instance, there is a law of piracy in Spain that any person committing +frauds in matters of insurance is a pirate; or that any one even +cutting the nets of a simple fisherman is a pirate. I might quote other +instances. In our own country the slave-trade is a piracy; but that +does not make it piracy everywhere. In some of the States of Germany +slave-trade is kidnapping, and is punished as such. + +What, now, is the relation of these foreigners to this municipal +piracy, under the indictment with which they stand charged? That it is +municipal piracy, I need not say anything further, after the full +argument of our friend and father, Mr. Lord. The law is very distinct. +It is, "if any _citizen_ shall do so and so." But how do these men come +in? Here I come to the point why I thought it fit and incumbent on me +to offer my propositions. The prosecution will certainly stretch, as I +said before, the construction and interpretation of the law in this +way: It will say, "These men were apprehended on an American bottom, +and, being on an American bottom, they were on American soil, and as, +according to criminal law, they are protected by our law, so they are +bound by our law." This, I apprehend, is the theory on which the +prosecution will urge that these foreigners--notwithstanding the +distinct expression of the law, "if any citizen"--shall be found guilty +under this indictment. But as they are foreigners to this law, so is +this law foreign to them. And there is a principle in criminal law +which says--I read from section 238 of Bishop's Criminal Law, vol. I.-- + + "It is a general principle that every man is presumed to know the + laws of the country in which he dwells, or, if resident abroad, + transacts business. And within certain limits, not clearly defined, + this presumption is conclusive. Its conclusive character rests on + considerations of public policy, and, of course, it cannot extend + beyond this foundation, though we may not easily say, on the + authorities, precisely how far the foundation of policy extends. We + may safely, however, lay down the doctrine that in no case may one + enter a Court of Justice to which he has been summoned, in either a + civil or criminal proceeding, with the sole and naked defence that + when he did the thing complained of he did not know of the + existence of the law he violated. _Ignorantia juris non excusat_ + is, therefore, a principle of our jurisprudence, as it is of the + Roman, from which it is derived." + +This rule, so essential to the ordinary administration of justice, +cannot be deemed strange in criminal cases generally, because most +indictable wrongs are _mala in se_, and, therefore, offenders are still +conscious of violating the law "written in every man's heart." + +But--and now I refer to the note to this section, which +says--"ignorance of the law of foreign countries is, with the exception +noticed in the text, ignorance of fact which persons are not held to +know." The author cites the following authorities: Story's Equity +Jurisprudence, sections 110, 23; American Jurisprudence, sections 146 +and 347; to which I would add 8 Barbour's Supreme Court Reports, 838 +and 839, and the case of Rex _versus_ Lynn, 2d Term Report, 233. + +Now, I contend that, as this law under which the indictment is drawn is +a law creating municipal piracy, so it is a law foreign to these +foreigners; that, therefore, as to them, it is a matter of fact, and, +according to the criminal theory, _ignorantia facti excusat_, these +foreigners cannot be found guilty under this law. Municipal piracy, to +carry out the doctrine of this theory, is not _malum in se_; for, as I +said before, international law does not acknowledge it as such, but is +opposed to it as to foreigners; and if I understand well the decision +of the Supreme Court, it is even acknowledged, in the case of the +United States _versus_ Palmer, 3d Wheaton, 610, that the Congress of +the United States cannot make that piracy which is not piracy by the +law of nations, in order to give jurisdiction to its Courts over such +offences. + +Besides, this knowledge of facts enters a good deal into the theory of +intent. So much has been said about the piratical intent, that I can +pass this by in silence. But, with reference to the theory that +foreigners are to be taken as ignorant of facts, I will give an +illustration that was suggested to me this morning by an incident which +occurred on my way to the Court. A little boy in the street handed to +me a card of advertisement which had all the appearance of a bank note. +Now, I remembered at the moment that about three years ago the +Legislature of South Carolina passed a law making the issuing and +publication of such advertisements--such business cards--an offence, +punishable, if I am not mistaken, both by fine and imprisonment. Now +suppose that the great American showman at the corner of Ann and +Broadway should carry his "What is it" or Hippopotamus down to +Charleston, and issue such an advertisement, and he should be brought +before the Court of South Carolina; would it not be unjust, as the +offence is not _malum in se_, to find him guilty? Certainly it would +be; and, according to the same theory, I cannot imagine, by any +possible process of reasoning, that these prisoners should be deemed +guilty under an indictment, when the law was entirely foreign to them. +They may justly say, as they might have known, and did perhaps know, +that our country, too, holds to this simple doctrine: "Let us have fair +play." So when certain provinces rose up in revolt against the parent +or original Government, to conquer, as it were, their independence, +this country maintained a state of neutrality, and granted to both +parties belligerent rights. Many such cases have been cited; but the +most striking one, I am astonished, has not been cited. I will refer to +it now. It is the case of the United States against the Miramon and the +Havana, tried before the District Court of New Orleans. These two +steamers were commissioned vessels, belonging to an authority not only +not recognized by the Government of the United States, but opposed to +the Government which had been recognized by ours. They were +commissioned ships of General Miramon, and were seized and libeled; yet +they were released. Perhaps it would have been better for us if they +had not been released, because they have since given us some +trouble--one of them (the Havana) having been converted into the +ubiquitous Sumter, which is rather a terror to our mercantile marine. + +I will not further trespass upon your honors' time, but will +immediately read my proposition. That proposition is, that, "As to the +defendants who are shown to have been citizens of foreign States at the +date of the alleged offence, the law is, that they cannot be found +guilty of piracy under the present indictment, which includes only +piracy by municipal law--the ignorance of which, as to foreigners, is +not _ignorantia legis_, but _ignorantia facti_. Therefore the defendant +Clarke, and the other foreigners, should be acquitted." + +Before, however, I close my few remarks, I must, in justice to my +immediate client, William Charles Clarke, add another observation. I +have, by submitting to your honors the proposition, separated, as it +were, his case and that of the other foreigners from the rest of the +prisoners. I did so on my own responsibility; for he let me understand +that he did not wish to see his case separated from the others. He +expressed that sentiment to me in a very forcible German proverb. It +was, "_Mitgegangen, mitgefangen, mitgehangen_!"[3] Yet I thought it +incumbent on me, as his counsel, to urge all those circumstances that +might be beneficial to him and to those in the same position,--trusting +that the unity and identity of the fate of all thus severed by me may +be restored in this wise: that the case of these foreigners may be made +also the case of the four citizens, both by the ruling of your honors +and the verdict of general acquittal of the Jury. + + [3] "Gone along, caught along, hanged along." + +_Mr. Brady_--Before Mr. Evarts proceeds to close the legal +considerations involved in the case I feel it proper to advise him of a +point for which I will contend, and on the discussion of which I do not +now intend to enter. I will not admit that Congress had the power, +under the Constitution of the United States, to pass the ninth section +of the Act of 1790, which, upon my construction of it, would punish as +piracy the act of an American citizen who should take a commission from +England or France and then commit an act of hostility on an American +ship or on an American citizen on the high seas. The argument is in a +nutshell; though, of course, I shall give some illustrations at the +proper time. It is this--that there is no common-law jurisdiction of +offences in this Government; that it can take cognizance of no crimes +except those which are created by Act of Congress, including piracy; +and that the authority of the Constitution conferred upon Congress, to +pass laws defining piracy and to punish offences against the law of +nations, relates only to such offences as were then known, and does not +invest the Legislature of the Federal Government with authority, under +pretence of defining well-known offences, to create other and new +offences, as is attempted to be done in the Act of 1790. + + +ARGUMENT OF MR. EVARTS. + +_Mr. Evarts_ said: If the Court please, I shall hardly find it +necessary, in stating the propositions of law for the Government, to +consume as much time as has been, very usefully and very properly, +employed by the various counsel for the prisoners in asking your +attention to the views which they deem important and applicable in +defence of their clients. The affirmative propositions to which the +Government has occasion to ask the assent of the Court, in submitting +this case to the Jury, are very few and simple. Your honors cannot have +failed to notice that all the manifold, and more or less vague and +uncertain, views of ethics, of government, of politics, of moral +qualifications, and of prohibited crimes, which have entered into the +discussion of the particular transaction whose actual proportions and +lineaments have been displayed before the Court and Jury, are, in their +nature, affirmative propositions, meeting what is an apparently clear +and simple case on the part of the Government, and requiring to be +encountered on our part more by criticism than by any new and positive +representation of what the law is which is to govern this case under +the jurisprudence of the United States. + +I shall first ask your honors' attention to the question of +jurisdiction, which, of course, separates itself from all the features +and circumstances of the particular crime. Your honors will notice that +this question of jurisdiction does not, in the least, connect itself +with the subject or circumstances of the crime, as going to make up its +completeness, under the general principles which give the _locality_ of +the crime as the _locality_ of the trial. With these principles, +whether of right and justice, or of convenience for the adequate and +complete ascertainment of the facts of an alleged crime, we have no +concern here. The crime complained of is one which has no locality +within the territorial jurisdiction of the United States, and assigns +for itself, in its own circumstances, no place of trial. From the fact +that the crime was completed on the high seas, equally remote, perhaps, +from any District the Courts of which might have cognizance of the +transaction, there are no indications whatever, in its own +circumstances, pointing out the jurisdiction for its trial. It is, +therefore, wholly with the Government, finding a crime which gives, of +itself, no indication of where, on any principle, it should be tried, +to determine which of all the Districts of the United States in which +its Courts of Judicature are open,--all having an equal judicial +authority, and all being equally suitable in the arrangement of the +judicial establishment of the Union,--it is entirely competent, I say, +for the Government to determine, on reasons of its own convenience, +which District, out of the many, shall gain the jurisdiction, and upon +what circumstances the completeness of that jurisdiction shall depend. + +It is not at all a right of the defendant to claim a trial before a +particular tribunal, nor are there any considerations which should +prevent the selection of the place of jurisdiction through whatever +casual agency may be employed in that selection. In the eye of the law, +the Judges are alike, and the Districts are alike. Congress, +considering the matter thus wholly open, in order that there might be +no contest open for all the Districts, and assuming that there would be +some natural circumstance likely to attend the bringing of the offender +within the reach of civil process, when a crime had been committed +outside of the civil process of every nation, determined, by the 14th +section of the Crimes Act of March 3d, 1825, which gives the law of +jurisdiction in this case, that the trial should be "had in the +District where the offender is apprehended, or into which he may be +first brought." Nor is it a true construction of this statute to say +that the law intends that the cognizance of the crime--all of the +Districts being equally competent to try it, and there being nothing in +the crime itself assigning its locality as the place of trial--shall +belong exclusively to that Court which shall first happen to get +jurisdiction by the actual bringing of the offender within its +operation. If that be true, it is apparent that neither one of the +Districts thus differently described has jurisdiction exclusively of +the other. Now, the language of the statute certainly gives this double +place of trial in the alternative; and it is very difficult to say what +principle either of right, of convenience, or of judicial regularity, +is offended by such a construction and application of the statute. +Accordingly, I understand it to have been held by Mr. Justice Story, in +the case of _The United States_ vs. _Thompson_ (1 _Sumner_, 168), that +there were these alternative places of trial; and, as a matter of +reasoning, he finds that such arrangement is suitable to the general +principles of jurisprudence, and to the general purposes of the +statute. Now, if this be so, then, as we come, in this District, within +one of the alternatives of the statute, and as this District is +confessedly the one in which the apprehension of the offenders took +place, we are clear of any difficulty about jurisdiction. + +The case of Hicks, decided here, was, perhaps, not entirely parallel to +the one now under consideration. But, let us see how far the views and +principles there adopted go to determine this case, in the construction +of the statute in any of its parts. Hicks had committed a crime on the +high seas--in the immediate vicinity, I believe, of our own waters. +Making his way to the land, he proceeded unmolested to Providence, in +Rhode Island. The officers of justice of the United States, getting on +his track, pursued him to Rhode Island, and there he was found, +unquestionably within the District of Rhode Island. They did not obtain +his apprehension by legal process there, and thus bring him within the +actual exercise of the power of a Court of the District of Rhode +Island; but they persuaded him, or in some way brought about his +concurrence, to come with them into the District of New York, and here +the process of this Court was fastened upon him, and he was brought to +trial on the capital charge of piracy. On a preliminary plea to the +jurisdiction of the Court, and on an agreed state of facts, to the +effect, I believe, of what I have stated, the matter was considerably +argued before your honor, Judge Nelson, on behalf of the prisoner; but +your honor, as I find by the report, relieved the District Attorney +from the necessity of replying, considering the matter as settled, +under the facts of the case, in the practice of the Court. Now, the +argument there was, that the District of Rhode Island was the District +where the offender was apprehended; and it could not be contended that +the Southern District of New York was the one into which he was first +brought by means other than those of legal process. And the argument +was, that the crime for which he was to be tried here, being a felony, +any control of his person by private individuals was a lawful +apprehension, and one which might be carried out by force, if +necessary; and that, therefore, there was, in entire compliance with +the requisition of the statute, an apprehension within the District of +Rhode Island. If, under the circumstances of that case, that view had +been sustained by the Court, it could not have been, I think, pretended +that the Courts of this District had concurrent jurisdiction, because +of Hicks having been first brought into this District. The whole +inquiry turned on the question whether he was apprehended in the +District of Rhode Island. + +In considering the case, your honor, Judge Nelson, recognized, as I +suppose, the view of the alternative jurisdiction which I have stated. +You said to the District Attorney: "We will not trouble you, Mr. Hunt. +The question in this case is not a new one. It is one that has been +considered and decided by several members of the Supreme Court, in the +course of the discharge of their official duties. It has repeatedly +arisen in cases of offences upon the high seas, and the settled +practice and construction of the Act of Congress is, that in such cases +the Court has jurisdiction of the case, in the one alternative, in the +District into which the offender is first brought from the high +seas--meaning, into which he is first brought by authority of law and +by authority of the Government. In cases where the offender has been +sent home under the authority of the Government, the Courts of the +District into which he is first brought, under that authority, are +vested with jurisdiction to try the case. The other alternative is, the +District in which the prisoner is first apprehended--meaning an +apprehension under the authority of law--under the authority of legal +process. This interpretation of the Statute rejects the idea of a +private arrest, and refers only to an arrest under the authority of law +and under legal process. It is quite clear, in this case, that no +District except the Southern District of New York possesses +jurisdiction of the offence; for here the prisoner was first +apprehended by process of law. We do not inquire into anything +antecedent to the arrest under the warrant in this District, because it +has no bearing whatever upon the question of the jurisdiction of the +Court. We have no doubt, therefore, that the Court has jurisdiction of +the case, and that this is the only District in which the prisoner can +be tried." + +Now I owe the Court and my learned friend, Mr. Lord, an apology for +having supposed and stated that the provisions of the Act of March 3d, +1819, giving certain powers to the naval officers of the United States +"to protect the commerce of the United States," as is the title of the +Act, were not now in force. I was misled. The Act itself was but +temporary in its character, being but of a year's duration. By the Act +of May 15th, 1820, the first four sections of the Act of March 3d, +1819, were temporarily renewed. But afterwards, by the Act of January +30th, 1823, those four sections were made a part of the permanent +statutes of the country. The substantial part of the Act of March 3d, +1819, namely, the fifth section, which defined and punished the crime +of piracy, was repealed, and replaced by the Act of May 15th, 1820, and +has never reappeared in our statutes. + +_Judge Nelson_: It is the fifth section of the Act of 1819 that is +repealed. + +_Mr. Evarts_: Yes; that Act is found at page 510 of the 3d volume of +the Statutes at Large. + +_Mr. Lord_: All that relates to the apprehension of offenders is in +force. + +_Mr. Evarts_: Yes; that is all in force. The Act is entitled, "An Act +to protect the Commerce of the United States, and punish the Crime of +Piracy." The first section provides, that "the President of the United +States be, and hereby is, authorized and requested to employ so many of +the public armed vessels as, in his judgment, the service may require, +with suitable instructions to the commanders thereof, in protecting the +merchant vessels of the United States and their crews from piratical +aggressions and depredations." There is nothing in that section which +is pertinent to this case. The second section provides, "that the +President of the United States be, and hereby is, authorized to +instruct the commanders of the public armed vessels of the United +States to subdue, seize, take, and send into any port of the United +States, any armed vessel or boat, or any vessel or boat, the crew +whereof shall be armed, and which shall have attempted or committed any +piratical aggression, search, restraint, depredation, or seizure, upon +any vessel of the United States or of citizens thereof, or upon any +other vessel, and also to retake any vessel of the United States or its +citizens which may have been unlawfully captured upon the high seas." + +This, your honors will notice, is entirely confined to authority to +subdue the vessel and take possession of it, and send it in for the +adjudication and forfeiture which are provided in the fourth section. + +The third section gives the right to merchant vessels to defend +themselves against pirates. + +There is nothing in the Act which gives to the officers of the +Government the power, or enjoins on them the duty, of apprehending the +pirates. I will now ask your honors' attention to the distinction +between this Act and the powers conferred by the slave-trading Act. + +_Judge Nelson_: The Act of 1819 gives to the commanders authority to +bring home prisoners,--does it not? + +_Mr. Evarts_: It does not, in terms, say anything about them. That is +the point to which I ask your honors' attention. The Act instructs the +commanders of public armed vessels to subdue, seize, take, and send +into any port of the United States, any armed vessel or boat, or any +vessel or boat, the crew whereof is armed, and that may have attempted +or committed any piratical aggression, &c. There is nothing said as to +the arrest of the criminals. It is a question of construction. + +_Judge Nelson_: It is not specific in that respect. + +_Mr. Evarts_: No, sir, it is not specific. Now, in the Act of March 3d, +1819, entitled, "An Act in addition to the Acts prohibiting the slave +trade," which will be found at page 532 of the 3d volume of the +Statutes at Large, a general authority is given to the President, +"whenever he shall deem it expedient, to cause any of the armed vessels +of the United States to be employed to cruise on any of the coasts of +the United States or Territories thereof, or on the coast of Africa, or +elsewhere," "and to instruct and direct the commanders of all armed +vessels of the United States to seize, take, and bring into any port of +the United States, all ships or vessels of the United States, +wheresoever found," engaged in the slave trade. And then comes this +distinct provision in reference to the apprehension and the bringing in +for adjudication of persons found on board of such vessels. It is the +last clause of the first section: "And provided further, that the +commanders of such commissioned vessels do cause to be apprehended and +taken into custody every person found on board of such vessel so seized +and taken, being of the officers or crew thereof, and him or them +convey, as soon as conveniently may be, to the civil authority of the +United States, to be proceeded against in due course of law, in some of +the Districts thereof." + +This Act is the one referred to by Judge Sprague in the case of _The +United States_ vs. _Bird_ (_Sprague's Decisions_, 299) + +_Judge Nelson_: There is limitation to that Act, is there? + +_Mr. Evarts_: No, sir; it is unlimited in duration, and a part of the +law now administered. Now, I need not ask your honors' attention to the +familiar act which gives to Consuls of the United States direct +authority to take offenders into custody and detain them, and send them +by the first convenient vessel to the United States, to be delivered to +the civil authorities to be proceeded against. + +Now, my proposition is this,--that neither under the slave-trading Act, +nor under the Act for the prevention and punishment of piracy passed in +1819, does the extra-territorial seizure, control and transmission of +offenders, exclude the plain terms of the alternative of the statute, +which makes jurisdiction dependent, not on apprehension merely, but on +apprehension within a District; and that, even though there is a +governmental introduction of the offender into a District, making that +District, in a proper sense, the one into which he is first brought, +yet that does not in the least displace the alternative of jurisdiction +of an apprehension within a District, there having been no prior +apprehension, by process, within any other District, as the +consummation and completion of the delivery of the offender to the +civil authorities for the purpose of a trial, the transaction having +been instituted on the high seas or in a foreign port. + +Now, on the facts in this case, there is no room for disputing that the +first apprehension was within this District. Nor can I deny that the +seizure of these persons on the high seas was made by an armed vessel +of the United States, either under the general right which the law of +nations gives both to public and private vessels to seize pirates, or +under the implied right and power to do so, certainly so far as to make +it justifiable on the part of commanders of cruisers, by virtue of the +provision of the Act of 1819 which authorizes them to send in a +piratical vessel. These men were sent in, in the course of such active +intervention, by an armed vessel of the United States. But I submit to +your honors, that the provisions of that Act, which thus incidentally +include, as it were, the transmission of the ship's company of a +pirate, because they are to be subdued, and the ship is to be sent in, +cannot be turned, by any process of reasoning, into anything that can +be called a legal apprehension. I am satisfied that your honor, Judge +Nelson's view, that the term "apprehension" is only meant to apply to +the service of judicial process within a District, is entirely sound. + +The principal argument and the principal authority relied on to +displace the jurisdiction thus plainly acquired under one alternative +of the statute, denies, really, that there is any alternative, or that +there can possibly be two Districts, either one of which may rightfully +have jurisdiction. That, I take it, is the substance of the +proposition. It is, that the alternative gives to one of the two +exclusive jurisdiction; and that, whenever facts have occurred--whether +jurisdiction has been exercised or not--which give to the one District +jurisdiction and an opportunity to exercise it, then, by the prior +concurrence of all the circumstances which fix the statutory +jurisdiction on that District, the possibility of the occurrence of any +new circumstances to give jurisdiction in the other and alternative +District is displaced. + +The case of _The United States_ vs. _Townsend_ has been brought to your +honors' attention in the manuscript record of the preliminary +proceedings. The prisoner, who had been taken and brought into Key +West, where the vessel stopped, as we are told, for the temporary +purpose of supplies, was thence brought into Massachusetts. It is the +record of a proceeding wherein Judge Sprague, with the concurrence of +his associate, Mr. Justice Clifford, of the Supreme Court, sent the +prisoner, in that predicament, back to Key West for trial, and would +not permit an indictment to be found against him in the District of +Massachusetts. We have no knowledge of the facts of that case, except +what are contained in this record. Now, your honors will notice, in the +first place, that this is not a judicial determination as to the right +of jurisdiction of the Massachusetts Court, necessarily; but that, on +the theory which I present, that there are two alternative +jurisdictions, it may have been only a prudent and cautious exercise of +the discretion of that Court, preliminary to indictment, that this man +should be sent, on his own application, to the District of Florida for +trial. In other words, he interposed an objection that he was entitled +to a trial in Key West; and the Court, affirming the opinion that that +District had jurisdiction of the crime, determined that it would send +him there for trial, and that it would not exercise its own +jurisdiction, which might be made subject to some question. And yet it +is not to be denied that Judge Sprague is apparently of the opinion +that there are not two alternative places of jurisdiction, neither one +exclusive of the other; but that they are only alternative as respects +the one or the other which is the first to gain jurisdiction. It is a +little difficult to see, on this view, how there can be any two places, +rightfully described as separate places, one of which is the place into +which the prisoner is first brought, and the other of which is the +place where he is first apprehended; because, in the very nature of the +case, the moment you raise the point that the offender has been in two +Districts, and that in the latter of them he is apprehended, then it +follows that he has passed through the former; and the statute is +really reduced to this--that the offender must be indicted in the +District into which he is first brought. There cannot then be two +different Districts, into one of which he is brought, within the +meaning of the law, and in the other of which he is apprehended; +because, that into which he is first brought must necessarily precede, +in time, that in which he is first apprehended, and he could not have +been apprehended before, in a District other than that into which he is +first brought. So that you necessarily reduce the statute to a fixing +of the place of trial in the District into which the offender is first +brought. + +The case of Smith--the trial just terminated in Philadelphia, in which +the prisoner was tried and convicted before the Circuit Court of the +United States--is an authority of the two Judges of that Court on this +very point, the circumstances of a prior introduction of the prisoner +within the Eastern District of Virginia being much more distinct than +in this case. The capturing vessel was a steamer, which took the prize +into Hampton Roads. The defendant and the others of the prize crew were +kept as prisoners on board this war steamer, which, after anchoring in +Hampton Roads, near Fortress Monroe, went a short distance up the +Potomac, returned, and again anchored in Hampton Roads, after which she +brought the prisoners, including the defendant, into Philadelphia, +where they were taken into the custody of the Marshal. Now, +unquestionably, geographically, that prisoner was within the State of +Virginia, and within the Eastern District of Virginia, rather more +distinctly than in the case now on trial. In that case, the Court +said--"One of the points of law on which counsel for the defence +requests instruction to the Jury is, that the Court has no jurisdiction +of the case; because, after his apprehension on the high seas, he was +first brought into another District, meaning the Eastern District of +Virginia, and ought to be there tried. This instruction cannot be +given. When he was taken prisoner, and was detained in the capturing +vessel, he was not apprehended for trial, within the meaning of the Act +of Congress. His first apprehension for that purpose, of which there is +any evidence, was at Philadelphia, after his arrival in this District. +Whether he had been previously brought into another District, within +the meaning of the Act, is immaterial"--recognizing the doctrine of two +alternative jurisdictions, neither exclusive of the other. "It has been +decided that, under this law, a person, first brought into one +District, and afterwards apprehended in another, may be tried in the +latter District. Therefore, if you believe the testimony on the +subject, this Court has jurisdiction of the case." + +Now, your honors very easily understand, that without any election or +purpose on the part of any authority, civil or naval, representing the +Government, a prisoner may be brought into a District, yet never come, +in any sense, under the judicial cognizance of that District. In this +case, these prisoners might have escaped from the Harriet Lane, and +have fled to Massachusetts, or Pennsylvania, or wherever else their +fortune should have carried them, and might there have been first +apprehended. Now, what is there in the nature of the jurisprudence of +the United States, in respect of a crime committed outside of both +Districts, which should prevent the jurisdiction of Massachusetts being +just as effective as the jurisdiction of New York? If such be the law, +I have no occasion to argue any further. But the decision of Judge +Sprague is, in my judgment, quite opposed to that view of the law; and +I, must, therefore, present to your honors some considerations which, +in my judgment, make this the District, in the intendment of the +statute, into which these offenders were first brought, as well as the +District in which they were first apprehended. + +The alleged prior introduction of these persons within any other +Judicial District of the United States, within the meaning of the +statute, is shown by the evidence of what occurred in reference to the +transit of the Minnesota, after she had taken them on board from the +capturing vessel, the Perry, off the coast of South Carolina. She +anchored off Fortress Monroe, just opposite Hampton Roads, and there +transferred these prisoners to the Harriet Lane, which brought them +into this District. + +Now, it is said that that incident of the anchorage of the Minnesota in +or near Hampton Roads, and the transhipment of the prisoners to another +vessel, which the exigencies of the naval service sent to New York, did +fulfill the terms of the law in reference to the introduction of those +offenders within a District of the United States, and that they were, +therefore, first brought into the Eastern District of Virginia; and, if +that circumstance displaces the alternative jurisdiction, and thereby +Virginia became the exclusive District of jurisdiction, this trial +cannot be valid, and must result in some other disposition of these +prisoners than a verdict of guilty, if, on the merits of the case, such +a verdict should be warranted. + +What are the traits and circumstances of that transmission? I +understood my learned friend, Mr. Lord, to concede that he would not +argue that the mere transit of the keel of the vessel transporting the +prisoners, in the course of its voyage to a port of destination, +through the waters of another District, was an importation or +introduction of the offenders into that District, so as to make it the +place of trial. Take, for instance, the case of a vessel making a +voyage from Charleston to New York. For aught I know, certainly, within +the practicability of navigation, her course may be within a marine +league of the shore of North Carolina, of the shore of Virginia, of the +shore of Maryland, and of the shore of New Jersey, before making the +port which is the termination of her transit. Well, my learned friends +say that they do not claim that this local position of a vessel within +a marine league while she is sailing along, is, within any sensible +view of the statute, an introduction into the District, so as to found +a jurisdiction. + +Let us see, if your honors please, whether the transit of these +prisoners from the capturing vessel to the Marshal's office in New York +was not simply part of the continuous voyage of the vessel from one +point to the other. Where was the Minnesota, and on what employment and +duty, at the time she received these prisoners on board? She was the +flag ship, as the Commodore has told us, of the Atlantic Blockading +Squadron, and her whole duty was as a cruiser or blockading ship, at +sea, in discharge of the duty assigned to her. + +I take it for granted that my learned friends will not contend that a +vessel, pursuing her voyage continuously along the coast of North +Carolina and the coast of Virginia, introduces an offender within a +District by stopping, either under any stress of navigation, or for any +object unconnected with any purpose to terminate her voyage, or that +the fact of her being becalmed, or of her having anchored off the coast +to get water or supplies, and having then pursued her voyage +continuously to New York, would alter the character of the transit, in +any legal construction that it should receive. + +Now, what did the Minnesota do? The Commodore took the prisoners on +board that vessel, as he tells you, for the purpose of sending them to +New York by the first naval vessel that he should be able to detach +from the service. Did he, in the interval between the capture and the +complete transmission and reception of the prisoners here, ever make a +port or a landing from his vessel, or ever depart from the design of +the voyage on which he was engaged? No. He was on his cruise, bound to +no port, always at sea, and only in such relations to the land as the +performance of his duty to blockade at such points as he saw fit, +whether at Charleston or the Capes of Virginia, required him to be in. +And there is no difference, in the quality of the act, arising from his +having stopped at Hampton Roads, and thence sent forward the prisoners +by the Harriet Lane, because she was the first vessel that was going to +New York--going, as has been stated, for a change of her armament and +for repairs. + +Now, I submit to your honors, that there is nothing, either in the +design or the act of this blockading vessel, the Minnesota, or of the +Harriet Lane, that causes the course of transmission of these prisoners +to the point of their arrest in this District to differ from what it +would have been if, with an even keel, and without any interruption, +the capturing vessel, the Perry, had started for New York, and had, in +the course of her navigation, come within the line of a marine league +from the shore of some District of the United States, and had, +perchance, anchored there, for the purpose of replenishing her supplies +for the voyage. In other words, in order to make out, within the terms +of the statute, a bringing into a District of the United States, so as +to make it a District of jurisdiction, within the sense of the statute, +it is impossible for the Court to fail to require the ingredient of a +voyage into a port, at least as a place of rest and a termination of +the passage of the vessel, temporary or otherwise. That is requisite, +in order to make an introduction within a District. And I cannot +imagine how his honor, Judge Sprague, or his honor, Judge Clifford, +could, in the case before them, have given any such significance to the +prior arrival of the vessel of the United States at Key West; for, it +was but a stopping at an open roadstead for the purpose, not of a port, +but of continuing at sea or in the sea service of the country. + +Your honors will notice that, by such a construction of the Act, +instead of making the place where jurisdiction shall be acquired +dependent on some intelligent purpose, in the discretion of the +officers who control the person of the prisoner, as to where he shall +be landed, you make the question of jurisdiction dependent upon the +purest accident in the navigation of the vessel. Thus, in this +particular case, the Captain of the Minnesota tells us he had not coal +enough to come directly to New York, if he had designed to do so, and +that he stopped at his blockading station and sent the prisoners on by +another vessel, which the exigencies of the service required to make +the voyage. + +There is another proposition upon this question of jurisdiction which I +deem it my duty to make to your honors, although I suppose the whole +matter will be disposed of on considerations which have been presented +on one side or the other, and, as I suppose, in favor of the +jurisdiction. Yet I cannot but think that the rules of jurisprudence +and the regular and effective administration of criminal justice will +suffer if these questions are to be interposed and to be passed upon by +the Court at the same time as the indictment itself. Where the question +of the locality of the trial forms no part of the body of the crime, +and has nothing to do with the place where the crime was committed, but +is wholly a question of the local position of the prisoner, then the +exception to the jurisdiction can only be taken as a preliminary plea, +or in the shape of a plea in abatement. That was the construction in +the Hicks case, and is the general rule in reference to jurisdiction in +civil cases which are dependent upon the proper cognizance of the +person of the defendant. I refer to the cases of _Irvine_ vs. _Lowry_, +(14 _Peters_, 293;) _Sheppard_ vs. _Graves_, (14 _Howard_, 505;) and +_D'Wolf_ vs. _Rabaud_, (1 _Peters_, 476.) + +_Mr. Larocque_: I ask what particular point is decided by those cases? + +_Mr. Evarts_: They are wholly on the point that where the jurisdiction +of a Court of the United States depends, not on the subject matter of +the suit, but on the District where the defendant is found, or on the +citizenship of the parties, an objection to the jurisdiction must be +taken by a plea in abatement. + +_Mr. Larocque_: But suppose it depends upon the place where the crime +was committed, whether in New York or Ohio, whether on land or at sea? + +_Mr. Evarts_: It is not necessary to ask that question, for I have +expressly excluded that consideration by the preliminary observation, +that the locality of the trial forms no part of the body of the crime. +In this case, the crime having been committed outside of any locality, +it is wholly a question of the regularity and legality of the means +whereby the criminal has been brought into the jurisdiction--nothing +else. + +_Mr. Larocque_: Does the counsel cite these cases to show that want of +jurisdiction must be pleaded in abatement? + +_Mr. Evarts_: It is the rule in civil cases. Now, your honors will see +that the question forms no part of the issue of guilty or not guilty. + +_Mr. Larocque_: Will you look at the last averment in your indictment? + +_Mr. Evarts_: I repeat, that it forms no part of the body of the crime, +and no part of the issue of guilty or not guilty, that is to be +determined by the Jury. If the Jury, upon the issue of guilty or not +guilty, should pass upon the question as to what District the defendant +had been first brought into, or as to what District he was apprehended +in, and should find that this Court had no jurisdiction, he would be +entitled to an acquittal on that ground, and that acquittal would be +pleadable in bar if he were put on trial in the proper District; for, +there is no mode, that I know of, of extricating this part of the issue +from the issue on the merits of the case, when it is decided by a +verdict. There is no possibility of discriminating in the verdict. +There is no special verdict and no question reserved. It is a verdict +of not guilty. And, therefore, on the question of regularity of +process, the crime itself is disposed of--the whole result of the +judicial investigation being that the trial should have been in another +District. + +But, where the locality of the crime forms a part of its body, of +course, the Government, undertaking to prove a crime to have been +committed within a District, rightly fails if the crime is shown not to +have been committed within that District. + +_Mr. Larocque_: And then can they not try it where it was committed? + +_Mr. Evarts_: I should not like to be the District Attorney who would +try it. + +Now, if the Court please, upon the matters connected with the merits of +this trial, the first proposition to which I ask your honors' attention +is--that the Act of April 30th, 1790, in the sections relating to +piracy, is constitutional, and that the evidence proves the crime as to +all the prisoners under the eighth section, and as to the four citizens +under the ninth section. The crime is also charged and proved against +all the prisoners under the third section of the Act of May 15th, 1820. + +I do not know that your honors' attention has been drawn to the +distinction between the eighth section of the Act of 1790 and the third +section of the Act of 1820. The counts in the indictment cover both +statutes, and both statutes are in force. The words of the eighth +section of the Act of 1790 are these: + + "If any person or persons shall commit, upon the high seas," + "murder or robbery," "every such offender shall be deemed, taken + and adjudged to be a pirate and felon, and, being thereof + convicted, shall suffer death." + +The whole description of the crime is "murder or robbery" "upon the +high seas." + +The third section of the Act of 1820 adds to that simple description of +criminality certain words not at all tautological, but making other +acts equivalent to the same crime. The section provides that, "if any +person shall, upon the high seas, or in any haven, &c., commit the +crime of robbery in or upon any ship or vessel, or upon any of the +ship's company of any ship or vessel, or the lading thereof, such +person shall be adjudged to be a pirate, and, being thereof convicted," +"shall suffer death." Beyond the simple word, "robbery," is added, "in +or upon any ship or vessel, or upon any of the ship's company of any +ship or vessel, or the lading thereof." + +_Judge Nelson_: The fifth section of the Act of March 3d, 1819, +provides for piracy on the high seas according to the law of nations. +The previous Act of 1790, and the third section of the Act of 1820, +prescribe the punishment of the crimes of murder and robbery on the +high seas. + +_The District Attorney_: The Act of 1820 does not refer to murder, only +to robbery on the high seas. + +_Judge Nelson_: It denominates as a pirate a person guilty of robbery +on the high seas. + +_Mr. Evarts_: But the body of the crime is the robbery, and not the +epithet. + +_Mr. Brady_: That is the question. + +_Mr. Evarts_: But, in the fifth section of the Act of 1819, the +provision is, that "if any person shall, on the high seas, commit the +crime of piracy as defined by the law of nations." + +_Judge Nelson_: That is a different offence. + +_Mr. Evarts_: Yes, and is open always to the inquiry, what the law of +nations is. + +Now, that Act of 1790 is, we say, constitutional. And here I may as +well say what seems to be necessary in reference to the point made by +Mr. Brady on behalf of the prisoners. He will contend, he says, that +the ninth section of the Act of 1790 is beyond the constitutional power +of Congress--its constitutional power in the premises being limited, as +he supposes, to the right to define and punish the crime of piracy. + +_Mr. Brady_: "And offences against the law of nations." + +_Mr. Evarts_: To that explicit clause in the Constitution. + +Now, your honors will notice what the crime in the ninth section of the +Act of 1790 is. It is not piracy so described, nor robbery so described +merely, but it is a statutory definition of the crime, which includes a +particular description and predicament of the offender (the eighth +section having included all persons), and also defines the subject of +the robbery, or the object of the piratical aggression. It is this: "If +any citizen shall commit any piracy or robbery aforesaid, or any act of +hostility against the United States, or any citizen thereof," &c. +"Piracy or robbery aforesaid" would, of course, include the definition +of the crime as embraced in the eighth section. But, the ninth section +proceeds to add a new and substantive completeness of crime, not +described either as piracy or robbery, to wit: "Or any act of hostility +against the United States, or any citizen thereof, upon 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, 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? Now that, undoubtedly, is the jurisdiction +under the law of nations, and neither by the Constitution has Congress +received any greater power under the law of nations than that, nor, I +respectfully submit, can it receive any greater power under the law of +nations; that is, Congress cannot receive any power greater than that +which other nations, not bound by our municipal statutes, would be +bound to respect, as sustained by the law of nations. Now I agree that +"any act of hostility against the United States, or any citizen +thereof," would not necessarily be up to the grade and of the quality +of piracy under the law of nations; and that the Congress of the United +States, in undertaking to make laws which would create an offence, and +punish it as piracy, which was not piracy by the law of nations, and in +seeking to enforce its jurisdiction and inflict its sanctions on a +people who owed it no municipal obedience, and in protection of +property over which it had no municipal control, and no duty to +perform, could not control foreign nations; and that foreign nations +would not be bound to respect convictions obtained under such a +municipal extension of our law over persons never subject to us, and in +respect to property never under our dominion. + +And thus your honors see that, just in proportion as the ninth section +has extended the crime, it has limited both the persons to whom the +statute is applied, and the property in respect of which the crime is +defined. It is wholly limited to our own citizens, subject to whatever +laws we choose to make for our own government, and in respect of the +marine property of the United States, and of its citizens when at sea, +which, by every rule of the extension or limit of municipal authority, +is always regarded, on general principles of public jurisprudence, as a +part of the property and of the territory of the nation to which the +ship and cargo belong, wherever it may be on the high seas. + +Now, this ninth section, I suppose, if your honors please,--and such I +understand to be the views of Judge Sprague, as expressed by him to the +Grand Jury, at Boston,--proceeds and is supported on the general +control given by the Constitution to Congress over all external +commerce, which, I need not say, must, to be effective, extend to the +criminal jurisprudence which protects against wrong, and the criminal +control which punishes crime perpetrated by our citizens on our own +commerce on the high seas. My learned friend would certainly not +contend that the different States had this authority in reference to +crimes on the high seas. And, if they have not that authority, then, +between these jurisdictions, we should have omitted one of the most +necessary, one of the most ordinary, one of the wisest and plainest +duties of Governments in regard to the protection of their commerce. +For, it is idle to say that there are no crimes which may be committed +at sea which are not piracy, and that there is no protection needed for +our own commerce against our own citizens which does not fall within +the international law of piracy. + +_Mr. Brady_: I ask Mr. Evarts' permission to make a suggestion upon +this point, which it is due to him, and to myself, also, that I should +present, that I may hear his views in respect to it. I would ask the +learned gentleman, and the Court, to suppose the case of an American +citizen who, on the breaking out of a war between the United States and +England, should be residing in England as a denizen, and who had +resided there for many years, and who should take a commission for +privateering from the British Government, regularly issued, having +about it all the sanctions belonging to such an authority, and who, in +the prosecution of a war, should take an American prize,--would he be +liable to be convicted in the Courts of the United States of piracy or +robbery, under the act of 1790? He clearly would, on its language. And +then the question occurs--Had Congress any authority to pass such a +law? + +Now, I will put a case which is stronger, and which comes equally +within the plain terms, purview, and spirit of that Act, upon a literal +construction. Suppose that two American vessels should come into +collision on the Pacific Ocean, each manned and officered exclusively +by American citizens, and, an angry feeling being engendered, the +Captain of one of them should direct a sailor to throw a belaying-pin +at the Captain of the other, and the sailor should do it. That would +clearly be an act of hostility against one citizen of the United States +perpetrated by another, and would be perpetrated under pretence of +authority from a person, to wit, the Captain of the ship who gave the +violent order. Would the sailor be liable to a conviction for that +offence, as a pirate or robber? and would Congress have the authority +to pass such a law? I doubt it very much. + +_Mr. Evarts_: I agree with my learned friend that the case which he +first stated is not only within the words, but within the intent, of +the ninth section. + +_Mr. Brady_: That an American citizen cannot take a commission from a +foreign Government without being a pirate? + +_Mr. Evarts_: To serve against the United States, he certainly could +not; and, if the law of nations and the rights of citizens require that +a Government which demands allegiance and repays it by protection +cannot make penal the taking of service from a foreign power against +itself, I do not know what a Government can do. So much for the general +right or power of a Government. If the particular and clipped +interpretation of our Constitution has shorn our Government of that +first, clearest, and most necessary power, why, very well. Such a +result follows, not from that power or its exercise being at variance +with the general principles or powers of Government, but because, as I +have said, in the arrangement of the Government, there has fallen out +of the general fund of sovereignty this plain, and clear, and necessary +right. + +But, on the second instance which my learned friend has put, I am +equally clear in saying, that the case he there suggests is not within +the statute of 1790, simply because, although by a forced and literal +construction, if you please, about which I will not here quarrel, my +learned friend thinks he places it within the general terms of the +ninth section, yet I imagine your honors will at once come to the +conclusion, which seems to my poor judgment a sensible one, that the +case he puts has nothing to do with the subject matter of the statute, +within its intent or purpose--and that, simply, because the statute has +not chosen to cover the case proposed, by applying to it so extravagant +a penalty. It is not from any defect in the power of Congress. Congress +does punish just such an offence as the one suggested, whenever the +weapon and the assault make it of the gravity of offences to which +Congress has chosen to apply its penal legislation. The statute +covering such an offence is enforced every day in this Court. And, +certainly, I do not need to argue that, if Congress had the right to +pass a statute prohibiting an assault with a belaying-pin, it had the +right to call the offence piracy, if it pleased, and might punish it by +hanging, if it saw fit; and, for that, it is not amenable to the law of +nations, nor is its power exercised with reference to piracy under the +law of nations when it deals with that class of offences. + +I certainly do not need to fortify my answer to the case first put by +my learned friend, in regard to the right of a nation to punish its +citizens for taking service against its own country and commerce, by +the practice or the legislation of other nations. But your honors will +find, in the statutes of Great Britain--the statutes of 11 and 12 +William III., and 2 George II.--precisely the same exercise of power +and authority, and to the same extent, as respects the gravity of the +crime and the punishment prescribed for it. And it would seem to me to +be one of the plainest rights and most necessary duties of the +Government, if its attention is called to any proclivity of its +citizens to take service against itself, to punish them not as +prisoners of war, and not under the laws affecting privateers. + +_Mr. Brady_: I will only mention to you that, when I argue the question +hereafter, and answer your suggestions, I will refer to the case of +_The United States_ v. _Smith_, (5 _Wheaton_, 153,) where Mr. Webster +conceded, in the Federal Court, that this original Act defining piracy +was, as respects the language I have referred to, not a constitutional +exercise of the power conferred on Congress. He took the ground that +the statute made a general reference to the law of nations as defining +piracy, whereas, in his view, Congress should have proceeded to state +what were the elements of the offence. I want to use that, in my +argument, as an illustration of how strictly the Courts have held that +it was never intended that even the case of taking a commission in a +foreign service and making war against the United States, which might +be treason, should be converted into piracy by any necromancy or +alchemy of the law, such as the gentleman seems to have in view. + +_Mr. Evarts_: Whenever a statute declares an offence to be a certain +offence, that offence the Courts must hold it to be. The nomenclature +of the Legislature is not to be quarreled with by the Courts which sit +under its authority. They are to see that the crime is proved. What the +crime is called is immaterial. + +_Mr. Brady_: Then the Legislature might say that speaking offensive +words on the high seas by our citizens is piracy. + +_Mr. Evarts_: They can call it piracy, and punish it. + +_Mr. Brady_: Yes, by death! + +_Mr. Evarts_: It does not come under the law of nations as piracy, but +under the general control of Congress over our citizens at sea. In +other words, no nation depends, in the least, on the law of nations and +its principles for the extent of its control over its own citizens on +the high seas, or for the extent of the penalties by which it protects +its own commerce against the acts of its own citizens on the high seas. +It takes cognizance of such offences by the same plenary power by which +it takes cognizance of offences on land. The difference with us would +be, that the State government would have the control of these offences +when committed on the land, as a general rule, and they would come +within the Federal jurisprudence and the Federal legislation only by +their being committed on the high seas. Now, what was said by Mr. +Webster in the case of _The United States_ v. _Smith_, a case arising +under the Act of 1819? Mr. Webster argued that the special verdict did +not contain sufficient facts to enable the Court to pronounce the +prisoner guilty of the offence charged--that his guilt could not be +necessarily inferred from the facts found, but that they were, on the +contrary, consistent with his innocence--but that, even supposing the +offence to have been well found by the special verdict, it could not be +punished under the Act of 1819, because that Act was not a +constitutional exercise of the power of Congress to define and punish +piracy,--that Congress was bound to define it in terms, and was not at +liberty to leave it to be settled by judicial interpretation. That was +Mr. Webster's criticism upon the statute--that while the Constitution +had said that the law must define what was piracy, Congress had left it +to the Courts to define. Mr. Justice Story delivered the opinion of the +Supreme Court in that case, to the effect, that the crime of piracy was +constitutionally defined by the Act of Congress, and the point was so +certified to the Circuit Court. + +The authority which this Court has for punishing the crime which has +come under consideration in this case is the law of the United States, +supported by the Constitution of the United States, in respect to both +branches of the statute under inquiry. As the indictment follows the +law, and the law follows the Constitution, the subject for your +cognizance is rightfully here, and the proofs and the evidence in the +case show that the crime has been committed, and that the acts of the +prisoners which resulted in the seizure of the Joseph on the high seas +include all the ingredients that enter into the completeness of the +crime of robbery on the high seas, as named in the eighth section of +the Act of 1790, and in the third section of the Act of 1820. I am +confining myself, in these observations, to the crime of the whole +twelve, not affected by the question of citizenship, and not falling +under the ninth section of the Act of 1790. + +It is certainly not necessary for me here to insist, with much of +detail, on the question of the completeness or effect of the evidence +as showing that the seizure of the Joseph was attended by all the +circumstances of force, and was stimulated by all the purposes of +robbery, which the law makes an ingredient of this offence. So far as +the sufficiency of the evidence is to pass under the judgment of the +Jury, it is entirely out of place for me to comment on it here. And, so +far as any purpose of instruction to the Jury by your honors requires +any consideration now, it is sufficient for me to say, that there is no +trait of violence, and threat, and danger which, within the law of +robbery,--and the law of piracy, if there be any difference,--makes up +the necessary application of force, that is not present here. And I +understand my learned friend, Mr. Lord, to concede, that there was +force enough to make up the crime, if the element of intent, the +vicious purpose of robbery, was present, as part of the body of the +crime. + +My learned friends have treated this latin phrase, _animo furandi_, as +if it meant _animo fruendi_--as if the point was, not the intent to +despoil another, but the intent to enjoy the fruits of the crime +themselves. Now, I need not say that a man who robs his neighbor to +give the money to charity, despoils him, _animo furandi_, just as much +as if he did it with the intention of using the money for his own +purposes of pleasure or profit. That is the point, and all the cases +cited only touch the question of whether, in the violent taking, or the +fraudulent taking, imputed as a crime, there could be supposed by the +Jury to be, on any evidence introduced, any honest thought, even the +baseless notion, on the part of the offender, that the property was not +that of the man from whom he took it, but was his own. I have not seen +anything in this evidence which should lead us to suppose that Mr. +Baker and his crew thought that this vessel, the Joseph, belonged to +them, and that they took her under a claim of right, as property of +their own. The right under which they acted was a supposed right to +make it their own, it then and there being the property of somebody +else--to wit, of the United States of America, or of some of its +citizens. So, your honors will find, that except so far as the +considerations of the moral quality of this crime, in regard to its not +being furtive and stealthy, are raised and supported by the general +considerations which are to change this transaction from its private +quality and description into a certain public dignity, as part of a +wider contest, and which considerations are to be disposed of by the +views which your honors may take of the affirmative proposition of the +defence, which would make this privateering at least an act of +hostility in flagrant war--except so far, I say, as these +considerations are concerned, I need not say anything more as to the +completeness of the ingredients, both of force, and of robbery or +despoiling another, necessary to make up the crime. + +We come, now, if the Court please, to a variety of considerations, many +of them, I think, not at all pertinent to a judicial inquiry; many of +them ethical; many of them political; many of them addressed to the +consciences of men; and many of them addressed to the policy of +Governments--and which, in the forum where they are debatable, and +which for the most part is a forum which can never make a decision, may +be useful and interesting. Some of them do approach, doubtless, the +substance and shape of legal propositions; and I am sure I do no +injustice either to the nature, or purpose, or character of these +manifold views, when I say that they all centre on the proposition, +that this transaction, which, in its own traits and features as a +private act of these parties, is a crime of piracy, is transferred into +the larger range of a conflict of force, authorized by the laws of war, +and with no arbiter and no avenger, but in the conscience, and before +the common Judge of all. Now, if the Court please, the legal notion to +which we must bring this down, is this--that the acts here complained +of are, within the law and jurisprudence which this Court administers, +acts of privateering, not falling within the law of piracy. + +Now, what is privateering? My learned friends have spoken of +privateering as if it were one of the recognized, regular, suitable +public methods of carrying on hostilities between nations, and as if it +fell within the general protection which makes combatants in the field, +fighting as public enemies, and against public enemies, amenable only +to the laws of war. And my learned friend, Mr. Lord, has read, with +much satisfaction, the very pointed observations made by Mr. Marcy in +his letter to the French Minister, which were very just and very +appropriate as a home argument against France; that is, the encomiums +of certain French commanders on the dignity and nobility of the conduct +of privateers who rushed to the aid of their country when at war. Now, +my view, and I believe the view of the law books and of the publicists +of the present day, is this--that privateering is the last relic of the +early and barbarous notions of war, that a trial of force between +nations involved a rightful exercise of personal hostility by every +individual of one nation against every individual of the other, and +against every portion of the property of the other. That law of war +which authorizes the attack on peaceful persons by armed bands on land, +and the robbery, devastation, and destruction of private property +wherever it may be found, has been long since displaced by those +principles of humanity, of necessity, and of common sense, which make +war an appeal, when there is no other arbiter, to the strength of the +parties, to be determined with as little injury to property and life as +possible. Now, privateers have never been looked upon as being +themselves entitled to the least comparison with the regularly enrolled +military power, or with the regular naval service, in respect to their +motives, or the general rules of their conduct, or the general effect +which their depredations are expected to produce. And the tendency of +all movements in the public laws of nations, as affecting the +maintenance of war, has been at least to discourage and to extirpate, +if possible, this private war on sea, in both of its forms--to wit, in +the form of public armed vessels taking private and peaceable property +on sea, and in the still more aggravated form of private armed vessels, +with crews collected for the purposes of gain and plunder, under the +license which war may give. So far from this Government having, on the +general principles, moral and social, which should govern such a +discussion, desired to maintain or extend privateering, it was among +the first and the earliest to concede in its treaties, and to gain from +the other contracting parties the concession, that if war should arise +between the parties to the treaty, privateers should not be +commissioned or tolerated on either side. And, if this Government has +failed to yield to the attempt made on the part of certain European +powers to crush this single branch of private war on the ocean, to wit, +war by private parties on the ocean, it has only been because it saw +that that design, not including the destruction of that other branch of +private war at sea--the war of public vessels against private +property--was not a design clearly stimulated by the purposes and +interests of humanity. While the European Governments chose to destroy +that branch which was least important to them--the use of private armed +vessels--they claimed to continue in full force the right of public +armed vessels to make aggressions on private property on every sea. The +one point was quite as important to have ameliorated as the other, +which permits us to recruit the small navy which our republican +institutions justify us in maintaining, by the vigor of our mercantile +marine in the time of naval war. Therefore, there is nothing in the +history of the country which can, in the least, support the idea that +we look with favor on the notion of privateering. + +Some sensible observations upon the subject are to be found on marginal +page 97, in the first volume of Kent's Commentaries, to which I ask +your honors' attention: + + "Privateering, under all the restrictions which have been adopted, + is very liable to abuse. The object is not fame or chivalric + warfare, but plunder and profit. The discipline of the crews is not + apt to be of the highest order, and privateers are often guilty of + enormous excesses, and become the scourge of neutral commerce. They + are sometimes manned and officered by foreigners, having no + permanent connection with the country or interest in its cause." + +I agree that there is still left, under the license and protection of +the law of nations, the prosecution of hostilities on the high seas by +privateers and private armed vessels. And I agree that, although the +crime proved in this case does come within the description and +punishment of robbery and piracy, in its own actual traits and +features, yet if it be shown that what is thus made piracy and robbery +by the statute was actually perpetrated by a privateer, under the +protection of the law of nations, with a commission from a sovereign +nation, within the scope of the authority of that commission, it is an +answer to an indictment, the terms of which had been otherwise proved. +And that is undoubtedly what is claimed here. You have proved piracy +and robbery under the eighth section, say these defendants, if we +cannot impart to the circumstances and features of this crime some +public quality and authority which saves the transaction from +condemnation and punishment. + +_Mr. Brady_: We say no such thing. We say that, if they acted in good +faith, however mistaken, and though the commission may be void, they +have not committed any offence whatever. + +_Mr. Evarts_: This is the extent of my concession, as matter of +law,--that it is an answer to a charge of piracy which is otherwise +complete, that the crime was committed under conditions which, by the +law of nations, relieve it from punishment. Now, what are the +conditions that the law of nations requires? + +First, there must be a war. We do not allow private armed vessels to +prosecute general marauding hostilities in support of the views of +their Governments. We do not allow the interruption of the freedom of +the seas by such marauding vessels, except in cases of flagrant war, +which neutral nations are compelled to recognize. + +Secondly. The privateer must have received its commission from a +public, national, sovereign power. You cannot make a privateer, and +turn private acts that, by the law of nations and by municipal law, are +piratical, into acts of war, which are of the same intrinsic quality +and have the force of national acts, unless by this _sine qua non_ of +public authority and adoption. + +Now, if the Court please, when it comes up for judicial inquiry, +whether a case of privateering, under the law of nations, is fairly +made out, and where the case arises during flagrant war between two +separate, independent, established nations, whose nationality is a part +of the order of things in the world, the Court has only really to +inquire, judicially, into two subjects--whether the vessel had a lawful +privateer's commission from one of the contending parties--and whether +the acts committed by her were within its scope, either actually or in +the sense of a fair construction of the authority, and of good faith in +the exercise of the power. But, even in these cases, where the only +points are, whether there be war, and whether there be nationalities on +each side which can convey this public authority, the Court is all the +while governed by, dependent upon, and subordinate to, the views of the +Government from which the Court derives its authority. No judicial +tribunal has a right to recognize a nation, of its own motion. No +judicial tribunal has authority to recognize a Government which the +Government from which it derives its authority does not recognize. I +have never heard it proposed, as a view either of public or of domestic +law, that when a Government has declined to recognize a nation, it was +within the jurisdiction of a Court of that Government to determine +differently, and reverse the decision of the political power. In the +cases of France and England, which are recognized Governments that have +placed themselves as firmly among the nations of the world as private +individuals are planted in the rights of man, our Courts intermit this +inquiry. A privateer of England which confines itself within the scope +of its commission, can not be proceeded against as a pirate, although +it commits acts which would of themselves be piracy. But, there do +arise questions which come under the jurisdiction of the Courts, under +circumstances of doubt and obscurity as to the course or view which our +Government has taken in relation to the alleged nationalities of +alleged belligerents; and I need not say to your honors, that by an +unbroken series of the decisions of the Supreme Court, as well as by +the necessary subordination of the judicial authority to the political +power of the Government, our Courts always take the view which their +Government takes in respect to struggles and hostilities which arise +between uncertain, indefinite and unascertained powers. Thus, whenever +there occur, between Colonies and the parent Government,--between +disaffected regions or populations and the sovereign to which they have +been subject--dissensions which, arising from the region of discontent, +sedition and turbulent disorder, reach the proportion of military +conflict and appeal to arms, then, when acts in the nature of war are +assumed to be performed, under circumstances that bring them within +judicial cognizance in our Courts, and in the Courts of any other +civilized nation, as to whether they still retain their quality and +character of private acts, attended by the private responsibility of +the criminals, or whether they are transferred to the wider theatre and +looser responsibility of warlike engagement, our Courts, as do the +Courts of other civilized nations, look to the Government to see what +is its policy and its purpose. The instances in which these unhappy +contests and these obscure questions have been presented before the +Courts, have been almost entirely connected with the separation of the +South American Colonies from the mother country of Spain. In all these +cases, the new Governments of the revolted Colonies gave commissions to +privateers, and undertook to put themselves before the nations of the +world as belligerents, claiming from neutral nations, not a recognition +of their independence, or of their completed nationality, but of their +right to struggle, through the forms of force and war, to establish +that nationality. They presented to the discretion and the policy of +every other civilized Government precisely this question--Is there +enough of substance, of good faith, of power, to justify us, as equal +expounders and equal defenders and protectors of the laws of nations, +although there be now no present nationality that can support, under +the rules of the law of nations, by mere right, the exercise of warlike +powers--is there enough, in the transaction, to justify us in +considering it to be so substantial and _bona fide_ an effort for the +assertion of independence and the creation of a new nation, that we +shall give to it the opportunity, and turn what would be piracy and +marauding into an act of belligerents, so far as we neutrals are +concerned? + +When a nation is an independent nation, all other nations of the earth +are, by public law, bound to recognize it, and bound to recognize its +right to make war. The most powerful nation in the world has no more +right to make war than the smallest nation in the world; and, each +being judge of its own conduct, when a state of war exists, such war +must, by the public law of the world, be recognized. But when new, +unformed, inchoate, tentative consolidations or efforts of +nationalities present themselves, every nation has, by the public law, +a right to exercise its own wisdom, its own policy and its own sense of +justice, to determine whether or not it will recognize them; and, in +every one of the cases I have referred to that came before our Courts, +arising for their consideration as between two parts of a foreign +country, our Courts said--Our Government has done so and so; it has +recognized them as belligerents, and we follow our Government. In other +cases, as in that of the Commander Aury, the Court said--We do not +understand that there is any such power known in the world; our +Government has never in any way recognized, not its independence, for +that is not necessary, but its position as a war-making power, or as a +struggling power, fighting for nationality, and we cannot recognize +that condition of things. + +Now, unhappily, there arises a conflict in our own country, which +presents the case of an armed military rebellion--a revolt of certain +portions of population, maintaining, if you please, to a certain +extent, the mastery over a certain portion of our soil, using against +us the actual means and processes of war, and compelling from our +Government, in maintaining dominion against their aggressive assaults, +the means of military power, naval and land forces, and all the +authority and violence of war. Foreign nations have had, in regard to +us and to this conflict, the same kind of questions presented that have +been presented to us in the contests between the dismembered parts of +other countries. And every nation was free to determine, upon this +exact question of the right of private war, as belonging to those +rebellious portions of this country--to determine whether it would +tolerate privateering as a warlike proceeding, or would regard +privateers as marauders or pirates without just right or cause, and +without the pretence of sufficient force and dignity, in a movement to +disturb the peace of the world. + +My learned friends have said, using the force of the argument in aid of +their cause, that France and England have recognized the insurgents as +belligerents, and have precluded themselves from treating as pirates +private armed vessels that shall derive authority from these rebellious +powers. Well, by the same law of nations that gave to France and +England this right thus to elect, they had the right to determine, and +to announce by proclamation, that the peace of the world upon the ocean +should not be disturbed, under pretence of war, by these insurgents, +and that, if they should resort to private armed vessels to inflict +aggressions and disturb the commerce of the world, they would be +treated as pirates. And if, under the law of nations, the political +authorities of France and England had thus announced their policy that +these insurgents should be treated as pirates, I would like to know if +advocates would be heard, in the Court of Queen's Bench or in the +Courts of France, to urge that the Court, wiser than its Government, +should, in the exercise of sovereign discretion under the law of +nations, tolerate, as an act of war, what is piracy by municipal +statute or the law of nations, unless accredited as part of a warlike +movement. Would those Courts permit the defence to be made, that what +were declared to be acts of piracy were acts of war,--the Government +having so elected and so announced, that it would regard them as acts +of piracy and not as acts of war? + +Now, I am arguing this case altogether on this point, as if the +Government from which this Court derives its authority--whose laws we +are administering--whose authority is vested in your honors on this +trial--stood as a stranger to and spectator of this contest, and it was +really a controversy between parts of another nation. And all I have +claimed is, that our Government, in common with the other nations of +the world, has, by the law of nations, the right, in its discretion, to +determine how this proceeding shall be treated, and what consequences +shall follow from it. Now, I need not say that, treating our Government +as if it stood _ab extra_, and as if, passing its judgment on what was +going on, it had determined that these privateers should be regarded as +pirates, they should not be recognized as having the right of war, or +the right, as an inchoate nationality, to perfect their independence. + +The Proclamation of the President of the United States, of the 19th of +April, 1861, is a complete and perfect denunciation of this threatened +crime of piracy, the purpose to recur to which had been manifested by a +public declaration of Jefferson Davis, which had invited, from all +quarters of the globe, privateers to prey upon the commerce of the +United States. I need not say to your honors that when our Government +has pronounced this to be piracy, and to be not within the law of +nations, under its discretion to determine whether it will recognize an +inchoate nationality, this Court has not, any more than has a Court of +England or France, the power to say that what its Government does not +choose to recognize, even in the quality of belligerents, it will +recognize. What our Government has said shall remain in the quality of +criminality, must so remain, notwithstanding this proclamation of +Jefferson Davis, or any commission that may issue in pursuance of it. + +I apprehend that even if we were to bring ourselves into the +paradoxical condition of passing judgment on this question as a +disinterested, yet sovereign nation, your honors would find in the acts +of the Government a complete denunciation against this proceeding as a +crime of piracy, and a complete policy, which the Court must follow, +leaving any diplomatic considerations of the results which may follow +its mistaken, if you please, construction of its duty, to be disposed +of by the authorities that are responsible for it. + +_Mr. Brady:_ I believe there is no proof of any such action by the +legislative branch of this Government. + +_Mr. Evarts:_ I apprehend that the whole course of the legislation of +this country shows that we do not recognize or tolerate this contest as +a thing that is rightfully to go on. That is all that is necessary. + +I say, if the Court please, that the course of an external sovereignty, +in these intestine quarrels, turns upon the point whether it will give +its sanction to an intrusion upon the peace of the world by an inchoate +nation, and I am trying to consider that question as if our Government +had passed judgment upon it _ab extra_; and I say that the action of +our Government shows that we do not intend to recognize it as something +that should be allowed to go on. These considerations, as to any +recognition by this Court of rights derivable from _quasi_, pretended, +nascent, public powers, would induce this Court to follow the decision +of the Government, in case we were judging of the question as a +controversy between parts of another nation. + +I am now brought to the consideration of who are the parties to this +controversy, and what are the relations of this Court and of the laws +we are administering to the subject and the inquiry. The Government of +the United States still stands. The old Constitution, the whole system +of its statutes, the whole power of its army and of its navy, stand. It +has its Courts of judicature; it has its commerce still on the seas; +its laws are still operative, and still to be administered. And when +this Court considers this case, it finds it brought before it as every +other criminal case is, and limited to the considerations that belong +to every criminal case. The Government of the United States, by the +ordinary exercise of the process of judicature,--by seizure under +public authority,--by arrest within this District, through the criminal +process of this Court,--by the indictment of a Grand Jury,--by the +prosecution of the District Attorney,--has proposed to this Court the +naked and narrow inquiry of whether these men have committed a crime +against the statutes of the United States. Now, I would like to know +whether there is anything in these occurrences, that have secured, if +you please, for the present, (and the future may be uncertain,) in +large portions of our territory, a practical control over great +portions of our population,--I would like to know if there is anything +in these transactions that has displaced the constitutional legislation +of the United States of America over crimes on the high seas, and over +its citizens committing crimes on the high seas, or over subjects or +citizens, of whatever country, committing crimes on the high seas +against our property? I take it, not. Therefore, if your honors please, +whatever may be said, in one form or another, of the political right, +as respects these States, either constitutionally or by the right of +force, to be independent, or to attempt to be independent of the United +States, or to engage in this struggle for the settlement of some +question of dispute under the Constitution,--whatever may be said of +that, your honors cannot fail to discover that nothing which has +occurred has destroyed the organism of our Government, or altered for a +moment the judicial authority or the force and supremacy of the +Constitution and the laws, within the territory where the Courts are +open, over the subjects of our Government, and the subjects of whatever +Government, in respect to whatever property, upon the high seas. + +I understand that my learned friend, Mr. Larocque, supposes that the +ordinance of repeal of South Carolina, constitutionally or +unconstitutionally supported by the strength to maintain its +independence, has changed these four men who are indicted here and are +proved to be citizens of the United States, from their condition of +citizens of the United States; and he holds, and asks as legal +proposition from your honors, that, at the time of the commission of +this crime, these men were not citizens of the United States, by reason +of the constitutional right of South Carolina to carry itself out of +the Union, by force of ordinances, or supported by military power that +had maintained itself up to the first of June in the possession of +independent power. Your honors will charge, or refuse to charge, +accordingly as you may find that the old Government has sovereignty and +has attempted to exercise it, and that there has been no severance of +our territory to the extent of a permanent division,--whether these men +are citizens of the United States, or of a foreign country. If they are +held to be citizens of a foreign country, to wit, of South Carolina, or +of the Confederate States, then they fall back under the eighth section +of the Act, as having committed piracy under that section. + +But, to come back to the attitude of our Government, which this Court +must follow, towards these rebels,--towards these malcontents,--towards +these combinations, which are exercising the processes of war, +undoubtedly,--what is the attitude of our Government? Does it recognize +their right--does it recognize their independence--does it recognize +their authority, so that you find that our Government has adopted the +policy of not punishing them under the laws of the United States? + +And this brings me to the consideration of another general subject, +which Mr. Lord adverted to, and upon which he cited the authority of +Vattel--that it would be monstrous, and would expose this Government to +the execration of the world, if the criminal laws against murder and +robbery on land, and the civil laws against trespass, were to be +executed to the letter, and to the full extent of the vengeance of the +law against the multitudinous enemies that are arrayed against this +Government. Now, I must decline to be led out of a Court of Justice, by +this argument, to considerations that appeal to the wisdom, or +humanity, or policy of the Government. I would like to know whether my +learned friend would contend that, if a private soldier, found in arms, +and part of a military force, against the Government of this country, +is arrested by that Government, and is indicted, and put upon his trial +for treason, which the Constitution of the United States limits to the +overt act of levying war against the Government, and if, under the +indictment, he pleads in bar that he was levying war against the United +States of America,--that would relieve him? For that is the whole +nature of the proposition put forward in a Court of Justice,--that, +because there are armies, there is no treason! Why, if your honors +please, how absurd to present for the recognition of a Government, in +its Courts of Judicature, the proposition that there is no treason, +from the number of the confederates in the treachery! Your honors see +at once that, the idea of setting up such a defence, on a trial for +treason, against a private soldier, found in arms against the +Government, is absurd. And yet, your honors recognize what is laid down +by the publicists, that when the dimensions of a rebellion have been +aggravated into the proportions of flagrant war, for a Government to +insist upon the decimation or extermination of the population by the +gallows or the axe, would be inconsistent with those general principles +of humanity and justice that actuate, by necessity, the affairs of men. + +It is not necessary for me to discuss these questions. It belongs to +the Government, after it has procured a conviction, either for piracy +or for treason, to decide, in its own discretion, whether the penalty +of the law shall be inflicted. Let us confine ourselves to our duties. +Let us not be asked here, as a learned Bench, or as honest Jurymen, to +recognize a Government or a state of belligerency that our nation does +not recognize. And let us not be asked to repeal statutes of treason +because the number of the traitors is so great that we cannot carry out +the penalties of the law against the whole. I would like to know if in +the face of any Court of Justice,--if in the face of the public opinion +of the world,--if in the face of the principles of eternal justice,--it +is to be set forward as a shield over the heads of the rebel leaders +and traitors, that they have inflamed and misled so large a body of the +common people, that they, the leaders, cannot be punished. I would like +to know if, when in advance, immediately upon the rebel proclamation +inviting privateers, our Government, through every newspaper in the +land, proclaimed that whoever should voluntarily take up this form of +piracy would be treated as a pirate, and you find the first privateer, +with the first commission taken out under this proclamation of +sovereignty, and the first band that volunteer--Mr. Baker and his crew, +collected from all the quarters of the globe,--the first engaged in +this new and flagrant form of outrage, against which they had been +warned,--I would like to know if these bold outlaws, stretching forward +a ready hand to grasp the license of war for plunder, the whole +proceeds of which are to fill their pockets, are to be presented in +this Court as being special objects of protection, under the principles +of humanity, and as being shielded against public justice in enforcing +the laws of piracy. + +Now, if your honors please, treating, as I do, this question as one to +be passed upon, not with the coolness of a neutral power looking upon +these contending parties as independent nations, but by this Court as +the Government's own judicial organ for administering the public +justice, I would like to know what pretence there is that, under the +laws of the United States, the crime of piracy having been proved, +there is anything in this notion of a commission from a nationality +recognized by our Government, or of a belligerent right recognized by +our Government, that this Court can adopt as a merger of the private +crime in the public conflict. We contend, therefore, that in the +conflict now raging, the Constitution and the laws of the United States +make every person levying war against the Government a rebel and +traitor, and, if the war thus levied take the form of piratical +aggression, a pirate, within the statute. + +Now, let me consider the ninth section of the statute. I will readily +concede to my learned friends whatever advantage they can gain from the +proposition that, when the ninth section was drawn, in the year 1790, +one year after the adoption of the Constitution, it was never supposed +that a pretended commission or authority to prey upon the commerce of +the United States and violate its laws would come from any part of the +people or of the territory of the United States. And I claim that there +is nothing in this commission which, if there had been no statute +recognizing a possible protection from a commission--there is nothing +in this commission from a citizen of the United States, Jefferson +Davis, to another citizen of the United States, Thomas Harrison Baker, +to prey upon the commerce of the United States, that can be regarded +for a moment as a license which makes him a privateer, instead of a +pirate. My learned friends have even sought to find occasion for a +variance between the proof and the indictment because we have alleged, +under the ninth section, that the pretended authority comes from "one +Jefferson Davis," and have proved a commission which says, "I, +Jefferson Davis, in the name of the Confederate States," have given +such authority. Why, if your honors please, this indictment was drawn +by an officer of the United States Government, to be tried in a Court +of the United States; and, having a fear of the law and a sense of his +duty to his country, he describes things as they are. And I would like +to have my learned friends point out to me any place, any office, any +title, any description, any addition, any qualification, that, under +the laws of the United States of America and its Constitution, +describes Jefferson Davis, except "one Jefferson Davis." He has +precisely that port and dignity before the law and the Constitution +that every other individual in the United States has, not filling an +office and post of authority under our Government and under our laws. +He does fill the place of citizen of the United States, and no measures +of separate State action, or of Confederate authority, have relieved +him from that full and complete description of him, under the +Constitution of the United States, as the measure of his allegiance and +of the penalties for its forfeiture. How could we have found a legal +phrase or term, if we regard the Government of the United States and +its Constitution, by which we could designate any such thing as +"Confederate States," or a foreign state, within the accredited +territory of the United States? The terms and intent of this ninth +section were framed so as to cover every imaginable authority, in the +nature of a commission from a State, from a nation, from a power, or +from any person, under the law of nations, for the conversion of +private marauders into public enemies with the rights of war; and, +although it never entered into the imagination of the framers of this +statute that it would ever have to be applied to exclude protection +under a commission from a citizen of the United States, its terms are +absolutely fitting. I contend that the statute is complete, and that +this commission is not a pretence of authority, even under the law of +nations establishing and recognizing privateers for struggling +communities. It is nothing but an authority from one citizen of the +United States to another citizen of the United States to prey upon the +property of the United States. + +There are, if the Court please, some political considerations which +were, it appears to me, more appropriately urged by my learned friend, +Mr. Larocque, in his first address to the Jury, than in his argument to +the Court. The point made by him was this--that, under the Constitution +of the United States, every citizen of every State held what was called +the position of divided allegiance, having two sovereign masters over +him; that they were equal and co-ordinate sovereigns; and that it was +his duty to obey both of them. Now, with the necessary limitation that +each one is sovereign over him in some respects, and has not the least +power over him in others, and that the other is sovereign over him in +other respects, and does not include the first topic or line of duty, +there is a speculative support for this general notion. And, whenever +it is not urged into any absurd consequences, it serves, in the +language of the Courts and of public men, to describe the complex +Government under which we live. But, if my learned friend means to +assert that there are, under the Government of the United States, +according to its form and method of organic operation, two equal +sovereigns over every citizen on the same subjects, why then he has +flown in the face of a fundamental proposition, coming from higher +authority than the Convention of 1790--that no man can serve two +masters. It is not in the nature of things that there can be two +sovereigns having equal rights and authority over one subject; and my +learned friend illustrates the absurdity of the proposition when he +comes to consider what would be the result if the two sovereigns should +disagree. He says it is the duty of the subject to adhere to one side +or the other; that, it being his complete duty to adhere to one side, +the other side cannot complain of it as a breach of duty that he does +not adhere to him, but to the other; and that, therefore, the general +rule, that when you have a sovereign and are unfaithful to him you may +be hanged, cannot apply to the case, because you would, in either case, +be hanged. And his wise, and suitable, and certainly humane solution of +this difficulty is, that when one of the sovereigns indicts you for +treason, it is a good bar to say you elected in good faith to serve the +other sovereign. Thus, so far from there being two sovereigns, the +nature of the term sovereign including the right to hang you for +unfaithfulness, there is not one that has the right to hang you, and +you are master of both; for, whatever you do in good faith is a supreme +answer to both. + +Now, if the Court please, this is the point of the whole thing--that, +under this peculiar Constitution of ours, and under this division of +the subjects of Government, each sovereign is judge of when the other +has passed the limits of his authority, and that the States possess the +right to compel the obedience of their citizens, and the United States +possess the right to compel the obedience of their citizens. It is +sufficient for us to say that we represent, as Federal citizens, the +Government of the United States in its interpretation of its own +position towards those its citizens, or those persons not its citizens, +who are alleged to have perpetrated crimes against its commerce; and, +whether there be, or not, speculations of political and theoretical and +ethical and conscientious right, in good faith, to put yourself at +variance with the Government of the United States because other people +do so, or because the State authority does so, it follows that the +United States, its authorities, its Courts, and its population, have +the right to think, and feel, and act, as if its Government were in the +right and you were in the wrong; and you, being brought within the +criminal justice of their law, can find no support and no protection +upon the good faith or upon the speculative political theories upon +which you have rested for your protection and for your authority. + +It is said, that outside of this question of the political and legal +qualifications of this act which we say is criminal, the circumstances, +actual and moral, which surround these actors, and are shown by their +actions, have deprived their acts of the criminal quality which the +statute affixes to them; and that if, in good faith, they thought there +was a commission, and in good faith thought there was a rightful +Government, that good faith, which has despoiled the American merchant +of his property, is a plea in bar to the criminal jurisdiction of the +United States of America, whose laws they have violated, although all +this pretence, all this show, all this form of political and legal +support qualifying their acts, comes from men whom the Constitution +pronounces to be in the category of rebels and traitors, every one of +them amenable to the final jurisdiction of our laws. This is but +another form of saying that criminals joining hand in hand shall go +unpunished. Make the number of them what you will, if in the eye of the +law they assume authority which is on its face criminal and illegal, +and even though it is a part of a general scheme and organization for +violent military resistance to the authority of the country, no Court +can dispense from the punishment, but must inflict it through the +general and ordinary criminal authority in respect to the crime in +question, leaving the question of dispensation to the clemency, the +humanity, and the policy of the Government. + +I believe that all the cases have been cited, either on the one side or +the other, from the Reports of the Supreme Court of the United States, +that have had to do with the question as to the political character of +the revolted South American States. Those which were cited by my +learned friend, Mr. Larocque, _The Josefa Segunda_ (5 _Wheaton_, 338), +_The Bello Corunnes_ (6 _Wheaton_, 152), and _The Santissima Trinidad_ +(7 _Wheaton_, 283), are all authorities, as we suppose, for the view +which the Courts adopt, even when they are Courts of a neutral +nation--that they follow the decisions of their Government as to the +public quality and character of belligerents. + +Adjourned to Monday, 28 Oct., at 11 o'clock, A.M. + + + + +FIFTH DAY. + + +_October 28, 1861._ + +ARGUMENT OF MR. DUKES FOR THE DEFENCE. + +_Mr. Evarts_ said: Perhaps it is unnecessary that I should say to the +Court and learned counsel, that I shall refer to the Statute of +treason, as well as to the Constitutional provision as to treason. The +Statute of treason is found in the first section of the Crimes Act of +1790. + +_Mr. Dukes_ said: + +_May it please your honors and gentlemen of the Jury._ + +It has been said by one of the most eminent statesmen that ever lived, +that "civil wars strike deepest into the manners of the people,--they +vitiate their politics; they corrupt their morals; they pervert the +natural taste and relish of equity and justice." + +If this be so, one would think that this was a singularly unfortunate +time for the Government to bring on the trial of these prisoners at +your bar, who are entitled to that right which the Constitution offers +to the meanest citizen--that of a fair and impartial trial. + +Is it to obtain that fair and impartial trial that the case is brought +on now, when the flame of civil war lights the land, and when, in every +stage and condition of society, the bitterest sentiments of hostility +prevail? + +Is it in order to afford the prisoners a fair and impartial trial that +the case is brought on now, when tender infancy and gentle woman unite +with stern and selfish man in uttering the deepest imprecations on +their enemies? + +Is it in order to obtain a fair and impartial trial that the case is +brought on now, when, on God's holy day, in his holy temple, his chosen +ministers officiating at his holy altar, utterly unmindful of the +injunction of their meek and lowly Master, "to forgive their enemies, +and to pray for those who despitefully use them"--offer up to Heaven +prayers for its severest vengeance upon the heads of their enemies? + +If so, gentlemen, I beg at least, (as one of the counsel,) to offer my +dissent. + +It does, indeed, seem to me that this is a singularly unfortunate time +to bring on this trial. But yet, gentlemen, I feel buoyed up with hope, +because I know the unbending integrity of the Judges that officiate, +and I know that the Jury, which sits in judgment over the lives of +these men, is chosen from the citizens of New York--a city in which, if +any city in the world possesses large, liberal, and enlightened views, +we may hope to find them. But, still, the officers of the Government +must excuse me for saying that I think it unfortunate, and somewhat +illiberal in them, considering the character of the charge made against +these men, to try them now. It does seem to me that it is, at best, but +trying treason with an odious name. + +Gentlemen, this is no new thing. Years ago this very question, as to +the propriety of trying men situated as these men are, was brought +before the mind of that liberal and enlightened statesman, Edmund +Burke--the long-tried and faithful friend of America; and I trust that +I may be pardoned for referring to his words on this occasion, and for +reading to you a passage from his celebrated letter to the Sheriffs of +Bristol, in 1777, which, perhaps, will more fully illustrate my views +than anything I can say. Speaking about American privateersmen, then in +the same position as these men now are, he says: + + "The persons who make a naval warfare upon us, in consequence of + the present troubles, may be rebels; but to treat and call them + pirates is confounding, not only the natural distinction of things, + but the order of crimes; which, whether by putting them from a + higher part of the scale to the lower, or from the lower to the + higher, is never done without dangerously disordering the whole + frame of jurisprudence. + + "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 general sense of mankind tells me, that those offences which + may possibly arise from mistaken virtue are not in the class of + infamous actions. + + "Lord Coke, the oracle of the English law, conforms to that general + sense, where he says, 'That those things which are of the highest + criminality may be of the least disgrace.' * * * * * + + "If Lord Balmerine, in the last rebellion, had driven off the + cattle of twenty clans, I should have thought it would have been a + scandalous and low juggle, utterly unworthy of the manliness of an + English judicature, to have tried him for felony as a stealer of + cows. + + "Besides, I must honestly tell you that I could not vote, or + countenance in any way, a statute which stigmatizes with the crime + of piracy these men, whom an Act of Parliament had previously put + out of the protection of the law. + + "When the legislature of this Kingdom had ordered all their ships + and goods, for the mere new-created offence of exercising trade, to + be divided as a spoil among the seamen of the navy--to consider the + necessary reprisal of an unhappy, proscribed, interdicted people as + the crime of piracy, would have appeared, in any other legislature + than ours, a strain of the most insulting and unnatural cruelty and + injustice. I assure you, I never remember to have heard any thing + like it, in any time or country." + +Gentlemen, I read this extract because it is the testimony of an +eminently wise man, and an eminently just one. Such were his views at +that day, and I am inclined to believe that those words spoken by him +then have a better application to the state of things at present than +any remarks I can make, or that can be made by any one of us who are in +the midst of this whirl of excitement. + +But, gentlemen, the Government has chosen to make the issue. It was at +liberty to do so; and that issue is piracy. + +Piracy, gentlemen of the Jury, you have heard defined by the eminent +counsel who preceded me. The parties here occupy, as it were, a +two-fold capacity. The eighth section of the Act of 1790 applies to +piracy under the common law; the ninth section of that Act creates what +we have called statutory piracy. The eighth section of the Act only +alludes to piracy as it is acknowledged under the law of nations, and +as known to the common law. The ninth section, however, differs from +the eighth, because it applies peculiarly to citizens of the United +States, and is supposed to be more enlarged in its character than the +eighth section. Now, with reference to a portion of the prisoners +here,--to those who are not citizens,--eight of them come entirely +under the eighth section; and we shall contend that, under that +section, they cannot be convicted. As regards the other four, it will +be contended, that not only are they embraced by the first, but +likewise by the second of these sections--that of statutory piracy, +which applies peculiarly to them. + +Well now, gentlemen, in regard to the eighth section, the learned +counsel who very ably addressed the Court on last Saturday, stated that +intent had little or nothing to do with the offence; that he did not +choose to be held to the _animus fruendi_, but that the charge was the +_animus furandi_, and that when a person committed robbery it was but +of very little consequence to what purpose he applied the proceeds of +the robbery, or for whom he committed it. Now, with all due deference +to the learned counsel, I think this is putting the case rather +unfairly, because he is quietly assuming the very point we are +discussing; for it is the fact of the _animus furandi_--the fact +whether or not this is robbery--that we are discussing. + +We have distinctly said, and shown by the books, that that which he +says is not the characteristic of the crime, is really its +characteristic, and that intent in this, as in every other offence, +peculiarly constitutes the crime. + +It is just because the taking is not for the party himself--is not an +appropriation for his own purpose, and for his own ends, and for his +own object, that there is a difference between piracy and privateering. +And why is this so? Because the party who goes forth on a privateering +expedition, goes forth under the sanction of a nation. It may be a +nation only _de facto_, but still it is a nation. He goes by the +authority of that nation, armed with a commission under its sanction, +after having given the most ample security to be responsible to the +nation itself for any act of misconduct on his part; that nation +holding itself out to the civilized world as responsible for every +excess on the part of the citizen to whom it grants letters of marque. +Well, gentlemen, the taking of property on the part of the privateer is +not for himself. The taking is in the name of the State. The title +which the privateer has in the captured property is no title at all, +nor does he pretend to claim it. The title is in the State, and up to +the very moment of condemnation, although the property may have been +acquired by his blood, and by his treasure, the State has the right to +release it. So important is this fact of intention, as entering into +the transaction, that it has been held that no excess on the part of a +person carrying letters of marque from a regular Government could be +punished as piracy--the Government being liable, and he himself being +referred to his own Government for punishment. + +It has been even held in England, that where the act of taking a +commission from a foreign prince was so unlawful in its character as to +amount under the law to a felony, yet still the party having letters of +marque, should not be charged with piracy. + +Now, gentlemen, there was an attempt made by the learned counsel to +cast odium upon privateering and upon this transaction, by speaking of +these men as going out for their own plunder. Well, I have nothing to +say about that; but there is one thing to be remarked: that in times of +hostility the plunder does not belong to one side, nor does it belong +to the privateersman alone, but the regularly armed vessels of every +nation in the world, as well as privateersmen, are enriched by the +capture of prizes at sea; and I suspect that the members of the bar now +present can tell you how extensively our own navy has been enriched +within the last few weeks by the condemnation of prizes. If the spoils +derived from enemies' property be plunder, and if it be disgraceful to +take it, then the highest names in England have been associated with +such plunder, for you have but to look into the English books to find +the name of the great and distinguished Arthur, Duke of Wellington, as +connected with such cases. + +But, gentlemen, there is another thing which would prevent the parties +from being convicted of piracy, that is, the state of enmity existing +between the two nations. It is a general rule that enemies can never +commit piracy against each other, their depredations being deemed mere +acts of hostility. This is as far back as the days of Lord Coke; and +the rule has been carried so far as to protect the citizen of one of +the belligerents, who, without any letter of marque at all, goes on the +ocean and seizes the property of the enemy. It is true, it has been +said that in such cases citizens act at their peril, and are liable to +be punished by their own sovereign; but the enemy is not warranted in +considering them as criminals. + +That the people of the Confederate States, under whose commission these +men have acted, stand in the light of enemies, the learned decisions of +Judges Cadwalader and Betts; the blockade of the Southern ports, which +is a hostile measure; the confiscation of the property of their +citizens--not only of the property of the men who have arms in their +hands, but of the citizens at large; the captures at sea; the vessels +condemned here; the virtual dissolution of partnerships; the admission +of the plea of alien enemy; the President's proclamation of +non-intercourse; the arrest of citizens of those States returning from +Europe; and the opinion of my learned friend, the District Attorney +himself, showing that it is treason for the banks here to pay over the +bank balances to Southern customers,--all these things go to establish, +thoroughly and sufficiently, the condition of enmity or hostility, +which forms a protection to these parties. They fix the status of war; +they decide that the two powers are enemies, and that, too, without any +declaration of war, for no declaration of war is needed. It seems to me +that it is all useless to attempt to evade the admission that there is +war. We cannot by legal enactments--we cannot by judicial decisions--we +cannot by Presidential Proclamations--establish the condition of war +and all the consequences of war, and yet shrink from its open avowal. +And yet that is precisely what is attempted here. It may do with those +that are strong to oppress their own subjects, but it will not do when +you come to deal with foreign nations. When you come to deal with these +eight men who are here, the subjects of foreign powers, those powers +have a right to put in a word. Gentlemen, it is impossible for this +Government to do less than acknowledge that, in fact, there is a state +of hostility; and you may as well call it by its proper name--we are in +the midst of war. + +It will not do for the Government, like the ostrich, to put its head +under its wing, and fancy that because it sees nobody, nobody sees it. +The Government has enacted all the consequences of war without making +an open or decided declaration of it. Under such circumstances, +however, the status of enmity is sufficiently fixed to protect the +prisoners. + +But there is another test of piracy, gentlemen, and it is this--Is the +privateer a universal enemy? Is he a universal plunderer? Is his hand +against every man? Has he not a nation? + +Now a pirate has no nation. He is an outlaw, and is justiciable +everywhere. His is the law of might-- + + "For why? Because the good old rule + Sufficeth him: the simple plan + That they should take who have the power, + And they should keep who can." + +But it is not necessary that the nation under whose commission he acts, +shall be one which is already established and acknowledged among the +family of nations. It may be a colony struggling for independence, and +not yet recognized by the nations of the earth. Our own Courts years +ago decided this case with a liberality which has eminently +distinguished them, and established the principle in respect to the +South American colonies--colonies at that time not acknowledged by our +Government as independent nations. + +So, gentlemen, it was with regard to the powers of Europe during the +days of the American Revolution. Every power in the world respected the +letters of marque issued by Congress; and if there is an instance of a +single case in which, in any land in the civilized world, there was a +criminal trial of an American privateersman, I have not been able to +find it. Their letters of marque were recognized because they were the +letters of a _de facto_ Government. + +Now, gentlemen, what are the tests sufficient to form such a +nationality as will cover these commissions? Are the Confederate +States, in this instance, competent to maintain the relations of war +and of peace? Gentlemen, if the South American provinces were, I think +it can hardly be disputed that the people of ten great States like +these certainly are. They are very far beyond them in civilization, in +information, in wealth, and in all the means by which nations sustain +their independence. + +So important, however, is the fact of a commission, that even a +commission from the Barbary powers--states which subsisted entirely, I +may say, by plunder and piracy--was regarded as sufficient, in the +Courts of England, to protect an Algerine who was taken with letters of +marque. And that opinion comes with the authority of one of the +greatest masters of the science of jurisprudence--Sir William Scott--a +name that can never be mentioned without feelings of reverence by any +man who respects the sentiments of justice and their application to the +principles of international law. In the case I allude to, the Barbary +subject was taken in an attempt to seize an English vessel. The crew +was composed of foreigners, men of different nations, most of them +belonging to Spain and France. It was held that as to all the rest of +the parties they should be treated as outlaws, but the Algerine was +allowed the plea of _respondeat superior_. In other words, he had but +to point to his country, and say she was responsible; that she gave him +authority, and assumed the responsibility; and upon that plea he was +allowed to go. I mention this to show how far the doctrine has been +carried. + +But, gentlemen, if the commission from a Government _de facto_ +generally is a plea in bar (and that it is, I have no doubt the Court +will charge you), it certainly holds good in a case of this kind, where +the authority is much less questionable. Now, are the United States +bound to recognize the Confederate States as belligerents? Not as an +independent nation,--that is an entirely different question. We say, +gentlemen, not only that the United States are bound to recognize the +Confederate States as belligerents, but we think we have shown that +they have done so. The capitulation between Commodore Stringham, +General Butler, and Commodore Barron, recognized the existence of a +state of war, and recognized the prisoners as prisoners of war; and not +one word has been said, and not one act done, by the Government, to +disavow their authority in so doing. It is the principle of civilized +nations--and we belong to the family of civilized nations--to recognize +parties, even in the midst of civil war, as belligerents; and this +country is too just, too powerful, and too elevated in sentiment, to +shrink from that which civilization, decency and honor compel her to +stand to. She must recognize even those who are her children--struggling +against her authority though they be--as fair and honest antagonists. +From the time of our own struggle, in the days of the Revolution, we +professed the principles of international law. They are now a part of +the law of the land. There is a moral obligation upon us to occupy our +position in the great family of nations; to hold it, as we have always +done, with honor and with distinguished consideration. Sorry, indeed, +would I be to think that there should be, on this occasion, any eminent +departure from it, as there certainly would be if these men were held +in any other light than as mere privateersmen, and not pirates. + +But if these principles are true, as applying between the people of +this country and the people of England during the days of the +Revolution,--if the mother country then considered us as belligerents +where there could be no subtle political question such as may be raised +here, and has already been raised--the doctrine of the two +sovereignties,--there is then, at least, a reason which applies in this +case, and never could have applied in that case; for the allegiance of +the colonies to the mother country was firm, fixed, and undivided: it +never was, and never could be, questioned. + +I say, then, that these parties are not pirates; and I further say that +the municipal laws of a State, or of a number of States, cannot +constitute that offence to be piracy which is not so characterized by +international law; and for this principle I refer to 1st Phillimore, +381 (International Law). + +I come now to the 9th section, and I will read that section: + + "And be it further enacted, that if any citizen should commit any + piracy or robbery aforesaid, or any act of hostility against the + United States or any citizen thereof, on the high seas, under color + of any commission of 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 convicted thereof + shall suffer death." + +This section applies particularly to the citizens of the United States. +Now, I contend that this section does not change the character of the +offence. It differs only by stating that the commission shall not form +a pretext. The words "piracy and robbery" explain the words "acts of +hostility," which follow immediately afterwards. Where particular words +are followed by general words, the latter are held as applying to +persons and things of the same kind as those which precede. The +coupling of words together shows that they are to be understood in the +same sense. Take these two principles with the other principle, that +penal statutes are to receive a strict interpretation. The general +words of a penal statute must be restrained for the benefit of him +against whom the penalty is inflicted. + +To the same effect is the case of _The United States_ vs. _Bevins_ (5 +_Wheaton_): + + "Penal statutes, however, are taken strictly and literally only in + point of defining and setting down the _crime_ and the _punishment_; + and not literally in words that are but circumstances and + conveyance in the putting of the case. + + "Thus, though by the statute 1 Ed. 6, C. 12, it was enacted that + those who were convicted of stealing _horses_ should not have the + benefit of clergy, the Judges conceived that this did not extend to + him that should steal but one horse, and therefore procured a new + Act for that purpose in the following year. + + "But upon the Statute of Gloucester, that gives the action of waste + against him that holds _pro termino vitæ vel annorum_, if a man + holds but for a year he is within the statute; while, if the law be + that for a certain offence a man shall lose his right hand, and the + offender hath had his right hand before cut off in the wars, he + shall not lose his left hand, but the crime shall rather pass + without the punishment which the law assigned than the letter of + the law shall be extended. + + "A penal law, then, shall not be extended by equity; that is, + things which do not come within the words shall not be brought + within it by construction. + + "The law of England does not allow of constructive offences, or of + arbitrary punishments. No man incurs a penalty unless the act which + subjects him to it is clearly both within the spirit and the letter + of the statute imposing such penalty. + + "'If these rules are violated,' said Best, C.J., in the case of + _Fletcher_ vs. _Lord Sondes, 3 Bing., 580_, 'the fate of accused + persons is decided by the arbitrary discretion of Judges, and not + by the express authority of the laws. _2d Dwarris Stat., 634_.' + + "By another restrictive rule of construing penal statutes, if + general words follow an enumeration of particular cases, such + general words are held to apply only to cases of the _same kind_ as + those which are expressly mentioned. By the 14 Geo. 2, C. 1, + persons who should steal sheep _or any other cattle_ were deprived + of the benefit of clergy. The stealing of any cattle, whether + commonable or not commonable, seems to be embraced by these general + words, "_any other cattle_," yet they were looked upon as too loose + to create a capital offence. By the 15 George 2, C. 34, the + Legislature declared that it was doubtful to what sorts of cattle + the former Act extended besides sheep, and enacted and declared + that the Act was made to extend to any bull, cow, ox, steer, + bullock, heifer, calf, and lamb, as well as sheep, and to no other + cattle whatsoever. + + "Until the Legislature distinctly specified what cattle were meant + to be included, the Judges felt that they could not apply the + statute to any other cattle but sheep. + + "The Legislature, by the last Act, says that it was not to be + extended to horses, pigs, or goats, although all these are cattle. + + "3 Bingh., 581. + "2 Dwarris, Statutes, 635." + +By the English law, and by the principles of general law, may it +please the Court, the offence must be clearly defined--it must be +limited, ascertained, fixed. It must be clear to the accuser. It must +be clear to the accused. It must be equally clear to the Judge. It +must leave him no discretion whereby he can enlarge or alter it. 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. Let us see the opinion of +perhaps the greatest master that ever touched the subject of +jurisprudence--I mean _Montesquieu_. + + "It is determined," he says, "by the laws of China, that whoever + shows any disrespect to the Emperor is to be punished with death. + As they do not mention in what this disrespect consists, every + thing may furnish a pretext to take away a man's life, and to + exterminate any family whatsoever. + + "If the crime of high treason be indeterminate, this alone is + sufficient to make the Government degenerate into arbitrary + power."--_Montesquieu, Spirit, Book_ 12, _c._ 7. + +Now, may it please the Court, it is through statutes in which crimes +are ill-defined--are not clearly and distinctly designated--that +tyrants in every age have been able to crush their victims. Hence, in +the noble system of laws that it is your honors' privilege to dispense, +safeguards have been put in the strongest degree, and bulwarks have +been erected around the life, the liberties, and the rights of the +citizen. + +Now, what is an "act of hostility"? Suppose these men had gone out +with a commission instructing them to go on the seas, to board +vessels, and to beat the captains of vessels, and to do no more--to +abandon them then, and take to their own ships--would that be an act +of piracy? Is it not plain that the law meant piracy or robbery, or +any "act of hostility" _ejusdem generis_, that is, _animo furandi_? To +show that this construction is not forced, your honors will find in +the Act of March 3d, 1825 (Dunlop's Laws, p. 723, sect. 6), that a +special law was passed for the very purpose of punishing _acts of +hostility_ against the United States and its citizens by _forcibly +attacking_ and _setting upon vessels_ owned in part or wholly by +either of them, _with intent to plunder and despoil the owners of +moneys, goods_, &c., &c. If, therefore, this construction of these +words, which I respectfully submit to the Court, has any weight in it, +they amount to no more than what has been already decided in +Clintock's case--the clear and well-settled principle of law that the +commission shall not form a pretext for robbery. + +But, may it please the Court, as to the ninth section of the Act, it +never was contemplated as applying to organized States. It was an Act +which was intended to apply to individuals alone. States are not the +subjects of criminal law, nor can you legislate against them; and this +has been distinctly decided. If the Confederate States have been guilty +of a gross breach of faith in the attempt to withdraw from the +Confederation, they may be coerced; but the citizen himself must go +unpunished. They are States--recognized by yourselves as States. They +are not a collection of piratical hordes; and under such circumstances +the law will not apply to the citizen of any of these States who acts +fairly and honestly under his commission. + +The learned counsel who spoke last Saturday, referred to privateering +as a relic of the barbarous age. No one agrees with the learned counsel +in that respect more than I do; and from the bottom of my heart I hope +that he may be yet able to take his share in banishing from the world +this relic of the olden time. But, really, I see very little chance of +advancement in that line, so long as a vessel of war is allowed to take +private property on the seas. There should be perfect immunity for all +property on the ocean belonging to individuals; but the letter of Mr. +Marcy shows that we are not yet exactly up to that point. + +The learned counsel stated that, before he could concede the commission +in this case to be a justification, two things must be shown: First, +there must be a state of war; and, second, the privateer must have +received his commission from some public, national, sovereign power. +Well, we think we have shown the existence of war sufficiently +strongly; and as to this point, I fancy that few gentlemen of the bar +can forget the pointed and admirable allusion of the learned counsel +himself (Mr. Evarts), in his argument in the District Court, some time +since, to the absent clerk, in illustrating the fact of the existence +of war. I remember how forcibly it struck me when I read it. The +decisions in the case of the South American privateers settles the +point as to the nationality. + +But, gentlemen, there is another subject to which I will briefly +allude--that is, the abstract right of these States legally to secede. +Now, gentlemen, we do not deny that there is no such right. I concede +all that. Yet, still, these men have ever held different notions; and, +on this subject, a line has been drawn for many years through an +immense tract of this our country. The right or the wrong of it does +not affect us here. You have failed to convince them, and they have +failed to convince you. There is no common arbiter between you, because +they contend that, being sovereigns, they cannot submit to the Courts +questions between themselves and the United States. Now, they may be +wrong, but have you the right to declare them so? You ought to be +perfectly certain. Justice, reason, and duty prompt that there ought to +be no mistake. When you hold a party for a criminal charge, there ought +not to be a reasonable doubt. Is there no possibility that, in the +course of the proceedings between the Federal and State Governments, +you may be wrong? Does truth only consort with one side of the line, +and falsehood with the other? May you not be mistaken? Look at the +different lights in which, for years, you have respectively viewed +various questions. See how gradually the change has been effected; and +yet how stronger and stronger it has grown day by day. Can any one +forget the deep and intense anxiety with which that great statesman, +Mr. Clay, just before his death, regarded the division between the +Methodist and Baptist Churches of the North and the South? And yet no +man was a truer or firmer patriot, or an abler advocate of the +Government; and no man saw with more unerring certainty that the line, +sooner or later, was destined to be drawn between the two sections, +unless some compromise was effected. + +Now, the doctrine in which these men have been brought up may be +political heresy; but, do you crush a heresy with chains? Does history +not tell us how utterly vain and futile such an attempt is? Have you +to go back farther than the days of James the Second, to see the +attempt of that despot to enforce upon the English people a religion +which they did not choose to adopt? Can you forget the bloody assizes +of Jeffreys, when hundreds were carried to the block and thousands +were sent into exile to all parts of the world? Can you forget the +great scene, when the noble Duke of Argyle, with his head bared and +his limbs in chains, was led through Edinburgh amidst the reproaches +and contempt of the populace; and do you forget the cold and manly +dignity with which he endured it all? And do you reflect that, with +all these things, the religion of England to-day is the same as it was +then? Can you expect, by a system like this, to mould the human mind +as you would mould potter's clay? 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! Is Tatnall a pirate--Tatnall who, by his +skill, and valor, and daring, succeeded in landing your gallant army +in Mexico, challenging on that occasion the admiration alike of the +army and navy? Tatnall a pirate! Tatnall, whose name has been for +forty years the synonym of all that is high and noble and brave in the +American navy! Is Hartsteine a pirate--Hartsteine, the modest but +hardy sailor, who carried your ensign into the far, remote, and +unfriendly regions of the frigid zone? Is Ingraham a pirate--Ingraham, +who, when the down-trodden naturalized refugee from Austria asked for +the protection of the American flag said, "Do you want the protection +of this flag?--then you shall have it!" Are these men pirates? Oh, no! +gentlemen; there is some mistake about this. Is Lee a robber--Lee, the +chosen and bosom friend of your venerable commander in Washington, and +who, but a few months ago, parted from him with an aching heart and +eyes brimful of tears? Lee, a robber! Lee, whose glory is yours, and +whose name is written on every page of your country's history which +attests the triumphant march of your army from Vera Cruz to the gates +of Mexico? Methinks I see the flash of fire light the eye, and the +curl of contempt play upon the lips, of the old hero of Lundy's Lane, +as he hears the foul imputation upon the stainless honor of the +well-tried friend of many years. No, gentlemen, these men are not +pirates! they are not robbers! Your own hearts tell you they are not. +Truly, it may indeed be said, that civil war does pervert the natural +taste, and relish of equity and of justice. + +But, gentlemen, what is the object of this prosecution? Can the united +States desire revenge on these men? That is a passion not attributable +to States. States have no passion. The dignity and the power of a State +ought to make it tolerant. Is it because the President's proclamation +has pronounced these men pirates? Certainly, the respected Chief +Magistrate of these United States has no disposition to enforce this +law, simply because he has declared it, as in the case of King +Ahasuerus. Is their punishment sought for the good of the community? If +it is designed for such a purpose, its effect is very questionable. + +It is extremely strange, gentlemen, that the prosecution should have +been, any how, brought on now, and under this Act. Is it a strange +fact, gentlemen, that, under the Act of William the Third, which has +been cited to you, there was not, during the American Revolution, a +single American privateersman ever brought to trial in England. And yet +the English Government repeatedly captured them, and put them in +prison. That Act is just as strong as this, for the ninth section of +our Act of 1790 is copied from it. I suppose the truth is, gentlemen, +that the English Government felt the utter inapplicability of that law +to a case of this kind. + +But, it is time that I should draw to a close. If these men have been +brought into the position in which they now stand, much depends upon +their political education--much depends upon the different views with +which they have regarded this question from ourselves. It is the part +of humanity to err. These men are the representatives of those who +were once united with us in the gentle tie of brotherhood. That tie is +now rent, and it may be years before the kindly and good feeling which +once subsisted between the sections is restored. God grant that the +hour may not be far distant! But, gentlemen, to treat these men with +kindness; to treat them with humanity; to have respect for that great +principle which underlies the bottom of our own Government--the right +of resistance (and I mean here legal resistance, and not that +revolutionary resistance which the Courts of justice do not adopt, and +never have, and cannot sanction),--I say, to treat them with kindness +and humanity will do more, in my honest belief, to knit together the +two sections than a hundred battle-fields would do. + +Gentlemen, if there has been a division between you, remember that that +division has sprung up from honest conviction. Can you think otherwise? +Shoulder to shoulder with your fathers, in the days of the Revolution, +their fathers fought the battles of freedom. Side by side with you, +they trod the burning plains of Mexico, and encountered, in hostile +strife, the foes of your country; and when the shock of battle was +over, wrapped in the same honored flag, their dead and yours were borne +to their final resting place. Is it for a light and a trifling cause +that they have thus separated from you? + +In conclusion, gentlemen, let me beg you to meet this issue like men. +No matter what the pressure upon you is, stand firm, do justice, and +discharge these prisoners. In so doing, you will but do your duty, and +God himself will sanction the act. But, gentlemen, if deaf to the +promptings of reason, of justice, and of humanity--if, impelled by +political rancor and passion--you condemn these prisoners, and +execution follows condemnation, be assured that they will meet their +fate like men; and that these manacled hands, which you have so often +disported through your streets to excited crowds, will, "though +impotent here," be lifted, and not in vain, to a far more august +tribunal than this, before whose unerring decrees Courts and nations +alike must bow with awful reverence. + + +ARGUMENT OF MR. SULLIVAN. + +Mr. Sullivan, of Counsel for the prisoners, said: + +_May it please the Court: Gentlemen of the Jury_: + +This case has brought to my mind an interesting episode in ancient +history, to which I beg permission to refer. For many years, the States +of Greece had been engaged in bloody civil strife, which ended in the +discomfiture of Athens. The Spartans and their allies assembled in +council to consider and determine on her fate. Animated by resentful +passion, the Thebans urged extreme and vindictive measures: that Athens +should be razed to the ground, that the hand of the victorious States +should fall heavy, and the Athenians be proclaimed exiles from their +homes and outlaws in Greece. This proposal was applauded by the +Corinthians and some others, but at that moment the deputy of the +Phocians, who owed a debt of gratitude to the Athenians, sang in the +assembly the mournful Choral Ode from the Electra of Sophocles, which +moved all present in such a manner that they declared against the +design. The poem had lifted them from the passion of the hour, and +invoked the memories and ancestral glories of their common nation. The +spirits of departed heroes now lent the inspiration of their presence, +and yielding to it the members of that council and jury became great +Greeks, as of old their fathers were. Marathon and Salamis, Platæa and +Mycale, were pictured in the chambers of their souls, with Miltiades, +Themistocles and Aristides for their counselors; and then, and not +until then were they fit to render a verdict upon Athens, the loveliest +sister of them all. + +And gentlemen, before we touch upon the details of this case, may we +not contemplate some examples and sentiments which will enlighten and +strengthen our spirits as guardians of the important interests +committed to our hands this day? I am sure it will be agreeable to you +and to seek them in the annals of our forefathers, + + "The great of old, + The dead but sceptred sovereigns, who still rule + Our spirits, from their urns." + +It may be that a voice like that of the Theban delegate, and like the +voice of Corinth, is sounding in your ears, and appealing, by +sophistries, and passion, and prejudices, to you to lay the hand of +your Government with all possible severity upon those of her enemies +who are now in her power and arraigned at her bar. But I entreat you to +lift yourselves to that stand-point from which our ancestors, who +founded this Union, who enacted the law upon which this prosecution is +founded, would have regarded a case analagous to that of Captain Baker +and the other defendants herein. What was the central and +distinguishing idea of Government, blazing like another sun on the +world, which our fathers established and made honorable? Was it not the +imperishable doctrine of revolutionary right--and that without special +regard to the names, and forms, and paths through which it might be +sought? For many other causes they may have pledged their fortunes; +there were many for which they periled their lives; but only for this +is it recorded by them, "We pledge our sacred honor." It is their +incommunicable glory that they consummated their purpose; and if for +anything we have a place in history and a name in the world, it is that +we have hitherto professed to be the special guardians of that +principle among the nations. Will you rise with me to the dignity and +affecting associations that surrounded and auspicated the struggle of +our forefathers for this principle? Shall their memory be your guiding +light, and their honorable purpose that upon which your thoughts will +linger? Let us subject our hearts to their influence, for it will not +mislead us. And, now, would our fathers with casuistry and technical +constructions of a statute which they never meant should apply to such +a case as the present, pronounce judgment of piracy and outlawry +against any people who were making an effort, by the recognized forms +of war, to assert revolutionary right and independent self-government +for themselves? Never! And while the page on which our fathers' history +is written is lustrous, it would be readorned with all the beauty of +immortal splendor, if under it were written to-day, "That which the +American people of 1776 claimed for themselves (the right to 'dissolve +the political bands that bound them to another'), they possessed the +greatness of soul, in 1861, to acknowledge against themselves, when +another portion of the same race sought the same end. Beguiled by the +almost omnipotent sophistries of interest and passion, they have +nevertheless adhered in loyal faith to their time-honored doctrine of +free government. In the faithful devotion of the Sons, the principles +of the Fathers have been revindicated. Henceforth the nation must stand +unapproachable in their greatness." + +Why I make these observations, gentlemen, is, that when the officers of +the United States ask you to-day to find a verdict of guilty against +these prisoners, they ask you to do that which, shape it and distort it +and reason about it as they may, is asking you to lift an impious hand +and strike a parricidal blow, conspicuous in the eyes of the world, +against the ever sacred doctrine which our ancestors transmitted to us +as their best legacy and a part of their own good name. Will you +abandon it? Nay, rather cling to it, + + "As one withstood clasps a Christ upon the rood, + In a spasm of deathly pain." + +I wish now, gentlemen, to ask you to go with me a moment to the deck of +the _Perry_, when she captured the _Savannah_ and her crew. Let us +recall the historical incidents of the capture, and the preparations +for the trial, that we may introduce this case as justice requires. + +The _Savannah_ was captured on the Atlantic Ocean, about fifty-five +miles from Charleston. The Commander of the _Perry_, who at that moment +represented the United States Government, virtually said to the +defendants herein, "We propose to try you as _citizens_ of the United +States, who, by acting under a commission of letter of marque from the +Confederate States, have become liable to the penalties of the United +States law against piracy." The prisoners at once reply, "If that is +true, take us into the nearest ports for trial. They are in South +Carolina. You claim that she is a part of the United States, and that +her citizens (_i.e._, ourselves) are amenable to your laws, and that +the United States are sovereign there. Take us before one of your +Courts in that State and try our case." "Oh! no, (say the United +States) we cannot, with all our guns, land upon the shores of South +Carolina." "Well, take us into the adjoining State, Georgia." "No; +there is not an officer of the United States in Georgia. We cannot +protect or sustain a single law in Georgia." "Well, take us to Florida, +Alabama, Mississippi, Louisiana or Texas--any place along that extended +coast of over two thousand miles." "No, (say the United States) +throughout all that coast, we confess to you, Capt. Baker, that we have +not a Court, not an officer, we cannot execute a single law." "Well, +take us north, into North Carolina, or into Virginia." 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." + +The defendants are accordingly put in chains and brought to the +District of New York for trial. The witnesses for the prosecution prove +all the facts that are in the case, and we stand willing to be tried by +them. They prove that the defendants did capture a brig on the high +seas, which brig belonged to citizens of the United States. They prove, +further, that the defendants at the time of the capture, and in the +act, alleged that they did so, in the name and on behalf of the +"Confederate States of America," and by authority derived from them, as +an act of war between the two Governments. + +The authority and intent thus alleged for the capture, were they +honestly, or only colorably alleged? Were they a justification of the +act, so far as this prosecution is concerned, or not? + +_First_: Was it true that the capture of the Joseph was in the name of +the Confederate States? The fact is, that when the Savannah approached +and summoned the Joseph to surrender, the captain of the Savannah +stated his purpose to be as I have repeated; he hoisted the Confederate +flag; he wore the uniform and insignia of an officer of the Confederate +States; he had, as the paper upon which his vessel was documented, a +paper which has been produced before us, and which bears the broad seal +of the "Confederate States of America," which authorizes him to take +the Savannah as a private armed vessel, and, in the name and authority +of the Confederate States, to "make war" against the United States and +her vessels. The facts preclude any possible suggestion, that the +defendants made any false pretence on the subject. The defendants had +every adequate and sufficient warrant for what they did, if the +"Confederate States of America" could give any authority which would +constitute a defence, or if there was anything in the state of the +contest between the United States and the Confederate States which +constitutes _war_. But, the question will present itself, even if the +defendants had this warrant from the Confederate States--Did they +intend to, and did they in fact comply with its requirements, or were +they abusing and transgressing its license, and engaged in freebooting? +Did they intend to infract the regulations prescribed for their control +by the Government of the Confederate States and imposed imperatively by +the law of nations upon legitimate privateers, or did they intend to +rob and steal? I think I may safely assert that the law officers of the +United States will admit that the defendants intended in good faith to +comply strictly and literally with all the conditions of their +authority, prescribed by their own Government for their conduct, and +also with the code of war in the law of nations. And not only was this +their general intention, but as a fact, their conduct furnishes not a +single deviation from these requirements. I read to the Court and Jury +the Regulations published by the Confederates, for the privateers, and +which were found to be on board of the Savannah at the time of her +capture. They are similar, in all of their provisions, to those usually +prescribed by civilized nations at war. In substance, they permitted +the privateers to capture the vessels and cargoes belonging to the +United States and her citizens, the capture to be made in the name of +the Confederate States; they forbade, after capture, any disturbance or +removal of the furniture, tackle, or cargoes of the captured prizes, +and required immediate transmission, to a proper Court, of the prize, +for adjudication. Did the defendants comply with these terms? The +evidence is too plain that they did, to admit the slightest doubt. + +As soon as the Joseph was captured, a prize crew was put on board of +her and she was sent to the care of an Admiralty Court in a home port, +and her papers, books and crew were sent along, that the Court might +have the fullest evidence of the ownership and character of the +captured vessel, and be able to decide properly, whether or not she was +liable to capture. If the defendants had any corrupt or furtive +motives, or if they had been indifferent to their assumed obligations, +would they have been so scrupulous in furnishing all the evidence to +the Court? Did they destroy, alter or erase any evidence, or offer to +do so? Did they evince the least desire to have any other than the full +facts appear with regard to all their acts? Your answer, with mine, is +No! And when the vessel arrived in port, observe what proceedings were +instituted by the agent of the captors. He did not offer to sell the +vessel and cargo at private sale; he did not offer to submit her +disposition to the adjudication of any merely State Court; but caused +her to be libeled in a Prize Court, constituted on precisely the same +basis, and enforcing the identical rules of law with the United States +Prize and Admiralty Court, which convenes in the room adjoining to that +in which we now are. In fact, I am safe in saying that the decisions of +our Courts here are controlling precedents in the Court wherein the +brig Joseph was tried and condemned as a prize of war. The trial was in +a Court known to and recognized by the law of nations. Now, gentlemen, +I certainly need do no more than thus re-advert to the facts in +evidence to remove from your minds the slightest suspicion that the +defendants ever intended to violate the laws of war or the instructions +received from their Government when they received their letter of +marque. + +Perhaps, however, the question may arise,--whether the defendants did +regard the commission under which they sailed as competent and adequate +authority to justify their acts; or were they distrustful of its +sufficiency? I do not admit, gentlemen, that that is a consideration to +which in this trial we should recur, for your decision must rest on +other grounds. But, I will not hesitate to say, that it is morally +impossible for any man who has heard the evidence, and who is familiar +with the course of events in the South, to believe that the defendants +did not act in the fullest confidence that the authority of the +Confederate States was ample and just authority for their undertaking. +Even that one of the Savannah's crew who has become a witness for the +prosecution, under a _nolle prosequi_, asserted on the stand, that at +the time the Savannah was being fitted out for her cruise as a +privateer, no one in the community of the South seemed to have any +other idea but that the Government of the Confederate States was +completely and legally established, and that every citizen of those +States owed to it supreme allegiance. They believed that a letter of +marque from the Confederate States constituted as good authority for +privateering as the letters which were issued by our revolutionary +fathers in '76, or as if they were issued by the United States. But, +gentlemen, we are to proceed one step further, for under the theory +presented by attorneys for the prosecution, they virtually admit that +there was good faith on the part of the prisoners, and that they +intended to comply with the restrictions imposed by the authority which +they carried out of port with them. But they say that, inasmuch as the +Confederate States were not a recognized Government, they could not +confer any right upon the defendants to act as privateers, which could +justify them in a plea to the pending charge. That is a proposition +which enfolds the real issue in this trial. The difficulties in respect +to its solution do not appear to me to be great, and I am satisfied +that the more they are examined the less they will appear to candid +minds. + +Had the Government of the Confederate States a right to issue letters +of marque; or, in other words, to declare and wage war? The denial of +that right, by the attorneys for the United States, involves them in +inextricable embarrassments, and must expose the fallacies which lie at +the bottom of the erroneous reasonings of the prosecution. + +In the first place, it is substantially an assertion, on the part of +the United States, of the doctrine, "_Once a sovereign always a +sovereign_,"--that the United States Government cannot--by revolution +accomplished--by the Act of the States repealing their ordinances of +union--by any act of the people establishing and sustaining a different +Government--be divested of their former sovereignty. Or, in the +language of Mr. Evarts, until there has been some formal acquiescence, +some assent, some acknowledegment by the executive authority of the +United States of the independence of the Confederate States, there can +be no other plea, and no progress in any line of investigation, with a +view to a defence of these defendants in a Court of justice of the +United States. Upon that point, I beg to be understood as taking an +issue as wide as it is possible for human minds to differ; and I am +bold to assert that the doctrine cannot be maintained successfully in a +capital case of this kind. It is not true that a recognition of the +Confederate States by the United States executive, in a formal and +distinct manner, is requisite to entitle them and their citizens to the +rights belonging to a nation, in the eye of this Court. An +acknowledgment of independence would be one way of proving the fact, +but is far from being the only way. Proof of such an acknowledgment by +a formal State paper would, of course, terminate this prosecution; but, +in the absence of that fact, there may be a recurrence to others, which +will suffice as well, and satisfy the Court and Jury that the +Confederate States must, at least, to a certain extent, be regarded as +a nation, entitled to the usual consideration belonging to a nation at +war. To show how unreasonable the proposition is, and to illustrate how +impossible it is to accept it, let me submit a supposition: + +If, for fifty years to come, the United States shall not re-establish +her sovereignty and restore her laws and power over the seceded States, +and the latter shall continue to maintain an open and exclusive +Government; and if the United States shall still refuse to recognize +the new Government by formal documentary record, would the refusal then +warrant the United States in capturing Confederate armies of a new +generation, and punishing them for treason and piracy? And, if so fifty +years hence, would it continue twice or thrice fifty years? Or what is +the limit? The difficulties in the answer can be avoided in only one +way, and that is, to conclude that the acknowledgment of the +independence of the revolutionizing section is of no consequence at +all, for all the purposes of this case, provided the fact of +independence and separate Government really exists, and is proven. A +_de facto_ Government, merely, must be allowed by every sound jurist to +possess in itself, for the time being, all the attributes and functions +of a Government _de jure_. It may properly claim for itself, and the +citizen may rightfully render to it, allegiance and obedience, as if +the Government rested on an undisputed basis. + +This is a rule never denied in the law of nations. History has scarcely +a page without its record of revolution and dynastic struggle to +illustrate this rule. The official acts of a _de facto_ Government +affecting personal rights, title to property, the administration of +justice, the organization of its society, and imposing duties on the +citizens, receive that consideration which belongs to acts of +long-established Governments. + +The successor does not pronounce the laws of the predecessor null. He +simply repeals them, with a clause protecting all vested rights. This +principle is correct, even in case of an usurping monarch; but how much +more, if it shall appear that the people who are to be governed, have, +for themselves, with mutual concurrence and choice, cast off the former +Government, and organized a new one, avowing to the world their purpose +to maintain it, and at the same time yielding to it the obedience which +it requires? + +When that state of facts shall occur, and a people sufficiently +numerous to enable them to fulfill the duties of a nation, and with a +territory sufficiently compact to enable its Government to execute its +functions without inconvenience to the world, shall evince its purpose +and a fair assurance of its ability to maintain an independent +Government, it will be a surprise, indeed, to hear, in this country, +that such a people are still liable to felons' punishment and pirates' +doom. It is no longer a case of insurrection or turbulent violence. It +has ceased to be a tumult or a riot. The war between the original +Government and the revolutionary Government may still continue, but no +longer can it, with propriety, be said that the army is merely the +_posse comitatus_, dispersing and arresting offenders against the law. +The conflicting parties must, at least for the time, be deemed two +distinct people--two different nations. The evidence in this case and +the public history of the day, show that such is the condition of the +United States and the Confederate States. In addition thereto, the +United States have, by repeated acts, indicated that they so regarded +the fact. The principal witness for the prosecution testified that he +repeatedly saw the officers of the United States negotiating, through +flags of truce, with the officers of the Confederate States; and that +always the flag of truce from the Confederate States was displayed with +their Government flag, but that fact never prevented the negotiation. +This was well known to our Government. We have in evidence, also, the +agreement of capitulation at the surrender of the Forts at Hatteras +Inlet. The representative of the United States signed that official +document and accepted it for his Government, with the signature of +Commander Barron to it as "commanding the forces of the Confederate +States," etc. That was a virtual recognition that there is such a +Government, _de facto_. + +A few days since our Government published another general order, or +document, directing that a certain number of prisoners, captured in +arms against the United States, and when fighting under regular +enlistment the army of the Confederate States, should be released as +"prisoners of war," because the Confederate States had released a +similar number. That was an exchange of prisoners of "war," and another +virtual acknowledgment that the Confederate States constitute a +Government. Remember that these "prisoners of war" had, if they were +citizens of the United States, violated the law in the first section of +the statute under the eighth and succeeding sections of which this +prosecution is founded. One class were fighting on land against the +United States, and the penalty is death by the statute. The defendants +here fought on water; and there is the same penalty, if either is +liable to the penalties of the statute. Both classes fought under the +same flag and received their commission from the same Government. If +one class are "prisoners of war" in the opinion of the Government of +the United States, so must the other be. It is impossible to recede +from the consequences of the virtual recognition of belligerent rights +involved in the exchange of these captives, under the chosen +designation of "prisoners of war." How, then, doth the dignity of our +Government suffer by this prosecution! It evinces an indecision, a +caprice, a want of consistency and character on the part of the +Government. It is an unfortunate, and I hope an unpremeditated one. The +good name of the nation is involved, unnecessarily, by the mere fact of +arraignment of these defendants under an indictment; but your verdict +of "not guilty" may yet save it. + +The Jury will and must accept the construction which the Government has +in fact put on the law, viz., that it does not apply, and was never +intended to apply, to such a state of affairs as the present revolution +has brought about. + +Let me illustrate further the absence of all reason to support the +proposition that, until a formal acknowledgment of the existence of the +Confederate States by the United States, the official acts of the +former cannot be regarded as having any validity, or as affording +protection to their citizens. Go beyond our own borders, to countries +where the sovereign is an individual, with fixed hereditary right to +reign, and where the doctrine established is that which I repudiate, +"Once a sovereign, always a sovereign," and that the sovereign rules by +divine right and cannot innocently be superseded. If the doctrine +affirmed in this case be true, that to give validity to the acts of a +Government established by a revolution the preceding Government must +have recognized its existence, then the world will be sadly at fault. +Show me where the King of Naples has acknowledged the kingship of +Victor Emanuel? Show me where the sovereigns of Parma and Modena and +Tuscany have consented to the establishment of the new government in +their territory? + +But the people have voted in the new Government, and they maintain it; +and Victor Emanuel is, in spite of King Bomba, _de facto_, King of +Naples; and Victor's commissions to his army and navy, and his letters +of marque, will be recognized in every court in every enlightened +nation. + +Even in Italy, the Courts of Justice would, when the case arose that +required it, enforce the same regard to the existing Government as if +the former sovereigns had formally relinquished their claims to +sovereignty. Again, I say, the act of the people is entitled to more +weight in an inquiry, "what is the Government?" than the seal and +recognition of the former sovereign. + +As Americans, imbued with correct opinions upon the relation of the +governed to the governing, your hearts reject the theory propounded by +this prosecution, and concur with me. + +To vindicate your opinion you will find the defendants herein "not +guilty." + +Come to our own recent history. Texas was one of the States of the +Union which is called Mexico. Texas seceded from that Union. She +declared her independence, and during a struggle of arms became a _de +facto_ Government. Mexico would not recognize her independence, and +continued her intention to restore her to the old Union. The United +States, however, recognized the right of Texas to her independence, and +invited her to enter into our Union, and did incorporate her in that +Union in defiance of the doctrine of Mexico, "once a sovereign, always +a sovereign until independence shall be acknowledged." We then +denounced that doctrine, but now we seem ready to embrace its odious +sentiments. We placed our declaration on record before the world, that +Texas, by her act alone, unauthorized and unrecognized by the central +Government of Mexico, had become a sovereign and independent State, +invested with full power to dispose of her territory and the allegiance +of her citizens, and, as a sovereign State, to enter into compacts with +other States. + +Have not the Courts of the United States sanctioned that proceeding? +Suppose that Hungary, or Venice, or Ireland shall separate from their +present empires and establish Governments for themselves, what will be +our position? Let your verdict in this case determine. + +It is, perhaps, well, now, to recur to the law of nations. That is a +part of the common law of England and of this country. We may claim in +this Court the benefit of its enlightened and humane provisions, as if +they were embodied in our statutes. There are circumstances in the +history of every nation, when the law of nations supervenes upon the +statutes and controls their literal interpretation. + +If the case becomes one to which the law of nations is applicable, it +thereby is removed from the pale of the statute. Such is the present +case. In the seceded States a Government has been established. It has +been hitherto maintained by force, it is true, as against the United +States, but by consent of the people at home; and both sides have taken +up arms, and large armies now stand arrayed against each other, in +support of their respective Governments. It is all-important to the +cause of justice, and to the honor of the United States, to see that in +their official acts, in their treatment of prisoners, either of the +army or captured privateers, they conform to the rules recognized as +binding, under similar circumstances, by civilized and Christian +nations, and sanctioned by the authoritative publicists of the world. I +will recall your attention to extracts from Vattel, and with the +firmest confidence that they will vindicate my views, that the +defendants are entitled to be held as prisoners of war, and not as +criminals awaiting trial: + +Vattel, Book III., chapter 18, sec. 292: + + "When a party is formed in a State, which no longer obeys the + sovereign, and is of strength sufficient to make a head against + him, or when, in a Republic, the nation is divided into two + opposite factions, and both sides take arms, this is called a + _civil war_. Some confine this term only to a just insurrection of + subjects against an unjust sovereign, to distinguish this lawful + resistance from _rebellion_, which is an open and unjust + resistance; but what appellation will they give to a war in a + Republic torn by two factions, or, in a Monarchy, between two + competitors for a crown? Use appropriates the term of civil war to + every war between the members of one and the same political + society." + +Subsequent clause in same section: + + "Therefore, whenever a numerous party thinks it has a right to + resist the sovereign, and finds itself able to declare that + opinion, sword in hand, the war is to be carried on between them in + the same manner as between two different nations; and they are to + leave open the same means for preventing enormous violences and + restoring peace." + +Last clause in section 295: + + "But when a nation becomes divided into two parties absolutely + independent and no longer acknowledging a common superior, the + State is dissolved, and the war betwixt the two parties, in every + respect, is the same with that in a public war between two + different nations. Whether a Republic be torn into two factious + parties, each pretending to form the body of the State, or a + Kingdom be divided betwixt two competitors to the Crown, the nation + is thus severed into two parties, who will mutually term each other + rebels. Thus there are two bodies pretending to be absolutely + independent, and who having no judge, they decide the quarrel by + arms, like two different nations. The obligation of observing the + common laws is therefore absolute, indispensable to both parties, + and the same which the law of nature obliges all nations to observe + between State and State." + + "If it be between part of the citizens, on one side, and the + sovereign, with those who continue in obedience to him, on the + other, it is sufficient that the malcontents have some reasons for + taking arms, to give this disturbance the name of _civil war_, and + not that of _rebellion_. This last term is applied only to such an + insurrection against lawful authority as is void of all appearance + of justice. The sovereign, indeed, never fails to term all subjects + rebels openly resisting him; but when these become of strength + sufficient to oppose him, so that he finds himself compelled to + make war regularly on them, he must be contented with the term of + civil war." + +Clause of section 293: + + "A civil war breaks the bands of society and government, or at + least it suspends their force and effect. It produces in the nation + two independent parties, considering each other as enemies, and + acknowledging no common judge. Therefore, of necessity, these two + parties must, at least for a time, be considered as forming two + separate bodies--two distinct people. Though one of them may be in + the wrong in breaking up the continuity of the State--to rise + against lawful authority--they are not the less divided in fact. + Besides, who shall judge them? On earth they have no common + superior. Thus they are in the case of two nations who, having + dispute which they cannot adjust, are compelled to decide it by + force of arms." + +First clause in sec. 294: + + "Things being thus situated, it is evident that the common laws of + war, those maxims of humanity, moderation and probity which we + have before enumerated and recommended, are, in civil wars, to be + observed on both sides. The same reasons on which the obligation + between State and State is founded, render them even more + necessary in the unhappy circumstance when two incensed parties + are destroying their common country. Should the sovereign conceive + he has a right to hang up his prisoners as rebels, the opposite + party will make reprisals; if he does not religiously observe the + capitulations and all the conventions made with his enemies, they + will no longer rely on his word; should he burn and destroy, they + will follow his example; the war will become cruel and horrid; its + calamities will increase on the nation." + +Remember you are an American Jury; that your fathers were revolutionists; +that they judged for themselves what Government they would have, and +they did not hesitate to break off from their mother Government, even +though there were penalties of statutes with which they were +threatened. And remember, also, that from the beginning of your +fathers' revolution, they claimed that they were not liable to the +treatment of offenders against British statutes, but that the Colonies +were a nation, and entitled to belligerent rights--one of which was, +that if any of their army or navy fell into the hands of the British +army, they should be held as prisoners of war. + +Your fathers never admitted that the _continental army_ were liable to +punishment with the _halter_, if taken prisoners. + +To be sure, the statute of Great Britain, literally construed, so +provided, but the law of nations had supervened, and rendered that +statute no longer applicable. Vindicate your respect for your fathers' +claims, by extending the same immunities to the prisoners at the bar, +whose situation is analogous to that of our fathers. + +At the commencement of the Revolution, preceding the Declaration of +Independence in 1776, the Colonies became each a separate sovereignty. +That became the _status_, with some, without documentary declaration +to that effect; but most of them have left on record positive +enunciations of their assumption of independence and sovereignty as +States, unconnected with the proceedings of any other State.[4] They +entered into a Confederation as independent States, declaring, +however, distinctly, in a separate article, that each State retained +its own sovereignty, freedom, and independence, and every power of +jurisdiction and right not expressly delegated to the United States in +Congress assembled. And at the close of the war, when the treaty of +peace was made, recognizing the independence of the Colonies, each +State was named individually. I have never been able to discover when +and where, since that period, any State has surrendered its +sovereignty, or deprived itself of its right to act as a sovereign. +The Constitution suspends the exercise of some of the functions of +sovereignty by the States, but it does not deprive them of their power +to maintain their rights as sovereigns, when and how they shall think +best, if that Constitution shall, in their judgment, be broken or +perverted as a delegated trust of power. + + [4] An interesting fact, not published previously, I believe, + has been communicated to the public recently by Mr. Dawson, + of New York, a historical student and writer of great + research and culture. He has found an original minute in the + records of the General Court of Massachusetts, whereby, as + early as May 1st, 1776, the sovereignty and independence of + that _Colony_ was declared formally. + +Listen, therefore, to the better voices whispering to each heart. +Remember, the honor and consistency of the United States are involved +in this case. By a conviction of the defendants, you condemn the +Revolution of your ancestors; you sustain the theories of the worst +courtiers who surrounded George III. in his war to put down the +rebellion; you will appear to the world as stigmatizing revolutionists +with the names of outlaws and pirates, which is the phraseology applied +to them by Austria and Russia; you will violate the law of nations; you +will appear to be merely wreaking vengeance, and not making legitimate +war; you will henceforth preclude your nation from offering a word of +sympathy to people abroad who may be struggling for their independence, +and who have heretofore always turned their hearts to you. You can +never--having punished your revolutionists on the gallows--send an +invitation to the unfortunate champions of independent Government in +the old world. Kossuth will reply: The American maxim is that of +Francis Joseph, and of Marshal Haynau. You cannot say "Godspeed!" to +Ireland, if she shall secede. No! as you love the honor of your +country, and her place among nations, refuse to pronounce these men +pirates. + +Tell your Government to wage manly, open, chivalric war on the field +and ocean, and thus or not at all; that dishonor is worse even than +disunion. Stain not your country's hand with blood. If I were your +enemy, I would wish no worse for your names, than to record your +verdict against these prisoners. Leave no such record against your +country in her annals; and when the passions of the hour shall have +subsided, your verdict of acquittal of Thomas H. Baker and the other +defendants herein, will be recalled by you with satisfaction, and will +receive the approval of your countrymen. + + +ARGUMENT OF MR. DAVEGA. + +_May it please your Honors: Gentlemen of the Jury_: + +On the 25th of June last, when the startling intelligence was announced +in our daily papers of the capture of the so-called _Pirates of the +Savannah_, our community was thrown into a _furore_ of excitement. +Every one was anxious to get a glimpse of the "monsters of the deep," +as they were carried manacled through our streets. Some expected to see +in Captain Baker a "counterfeit presentment" of the notorious Captain +Kidd; others expected to trace resemblances in Harleston and +Passalaigue to Hicks and Jackalow; but what was their surprise when +they discovered, instead of _fiends_ in human shape, gentlemen of +character, intelligence, refinement, and education! Captain Baker is a +native of the Quaker City, Harleston and Passalaigue of the State of +South Carolina,--all occupying the best positions in society, and +respectably connected. The father of Harleston was educated in one of +our Northern universities, and, by a strange coincidence, one of his +classmates was no less a person than the venerable and distinguished +counsel who now appears in behalf of his unfortunate son. (The counsel +directed his eyes to Mr. Lord.) Another strange coincidence in the case +is, that twelve men are sitting in judgment upon the lives of twelve +men, and these men "enemies of the country, enemies of war," and as +such are entitled to the rights of prisoners of war. + +They do not belong to your jurisdiction; their custody belongs +exclusively to the military and not the civil power. Instead of being +incarcerated as felons, in the Tombs, they should have been imprisoned +in Fort Lafayette, as prisoners of war. They are your enemies to-day; +they were your friends yesterday. It is no uncommon occurrence that +when two men engage in a quarrel, ending in a fierce combat, they are +afterwards better friends than they were before; the vanquished +magnanimously acknowledging the superiority of the victor, and the +victor in return receiving him kindly. And so, gentlemen, I hope the +day is not far distant when the Stars and Stripes will float in the +breeze upon every house-top and every hill-top throughout the length +and breadth of our glorious Republic: then shall we establish the great +principle, for which our forefathers laid down "their lives, their +fortunes, and their sacred honor," that this is a Government of +consent, and not of force; and "that free governments derive their just +powers from the consent of the governed." + +In this case some of the gravest and most complicated questions of +political and international jurisprudence are involved. + +The learned counsel who have preceded me have so fully and ably argued +the political questions involved, that it would be the work of +supererogation for me to go over them; but in this connection it is not +inappropriate to refer to the fact that political opinions instilled +into the minds of the prisoners may have influenced their conduct. They +were indoctrinated with the principles of political leaders who +advocated States' Rights, Nullification, and Secession; and without +undertaking to justify or approve the soundness or correctness of their +views, it is enough for me to show that the prisoners at the bar were +actuated by these principles. The name of John C. Calhoun was _once_ +dear to every American; his fame is now sectional. Every Southerner +believes implicitly in his doctrines; his very name causes their bosoms +to swell with emotions of pride; his works are political text books in +the schools. It has been facetiously said that when Mr. Calhoun took a +pinch of snuff, the whole State of South Carolina sneezed. I do not +mean to treat this case with levity, but merely intend to show the +sympathy that existed between Mr. Calhoun and his constituents. Then +what is the "_head and front of their offending_"? They conscientiously +believed that _allegiance_ was due to their State, and she in return +owed them protection; and under such convictions enlisted in her +behalf. If they have erred, it was from mistaken or false notions of +patriotism, and not from criminality. It is the _intent_ that +constitutes the crime. And this is the only just rule that should +obtain in _human_ as well as _divine_ tribunals. + +The prisoners at the bar stand charged with the offence of piracy. I +contend that they do not come within the intention and purview of the +statute against piracy. To understand and properly interpret a law, we +must look to the intention of the legislator, and the motives and +causes which give rise to the enactment of the law. In the construction +of a will, the intention of the testator is to be ascertained; and the +same rules apply in the just interpretation of every law. These laws +were enacted at a period when peace and prosperity smiled upon this +country. If they had been passed during Nullification in 1832, when the +disruption of the Union was threatened, then we might reasonably infer +that they were intended to apply to the existing state of affairs; so +that the irresistible conclusion is, that they were applicable only to +a state of peace, and not to a state of war. + +The question then arises, Does a state of war exist? The learned +counsel for the prosecution (Mr. Evarts), in an able and elaborate +argument for the Government, when this question arose in the trial of +prize causes, in the other part of this Court (when it was the interest +of the Government to assume that position), demonstrated clearly, to my +mind, that a state of war did exist, and confirmed his views by +citations from the best authorities on international law. + +Vattel, who ranks among the first of authors, and whose work on the law +of nations is recognized by every enlightened jurist throughout the +civilized world, defines "war to be that state, where a nation +prosecutes its rights by force." That this is a nation no one will +doubt; that it is prosecuting its rights can not be denied; and no one +will doubt that it is using force upon a stupendous scale--requiring +four hundred millions of dollars, and 500,000 men, with the probability +of additional requisitions of men and treasure for a successful +termination of this fratricidal war. + +It may be said that this is a civil war. Admitting it to be so, the +only distinction between this and an international war is, that the +former is an intestinal war between the people, where the Republic is +divided into two factions, and the latter is where two nations are +opposed to each other. All the rules of civilized war, therefore, +should govern equally, and it is to soften and mitigate the horrors of +civil war that an exchange of prisoners is recognized. + +I have endeavored to show that the prisoners at the bar are not guilty +of piracy, as defined by the Acts of Congress; and if they are not +guilty of municipal piracy, they are certainly not guilty of piracy by +the law of nations. What is a pirate? He is defined to be an enemy of +the human race--a common sea rover, without any fixed place of +residence, who acknowledges no sovereign, no law, and supports himself +by pillage and depredation. Do the prisoners come within the meaning of +this definition? Did they not encounter a British vessel upon the high +seas? Could they not have captured her? But, no, gentlemen of the Jury, +as soon as they ascertained that she belonged to a nation in amity with +theirs, they allowed her to depart in peace. With the permission of the +Court, I would beg leave to refer to an authority entitled to high +respect--the works of Sir Leoline Jenkins, 4th Institutes, p. 154, +where this principle is laid down: "If the subjects of different States +commit robbery upon each other upon the high seas, if their respective +States be in amity, it is piracy; if at enmity, it is not, for it is a +general rule that enemies never can commit piracy on each other, their +depredations being deemed mere acts of hostility." + +The prisoners were acting in good faith, by virtue of a commission +under the seal of the Confederate States. It is said, by the learned +counsel for the prosecution, that the prisoners were acting under the +authority of a person named Jefferson Davis. This does so appear +nominally, but it is virtually and actually a commission issuing from +eight millions of people, who recognize and sanction it under the hand +of their President and the seal of their Government--each one being +_particeps criminis_, and each one being amenable to the laws of the +country, and liable to the penalties of treason and piracy, if +evenhanded justice is to be meted out. + +I have not yet been able to perceive the distinction between this +offence as committed upon sea or land, except that it is attended with +more danger. Why, then, have not the prisoners captured by our armies, +who are now in Fortress Monroe and Fort Lafayette, been brought to the +bar of justice? Because the Government has come to the conclusion that +it would be unwise, impolitic, and impracticable; our tribunals would +be inadequate in the administration of the laws. But justice should be +equal. + +One of the learned Judges who charged the Jury in the case of the +privateers who were tried in Philadelphia, has undertaken to establish +the doctrine that rebellion is wrong, and that it is only justifiable +when it acquires the form of a successful revolution. To analyze this +doctrine, it means no more nor less than this: that that which was +originally wrong, success makes right. To carry out the metaphor, a +certain insect in its chrysalis state is the loathsome and detestable +caterpillar, but when it assumes the form and variegated hues of the +butterfly, it is glorious and beautiful to behold. With equal force of +reason it might be said, that if the Father of his country had been +unsuccessful in consummating our independence, his name, instead of +going down to posterity in glory and honor, would have descended in +infamy and disgrace to all succeeding generations. Such notions are +unworthy of refined and enlightened civilization. + +It was intimated by the learned District Attorney, in his opening +remarks, that in the event of a conviction, the President would +exercise the pardoning prerogative. Gentlemen, this is a delusion. I do +not mean to insinuate that the learned counsel would willfully mislead +you; for I am bound to admit, in all becoming candor, that the +prosecution have acted with fairness and magnanimity highly creditable, +and not in any manner inconsistent with the _performance of their +arduous_ and responsible duties; but I do say that it should not have +the slightest weight in your deliberations upon the important questions +involved in this case. Is this a mere form--a farce? is your time, and +the valuable time of the Court, to be consumed in the investigation of +a long and tedious case like the present as a mere pastime? It is a +reflection upon the good sense and intelligence of a Jury, for the +Executive to exercise the pardoning power, except in special cases, +where new evidence is discovered after conviction which may go to +establish the innocence of the party so convicted. + +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_." If there is no other feeling which can influence your +judgment, if you have no sympathy in common with these men, there is a +sympathy you should have--a sympathy for those brave and valiant +spirits who fought so nobly for the Union, the Constitution, and the +enforcement of the laws, and who are now prisoners of war in the power +of the enemy; and it would be expecting too much clemency from the +hands of the enemy to suppose that they would allow the sacrifice of +these men to go unavenged. + +I repeat, you have a solemn duty to perform, and public opinion should +not have the slightest influence upon your mind. You are to be governed +by a "higher law;" a law based upon the sacred precepts of Holy +Writ--its teachings emanating from God himself; and therein you are +commanded to observe that golden rule, "Do unto others as you would +that they should do unto you." + + +ARGUMENT OF JAMES T. BRADY, ESQ. + +_Mr. Brady_ inquired of Mr. Evarts for what purpose he intended to +refer to the statute against treason. + +_Mr. Evarts_: Not in any other light than I have already referred to +the doctrine of treason, to wit, that a party cannot be shielded from +indictment for the crime of piracy by showing a warrant or assumed +authority for acts which made out that his crime was treason; that +showing a treasonable combination did not make out a warrant or +authority for that which was piracy or murder. + +_Mr. Brady_ then proceeded to address the Jury on behalf of the +accused: + +_May it please the Court: Gentlemen of the Jury_: + +I feel quite certain that all of you are much satisfied to find that +this important trial is rapidly drawing to a close; and I think it +would be unbecoming in me, as one of the counsel for the accused, to +proceed a step farther in my address to you without acknowledging to +the Court the gratitude which we feel for their kindness in hearing so +largely discussed the grave legal questions involved in this +controversy; to the Jury, for their unvarying patience throughout the +investigation; and to our learned opponents, for the frank and open +manner in which the prosecution has been conducted. Our fellow-citizens +at the South--certainly that portion of them who cherish affection for +this part of the Union--will find in the course of this trial most +satisfactory evidence that respect for law, freedom of speech, freedom +of discussion, liberty of opinion, and the rights of all our +countrymen, here exist to the fullest extent. All of us have heretofore +been connected with interesting and exciting trials. I am warranted in +saying that, considering the period at which this trial has occured, +and all the facts and circumstances attending it, the citizens of New +York have reason to be proud that such a trial could proceed without +one word of acerbity, without one expression of angry feeling, or one +improper exhibition of popular sentiment. At the same time, as an +American citizen, loyal to the Union,--one who has never recognized as +his country any other than the United States of America; who has known +and loved his country by that name, and will so continue to know and +love it to the end of his existence,--I deeply regret that, for any +purpose of public policy, it has been deemed judicious to try any of +these "piratical" cases, as they are denominated, at this particular +juncture. I am not to assume that good reasons for such a proceeding +have not in some quarters been supposed to exist; and I certainly have +no right to complain of the officers of the law, charged with a high +duty, who bring to trial, in the usual course, persons charged with +crime. I have not a word to say against my friend the District +Attorney, for whom I feel a respect I am happy to express; nor against +his learned associate, Mr. Evarts, for whom I have high regard; nor our +brother Blatchford, who always performs the largest amount of labor +with the smallest amount of ostentation. Still I regret the occurrence +of this trial at a time when war agitates our country; for, apart from +all theories of publicists, all opinions of lawyers, for you or me to +say that there is not a war raging between two contending forces within +our territory, is to insult the common sense of mankind. A war carried +on for what? What is to be its end, gentlemen of the Jury? This war to +which you, like myself, and all classes and all denominations of the +North have given a cheerful and vigorous support--pouring out treasure +and blood as freely as water--what is it for? Not to look at the result +which must come out of it is folly; and it is the folly that pervades +the whole American people. Suppose it were now announced that the +entire Southern forces had fled in precipitate retreat before our +advancing hosts, and that the American flag waved over every inch of +American soil--what then? Are we fighting to subjugate the South in the +sense in which an emperor would make war upon a rebellious province? Is +that the theory? Are we fighting to compel the seceded States to remain +in the Union against their will? And do we suppose such a thing +practicable? Are we fighting simply to regain the property of the +Federal Government of which we have been despoiled in the Southern +States? Or are we fighting with a covert and secret intention, such as +I understand to have been suggested by an eloquent and popular divine, +in a recent address to a large public audience, some of them, like +himself, from the Bay State, "that Massachusetts understands very well +what she is fighting for"? Is it to effect the abolition of slavery all +over the territory of the United States? I will do the Administration +the justice to say that, so far as it has given the country any +statement of its design in prosecuting the war, it has repelled any +such object as negro emancipation. Who can justify the absurd aspect +presented by us before the enlightened nations of the Old World, when +they find one commander in our army treating slaves as contraband of +war; another declaring that they belong to their masters, to whom he +returns them; and another treating them all as free. 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. (Applause, which +was checked by the Court.) + +You will see presently, gentlemen, why I have deemed it necessary, at +the very outset, to speak thus of what I call a state of civil war,--a +condition which, if the learned Judges on the bench, in their charge to +you, shall, as matter of law, declare to have existed, then this +commission, under which the acts charged in the indictment were +perpetrated, forms an absolute legal protection to the accused. Whether +such a war exists, is one of the great questions with which the Jury +have to deal; and I understand that the Jury _have_ to deal with this +case--that they are not mere _automata_--that we have not had twelve +men sitting in the jury-box for several days as puppets. + +The great question for this Jury, absorbing all others, is, Have the +twelve men named in the indictment, or has either of them, committed +piracy, and thus incurred the penalty of death? It is a very +interesting inquiry, gentlemen,--interesting in its historical, +national, judicial, and political aspects,--interesting, too, because +of the character and description of the accused. We discover that eight +of them are foreigners, who have never been naturalized, and do not +judicially come under the designation of citizens of the United States. +Four of them are what we call natural-born citizens--two from the State +of South Carolina, one from North Carolina, and one from Philadelphia. +Two of them are in very feeble health; and I am sorry to say, some are +not yet of middle age--some quite young, including Passalaigue, who has +not yet attained his eighteenth year. I know my fellow-citizens of New +York quite well enough to be quite sure that even if there had been any +exhibition of popular prejudice, or feeling, or fury, with a view to +disturb their judgments in the jury-box, the sympathy that arises +properly in every well-constituted heart and mind, in favor of the +accused, their relatives and friends, would overcome any such wrong +impulse as might be directed to deprive them of that fair trial which, +up to this point, they have had, and which, to the end, I know they +will have. + +Are they pirates and robbers? Have they incurred the penalty of death? +Gentlemen, it is a little curious, that during the present reign of +Victoria, a statute has been passed in England softening the rigor of +the punishment for piracy, and subjecting the person found guilty to +transportation, instead of execution, unless arms have been used in the +spoliation, or some act done aggravating the offence. I have used the +term "pirate," and the term "robber." There is another which, strangely +enough, was employed by a Judge of the Vice Admiralty Court in South +Carolina, in 1718, who calls these pirates and robbers, as we designate +them, "sea thieves;" and I am very glad to find that phrase, because +the words robber and pirate have fallen into mere terms of opprobrium; +while the word "thief" has a significance and force understood by every +man. You know what you thought a "thief" to be, when a boy, and how you +despised him; and you are to look at each prisoner mentioned in this +indictment, and say, on your consciences as men, in view of the facts +and of the law, as expounded by the learned Court, do you consider that +the word "thief" can be applied to any one of the men whom I have the +honor to assist in defending? That is the great practical question +which you are to decide. + +[Here Mr. Brady briefly alluded to the question of jurisdiction as +already discussed fully enough, and made some observations on the Hicks +case, which had been referred to. He then continued as follows:] + +This indictment charges two kinds of offence: Piracy, as that crime +existed by the _law of nations_,--which law may be said to have been +incorporated into the jurisprudence of the United States,--and Piracy +_under the ninth section of the Act of 1790_. Piracy by the law of +nations is defined by Wheaton, the great American commentator on +international law, on page 184 of his treatise on that subject. +"_Piracy_" says that eminent gentleman, who was an ornament to the +country which gave him birth, and an honor to my profession, "_Piracy +is defined by the text writers, to be the offence of depredating on the +seas_ WITHOUT BEING AUTHORIZED BY ANY SOVEREIGN STATE, _or with +commissions from_ DIFFERENT SOVEREIGNS _at war with_ EACH OTHER." The +last part of the definition you need not trouble yourselves about as I +only read it so as not to quibble the text. I will read the passage +without the latter part. "_Piracy is defined to be the offence of +depredating on the seas_ WITHOUT BEING AUTHORIZED BY ANY SOVEREIGN +STATE." Other definitions will hereafter be suggested. + +This leads me to remark upon certain judicial proceedings in +Philadelphia against men found on board the Southern privateer +"Jefferson Davis," and who were convicted of piracy for having seized +and sent away as a prize the "Enchantress." Now my way of dealing with +juries is to act with them while in the jury box as if they were out of +it. I never imitate that bird referred to by the gentleman who preceded +me--the ostrich, which supposes that when he conceals his head his +whole person is hidden from view. I know, and every gentleman present +knows, that a jury in the city of Philadelphia has convicted the men +arrested on the "Jefferson Davis," of piracy. We are a nation certainly +distinguished for three things--for newspapers, politics, and tobacco. +I do not know that the Americans could present their social +individualities by any better signs. Everybody reads the papers, and +everybody has a paper given him to read. The hackman waiting for his +fare consumes his leisure time perusing the paper. The apple-woman at +her stall reads the paper. At the breakfast table, the dinner table, +and the supper table, the paper is daily read. I sometimes take my +meals at Delmonico's, and have there observed a gentleman who, while +refreshing himself with a hasty meal, takes up the newspaper, places it +against the castor, and eats, drinks and reads all at the same time. +Gentlemen, I say that a people so addicted to newspapers must have +ascertained that the men in Philadelphia were convicted; and how the +jury could have done otherwise upon the charge of Justices Grier and +Cadwalader I am incapable of perceiving. I have the pleasure of knowing +both those eminent Judges. My acquaintance with Judge Cadwalader is +slight, it is true, but of sufficient standing to ensure him the +greatest respect for his learning and character. With Judge Grier the +acquaintance is of longer duration; and as he has always extended to me +in professional occupations before him courtesies which men never +forget, I cannot but speak of him with affection. I have nevertheless +something to say about the law laid down by those Judges on that case. +No question on the merits was left to the jury, as I understand the +instructions. The jurymen were told that _if they believed the +testimony, then the defendants were guilty of piracy_. Now, as to the +aspect of this case in view of piracy by the law of nations, the +question for the jury is, in the first place, _Did these defendants, in +the act of capturing the "Joseph," take her by force, or by putting the +captain of her in fear_, WITH THE INTENT TO STEAL HER? That is the +question as presented by the indictment, and in order to convict under +either of the first five counts, the jury must be satisfied, beyond all +reasonable doubt, _that in attacking the "Joseph" the defendants were +actuated_ as described in the indictment, from which I read the +allegation that they, "with _force_ and _arms, piratically, +feloniously, and violently_, put the persons on board in _personal fear +and danger of their lives_, and in seizing the vessel did, as +aforesaid, _seize_, ROB, STEAL and carry her away." In this the +indictment follows the law. Another question of fact, in the other +aspect of the case, under the ninth section of the act of 1790, will +be, substantially, _whether the existence of a civil war is shown_. +That involves inquiry into the existence of the Confederate States as a +_de facto_ Government or as a _de jure_ Government. + +The _animus furandi_, so often mentioned in this case, means nothing +but the intent to _steal_. The existence of that intent must be found +in the evidence, before these men can be called pirates, robbers, or +thieves; and whether such intent did or did not exist, is a question +entirely for you. + +To convict under the ninth section of the Act of 1790, the prosecution +must prove that the defendants, being at the time of such offence +_citizens of the United States of America_, did something which by that +Act is prohibited. You will bear in mind that the Act of 1790, in its +ninth section, has no relation except to American-born citizens, and as +to that part of the indictment the eight foreigners charged are +entirely relieved from responsibility. + +Well, on page 104, 5 Wheaton, in the case of _The United States_ vs. +_Smith_, the Jury found a special verdict, which I will read to +illustrate what is piracy and what is not piracy. + +[Here Mr. Brady commented on the case referred to, saying, amongst +other things,--] + +According to the evidence in the case of Smith, the defendants were +clearly pirates. They had no commission from any Government or +Governor, and were mere mutineers, who had seized a vessel illegally, +and then proceeded to seize others without any pretence or show of +authority, but with felonious intent. For these acts they were justly +convicted. + +Now, we say, that this felonious intent as charged against these +defendants, must be proved. But what say my learned friends opposed? +Why (in effect), that it need not be proved to a Jury by any evidence, +but must be _inferred_, as a matter of law, or by the Jury first, from +the presumption that every man knows the law; and these men, in this +view, are pirates--though they _honestly believed that there was a +valid Government called the Confederate States_, and that they _had a +right to act under it_--because they _ought_ to have known the law; +_ought_ to have known that, although the Confederate States had +associated for the purpose of forming, yet they had not _completed_ a +Government; _ought_ to have known that, though Baker had a commission +signed by Jefferson Davis, the so-called President of the Confederate +States, under which he was authorized to act as a privateer, yet the +law did not recognize the commission. + +There is, indeed, a rule of law, said to be essential to the existence +of society, that all men must be taken to know the law, except, I might +add, lawyers and judges, who seldom agree upon any proposition until +they must. + +The whole judicial system is founded upon the theory that judges will +err about the law, and thus we have the Courts of review to correct +judicial mistakes and to establish permanent principles. Yet it is true +that every man is presumed to know the law; and the native of Manilla +(one of the parties here charged), _Loo Foo_, or whatever his name may +be, who does not, probably, understand what he is here for, is presumed +to know the law as well as one of us. If he did not know it better, +considering the differences between us, he might not be entitled to +rate high as a jurist. One of my brethren read to you an extract from a +recent German work, which presents a different view of this subject as +relates to foreign subjects in particular cases. I was happy to hear +MR. MAYER on the law of this case, more particularly as he declared +himself to be a foreign-born citizen; for it is one of the +characteristics of this Government--a characteristic of our free +institutions--that no distinction of birth or creed is permitted to +stand in the way of merit, come from what clime it may. + +There is another presumption. Every man is presumed to _intend the +natural consequences of his own acts_. Now, what are the natural +consequences of the acts done by these defendants? The law on this +point is illustrated and applied with much effect in homicide cases. +Suppose a man has a slight contention with another, and one of the +combatants, drawing a dagger, aims to inflict a slight wound, say upon +the hand of the other; but, in the struggle, the weapon enters the +heart, and the injured party dies. The man is arrested with the bloody +dagger in his hand, the weapon by which death was unquestionably +occasioned; and the fact being established that he killed the deceased, +the law will presume the act to be murder, and cast upon the accused +the burthen of showing that it was something other than murder. I hope, +gentlemen, to see the day when this doctrine of law will no longer +exist. I never could understand how the presumption of murder could be +drawn from an act equally consistent with murder, manslaughter, +justifiable or excusable homicide, or accident, but such is the law, +and it must be respected. + +I say, that neither of the defendants intended, as the ordinary and +natural consequence of his act, _to commit piracy or robbery_, though +what he did might, in law, amount to such an offence. He intended to +take legal prizes, and no more to rob than the man in the case I +supposed designed to kill. + +The natural consequences of his acts were, to take the vessel and send +her to a port to be adjudicated upon as a prize. Now, I state to my +learned friends and the Court this proposition--that though a _legal +presumption_ as to intent might have existed in this case if the +prosecution had proved merely the forcible taking, yet if, in making +out a case for the Government, any fact be elicited which shows that +the actual intent was different from what the law in the absence of +such fact would imply, the presumption is gone. And when the +prosecution made their witness detail a conversation which took place +between Captain Baker and the Captain of the Joseph, with reference to +the authority of the former to seize the vessel, and when you find that +Captain Baker asserted a claim of right, that overcomes the presumption +that he despoiled the Captain of the Joseph with an intent to steal. +The _animus furandi_ must, in this case, depend on something else than +presumption. I will refer you for more particulars of the law on this +point, to _1 Greenleaf on Evidence_, sections 13 and 14, and I make +this citation for another purpose. When an act is in itself illegal, +sometimes, if not in the majority of cases, the law affixes to the +party the intent to perpetrate a legal offence. But this is not the +universal rule. In cases of procuring money or goods under false +pretences, where the intent is the essence of the crime, the +prosecution must establish the offence, not by proving alone the act of +receiving, but by showing the act and intent; so both must be proved +here. Now, I ask, has the prosecution entitled itself to the benefit of +any presumption as to intent? What are the facts--_the conceded facts_? +Baker, and a number of persons in Charleston, did openly and +notoriously select a vessel called the "Savannah," then lying in the +stream, and fitted her out _as a privateer_. Baker, in all of these +proceedings, acted under the authority of a commission signed by +Jefferson Davis, styling and signing himself President of the +Confederate States of America. Baker and his companions then went forth +as privateersmen, and in no other capacity, for the purpose of +despoiling the commerce of the United States, and _with the strictest +injunction not to meddle with the property of any other country_. The +instructions were clear and distinct on this head, as you know from +having heard them read. They went to sea, and overhauled the Joseph; +gave chase with the American flag flying--one of the ordinary devices +or cheats practiced in naval warfare; a device frequently adopted by +American naval commanders to whose fame no American dare affix the +slightest stigma. On nearing the Joseph, the Savannah showed the +secession flag, and Baker requested Captain Meyer to come on board with +his papers. The Captain asked by what authority, and received for +answer: "The authority of the Confederate States." The Captain then +went on board with his papers, when Baker, helping him over the side, +said: "I am very sorry to take your vessel, but I do so in retaliation +against the United States, with whom we are at war." Baker put a prize +crew on board the Joseph, and sent her to Georgetown; the Captain he +detained there as a prisoner. She was then duly submitted for judgment +as a prize. These are the facts upon which they claim that piracy at +common law is established. + +My learned associate, Mr. Larocque, cited a number of cases to show +that though a man might take property of another, and appropriate it to +his own use, yet if he did so under color of right, under a _bona fide_ +impression that he had authority to take the property, he would only be +a trespasser; he would have to restore it or pay the value of it, but +he could not be convicted of a crime for its conversion. + +Let me state a case. You own a number of bees. They leave your land, +where they hived, and come upon mine, and take refuge in the hollow of +a tree, where they deposit their honey. They are your bees, but you +cannot come upon my land to take them away; and though they are in my +tree, I cannot take the honey. Such a case is reported in our State +adjudications. But, suppose that I did take the bees and appropriate +the honey to my own use: I might be unjustly _indicted_ for larceny, +because I took the property of another, but I am not, consequently, a +thief in the eye of the law; the absence of intent to steal would +ensure my acquittal. + +That is one illustration. I will mention one other, decided in the +South, relating to a subject on which the South is very strict and very +jealous. A slave announced to a man his intention to escape. The man +secreted the slave for the purpose of aiding his escape and effecting +his freedom. He was indicted for larceny, on the ground that he +exercised a control over the property of the owner against his will. +The Court held that the object was not to steal, and he could not be +convicted. In _Wheaton's Criminal Proceedings_, page 397, this language +will be found, and it is satisfactory on the point under discussion. + + "There are cases where taking is no more than a trespass: Where a + man takes another's goods _openly before him_, or where, having + otherwise than by _apparent robbery_, possessed himself of them, he + _avows the fact_ before he is questioned. This is _only a + trespass_." + +Now all these principles are familiar and simple, and do not require +lawyers to expound them, for they appeal to the practical sense of +mankind. _It is certainly a most lamentable result of the wisdom of +centuries, to place twelve men together and ask them, from_ FICTIONS +_or_ THEORIES _to say, on oath, that a man is a thief, when every one +of them_ KNOWS THAT HE IS NOT. If any man on this Jury thinks the word +pirate, robber or thief can be truly applied to either of these +defendants, I am very sorry, for I think neither of them at all liable +to any such epithet. + +But, suppose that the intent is to be inferred from the act of seizing +the Joseph, and the defendants must be convicted, unless justified by +_the commission issued for Captain Baker_; let us then inquire as to +the effect of that commission. We say that it _protects the defendants +against being treated as pirates_. Whether it does, or not, depends +upon the question whether the Confederate States have occupied such a +relation to the United States of America that they might adopt the +means of retaliation or aggression recognized in a state of war. + +It is our right and duty, as advocates, to maintain that the +_Confederate Government was so situated_; and to support the +proposition by reference to the political and judicial history and +precedents of the past, stating for these men the principles and views +which they and their neighbors of the revolting States insist upon; our +personal opinions being in no wise called for, nor important, nor even +proper, to be stated at this time and in this place. + +If it can be shown that the Confederate States occupy the same position +towards the Government of the United States that the thirteen revolted +Colonies did to Great Britain in the war of the Revolution, then these +men cannot be convicted of piracy. + +I do not ask you to decide that the Southern States had the _right_ to +leave the Union, or secede, or to revolt--to set on foot an +insurrection, or to perfect a rebellion. That is not the question here. +I will place before the Jury such views of law and of history as bear +upon the case--endeavoring not to go over the ground occupied by my +associates. I will refer you to a small book published here in 1859, +entitled, "The History of New York from the Earliest Time," a very +reliable and authentic work. In this book I find a few facts to which I +will call your attention, one of which may be unpleasant to some of our +friends from the New England States, for we find that New York, so far +as her people were concerned--exclusive of the authorities--was in +physical revolt against the parent Government long before our friends +in New England, some of whom often feel disposed to do just what they +please, but are not quite willing to allow others the same privilege. I +will refer to it to show you what was the condition of things long +before the 4th of July, 1776, and to show that, though we now hurl our +charges against these men as pirates,--who never killed anybody, never +tried to kill anybody,--who never stole and never tried to steal,--yet +the men of New York city who committed, under the name of "Liberty +Boys," what England thought terrible atrocities, in New York, were +never touched by justice--not even so heavily as if a feather from the +pinion of the humming bird had fallen upon their heads. I find that, +about the year 1765, our people here began to grumble about the taxes +and imposts which Great Britain levied upon us. And you know, though +the causes of the Revolutionary war are set forth with much dignity in +the Declaration of Independence, the contest originated about taxes. +That was the great source of disaffection, directing itself more +particularly to the matter of tea, and which led to the miscellaneous +party in Boston, at which there were no women present, however, and +where salt water was used in the decoction. I find that the governor of +the city had fists, arms, and all the means of aggression at his +command; but at length, happily for us, the Government sent over a +young gentleman to rule us (Lord Monckford), who, when he did come, +appears to have been similar in habits to one of the accused, who is +described as being always idle. The witness for the prosecution +explained that separate posts and duties were assigned to each of the +crew of the Savannah; one fellow, he said, would do nothing. But he +will be convicted of having done a good deal, if the prosecution +prevail. A state of rebellion all this time and afterwards existed in +this particular part of the world, until the British came and made +themselves masters of the city. In the course of the acts then +committed by the citizens, and which the British Government called an +insurrection, a tumultuous rebellion and revolution, they offered, or +it was said they offered, an indignity to an equestrian statue of +George III. The British troops, in retaliation, and being grossly +offended at the conduct of Pitt, who had been a devoted friend of the +Colonists, mutilated the statue of him which stood on Wall street. The +remains of the statue are still with us, and can be seen at the corner +of West Broadway and Franklin street, where it is preserved as a relic +of the past--a grim memento of the perfect absurdity of charging +millions of people with being all pirates, robbers, thieves, and +marauders. + +When the British took possession of this city, they had at _one time in +custody five thousand persons_. That was before any formal declaration +of independence--before the formation of a Government _de jure_ or _de +facto_--and yet did they ever charge any of the prisoners with being +robbers? Not at all. Was this from any kindness or humane spirit? Not +at all: for they adopted all means in their power to overcome our +ancestors. The eldest son of the Earl of Chatham resigned his +commission, because he would not consent to fight against the colonies. +The Government did not hesitate to send to Germany for troops. They +could not get sufficient at home. The Irish would not aid them in the +fight. The British did not even hesitate to employ Indians; and when, +in Parliament, the Secretary of State justified himself, saying that +they had a perfect right to employ "all the means God and nature" gave +them, he was eloquently rebuked. Even, with all this hostility, such a +thing was never thought of as to condemn men, when taken prisoners, and +hold them outside that protection which, according to the law of +nations, should be extended to men under such circumstances, even +though in revolt against the Government. + +In October, 1774, the King, in his Message to Parliament, said that a +most daring spirit of resistance and disobedience to the laws existed +in Massachusetts, and was countenanced and encouraged in others of his +Colonies. + +Now, I want you to keep your minds fairly applied to the point, on +which the Court will declare itself, as to whether I am right in +saying, that the day when that Message was sent to Parliament the +Colonies occupied towards the old Government a position similar to that +of the Confederate States in their hour of revolt to the United States. +But we will possibly see that the Confederate States occupy a stronger +position. + +In the course of the discussion which ensued upon the Message, the +famous Wilkes remarked: "Rebellion, indeed, appears on the back of a +flying enemy, but revolution flames on the breastplate of the +victorious warrior." + +If an illegal assemblage set itself up in opposition to the municipal +Government, it is a mere insurrection, though ordinary officers of the +law be incapable of quelling it, and the military power has to be +called out. That is one thing. But when a _whole State_ places itself +in an attitude of hostility to the other States of a Confederacy, +assumes a distinct existence, and has the power to maintain +independence, though only for a time, that is quite a different affair. + +We remember how beautifully expressed is that passage of the Irish +poet, so familiar to all of us, and especially to those who, like +myself, coming from Irish ancestry, know so well what is the name and +history of rebellion: + + "Rebellion--foul, dishonoring word, + Whose wrongful blight so oft hath stained + The holiest cause that tongue or sword + Of mortal ever lost or gained! + How many a spirit born to bless + Has sunk beneath thy withering bane, + Whom but a day's--an hour's success, + Had wafted to eternal fame!" + +A remarkable instance, illustrating the sentiment of this passage, is +found in the history of that brave man, emerging from obscurity, +stepping suddenly forth from the common ranks of men, whose name is so +generally mentioned with reverence and love, and who so lately freed +Naples from the rule of the tyrant. This brave patriot was driven from +his native land, after a heroic struggle in Rome. History has recorded +how he was followed in this exile by a devoted wife, who perished +because she would not desert her husband; and how he came to this +country, where he established himself in business until such time as he +saw a speck of hope glimmer on the horizon over his lovely and beloved +native land. Then he went back almost alone. Red-shirted, like a common +toiling man, he gathered round him a few trusty followers who had +unlimited confidence in him as a leader, and accomplished the +revolution which dethroned the son of Bomba, and placed Victor Emanuel +in his stead. You already know that I speak of Garibaldi. And yet, +Garibaldi, it seems, should have been denounced as a pirate, had the +sea been the theatre of his failure; and a robber, had he been +unsuccessful upon land! + +What do you think an eminent man said, in the British Parliament, about +the outbreak of our Revolution, and the condition of things then +existing in America? "_Whenever oppression begins, resistance becomes +lawful and right._" Who said that? The great associate of Chatham and +Burke--Lord Camden. At that time Franklin was in Europe, seeking to +obtain a hearing before a committee of Parliament in respect to the +grievances of the American people. It was refused. + +The Lords and Commons, in an address to the King, declared in express +terms, that a "REBELLION _actually existed in_ MASSACHUSETTS;" and yet, +in view of all that, no legal prosecution of any rebel ever followed. +So matters continued till the war effectively began, Washington having +been appointed Commander-in-chief. Then some Americans were taken by +the British and detained as prisoners. Of this Washington complained to +General Gage, then in command of the British army. Gage returned answer +that he had treated the prisoners only too kindly, seeing that they +were rebels, and that "their lives, by the law of the land, were +destined for the cord." Yet not one of them so perished. + +In view of these things, even so far as I have now advanced; in view of +the sacrifices of the Southern Colonies in the Revolution; in view of +the great struggle for independence, and the great doctrine laid down, +that, whenever oppression begins, resistance becomes lawful and +right,--is it possible to forget the history of the past, and the great +principles which gleamed through the darkness and the perils of our +early history? Are we to assert that the Constitution establishing our +Government is perfect in all its parts, and stands upon a corner stone +equivalent to what the globe itself might be supposed to rest on, if we +did not know it was ever wheeling through space? 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? The +Declaration of Independence has never been repudiated, I believe, and I +suppose I have a right to refer to it as containing the political creed +of the American people. I do not know how many people in the old world +agree with it, and a most eminent lawyer of our own country +characterized the maxims stated at its commencement as "glittering +generalities." But I believe the American people have never withdrawn +their approbation from the principles and doctrines it declares. Among +those we find the self-evident truth, that man has an inalienable right +to life, liberty, and the pursuit of happiness; that it is to secure +these rights that Governments are instituted among men, deriving their +just powers from the consent of the governed; and that whenever any +form of Government becomes destructive of those ends, it is right and +patriotic to alter and abolish it, and to institute a new Government, +laying its foundations on such principles, and conferring power in such +a form, as to them may seem most likely to secure their safety and +happiness. Is this a mockery? Is this a falsehood? Have these ideas +been just put forward for the first time? There has been a dispute +among men as to who should be justly denominated the author of this +document. The debate may be interesting to the historian; but these +principles, though they are embodied in the Constitution, were not +created by it. They have lived in the hearts of man since man first +trod the earth. I can imagine the time, too, when Egypt was in her +early glory, and in fancy see one of the poor, miserable wretches, +deprived of any right of humanity, harnessed, like a brute beast, to +the immense stone about being erected in honor of some monarch, whose +very name was destined to perish. I can imagine the degraded slave +pausing in his loathsome toil to delight over the idea that there might +come a time when the meanest of men would enjoy natural rights, under a +Government of the multitude formed to secure them. + +Now, what says _Blackstone_ (_1st vol., 212_), the great commentator on +the law of England, when speaking of the revolution which dethroned +James II.: "_Whenever a question arises between the society at large +and any magistrate originally vested with powers originally delegated +by that society, it must be decided by the voice of the society itself. +There is not upon earth any other tribunal to resort to._" + +Prior to the 23d March, 1776, the legislature of Massachusetts +authorized the issuing of letters of marque to privateers upon the +ocean, and when my learned friend, Mr. Lord, in his remarks so clear +and convincing, called attention to the lawfulness of privateering, my +brother Evarts attempted to qualify it by designating the granting of +letters of marque as reluctantly tolerated, and as if no such practice +as despoiling commerce should be permitted even in a state of war. I +will not again read from _Mr. Marcy's_ letter, but I will say here that +the position he took gratified the heart of the whole American people. +He said in substance, If you, England and France, have the right to +despoil commerce with armed national vessels we have a right to adopt +such means of protection and retaliation as we possess. We do not +propose, if you make war upon us, or we find it necessary to make war +upon you, that we, with a poor, miserable fleet, shall not be at +liberty to send out privateers, but yield to you, who may come with +your steel-clad vessels and powerful armament to practice upon us any +amount of devastation. No. We never had a navy strong enough to place +us in such a position as that with regard to foreign powers. Look at +it. Do you think that France or England has any feeling of friendship +towards this country as a nation? I do not speak of the people of these +countries, but of the cabinets and governments. No. Nations are +selfish. Nearly all the laws of nations are founded on interest. +Nations conduct their political affairs on that basis. They never +receive laws from one another--not even against crime. And when you +want to obtain back from another country a man who has committed +depredations against society, you do it only by virtue of a treaty, and +from no love or affection to the country demanding it. And if this war +continues much longer, I, for one, entertain the most profound +apprehension that both these powers, France and England, will combine +to break the blockade if they do not enter upon more aggressive +measures. If they for a moment find it their interest to do so, they +will, and no power, moral or physical, can prevent them. I say, then, +the right of revolution is a right to be exercised, not according to +what the Government revolted against may think, but according to the +necessities or the belief of the people revolting. If you belonged to a +State which was in any way deprived of its rights, the moment that +oppression began resistance became a duty. 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. Very early in our history, in 1778, France recognized the +American Government. England, as you know, complained, and the French +Government sent back an answer saying, Yes, we have formed a treaty +with this new Government; we have recognized it, and you have no right +to complain; for you remember, England, said France, that during the +reign of Elizabeth, when the Netherlands revolted against Spain, you, +in the first place, negotiated secret treaties with the revolutionists, +and then recognized them; but, when Spain complained of this, you said +to Spain--The reasons which justify the Netherlands in their revolt +entitle them to our support. Was success necessary? Was the doctrine of +our opponents correct, that, though people may be in absolute revolt +against the parent Government, with an army in the field, and in +exclusive possession of the territories they occupy, yet they have no +right to be recognized by the law of nations, and are not entitled to +the humanities that accompany the conditions of a war between foreign +powers? Is success necessary? Why was it not necessary in the case of +the Colonies when recognized by France? Why not necessary in the case +of the Netherlands when recognized by England? Never has been put +forward such a doctrine for adjudication since the days of _Ogden and +Smith_, tried in this city in 1806. That was a period when we were in +profound peace with all the world. Our new country was proceeding on +the march towards that greatness which every one hoped would be as +perpetual as it was progressive. We had invited to our shores not only +the oppressed of other lands, but all they could yield us of genius, +eloquence, industry and wisdom. Among others who came to assist our +progress and adorn our history was that eminent lawyer and +patriot--that good and pure man whose monument stands beside St. Paul's +Church, on Broadway, and may be considered as pointing its white finger +to heaven in appeal against the severe doctrines under which these +prisoners are sought to be punished. I refer to THOMAS ADDIS EMMETT. + +In 1806, two men, Smith and Ogden, were put upon trial, charged with +aiding Miranda and the people of Caraccas to effect a revolt against +the Government of Spain, which, it was said, was at peace with the +United States. They were indicted under a statute of the United States; +and if it had turned out on the trial that the United States was +certainly in a condition of peace with Spain, they might have been +convicted. However, that was a question of fact left to the Jury. The +learned Judges, pure and able men, entertained views very hostile to +the notions of the accused, and were quite as decided in those views as +his honor Judge Grier in the summary disposition he made of the +so-called pirates in Philadelphia. The trial came on, and, with the +names of the Jurors on that trial, there are preserved to us the names +of Counsel, whose career is part of history. Among them were NATHAN +SANFORD, PIERPOINT EDWARDS, WASHINGTON MORTON, CADWALLADER D. COLDEN, +JOSIAH OGDEN HOFFMAN, RICHARD HARRISON, and MR. EMMETT, already named. +Well, there was an effort made to disparage any such enterprise as +Miranda's, and any such aid thereto as the accused were charged with +giving. The Counsel endeavored to prove that the intent was a question +of law, and the fact had nothing to do with it. COLDEN, in his +argument, said, "Gentlemen, all _guilt_ is _rooted in the mind_, and +_if not to be found there, does not exist, and whoever will contend +against the proposition_ MUST FIGHT AGAINST HUMAN NATURE, AND SILENCE +HIS OWN CONSCIENCE." + +We do not often find an opportunity, gentlemen, to regale ourselves +with anything that emanated from the mind of Mr. Emmett. It is peculiar +to the nature of his profession that most of what the advocate says +passes away almost at the moment of its utterance. When Mr. Emmett +comes to allude to the disfavor sought to be thrown on revolutionary +ideas by the eminent counsel for the prosecution, he says: + + "In particular, I remember, he termed Miranda a fugitive on the + face of the earth, and characterized the object of the expedition + as something audacious, novel, and dangerous. It has often struck + me, gentlemen, as matter of curious observation, how speedily new + nations, like new made nobility and emperors, acquire the cant and + jargon of their station. + + "Let me exemplify this observation by remarking, that here within + the United States, which scarcely thirty years ago were colonies, + engaged in a bloody struggle, for the purpose of shaking off their + dependence on the parent State, the attempt to free a colony from + the oppressive yoke of its mother country is called 'audacious, + novel, and dangerous.' It is true, General Miranda's attempt is + daring, and, if you will, '_audacious_,' but wherefore is it novel + and dangerous? + + "Because he, a private individual, unaided by the public succor of + any state, attempts to liberate South America. Thrasybulus! + expeller of the thirty tyrants! Restorer of Athenian freedom! + Wherefore are _you_ named with honor in the records of history? + + "Because, while a fugitive and an exile, you collected together a + band of brave adventurers, who confided in your integrity and + talents--because, without the acknowledged assistance of any state + or nation, with no commission but what you derived from patriotism, + liberty, and justice, you marched with your chosen friends and + overthrew the tyranny of Sparta in the land that gave you birth. + Nor are Argos and Thebes censured for having afforded you refuge, + countenance, and protection. Nor is Ismenias, then at the head of + the Theban government, accused of having departed from the duties + of his station because he obeyed the impulse of benevolence and + compassion towards an oppressed people, and gave that private + assistance which he could not publicly avow." + +Mr. Emmett, remembering the history of his own name, and the fate of +that brother who perished ignominiously on the scaffold for an effort +to disenthrall his native land, after that outburst of eloquence, +indulged in the following exclamation: + + "In whatever country the contest may be carried on, whoever may be + the oppressor of the oppressed, may the Almighty Lord of Hosts + strengthen the right arms of those who fight for the freedom of + their native land! May he guide them in their counsels, assist them + in their difficulties, comfort them in their distress, and give + them victory in their battles!" + +I have thought proper to fortify myself, gentlemen, by reference to +this man of pure purpose, finished education, and thorough knowledge of +international law, in what I said to you, that the principles which lie +at the base of this American revolution, call it by what name you +please, have been known and recognized at least as long as the English +language has been spoken on the earth, and will be known forever--they +furnishing certain rules, the benefit of which, I hope and trust, under +the providence of God, after the enlightened remarks of the Court, and +through your intervention, may be extended to our clients. + +Some people in New England take particular offence at applying these +doctrines to the present state of affairs. Has New England ever +repudiated them? Has the South ever maintained with more unhesitating +declaration, more vigorous resolve, more readiness for the deadly +encounter, than the North, these views which I present? Gentlemen, when +we look at history, we must take it as we find it. In the war of 1812, +the New England States, which had taken offence before at the embargo +of 1809, were found, to a very great extent among her people, in an +attitude of direct resistance to the war; and they were not afraid to +say so. New England said so through her individual citizens. She said +so in her public associations. She said so in the form of conventions +and solemn resolves. To one of these I will call attention. I do this +for no other purpose than to present analogies, principles, and +precedents showing what rights belong to those who oppose the +Government, or to a state of civil war, or revolution,--that men +situated like our clients are not to be treated as pirates and robbers. + +I have here a book called "THE UNION FOREVER; THE SOUTHERN REBELLION, +AND THE WAR FOR THE UNION." It is an excellent compilation, prepared +and published under the superintendence of _James D. Torrey_, of this +city. I read from it: + + "The declaration of war against Great Britain, June, 1812, brought + the excitement to its climax. A peace party was formed in New + England, pledged to offer all possible resistance to the war. * * * + The State Legislatures of Massachusetts, Connecticut, Vermont, &c., + passed laws forbidding the use of their jails by the United States + for the confinement of prisoners committed by any other than + judicial authority, and directing the jailors at the end of thirty + days to discharge all British officers, prisoners of war, committed + to them. The President, however, applied to other States of the + confederacy for the use of their prisons, and thus the difficulty + was, in a measure, obviated." + +Thus these men set themselves up pretty strongly against the +Government. It is an act of which I do not approve, gentlemen; but, +suppose I should say that the men who did that were, because their +political sentiments differed from mine, fools or idiots, knaves or +traitors, what would you think of the taste or justice of such an +observation? It is the intolerance, gentlemen, which abides in the +heart of almost every man, woman, and child, and the diffusion of it +over the land, that has led to our present dreadful condition. It is +the endeavor of one party, or of one set, to set itself up in absolute +judgment over the opinions, rights, persons, liberties and hearts of +other men. It is that notion which CROMWELL expressed when he said (I +quote from memory alone), "I will interfere with no man's liberty of +conscience; but, if you mean by that, solemnizing a mass, that shall +not be permitted so long as there is a Parliament in England." I have +no doubt that the men who did these acts in New England, which we would +call unpatriotic, were actuated by conscientious motives; and I want to +claim the same thing for the men who, in the South, are doing what is +very offensive to you and very offensive to me, and the more offensive +because I honestly and conscientiously believe that it is unnecessary +and wanton. I know that I differ with very eminent men who belonged to +the same political organization as myself when I make that remark; but +it is the result of the best judgment that I can form, after a careful +and just review of the circumstances attending the present unfortunate +breach in our relation to each other. And certainly, gentlemen, it is +in no spirit of anger that we, in this sacred temple of justice, should +deal with our erring brethren. We do not mean to pronounce, through the +forms of justice, from this jury-box, any anathema or denunciation +against our fellow-men, _merely_ for holding erroneous opinions. All +the dictates of every enlightened religion on earth are against any +such conduct. I take for granted that there is not one of you who has +not some friend engaged in the war, on one side or the other. I took up +a newspaper the other morning, and discovered that two men, with whom I +had been in the most intimate relations of personal friendship, were in +the same engagement, each commanding as colonel, and fighting against +each other. They were men who had been close friends during a long +series of years--men whom you and I might well be proud to know--each +of them a graduate of West Point. One of them is said to have been seen +to fall from his saddle, and the fate of the other (COLONEL COGSWELL) +is at this moment uncertain. You or I, while we remain loyal to our +flag and our country--while we wish and hope for success to our arms in +all the conflicts that may occur--may regard with pity men born on the +same territory, as well educated, as deftly brought up, as generous and +as high minded as ourselves, because we consider them wrong. But, to +look upon them as mere outlaws and outcasts, entitled to no protection, +sympathy, or courtesy, is something which I am perfectly sure this Jury +will never do, and which no community would feel justified or excusable +in doing. + +Now, let me read more to you from this book: + + "On the 18th of October, twelve delegates were elected to confer + with delegates from the other New England States. Seven delegates + were also appointed by CONNECTICUT, and four by RHODE ISLAND. NEW + HAMPSHIRE was represented by two, and VERMONT by one. The + Convention met at Hartford, Connecticut, on the 15th of December, + 1814. After a session of twenty days a report was adopted, which, + with a slight stretch of imagination, we may suppose to have + originated from a kind of _en rapport_ association with the South + Carolina Convention of 1861. We may quote from the report." + +Listen to this, gentlemen, and say how much right we have to stigmatize +as novel, unprecedented, base, or wicked, the notions on which the +Southern revolt is, in a certain degree, founded: + + "Whenever it shall appear" (says this Report, the result of twenty + days' labor among calm and cool men of New England) "that the + causes are radical and permanent, _a separation_, _by equitable + arrangement_ will be _preferable to an alliance by constraint among + nominal friends, but real enemies, inflamed by mutual hatred and + jealousy, and inviting, by intestine divisions, contempt and + aggressions from abroad; but a severance of the Union by one or + more States against the will of the rest, and especially in time of + war, can be justified_ ONLY BY ACTUAL NECESSITY." + +The report then proceeds to consider the several subjects of complaint, +the principal of which is the national power over the militia, claimed +by Government. We will not agree, say they, that the general Government +shall have authority over the militia; we claim that it shall belong to +us. The report goes on to say: + + "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]] + + [5] See pages 105, 106, and 107. + +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. + + "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: + + "_There is a_ NECESSITY _that the realm should have a King, by whom + and in whose name the laws shall be administered; and the King_ IN + POSSESSION, _being the only person who either doth or can administer + those laws_, MUST BE THE ONLY PERSON _who has a right to that + obedience which is due to him who administers those laws; and + since, by virtue thereof, he secures us the safety of our lives, + liberties, and properties, and all the advantages of Government, + he may_ JUSTLY CLAIM RETURNS OF DUTY, ALLEGIANCE, AND SUBJECTION." + +And BLACKSTONE is equally explicit (_4 Blackstone's Comm._, 78): + + "When, therefore, an USURPER is _in possession_, the subject is + _excused_ and _justified in obeying and giving him assistance_; + OTHERWISE, UNDER AN USURPATION, NO MAN _could_ BE SAFE, _if the + lawful Prince had a right to hang him for obedience to the power in + being, as the_ USURPER WOULD CERTAINLY DO FOR DISOBEDIENCE." + +_3d Inst. (Coke)_ 7, is to the same point: + + "_The stat. 11 Henry VII., ch. 1_, is declaratory of the law on + this subject; _and the year books, 4 Edw. IV., 1, 9 Edw. IV., 1, 2, + show that it was always the English law_." + +Our statute, or rather constitutional definition, of _treason_, is a +transcript of the English statute of treason; and it is hardly +necessary to cite _2 Story on the Constitution, sec. 1799_, to the +point that our Courts will construe the Constitution as the English law +is construed by the English Courts. And here we observe a marked +difference between a revolt by the subjects of a single consolidated +Government which is a unit, and the action of one or more States in a +Confederacy, or of the people dwelling within them, when such States +resolve, as States, to recognize no sovereignty or Government within +their territory except that established under their own Constitution. + +But I insist upon it that _Congress had no power to pass this 9th +section of the Act of 1790_; that the construction put upon it by our +opponents is entirely unwarranted; and that it cannot be applied to a +case like this. Your honors are aware that in _The case of Smith, 5 +Wheaton_, Mr. Webster took the ground that the law was not +constitutional, because it did not define piracy otherwise than by +referring to the law of nations. The authority given to Congress on +that subject is to define and punish piracy and other offences against +the law of nations. "To define and punish piracy" is all of the phrase +with which I have to deal. Now, you understand, gentlemen, that there +is no common-law jurisdiction of offences residing in the United States +Courts. They can punish no crime except by statute. Congress had fully +defined piracy and robbery in the _eighth_ section of the Act of 1790; +and, having done so, what power or authority was there in Congress to +go on and say that something else should be called piracy, when the +definition of it was complete? Let me refer your honors again to the +language of the law, which furnishes a strong argument on this subject: +"If any citizen shall commit any piracy or robbery _aforesaid_, or any +act of hostility against the United States," &c. Does not that clearly +recognize and admit that piracy has been defined? and can it be +pretended that Congress, under pretence of defining piracy, can provide +that a common assault and battery on the high sea shall be piracy? Is +there no limitation to that grant? We claim that its terms are just as +much a _restriction_ as a _delegation_ of power. It defines as clearly +the limits which the Government shall not transcend, as it does the +area which Congress may occupy. You may "define piracy and punish it:" +does this mean that you can call anything piracy, whether it be so or +not? Suppose Congress passed an Act providing that, if any man _on +land_ should, during a state of war, attempt to make reprisals on +another, it should be piracy, punishable with death: would that be a +legitimate exercise of the authority vested in Congress? We claim that +it would not, and that it would be a manifest usurpation against the +true meaning, spirit, and proper effect of the Constitution. + +Again, it has been argued to your honors, and we insist, that _this +statute, if it be operative_, only _relates to the case of a person +taking a commission from a_ FOREIGN _Government or State_. To say that +an act of hostility committed by authority of any _person_ +whatever--using the word "person" to mean a human being--against +another, on the high seas, would be piracy, and punishable by death, is +a monstrous construction of this Act; and if I understood brother +Evarts, in the course of the discussion that took place between him and +myself, he conceded that the case which I suggested, of throwing a +belaying-pin, by order of the Captain of one vessel, at the Captain of +another, on the high seas, _although an act of hostility by one citizen +against another_, under pretence of authority from a person, would not +come within the law; yet this assault would be within the _very letter_ +of the Act. Read that law just as it is, and say, after the words +"Prince" and "State" have been used, what other term is necessary or +apposite. Why, no other, except as in the case of Aurey, an +_individual_ fitting out an expedition against a foreign Government, +and undertaking to grant commissions; or as in the case of _James II._, +who, as shown by Mr. Lord, was an exile in a foreign land, having no +territory, no Government, and no subjects; and he was treated in the +English Act--from which ours is taken--as a _mere person_, not to be +denominated King. I do not mean to concede that the case of _Miranda_, +who fitted out the expedition against Spain, assisted by some of our +citizens, and granted commissions to privateers, would be a case within +the statute of 1790; but if it would, it will not subserve the purposes +of the prosecution at all, or be injurious to us. The word "person," in +this connection, means a person standing in the same relation to +another as a Prince or a State. Gentlemen, that this was never intended +to apply between so many States as remained in the Union and those that +went out, is a proposition about which Mr. Lord has been heard, and I +see no answer to his argument. + +Now, there is a dilemma here. If the gentlemen insist that, in the +construction I have given, we are right, and that Mr. Jefferson Davis +or the Confederate States, in the giving of this commission or +authority, are to be regarded as a power or person within my +definition, then it is as a foreign power; in which case Capt. Baker is +the subject or citizen of that power, and not a citizen of the United +States, and not within the Act of 1790. And if the Confederate States +is _not_ a foreign power, within the construction and meaning of the +Act of 1790, then there is no violation of that statute by Capt. Baker, +or any one associated with him, if it be true, as I contend, that the +pretence of authority must be of one from a foreign source. If they +make out that the Confederate States is a foreign power, it is because +it is a Government in existence; and if it be a Government in +existence, then its commission must be recognized by the law of +nations. + +Now, I certainly understood, from the opening by the learned District +Attorney, that the prosecution did not rely much on the piracy branch +of this case; they did not abandon it; they have never said they would +not press a conviction upon it. But the strong effort is made to +convict under the ninth section of the Act of 1790, saying to you of +the Jury, "All you have to find is, that Baker and three of his +associates were citizens of the United States; that they were on the +high seas; and that, being there, they committed an act of hostility +against another citizen of the United States, under pretence of +authority from Jefferson Davis; and, then, they are pirates." I think +it would have been a little more magnanimous in the Government not to +attempt any scheme of this kind. I think, if it be possible to drag +these men, manacled, within the construction of a statute which exposes +their lives to danger, it is yet not the right way to deal with them. +When they were captured they were entitled to be treated either as +prisoners of war, or as traitors to the Government. Why were they not +indicted for treason? + +Now, my learned friend said that this indictment was drawn with the +utmost possible care and circumspection, when he spoke of the averment +that this act of the defendants was done under pretence of the +authority of "_one Jefferson Davis_." The pleader did not wish to +admit, by the language of the indictment, that it was under pretence of +any authority from any Government or Confederate States. He wanted to +regard it as the act of a mere individual, who, although he claimed to +represent so-called States, was, after all, merely a person signing a +paper on his own account, and for which he was to take the exclusive +responsibility. + +I will refer your honors to _Blackstone, 4 vol., p. _72, where he +interprets this statute of _11 and 12 William III., chap. _4, to relate +to acts done under color of a commission from a _foreign power_; and it +was never supposed to have meant anything else. In 1819, Great Britain +passed a law making it a crime for British subjects to be connected in +any way with the sending out of vessels to cruise against a power at +peace with England. By the _18th George II., chap. _30, it is made +piracy, in time of war, for English subjects to commit hostilities of +any kind against fellow subjects. How did that act become necessary in +the legislation of England, if the previous law had already provided +for the same thing? That, certainly, is a question of some importance +in this case. We have statutes that punish citizens of the United +States, under certain circumstances when they are engaged in +privateering; and there have been trials and convictions under these +statutes, as your honors will find by referring to _Wharton's State +Trials_. + +We contend, therefore, that the ninth section of the Act of 1790, as +construed by our opponents, would be unconstitutional; that it only +applies, if valid, to acts done under authority of a foreign power or +person; that if Jefferson Davis was, or represented, such foreign +power, then the defendants were subjects of that power, not citizens of +the United States, and not within the Act; if he were not or did not +represent a foreign power, the Act does not apply to the case; and so, +in every view of the subject, there is no right to convict any of these +men under this Act. + +I will now cite some authorities on the question of _variance_ made by +my friend, Mr. Lord, in describing this commission as a pretence of +authority from one Jefferson Davis. Certainly, in law, that commission +is the act and authority of the Confederate States. There can be no +dispute about that. + +I refer my learned opponents to _Wharton's Criminal Treatise, at pps. +78, 91, 93, 94 and 96_, for these two propositions: In the first place, +that, where a new offence is created by statute, the utmost +particularity is required, when drawing the indictment, to set forth +all the statutory elements of the offence; and, in the second place, +what is thus averred must be proved strictly as laid. Well, it may seem +to you, gentlemen, rather a technical and immaterial question, whether +this was set out as a pretence of authority from one Jefferson Davis, +or from the Confederate States,--and it is. But, nevertheless, it is a +legal technicality; and these prisoners, if it be well founded, have a +right to the benefit of it. It is very little that I have to read from +this book, for the propositions are pointedly stated: + + Page 91. "It is a general rule that, in regard to offences created + by statutes, it is necessary that the defendant be brought within + all the material words of the statute; and nothing can be taken by + intendment." + + Page 93. "Defects in the description of a statutory offence will + not be aided by a verdict, nor will the conclusion _contra formam + statutis_ cure it." + + Page 94. "An indictment under the Stat. 5th Elizabeth, which makes + it high treason to clip round or file any of the coin of the realm + for wicked lucre or gain sake,--it was necessary to charge the + offence as being committed for wicked lucre or gain sake, otherwise + the indictment was bad. In another case, an indictment on that part + of the black act which made it felony willfully or maliciously to + shoot at a person in a dwelling-house was held to be bad, because + it charged the offence to have been done '_unlawfully and + maliciously_,' without the word '_willfully_.'" + +That is technical enough, I admit, but it emanates from high authority. + +[Mr. Brady read other passages from Wharton, and said]: + +And, now, what relates more particularly to the matter in hand, is the +case of _The United States_ vs. _Hardiman, 13 Peters_, 176. In that +case the defendant was indicted for receiving a fifty-dollar treasury +note, knowing it to have been stolen out of the mail of the United +States. The indictment was under the 45th section of the Post-Office +Law. The thing stolen was described as a fifty-dollar _treasury note, +bearing interest at one per cent._; and it turned out to be a treasury +note which, although of fifty-dollars' denomination, bore interest at +the rate of _one mill per cent._; and the Court held the variance to be +fatal. Now, we claim that to describe the commission as emanating from +one Jefferson Davis, when in fact it emanated from the Confederate +States, is such a variance as is here referred to; and, on that ground, +the indictment is not sustained. + +The argument is made here, that, no matter what publicists may say,--no +matter what Courts of other countries may declare as international law, +about the organization of government or the creation of powers _de +jure_ or _de facto_,--this Court has nothing to do with the debate; +that your honors have simply to inquire whether Mr. Lincoln, the +President, has said, or whether Congress has said, a certain thing, and +the matter proceeds no further; that the citizen is not entitled to +have a trial, in a Court of Justice, on the question whether, being in +a state of revolt, a civil war does in fact exist; and that the right +of trial by Jury does not, as to such a question, exist at all. + +It is utterly absurd to have you here, gentlemen, if all that is +necessary to be shown against these men is the proclamation by the +Executive, and an Act of Congress calling them rebels and pirates. Is +there any trial by Jury under such circumstances? The form of it may +exist, but not the substance. It is a mockery. No, your honors; this +question, as to the _status_ of the Confederate States, is a judicial +question, when it arises in a Court of Justice. It is a juridical +question. It is one of which Courts may take cognizance--must take +cognizance--in view of and with the aid of that international law which +is part of the common law, part of the birthright of all our citizens, +and to the benefit and immunities as well as responsibilities of which +they are subject and may make claim. + +Otherwise it would lead to this most extraordinary consequence, that, +whenever any portion of a State or any State of a Confederacy, either +here or elsewhere, revolts, and attempts to withdraw itself from the +old Government, the old Government shall be the only judge on earth to +determine whether the seceders, or the revolutionists, or the rebels, +shall be treated as pirates or robbers. + +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? + +Then, apart from all that has been said, _if the United States made war +upon the South, as it certainly did by the act of the President, it is +one of the propositions which these men may insist upon, that the +States had a right to defend themselves, to make reprisals, to issue +letters of marque, and that they had all the other rights of warfare._ +On this point, Mr. Larocque has given copious and apposite arguments +and citations. The Constitution itself, when it comes to prohibit a +State from making war and granting letters of marque, distinctly +recognizes that privateers are not illegal. It has limited the +prohibition against granting letters of marque, &c., by saying that a +State may do so in the case of invasion, and when the danger is +imminent. + +Now, what are the facts before us here which raise this as a question +in the case? There was no declaration of war by our Government, and +none by the South; but at a certain time there was a firing on an +unarmed vessel entering Charleston harbor--the "Star of the West." +General Anderson, who was in command of Fort Sumter--whether acting +under the authority of the Government, or not, does not very clearly +appear in the case--sent a communication to Governor Pickens, to the +effect that, if unarmed vessels were to be fired upon, he wished to be +informed of the fact, saying, "You have not yet declared war against +the United States;" and that, if the offence were repeated, he should +open his batteries on Charleston. + +That is the substance of it. Mr. Pickens retorted, saying, +substantially, that they would maintain their positions. The next thing +in order is the proclamation by the President, for the organization of +the army, for the purpose, as he said, of retaking our forts. When, +therefore, that condition of things had arrived, war was begun by the +United States upon the South. + +You may say it was not a war. You may say it was the employment of +means to put down an insurrection. I care not for the mere use of +language. It was, in effect and substance, a war against those States +which claimed the authority to hold territory for themselves, under a +separate and independent Government; and that would give them the right +to oppose force by force, unless, indeed, the whole thing was a +tumultuous act--a mere act of treason--and so to be regarded in all +aspects of the case. + +There is a principle applicable to this whole case, referred to by MR. +DUKES, in his argument--the doctrine of _respondeat superior_, of which +he gave some instances. These men may go wholly free by the law of +nations, and yet the State which, in the name of Jefferson Davis or the +Confederate States, issued this commission, would be responsible to the +General Government for the consequences. We had a memorable instance of +this in this State, some years since. You will remember that a man, +named MCLEOD, was charged with coming across the lines from Canada and +setting fire to an American steamer. He was tried, and acquitted on the +ground--not very complimentary to him--that he did not do any such +thing, although he had boasted of it. It was rather humiliating to be +absolved of crime on the ground that the accused was a liar; yet still +that is the history of the case. Now, there was a diplomatic +correspondence in reference to this incident, as some of you well +remember. Great Britain insisted that Mr. McLeod must not be tried at +all; that the American Government had no authority to take cognizance +of the act; and that we must look to Great Britain for redress. Well, +gentlemen, I am sorry to say that our Government has very often acted +like the Government of England. Each of us has been quite willing, +occasionally, to swoop down on an inferior power, as the vulture on its +prey; but, whenever there was a possibility of conflict with a power +equal to either, a great deal of caution and reserve has been evinced. +We have been for years--almost from the foundation of our +Government--truckling to British ideas, British principles, British +feelings, and British apprehensions, in a manner which has not done us +any honor; and we see to-day what reward we are enjoying for it. There +has not been a public speaker in England who has ever designated us, +for a long period, by any other name than that of the Anglo-Saxon +race--a designation which includes but one element of even the race +which exists in the British Islands, omitting the gentle, noble, and +effective traits imported into it by the Normans, and excluding those +countrymen of my ancestors who do not like to be outside when there is +anything good going on within. What said our Government to that? I +understand that they distinctly admitted that McLeod was not amenable +to our jurisdiction; but the State of New York held on, in virtue of +its jurisdiction and sovereignty, and Mr. McLeod had to be tried, and +was tried and acquitted. There the principle of _respondeat superior_ +was acknowledged by our Government; and I believe that is the policy +upon which it has acted on every occasion when the case arose. + +Gentlemen, I will detain you but a few moments longer. I have +endeavored to show, in the first place, that these men cannot be +convicted of piracy, because they had not the intent to steal, +essential to the commission of that offence, and that you are the +judges whether that intent did or did not exist. If it did not, then +the accused men are entitled to acquittal on that ground. If the Act of +1790 be constitutional, and if it can be construed to extend to a case +like this, then eight of the prisoners are to be discharged--being +foreigners, not naturalized; and the other four, also--having acted +under a commission issued in good faith by a Government which claimed +to have existence, acted upon in good faith by themselves, and with the +belief that they were not committing any lawless act of aggression. In +this connection I hold it to be immaterial whether the Confederate +Government was one of right, established on sufficient authority +according to the law of nations, and to be recognized as such, or +whether it was merely a Government in fact. We claim, beyond all that, +and apart from the question of Government in law or Government in fact, +that there exists a state of civil war; which entitles these defendants +to be treated in every other manner than as pirates; which may have +rendered them amenable to the danger of being regarded as prisoners of +war, but which has made it impossible for them to be ever dealt with as +felons. I am sorry that it has become necessary in this discussion to +open subjects for debate, any inquiry about which, at this particular +juncture in our history, is not likely to be attended with any great +advantage. But, like my brethren for the defence, I have endeavored to +state freely, fearlessly, frankly and correctly, the positions on which +the defendants have a right to rely before the Court and before you. It +would have been much more acceptable to my feelings, as a citizen, if +we had been spared the performance of any such duty. But, gentlemen, it +is not our fault. The advocate is of very little use in the days of +prosperity and peace, in the periods of repose, in protecting your +property, or aiding you to recover your rights of a civil nature. It is +only when public opinion, or the strong power of Government, the +formidable array of influence, the force of a nation, or the fury of a +multitude, is directed against you, that the advocate is of any use. +Many years ago, while we were yet Colonies of Great Britain, there +occurred on this island what is known as the famous negro +insurrection,--the result of an idle story, told by a worthless person, +and yet leading to such an inflammation of the public mind that all the +lawyers who then practiced at the bar of New York (and it is the +greatest stigma on our profession of which the world can furnish an +example) refused to defend the accused parties. One of them was a poor +priest, of, I believe, foreign origin. The consequence was, that +numerous convictions took place, and a great many executions. And yet +all mankind is perfectly satisfied that there never was a more +unfounded rumor--never a more idle tale--and that judicial murders were +never perpetrated on the face of the earth more intolerable, more +inexcusable, more without palliation. How different was it in Boston, +at the time of what was called the massacre of Massachusetts subjects +by British forces! The soldiers, on being indicted, sought for counsel; +and they found two men, of great eminence in the profession, to act for +them. One of them was Mr. Adams, and the other Mr. Quincy. The father +of Mr. Quincy addressed a letter, imploring him, on his allegiance as a +son, and from affection and duty toward him, not to undertake the +defence of these men. The son wrote back a response, recognizing, as he +truly felt, all the filial affection which he owed to that honored +parent, but, at the same time, taking the high and appropriate ground +that he must discharge his duty as an advocate, according to the rules +of his profession and the obligation of his official oath, whatever +might be the result of his course. + +The struggles, in the history of the world, to have, in criminal +trials, an honest judiciary, a fearless jury, and a faithful advocate, +disclose a great deal of wrong and suffering inflicted on advocates +silenced by force, trembling at the bar where they ought to be utterly +immovable in the discharge of their duty--on juries fined, and +imprisoned, and kept lying in dungeons for years, because they dared, +in State prosecutions, to find verdicts against the direction of the +Court. The provisions of our own Constitution, which secure to men +trial by jury and all the rights incident to that sacred and invaluable +privilege, are the history of wrong against which those provisions are +intended to guard in the future. This trial, gentlemen, furnishes a +brilliant illustration of the beneficial results of all this care. +Nothing could be fairer than the trial which these prisoners have had; +nothing more admirable than the attention which you have given to every +proceeding in this case. I know all the gentlemen on that Jury well +enough to be perfectly certain that whatever verdict they render will +be given without fear or favor, on the law of the land, as they shall +be informed it does exist, on a calm and patient review of the +testimony, with a due sympathy for the accused, and yet with a proper +respect for the Government, so that the law shall be satisfied and +individual right protected. But, gentlemen, I do believe most sincerely +that, unless we have deceived ourselves in regard to the law of the +land, I have a right to invoke your protection for these men. The +bodily presence, if it could be secured, of those who have been here in +spirit by their language, attending on this debate and hovering about +these men to furnish them protection--Lee, and Hamilton, and Adams, and +Washington, and Jefferson, all whose spirits enter into the principles +for which we contend--would plead in their behalf. I do wish that it +were within the power of men, invoking the great Ruler of the Universe, +to bid these doors open and to let the Revolutionary Sages to whom I +have referred, and a Sumter, a Moultrie, a Marion, a Greene, a Putnam, +and the other distinguished men who fought for our privileges and +rights in the days of old, march in here and look at this trial. There +is not a man of them who would not say to you that you should remember, +in regard to each of these prisoners, as if you were his father, the +history of Abraham when he went to sacrifice his son Isaac on the +mount--the spirit of American liberty, the principles of American +jurisprudence, and the dictates of humanity, constituting themselves +another Angel of the Lord, and saying to you, when the immolation was +threatened, "Lay not your hand upon him." (Manifestations of applause +in Court.) + + +ARGUMENT OF WILLIAM M. EVARTS, ESQ., FOR THE PROSECUTION. + +_May it please your Honors, and Gentlemen of the Jury_: + +A trial in a Court of Justice is a trial of many things besides the +prisoners at the bar. It is a trial of the strength of the laws, of the +power of the Government, of the duty of the citizen, of the fidelity to +conscience and the intelligence of the Jury. It is a trial of those +great principles of faith, of duty, of law, of civil society, that +distinguish the condition of civilization from that of barbarism. I +know no better instance of the distinction between a civilized, +instructed, Christian people, and a rude and barbarous nation, than +that which is shown in the assertions of right where might and violence +and the rage of passion in physical contest determine everything, and +this last sober, discreet, patient, intelligent, authorized, faithful, +scrupulous, conscientious investigation, under the lights of all that +intelligence with which God has favored any of us; under that +instruction which belongs to the learned and accredited expounders of +the law of an established free Government; under the aid of, and yet +not misled by, the genius or eloquence of advocates on either side. + +But, after all, the controlling dominion of duty to the men before you +in the persons of the prisoners, to the whole community around you, and +to the great nation for which you now discharge here a vital function +for its permanence and its safety,--your duty to the laws and the +Government of your country (which, giving its protection, requires your +allegiance, and finds its last and final resting-place, both here and in +England, in the verdicts of Juries),--your duty to yourselves,--requires +you to recognize yourselves not only as members of civil society, but as +children of the "Father of an Infinite Majesty," and amenable to His +last judgment for your acts. Can any of us, then, fail to feel, even +more fully than we can express, that sympathies, affections, passions, +sentiments, prejudices, hopes, fears, feelings and responsibilities of +others than ourselves are banished at once and forever, as we enter the +threshold of such an inquiry as this, and never return to us until we +have passed from this sacred precinct, and, with our hands on our +breasts and our eyes on the ground, can humbly hope that we have done +our duty and our whole duty? + +Something was said to you, gentlemen of the Jury, of the unwonted +circumstances of the prosecution, by the learned counsel who, many days +ago, and with an impressiveness that has not yet passed away from your +memory, opened on behalf of the prisoners the course of this defence. + +He has said to you that the number of those whose fate, for life or for +death, hangs on your verdict, is equal to your own--hinting a ready +suggestion that that divided responsibility by which twelve men may +sometimes shelter themselves, in weighing in the balance the life of a +single man, is not yours. Gentlemen, let us understand how much of +force and effect there is in the suggestion, and how truly and to what +extent the responsibility of a Jury may be said to include this issue +of life and death. In the first place, as Jurymen, you have no share or +responsibility in the wisdom or the justice of those laws which you are +called upon to administer. If there be defects in them--if they have +something of that force and severity which is necessary for the +maintenance of Government and the protection of peace and property, and +of life on the high seas--you have had no share in their enactment, and +have no charge, at your hands, of their enforcement. In the next place, +you have no responsibility of any kind in regard to the discretion of +the representatives of this Government in the course which they choose +to take, as to whether they will prosecute or leave unprosecuted. You +do not, within the limits of the inquiry presented to you, dispose of +the question, why others have not been presented to you; nor may that +which has been done in a case not before you, serve as a guide for the +subject submitted to your consideration. So, too, you have no +responsibility of any kind concerning the course or views of the law +which this tribunal may give for your guidance. The Court does not make +the law, but Congress does. The Court declares the law as enacted by +the Government, and the Jury find the facts--giving every scrutiny, +every patient investigation, every favor for life, and every reasonable +doubt as to the facts, to the prisoners. Having disposed of that duty, +as sober, intelligent and faithful men, graduating your attention only +by the gravity of the inquiry, you have no further responsibility. But +I need not say to you, gentlemen, that if any civilized Government is +to have control of the subject of piracy--if pirates are to be brought +within the jurisdiction of the criminal law--the very nature of the +crime involves the fact that its successful prosecution necessarily +requires that considerable numbers shall be engaged in it. I am quite +certain that, if my learned friends had found in the circumstances of +this case nothing which removed it out of the category of the heinous +crime of private plunder at sea, exposing property and life, and +breaking up commerce, they would have found nothing in the fact that a +ship's crew was brought in for trial, and that the number of that crew +amounted to twelve men, that should be pressed to the disturbance of +your serene judgment, in any disposition of the case. Now, gentlemen, +let us look a little into the nature of the crime, and into the +condition of the law. + +The penalty of the crime of piracy or robbery at sea stands on our +statute books heavier than the penalty assigned for a similar crime +committed on land--which is, in fact, similar, so far as concerns its +being an act of depredation. It may be said, and it is often argued, +that, when the guilt of two offences is equal, society transcends its +right and duty when it draws a distinction in its punishments; and it +may be said, as has been fully argued to you--at least, by implication, +in the course of this case--that the whole duty and the whole +responsibility of civil Governments, in the administration of criminal +law and the punishment of crime, has to do with retributive vengeance, +as it were, on the moral guilt of the prisoner. Now, gentlemen, I need +not say to you, who are experienced at least in the common inquiries +concerning Governments and their duties, that, as a mere naked and +separate consideration for punishing moral guilt, Government leaves, or +should leave, vengeance where it belongs--to Him who searches the heart +and punishes according to its secret intents--drawing no distinction +between the wicked purpose which fully plans, and the final act which +executes that purpose. The great, the main duty--the great, the main +right--of civil society, in the exercise of its dominion over the +liberties, lives, and property of its subjects, is the good of the +public, in the prevention, the check, the discouragement, the +suppression of crime. And I am sure that there is scarcely one of us +who, if guilt, if fault, if vice could be left to the punishment of +conscience and the responsibility of the last and great assize, without +prejudice to society, without injury to the good of others, without, +indeed, being a danger and a destruction to all the peace, the +happiness, and the safety of communities, would not readily lay aside +all his share in the vindictive punishments of guilty men. But society, +framed in the form and for the purposes of Government, finds, alas! +that this tribunal of conscience, and this last and future +accountability of another world, is inadequate to its protection +against wickedness and crime in this. + +You will find, therefore, in all, even the most enlightened and most +humane codes of laws, that some necessary attention is paid to the +predominant interest which society has in preventing crime. The very +great difficulty of detecting it, the circumstances of secrecy, and the +chances of escape on the part of the criminal, are considerations which +enter into the distribution of its penalties. You will find, in a +highly commercial community, like that of England, and to some +extent--although, I am glad to say, with much less severity--in our +own, which is also a highly commercial community, that frauds against +property, frauds against trade, frauds in the nature of counterfeiting +and forgery, and all those peaceful and not violent but yet pernicious +interferences with the health and necessary activity of our every-day +life, require the infliction of severe penalties for what, when you +take up the particular elements of the crime, seems to have but little +of the force, and but little of the depth of a serious moral +delinquency. + +The severity of the penalties for passing counterfeit money are +inflicted upon the poor and ignorant who, in so small a matter as a +coin of slight value, knowingly and intelligently, under even the +strongest impulses of poverty, are engaged in the offence. Now, +therefore, when commercial nations have been brought to the +consideration of what their enactments on the subject of piracy shall +be, they have taken into account that the very offence itself requires +that its commission should be outside of the active and efficient +protection of civil society--that the commission of the crime involves, +on the part of the criminals, a fixed, deliberate determination and +preparation--and that the circumstances under which the victims, either +in respect of their property or of their lives, are exposed to these +aggressions, are such as to make it a part of the probable course of +the crime, that the most serious evils and the deepest wounds may be +inflicted. Now, when a crime, not condemned in ethics or humanity, and +which the positive enactments of the law have made highly penal, yet +contains within itself circumstances that appeal very strongly to +whatever authority or magistrate has rightful control of the subject +for a special exemption, and special remission, and special concession +from the penalty of the law, where and upon what principles does a wise +and just, a humane and benignant Government, dispose of that question? +I agree that, if crimes which the good of society requires to be +subjected to harsh penalties, must stand, always and irrevocably; upon +the mere behest of judicial sentence, there would be found an +oppression and a cruelty in some respects, that a community having a +conscientious adherence to right and humanity would scarcely tolerate. +Where, then, does it wisely bestow all the responsibility, and give all +the power that belongs to this adjustment, according to the particular +circumstances of the moral and personal guilt, which must be necessary, +and is always conceded? Why, confessedly, to the pardoning power, +alluded to on one side or the other--though chiefly on the part of the +prisoners' counsel--in the course of this trial. Now, you will +perceive, at once, what the difference is between a Court, or a Jury, +or a public prosecuting officer, yielding to particular circumstances +of actual or of general qualification of a crime charged,--so that the +law shall be thwarted, and the certainty and directness of judicial +trial and sentence be made the sport of sympathy, or of casual or +personal influences,--and placing the pardoning power where it shall be +governed by the particular circumstances of each case, so that its +exercise shall have no influence in breaking down the authority of law, +or in disturbing the certainty, directness, and completeness of +judicial rules. For, it is the very nature of a pardon,--committed to +the Chief Magistrate of the Federal Union in cases of which this Court +has jurisdiction, and to the Chief Magistrate of every State in the +Union in cases of which the State tribunals take cognizance,--that it +is a recognition of the law, and of the sentence of the law, and leaves +the laws undisturbed, the rules for the guidance of men unaffected, the +power and strength of the Government unweakened, the force of the +judiciary unparalyzed, and yet disposes of each case in a way that is +just, or, if not just, is humane and clement, where the pardon is +exercised. + +Now, gentlemen, I shall say nothing more on the subject of pardon. It +is a thing with which I have nothing to do--with which this learned +Court has nothing to do--with which you, as Jurymen, have nothing to +do--beyond the fact that this beneficent Government of ours has not +omitted from its arrangement, in the administration of its penal laws, +this divine attribute of mercy. + +Now, there being the crime of piracy or robbery on the high seas, which +the interests of society, the protection of property and of life, the +maintenance of commerce, oblige every State and every nation, like +ours, to condemn--what are the circumstances, what are the acts, that, +in view of the law, amount to piracy? You will understand me that, for +the present, I entirely exclude from your consideration any of the +particular circumstances which are supposed to give to the actual crime +perpetrated a public character, lifting it out of the penal law that +you administer, and out of the region of private crime, into a field of +quite different considerations. They are, undoubtedly, that the act +done shall be with intent of depriving the person who is in possession +of property, as its owner, or as the representative of that owner, of +that property. That is what is meant by the Latin phrase, with which +you are quite as familiar now, at least, as I, _animo furandi_--with +the intention of despoiling the owner of that which belongs to him. +And, to make up the crime of robbery on land, in distinction from +larceny or theft, as we generally call it, (though theft, perhaps, +includes all the variety of crime by which the property of another is +taken against his will,) robbery includes, and _piracy_, being robbery +at sea, includes, the idea that it is done with the application, or the +threat, or the presence of force. There must be actual violence, or the +presence and exhibition of power and intent to use violence, which +produces the surrender and delivery of the property. Such are the +ingredients of robbery and piracy. And, gentlemen, these two +ingredients are all; and you must rob one or the other of them of this, +their poison, or the crime is completely proved, when the fact of the +spoliation, with these ingredients, shall have been proved. The use +that the robber or the pirate intends to make of the property, or the +justification which he thinks he has by way of retaliation, by way of +injury, by way of provocation, by way of any other occasion or motive +that seems justifiable to his own conscience and his own obedience to +any form whatever of the higher law, has nothing to do with the +completeness of the crime, unless it come to what has been adverted to +by the learned counsel, and displayed before you in citations from the +law-books--to an honest, however much it may be a mistaken and +baseless, idea that the property is really the property of the accused +robber, of which he is repossessing himself from the party against whom +he makes the aggression. + +Now, unless, in the case proved of piracy, or robbery on land, there be +some foundation for the suggestion that the willful and intentional act +of depriving a party of his property rests upon a claim of the robber, +or the pirate, that it is his own property (however baseless may be the +claim), you cannot avoid, you cannot defeat, the criminality of the act +of robbery, within the intention of the law, by showing that the robber +or the pirate had, in the protection of his own conscience, and in the +government of his own conduct, certain opinions or views that made it +right for him to execute that purpose. Thus, for instance, take a case +of morals: A certain sect of political philosophers have this +proposition as a basis of all their reasoning on the subject of +property,--that is, that property, the notion of separate property in +anything, as belonging to anybody, is theft; that the very notion that +I can own anything, whatever it may be, and exclude other people from +the enjoyment of it, is a theft made by me, a wrongful appropriation, +when all the good things in this world, in the intention of Providence, +were designed for the equal enjoyment of all the human race. Well, now, +a person possessed of that notion of political economy and of the moral +rights and duties of men, might seek to avail himself of property owned +and enjoyed by another, on the theory that the person in possession of +it was the original thief, and that he was entitled to share it. I need +not say to you that all these ideas and considerations have nothing +whatever to do with the consideration of the moral intent with which a +person is despoiled of his property. + +Now, with regard to force, I do not understand that my learned friends +really make any question, seriously, upon the general principle of what +force is, or upon the facts of this case, that this seizure of the +Joseph by the Savannah had enough of force,--the threat, the presence, +and exhibition of power,--and of the intent to use it, to make the +capture one of force, if the other considerations which are relied upon +do not lift it out of that catalogue of crime. + +It is true that the learned counsel who last addressed you seemed to +intimate, in some of his remarks, near the close of his very able and +eloquent and interesting address, that there was not any force about +it, that the master of the Joseph was not threatened, that there was no +evidence that the cannon was even loaded, and that it never had been +fired off. Well, gentlemen, the very illustration which he used of what +would be a complete robbery on land,--the aggressor possessing a +pistol, and asking, in the politest manner, for your money,--relieves +me from arguing that you must fire either a cannon or a pistol, before +you have evidence of force. If our rights stand on that proposition, +that when a pistol is presented at our breast, and we surrender our +money, we must wait for the pistol to be fired before the crime is +completed, you will see that the terrors of the crime of robbery do not +go very far towards protecting property or person, which is the object +of it. + +When, gentlemen, the Government, within a statute which, in the +judgment of the Court, shall be pronounced as being lawfully enacted +under the Constitution of the United States, has completed the proof of +the circumstances of the crime charged, it is entitled at your hands to +a conviction of the accused, unless, by proof adduced on his part, he +shall so shake the consistency and completeness of the proof on the +part of the Government, or shall introduce such questions of +uncertainty and doubt, that the facts shall be disturbed in your mind, +or unless he shall show himself in some predicament of protection or +right under the law,--(and, by "under the law," I mean, under the law +of the land where the crime is punishable, and where the trial and the +sentence are lawfully attributed to be,)--or unless he shall introduce +some new facts which, conceding the truthfulness and the sufficiency of +the case made by the Government, shall still interpose a protection, in +some form, against the application of the penalty of the law. I take it +that I need not say to you that this protection or qualification of the +character of the crime must be by the law of the land; and, whether it +comes to be the law of the land by its enactment in the statutes of the +United States, or by the adoption and incorporation into the law of the +land of the principles of the law of nations, is a point quite +immaterial to you. You are not judges of what the statutes of the +United States are, except so far as their interpretation may rightfully +become a subject of inquiry by the Jury, in the sense of whether the +crime is within the intent of the Act, in the circumstances proved. You +are not judges of what the law of nations is, in the first place; nor +are you judges of how much of the law of nations has been adopted or +incorporated into the system of our Government and our laws, by the +authority of its Congress or of its Courts. + +Whether, as I say to you, there is a defence, or protection, or +qualification of the acts and transactions which, in their naked +nature, and in their natural construction, are violent interferences +with the rights of property, against the statute, and the protection of +property intended by the statute,--whether the circumstances do change +the liability or responsibility of the criminal, by the introduction of +a legal defence under the law of nations, or under the law of the land +in any other form, is a question undoubtedly for the Court,--leaving to +you always complete control over the questions of fact that enter into +the subject. So that the suggestion, also dropped by my learned friend, +at the close of his remarks, that any such arrangement would make the +Jury mere puppets, and give them nothing to do, finds no place. It +would not exclude from your consideration any matters of fact which go +to make up the particular condition of public affairs or of the public +relations of the community towards each other, in these collisions +which disturb the land, provided the Court shall hold and say that, on +such a state of facts existing, or being believed by you, there is +introduced a legal qualification or protection against the crime +charged. But, if it should be held that all these facts and +circumstances, to the extent and with the effect that is claimed for +them by the learned counsel as matter of fact, yet, as matter of law, +leave the crime where it originally stood, being of their own nature +such as the principles of law do not permit to be interposed as a +protection and a shield, why, then you take your law on the subject in +the same way as you do on every other subject, from the instructions of +the learned and responsible Bench, whose errors, if committed, can be +corrected; while your confusion between your province and the province +of the Court would, both in this case, and in other cases, and +sometimes to the prejudice of the prisoner, and against his life and +safety, when prejudices ran that way, confound all distinctions; and, +in deserting your duty, to usurp that of another portion of the Court, +you would have done what you could, not to uphold, but to overthrow the +laws of your country and the administration of justice according to +law, upon which the safety of all of us, at all times, in all +circumstances, depends. + +Now, gentlemen, let me ask your attention, very briefly, to the +condition of the proof in this case, from the immediate consideration +of which we have been very much withdrawn by the larger and looser +considerations, as I must think them, which have occupied most of the +attention of the counsel, and been made most interesting, undoubtedly, +and attractive to you. These twelve men now on trial--four of them +citizens of the United States, and eight of them foreigners by birth +and not naturalized--formed part of the crew of a vessel, originally a +pilot-boat, called the Savannah. That crew consisted of twenty men, and +one of them has given the circumstances of the preparation for the +voyage, of the embarkation upon the vessel, of her weighing anchor from +the port of Charleston and making her course out to sea without any +port of destination, and without any other purpose than to make +seizures of vessels belonging to the loyal States of the Union and its +citizens. He has shown you that all who went on board, all who are here +on trial, had a complete knowledge of, and gave their ready and +voluntary assent to and enlistment in this service; and that the +service had no trait of compulsion, or of organized employment under +the authority of Government, in any act or signature of any one of the +crew, as far as he knew, leaving out, of course, what I do not intend +to dispute, and what you will not understand me as disregarding--the +effect that may be gained from the notorious facts and the documents +that attended the enterprise. He has shown you that, going to sea with +that purpose, without any crew list, without any contract of wages, +they descried, early in the morning after they adventured from the +port, and at a point about sixty miles to sea, this bark, and ran down +to her; and that, while running down to her, they sailed under the flag +of the United States, and, hailing the brig, when within hailing +distance, required the master of it to come on board with his papers. +Upon the inquiry of the master, by what authority they made that demand +on him, the stars and stripes being then floating at the masthead of +the Savannah, Captain Baker informed him that it was in the name and by +the authority of the Confederate States of America, at the same time +hauling down the American flag and running up the flag of the +Confederacy. Whatever followed after this, gentlemen, except so far as +to complete the possession of the captured vessel, by putting a prize +crew on board of it, (so called,) sending it into Charleston, and there +lodging in jail the seamen or ship's company of the Joseph that +accompanied it, and procuring a sale of the vessel--anything beyond +that (and this only to show the completeness of the capture, and the +maintenance of the design to absolutely deprive the owners of the +vessel and cargo of their property) seems to be quite immaterial. Now, +when we add to this the testimony of Mr. Meyer, the master of the +captured vessel, who gives the same general view of the circumstances +under which his vessel was overhauled and seized by the Savannah, as +well as the observations and the influences which operated upon his +mind while the chase was going on, we have the completeness of the +crime,--not forgetting the important yet undisputed circumstances of +the ownership of the vessel, and of the nature of the voyage in which +she was engaged. You will observe that this vessel, owned by, and, we +may suppose, judging from the position of the witnesses examined before +you, constituting a good part of the property of, our fellow-countrymen +in the State of Maine, sailed on the 28th day of April, from +Philadelphia, bound on a voyage to Cardenas, in Cuba, with a charter +party out and back, under which she was to bring in a cargo of sugar +and molasses. You will have noticed, comparing this date with some of +the public transactions given in evidence, that it was after both the +proclamation of Mr. Davis, inviting hostile aggressions against the +commerce of the United States, on the part of whosoever should come to +take commissions from him; and after the proclamation of the President +of the United States, made to the people of the United States and all +under its peace and protection, that if, under this invitation of Mr. +Davis, anybody should assume authority to make aggressions, on the high +seas, upon the private property of American citizens, they should be +punished as pirates. This vessel, therefore, sailed on her voyage under +the protection of the laws of the United States, and under this +statement of its Government, that the general laws which protected +property and seamen on the high seas against the crime of piracy were +in force, and would be enforced by the Government of the United States, +wherever it held power, against any aggressions that should assume to +be made under the protection of the proclamation of Mr. Davis. While +returning, under the protection of this flag and of this Government, +she meets with hostile aggression at the hands of an armed vessel, +which has nothing to distinguish it from the ordinary condition of +piracy, except this very predicament provided against by the +proclamation of the President, and under the protection of which the +vessel had sailed, to wit, the supposed authority of Jefferson Davis; +which should not, and cannot, and will not, as I suppose, protect that +act from the guilt and the punishment of piracy. + +Now, you will have observed, gentlemen, in all this, that whatever may +be the circumstances or the propositions of law connected with this +case, that may change or qualify the acts and conduct of Mr. Baker, so +far as the owners of this vessel and the owners of this cargo are +concerned, there has been as absolute, as complete, as final and as +perfect a deprivation of their property, as if there had been no +commission--no public or other considerations that should expose them +to having the act done with impunity. You will discover, then, that, so +far as the duty of protection from this Government to its citizens and +their property--so far as the duty of maintaining its laws and +enforcing them upon the high seas--is concerned, there is nothing +pretended--there is nothing, certainly, proved--that has excused or can +excuse this Government, in its Executive Departments, in its Judicial +Departments, in the declaration of law from the Court, or in the +finding of facts by the Jury, from its duty towards its citizens and +their property. And, while you have been led to look at all the +qualifying circumstances that should attend your judgment concerning +the act and the fact on the part of these prisoners, I ask your ready +assent to the proposition, that you should look at the case of these +sufferers, the victims of those men, whose property has been ventured +upon the high seas in reliance on its safety against aggression, from +whatever source, under the exercise of the authority of the Government +to repel and to punish such crimes. + +Before I go into any of the considerations which are to affect the +relations of these prisoners to this alleged crime, and to this trial +for such alleged crime, let us see what there are in the private +circumstances particular to themselves, and their engagement in this +course of proceeding, that is particularly suited to attract your favor +or indulgence. Now, these men had not, any of them, been under the +least compulsion, or the least personal or particular duty of any kind, +to engage in this enterprise. Who are they? Four of them are citizens +of the United States. Mr. Baker is, by birth, a citizen of the State of +Pennsylvania; two are citizens, by birth, of the State of South +Carolina, and one of North Carolina. The eight men, foreigners, are, +three of Irish origin, two of Scotch, one a German, one a native of +Manilla, in the East Indies, and one of Canton, in China. Now, you will +observe that no conscription, no enlistment, no inducement, no +authority of any public kind has been shown, or is suggested, as having +influenced any of them in this enterprise. My learned friend has +thought it was quite absurd to impute to this Chinaman and this +Manillaman a knowledge of our laws. Is it not quite as absurd to throw +over them the protection of patriotism--the protection of +indoctrination in the counsels and ethics of Calhoun--to give them the +benefit of a departure from moral and natural obligations to respect +the property of others, on the theory that they must surrender their +own rectitude--their own sense of right--to an overwhelming duty to +assist a suffering people in gaining their liberty? What I have said of +them applies equally to these Irishmen, this German, and these +Scotchmen--as good men, if you please, in every respect, as the same +kind of men born in this country. I draw no such national distinctions; +but I ask what there is, in the sober, sensible, practical +consideration of the motives and purposes with which these men entered +into this enterprise to despoil the commerce of the United States, and +make poor men of the owners of that vessel, that should give them +immunity from the laws of property and the laws of the land, or form +any part in the struggles of a brave and oppressed people, (as we will +consider them, for the purpose of the argument), against a tyrannical +and bloodthirsty Government? + +No! no! Let their own language indicate the degree and the dignity of +the superior motives that entered into their adoption of this +enterprise: "We thought we had a right to do it, and we did it." Was +there the glow of patriotism--was there the self-sacrificing devotion to +work in the cause of an oppressed people, in this? No! And the only +determination that these men knew or looked at, was the lawfulness of +the enterprise, in respect of the sanctions and punishments of the law. +They, undoubtedly, had not any purpose or any thought of running into a +collision with the comprehensive power and the all-punishing +condemnation of the statutes of the United States, whether they knew +what the statutes were or not; but they did take advantage of the +occasion and opportunity to share the profits of a privateering +enterprise against the commerce of the United States; and they were +unquestionably acquainted, either by original inspection or by having a +favorable report made to them with the fundamental provision in regard +to this system of privateering, so called. They knew that the entire +profits of the transaction would be distributed among those who were +engaged in it. Now, I am not making any particular or special +condemnation of these men, (in thus readily, without compulsion, and +without the influence of any superior motives, however mistaken, of +patriotism,) beyond what the general principles of public law, and +general opinion, founded on the experience of privateering, have shown +to be the reckless and greedy character of those who enter upon private +war, under the protection of any, however recent, flag. Every body knows +it--every body understands it--every body recognizes the fact that, if +privateers, who go in under the hope of gain, and for the purposes of +spoliation, are not corrupt and depraved at the outset, they expose +themselves to influences, and are ready to expose themselves to +influences, which will make them as dangerous, almost, to commerce, and +as dangerous to life, as if the purpose and the principle of +privateering did not distinguish them from pirates. And, to show that, +in this law of ours, there is nothing that is forced in its application +to privateers--that there is nothing against the principles of humanity +or common sense in the nation's undertaking to say, We will not +recognize any of those high moral motives, any of this superior dignity, +about privateers; we understand the whole subject, and we know them to +be, in substance and effect, dangerous to the rights of peaceful +citizens, in their lives and their property,--reference need only be had +to the action of civilized Governments, and to that of our Government as +much as any, in undertaking to brush away these distinctions, wherever +it had the power--that is my proposition--wherever it had the power to +do so. And I ask your Honors' attention to the provision on this +subject, in the first treaties which our Government--then scarcely +having a place among the nations of the earth--introduced upon this very +question of piracy and privateers. I refer to the twenty-first article +of the Treaty of Commerce with France, concluded on the 6th of February, +1778, on page 24 of the eighth volume of the Statutes at Large. This is +a commercial arrangement, entered into by this infant Government, before +its recognition by the Throne of Great Britain, with its ally, the most +Christian Monarch of France: + + "No subjects of the Most Christian King shall apply for or take any + commission or letters of marque, for arming any ship or ships to + act as privateers against the said United States, or any of them, + or against the subjects, people or inhabitants of the said United + States, or any of them, or against the property of any of the + inhabitants of any of them, from any Prince or State with which the + said United States shall be at war; nor shall any citizen, subject + or inhabitant of the said United States, or any of them, apply for + or take any commission or letters of marque for arming any ship or + ships, to act as privateers against the subjects of the Most + Christian King, or any of them, or the property of any of them, + from any Prince or State with which the said King shall be at war; + and if any person of either nation shall take such commissions or + letters of marque, he shall be punished as a pirate." + +Now, we have had a great deal of argument here to show that, under the +law of nations,--under the law that must control and regulate the +international relations of independent powers--it is a gross and +violent subversion of the natural, inherent principles of justice, and +a confusion between crime and innocence, to say to men who, under the +license of war, take commissions from other powers, that they shall be +hanged as pirates. And yet, in the first convention which we, as an +infant nation, formed with any civilized power, attending in date the +Treaty of Alliance which made France our friend, our advocate, our +helper, in the war of the Revolution, his Most Christian Majesty, the +King of France, standing second to no nation in civilization, +signalized this holy alliance of friendship in behalf of justice, and +humanity, and liberty, by engaging that, whatever the law of nations +might be, whatever the speciousness of publicists might be, his +subjects, amenable to the law, should never set up the pretence of a +commission of privateering against the penalties of piracy. Nor had +this treaty of commerce which I have referred to, anything of the +nature of a temporary or warlike arrangement between the parties, +pending the contest with Great Britain. It was a treaty independent of +the Treaty of Alliance which engaged them as allies, offensive and +defensive, in the prosecution of that war. Nor is this an isolated case +of the morality and policy of this Government on the subject of piracy. +By reference to the 19th Article of the Treaty between the Netherlands +and the United States, concluded in 1782, at p. 44 of the same volume, +your honors will find the same provision. After the same stipulation, +excluding the acceptance of commissions from any power, to the citizens +or subjects of the contracting parties, there is the same provision: +"And if any person of either nation shall take such commissions or +letters of marque, he shall be punished as a pirate." + +Now, our Government has never departed from its purpose and its policy, +to meliorate the law of nations, so as to extirpate this business of +private war on the ocean. It is entirely true that, in its subsequent +negotiations with the great powers of Christendom, it has directed its +purpose to the more thorough and complete subversion and annihilation +of the whole abominable exception, which is allowed on the high seas, +from the general melioration of the laws of war, that does not tolerate +aggressions of violence, and murder, and rapine, and plunder, except by +the recognized forces contending in the field. It has attempted to +secure not only the exclusion of private armed vessels from +privateering, but the exclusion of aggressions on the part of public +armed vessels of belligerents on private property of all kinds upon the +ocean. And no trace of any repugnance or resistance on the part of our +Government to aid and co-operate in that general melioration in the +laws of war, in respect to property on the ocean, can be charged or +proved. In pursuance of that purpose, as well as in conformity with a +rightful maintenance of its particular predicament in naval war,--to +wit., a larger commerce than most other nations, and a smaller +navy,--it has taken logically, and diplomatically, and honestly, the +position: I will not yield to these false pretences of humanity and +melioration which will only deprive us of privateers, and leave our +commerce exposed to your immense navies. If you are honest about it, as +we are, and opposed to private war, why, condemn and repress private +war in respect to the private character of the property attacked, as +well as private war in respect to the vessels that make the +aggressions. + +Nor, gentlemen, do I hesitate to say that, whatever we may readily +concede to an honest difference of opinion and feeling, in respect to +great national contests, where men, with patriotic purposes, raise the +standard of war against the Government, and, on the other hand, uphold +the old standard to suppress the violence of war lifted against it, we +do not, we cannot, as honest and sensible men, look with favor upon an +indiscriminate collection from the looser portions of society, that +rush on board a marauding vessel, the whole proceeds and results of +whose aggressions are to fill their own pockets. And, when my learned +friends seek to go down into the interior conscience and the secret +motives of conduct, I ask you whether, if this had been a service in +which life was to be risked, and all the energies of the man were to be +devoted to the public service, for the glory and the interests of the +country, and the poor food, poor clothing and poor pay of enlisted +troops, you would have found precisely such a rush to that service? + +Now, I am not seeking, by these considerations, to disturb in the least +the legal protections, if there be any, in any form, which it is urged +have sprung out of the character of privateering which this vessel had +assumed, and these men, as part of its crew, had been incorporated in. +If legal, let it be so; but do not confound patriotism, which +sacrifices fortune and life for the love of country, with the motives +of these men, who seek privateering because they are out of employment. +Far be it from me to deny that the feeling of lawful right, the feeling +that statutory law is not violated, if it draw the line between doing +and not doing a thing, is on the whole a meritorious consideration and +a trait that should be approved. But I do object to having the range of +these men's characters and motives exalted, from the low position in +which their acts and conduct place them, into the high purity of the +patriot and the martyr. We are trying, not the system of +privateering--we are trying the privateers, as they are called; and, +when they fail of legal protection, they cannot cover themselves with +this robe of righteousness in motive and purpose. + +Now, how much was there of violence in the meditated course, or in the +actual aggression? Why, the vessel is named in the commission as having +a crew of thirty. In fact, she had twenty. Four men was a sufficient +crew for a mercantile voyage. She had an eighteen pounder, a great gun +that must have reached half way across the deck, resting on a pivot in +the middle, capable of being brought around to any quarter, for attack. +At the time this honest master and trader of the Joseph descried the +condition of the vessel, he was struck with this ugly thing amidships, +as he called it--to wit, this eighteen pound cannon, and was afraid it +was a customer probably aggressive--a robber. But he was encouraged by +what? Although he saw this was a pilot boat, and not likely, with good +intent, to be out so far at sea, what was this honest sailor encouraged +by? The flag of the United States was flying at her mast! But, when +hailed--still under that view as to the aspect presented by the +marauding vessel--he is told to come on board, and asks by what +authority--instead of what would have been the glad and reassuring +announcement--the power of the American flag--the Confederate States +were announced as the marauding authority, and the flag of his country +is hauled down, and its ensign replaced by this threat to commerce. +Now, when this gun, as he says, was pointed at him, and this hostile +power was asserted, my learned friends, I submit to you, cannot, +consistently with the general fairness with which they have pursued +this argument, put the matter before you as failing in any of the +completeness of proof concerning force. For, when we were proposing to +show that these prisoners all the while, in their plans, had the +purpose of force, if force was necessary, and that, in the act of +collision with the capturing vessel, that force occurred, we were +stopped, upon the ground that it was unnecessary to occupy the +attention of the Court and the Jury with anything that was to qualify +this vessel's violent character, by reason of the admission that, if it +was not protected by the commission, or the circumstances of a public +character of whatever kind and degree--about which I admit there was no +restriction of any kind,--if it stood upon the mere fact that the +vessel was taken from its owners by the Savannah, in the way that was +testified,--it would not be claimed to be wanting in any of the quality +of complete spoliation, or in any of the quality of force. Now, that +defence, we may say, must not be recurred to, to protect, in your +minds, these men from the penalty which the law has imposed upon the +commission of piracy. It cannot be pretended that there was any defect +in the purpose of despoiling the original owners, nor that there is any +deficiency in the exhibition of force, to make it piracy; and you will +perceive, gentlemen, that although my learned friends successively, Mr. +Dukes, Mr. Sullivan, and Mr. Brady, have, with the skill and the +purpose of advocates, taken occasion, at frequent recurring points, to +get you back to the want of a motive and intent or purpose of the +guiltiness of robbing, yet, after all, it comes to this--that the +inconsistency of the motive and intent, or the guiltiness of robbing, +with the lawfulness, under the law of nations, of privateering, is the +only ground or reason why the crime is deficiently proved. + +I do not know that I need say anything to you about privateering, +further than to present somewhat distinctly what the qualifications, +what the conditions, and what the purposes, of privateering are. In the +first place, privateering is a part of war, or is a part of the +preliminary hostile aggressions which are in the nature of a forcible +collision between sovereign powers. Now what is the law of nations on +this subject--and how does there come to be a law of nations--and what +is its character, what are its sanctions, and who are parties to it? We +all know what laws are when they proceed from a Government, and operate +upon its citizens and its subjects. Law then comes with authority, by +right, and so as to compel obedience; and laws are always framed with +the intent that there shall be no opportunity of violent or forcible +resistance to them, or of violent or forcible settlement of +controversies under them, but that the power shall be submitted to, and +the inquiry as to right proceed regularly and soberly, under the civil +and criminal tribunals. But, when we come to nations, although they +have relations towards each other, although they have duties towards +each other, although they have rights towards each other, and although, +in becoming nations, they nevertheless are all made up of human beings, +under the general laws of human duty, as given by the common lawgiver, +God, yet there is no real superior that can impose law over them, or +enforce it against them. And it is only because of that, that war, the +scourge of the human race--and it is the great vice and defect of our +social condition, that it cannot be avoided--comes in, as the only +arbiter between powers that have no common superior. I am sure that the +little time I shall spend upon this topic will be serviceable; as, +also, in some more particular considerations, as to what is called a +state of war, and as to the conditions which give and create a war +between the different portions of our unhappy country and its divided +population. So, then, nations have no common superior whom they +recognize under this law, which they have made for themselves in the +interest of civilization and humanity, and which is a law of natural +right and natural duty, so far as it can be applied to the relations +which nations hold to one another. They recognize the fact that one +nation is just as good, as matter of right, of another; that whether it +be the great Powers of Russia, as England, of France, of the United +States of America, or of Brazil, or whether it be one of the feeble and +inferior Powers, in the lowest grade,--as, one of the separate Italian +Kingdoms, or the little Republic of San Marino, whose territories are +embraced within the circuit of a few leagues, or one of the South +American States, scarcely known as a Power in the affairs of men,--yet, +under the proposition that the States are equal in the family of +nations, they have a right to judge of their quarrels, and, finding +occasions for quarrel, have a right to assert them, as matter of force, +in the form of war. And all the other nations, however much their +commerce may be disturbed and injured, are obliged to concede certain +rights that are called the rights of war. We all understand what the +rights of war are on the part of two people fighting against each +other. A general right is to do each other as much injury as they can; +and they are very apt to avail themselves of that right. There are +certain meliorations against cruelty, which, if a nation should +transgress, probably other nations might feel called upon to suppress. +But, as a general thing, while two nations are fighting, other nations +stand by, and do not intervene. But the way other nations come to have +any interest, and to have anything to say whether there is war between +sovereign powers, grows out of certain rights of war which the law of +nations gives to the contending parties, against neutrals. For +instance: Suppose Spain and Mexico were at war. Well, you would say, +what is that to us? It is this to us. On the high seas, a naval vessel +of either power has a right, in pursuit of its designs against the +enemy, to interrupt the commerce of other nations to a certain extent. +It has a right of visitation and of search of vessels that apparently +carry our flag. Why? In order to see whether the vessel be really our +vessel, or whether our flag covers the vessel of its enemy, or the +property of its enemy. It has also a right to push its inquiries +farther, and if it finds it to be a vessel of the United States of +America, to see whether we are carrying what are called contraband of +war into the ports of its enemy; and, if so, to confiscate it and her. +Each of the powers has a right to blockade the ports of the other, and +thus to break up the trade and pursuits of the people of other +nations--and that without any quarrel with the other people. And so you +see, by the law of nations, this state of war, which might, at first, +seem to be only a quarrel between the two contending parties, really +becomes, collaterally, and, in some cases, to a most important extent, +a matter of interest to other nations of the globe. But however much we +suffer--however much we are embarrassed (as, for example, in the +extreme injury to British commerce and British interests now inflicted +in this country--the blockade keeping out their shipping, and +preventing shipments of cotton to carry on their industry)--we must +submit, as the English people submit, in the view their Government has +chosen to take of these transactions. + +Now, gentlemen, this being the law of nations, you will perceive that, +as there is no human earthly superior, so there are no Courts that can +lay down the law, as our Courts do for our people, or as the Courts of +England do for their people. There are no Courts that can lay down the +law of nations, so as to bind the people of another country, except so +far as the Courts of that country, recognizing the sound principles of +morality, humanity and justice obtaining in the government and conduct +of nations towards each other, adopt them in their own Courts. So, when +my learned friends speak of the law of nations as being the law that is +in force here, and that may protect these prisoners in this case +against the laws of the United States of America, why, they speak in +the sense of lawyers, or else in a sense that will confuse your minds, +that is to say, that the law of nations, as the Court will expound and +explain it, has or has not a certain effect upon what would be +otherwise the plain behests of the statute law. + +Now, it is a part of the law of nations, except so far as between +themselves they shall modify it by treaty--(two instances of which I +have read in the diplomacy of our own country, and a most extensive +instance of which is to be found in the recent treaty of Paris, whereby +the law of nations, in respect to privateering, has been so far +modified as to exclude privateering as one of the means of +war)--outside of particular arrangements made by civilized nations, it +was a part of the original law of war prevailing among nations, that +any nation engaged in war might fit out privateers in aid of its +belligerent or warlike purposes or movements. No difficulty arose about +this when war sprang up between two nations that stood before the world +in their accredited and acknowledged independence. If England and +France went to war, or if England and the United States, as in 1812, +went to war, this right of fitting out privateers would obtain and be +recognized. But, there arises, in the affairs of nations, a condition +much more obscure and uncertain than this open war between established +powers, and that is, when dissension arises in the same original +nation--when it proceeds from discontent, sedition, private or local +rebellion, into the inflammation of great military aggression; and when +the parties assume, at least, (assume, I say), to be rightfully +entitled to the position of Powers, under the law of nations, warring +against one another. The South American States, in their controversy +which separated them from the parent country, and these States, when +they were Colonies of Great Britain, presented instances of these +domestic dissensions between the different parts of the same +Government, and the rights of war were claimed. Now, what is the duty +of other nations in respect to that? Why, their duty and right is +this--that they may either accord to these struggling, rebellious, +revolted populations the rights of war, so far as to recognize them as +belligerents, or not; but, whether they will do so, or not, is a +question for their Governments, and not for their Courts, sitting under +and by authority of their Governments. For instance, you can readily +see that the great nations of the earth, under the influences upon +their commerce and their peace which I have mentioned, may very well +refuse to tolerate the quarrel as being entitled to the dignity of war. +They may say--No, no; we do not see any occasion for this war, or any +justice or benefit that is to be promoted by it; we do not see the +strength or power that is likely to make it successful; and we will not +allow a mere attempt or effort to throw us into the condition of +submitting to the disturbance of the peace, or the disturbance of the +commerce of the world. Or, they may say--We recognize this right of +incipient war to raise itself and fairly contend against its previous +sovereign--not necessarily from any sympathy, or taking sides in it, +but it is none of our affair; and the principles of the controversy do +not prevent us from giving to them this recognition of their supposed +rights. Now, when they have done that, they may carry their recognition +of right and power as far as they please, and stop where they please. +They may say--We will tolerate the aggression by public armed vessels +on the seas, and our vessels shall yield the right of visitation and +search to them. They may say--We will extend it so far as to include +the right of private armed vessels, and the rights of war may attend +them; or they may refuse to take this last step, and say--We will not +tolerate the business of privateering in this quarrel. And, whatever +they do or say on that subject, their Courts of all kinds will follow. + +Apply this to the particular trouble in our national affairs that is +now progressing to settle the fate of this country. France and England +have taken a certain position on this subject. I do not know whether I +accurately state it (and I state it only for the purpose of +illustration, and it is not material), but, as I understand it, they +give a certain degree of belligerent right, so that they would not +regard the privateers on the part of the Southern rebellion as being +pirates, but they do not accord succor or hospitality in their ports to +such privateers. Well, now, suppose that one of these privateers +intrudes into their ports and their hospitalities, and claims certain +rights. Why, the question, if it comes up before a Court in Liverpool +or London, will be--Is the right within the credit and recognition +which our Government has given? And only that. So, too, our Government +took the position in regard to the revolting States of South America, +that it would recognize them as belligerents, and that it would not +hang, as pirates, privateers holding commissions from their authority. +But, when other questions came up, as to whether a particular authority +from this or that self-styled power should be recognized, our +Government frowned upon it, and would not recognize it. With regard to +Captain Aury, who styled himself Generalissimo of the Floridas, or +something of that kind, when Florida was a Spanish province, our Courts +said--We do not know anything about this--his commissions are good for +nothing here--our Government has not recognized any such contest or +incipient nationality as this. So, too, in another case, where there +was an apparent commission from one struggling power, the Court +say--Our Government does not recognize that power, and we do not, in +giving any rights of war to it; but, the Court say, it appears in the +proof that this vessel claims to have had a commission from Buenos +Ayres, another contending power; if so, that is a power which our +Government recognizes; and the case must go down for further proof on +that point. + +I confess that, if the views of my learned friends are to prevail, in +determining questions of crime and responsibility under the laws and +before the Court, and are to be accepted and administered, I do not see +that there is any Government at all. For you have every stage of +Government: first, Government of right; next, a Government in fact; +next, a Government trying to make itself a fact; and, next, a +Government which the culprit thinks ought to be a fact. Well, if there +are all these stages of Government, and all these authorities and +protections, which may attend the acts of people all over the world, I +do not see but every Court and every Jury must, finally, resolve itself +into the great duty of searching the hearts of men, and putting its +sanctions upon pure or guilty secret motives, or notions, or +interpretations of right and wrong--a task to which you, gentlemen of +the Jury, I take it, feel scarcely adequate. + +Now, gentlemen, I have perhaps wearied you a little upon this subject; +because it is from some confusion in these ideas,--first, of what the +law of nations permits a Government to do, and how it intrudes upon and +qualifies the laws of that Government; and, second, upon what the +rights are that grow out of civil dissensions, as towards neutral +powers,--that some difficulty and obscurity are introduced into this +case. + +If the Court please, I maintain these propositions, in conformity with +the views I have heretofore presented--first, that the law of the land +is to determine whether this crime of piracy has been committed, +subject only to the province of the Jury in passing upon the facts +attending the actual perpetration of the offence; and, second, upon all +the questions invoked to qualify, from the public relations of the +hostile or contending parties in this controversy, the attitude that +this Government holds towards these contending parties, is the attitude +that this Court, deriving its authority from this Government, must +necessarily hold towards them. + +I have argued this matter of the choice and freedom of a Government to +say how it will regard these civil dissensions going on in a foreign +nation, as if it had some application to this controversy, in which we +are the nation, and this Court is the Court of this nation. + +But, gentlemen, the moment I have stated that, you will see that there +is not the least pretence that there is any dispensing power in the +Court, or that there has been any dispensing power exercised by our +Government, or that there has been any pardon, or any amnesty, or any +proclamation, saving from the results of crime against our laws, any +person engaged in these hostilities, who at any time has owed +allegiance and obedience to the Government of the United States. +Therefore, here we stand, really extricated from all the confusion, and +from all the wideness of controversy and of comment that attends these +remote considerations of this case, that have been pressed upon your +attention as if they were the case itself, on the part of our learned +friend. + +Now, if the Court please, I shall bestow some particular consideration +upon the statute, but I shall think it necessary to add very little to +the remarks I have heretofore made to the Court. The 8th section of the +statute has been characterized by the learned counsel, and, certainly, +with sufficient accuracy, for any purposes of this trial, as limited to +the offence of piracy as governed by the law of nations. I do not know +that any harm comes from that description, if we do not confuse it with +the suggestion that the authority of this Government over the crime is +limited to the construction of the law of nations which is expressed in +that section of the statute. At all events, as they concede, I believe, +that the 8th section is within the constitutional right and power of +Congress, under the special clause giving them authority to define and +punish piracy, under the law of nations, there is no room for +controversy here on the point. When we come to the 9th section, we have +two different and quite inconsistent views presented by the different +counsel. One of the counsel (I think, Mr. Dukes) insists that the 9th +section does not create any additional crime beyond that of piracy as +defined in the 8th section, but only robs that crime of piracy of any +apparent protection from a commission or authority from any State. But, +my friend Mr. Brady contends (and, I confess, according to my notion of +the law, with more soundness) that there is an additional crime, which +would not be embraced, necessarily, in the crime of piracy or robbery +on the high seas--which is the whole purview of the 8th section, and +which is in terms repeated in the 9th--and that the additional words, +"or any act of hostility against the United States, or any citizens +thereof," create a punishable offence, although it may fall short of +the completed crime of piracy and robbery, as defined. Now, I concede +to my learned friend that the particular case he put of a quarrel +between two ships' crews on the high seas, and of an attack by one of +the crew of one upon one of the crew of the other with a belaying pin, +would not, in my judgment, as an indictable, punishable offence, fall +within the 9th section. But, whether I am right or wrong about it, it +does not impede the argument of the Government, that there are crimes +which are in the nature of and up to the completeness of hostile +attacks upon vessels or citizens of the United States which would not +be piracy, but yet are punishable under the 9th section. + +Now, agreeing, thus far, that there is an added offence to the crime of +piracy in the 9th section, I am obliged to meet his next proposition, +that such additional offence is beyond the constitutional power of +Congress, because it is an offence which does not come up to the crime +of piracy, and, therefore, exceeds the grant of authority under the +particular section of the Constitution which gives to Congress power +over the definition and punishment of piracy under the law of nations. + +Now, if the Court please, the argument is a very simple one. This 9th +section does not profess to carry the power of this Government where +alone the principles of the law of nations would justify; that is, to +operate upon all the world, so far as the subjects of it--that is, the +persons included in its sanctions--are concerned, or so far as the +property protected by it is concerned. It is limited to citizens, and +limited to hostilities against citizens of the United States, or their +property at sea. Now, the authority in respect to this comes to +Congress under the provision of the Constitution which gives the +regulation of commerce and its control, in regard to which I need not +be more particular to your Honors, because there are statutes of +every-day enforcement, and under the highest penalty, too, of the law, +such as revolt, mutiny, &c., which have nothing to do with the national +considerations of the law of piracy, and nothing to do with the clause +of the Constitution which gives to Congress power over the crime of +piracy, but rest in the power reposed in Congress to protect the +commerce of the United States. So, this is wholly within the general +competency of Congress to govern citizens of the United States on the +high seas, and to protect the property of citizens on the high seas, +although there is no common law of general jurisdiction of Congress on +the subject of crimes. + +Now, upon this subject there is but one other criticism, and that +is--that although the statute is framed with the intent, and its +language covers the purpose, of prohibiting any defence or protection +being set up under an assumed or supposed authority from any foreign +Government, State, or Prince, or from any person, yet the particular +authority which is averred in the indictment and produced in proof, if +you take it in the sense that we give to it, is not within the purview +of the statute, and, if you take it in any other sense, is not proved; +and that thus a variance arises between the indictment and the proof, +because the proof goes so far as to remove from under the statute the +four defendants who would otherwise be amenable as citizens, by making +the Government foreign, and making them foreign citizens. Now, to take +up one branch of this at a time, I do not care at all whether the +Government of the United States, when they passed this law, anticipated +that there ever would be an occurrence which would give shape to such a +commission as this, from either a person or an authority that emanated +from what was or ever had been a part or a citizen of the United +States. If these new occurrences here have produced new relations--(and +that is the entire argument of my learned friends, for, if they have +produced no new relations, what have we to do with any of these +discussions?)--if they have produced new relations, perfect or +imperfect, effectual or ineffectual, to this or that extent, why then, +if these new relations and attitude have brought this matter within the +purview of a statute of the United States which was framed to meet all +relations that might arise at any time, they come within its +predicament, and the argument seems to me to amount to nothing. It will +not be pretended that the 9th section of this statute can only be +enforced as to Powers in existence at the time it was passed. Whenever +a new Power or new authority is set forth as a protection to the crime +of piracy, the 9th section of the statute says: "Well, we do not know +or care anything about what the law of nations says about your +protection, or your authority--we say that no citizen of the United +States, depredating against our commerce, shall set up any authority to +meet the justice of our criminal law." Well, now, that the statute has +said; and we have averred and proved the commission such as it is. It +is either the commission of a foreign Prince, or State, or it is an +authority from some person. We do not recognize it as from a foreign +State or Prince. Indeed, Mr. Davis does not call himself a Prince, and +we do not recognize the Confederate States as a nation or State, in any +relation. Therefore, if we would prove this authority under our law, we +must aver it as it is, coming from an individual who was once a citizen +of the United States, and still is, as the law decides, a citizen of +the United States. Whatever port or pretension of authority he assumes, +and whatever real fact and substance there may be to his power, it is, +in the eye of the law, nothing. It is not provable, and it is not +proved. + +Now, as to the right of Congress to include the additional crime, under +the authority given to it to punish piracy according to the law of +nations, my learned friend contends that this statute is limited by +that authority, and is, as respects anybody within its purview, +unconstitutional, and that, although a particular act may be within the +description of the statute, so far as regards hostility, it is not +piracy. On that subject I refer your Honors to a very brief proposition +contained in the case of _The United States_ v. _Pirates (5 Wheaton, +202)_: + + "And if the laws of the United States declare those acts of piracy + in a citizen, when committed on a citizen, which would be only + belligerent acts when committed on others, there can be no reason + why such laws should not be enforced. For this purpose the 9th + section of the Act of 1790 appears to have been passed. And it + would be difficult to induce this Court to render null the + provisions of that clause, by deciding either that one who takes a + commission under a foreign power, can no longer be deemed a + citizen, or that all acts committed under such a commission, must + be adjudged belligerent, and not piratical acts." + +I would also refer to the case of _The Invincible_, to which my learned +friend called the attention of the Court, in the opinion of the late +Attorney-General, Mr. Butler. It is to be found in the 3d volume of the +_Opinions of the Attorney-Generals_, page 120. My learned friend cited +this case in reference to the proposition that persons holding a +commission (as I understood him) should not be treated as pirates, +under the law of nations, by reason of any particular views or opinions +of our Government. I refer to that part of the opinion where he says: +"A Texan armed schooner cannot be treated as a pirate under the Act of +April 30th, 1790, for capturing an American merchantman, on the alleged +ground that she was laden with provisions, stores, and munitions of war +for the use of the army of Mexico, with the Government of which Texas, +at the time, was in a state of revolt and civil war." + +Now, undoubtedly, Mr. Butler does here hold that, by the law of +nations, in a controversy between revolting Colonies and the parent +State, where our Government recognizes a state of war as existing, a +privateer cannot be treated as a pirate. But we will come to the +opinion of the Attorney-General on the other proposition we contend +for--that is, in support of the 9th section of the statute, as far as +it would have exposed citizens of the United States to the penalty of +piracy: + + "In answer to this question, I have the honor to state that, in my + opinion, the capture of the American ship _Pocket_ can in no view + of it be deemed an act of piracy, _unless it shall appear that the + principal actors in the capture were citizens of the United + States_. The ninth section of the Crimes Act of 30th April, 1790, + declares 'that if any citizen shall commit any piracy or robbery, + or any act of hostility against the United States, or any citizen + thereof, upon 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.' + This provision is yet in force, and _should it be found that any of + those who participated in the capture of the Pocket are American + citizens, the flag and commission of the Government of Texas would + not protect them from the charge of piracy_." + +It will be seen here, that the condition of belligerents will not +protect our citizens from aggressions against our commerce; and there +is no place for my learned friends to put this authority, and this +assumed belligerent power and right, on any footing that must not make +it, either actually or in pretence, at least, proceed from a separate +contending power. And, if they say, (as, in one of their points +substantially is said,) that the 9th section cannot apply, because the +alleged authority is not from a foreign State, or a foreign personage, +but from a personage of our own country,--why, then, we are thrown back +at once to the 8th section entirely, and there is either no pretence of +authority at all, and it is just like arguing that the pirate accused +was authorized by the merchant owner of a vessel in South street, to +commit piracy, or we are put in the position, which is unquestionably +the true one, that the 9th section was intended to cover all possible +although unimagined forms in which the justice of the country could be +attempted to be impeded under the claim of authority. + +Now, gentlemen, if the Court please, I come to a consideration of the +political theories or views on which these prisoners are sought to be +protected against the penalties of this law. In that argument, as in my +argument, it must be assumed that these penalties, but for those +protections, would be visited upon them; for we are not to be drawn +hither and thither by this inquiry, and to have it said, at one time, +that the crime itself, in its own nature, is not proved, and, at +another time, that, if it be proved, these are defences. I have said +all I need to say, and all I should say, about the crime itself. The +law of the case on that point will be given to you by the Court, and, +if it should be, as I suppose it must, in accordance with that laid +down by the Court in the Circuit of Pennsylvania, then, as my learned +friend Mr. Brady has said of that, that he could not see how the Jury +could find any verdict but guilty, it necessarily follows, if that is a +sound view of the law, that you cannot find any other verdict but +guilty. I proceed, therefore, to consider these other defences which +grow out of the particular circumstances of the piracy. + +Now, there are, as I suggested, three views in which this subject of +the license, or authority, or protection against our criminal laws in +favor of these prisoners, is urged, from their connection with +particular occurrences disclosed in the evidence. One is, that they are +privateers; but I have shown you that, to be privateers, their +commission must come from an independent nation, or from an incipient +nation, which our Government recognizes as such. Therefore, they fail +entirely to occupy that explicit and clear position, under the law of +the land, and the law of nations. But, as they say, they are privateers +either of a nation or a Power that exists, as the phrase is, _de +jure_,--that has a right, the same as we, or England, or France,--or of +a Power that has had sufficient force and strength to establish itself, +as matter of fact. Without considering the question of right, as +recognized under the system of nations, they contend, and with a great +deal of force and earnestness, in the impression of their views upon +the Jury, and great skill and discretion in handling the matter,--they +contend that there is a state of civil war in this country, and that a +state of civil war gives to all nations engaged in it, against the +Government with which they are warring, rights of impunity, of +protection, of respect, of regard, of courtesy, which belong to the +laws of war; and that, without caring to say whether they are a +Government, or ever will be a Government, so long as they fight, they +cannot be punished. + +That is the proposition,--there is nothing else to it. They come down +from the region of _de jure_ Government and _de facto_ Government, and +have nothing to prove but the rage of war on the part of rebels, in +force enough to be called war. Then they say that, by their own act, +they are liberated from the laws, and from their duty to the laws, +which would otherwise, they admit, have sway over them, and against +which they have not as yet prevailed. That is the proposition. + +Another proposition, on which they put themselves, is that whatever may +be the law, and whatever the extent of the facts, if any of these +persons believed that there was a state of war, rightful to be +recognized, and believed, in good faith, that they were fighting +against the United States Government, they had a right to seize the +property of United States' citizens; and that, if they believed that +they constituted part of a force co-operating, in any form or effect, +with the military power which has risen up against the United States of +America, then, so long as they had that opinion, they, by their own +act, and their own construction of their own act, impose the law upon +this Government, and upon this Bench, and upon this Jury, and compel +you to say to them that if, in taking, in a manner which would have +been robbery, this vessel, the Joseph, they were also fighting against +the United States of America, they have not committed the crime of +piracy. + +Now, if the Court please, and gentlemen of the Jury, let us, before we +explore and dissect these propositions,--before we discover how utterly +subversive they are of any notions of Government, of fixity in the +interpretation of the law, or certainty in the enforcement of it,--let +us see what you will fairly consider as being proved, as matter of +fact, concerning the condition of affairs in this country. Let us see +what legal discrimination or description of this state of things is +likely to be significant and instructive, in determining the power and +authority of the Government, and the responsibility of these +defendants. They began with an Ordinance of South Carolina, passed on +the 20th of December of last year, which, in form and substance, simply +annulled the Ordinance of that State with which, as they say, they +ratified or accepted the Constitution of the United States. They then +went on with similar proceedings on the part of the States of Georgia, +Alabama, Mississippi, and Florida, showing the establishment and +adoption of a Provisional Constitution, by which they constituted and +called themselves the Confederate States of America. They proved, then, +the organization of the Government, the election of Mr. Davis and Mr. +Stephens as President and Vice-President, and the appointment of +Secretaries of War, and of the Navy, and other portions of the civil +establishment. They proved, then, the occurrences at Fort Sumter, and +gave particular evidence of the original acts at Charleston--the firing +on the Star of the West, and the correspondence which then took place +between Major Anderson and the Governor of South Carolina. They then +went on to prove the evacuation of Fort Moultrie; the storming of Fort +Sumter; the Proclamation of the President of the United States, of the +15th of April, calling for 75,000 troops; Mr. Davis' Proclamation, of +the 17th of April, inviting privateers; and then the President's +Proclamation, of the 19th of April, denouncing the punishment of piracy +against privateers, and putting under blockade the coasts of the +revolted States. The laws about privateering passed by what is called +the Confederate Government, have, also, been read to you; and this +seems to complete the documentary, and constitutional, and statutory +proceedings in that disaffected portion of the country. But what do the +prisoners prove further? That an actual military conflict and collision +commenced, has proceeded, and is now raging in this country, wherein we +find, not one section of the country engaged in a military contest with +another section of the country--not two contending factions, in the +phrase of Vattel, dividing the nation for the sake of national +power--but the Government of the United States, still standing, without +the diminution of one tittle of its power and dignity--without the +displacement or disturbance of a single function of its executive, of +its legislative, of its judicial establishments--without the +disturbance or the defection of its army or its navy--without any +displacement in or among the nations of the world--without any retreat, +on its part, or any repulsion, on the part of any force whatever, from +its general control over the affairs of the nation, over all its +relations to foreign States, over the high seas, and over every part of +the United States themselves, in their whole length and breadth, except +just so far as military occupation and military contest have controlled +the peaceful maintenance of the authority and laws of the Government. + +Now, this may be conceded for all sides of the controversy. I do not +claim any more than these proofs show, and what we all know to be true; +and I am but fair in conceding that they do show all the proportions +and extent which make up a contest by the forces of the nation, as a +nation, against an armed array, with all the form and circumstances, +and with a number and strength, which make up military aggression and +military attack on the part of these revolting or disaffected +communities, or people. + +Now, some observations have been made, at various stages of this +argument, of the course the Government has taken in its declaration of +a blockade, and in its seizure of prizes by its armed vessels, and its +bringing them before the Prize Courts; and my learned friend, Mr. +Brady, has done me the favor to allude to some particular occasion on +which I, on behalf of the Government, in the Admiralty Court, have +contended for certain principles, which would lead to the judicial +confiscation of prizes, under the law of the land, or under the law of +nations adopted and enforced as part of the law of the land. Well, now, +gentlemen, I understand and agree that, for certain purposes, there is +a condition of war which forces itself on the attention and the duty of +Governments, and calls on them to exert the power and force of war for +their protection and maintenance. And I have had occasion to +contend--and the learned Courts have decided--that this nation, +undertaking to suppress an armed military rebellion, which arrays +itself, by land and by sea, in the forms of naval and military attack, +has a right to exert--under the necessary principles which control and +require the action of a nation for its own preservation, in these +circumstances of danger and of peril--not only the usual magisterial +force of the country--not only the usual criminal laws--not only such +civil posses or aids to the officers of the law as may be obtained for +their assistance--but to take the army and the navy, the strength and +the manhood of the nation, which it can rally around it, and in every +form, and by every authority, human and divine, suppress and reduce a +revolt, a rebellion, a treason, that seeks to overthrow this Government +in, at least, a large portion of its territory, and among a large +portion of its people. In doing so, it may resort--as it has +resorted--to the method of a warlike blockade, which, by mere force of +naval obstruction, closes the harbors of the disaffected portion of the +country against all commerce. Having done that, it has a right, in its +Admiralty Courts, to adjudicate upon and condemn as prizes, under the +laws of blockade, all vessels that shall seek to violate the blockade. +Nor, gentlemen, have I ever denied--nor shall I here deny--that, when +the proportions of a civil dissension, or controversy, come to the port +and dignity of war, good sense and common intelligence require the +Government to recognize it as a question of fact, according to the +actual circumstances of the case, and to act accordingly. I, therefore, +have no difficulty in conceding that, outside of any question of law +and right--outside of any question as to whether there is a Government +down there, whether nominal or real, or that can be described as having +any consistency of any kind, under our law and our Government--there is +prevailing in this country a controversy, which is carried on by the +methods, and which has the proportions and extent, of what we call war. + +War, gentlemen, as distinguished from peace, is so distinguished by +this proposition--that it is a condition in which force on one side and +force on the other are the means used in the actual prosecution of the +controversy. Now, gentlemen, if the Court please, I believe that that +is all that can be claimed, and all that has been claimed, on behalf of +these prisoners, in regard to the actual facts, and the condition of +things in this country. And I admit that, if this Government of ours +were not a party to this controversy,--if it looked on it from the +outside, as England and France have done,--our Government would have +had the full right to treat these contending parties, in its Courts and +before its laws, as belligerents, engaged in hostilities, as it would +have had an equal right to take the opposite course. Which course it +would have taken, I neither know, nor should you require to know. + +But, I answer to the whole of this, if the Court please, that it is a +war in which the Government recognizes no right whatever on the part of +the persons with whom it is contending; and that, in the eye of the +law, as well as in the eye of reason and sound political morality, +every person who has, from the beginning of the first act of levying +war against the United States until now, taken part in this war, +actively and effectively, in any form--who has adhered to the +rebels--who has given aid, information, or help of any kind, wherever +he lives, whether he sends it from New Hampshire or New York, from +Wisconsin or from Baltimore--whether he be found within or without the +armed lines--is, in his own overt actions, or open espousal of the side +of this warring power, against the Government of the United States, a +traitor and a rebel. I do not know that there is any proposition +whatever, of law, or any authority whatever, that has been adduced by +my learned friends, in which they will claim, as matter of law, that +they are not _rebels_. I invited the attention of my learned friends, +as I purposed to call that of the Court, to the fact, that the +difficulty about all this business was, that the plea of authority or +of war, which these prisoners interposed against the crime of piracy, +was nothing but a plea of their implication in treason. I would like to +hear a sober and solemn proposition from any lawyer, that a Government, +as matter of law, and a Court, as matter of law, cannot proceed on an +infraction of a law against violence either to person or property, +instead of proceeding on an indictment for treason. The facts proved +must, of course, maintain the personal crime; and there are many +degrees of treason, or facts of treason, which do not include violent +crime. But, to say that a person who has acted as a rebel cannot be +indicted as an assassin, or that a man who has acted, on the high seas, +as a pirate, if our statutes so pronounce him, cannot be indicted, +tried and convicted as a pirate, because he could plead, as the shield +of his piracy, that he committed it as part of his treason, is, to my +apprehension, entirely new, and inconsistent with the first principles +of justice. + +Now, this very statute of piracy is really a general Crimes Act. The +first section is: + + "If any person or persons owing allegiance to the United States of + America shall levy war against them, or shall adhere to their + enemies, giving them aid and comfort within the United States, or + elsewhere, and shall be thereof convicted," "such person or persons + shall be adjudged guilty of treason against the United States, and + shall suffer death." + +Now, you will observe that treason is not a defence against piracy; nor +is good faith in treason a defence against treason, or a defence +against piracy. What would be the posture of these prisoners, if, +instead of being indicted for piracy, they were indicted for treason? +Should we then hear anything about this notion that there was a war +raging, and that they were a party engaged in the war? Why, that is the +very definition of treason. Against whom is the war? Against the United +States of America. Did you owe allegiance to the United States of +America? Yes, the citizens did; and I need not say to you, gentlemen, +that those residents who are not citizens owe allegiance. There is no +dispute about that. Those foreigners who are living here unnaturalized +are just as much guilty of treason, if they act treasonably against the +Government, as any of our own citizens can be. That is the law of +England, the law of treason, the necessary law of civilized +communities. If we are hospitable, if we make no distinction, as we do +not, in this country, between citizens, and foreigners resident here +and protected by our laws, it is very clear we cannot make any +distinction when we come to the question of who are faithful to the +laws. So, therefore, if they were indicted for treason, what would +become of all this defence? It would be simply a confession in open +Court that they were guilty of treason. Well, then, if they fell back +on the proposition,--"We thought, in our consciences and judgments, +that either these States had a right to secede, or that they had a +right to carry on a revolution; that they were oppressed, and were +entitled to assert themselves against an oppressive Government, and we, +in good faith, and with a fair expectation of success, entered into +it,"--what would become of them? The answer would be, "Good faith in +your attempt to overthrow the Government, does not excuse you from +responsibility for the crime of attempting it." Our statute is made for +the purpose of protecting our Government against efforts made, in good +faith or in bad faith, for its overthrow. + +And now, in this connection, gentlemen, as your attention, as well as +that of the Court, has been repeatedly called to it, let me advert +again to the citation from that enlightened public writer, Vattel, who +has done as much, perhaps, as our learned friends have suggested, to +place on a sure foundation the amelioration of the law of nations in +time of war, and their intercourse in time of peace, as any writer and +thinker whom our race has produced. You remember, that he asks--How +shall it be, when two contending factions divide a State, in all the +forms and extent of civil war--what shall be the right and what the +duty of a sovereign in this regard? Shall he put himself on the pride +of a king, or on the flattery of a courtier, and say, I am still +monarch, and will enforce against every one of this multitude engaged +in this rebellion the strict penalties of my laws? Vattel reasons, and +reasons very properly: You must submit to the principles of humanity +and of justice; you must govern your conduct by them, and not proceed +to an extermination of your subjects because they have revolted, +whether with or without cause. You must not enforce the sanctions of +your Government, or maintain its authority, on methods which would +produce a destruction of your people. And you must not further, by +insisting, under the enforced circumstances which surround you, on the +extreme and logical right of a king, furnish occasion for the +contending rebels, who have their moments of success and power, as well +as you, to retaliate on your loyal people, victims of their struggle on +your behalf, and thrown into the power of your rebellious subjects,--to +retaliate, I say, on them the same extreme penalties, without right, +without law, but by mere power, which you have exerted under your claim +of right. + +And now, gentlemen of the Jury, as the Court very well understands, +this general reasoning, which should govern the conduct of a Sovereign, +or of a Government, against a mere local insurrection, does not touch +the question as to whether the law of the nation in which the Sovereign +presides, and in violation of which the crime of the rebels has been +perpetrated, shall be enforced. 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. And, I should like to know why these learned +counsel, who are seeking to interpose, as a legal defence on the part +of a criminal, the principles of policy and mercy which should guide +the Government, are disposed to insist that this Government, in its +prosecutions and its trials, has shown a disposition to absolve great +masses of criminals from the penalties of its laws. I should like to +know, when my learned friend Mr. Brady, near the close of his remarks, +suggested that there had been no trial for treason, whether this +Government, from the first steps in the outbreak, down to the final and +extensive rage of the war, has not foreborne to take satisfaction for +the wrongs committed against it, and has not been disposed to carry on +and sustain the strength of the Government, without bloody sacrifices +for its maintenance, and for the offended justice of the land. But it +is certainly very strange if, when a Government influenced by those +principles of humanity of which Vattel speaks, and which my learned +friends so much insist upon, has foreborne, except in signal instances, +or, if you please, in single instances that are not signal, to assert +the standard of the law's authority and of the Government's +right,--that it may be seen that the sword of justice, although kept +sheathed for the most part, has yet not rusted in its scabbard, and +that the Government is not faithless to itself, or to its laws, its +powers, or its duties, in these particular prosecutions that have been +carried, one to its conclusion, in Philadelphia, and the other to this +stage of its progress, here,--it is strange, indeed, that the appeal is +to be thrust upon it--"Do not include the masses of the misguided men!" +and, when it yields so mercifully to that appeal, and says--"I will +limit myself to the least maintenance and assertion of a right," that +the answer is to come back: "Why, how execrable--how abominable, to +make distinctions of that kind!" + +But, gentlemen, the mercy of the Government, as I have said to you, +remains after conviction, as well as in its determination not to press +numerous trials for treason; but it is an attribute, both in forbearing +to try and in forbearing to execute, which is safely left where the +precedents that are to shape the authority of law cannot be urged +against its exercise. Now, I look upon the conduct and duty of the +Government on somewhat larger considerations than have been pressed +before you here. The Government, it is said, does not desire the +conviction of these men, or, at least, should not desire it. The +Government does not desire the blood of any of its misguided people. +The Government--the prosecution--should have no passion, no +animosities, in this or in any other case; and our learned friends have +done us the favor to say that the case is presented to you as the law +should require it to be; that you, and all, are unaffected and +unimpeded in your judgment; and that, with a full hearing of what could +be said on the part of these criminals, you have the case candidly and +openly before you. + +Now, gentlemen, the Government, although having a large measure of +discretion, has no right, in a country where the Government is one +wholly of law, to repeal the criminal law, and no right to leave it +without presenting it to the observation, the understanding, and the +recognition of all its citizens, whether in rebellion or not, in its +majesty, in its might, and in its impartiality. The Government has +behind it the people, and it has behind it all the great forces which +are breathing on our agitated society, all the strong passions, all the +deep emotions, all the powerful convictions, which impress the loyal +people of this country as to the outrage, as to the wickedness, as to +the perils of this great rebellion. Do you not recollect how, when the +proclamation of Mr. Davis invited marauders to prey upon our commerce, +from whatever quarter and from whatever motives--(patriotism and duty +not being requisite before they would be received)--the cry of the +wounded sensibilities of a great commercial people burst upon this +whole scene of conflict? What was there that as a nation we had more to +be proud of, more to be glad for in our history, than our flag? To +think that in an early stage of what was claimed to be first a +constitutional, and then a peaceful, and then a deliberate political +agitation and maintenance of right, this last extreme act, the arming +of private persons against private property on the sea, was appealed to +before even a force was drawn on the field on behalf of the United +States of America! The proclamation of the President was but two days +old when privateers were invited to rush to the standard. The +indignation of the community, the sense of outrage and hatred was so +severe and so strong, that at that time, if the sentiment of the people +had been consulted, it would have found a true expression in what was +asserted in the newspapers, in public speeches, in private +conversations--that the duty of every merchantman and of every armed +vessel of the country, which arrested any of these so-called +privateers, under this new commission, without a nation and without +authority, was, to treat them as pirates caught in the act, and execute +them at the yard-arm by a summary justice. + +Well, I need not say to you, gentlemen, that I am sure you and I and +all of us would have had occasion to regret, in every sense, as wrong, +as violent, as unnecessary, and, therefore, as wholly unjustifiable, on +the part of a powerful nation like ourselves, any such rash execution +of the penalties of the law of nations, and of the law of the land, +while our Government had power on the sea, had authority on the land, +had Courts and laws and juries under its authority to inquire and look +into the transaction. + +The public passions on this subject being all cool at this time, after +an interval of four months or more from the arrest, we are here trying +this case. Yet my learned friends can find complaint against the mercy +of the Government and its justice, that it brings any prosecution; and +great complaint is made before you, without the least ground or cause, +as it seems to me, that the prosecution is pressed in a time of war, +when the sentiments of the community are supposed to be inflamed. + +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. The promptness of the judicial and +prosecuting authorities here had produced this indictment in the month +of June, I believe, the very month in which the prisoners were +arrested, or certainly early in July; and then the Government was ready +to proceed with the trial, so far as I am advised. But, at any rate, an +application--a very proper and necessary application--was made by our +learned friends, that the trial should be postponed till, I believe, +the very day on which it was brought on. That application was not +objected to, was acquiesced in, and the time was fixed, and no further +suggestion was made that the prisoners desired further delay; and, if +the Government had undertaken to ask for further delay, on the ground +of being unprepared, there was no fact to sustain any such application. +If it was the wish of the prisoners, or for their convenience, that +there should be further delay, it was for them to suggest it. But, +being entitled by the Constitution to a speedy as well as an impartial +trial, and the day being fixed by themselves on which they would be +ready, and they being considered ready, and no difficulty or +embarrassment in the way of proof having been suggested on the part of +the Government, it seems to me very strange that this regret should be +expressed, unless it should take that form of regret which all of us +participate in, that the war is not over. That, I agree, is a subject +of regret. But how there has ever been any pressure, or any--the +least--exercise of authority adverse to their wishes in this matter, it +is very difficult for me to understand. + +Now, gentlemen, I approach a part of this discussion which I confess I +would gladly decline. I have not the least objection--no one, I am +sure, can feel the least objection--to the privilege or supposed duty +of counsel, who are defending prisoners on a grave charge,--certainly +not in a case which includes, as a possible result, the penalty of +their client's lives,--to go into all the inquiries, discussions and +arguments, however extensive, varied, or remote, that can affect the +judgment of the Jury, properly or fairly, or that can rightly be +invoked. But, I confess that, looking at the very interesting, able, +extensive and numerous arguments, theories and illustrations, that have +been presented in succession by, I think, in one form or another, seven +counsel for these prisoners, as the introduction into a judicial forum, +and before a Jury, of inquiries concerning the theories of Government, +the course of politics, the occasion of strife on one side or the +other, within the region of politics and the region of peace, in any +portion of the great communities that composed this powerful nation--in +that point of view, I aver, they seem to me very little inviting and +instructive, as they certainly are extremely unusual in forensic +discussions. Certainly, gentlemen of the Jury, we must conceive some +starting point somewhere in the stability of human affairs, as they are +entrusted to the control and defence of human Governments. But, in the +very persistent and resolute views of the learned counsel upon this +point--first on the right of secession as constitutional; second, if +not constitutional, as being supposed by somebody to be constitutional; +third, on the right of revolution as existing on the part of a people +oppressed, or deeming themselves oppressed, to try their strength in +the overthrow of the subsisting Government; fourth, on the right to +press the discontents inside of civil war; and then finally and at +last, that whoever thinks the Government oppresses him, or thinks that +a better Government would suit his case, has not only the right to try +the venture, but that, unsuccessful, or at any stage of the effort, his +right becomes so complete that the Government must and should surrender +at once and to every attempt--I see only what is equivalent to a +subversion of Government, and to saying that the right of revolution, +in substance and in fact, involves the right of Government in the first +place, and its duty in the second place, to surrender to the +revolutionist, and to treat him as having overthrown it in point of +law, and in contemplation of its duty. That is a proposition which I +cannot understand. + +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. + +Now, the language of the Constitution is familiar to all of you. That +it embodies the principle of a General Government acting upon all the +States, and upon you, and upon me, and upon every one in the United +States; that it has its own established Courts--its own mandate by +which jurors are brought together--its own laws upon all the subjects +that are attributed to its authority; that there is an establishment +known as the Supreme Court, which, with the appropriate inferior +establishments, controls and finally disposes of every question of law, +and right, and political power, and political duty; and that this +adjusted system of one nation with distributed local power, is, in its +working, adequate to all the varied occasions which human life +develops--we all know. We have lived under it, we have prospered under +it, we have been made a great nation, an united people, free, happy, +and powerful. + +Now, gentlemen, it is said--and several points in our history have been +appealed to, as well as the disturbances that have torn our country for +the last year--that this complete and independent sovereignty of the +States has been recognized. Now, there have been several occasions on +which this subject has come up. The first was under the administration +of the first successor of General Washington--John Adams,--when the +famous Virginia and Kentucky resolutions had their origin. About these +one of my learned friends gave you a very extensive discussion, and +another frankly admitted that he could not understand the doctrine of +the co-ordinate, equal sovereignty of two powers within the same State. +On the subject of these Virginia resolutions, and on the question of +whether they were the recognized doctrines of this Government, I ask +your attention to but one consideration of the most conclusive +character, and to be disposed of in the briefest possible space. The +proposition of the Virginia resolutions was, that the States who are +parties to the compact have the right and are in duty bound to +interpose to arrest the progress of the evil (that is, when +unconstitutional laws are passed), and to maintain, within their +respective limits, the authority, rights, and liberties pertaining to +them. That is to say, that where any law is passed by the Congress of +the United States, which the State of Virginia, in its wise and +independent judgment, pronounces to be in excess of the constitutional +power, it is its right and duty to interpose. How? By secession? No. By +rebellion? No. But by protecting and maintaining, within its territory, +the authority, rights, and liberties pertaining to it. Now, these +resolutions grew out of what? Certain laws, one called the "Alien" and +the other the "Sedition" law, rendered necessary by the disturbances +communicated by the French revolution to this country, and which +necessarily came within the doctrine of my friend, Mr. Larocque, that +there is not the least right of secession when the laws are capable of +being the subject of judicial investigation. Well, those laws were +capable of being the subject of judicial investigation, and the +resolutions did not claim the right of secession, but of nullification. +My learned friend says that the doctrine of "secession" has no ground. + +But what was the fate of the "Virginia resolutions"? For Virginia did +not pretend that she had all the wisdom, and virtue, and patriotism of +the country within her borders. She sent these resolutions to every +State in the Union, and desired the opinion of their legislatures and +their governors on the subject. Kentucky passed similar resolutions; +and Kentucky, you will notice, had just been made a State, in 1793--an +off-shoot from Virginia; and, as the gentleman has told you, Mr. +Madison wrote the resolutions of Virginia, and Mr. Jefferson those of +Kentucky. So that there was not any great independent support, in +either State, for the views, thus identical, and thus promulgated by +these two Virginians. Their great patriotism, and wisdom, and +intelligence, are a part of the inheritance we are all proud of. But, +when the appeal was sent for concurrence to New York, South Carolina, +Georgia, Massachusetts, and the New England States, what was the +result? Why, Kentucky, in 1799, regrets that, of all the States, none, +except Virginia, acquiesced in the doctrines; and the answers of every +one of the States that made response are contained in the record which +also contains the Virginia and Kentucky resolutions. And that doctrine +there exploded, and exploded forever, until its recurrence in the shape +of nullification, in South Carolina, as part of the doctrines of this +Constitution. + +We had another pressure on the subject of local dissatisfaction, in +1812; and then the seat of discontent and heresy was New England. I do +not contend, and never did contend, in any views I have taken of the +history of affairs in this country, that the people of any portion of +it have a right to set themselves in judgment as superiors over the +people of any other portion. I never have had any doubt that, just as +circumstances press on the interests of one community or another, just +so are they likely to carry their theoretical opinions on the questions +of the power of their Government and of their own rights, and just so +to express themselves. So long as they confine themselves to +resolutions and politics, to the hustings and to the elections, nobody +cares very much what their political theories are. But my learned +friend Mr. Brady has taken the greatest satisfaction in showing, that +this notion of the co-ordinate authority of the States with the nation, +found its expression and adoption, during the war of 1812, in some of +the States of New England. Well, gentlemen, I believe that all sober +and sensible people agree that, whether or not the New England States +carried their heresies to the extent of justifying the nullification of +a law, or the revocation of their assent to the Confederacy, and their +withdrawal from the common Government, the doctrines there maintained +were not suitable for the strength and the harmony, for the unity and +the permanency, of the American Government. I believe that the +condemnation of those principles that followed, from South Carolina, +from Virginia, from New York, and from other parts of the country, and +the resistance which a large, and important, and intelligent, and +influential portion of their own local community manifested, +exterminated those heresies forever from the New England mind. + +Next, we come to 1832, and then, under the special instruction and +authority of a great Southern statesman, (Mr. Calhoun,) whose acuteness +and power of reasoning have certainly been scarcely, if at all, +surpassed by any of our great men, the State of South Carolina +undertook, not to secede, but to nullify; and yet Mr. Larocque says, +that this pet doctrine of Mr. Calhoun,--nullification, and nothing +else,--is the absurdest thing ever presented in this country; and we +are fortunate, I suppose, in not having wrecked our Union upon that +doctrine. + +Now we come, next, to the doctrine of secession. Nullification, +rejected in 1798 by all the States, except Virginia and Kentucky, and +never revived by them,--nullification, rejected by the sober sense of +the American People,--nullification was put down by the strong will of +Jackson, in 1832,--having no place to disturb the strength and hopes +and future of this country. And what do we find is the proposition now +put forward, as matter of law, to your Honors, to relieve armed and +open war from the penalties of treason, and from the condemnation of a +lesser crime? What is it, as unfolded here by the learned advocate (Mr. +Larocque), with all his acuteness, but so manifest an absurdity that +its recognition by a lawyer, or an intelligent Jury, seems almost +impossible? It is this: This Union has its power, its authority, its +laws. It acts directly upon all the individuals inside of every State, +and they owe it allegiance as their Government. It is a Government +which is limited, in the exercise of its power, to certain general and +common objects, not interfering with the domestic affairs of any +community. Within that same State there is a State government, framed +into this General Government, to be certainly a part of it in its +territories, a part of it in its population, a part of it in every +organization, and every department of its Government. The whole body of +its administration of law, the Legislature and the Executive, are +bound, by a particular oath, to sustain the Constitution of the United +States. But, although it is true that the State Government has +authority only where the United States Government has not, and that the +United States have authority only where the State has not; and although +there is a written Constitution, which says what the line of separation +is; and although there is a Supreme Court, which, when they come into +collision, has authority to determine between them, and no case +whatever, affecting the right or the conduct of any individual man, can +be subtracted from its decision; yet, when there comes a difference +between the State and the General Government, the State has the moral +right, and political right, to insist upon its view, and to maintain it +by force of arms, and the General Government has the right to insist +upon its view, and to maintain it by force of arms. And then we have +this poor predicament for every citizen of that unlucky State,--that he +is bound by allegiance, and under the penalty of treason, to follow +each and both of these powers. And as, should he follow the State, the +United States, if it be treason, would hang him, and, if he should +follow the United States, the State, if it be treason, would hang him, +this peculiar and whimsical result is produced,--that when the United +States undertake to hang him for treason his answer is--"Why, if I had +not done as I did, the State would have hanged me for treason, and, +surely, I cannot be compelled to be hanged one way or the other--so, I +must be protected from hanging, as to both!" Well, _that_, I admit, is +a sensible way to get out of the difficulty, for the man and for the +argument, if you can do it. But, it is a peculiar result, to start with +two sovereigns, each of which has a right over the citizen, and to end +with the citizen's right to choose which he shall serve, and to throw +it in the face of offended majesty and justice--"Why, your statute of +treason is repealed as against me, because the State, of which I am a +subject, has counseled a particular course of conduct!" + +Now, gentlemen, my learned friend qualifies even this theory--which +probably must fall within the condemnation of the perhaps somewhat +harsh and rough suggestion of Mr. Justice Grier, of a "political +platitude"--by the suggestion that it only applies to questions where +the united States cannot settle the controversy. And when my learned +friend is looking around for an instance or an occasion that is likely +to arise in human affairs, and in this nation, and in this time of +ours, he is obliged to resort to the most extraordinary and extravagant +proposition by way of illustration, and one that has, in itself, so +many of the ingredients of remoteness and impossibility, that you can +hardly think a Government deficient in not having provided for it. He +says, first--suppose we have a President, who is a Massachusetts man. +Well, that is not very likely in the course of politics at present. And +then, suppose that he is a bad man,--which, probably, my learned +friends would think not as unlikely as I should wish it to be. And, +then, suppose he should undertake to build up Boston, in its commerce, +at the expense of New York; and should put a blockading squadron +outside New York, by mere force of caprice and tyranny, without any +law, and without any provision for the payment of the men of the Navy, +or any commission or authority to any of them under which they could +find they were protected for what they should do, in actually and +effectually blockading our port. My learned friend acknowledges that +this is a pretty violent sort of suggestion, and that no man in his +senses would pretend to do such a thing, however bad he was, unless he +could find a reasonable sort of pretext for it. Therefore he would, +wisely and craftily, pretend that he had private advices that England +was going to bombard New York. Now that is the practical case created +by my learned friend's ingenuity and reflection, as a contingency in +which this contest by war between New York and the United States of +America would be the only practical and sensible mode of protecting our +commerce, and keeping you and me in the enjoyment of our rights as +citizens of the State of New York. Well, to begin with, if we had a +fleet off New York harbor, what is there that would require vessels to +go to Boston instead of to Philadelphia, Baltimore, and other places +that are open? In the second place, how long could we be at war, and +how great an army could we raise in New York, to put in the field +against the Federal Government, before this pretence of private advices +that England was going to bombard New York, would pass away, and the +naked deformity of this bad Massachusetts President be exposed? Why, +gentlemen, it is too true to need suggestion, that the wisdom which +made this a Government over all individual citizens, and made every +case of right and interest that touches the pocket and person of any +man in it a question of judicial settlement, made it a Government which +requires for the solution of none of the controversies within it, a +resort to the last appeal--to battle, and the right of kings. + +(Adjourned to 11 o'clock to-morrow.) + + + + +SEVENTH DAY. + + +_Wednesday, October 30, 1861._ + +The Court met at 11 o'clock A.M., when _Mr. Evarts_ resumed his +argument. + +Gentlemen of the Jury: In resuming the course of my remarks, already +necessarily drawn to a very considerable length, I must recall to your +attention the point that I had reached when the Court adjourned. I was +speaking of this right of secession, as inconsistent with the frame, +the purpose, and the occasion upon which the General Government was +formed; and of the illustration invented by my learned friend, and so +improbable in its circumstances, of the position of the United States +and one of the States of the Union, that could bring into play and +justify this resort to armed opposition. I had said what I had to say, +for the most part, as to the absurdity and improbability of the case +supposed, and the inadequacy, the worthlessness, the chimerical nature +of the remedy proposed. Now, you will observe that, in the case +supposed, the blockade of New York was to be without law, without +authority, upon the mere capricious pretence of the President--a +pretence so absurd that it could not stand the inspection of the people +for a moment. What is the use of a pretence unless it is a cover for +the act which it is intended to cloak? In such a case, the only proper, +peaceful course would be to raise the question, which might be raised +judicially, by attempting, in a peaceful manner, to pass the blockade, +and throw the consequences upon the subordinate officers who attempted +to execute the mere usurpation of the President, and, following the +declaration of the Divine writings, that "wisdom is better than weapons +of war," wait until the question could be disposed of under the +Constitution of the United States. For you will observe that, in the +case supposed, there is no threat to the integrity, no threat to the +authority, no threat to the existence of the State Government, or its +Constitution; but an impeding of the trade or interests of the people +of this city, and of the residents of all parts of the country +interested in the commerce of New York. That port is not the port of +New York alone. It is the port of the United States of America, and all +the communities in the Western country, who derive their supplies of +foreign commodities through our internal navigation, when commerce has +introduced them into this port, are just as much affected--just as much +injured and oppressed--by this blockade of our great port and emporium, +as are the people of the State of New York. So that, so far from its +being a collision between the Government of the State of New York and +the Government of the United States, it is a violent oppression, by +usurpation--exposing to the highest penalties of the law the magistrate +who has attempted it--exercised upon the people of the United States +wherever residing, in the far West, in the surrounding States, in the +whole country, who are interested in the maintenance of the commerce of +this port. I need not say that the action of our institutions provides +a ready solution for this difficulty. Two or three weeks must bring to +the notice of every one the frivolity of the pretence of the Executive, +that there was a threat of armed attack by a foreign nation. But if two +or three weeks should bring the evidence that this was not an idle +fear, and that, by information conveyed to the Government, this threat +was substantial, and was followed by its attempted execution,--why, +then, how absurd the proposition that, under the opinion of the State +of New York, that this was but an idle pretext, for purposes of +oppression, the State should fly into arms against the power exercised +to protect the city from foreign attack! The working of our affairs, +which brings around the session of Congress at a time fixed by law--not +at all determinable by the will of the President--exposes him to the +grand inquest of the people, which sits upon his crime, and, by his +presentation and trial before the great Court of Impeachment, in the +course of one week--nay, in scarcely more than one day after its coming +into session--both stamps this act as an usurpation, and dispossesses +the magistrate who has violated the Constitution. And yet, rather than +wait for this assertion of the power of the Constitution peacefully to +depose the usurping magistrate, my friend must resort to this violent +intervention of armed collision, that would keep us--in theory, at +least--constantly maintaining our rights by the mere method of force, +and would make of this Government--at the same time that they eulogize +the founders of it, as the best and wisest of men--but an organization +of armed hostilities, and its framers only the architects of an +ever-impending ruin! + +My learned friend, Mr. Brady, has asked my attention to the solution of +a case wherein he thinks the State Government might be called upon to +protect the rights of its citizens against the operation of an Act of +Congress, by proposing this question: Suppose Congress should require +that all the expenses of this great war, as we call it, should be paid +by the State of New York,--what should we do in that case? Nothing but +hostilities are a solution for that case, it is suggested. Now, I would +freely say to my learned friend, Mr. Brady, that if the General +Government, by its law, should impose the whole taxation of the war +upon the State of New York, I should advise the State of New York, or +any citizen in it, not to pay the taxes. That is the end of the matter. +And I would like to know if there is any warlike process by which the +General Government of the United States exacts its tribute of taxation, +that could impose the whole amount on New York? As the process of +taxation goes on, it is distributed through different channels, and +presents itself as an actual and effective process, from the +tax-gatherer to the tax-payer: "Give me so many dollars." And the +tax-payer says: "There is no law for it, and I will not do it." Then +the process of collection raises for consideration this +inquiry--whether the tax is according to law, and according to the +constitutional law of the United States of America. And this tribunal, +formed to decide such questions--formed to settle principles in single +cases, that shall protect against hostilities these great +communities--disposes of the question. If the law is constitutional, +then the tax is to be paid--if unconstitutional, then the tax is not +collectable; and the question is settled. But my learned friends, in +their suggestions of what is a possible state of law that may arise in +this country, forget the great distinction between our situation under +the Federal Government and our situation as Colonies under the +authority of the King and Parliament of England. It is the distinction +between not being represented and being represented. + +Why, my learned friends, in order to get the basis of a possible +suggestion of contrariety of duty and of interest between the +Government of the United States and the people in these States, must +overlook, and do overlook the fact that there is not a functionary in +the Federal Government, from the President down to the Houses of +Congress, that does not derive his authority from the people, not of +one State, not of any number of States, but of all the States. And thus +standing, they are guardians and custodians, in their own interests--in +their own knowledge of the interests of their own people--in their own +knowledge that their place in the protection, power, and authority of +the Government of the United States, proceeds by the favor and the +approval of the local community in which they reside. So far, +therefore, from anything in the arrangement or the working of these +political systems being such as to make the Representatives or Senators +that compose Congress the masters or the enemies of the local +population of the States from which they respectively come, they come +there under the authority of the local population which they represent, +dependent upon it for their place and continuance, and not on the +Federal Government. + +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. Every tax must, to be constitutional, be extended over +the whole Union, and according to a fixed ratio of distribution between +the States, established by the Constitution itself. Now, therefore, +when any particular interest, any particular occasion, any supposed +necessity, any political motive, suggests a departure, on the part of +the General Government, from a necessary adherence to this principle of +the Constitution, you will perceive that not only are the +Representatives and Senators who come from the State against which this +exercise of power is attempted, interested to oppose, in their places +in Congress, the violation of the Constitution, but the Representatives +and the Senators from every other State, in support of the rights of +the local communities in which they reside, have the same interest and +the same duty, and may be practically relied upon to exercise the same +right, and authority, and opposition, in protection of their +communities, against an application of the same principle, or an +obedience to the same usurpation, on subsequent occasions, in reference +to other questions that may arise. Therefore, my learned friends, when +they are talking to you, theoretically or practically, about the +opposition that may arise between co-ordinate and independent +sovereignties, and would make the glorious Constitution of this Federal +Government an instance of misshapen, and disjointed, and impractical +inconsistencies, forget that the great basis of both of them rests in +the people, and in the same people--equally interested, equally +powerful, to restrain and to continue the movements of each, within the +separate, constitutional rights of each. Now, unquestionably, in vast +communities, with great interests, diverse and various, opinions may +vary, and honest sentiments may produce the enactment of laws of +Congress, which equally honest sentiments, on the part of local +communities, expressed through the action of State legislation, may +regard as inconsistent with the Government and the Constitution of the +United States, and with the rights of the States. But, for these +purposes, for these occasions, an ample and complete theoretical and +practical protection of the rights of all is found, in this absolute +identity of the interests of the people and of their authority in both +the form and the structure of their complex Government, and in the +means provided by the Constitution itself for testing every question +that touches the right, the interest, the liberty, the property, the +freedom of any citizen, in all and any of these communities, before the +Supreme Court of the United States. Let us not be drawn into any of +these shadowy propositions, that the whole people may be oppressed, and +not a single individual in it be deprived of any personal right. +Whenever the liberty of the citizen is abridged in respect to any +personal right, the counsel concede that the Courts are open to him; +and that is the theory, the wisdom, and the practical success of the +American Constitution. + +Now, gentlemen of the Jury, but one word more on this speculative right +of secession. It is founded, if at all, upon the theory, that the +States, having been, anterior to the formation of the Constitution, +independent sovereignties, are, themselves, the creators, and that the +Constitution is the creature proceeding from their power. I have said +all I have to say about either the fact, or the result of the fact, if +it be one, of the existence of these antecedent, complete national +sovereignties on the part of any of the original States. But, will my +learned friends tell me how this theory of theirs, in respect to the +original thirteen States, has any application to the States, now quite +outnumbering the original thirteen, which have, since the Constitution +was formed, entered into the Government of this our territory, this our +people? Out of thirty-four States, eleven have derived their existence, +their permission to exist, their territory, their power to make a +Constitution, from the General Government itself, out of whose +territory--either acquired originally by the wealth or conquest of the +Federal Government, or derived directly or indirectly through the +cession or partition or separation of the original Colonies--they have +sprung into existence. Of these eleven allied and confederate States, +but four came from the stock of the original thirteen, and seven +derived their whole power and authority from the permission of the +Constitution of the United States, and have sprung into existence, with +the breath of their lives breathed into them through the Federal +Government. When the State of Louisiana talks of its right to secede by +reason of its sovereignty, by reason of its being one of the creators +of the Federal Government, and of the Federal Constitution--one of the +actors in the principles of the American Revolution, and in the +conquest of our liberties from the English power--we may well lift our +hands in surprise at the arrogance of such a suggestion. Why, what was +Louisiana, in all her territory, at the time of the great transaction +of the Federal Revolution, and for a long time afterwards, but a +province of Spain, first, and afterwards of France? How did her +territory--the land upon which her population and her property +rest--come to be a part of our territory, and to give support to a +State government, and to State interests? Why, by its acquisition, +under the wise policy of Mr. Jefferson, early in this century, upon the +opportunity offered, by the necessity or policy of the Emperor +Napoleon, for its purchase, by money, as you would buy a ship, or a +strip of land to build a fort on. Coming thus to the United States, by +its purchase, how did Louisiana come to be set apart, carved out of the +immense territory comprehended under the name of Louisiana, but by +lines of division and concession of power, proceeding from the +Government of the United States? And why did we purchase it? We +purchased it preliminarily, not so much to seize the opportunity for +excluding from a foothold on this Continent a great foreign Power, +which, although its territory here was waste and uninhabited, had the +legal right to fill it, and might, in the course of time, fill it, with +a population hostile in interests to our own,--not so much for this +remote contingency, as to meet the actual and pressing necessity, on +the part of the population that was beginning to fill up the left or +eastern bank of the Mississippi, from its source to near its mouth, +that they should have the mouth of the Mississippi also within their +territory, governed by the same laws and under the same Government. And +now, forsooth, the money and the policy of the United States having +acquired this territory, and conceded the political rights contained in +the Constitution of Louisiana, we are to justify the secession of the +territory of Louisiana, carrying the mouth of the Mississippi with her, +on the theory that she was one of the original sovereignties, and one +of the creators of the Constitution of the United States! Well, +gentlemen, how are our learned friends to escape from this dilemma? Are +they to say that our constituted Government, complex, composed of State +and of Federal power, has two sets of State and Federal relations +within it, to wit, that which existed between the General Government +and the thirteen sovereign, original States, and that which exists +between the Federal Government and the other twenty-one States of the +Union? Is it to follow, from this severance, that these original +Colonies, declaring their independence--South Carolina, North Carolina, +Virginia and Georgia--are to draw back to themselves the portions of +their original territory that have since, under the authority of the +Constitution, been formed into separate communities? Our Constitution +was made by and between the States, and the people of the States--not +for themselves alone--not limited to existing territory, and arranged +State and Provincial Governments--but made as a Government, and made +with principles in respect to Government that should admit of its +extension by purchase, by conquest, by all the means that could bring +accretion to a people in territory and in strength, and that should be, +in its principles, a form of Government applicable to and sufficient +for the old and the new States, and the old and the new population. I +need but refer to the later instances, where, by purchase, we acquired +Florida, also one of the seceded States, and where, by our armies, we +gained the western coast of the Pacific. Are these the relations into +which the power, and blood, and treasure of this Government bring it, +in respect to the new communities and new States which, under its +protection, and from its conceded power, have derived their very +existence? Why, gentlemen, our Government is said, by those who +complain of it, or who expose what they regard as its difficulties, to +have one element of weakness in it, to wit, the possibility of discord +between the State and the Federal authorities. But, if you adopt the +principle, that there is one set of rules, one set of rights, between +the Federal Government and the original States that formed the Union, +and another set of rules between the Federal Government and the new +States, I would like to know what becomes of the provision of the +Constitution, that the new States may be admitted on the same footing +with the old? What becomes of the harmony and accord among the local +Governments of this great nation, which we call State Governments, if +there be this superiority, in every political sense, on the part of the +old States, and this absolute inferiority and subjection on the part of +the new? + +And now, gentlemen, having done with this doctrine of secession, as +utterly inconsistent with the theory of our Government, and utterly +unimportant, as a practical right, for any supposable or even +imaginable case that may be suggested, I come to consider the question +of the right of revolution. I have shown to you upon what principles, +and upon what substantial question, between being subjects as slaves, +or being participants in the British Government, our Colonies attempted +and achieved their independence. As I have said to you, a very brief +experience showed that they needed, to meet the exigencies of their +situation, the establishment of a Government that should be in +accordance with the wishes and spirit of the people, in regard of +freedom, and yet should be of such strength, and such unity, as would +admit of prosperity being enjoyed under it, and of its name and power +being established among the nations of the earth. Now, without going +into the theories of Government, and of the rights of the people, and +of the rights of the rulers, to any great extent, we all know that +there has been every variety of experiment tried, in the course of +human affairs, between the great extreme alluded to by my learned +friend (Mr. Brady) of the slavery of Egyptians to their king--the +extreme instance of an entire population scarcely lifted above the +brutes in their absolute subjection to the tyranny of a ruler, so that +the life, and the soul, and the sweat, and the blood of a whole +generation of men are consumed in the task of building a mausoleum as +the grave of a king--and the later efforts of our race, culminating in +the happy success of our own form of Government, to establish, on +foundations where liberty and law find equal support, the principle of +Government, that Government is by, and for, and from all the +people--that the rulers, instead of being their masters and their +owners, are their agents and their servants--and that the greatest good +of the greatest number is the plain, practical and equal rule which, by +gift from our Creator, we enjoy. + +Now this, you will observe, is a question which readily receives our +acceptance. But the great problem in reference to the freedom of a +people, in the establishment of their Government, presents itself in +this wise: The people, in order to maintain their freedom, must be +masters of their Government, so that the Government may not be too +strong, in its arrangement of power, to overmaster the people; but yet, +the Government must be strong enough to maintain and protect the +independence of the nation against the aggressions, the usurpations, +and the oppressions of foreign nations. Here you have a difficulty +raised at once. 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? And if, abandoning in despair that +effort and that hope, you circumscribe the limits of your territory, +and reduce your population within a narrow range, how can you have a +Government and a nation strong enough to maintain itself in the +contests of the great family of nations, impelled and urged by +interests and passions? + +Here is the first peril, which has never been successfully met and +disposed of in any of the forms of Government that have been known in +the history of mankind, until, at least, our solution of it was +attempted, and unless it has succeeded and can maintain itself. But, +again, this business of self-government by a people has but one +practical and sensible spirit and object. The object of free Government +is, that the people, as individuals, may, with security, pursue their +own happiness. We do not tolerate the theory that all the people +constituting the nation are absorbed into the national growth and life. +The reason why we want a free Government is, that we may be happy under +it, and pursue our own activities according to our nature and our +faculties. But, you will see, at once, that it is of the essence of +being able to pursue our own interests under the Government under which +we live, that we can do so according to our own notions of what they +are, or the notions of those who are intelligently informed of, +participate in, and sympathize with, those interests. Therefore, it +seems necessary that all of the every-day rights of property, of social +arrangements, of marriage, of contracts--everything that makes up the +life of a social community--shall be under the control, not of a remote +or distant authority, but of one that is limited to, and derives its +ideas and principles from, a local community. + +Now, how can this be in a large nation--in a nation of thirty millions, +distributed over a zone of the earth? How are we to get along in New +York, and how are others to get along in South Carolina, and others in +New England, in the every-day arrangements that proceed from +Government, and affect the prosperity, the freedom, the independence, +the satisfaction of the community with the condition in which it lives? +How can we get along, if all these minute and every-day arrangements +are to proceed from a Government which has to deal with the diverse +opinions, the diverse sentiments, the diverse interests, of so +extensive a nation? But if, fleeing from this peril, you say that you +may reduce your nation, you fall into another difficulty. The advanced +civilization of the present day requires, for our commercial activity, +for our enjoyment of the comforts and luxuries of life, that the whole +globe shall be ransacked, and that the power of the nation which we +recognize as our superior shall be able to protect our citizens in +their enterprises, in their activities, in their objects, all over the +world. 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. But for objects which make it meritorious and useful, it is +a scourge never to be tolerated. It puts in abeyance all individual +rights, interests, and schemes, until the great controversy is settled. + +If, then, we are a small nation, surrounded on all sides by other +nations, with no natural barriers, with competing interests, with +occasions of strife and collision on all sides, how can we escape war, +as a necessary result of that miserable situation? But war strengthens +the power of Government, weakens the power of the individual, and +establishes maxims and creates forces, that go to increase the weight +and the power of Government, and to weaken the rights of the people. +Then, we see that, to escape war, we must either establish a great +nation, which occupies an extent of territory, and has a fund of power +sufficient to protect itself against border strifes, and against the +ambition, the envy, the hatred of neighbors; or else one which, being +small, is exposed to war from abroad to subjugate it, or to the greater +peril to its own liberties, of war made by its own Government, thus +establishing principles and introducing interests which are +inconsistent with liberty. + +I have thus ventured, gentlemen, to lay before you some of these +general principles, because, in the course of the arguments of my +learned friends, as well as in many of the discussions before the +public mind, it seems to be considered that the ties, the affections +and the interests, which oblige us to the maintenance of this +Government of ours, find their support and proper strength and +nourishment only in the sentiments of patriotism and duty, because it +happens to be our own Government; and that, when the considerations of +force or of feeling which bring a people to submit to a surrender of +their Government, or to a successful conquest of a part of their +territory, or to a wresting of a part of their people from the control +of the Government, shall be brought to bear upon us, we shall be, in +our loss and our surrender, only suffering what other nations have been +called upon to lose and to surrender, and that it will be but a change +in the actual condition of the country and its territory. But you will +perceive that, by the superior fortune which attended our introduction +into the family of nations, and by the great wisdom, forecast, and +courage of our ancestors, we avoided, at the outset, all the +difficulties between a large territory and a numerous population on the +one hand, and a small territory and a reduced population on the other +hand, and all those opposing dangers of the Government being either too +weak to protect the nation, or too strong, and thus oppressive of the +people, by a distribution of powers and authorities, novel in the +affairs of men, dependent on experiment, and to receive its final fate +as the result of that experiment. We went on this view--that these +feeble Colonies had not, each in itself, the life and strength of a +nation; and, yet, these feeble Colonies, and their poor and sparse +population, were nourished on a love of liberty and self-government. +These sentiments had carried them through a successful war against one +of the great powers of the earth. They were not to surrender that for +which they had been fighting to any scheme, to any theory of a great, +consolidated nation, the Government of which should subdue the people +and re-introduce the old fashion in human affairs--that the people were +made for the rulers, and not the rulers by and for the people. They +undertook to meet, they did meet, this difficult dilemma in the +constitution of Government, by separating the great fund of power, and +reposing it in two distinct organizations. They reserved to the local +communities the control of their domestic affairs, and attributed the +maintenance and preservation of them to the State governments. They +undertook to collect and deposit, under the form of a written +Constitution, with the general Government, all those larger and common +interests which enter into the conception and practical establishment +of a distinct nation among the nations of the earth, and determined +that they would have a central power which should be adequate, by +drawing its resources from the patriotism, from the duty, from the +wealth, from the numbers, of a great nation, to represent them in peace +and in war,--a nation that could protect the interests, encourage the +activities, and maintain the development of its people, in spite of the +opposing interests or the envious or hostile attacks of any nation. +They determined that this great Government, thus furnished with this +range of authority and this extent of power, should not have anything +to do with the every-day institutions, operations and social +arrangements of the community into which the vast population and +territory of the nation were distributed. They determined that the +people of Massachusetts, the people of New York, and the people of +South Carolina, each of them, should have their own laws about +agriculture, about internal trade, about marriage, about +apprenticeship, about slavery, about religion, about schools, about all +the every-day pulsations of individual life and happiness, controlled +by communities that moved with the same pulsations, obeyed the same +instincts, and were animated by the same purposes. And, as this latter +class of authority contains in itself the principal means of oppression +by a Government, and is the principal point where oppression is to be +feared by a people, they had thus robbed the new system of all the +dangers which attend the too extensive powers of a Government. They +divided the fund of power, to prevent a great concentration and a great +consolidation of the army of magistrates and officers of the law and of +the Government which would have been combined by a united and +consolidated authority, having jurisdiction of all the purposes of +Government, of all the interests of citizens, and of the entire +population and entire territory in these respects. They thus made a +Government, complex in its arrangements, which met those opposing +difficulties, inherent in human affairs, that make the distinction +between free Governments and oppressive Governments. They preserved the +people in their enjoyment and control of all the local matters entering +into their every-day life, and yet gave them an establishment, +springing from the same interests and controlled by the same people, +which has sustained and protected us in our relations to the family of +nations on the high seas and in the remote corners of the world. + +Now, this is the scheme, and this is the purpose, with which this +Government was formed; and you will observe that there is contained in +it this separation, and this distribution. And our learned friends, who +have argued before you respecting this theory, and this arrangement and +practice of the power of a Government, as inconsistent with the +interests and the freedom of the people, have substantially said to you +that it was a whimsical contrivance, that it was an impossible +arrangement of inconsistent principles, and that we must go back to a +simple Government composed of one of the States, or of a similar +arrangement of territory and people, which would make each of us a weak +and contemptible power in the family of nations--or we must go back to +the old consolidation of power, such as is represented by the frame of +France or England in its Government, or, more distinctly, more +absolutely, and more likely to be the case, for so vast a territory and +so extensive a population as ours, to the simple notion of Russian +Autocracy. + +That, then, being the object, and that the character, of our +institutions, and this right of secession not being provided for, or +imagined, or tolerated in the scheme, let us look at the right of +revolution, as justifying an attempt to overthrow the Government; and +let us look at the occasions of revolution, which are pretended here, +as giving a support, before the world, in the forum of conscience, and +in the judgment of mankind, for the exercise of that right. + +And first, let me ask you whether, in all the citations from the great +men of the Revolution, and in the later stages of our history, any +opinion has been cited which has condemned this scheme, as unsuitable +and insufficient for the freedom and happiness of the people, if it can +be successful? I think not. The whole history of the country is full of +records of the approval, of the support, of the admiration, of the +reverent language which our people at large, and the great leaders of +public opinion--the great statesmen of the country--have spoken of this +system of Government. Let me ask your attention to but two encomiums +upon it, as represented by that central idea of a great nation, and yet +a divided and local administration of popular interests--to wit, one in +the first stage of its adoption, before its ratification by the people +was complete; and the other, a speech made at the very eve of, if not +in the very smoke of, this hostile dissolution of it. + +Mr. Pinckney, of South Carolina, who had been one of the delegates from +that State in the National Convention, and had co-operated with the +Northern statesmen, and with the great men of Virginia, in forming the +Government as it was, in urging on the Convention of South Carolina the +adoption of the Constitution, and its ratification, said: + + "To the Union we will look up as the temple of our freedom,--a + temple founded in the affections and supported by the virtue of + the people. Here we will pour out our gratitude to the Author of + all good, for suffering us to participate in the rights of a + people who govern themselves. Is there, at this moment, a nation + on the earth which enjoys this right, where the true principles of + representation are understood and practised, and where all + authority flows from, and returns at stated periods to, the + people? I answer, there is not. Can a Government be said to be + free where those do not exist? It cannot. On what depends the + enjoyment of those rare, inestimable rights? On the firmness and + on the power of the Union to protect and defend them." + +Had we anything from that great patriot and statesman of this right of +secession, or independence of a State, as an important or a useful +element in securing these rare, these unheard of, these inestimable +privileges of Government, which the Author of all good had suffered the +people of South Carolina to participate in? No--they depended "on the +firmness and on the power of the Union to protect and defend them." Mr. +Pinckney goes on to say: + + "To the philosophic mind, how new and awful an instance do the + United States at present exhibit to the people of the world! They + exhibit, sir, the first instance of a people who, being thus + dissatisfied with their Government, unattacked by a foreign force + and undisturbed by domestic uneasiness, coolly and deliberately + resort to the virtue and good sense of the country for a correction + of their public errors." + +That is, for the abandonment of the weakness and the danger of the +imperfect Confederation, and the adoption of the constitutional and +formal establishment of Federal power. Mr. Pinckney goes on to say: + + "It must be obvious that, without a superintending Government, it + is impossible the liberties of this country can long be secure. + Single and unconnected, how weak and contemptible are the largest + of our States! how unable to protect themselves from external or + domestic insult! how incompetent, to national purposes, would even + the present Union be! how liable to intestine war and confusion! + how little able to secure the blessings of peace! Let us, + therefore, be careful in strengthening the Union. Let us remember + we are bounded by vigilant and attentive neighbors"--(and now + Europe is within ten days, and they are near neighbors)--"who view + with a jealous eye our rights to empire." + +Pursuing my design of limiting my citations of the opinions of public +men to those who have received honor from, and conferred honor on, that +portion of our country and those of our countrymen now engaged in this +strife with the General Government, let me ask your attention to a +speech delivered by Mr. Stephens, now the Vice-President of the +so-called Confederate States, on the very eve of, and protesting +against, this effort to dissolve the Union. I read from page 220 and +subsequent pages of the documents that have been the subject of +reference heretofore: + + "The first question that presents itself"--(says Mr. Stephens to + the assembled Legislature of Georgia, of which he was not a member, + but which, as an eminent and leading public man, he had been + invited to address)--"is, shall the people of the South secede from + the Union in consequence of the election of Mr. Lincoln to the + Presidency of the United States? My countrymen, _I tell you + frankly, candidly, and earnestly, that I do not think that they + ought_. In my judgment, the election of no man, constitutionally + elected to that high office, is sufficient cause for any State to + separate from the Union. It ought to stand by and aid still in + maintaining the Constitution of the country. To make a point of + resistance to the Government--to withdraw from it because a man has + been constitutionally elected--puts us in the wrong. We are pledged + to maintain the Constitution. Many of us have sworn to support it. + + "But it is said Mr. Lincoln's policy and principles are against the + Constitution, and that if he carries them out it will be + destructive of our rights. Let us not anticipate a threatened evil. + If he violates the Constitution, then will come our time to act. Do + not let us break it because, forsooth, he may. If he does, that is + the time for us to strike. * * * My countrymen, I am not of those + who believe this Union has been a curse up to this time. True + men--men of integrity--entertain different views from me on this + subject. I do not question their right to do so; I would not impugn + their motives in so doing. Nor will I undertake to say that this + Government of our fathers is perfect. 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. Contrast it now with + any on the face of the earth." ["England," said Mr. Toombs.] + "England, my friend says. Well, that is the next best, I grant; but + I think we have improved upon England. Statesmen tried their + apprentice hand on the Government of England, and then ours was + made. Ours sprung from that, avoiding many of its defects, taking + most of the good and leaving out many of its errors, and, from the + whole, constructing and building up this model Republic--the best + which the history of the world gives any account of. + + "Compare, my friends, this Government with that of Spain, Mexico, + the South American Republics, Germany, Ireland--are there any sons + of that down-trodden nation here to-night?--Prussia, or, if you + travel further east, to Turkey or China. Where will you go, + following the sun in his circuit round our globe, to find a + Government that better protects the liberties of its people, and + secures to them the blessings we enjoy? I think that one of the + evils that beset us is a surfeit of liberty, an exuberance of the + priceless blessings for which we are ungrateful. * * * * * + + "When I look around and see our prosperity in every + thing--agriculture, commerce, art, science, and every department of + education, physical and mental, as well as moral advancement, and + our colleges--I think, in the face of such an exhibition, if we + can, without the loss of power, or any essential right or interest, + remain in the Union, it is our duty to ourselves and to posterity + to--let us not too readily yield to this temptation--do so. Our + first parents, the great progenitors of the human race, were not + without a like temptation when in the garden of Eden. They were led + to believe that their condition would be bettered--that their eyes + would be opened--and that they would become as gods. They in an + evil hour yielded. Instead of becoming gods, they only saw their + own nakedness. + + "I look upon this country, with our institutions, as the Eden of + the world, the paradise of the Universe. It may be that out of it + we may become greater and more prosperous, but I am candid and + sincere in telling you that I fear if we rashly evince passion, + and, without sufficient cause, shall take that step, that instead + of becoming greater or more peaceful, prosperous and happy--instead + of becoming gods--we will become demons, and, at no distant day, + commence cutting one another's throats." + +Still speaking of our Government, he says: + + "Thus far, it is a noble example, worthy of imitation. The + gentleman (Mr. Cobb) the other night said it had proven a failure. + A failure in what? In growth? Look at our expanse in national + power. Look at our population and increase in all that makes a + people great. A failure? Why, we are the admiration of the + civilized world, and present the brightest hopes of mankind. + + "Some of our public men have failed in their aspirations; that is + true, and from that comes a great part of our troubles. + + "No, there is no failure of this Government yet. We have made great + advancement under the Constitution, and I cannot but hope that we + shall advance higher still. Let us be true to our cause." + +Now, wherein is it that this Government deserves these encomiums, +which come from the intelligent and profound wisdom of statesmen, and +gush spontaneously from the unlearned hearts of the masses of the +people? Why, it is precisely in this point, of its not being a +consolidated Government, and of its not being a narrow, and feeble, +and weak community and Government. Indeed, I may be permitted to say +that I once heard, from the lips of Mr. Calhoun himself, this +recognition, both of the good fortune of this country in possessing +such a Government, and of the principal sources to which the gratitude +of a nation should attribute that good fortune. I heard him once say, +that it was to the wisdom, in the great Convention, of the delegates +from the State of Connecticut, and of Judge Patterson, a delegate from +the State of New Jersey, that we owed the fact that this Government +was what it was, the best Government in the world, a confederated +Government, and not what it would have been--and, apparently, would +have been but for those statesmen--the worst Government in the +world--a consolidated Government. These statesmen, he said, were wiser +for the South than the South was for herself. + +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; and the glory of our +ancestors, Washington, and Madison, and Jefferson, and Adams--the +glory of their successors, Webster, and Clay, and Wright, and even +Calhoun--for he was no votary of this nonsense of secession--passes +away, and their fame grows visibly paler, and the watchful eye of the +English monarchy looks on for the bitter fruits to be reaped by us for +our own destruction, and as an example to the world--the bitter fruits +of the principle of revolution and of the right of self-government +which we dared to assert against her perfect control. Pointing to our +exhibition of an actual concourse of armies, she will say--"It is in +the dragon's teeth, in the right of rebellion against the monarchy of +England, that these armed hosts have found their seed and sprung up on +your soil." + +Now, gentlemen, such is our Government, such is its beneficence, such +is its adaptation, and such are its successes. Look at its successes. +Not three-quarters of a century have passed away since the adoption of +its Constitution, and now it rules over a territory that extends from +the Atlantic to the Pacific. It fills the wide belt of the earth's +surface that is bounded by the provinces of England on the North, and +by the crumbling, and weak, and contemptible Governments or no +Governments that shake the frame of Mexico on the South. Have Nature +and Providence left us without resources to hold together social +unity, notwithstanding the vast expanse of the earth's surface which +our population has traversed and possessed? No. Keeping pace with our +wants in that regard, the rapid locomotion of steam on the ocean, and +on our rivers and lakes, and on the iron roads that bind the country +together, and the instantaneous electric communication of thought, +which fills with the same facts, and with the same news, and with the +same sentiments, at the same moment, a great, enlightened, and +intelligent people, have overcome all the resistance and all the +dangers which might be attributed to natural obstructions. Even now, +while this trial proceeds, San Francisco and New York, Boston and +Portland, and the still farther East, communicate together as by a +flash of lightning--indeed, it may be said, making an electric flash +farther across the earth's surface, and intelligible too, to man, than +ever, in the natural phenomena of the heavens, the lightning displayed +itself. No--the same Author of all good, to whom Pinckney avowed his +gratitude, has been our friend and our protector, and has removed, +step by step, every impediment to our expansion which the laws of +nature and of space had been supposed to interpose. No, no--neither in +the patriotism nor in the wisdom of our fathers was there any defect; +nor shall we find, in the disposition and purposes of Divine +Providence, as we can see them, any excuse or any aid for the +destruction of this magnificent system of empire. No--it is in +ourselves, in our own time and in our own generation, in our own +failing powers and failing duties, that the crash and ruin of this +magnificent fabric, and the blasting of the future hopes of mankind, +is to find its cause and its execution. + +I have shown you, gentlemen, how, when the usurpations of the British +Parliament, striking at the vital point of the independence of this +country, had raised for consideration and determination, by a brave +and free people, the question of their destiny, our fathers dealt with +it. My learned friends, in various forms, have spoken poetically, +logically and practically about all that course of proceedings that +has been going on in this country, as finding a complete parallelism, +support, and justification in the course of the American Revolution; +and a passage in the Declaration of Independence has been read to you +as calculated to show that, on a mere theoretical opinion of the right +of a people to govern themselves, any portion of that people are at +liberty, as well against a good Government as against a bad one, to +establish a bad Government as well as overthrow a bad Government--have +the right to do as they please, and, I suppose, to force all the rest +of the world and all the rest of the nation to just such a fate as +their doing as they please may bring with it. + +Let us see how this Declaration of Independence, called by the great +forensic orator, Mr. Choate, "a passionate and eloquent manifesto," +and stigmatized as containing "glittering generalities"--let us see, I +say, how sober, how discreet, how cautious it is in the presentation +of this right, even of revolution. I read what, both in the newspapers +and in political discussions, as well as before you, by the learned +counsel, have been presented as the doctrines of the Declaration of +Independence, and then I add to it the qualifying propositions, and +the practical, stern requisitions, which that instrument appends to +these general views: + + "To secure these rights, Governments are instituted among men, + deriving their just powers from the consent of the governed; that + whenever any form of Government becomes destructive of these ends, + it is the right of the people to alter or abolish it, and to + institute new Government, laying its foundation on such principles, + and organizing its powers in such form, as to them shall seem most + likely to effect their safety and happiness. Prudence, indeed, will + dictate, that Governments long established should not be changed + for light and transient causes. And, accordingly, all experience + hath shown, that mankind are more disposed to suffer, while evils + are sufferable, than to right themselves by abolishing the forms to + which they are accustomed. But when a long train of abuses and + usurpations, pursuing invariably the same object, evinces a design + to reduce them under absolute despotism, it is their right, it is + their duty, to throw off such Government, and to provide new guards + for their future security. Such has been the patient sufferance of + these Colonies; and such is now the necessity which constrains them + to alter their former systems of Government. The history of the + present King of Great Britain is a history of repeated injuries and + usurpations, all having in direct object the establishment of an + absolute tyranny over these States. To prove this, let facts be + submitted to a candid world." + +And it then proceeds to enumerate the facts, in the eloquent language +of the Declaration, made familiar to us all by its repeated and +reverent recitals on the day which celebrates its adoption. There is +not anything of moonshine about any one of them. There is not anything +of perhaps, or anticipation of fear, or suspicion. There is not +anything of this or that newspaper malediction, of this or that +rhetorical disquisition, of this or that theory, or of this or that +opprobrium, but a recital of direct governmental acts of Great +Britain, all tending to the purpose of establishing complete despotism +over this country. And, then, even that not being deemed sufficient, +on the part of our great ancestors, to justify this appeal to the +enlightened opinion of the world, and to the God who directs the fate +of armies, they say: + + "In every stage of these oppressions, we have petitioned for + redress, in the most humble terms; our repeated petitions have + been answered only by repeated injury. A Prince whose character is + thus marked by every act which may define a tyrant, is unfit to be + the ruler of a free people. + + "Nor have we been wanting in attentions to our British brethren. + We have warned them, from time to time, of attempts by their + Legislature to extend an unwarrantable jurisdiction over us. We + have reminded them of the circumstances of our emigration and + settlement here. We have appealed to their native justice and + magnanimity, and we have conjured them, by the ties of our common + kindred, to disavow these usurpations, which would inevitably + interrupt our connection and correspondence. They, too, have been + deaf to the voice of justice and of consanguinity." + +Now, gentlemen, this doctrine of revolution, which our learned friends +rely upon, appeals to our own sense of right and duty. It rests upon +facts, and upon the purpose, as indicated by those facts, to deprive +our ancestors of the rights of Englishmen, and to subject them to the +power of a Government in which they were not represented. Now, whence +come the occasions and the grievances urged before you, and of what +kind are they? My learned friend, Mr. Brady, has given you a distinct +enumeration, under nine heads, of what the occasions are, and what the +grievances are. There is not one of them that, in form or substance, +proceeded from the Federal Government. There is not a statute, there +is not a proclamation, there is not an action, judicial, executive, or +legislative, on the part of the Federal Government, that finds a +place, either in consummation or in purpose, in this indictment drawn +by my friend Mr. Brady against the Government, on behalf of his +clients. The letter of South Carolina, on completing the revocation of +her adoption of the Constitution, addressed to the States, dwells upon +the interest of slavery (as does my learned friend Mr. Brady, in all +his propositions), and discloses but two ideas--one, that when any +body or set of people cease to be a majority in a Government, they +have a right to leave it; and the other, that State action, on the +part of some of the Northern States, had been inconsistent with, +threatening to, or opprobrious of the institution of slavery in the +Southern States. + +Let me ask your attention to this proposition of the Southern States, +and this catalogue of the learned counsel. As it is only the interest +of slavery, social and political (for it is an interest, lawfully +existing), that leads to the destruction of our Government and of +their Government, let us see what there is in the actual circumstances +of this interest, as being able, under the forms of our Constitution, +to look out for itself, as well, at least, as any other interest in +the country, that can justify them in finding an example or a +precedent in the appeal of our fathers to arms to assert their rights +by the strong hand, because in the Government of England they had no +representation. Did our fathers say that, because they had not a +majority in the English Parliament, they had a right to rebel? No! +They said they had not a share or vote in the Parliament. That was +their proposition. + +I now invite you to consider this fundamental view of the right and +power of Government, and the right and freedom of the people,--to wit, +that every citizen is entitled to be counted and considered as good as +every other citizen,--as a natural and abstract right--as the basis of +our Government, however other arrangements may have adjusted or +regulated that simple and abstract right. Then, let us see whether the +arrangement of the Federal Government, in departing from that natural +right of one man to be as good as another, and to be counted equal in +the representation of his Government, has operated to the prejudice of +the interest of slavery. We have not heard anything in this country of +any other interest for many a long year,--much to my disgust and +discontent. There are other interests,--manufacturing interests, +agricultural interests, commercial interests, all sorts of +interests,--some of them discordant, if you please. Let us see whether +this interest of slavery has a fair chance to be heard, and enjoys its +fair share of political power under our Government, or whether, from a +denial to it of its fair share, it has some pretext for appealing to +force. Why, gentlemen, take the fifteen Slave States, which, under the +census of 1850, had six millions of white people--that is, of +citizens--and, under the census of 1860, about eight millions, and +compare them with the white people of the State of New York, which, +under the census of 1850, had three millions, and, under the census of +1860, something like four millions. + +Now, here we are,--they as good as we, and we as good as they,--we +having our interests, and opinions, and feelings--they their opinions, +interests, and feelings,--and let us see how the arrangement of +representation, in every part of our Government, is distributed +between these interests. Why, with a population just double that of +the State of New York, the interest of slavery has _thirty_ Senators +to vote and to speak for it, and the people of New York have _two_ +Senators to vote and to speak for them. In the House of +Representatives these same Slave States have _ninety_ Representatives +to speak and to vote for them; and the people of the State of New York +have _thirty-three_ to vote and to speak for them. And, in the +Electoral College, which raises to the chief magistracy the citizen +who receives the constitutional vote, these same States have _one +hundred and twenty_ electoral votes, and the State of New York has +_thirty-five_. Why, the three coterminous States--New York, +Pennsylvania, and Ohio--have, under either census, as great or a +greater population than the fifteen Slave States, and they have but +six Senators, against the Slave States' thirty. + +Do I mention this in complaint? Not in the least. I only mention it to +show you that the vote and the voice of this interest has not been +defrauded in the artificial distribution of Federal power. And, if I +may be allowed to refer to the other august department of our Federal +Government, the Supreme Court of the United States, in which the +Presiding Justice has his seat as one of the members of that Court, +you will see how the vast population, the vast interests of business, +commerce, and what not, that reside in the Free States, as compared +with the lesser population, the lesser business, and the lesser demand +for the authority or intervention of the judiciary in the Slave +States, have been represented for years, by the distribution of the +nine Judges of that Court, so that the eighteen millions of white +people who compose the population of the Free States have been +represented (not in any political sense) by four of these Justices; +and the rest of the country, the fifteen Slave States, with their +population of six or eight millions, have been represented by five. +Now, of this I do not complain. It is law--it is government; and no +injustice has been done to the Constitution, nor has it been violated +in this arrangement. But, has there been any fraud upon the interest +of slavery, in the favor the Federal Government has shown in the +marking out of the Judicial Districts, and in the apportionment of the +Judges to the different regions of the country, and to the population +of those regions? If you look at it as regards the business in the +different Circuits, the learned Justice who now presides here, and who +holds his place for the Second Circuit, including our State, disposes +annually, here and in the other Courts, of more business than, I may +perhaps say, all the Circuits that are made up from the Slave States. +And, if you look at it as regards the population, there was one +Circuit--that which was represented by the learned Mr. Justice McLean, +lately deceased--which contained within itself five millions of white, +free population; while one other Circuit, represented by another +learned Justice, lately deceased--a Circuit composed of Mississippi +and Arkansas--contained only 450,000, at the time of the completion of +the census of 1850. Who complains of this? Do we? Never. But, when it +is said to you that there is a parallelism between the right of +revolt, because of lack of representation, in the case of our people +and the Parliament of England, and the case of these people and the +United States, or any of the forms of its administration of power, +remember these things. I produce this in the simple duty of forensic +reply to the causes put forward as a justification of this +revolt--that is to say that, the Government oppressing them, or the +Government closed against them, and they excluded from it, they had a +right to resort to the revolution of force. + +You, therefore, must adopt the proposition of South Carolina, that, +when any interest ceases to be the majority in a Government, it has a +right to secede. How long would such a Government last? Why, there +never was any interest in this country which imagined that it had a +majority. Did the tariff interest have a majority? Did the grain +interest have a majority? Did the commercial interest have a majority? +Did the States of the West have a majority? Does California gold +represent itself by a majority? Why, the very safety of such a +Government as this is, that no interest shall or can be a majority; +but that the concurring, consenting wisdom drawn out of these +conflicting interests shall work out a system of law which will +conduce to the general interest. + +Now, that I have not done my learned friend, Mr. Brady, any injustice +in presenting the catalogue of grievances (not in his own view, but in +the view of those who have led in this rebellion), let us see what +they are: + +"The claim to abolish slavery." Is there any statute of the United +States anywhere that has abolished it? Has any Act been introduced +into Congress to abolish it? Has the measure had a vote? + +"Stoppage of the inter-state slave-trade." I may say the same thing of +that. + +"No more slavery in the Territories." Where is the Act of Congress, +where is the movement of the Federal Government, where the decision of +the Supreme Court, that holds that slavery cannot go into a territory? +Why, so far as acts go, everything has gone in the way of recognizing +the confirmation of the right--the repeal of the Missouri Compromise +by Congress, and the decision of the Federal Court, if it go to that +extent, as is claimed, in the case of Dred Scott. + +"Nullification of the fugitive-slave law." Who passed the +fugitive-slave law? Congress. Who have enforced it? The Federal power, +by arms, in the city of Boston. Who have enjoined its observation, to +Grand Juries and to Juries? The Justices of the Supreme Court of the +United States, in their Circuits. Who have held it to be +constitutional? The Supreme Court of the United States, and the +subordinate Courts of the United States, and every State Court that +has passed upon the subject, except it be the State Court of the State +of Wisconsin, if I am correctly advised. + +"Under-ground railroads, supported by the Government, and paid by +them." Are they? Not in the least. + +"The case of the Creole"--where, they say, no protection was given to +slaves on the high seas. Is there any judicial interpretation to that +effect? Nothing but the refusal of Congress to pass a bill, under some +circumstances of this or that nature, presented for its consideration; +and, because it has refused, it is alleged there is the assertion of +some principle that should charge upon this Government the inflamed +and particular views generally maintained on slavery by Garrison, +Phillips, and Theodore Parker. + +The other enormities they clothe in general phrase, and do not +particularly specify, except one particular subject--what is known as +the "John Brown raid"--in regard to which, as it has been introduced, +I shall have occasion to say something in another connection, and, +therefore, I will not comment upon it now. + +I find, however, I have omitted the last--Mr. Lincoln's doctrine, that +it is impossible, theoretically, for slave and free States to +co-exist. For many years that was considered to be Mr. Seward's +doctrine, but, when Mr. Lincoln became a candidate for the Presidency, +it was charged on him, being supported by some brief extracts from +former speeches made by him in canvassing his State. I cannot discuss +all these matters. They are beneath the gravity of State necessity, +and of the question of the right of revolution. They are the opinions, +the sentiments, the rhetoric, the folly, the local rage and madness, +if you please, in some instances, of particular inflammations, either +of sentiment or of action, rising in the bosom of so vast, so +impetuous a community as ours. But, suppose the tariff States, suppose +the grain States, were to attempt to topple down the Government, and +maintain a separate and sectional independence upon their interests, +of only the degree and gravity, and resting in the proof of facts like +these? Now, for the purpose of the argument, let us suppose all these +things to be wrong. My learned friends, who have made so great and so +passionate an appeal that individual lives should not be sacrificed +for opinion, certainly might listen to a proposition that the life of +a great nation should not be destroyed on these questions of the +opinions of individual citizens. No--you never can put either the fate +of a nation that it must submit, or the right of malcontents to assert +their power for its overthrow, upon any such proposition, of the +ill-working, or of the irritations that arise, and do not come up to +the effect of oppression, in the actual, the formal, and the +persistent movement of Government. Never for an instant. For that +would be, what Mr. 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. + +Now, my learned friends, pressed by this difficulty as to the +sufficiency of the causes, are driven finally to this--that there is a +right of revolution when anybody thinks there is a right of +revolution, and that that is the doctrine upon which our Government +rests, and upon which the grave, serious action of our forefathers +proceeded. And it comes down to the proposition of my learned friend, +Mr. Brady, that it all comes to the same thing, the _power_ and the +_right_. All the argument, most unquestionably, comes to that. But do +morals, does reason, does common sense recognize that, because power +and right may result in the same consequences, therefore there is no +difference in their quality, or in their support, or in their theory? +If I am slain by the sword of justice for my crime, or by the dagger +of an assassin for my virtue, I am dead, under the stroke of either. +But is one as right as the other? An oppressive Government may be +overthrown by the uprising of the oppressed, and Lord Camden's maxim +may be adhered to, that "when oppression begins, resistance becomes a +right;" but a Government, beneficent and free, may be attacked, may be +overthrown by tyranny, by enemies, by mere power. The Colonies may be +severed from Great Britain, on the principle of the right of the +people asserting itself against the tyranny of the parent Government; +and Poland may be dismembered by the interested tyranny of Russia and +Austria; and each is a revolution and destruction of the Government, +and its displacement by another--a dismemberment of the community, and +the establishment of a new one under another Government. But, do my +learned friends say that they equally come to the test of power as +establishing the right? Will my learned friend plant himself, in +justification of this dismemberment of a great, free, and prosperous +people, upon the example of the dismemberment of Poland, by the +introduction of such influences within, and by the co-operation of +such influences without, as secured that result? Certainly not. And +yet, if he puts it upon the right and the power, as coming to the same +thing, it certainly cannot make any difference whether the power +proceeds from within or from without. There is no such right. Both the +public action of communities and the private action of individuals +must be tried, if there is any trial, any scrutiny, any judgment, any +determination, upon some principles that are deeper than the question +of counting bayonets. When we are referred to the ease of Victor +Emannuel overthrowing the throne of the King of Naples, and thus +securing the unity of the Italian people under a benign Government, +are we to be told that the same principle and the same proposition +would have secured acceptance before the forum of civilization, and in +the eye of morality, to a successful effort of the tyrant of Naples to +overthrow the throne of Victor Emannuel, and include the whole of +Italy under his, King Bomba's, tyranny? No one. The quality of the +act, the reason, the support, and the method of it, are traits that +impress their character on those great public and national +transactions as well as upon any other. + +There is but one proposition, in reason and morality, beyond those I +have stated, which is pressed for the extrication and absolution of +these prisoners from the guilt that the law, as we say, impresses upon +their action and visits with its punishment. It is said that, however +little, as matter of law, these various rights and protections may +come to, good faith, or sincere, conscientious conviction on the part +of these men as to what they have done, should protect them against +the public justice. + +Now, we have heard a great deal of the assertion and of the execration +of the doctrine of the "higher law," in the discussions of +legislation, and in the discussions before the popular mind; but I +never yet have heard good faith or sincere opinion pressed, in a Court +of Justice, as a bar to the penalty which the law has soberly affixed, +in the discreet and deliberate action of the Legislature. And here my +learned friend furnishes me, by his reference to the grave instance of +injury to the property, and the security, and the authority of the +State of Virginia, which he has spoken of as "John Brown's raid," with +a ready instance, in which these great principles of public justice, +the authority of Government, and the sanctions of human law were met, +in the circumstances of the transaction, by a complete, and thorough, +and remarkable reliance, for the motive, the support, the stimulus, +the solace, against all the penalties which the law had decreed for +such a crime, on this interior authority of conscience, and this +supremacy of personal duty, according to the convictions of him who +acts. The great State of Virginia administered its justice, and it +found, as its principal victim, this most remarkable man, in regard to +whom it was utterly impossible to impute anything like present or +future, near or remote, personal interest or object of any kind--a man +in regard to whom Governor Wise, of Virginia, said, in the very +presence of the transaction of his trial, that he was the bravest, the +sincerest, the truthfulest man that he ever knew. And now, let us look +at the question in the light in which our learned friend presents +it--that John Brown, as matter of theoretical opinion of what he had a +right to do, under the Constitution and laws of his country, was +justified, upon the pure basis of conscientious duty to God--and let +us see whether, before the tribunals of Virginia, as matter of fact, +or matter of law, or right, or duty, any recognition was given to it. +No. John Brown was not hung for his theoretical heresies, nor was he +hung for the hallucinations of his judgment and the aberration of his +wrong moral sense, if you so call it, instead of the interior light of +conscience, as he regarded it. He was hung for attacking the +sovereignty, the safety, the citizens, the property, and the people of +Virginia. And, when my learned friend talks about this question of +hanging for political, moral, or social heresy, and that you cannot +thus coerce the moral power of the mind, he vainly seeks to beguile +your judgment. When Ravaillac takes the life of good King Henry, of +France, is it a justification that, in the interests of his faith, +holy to him--of the religion he professed--he felt impelled thus to +take the life of the monarch? When the assassin takes, at the door of +the House of Commons, the life of the Prime Minister, Mr. Percival, +because he thinks that the course of measures his administration +proposes to carry out is dangerous to the country, and falls a victim +to violated laws, I ask, in the name of common sense and common +fairness--are these executions to be called hanging for political or +religious heresies? No. And shall it ever be said that sincere +convictions on these theories of secession and of revolution are +entitled to more respect than sincere convictions and opinions on the +subject of human rights? Shall it be said that faith in Jefferson +Davis is a greater protection from the penalty of the law than faith +in God was to John Brown or Francis Ravaillac? + +But, gentlemen, it was said that certain isolated acts of some +military or civil authority of the United States, or some promulgation +of orders, or affirmation of measures by the Government, had +recognized the belligerent right, or the right to be considered as a +power fighting for independence, of this portion of our countrymen. +The flags of truce, and the capitulation at Hatteras Inlet, and the +announcement that we would not invade Virginia, but would protect the +Capital, are claimed as having recognized this point. Now, gentlemen, +this attempts either too much or too little. Is it gravely to be said +that, when the Government is pressing its whole power for the +restoration of peace and for the suppression of this rebellion, it is +recognizing a right to rebel, or has liberated from the penalties of +the criminal law such actors in it as it may choose to bring to +punishment? Is it to be claimed here that, by reason of these +proceedings, the Government has barred itself from taking such other +proceedings, under the same circumstances, as it may think fit? Why, +certainly not. The Government may, at any time, refuse to continue +this amenity of flags of truce. It can, the next time, refuse to +receive a capitulation as "prisoners of war," and may, in any future +action--as, indeed, in its active measures for the suppression of the +rebellion it is doing--affirm its control over every part of the +revolted regions of this country. There is nothing in this fact that +determines anything for the occasion, but the occasion itself. The +idea that the commander of an expedition to Hatteras Inlet has it in +his power to commit the Government, so as to empty the prisons, to +overthrow the Courts, and to discharge Jurors from their duty, and +criminals from the penalties of their crimes, is absurd. + +I shall now advert to the opinion of Judge Cadwalader, on the trial in +Philadelphia, and to the propositions of the counsel there, on behalf +of the prisoners, as containing and including the general views and +points urged, in one form or another, and with greater prolixity, at +least, if not earnestness and force, by the learned counsel who defend +the prisoners here. It will be found that those points cover all these +considerations: + + _First._ If the Confederate States of America is a Government, + either _de facto_ or _de jure_, it had a right to issue letters of + marque and reprisal; and if issued before the commission of the + alleged offence, that the defendant, acting under the authority of + such letters, would be a privateer, and not a pirate, and, as + such, is entitled to be acquitted. + + _Second._ That if, at the time of the alleged offence, the + Southern Confederacy, by actual occupation, as well as acts of + Government, had so far acquired the mastery or control of the + particular territory within its limits as to enable it to exercise + authority over, and to demand and exact allegiance from, its + residents, that then a resident of such Confederacy owes + allegiance to the Government under which he lives, or, at least, + that by rendering allegiance to such Government, whether on sea or + land, he did not thereby become a traitor to the Government of the + United States. + + _Third._ That if, at the time of the alleged offence and the + issuing of the letters of marque and reprisal upon which the + defendant acted, the Courts of the United States were so suspended + or closed in the Southern Confederacy, as to be no longer able to + administer justice and enforce the law in such Confederacy, that + the defendant thereby became so far absolved from his allegiance + to the United States as to enable him to take up arms for, and to + enter the service of, the Southern Confederacy, either on land or + sea, without becoming a traitor to the Government of the United + States. + + _Fourth._ That if, at the time of the alleged offence and his + entering into the service of the Southern Confederacy, the + defendant was so situated as to be unable to obtain either civil + or military protection from the United States, whilst at the same + time he was compelled to render either military or naval service + to the Southern Confederacy, or to leave the country, and, in this + event, to have his property sequestrated or confiscated by the + laws of the said Confederacy, that such a state of things, if they + existed, would amount in law to such duress as entitles the + defendant here to an acquittal. + + _Fifth._ That this Court has no jurisdiction of the case, because + the prisoner, after his apprehension on the high seas, was first + brought into another District, and ought to have been there tried. + +And now, gentlemen, even a more remote, unconnected topic, has been +introduced into this examination, and discussed and pursued with a +good deal of force and feeling, by my learned friend, Mr. Brady; and +that is, what this war is for, and what is expected to be accomplished +by it. Well, gentlemen, is your verdict to depend upon any question of +that kind? Is it to depend either upon the purpose of the Government +in waging the war, or upon its success in that purpose? If so, the +trial had been better postponed to the end of the war, and then you +will find your verdict in the result. What is the meaning of this? Let +those who began the war say what the war is for. Is it to overthrow +this Government and to dismember its territory? Is it to acquire +dominion over as large a portion of what constitutes the possessions +of the American people, and over as large a share of its population, +as the policy or the military power of the interest that establishes +for itself an independent Government, for its own protection, can +accomplish? Who are seeking to subjugate, and who is seeking to +protect? No subjugation is attempted or desired, in respect of the +people of these revolting States, except that subjugation which they +themselves made for themselves when they adopted the Constitution of +the United States, and thanked God, with Charles Cotesworth Pinckney, +that his blessing permitted them to do so,--and, up to this time, with +Alexander Stephens, have found it to be a Government that can only be +likened, on this terrestrial sphere, to the Eden and Paradise of the +nations of men. What is the interest that is seeking to wrest from the +authority of that benign Government portions of its territory and +authority, but the social and political interest of slavery, about +which I make no other reproach or question than this--that it has +purposes, and objects, and principles which do not consult the general +or equal interests of the population of these revolting States +themselves, nor contemplate a form of Government that any Charles +Cotesworth Pinckney, now, or any Alexander Stephens, hereafter, can +thank God for having been permitted to establish; and that, as Mr. +Stephens has said, instead of becoming gods, by bursting from the +restraints of this Eden, they will discover their own nakedness, and, +instead of finding peace and prosperity, they will come to cutting +their own throats. + +Now, what is the duty of a Government that finds this assault made by +the hands of terror and of force against the judgment and wishes of +the discreet, sober, and temperate, at least, to those to whom it owes +protection, as they owe allegiance to it? What, but to carry on, by +the force of the Government, the actual suppression of the rebellion, +so that arms may be laid down, peace may exist, and the law and the +Constitution be reinstated, and the great debate of opinion be +restored, that has been interrupted by this vehement recourse to arms? +What, but to see to it that, instead of the consequences of this +revolt being an expulsion, from this Paradise of free Government, of +these people whom we ought to keep within it, it shall end in the +expulsion of that tempting serpent--be it secession or be it +slavery--that would drive them out of it. 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. When this state of peace and +repose is accomplished by Conventions, by petitions, by +representations against Federal laws, Federal oppressions, or Federal +principles of government, the right of the people to be relieved from +oppression is presented; and then may the spirit and the action of our +fathers be invoked, and their condemnation of the British Parliament +come in play, if we do not do what is right and just in liberating an +oppressed people. But I need not say to you that the whole active +energies of this system of terror and of force in the Southern States +have been directed to make impossible precisely the same debate, the +same discussion, the same appeal, and the same just and equal +attention to the appeal. And you will find this avowed by many of +their speakers and by many of their writers--as, when Mr. Toombs +interrupts Mr. Stephens in the speech I have quoted from, when urging +that the people of Georgia should be consulted, by saying: "I am +afraid of Conventions and afraid of the people; I do not want to hear +from the cross-roads and the groceries," which are the opportunities +of public discussion and influence, it appears, in the State of +Georgia. That is exactly what they did not want to hear from; and +their rash withdrawal of this great question from such honest, +sensible consideration, will finally bring them to a point that the +people, interested in the subject, will take it by force; and then, +besides their own nakedness, which they have now discovered, the +second prophecy of Mr. Stephens, that they will cut their own throats, +will come about; and nothing but the powerful yet temperate, the firm +yet benign, authority of this Government, compelling peace upon these +agitations, will save those communities from social destruction and +from internecine strife at home. + +Now, having such an object, can it be accomplished? It cannot, unless +you try; and it cannot, if every soldier who goes into the field +concludes that he will not fire off his gun, for it is uncertain +whether it will end the war; or if, on any post of duty that is +devolved upon citizens in private life, we desert our Government, and +our full duty to the Government. But that it can be done, and that it +will be done, and that all this talk and folly about conquering eight +millions of people will result in nothing, I find no room to doubt. In +the first place, where are your eight millions? Why, there are the +fifteen Slave States, and four of them--Maryland, Delaware, Kentucky, +and Missouri--are not yet within the Confederacy. So we will subtract +three millions, at least, for that part of the concern. Then there are +five millions to be conquered; and how are they to be conquered? Why, +not by destruction, not by slaughter, not by chains and manacles; but +by the impression of the power of the Government, showing that the +struggle is vain, that the appeal to arms was an error and a crime, +and that, in the region of debate and opinion, and in equal +representation in the Government itself, is the remedy for all +grievances and evils. Be sure that, whatever may be said or thought of +this question of war, these people can be, not subjugated, but +compelled to entertain those inquiries by peaceful means; and I am +happy to be able to say that the feeble hopes and despairing views +which my learned friend, Mr. Brady, has thought it his duty to express +before you, as to the hopelessness of any useful result to these +hostilities, is not shared by one whom my friend, in the eloquent +climax to an oration, placed before us as "starting, in a red shirt, +to secure the liberties of Italy." I read his letter: + + "CAPRERA, _Sept. 10_. + + "_Dear Sir_: I saw Mr. Sandford, and regret to be obliged to + announce to you that I shall not be able to go to the United + States at present. I do not doubt of the triumph of the cause of + the Union, and that shortly; but, if the war should unfortunately + continue in your beautiful country, I shall overcome the obstacles + which detain me and hasten to the defence of a people who are dear + to me. + + "G. GARIBALDI." + +Garibaldi has had some experience, and knows the difference between +efforts to make a people free, and the warlike and apparently +successful efforts of tyranny; and he knows that a failure, even +temporary, does not necessarily secure to force, and fraud, and +violence a permanent success. He knows the difference between +restoring a misguided people to a free Government, and putting down +the efforts of a people to get up a free Government. He knows those +are two different things; and, if the war be not shortly ended, as he +thinks it will be, then he deems it right for him, fresh from the +glories of securing the liberties of Italy, to assist in +maintaining--what? Despotism? No! the liberties of America. + +One of the learned counsel, who addressed you in a strain of very +effective and persuasive eloquence, charmed us all by the grace of his +allusion to a passage in classical history, and recalled your +attention to the fact that, when the States of Greece which had warred +against Athens, anticipating her downfall beneath the prowess of their +arms, met to determine her fate, and when vindictive Thebes and +envious Corinth counseled her destruction, the genius of the Athenian +Sophocles, by the recital of the chorus of the Electra, disarmed this +cruel purpose, by reviving the early glories of united Greece. And the +counsel asked that no voice should be given to punish harshly these +revolted States, if they should be conquered. + +The voice of Sophocles in the chorus of the Electra, and those +glorious memories of the early union, were produced to bring back into +the circle of the old confederation the erring and rebellious Attica. +So, too, what shall we find in the memories of the Revolution, or in +the eloquence with which we have been taught to revere them, that will +not urge us all, by every duty to the past, to the present, and to the +future, to do what we can, whenever a duty is reposed in us, to +sustain the Government in its rightful assertion of authority and in +the maintenance of its power? Let me ask your attention to what has +been said by the genius of Webster on so great a theme as the memory +of Washington, bearing directly on all these questions of union, of +glory, of hope, and of duty, which are involved in this inquiry. See +whether, from the views thus invoked, there will not follow the same +influence as from the chorus of the Electra, for the preservation, the +protection, the restoration of every portion of what once was, and now +is, and, let us hope, ever shall be, our common country. + +On the occasion of the centennial anniversary of the birthday of +Washington, at the national Capital, in 1832, Mr. Webster, by the +invitation of men in public station as well as of the citizens of the +place, delivered an oration, about which I believe the common judgment +of his countrymen does not differ from what is known to have been his +own idea, that it was the best presentation of his views and feelings +which, in the long career of his rhetorical triumphs, he had had the +opportunity to make. + +No man ever thought or spoke of the character of Washington, and of +the great part in human affairs which he played, without knowing and +feeling that the crowning glory of all his labors in the field and in +the council, and the perpetual monument to his fame, if his fame shall +be perpetual, would be found in the establishment of the American +Union under the American Constitution. 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. In pressing that view, Mr. Webster thus +attracts the attention of his countrymen to the great achievement in +human affairs which the establishment of this Government has proved to +be, and thus illustrates the character of Washington: + + "It was the extraordinary fortune of Washington that, having been + intrusted, in revolutionary times, with the supreme military + command, and having fulfilled that trust with equal renown for + wisdom and for valor, he should be placed at the head of the first + Government in which an attempt was to be made, on a large scale, to + rear the fabric of social order on the basis of a written + Constitution and of a pure representative principle. A Government + was to be established, without a throne, without an aristocracy, + without castes, orders, or privileges; and this Government, instead + of being a democracy, existing and acting within the walls of a + single city, was to be extended over a vast country, of different + climates, interests and habits, and of various communions of our + common Christian faith. The experiment certainly was entirely new. + A popular Government of this extent, it was evident, could be + framed only by carrying into full effect the principle of + representation or of delegated power; and the world was to see + whether society could, by the strength of this principle, maintain + its own peace and good government, carry forward its own great + interests, and conduct itself to political renown and glory. + * * * * * + + "* * * * I remarked, gentlemen, that the whole world was and is + interested in the result of this experiment. And is it not so? Do + we deceive ourselves, or is it true that at this moment the career + which this Government is running is among the most attractive + objects to the civilized world? Do we deceive ourselves, or is it + true that at this moment that love of liberty and that + understanding of its true principles, which are flying over the + whole earth, as on the wings of all the winds, are really and truly + of American origin? * * * * * + + "* * * * Gentlemen, the spirit of human liberty and of free + Government, nurtured and grown into strength and beauty in America, + has stretched its course into the midst of the nations. Like an + emanation from Heaven, it has gone forth, and it will not return + void. It must change, it is fast changing, the face of the earth. + Our great, our high duty, is to show, in our own example, that this + spirit is a spirit of health as well as a spirit of power; that its + longevity is as great as its strength; that its efficiency to + secure individual rights, social relations, and moral order, is + equal to the irresistible force with which it prostrates + principalities and powers. The world at this moment is regarding us + with a willing, but something of a fearful, admiration. Its deep + and awful anxiety is to learn whether free States may be stable as + well as free; whether popular power may be trusted, as well as + feared; in short, whether wise, regular, and virtuous + self-government is a vision for the contemplation of theorists, or + a truth established, illustrated, and brought into practice in the + country of Washington. + + "Gentlemen, for the earth which we inhabit, and the whole circle of + the sun, for all the unborn races of mankind, we seem to hold in + our hands, for their weal or woe, the fate of this experiment. If + we fail, who shall venture the repetition? If our example shall + prove to be one, not of encouragement, but of terror, not fit to be + imitated, but fit only to be shunned, where else shall the world + look for free models? If this great _Western Sun_ be struck out of + the firmament, at what other fountain shall the lamp of liberty + hereafter be lighted? What other orb shall emit a ray to glimmer, + even, on the darkness of the world? * * * * * + + "* * * * The political prosperity which this country has attained + and which it now enjoys, has been acquired mainly through the + instrumentality of the present Government. While this agent + continues, the capacity of attaining to still higher degrees of + prosperity exists also. We have, while this lasts, a political life + capable of beneficial exertion, with power to resist or overcome + misfortunes, to sustain us against the ordinary accidents of human + affairs, and to promote, by active efforts, every public interest. + But dismemberment strikes at the very being which preserves these + faculties. It would lay its rude and ruthless hand on this great + agent itself. It would sweep away, not only what we possess, but + all power of regaining lost, or acquiring new, possessions. It + would leave the country, not only bereft of its prosperity and + happiness, but without limbs, or organs, or faculties, by which to + exert itself hereafter in the pursuit of that prosperity and + happiness. + + "Other misfortunes may be borne, or their effects overcome. 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? Who shall rear again the + well-proportioned columns of constitutional liberty? Who shall + frame together the skilful architecture which unites national + sovereignty with State rights, individual security, and public + prosperity? No, if these columns fall, they will be raised not + again. Like the Coliseum and the Parthenon, they will be destined + to a mournful, a melancholy immortality. Bitterer tears, however, + will flow over them, than were ever shed over the monuments of + Roman or Grecian art; for they will be the remnants of a more + glorious edifice than Greece or Rome ever saw--the edifice of + constitutional American Liberty. * * * * * + + "* * * * A hundred years hence other disciples of Washington will + celebrate his birth, with no less of sincere admiration than we now + commemorate it. When they shall meet, as we now meet, to do + themselves and him that honor, so surely as they shall see the blue + summits of his native mountains rise in the horizon, so surely as + they shall behold the river on whose banks he lived, and on whose + banks he rests, still flowing on toward the sea, so surely may they + see, as we now see, the flag of the Union floating on the top of + the Capitol; and then, as now, may the sun in his course visit no + land more free, more happy, more lovely, than this our own + country!" + +If, gentlemen, the eloquence of Mr. Webster, which thus enshrines the +memory and the great life of Washington, calls us back to the glorious +recollections of the Revolution and the establishment of our +Government, does it not urge every man everywhere that his share in +this great trust is to be performed now or never, and wherever his +fidelity and his devotion to his country, its Government and its +spirit, shall place the responsibility upon him? It is not the fault of +the Government, of the learned District Attorney, or of me, his humble +associate, that this, your verdict, has been removed, by the course of +this argument and by the course of this eloquence on the part of the +prisoners, from the simple issue of the guilt or innocence of these men +under the statute. It is not the action or the choice of the +Government, or of its counsel, that you have been drawn into higher +considerations. It is not our fault that you have been invoked to give, +on the undisputed facts of the case, a verdict which shall be a +recognition of the power, the authority, and the right of the rebel +Government to infringe our laws, or partake in the infringement of +them, to some form and extent. And now, here is your duty, here your +post of fidelity--not against law, not against the least right under +the law, but to sustain, by whatever sacrifice there may be of +sentiment or of feeling, the law and the Constitution. I need not say +to you, gentlemen, that if, on a state of facts which admits no +diversity of opinion, with these opposite forces arrayed, as they now +are, before you--the Constitution of the United States, the laws of the +United States, the commission of this learned Court, derived from the +Government of the United States, the venire and the empanneling of this +Jury, made under the laws and by the authority of the United States, on +our side--met, on their side, by nothing, on behalf of the prisoners, +but the commission, the power, the right, the authority of the rebel +Government, proceeding from Jefferson Davis--you are asked, by the law, +or under the law, or against the law, in some form, to recognize this +power, and thus to say that the folly and the weakness of a free +Government find here their last extravagant demonstration, then you are +asked to say that the vigor, the judgment, the sense, and the duty of a +Jury, to confine themselves to their responsibility on the facts of the +case, are worthless and yielding before impressions of a discursive and +loose and general nature. Be sure of it, gentlemen, that, on what I +suppose to be the facts concerning this particular transaction, a +verdict of acquittal is nothing but a determination that our Government +and its authority, in the premises of this trial, for the purposes of +your verdict, are met and overthrown by the protection thrown around +the prisoners by the Government of the Confederate States of America, +actual or incipient. Let us hope that you will do what falls to your +share in the post of protection in which you are placed, for the +liberties of this nation and the hopes of mankind; for, in surrendering +them, you will be forming a part of the record on the common grave of +the fabric of this Government, and of the hopes of the human race, +where our flag shall droop, with every stripe polluted and every star +erased, and the glorious legend of "Liberty and Union, now and forever, +one and inseparable," replaced by this mournful confession, "Unworthy +of freedom, our baseness has surrendered the liberties which we had +neither the courage nor the virtue to love or defend." + + +CHARGE OF JUDGE NELSON. + +_Judge Nelson_ then proceeded to deliver the Charge of the Court, +in which _Judge Shipman_, his associate, concurred: + +The first question presented in this case is, whether or not the Court +has jurisdiction of the offence? This depends upon a clause of the 14th +section of the Act of Congress of 1825, as follows: "And the trial of +all offences which shall be committed upon the high seas or elsewhere, +out of the limits of any State or District, shall be in the District +where the offender is apprehended, or into which he may be first +brought." The prisoners, who were captured by an armed vessel of the +United States, off Charleston, South Carolina, were ordered by the +commander of the fleet to New York for trial; but the Minnesota, on +board of which they were placed, was destined for Hampton Roads, and it +became necessary, therefore, that they should be there transferred to +another vessel. They were thus transferred to the Harriet Lane, and, +after some two days' delay, consumed in the preparation, they were sent +on to this port, where they were soon after arrested by the civil +authorities. It is insisted, on behalf of the prisoners, that inasmuch +as Hampton Roads, to which place the prisoners were taken and +transferred to the Harriet Lane, was within the Eastern District of the +State of Virginia, the jurisdiction attached in that District, as that +was the first District into which the prisoners were brought. The Court +is inclined to think that the circumstances under which the Minnesota +was taken to Hampton Roads, in connection with the original order by +the commander that the prisoners should be sent to this District for +trial, do not make out a bringing into that District within the meaning +of the statute. But we are not disposed to place the decision on this +ground. The Court is of opinion that the clause conferring jurisdiction +is in the alternative, and that jurisdiction may be exercised either in +the District in which the prisoners were first brought, or in that in +which they were apprehended under lawful authority for the trial of the +offence. This brings us to the merits of the case. + +The indictment under which the prisoners are tried contains ten counts. +The first five are framed upon the third section of the Act of Congress +of 1820, which is as follows: "That, if any person shall, upon the high +seas, commit the crime of robbery, in or upon any ship or vessel, or +upon any of the ship's company of any ship or vessel, or the lading +thereof, such person shall be adjudged to be a pirate," and, upon +conviction, shall suffer death. The five several counts charge, in +substance, that the prisoners did, upon the high seas, enter in and +upon the brig Joseph, the same being an American vessel, and upon the +ship's company, naming them; and did, then and there, piratically, +feloniously, and violently make an assault upon them, and put them in +personal fear and danger of their lives; and did, then and there, the +brig Joseph, her tackle and apparel, her lading (describing it), which +were in the custody and possession of the master and crew, from the +said master and crew and from their possession, and in their presence, +and against their will, violently, piratically and feloniously seize, +rob, steal, take and carry away, against the form of the statute, &c. +There are some variances in the different counts, but it will not be +material to notice them. It will be observed that this provision of the +Act of Congress prescribing the offence applies to all persons, whether +citizens or foreigners, making no distinction between them, and is +equally applicable, therefore, to all the prisoners at the bar. The +remaining five counts are framed under the 9th section of the Act of +Congress of 1790, which is as follows: "That if any citizen shall +commit any piracy or robbery aforesaid, or any act of hostility against +the United States, or any citizen thereof, upon the high sea, 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 +conviction, shall suffer death. These five counts charge that the +prisoners are all citizens of the United States, and that they +committed the acts set forth in the previous five counts, on pretence +of authority from one Jefferson Davis. + +As the provision of the Act of Congress upon which these counts are +framed is applicable only to citizens and not to foreigners, but four +of the prisoners can be brought within it, as the other eight are +admitted to be foreigners. The four are Baker, Howard, Passalaigue, and +Harleston. The distinction between the provisions of the third section +of the Act of 1820 and the ninth section of 1790, and the counts in the +indictment founded upon them, arises out of a familiar principle of +international law, and which is, that in a state of war existing +between two nations, either may commission private armed vessels to +carry on war against the enemy on the high seas, and the commission +will afford protection, even in the judicial tribunals of the enemy, +against a charge of the crime of robbery or piracy. Such a commission +would be a good defence against an indictment under the third section +of 1820, by force of the above rule of international law. The ninth +section of the Act of 1790 changes the rule as it respects citizens of +the United States who may take service under the commission of the +private armed vessels of the enemy of their country. It declares, as it +respects them, the commission shall not be admitted as a defence; and, +as this legislation relates only to our own citizens, and prescribes a +rule of action for them, and not as it respects the citizens or +subjects of other countries, we do not perceive that any exception can +be taken to the Act as unconstitutional or otherwise. But, upon the +view the Court has taken of the case, it will not be necessary to +trouble you with any remarks as it respects this ninth section, nor in +respect to the several counts framed under it, but we shall confine our +observations to a consideration of the third section of the Act of +1820. There can be no injustice to the prisoners in thus restricting +the examination, as any authority for the perpetration of the acts +charged in the indictment, founded upon the Act of 1820, will be +equally available to them. Nor can there be any injustice to the +prosecution, for unless the crime of robbery, as prescribed in the Act +of 1820, is established against the four prisoners, none could be under +the ninth section of the Act of 1790. The crime in the two Acts is the +same for all the purposes of this trial. The only difference is the +exclusion of a particular defence under the latter. Now, the crime +charged is robbery upon an American vessel on the high seas, and hence +it is necessary that we should turn our attention to the inquiry, what +constitutes this offence? It has already been determined by the highest +authority--the Supreme Court of the United States--that we must look to +the common law for a definition of the term robbery, as it is to be +presumed it was used by Congress in the Act in that sense, and, taking +this rule as our guide, it will be found the crime consists in this: +the felonious taking of goods or property of any value from the person +of another, or in his presence, against his will, by violence, or +putting him in fear. The taking must be felonious--that is, taking with +a wrongful intent to appropriate the goods of another. It need not be a +taking which, if upon the high seas, would amount to piracy, according +to the law of nations, or what, in some of the books, is called general +piracy or robbery. This is defined to be a forcible depredation upon +property upon the high seas without lawful authority, done _animo +furandi_--that is, as defined in this connection, in a spirit and +intention of universal hostility. + +A pirate is said to be one who roves the sea in an armed vessel, +without any commission from any sovereign State, on his own authority, +and for the purpose of seizing by force and appropriating to himself, +without discrimination, every vessel he may meet. For this reason, +pirates, according to the law of nations, have always been compared to +robbers--the only difference being that the sea is the theatre of the +operations of one and the land of the other. And, as general robbers +and pirates upon the high seas are deemed enemies of the human +race--making war upon all mankind indiscriminately--the crime being one +against the universal laws of society--the vessels of every nation have +a right to pursue, seize, and punish them. Now, if it were necessary, +on the part of the Government, to bring the crime charged in the +present case against the prisoners within this definition of robbery +and piracy, as known to the common law of nations, there would be great +difficulty in so doing either upon the evidence, or perhaps upon the +counts, as charged in the indictment--certainly upon the evidence. For +that shows, if anything, an intent to depredate upon the vessels and +property of one nation only--the United States--which falls far short +of the spirit and intent, as we have seen, that are said to constitute +essential elements of the crime. But the robbery charged in this case +is that which the Act of Congress prescribes as a crime, and may be +denominated a statute offence as contra-distinguished from that known +to the law of nations. The Act, as you have seen, declares the person a +pirate, punishable by death, who commits the crime of robbery upon the +high seas against any ship or vessel, or upon any ship's company of any +ship or vessel, &c.; and the interpretation given to these words +applies the crime to the case of depredation upon an American vessel or +property on the high seas, under circumstances that would constitute +robbery, if the offence was committed on land, and which is, according +to the language of Blackstone, the felonious and forcible taking from +the person of another of goods or money, to any value, by violence or +putting him in fear. The felonious intent which describes the state of +mind as an element of the offence, is what is called in technical +language _animo furandi_, which means an intent of gaining by +another's loss, or to despoil another of his goods _lucri causa_, +for the sake of gain. Now, if you are satisfied, upon the evidence, +that the prisoners have been guilty of this statute offence of robbery +upon the high seas, it is your duty to convict them, though it may fall +short of the offence as known to the law of nations. We have stated +what constitute the elements of the crime, and it is your province to +apply the facts to them, and thus determine, whether or not the crime +has been committed. That duty belongs to you, and not to the Court. We +have said that, in a state of war between two nations, the commission +to private armed vessels from either of the belligerents affords a +defence, according to the law of nations, in the Courts of the enemy, +against a charge of robbery or piracy on the high seas, of which they +might be guilty in the absence of such authority; and under this +principle it has been insisted, by the learned counsel for the +prisoners, that the commission of the Confederate States, by its +President, Davis, to the master and crew of the Savannah, which has +been given in evidence, affords such defence. + +In support of this position, it is claimed that the Confederate States +have thrown off the power and authority of the General Government; have +erected a new and independent Government in its place, and have +maintained it against the whole military and naval power of the former; +that it is a Government, at least _de facto_, and entitled to the +rights and privileges that belong to a sovereign and independent +nation. The right, also, constitutional or otherwise, has been strongly +urged, and the law of nations and the commentaries of eminent +publicists have been referred to as justifying the secession or revolt +of these Confederate States. Great ability and research have been +displayed by the learned counsel for the defence on this branch of the +case. But the Court do not deem it pertinent, or material, to enter +into this wide field of inquiry. This branch of the defence involves +considerations that do not belong to the Courts of the country. It +involves the determination of great public, political questions, which +belong to departments of our Government that have charge of our foreign +relations--the legislative and executive departments; and, when decided +by them, the Court follows the decision; and, until these departments +have recognized the existence of the new Government, the Courts of the +nation cannot. Until this recognition of the new Government, the Courts +are obliged to regard the ancient state of things remaining as +unchanged. This has been the uniform course of decision and practice of +the Courts of the United States. The revolt of the Spanish Colonies of +South America, and the new Government erected on separating from the +mother country, were acknowledged by an Act of Congress, on the +recommendation of the President, in 1822. Prior to this recognition, +and during the existence of the civil war between Spain and her +Colonies, it was the declared policy of our Government to treat both +parties as belligerents, entitled equally to the rights of asylum and +hospitality; and to consider them, in respect to the neutral relation +and duties of our Government, as equally entitled to the sovereign +rights of war as against each other. This was, also, the doctrine of +the Courts, which they derived from the policy of the Government, +following the political departments of the Government as it respects +our relations with new Governments erected on the overthrow of the old. +And if this is the rule of the Federal Courts, in the case of a revolt +and erection of a new Government, as it respects foreign nations, much +more is the rule applicable when the question arises in respect to a +revolt and the erection of a new Government within the limits and +against the authority of the Government under which we are engaged in +administering her laws. And, in this connection, it is proper to say +that, as the Confederate States must first be recognized by the +political departments of the mother Government, in order to be +recognized by the Courts of the country, namely, the legislative and +executive departments, we must look to the acts of these departments as +evidence of the fact. The act is the act of the nation through her +constitutional public authorities. These, gentlemen, are all the +observations we deem necessary to submit to you. The case is an +interesting one, not only in the principles involved, but to the +Government and the prisoners at the bar. It has been argued with a +research and ability in proportion to its magnitude, both in behalf of +the prisoners and the Government; and we do not doubt, with the aid of +these arguments, and the instructions of the Court, you will be enabled +to render an intelligent and just verdict in the case. + +The Jury retired at twenty minutes after three o'clock. + +At six o'clock they came into Court. Their names were called, and the +inquiry made by the Clerk whether they had agreed upon their verdict. +Their Foreman said they had not. One of the prisoners having felt +unwell, had been removed from the close air of the Court-room, and some +little delay occurred until he was brought in. Judge Nelson then said: +"We have had a communication from one of the officers in charge of the +Jury, from the Jury, as we understood, though it had no name signed to +it. I would inquire whether the note was from the Jury?" + +_The Foreman_: It was. + +_Judge Nelson_: We would prefer that the Jurymen, or any of them who +may be embarrassed with the difficulties referred to, should himself +state the inquiry which he desires to make of the Court. + +_Mr. Powell_, one of the Jurors, said that the question was, "whether, +if the Jury believed that civil war existed, and had been so recognized +by the act of our Government, or if the Jury believe that the intent to +commit a robbery did not exist in the minds of the prisoners at the +time, it may influence their verdict." + +After consultation with Judge Shipman, Judge Nelson said: As it +respects the first inquiry of the Juror--whether the Government has +recognized a state of civil war between the Confederate States and +itself--the instruction which the Court gave the Jury was, that this +Court could not recognize a state of civil war, or a Government of the +Confederate States, unless the legislative and executive Departments +of the Government had recognized such a state of things, or the +President had, or both; and that the act of recognition was a national +act, and that we must look to the acts of these Departments of the +Government as the evidence and for the evidence of the recognition of +this state of things, and the only evidence. As it respects the other +question--whether or not, if the Jury were of opinion, on the +evidence, that these prisoners did not intend to commit a robbery on +the high seas against the property of the United States, they were +guilty of the offence charged--that is a mixed question of law and +fact. The Court explained to you what constitutes the crime of robbery +on the high seas, which was the felonious taking of the property of +another upon the high seas by force, by violence, or putting them in +fear of bodily injury, which, according to the law, is equivalent to +actual force; and that the term felonious, as interpreted by the law +and the Courts, was the taking with a wrongful intent to despoil the +others of their property. These elements constitute the crime of +robbery. Now, it is for you to take up the facts and decide whether +the evidence in the case brings the prisoners within that definition. +The Court will not encroach upon your province in these respects, but +will confine itself to the definition of the law. + +Another of the Jury--_George H. Hansell_--rose and said: One of the +Jury--not myself--understood your honor to charge that there must be +an intent to take the property of another for your own use. + +_Judge Nelson_: No, I did not give that instruction. The Jury may +withdraw. + +The Jury again retired, and, as there was no probability of an +agreement at half-past seven o'clock, the Court adjourned to eleven +o'clock Thursday morning. + + + + +EIGHTH DAY. + + +_Oct. 31._ + +The Jury, who had been in deliberation all night, came into Court at +twenty minutes past eleven o'clock. The names of the prisoners were +called, and, on the Jury taking their seats-- + +_The Clerk_ said: Gentlemen of the Jury, have you agreed on your +verdict? + +_Foreman_: No, sir. + +_The Court_: Is there any prospect of your agreeing? + +_Foreman_: I am sorry to say there is no prospect at all that we can +come to an agreement. + +After some consultation with Judge Shipman-- + +_Judge Nelson_ inquired: Is the opinion expressed by the Foreman that +of the other Jurymen? + +_Mr. Powell_ and _Mr. Cassidy_ (Jurors) rose and responded in the +affirmative. + +_Mr. Taylor_ further remarked: The prospect seems to be that way. So +far as we have gone, there does not seem to be any idea of coming +together at all. The only idea of coming to a judgment would be that +some of the Jurors, we think, do not understand the charge. They think +they do, and we think they do not. It is for them to say, or not, +whether they understand the charge correctly. + +To this implied invitation to the Jurymen to express themselves there +was no response. + +_Judge Nelson_: If the Court supposed that there would be any fair or +reasonable prospect of your coming to an agreement, we would be +inclined to direct you to retire and pursue your consultations +further. You have now been together about twenty hours, and unless +there is some expression from the Jury that there is a possibility or +probability that they may agree, we are inclined not to detain you +longer. + +_Mr. Costello_ (a Juror): With respect to the Court, I think there is +no likelihood of our coming to an agreement. + +_Foreman_: If the Court will allow me, after the instructions we got +yesterday evening, at the instance of many of the Jury, we stand just +in the same position we stood when we left your presence the first +time. + +_Judge Nelson_: The Court, then, will discharge you, gentlemen. + +The Court entered an order remanding the prisoners, and, as they were +about being removed-- + +_Mr. E. Delafield Smith_ (District Attorney) said: I desire, if the +Court please, to move, in the case of the Savannah privateers, their +trial at the earliest day consistent with the engagements of the +Court, and of the counsel engaged for the defence; and I would name a +week from next Monday, as it will, probably, be necessary to issue an +order for a new panel of Jurors. + +_Judge Nelson_: So far as I am concerned, I can only remain until the +20th of November, and the business of the Court is such that the trial +cannot take place while I am here, as I must devote the rest of my +time to other causes. + +_Mr. Smith_: Then the motion for a new panel will be reserved until we +see at what time it will be possible to bring the case on. + +_Mr. Lord_: Before that application shall be seriously entertained by +the Court, we would like to be heard upon the subject. I will say +nothing now, because it is very evident it cannot be discussed at this +time. + +_Judge Nelson_: The counsel may assume that I cannot take up the +second trial during the present term. They may act upon that view. + +The prisoners were then remanded to the custody of the Deputy +Marshals. + + + + +APPENDIX. + + +I. + +PRESIDENT'S PROCLAMATION, APRIL 15, 1861. (_Page 109._) + +_By the President of the United States._ + +Whereas, the laws of the United States have been for some time past, +and now are, opposed, and the execution thereof obstructed, in the +States of South Carolina, Georgia, Alabama, Florida, Mississippi, +Louisiana, and Texas, by combinations too powerful to be suppressed by +the ordinary course of judicial proceedings, or by the powers vested +in the Marshals by law: Now, therefore, I, ABRAHAM LINCOLN, President +of the United States, in virtue of the power in me vested by the +Constitution and the laws, have thought fit to call forth, and hereby +do call forth, the militia of the several States of the Union, to the +aggregate number of 75,000, in order to suppress said combinations and +to cause the laws to be duly executed. + +The details for this object will be immediately communicated to the +State authorities through the War Department. I appeal to all loyal +citizens to favor, facilitate, and aid this effort to maintain the +honor, the integrity, and existence of our national Union, and the +perpetuity of popular government, and to redress wrongs already long +enough endured. I deem it proper to say that the first service +assigned to the forces hereby called forth will probably be to +repossess the forts, places, and property which have been seized from +the Union; and in every event the utmost care will be observed, +consistently with the objects aforesaid, to avoid any devastation, any +destruction of, or interference with, property, or any disturbance of +peaceful citizens of any part of the country; and I hereby command the +persons composing the combinations aforesaid to disperse and retire +peaceably to their respective abodes within twenty days from this +date. + +Deeming that the present condition of public affairs presents an +extraordinary occasion, I do hereby, in virtue of the power in me +vested by the Constitution, convene both houses of Congress. The +Senators and Representatives are, therefore, summoned to assemble at +their respective Chambers, at twelve o'clock, noon, on Thursday, the +fourth day of July next, then and there to consider and determine such +measures as, in their wisdom, the public safety and interest may seem +to demand. + +In witness whereof, I have hereunto set my hand, and caused the seal +of the United States to be affixed. + +Done at the City of Washington, this fifteenth day of April, in the +year of our Lord one thousand eight hundred and sixty-one, and of the +independence of the United States the eighty-fifth. + +ABRAHAM LINCOLN. + +By the President. + +WILLIAM H. SEWARD, Secretary of State. + + +II. + +PROCLAMATION OF THE PRESIDENT, DECLARING A BLOCKADE. (_Page 109._) _By +the President of the United States of America._ + +Whereas, an insurrection against the Government of the United States +has broken out in the States of South Carolina, Georgia, Alabama, +Florida, Mississippi, Louisiana, and Texas, and the laws of the United +States for the collection of the revenue cannot be efficiently +executed therein conformably to that provision of the Constitution +which requires duties to be uniform throughout the United States: + +And whereas a combination of persons engaged in such insurrection have +threatened to grant pretended letters of marque, to authorize the +bearers thereof to commit assaults on the lives, vessels, and property +of good citizens of the country lawfully engaged in commerce on the +high seas, and in waters of the United States: + +And whereas an Executive Proclamation has been already issued, +requiring the persons engaged in these disorderly proceedings to +desist therefrom, calling out a militia force for the purpose of +repressing the same, and convening Congress in extraordinary session +to deliberate and determine thereon: + +Now, therefore, I, ABRAHAM LINCOLN, President of the United States, +with a view to the same purposes before mentioned, and to the +protection of the public peace and the lives and property of quiet and +orderly citizens pursuing their lawful occupations, until Congress +shall have assembled and deliberated on the said unlawful proceedings, +or until the same shall have ceased, have further deemed it advisable +to set on foot a blockade of the ports within the States aforesaid, in +pursuance of the laws of the United States and of the laws of nations +in such cases provided. For this purpose a competent force will be +posted so as to prevent entrance and exit of vessels from the ports +aforesaid. If, therefore, with a view to violate such blockade, a +vessel shall approach, or shall attempt to leave any of the said +ports, she will be duly warned by the Commander of one of the +blockading vessels, who will indorse on her register the fact and date +of such warning; and if the same vessel shall again attempt to enter +or leave the blockaded port, she will be captured, and sent to the +nearest convenient port for such proceedings against her and her +cargo, as prize, as may be deemed advisable. + +And I hereby proclaim and declare, that if any person, under the +pretended authority of said States, or under any other pretence, shall +molest a vessel of the United States, or the persons or cargo on board +of her, such person will be held amenable to the laws of the United +States for the prevention and punishment of piracy. + +ABRAHAM LINCOLN. + +By the President. + +WILLIAM H. SEWARD, Secretary of State. + +Washington, April 19, 1861. + + +III. + +CORRESPONDENCE BETWEEN GOV. PICKENS, OF SOUTH CAROLINA, AND MAJOR +ANDERSON, COMMANDING AT FORT SUMTER, IN RELATION TO THE FIRING ON THE +STAR OF THE WEST. (_Page 110._) + + _To his Excellency the Governor of South Carolina_: + + SIR: Two of your batteries fired this morning on an unarmed vessel + bearing the flag of my Government. As I have not been notified + that war has been declared by South Carolina against the United + States, I cannot but think this a hostile act, committed without + your sanction or authority. Under that hope, I refrain from + opening a fire on your batteries. I have the honor, therefore, + respectfully to ask whether the above-mentioned act--one which I + believe without parallel in the history of our country or any + other civilized Government--was committed in obedience to your + instructions? and notify you, if it is not disclaimed, that I + regard it as an act of war, and I shall not, after reasonable time + for the return of my messenger, permit any vessel to pass within + the range of the guns of my fort. In order to save, as far as it + is in my power, the shedding of blood, I beg you will take due + notification of my decision for the good of all concerned. Hoping, + however, your answer may justify a further continuance of + forbearance on my part, + + I remain, respectfully, + + ROBERT ANDERSON. + + +GOV. PICKENS' REPLY. + + Gov. Pickens, after stating the position of South Carolina towards + the United States, says that any attempt to send United States + troops into Charleston harbor, to reinforce the forts, would be + regarded as an act of hostility; and in conclusion adds, that any + attempt to reinforce the troops at Fort Sumter, or to retake and + resume possession of the forts within the waters of South + Carolina, which Major Anderson abandoned, after spiking the cannon + and doing other damage, cannot but be regarded by the authorities + of the State as indicative of any other purpose than the coercion + of the State by the armed force of the Government; special agents, + therefore, have been off the bar to warn approaching vessels, + armed and unarmed, having troops to reinforce Fort Sumter aboard, + not to enter the harbor. Special orders have been given the + Commanders at the forts not to fire on such vessels until a shot + across their bows should warn them of the prohibition of the + State. Under these circumstances the Star of the West, it is + understood, this morning attempted to enter the harbor with + troops, after having been notified she could not enter, and + consequently she was fired into. This act is perfectly justified + by me. + + In regard to your threat about vessels in the harbor, it is only + necessary for me to say, you must be the judge of your + responsibility. Your position in the harbor has been tolerated by + the authorities of the State, and while the act of which you + complain is in perfect consistency with the rights and duties of + the State, it is not perceived how far the conduct you propose to + adopt can find a parallel in the history of any country, or be + reconciled with any other purpose than that of your Government + imposing on the State the condition of a conquered province. + + F. W. PICKENS. + + +SECOND COMMUNICATION FROM MAJOR ANDERSON. + + _To his Excellency Governor Pickens_: + + SIR: I have the honor to acknowledge the receipt of your + communication, and say that, under the circumstances, I have deemed + it proper to refer the whole matter to my Government, and intend + deferring the course I indicated in my note this morning until the + arrival from Washington of such instructions as I may receive. + + I have the honor also to express the hope that no obstructions will + be placed in the way, and that you will do me the favor of giving + every facility for the departure and return of the bearer, Lieut. + T. TALBOT, who is directed to make the journey. + + ROBERT ANDERSON. + + +IV. + +EXTRACTS FROM PRESIDENT LINCOLN'S INAUGURAL, MARCH 4, 1861. (_Page +110._) + +The power confided to me will be used to hold, occupy, and possess the +property and places belonging to the Government, and collect the duties +on imports; but, beyond what may be necessary for these objects, there +will be no invasion, no using of force against or among the people +anywhere. Where hostility to the United States shall be so great and so +universal as to prevent competent resident citizens from holding the +federal offices, there will be no attempt to force obnoxious strangers +among the people with that object. While the strict legal right may +exist of the Government to enforce the exercise of these offices, the +attempt to do so would be so irritating, and so nearly impracticable +withal, that I deem it better to forego for the time the use of such +offices. * * * * * + +I do not forget the position assumed by some that constitutional +questions are to be decided by the Supreme Court, nor do I deny that +such decision must be binding in any case upon the parties to a suit, +while they are also entitled to very high respect and consideration in +all parallel cases by all other departments of the Government; and +while it is obviously possible that such decision may be erroneous in +any given case, still the evil effect following it, being limited to +that particular case, with the chances that it may be overruled and +never become a precedent for other cases, can better be borne than +could the evils of a different practice. At the same time, the candid +citizen must confess that, if the policy of the Government upon the +vital questions affecting the whole people is to be irrevocably fixed +by the decisions of the Supreme Court, the instant they are made in +ordinary litigations between parties in personal actions, the people +will have ceased to be their own masters,--having, to that extent, +practically resigned their Government into the hands of that eminent +tribunal. Nor is there, in this view, any assault upon the Court or the +Judges. It is a duty from which they may not shrink, to decide cases +properly brought before them; and it is no fault of theirs if others +seek to turn their decisions to political purposes. + + +V. + +THE PRESIDENT'S SPEECH TO THE VIRGINIA COMMISSIONERS. (_Page 110._) + +_To Honorable Messrs. Preston, Stuart, and Randolph_: + +GENTLEMEN: As a Committee of the Virginia Convention, now in session, +you present me a preamble and resolution in these words: + +"Whereas, in the opinion of this Convention, the uncertainty which +prevails in the public mind as to the policy which the Federal +Executive intends to pursue towards the seceded States is extremely +injurious to the industrious and commercial interests of the country; +tends to keep up an excitement which is unfavorable to the adjustment +of the pending difficulties; and threatens a disturbance of the public +peace; therefore-- + +"_Resolved_, That a committee of three delegates be appointed to wait +on the President of the United States, present to him this preamble, +and respectfully ask him to communicate to this Convention the policy +which the Federal Executive intends to pursue in regard to the +Confederate States." + + * * * * * + +In answer, I have to say, that having, at the beginning of my official +term, expressed my intended policy as plainly as I was able, it is with +deep regret and mortification I now learn there is great and injurious +uncertainty in the public mind as to what that policy is, and what +course I intend to pursue. Not having as yet seen occasion to change, +it is now my purpose to pursue the course marked out in the inaugural +address. I commend a careful consideration of the whole document as the +best expression I can give to my purposes. As I then and therein said, +I now repeat--"The power confided in me will be used to hold, occupy, +and possess property and places belonging to the Government, and to +collect the duties and imposts; but beyond what is necessary for these +objects, there will be no invasion, no using of force against or among +the people anywhere." By the words "property and places belonging to +the Government," I chiefly allude to the military posts and property +which were in possession of the Government when it came into my hands. +But if, as now appears to be true, in pursuit of a purpose to drive the +United States authority from these places, an unprovoked assault has +been made upon Fort Sumter, I shall hold myself at liberty to +repossess, if I can, like places which had been seized before the +Government was devolved upon me; and in any event I shall, to the best +of my ability, repel force by force. In case it proves true that Fort +Sumter has been assaulted, as is reported, I shall, perhaps, cause the +United States mails to be withdrawn from all the States which claim to +have seceded, believing that the commencement of actual war against the +Government justifies and possibly demands it. I scarcely need to say, +that I consider the military posts and property situated within the +States which claim to have seceded as yet belonging to the Government +of the United States as much as they did before the supposed secession. +Whatever else I may do for the purpose, I shall not attempt to collect +the duties and imposts by any armed invasion of any part of the +country; not meaning by this, however, that I may not land a force +deemed necessary to relieve a fort upon the border of the country. From +the fact that I have quoted a part of the inaugural address, it must +not be inferred that I repudiate any other part,--the whole of which I +re-affirm, except so far as what I now say of the mails may be regarded +as a modification. + + +VI. + +EXTRACTS FROM PRESIDENT LINCOLN'S MESSAGE TO CONGRESS, JULY 4, 1861. + +At the beginning of the present presidential term, four months ago, the +functions of the Federal Government were found to be generally +suspended within the several States of South Carolina, Georgia, +Alabama, Mississippi, Louisiana, and Florida, excepting only of the +post-office department. Within these States all the forts, arsenals, +dockyards, custom-houses and the like, including the movable and +stationary property in and about them, had been seized and were held in +open hostility to this Government, excepting only Forts Pickens, +Taylor, and Jefferson, on and near the Florida coast, and Fort Sumter, +in Charleston harbor, South Carolina. + + * * * * * + +In accordance with this purpose, an ordinance had been adopted in each +of these States, declaring the States respectively to be separated from +the National Union. A formula for instituting a combined Government of +those States had been promulgated, and this illegal organization, in +the character of the "Confederate States," was already invoking +recognition, aid, and intervention from foreign powers. + +Finding this condition of things, and believing it to be an imperative +duty upon the incoming Executive to prevent, if possible, the +consummation of such attempt to destroy the Federal Union, a choice of +means to that end became indispensable. This choice was made, and was +declared in the inaugural address. + +[After reciting the measures previously taken, he continues]: + +Other calls were made for volunteers to serve three years, unless +sooner discharged, and also for large additions to the regular army and +navy. These measures, whether strictly legal or not, were ventured upon +under what appeared to be a popular demand and a public +necessity,--trusting then, as now, that Congress would readily ratify +them. + +It is believed that nothing has been done beyond the constitutional +competency of Congress. Soon after the first call for militia, it was +considered a duty to authorize the Commanding General, in proper cases, +according to his discretion, to suspend the privilege of the writ of +habeas corpus, or, in other words, to arrest and detain, without resort +to the ordinary process and forms of law, such individuals as he might +deem dangerous to the public safety. + +This authority has purposely been exercised but very sparingly. +Nevertheless, the legality and propriety of what has been done under it +are questioned, and the attention of the country has been called to the +proposition that one who is sworn to take care that the laws are +faithfully executed should not himself violate them. + + +VII. + +EXTRACTS FROM PRESIDENT BUCHANAN'S MESSAGE TO CONGRESS, DECEMBER 4, +1860. + +The Fugitive-Slave Law has been carried into execution in every +contested case since the commencement of the present administration, +though often, it is to be regretted, with great loss and inconvenience +to the master, and with considerable expense to the Government. Let us +trust that the State Legislatures will repeal their unconstitutional +and obnoxious enactments. Unless this shall be done without unnecessary +delay, it is impossible for any human power to save the Union. + +The Southern States, standing on the basis of the Constitution, have a +right to demand this act of justice from the States of the North. +Should it be refused, then the Constitution, to which all the States +are parties, will have been willfully violated, in one portion of them, +in a provision essential to the domestic security and happiness of the +remainder. In that event, the injured States, after having first used +all constitutional and peaceful means to obtain redress, would be +justified in revolutionary resistance to the Government of the Union. + + * * * * * + +What, in the meantime, is the responsibility and true position of the +Executive? He is bound by a solemn oath before God and the country "to +take care that the laws are faithfully executed;" and from this +obligation he cannot be absolved by any human power. But what if the +performance of this duty, in whole or in part, has been rendered +impracticable by events over which he could have exercised no control? +Such, at the present moment, is the case throughout the State of South +Carolina, so far as the laws of the United States, to secure the +administration of justice by means of the federal judiciary, are +concerned. All the federal officers within its limits, through whose +agency alone these laws can be carried into execution, have already +resigned. We no longer have a District Judge, a District Attorney, or a +Marshal, in South Carolina. In fact, the whole machinery of the Federal +Government, necessary for the distribution of remedial justice among +the people, has been demolished, and it would be difficult, if not +impossible, to replace it. + +The only Acts of Congress upon the Statute Book bearing on this subject +are those of the 28th February, 1795, and 3d March, 1807. These +authorize the President, after he shall have ascertained that the +Marshal, with his posse comitatus, is unable to execute civil or +criminal process in any particular case, to call forth the militia, and +employ the army and navy to aid him in performing this service--having +first, by proclamation, commanded the insurgents to disperse and retire +peaceably to their respective homes within a limited time. This duty +can not by possibility be performed in a State where no judicial +authority exists to issue process, and where there is no Marshal to +execute it, and where, even if there were such an officer, the entire +population would constitute one sole combination to resist him. + +The bare enumeration of these provisions proves how inadequate they +are, without further legislation, to overcome a united opposition in a +single State, not to speak of other States who may place themselves in +a similar attitude. Congress alone has power to decide whether the +present laws can or can not be amended, so as to carry out more +effectually the objects of the Constitution. + + * * * * * + +The course of events is so rapidly hastening forward, that the +emergency may soon arise when you may be called upon to decide the +momentous question, whether you possess the power, by force of arms, to +compel a State to remain in the Union. I should feel myself recreant to +my duty were I not to express an opinion upon this important subject. + +The question, fairly stated, is: Has the Constitution delegated to +_Congress_ the power to coerce a State into submission which is +attempting to withdraw, or has virtually withdrawn, from the +Confederacy? If answered in the affirmative, it must be on the +principle that the power has been conferred upon Congress to declare +and to make war against a State. After much serious reflection, I have +arrived at the conclusion that no such power has been delegated to +Congress, or to any other department of the Federal Government. It is +manifest, upon an inspection of the Constitution, that this is not +among the specific and enumerated powers granted to Congress; and it is +equally apparent that its exercise is not "necessary and proper for +carrying into execution" any one of these powers. So far from this +power having been delegated to Congress, it was expressly refused by +the Convention which framed the Constitution. + +It appears, from the proceedings of that body, that on the 31st May, +1787, the clause authorizing the exertion of the force of the whole +against a delinquent State came up for consideration. Mr. Madison +opposed it in a brief but powerful speech, from which I shall extract +but a single sentence. He observed: "The use of force against a State +would look more like a declaration of war than an infliction of +punishment, and would probably be considered by the party attacked as a +dissolution of all previous compacts by which it might be bound." Upon +his motion, the clause was unanimously postponed, and was never, I +believe, again presented. Soon afterwards, on the 8th June, 1787, when +incidentally adverting to the subject, he said: "Any Government for the +United States, founded upon the supposed practicability of using force +against the unconstitutional proceedings of the States, would prove as +visionary and fallacious as the Government of Congress"--evidently +meaning the then existing Congress of the old Confederation. + +Without descending to particulars, it may be safely asserted that the +power to make war against a State is at variance with the whole spirit +and intent of the Constitution. + + +VIII. + +PROCLAMATION OF AUGUST 16, 1861, PURSUANT TO ACT OF CONGRESS OF JULY +13, 1861. + +Whereas, on the 15th day of April, the President of the United States, +in view of an insurrection against the laws and Constitution and +Government of the United States, which had broken out within the States +of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, +and Texas, and in pursuance of the provisions of the Act entitled "An +Act to provide for calling forth the militia to execute the laws of the +Union, to suppress insurrection and repel invasion, and to repeal the +Act now in force for that purpose," approved February 18th, 1795, did +call forth the militia to suppress said insurrection and cause the laws +of the Union to be duly executed, and the insurgents having failed to +disperse by the time directed by the President, and-- + +Whereas such insurrection has since broken out and yet exists within +the States of Virginia and North Carolina, Tennessee and Arkansas, +and-- + +Whereas the insurgents in all of the said States claim to act under +authority thereof, and such claim is not disclaimed or repudiated by +the person exercising the functions of Government in each State or +States, or in the part or parts thereof in which combinations exist, +nor has such insurrection been suppressed by said States-- + +Now, therefore, I, ABRAHAM LINCOLN, President of the United States, in +pursuance of an Act of Congress passed July 13th, 1861, do hereby +declare that the inhabitants of the said States of Georgia, South +Carolina, Virginia, North Carolina, Tennessee, Alabama, Louisiana, +Texas, Arkansas, Mississippi, and Florida, except the inhabitants of +that part of the State of Virginia lying west of the Alleghany +Mountains, and of such other parts of that State and the other States +hereinbefore named as may maintain a loyal adhesion to the Union and +the Constitution, or may be, from time to time, occupied and controlled +by the forces engaged in the dispersion of said insurgents, are in a +state of insurrection against the United States, and that all +commercial intercourse between the same and the inhabitants thereof, +with the exception aforesaid, and the citizens of other States, and +other parts of the United States, is unlawful, and will remain unlawful +until such insurrection shall cease or has been suppressed; that all +goods and chattels, wares and merchandize, coming from any of the said +States, with the exceptions aforesaid, into other parts of the United +States, without a special license and permission of the President, +through the Secretary of the Treasury, or proceeding to any of the said +States, with the exceptions aforesaid, by land or water, together with +the vessel or vehicle conveying the same, or conveying persons to or +from States, with the said exceptions, will be forfeited to the United +States; and that, from and after fifteen days from the issue of this +proclamation, all ships and vessels belonging in whole or in part to +any citizen or inhabitant of any State, with the said exceptions, found +at sea, or in any port of the United States, will be forfeited to the +United States; and I hereby enjoin on all District Attorneys, Marshals, +and officers of the revenue and of the military and naval forces of the +United States, to be vigilant in the execution of said Act, and in the +enforcement of the penalties and forfeitures imposed or declared by it, +leaving any party who may think himself aggrieved thereby the right to +make application to the Secretary of the Treasury for the remission of +any penalty or forfeiture, which the said Secretary is authorized by +law to grant, if, in his judgment, the special circumstances of any +case shall require such remission. + +In witness whereof, I have hereunto set my hand, and caused the seal of +the United States to be affixed. Done in the City of Washington, this +16th day of August, in the year of our Lord 1861, and of the +independence of the United States the eighty-sixth. + +ABRAHAM LINCOLN. + +WM. H. SEWARD, _Secretary of State_. + + + + + + +End of the Project Gutenberg EBook of 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, by A. F. 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