_May it please your Honors: Gentlemen of the Jury_:
On the 25th of June last, when the startling intelligence was announced
in our daily papers of the capture of the so-called _Pirates of the
Savannah_, our community was thrown into a _furore_ of excitement.
Every one was anxious to get a glimpse of the "monsters of the deep,"
as they were carried manacled through our streets. Some expected to see
in Captain Baker a "counterfeit presentment" of the notorious Captain
Kidd; others expected to trace resemblances in Harleston and
Passalaigue to Hicks and Jackalow; but what was their surprise when
they discovered, instead of _fiends_ in human shape, gentlemen of
character, intelligence, refinement, and education! Captain Baker is a
native of the Quaker City, Harleston and Passalaigue of the State of
South Carolina,--all occupying the best positions in society, and
respectably connected. The father of Harleston was educated in one of
our Northern universities, and, by a strange coincidence, one of his
classmates was no less a person than the venerable and distinguished
counsel who now appears in behalf of his unfortunate son. (The counsel
directed his eyes to Mr. Lord.) Another strange coincidence in the case
is, that twelve men are sitting in judgment upon the lives of twelve
men, and these men "enemies of the country, enemies of war," and as
such are entitled to the rights of prisoners of war.
They do not belong to your jurisdiction; their custody belongs
exclusively to the military and not the civil power. Instead of being
incarcerated as felons, in the Tombs, they should have been imprisoned
in Fort Lafayette, as prisoners of war. They are your enemies to-day;
they were your friends yesterday. It is no uncommon occurrence that
when two men engage in a quarrel, ending in a fierce combat, they are
afterwards better friends than they were before; the vanquished
magnanimously acknowledging the superiority of the victor, and the
victor in return receiving him kindly. And so, gentlemen, I hope the
day is not far distant when the Stars and Stripes will float in the
breeze upon every house-top and every hill-top throughout the length
and breadth of our glorious Republic: then shall we establish the great
principle, for which our forefathers laid down "their lives, their
fortunes, and their sacred honor," that this is a Government of
consent, and not of force; and "that free governments derive their just
powers from the consent of the governed."
In this case some of the gravest and most complicated questions of
political and international jurisprudence are involved.
The learned counsel who have preceded me have so fully and ably argued
the political questions involved, that it would be the work of
supererogation for me to go over them; but in this connection it is not
inappropriate to refer to the fact that political opinions instilled
into the minds of the prisoners may have influenced their conduct. They
were indoctrinated with the principles of political leaders who
advocated States' Rights, Nullification, and Secession; and without
undertaking to justify or approve the soundness or correctness of their
views, it is enough for me to show that the prisoners at the bar were
actuated by these principles. The name of John C. Calhoun was _once_
dear to every American; his fame is now sectional. Every Southerner
believes implicitly in his doctrines; his very name causes their bosoms
to swell with emotions of pride; his works are political text books in
the schools. It has been facetiously said that when Mr. Calhoun took a
pinch of snuff, the whole State of South Carolina sneezed. I do not
mean to treat this case with levity, but merely intend to show the
sympathy that existed between Mr. Calhoun and his constituents. Then
what is the "_head and front of their offending_"? They conscientiously
believed that _allegiance_ was due to their State, and she in return
owed them protection; and under such convictions enlisted in her
behalf. If they have erred, it was from mistaken or false notions of
patriotism, and not from criminality. It is the _intent_ that
constitutes the crime. And this is the only just rule that should
obtain in _human_ as well as _divine_ tribunals.
The prisoners at the bar stand charged with the offence of piracy. I
contend that they do not come within the intention and purview of the
statute against piracy. To understand and properly interpret a law, we
must look to the intention of the legislator, and the motives and
causes which give rise to the enactment of the law. In the construction
of a will, the intention of the testator is to be ascertained; and the
same rules apply in the just interpretation of every law. These laws
were enacted at a period when peace and prosperity smiled upon this
country. If they had been passed during Nullification in 1832, when the
disruption of the Union was threatened, then we might reasonably infer
that they were intended to apply to the existing state of affairs; so
that the irresistible conclusion is, that they were applicable only to
a state of peace, and not to a state of war.
The question then arises, Does a state of war exist? The learned
counsel for the prosecution (Mr. Evarts), in an able and elaborate
argument for the Government, when this question arose in the trial of
prize causes, in the other part of this Court (when it was the interest
of the Government to assume that position), demonstrated clearly, to my
mind, that a state of war did exist, and confirmed his views by
citations from the best authorities on international law.
Vattel, who ranks among the first of authors, and whose work on the law
of nations is recognized by every enlightened jurist throughout the
civilized world, defines "war to be that state, where a nation
prosecutes its rights by force." That this is a nation no one will
doubt; that it is prosecuting its rights can not be denied; and no one
will doubt that it is using force upon a stupendous scale--requiring
four hundred millions of dollars, and 500,000 men, with the probability
of additional requisitions of men and treasure for a successful
termination of this fratricidal war.
It may be said that this is a civil war. Admitting it to be so, the
only distinction between this and an international war is, that the
former is an intestinal war between the people, where the Republic is
divided into two factions, and the latter is where two nations are
opposed to each other. All the rules of civilized war, therefore,
should govern equally, and it is to soften and mitigate the horrors of
civil war that an exchange of prisoners is recognized.
I have endeavored to show that the prisoners at the bar are not guilty
of piracy, as defined by the Acts of Congress; and if they are not
guilty of municipal piracy, they are certainly not guilty of piracy by
the law of nations. What is a pirate? He is defined to be an enemy of
the human race--a common sea rover, without any fixed place of
residence, who acknowledges no sovereign, no law, and supports himself
by pillage and depredation. Do the prisoners come within the meaning of
this definition? Did they not encounter a British vessel upon the high
seas? Could they not have captured her? But, no, gentlemen of the Jury,
as soon as they ascertained that she belonged to a nation in amity with
theirs, they allowed her to depart in peace. With the permission of the
Court, I would beg leave to refer to an authority entitled to high
respect--the works of Sir Leoline Jenkins, 4th Institutes, p. 154,
where this principle is laid down: "If the subjects of different States
commit robbery upon each other upon the high seas, if their respective
States be in amity, it is piracy; if at enmity, it is not, for it is a
general rule that enemies never can commit piracy on each other, their
depredations being deemed mere acts of hostility."
The prisoners were acting in good faith, by virtue of a commission
under the seal of the Confederate States. It is said, by the learned
counsel for the prosecution, that the prisoners were acting under the
authority of a person named Jefferson Davis. This does so appear
nominally, but it is virtually and actually a commission issuing from
eight millions of people, who recognize and sanction it under the hand
of their President and the seal of their Government--each one being
_particeps criminis_, and each one being amenable to the laws of the
country, and liable to the penalties of treason and piracy, if
evenhanded justice is to be meted out.
I have not yet been able to perceive the distinction between this
offence as committed upon sea or land, except that it is attended with
more danger. Why, then, have not the prisoners captured by our armies,
who are now in Fortress Monroe and Fort Lafayette, been brought to the
bar of justice? Because the Government has come to the conclusion that
it would be unwise, impolitic, and impracticable; our tribunals would
be inadequate in the administration of the laws. But justice should be
equal.
One of the learned Judges who charged the Jury in the case of the
privateers who were tried in Philadelphia, has undertaken to establish
the doctrine that rebellion is wrong, and that it is only justifiable
when it acquires the form of a successful revolution. To analyze this
doctrine, it means no more nor less than this: that that which was
originally wrong, success makes right. To carry out the metaphor, a
certain insect in its chrysalis state is the loathsome and detestable
caterpillar, but when it assumes the form and variegated hues of the
butterfly, it is glorious and beautiful to behold. With equal force of
reason it might be said, that if the Father of his country had been
unsuccessful in consummating our independence, his name, instead of
going down to posterity in glory and honor, would have descended in
infamy and disgrace to all succeeding generations. Such notions are
unworthy of refined and enlightened civilization.
It was intimated by the learned District Attorney, in his opening
remarks, that in the event of a conviction, the President would
exercise the pardoning prerogative. Gentlemen, this is a delusion. I do
not mean to insinuate that the learned counsel would willfully mislead
you; for I am bound to admit, in all becoming candor, that the
prosecution have acted with fairness and magnanimity highly creditable,
and not in any manner inconsistent with the _performance of their
arduous_ and responsible duties; but I do say that it should not have
the slightest weight in your deliberations upon the important questions
involved in this case. Is this a mere form--a farce? is your time, and
the valuable time of the Court, to be consumed in the investigation of
a long and tedious case like the present as a mere pastime? It is a
reflection upon the good sense and intelligence of a Jury, for the
Executive to exercise the pardoning power, except in special cases,
where new evidence is discovered after conviction which may go to
establish the innocence of the party so convicted.
Gentlemen of the Jury, you have a duty to perform that requires almost
superhuman nerve and moral courage--requiring more prowess than to face
the cannon's mouth. You have it in your power to prove to the nation,
and to the whole civilized world, that in the administration of the
criminal laws of the country, in a case involving the rights and
interests of this Republic, before a Jury of New York citizens, that
"_justice can triumph over passion, and reason prevail over
prejudice_." If there is no other feeling which can influence your
judgment, if you have no sympathy in common with these men, there is a
sympathy you should have--a sympathy for those brave and valiant
spirits who fought so nobly for the Union, the Constitution, and the
enforcement of the laws, and who are now prisoners of war in the power
of the enemy; and it would be expecting too much clemency from the
hands of the enemy to suppose that they would allow the sacrifice of
these men to go unavenged.
I repeat, you have a solemn duty to perform, and public opinion should
not have the slightest influence upon your mind. You are to be governed
by a "higher law;" a law based upon the sacred precepts of Holy
Writ--its teachings emanating from God himself; and therein you are
commanded to observe that golden rule, "Do unto others as you would
that they should do unto you."