_Tuesday, Oct. 29th, 1861._
_Mr. Brady_ resumed his address, and said:
In the same general line of discussion which I adopted yesterday, I
will refer you to a striking passage from a distinguished gentleman,
and, when I have read the extract, will state from whom it emanated:
"Any people anywhere, being _inclined_ and having the _power_, have
a _right_ to rise up and _shake off the existing Government_, and
_form a new one that suits them better_. This is a most valuable, a
most sacred right--a right which, we hope and believe, is to
liberate the world. Nor is this right confined to cases in which
_the whole people_ of an existing Government may choose to exercise
it. _Any portion of such people_ that _can_, MAY REVOLUTIONIZE and
make their _own_ of _so much of the territory as they inhabit_.
More than this: a _majority_ of any portion of such people may
revolutionize--putting down a _minority_ intermingled with or near
about them who may oppose their movements. IT IS A QUALITY OF
REVOLUTIONS NOT TO GO BY OLD LINES OR OLD LAWS, BUT TO BREAK UP
BOTH AND MAKE NEW ONES."--Appendix Con. Globe, 1st Session 35th
Congress, p. 94.
Would you suppose, gentlemen, that it was an ardent South Carolina
secessionist who declared that any people may revolutionize and hold
mastery of any territory which they occupy? Would you suppose that was
from Jefferson Davis, in the Senate of the United States? No,
gentlemen; it is from Abraham Lincoln, the President of the United
States, when he was a member of Congress, and was delivered on the 12th
of January, 1848.
Now, gentlemen, I do not think that an intelligent gentleman born in
South Carolina, Kentucky, or Virginia, and educated by his parents in a
certain political faith, has not as much right to adhere to it as he
has to the religious faith in which he is brought up; and if he should
happen to say all that is substantially claimed by these seceding
States, he would be sustained by authority quoted here, and have the
express sanction of the distinguished and excellent gentleman now at
the head of this nation.
Let me now cite to you _Wheaton's International Law, page_ 30, in which
he says, that "_sovereignty_ is acquired by a State, _either_ at the
_origin_ of the civil society of which it is composed, _or_ when it
_separates itself_ from the community of which it previously formed a
part, and on which it was dependent." Then he says, that "CIVIL WAR
_between the members of the same society is, by the general usages of
nations, such a war as entitles both the contending parties to all the
rights of war as against each other, and as against neutral nations._"
This, if your honors please, seems to me an answer to the doctrine put
forward in this case, that the Judges are to treat this question in
reference to the seceding States as it has been viewed by the executive
and legislative branches of the Government. If it be true that when a
state of civil war exists, as stated by Wheaton, both the contending
parties have all the rights of war as against each other, as well as
against neutral nations, then it follows very clearly that the seceding
States, as well as our own, have all the rights of war; and there is no
such rule as that they must have those rights determined only by the
executive or legislative branches of the Government, or by both.
And here, gentlemen, let us refer to the matter of blockade, which I
take to be the highest evidence of a distinct recognition, by the
General Government, of a state of war as between the United and the
Confederate States. I see no escape from that conclusion. It is true
that a learned Judge in New England, an eminent and pure man, has
determined, as we see from the newspapers, that in his judgment it is
not a blockade which exists, but merely the exercise by the General
Government of its authority over commerce and territory in a state of
insurrection--that it is a mere police or municipal regulation. Well,
gentlemen, that is not the view taken by the Judges elsewhere.
Certainly it is not adopted in this District, where prize cases have
arisen, instituted by the Government, which calls this a blockade; and
I undertake to say that, in the history of the human race, that word,
blockade, never was applied except in a state of war; and the exercise
of that power never can occur except in a state of war, because, as the
writers inform us, blockade is the right of a belligerent _affecting a
neutral, and_ ONLY ALLOWABLE IN A STATE OF WAR. Why is it that France
and England and all the other countries of the world do not attempt to
send their vessels to any of the ports in guard of which we place armed
vessels?
A word more about piracy: A pirate is an offender against the law of
nations. He is called in the Latin, and by the jurists, the enemy of
the human race. Any nation can lay hold of him on the high seas, take
him to its country, and punish him. Now, if a ship of war--British,
French, Russian, or of any other nation--should meet with a piratical
craft, she would capture and condemn it in the courts of her country,
and the crew would suffer the punishment of pirates. No one will
dispute that proposition. But if such a ship of war had met with the
privateer Savannah, even in the very act of capturing the Joseph, would
she have captured the Savannah, or attempted to arrest her crew as
pirates? If not, does it not follow, as a necessary consequence, that
the "Savannah" was not engaged in piratical business? and does it not
involve a palpable absurdity to say, that a vessel on the high seas,
cruising under a privateer's commission, can be treated as a pirate by
the power with which it is at war, and yet be declared not a pirate by
all the other powers of the earth? This must be so, if there is
anything in the idea that piracy is an offence against the law of
nations.
There is not a case in our books where any man, under a commission
emanating from any authority or person, was ever treated as a pirate,
and so condemned, unless the _actual_ intent to steal was proved. In
the case of _Aurey_ such was the fact, as in many other cases which
have been cited. And so it seems that if the Confederate States were
either an actual Government, established in virtue of the principles of
right to which I have referred, or if a Government _de facto_, as
distinguished from one having that right, or if these men believed that
the commission emanated from either kind of Government was--lawfully
issued--we claim that it is impossible in law, and would be wrong in
morals, and unjust in all its consequences, to hold them as pirates, or
to treat them otherwise than as prisoners of war. And, gentlemen, I am
sorry to say, or rather I am glad to say, that if they should be
acquitted of the crime of piracy, they would yet remain as prisoners of
war. The worst thing to do with them is to hang them. By preserving
their lives we have just their number to exchange for prisoners taken
by the enemy.
You, gentlemen, will do your duty under the law, whatever be the
consequences. If you have no doubt that these men have committed
piracy, they should be convicted of piracy. No threat of retaliation
from any quarter should or will influence right-minded men in the
disposition to be made of cases where they have to give a verdict
according to their conscience, the evidence, and the law of the land.
But the fact of retaliation, as a danger that may ensue from treating
as pirates men engaged in war, is referred to by VATTEL in his treatise
on the laws of nations. It is one of the considerations which enjoin on
Courts and Governments the duty of seeing that, when people are
prosecuting civil war, they shall enjoy the humanities of war.
I will now consider this case under the ninth section of the Act of
1790, which is as follows:
"If any _citizen_ shall commit any piracy or robbery aforesaid, or
_any act of hostility_ against the United States, _or any of the
citizens thereof_, on the high seas, under color of any commission
from _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 thereof convicted,
shall suffer death."
Now, in the first place, we say, as was before urged, that statute has
no bearing whatever on the case of the eight foreigners, and you are to
disregard them entirely in passing upon all the questions which this
Act may raise; and we say that it has no bearing on the four Americans
before you, even if it be a valid Act and applicable to a case of this
character, because, at the time of the acts charged, they were
_citizens of another Government, owing it allegiance, receiving its
protection, engaged in its service, and bound to perform such service_.
We have been told that allegiance and protection are reciprocal. The
people of the Southern States would be placed in a very extraordinary
condition if the arguments of my learned opponent are to prevail. Look
at the citizens of Charleston. There are men in that city who love the
Union, among whom is MR. PETTIGREW, an able lawyer, a patriot, and a
man of great virtue, talents, and distinction. If those loyal people
wanted to leave Charleston and come North, they could not do it. If
they felt inclined to utter, at this moment, their sentiments in favor
of reunion of the States, it would be an act of folly and danger. They
are living in A STATE, under its government and jurisdiction, and bound
to perform their duties as citizens. Can they refuse? They may be
ordered into the service of the government--sent to sea--enlisted as
soldiers. They cannot refuse to fight. If they do, they make themselves
amenable to their own Judges. I refer to _1st Hawkins, Pl. Crown_, 87,
89, where it is said:
"_There is a_ NECESSITY _that the realm should have a King, by whom
and in whose name the laws shall be administered; and the King_ IN
POSSESSION, _being the only person who either doth or can administer
those laws_, MUST BE THE ONLY PERSON _who has a right to that
obedience which is due to him who administers those laws; and
since, by virtue thereof, he secures us the safety of our lives,
liberties, and properties, and all the advantages of Government,
he may_ JUSTLY CLAIM RETURNS OF DUTY, ALLEGIANCE, AND SUBJECTION."
And BLACKSTONE is equally explicit (_4 Blackstone's Comm._, 78):
"When, therefore, an USURPER is _in possession_, the subject is
_excused_ and _justified in obeying and giving him assistance_;
OTHERWISE, UNDER AN USURPATION, NO MAN _could_ BE SAFE, _if the
lawful Prince had a right to hang him for obedience to the power in
being, as the_ USURPER WOULD CERTAINLY DO FOR DISOBEDIENCE."
_3d Inst. (Coke)_ 7, is to the same point:
"_The stat. 11 Henry VII., ch. 1_, is declaratory of the law on
this subject; _and the year books, 4 Edw. IV., 1, 9 Edw. IV., 1, 2,
show that it was always the English law_."
Our statute, or rather constitutional definition, of _treason_, is a
transcript of the English statute of treason; and it is hardly
necessary to cite _2 Story on the Constitution, sec. 1799_, to the
point that our Courts will construe the Constitution as the English law
is construed by the English Courts. And here we observe a marked
difference between a revolt by the subjects of a single consolidated
Government which is a unit, and the action of one or more States in a
Confederacy, or of the people dwelling within them, when such States
resolve, as States, to recognize no sovereignty or Government within
their territory except that established under their own Constitution.
But I insist upon it that _Congress had no power to pass this 9th
section of the Act of 1790_; that the construction put upon it by our
opponents is entirely unwarranted; and that it cannot be applied to a
case like this. Your honors are aware that in _The case of Smith, 5
Wheaton_, Mr. Webster took the ground that the law was not
constitutional, because it did not define piracy otherwise than by
referring to the law of nations. The authority given to Congress on
that subject is to define and punish piracy and other offences against
the law of nations. "To define and punish piracy" is all of the phrase
with which I have to deal. Now, you understand, gentlemen, that there
is no common-law jurisdiction of offences residing in the United States
Courts. They can punish no crime except by statute. Congress had fully
defined piracy and robbery in the _eighth_ section of the Act of 1790;
and, having done so, what power or authority was there in Congress to
go on and say that something else should be called piracy, when the
definition of it was complete? Let me refer your honors again to the
language of the law, which furnishes a strong argument on this subject:
"If any citizen shall commit any piracy or robbery _aforesaid_, or any
act of hostility against the United States," &c. Does not that clearly
recognize and admit that piracy has been defined? and can it be
pretended that Congress, under pretence of defining piracy, can provide
that a common assault and battery on the high sea shall be piracy? Is
there no limitation to that grant? We claim that its terms are just as
much a _restriction_ as a _delegation_ of power. It defines as clearly
the limits which the Government shall not transcend, as it does the
area which Congress may occupy. You may "define piracy and punish it:"
does this mean that you can call anything piracy, whether it be so or
not? Suppose Congress passed an Act providing that, if any man _on
land_ should, during a state of war, attempt to make reprisals on
another, it should be piracy, punishable with death: would that be a
legitimate exercise of the authority vested in Congress? We claim that
it would not, and that it would be a manifest usurpation against the
true meaning, spirit, and proper effect of the Constitution.
Again, it has been argued to your honors, and we insist, that _this
statute, if it be operative_, only _relates to the case of a person
taking a commission from a_ FOREIGN _Government or State_. To say that
an act of hostility committed by authority of any _person_
whatever--using the word "person" to mean a human being--against
another, on the high seas, would be piracy, and punishable by death, is
a monstrous construction of this Act; and if I understood brother
Evarts, in the course of the discussion that took place between him and
myself, he conceded that the case which I suggested, of throwing a
belaying-pin, by order of the Captain of one vessel, at the Captain of
another, on the high seas, _although an act of hostility by one citizen
against another_, under pretence of authority from a person, would not
come within the law; yet this assault would be within the _very letter_
of the Act. Read that law just as it is, and say, after the words
"Prince" and "State" have been used, what other term is necessary or
apposite. Why, no other, except as in the case of Aurey, an
_individual_ fitting out an expedition against a foreign Government,
and undertaking to grant commissions; or as in the case of _James II._,
who, as shown by Mr. Lord, was an exile in a foreign land, having no
territory, no Government, and no subjects; and he was treated in the
English Act--from which ours is taken--as a _mere person_, not to be
denominated King. I do not mean to concede that the case of _Miranda_,
who fitted out the expedition against Spain, assisted by some of our
citizens, and granted commissions to privateers, would be a case within
the statute of 1790; but if it would, it will not subserve the purposes
of the prosecution at all, or be injurious to us. The word "person," in
this connection, means a person standing in the same relation to
another as a Prince or a State. Gentlemen, that this was never intended
to apply between so many States as remained in the Union and those that
went out, is a proposition about which Mr. Lord has been heard, and I
see no answer to his argument.
Now, there is a dilemma here. If the gentlemen insist that, in the
construction I have given, we are right, and that Mr. Jefferson Davis
or the Confederate States, in the giving of this commission or
authority, are to be regarded as a power or person within my
definition, then it is as a foreign power; in which case Capt. Baker is
the subject or citizen of that power, and not a citizen of the United
States, and not within the Act of 1790. And if the Confederate States
is _not_ a foreign power, within the construction and meaning of the
Act of 1790, then there is no violation of that statute by Capt. Baker,
or any one associated with him, if it be true, as I contend, that the
pretence of authority must be of one from a foreign source. If they
make out that the Confederate States is a foreign power, it is because
it is a Government in existence; and if it be a Government in
existence, then its commission must be recognized by the law of
nations.
Now, I certainly understood, from the opening by the learned District
Attorney, that the prosecution did not rely much on the piracy branch
of this case; they did not abandon it; they have never said they would
not press a conviction upon it. But the strong effort is made to
convict under the ninth section of the Act of 1790, saying to you of
the Jury, "All you have to find is, that Baker and three of his
associates were citizens of the United States; that they were on the
high seas; and that, being there, they committed an act of hostility
against another citizen of the United States, under pretence of
authority from Jefferson Davis; and, then, they are pirates." I think
it would have been a little more magnanimous in the Government not to
attempt any scheme of this kind. I think, if it be possible to drag
these men, manacled, within the construction of a statute which exposes
their lives to danger, it is yet not the right way to deal with them.
When they were captured they were entitled to be treated either as
prisoners of war, or as traitors to the Government. Why were they not
indicted for treason?
Now, my learned friend said that this indictment was drawn with the
utmost possible care and circumspection, when he spoke of the averment
that this act of the defendants was done under pretence of the
authority of "_one Jefferson Davis_." The pleader did not wish to
admit, by the language of the indictment, that it was under pretence of
any authority from any Government or Confederate States. He wanted to
regard it as the act of a mere individual, who, although he claimed to
represent so-called States, was, after all, merely a person signing a
paper on his own account, and for which he was to take the exclusive
responsibility.
I will refer your honors to _Blackstone, 4 vol., p. _72, where he
interprets this statute of _11 and 12 William III., chap. _4, to relate
to acts done under color of a commission from a _foreign power_; and it
was never supposed to have meant anything else. In 1819, Great Britain
passed a law making it a crime for British subjects to be connected in
any way with the sending out of vessels to cruise against a power at
peace with England. By the _18th George II., chap. _30, it is made
piracy, in time of war, for English subjects to commit hostilities of
any kind against fellow subjects. How did that act become necessary in
the legislation of England, if the previous law had already provided
for the same thing? That, certainly, is a question of some importance
in this case. We have statutes that punish citizens of the United
States, under certain circumstances when they are engaged in
privateering; and there have been trials and convictions under these
statutes, as your honors will find by referring to _Wharton's State
Trials_.
We contend, therefore, that the ninth section of the Act of 1790, as
construed by our opponents, would be unconstitutional; that it only
applies, if valid, to acts done under authority of a foreign power or
person; that if Jefferson Davis was, or represented, such foreign
power, then the defendants were subjects of that power, not citizens of
the United States, and not within the Act; if he were not or did not
represent a foreign power, the Act does not apply to the case; and so,
in every view of the subject, there is no right to convict any of these
men under this Act.
I will now cite some authorities on the question of _variance_ made by
my friend, Mr. Lord, in describing this commission as a pretence of
authority from one Jefferson Davis. Certainly, in law, that commission
is the act and authority of the Confederate States. There can be no
dispute about that.
I refer my learned opponents to _Wharton's Criminal Treatise, at pps.
78, 91, 93, 94 and 96_, for these two propositions: In the first place,
that, where a new offence is created by statute, the utmost
particularity is required, when drawing the indictment, to set forth
all the statutory elements of the offence; and, in the second place,
what is thus averred must be proved strictly as laid. Well, it may seem
to you, gentlemen, rather a technical and immaterial question, whether
this was set out as a pretence of authority from one Jefferson Davis,
or from the Confederate States,--and it is. But, nevertheless, it is a
legal technicality; and these prisoners, if it be well founded, have a
right to the benefit of it. It is very little that I have to read from
this book, for the propositions are pointedly stated:
Page 91. "It is a general rule that, in regard to offences created
by statutes, it is necessary that the defendant be brought within
all the material words of the statute; and nothing can be taken by
intendment."
Page 93. "Defects in the description of a statutory offence will
not be aided by a verdict, nor will the conclusion _contra formam
statutis_ cure it."
Page 94. "An indictment under the Stat. 5th Elizabeth, which makes
it high treason to clip round or file any of the coin of the realm
for wicked lucre or gain sake,--it was necessary to charge the
offence as being committed for wicked lucre or gain sake, otherwise
the indictment was bad. In another case, an indictment on that part
of the black act which made it felony willfully or maliciously to
shoot at a person in a dwelling-house was held to be bad, because
it charged the offence to have been done '_unlawfully and
maliciously_,' without the word '_willfully_.'"
That is technical enough, I admit, but it emanates from high authority.
[Mr. Brady read other passages from Wharton, and said]:
And, now, what relates more particularly to the matter in hand, is the
case of _The United States_ vs. _Hardiman, 13 Peters_, 176. In that
case the defendant was indicted for receiving a fifty-dollar treasury
note, knowing it to have been stolen out of the mail of the United
States. The indictment was under the 45th section of the Post-Office
Law. The thing stolen was described as a fifty-dollar _treasury note,
bearing interest at one per cent._; and it turned out to be a treasury
note which, although of fifty-dollars' denomination, bore interest at
the rate of _one mill per cent._; and the Court held the variance to be
fatal. Now, we claim that to describe the commission as emanating from
one Jefferson Davis, when in fact it emanated from the Confederate
States, is such a variance as is here referred to; and, on that ground,
the indictment is not sustained.
The argument is made here, that, no matter what publicists may say,--no
matter what Courts of other countries may declare as international law,
about the organization of government or the creation of powers _de
jure_ or _de facto_,--this Court has nothing to do with the debate;
that your honors have simply to inquire whether Mr. Lincoln, the
President, has said, or whether Congress has said, a certain thing, and
the matter proceeds no further; that the citizen is not entitled to
have a trial, in a Court of Justice, on the question whether, being in
a state of revolt, a civil war does in fact exist; and that the right
of trial by Jury does not, as to such a question, exist at all.
It is utterly absurd to have you here, gentlemen, if all that is
necessary to be shown against these men is the proclamation by the
Executive, and an Act of Congress calling them rebels and pirates. Is
there any trial by Jury under such circumstances? The form of it may
exist, but not the substance. It is a mockery. No, your honors; this
question, as to the _status_ of the Confederate States, is a judicial
question, when it arises in a Court of Justice. It is a juridical
question. It is one of which Courts may take cognizance--must take
cognizance--in view of and with the aid of that international law which
is part of the common law, part of the birthright of all our citizens,
and to the benefit and immunities as well as responsibilities of which
they are subject and may make claim.
Otherwise it would lead to this most extraordinary consequence, that,
whenever any portion of a State or any State of a Confederacy, either
here or elsewhere, revolts, and attempts to withdraw itself from the
old Government, the old Government shall be the only judge on earth to
determine whether the seceders, or the revolutionists, or the rebels,
shall be treated as pirates or robbers.
Would it not be very strange if our nation should extend to those who
revolt in any other country, when they have attained a certain
formidable position before the world, the rights and humanities of
civil war; and that, when any of our own people, under the claim of
right and justice, however ill-founded, unfortunate, or otherwise, put
themselves in an attitude of hostility to the Government, they are to
be treated as outlaws and enemies to the human race, having no rights
whatever incident to humanity and growing out of benign jurisprudence?
Then, apart from all that has been said, _if the United States made war
upon the South, as it certainly did by the act of the President, it is
one of the propositions which these men may insist upon, that the
States had a right to defend themselves, to make reprisals, to issue
letters of marque, and that they had all the other rights of warfare._
On this point, Mr. Larocque has given copious and apposite arguments
and citations. The Constitution itself, when it comes to prohibit a
State from making war and granting letters of marque, distinctly
recognizes that privateers are not illegal. It has limited the
prohibition against granting letters of marque, &c., by saying that a
State may do so in the case of invasion, and when the danger is
imminent.
Now, what are the facts before us here which raise this as a question
in the case? There was no declaration of war by our Government, and
none by the South; but at a certain time there was a firing on an
unarmed vessel entering Charleston harbor--the "Star of the West."
General Anderson, who was in command of Fort Sumter--whether acting
under the authority of the Government, or not, does not very clearly
appear in the case--sent a communication to Governor Pickens, to the
effect that, if unarmed vessels were to be fired upon, he wished to be
informed of the fact, saying, "You have not yet declared war against
the United States;" and that, if the offence were repeated, he should
open his batteries on Charleston.
That is the substance of it. Mr. Pickens retorted, saying,
substantially, that they would maintain their positions. The next thing
in order is the proclamation by the President, for the organization of
the army, for the purpose, as he said, of retaking our forts. When,
therefore, that condition of things had arrived, war was begun by the
United States upon the South.
You may say it was not a war. You may say it was the employment of
means to put down an insurrection. I care not for the mere use of
language. It was, in effect and substance, a war against those States
which claimed the authority to hold territory for themselves, under a
separate and independent Government; and that would give them the right
to oppose force by force, unless, indeed, the whole thing was a
tumultuous act--a mere act of treason--and so to be regarded in all
aspects of the case.
There is a principle applicable to this whole case, referred to by MR.
DUKES, in his argument--the doctrine of _respondeat superior_, of which
he gave some instances. These men may go wholly free by the law of
nations, and yet the State which, in the name of Jefferson Davis or the
Confederate States, issued this commission, would be responsible to the
General Government for the consequences. We had a memorable instance of
this in this State, some years since. You will remember that a man,
named MCLEOD, was charged with coming across the lines from Canada and
setting fire to an American steamer. He was tried, and acquitted on the
ground--not very complimentary to him--that he did not do any such
thing, although he had boasted of it. It was rather humiliating to be
absolved of crime on the ground that the accused was a liar; yet still
that is the history of the case. Now, there was a diplomatic
correspondence in reference to this incident, as some of you well
remember. Great Britain insisted that Mr. McLeod must not be tried at
all; that the American Government had no authority to take cognizance
of the act; and that we must look to Great Britain for redress. Well,
gentlemen, I am sorry to say that our Government has very often acted
like the Government of England. Each of us has been quite willing,
occasionally, to swoop down on an inferior power, as the vulture on its
prey; but, whenever there was a possibility of conflict with a power
equal to either, a great deal of caution and reserve has been evinced.
We have been for years--almost from the foundation of our
Government--truckling to British ideas, British principles, British
feelings, and British apprehensions, in a manner which has not done us
any honor; and we see to-day what reward we are enjoying for it. There
has not been a public speaker in England who has ever designated us,
for a long period, by any other name than that of the Anglo-Saxon
race--a designation which includes but one element of even the race
which exists in the British Islands, omitting the gentle, noble, and
effective traits imported into it by the Normans, and excluding those
countrymen of my ancestors who do not like to be outside when there is
anything good going on within. What said our Government to that? I
understand that they distinctly admitted that McLeod was not amenable
to our jurisdiction; but the State of New York held on, in virtue of
its jurisdiction and sovereignty, and Mr. McLeod had to be tried, and
was tried and acquitted. There the principle of _respondeat superior_
was acknowledged by our Government; and I believe that is the policy
upon which it has acted on every occasion when the case arose.
Gentlemen, I will detain you but a few moments longer. I have
endeavored to show, in the first place, that these men cannot be
convicted of piracy, because they had not the intent to steal,
essential to the commission of that offence, and that you are the
judges whether that intent did or did not exist. If it did not, then
the accused men are entitled to acquittal on that ground. If the Act of
1790 be constitutional, and if it can be construed to extend to a case
like this, then eight of the prisoners are to be discharged--being
foreigners, not naturalized; and the other four, also--having acted
under a commission issued in good faith by a Government which claimed
to have existence, acted upon in good faith by themselves, and with the
belief that they were not committing any lawless act of aggression. In
this connection I hold it to be immaterial whether the Confederate
Government was one of right, established on sufficient authority
according to the law of nations, and to be recognized as such, or
whether it was merely a Government in fact. We claim, beyond all that,
and apart from the question of Government in law or Government in fact,
that there exists a state of civil war; which entitles these defendants
to be treated in every other manner than as pirates; which may have
rendered them amenable to the danger of being regarded as prisoners of
war, but which has made it impossible for them to be ever dealt with as
felons. I am sorry that it has become necessary in this discussion to
open subjects for debate, any inquiry about which, at this particular
juncture in our history, is not likely to be attended with any great
advantage. But, like my brethren for the defence, I have endeavored to
state freely, fearlessly, frankly and correctly, the positions on which
the defendants have a right to rely before the Court and before you. It
would have been much more acceptable to my feelings, as a citizen, if
we had been spared the performance of any such duty. But, gentlemen, it
is not our fault. The advocate is of very little use in the days of
prosperity and peace, in the periods of repose, in protecting your
property, or aiding you to recover your rights of a civil nature. It is
only when public opinion, or the strong power of Government, the
formidable array of influence, the force of a nation, or the fury of a
multitude, is directed against you, that the advocate is of any use.
Many years ago, while we were yet Colonies of Great Britain, there
occurred on this island what is known as the famous negro
insurrection,--the result of an idle story, told by a worthless person,
and yet leading to such an inflammation of the public mind that all the
lawyers who then practiced at the bar of New York (and it is the
greatest stigma on our profession of which the world can furnish an
example) refused to defend the accused parties. One of them was a poor
priest, of, I believe, foreign origin. The consequence was, that
numerous convictions took place, and a great many executions. And yet
all mankind is perfectly satisfied that there never was a more
unfounded rumor--never a more idle tale--and that judicial murders were
never perpetrated on the face of the earth more intolerable, more
inexcusable, more without palliation. How different was it in Boston,
at the time of what was called the massacre of Massachusetts subjects
by British forces! The soldiers, on being indicted, sought for counsel;
and they found two men, of great eminence in the profession, to act for
them. One of them was Mr. Adams, and the other Mr. Quincy. The father
of Mr. Quincy addressed a letter, imploring him, on his allegiance as a
son, and from affection and duty toward him, not to undertake the
defence of these men. The son wrote back a response, recognizing, as he
truly felt, all the filial affection which he owed to that honored
parent, but, at the same time, taking the high and appropriate ground
that he must discharge his duty as an advocate, according to the rules
of his profession and the obligation of his official oath, whatever
might be the result of his course.
The struggles, in the history of the world, to have, in criminal
trials, an honest judiciary, a fearless jury, and a faithful advocate,
disclose a great deal of wrong and suffering inflicted on advocates
silenced by force, trembling at the bar where they ought to be utterly
immovable in the discharge of their duty--on juries fined, and
imprisoned, and kept lying in dungeons for years, because they dared,
in State prosecutions, to find verdicts against the direction of the
Court. The provisions of our own Constitution, which secure to men
trial by jury and all the rights incident to that sacred and invaluable
privilege, are the history of wrong against which those provisions are
intended to guard in the future. This trial, gentlemen, furnishes a
brilliant illustration of the beneficial results of all this care.
Nothing could be fairer than the trial which these prisoners have had;
nothing more admirable than the attention which you have given to every
proceeding in this case. I know all the gentlemen on that Jury well
enough to be perfectly certain that whatever verdict they render will
be given without fear or favor, on the law of the land, as they shall
be informed it does exist, on a calm and patient review of the
testimony, with a due sympathy for the accused, and yet with a proper
respect for the Government, so that the law shall be satisfied and
individual right protected. But, gentlemen, I do believe most sincerely
that, unless we have deceived ourselves in regard to the law of the
land, I have a right to invoke your protection for these men. The
bodily presence, if it could be secured, of those who have been here in
spirit by their language, attending on this debate and hovering about
these men to furnish them protection--Lee, and Hamilton, and Adams, and
Washington, and Jefferson, all whose spirits enter into the principles
for which we contend--would plead in their behalf. I do wish that it
were within the power of men, invoking the great Ruler of the Universe,
to bid these doors open and to let the Revolutionary Sages to whom I
have referred, and a Sumter, a Moultrie, a Marion, a Greene, a Putnam,
and the other distinguished men who fought for our privileges and
rights in the days of old, march in here and look at this trial. There
is not a man of them who would not say to you that you should remember,
in regard to each of these prisoners, as if you were his father, the
history of Abraham when he went to sacrifice his son Isaac on the
mount--the spirit of American liberty, the principles of American
jurisprudence, and the dictates of humanity, constituting themselves
another Angel of the Lord, and saying to you, when the immolation was
threatened, "Lay not your hand upon him." (Manifestations of applause
in Court.)