"And be it further enacted, that if any citizen should commit any
piracy or robbery aforesaid, or any act of hostility against the
United States or any citizen thereof, on the high seas, under color
of any commission of any foreign Prince or State, or on pretence of
authority from any person, such offender shall, notwithstanding the
pretence of any such authority, be deemed, adjudged, and taken to
be a pirate, felon, and robber, and on being convicted thereof
shall suffer death."
This section applies particularly to the citizens of the United States.
Now, I contend that this section does not change the character of the
offence. It differs only by stating that the commission shall not form
a pretext. The words "piracy and robbery" explain the words "acts of
hostility," which follow immediately afterwards. Where particular words
are followed by general words, the latter are held as applying to
persons and things of the same kind as those which precede. The
coupling of words together shows that they are to be understood in the
same sense. Take these two principles with the other principle, that
penal statutes are to receive a strict interpretation. The general
words of a penal statute must be restrained for the benefit of him
against whom the penalty is inflicted.
To the same effect is the case of _The United States_ vs. _Bevins_ (5
_Wheaton_):
"Penal statutes, however, are taken strictly and literally only in
point of defining and setting down the _crime_ and the _punishment_;
and not literally in words that are but circumstances and
conveyance in the putting of the case.
"Thus, though by the statute 1 Ed. 6, C. 12, it was enacted that
those who were convicted of stealing _horses_ should not have the
benefit of clergy, the Judges conceived that this did not extend to
him that should steal but one horse, and therefore procured a new
Act for that purpose in the following year.
"But upon the Statute of Gloucester, that gives the action of waste
against him that holds _pro termino vitae vel annorum_, if a man
holds but for a year he is within the statute; while, if the law be
that for a certain offence a man shall lose his right hand, and the
offender hath had his right hand before cut off in the wars, he
shall not lose his left hand, but the crime shall rather pass
without the punishment which the law assigned than the letter of
the law shall be extended.
"A penal law, then, shall not be extended by equity; that is,
things which do not come within the words shall not be brought
within it by construction.
"The law of England does not allow of constructive offences, or of
arbitrary punishments. No man incurs a penalty unless the act which
subjects him to it is clearly both within the spirit and the letter
of the statute imposing such penalty.
"'If these rules are violated,' said Best, C.J., in the case of
_Fletcher_ vs. _Lord Sondes, 3 Bing., 580_, 'the fate of accused
persons is decided by the arbitrary discretion of Judges, and not
by the express authority of the laws. _2d Dwarris Stat., 634_.'
"By another restrictive rule of construing penal statutes, if
general words follow an enumeration of particular cases, such
general words are held to apply only to cases of the _same kind_ as
those which are expressly mentioned. By the 14 Geo. 2, C. 1,
persons who should steal sheep _or any other cattle_ were deprived
of the benefit of clergy. The stealing of any cattle, whether
commonable or not commonable, seems to be embraced by these general
words, "_any other cattle_," yet they were looked upon as too loose
to create a capital offence. By the 15 George 2, C. 34, the
Legislature declared that it was doubtful to what sorts of cattle
the former Act extended besides sheep, and enacted and declared
that the Act was made to extend to any bull, cow, ox, steer,
bullock, heifer, calf, and lamb, as well as sheep, and to no other
cattle whatsoever.
"Until the Legislature distinctly specified what cattle were meant
to be included, the Judges felt that they could not apply the
statute to any other cattle but sheep.
"The Legislature, by the last Act, says that it was not to be
extended to horses, pigs, or goats, although all these are cattle.
"3 Bingh., 581.
"2 Dwarris, Statutes, 635."
By the English law, and by the principles of general law, may it
please the Court, the offence must be clearly defined--it must be
limited, ascertained, fixed. It must be clear to the accuser. It must
be clear to the accused. It must be equally clear to the Judge. It
must leave him no discretion whereby he can enlarge or alter it. And,
may it please the Court, this is the safe and true principle of
construction--to give as little as possible to the discretion of the
Courts; for it has been well said, that the arbitrary discretion of
any man is the law of tyrants. It is always unknown; it is different
in different men; it is casual, and depends on constitution, temper,
and passion. In the best of us it is oftentimes caprice; in the worst
of us it is every vice, folly and passion to which human nature is
liable. It is by defining crime clearly that the citizen has his
strongest guarantee for his personal safety. Let us see the opinion of
perhaps the greatest master that ever touched the subject of
jurisprudence--I mean _Montesquieu_.
"It is determined," he says, "by the laws of China, that whoever
shows any disrespect to the Emperor is to be punished with death.
As they do not mention in what this disrespect consists, every
thing may furnish a pretext to take away a man's life, and to
exterminate any family whatsoever.
"If the crime of high treason be indeterminate, this alone is
sufficient to make the Government degenerate into arbitrary
power."--_Montesquieu, Spirit, Book_ 12, _c._ 7.
Now, may it please the Court, it is through statutes in which crimes
are ill-defined--are not clearly and distinctly designated--that
tyrants in every age have been able to crush their victims. Hence, in
the noble system of laws that it is your honors' privilege to dispense,
safeguards have been put in the strongest degree, and bulwarks have
been erected around the life, the liberties, and the rights of the
citizen.
Now, what is an "act of hostility"? Suppose these men had gone out
with a commission instructing them to go on the seas, to board
vessels, and to beat the captains of vessels, and to do no more--to
abandon them then, and take to their own ships--would that be an act
of piracy? Is it not plain that the law meant piracy or robbery, or
any "act of hostility" _ejusdem generis_, that is, _animo furandi_? To
show that this construction is not forced, your honors will find in
the Act of March 3d, 1825 (Dunlop's Laws, p. 723, sect. 6), that a
special law was passed for the very purpose of punishing _acts of
hostility_ against the United States and its citizens by _forcibly
attacking_ and _setting upon vessels_ owned in part or wholly by
either of them, _with intent to plunder and despoil the owners of
moneys, goods_, &c., &c. If, therefore, this construction of these
words, which I respectfully submit to the Court, has any weight in it,
they amount to no more than what has been already decided in
Clintock's case--the clear and well-settled principle of law that the
commission shall not form a pretext for robbery.
But, may it please the Court, as to the ninth section of the Act, it
never was contemplated as applying to organized States. It was an Act
which was intended to apply to individuals alone. States are not the
subjects of criminal law, nor can you legislate against them; and this
has been distinctly decided. If the Confederate States have been guilty
of a gross breach of faith in the attempt to withdraw from the
Confederation, they may be coerced; but the citizen himself must go
unpunished. They are States--recognized by yourselves as States. They
are not a collection of piratical hordes; and under such circumstances
the law will not apply to the citizen of any of these States who acts
fairly and honestly under his commission.
The learned counsel who spoke last Saturday, referred to privateering
as a relic of the barbarous age. No one agrees with the learned counsel
in that respect more than I do; and from the bottom of my heart I hope
that he may be yet able to take his share in banishing from the world
this relic of the olden time. But, really, I see very little chance of
advancement in that line, so long as a vessel of war is allowed to take
private property on the seas. There should be perfect immunity for all
property on the ocean belonging to individuals; but the letter of Mr.
Marcy shows that we are not yet exactly up to that point.
The learned counsel stated that, before he could concede the commission
in this case to be a justification, two things must be shown: First,
there must be a state of war; and, second, the privateer must have
received his commission from some public, national, sovereign power.
Well, we think we have shown the existence of war sufficiently
strongly; and as to this point, I fancy that few gentlemen of the bar
can forget the pointed and admirable allusion of the learned counsel
himself (Mr. Evarts), in his argument in the District Court, some time
since, to the absent clerk, in illustrating the fact of the existence
of war. I remember how forcibly it struck me when I read it. The
decisions in the case of the South American privateers settles the
point as to the nationality.
But, gentlemen, there is another subject to which I will briefly
allude--that is, the abstract right of these States legally to secede.
Now, gentlemen, we do not deny that there is no such right. I concede
all that. Yet, still, these men have ever held different notions; and,
on this subject, a line has been drawn for many years through an
immense tract of this our country. The right or the wrong of it does
not affect us here. You have failed to convince them, and they have
failed to convince you. There is no common arbiter between you, because
they contend that, being sovereigns, they cannot submit to the Courts
questions between themselves and the United States. Now, they may be
wrong, but have you the right to declare them so? You ought to be
perfectly certain. Justice, reason, and duty prompt that there ought to
be no mistake. When you hold a party for a criminal charge, there ought
not to be a reasonable doubt. Is there no possibility that, in the
course of the proceedings between the Federal and State Governments,
you may be wrong? Does truth only consort with one side of the line,
and falsehood with the other? May you not be mistaken? Look at the
different lights in which, for years, you have respectively viewed
various questions. See how gradually the change has been effected; and
yet how stronger and stronger it has grown day by day. Can any one
forget the deep and intense anxiety with which that great statesman,
Mr. Clay, just before his death, regarded the division between the
Methodist and Baptist Churches of the North and the South? And yet no
man was a truer or firmer patriot, or an abler advocate of the
Government; and no man saw with more unerring certainty that the line,
sooner or later, was destined to be drawn between the two sections,
unless some compromise was effected.
Now, the doctrine in which these men have been brought up may be
political heresy; but, do you crush a heresy with chains? Does history
not tell us how utterly vain and futile such an attempt is? Have you
to go back farther than the days of James the Second, to see the
attempt of that despot to enforce upon the English people a religion
which they did not choose to adopt? Can you forget the bloody assizes
of Jeffreys, when hundreds were carried to the block and thousands
were sent into exile to all parts of the world? Can you forget the
great scene, when the noble Duke of Argyle, with his head bared and
his limbs in chains, was led through Edinburgh amidst the reproaches
and contempt of the populace; and do you forget the cold and manly
dignity with which he endured it all? And do you reflect that, with
all these things, the religion of England to-day is the same as it was
then? Can you expect, by a system like this, to mould the human mind
as you would mould potter's clay? Oh, no! gentlemen, the human heart
is a different thing; love and tenderness may melt and control it, but
chains and manacles never yet subdued it. Call this piracy! why this
is, indeed, confounding the order of things; and when the real piracy
comes, you will feel no dislike or contempt for the offence. You give
it a dignity by thus confounding it with crimes of a different nature.
If these men are pirates, all are pirates who have taken naval
commissions from the Confederate States, and all are robbers who have
served them on land. Pirates! Is Tatnall a pirate--Tatnall who, by his
skill, and valor, and daring, succeeded in landing your gallant army
in Mexico, challenging on that occasion the admiration alike of the
army and navy? Tatnall a pirate! Tatnall, whose name has been for
forty years the synonym of all that is high and noble and brave in the
American navy! Is Hartsteine a pirate--Hartsteine, the modest but
hardy sailor, who carried your ensign into the far, remote, and
unfriendly regions of the frigid zone? Is Ingraham a pirate--Ingraham,
who, when the down-trodden naturalized refugee from Austria asked for
the protection of the American flag said, "Do you want the protection
of this flag?--then you shall have it!" Are these men pirates? Oh, no!
gentlemen; there is some mistake about this. Is Lee a robber--Lee, the
chosen and bosom friend of your venerable commander in Washington, and
who, but a few months ago, parted from him with an aching heart and
eyes brimful of tears? Lee, a robber! Lee, whose glory is yours, and
whose name is written on every page of your country's history which
attests the triumphant march of your army from Vera Cruz to the gates
of Mexico? Methinks I see the flash of fire light the eye, and the
curl of contempt play upon the lips, of the old hero of Lundy's Lane,
as he hears the foul imputation upon the stainless honor of the
well-tried friend of many years. No, gentlemen, these men are not
pirates! they are not robbers! Your own hearts tell you they are not.
Truly, it may indeed be said, that civil war does pervert the natural
taste, and relish of equity and of justice.
But, gentlemen, what is the object of this prosecution? Can the united
States desire revenge on these men? That is a passion not attributable
to States. States have no passion. The dignity and the power of a State
ought to make it tolerant. Is it because the President's proclamation
has pronounced these men pirates? Certainly, the respected Chief
Magistrate of these United States has no disposition to enforce this
law, simply because he has declared it, as in the case of King
Ahasuerus. Is their punishment sought for the good of the community? If
it is designed for such a purpose, its effect is very questionable.
It is extremely strange, gentlemen, that the prosecution should have
been, any how, brought on now, and under this Act. Is it a strange
fact, gentlemen, that, under the Act of William the Third, which has
been cited to you, there was not, during the American Revolution, a
single American privateersman ever brought to trial in England. And yet
the English Government repeatedly captured them, and put them in
prison. That Act is just as strong as this, for the ninth section of
our Act of 1790 is copied from it. I suppose the truth is, gentlemen,
that the English Government felt the utter inapplicability of that law
to a case of this kind.
But, it is time that I should draw to a close. If these men have been
brought into the position in which they now stand, much depends upon
their political education--much depends upon the different views with
which they have regarded this question from ourselves. It is the part
of humanity to err. These men are the representatives of those who
were once united with us in the gentle tie of brotherhood. That tie is
now rent, and it may be years before the kindly and good feeling which
once subsisted between the sections is restored. God grant that the
hour may not be far distant! But, gentlemen, to treat these men with
kindness; to treat them with humanity; to have respect for that great
principle which underlies the bottom of our own Government--the right
of resistance (and I mean here legal resistance, and not that
revolutionary resistance which the Courts of justice do not adopt, and
never have, and cannot sanction),--I say, to treat them with kindness
and humanity will do more, in my honest belief, to knit together the
two sections than a hundred battle-fields would do.
Gentlemen, if there has been a division between you, remember that that
division has sprung up from honest conviction. Can you think otherwise?
Shoulder to shoulder with your fathers, in the days of the Revolution,
their fathers fought the battles of freedom. Side by side with you,
they trod the burning plains of Mexico, and encountered, in hostile
strife, the foes of your country; and when the shock of battle was
over, wrapped in the same honored flag, their dead and yours were borne
to their final resting place. Is it for a light and a trifling cause
that they have thus separated from you?
In conclusion, gentlemen, let me beg you to meet this issue like men.
No matter what the pressure upon you is, stand firm, do justice, and
discharge these prisoners. In so doing, you will but do your duty, and
God himself will sanction the act. But, gentlemen, if deaf to the
promptings of reason, of justice, and of humanity--if, impelled by
political rancor and passion--you condemn these prisoners, and
execution follows condemnation, be assured that they will meet their
fate like men; and that these manacled hands, which you have so often
disported through your streets to excited crowds, will, "though
impotent here," be lifted, and not in vain, to a far more august
tribunal than this, before whose unerring decrees Courts and nations
alike must bow with awful reverence.