Mr. Sullivan, of Counsel for the prisoners, said:
_May it please the Court: Gentlemen of the Jury_:
This case has brought to my mind an interesting episode in ancient
history, to which I beg permission to refer. For many years, the States
of Greece had been engaged in bloody civil strife, which ended in the
discomfiture of Athens. The Spartans and their allies assembled in
council to consider and determine on her fate. Animated by resentful
passion, the Thebans urged extreme and vindictive measures: that Athens
should be razed to the ground, that the hand of the victorious States
should fall heavy, and the Athenians be proclaimed exiles from their
homes and outlaws in Greece. This proposal was applauded by the
Corinthians and some others, but at that moment the deputy of the
Phocians, who owed a debt of gratitude to the Athenians, sang in the
assembly the mournful Choral Ode from the Electra of Sophocles, which
moved all present in such a manner that they declared against the
design. The poem had lifted them from the passion of the hour, and
invoked the memories and ancestral glories of their common nation. The
spirits of departed heroes now lent the inspiration of their presence,
and yielding to it the members of that council and jury became great
Greeks, as of old their fathers were. Marathon and Salamis, Plataea and
Mycale, were pictured in the chambers of their souls, with Miltiades,
Themistocles and Aristides for their counselors; and then, and not
until then were they fit to render a verdict upon Athens, the loveliest
sister of them all.
And gentlemen, before we touch upon the details of this case, may we
not contemplate some examples and sentiments which will enlighten and
strengthen our spirits as guardians of the important interests
committed to our hands this day? I am sure it will be agreeable to you
and to seek them in the annals of our forefathers,
"The great of old,
The dead but sceptred sovereigns, who still rule
Our spirits, from their urns."
It may be that a voice like that of the Theban delegate, and like the
voice of Corinth, is sounding in your ears, and appealing, by
sophistries, and passion, and prejudices, to you to lay the hand of
your Government with all possible severity upon those of her enemies
who are now in her power and arraigned at her bar. But I entreat you to
lift yourselves to that stand-point from which our ancestors, who
founded this Union, who enacted the law upon which this prosecution is
founded, would have regarded a case analagous to that of Captain Baker
and the other defendants herein. What was the central and
distinguishing idea of Government, blazing like another sun on the
world, which our fathers established and made honorable? Was it not the
imperishable doctrine of revolutionary right--and that without special
regard to the names, and forms, and paths through which it might be
sought? For many other causes they may have pledged their fortunes;
there were many for which they periled their lives; but only for this
is it recorded by them, "We pledge our sacred honor." It is their
incommunicable glory that they consummated their purpose; and if for
anything we have a place in history and a name in the world, it is that
we have hitherto professed to be the special guardians of that
principle among the nations. Will you rise with me to the dignity and
affecting associations that surrounded and auspicated the struggle of
our forefathers for this principle? Shall their memory be your guiding
light, and their honorable purpose that upon which your thoughts will
linger? Let us subject our hearts to their influence, for it will not
mislead us. And, now, would our fathers with casuistry and technical
constructions of a statute which they never meant should apply to such
a case as the present, pronounce judgment of piracy and outlawry
against any people who were making an effort, by the recognized forms
of war, to assert revolutionary right and independent self-government
for themselves? Never! And while the page on which our fathers' history
is written is lustrous, it would be readorned with all the beauty of
immortal splendor, if under it were written to-day, "That which the
American people of 1776 claimed for themselves (the right to 'dissolve
the political bands that bound them to another'), they possessed the
greatness of soul, in 1861, to acknowledge against themselves, when
another portion of the same race sought the same end. Beguiled by the
almost omnipotent sophistries of interest and passion, they have
nevertheless adhered in loyal faith to their time-honored doctrine of
free government. In the faithful devotion of the Sons, the principles
of the Fathers have been revindicated. Henceforth the nation must stand
unapproachable in their greatness."
Why I make these observations, gentlemen, is, that when the officers of
the United States ask you to-day to find a verdict of guilty against
these prisoners, they ask you to do that which, shape it and distort it
and reason about it as they may, is asking you to lift an impious hand
and strike a parricidal blow, conspicuous in the eyes of the world,
against the ever sacred doctrine which our ancestors transmitted to us
as their best legacy and a part of their own good name. Will you
abandon it? Nay, rather cling to it,
"As one withstood clasps a Christ upon the rood,
In a spasm of deathly pain."
I wish now, gentlemen, to ask you to go with me a moment to the deck of
the _Perry_, when she captured the _Savannah_ and her crew. Let us
recall the historical incidents of the capture, and the preparations
for the trial, that we may introduce this case as justice requires.
The _Savannah_ was captured on the Atlantic Ocean, about fifty-five
miles from Charleston. The Commander of the _Perry_, who at that moment
represented the United States Government, virtually said to the
defendants herein, "We propose to try you as _citizens_ of the United
States, who, by acting under a commission of letter of marque from the
Confederate States, have become liable to the penalties of the United
States law against piracy." The prisoners at once reply, "If that is
true, take us into the nearest ports for trial. They are in South
Carolina. You claim that she is a part of the United States, and that
her citizens (_i.e._, ourselves) are amenable to your laws, and that
the United States are sovereign there. Take us before one of your
Courts in that State and try our case." "Oh! no, (say the United
States) we cannot, with all our guns, land upon the shores of South
Carolina." "Well, take us into the adjoining State, Georgia." "No;
there is not an officer of the United States in Georgia. We cannot
protect or sustain a single law in Georgia." "Well, take us to Florida,
Alabama, Mississippi, Louisiana or Texas--any place along that extended
coast of over two thousand miles." "No, (say the United States)
throughout all that coast, we confess to you, Capt. Baker, that we have
not a Court, not an officer, we cannot execute a single law." "Well,
take us north, into North Carolina, or into Virginia." The reply of the
United States is still, "We have no place there. But, notwithstanding
we admit that throughout that territory we have no practical existence;
we have no Court; we have no civil functionaries; we have no protection
for allegiance to us; we have not a citizen who acknowledges his
allegiance to us; we admit that the people in those States have
excluded our government and established another, which is in active and
exclusive control--notwithstanding all this, you are still our
citizens; and none, nor all of these facts, relieve you from the guilt
and liability to punishment."
The defendants are accordingly put in chains and brought to the
District of New York for trial. The witnesses for the prosecution prove
all the facts that are in the case, and we stand willing to be tried by
them. They prove that the defendants did capture a brig on the high
seas, which brig belonged to citizens of the United States. They prove,
further, that the defendants at the time of the capture, and in the
act, alleged that they did so, in the name and on behalf of the
"Confederate States of America," and by authority derived from them, as
an act of war between the two Governments.
The authority and intent thus alleged for the capture, were they
honestly, or only colorably alleged? Were they a justification of the
act, so far as this prosecution is concerned, or not?
_First_: Was it true that the capture of the Joseph was in the name of
the Confederate States? The fact is, that when the Savannah approached
and summoned the Joseph to surrender, the captain of the Savannah
stated his purpose to be as I have repeated; he hoisted the Confederate
flag; he wore the uniform and insignia of an officer of the Confederate
States; he had, as the paper upon which his vessel was documented, a
paper which has been produced before us, and which bears the broad seal
of the "Confederate States of America," which authorizes him to take
the Savannah as a private armed vessel, and, in the name and authority
of the Confederate States, to "make war" against the United States and
her vessels. The facts preclude any possible suggestion, that the
defendants made any false pretence on the subject. The defendants had
every adequate and sufficient warrant for what they did, if the
"Confederate States of America" could give any authority which would
constitute a defence, or if there was anything in the state of the
contest between the United States and the Confederate States which
constitutes _war_. But, the question will present itself, even if the
defendants had this warrant from the Confederate States--Did they
intend to, and did they in fact comply with its requirements, or were
they abusing and transgressing its license, and engaged in freebooting?
Did they intend to infract the regulations prescribed for their control
by the Government of the Confederate States and imposed imperatively by
the law of nations upon legitimate privateers, or did they intend to
rob and steal? I think I may safely assert that the law officers of the
United States will admit that the defendants intended in good faith to
comply strictly and literally with all the conditions of their
authority, prescribed by their own Government for their conduct, and
also with the code of war in the law of nations. And not only was this
their general intention, but as a fact, their conduct furnishes not a
single deviation from these requirements. I read to the Court and Jury
the Regulations published by the Confederates, for the privateers, and
which were found to be on board of the Savannah at the time of her
capture. They are similar, in all of their provisions, to those usually
prescribed by civilized nations at war. In substance, they permitted
the privateers to capture the vessels and cargoes belonging to the
United States and her citizens, the capture to be made in the name of
the Confederate States; they forbade, after capture, any disturbance or
removal of the furniture, tackle, or cargoes of the captured prizes,
and required immediate transmission, to a proper Court, of the prize,
for adjudication. Did the defendants comply with these terms? The
evidence is too plain that they did, to admit the slightest doubt.
As soon as the Joseph was captured, a prize crew was put on board of
her and she was sent to the care of an Admiralty Court in a home port,
and her papers, books and crew were sent along, that the Court might
have the fullest evidence of the ownership and character of the
captured vessel, and be able to decide properly, whether or not she was
liable to capture. If the defendants had any corrupt or furtive
motives, or if they had been indifferent to their assumed obligations,
would they have been so scrupulous in furnishing all the evidence to
the Court? Did they destroy, alter or erase any evidence, or offer to
do so? Did they evince the least desire to have any other than the full
facts appear with regard to all their acts? Your answer, with mine, is
No! And when the vessel arrived in port, observe what proceedings were
instituted by the agent of the captors. He did not offer to sell the
vessel and cargo at private sale; he did not offer to submit her
disposition to the adjudication of any merely State Court; but caused
her to be libeled in a Prize Court, constituted on precisely the same
basis, and enforcing the identical rules of law with the United States
Prize and Admiralty Court, which convenes in the room adjoining to that
in which we now are. In fact, I am safe in saying that the decisions of
our Courts here are controlling precedents in the Court wherein the
brig Joseph was tried and condemned as a prize of war. The trial was in
a Court known to and recognized by the law of nations. Now, gentlemen,
I certainly need do no more than thus re-advert to the facts in
evidence to remove from your minds the slightest suspicion that the
defendants ever intended to violate the laws of war or the instructions
received from their Government when they received their letter of
marque.
Perhaps, however, the question may arise,--whether the defendants did
regard the commission under which they sailed as competent and adequate
authority to justify their acts; or were they distrustful of its
sufficiency? I do not admit, gentlemen, that that is a consideration to
which in this trial we should recur, for your decision must rest on
other grounds. But, I will not hesitate to say, that it is morally
impossible for any man who has heard the evidence, and who is familiar
with the course of events in the South, to believe that the defendants
did not act in the fullest confidence that the authority of the
Confederate States was ample and just authority for their undertaking.
Even that one of the Savannah's crew who has become a witness for the
prosecution, under a _nolle prosequi_, asserted on the stand, that at
the time the Savannah was being fitted out for her cruise as a
privateer, no one in the community of the South seemed to have any
other idea but that the Government of the Confederate States was
completely and legally established, and that every citizen of those
States owed to it supreme allegiance. They believed that a letter of
marque from the Confederate States constituted as good authority for
privateering as the letters which were issued by our revolutionary
fathers in '76, or as if they were issued by the United States. But,
gentlemen, we are to proceed one step further, for under the theory
presented by attorneys for the prosecution, they virtually admit that
there was good faith on the part of the prisoners, and that they
intended to comply with the restrictions imposed by the authority which
they carried out of port with them. But they say that, inasmuch as the
Confederate States were not a recognized Government, they could not
confer any right upon the defendants to act as privateers, which could
justify them in a plea to the pending charge. That is a proposition
which enfolds the real issue in this trial. The difficulties in respect
to its solution do not appear to me to be great, and I am satisfied
that the more they are examined the less they will appear to candid
minds.
Had the Government of the Confederate States a right to issue letters
of marque; or, in other words, to declare and wage war? The denial of
that right, by the attorneys for the United States, involves them in
inextricable embarrassments, and must expose the fallacies which lie at
the bottom of the erroneous reasonings of the prosecution.
In the first place, it is substantially an assertion, on the part of
the United States, of the doctrine, "_Once a sovereign always a
sovereign_,"--that the United States Government cannot--by revolution
accomplished--by the Act of the States repealing their ordinances of
union--by any act of the people establishing and sustaining a different
Government--be divested of their former sovereignty. Or, in the
language of Mr. Evarts, until there has been some formal acquiescence,
some assent, some acknowledegment by the executive authority of the
United States of the independence of the Confederate States, there can
be no other plea, and no progress in any line of investigation, with a
view to a defence of these defendants in a Court of justice of the
United States. Upon that point, I beg to be understood as taking an
issue as wide as it is possible for human minds to differ; and I am
bold to assert that the doctrine cannot be maintained successfully in a
capital case of this kind. It is not true that a recognition of the
Confederate States by the United States executive, in a formal and
distinct manner, is requisite to entitle them and their citizens to the
rights belonging to a nation, in the eye of this Court. An
acknowledgment of independence would be one way of proving the fact,
but is far from being the only way. Proof of such an acknowledgment by
a formal State paper would, of course, terminate this prosecution; but,
in the absence of that fact, there may be a recurrence to others, which
will suffice as well, and satisfy the Court and Jury that the
Confederate States must, at least, to a certain extent, be regarded as
a nation, entitled to the usual consideration belonging to a nation at
war. To show how unreasonable the proposition is, and to illustrate how
impossible it is to accept it, let me submit a supposition:
If, for fifty years to come, the United States shall not re-establish
her sovereignty and restore her laws and power over the seceded States,
and the latter shall continue to maintain an open and exclusive
Government; and if the United States shall still refuse to recognize
the new Government by formal documentary record, would the refusal then
warrant the United States in capturing Confederate armies of a new
generation, and punishing them for treason and piracy? And, if so fifty
years hence, would it continue twice or thrice fifty years? Or what is
the limit? The difficulties in the answer can be avoided in only one
way, and that is, to conclude that the acknowledgment of the
independence of the revolutionizing section is of no consequence at
all, for all the purposes of this case, provided the fact of
independence and separate Government really exists, and is proven. A
_de facto_ Government, merely, must be allowed by every sound jurist to
possess in itself, for the time being, all the attributes and functions
of a Government _de jure_. It may properly claim for itself, and the
citizen may rightfully render to it, allegiance and obedience, as if
the Government rested on an undisputed basis.
This is a rule never denied in the law of nations. History has scarcely
a page without its record of revolution and dynastic struggle to
illustrate this rule. The official acts of a _de facto_ Government
affecting personal rights, title to property, the administration of
justice, the organization of its society, and imposing duties on the
citizens, receive that consideration which belongs to acts of
long-established Governments.
The successor does not pronounce the laws of the predecessor null. He
simply repeals them, with a clause protecting all vested rights. This
principle is correct, even in case of an usurping monarch; but how much
more, if it shall appear that the people who are to be governed, have,
for themselves, with mutual concurrence and choice, cast off the former
Government, and organized a new one, avowing to the world their purpose
to maintain it, and at the same time yielding to it the obedience which
it requires?
When that state of facts shall occur, and a people sufficiently
numerous to enable them to fulfill the duties of a nation, and with a
territory sufficiently compact to enable its Government to execute its
functions without inconvenience to the world, shall evince its purpose
and a fair assurance of its ability to maintain an independent
Government, it will be a surprise, indeed, to hear, in this country,
that such a people are still liable to felons' punishment and pirates'
doom. It is no longer a case of insurrection or turbulent violence. It
has ceased to be a tumult or a riot. The war between the original
Government and the revolutionary Government may still continue, but no
longer can it, with propriety, be said that the army is merely the
_posse comitatus_, dispersing and arresting offenders against the law.
The conflicting parties must, at least for the time, be deemed two
distinct people--two different nations. The evidence in this case and
the public history of the day, show that such is the condition of the
United States and the Confederate States. In addition thereto, the
United States have, by repeated acts, indicated that they so regarded
the fact. The principal witness for the prosecution testified that he
repeatedly saw the officers of the United States negotiating, through
flags of truce, with the officers of the Confederate States; and that
always the flag of truce from the Confederate States was displayed with
their Government flag, but that fact never prevented the negotiation.
This was well known to our Government. We have in evidence, also, the
agreement of capitulation at the surrender of the Forts at Hatteras
Inlet. The representative of the United States signed that official
document and accepted it for his Government, with the signature of
Commander Barron to it as "commanding the forces of the Confederate
States," etc. That was a virtual recognition that there is such a
Government, _de facto_.
A few days since our Government published another general order, or
document, directing that a certain number of prisoners, captured in
arms against the United States, and when fighting under regular
enlistment the army of the Confederate States, should be released as
"prisoners of war," because the Confederate States had released a
similar number. That was an exchange of prisoners of "war," and another
virtual acknowledgment that the Confederate States constitute a
Government. Remember that these "prisoners of war" had, if they were
citizens of the United States, violated the law in the first section of
the statute under the eighth and succeeding sections of which this
prosecution is founded. One class were fighting on land against the
United States, and the penalty is death by the statute. The defendants
here fought on water; and there is the same penalty, if either is
liable to the penalties of the statute. Both classes fought under the
same flag and received their commission from the same Government. If
one class are "prisoners of war" in the opinion of the Government of
the United States, so must the other be. It is impossible to recede
from the consequences of the virtual recognition of belligerent rights
involved in the exchange of these captives, under the chosen
designation of "prisoners of war." How, then, doth the dignity of our
Government suffer by this prosecution! It evinces an indecision, a
caprice, a want of consistency and character on the part of the
Government. It is an unfortunate, and I hope an unpremeditated one. The
good name of the nation is involved, unnecessarily, by the mere fact of
arraignment of these defendants under an indictment; but your verdict
of "not guilty" may yet save it.
The Jury will and must accept the construction which the Government has
in fact put on the law, viz., that it does not apply, and was never
intended to apply, to such a state of affairs as the present revolution
has brought about.
Let me illustrate further the absence of all reason to support the
proposition that, until a formal acknowledgment of the existence of the
Confederate States by the United States, the official acts of the
former cannot be regarded as having any validity, or as affording
protection to their citizens. Go beyond our own borders, to countries
where the sovereign is an individual, with fixed hereditary right to
reign, and where the doctrine established is that which I repudiate,
"Once a sovereign, always a sovereign," and that the sovereign rules by
divine right and cannot innocently be superseded. If the doctrine
affirmed in this case be true, that to give validity to the acts of a
Government established by a revolution the preceding Government must
have recognized its existence, then the world will be sadly at fault.
Show me where the King of Naples has acknowledged the kingship of
Victor Emanuel? Show me where the sovereigns of Parma and Modena and
Tuscany have consented to the establishment of the new government in
their territory?
But the people have voted in the new Government, and they maintain it;
and Victor Emanuel is, in spite of King Bomba, _de facto_, King of
Naples; and Victor's commissions to his army and navy, and his letters
of marque, will be recognized in every court in every enlightened
nation.
Even in Italy, the Courts of Justice would, when the case arose that
required it, enforce the same regard to the existing Government as if
the former sovereigns had formally relinquished their claims to
sovereignty. Again, I say, the act of the people is entitled to more
weight in an inquiry, "what is the Government?" than the seal and
recognition of the former sovereign.
As Americans, imbued with correct opinions upon the relation of the
governed to the governing, your hearts reject the theory propounded by
this prosecution, and concur with me.
To vindicate your opinion you will find the defendants herein "not
guilty."
Come to our own recent history. Texas was one of the States of the
Union which is called Mexico. Texas seceded from that Union. She
declared her independence, and during a struggle of arms became a _de
facto_ Government. Mexico would not recognize her independence, and
continued her intention to restore her to the old Union. The United
States, however, recognized the right of Texas to her independence, and
invited her to enter into our Union, and did incorporate her in that
Union in defiance of the doctrine of Mexico, "once a sovereign, always
a sovereign until independence shall be acknowledged." We then
denounced that doctrine, but now we seem ready to embrace its odious
sentiments. We placed our declaration on record before the world, that
Texas, by her act alone, unauthorized and unrecognized by the central
Government of Mexico, had become a sovereign and independent State,
invested with full power to dispose of her territory and the allegiance
of her citizens, and, as a sovereign State, to enter into compacts with
other States.
Have not the Courts of the United States sanctioned that proceeding?
Suppose that Hungary, or Venice, or Ireland shall separate from their
present empires and establish Governments for themselves, what will be
our position? Let your verdict in this case determine.
It is, perhaps, well, now, to recur to the law of nations. That is a
part of the common law of England and of this country. We may claim in
this Court the benefit of its enlightened and humane provisions, as if
they were embodied in our statutes. There are circumstances in the
history of every nation, when the law of nations supervenes upon the
statutes and controls their literal interpretation.
If the case becomes one to which the law of nations is applicable, it
thereby is removed from the pale of the statute. Such is the present
case. In the seceded States a Government has been established. It has
been hitherto maintained by force, it is true, as against the United
States, but by consent of the people at home; and both sides have taken
up arms, and large armies now stand arrayed against each other, in
support of their respective Governments. It is all-important to the
cause of justice, and to the honor of the United States, to see that in
their official acts, in their treatment of prisoners, either of the
army or captured privateers, they conform to the rules recognized as
binding, under similar circumstances, by civilized and Christian
nations, and sanctioned by the authoritative publicists of the world. I
will recall your attention to extracts from Vattel, and with the
firmest confidence that they will vindicate my views, that the
defendants are entitled to be held as prisoners of war, and not as
criminals awaiting trial:
Vattel, Book III., chapter 18, sec. 292:
"When a party is formed in a State, which no longer obeys the
sovereign, and is of strength sufficient to make a head against
him, or when, in a Republic, the nation is divided into two
opposite factions, and both sides take arms, this is called a
_civil war_. Some confine this term only to a just insurrection of
subjects against an unjust sovereign, to distinguish this lawful
resistance from _rebellion_, which is an open and unjust
resistance; but what appellation will they give to a war in a
Republic torn by two factions, or, in a Monarchy, between two
competitors for a crown? Use appropriates the term of civil war to
every war between the members of one and the same political
society."
Subsequent clause in same section:
"Therefore, whenever a numerous party thinks it has a right to
resist the sovereign, and finds itself able to declare that
opinion, sword in hand, the war is to be carried on between them in
the same manner as between two different nations; and they are to
leave open the same means for preventing enormous violences and
restoring peace."
Last clause in section 295:
"But when a nation becomes divided into two parties absolutely
independent and no longer acknowledging a common superior, the
State is dissolved, and the war betwixt the two parties, in every
respect, is the same with that in a public war between two
different nations. Whether a Republic be torn into two factious
parties, each pretending to form the body of the State, or a
Kingdom be divided betwixt two competitors to the Crown, the nation
is thus severed into two parties, who will mutually term each other
rebels. Thus there are two bodies pretending to be absolutely
independent, and who having no judge, they decide the quarrel by
arms, like two different nations. The obligation of observing the
common laws is therefore absolute, indispensable to both parties,
and the same which the law of nature obliges all nations to observe
between State and State."
"If it be between part of the citizens, on one side, and the
sovereign, with those who continue in obedience to him, on the
other, it is sufficient that the malcontents have some reasons for
taking arms, to give this disturbance the name of _civil war_, and
not that of _rebellion_. This last term is applied only to such an
insurrection against lawful authority as is void of all appearance
of justice. The sovereign, indeed, never fails to term all subjects
rebels openly resisting him; but when these become of strength
sufficient to oppose him, so that he finds himself compelled to
make war regularly on them, he must be contented with the term of
civil war."
Clause of section 293:
"A civil war breaks the bands of society and government, or at
least it suspends their force and effect. It produces in the nation
two independent parties, considering each other as enemies, and
acknowledging no common judge. Therefore, of necessity, these two
parties must, at least for a time, be considered as forming two
separate bodies--two distinct people. Though one of them may be in
the wrong in breaking up the continuity of the State--to rise
against lawful authority--they are not the less divided in fact.
Besides, who shall judge them? On earth they have no common
superior. Thus they are in the case of two nations who, having
dispute which they cannot adjust, are compelled to decide it by
force of arms."
First clause in sec. 294:
"Things being thus situated, it is evident that the common laws of
war, those maxims of humanity, moderation and probity which we
have before enumerated and recommended, are, in civil wars, to be
observed on both sides. The same reasons on which the obligation
between State and State is founded, render them even more
necessary in the unhappy circumstance when two incensed parties
are destroying their common country. Should the sovereign conceive
he has a right to hang up his prisoners as rebels, the opposite
party will make reprisals; if he does not religiously observe the
capitulations and all the conventions made with his enemies, they
will no longer rely on his word; should he burn and destroy, they
will follow his example; the war will become cruel and horrid; its
calamities will increase on the nation."
Remember you are an American Jury; that your fathers were revolutionists;
that they judged for themselves what Government they would have, and
they did not hesitate to break off from their mother Government, even
though there were penalties of statutes with which they were
threatened. And remember, also, that from the beginning of your
fathers' revolution, they claimed that they were not liable to the
treatment of offenders against British statutes, but that the Colonies
were a nation, and entitled to belligerent rights--one of which was,
that if any of their army or navy fell into the hands of the British
army, they should be held as prisoners of war.
Your fathers never admitted that the _continental army_ were liable to
punishment with the _halter_, if taken prisoners.
To be sure, the statute of Great Britain, literally construed, so
provided, but the law of nations had supervened, and rendered that
statute no longer applicable. Vindicate your respect for your fathers'
claims, by extending the same immunities to the prisoners at the bar,
whose situation is analogous to that of our fathers.
At the commencement of the Revolution, preceding the Declaration of
Independence in 1776, the Colonies became each a separate sovereignty.
That became the _status_, with some, without documentary declaration
to that effect; but most of them have left on record positive
enunciations of their assumption of independence and sovereignty as
States, unconnected with the proceedings of any other State.[4] They
entered into a Confederation as independent States, declaring,
however, distinctly, in a separate article, that each State retained
its own sovereignty, freedom, and independence, and every power of
jurisdiction and right not expressly delegated to the United States in
Congress assembled. And at the close of the war, when the treaty of
peace was made, recognizing the independence of the Colonies, each
State was named individually. I have never been able to discover when
and where, since that period, any State has surrendered its
sovereignty, or deprived itself of its right to act as a sovereign.
The Constitution suspends the exercise of some of the functions of
sovereignty by the States, but it does not deprive them of their power
to maintain their rights as sovereigns, when and how they shall think
best, if that Constitution shall, in their judgment, be broken or
perverted as a delegated trust of power.
[4] An interesting fact, not published previously, I believe,
has been communicated to the public recently by Mr. Dawson,
of New York, a historical student and writer of great
research and culture. He has found an original minute in the
records of the General Court of Massachusetts, whereby, as
early as May 1st, 1776, the sovereignty and independence of
that _Colony_ was declared formally.
Listen, therefore, to the better voices whispering to each heart.
Remember, the honor and consistency of the United States are involved
in this case. By a conviction of the defendants, you condemn the
Revolution of your ancestors; you sustain the theories of the worst
courtiers who surrounded George III. in his war to put down the
rebellion; you will appear to the world as stigmatizing revolutionists
with the names of outlaws and pirates, which is the phraseology applied
to them by Austria and Russia; you will violate the law of nations; you
will appear to be merely wreaking vengeance, and not making legitimate
war; you will henceforth preclude your nation from offering a word of
sympathy to people abroad who may be struggling for their independence,
and who have heretofore always turned their hearts to you. You can
never--having punished your revolutionists on the gallows--send an
invitation to the unfortunate champions of independent Government in
the old world. Kossuth will reply: The American maxim is that of
Francis Joseph, and of Marshal Haynau. You cannot say "Godspeed!" to
Ireland, if she shall secede. No! as you love the honor of your
country, and her place among nations, refuse to pronounce these men
pirates.
Tell your Government to wage manly, open, chivalric war on the field
and ocean, and thus or not at all; that dishonor is worse even than
disunion. Stain not your country's hand with blood. If I were your
enemy, I would wish no worse for your names, than to record your
verdict against these prisoners. Leave no such record against your
country in her annals; and when the passions of the hour shall have
subsided, your verdict of acquittal of Thomas H. Baker and the other
defendants herein, will be recalled by you with satisfaction, and will
receive the approval of your countrymen.