MR. MAYER said:--May it please your honors,--A foreign-born citizen
now rises, on behalf of eight of the defendants, who, as it has been
conceded by the prosecution, are subjects of foreign States. It might
appear almost superfluous, after the full and eloquent argument of our
venerable brother--I was almost tempted to say father (Mr. LORD)--for
one of the junior counsel for the defence to say anything. Still, I
thought it incumbent on me to anticipate a construction or
interpretation which the prosecution may attempt to make, by offering,
myself, a proposition. But before reading it, I will, as briefly as my
proposition is brief, state my comment thereon.
Let us, in the first place, look at the aspect of the relations in
which these foreigners stood at the time of their committing this
alleged offence. They are all sea-faring men. Their various crafts had
been locked up in the port of Charleston by the blockade there.
Business, as we have heard here in evidence, was prostrated. Nothing
was left for them but to enlist in the army of the Confederacy, or to
become privateers. It is certainly a pity that they did not choose the
first alternative; for, even if they had been caught with arms in
their hands, their fate would now be far better than it is. They would
not now be in jeopardy of their lives, threatened with the pains and
penalties of a law that is not applicable to them. But being, as I
said before, inured to the life of seafarers, they chose to become
privateers.
We must, however, in judging of their act, place ourselves in their
position. They were foreigners. As foreigners, they brought to this
country views and notions as regards their act which are widely
different from those sought to be enforced here. They knew the
practice and theories of Europe in regard to their act. What are those
views and theories? I can state them in a very few words, and am sorry
that the authorities to which I shall refer are in a language which
may not be familiar to your honors. I will, however, state their
effect. It is this: Whenever a rebellion in any country has assumed
such extensive magnitude as no longer to be a simple insurrection,
which may be put down by police measures or regulations, but has come
to such a degree that mighty armies are opposed to each other,
although the revolted portion may not have been acknowledged by any
nation, yet belligerent rights must be granted to it. This is the
notion, or theory, which has entered into the mind of every European,
to whatever State or nation he may belong. I may be permitted to quote
a few historical facts to show why this is so. When the Netherland
Colonies revolted against Spain the privateers of the Prince of
Orange, even before he was elected Admiral General by those Colonies,
were by most nations recognized. They were only not recognized by some
of those nations against which they committed depredations; and it is
a historical fact that a great many of those privateers commissioned
by the Prince of Orange became pirates.
Another case is furnished by our own Revolution. It is known to all
Europeans that, although in the beginning of the American Revolution
England did not recognize the belligerent rights of America, yet,
after some time, she did recognize those rights, even by a
Parliamentary Act. I refer to 16 George the Third, ch. 5. The same was
the case in the French Revolution; and there I may refer to a very
curious fact. England recognized the privateers of the revolutionary
Government of France, so far as those privateers went against other
nations; but when they cruised against her own commerce she did not
recognize them. She remonstrated with Denmark because Denmark had
recognized them, and Denmark simply pointed to her (England's) own
course.
All these facts are very well known to every European, and it is with
a knowledge of these facts that every European looks upon a
revolution. To express it in a very short sentence, it is the theory
of "Let us have fair play."
If your honors please, I may say that this notion of belligerent
rights in revolution has entered into the flesh and blood of every
European to such an extent, that the only nation which does not allow,
in revolution, that fair play, is despised and hated, except by these
United States. I mean Russia. Russia is now very friendly towards this
Union; not, however, I may be permitted to state--reversing an
oft-quoted passage of Shakspeare--not because she loves Rome more, but
that she loves Caesar less. It is not out of love for this country, but
because the diplomatists of Russia--the farthest-seeing diplomatists
of Europe--hope that England and France will interfere in the contest
between these States, and that she may get an opportunity to return
the compliment to these two powers which she received from them at
Sebastopol. With a knowledge of these facts, and with these European
theories, these foreigners, now indicted under the Act of 1790,
entered into this privateering business.
They saw, as I said before, Charleston blockaded. To them a blockade
is an act of belligerent rights. They saw a constitutional government
adopted in the Confederate States. They never dreamed that, if they
wished to embark in this privateering business, they should be treated
as pirates. They knew well, as every European knows who has any
knowledge of international law, that there are two kinds of
piracy--piracy by international law, and piracy under municipal
law--municipal piracy, or, as Mr. LORD called it yesterday, statutory
piracy.
And now I refer, as to the right of one nation making anything piracy
that is not piracy by the law of nations, to Wheaton, volume 6, page
85; 1st Phillimore, 381; and to 1st Kent, 195. I will not take up the
time of your honors in reading all these passages, but I hold here the
last work on international law. It is, however, written in the German
language. It is of unbounded authority on the Continent, and has been
translated into French and Greek. It is very frequently referred to by
all those authors whom I have just quoted. It states this theory in
two lines, which I will read to your honors in a translation:
"Laws of individual nations (as, for instance, the French law of
the 10th April, 1825) may, so far as their own subjects are
concerned, either alter the meaning of piracy, or extend its
operation; but they are not allowed to do that to the prejudice of
other States."