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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: Warburton, A. F.
Language: English
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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_.
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