"In every stage of these oppressions, we have petitioned for redress, in the most humble terms; our repeated petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people."Nor have we been wanting in attentions to our British brethren. We have warned them, from time to time, of attempts by their Legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them, by the ties of our common kindred, to disavow these usurpations, which would inevitably interrupt our connection and correspondence. They, too, have been deaf to the voice of justice and of consanguinity."
"In every stage of these oppressions, we have petitioned for redress, in the most humble terms; our repeated petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.
"Nor have we been wanting in attentions to our British brethren. We have warned them, from time to time, of attempts by their Legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them, by the ties of our common kindred, to disavow these usurpations, which would inevitably interrupt our connection and correspondence. They, too, have been deaf to the voice of justice and of consanguinity."
Now, gentlemen, this doctrine of revolution, which our learned friends rely upon, appeals to our own sense of right and duty. It rests upon facts, and upon the purpose, as indicated by those facts, to deprive our ancestors of the rights of Englishmen, and to subject them to the power of a Government in which they were not represented. Now, whence come the occasions and the grievances urged before you, and of what kind are they? My learned friend, Mr. Brady, has given you a distinct enumeration, under nine heads, of what the occasions are, and what the grievances are. There is not one of them that, in form or substance, proceeded from the Federal Government. There is not a statute, there is not a proclamation, there is not an action, judicial, executive, or legislative, on the part of the Federal Government, that finds a place, either in consummation or in purpose, in this indictment drawn by my friend Mr. Brady against the Government, on behalf of his clients. The letter of South Carolina, on completing the revocation of her adoption of the Constitution, addressed to the States, dwells upon the interest of slavery (as does my learned friend Mr. Brady, in all his propositions), and discloses but two ideas—one, that when any body or set of people cease to be a majority in a Government, they have a right to leave it; and the other, that State action, on the part of some of the Northern States, had been inconsistent with, threatening to, or opprobrious of the institution of slavery in the Southern States.
Let me ask your attention to this proposition of the Southern States, and this catalogue of the learned counsel. As it is only the interest of slavery, social and political (for it is an interest, lawfully existing), that leads to the destruction of our Government and of their Government, let us see what there is in the actual circumstances of this interest, as being able, under the forms of our Constitution, to look out for itself, as well, at least, as any other interest in the country, that can justify them in finding an example or a precedent in the appeal of our fathers to arms to assert their rights by the strong hand, because in the Government of England they had no representation. Did our fathers say that, because they had not a majority in the English Parliament, they had a right to rebel? No! They said they had not a share or vote in the Parliament. That was their proposition.
I now invite you to consider this fundamental view of the right and power of Government, and the right and freedom of the people,—to wit, that every citizen is entitled to be counted and considered as good as every other citizen,—as a natural and abstract right—as the basis of our Government, however other arrangements may have adjusted or regulated that simple and abstract right. Then, let us see whether the arrangement of the Federal Government, in departing from that natural right of one man to be as good as another, and to be counted equal in the representation of his Government, has operated to the prejudice of the interest of slavery. We have not heard anything in this country of any other interest for many a long year,—much to my disgust and discontent. There are other interests,—manufacturing interests, agricultural interests, commercial interests, all sorts of interests,—some of them discordant, if you please. Let us see whether this interest of slavery has a fair chance to be heard, and enjoys its fair share of political power under our Government, or whether, from a denial to it of its fair share, it has some pretext for appealing to force. Why, gentlemen, take the fifteen Slave States, which, under the census of 1850, had six millions of white people—that is, of citizens—and, under the census of 1860, about eight millions, and compare them with the white people of the State of New York, which, under the census of 1850, had three millions, and, under the census of 1860, something like four millions.
Now, here we are,—they as good as we, and we as good as they,—we having our interests, and opinions, and feelings—they their opinions, interests, and feelings,—and let us see how the arrangement of representation, in every part of our Government, is distributed between these interests. Why, with a population just double that of the State of New York, the interest of slavery hasthirtySenators to vote and to speak for it, and the people of New York havetwoSenators to vote and to speak for them. In the House of Representatives these same Slave States haveninetyRepresentatives to speak and to vote for them; and the people of the State of New York havethirty-threeto vote and to speak for them. And, in the Electoral College, which raises to the chief magistracy the citizen who receives the constitutional vote, these same States haveone hundred and twentyelectoral votes, and the State of New York hasthirty-five. Why, the three coterminous States—New York, Pennsylvania, and Ohio—have, under either census, as great or a greater population than the fifteen Slave States, and they have but six Senators, against the Slave States' thirty.
Do I mention this in complaint? Not in the least. I only mention it to show you that the vote and the voice of this interest has not been defrauded in the artificial distribution of Federal power. And, if I may be allowed to refer to the other august department of our Federal Government, the Supreme Court of the United States, in which the Presiding Justice has his seat as one of the members of that Court, you will see how the vast population, the vast interests of business, commerce, and what not, that reside in the Free States, as compared with the lesser population, the lesser business, and the lesser demand for the authority or intervention of the judiciary in the Slave States, have been represented for years, by the distribution of the nine Judges of that Court, so that the eighteen millions of white people who compose the population of the Free States have been represented (not in any political sense) by four of these Justices; and the rest of the country, the fifteen Slave States, with their population of six or eight millions, have been represented by five. Now, of this I do not complain. It is law—it is government; and no injustice has been done to the Constitution, nor has it been violated in this arrangement. But, has there been any fraud upon the interest of slavery, in the favor the Federal Government has shown in the marking out of the Judicial Districts, and in the apportionment of the Judges to the different regions of the country, and to the population of those regions? If you look at it as regards the business in the different Circuits, the learned Justice who now presides here, and who holds his place for the Second Circuit, including our State, disposes annually, here and in the other Courts, of more business than, I may perhaps say, all the Circuits that are made up from the Slave States. And, if you look at it as regards the population, there was one Circuit—that which was represented by the learned Mr. Justice McLean, lately deceased—which contained within itself five millions of white, free population; while one other Circuit, represented by another learned Justice, lately deceased—a Circuit composed of Mississippi and Arkansas—contained only 450,000, at the time of the completion of the census of 1850. Who complains of this? Do we? Never. But, when it is said to you that there is a parallelism between the right of revolt, because of lack of representation, in the case of our people and the Parliament of England, and the case of these people and the United States, or any of the forms of its administration of power, remember these things. I produce this in the simple duty of forensic reply to the causes put forward as a justification of this revolt—that is to say that, the Government oppressing them, or the Government closed against them, and they excluded from it, they had a right to resort to the revolution of force.
You, therefore, must adopt the proposition of South Carolina, that, when any interest ceases to be the majority in a Government, it has a right to secede. How long would such a Government last? Why, there never was any interest in this country which imagined that it had a majority. Did the tariff interest have a majority? Did the grain interest have a majority? Did the commercial interest have a majority? Did the States of the West have a majority? Does California gold represent itself by a majority? Why, the very safety of such a Government as this is, that no interest shall or can be a majority; but that the concurring, consenting wisdom drawn out of these conflicting interests shall work out a system of law which will conduce to the general interest.
Now, that I have not done my learned friend, Mr. Brady, any injustice in presenting the catalogue of grievances (not in his own view, but in the view of those who have led in this rebellion), let us see what they are:
"The claim to abolish slavery." Is there any statute of the United States anywhere that has abolished it? Has any Act been introduced into Congress to abolish it? Has the measure had a vote?
"Stoppage of the inter-state slave-trade." I may say the same thing of that.
"No more slavery in the Territories." Where is the Act of Congress, where is the movement of the Federal Government, where the decision of the Supreme Court, that holds that slavery cannot go into a territory? Why, so far as acts go, everything has gone in the way of recognizing the confirmation of the right—the repeal of the Missouri Compromise by Congress, and the decision of the Federal Court, if it go to that extent, as is claimed, in the case of Dred Scott.
"Nullification of the fugitive-slave law." Who passed the fugitive-slave law? Congress. Who have enforced it? The Federal power, by arms, in the city of Boston. Who have enjoined its observation, to Grand Juries and to Juries? The Justices of the Supreme Court of the United States, in their Circuits. Who have held it to be constitutional? The Supreme Court of the United States, and the subordinate Courts of the United States, and every State Court that has passed upon the subject, except it be the State Court of the State of Wisconsin, if I am correctly advised.
"Under-ground railroads, supported by the Government, and paid by them." Are they? Not in the least.
"The case of the Creole"—where, they say, no protection was given to slaves on the high seas. Is there any judicial interpretation to that effect? Nothing but the refusal of Congress to pass a bill, under some circumstances of this or that nature, presented for its consideration; and, because it has refused, it is alleged there is the assertion of some principle that should charge upon this Government the inflamed and particular views generally maintained on slavery by Garrison, Phillips, and Theodore Parker.
The other enormities they clothe in general phrase, and do not particularly specify, except one particular subject—what is known as the "John Brown raid"—in regard to which, as it has been introduced, I shall have occasion to say something in another connection, and, therefore, I will not comment upon it now.
I find, however, I have omitted the last—Mr. Lincoln's doctrine, that it is impossible, theoretically, for slave and free States to co-exist. For many years that was considered to be Mr. Seward's doctrine, but, when Mr. Lincoln became a candidate for the Presidency, it was charged on him, being supported by some brief extracts from former speeches made by him in canvassing his State. I cannot discuss all these matters. They are beneath the gravity of State necessity, and of the question of the right of revolution. They are the opinions, the sentiments, the rhetoric, the folly, the local rage and madness, if you please, in some instances, of particular inflammations, either of sentiment or of action, rising in the bosom of so vast, so impetuous a community as ours. But, suppose the tariff States, suppose the grain States, were to attempt to topple down the Government, and maintain a separate and sectional independence upon their interests, of only the degree and gravity, and resting in the proof of facts like these? Now, for the purpose of the argument, let us suppose all these things to be wrong. My learned friends, who have made so great and so passionate an appeal that individual lives should not be sacrificed for opinion, certainly might listen to a proposition that the life of a great nation should not be destroyed on these questions of the opinions of individual citizens. No—you never can put either the fate of a nation that it must submit, or the right of malcontents to assert their power for its overthrow, upon any such proposition, of the ill-working, or of the irritations that arise, and do not come up to the effect of oppression, in the actual, the formal, and the persistent movement of Government. Never for an instant. For that would be, what Mr. Stephens has so ably presented the folly of doing, to require that a great Government, counting in its population thirty millions of men, should not only be perfect in its design and general form and working, but that it should secure perfect action, perfect opinions, perfect spirit and sentiments from every one of its people—and that, made out of mere imperfect individuals who have nothing but poor human nature for their possession, it should suddenly become so transformed, as to be without a flaw, not only in its administration, but in the conduct of every body under it.
Now, my learned friends, pressed by this difficulty as to the sufficiency of the causes, are driven finally to this—that there is a right of revolution when anybody thinks there is a right of revolution, and that that is the doctrine upon which our Government rests, and upon which the grave, serious action of our forefathers proceeded. And it comes down to the proposition of my learned friend, Mr. Brady, that it all comes to the same thing, thepowerand theright. All the argument, most unquestionably, comes to that. But do morals, does reason, does common sense recognize that, because power and right may result in the same consequences, therefore there is no difference in their quality, or in their support, or in their theory? If I am slain by the sword of justice for my crime, or by the dagger of an assassin for my virtue, I am dead, under the stroke of either. But is one as right as the other? An oppressive Government may be overthrown by the uprising of the oppressed, and Lord Camden's maxim may be adhered to, that "when oppression begins, resistance becomes a right;" but a Government, beneficent and free, may be attacked, may be overthrown by tyranny, by enemies, by mere power. The Colonies may be severed from Great Britain, on the principle of the right of the people asserting itself against the tyranny of the parent Government; and Poland may be dismembered by the interested tyranny of Russia and Austria; and each is a revolution and destruction of the Government, and its displacement by another—a dismemberment of the community, and the establishment of a new one under another Government. But, do my learned friends say that they equally come to the test of power as establishing the right? Will my learned friend plant himself, in justification of this dismemberment of a great, free, and prosperous people, upon the example of the dismemberment of Poland, by the introduction of such influences within, and by the co-operation of such influences without, as secured that result? Certainly not. And yet, if he puts it upon the right and the power, as coming to the same thing, it certainly cannot make any difference whether the power proceeds from within or from without. There is no such right. Both the public action of communities and the private action of individuals must be tried, if there is any trial, any scrutiny, any judgment, any determination, upon some principles that are deeper than the question of counting bayonets. When we are referred to the ease of Victor Emannuel overthrowing the throne of the King of Naples, and thus securing the unity of the Italian people under a benign Government, are we to be told that the same principle and the same proposition would have secured acceptance before the forum of civilization, and in the eye of morality, to a successful effort of the tyrant of Naples to overthrow the throne of Victor Emannuel, and include the whole of Italy under his, King Bomba's, tyranny? No one. The quality of the act, the reason, the support, and the method of it, are traits that impress their character on those great public and national transactions as well as upon any other.
There is but one proposition, in reason and morality, beyond those I have stated, which is pressed for the extrication and absolution of these prisoners from the guilt that the law, as we say, impresses upon their action and visits with its punishment. It is said that, however little, as matter of law, these various rights and protections may come to, good faith, or sincere, conscientious conviction on the part of these men as to what they have done, should protect them against the public justice.
Now, we have heard a great deal of the assertion and of the execration of the doctrine of the "higher law," in the discussions of legislation, and in the discussions before the popular mind; but I never yet have heard good faith or sincere opinion pressed, in a Court of Justice, as a bar to the penalty which the law has soberly affixed, in the discreet and deliberate action of the Legislature. And here my learned friend furnishes me, by his reference to the grave instance of injury to the property, and the security, and the authority of the State of Virginia, which he has spoken of as "John Brown's raid," with a ready instance, in which these great principles of public justice, the authority of Government, and the sanctions of human law were met, in the circumstances of the transaction, by a complete, and thorough, and remarkable reliance, for the motive, the support, the stimulus, the solace, against all the penalties which the law had decreed for such a crime, on this interior authority of conscience, and this supremacy of personal duty, according to the convictions of him who acts. The great State of Virginia administered its justice, and it found, as its principal victim, this most remarkable man, in regard to whom it was utterly impossible to impute anything like present or future, near or remote, personal interest or object of any kind—a man in regard to whom Governor Wise, of Virginia, said, in the very presence of the transaction of his trial, that he was the bravest, the sincerest, the truthfulest man that he ever knew. And now, let us look at the question in the light in which our learned friend presents it—that John Brown, as matter of theoretical opinion of what he had a right to do, under the Constitution and laws of his country, was justified, upon the pure basis of conscientious duty to God—and let us see whether, before the tribunals of Virginia, as matter of fact, or matter of law, or right, or duty, any recognition was given to it. No. John Brown was not hung for his theoretical heresies, nor was he hung for the hallucinations of his judgment and the aberration of his wrong moral sense, if you so call it, instead of the interior light of conscience, as he regarded it. He was hung for attacking the sovereignty, the safety, the citizens, the property, and the people of Virginia. And, when my learned friend talks about this question of hanging for political, moral, or social heresy, and that you cannot thus coerce the moral power of the mind, he vainly seeks to beguile your judgment. When Ravaillac takes the life of good King Henry, of France, is it a justification that, in the interests of his faith, holy to him—of the religion he professed—he felt impelled thus to take the life of the monarch? When the assassin takes, at the door of the House of Commons, the life of the Prime Minister, Mr. Percival, because he thinks that the course of measures his administration proposes to carry out is dangerous to the country, and falls a victim to violated laws, I ask, in the name of common sense and common fairness—are these executions to be called hanging for political or religious heresies? No. And shall it ever be said that sincere convictions on these theories of secession and of revolution are entitled to more respect than sincere convictions and opinions on the subject of human rights? Shall it be said that faith in Jefferson Davis is a greater protection from the penalty of the law than faith in God was to John Brown or Francis Ravaillac?
But, gentlemen, it was said that certain isolated acts of some military or civil authority of the United States, or some promulgation of orders, or affirmation of measures by the Government, had recognized the belligerent right, or the right to be considered as a power fighting for independence, of this portion of our countrymen. The flags of truce, and the capitulation at Hatteras Inlet, and the announcement that we would not invade Virginia, but would protect the Capital, are claimed as having recognized this point. Now, gentlemen, this attempts either too much or too little. Is it gravely to be said that, when the Government is pressing its whole power for the restoration of peace and for the suppression of this rebellion, it is recognizing a right to rebel, or has liberated from the penalties of the criminal law such actors in it as it may choose to bring to punishment? Is it to be claimed here that, by reason of these proceedings, the Government has barred itself from taking such other proceedings, under the same circumstances, as it may think fit? Why, certainly not. The Government may, at any time, refuse to continue this amenity of flags of truce. It can, the next time, refuse to receive a capitulation as "prisoners of war," and may, in any future action—as, indeed, in its active measures for the suppression of the rebellion it is doing—affirm its control over every part of the revolted regions of this country. There is nothing in this fact that determines anything for the occasion, but the occasion itself. The idea that the commander of an expedition to Hatteras Inlet has it in his power to commit the Government, so as to empty the prisons, to overthrow the Courts, and to discharge Jurors from their duty, and criminals from the penalties of their crimes, is absurd.
I shall now advert to the opinion of Judge Cadwalader, on the trial in Philadelphia, and to the propositions of the counsel there, on behalf of the prisoners, as containing and including the general views and points urged, in one form or another, and with greater prolixity, at least, if not earnestness and force, by the learned counsel who defend the prisoners here. It will be found that those points cover all these considerations:
First.If the Confederate States of America is a Government, eitherde factoorde jure, it had a right to issue letters of marque and reprisal; and if issued before the commission of the alleged offence, that the defendant, acting under the authority of such letters, would be a privateer, and not a pirate, and, as such, is entitled to be acquitted.Second.That if, at the time of the alleged offence, the Southern Confederacy, by actual occupation, as well as acts of Government, had so far acquired the mastery or control of the particular territory within its limits as to enable it to exercise authority over, and to demand and exact allegiance from, its residents, that then a resident of such Confederacy owes allegiance to the Government under which he lives, or, at least, that by rendering allegiance to such Government, whether on sea or land, he did not thereby become a traitor to the Government of the United States.Third.That if, at the time of the alleged offence and the issuing of the letters of marque and reprisal upon which the defendant acted, the Courts of the United States were so suspended or closed in the Southern Confederacy, as to be no longer able to administer justice and enforce the law in such Confederacy, that the defendant thereby became so far absolved from his allegiance to the United States as to enable him to take up arms for, and to enter the service of, the Southern Confederacy, either on land or sea, without becoming a traitor to the Government of the United States.Fourth.That if, at the time of the alleged offence and his entering into the service of the Southern Confederacy, the defendant was so situated as to be unable to obtain either civil or military protection from the United States, whilst at the same time he was compelled to render either military or naval service to the Southern Confederacy, or to leave the country, and, in this event, to have his property sequestrated or confiscated by the laws of the said Confederacy, that such a state of things, if they existed, would amount in law to such duress as entitles the defendant here to an acquittal.Fifth.That this Court has no jurisdiction of the case, because the prisoner, after his apprehension on the high seas, was first brought into another District, and ought to have been there tried.
First.If the Confederate States of America is a Government, eitherde factoorde jure, it had a right to issue letters of marque and reprisal; and if issued before the commission of the alleged offence, that the defendant, acting under the authority of such letters, would be a privateer, and not a pirate, and, as such, is entitled to be acquitted.
Second.That if, at the time of the alleged offence, the Southern Confederacy, by actual occupation, as well as acts of Government, had so far acquired the mastery or control of the particular territory within its limits as to enable it to exercise authority over, and to demand and exact allegiance from, its residents, that then a resident of such Confederacy owes allegiance to the Government under which he lives, or, at least, that by rendering allegiance to such Government, whether on sea or land, he did not thereby become a traitor to the Government of the United States.
Third.That if, at the time of the alleged offence and the issuing of the letters of marque and reprisal upon which the defendant acted, the Courts of the United States were so suspended or closed in the Southern Confederacy, as to be no longer able to administer justice and enforce the law in such Confederacy, that the defendant thereby became so far absolved from his allegiance to the United States as to enable him to take up arms for, and to enter the service of, the Southern Confederacy, either on land or sea, without becoming a traitor to the Government of the United States.
Fourth.That if, at the time of the alleged offence and his entering into the service of the Southern Confederacy, the defendant was so situated as to be unable to obtain either civil or military protection from the United States, whilst at the same time he was compelled to render either military or naval service to the Southern Confederacy, or to leave the country, and, in this event, to have his property sequestrated or confiscated by the laws of the said Confederacy, that such a state of things, if they existed, would amount in law to such duress as entitles the defendant here to an acquittal.
Fifth.That this Court has no jurisdiction of the case, because the prisoner, after his apprehension on the high seas, was first brought into another District, and ought to have been there tried.
And now, gentlemen, even a more remote, unconnected topic, has been introduced into this examination, and discussed and pursued with a good deal of force and feeling, by my learned friend, Mr. Brady; and that is, what this war is for, and what is expected to be accomplished by it. Well, gentlemen, is your verdict to depend upon any question of that kind? Is it to depend either upon the purpose of the Government in waging the war, or upon its success in that purpose? If so, the trial had been better postponed to the end of the war, and then you will find your verdict in the result. What is the meaning of this? Let those who began the war say what the war is for. Is it to overthrow this Government and to dismember its territory? Is it to acquire dominion over as large a portion of what constitutes the possessions of the American people, and over as large a share of its population, as the policy or the military power of the interest that establishes for itself an independent Government, for its own protection, can accomplish? Who are seeking to subjugate, and who is seeking to protect? No subjugation is attempted or desired, in respect of the people of these revolting States, except that subjugation which they themselves made for themselves when they adopted the Constitution of the United States, and thanked God, with Charles Cotesworth Pinckney, that his blessing permitted them to do so,—and, up to this time, with Alexander Stephens, have found it to be a Government that can only be likened, on this terrestrial sphere, to the Eden and Paradise of the nations of men. What is the interest that is seeking to wrest from the authority of that benign Government portions of its territory and authority, but the social and political interest of slavery, about which I make no other reproach or question than this—that it has purposes, and objects, and principles which do not consult the general or equal interests of the population of these revolting States themselves, nor contemplate a form of Government that any Charles Cotesworth Pinckney, now, or any Alexander Stephens, hereafter, can thank God for having been permitted to establish; and that, as Mr. Stephens has said, instead of becoming gods, by bursting from the restraints of this Eden, they will discover their own nakedness, and, instead of finding peace and prosperity, they will come to cutting their own throats.
Now, what is the duty of a Government that finds this assault made by the hands of terror and of force against the judgment and wishes of the discreet, sober, and temperate, at least, to those to whom it owes protection, as they owe allegiance to it? What, but to carry on, by the force of the Government, the actual suppression of the rebellion, so that arms may be laid down, peace may exist, and the law and the Constitution be reinstated, and the great debate of opinion be restored, that has been interrupted by this vehement recourse to arms? What, but to see to it that, instead of the consequences of this revolt being an expulsion, from this Paradise of free Government, of these people whom we ought to keep within it, it shall end in the expulsion of that tempting serpent—be it secession or be it slavery—that would drive them out of it. Government has duties, gentlemen, as well as rights. If our lives and our property are subject to its demands under the penal laws, or for its protection and enforcement as an authority in the world, it carries to every citizen, on the farthest sea, in the humblest schooner, and to the great population of these Southern States in their masses at home, that firm protection which shall secure him against the wicked and the willful assaults, whether it be of a pirate on a distant sea, or of an ambitious and violent tyranny upon land. When this state of peace and repose is accomplished by Conventions, by petitions, by representations against Federal laws, Federal oppressions, or Federal principles of government, the right of the people to be relieved from oppression is presented; and then may the spirit and the action of our fathers be invoked, and their condemnation of the British Parliament come in play, if we do not do what is right and just in liberating an oppressed people. But I need not say to you that the whole active energies of this system of terror and of force in the Southern States have been directed to make impossible precisely the same debate, the same discussion, the same appeal, and the same just and equal attention to the appeal. And you will find this avowed by many of their speakers and by many of their writers—as, when Mr. Toombs interrupts Mr. Stephens in the speech I have quoted from, when urging that the people of Georgia should be consulted, by saying: "I am afraid of Conventions and afraid of the people; I do not want to hear from the cross-roads and the groceries," which are the opportunities of public discussion and influence, it appears, in the State of Georgia. That is exactly what they did not want to hear from; and their rash withdrawal of this great question from such honest, sensible consideration, will finally bring them to a point that the people, interested in the subject, will take it by force; and then, besides their own nakedness, which they have now discovered, the second prophecy of Mr. Stephens, that they will cut their own throats, will come about; and nothing but the powerful yet temperate, the firm yet benign, authority of this Government, compelling peace upon these agitations, will save those communities from social destruction and from internecine strife at home.
Now, having such an object, can it be accomplished? It cannot, unless you try; and it cannot, if every soldier who goes into the field concludes that he will not fire off his gun, for it is uncertain whether it will end the war; or if, on any post of duty that is devolved upon citizens in private life, we desert our Government, and our full duty to the Government. But that it can be done, and that it will be done, and that all this talk and folly about conquering eight millions of people will result in nothing, I find no room to doubt. In the first place, where are your eight millions? Why, there are the fifteen Slave States, and four of them—Maryland, Delaware, Kentucky, and Missouri—are not yet within the Confederacy. So we will subtract three millions, at least, for that part of the concern. Then there are five millions to be conquered; and how are they to be conquered? Why, not by destruction, not by slaughter, not by chains and manacles; but by the impression of the power of the Government, showing that the struggle is vain, that the appeal to arms was an error and a crime, and that, in the region of debate and opinion, and in equal representation in the Government itself, is the remedy for all grievances and evils. Be sure that, whatever may be said or thought of this question of war, these people can be, not subjugated, but compelled to entertain those inquiries by peaceful means; and I am happy to be able to say that the feeble hopes and despairing views which my learned friend, Mr. Brady, has thought it his duty to express before you, as to the hopelessness of any useful result to these hostilities, is not shared by one whom my friend, in the eloquent climax to an oration, placed before us as "starting, in a red shirt, to secure the liberties of Italy." I read his letter:
"Caprera,Sept. 10."Dear Sir: I saw Mr. Sandford, and regret to be obliged to announce to you that I shall not be able to go to the United States at present. I do not doubt of the triumph of the cause of the Union, and that shortly; but, if the war should unfortunately continue in your beautiful country, I shall overcome the obstacles which detain me and hasten to the defence of a people who are dear to me."G. GARIBALDI."
"Caprera,Sept. 10.
"Dear Sir: I saw Mr. Sandford, and regret to be obliged to announce to you that I shall not be able to go to the United States at present. I do not doubt of the triumph of the cause of the Union, and that shortly; but, if the war should unfortunately continue in your beautiful country, I shall overcome the obstacles which detain me and hasten to the defence of a people who are dear to me.
"G. GARIBALDI."
Garibaldi has had some experience, and knows the difference between efforts to make a people free, and the warlike and apparently successful efforts of tyranny; and he knows that a failure, even temporary, does not necessarily secure to force, and fraud, and violence a permanent success. He knows the difference between restoring a misguided people to a free Government, and putting down the efforts of a people to get up a free Government. He knows those are two different things; and, if the war be not shortly ended, as he thinks it will be, then he deems it right for him, fresh from the glories of securing the liberties of Italy, to assist in maintaining—what? Despotism? No! the liberties of America.
One of the learned counsel, who addressed you in a strain of very effective and persuasive eloquence, charmed us all by the grace of his allusion to a passage in classical history, and recalled your attention to the fact that, when the States of Greece which had warred against Athens, anticipating her downfall beneath the prowess of their arms, met to determine her fate, and when vindictive Thebes and envious Corinth counseled her destruction, the genius of the Athenian Sophocles, by the recital of the chorus of the Electra, disarmed this cruel purpose, by reviving the early glories of united Greece. And the counsel asked that no voice should be given to punish harshly these revolted States, if they should be conquered.
The voice of Sophocles in the chorus of the Electra, and those glorious memories of the early union, were produced to bring back into the circle of the old confederation the erring and rebellious Attica. So, too, what shall we find in the memories of the Revolution, or in the eloquence with which we have been taught to revere them, that will not urge us all, by every duty to the past, to the present, and to the future, to do what we can, whenever a duty is reposed in us, to sustain the Government in its rightful assertion of authority and in the maintenance of its power? Let me ask your attention to what has been said by the genius of Webster on so great a theme as the memory of Washington, bearing directly on all these questions of union, of glory, of hope, and of duty, which are involved in this inquiry. See whether, from the views thus invoked, there will not follow the same influence as from the chorus of the Electra, for the preservation, the protection, the restoration of every portion of what once was, and now is, and, let us hope, ever shall be, our common country.
On the occasion of the centennial anniversary of the birthday of Washington, at the national Capital, in 1832, Mr. Webster, by the invitation of men in public station as well as of the citizens of the place, delivered an oration, about which I believe the common judgment of his countrymen does not differ from what is known to have been his own idea, that it was the best presentation of his views and feelings which, in the long career of his rhetorical triumphs, he had had the opportunity to make.
No man ever thought or spoke of the character of Washington, and of the great part in human affairs which he played, without knowing and feeling that the crowning glory of all his labors in the field and in the council, and the perpetual monument to his fame, if his fame shall be perpetual, would be found in the establishment of the American Union under the American Constitution. All the prowess of the war, all the spirit of the Revolution, all the fortitude of the effort, all the self-denial of the sacrifice of that period, were for nothing, and worse than nothing, if the result and consummation of the whole were to be but a Government that contained within itself the seeds of its own destruction, and existed only at the caprice and whim of whatever part of the people should choose to deny its rightfulness or seek to overthrow its authority. In pressing that view, Mr. Webster thus attracts the attention of his countrymen to the great achievement in human affairs which the establishment of this Government has proved to be, and thus illustrates the character of Washington:
"It was the extraordinary fortune of Washington that, having been intrusted, in revolutionary times, with the supreme military command, and having fulfilled that trust with equal renown for wisdom and for valor, he should be placed at the head of the first Government in which an attempt was to be made, on a large scale, to rear the fabric of social order on the basis of a written Constitution and of a pure representative principle. A Government was to be established, without a throne, without an aristocracy, without castes, orders, or privileges; and this Government, instead of being a democracy, existing and acting within the walls of a single city, was to be extended over a vast country, of different climates, interests and habits, and of various communions of our common Christian faith. The experiment certainly was entirely new. A popular Government of this extent, it was evident, could be framed only by carrying into full effect the principle of representation or of delegated power; and the world was to see whether society could, by the strength of this principle, maintain its own peace and good government, carry forward its own great interests, and conduct itself to political renown and glory.* * * * *"* * * *I remarked, gentlemen, that the whole world was and is interested in the result of this experiment. And is it not so? Do we deceive ourselves, or is it true that at this moment the career which this Government is running is among the most attractive objects to the civilized world? Do we deceive ourselves, or is it true that at this moment that love of liberty and that understanding of its true principles, which are flying over the whole earth, as on the wings of all the winds, are really and truly of American origin? * * * * *"* * * *Gentlemen, the spirit of human liberty and of free Government, nurtured and grown into strength and beauty in America, has stretched its course into the midst of the nations. Like an emanation from Heaven, it has gone forth, and it will not return void. It must change, it is fast changing, the face of the earth. Our great, our high duty, is to show, in our own example, that this spirit is a spirit of health as well as a spirit of power; that its longevity is as great as its strength; that its efficiency to secure individual rights, social relations, and moral order, is equal to the irresistible force with which it prostrates principalities and powers. The world at this moment is regarding us with a willing, but something of a fearful, admiration. Its deep and awful anxiety is to learn whether free States may be stable as well as free; whether popular power may be trusted, as well as feared; in short, whether wise, regular, and virtuous self-government is a vision for the contemplation of theorists, or a truth established, illustrated, and brought into practice in the country of Washington."Gentlemen, for the earth which we inhabit, and the whole circle of the sun, for all the unborn races of mankind, we seem to hold in our hands, for their weal or woe, the fate of this experiment. If we fail, who shall venture the repetition? If our example shall prove to be one, not of encouragement, but of terror, not fit to be imitated, but fit only to be shunned, where else shall the world look for free models? If this greatWestern Sunbe struck out of the firmament, at what other fountain shall the lamp of liberty hereafter be lighted? What other orb shall emit a ray to glimmer, even, on the darkness of the world?* * * * *"* * * *The political prosperity which this country has attained and which it now enjoys, has been acquired mainly through the instrumentality of the present Government. While this agent continues, the capacity of attaining to still higher degrees of prosperity exists also. We have, while this lasts, a political life capable of beneficial exertion, with power to resist or overcome misfortunes, to sustain us against the ordinary accidents of human affairs, and to promote, by active efforts, every public interest. But dismemberment strikes at the very being which preserves these faculties. It would lay its rude and ruthless hand on this great agent itself. It would sweep away, not only what we possess, but all power of regaining lost, or acquiring new, possessions. It would leave the country, not only bereft of its prosperity and happiness, but without limbs, or organs, or faculties, by which to exert itself hereafter in the pursuit of that prosperity and happiness."Other misfortunes may be borne, or their effects overcome. If disastrous war should sweep our commerce from the ocean, another generation may renew it; if it exhaust our treasury, future industry may replenish it; if it desolate and lay waste our fields, still, under a new cultivation, they will grow green again, and ripen to future harvests. It were but a trifle even if the walls of yonder Capitol were to crumble, if its lofty pillars should fall, and its gorgeous decorations be all covered by the dust of the valley. All these might be rebuilt. But who shall reconstruct the fabric of demolished Government? Who shall rear again the well-proportioned columns of constitutional liberty? Who shall frame together the skilful architecture which unites national sovereignty with State rights, individual security, and public prosperity? No, if these columns fall, they will be raised not again. Like the Coliseum and the Parthenon, they will be destined to a mournful, a melancholy immortality. Bitterer tears, however, will flow over them, than were ever shed over the monuments of Roman or Grecian art; for they will be the remnants of a more glorious edifice than Greece or Rome ever saw—the edifice of constitutional American Liberty.* * * * *"* * * *A hundred years hence other disciples of Washington will celebrate his birth, with no less of sincere admiration than we now commemorate it. When they shall meet, as we now meet, to do themselves and him that honor, so surely as they shall see the blue summits of his native mountains rise in the horizon, so surely as they shall behold the river on whose banks he lived, and on whose banks he rests, still flowing on toward the sea, so surely may they see, as we now see, the flag of the Union floating on the top of the Capitol; and then, as now, may the sun in his course visit no land more free, more happy, more lovely, than this our own country!"
"It was the extraordinary fortune of Washington that, having been intrusted, in revolutionary times, with the supreme military command, and having fulfilled that trust with equal renown for wisdom and for valor, he should be placed at the head of the first Government in which an attempt was to be made, on a large scale, to rear the fabric of social order on the basis of a written Constitution and of a pure representative principle. A Government was to be established, without a throne, without an aristocracy, without castes, orders, or privileges; and this Government, instead of being a democracy, existing and acting within the walls of a single city, was to be extended over a vast country, of different climates, interests and habits, and of various communions of our common Christian faith. The experiment certainly was entirely new. A popular Government of this extent, it was evident, could be framed only by carrying into full effect the principle of representation or of delegated power; and the world was to see whether society could, by the strength of this principle, maintain its own peace and good government, carry forward its own great interests, and conduct itself to political renown and glory.* * * * *
"* * * *I remarked, gentlemen, that the whole world was and is interested in the result of this experiment. And is it not so? Do we deceive ourselves, or is it true that at this moment the career which this Government is running is among the most attractive objects to the civilized world? Do we deceive ourselves, or is it true that at this moment that love of liberty and that understanding of its true principles, which are flying over the whole earth, as on the wings of all the winds, are really and truly of American origin? * * * * *
"* * * *Gentlemen, the spirit of human liberty and of free Government, nurtured and grown into strength and beauty in America, has stretched its course into the midst of the nations. Like an emanation from Heaven, it has gone forth, and it will not return void. It must change, it is fast changing, the face of the earth. Our great, our high duty, is to show, in our own example, that this spirit is a spirit of health as well as a spirit of power; that its longevity is as great as its strength; that its efficiency to secure individual rights, social relations, and moral order, is equal to the irresistible force with which it prostrates principalities and powers. The world at this moment is regarding us with a willing, but something of a fearful, admiration. Its deep and awful anxiety is to learn whether free States may be stable as well as free; whether popular power may be trusted, as well as feared; in short, whether wise, regular, and virtuous self-government is a vision for the contemplation of theorists, or a truth established, illustrated, and brought into practice in the country of Washington.
"Gentlemen, for the earth which we inhabit, and the whole circle of the sun, for all the unborn races of mankind, we seem to hold in our hands, for their weal or woe, the fate of this experiment. If we fail, who shall venture the repetition? If our example shall prove to be one, not of encouragement, but of terror, not fit to be imitated, but fit only to be shunned, where else shall the world look for free models? If this greatWestern Sunbe struck out of the firmament, at what other fountain shall the lamp of liberty hereafter be lighted? What other orb shall emit a ray to glimmer, even, on the darkness of the world?* * * * *
"* * * *The political prosperity which this country has attained and which it now enjoys, has been acquired mainly through the instrumentality of the present Government. While this agent continues, the capacity of attaining to still higher degrees of prosperity exists also. We have, while this lasts, a political life capable of beneficial exertion, with power to resist or overcome misfortunes, to sustain us against the ordinary accidents of human affairs, and to promote, by active efforts, every public interest. But dismemberment strikes at the very being which preserves these faculties. It would lay its rude and ruthless hand on this great agent itself. It would sweep away, not only what we possess, but all power of regaining lost, or acquiring new, possessions. It would leave the country, not only bereft of its prosperity and happiness, but without limbs, or organs, or faculties, by which to exert itself hereafter in the pursuit of that prosperity and happiness.
"Other misfortunes may be borne, or their effects overcome. If disastrous war should sweep our commerce from the ocean, another generation may renew it; if it exhaust our treasury, future industry may replenish it; if it desolate and lay waste our fields, still, under a new cultivation, they will grow green again, and ripen to future harvests. It were but a trifle even if the walls of yonder Capitol were to crumble, if its lofty pillars should fall, and its gorgeous decorations be all covered by the dust of the valley. All these might be rebuilt. But who shall reconstruct the fabric of demolished Government? Who shall rear again the well-proportioned columns of constitutional liberty? Who shall frame together the skilful architecture which unites national sovereignty with State rights, individual security, and public prosperity? No, if these columns fall, they will be raised not again. Like the Coliseum and the Parthenon, they will be destined to a mournful, a melancholy immortality. Bitterer tears, however, will flow over them, than were ever shed over the monuments of Roman or Grecian art; for they will be the remnants of a more glorious edifice than Greece or Rome ever saw—the edifice of constitutional American Liberty.* * * * *
"* * * *A hundred years hence other disciples of Washington will celebrate his birth, with no less of sincere admiration than we now commemorate it. When they shall meet, as we now meet, to do themselves and him that honor, so surely as they shall see the blue summits of his native mountains rise in the horizon, so surely as they shall behold the river on whose banks he lived, and on whose banks he rests, still flowing on toward the sea, so surely may they see, as we now see, the flag of the Union floating on the top of the Capitol; and then, as now, may the sun in his course visit no land more free, more happy, more lovely, than this our own country!"
If, gentlemen, the eloquence of Mr. Webster, which thus enshrines the memory and the great life of Washington, calls us back to the glorious recollections of the Revolution and the establishment of our Government, does it not urge every man everywhere that his share in this great trust is to be performed now or never, and wherever his fidelity and his devotion to his country, its Government and its spirit, shall place the responsibility upon him? It is not the fault of the Government, of the learned District Attorney, or of me, his humble associate, that this, your verdict, has been removed, by the course of this argument and by the course of this eloquence on the part of the prisoners, from the simple issue of the guilt or innocence of these men under the statute. It is not the action or the choice of the Government, or of its counsel, that you have been drawn into higher considerations. It is not our fault that you have been invoked to give, on the undisputed facts of the case, a verdict which shall be a recognition of the power, the authority, and the right of the rebel Government to infringe our laws, or partake in the infringement of them, to some form and extent. And now, here is your duty, here your post of fidelity—not against law, not against the least right under the law, but to sustain, by whatever sacrifice there may be of sentiment or of feeling, the law and the Constitution. I need not say to you, gentlemen, that if, on a state of facts which admits no diversity of opinion, with these opposite forces arrayed, as they now are, before you—the Constitution of the United States, the laws of the United States, the commission of this learned Court, derived from the Government of the United States, the venire and the empanneling of this Jury, made under the laws and by the authority of the United States, on our side—met, on their side, by nothing, on behalf of the prisoners, but the commission, the power, the right, the authority of the rebel Government, proceeding from Jefferson Davis—you are asked, by the law, or under the law, or against the law, in some form, to recognize this power, and thus to say that the folly and the weakness of a free Government find here their last extravagant demonstration, then you are asked to say that the vigor, the judgment, the sense, and the duty of a Jury, to confine themselves to their responsibility on the facts of the case, are worthless and yielding before impressions of a discursive and loose and general nature. Be sure of it, gentlemen, that, on what I suppose to be the facts concerning this particular transaction, a verdict of acquittal is nothing but a determination that our Government and its authority, in the premises of this trial, for the purposes of your verdict, are met and overthrown by the protection thrown around the prisoners by the Government of the Confederate States of America, actual or incipient. Let us hope that you will do what falls to your share in the post of protection in which you are placed, for the liberties of this nation and the hopes of mankind; for, in surrendering them, you will be forming a part of the record on the common grave of the fabric of this Government, and of the hopes of the human race, where our flag shall droop, with every stripe polluted and every star erased, and the glorious legend of "Liberty and Union, now and forever, one and inseparable," replaced by this mournful confession, "Unworthy of freedom, our baseness has surrendered the liberties which we had neither the courage nor the virtue to love or defend."
CHARGE OF JUDGE NELSON.
Judge Nelsonthen proceeded to deliver the Charge of the Court, in whichJudge Shipman, his associate, concurred:
The first question presented in this case is, whether or not the Court has jurisdiction of the offence? This depends upon a clause of the 14th section of the Act of Congress of 1825, as follows: "And the trial of all offences which shall be committed upon the high seas or elsewhere, out of the limits of any State or District, shall be in the District where the offender is apprehended, or into which he may be first brought." The prisoners, who were captured by an armed vessel of the United States, off Charleston, South Carolina, were ordered by the commander of the fleet to New York for trial; but the Minnesota, on board of which they were placed, was destined for Hampton Roads, and it became necessary, therefore, that they should be there transferred to another vessel. They were thus transferred to the Harriet Lane, and, after some two days' delay, consumed in the preparation, they were sent on to this port, where they were soon after arrested by the civil authorities. It is insisted, on behalf of the prisoners, that inasmuch as Hampton Roads, to which place the prisoners were taken and transferred to the Harriet Lane, was within the Eastern District of the State of Virginia, the jurisdiction attached in that District, as that was the first District into which the prisoners were brought. The Court is inclined to think that the circumstances under which the Minnesota was taken to Hampton Roads, in connection with the original order by the commander that the prisoners should be sent to this District for trial, do not make out a bringing into that District within the meaning of the statute. But we are not disposed to place the decision on this ground. The Court is of opinion that the clause conferring jurisdiction is in the alternative, and that jurisdiction may be exercised either in the District in which the prisoners were first brought, or in that in which they were apprehended under lawful authority for the trial of the offence. This brings us to the merits of the case.
The indictment under which the prisoners are tried contains ten counts. The first five are framed upon the third section of the Act of Congress of 1820, which is as follows: "That, if any person shall, upon the high seas, commit the crime of robbery, in or upon any ship or vessel, or upon any of the ship's company of any ship or vessel, or the lading thereof, such person shall be adjudged to be a pirate," and, upon conviction, shall suffer death. The five several counts charge, in substance, that the prisoners did, upon the high seas, enter in and upon the brig Joseph, the same being an American vessel, and upon the ship's company, naming them; and did, then and there, piratically, feloniously, and violently make an assault upon them, and put them in personal fear and danger of their lives; and did, then and there, the brig Joseph, her tackle and apparel, her lading (describing it), which were in the custody and possession of the master and crew, from the said master and crew and from their possession, and in their presence, and against their will, violently, piratically and feloniously seize, rob, steal, take and carry away, against the form of the statute, &c. There are some variances in the different counts, but it will not be material to notice them. It will be observed that this provision of the Act of Congress prescribing the offence applies to all persons, whether citizens or foreigners, making no distinction between them, and is equally applicable, therefore, to all the prisoners at the bar. The remaining five counts are framed under the 9th section of the Act of Congress of 1790, which is as follows: "That if any citizen shall commit any piracy or robbery aforesaid, or any act of hostility against the United States, or any citizen thereof, upon the high sea, 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 conviction, shall suffer death. These five counts charge that the prisoners are all citizens of the United States, and that they committed the acts set forth in the previous five counts, on pretence of authority from one Jefferson Davis.
As the provision of the Act of Congress upon which these counts are framed is applicable only to citizens and not to foreigners, but four of the prisoners can be brought within it, as the other eight are admitted to be foreigners. The four are Baker, Howard, Passalaigue, and Harleston. The distinction between the provisions of the third section of the Act of 1820 and the ninth section of 1790, and the counts in the indictment founded upon them, arises out of a familiar principle of international law, and which is, that in a state of war existing between two nations, either may commission private armed vessels to carry on war against the enemy on the high seas, and the commission will afford protection, even in the judicial tribunals of the enemy, against a charge of the crime of robbery or piracy. Such a commission would be a good defence against an indictment under the third section of 1820, by force of the above rule of international law. The ninth section of the Act of 1790 changes the rule as it respects citizens of the United States who may take service under the commission of the private armed vessels of the enemy of their country. It declares, as it respects them, the commission shall not be admitted as a defence; and, as this legislation relates only to our own citizens, and prescribes a rule of action for them, and not as it respects the citizens or subjects of other countries, we do not perceive that any exception can be taken to the Act as unconstitutional or otherwise. But, upon the view the Court has taken of the case, it will not be necessary to trouble you with any remarks as it respects this ninth section, nor in respect to the several counts framed under it, but we shall confine our observations to a consideration of the third section of the Act of 1820. There can be no injustice to the prisoners in thus restricting the examination, as any authority for the perpetration of the acts charged in the indictment, founded upon the Act of 1820, will be equally available to them. Nor can there be any injustice to the prosecution, for unless the crime of robbery, as prescribed in the Act of 1820, is established against the four prisoners, none could be under the ninth section of the Act of 1790. The crime in the two Acts is the same for all the purposes of this trial. The only difference is the exclusion of a particular defence under the latter. Now, the crime charged is robbery upon an American vessel on the high seas, and hence it is necessary that we should turn our attention to the inquiry, what constitutes this offence? It has already been determined by the highest authority—the Supreme Court of the United States—that we must look to the common law for a definition of the term robbery, as it is to be presumed it was used by Congress in the Act in that sense, and, taking this rule as our guide, it will be found the crime consists in this: the felonious taking of goods or property of any value from the person of another, or in his presence, against his will, by violence, or putting him in fear. The taking must be felonious—that is, taking with a wrongful intent to appropriate the goods of another. It need not be a taking which, if upon the high seas, would amount to piracy, according to the law of nations, or what, in some of the books, is called general piracy or robbery. This is defined to be a forcible depredation upon property upon the high seas without lawful authority, doneanimo furandi—that is, as defined in this connection, in a spirit and intention of universal hostility.
A pirate is said to be one who roves the sea in an armed vessel, without any commission from any sovereign State, on his own authority, and for the purpose of seizing by force and appropriating to himself, without discrimination, every vessel he may meet. For this reason, pirates, according to the law of nations, have always been compared to robbers—the only difference being that the sea is the theatre of the operations of one and the land of the other. And, as general robbers and pirates upon the high seas are deemed enemies of the human race—making war upon all mankind indiscriminately—the crime being one against the universal laws of society—the vessels of every nation have a right to pursue, seize, and punish them. Now, if it were necessary, on the part of the Government, to bring the crime charged in the present case against the prisoners within this definition of robbery and piracy, as known to the common law of nations, there would be great difficulty in so doing either upon the evidence, or perhaps upon the counts, as charged in the indictment—certainly upon the evidence. For that shows, if anything, an intent to depredate upon the vessels and property of one nation only—the United States—which falls far short of the spirit and intent, as we have seen, that are said to constitute essential elements of the crime. But the robbery charged in this case is that which the Act of Congress prescribes as a crime, and may be denominated a statute offence as contra-distinguished from that known to the law of nations. The Act, as you have seen, declares the person a pirate, punishable by death, who commits the crime of robbery upon the high seas against any ship or vessel, or upon any ship's company of any ship or vessel, &c.; and the interpretation given to these words applies the crime to the case of depredation upon an American vessel or property on the high seas, under circumstances that would constitute robbery, if the offence was committed on land, and which is, according to the language of Blackstone, the felonious and forcible taking from the person of another of goods or money, to any value, by violence or putting him in fear. The felonious intent which describes the state of mind as an element of the offence, is what is called in technical languageanimo furandi, which means an intent of gaining by another's loss, or to despoil another of his goodslucri causa, for the sake of gain. Now, if you are satisfied, upon the evidence, that the prisoners have been guilty of this statute offence of robbery upon the high seas, it is your duty to convict them, though it may fall short of the offence as known to the law of nations. We have stated what constitute the elements of the crime, and it is your province to apply the facts to them, and thus determine, whether or not the crime has been committed. That duty belongs to you, and not to the Court. We have said that, in a state of war between two nations, the commission to private armed vessels from either of the belligerents affords a defence, according to the law of nations, in the Courts of the enemy, against a charge of robbery or piracy on the high seas, of which they might be guilty in the absence of such authority; and under this principle it has been insisted, by the learned counsel for the prisoners, that the commission of the Confederate States, by its President, Davis, to the master and crew of the Savannah, which has been given in evidence, affords such defence.
In support of this position, it is claimed that the Confederate States have thrown off the power and authority of the General Government; have erected a new and independent Government in its place, and have maintained it against the whole military and naval power of the former; that it is a Government, at leastde facto, and entitled to the rights and privileges that belong to a sovereign and independent nation. The right, also, constitutional or otherwise, has been strongly urged, and the law of nations and the commentaries of eminent publicists have been referred to as justifying the secession or revolt of these Confederate States. Great ability and research have been displayed by the learned counsel for the defence on this branch of the case. But the Court do not deem it pertinent, or material, to enter into this wide field of inquiry. This branch of the defence involves considerations that do not belong to the Courts of the country. It involves the determination of great public, political questions, which belong to departments of our Government that have charge of our foreign relations—the legislative and executive departments; and, when decided by them, the Court follows the decision; and, until these departments have recognized the existence of the new Government, the Courts of the nation cannot. Until this recognition of the new Government, the Courts are obliged to regard the ancient state of things remaining as unchanged. This has been the uniform course of decision and practice of the Courts of the United States. The revolt of the Spanish Colonies of South America, and the new Government erected on separating from the mother country, were acknowledged by an Act of Congress, on the recommendation of the President, in 1822. Prior to this recognition, and during the existence of the civil war between Spain and her Colonies, it was the declared policy of our Government to treat both parties as belligerents, entitled equally to the rights of asylum and hospitality; and to consider them, in respect to the neutral relation and duties of our Government, as equally entitled to the sovereign rights of war as against each other. This was, also, the doctrine of the Courts, which they derived from the policy of the Government, following the political departments of the Government as it respects our relations with new Governments erected on the overthrow of the old. And if this is the rule of the Federal Courts, in the case of a revolt and erection of a new Government, as it respects foreign nations, much more is the rule applicable when the question arises in respect to a revolt and the erection of a new Government within the limits and against the authority of the Government under which we are engaged in administering her laws. And, in this connection, it is proper to say that, as the Confederate States must first be recognized by the political departments of the mother Government, in order to be recognized by the Courts of the country, namely, the legislative and executive departments, we must look to the acts of these departments as evidence of the fact. The act is the act of the nation through her constitutional public authorities. These, gentlemen, are all the observations we deem necessary to submit to you. The case is an interesting one, not only in the principles involved, but to the Government and the prisoners at the bar. It has been argued with a research and ability in proportion to its magnitude, both in behalf of the prisoners and the Government; and we do not doubt, with the aid of these arguments, and the instructions of the Court, you will be enabled to render an intelligent and just verdict in the case.
The Jury retired at twenty minutes after three o'clock.
At six o'clock they came into Court. Their names were called, and the inquiry made by the Clerk whether they had agreed upon their verdict. Their Foreman said they had not. One of the prisoners having felt unwell, had been removed from the close air of the Court-room, and some little delay occurred until he was brought in. Judge Nelson then said: "We have had a communication from one of the officers in charge of the Jury, from the Jury, as we understood, though it had no name signed to it. I would inquire whether the note was from the Jury?"
The Foreman: It was.
Judge Nelson: We would prefer that the Jurymen, or any of them who may be embarrassed with the difficulties referred to, should himself state the inquiry which he desires to make of the Court.
Mr. Powell, one of the Jurors, said that the question was, "whether, if the Jury believed that civil war existed, and had been so recognized by the act of our Government, or if the Jury believe that the intent to commit a robbery did not exist in the minds of the prisoners at the time, it may influence their verdict."
After consultation with Judge Shipman, Judge Nelson said: As it respects the first inquiry of the Juror—whether the Government has recognized a state of civil war between the Confederate States and itself—the instruction which the Court gave the Jury was, that this Court could not recognize a state of civil war, or a Government of the Confederate States, unless the legislative and executive Departments of the Government had recognized such a state of things, or the President had, or both; and that the act of recognition was a national act, and that we must look to the acts of these Departments of the Government as the evidence and for the evidence of the recognition of this state of things, and the only evidence. As it respects the other question—whether or not, if the Jury were of opinion, on the evidence, that these prisoners did not intend to commit a robbery on the high seas against the property of the United States, they were guilty of the offence charged—that is a mixed question of law and fact. The Court explained to you what constitutes the crime of robbery on the high seas, which was the felonious taking of the property of another upon the high seas by force, by violence, or putting them in fear of bodily injury, which, according to the law, is equivalent to actual force; and that the term felonious, as interpreted by the law and the Courts, was the taking with a wrongful intent to despoil the others of their property. These elements constitute the crime of robbery. Now, it is for you to take up the facts and decide whether the evidence in the case brings the prisoners within that definition. The Court will not encroach upon your province in these respects, but will confine itself to the definition of the law.
Another of the Jury—George H. Hansell—rose and said: One of the Jury—not myself—understood your honor to charge that there must be an intent to take the property of another for your own use.
Judge Nelson: No, I did not give that instruction. The Jury may withdraw.
The Jury again retired, and, as there was no probability of an agreement at half-past seven o'clock, the Court adjourned to eleven o'clock Thursday morning.