"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 causa_, 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 ligeantiae
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.