Chapter XI: Appendix (10)

"But ambitious encroachments of the Federal Government on the
authority of the State governments would not excite the opposition
of a single State, or of a few States only. They would be signals
of general alarm. Every government would espouse the common cause;
a correspondence would be opened; plans of resistance would be
concerted; one spirit would animate and conduct the whole. The same
combination, in short, would result from an apprehension of the
_federal_ as was produced by the dread of a _foreign_ yoke; and,
unless the projected innovations should be voluntarily renounced,
the same appeal to a trial of force would be made in the one case
as was made in the other. But what degree of madness would ever
drive the Federal Government to such an extremity? * * * But what
would be the contest in the case we are supposing? Who would be the
parties? A few Representatives of the people would be opposed to
the people themselves; or, rather, one set of Representatives would
be contending against thirteen sets of Representatives, with the
whole body of their common constituents on the side of the latter.
The only refuge left for those who prophesy the downfall of the
State governments is the visionary supposition that the Federal
Government may previously accumulate a military force for the
projects of ambition. * * * Extravagant as the supposition is, let
it, however, be made. Let a regular army, fully equal to the
resources of the country, be formed, and let it be entirely at the
devotion of the Federal Government; still it would not be going too
far to say that the State governments, with the people on their
side, would be able to repel the danger. The highest number to
which, according to the best computation, a standing army can be
carried in any country, does not exceed 1/100th of the whole number
of souls, or 1/25th part of the number able to bear arms. This
proportion would not yield to the United States an army of more
than 25 or 30,000 men. To these would be opposed a militia
amounting to near 500,000 citizens, with arms in their hands,
officered by men chosen from among themselves, fighting for their
common liberties, and united and conducted by governments
possessing their affections and confidence."

I shall not spend the time of your honors by reading the Virginia and Kentucky resolutions--the one the production of James Madison, and the other of Thomas Jefferson--with which you are so familiar. They fully bear out the doctrine for which I contend, and much more than I contend for. I wish, however, to read, from the American State Papers, vol. 21, p. 6, a series of resolutions adopted by the Legislature of Pennsylvania, on the 3d April, 1809. They are as follows:

"_Resolved_, by the Senate and House of Representatives of the
Commonwealth of Pennsylvania:

"That, as a member of the Federal Union, the Legislature of
Pennsylvania acknowledges the supremacy, and will cheerfully submit
to the authority, of the General Government, as far as that
authority is delegated by the Constitution of the United States.
But while they yield to this authority, when exerted within
constitutional limits, they trust they will not be considered as
acting hostile to the General Government _when, as the guardians of
the State rights_, they cannot permit an infringement of those
rights by an unconstitutional exercise of power in the United
States Courts.

"_Resolved_, That in a Government like that of the United States,
where there are powers granted to the General Government and rights
reserved to the States, it is impossible, from the imperfection of
language, so to define the limits of each that difficulties should
not sometimes arise from a collision of powers; and it is to be
lamented that no provision is made in the Constitution for
determining disputes between the General and State Governments by
an impartial tribunal, when such cases occur.

"_Resolved_, That, from the construction which the United States
Courts give to their powers, the harmony of the States, if they
resist the encroachments on their rights, will frequently be
interrupted; and if, to prevent this evil, they should on all
occasions yield to stretches of power, the reserved rights of the
States will depend on the arbitrary powers of the Courts.

"_Resolved_, That should the independence of the States, as secured
by the Constitution, be destroyed, the liberties of the people in
so extensive a country cannot long survive. To suffer the United
States Courts to decide on State rights, will, from a bias in favor
of power, necessarily destroy the federal part of our Government;
and, whenever the Government of the United States becomes
consolidated we may learn from the history of nations what will be
the event."

To prevent the balance between the General and State Governments from being destroyed, and the harmony of the States from being interrupted--

"_Resolved_, That our Senators in Congress be instructed, and our
Representatives be requested, to use their influence to procure
amendment to the Constitution of the United States, that an
impartial tribunal may be established to determine disputes
between the General and State Governments; and that they be
further instructed to use their endeavors that, in the meantime,
such engagements may be made between the Governments of the Union
and of the State as will put an end to existing difficulties."

Those resolutions were transmitted to Congress by President Madison. They were never acted upon.

My next reference is to the Remonstrance of the State of Massachusetts against the War of 1812, adopted June 18th, 1813--from the _American State Papers_, vol. 21, page 210:

"The Legislature of Massachusetts, deeply impressed with the
sufferings of their constituents, and excited by the apprehension
of still greater evils in prospect, feel impelled by a solemn sense
of duty to lay before the National Government their views of the
public interests, and to express, with the plainness of freemen,
the sentiments of the people of this ancient and extensive
Commonwealth.

"Although the precise limits of the powers reserved _to the several
State sovereignties_ have not been defined by the Constitution, yet
we fully concur in the correctness of the opinions advanced by our
venerable Chief Magistrate, that our Constitution secures to us the
freedom of speech, and that, at this momentous period, it is our
right and duty to inquire into the grounds and origin of the
present war, to reflect upon the state of public affairs, and to
express our sentiments concerning them with decency and frankness,
and to endeavor, so far as our limited influence extends, to
promote, by temperate and constitutional means, an honorable
reconciliation. * * * _The States, as well as the individuals
composing them, are parties to the National Compact; and it is
their peculiar duty, especially in times of peril, to watch over
the rights and guard the privileges solemnly guaranteed by that
instrument._"

There were also a set of resolutions, which I will not take time to read, passed by the Legislature of New Jersey, November 27th, 1827, which will be found in the _American State Papers_, vol. 21, page 797. They were based upon the then prevalent opinion that the Constitution had not conferred upon the Supreme Court of the United States the power to decide disputed questions of boundary, or similar questions, between States of the Union, and proposed an amendment to remedy that difficulty, expressly recognizing that the right to resort to force in such cases necessarily resulted from the omission. The decision of the Supreme Court, in the case of _Rhode Island_ vs. _Massachusetts_, that it possessed that jurisdiction, conjured that danger. The greater one, however, of there being no tribunal to administer justice between the federal and State sovereignties, remains.

I will also refer to one other resolution, passed by the Legislature of the State of New York, on the 29th January, 1833, upon the Nullification Ordinances, as they were called:

"_Resolved_, That we regard the right of a single State to make
void within its limits the laws of the United States, as set forth
in the Ordinance of South Carolina, as wholly unauthorized by the
Constitution of the United States, and, in its tendency, subversive
to the Union and the Government thereof."

I do not know that any sane man will now dispute that truth; but
this follows. The present Secretary of State of the United States,
at that time a member of the Senate of this State, then moved:

"That this Legislature do adhere, in their construction of the
Constitution, to the principle that the reserved rights of the
States, not conceded to the General Government, ought to be
_maintained and defended_."

This latter resolution was indefinitely postponed.

I will not now stop to read what was said by President Buchanan, in his Message to Congress, on December 4th, 1860, as to the consequences of a refusal by the States to repeal the obnoxious laws which had been enacted. You will recollect that he said that, if that was not done, the injured States would be justified, standing on the basis of the Constitution, in revolutionary resistance to the Government of the Union. I do not need to claim that, for I have nothing to do, on this trial, with the justice of these mighty questions, debated between the General Government and the governments and people of these States. The question of their justice or injustice does not arise upon this trial. I was simply making these citations to show that, by the ablest writers cotemporaneous with the Constitution, and who performed the work of framing it--by the proceedings of legislative bodies and the decisions of the Supreme Court--the principle has been recognized that, in all cases in which jurisdiction has not been given to the judiciary over questions between the General Government and the State, they are equal, co-ordinate, each possessed of the right to decide for itself as to the excess by the other, if it is claimed that there is an excess of constitutional power, and to assert its own right or repel the encroachments of the other by force.

I say, in further confirmation of this, that the offence of treason against the United States, under the 3d section of the 3d article of the Constitution of the United States, must be a levying of war against them all. The words, "United States," in that section, mean the States, and not merely the Government of the Union. This is evident from the fact that the section, as originally reported (being sec. 2 of art. 7), read: "Treason against the United States shall consist only in levying war against the United States, OR ANY OF THEM; and in adhering to the enemies of the United States, OR ANY OF THEM," &c. (Journal of the Convention, page 221). It was amended so as to read collectively only, and not disjunctively. When, however, the act done is not under authority of a State, I concede that levying war against the General Government is levying war against all the States.

And, in this connection, I wish to refer to the proceedings, which I have hastily adverted to in opening to the Jury, upon the adoption of the section of the Constitution relating to treason. I refer to the _Madison Papers_, vol. 3, page 1370:

"Art. 7, sec. 2, concerning treason, was then taken up.

"_Mr. Gouverneur Morris_ was for giving to the Union an exclusive
right to declare what should be treason. In case of a contest
between the United States and a particular State, the people of the
latter must, under the disjunctive terms of the clause, be traitors
to one or other authority.

"_Dr. Johnson_ contended that treason could not be both against the
United States and individual States, being an offence against the
sovereignty, which can be but one in the same community.

"_Mr. Madison_ remarked that as the definition here was of treason
against the United States, it would seem that the individual States
would be left in possession of a concurrent power, so far as to
define and punish treason particularly against themselves, which
might involve double punishment."

The words, "or any of them," were here stricken out by a vote.

"_Mr. Madison_: This has not removed the difficulty. The same act
might be treason against the United States, as here defined, and
against a particular State, according to its laws.

"_Dr. Johnson_ was still of opinion there could be no treason
against a particular State. It could not, even at present, as the
Confederation now stands--_the sovereignty being in the Union_;
much less can it be under the proposed system.

"_Colonel Mason: The United States will have a qualified
sovereignty only. The individual States will retain a part of the
sovereignty._ An act may be treason against a particular State,
which is not so against the United States. He cited the rebellion
of Bacon, in Virginia, as an illustration of the doctrine.

"_Mr. King_: No line can be drawn between levying war and adhering
to the enemy, against the United States, and against an individual
State. Treason against the latter must be so against the former.

"_Mr. Sherman_: Resistance against the laws of the United States,
as distinguished from resistance against the laws of a particular
State, forms the line."

_Mr. Ellsworth_, afterwards Chief Justice of the Supreme Court of the United States, closed the debate in these memorable words:

"The United States are sovereign on one side of the line dividing
the jurisdictions; the States, on the other. _Each ought to have
power to defend their respective sovereignties._"

Now, if your honors please, it will probably be attempted to be answered to the argument, that by section 10 of article 1 of the Constitution of the Union, the States are forbidden to enter into any treaty, alliance, or confederation, or to grant letters of marque and reprisal; or, without the consent of Congress, to enter into any agreement or compact with another State; or to engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. This does not conflict with, but, on the contrary, confirms, the views I have presented, for the following reasons:

The prohibition against entering into any treaty, alliance, or confederation, and against granting letters of marque and reprisal, has clearly no reference whatever to the relations which the States of the Union sustain to each other. It refers solely to their relations towards foreign powers.

I beg to cite, upon that subject, from Grotius, Lib. 1, chap. 4, sec. 13. He says:

"In the sixth place, when a King has only a part of the
sovereignty, the rest being reserved to the people, or to a Senate,
if he encroaches upon the jurisdiction which does not belong to him
he may lawfully be opposed by force, since in that regard he is not
at all sovereign. This is the case, in my opinion, even when in the
distribution of the sovereign power the power of making war is
assigned to the King. _For the grant of such a power must in that
case be understood only in its relation to wars with foreign
powers, those who possess a part of the sovereignty necessarily
having at the same time the right of defending it_; and when a
necessity arises of having recourse to forcible resistance against
the King, he may, by right of war, lose even the part of the
sovereignty which incontestibly belonged to him."

I say, then, in the next place, that if any of the States, having come into collision with any of their sister States, or with the General Government, and being threatened with invasion or overthrow in the contest, resort to letters of marque as a means of weakening their adversary, and thereby preventing or retarding the threatened invasion, their right to do so is not at all affected or impaired by that provision of the Federal Constitution. The right of resistance includes it as well as every other means of rendering resistance effectual.

So also with regard to the prohibition against entering into any treaty, alliance, or confederation, which is coupled with the prohibition against granting letters of marque in the first paragraph of the tenth section. That that prohibition is restricted to compacts or agreements with foreign powers, is manifest from the whole structure of the section.

The second paragraph of the section provides that no State shall, without the consent of Congress, enter into any agreement or compact with another State. It follows that, conceding the invalidity of the State acts of separation from the Union, which the whole of the preceding argument admits, the Confederation of the States claiming to have separated is not valid against the authority of the Union; but the individual States, in ratifying the Constitution of the so-called Confederate States, have done more than to make an agreement or compact with each other. Each one of them, separately, has conferred upon the same agent the authority to issue the commission in question, as its act.

Moreover, this second paragraph of the tenth section strongly confirms the doctrine of the right of forcible resistance of the States in the Union. It permits a State, without the consent of Congress, to engage in war when actually invaded, or in such imminent danger as will not admit of delay. This, it will be remembered, is in the paragraph of the section imposing restrictions upon the States, and clearly justifies forcible resistance, rising even to the dignity of war, by one State, to aggressive invasion, from another or others, when the danger is so imminent that it will not admit of delay.

The same paragraph also permits individual States to keep troops and ships of war, in time of war. The word "troops" here is evidently used in the sense of regular troops, forming an army, in contradistinction to the ordinary State militia.

To apply, then, these principles to the facts of this case: The President of the United States had, by proclamation, on the 15th April last, called for military contingents from the various States of the Union, to put down resistance to the exercise of federal authority in the State of South Carolina and other Southern States.

Those States had, by their Legislatures and Conventions of their people, decided that a proper case for resistance to the federal authority claimed to be exercised within their borders had arisen, and had authorized and commanded such resistance.

The 5th section of the Act of July 13th, 1861, and the President's Proclamation of August 16th, under that Act, concede that the resistance was claimed to be under authority of the State governments; that that claim was not disavowed by the State governments; and Congress thereupon legislated, and the President exercised the authority vested in him by the Act, on the assumption that such was the fact,--prohibiting commercial intercourse with those States, authorizing captures and confiscations of the property of their citizens without regard to their political affinities, and placing them, as we contend, in all respects, upon the footing of public enemies.

They were, moreover, threatened with immediate invasion. The Proclamation of the President assigned, as their first probable duty, to the military contingents called for from other States, to repossess the Federal Government of property which it could not repossess without an actual invasion of the discontented States.

The Congress of the Union was not then in session. It had adjourned, after having omitted to confer upon the Federal Executive the power to resort to measures of coercion, which had been under discussion during its sitting.

The commission in question was issued as one of the measures of forcible resistance to this exercise of federal power, claimed--whether rightfully or wrongfully, is not the question here--to be unlawful by the governments of all the States against which it was directed, and to which those governments enjoined forcible resistance upon, and authorized it by, their citizens.

I contend, therefore, that whether the action of the Federal Government or of the State government was justifiable or unjustifiable, no citizen of any of the States which authorized and enjoined such resistance is criminally responsible, whether he espoused one side or the other in the unhappy controversy, either to the General Government or to the government of the State of which he is a citizen, so long as he acted in good faith, and in the honest belief that the government to which he adhered was acting within the legitimate scope of its constitutional powers. We contend that every sovereign has necessarily power to defend its sovereignty, and to decide the mixed question of law and fact as to whether it has been infringed; that there can be no sovereign, or defence of sovereignty, without subjects to whom the sovereign's mandate and authority are a protection; and that as one sovereign cannot lawfully punish another, who is his equal, by personal pains and penalties, for resistance, after he is subdued, so neither can punish the subject of both who, in good faith and under honest convictions of duty, adhered to either in the struggle.

Now, if your honors please, I pass to the next proposition, which is:

That the defendants, who are citizens of the States calling themselves Confederate States, cannot be convicted under this indictment, if they in good faith believed, at the time of the capture of the Joseph, that the political _status_ of those States, as members of the Federal Union, had been legally terminated, and that they had thereby ceased to be citizens of the United States, and made the capture in good faith, under the commission in evidence, as a belligerent act,--such States being, as they supposed, at war with the United States.

It is not necessary for me, if your honors please, to enlarge upon that. I rely, for that proposition, on the same authorities that I have already cited to the point, that robbery or piracy cannot be committed, unless it is committed with felonious or piratical intent. But I say, with reference to the validity or invalidity of those acts of separation from the Union, that the counsel for the prisoners, whatever their private convictions may be, are not at liberty to concede their invalidity, so long as that concession may affect the lives of their clients. Their validity has been maintained by some of the ablest lawyers of the country, and in the Senate of the United States itself, and by all the authorities, legislative, executive and judicial, of the States which have adopted them. If, as they undoubtedly did, the prisoners _bona fide_ believed in their validity, the argument in favor of the protection afforded by the commission, or, by what comes to the same thing, the absence of criminal intent, becomes so much the more irresistible. And even though wholly invalid, such illegal action could not deprive the citizen of the State of the shield and protection afforded him by the action of the State government authorizing resistance, and regarded as still continuing a member of the federal Union.

The next proposition is:

That under the state of facts existing in South Carolina, as established by the public documents and other evidence in the cause, those administering the Government of the so-called Confederate States constituted the _de facto_ Government which replaced the Government of the United States in those States before and at the time of the commission of the acts charged in the indictment; and the defendants who are citizens of those States were justified by overpowering necessity in submitting to that Government, in yielding their allegiance to it, and thenceforth in actively aiding and supporting it; and that the capture of the Joseph, having been a belligerent act in a war between such _de facto_ Government, and the people of the States which had submitted to its authority on the one side, and the United States on the other, such defendants cannot be convicted under this indictment.

Now, with reference to that, allow me to call your honors' attention to but a single authority, in addition to those which I cited in my opening remarks to the Jury. It is the case of _The United States_ vs. _The General Parkhill_, decided by Judge Cadwalader, in the United States District Court, in Philadelphia, in July, 1861. He says:

"The foregoing remarks do not suffice to define the legal character
of the contest in question. It is a civil war, as distinguished
from such unorganized intestine war as occurs in the case of a mere
insurrectionary rebellion.

"Civil war may occur where a nation without an established
Government is divided into opposing hostile factions, each
contending for the acquisition of an exclusive administration of
her Government. If a simple case of this kind should occur at this
day, the Governments of the nations not parties to the contest
might regard it as peculiarly one of civil war. As between the
contending factions themselves, however, neither could easily
regard their hostile opponents in the contest otherwise than as
mere insurgents engaged in unorganized rebellion. Thus, in the
language of Sir M. Hale, every success of either party would
subject all hostile opponents of the conqueror to the penalties of
treason. A desire to prevent the frequency of such a result was the
origin of the rule of law, that allegiance is due to any peaceably
established Government, though it may have originated in
usurpation. The statute of 11 H. 7, c. 1 (A.D. 1494), excusing an
English subject who has yielded obedience, or who has even rendered
military service to a Ruler who was King in fact, though not in
law, was declaratory of a previous principle of judicial decision."

After referring to Bracton, Coke, Hawkins, and Foster, the learned Judge proceeds:

"It has already been stated that a King in whose name justice was
administered in the Courts of law was usually regarded as in actual
possession of the Government.

"Civil war of another kind occurs where an organized hostile
faction is contending against an established Government, whose laws
are still administered in all parts of its territory except places
in the actual military or naval occupation of insurgents or their
adherents.

"In such a case the question has been, whether a place in the
actual military occupation of the revolutionary faction, or of its
adherents, may, under the law of war, be treated by that Government
as if the contest was a foreign war and the place occupied by
public enemies. In the case of a maritime blockade of such a place,
the affirmative of this question was decided in England, in the
year 1836. It had previously been so decided by the Supreme
Tribunal of Marine, at Lisbon (3 Scott, 201; 2 Bingh., N.C., 781)."

Judge Cadwalader then refers to Grotius (Proleg., sec. 23), citing with approval the statement by Demosthenes of the rule of public law in the case of the invasion by Deiopeithes, the Athenian commander in the Chersonese, of the dominions of Philip of Macedon, who had sent a military force to the relief of Cardia, when sought to be reduced to submission by Deiopeithes--that wherever judicial remedies are not enforceable by a Government against its opponents, the proper mode of restoring its authority is war,--and continues:

"This doctrine is of obvious applicability to civil war of a third
kind, which occurs where the exercise of an established
Government's jurisdiction has been revolutionarily suspended in
one or more territorial Districts, whose willing or unwilling
submission to the revolutionary rule prevents the execution of the
suspended Government's laws in them, except at points occupied by
its military or naval forces. The present contest exemplifies a
civil war of this kind. It was also, with specific differences,
exemplified in the respective contests which resulted in the
independence of the United Netherlands and of the United States."

He then proceeds:

"Within the limits of two of the States in which so-called
ordinances of secession have been proclaimed the execution of the
laws of the United States has not been wholly suppressed. They are
enforceable in the Western Judicial District of Virginia, and
perhaps in the adjacent Eastern Division of Tennessee. In the
other nine States which profess to have seceded, including South
Carolina, those laws are not enforceable anywhere.

"The Constitution of the United States prohibits the enactment by
Congress of a bill of attainder, and secures, in all criminal
prosecutions, to the accused, the right to a speedy public trial,
by Jury of the State and District wherein the crime shall have
been committed, which District must have been previously
ascertained by law. Therefore if a treasonable or other breach of
allegiance is committed within the limits of one of these nine
States, it is not at present punishable in any Court of the United
States. This was practically shown in a recent case (Greiner's
case, _Legal Intelligencer_, May 10, 1861). War is consequently
the only means of self-redress to which the United States can, in
such a case, resort, for the restoration of the constitutional
authority of their Government.

"The rule of the common law is, that when the regular course of
justice is interrupted by revolt, rebellion, or insurrection, so
that the Courts of justice cannot be kept open, civil war exists,
and hostilities may be prosecuted on the same footing as if those
opposing the Government were foreign enemies invading the land.
The converse is also regularly true, that when the Courts of a
Government are open, it is ordinarily a time of peace. But though
the Courts be open, if they are so obstructed and overawed that
the laws cannot be peaceably enforced, there might perhaps be
cases in which this converse application of the rule would not be
admitted. (1 Knapp, 346, 360, 361; 1 Hale, P.C. 347; Co. Litt. 249
_b_.)"

Now, if your honors please, the last proposition with which I am compelled to trouble you is:

That the Acts of Congress and the Proclamations of the President since the outbreak of the present struggle evidence the existence of a state of war between the Federal Government and the States calling themselves the Confederate States from a time anterior to the performance of the acts charged in the indictment, in which all the citizens of those States are involved and treated as public enemies of the Federal Government, whether they had any agency in initiating the conflict or not; and that the natural law of self-preservation, under these circumstances, justified the defendants, who are citizens of those States, in the commission of the acts charged in the indictment, as a means of weakening the power of destruction possessed by the Federal Government.

Now the counsel on the other side, from the intimation which he gave when he addressed the Court, intended to treat that subject of a _de facto_ Government, or whatever it was, on the footing of men under duress, not in danger of their lives, joining with rebels and aiding them in a treasonable enterprise. Your honors will perceive that was not the footing on which we put it at all. It was the footing on which it stood at one time, when rebellion first broke out, when forts were seized--acts which it is no part of the duty of counsel on this trial to justify or say anything about, because there is no act connected with that part of the struggle which is in evidence on this trial. But on that I wish to refer to what Judge Cadwalader said in another case--that of _Greiner_--which undoubtedly the learned counsel for the Government had in his mind when he drew that distinction. Shortly before the late so-called secession of Georgia, a volunteer military company, of which _Greiner_ was a member, by order of the Governor, took possession of a fort within her limits, over which jurisdiction had been ceded by her to the United States, and garrisoned it until her ordinance of secession was promulgated, when, without having encountered any hostile resistance, they left it in the possession of her Government. A member of this company, Charles A. Greiner, who had participated in the capture and detention of the fort, afterwards visited Pennsylvania, at a period of threatened if not actual hostilities between the Confederate States and the United States. He was arrested in Philadelphia, under a charge of treason. Your honors will very readily perceive what a difference there was between that case and this. Judge Cadwalader applies the rule in reference to that; and, speaking of this doctrine of allegiance due to a Government in fact, he says:

"This doctrine is applicable wherever and so long as the duty of
allegiance to an existing Government remains unimpaired. When this
fort was captured, the accused, in the language of the Supreme
Court, owed allegiance to two Sovereigns, the United States and
the State of Georgia (see 14 How. 20). The duty of allegiance to
the United States was co-extensive with the constitutional
jurisdiction of their Government, and was, to this extent,
independent of, and paramount to, any duty of allegiance to the
State (6 Wheaton, 381, and 21 Howard, 517). His duty of allegiance
to the United States continued to be thus paramount so long at
least as their Government was able to maintain its peace through
its own Courts of Justice in Georgia, and thus extend there to the
citizen that protection which affords him security in his
allegiance, and is the foundation of his duty of allegiance.
Though the subsequent occurrences which have closed these Courts
in Georgia may have rendered the continuance of such protection
within her limits impossible at this time, we know that a
different state of things existed at the time of the hostile
occupation of the fort. The revolutionary secession of the State,
though threatened, had not then been consummated. This party's
duty of allegiance to the United States, therefore, could not then
be affected by any conflicting enforced allegiance of the State.
He could not then, as a citizen of Georgia, pretend to be an enemy
of the United States, in any sense of the word 'enemy' which
distinguishes its legal meaning from that of traitor. _Future
cases may perhaps require the definition of more precise
distinctions and possible differences under this head. The present
case is, in my opinion, one of no difficulty, so far as the
question of probable cause for the prosecution is concerned._"

Having decided that, in the present state of things, he could not commit the prisoner for trial, to be conveyed to Georgia, because there were no Courts of the United States there, and because it would be a violation of the Constitution of the United States--that he could not have a speedy trial--he decided that, under a subsequent act of Congress, he had a right to require the prisoner to find sureties to be of good behavior towards the United States.

I have thus ended what I had to say upon this subject, with but one single exception.

A great deal will be said, undoubtedly, on the part of the prosecution, here, with reference to this being a revolutionary overthrow of the Government of the United States in the States which have taken these steps. I have only to ask, in reference to that--conceding it, for the sake of argument, in its fullest extent--what was the adoption of the Constitution of the United States but a revolutionary overthrow of the previously existing Confederation? It was done by nine States, without the consent of four, whose consent was necessary, and the Government of the United States went into operation; and it was a long time before at least two of them came in under the new Government.

_Mr. Evarts_: Will my learned friend allow me to ask him, in that part of his argument which proceeds upon the right of a State, yet being a State, to justify the acts of its citizens, to explain the proposition that a State can oppose the United States, within and under the Constitution, in regard to any law of the United States about which this essential right of judgment, whether the aggression of the United States has carried it beyond the powers of the Constitution, or not, is claimed to exist?

_Mr. Larocque_: I thought I had been very explicit on that. I said, in the first place, that I had nothing to do with the question of right or wrong. I said this: That a collision had occurred between the government of the State and the Federal Government; that each being sovereign, within the limitation of its powers, had a right to judge for itself whether the occasion for such a collision had occurred, or not; that these prisoners, citizens of the States which had decided that such a case had occurred, as subjects owing allegiance to two equal and co-ordinate sovereigns, which had come into hostile collision with each other, must exercise, upon their consciences, their election to which Sovereign they would adhere; and that, whatever may be the unfortunate consequences, they are not responsible before the tribunal of the other sovereignty because they adhered to one of them; that they would be no more responsible before the criminal tribunals of South Carolina if, in this contest, they had adhered to the General Government and borne arms against their native State, than they are responsible in the tribunals of the Federal Government because, exercising their own consciences, they had adhered to the State and not to the Federal Government. I say it is like the case of a child whose parents disagree, and who is obliged to adhere either to his father or his mother; and that he violates no law of God or of man in adhering to either.

_Mr. Smith_: If the Court please, I rise for a purpose different from the remark that I wish to make in reply to the last illustration of my learned friend. I might say that the instance of a child is one very parallel to that we might have given--that the father is the superior authority, where there is a difference between two parents.

I rise, however, to present to the Court, as one of the authorities, or rather a citation which will receive its respectful consideration, the Charge of Mr. Justice Grier, in the case tried in Philadelphia; and also the opinion of Judge Cadwalader, in the same case.

_Mr. Brady:_ Who reported this?

_Mr. Smith_: I received it, by telegraph, from the District Attorney of Philadelphia; and it is also printed in a newspaper published last evening in Philadelphia. I have compared them, and the two accounts perfectly agree. I do not cite them as authority, but as entitled to the respectful consideration of the Court.

_Mr. Brady_: As, now-a-days, what the newspapers publish one day they generally contradict the next, I think any report should be taken with some grains of allowance, at least. I suppose I would recognize the style of Judge Grier.

_Mr. Blatchford_: I think you will, on examining it. It is evidently printed from the manuscript.

_Mr. Smith_ read the charge of Judge Grier in the case of the privateers tried in Philadelphia.

_Mr. Brady_: Tell me what question of fact was there left to the Jury?

_Mr. Smith_: I refer you to Judge Cadwalader's opinion, which is much longer.

_Mr. Brady_: I do not see that there was anything left for the Jury. Judge Grier decided that case,--which undoubtedly he could do, for he is a very able man.

_Mr. Sullivan_ put in evidence the log-book of the Savannah.

ARGUMENT OF MR. MAYER, OF COUNSEL FOR THE DEFENCE.

MR. MAYER said:--May it please your honors,--A foreign-born citizen now rises, on behalf of eight of the defendants, who, as it has been conceded by the prosecution, are subjects of foreign States. It might appear almost superfluous, after the full and eloquent argument of our venerable brother--I was almost tempted to say father (Mr. LORD)--for one of the junior counsel for the defence to say anything. Still, I thought it incumbent on me to anticipate a construction or interpretation which the prosecution may attempt to make, by offering, myself, a proposition. But before reading it, I will, as briefly as my proposition is brief, state my comment thereon.

Let us, in the first place, look at the aspect of the relations in which these foreigners stood at the time of their committing this alleged offence. They are all sea-faring men. Their various crafts had been locked up in the port of Charleston by the blockade there. Business, as we have heard here in evidence, was prostrated. Nothing was left for them but to enlist in the army of the Confederacy, or to become privateers. It is certainly a pity that they did not choose the first alternative; for, even if they had been caught with arms in their hands, their fate would now be far better than it is. They would not now be in jeopardy of their lives, threatened with the pains and penalties of a law that is not applicable to them. But being, as I said before, inured to the life of seafarers, they chose to become privateers.

We must, however, in judging of their act, place ourselves in their position. They were foreigners. As foreigners, they brought to this country views and notions as regards their act which are widely different from those sought to be enforced here. They knew the practice and theories of Europe in regard to their act. What are those views and theories? I can state them in a very few words, and am sorry that the authorities to which I shall refer are in a language which may not be familiar to your honors. I will, however, state their effect. It is this: Whenever a rebellion in any country has assumed such extensive magnitude as no longer to be a simple insurrection, which may be put down by police measures or regulations, but has come to such a degree that mighty armies are opposed to each other, although the revolted portion may not have been acknowledged by any nation, yet belligerent rights must be granted to it. This is the notion, or theory, which has entered into the mind of every European, to whatever State or nation he may belong. I may be permitted to quote a few historical facts to show why this is so. When the Netherland Colonies revolted against Spain the privateers of the Prince of Orange, even before he was elected Admiral General by those Colonies, were by most nations recognized. They were only not recognized by some of those nations against which they committed depredations; and it is a historical fact that a great many of those privateers commissioned by the Prince of Orange became pirates.

Another case is furnished by our own Revolution. It is known to all Europeans that, although in the beginning of the American Revolution England did not recognize the belligerent rights of America, yet, after some time, she did recognize those rights, even by a Parliamentary Act. I refer to 16 George the Third, ch. 5. The same was the case in the French Revolution; and there I may refer to a very curious fact. England recognized the privateers of the revolutionary Government of France, so far as those privateers went against other nations; but when they cruised against her own commerce she did not recognize them. She remonstrated with Denmark because Denmark had recognized them, and Denmark simply pointed to her (England's) own course.

All these facts are very well known to every European, and it is with a knowledge of these facts that every European looks upon a revolution. To express it in a very short sentence, it is the theory of "Let us have fair play."

If your honors please, I may say that this notion of belligerent rights in revolution has entered into the flesh and blood of every European to such an extent, that the only nation which does not allow, in revolution, that fair play, is despised and hated, except by these United States. I mean Russia. Russia is now very friendly towards this Union; not, however, I may be permitted to state--reversing an oft-quoted passage of Shakspeare--not because she loves Rome more, but that she loves Caesar less. It is not out of love for this country, but because the diplomatists of Russia--the farthest-seeing diplomatists of Europe--hope that England and France will interfere in the contest between these States, and that she may get an opportunity to return the compliment to these two powers which she received from them at Sebastopol. With a knowledge of these facts, and with these European theories, these foreigners, now indicted under the Act of 1790, entered into this privateering business.

They saw, as I said before, Charleston blockaded. To them a blockade is an act of belligerent rights. They saw a constitutional government adopted in the Confederate States. They never dreamed that, if they wished to embark in this privateering business, they should be treated as pirates. They knew well, as every European knows who has any knowledge of international law, that there are two kinds of piracy--piracy by international law, and piracy under municipal law--municipal piracy, or, as Mr. LORD called it yesterday, statutory piracy.

And now I refer, as to the right of one nation making anything piracy that is not piracy by the law of nations, to Wheaton, volume 6, page 85; 1st Phillimore, 381; and to 1st Kent, 195. I will not take up the time of your honors in reading all these passages, but I hold here the last work on international law. It is, however, written in the German language. It is of unbounded authority on the Continent, and has been translated into French and Greek. It is very frequently referred to by all those authors whom I have just quoted. It states this theory in two lines, which I will read to your honors in a translation:

"Laws of individual nations (as, for instance, the French law of
the 10th April, 1825) may, so far as their own subjects are
concerned, either alter the meaning of piracy, or extend its
operation; but they are not allowed to do that to the prejudice of
other States."

I refer to Hefter on Modern International Law, 4th ed., page 191.

From this we can see that there are two kinds of piracy--national piracy and municipal piracy. No State can be prevented by any law of nations from making anything piracy which that State pleases. For instance, there is a law of piracy in Spain that any person committing frauds in matters of insurance is a pirate; or that any one even cutting the nets of a simple fisherman is a pirate. I might quote other instances. In our own country the slave-trade is a piracy; but that does not make it piracy everywhere. In some of the States of Germany slave-trade is kidnapping, and is punished as such.

What, now, is the relation of these foreigners to this municipal piracy, under the indictment with which they stand charged? That it is municipal piracy, I need not say anything further, after the full argument of our friend and father, Mr. Lord. The law is very distinct. It is, "if any _citizen_ shall do so and so." But how do these men come in? Here I come to the point why I thought it fit and incumbent on me to offer my propositions. The prosecution will certainly stretch, as I said before, the construction and interpretation of the law in this way: It will say, "These men were apprehended on an American bottom, and, being on an American bottom, they were on American soil, and as, according to criminal law, they are protected by our law, so they are bound by our law." This, I apprehend, is the theory on which the prosecution will urge that these foreigners--notwithstanding the distinct expression of the law, "if any citizen"--shall be found guilty under this indictment. But as they are foreigners to this law, so is this law foreign to them. And there is a principle in criminal law which says--I read from section 238 of Bishop's Criminal Law, vol. I.--

"It is a general principle that every man is presumed to know the
laws of the country in which he dwells, or, if resident abroad,
transacts business. And within certain limits, not clearly defined,
this presumption is conclusive. Its conclusive character rests on
considerations of public policy, and, of course, it cannot extend
beyond this foundation, though we may not easily say, on the
authorities, precisely how far the foundation of policy extends. We
may safely, however, lay down the doctrine that in no case may one
enter a Court of Justice to which he has been summoned, in either a
civil or criminal proceeding, with the sole and naked defence that
when he did the thing complained of he did not know of the
existence of the law he violated. _Ignorantia juris non excusat_
is, therefore, a principle of our jurisprudence, as it is of the
Roman, from which it is derived."

This rule, so essential to the ordinary administration of justice, cannot be deemed strange in criminal cases generally, because most indictable wrongs are _mala in se_, and, therefore, offenders are still conscious of violating the law "written in every man's heart."

But--and now I refer to the note to this section, which says--"ignorance of the law of foreign countries is, with the exception noticed in the text, ignorance of fact which persons are not held to know." The author cites the following authorities: Story's Equity Jurisprudence, sections 110, 23; American Jurisprudence, sections 146 and 347; to which I would add 8 Barbour's Supreme Court Reports, 838 and 839, and the case of Rex _versus_ Lynn, 2d Term Report, 233.

Now, I contend that, as this law under which the indictment is drawn is a law creating municipal piracy, so it is a law foreign to these foreigners; that, therefore, as to them, it is a matter of fact, and, according to the criminal theory, _ignorantia facti excusat_, these foreigners cannot be found guilty under this law. Municipal piracy, to carry out the doctrine of this theory, is not _malum in se_; for, as I said before, international law does not acknowledge it as such, but is opposed to it as to foreigners; and if I understand well the decision of the Supreme Court, it is even acknowledged, in the case of the United States _versus_ Palmer, 3d Wheaton, 610, that the Congress of the United States cannot make that piracy which is not piracy by the law of nations, in order to give jurisdiction to its Courts over such offences.

Besides, this knowledge of facts enters a good deal into the theory of intent. So much has been said about the piratical intent, that I can pass this by in silence. But, with reference to the theory that foreigners are to be taken as ignorant of facts, I will give an illustration that was suggested to me this morning by an incident which occurred on my way to the Court. A little boy in the street handed to me a card of advertisement which had all the appearance of a bank note. Now, I remembered at the moment that about three years ago the Legislature of South Carolina passed a law making the issuing and publication of such advertisements--such business cards--an offence, punishable, if I am not mistaken, both by fine and imprisonment. Now suppose that the great American showman at the corner of Ann and Broadway should carry his "What is it" or Hippopotamus down to Charleston, and issue such an advertisement, and he should be brought before the Court of South Carolina; would it not be unjust, as the offence is not _malum in se_, to find him guilty? Certainly it would be; and, according to the same theory, I cannot imagine, by any possible process of reasoning, that these prisoners should be deemed guilty under an indictment, when the law was entirely foreign to them. They may justly say, as they might have known, and did perhaps know, that our country, too, holds to this simple doctrine: "Let us have fair play." So when certain provinces rose up in revolt against the parent or original Government, to conquer, as it were, their independence, this country maintained a state of neutrality, and granted to both parties belligerent rights. Many such cases have been cited; but the most striking one, I am astonished, has not been cited. I will refer to it now. It is the case of the United States against the Miramon and the Havana, tried before the District Court of New Orleans. These two steamers were commissioned vessels, belonging to an authority not only not recognized by the Government of the United States, but opposed to the Government which had been recognized by ours. They were commissioned ships of General Miramon, and were seized and libeled; yet they were released. Perhaps it would have been better for us if they had not been released, because they have since given us some trouble--one of them (the Havana) having been converted into the ubiquitous Sumter, which is rather a terror to our mercantile marine.