Chapter 17

"Mr. President," said he, "in the excited times in which we live there is found to exist a state of crimination and recrimination between the North and South. There are lists of grievances produced by each, and those grievances, real or supposed, alienate the minds of one portion of the country from the other, exasperate the feelings, and subdue the sense of fraternal affection, patriotic love, and mutual regard. I shall bestow a little attention, sir, upon these various grievances existing on the one side and on the other. I begin withcomplaints of the South. I will not answer further than I have the general statements of the honorable Senator from South Carolina, that the North has prospered at the expense of the South, in consequence of the manner of administering this Government, in the collecting of its revenues, and so forth. These are disputed topics, and I have no inclination to enter into them. But I will allude to other complaints of the South, andespecially to one which has, in my opinion, just foundation; and that is, that there has been found at the North, among individuals and among legislators, a disinclination to perform fully their constitutional duties in regard to the return of persons bound to service who have escaped into the Free States. In that respect the South, in my judgment, is right, and the North is wrong. Every member of any Northern Legislature is bound by oath, like every other officer in the country, to support the Constitution of the United States; and the article of the Constitution (Art. iv., sec. 2, subd. 2) which says to these States that they shall deliver up fugitives from service, is as binding in honor and conscience as any other article. No man fulfills his duty in any Legislature who sets himself to find excuses, evasions, escapes, from this constitutional obligation. I have always thought that the Constitution addressed itself to the Legislatures of the States, or to the States themselves. It says that those persons escaping to other States 'shall be delivered up;' and I confess I have always been of the opinion that it was an injunction upon the States themselves. When it is said that a person escaping into another State, and coming, therefore, within the jurisdiction of that State, shall be delivered up, it seems to me the import of the clause is, that the State itself, in obedience to the Constitution, shall cause him to be delivered up. That is my judgment. I have always entertained that opinion, and I entertain it now. But when the subject, some years ago, was before the Supreme Court of the United States, the majority of the Judges held that the power to cause fugitives from service to be delivered up was a power to be exercised under the authority of this Government. I do not know, on the whole, that it may not have been a fortunate decision. My habit is to respect the result of judicial deliberations and the solemnity of judicial decisions. As it now stands, the business of seeing that these fugitives are delivered up resides in the power of Congress and the national judicature; and my friend at the head of the Judiciary Committee (Mr. Mason) has a bill on the subject now before the Senate, which, with some amendments to it, I propose to support, with all its provisions, to the fullest extent. And I desire to call the attention of all sober-minded men at the North, of all conscientious men, of all men who are not carried away by some fanatical idea or some false impression, to their constitutional obligations. I put it to all the sober and sound minds at the North, as a question of morals and a question of conscience: What right have they, in their legislative capacity or any other capacity, to endeavor to get around this Constitution, or to embarrass the free exercise of the rights secured by the Constitution to the persons whose slaves escape from them? None at all—none at all. Neither in the forum of conscience, nor before the face of this Constitution, are they, in my opinion, justified in such an attempt. Of course, it is a matter for their consideration. They, probably, in the excitement of the times, have not stopped to consider of this. They followed what seemed to be the current of thought and of motives, as the occasion arose; and they have neglected to investigate fully the real question, and to consider their constitutional obligations; which I am sure, if they did consider, they would fulfill with alacrity. I repeat, therefore, sir, that here is a well-founded ground of complaint against the North, which ought to be removed; which it is now in the power of the different departments of this Government to remove; which calls for the enactment of proper laws authorizing the judicature of this Government in the several States to do all that is necessary for the recapture of fugitive slaves, and for their restoration to those who claim them. Wherever I go, and whenever I speak on the subject,—and when I speak here I desire to speak to the whole North,—I say that the South has been injured in this respect, and has a right to complain; and the North has been too careless of what I think the Constitution peremptorily and emphatically enjoins upon her as a duty."

Now, gentlemen, this may not accord with the sentiments of some of you; but what right have you—if you should differ entirely with Mr. Webster—if you should believe that there is a great law of our Maker, a higher law than any created on earth, which requires you to refuse obedience to that Fugitive-Slave Law, and makes it a high duty to resist its execution—what right, I say, have you toforcethat opinion upon me? What right have you to require that I shall yield an allegiance to all parts of the Constitution whichyouapprove, whileyourefuse it allegiance whenever you please?

They have assigned, as another cause, the notorious fact ofthe establishment of what is known as "the Underground Railroad," aiding in the escape and running off of slaves, and the clandestine removal of property which belongs to the people of the South. They assign, as another, therescue of persons claimed as fugitive slaves, as in the case of theJerry rescue, in or near Syracuse. Passing once through that city, I saw a placard announcing a grand demonstration to come off in honor of that achievement—the forcible rescue of a man from the hands of the Government who was claimed under the provisions of the Constitution and an act of Congress which the Federal Courts had declared to be constitutional!

They refer, also, to theCreole case, in which, according to the Southern view of the subject, it was virtually and practically decided that no protection was to be afforded to slaves, as property of Southern men, on the high seas. That is their view of it, and it has been expressed by able men with a great deal of force.

They also refer to theJohn Brown raid, which we have not forgotten—to the invasion of Virginia by that man, who furnished the negroes with implements of slaughter. With the results of that outrage you are all familiar.

They refer tothe general assault on the institution of slaverywhich many men at the North have felt it on their conscience to make, including such distinguished orators asLloyd Garrison,Gerrit Smith, the fascinating and silver-tonguedPhillips—to whom I have listened with pleasure, much as I detested his sentiments—andTheodore Parker, the greatest of them all.

They refer to the declarations of cultivated men at the North, that there were no means to which men might not resort to extirpate slavery; and who, when against them were cited certain passages of Scripture that were supposed to sanction the institution of slavery, fell back on the position that our Constitution wasan "infidel Constitution,"and that even the Bible was not to be regarded as any authority for such a monstrous error as that.

They refer tothe declaration of Mr. Lincoln, in one of his addresses to the public,that Government could not endure half slave and half free.

But, gentlemen, it was not strange to the American people to know that there was danger of such a secession as has occurred. Some years ago it would have been esteemed the most impossible thing in the world. It has come to happen in your time and mine. It has been predicted. I know a very remarkable instance in which that prediction was stated so clearly that the author of it would seem to have been invested with the spirit and power of prophecy. We cherished the abiding hope that this would not occur; but we now see that the causes moving toward it were irresistible, and that it has become an event of history.

Now, if these seceded States, on any reasoning, good or bad, on sufficient cause, or on a belief that they had sufficient cause, determined that it was not their interest to remain in the Union, they only subscribed to those doctrines promulgated by the Hartford Convention, and agreed with Blackstone, and with all the writers on civil law, that a state of things having happened in which they could have no redress, except by their own act, what course were they to adopt? It is not for you or for me to say, at this time, whether they were right or wrong in their opinions or reasons. I ask you, what course were they to adopt? and what has been the argument heretofore? Why, the argument that, when such a collision of interest took place—when the States supposed that the General Government was trespassing on them and usurping powers, making war upon their institutions, oppressing them, or failing to accomplish the ends for which the Government was established—they should appeal to the Supreme Court of the United States as common arbiter, and that its decision should be final. My friend, Mr. Larocque, has called attention to cases that might happen, of collision between executives of States and of the United States, which could not possibly be submitted to the decision of the Supreme Court of the United States, and I shall not mar his argument or his examples by repeating them or saying anything in addition.

But, suppose that the next Congress should pass a law providing that the State of New York should pay all the expenses of this war for ten years to come, if it last so long; and that every boy of eighteen years, in the State of New York, should be mustered into the service, and coerced to march to Washington within ten days; and that no man in the State of New York should be permitted to go into another State without permission from the Executive; or should do anything of a similar character,—what course would the State of New York have under such circumstances? What course, but disobedience to the law, or insurrection, or revolution? Will my learned friends say that, in a case like that, you could appeal to the arbitrament of the Supreme Court of the United States? Is that so? Has the Supreme Court of the United States, under such circumstances, any way of redressing this wrong? But, suppose I concede that it has: what said the Republican party in reference to that Court? I instance that party, because it has the administration of the General Government.

I remember distinctly thatMr. Chase, now one of the Cabinet officers, in a public speech, shortly before the Presidential election, andMr. Wade, of Ohio, a Senator of the United States—both able men, grave men, honorable men—insisted, before the people, that the Supreme Court of the United States was a mere organization of a certain number of respectable gentlemen, whose opinions were entirely conclusive, no doubt, as between parties litigant, but had no control over the political sentiments, rights, or actions of the people; that their adjudications would be a rule and a precedent in future cases of just the same character; but, beyond that, should have no efficacy whatever.

Gentlemen, I will tell you what, in confirmation of these views, Mr. Lincoln says. In the Message that has been read to you he states exactly the same thing, with the addition that, if we were to submit to the Supreme Court of the United States to decide for us what is right in our Government, and what principles should be maintained, and what course the Administration should adopt, we would be surrendering to the Supreme Court the political power of the nation, and would become a species of serfs and slaves.

Whennullificationreared its head within our territory, and the people of South Carolina claimed that an Act of the General Government was an aggression upon them, against which they had a right to make physical resistance, if necessary, the parties of this country were divided into Whigs and Democrats. They were two formidable parties. There had not then grown up any of these little schismatic organizations, which are, in these latter days, numerous as the eddies on the biggest stream. They were not the days for certain clubs of professional politicians, with very imperfect wardrobes and more imperfect consciences, who sit in judgment on the qualifications of judicial officers, and measure their fitness for office by their capacity to pay money to strikers.

"Now," said that great party claiming to be conservative, "South Carolina has no right to resist. If she has suffered any wrong—if the General Government has attempted any aggression on her—let her submit the whole matter to the Supreme Court of the United States, and let its arbitration be final." Yes; and so the cry continued, till it was supposed that the Supreme Court of the United States was said to have decided that the owner of slave property might carry it into the Territories. Then the note was changed. Instantly the doctrine was reversed, and the Supreme Court was no longer the great, solemn, majestic, and omnipotent arbiter to dispose of this question. Then that Court became "a convention of very respectable gentlemen," who took their seats with black robes, and who were very competent to decide the right of a controversy between John Doe and Richard Roe, but must not lay their hands on politics. Why, they talk about the Earl of Warwick being a King-maker; but your man who seats himself on the head of a whisky barrel, in a corner grocery store, is a greater King-maker than ever Warwick was; and such a man as that, in his prerogatives, is not to be displaced by the Supreme Court of the United States! He may get up a town meeting, at which it will be declared that the doctrine laid down by the Supreme Court of the United States is all preposterous and absurd, and that the people are not going to submit to that tribunal.

There is no recognition, therefore, by this Administration, of the idea that the Supreme Court of the United States is capable of affording any relief in such a case as that which has led to the action of the seceded States. And so, that argument being out of the way, I ask you, I ask the learned Court, and I ask our opponents, whether, under the law of nations, as expounded, there was any other course left except that which the seceding States have adopted, assuming that any action whatever was to be taken?

Adjourned till Tuesday, 29th October, at 11 o'clock A.M.

SIXTH DAY.

Tuesday, Oct. 29th, 1861.

Mr. Bradyresumed 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, beinginclinedand having thepower, have arightto rise up andshake off the existing Government, andform 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 whichthe whole peopleof an existing Government may choose to exercise it.Any portion of such peoplethatcan,may revolutionizeand make theirownofso much of the territory as they inhabit. More than this: amajorityof any portion of such people may revolutionize—putting down aminorityintermingled 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 youWheaton's International Law, page30, in which he says, that "sovereigntyis acquired by a State,eitherat theoriginof the civil society of which it is composed,orwhen itseparates itselffrom the community of which it previously formed a part, and on which it was dependent." Then he says, that "civil warbetween 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 belligerentaffecting a neutral, andonly 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 theactualintent to steal was proved. In the case ofAureysuch 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 Governmentde 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 byVattelin 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 anycitizenshall commit any piracy or robbery aforesaid, orany act of hostilityagainst the United States,or any of the citizens thereof, on the high seas, under color of any commission fromany foreign Prince or State,or onpretenceof authorityfrom 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 werecitizens 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 isMr. 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 ina 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 to1st Hawkins, Pl. Crown, 87, 89, where it is said:

"There is anecessitythat the realm should have a King, by whom and in whose name the laws shall be administered; and the Kingin possession,being the only person who either doth or can administer those laws,must be the only personwho 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 mayjustly claim returns of duty, allegiance, and subjection."

AndBlackstoneis equally explicit (4 Blackstone's Comm., 78):

"When, therefore, anusurperisin possession, the subject isexcusedandjustified in obeying and giving him assistance;otherwise, under an usurpation, no mancouldbe safe,if the lawful Prince had a right to hang him for obedience to the power in being, as theusurper 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, oftreason, is a transcript of the English statute of treason; and it is hardly necessary to cite2 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 thatCongress 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 inThe 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 theeighthsection 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 robberyaforesaid, 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 arestrictionas adelegationof 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 manon landshould, 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, thatthis statute, if it be operative, onlyrelates to the case of a person taking a commission from aforeignGovernment or State. To say that an act of hostility committed by authority of anypersonwhatever—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 thevery letterof 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, anindividualfitting out an expedition against a foreign Government, and undertaking to grant commissions; or as in the case ofJames 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 amere person, not to be denominated King. I do not mean to concede that the case ofMiranda, 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 isnota 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 toBlackstone, 4 vol., p.72, where he interprets this statute of11 and 12 William III., chap.4, to relate to acts done under color of a commission from aforeign 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 the18th 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 toWharton'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 ofvariancemade 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 toWharton'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 conclusioncontra formam statutiscure 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.'"

Page 93. "Defects in the description of a statutory offence will not be aided by a verdict, nor will the conclusioncontra formam statutiscure 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 ofThe United Statesvs.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-dollartreasury 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 ofone 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 powersde jureorde 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 thestatusof 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 byMr. Dukes, in his argument—the doctrine ofrespondeat 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, namedMcLeod, 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 ofrespondeat superiorwas 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.)

ARGUMENT OF WILLIAM M. EVARTS, ESQ., FOR THE PROSECUTION.

May it please your Honors, and Gentlemen of the Jury:

A trial in a Court of Justice is a trial of many things besides the prisoners at the bar. It is a trial of the strength of the laws, of the power of the Government, of the duty of the citizen, of the fidelity to conscience and the intelligence of the Jury. It is a trial of those great principles of faith, of duty, of law, of civil society, that distinguish the condition of civilization from that of barbarism. I know no better instance of the distinction between a civilized, instructed, Christian people, and a rude and barbarous nation, than that which is shown in the assertions of right where might and violence and the rage of passion in physical contest determine everything, and this last sober, discreet, patient, intelligent, authorized, faithful, scrupulous, conscientious investigation, under the lights of all that intelligence with which God has favored any of us; under that instruction which belongs to the learned and accredited expounders of the law of an established free Government; under the aid of, and yet not misled by, the genius or eloquence of advocates on either side.

But, after all, the controlling dominion of duty to the men before you in the persons of the prisoners, to the whole community around you, and to the great nation for which you now discharge here a vital function for its permanence and its safety,—your duty to the laws and the Government of your country (which, giving its protection, requires your allegiance, and finds its last and final resting-place, both here and in England, in the verdicts of Juries),—your duty to yourselves,—requires you to recognize yourselves not only as members of civil society, but as children of the "Father of an Infinite Majesty," and amenable to His last judgment for your acts. Can any of us, then, fail to feel, even more fully than we can express, that sympathies, affections, passions, sentiments, prejudices, hopes, fears, feelings and responsibilities of others than ourselves are banished at once and forever, as we enter the threshold of such an inquiry as this, and never return to us until we have passed from this sacred precinct, and, with our hands on our breasts and our eyes on the ground, can humbly hope that we have done our duty and our whole duty?

Something was said to you, gentlemen of the Jury, of the unwonted circumstances of the prosecution, by the learned counsel who, many days ago, and with an impressiveness that has not yet passed away from your memory, opened on behalf of the prisoners the course of this defence.

He has said to you that the number of those whose fate, for life or for death, hangs on your verdict, is equal to your own—hinting a ready suggestion that that divided responsibility by which twelve men may sometimes shelter themselves, in weighing in the balance the life of a single man, is not yours. Gentlemen, let us understand how much of force and effect there is in the suggestion, and how truly and to what extent the responsibility of a Jury may be said to include this issue of life and death. In the first place, as Jurymen, you have no share or responsibility in the wisdom or the justice of those laws which you are called upon to administer. If there be defects in them—if they have something of that force and severity which is necessary for the maintenance of Government and the protection of peace and property, and of life on the high seas—you have had no share in their enactment, and have no charge, at your hands, of their enforcement. In the next place, you have no responsibility of any kind in regard to the discretion of the representatives of this Government in the course which they choose to take, as to whether they will prosecute or leave unprosecuted. You do not, within the limits of the inquiry presented to you, dispose of the question, why others have not been presented to you; nor may that which has been done in a case not before you, serve as a guide for the subject submitted to your consideration. So, too, you have no responsibility of any kind concerning the course or views of the law which this tribunal may give for your guidance. The Court does not make the law, but Congress does. The Court declares the law as enacted by the Government, and the Jury find the facts—giving every scrutiny, every patient investigation, every favor for life, and every reasonable doubt as to the facts, to the prisoners. Having disposed of that duty, as sober, intelligent and faithful men, graduating your attention only by the gravity of the inquiry, you have no further responsibility. But I need not say to you, gentlemen, that if any civilized Government is to have control of the subject of piracy—if pirates are to be brought within the jurisdiction of the criminal law—the very nature of the crime involves the fact that its successful prosecution necessarily requires that considerable numbers shall be engaged in it. I am quite certain that, if my learned friends had found in the circumstances of this case nothing which removed it out of the category of the heinous crime of private plunder at sea, exposing property and life, and breaking up commerce, they would have found nothing in the fact that a ship's crew was brought in for trial, and that the number of that crew amounted to twelve men, that should be pressed to the disturbance of your serene judgment, in any disposition of the case. Now, gentlemen, let us look a little into the nature of the crime, and into the condition of the law.

The penalty of the crime of piracy or robbery at sea stands on our statute books heavier than the penalty assigned for a similar crime committed on land—which is, in fact, similar, so far as concerns its being an act of depredation. It may be said, and it is often argued, that, when the guilt of two offences is equal, society transcends its right and duty when it draws a distinction in its punishments; and it may be said, as has been fully argued to you—at least, by implication, in the course of this case—that the whole duty and the whole responsibility of civil Governments, in the administration of criminal law and the punishment of crime, has to do with retributive vengeance, as it were, on the moral guilt of the prisoner. Now, gentlemen, I need not say to you, who are experienced at least in the common inquiries concerning Governments and their duties, that, as a mere naked and separate consideration for punishing moral guilt, Government leaves, or should leave, vengeance where it belongs—to Him who searches the heart and punishes according to its secret intents—drawing no distinction between the wicked purpose which fully plans, and the final act which executes that purpose. The great, the main duty—the great, the main right—of civil society, in the exercise of its dominion over the liberties, lives, and property of its subjects, is the good of the public, in the prevention, the check, the discouragement, the suppression of crime. And I am sure that there is scarcely one of us who, if guilt, if fault, if vice could be left to the punishment of conscience and the responsibility of the last and great assize, without prejudice to society, without injury to the good of others, without, indeed, being a danger and a destruction to all the peace, the happiness, and the safety of communities, would not readily lay aside all his share in the vindictive punishments of guilty men. But society, framed in the form and for the purposes of Government, finds, alas! that this tribunal of conscience, and this last and future accountability of another world, is inadequate to its protection against wickedness and crime in this.

You will find, therefore, in all, even the most enlightened and most humane codes of laws, that some necessary attention is paid to the predominant interest which society has in preventing crime. The very great difficulty of detecting it, the circumstances of secrecy, and the chances of escape on the part of the criminal, are considerations which enter into the distribution of its penalties. You will find, in a highly commercial community, like that of England, and to some extent—although, I am glad to say, with much less severity—in our own, which is also a highly commercial community, that frauds against property, frauds against trade, frauds in the nature of counterfeiting and forgery, and all those peaceful and not violent but yet pernicious interferences with the health and necessary activity of our every-day life, require the infliction of severe penalties for what, when you take up the particular elements of the crime, seems to have but little of the force, and but little of the depth of a serious moral delinquency.

The severity of the penalties for passing counterfeit money are inflicted upon the poor and ignorant who, in so small a matter as a coin of slight value, knowingly and intelligently, under even the strongest impulses of poverty, are engaged in the offence. Now, therefore, when commercial nations have been brought to the consideration of what their enactments on the subject of piracy shall be, they have taken into account that the very offence itself requires that its commission should be outside of the active and efficient protection of civil society—that the commission of the crime involves, on the part of the criminals, a fixed, deliberate determination and preparation—and that the circumstances under which the victims, either in respect of their property or of their lives, are exposed to these aggressions, are such as to make it a part of the probable course of the crime, that the most serious evils and the deepest wounds may be inflicted. Now, when a crime, not condemned in ethics or humanity, and which the positive enactments of the law have made highly penal, yet contains within itself circumstances that appeal very strongly to whatever authority or magistrate has rightful control of the subject for a special exemption, and special remission, and special concession from the penalty of the law, where and upon what principles does a wise and just, a humane and benignant Government, dispose of that question? I agree that, if crimes which the good of society requires to be subjected to harsh penalties, must stand, always and irrevocably; upon the mere behest of judicial sentence, there would be found an oppression and a cruelty in some respects, that a community having a conscientious adherence to right and humanity would scarcely tolerate. Where, then, does it wisely bestow all the responsibility, and give all the power that belongs to this adjustment, according to the particular circumstances of the moral and personal guilt, which must be necessary, and is always conceded? Why, confessedly, to the pardoning power, alluded to on one side or the other—though chiefly on the part of the prisoners' counsel—in the course of this trial. Now, you will perceive, at once, what the difference is between a Court, or a Jury, or a public prosecuting officer, yielding to particular circumstances of actual or of general qualification of a crime charged,—so that the law shall be thwarted, and the certainty and directness of judicial trial and sentence be made the sport of sympathy, or of casual or personal influences,—and placing the pardoning power where it shall be governed by the particular circumstances of each case, so that its exercise shall have no influence in breaking down the authority of law, or in disturbing the certainty, directness, and completeness of judicial rules. For, it is the very nature of a pardon,—committed to the Chief Magistrate of the Federal Union in cases of which this Court has jurisdiction, and to the Chief Magistrate of every State in the Union in cases of which the State tribunals take cognizance,—that it is a recognition of the law, and of the sentence of the law, and leaves the laws undisturbed, the rules for the guidance of men unaffected, the power and strength of the Government unweakened, the force of the judiciary unparalyzed, and yet disposes of each case in a way that is just, or, if not just, is humane and clement, where the pardon is exercised.

Now, gentlemen, I shall say nothing more on the subject of pardon. It is a thing with which I have nothing to do—with which this learned Court has nothing to do—with which you, as Jurymen, have nothing to do—beyond the fact that this beneficent Government of ours has not omitted from its arrangement, in the administration of its penal laws, this divine attribute of mercy.

Now, there being the crime of piracy or robbery on the high seas, which the interests of society, the protection of property and of life, the maintenance of commerce, oblige every State and every nation, like ours, to condemn—what are the circumstances, what are the acts, that, in view of the law, amount to piracy? You will understand me that, for the present, I entirely exclude from your consideration any of the particular circumstances which are supposed to give to the actual crime perpetrated a public character, lifting it out of the penal law that you administer, and out of the region of private crime, into a field of quite different considerations. They are, undoubtedly, that the act done shall be with intent of depriving the person who is in possession of property, as its owner, or as the representative of that owner, of that property. That is what is meant by the Latin phrase, with which you are quite as familiar now, at least, as I,animo furandi—with the intention of despoiling the owner of that which belongs to him. And, to make up the crime of robbery on land, in distinction from larceny or theft, as we generally call it, (though theft, perhaps, includes all the variety of crime by which the property of another is taken against his will,) robbery includes, andpiracy, being robbery at sea, includes, the idea that it is done with the application, or the threat, or the presence of force. There must be actual violence, or the presence and exhibition of power and intent to use violence, which produces the surrender and delivery of the property. Such are the ingredients of robbery and piracy. And, gentlemen, these two ingredients are all; and you must rob one or the other of them of this, their poison, or the crime is completely proved, when the fact of the spoliation, with these ingredients, shall have been proved. The use that the robber or the pirate intends to make of the property, or the justification which he thinks he has by way of retaliation, by way of injury, by way of provocation, by way of any other occasion or motive that seems justifiable to his own conscience and his own obedience to any form whatever of the higher law, has nothing to do with the completeness of the crime, unless it come to what has been adverted to by the learned counsel, and displayed before you in citations from the law-books—to an honest, however much it may be a mistaken and baseless, idea that the property is really the property of the accused robber, of which he is repossessing himself from the party against whom he makes the aggression.

Now, unless, in the case proved of piracy, or robbery on land, there be some foundation for the suggestion that the willful and intentional act of depriving a party of his property rests upon a claim of the robber, or the pirate, that it is his own property (however baseless may be the claim), you cannot avoid, you cannot defeat, the criminality of the act of robbery, within the intention of the law, by showing that the robber or the pirate had, in the protection of his own conscience, and in the government of his own conduct, certain opinions or views that made it right for him to execute that purpose. Thus, for instance, take a case of morals: A certain sect of political philosophers have this proposition as a basis of all their reasoning on the subject of property,—that is, that property, the notion of separate property in anything, as belonging to anybody, is theft; that the very notion that I can own anything, whatever it may be, and exclude other people from the enjoyment of it, is a theft made by me, a wrongful appropriation, when all the good things in this world, in the intention of Providence, were designed for the equal enjoyment of all the human race. Well, now, a person possessed of that notion of political economy and of the moral rights and duties of men, might seek to avail himself of property owned and enjoyed by another, on the theory that the person in possession of it was the original thief, and that he was entitled to share it. I need not say to you that all these ideas and considerations have nothing whatever to do with the consideration of the moral intent with which a person is despoiled of his property.

Now, with regard to force, I do not understand that my learned friends really make any question, seriously, upon the general principle of what force is, or upon the facts of this case, that this seizure of the Joseph by the Savannah had enough of force,—the threat, the presence, and exhibition of power,—and of the intent to use it, to make the capture one of force, if the other considerations which are relied upon do not lift it out of that catalogue of crime.

It is true that the learned counsel who last addressed you seemed to intimate, in some of his remarks, near the close of his very able and eloquent and interesting address, that there was not any force about it, that the master of the Joseph was not threatened, that there was no evidence that the cannon was even loaded, and that it never had been fired off. Well, gentlemen, the very illustration which he used of what would be a complete robbery on land,—the aggressor possessing a pistol, and asking, in the politest manner, for your money,—relieves me from arguing that you must fire either a cannon or a pistol, before you have evidence of force. If our rights stand on that proposition, that when a pistol is presented at our breast, and we surrender our money, we must wait for the pistol to be fired before the crime is completed, you will see that the terrors of the crime of robbery do not go very far towards protecting property or person, which is the object of it.

When, gentlemen, the Government, within a statute which, in the judgment of the Court, shall be pronounced as being lawfully enacted under the Constitution of the United States, has completed the proof of the circumstances of the crime charged, it is entitled at your hands to a conviction of the accused, unless, by proof adduced on his part, he shall so shake the consistency and completeness of the proof on the part of the Government, or shall introduce such questions of uncertainty and doubt, that the facts shall be disturbed in your mind, or unless he shall show himself in some predicament of protection or right under the law,—(and, by "under the law," I mean, under the law of the land where the crime is punishable, and where the trial and the sentence are lawfully attributed to be,)—or unless he shall introduce some new facts which, conceding the truthfulness and the sufficiency of the case made by the Government, shall still interpose a protection, in some form, against the application of the penalty of the law. I take it that I need not say to you that this protection or qualification of the character of the crime must be by the law of the land; and, whether it comes to be the law of the land by its enactment in the statutes of the United States, or by the adoption and incorporation into the law of the land of the principles of the law of nations, is a point quite immaterial to you. You are not judges of what the statutes of the United States are, except so far as their interpretation may rightfully become a subject of inquiry by the Jury, in the sense of whether the crime is within the intent of the Act, in the circumstances proved. You are not judges of what the law of nations is, in the first place; nor are you judges of how much of the law of nations has been adopted or incorporated into the system of our Government and our laws, by the authority of its Congress or of its Courts.

Whether, as I say to you, there is a defence, or protection, or qualification of the acts and transactions which, in their naked nature, and in their natural construction, are violent interferences with the rights of property, against the statute, and the protection of property intended by the statute,—whether the circumstances do change the liability or responsibility of the criminal, by the introduction of a legal defence under the law of nations, or under the law of the land in any other form, is a question undoubtedly for the Court,—leaving to you always complete control over the questions of fact that enter into the subject. So that the suggestion, also dropped by my learned friend, at the close of his remarks, that any such arrangement would make the Jury mere puppets, and give them nothing to do, finds no place. It would not exclude from your consideration any matters of fact which go to make up the particular condition of public affairs or of the public relations of the community towards each other, in these collisions which disturb the land, provided the Court shall hold and say that, on such a state of facts existing, or being believed by you, there is introduced a legal qualification or protection against the crime charged. But, if it should be held that all these facts and circumstances, to the extent and with the effect that is claimed for them by the learned counsel as matter of fact, yet, as matter of law, leave the crime where it originally stood, being of their own nature such as the principles of law do not permit to be interposed as a protection and a shield, why, then you take your law on the subject in the same way as you do on every other subject, from the instructions of the learned and responsible Bench, whose errors, if committed, can be corrected; while your confusion between your province and the province of the Court would, both in this case, and in other cases, and sometimes to the prejudice of the prisoner, and against his life and safety, when prejudices ran that way, confound all distinctions; and, in deserting your duty, to usurp that of another portion of the Court, you would have done what you could, not to uphold, but to overthrow the laws of your country and the administration of justice according to law, upon which the safety of all of us, at all times, in all circumstances, depends.

Now, gentlemen, let me ask your attention, very briefly, to the condition of the proof in this case, from the immediate consideration of which we have been very much withdrawn by the larger and looser considerations, as I must think them, which have occupied most of the attention of the counsel, and been made most interesting, undoubtedly, and attractive to you. These twelve men now on trial—four of them citizens of the United States, and eight of them foreigners by birth and not naturalized—formed part of the crew of a vessel, originally a pilot-boat, called the Savannah. That crew consisted of twenty men, and one of them has given the circumstances of the preparation for the voyage, of the embarkation upon the vessel, of her weighing anchor from the port of Charleston and making her course out to sea without any port of destination, and without any other purpose than to make seizures of vessels belonging to the loyal States of the Union and its citizens. He has shown you that all who went on board, all who are here on trial, had a complete knowledge of, and gave their ready and voluntary assent to and enlistment in this service; and that the service had no trait of compulsion, or of organized employment under the authority of Government, in any act or signature of any one of the crew, as far as he knew, leaving out, of course, what I do not intend to dispute, and what you will not understand me as disregarding—the effect that may be gained from the notorious facts and the documents that attended the enterprise. He has shown you that, going to sea with that purpose, without any crew list, without any contract of wages, they descried, early in the morning after they adventured from the port, and at a point about sixty miles to sea, this bark, and ran down to her; and that, while running down to her, they sailed under the flag of the United States, and, hailing the brig, when within hailing distance, required the master of it to come on board with his papers. Upon the inquiry of the master, by what authority they made that demand on him, the stars and stripes being then floating at the masthead of the Savannah, Captain Baker informed him that it was in the name and by the authority of the Confederate States of America, at the same time hauling down the American flag and running up the flag of the Confederacy. Whatever followed after this, gentlemen, except so far as to complete the possession of the captured vessel, by putting a prize crew on board of it, (so called,) sending it into Charleston, and there lodging in jail the seamen or ship's company of the Joseph that accompanied it, and procuring a sale of the vessel—anything beyond that (and this only to show the completeness of the capture, and the maintenance of the design to absolutely deprive the owners of the vessel and cargo of their property) seems to be quite immaterial. Now, when we add to this the testimony of Mr. Meyer, the master of the captured vessel, who gives the same general view of the circumstances under which his vessel was overhauled and seized by the Savannah, as well as the observations and the influences which operated upon his mind while the chase was going on, we have the completeness of the crime,—not forgetting the important yet undisputed circumstances of the ownership of the vessel, and of the nature of the voyage in which she was engaged. You will observe that this vessel, owned by, and, we may suppose, judging from the position of the witnesses examined before you, constituting a good part of the property of, our fellow-countrymen in the State of Maine, sailed on the 28th day of April, from Philadelphia, bound on a voyage to Cardenas, in Cuba, with a charter party out and back, under which she was to bring in a cargo of sugar and molasses. You will have noticed, comparing this date with some of the public transactions given in evidence, that it was after both the proclamation of Mr. Davis, inviting hostile aggressions against the commerce of the United States, on the part of whosoever should come to take commissions from him; and after the proclamation of the President of the United States, made to the people of the United States and all under its peace and protection, that if, under this invitation of Mr. Davis, anybody should assume authority to make aggressions, on the high seas, upon the private property of American citizens, they should be punished as pirates. This vessel, therefore, sailed on her voyage under the protection of the laws of the United States, and under this statement of its Government, that the general laws which protected property and seamen on the high seas against the crime of piracy were in force, and would be enforced by the Government of the United States, wherever it held power, against any aggressions that should assume to be made under the protection of the proclamation of Mr. Davis. While returning, under the protection of this flag and of this Government, she meets with hostile aggression at the hands of an armed vessel, which has nothing to distinguish it from the ordinary condition of piracy, except this very predicament provided against by the proclamation of the President, and under the protection of which the vessel had sailed, to wit, the supposed authority of Jefferson Davis; which should not, and cannot, and will not, as I suppose, protect that act from the guilt and the punishment of piracy.

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