_Friday, Oct. 25, 1861._
The Court met at 11 o'clock A.M.
_Mr. Brady_ stated to the Court that two of the prisoners--Richard
Palmer and Alexander Coid--were exceedingly ill, suffering from
pulmonary consumption, and requested that they might be permitted to
leave the court-room when they wished. It was not necessary that they
should be present during all the proceedings.
_Mr. Smith_: It would be proper that the prisoners make the
application.
_Mr. Brady_: They will remain in Court as long as they can; and will,
of course, be present when the Court charges the Jury.
_The Court_ directed the Marshal to provide a room for the prisoners to
retire to, when they desired.
_Mr. Sullivan_: Before adjourning yesterday it was stated that the
different ordinances of the seceded States were all considered in
evidence without being read.
_Mr. Smith_: Are any of them later in date than the commission to the
Savannah?
_Mr. Sullivan_: No, sir. Some States have seceded since the date of the
commission, and have been received into the Confederacy.
_Mr. Evarts_: We will assume, until the contrary appears, that there
are no documents of date later than the supposed authorization of the
privateer.
_Mr. Larocque_: With this qualification,--that there are a great many
documents from our own Government which recognize a state of facts
existing anterior to those documents.
_Mr. Sullivan_ read in evidence from page 10 of _Putnam's Rebellion
Record_:
Letter from Secretary of War, John B. Floyd, to President James
Buchanan, dated December 29, 1860.
President Buchanan's reply, dated December 31, 1860.
Also, from page 11 of _Rebellion Record_:
The Correspondence between the South Carolina Commissioners and the
President of the United States.
[Considered as read.]
Also, referred to page 19 of _Rebellion Record_, for the Correspondence
between Major Anderson and Governor Pickens, with reference to firing
on the _Star of the West_.
Read Major Anderson's first letter (without date), copied from
_Charleston Courier_, of Jan. 10, 1861. (_See Appendix._)
Governor Pickens' reply, and second communication from Major Anderson.
(_See Appendix._)
Also, from page 29 of _Rebellion Record_, containing the sections of
the Constitution of the Confederate States which differ from the
Constitution of the United States.
Also, from page 31 of _Rebellion Record_: Inaugural of Jefferson Davis,
as President of the Confederate States.
Also, page 36 of _Rebellion Record_: Inaugural of Abraham Lincoln,
President of the United States, (for the passages, _see Appendix_.)
Also, page 61 of _Rebellion Record_: The President's Speech to the
Virginia Commissioners. (_See Appendix._)
Also, page 71 of _Rebellion Record_: Proclamation of Jefferson Davis,
with reference to the letters of marque, dated 17th April, 1861.
Also, page 195 of _Rebellion Record_: An Act recognizing a state of
war, by the Confederate Congress,--published May 6, 1861.
[Read Section 5.]
_Mr. Lord_ read from pages 17, 19, and 20, of _Diary of Rebellion
Record_, to give the date of certain events:
1861, February 8. The Constitution of the Confederate States adopted.
February 18. Jefferson Davis inaugurated President.
February 21. The President of the Southern Confederacy nominates
members of his Cabinet.
February 21. Congress at Montgomery passed an Act declaring the
establishment of free navigation of the Mississippi.
March 19. Confederates passed an Act for organizing the
Confederate States.
April 8. South Carolina Convention ratified the Constitution of
the Confederate States by a vote of 119 to 16.
_Mr. Sullivan_: We propose now to introduce the papers found on board
the Savannah when she was captured. The history of these papers is,
that they were captured by the United States officers, taken from the
Savannah, and come into our hands now, in Court, through the hands of
the United States District Attorney, in whose possession they have
been;--and they have been proceeded upon in the prize-court, for the
condemnation of the Savannah. The first I read, is--
The Commission to the Savannah, dated 18th May, 1861.
Also, put in evidence, copy of Act recognizing the existence of war
between the United States and the Confederate States, and concerning
letters of marque,--approved May 6, 1861.
Also, read _President Davis' Instructions to Private Armed
Vessels_,--appended to the Act.
Also, an Act regulating the sale of prizes, dated May 6,
1861,--approved May 14, 1861.
Also, an Act relative to prisoners of war, dated May 21, 1861.
_Mr. Sullivan_ also read in evidence three extracts from the Message of
President Lincoln to Congress, at Special Session of July 4, 1861.
(_See Appendix._)
Also, extracts from the Message of President Buchanan, at the opening
of regular Session of Congress, December 3d, 1860. (_See Appendix._)
Also, from page 245 of _Rebellion Record_: Proclamation of the Queen of
Great Britain, dated May 13, 1861.
_Mr. Evarts_ objected to this, on the ground that it could not have
been received here prior to the date of the commission.
Objection overruled.
Also, from page 170 of _Rebellion Record_: Proclamation of the Emperor
of France,--published June 11, 1861.
Also, the Articles of Capitulation of the Forts at the Hatteras Inlet,
dated August 29th, on board the United States flagship Minnesota, off
Hatteras Inlet.
_Mr. Evarts_ remarked that this latter document was not within any
propositions hitherto passed upon; but he did not desire to arrest the
matter by any discussion, if their honors thought it should be
received.
_Judge Nelson_: It may be received provisionally.
_Mr. Brady_ also put in evidence the _Charleston Daily Courier_, of
11th June, 1861, containing a Judicial Advertisement,--a monition on
the filing of a libel in the Admiralty Court of the Confederate States
of America, for the South Carolina District, and an advertisement of
the sale of the Joseph, she having been captured on the high seas by
the armed schooner Savannah, under the command of T. Harrison
Baker,--attested in the name of Judge Magrath, 6th June, 1861.
And containing, also, a judicial Act, relating to the administration of
an estate in due course of law.
_Mr. Brady_ stated that the reference was to show that they had a
judicial system established under their own Government.
_Lieutenant D. D. Tompkins_ recalled for the defence, and examined by
_Mr. Sullivan_.
_Q._ State your knowledge as to the sending of any flags of truce while
your vessel, the Harriet Lane, was lying at Fortress Monroe?
(Same objection; received provisionally.)
_A._ I have seen flags of truce come down from the direction of
Norfolk.
_Q._ Did your vessel have any communication with the officer bearing
the flag of truce?
_A._ No, sir.
_Q._ Did they come with the Confederate flag flying on the same vessel
with the flag of truce?
_A._ Yes. One vessel came down with the Confederate flag flying, and a
flag of truce, also.
_Q._ Where was it received, and by what officer?
_A._ I am not positive whether it was received by the Cumberland or the
Minnesota. They communicated with either of those vessels.
_Q._ Were any vessels or boats, with flags of truce, ever sent from
Fort Monroe toward the Confederate forces?
_A._ I have seen vessels go up the Roads with a flag of truce.
_Q._ And the United States flag on the same vessels?
_A._ Yes.
_Q._ You saw Captain Baker and the other prisoners--were they
uniformed?
_A._ No, sir; I do not think they had any regular uniform. Captain
Baker had a uniform, with metal buttons on his coat. I did not notice
what was on the buttons.
_Q._ He had on such a dress as he wears to-day?
_A._ Something similar to that. He was the only one who had a uniform.
_Q._ Do you know anything as to the exchange of prisoners between the
forces of the United States and of the Confederate States on any
station where you have been?
_A._ No, sir.
The defence here closed.
The District Attorney stated that the prosecution had no rebutting
evidence to offer.
_Judge Nelson_: Before counsel commence summing up the case to the
Jury, they will please present the propositions of law on both sides.
_Mr. Lord_: I was going to ask my friends on the other side to give us
their authorities, so that we shall know what we are to go to the Jury
upon. We would then be able to lay our views before the Court and to
divide the labor of summing up--some of us addressing ourselves
entirely to the Court.
_Mr. Evarts_: I would have no objection to taking that course if I had
been prepared for it. In the presentation of the case, we rely on the
statute of the United States--on the fact that the defendants are
within the terms of the statute; and that the affirmative defence,
growing out of the state of things in this country, does not apply in a
Court of the United States, and under a statute of the United States,
which still covers the condition of the persons brought in. Whether
they are citizens or aliens, nothing has been shown which takes them
out of the general operation of our laws. On the question of the
ingredients of the crime of piracy--which is a particular inquiry,
irrespective of the considerations connected with the state of war--I
do not know that we need refer to anything which is not quite familiar.
The cases referred to by the learned counsel for the prisoners--the
United States _vs._ Jones, the United States _vs._ Palmer, and the
United States _vs._ Tully--contain all the views in reference to the
ingredients of the crime of piracy, or to the construction of the
statutes, that we need to present. In the general elementary books to
which the learned counsel have referred--the various books on the Pleas
of the Crown--there are passages to which we shall have occasion to
refer.
_Judge Nelson_: The counsel for the Government should give to the
counsel on the other side, before the summing up is commenced, all the
authorities on which they intend to rely.
_Mr. Evarts_: That we shall do, of course.
_Judge Nelson_: We will take them now.
_Mr. Evarts_: I refer to 1st East's Pleas of the Crown, 70-1.
It is under the title of Treason, but it is on the point of the
character of the crime as qualified by the influence on the party, of
force, or of the state of the population by which the accused was
surrounded. I read from page 70:
"Joining with rebels freely and voluntarily in any act of rebellion
is levying war against the King; and this, too, though the party
was not privy to their intent. This was holden in the case of the
Earl of Southampton, and again in Purchase's case, in 1710. But yet
it seems necessary, in this case, either that the party joining
with rebels, and ignorant of their intent at the time, should do
some deliberate act towards the execution of their design, or else
should be found to have aided and assisted those who did. * * * But
if the joining with rebels be from fear of present death, and while
the party is under actual force, such fear and compulsion will
excuse him. It is incumbent, however, on the party setting up this
defence, to give satisfactory proof that the compulsion continued
during all the time that he stayed with the rebels."
The case of Axtell, one of the regicides, is referred to. The defense
was set up for him that he acted by command of his superior officer;
but that was ruled to be no defence. I now read from page 104:
"One species of treason, namely, that of committing hostilities at
sea, under color of a foreign commission, or any other species of
adherence to the King's enemies there, may be indicted and tried as
piracy, by virtue of the statutes."
That is, that although being guilty of treason, in its general
character of adhering to the enemy, yet it also falls within the
description of piracy, and may be proceeded against as such. On the
question of the element of force or intimidation as entering into the
crime of robbery, I refer to 1st Hawkins' Pleas of the Crown, page 235:
"Wherever a person assaults another with such circumstances of
terror as put him into fear, and cause him, by reason of such fear,
to part with his money, the taking thereof is adjudged robbery,
whether there were any weapon drawn, or not, or whether the person
assaulted delivered his money upon the other's command, or
afterwards gave it him upon his ceasing to use force, and begging
an alms; for he was put into fear by his assault, and gives him his
money to get rid of him.
"But it is not necessary that the fact of actual fear should either
be laid in the indictment or be proved upon the trial; it is
sufficient if the offence be charged to be done _violenter et
contra voluntatem_. And if it appear upon the evidence to have been
attended with those circumstances of violence or terror which in
common experience are likely to induce a man to part with his
property against his consent, either for the safety of his person
or for the preservation of his character and good name, it will
amount to a robbery."
I refer to Hale's Pleas of the Crown, vol. I., p. 68, on the question
of double or doubtful allegiance:
"Though there may be due from the same person subordinate
allegiances, which, though they are not without an exception of
the fidelity due to the superior Prince, yet are in their kind
_sacramenta ligea fidelitatis_, or subordinate allegiances, yet
there can not, or at least should not, be two or more co-ordinate
allegiances by one person to several independent or absolute
Princes; for that lawful Prince that hath the prior obligation of
allegiance from his subject can not lose that interest without
his own consent, by his subject's resigning himself to the
subjection of another."
I refer to the case of the United States _against_ Tully, 1st
Gallison's Reports, p. 253-5, to show that the statute does not, in
terms, require that there shall be any personal violence or putting in
fear to constitute robbery, provided the offence is committed _animo
furandi_.
I also refer to the case of the United States _vs._ Jones, 3 Washington
C.C.R., p. 219, on the point of the justification given by a
commission; to the case of United States _vs._ Hayward, 2 Gallison,
501; to the observations of Chancellor Kent, vol. I., p. 200, marginal
page 191; to the United States _vs._ Palmer, 3 Wheaton, p. 634, as to
the manner in which our Courts deal with international questions
respecting the recognition of nationalities; to the case of the
Santissima Trinidad, Kent's Commentaries, vol. I., p. 27, marginal page
25; to the case of Rose _vs._ Hinely, 4 Cranch, 241. I refer to the
latter case for the general doctrines therein contained on the
proposition that although a parent or original Government may find the
magnitude and power of the rebellion such as to induce or compel it to
resort to warlike means of suppression, so as that toward neutral
nations there will grow up such a state of authority as will compel the
recognition by neutral nations of the rights of war and belligerents,
that is not inconsistent with or in derogation of the general
proposition that the parent Government still maintains the sovereignty,
and can enforce its municipal laws, by all those sanctions, against its
rebellious subjects. In other words, that the flagrancy of civil war,
which gives rise to the aspect and draws after it the consequences of
war, does not destroy either the duty of allegiance or the power of
punishing any infraction of law which the rebels may be guilty of,
either in reference to the principal crime of treason, or in reference
to any other violation of municipal rights.
I also ask your honors' attention to a recent charge of Judge Sprague,
to the Grand Jury in the Massachusetts District, in reference to the
crime of piracy.
On the question of jurisdiction, I refer to the case of the United
States _vs._ Hicks, decided in this Court.
I refer to the case of the Mariana Flora, to show that the arrest of a
pirate at sea arises under a general principle of the law of nations,
which authorizes either a public or a private vessel to make the
arrest. It is analogous to the common-law arrest of a felon. The point
in the case of the Mariana Flora is, that any public or private vessel
has a right to arrest a piratical vessel at sea and bring it in. It
differs in that respect from the authority to arrest a slaver.
On the general question of the ingredients of robbery, I refer to
Archbold's Criminal Practice and Pleadings, 2 vol., p. 507, marginal
pages 417, 510, 526.
In political connections I shall have occasion to refer to the
Constitution of the United States and to the Articles of the
Confederation, to the Virginia and Kentucky resolutions, and the
answers of the other States of the Union, which will be found collected
in Ellett's Debates, vol. 4, pages 528 to 545.
I may refer also to Mr. Pinckney's speech in the Convention of South
Carolina which adopted the Constitution, same volume, p. 331; to the
formal ratifications of the Constitution by the different States of the
Union, same volume, p. 318; and I may have occasion to refer to Grotius
in connection with the discussion of the general state of war. The
citations will be--book 1st, chap. 1, secs. 1 and 2; chap. 3, secs. 1
and 4; and chap. 4, sec. 1.