"Soon after the abdication of James II., an international question of very great importance arose, namely, what character should be ascribed to privateers commissioned by the monarch, who had abdicated, to make war against the adherents of William III., or rather against the English, while under his rule. The question, in fact, involved a discussion of the general principle, whether a deposed sovereign, claiming to be sovereignde jure, might lawfully commission privateers against the subjects and adherents of the sovereignde factoon the throne; or whether such privateers were not to be considered as pirates, inasmuch as they were sailinganimo furandi et depraedundi, without anynationalcharacter. The question, it should be observed, did not arise in its full breadth and importanceuntil James II. had been expelled from Ireland as well as England, until, in fact, he was a sovereign, claiming to be such de jure,but confessedly without territory. It appears that James, after he was in this condition, continued to issue letters of marque to his followers. The Privy Council of William III. desired to hear civilians upon the point of the piratical character of such privateers. The arguments on both sides are contained in a curious and rather rare pamphlet, published by one of the counsel (Dr. Tindal) for King William, in the years 1693-4. The principal arguments for the piratical character of the privateers appear to have been—"That they who acted under such commission may be dealt with as if they had acted under their own authority or the authority of any private person, and therefore might be treated as pirates. That if such a titular Prince might grant commissions to seize the ships and goods of all or most trading nations, he might derive a considerable revenue as a chief of such freebooters, and that it would be madness in nations not to use the utmost rigor of the law against such vessels."That the reason of the thing which pronounced that robbers and pirates, when they formed themselves into a civil society, became just enemies, pronounced also thata king without territory, without power of protecting the innocent or punishing the guilty, or in any way of administering justice, dwindled into a pirate if he issued commissions to seize the goods and ships of nations; and that they who took commissions from him must be held by legal inference to have associatedsceleris causâ, and could not be considered as members of a civil society."
"Soon after the abdication of James II., an international question of very great importance arose, namely, what character should be ascribed to privateers commissioned by the monarch, who had abdicated, to make war against the adherents of William III., or rather against the English, while under his rule. The question, in fact, involved a discussion of the general principle, whether a deposed sovereign, claiming to be sovereignde jure, might lawfully commission privateers against the subjects and adherents of the sovereignde factoon the throne; or whether such privateers were not to be considered as pirates, inasmuch as they were sailinganimo furandi et depraedundi, without anynationalcharacter. The question, it should be observed, did not arise in its full breadth and importanceuntil James II. had been expelled from Ireland as well as England, until, in fact, he was a sovereign, claiming to be such de jure,but confessedly without territory. It appears that James, after he was in this condition, continued to issue letters of marque to his followers. The Privy Council of William III. desired to hear civilians upon the point of the piratical character of such privateers. The arguments on both sides are contained in a curious and rather rare pamphlet, published by one of the counsel (Dr. Tindal) for King William, in the years 1693-4. The principal arguments for the piratical character of the privateers appear to have been—
"That they who acted under such commission may be dealt with as if they had acted under their own authority or the authority of any private person, and therefore might be treated as pirates. That if such a titular Prince might grant commissions to seize the ships and goods of all or most trading nations, he might derive a considerable revenue as a chief of such freebooters, and that it would be madness in nations not to use the utmost rigor of the law against such vessels.
"That the reason of the thing which pronounced that robbers and pirates, when they formed themselves into a civil society, became just enemies, pronounced also thata king without territory, without power of protecting the innocent or punishing the guilty, or in any way of administering justice, dwindled into a pirate if he issued commissions to seize the goods and ships of nations; and that they who took commissions from him must be held by legal inference to have associatedsceleris causâ, and could not be considered as members of a civil society."
I will not occupy the time of the Court and Jury by recapitulating the rest of the arguments which were urged with very great ability by the learned and distinguished civilians arrayed against each other in that interesting debate. But the points which arise, and which the Court will have, in due time, to instruct you upon, we respectfully claim and insist are these: That this English statute, after which our own statute was precisely copied, was intended only to apply to the case of pirates cruising under a commission pretended to have been given, in the first place, by a Prince deposed, abdicated, not having a foot of territory yielding him obedience in any corner of the world; and, in the next place, that it was intended to be aimed against those cruising under a commission issued under the pretence of authority from a foreigner, and not from the authorities over themde jureorde facto, or from any authorities of the land in which they lived, and where the real object was depredation; because, where it was issued by a monarch without territory—by a foreigner, having no rule, and no country in subjection to him—there could be no prize-court, and none of the ordinary machinery for disposing of prizes captured, according to the rules of international law; and, lastly, it was intended to apply to the case of a citizen, taking a privateer's commission from a foreign Government as a pretence to enable him to cruise against the commerce of his own countrymen. But it was never intended to apply to a case of this kind, where the commission was issued by the authorities of the land in which the parties receiving it live, exercising sway and dominion over them, whetherde jureorde facto.
Now, gentlemen, so far I have thought it necessary to go in explanation of what the statutes were, of the circumstances bearing on them, and of the requisites which the prosecution had to make out, in order to ask a conviction at your hands. I come now, for the purpose of this opening, to lay before you what we shall rely upon in our defence. The first defence, as has already appeared to you from the course of the examination of the prosecution's witnesses, has reference to the question of the jurisdiction of this Court to hear and determine this controversy. The statute has been already read to you, on which that question of jurisdiction rests; but, for fear that you do not recollect it, I will beg once more to call your attention to it. The concluding paragraph of sec. 14 of the Act of 1825, 4th vol. of the Statutes at Large, p. 118, is as follows:
"And the trial of all offences which shall be committed on 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 first be brought."
"And the trial of all offences which shall be committed on 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 first be brought."
Now, you observe that the language of the statute is imperative—the reasons which led to its adoption were also imperative and controlling. It is necessary that the law shall make provision for the place where a man shall be put on trial under an indictment against him; and the law wisely provides that in cases of offences committed on the land, the trial shall only take place where the offence was committed. It was thought even necessary to provide for that by an amendment to the Constitution of the United States, in order that there might be no misunderstanding of, and no departure from, the rule.
The Constitution, by one of its amendments, in the same paragraph which provides for the right of every accused to a speedy and impartial trial, provides also that that trial shall take place in the District, which District shall first have been ascertained by law; and as I said to you, in cases of crimes committed on the land, that District must be the District where the offence was committed, and no other.
Now look at the state of things here, gentlemen. These men are all citizens or residents of the State of South Carolina, and have been so for years. This vessel was fitted out in South Carolina. The authority under which she professed to act was given there. The evidence for the defence, if it could be got, must come from there. All the circumstances bearing on the transaction occurred in that section of the country, and not elsewhere,—occurred in a country which is now under the same Government and domination as Virginia, because Virginia is included at present under the domination and Government of the Confederate States.
Well, with reference to offences committed at sea, the officers capturing a prize have a right to bring it into any port, it is true, and the port where the prisoners are brought is, as we claim under the construction of the statute, the port where the trial is to take place; the port where the prisoners are first brought, whether they are landed or not. On that question of jurisdiction the rule is this: The jurisdiction of the State extends to the distance of a marine league from shore; and if these prisoners were brought on this vessel within the distance of three miles from the shores of Virginia, where the vessel anchored, as in port, having communication with the land, the jurisdiction of the Circuit Court of the Eastern District of Virginia attached, and they could not, after that, be put on trial for that offence elsewhere. It is not necessary for me now to trouble the Jury with re-reading authorities which were read upon this subject yesterday. In a case which occurred some years ago, before Judge Story, the learned Judge had fallen into a misapprehension on a question which did not necessarily arise, because the facts to give rise to it did not occur in the case. An offence had been committed—an attempt to create a revolt on board of a vessel at sea. Those who had made the attempt had either repented of the design, or had not succeeded in it; at all events, they had afterwards gone on to do their duty on the vessel, and had not been incarcerated on board the vessel at all. The vessel first got into a port in Connecticut, and finally got into a port in Massachusetts, and there, for the first time, those prisoners were arrested and put into confinement. Undoubtedly the Court in Massachusetts had jurisdiction in that case; but Judge Story, speaking on a question which did not arise, appeared to treat the language of the statute as being alternative, giving the Government the right to select one of two places for the trial. That was corrected in a late case which came before the Court in Massachusetts, in the same District where Judge Story had decided the previous case. Both Judge Sprague, of the District Court, and Judge Clifford, of the Circuit Court, held that in a case where prisoners had been captured as malefactors on the high seas, and had been confined on board a United States vessel, where the vessel had gone into Key West for a temporary purpose, to get water, without the prisoners ever having been landed, and where they went from thence to Massachusetts, where the prisoners were arrested by the civil authorities and imprisoned, that the Court of Massachusetts had no jurisdiction whatever. Under the instructions of the Court, the Grand Jury refused to find an indictment, and a warrant of removal was granted to remove the prisoners for trial in the Court at Key West,—the Court of Massachusetts holding that that was the only place where they could be tried for the offence, because the vessel having them in custody as prisoners had touched there to get water on her voyage. We have not even the information in that case as to whether the vessel went within three miles of the shore; it was enough that she had communicated with Key West, and that the prisoners might have been landed there; but it was held that the Government had not a right to elect the place of trial of the prisoners; and it is important, particularly in cases of this kind, that no one shall have the right to elect a place of trial. I say that, not with the slightest intention of imputing any unfair motives to the Government, to the officers of the Navy, or any one else. It is a great deal better that where men are to be put on trial for their lives, they should have the benefit of the chapter of accidents.
If it would have been any better for these prisoners to have had a Jury to try them in Virginia, they were entitled to the benefit of that. In saying so, I mean no reflection on any Jury in New York. I have no doubt you will try this case as honestly, as fairly, and as impartially as any Jury in Virginia could try it. But at the same time we all know that if this right of election can be resorted to on the part of the United States, men might suffer, not from any wrong intention, but from the natural and inevitable and often unconscious tendency of those who are to prosecute, to select the place of prosecution most convenient for themselves.
We shall therefore claim before you, gentlemen, following the rule laid down in Massachusetts by Judge Clifford and Judge Sprague, that this vessel, having been within a marine league of the shore of Virginia, was within the jurisdiction of the District Court of Virginia, and that that was the only place where they could be tried. Suppose, as was well suggested to me by one of my associates, that on the Minnesota, lying where she did, or on the Harriet Lane, lying where she did in Hampton Roads, a murder had been committed: could it be contended by any one that the United States Court in Virginia would not have had jurisdiction, and the only jurisdiction over the case?
Now, gentlemen, that is all which, on the opening of this case, I am going to say on the subject of jurisdiction.
Our next defence will be, that the commission in this case affords adequate protection to these prisoners; and we will put that before you in several points of view. It will undoubtedly be read to you in evidence. It was one of the documents found on board this vessel.
Mr. Evarts:It is not in evidence; and how can counsel open to the Jury upon a commission which is not in evidence?
Judge Nelson:Counsel can refer to it as part of his opening.
Mr. Larocque:Now, gentlemen, you will recollect that the counsel for the prosecution, in framing this indictment, has treated this in the way in which we claim he was bound to treat it; that is to say, that the 9th section of the Act of 1790 was intended to refer exclusively to offences claimed to have been committed under a commission; throwing on the prosecution the necessity of setting forth the commission or the pretence of authority. Having set it forth, the prosecution is bound by the manner in which it is described in the indictment; and if it is described as something which it is not, the prisoners must have the benefit of that mis-description.
Now, in framing this indictment, the counsel for the prosecution has set forth that the prisoners claimed to act under a commission issued by one Jefferson Davis. That is to say, he has attempted to ground his claim to a conviction on that section of the statute. You will recollect that the statute reads, "under pretence of any commission granted by any foreign Prince or State" (which the Courts of the United States have held, to mean a foreign State), "or under pretence of authority from any person." And it was necessary, in order to ground an indictment on that section of the statute, to bring this case within the exact letter or words of one or the other clause of that section of this statute. It would not do for them to claim that this commission was issued by a foreign Prince or foreign State, because, if by a foreign Prince or foreign State, there would be no doubt or question that all of these parties were citizens of that foreign State or residents there, and were not citizens of the United States. Of course, if this were a foreign State, they were foreign citizens, and not citizens of the United States.
What is this commission? As we shall lay it before you, it reads in this way:
"Jefferson Davis,"President of the Confederate States of America,"To all who shall see these Presents, Greeting:"Know ye, That by virtue of the power vested in me by law, I have commissioned, and do hereby commission, have authorized, and do hereby authorize, the schooner or vessel called the 'Savannah' (more particularly described in the schedule hereunto annexed), whereof T. Harrison Baker is commander, to act as a private armed vessel in the service of the Confederate States, on the high seas, against the United States of America, their ships, vessels, goods, and effects, and those of their citizens, during the pendency of the war now existing between the said Confederate States and the said United States."This commission to continue in force until revoked by the President of the Confederate States for the time being."Given under my hand and the seal of the Confederate States,[c.s.]at Montgomery, this eighteenth day of May, A.D. 1861."(Signed) JEFFERSON DAVIS."By the President."R. TOOMBS,"Secretary of State."SCHEDULE OF DESCRIPTION OF THE VESSEL."Name—Schooner 'Savannah.'"Tonnage—Fifty-three 41/95 tons."Armament—One large pivot gun and small arms."No. of Crew—Thirty."
"Jefferson Davis,
"President of the Confederate States of America,
"To all who shall see these Presents, Greeting:
"Know ye, That by virtue of the power vested in me by law, I have commissioned, and do hereby commission, have authorized, and do hereby authorize, the schooner or vessel called the 'Savannah' (more particularly described in the schedule hereunto annexed), whereof T. Harrison Baker is commander, to act as a private armed vessel in the service of the Confederate States, on the high seas, against the United States of America, their ships, vessels, goods, and effects, and those of their citizens, during the pendency of the war now existing between the said Confederate States and the said United States.
"This commission to continue in force until revoked by the President of the Confederate States for the time being.
"(Signed) JEFFERSON DAVIS.
"By the President.
"R. TOOMBS,"Secretary of State.
"SCHEDULE OF DESCRIPTION OF THE VESSEL.
That is the document, bearing the seal of ten States, signed by Jefferson Davis as President—signed by the Secretary of State for those ten States, which the learned counsel who framed the indictment has undertaken to call "a pretence of authority from one Jefferson Davis." The counsel was forced to frame his indictment in that way; for if he had alleged in the indictment that it was by pretence of authority from the Confederate States—to wit, South Carolina, Georgia, &c., naming States which this Government, for the purpose of bringing this prosecution at all, must claim to be in the Union—it would be clearly outside of the provision of the statute, and could never get before a Jury, because it would have been dismissed on application to the Court beforehand. But the learned counsel has sought, by stating an argumentative conclusion of law in his indictment, according to his understanding of it, to bring within the statute a case which the statute was not meant to meet—an entirely different and distinct case. I submit to you, that that cannot be done,—that the commission on its face does not purport to be a commission granted by any person. It purports to be, and, if anything, it is, a commission granted by authority of the States that are joined together under the name of Confederate States; and, gentlemen, as I said, we shall claim before you that this commission is a protection to these parties, against the charge of piracy, upon various distinct grounds.
In the first place, we shall claim before you that the Government, called the Government of the Confederate States (whether you call it a Governmentde jureor a Governmentde facto, or whatever name under the nomenclature of nations you choose to give it), is the present existing Government of those States, exercising dominion over them, without any other Government having an officer or court, or any insignia of Government within them.
This is a point which, at a future stage of the case, my learned associate, who is much better able to do so than I am, will have occasion to dwell upon. I wish, however, to call your attention to the rules as they have been laid down; and first, I would desire to refer you, and also to call the attention of the Court, to what is said by Vattel,—who, as you all probably know, is one of the most celebrated authors upon international rights, and international law, and who is received as authority upon that subject in every Court in Europe and America. I refer to Vattel, book 1, chap. 17, secs. 201 and 202, where he says:
"Sec. 201.When a city or province is threatened, or actually attacked, it must not, for the sake of escaping a danger, separate itself, or abandon its natural Prince, even when the State or the Prince is unable to give it immediate and effectual assistance. Its duty, its political engagements, oblige it to make the greatest efforts in order to maintain itself in its present state. If it is overcome by force, necessity, that irresistible law, frees it from its former engagements, and gives it a right to treat with the conqueror, in order to obtain the best terms possible. If it must either submit to him or perish, who can doubt but it may, and even ought to prefer the former alternative? Modern usage is conformable to this decision,—a city submits to the enemy, when it cannot expect safety from vigorous resistance. It takes an oath of fidelity to him, and its sovereign lays the blame on fortune alone.""Sec. 202.The State is obliged to protect and defend all its members; and the Prince owes the same assistance to his subjects. If, therefore, the State or the Prince refuses or neglects to succor a body of people who are exposed to imminent danger, the latter, being thus abandoned, become perfectly free to provide for their own safety and preservation in whatever manner they find most convenient, without paying the least regard to those who, by abandoning them, have been the first to fail in their duty. The Canton of Zug, being attacked by the Swiss in 1352, sent for succor to the Duke of Austria, its sovereign; but that Prince, being engaged in discourse concerning his hawks at the time when the deputies appeared before him, would scarcely condescend to hear them. Thus abandoned, the people of Zug entered into the Helvetic Confederacy. The city of Zurich had been in the same situation the year before. Being attacked by a band of rebellious citizens, who were supported by the neighboring nobility, and the House of Austria, it made application to the head of the Empire; but Charles IV., who was then Emperor, declared to its deputies that he could not defend it, upon which Zurich secured its safety by an alliance with the Swiss. The same reason has authorized the Swiss in general to separate themselves entirely from the Empire which never protected them in any emergency. They had not denied its authority for a long time before their independence was acknowledged by the Emperor, and the whole Germanic Body, at the treaty of Westphalia."
"Sec. 201.When a city or province is threatened, or actually attacked, it must not, for the sake of escaping a danger, separate itself, or abandon its natural Prince, even when the State or the Prince is unable to give it immediate and effectual assistance. Its duty, its political engagements, oblige it to make the greatest efforts in order to maintain itself in its present state. If it is overcome by force, necessity, that irresistible law, frees it from its former engagements, and gives it a right to treat with the conqueror, in order to obtain the best terms possible. If it must either submit to him or perish, who can doubt but it may, and even ought to prefer the former alternative? Modern usage is conformable to this decision,—a city submits to the enemy, when it cannot expect safety from vigorous resistance. It takes an oath of fidelity to him, and its sovereign lays the blame on fortune alone."
"Sec. 202.The State is obliged to protect and defend all its members; and the Prince owes the same assistance to his subjects. If, therefore, the State or the Prince refuses or neglects to succor a body of people who are exposed to imminent danger, the latter, being thus abandoned, become perfectly free to provide for their own safety and preservation in whatever manner they find most convenient, without paying the least regard to those who, by abandoning them, have been the first to fail in their duty. The Canton of Zug, being attacked by the Swiss in 1352, sent for succor to the Duke of Austria, its sovereign; but that Prince, being engaged in discourse concerning his hawks at the time when the deputies appeared before him, would scarcely condescend to hear them. Thus abandoned, the people of Zug entered into the Helvetic Confederacy. The city of Zurich had been in the same situation the year before. Being attacked by a band of rebellious citizens, who were supported by the neighboring nobility, and the House of Austria, it made application to the head of the Empire; but Charles IV., who was then Emperor, declared to its deputies that he could not defend it, upon which Zurich secured its safety by an alliance with the Swiss. The same reason has authorized the Swiss in general to separate themselves entirely from the Empire which never protected them in any emergency. They had not denied its authority for a long time before their independence was acknowledged by the Emperor, and the whole Germanic Body, at the treaty of Westphalia."
I also refer to the case of the United Statesv.Hayward, 2 Gallison, 485, which was a writ of error to the District Court of Massachusetts, in a case of alleged breach of the revenue laws. It appears that Castine (in Maine) was taken possession of by the British troops on the 1st of September, 1814, and was held in their possession until after the Treaty of Peace.
Judge Story says:
"The second objection is, that the Court directed the Jury that Castine was, under the circumstance, a foreign port. By 'foreign port,' as the terms are here used, may be understood a port within the dominions of a foreign sovereign, and without the dominions of the United States. The port of Castine is the port of entry for the District of Penobscot, and is within the acknowledged territory of the United States. But, at the time referred to in the bill of exceptions, it had been captured, and was in the open and exclusive possession of the enemy.By the conquest and occupation of Castine, that territory passed under the allegiance and sovereignty of the enemy. The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced, or be obligatory upon the inhabitants, who remained and submitted to the conquerors."
"The second objection is, that the Court directed the Jury that Castine was, under the circumstance, a foreign port. By 'foreign port,' as the terms are here used, may be understood a port within the dominions of a foreign sovereign, and without the dominions of the United States. The port of Castine is the port of entry for the District of Penobscot, and is within the acknowledged territory of the United States. But, at the time referred to in the bill of exceptions, it had been captured, and was in the open and exclusive possession of the enemy.By the conquest and occupation of Castine, that territory passed under the allegiance and sovereignty of the enemy. The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced, or be obligatory upon the inhabitants, who remained and submitted to the conquerors."
Now, gentlemen, I must trouble you, very briefly, with a reference to one or two other authorities on that subject. At page 188 of Foster's Crown Law that learned author says:
"Sec 8.Protection and allegiance are reciprocal obligations, and consequently the allegiance due to the Crown must, as I said before, be paid to him who is in the full and actual exercise of the regal powers, and to none other. I have no occasion to meddle with the distinction between Kingsde factoand Kingsde jure, because the warmest advocates for that distinction, and for the principles upon which it hath been founded, admit that even a Kingde facto, in the full and sole possession of the Crown, is a King within the Statute of Treasons; it is admitted, too, that the throne being full, any other person out of possession, but claiming title, is no King within the act, be his pretensions what they may."These principles, I think, no lawyer hath ever yet denied. They are founded in reason, equity, and good policy."
"Sec 8.Protection and allegiance are reciprocal obligations, and consequently the allegiance due to the Crown must, as I said before, be paid to him who is in the full and actual exercise of the regal powers, and to none other. I have no occasion to meddle with the distinction between Kingsde factoand Kingsde jure, because the warmest advocates for that distinction, and for the principles upon which it hath been founded, admit that even a Kingde facto, in the full and sole possession of the Crown, is a King within the Statute of Treasons; it is admitted, too, that the throne being full, any other person out of possession, but claiming title, is no King within the act, be his pretensions what they may.
"These principles, I think, no lawyer hath ever yet denied. They are founded in reason, equity, and good policy."
And again, at page 398, he continues:
"His Lordship [Hale] admitted that a temporary allegiance was due to Henry VI. as being Kingde facto. If this be true, as it undoubtedly is, with what color of law could those who paid him that allegiance before the accession of Edward IV. be considered as traitors? For call it a temporary allegiance, or by what other epithet of diminution you please, still it was due to him, while in full possession of the Crown, and consequently those who paid him that due allegiance could not, with any sort of propriety, be considered as traitors for doing so."The 11th of Henry VII., though subsequent to these transactions, is full in point. For let it be remembered, that though the enacting part of this excellent law can respect only future cases, the preamble, which his Lordship doth not cite at large, is declaratory of the common law: and consequently will enable us to judge of the legality of past transactions. It reciteth to this effect, 'That the subjects of England are bound by the duty of their allegiance to serve their Prince and Sovereign Lord for the time being, in defence of him and his realm, against every rebellion, power, and might raised against him; and that whatsoever may happen in the fortune of war against the mind and will of the Prince, as in this land, some time past it hath been seen, it is not reasonable, but against all laws, reason, and good conscience, that such subjects attending upon such service should suffer for doing their true duty and service of allegiance.' It then enacteth, that no person attending upon the King for the time being in his wars, shall for such service be convict or attaint of treason or other offence by Act of Parliament, or otherwise by any process of law."
"His Lordship [Hale] admitted that a temporary allegiance was due to Henry VI. as being Kingde facto. If this be true, as it undoubtedly is, with what color of law could those who paid him that allegiance before the accession of Edward IV. be considered as traitors? For call it a temporary allegiance, or by what other epithet of diminution you please, still it was due to him, while in full possession of the Crown, and consequently those who paid him that due allegiance could not, with any sort of propriety, be considered as traitors for doing so.
"The 11th of Henry VII., though subsequent to these transactions, is full in point. For let it be remembered, that though the enacting part of this excellent law can respect only future cases, the preamble, which his Lordship doth not cite at large, is declaratory of the common law: and consequently will enable us to judge of the legality of past transactions. It reciteth to this effect, 'That the subjects of England are bound by the duty of their allegiance to serve their Prince and Sovereign Lord for the time being, in defence of him and his realm, against every rebellion, power, and might raised against him; and that whatsoever may happen in the fortune of war against the mind and will of the Prince, as in this land, some time past it hath been seen, it is not reasonable, but against all laws, reason, and good conscience, that such subjects attending upon such service should suffer for doing their true duty and service of allegiance.' It then enacteth, that no person attending upon the King for the time being in his wars, shall for such service be convict or attaint of treason or other offence by Act of Parliament, or otherwise by any process of law."
The author says then:
"Here is a clear and full parliamentary declaration, that by the antient law and Constitution of England, founded on principles of reason, equity, and good conscience, the allegiance of the subject is due to the King for the time being, and to him alone. This putteth the duty of the subject upon a rational, safe bottom. He knoweth that protection and allegiance are reciprocal duties. He hopeth for protection from the Crown, and he payeth his allegiance to it in the person of him whom he seeth in full and peaceable possession of it. He entereth not into the question of title; he hath neither leisure or abilities, nor is he at liberty to enter into that question. But he seeth the fountain, from whence the blessings of Government, liberty, peace, and plenty flow to him; and there he payeth his allegiance. And this excellent law hath secured him against all after reckonings on that account."
"Here is a clear and full parliamentary declaration, that by the antient law and Constitution of England, founded on principles of reason, equity, and good conscience, the allegiance of the subject is due to the King for the time being, and to him alone. This putteth the duty of the subject upon a rational, safe bottom. He knoweth that protection and allegiance are reciprocal duties. He hopeth for protection from the Crown, and he payeth his allegiance to it in the person of him whom he seeth in full and peaceable possession of it. He entereth not into the question of title; he hath neither leisure or abilities, nor is he at liberty to enter into that question. But he seeth the fountain, from whence the blessings of Government, liberty, peace, and plenty flow to him; and there he payeth his allegiance. And this excellent law hath secured him against all after reckonings on that account."
And another author on that subject [Hawkins], in his Pleas of the Crown, Book I., chap. 17, sec. 11, says:
"As to the third point, who is a King within this act? [26 Edw. 3, ch. 2.] It seems agreed that every King for the time being, in actual possession of the crown, is a King within the meaning of this statute. For there is a necessity that the realm should have a King by whom and in whose name the laws shall be administered; and the King in possession being the only person who either doth or can administer those laws, must be the only person who has a right to that obedience which is due to him who administers those laws; and since by virtue thereof he secures to us the safety of our lives, liberties, and properties, and all other advantages of Government, he may justly claim returns of duty, allegiance, and subjection.""Sec. 12.And this plainly appears by the prevailing opinions in the reign of King Edward IV., in whose reign the distinction between a Kingde jureandde factoseems first to have begun; and yet it was then laid down as a principle, and taken for granted in the arguments of Bagot's case, that a treason against Henry VI. while he was King, in compassing his death, was punishable after Edward IV. came to the Crown; from which it follows that allegiance was held to be due to Henry VI. while he was King, because every indictment of treason must lay the offencecontra ligeantiæ debitum."Sec. 13.It was also settled that all judicial acts done by Henry VI. while he was King, and also all pardons of felony and charters of denization granted by him, were valid; but that a pardon made by Edward IV., before he was actually King, was void, even after he came to the Crown.""And by the 11th Henry VII., ch. 1, it is declared 'that all subjects are bound by their allegiance to serve their Prince and Sovereign Lord for the time being in his wars for the defence of him and his land against every rebellion, power, and might reared against him, &c., and that it is against all laws, reason, and good conscience that he should lose or forfeit any thing for so doing;' and it is enacted 'that from thenceforth no person or persons that attend on the King for the time being, and do him true and faithful allegiance in his wars, within the realm or without, shall for the said deed and true duty of allegiancebe convict of any offence.'""Sec. 15.From hence it clearly follows:First, that every King for the time being has a right to the people's allegiance, because they are bound thereby to defend him in his wars, against every power whatsoever."Sec. 16.Secondly, that one out of possession is so far from having any right to allegiance, by virtue of any other title which he may set up against the King in being, that we are bound by the duty of our allegiance to resist him."
"As to the third point, who is a King within this act? [26 Edw. 3, ch. 2.] It seems agreed that every King for the time being, in actual possession of the crown, is a King within the meaning of this statute. For there is a necessity that the realm should have a King by whom and in whose name the laws shall be administered; and the King in possession being the only person who either doth or can administer those laws, must be the only person who has a right to that obedience which is due to him who administers those laws; and since by virtue thereof he secures to us the safety of our lives, liberties, and properties, and all other advantages of Government, he may justly claim returns of duty, allegiance, and subjection."
"Sec. 12.And this plainly appears by the prevailing opinions in the reign of King Edward IV., in whose reign the distinction between a Kingde jureandde factoseems first to have begun; and yet it was then laid down as a principle, and taken for granted in the arguments of Bagot's case, that a treason against Henry VI. while he was King, in compassing his death, was punishable after Edward IV. came to the Crown; from which it follows that allegiance was held to be due to Henry VI. while he was King, because every indictment of treason must lay the offencecontra ligeantiæ debitum.
"Sec. 13.It was also settled that all judicial acts done by Henry VI. while he was King, and also all pardons of felony and charters of denization granted by him, were valid; but that a pardon made by Edward IV., before he was actually King, was void, even after he came to the Crown."
"And by the 11th Henry VII., ch. 1, it is declared 'that all subjects are bound by their allegiance to serve their Prince and Sovereign Lord for the time being in his wars for the defence of him and his land against every rebellion, power, and might reared against him, &c., and that it is against all laws, reason, and good conscience that he should lose or forfeit any thing for so doing;' and it is enacted 'that from thenceforth no person or persons that attend on the King for the time being, and do him true and faithful allegiance in his wars, within the realm or without, shall for the said deed and true duty of allegiancebe convict of any offence.'"
"Sec. 15.From hence it clearly follows:First, that every King for the time being has a right to the people's allegiance, because they are bound thereby to defend him in his wars, against every power whatsoever.
"Sec. 16.Secondly, that one out of possession is so far from having any right to allegiance, by virtue of any other title which he may set up against the King in being, that we are bound by the duty of our allegiance to resist him."
And these doctrines, if the Court please, have been recently acted upon and enforced by a learned Judge in the case of the United Statesvs.The General Parkhill, tried in Philadelphia, and published in the newspapers, although not yet issued in the regular volumes of Reports.
I need not tell you, gentlemen, that what is said there of the King, applies to any other form of Government equally well, whether it be a republican form of Government, or whatever it may be. These doctrines belong to this country as well as they belong to England. They belong to every country which has adopted the common law; and what would be due to a King in the actual possession of the Government in England, under our statutes and decisions, and under the rules adopted here, would be equally due to a President of the United States in any part of the country in which we live.
I have only to call your attention, in that connection, in opening the defence, to what the condition of things was in the South at the time the acts charged in the indictment occurred. You will bear in mind there is no pretence in this case that any one of these prisoners had anything whatever to do with the initiation of this controversy,—with the overthrow or disappearance of the United States authority in those Confederate States, or with any act occurring anterior to the 2d of June, when this vessel, the Savannah, started upon her career. Nothing, so far, appears, and, in reality, nothing can be made to appear, to show any event, before that time, with which they were connected.
The question, then, is, What was the state of things existing in Charleston, and in the Confederate States, at that time? In the course of the evidence, we will lay that before you, in the completest form it can be laid. We will show you, by the official documents, by the messages of the President, by proclamations, and by the Acts of Congress themselves, that there was not an officer of the United States exercising jurisdiction in one of these Confederate States—not a Judge, or Marshal, or District Attorney, or any other officer by whom the Government had been previously administered on the part of the United States. Every one of them had resigned his office. This new Government had been formed. It was the existing Government, which had replaced the United States in all these States, long anterior to the time that this vessel was fitted out and sailed from the port of Charleston; and upon these questions, whether that was ade jureorde factoGovernment, we say it was the existing Government that was in authority over these men—that exercised the power of life and death over them, for it had Courts administering its decrees, as well as every other form and all the other insignia of power; and they were justified by overruling necessity, and by every other title, in yielding obedience to that Government, and in yielding their allegiance to it, as the cases I have read decide; and that duty enjoined upon their consciences to aid and support it by all means in their power from that time forward, until there was another Government over them.
I say, therefore, gentlemen, that this was not a commission issued by a "person, to wit, one Jefferson Davis." I say it was a commission issued by several of the States of the Union, represented, if you please, by Jefferson Davis, and by authority, in fact, from those States, and from the Government in force over them. And more than that, gentlemen, to bring the case still more clearly within the authorities I have read to you, and which you, no doubt, carry in your minds, we will show by the declarations of the Presidents of the United States—by the declaration of Mr. Buchanan, in December, 1860, and by the declaration of Mr. Lincoln, on the 4th of March, 1861—that neither of them, at either of those dates, intended to interfere, or to attempt to interfere, by force, with this existing Government. They both, publicly and solemnly, in the presence of the United States, declared that they would not attempt, by any forcible invasion of those States, to overthrow the Government established over them;—that there would be no "invasion," is the expression;—that they would leave it to the sober second thought of the people of those States, by process of time, by maturer thought and better reflection, to return, probably, to their former position under the Government of the United States. And what were men to do, in that condition of things, in the State of South Carolina, in the State of Georgia, or in any one of those States, with not an officer of the United States to protect them—with not a Court of Justice to protect them—with Courts of Justice, on the contrary, organized by the new Government, and exercising dominion of life and death, and every other dominion that Government could exercise—but to yield their allegiance to it, and from thenceforth to support it, as honest men should do, who yield their allegiance to the Government?
As I said before, in respect to this question, even if this were a voluntary act on the part of the prisoners—if they were not controlled by necessity—if they had a state of things before them which authorized them to believe that their conduct was right—that the States did nothing more than they had a right to do—they were justified in giving allegiance to the Government in existence. We have nothing to say as to the correctness of the political views or opinions of the prisoners whatever. The question is, What did these men believe—what were they taught to believe, by your own expounders of the Constitution—what did they conscientiously and sincerely believe? When they acted under this commission, did they believe that it was a legitimate authority, and had they full color for the belief which they held?
And now, gentlemen, another point that we shall maintain before you is, that under the Constitution of the United States, those States had color of authority to grant this commission; and that the executive government of the State had the jurisdiction to decide, for all the citizens of the State, whether the emergency for taking hostile proceedings against the General Government had arrived, or not. And I know that, in saying that, I am speaking to this Jury an unpalatable doctrine, at the present day; but it is a doctrine which is amply borne out by the cotemporaneous expositions of the Constitution, penned by its own framers, by the decisions of the Courts, and by authorities on which we are accustomed to rely for questions of that character.
Now, the Constitution of the country is a complex one. There are two sovereigns in every State, exercising allegiance over the inhabitants of the State. The one sovereign is the United States of America, and the other sovereign is the State in which the citizen lives. And when I say that, I am speaking in the language of the Supreme Court of the United States itself, over and over repeated, as late as the 21st of Howard's Reports (but a few removes, I believe, from the last volume issued from that Court), without a dissenting voice. The theory of our Government is, that the States are sovereign and independent, and that, in coming into the Union, they have retained that sovereignty and independence for every purpose, and in every case, except those in which an express grant of power has been made to the Government of the United States, either in express words, or by necessary implication; and the Courts have held, over and over again, that any act of the General Government of the United States, which transcends the express grant of power made by the Constitution, is absolutely void, to all intents and purposes whatever.
And more than that, gentlemen, the citizen of a State cannot only commit treason against the United States, or other kindred political offences; but he can, in like manner, commit treason against the State in which he lives, or other kindred political offences against its government.
The Constitution of the United States defines treason to be, "levying war against the United States, or adhering to their enemies, giving them aid and comfort." The Constitution of the State of New York defines treason against the State of New York to be, "levying war against the State, or adhering to its enemies, giving them aid and comfort." The Constitution of South Carolina defines and punishes treason against the State, in the language of the old English statute, bringing it to precisely the same thing.
As I said, therefore, the citizen of New York or the citizen of South Carolina (because, whether in one or the other locality, it is the same thing) is under two sovereigns, owing allegiance to each of them—the sovereign State in which he is, owning the whole mass of residuary power (as it has been happily expressed in the decisions of the Court) beyond the express, limited power granted to the Federal Government by the Constitution of the United States.
I want to call your attention to another thing, as I go along with this line of the argument. I contend that, among the powers which have been delegated to the State governments by the Constitutions of the States, is the power in the executive government of the State, co-ordinately with the General Government, to decide whether itself or the General Government has transcended the line which bounds their respective jurisdictions, upon any case in which a collision may arise between them, which affects the public domain of the State, or the whole State, or its citizens, considered as a body politic. And you will see, in a moment, the reason why I state my proposition in that way.
You have all heard of what, in the history of the country, has been callednullification, and you probably all understand very nearly what that is. Bynullification, as it has been spoken of in the history of our country, was meant the claim on the part of a State, by a convention of its people, or otherwise, to decide that the laws of the United States should not operate within its limits upon its citizens, in cases where the law could legitimately operate upon individual citizens. Because you will all recollect that the laws of the United States, in their operation throughout the Union—their criminal laws, laws for the collection of duties, and similar laws—operate upon individual citizens, without reference to whether they are citizens of one State or another. The law operates upon them as people of the United States. And therefore, if you are carrying on business in the port of New York, and a consignment comes to you, it is a question between you as a citizen of the United States and the Government whether the tariff, under which duties are attempted to be collected is valid, as between you and the Government, or not—whether it was legitimate for Congress to pass that tariff; and, in all cases arising on these subjects, the Constitution has provided a tribunal, an arbiter, which is supreme and final, without any appeal. For instance, if you deny the validity of the law under which duties are attempted to be collected upon the goods imported by you, and the Collector attempts to collect them, you refuse to pay, or pay under protest,—and the case must come into the District Court of the United States; and if the Court decides that the law was unconstitutional, you get immediate redress; if it decides that it was constitutional, the question can be carried to the Supreme Court of the United States, and there finally settled. And, therefore, I say that in all cases that come within the purview of the judicial department of the Government, the laws of the United States, as administered by the Courts, and their decisions, bind the citizens of the States in every part of the land.
But, gentlemen, there are an immense class of cases constantly arising where no opportunity can ever be presented to a Court to pass upon them, which were never intended to be passed upon by a Court, which are cases of collision between the executive department of the General Government and the State government in matters, as I expressed it to you before, affecting the public domain, or the State or its citizens as a body politic. As laid down by the expounders of the Constitution of the United States, that instrument is one to which the States are parties, as well as the people of the United States and people of each State.
Suppose a case of this kind. It is not a case likely to arise; but every case may arise, as we have been sadly admonished by the events of the last few months. Suppose we had a President in the executive chair at Washington who was a citizen of the State of Massachusetts, and greatly interested in the prosperity of the commerce of the City of Boston; and suppose that, being a wicked man (for wicked men have been sometimes elected to offices in this and every country), he had conceived the iniquitous design of ruining the commerce of New York, for the purpose of benefiting the commerce of the City of Boston; and suppose, in the prosecution of that wicked design, without the pretense of authority to do so under the Constitution of the United States, without a pretense that Congress had passed any law authorizing him to do anything of the kind, he should station a fleet of vessels, by orders to the commander of his squadron, off the harbor of New York, and should say, from this day forward the commerce of the port of New York is hermetically closed, and the commerce which has formerly gone to New York must go to Boston. Is the State of New York, under a condition of things of that kind, to submit to the closing of her commerce, to her ruin and destruction? Can she get before the Courts for redress against such an infringement of the Constitution by the President? How is she to get there? She cannot go to the Supreme Court of the United States, for in the Courts of the United States there is no form of jurisdiction by which the question can be brought before the Courts by any possibility whatever; and New York is a sovereign and independent State, and, so far as she has not conceded jurisdiction to the United States by the Constitution, has a right to exercise every sovereign and independent power that she has.Thereis a case, therefore, in which the Courts of law can afford no redress,—in which the Constitution has erected no common arbiter between the General Government and the government of the State.
Who, then, is the arbiter in such a case? Why, gentlemen, the books have expressed it. It is the last argument of Kings—it is the law of might; and in case of a collision of that kind, I maintain before you, upon this trial, that the State has a right to redress herself by force against the General Government; that she has a right, if necessary, to commission cruisers, to drive the squadron away from the port of New York; and she has a right, if more effectual, to commission private armed vessels to aid in driving them away, or to capture or subdue them. There being no common arbiter between her and the General Government in a case of that kind, she has a right to use force in redressing herself, and to take the power into her own hands.
And the authorities are uniform upon that subject. I have been obliged to detain you so long that I shall not read them to you; but I have them collected before me, and in the future discussions which may take place before the Court I shall be able to show that that right was maintained by Hamilton, one of the most distinguished members of the Convention who helped to frame the Constitution, and the strongest advocate of placing large powers in the hands of the Federal Government; by Madison, Jefferson, and all the Fathers of the Constitution, and by all who have written upon the subject; that it is a doctrine which has been asserted by the Legislature of the State of New Jersey, and, indeed, by the State Legislatures of all the States, pretty much, in which the question has arisen—that the Supreme Court of the United States have themselves over and over again declared that the only safeguard that existed, under the Constitution, against the right of the State to come into collision with the General Government, in all cases whatever, was the existence of the judiciary power, in cases where that was applicable between them, and that in all cases where that judiciary power failed, they were left to the law of nature and the might of Kings to redress themselves.
Now, gentlemen, if I am right in that step in my argument,—if that right would exist at any time or under any circumstances,—there must be some authority, in the State that has the jurisdiction, to decide for the citizens of the State when that occasion has arisen; and there must be some authority in the United States which has a right to decide for the Government of the United States when that occasion has arisen; whose decision (that is, in the General Government) is binding for the people of all the States, except the State in collision with the Federal Government and which makes a contrary decision; and whose decision, in that State, is an authority and protection for all the citizens of that State.
I say to you, moreover, gentlemen, that that right, under the law of nature, to resist the attempted usurpation of a power which has not been granted by the Constitution, resides, in a State, in the executive government, and necessarily in the Governor of the State; because you will recollect one of the premises upon which we started was, that all the residuary power in the government, beyond what had been expressly ceded to the Government of the United States by the Federal Constitution, is, by the Constitution, reserved to the State; and the Governor of the State is the sentinel upon the watch-tower for the protection of the rights of the State. He is placed in that position to watch the danger from afar. He communicates with the General Government. Any steps taken having reference to the State, pass under his inspection; and he alone has the materials within his reach for knowing the circumstances and deciding upon the facts in regard to the question whether the General Government is acting within the constitutional limit of its powers, or whether it is guilty of any usurpation of power, in any claim of authority it makes with reference to the affairs of the State. Because, in the case I have supposed, of a President elected from the State of Massachusetts, seeking to destroy the commerce of New York, and stationing a fleet off the harbor, it is not likely that a President who was guilty of such wickedness would avow that he did it for the purpose of building up the commerce of Boston and destroying that of New York. No; he would say that he had notice of a hostile invasion—a fleet leaving the coast of Great Britain or of some other maritime power to make a descent upon New York,—that he had notice of some threatened injury to New York, which would make it necessary to station a fleet there, and to prevent vessels from entering or leaving. The Governor alone would have the means of ascertaining whether there was any foundation in truth for that, or whether it was a mere pretence to cover his iniquitous purpose; and in determining the case whether the Federal Government is exceeding its power or not, or acting within the constitutional limit of its power, the Governor has to deal with a compound question of law and fact. He must first read the Constitution of the United States, and ascertain its grant of power, and then compare that with the facts as presented to him; and upon that comparison the jurisdiction is placed in him to decide whether the act of the General Government is within its power, or a transgression of it.
He decides the question, and what more have we then? He is, by his office, commander-in-chief of the military and naval forces of the State; for the State can have both military and naval forces. It has its militia at all times. It is authorized expressly by the Constitution to keep ships of war, in time of war. There is, certainly, a prohibition in the Constitution of the United States against a State granting letters of marque; but that is a prohibition against its granting letters of marque in a war against foreign States; it has no reference whatever to any possible collision that may take place between the State and the Federal Government. And that rule is laid down byGrotiusandVattelboth; for they both maintain and assert the right of the people, under every limited Constitution, in the case of a palpable infringement of power by the chief of the State, forcibly to resist it; andGrotiusputs the case of a State with a limited Constitution, having both a King and a Senate, in which the power of declaring war was in express terms reserved to the King alone, and he says that by no means prevents the Senate, in case of an infringement of the Constitution by the King, from declaring and making war against him; because the phrase is to be understood of a war with foreign nations and not of an internal war. I say, therefore, that in a case of that kind—a palpable infringement by the General Government of the Constitution—the Governor of the State, in the first place, has the only means and the only right of deciding whether that infringement has taken place.
In each State the Governor is commander-in-chief of the naval and military forces; he has a right to give military orders to citizens; he has a right to order them to muster in the service of the State; and if they disobey him they can be punished the same as they can in any civilized country.
And more than that: suppose a case arises of that kind, in which the General and State Governments come into forcible collision, and suppose a citizen should take arms against the State; there is the law of the State which punishes for treason every citizen of the State who adheres to its enemies, giving them aid and comfort; and, under the theory of the prosecution, if he adheres to the State, and the Federal Government should happen to be the victor in the contest, there is the law of the Federal Government which punishes him for adhering to the State. So that the poor citizen of the State, if this theory be correct, is to be punished and hanged, whichever party may succeed in the unhappy contest.
But, gentlemen, the law perpetrates no such absurdity as that; for the very moment the doctrine for which I contend is admitted, the citizen, in a conflict like that between the Federal Government and the State, is not liable to be considered a traitor or punished as such, let him adhere to which of the two parties he pleases, in good faith. The reason of which is clear. He is the subject of two sovereigns,—the one the Federal Government and the other the State in which he lives. Either of these sovereigns has jurisdiction to decide for him the question whether the other is committing a usurpation of power or not; and it inevitably follows that if these two sovereigns decide that question differently, the citizen is not to be punished as a traitor, let him adhere to which he pleases in good faith. And I submit to you, gentlemen, that is the only doctrine, under the Constitution of the United States, and under our complex system of government, which can be admitted for a moment. I will give you a confirmation of that. I have already stated to you the clause of the Constitution of the United States which defines the punishment of the crime of treason against the United States,—and by looking at the reports of the debates in the Convention which adopted the Constitution, you will find that the clause, as originally reported to the Convention, read: "Treason against the United States shall consist in levying war against the United Statesor any of them, or in adhering to the enemies of the United States,or any of them, giving them aid and comfort,"—and the clause, as reported, was amended by striking out the words, "or any of them," and making it read: "Treason against the United States shall consist in levying war against them or in adhering to their enemies," &c. Therefore, under our Constitution, treason against the United States must be levying war against all the States of this Confederacy. It does not mean the Government. The amendment which I have spoken of shows it must be an act of hostility which is, in judgment of law, an act of hostility against all the States of the Union. Therefore I say that a citizen who owes allegiance to a State of the Union, when he acts in good faith, under the jurisdiction of one of the sovereigns to whom he owes allegiance—to wit, the State—does not levy war against the United States. He levies war against the Government which claims to represent him, in that case,—his other sovereign, to whom he equally owes allegiance, deciding that that Government is committing an usurpation of power; and he is acting under the authority of those in whom he rightly and justly reposes faith,—to whom has been delegated the right to decide; and however the Governor of the State may be punished by impeachment, if he has acted in bad faith, the citizen cannot be subject to the halter for doing that which he was under a legal obligation to do.
Then, gentlemen, to show the application of the rule for which I have been contending—and with the necessary details of which I fear I must have wearied you—to the case in hand: The moment it is conceded that any possible case can arise in which a State would have the right to resist by force the General Government,—the moment it is conceded that it is the Governor of the State, who, co-ordinately with the President of the Union, has a right to decide that question for himself,—then I say we have nothing whatever to do with the question, whether, under the unhappy circumstances which have arisen, the Governor of the State, or of any of the States, decided right or wrong. We know they did claim that the General Government was usurping power which did not belong to it. In fact, I think we have the confession of the President of the United States that, with an honest heart and with honest purposes, which I believe have actuated him all through, he has, as he says, for the preservation of the Union, the hope of humanity in all ages, and the greatest Government, as I shall ever believe, that man has ever created,—that he has been compelled to, and did, usurp power which did not belong to him. President Buchanan, before and after this controversy arose, asserted plainly and unequivocally that he had searched the Constitution and laws of the United States for the purpose of finding any color of authority for the invasion of a State by military force, or the using of force against it; and that he could find no such warrant in the Constitution. He was right. There was nothing of the kind in the Constitution; but he failed to see (in my humble judgment) that the law of nature gave him the power to enforce the legitimate authority of the Union, as it gave to the State government the power to repel usurpation. President Lincoln, when he assumed the reins of power, admitted that there was a doubt on that subject. He declared at first that it was not expedient to exercise that power, and that he would not exercise it. He changed his mind afterwards, and did exercise it; and on the 13th of April he issued a proclamation calling for 75,000 volunteers, the first duty assigned to whom, as he stated in his proclamation, would be to invade the Southern States, for the purpose of recapturing the forts and retaking the places that had passed out of the jurisdiction of the United States. And in a subsequent proclamation he declared that he had granted to the military commanders of these forces, without the sanction of an Act of Congress, authority to suspend the writ ofhabeas corpus, within certain limits and in certain cases, in those States. And he makes the frank admission that, in his own belief at least, some of the powers which he had found himself compelled to exercise were not warranted in the Constitution of the United States.
Now these acts of hostility complained of in the indictment took place long subsequent to that. This proclamation was in the month of April. These commissions were not issued, and the Act of the Confederate States to authorize their issue was not passed, until some time afterwards—after they had learned of this proclamation; and this commission was not granted until the month of June subsequent.
I say, therefore, a case was presented for the exercise of the jurisdiction of the Government of the United States, to decide whether it was exercising its rightful powers, under the Constitution, and for the Governor of the State to decide, for the State, that same question; and that an unhappy case of collision, ever to be regretted and deplored, had arisen between the Government of the United States and the Government of those States; and I say that the citizens of any one of those States owing the duty of allegiance to two sovereigns—to the government of their State and to the Government of the United States—had a right honestly to make their election to which of the two sovereigns they would adhere, and are not to be punished as traitors or pirates if they have decided not wisely, nor as we would have done in the section of the country where we live.
I am sorry, gentlemen, to detain you on the question; but it is a most important one—one that enters into the very marrow of this case; and we do claim that the issuing of this commission, whether on the footing of its having been issued by ade factoGovernment, or by authority from the State, considering it as remaining under the Constitution, was a commission that forms a protection to the defendants, and one which is not within the purview of the Act of 1790; because it was not, in the language of that section, a commission taken by a citizen of the United States to cruise against other citizens of the United States, either from aforeignPrince or State, or a person merely.
You will observe that if the claim of the Confederate States, that the ordinances of secession are valid, be correct, then it is true that they are foreign States; but their citizens have ceased to be citizens of the United States, and are therefore not within the purview of the ninth section of the Act of 1700.
If, on the contrary, the claim on the part of the Government of the United States, that these ordinances are absolutely void, be correct, then the States are still States of this Union, and the commission, being issued by their authority, is not a commission issued by aforeignState, and therefore the case is not within the purview of the ninth section of the Act of 1790.
I must allude very briefly, before closing, to another ground on which this defence will be placed: and that is, that conceding (if we were obliged to concede) that this was not an authority, such as contemplated, to give protection to cruisers as privateers, there was a state of war existing in which hostile forces were arrayed against each other in this country, and which made this capture of the Joseph a belligerent act, even obliterating State lines altogether, for the purpose of the argument.
But before I pass from what I have said to you on the subject of the claim of authority of the States of this Union to come into collision with the General Government, allow me to call attention to the forcible precedents shown in the history of our own glorious Revolution, when the thirteen Colonies, numbering little more than three millions, instead of thirty, separated from Great Britain. At the time when that occurred, in 1776, this very statute of 1790 was in force in England, as I have shown you. It was passed in England, if I recollect right, in 1694. The position of the thirteen Colonies towards the mother country, at that time, was precisely the position that those States which call themselves the "Confederate States" now occupy towards the General Government of the Union.
Appealing to God, as the Supreme Ruler of the Universe, for the rectitude of their intentions, and acknowledging their accountability to no other power, they had claimed to resist the usurpation of the King of Great Britain. They had not even claimed, at the time of which I speak—for I speak of the end of the year 1775 and the beginning of 1776—to declare their independence and to throw off their subjection to Great Britain. At that very early day there were very few in these Colonies that contemplated a thing of that kind, or whose minds could be brought to contemplate such an act. They had risen in resistance against what they claimed to be arbitrary power; they claimed that the King of Great Britain had encroached upon their rights and privileges in a manner not warranted by the Constitution of Great Britain. They did not claim to secede from Great Britain; they did not claim to make themselves independent of subjection to her rule; they claimed to stop the course of usurpation which, they held, had been commenced; and they proposed to return under subjection to the British crown the very moment that an accommodation should be made, yielding allegiance to the King of Great Britain as in all time before. And now, gentlemen, on the 23d March, 1776, on a Saturday, the little Continental Congress was sitting in the chamber, of which you have often seen the picture, composed of the great, wise, and good men, who sat there in deliberation over the most momentous event that has ever occurred in modern times, if we except that now agitating and convulsing our beloved country. I never heard one of those men stigmatized as a pirate. I never heard one of those men calumniated as an enemy of the human race. I have often heard them called the greatest, wisest, and best men that ever lived on the face of God's earth. I will read to you what occurred on the 23d March, 1776;—they being subjects of the King of Great Britain, and having never claimed to throw off allegiance to him, but claiming that he was usurping power which did not belong to him, and that they, as representatives of the thirteen Colonies of America, were the judges of that question and those facts, as we claim that the States are now the judges of this question and these facts. They adopted the following preamble and resolutions: