Chapter XIV: Appendix (13)

Gentlemen, I read this extract because it is the testimony of an eminently wise man, and an eminently just one. Such were his views at that day, and I am inclined to believe that those words spoken by him then have a better application to the state of things at present than any remarks I can make, or that can be made by any one of us who are in the midst of this whirl of excitement.

But, gentlemen, the Government has chosen to make the issue. It was at liberty to do so; and that issue is piracy.

Piracy, gentlemen of the Jury, you have heard defined by the eminent counsel who preceded me. The parties here occupy, as it were, a two-fold capacity. The eighth section of the Act of 1790 applies to piracy under the common law; the ninth section of that Act creates what we have called statutory piracy. The eighth section of the Act only alludes to piracy as it is acknowledged under the law of nations, and as known to the common law. The ninth section, however, differs from the eighth, because it applies peculiarly to citizens of the United States, and is supposed to be more enlarged in its character than the eighth section. Now, with reference to a portion of the prisoners here,--to those who are not citizens,--eight of them come entirely under the eighth section; and we shall contend that, under that section, they cannot be convicted. As regards the other four, it will be contended, that not only are they embraced by the first, but likewise by the second of these sections--that of statutory piracy, which applies peculiarly to them.

Well now, gentlemen, in regard to the eighth section, the learned counsel who very ably addressed the Court on last Saturday, stated that intent had little or nothing to do with the offence; that he did not choose to be held to the _animus fruendi_, but that the charge was the _animus furandi_, and that when a person committed robbery it was but of very little consequence to what purpose he applied the proceeds of the robbery, or for whom he committed it. Now, with all due deference to the learned counsel, I think this is putting the case rather unfairly, because he is quietly assuming the very point we are discussing; for it is the fact of the _animus furandi_--the fact whether or not this is robbery--that we are discussing.

We have distinctly said, and shown by the books, that that which he says is not the characteristic of the crime, is really its characteristic, and that intent in this, as in every other offence, peculiarly constitutes the crime.

It is just because the taking is not for the party himself--is not an appropriation for his own purpose, and for his own ends, and for his own object, that there is a difference between piracy and privateering. And why is this so? Because the party who goes forth on a privateering expedition, goes forth under the sanction of a nation. It may be a nation only _de facto_, but still it is a nation. He goes by the authority of that nation, armed with a commission under its sanction, after having given the most ample security to be responsible to the nation itself for any act of misconduct on his part; that nation holding itself out to the civilized world as responsible for every excess on the part of the citizen to whom it grants letters of marque. Well, gentlemen, the taking of property on the part of the privateer is not for himself. The taking is in the name of the State. The title which the privateer has in the captured property is no title at all, nor does he pretend to claim it. The title is in the State, and up to the very moment of condemnation, although the property may have been acquired by his blood, and by his treasure, the State has the right to release it. So important is this fact of intention, as entering into the transaction, that it has been held that no excess on the part of a person carrying letters of marque from a regular Government could be punished as piracy--the Government being liable, and he himself being referred to his own Government for punishment.

It has been even held in England, that where the act of taking a commission from a foreign prince was so unlawful in its character as to amount under the law to a felony, yet still the party having letters of marque, should not be charged with piracy.

Now, gentlemen, there was an attempt made by the learned counsel to cast odium upon privateering and upon this transaction, by speaking of these men as going out for their own plunder. Well, I have nothing to say about that; but there is one thing to be remarked: that in times of hostility the plunder does not belong to one side, nor does it belong to the privateersman alone, but the regularly armed vessels of every nation in the world, as well as privateersmen, are enriched by the capture of prizes at sea; and I suspect that the members of the bar now present can tell you how extensively our own navy has been enriched within the last few weeks by the condemnation of prizes. If the spoils derived from enemies' property be plunder, and if it be disgraceful to take it, then the highest names in England have been associated with such plunder, for you have but to look into the English books to find the name of the great and distinguished Arthur, Duke of Wellington, as connected with such cases.

But, gentlemen, there is another thing which would prevent the parties from being convicted of piracy, that is, the state of enmity existing between the two nations. It is a general rule that enemies can never commit piracy against each other, their depredations being deemed mere acts of hostility. This is as far back as the days of Lord Coke; and the rule has been carried so far as to protect the citizen of one of the belligerents, who, without any letter of marque at all, goes on the ocean and seizes the property of the enemy. It is true, it has been said that in such cases citizens act at their peril, and are liable to be punished by their own sovereign; but the enemy is not warranted in considering them as criminals.

That the people of the Confederate States, under whose commission these men have acted, stand in the light of enemies, the learned decisions of Judges Cadwalader and Betts; the blockade of the Southern ports, which is a hostile measure; the confiscation of the property of their citizens--not only of the property of the men who have arms in their hands, but of the citizens at large; the captures at sea; the vessels condemned here; the virtual dissolution of partnerships; the admission of the plea of alien enemy; the President's proclamation of non-intercourse; the arrest of citizens of those States returning from Europe; and the opinion of my learned friend, the District Attorney himself, showing that it is treason for the banks here to pay over the bank balances to Southern customers,--all these things go to establish, thoroughly and sufficiently, the condition of enmity or hostility, which forms a protection to these parties. They fix the status of war; they decide that the two powers are enemies, and that, too, without any declaration of war, for no declaration of war is needed. It seems to me that it is all useless to attempt to evade the admission that there is war. We cannot by legal enactments--we cannot by judicial decisions--we cannot by Presidential Proclamations--establish the condition of war and all the consequences of war, and yet shrink from its open avowal. And yet that is precisely what is attempted here. It may do with those that are strong to oppress their own subjects, but it will not do when you come to deal with foreign nations. When you come to deal with these eight men who are here, the subjects of foreign powers, those powers have a right to put in a word. Gentlemen, it is impossible for this Government to do less than acknowledge that, in fact, there is a state of hostility; and you may as well call it by its proper name--we are in the midst of war.

It will not do for the Government, like the ostrich, to put its head under its wing, and fancy that because it sees nobody, nobody sees it. The Government has enacted all the consequences of war without making an open or decided declaration of it. Under such circumstances, however, the status of enmity is sufficiently fixed to protect the prisoners.

But there is another test of piracy, gentlemen, and it is this--Is the privateer a universal enemy? Is he a universal plunderer? Is his hand against every man? Has he not a nation?

Now a pirate has no nation. He is an outlaw, and is justiciable everywhere. His is the law of might--

"For why? Because the good old rule
Sufficeth him: the simple plan
That they should take who have the power,
And they should keep who can."

But it is not necessary that the nation under whose commission he acts, shall be one which is already established and acknowledged among the family of nations. It may be a colony struggling for independence, and not yet recognized by the nations of the earth. Our own Courts years ago decided this case with a liberality which has eminently distinguished them, and established the principle in respect to the South American colonies--colonies at that time not acknowledged by our Government as independent nations.

So, gentlemen, it was with regard to the powers of Europe during the days of the American Revolution. Every power in the world respected the letters of marque issued by Congress; and if there is an instance of a single case in which, in any land in the civilized world, there was a criminal trial of an American privateersman, I have not been able to find it. Their letters of marque were recognized because they were the letters of a _de facto_ Government.

Now, gentlemen, what are the tests sufficient to form such a nationality as will cover these commissions? Are the Confederate States, in this instance, competent to maintain the relations of war and of peace? Gentlemen, if the South American provinces were, I think it can hardly be disputed that the people of ten great States like these certainly are. They are very far beyond them in civilization, in information, in wealth, and in all the means by which nations sustain their independence.

So important, however, is the fact of a commission, that even a commission from the Barbary powers--states which subsisted entirely, I may say, by plunder and piracy--was regarded as sufficient, in the Courts of England, to protect an Algerine who was taken with letters of marque. And that opinion comes with the authority of one of the greatest masters of the science of jurisprudence--Sir William Scott--a name that can never be mentioned without feelings of reverence by any man who respects the sentiments of justice and their application to the principles of international law. In the case I allude to, the Barbary subject was taken in an attempt to seize an English vessel. The crew was composed of foreigners, men of different nations, most of them belonging to Spain and France. It was held that as to all the rest of the parties they should be treated as outlaws, but the Algerine was allowed the plea of _respondeat superior_. In other words, he had but to point to his country, and say she was responsible; that she gave him authority, and assumed the responsibility; and upon that plea he was allowed to go. I mention this to show how far the doctrine has been carried.

But, gentlemen, if the commission from a Government _de facto_ generally is a plea in bar (and that it is, I have no doubt the Court will charge you), it certainly holds good in a case of this kind, where the authority is much less questionable. Now, are the United States bound to recognize the Confederate States as belligerents? Not as an independent nation,--that is an entirely different question. We say, gentlemen, not only that the United States are bound to recognize the Confederate States as belligerents, but we think we have shown that they have done so. The capitulation between Commodore Stringham, General Butler, and Commodore Barron, recognized the existence of a state of war, and recognized the prisoners as prisoners of war; and not one word has been said, and not one act done, by the Government, to disavow their authority in so doing. It is the principle of civilized nations--and we belong to the family of civilized nations--to recognize parties, even in the midst of civil war, as belligerents; and this country is too just, too powerful, and too elevated in sentiment, to shrink from that which civilization, decency and honor compel her to stand to. She must recognize even those who are her children--struggling against her authority though they be--as fair and honest antagonists. From the time of our own struggle, in the days of the Revolution, we professed the principles of international law. They are now a part of the law of the land. There is a moral obligation upon us to occupy our position in the great family of nations; to hold it, as we have always done, with honor and with distinguished consideration. Sorry, indeed, would I be to think that there should be, on this occasion, any eminent departure from it, as there certainly would be if these men were held in any other light than as mere privateersmen, and not pirates.

But if these principles are true, as applying between the people of this country and the people of England during the days of the Revolution,--if the mother country then considered us as belligerents where there could be no subtle political question such as may be raised here, and has already been raised--the doctrine of the two sovereignties,--there is then, at least, a reason which applies in this case, and never could have applied in that case; for the allegiance of the colonies to the mother country was firm, fixed, and undivided: it never was, and never could be, questioned.

I say, then, that these parties are not pirates; and I further say that the municipal laws of a State, or of a number of States, cannot constitute that offence to be piracy which is not so characterized by international law; and for this principle I refer to 1st Phillimore, 381 (International Law).

I come now to the 9th section, and I will read that section:

"And be it further enacted, that if any citizen should commit any
piracy or robbery aforesaid, or any act of hostility against the
United States or any citizen thereof, on the high seas, under color
of any commission of any foreign Prince or State, or on pretence of
authority from any person, such offender shall, notwithstanding the
pretence of any such authority, be deemed, adjudged, and taken to
be a pirate, felon, and robber, and on being convicted thereof
shall suffer death."

This section applies particularly to the citizens of the United States. Now, I contend that this section does not change the character of the offence. It differs only by stating that the commission shall not form a pretext. The words "piracy and robbery" explain the words "acts of hostility," which follow immediately afterwards. Where particular words are followed by general words, the latter are held as applying to persons and things of the same kind as those which precede. The coupling of words together shows that they are to be understood in the same sense. Take these two principles with the other principle, that penal statutes are to receive a strict interpretation. The general words of a penal statute must be restrained for the benefit of him against whom the penalty is inflicted.

To the same effect is the case of _The United States_ vs. _Bevins_ (5 _Wheaton_):

"Penal statutes, however, are taken strictly and literally only in
point of defining and setting down the _crime_ and the _punishment_;
and not literally in words that are but circumstances and
conveyance in the putting of the case.

"Thus, though by the statute 1 Ed. 6, C. 12, it was enacted that
those who were convicted of stealing _horses_ should not have the
benefit of clergy, the Judges conceived that this did not extend to
him that should steal but one horse, and therefore procured a new
Act for that purpose in the following year.

"But upon the Statute of Gloucester, that gives the action of waste
against him that holds _pro termino vitae vel annorum_, if a man
holds but for a year he is within the statute; while, if the law be
that for a certain offence a man shall lose his right hand, and the
offender hath had his right hand before cut off in the wars, he
shall not lose his left hand, but the crime shall rather pass
without the punishment which the law assigned than the letter of
the law shall be extended.

"A penal law, then, shall not be extended by equity; that is,
things which do not come within the words shall not be brought
within it by construction.

"The law of England does not allow of constructive offences, or of
arbitrary punishments. No man incurs a penalty unless the act which
subjects him to it is clearly both within the spirit and the letter
of the statute imposing such penalty.

"'If these rules are violated,' said Best, C.J., in the case of
_Fletcher_ vs. _Lord Sondes, 3 Bing., 580_, 'the fate of accused
persons is decided by the arbitrary discretion of Judges, and not
by the express authority of the laws. _2d Dwarris Stat., 634_.'

"By another restrictive rule of construing penal statutes, if
general words follow an enumeration of particular cases, such
general words are held to apply only to cases of the _same kind_ as
those which are expressly mentioned. By the 14 Geo. 2, C. 1,
persons who should steal sheep _or any other cattle_ were deprived
of the benefit of clergy. The stealing of any cattle, whether
commonable or not commonable, seems to be embraced by these general
words, "_any other cattle_," yet they were looked upon as too loose
to create a capital offence. By the 15 George 2, C. 34, the
Legislature declared that it was doubtful to what sorts of cattle
the former Act extended besides sheep, and enacted and declared
that the Act was made to extend to any bull, cow, ox, steer,
bullock, heifer, calf, and lamb, as well as sheep, and to no other
cattle whatsoever.

"Until the Legislature distinctly specified what cattle were meant
to be included, the Judges felt that they could not apply the
statute to any other cattle but sheep.

"The Legislature, by the last Act, says that it was not to be
extended to horses, pigs, or goats, although all these are cattle.

"3 Bingh., 581.
"2 Dwarris, Statutes, 635."

By the English law, and by the principles of general law, may it please the Court, the offence must be clearly defined--it must be limited, ascertained, fixed. It must be clear to the accuser. It must be clear to the accused. It must be equally clear to the Judge. It must leave him no discretion whereby he can enlarge or alter it. And, may it please the Court, this is the safe and true principle of construction--to give as little as possible to the discretion of the Courts; for it has been well said, that the arbitrary discretion of any man is the law of tyrants. It is always unknown; it is different in different men; it is casual, and depends on constitution, temper, and passion. In the best of us it is oftentimes caprice; in the worst of us it is every vice, folly and passion to which human nature is liable. It is by defining crime clearly that the citizen has his strongest guarantee for his personal safety. Let us see the opinion of perhaps the greatest master that ever touched the subject of jurisprudence--I mean _Montesquieu_.

"It is determined," he says, "by the laws of China, that whoever
shows any disrespect to the Emperor is to be punished with death.
As they do not mention in what this disrespect consists, every
thing may furnish a pretext to take away a man's life, and to
exterminate any family whatsoever.

"If the crime of high treason be indeterminate, this alone is
sufficient to make the Government degenerate into arbitrary
power."--_Montesquieu, Spirit, Book_ 12, _c._ 7.

Now, may it please the Court, it is through statutes in which crimes are ill-defined--are not clearly and distinctly designated--that tyrants in every age have been able to crush their victims. Hence, in the noble system of laws that it is your honors' privilege to dispense, safeguards have been put in the strongest degree, and bulwarks have been erected around the life, the liberties, and the rights of the citizen.

Now, what is an "act of hostility"? Suppose these men had gone out with a commission instructing them to go on the seas, to board vessels, and to beat the captains of vessels, and to do no more--to abandon them then, and take to their own ships--would that be an act of piracy? Is it not plain that the law meant piracy or robbery, or any "act of hostility" _ejusdem generis_, that is, _animo furandi_? To show that this construction is not forced, your honors will find in the Act of March 3d, 1825 (Dunlop's Laws, p. 723, sect. 6), that a special law was passed for the very purpose of punishing _acts of hostility_ against the United States and its citizens by _forcibly attacking_ and _setting upon vessels_ owned in part or wholly by either of them, _with intent to plunder and despoil the owners of moneys, goods_, &c., &c. If, therefore, this construction of these words, which I respectfully submit to the Court, has any weight in it, they amount to no more than what has been already decided in Clintock's case--the clear and well-settled principle of law that the commission shall not form a pretext for robbery.

But, may it please the Court, as to the ninth section of the Act, it never was contemplated as applying to organized States. It was an Act which was intended to apply to individuals alone. States are not the subjects of criminal law, nor can you legislate against them; and this has been distinctly decided. If the Confederate States have been guilty of a gross breach of faith in the attempt to withdraw from the Confederation, they may be coerced; but the citizen himself must go unpunished. They are States--recognized by yourselves as States. They are not a collection of piratical hordes; and under such circumstances the law will not apply to the citizen of any of these States who acts fairly and honestly under his commission.

The learned counsel who spoke last Saturday, referred to privateering as a relic of the barbarous age. No one agrees with the learned counsel in that respect more than I do; and from the bottom of my heart I hope that he may be yet able to take his share in banishing from the world this relic of the olden time. But, really, I see very little chance of advancement in that line, so long as a vessel of war is allowed to take private property on the seas. There should be perfect immunity for all property on the ocean belonging to individuals; but the letter of Mr. Marcy shows that we are not yet exactly up to that point.

The learned counsel stated that, before he could concede the commission in this case to be a justification, two things must be shown: First, there must be a state of war; and, second, the privateer must have received his commission from some public, national, sovereign power. Well, we think we have shown the existence of war sufficiently strongly; and as to this point, I fancy that few gentlemen of the bar can forget the pointed and admirable allusion of the learned counsel himself (Mr. Evarts), in his argument in the District Court, some time since, to the absent clerk, in illustrating the fact of the existence of war. I remember how forcibly it struck me when I read it. The decisions in the case of the South American privateers settles the point as to the nationality.

But, gentlemen, there is another subject to which I will briefly allude--that is, the abstract right of these States legally to secede. Now, gentlemen, we do not deny that there is no such right. I concede all that. Yet, still, these men have ever held different notions; and, on this subject, a line has been drawn for many years through an immense tract of this our country. The right or the wrong of it does not affect us here. You have failed to convince them, and they have failed to convince you. There is no common arbiter between you, because they contend that, being sovereigns, they cannot submit to the Courts questions between themselves and the United States. Now, they may be wrong, but have you the right to declare them so? You ought to be perfectly certain. Justice, reason, and duty prompt that there ought to be no mistake. When you hold a party for a criminal charge, there ought not to be a reasonable doubt. Is there no possibility that, in the course of the proceedings between the Federal and State Governments, you may be wrong? Does truth only consort with one side of the line, and falsehood with the other? May you not be mistaken? Look at the different lights in which, for years, you have respectively viewed various questions. See how gradually the change has been effected; and yet how stronger and stronger it has grown day by day. Can any one forget the deep and intense anxiety with which that great statesman, Mr. Clay, just before his death, regarded the division between the Methodist and Baptist Churches of the North and the South? And yet no man was a truer or firmer patriot, or an abler advocate of the Government; and no man saw with more unerring certainty that the line, sooner or later, was destined to be drawn between the two sections, unless some compromise was effected.

Now, the doctrine in which these men have been brought up may be political heresy; but, do you crush a heresy with chains? Does history not tell us how utterly vain and futile such an attempt is? Have you to go back farther than the days of James the Second, to see the attempt of that despot to enforce upon the English people a religion which they did not choose to adopt? Can you forget the bloody assizes of Jeffreys, when hundreds were carried to the block and thousands were sent into exile to all parts of the world? Can you forget the great scene, when the noble Duke of Argyle, with his head bared and his limbs in chains, was led through Edinburgh amidst the reproaches and contempt of the populace; and do you forget the cold and manly dignity with which he endured it all? And do you reflect that, with all these things, the religion of England to-day is the same as it was then? Can you expect, by a system like this, to mould the human mind as you would mould potter's clay? Oh, no! gentlemen, the human heart is a different thing; love and tenderness may melt and control it, but chains and manacles never yet subdued it. Call this piracy! why this is, indeed, confounding the order of things; and when the real piracy comes, you will feel no dislike or contempt for the offence. You give it a dignity by thus confounding it with crimes of a different nature. If these men are pirates, all are pirates who have taken naval commissions from the Confederate States, and all are robbers who have served them on land. Pirates! Is Tatnall a pirate--Tatnall who, by his skill, and valor, and daring, succeeded in landing your gallant army in Mexico, challenging on that occasion the admiration alike of the army and navy? Tatnall a pirate! Tatnall, whose name has been for forty years the synonym of all that is high and noble and brave in the American navy! Is Hartsteine a pirate--Hartsteine, the modest but hardy sailor, who carried your ensign into the far, remote, and unfriendly regions of the frigid zone? Is Ingraham a pirate--Ingraham, who, when the down-trodden naturalized refugee from Austria asked for the protection of the American flag said, "Do you want the protection of this flag?--then you shall have it!" Are these men pirates? Oh, no! gentlemen; there is some mistake about this. Is Lee a robber--Lee, the chosen and bosom friend of your venerable commander in Washington, and who, but a few months ago, parted from him with an aching heart and eyes brimful of tears? Lee, a robber! Lee, whose glory is yours, and whose name is written on every page of your country's history which attests the triumphant march of your army from Vera Cruz to the gates of Mexico? Methinks I see the flash of fire light the eye, and the curl of contempt play upon the lips, of the old hero of Lundy's Lane, as he hears the foul imputation upon the stainless honor of the well-tried friend of many years. No, gentlemen, these men are not pirates! they are not robbers! Your own hearts tell you they are not. Truly, it may indeed be said, that civil war does pervert the natural taste, and relish of equity and of justice.

But, gentlemen, what is the object of this prosecution? Can the united States desire revenge on these men? That is a passion not attributable to States. States have no passion. The dignity and the power of a State ought to make it tolerant. Is it because the President's proclamation has pronounced these men pirates? Certainly, the respected Chief Magistrate of these United States has no disposition to enforce this law, simply because he has declared it, as in the case of King Ahasuerus. Is their punishment sought for the good of the community? If it is designed for such a purpose, its effect is very questionable.

It is extremely strange, gentlemen, that the prosecution should have been, any how, brought on now, and under this Act. Is it a strange fact, gentlemen, that, under the Act of William the Third, which has been cited to you, there was not, during the American Revolution, a single American privateersman ever brought to trial in England. And yet the English Government repeatedly captured them, and put them in prison. That Act is just as strong as this, for the ninth section of our Act of 1790 is copied from it. I suppose the truth is, gentlemen, that the English Government felt the utter inapplicability of that law to a case of this kind.

But, it is time that I should draw to a close. If these men have been brought into the position in which they now stand, much depends upon their political education--much depends upon the different views with which they have regarded this question from ourselves. It is the part of humanity to err. These men are the representatives of those who were once united with us in the gentle tie of brotherhood. That tie is now rent, and it may be years before the kindly and good feeling which once subsisted between the sections is restored. God grant that the hour may not be far distant! But, gentlemen, to treat these men with kindness; to treat them with humanity; to have respect for that great principle which underlies the bottom of our own Government--the right of resistance (and I mean here legal resistance, and not that revolutionary resistance which the Courts of justice do not adopt, and never have, and cannot sanction),--I say, to treat them with kindness and humanity will do more, in my honest belief, to knit together the two sections than a hundred battle-fields would do.

Gentlemen, if there has been a division between you, remember that that division has sprung up from honest conviction. Can you think otherwise? Shoulder to shoulder with your fathers, in the days of the Revolution, their fathers fought the battles of freedom. Side by side with you, they trod the burning plains of Mexico, and encountered, in hostile strife, the foes of your country; and when the shock of battle was over, wrapped in the same honored flag, their dead and yours were borne to their final resting place. Is it for a light and a trifling cause that they have thus separated from you?

In conclusion, gentlemen, let me beg you to meet this issue like men. No matter what the pressure upon you is, stand firm, do justice, and discharge these prisoners. In so doing, you will but do your duty, and God himself will sanction the act. But, gentlemen, if deaf to the promptings of reason, of justice, and of humanity--if, impelled by political rancor and passion--you condemn these prisoners, and execution follows condemnation, be assured that they will meet their fate like men; and that these manacled hands, which you have so often disported through your streets to excited crowds, will, "though impotent here," be lifted, and not in vain, to a far more august tribunal than this, before whose unerring decrees Courts and nations alike must bow with awful reverence.

ARGUMENT OF MR. SULLIVAN.

Mr. Sullivan, of Counsel for the prisoners, said:

_May it please the Court: Gentlemen of the Jury_:

This case has brought to my mind an interesting episode in ancient history, to which I beg permission to refer. For many years, the States of Greece had been engaged in bloody civil strife, which ended in the discomfiture of Athens. The Spartans and their allies assembled in council to consider and determine on her fate. Animated by resentful passion, the Thebans urged extreme and vindictive measures: that Athens should be razed to the ground, that the hand of the victorious States should fall heavy, and the Athenians be proclaimed exiles from their homes and outlaws in Greece. This proposal was applauded by the Corinthians and some others, but at that moment the deputy of the Phocians, who owed a debt of gratitude to the Athenians, sang in the assembly the mournful Choral Ode from the Electra of Sophocles, which moved all present in such a manner that they declared against the design. The poem had lifted them from the passion of the hour, and invoked the memories and ancestral glories of their common nation. The spirits of departed heroes now lent the inspiration of their presence, and yielding to it the members of that council and jury became great Greeks, as of old their fathers were. Marathon and Salamis, Plataea and Mycale, were pictured in the chambers of their souls, with Miltiades, Themistocles and Aristides for their counselors; and then, and not until then were they fit to render a verdict upon Athens, the loveliest sister of them all.

And gentlemen, before we touch upon the details of this case, may we not contemplate some examples and sentiments which will enlighten and strengthen our spirits as guardians of the important interests committed to our hands this day? I am sure it will be agreeable to you and to seek them in the annals of our forefathers,

"The great of old,
The dead but sceptred sovereigns, who still rule
Our spirits, from their urns."

It may be that a voice like that of the Theban delegate, and like the voice of Corinth, is sounding in your ears, and appealing, by sophistries, and passion, and prejudices, to you to lay the hand of your Government with all possible severity upon those of her enemies who are now in her power and arraigned at her bar. But I entreat you to lift yourselves to that stand-point from which our ancestors, who founded this Union, who enacted the law upon which this prosecution is founded, would have regarded a case analagous to that of Captain Baker and the other defendants herein. What was the central and distinguishing idea of Government, blazing like another sun on the world, which our fathers established and made honorable? Was it not the imperishable doctrine of revolutionary right--and that without special regard to the names, and forms, and paths through which it might be sought? For many other causes they may have pledged their fortunes; there were many for which they periled their lives; but only for this is it recorded by them, "We pledge our sacred honor." It is their incommunicable glory that they consummated their purpose; and if for anything we have a place in history and a name in the world, it is that we have hitherto professed to be the special guardians of that principle among the nations. Will you rise with me to the dignity and affecting associations that surrounded and auspicated the struggle of our forefathers for this principle? Shall their memory be your guiding light, and their honorable purpose that upon which your thoughts will linger? Let us subject our hearts to their influence, for it will not mislead us. And, now, would our fathers with casuistry and technical constructions of a statute which they never meant should apply to such a case as the present, pronounce judgment of piracy and outlawry against any people who were making an effort, by the recognized forms of war, to assert revolutionary right and independent self-government for themselves? Never! And while the page on which our fathers' history is written is lustrous, it would be readorned with all the beauty of immortal splendor, if under it were written to-day, "That which the American people of 1776 claimed for themselves (the right to 'dissolve the political bands that bound them to another'), they possessed the greatness of soul, in 1861, to acknowledge against themselves, when another portion of the same race sought the same end. Beguiled by the almost omnipotent sophistries of interest and passion, they have nevertheless adhered in loyal faith to their time-honored doctrine of free government. In the faithful devotion of the Sons, the principles of the Fathers have been revindicated. Henceforth the nation must stand unapproachable in their greatness."

Why I make these observations, gentlemen, is, that when the officers of the United States ask you to-day to find a verdict of guilty against these prisoners, they ask you to do that which, shape it and distort it and reason about it as they may, is asking you to lift an impious hand and strike a parricidal blow, conspicuous in the eyes of the world, against the ever sacred doctrine which our ancestors transmitted to us as their best legacy and a part of their own good name. Will you abandon it? Nay, rather cling to it,

"As one withstood clasps a Christ upon the rood,
In a spasm of deathly pain."

I wish now, gentlemen, to ask you to go with me a moment to the deck of the _Perry_, when she captured the _Savannah_ and her crew. Let us recall the historical incidents of the capture, and the preparations for the trial, that we may introduce this case as justice requires.

The _Savannah_ was captured on the Atlantic Ocean, about fifty-five miles from Charleston. The Commander of the _Perry_, who at that moment represented the United States Government, virtually said to the defendants herein, "We propose to try you as _citizens_ of the United States, who, by acting under a commission of letter of marque from the Confederate States, have become liable to the penalties of the United States law against piracy." The prisoners at once reply, "If that is true, take us into the nearest ports for trial. They are in South Carolina. You claim that she is a part of the United States, and that her citizens (_i.e._, ourselves) are amenable to your laws, and that the United States are sovereign there. Take us before one of your Courts in that State and try our case." "Oh! no, (say the United States) we cannot, with all our guns, land upon the shores of South Carolina." "Well, take us into the adjoining State, Georgia." "No; there is not an officer of the United States in Georgia. We cannot protect or sustain a single law in Georgia." "Well, take us to Florida, Alabama, Mississippi, Louisiana or Texas--any place along that extended coast of over two thousand miles." "No, (say the United States) throughout all that coast, we confess to you, Capt. Baker, that we have not a Court, not an officer, we cannot execute a single law." "Well, take us north, into North Carolina, or into Virginia." The reply of the United States is still, "We have no place there. But, notwithstanding we admit that throughout that territory we have no practical existence; we have no Court; we have no civil functionaries; we have no protection for allegiance to us; we have not a citizen who acknowledges his allegiance to us; we admit that the people in those States have excluded our government and established another, which is in active and exclusive control--notwithstanding all this, you are still our citizens; and none, nor all of these facts, relieve you from the guilt and liability to punishment."

The defendants are accordingly put in chains and brought to the District of New York for trial. The witnesses for the prosecution prove all the facts that are in the case, and we stand willing to be tried by them. They prove that the defendants did capture a brig on the high seas, which brig belonged to citizens of the United States. They prove, further, that the defendants at the time of the capture, and in the act, alleged that they did so, in the name and on behalf of the "Confederate States of America," and by authority derived from them, as an act of war between the two Governments.

The authority and intent thus alleged for the capture, were they honestly, or only colorably alleged? Were they a justification of the act, so far as this prosecution is concerned, or not?

_First_: Was it true that the capture of the Joseph was in the name of the Confederate States? The fact is, that when the Savannah approached and summoned the Joseph to surrender, the captain of the Savannah stated his purpose to be as I have repeated; he hoisted the Confederate flag; he wore the uniform and insignia of an officer of the Confederate States; he had, as the paper upon which his vessel was documented, a paper which has been produced before us, and which bears the broad seal of the "Confederate States of America," which authorizes him to take the Savannah as a private armed vessel, and, in the name and authority of the Confederate States, to "make war" against the United States and her vessels. The facts preclude any possible suggestion, that the defendants made any false pretence on the subject. The defendants had every adequate and sufficient warrant for what they did, if the "Confederate States of America" could give any authority which would constitute a defence, or if there was anything in the state of the contest between the United States and the Confederate States which constitutes _war_. But, the question will present itself, even if the defendants had this warrant from the Confederate States--Did they intend to, and did they in fact comply with its requirements, or were they abusing and transgressing its license, and engaged in freebooting? Did they intend to infract the regulations prescribed for their control by the Government of the Confederate States and imposed imperatively by the law of nations upon legitimate privateers, or did they intend to rob and steal? I think I may safely assert that the law officers of the United States will admit that the defendants intended in good faith to comply strictly and literally with all the conditions of their authority, prescribed by their own Government for their conduct, and also with the code of war in the law of nations. And not only was this their general intention, but as a fact, their conduct furnishes not a single deviation from these requirements. I read to the Court and Jury the Regulations published by the Confederates, for the privateers, and which were found to be on board of the Savannah at the time of her capture. They are similar, in all of their provisions, to those usually prescribed by civilized nations at war. In substance, they permitted the privateers to capture the vessels and cargoes belonging to the United States and her citizens, the capture to be made in the name of the Confederate States; they forbade, after capture, any disturbance or removal of the furniture, tackle, or cargoes of the captured prizes, and required immediate transmission, to a proper Court, of the prize, for adjudication. Did the defendants comply with these terms? The evidence is too plain that they did, to admit the slightest doubt.

As soon as the Joseph was captured, a prize crew was put on board of her and she was sent to the care of an Admiralty Court in a home port, and her papers, books and crew were sent along, that the Court might have the fullest evidence of the ownership and character of the captured vessel, and be able to decide properly, whether or not she was liable to capture. If the defendants had any corrupt or furtive motives, or if they had been indifferent to their assumed obligations, would they have been so scrupulous in furnishing all the evidence to the Court? Did they destroy, alter or erase any evidence, or offer to do so? Did they evince the least desire to have any other than the full facts appear with regard to all their acts? Your answer, with mine, is No! And when the vessel arrived in port, observe what proceedings were instituted by the agent of the captors. He did not offer to sell the vessel and cargo at private sale; he did not offer to submit her disposition to the adjudication of any merely State Court; but caused her to be libeled in a Prize Court, constituted on precisely the same basis, and enforcing the identical rules of law with the United States Prize and Admiralty Court, which convenes in the room adjoining to that in which we now are. In fact, I am safe in saying that the decisions of our Courts here are controlling precedents in the Court wherein the brig Joseph was tried and condemned as a prize of war. The trial was in a Court known to and recognized by the law of nations. Now, gentlemen, I certainly need do no more than thus re-advert to the facts in evidence to remove from your minds the slightest suspicion that the defendants ever intended to violate the laws of war or the instructions received from their Government when they received their letter of marque.

Perhaps, however, the question may arise,--whether the defendants did regard the commission under which they sailed as competent and adequate authority to justify their acts; or were they distrustful of its sufficiency? I do not admit, gentlemen, that that is a consideration to which in this trial we should recur, for your decision must rest on other grounds. But, I will not hesitate to say, that it is morally impossible for any man who has heard the evidence, and who is familiar with the course of events in the South, to believe that the defendants did not act in the fullest confidence that the authority of the Confederate States was ample and just authority for their undertaking. Even that one of the Savannah's crew who has become a witness for the prosecution, under a _nolle prosequi_, asserted on the stand, that at the time the Savannah was being fitted out for her cruise as a privateer, no one in the community of the South seemed to have any other idea but that the Government of the Confederate States was completely and legally established, and that every citizen of those States owed to it supreme allegiance. They believed that a letter of marque from the Confederate States constituted as good authority for privateering as the letters which were issued by our revolutionary fathers in '76, or as if they were issued by the United States. But, gentlemen, we are to proceed one step further, for under the theory presented by attorneys for the prosecution, they virtually admit that there was good faith on the part of the prisoners, and that they intended to comply with the restrictions imposed by the authority which they carried out of port with them. But they say that, inasmuch as the Confederate States were not a recognized Government, they could not confer any right upon the defendants to act as privateers, which could justify them in a plea to the pending charge. That is a proposition which enfolds the real issue in this trial. The difficulties in respect to its solution do not appear to me to be great, and I am satisfied that the more they are examined the less they will appear to candid minds.

Had the Government of the Confederate States a right to issue letters of marque; or, in other words, to declare and wage war? The denial of that right, by the attorneys for the United States, involves them in inextricable embarrassments, and must expose the fallacies which lie at the bottom of the erroneous reasonings of the prosecution.

In the first place, it is substantially an assertion, on the part of the United States, of the doctrine, "_Once a sovereign always a sovereign_,"--that the United States Government cannot--by revolution accomplished--by the Act of the States repealing their ordinances of union--by any act of the people establishing and sustaining a different Government--be divested of their former sovereignty. Or, in the language of Mr. Evarts, until there has been some formal acquiescence, some assent, some acknowledegment by the executive authority of the United States of the independence of the Confederate States, there can be no other plea, and no progress in any line of investigation, with a view to a defence of these defendants in a Court of justice of the United States. Upon that point, I beg to be understood as taking an issue as wide as it is possible for human minds to differ; and I am bold to assert that the doctrine cannot be maintained successfully in a capital case of this kind. It is not true that a recognition of the Confederate States by the United States executive, in a formal and distinct manner, is requisite to entitle them and their citizens to the rights belonging to a nation, in the eye of this Court. An acknowledgment of independence would be one way of proving the fact, but is far from being the only way. Proof of such an acknowledgment by a formal State paper would, of course, terminate this prosecution; but, in the absence of that fact, there may be a recurrence to others, which will suffice as well, and satisfy the Court and Jury that the Confederate States must, at least, to a certain extent, be regarded as a nation, entitled to the usual consideration belonging to a nation at war. To show how unreasonable the proposition is, and to illustrate how impossible it is to accept it, let me submit a supposition:

If, for fifty years to come, the United States shall not re-establish her sovereignty and restore her laws and power over the seceded States, and the latter shall continue to maintain an open and exclusive Government; and if the United States shall still refuse to recognize the new Government by formal documentary record, would the refusal then warrant the United States in capturing Confederate armies of a new generation, and punishing them for treason and piracy? And, if so fifty years hence, would it continue twice or thrice fifty years? Or what is the limit? The difficulties in the answer can be avoided in only one way, and that is, to conclude that the acknowledgment of the independence of the revolutionizing section is of no consequence at all, for all the purposes of this case, provided the fact of independence and separate Government really exists, and is proven. A _de facto_ Government, merely, must be allowed by every sound jurist to possess in itself, for the time being, all the attributes and functions of a Government _de jure_. It may properly claim for itself, and the citizen may rightfully render to it, allegiance and obedience, as if the Government rested on an undisputed basis.

This is a rule never denied in the law of nations. History has scarcely a page without its record of revolution and dynastic struggle to illustrate this rule. The official acts of a _de facto_ Government affecting personal rights, title to property, the administration of justice, the organization of its society, and imposing duties on the citizens, receive that consideration which belongs to acts of long-established Governments.