Chapter XVII: Appendix (16)

The _proclamation of the President, calling for 75,000 troops_, and then calling _for a greater number_, would, in any Court in Christendom, outside of the United States, be regarded, under international law, as conclusive evidence that those troops were to be used against _a belligerent power_. Who ever heard of EIGHT MILLIONS of people, or of ONE MILLION of people, being ALL TRAITORS, and being ALL LIABLE TO PROSECUTION FOR TREASON AT ONCE. I find this recognition in the _exchange of prisoners_, which we know, as a matter of history, has occurred. I find it in the _capitulation at Hatteras_, at which, and by which, GENERAL BUTLER, of his own accord, when he refused the terms of surrender proposed by Commodore Barron, declared that the garrison should be taken as PRISONERS OF WAR; and that has been communicated to the Government, and no dissatisfaction expressed about it.

And, gentlemen, I rest it, also, as to the recognition by our Government, on the fact to which MR. SULLIVAN so appropriately alluded--_the exchange of flags of truce_ between the two contending forces, as proved by one of the officers of the navy. A flag of truce sent to rebels--to men engaged in lawless insurrection, in treasonable hostility to the Government, with a view to its overthrow! Why, gentlemen, it is the grandest, as it is the most characteristic, device by which humanity protects men against atrocities which they might otherwise perpetrate upon each other--that little white flag, showing itself like a speck of divine snow on the red and bloody field of battle; coming covered all over with divinity; coming in the hand of peace, who rejoices to see another place where her foot may rest; welcome as the dove which returned to the ark; coming, I say, in the hand of peace, who is the great conqueror, and before whom the power of armies and the bad ambitions and great struggles of men must ultimately be extinguished. This, of itself, will be regarded by mankind, when they reflect wisely, as sufficient to show that our Government must not be brutal; and we seek to rescue the Administration from any imputation that it wants to deny to the South the common humanities which belong to warfare, by your refusing to let men be executed as pirates, or to make a distinction between him who wars on the deep and him who wars upon the land.

It is very strange if the poor fellows who had no means of earning a meal of victuals in the city of Charleston, like some of those who composed the crew of this vessel, shut up as if in a trap, should be hanged as pirates for being on board a privateer, under a commission from the Confederate States, and that those who have slain your brothers in battle should be taken as prisoners of war, carefully provided for, and treated with the benevolence which we extend to all prisoners who fall into our hands--the same humanities that, as you perceive, are provided for in the instructions from Jefferson Davis, found on board the privateer, directing that the prisoners taken should be dealt with gently and leniently, and to give them the same rations as were supplied to persons in the Confederate service.

But it seems to be suggested in Vattel, and certainly is promulgated in the opinion of Mr. Justice Grier, that, although the Confederate States have obtained any proportions however large, any power however great, there must be some _sound cause_, some _reasonable pretext_, for this revolt. Well, who is to judge of that? We do not, says the Government, admit that the cause is sufficient. The United States Government says there is none. Now, I propose to show you _what the South says on that subject_--to lay before you matters of history with which you are all acquainted--to show you what is supposed by men as able as any of us, as well acquainted with the history of the country, and as pure--what is supposed by them to have created this state of things, entitling the Confederate States to leave us and be a community by themselves. I will hereafter appeal to the late Daniel Webster as a witness that one of the causes assigned by the Southern States for their act is at least the expression and proof of a great wrong done them.

In the first place, a large proportion of our people at the North claim _the right to abolish slavery in places ceded to the United States, or formed by contributions from the States, such as the District of Columbia_. I do not know what my learned friends' views on that subject are, but I know that the two great political parties of the country have had distinct opinions on that subject. By one, it has been steadily maintained, and with great energy, that, so far as the nation has power over the subject of slavery, it shall exercise it to abolish slavery. And the South says: "If you undertake to abolish slavery in any fort, any ceded place, any territory that we have given you for the purposes of the National Government, we will regard that as a breach of faith; for, whether you abhor slavery, or only pretend to abhor it, it is the means of our life. I, a Southerner, whose mother was virtuous as yours--whom I loved as you loved your mother--received from her at her death, as my inheritance, the slaves whom my father purchased--whom I am taught, under my religious belief, to regard as property, and whom I will so continue to regard as long as I live." That is the argument of the South; and if men at the South conscientiously believe that, from their knowledge of the sentiments, factions, or agitations at the North, such as these, there is an intention to make a raid and foray on the institution of slavery, deprive them of all the property they have in the world, and condemn them to any stigma--is it any wonder that they should express and act upon such an opinion?

Next, gentlemen, in the category of their complaints, is the _agitation for the prohibition of what is called the inter-State slave trade_. Next is _the exclusion of slavery from new territory_, which, says the South, "we helped to acquire by our blood and treasure--towards which we contributed as you did. If you had a gallant regiment in the field in Mexico, had we not the Palmetto and other regiments, which came back--such of them as survived--covered with glory?"

This has been the great subject that has recently divided our political parties--the Republican party, so-called, proclaiming with great earnestness and great decency its sincere conviction that it was a moral and political right to prevent slavery from being carried into new territory, and insisting that the slave-owner, if he went there with his slaves, must bring them to a state of freedom.

There is another party of intelligent and upright men, claiming that the South has the same right to go into the Territories with their slaves as the North has to go with their implements of agriculture; and these irreconcilable differences of opinion are only to be settled at the polls, by determining the question which shall have sway either in the executive councils or in the legislation of the Government. A grand subject of debate, for some time, was the endeavor to acquire Texas; and I need not tell you that the great reason why the acquisition of Texas was opposed by the Whig party was, that they thought it might induce to the extension of slavery. When MR. CHOATE made his great speech against it in New York, he confessed that that was the point, and said: "You may be told that this is a new garden of the Hesperides; but do not receive any of its fruits: touch not, taste not, handle not, for in the hour that you eat thereof you shall surely die."

Next, gentlemen, is _the nullification of the Fugitive-Slave Law by several of the States of New England_, which say: "True it is that the Constitution of the United States declares that the fugitive shall be delivered up to his master; true it is that Congress has made provision for his restoration; true it is that the Supreme Court of the United States has declared that he must be given up; but we say--we, a sovereign State--that if any officer of our Government lends any aid or sanction for such purpose he shall be guilty of a crime. If you want any slave delivered to his master, you must do it exclusively by the authority of the Federal Government, by its power and officers." And because, in the city of Boston, MR. LORING, a virtuous citizen, a respectable lawyer, performed, in his official capacity, an official act toward the restoration of a slave to his master, he was removed from his judicial station by the Executive of Massachusetts.

_The District Attorney_: (To Mr. Evarts) He was not removed for that reason.

_Mr. Brady_: The District Attorney says he was not removed for that reason. Well, he was removed just about that time. (Laughter.) It was a remarkable coincidence; it was like the caution given to the elder Weller, when he was transferring a number of voters to the Eatonsville election, not to upset them in a certain ditch, and, as he said, by a very extraordinary coincidence, he got them into that very place.

But, gentlemen, this is a solemn subject, and is not to be dealt with lightly. And here it is that I will refer to the great speech of Mr. Webster, in the Senate of the United States, on the _7th of March, 1850_--to be found in the fifth volume of his works, _page_ 353. Mr. Webster was a great man, gentlemen, like John Marshall, and he could stand that test of a great man--to be looked at closely. Our country produces an abundance of so-called great men. The very paving-stones are prolific with them. Every village, and hamlet, and blind alley has one, at least. And when we catch a foreigner, just arrived, we first ask him what he thinks of our country, and then, pointing to some person, say, "He is one of the most remarkable men in the country;" until, finally, the foreigner begins to conclude that we are all remarkable men; that, like children, we are all prodigies until we grow up, when we give up the business of being prodigies very soon, as most of us have had occasion to illustrate.

Mr. Webster, I say, was a great man, because he could stand the test of being looked at very near, and he grew greater all the time. There is no incident in my life of which I cherish a more pleasant or more vivid recollection than being once in a small room, with some other counsel, associated with Mr. Webster, about the time he made his last professional effort, when, in a moment of melancholy, one night about twelve o'clock, he came up, and, sitting down on the corner of a very old-fashioned bedstead, put his arm around the post, and proceeded to enlighten and fascinate us with a familiar, and sometimes playful, account of his early life; his first arguments in the Supreme Court of the United States; and the course, in its inner developments, of that life which, in its public features, has been so interesting to the country, and is to be always so interesting to mankind.

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

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

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

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

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

They refer to _the general assault on the institution of slavery_ which many men at the North have felt it on their conscience to make, including such distinguished orators as LLOYD GARRISON, GERRIT SMITH, the fascinating and silver-tongued PHILLIPS--to whom I have listened with pleasure, much as I detested his sentiments--and THEODORE PARKER, the greatest of them all.

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

They refer to _the declaration of Mr. Lincoln_, in one of his addresses to the public, _that Government could not endure half slave and half free_.

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

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

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

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

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

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

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

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

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

SIXTH DAY.

_Tuesday, Oct. 29th, 1861._

_Mr. Brady_ resumed his address, and said:

In the same general line of discussion which I adopted yesterday, I will refer you to a striking passage from a distinguished gentleman, and, when I have read the extract, will state from whom it emanated:

"Any people anywhere, being _inclined_ and having the _power_, have
a _right_ to rise up and _shake off the existing Government_, and
_form a new one that suits them better_. This is a most valuable, a
most sacred right--a right which, we hope and believe, is to
liberate the world. Nor is this right confined to cases in which
_the whole people_ of an existing Government may choose to exercise
it. _Any portion of such people_ that _can_, MAY REVOLUTIONIZE and
make their _own_ of _so much of the territory as they inhabit_.
More than this: a _majority_ of any portion of such people may
revolutionize--putting down a _minority_ intermingled with or near
about them who may oppose their movements. IT IS A QUALITY OF
REVOLUTIONS NOT TO GO BY OLD LINES OR OLD LAWS, BUT TO BREAK UP
BOTH AND MAKE NEW ONES."--Appendix Con. Globe, 1st Session 35th
Congress, p. 94.

Would you suppose, gentlemen, that it was an ardent South Carolina secessionist who declared that any people may revolutionize and hold mastery of any territory which they occupy? Would you suppose that was from Jefferson Davis, in the Senate of the United States? No, gentlemen; it is from Abraham Lincoln, the President of the United States, when he was a member of Congress, and was delivered on the 12th of January, 1848.

Now, gentlemen, I do not think that an intelligent gentleman born in South Carolina, Kentucky, or Virginia, and educated by his parents in a certain political faith, has not as much right to adhere to it as he has to the religious faith in which he is brought up; and if he should happen to say all that is substantially claimed by these seceding States, he would be sustained by authority quoted here, and have the express sanction of the distinguished and excellent gentleman now at the head of this nation.

Let me now cite to you _Wheaton's International Law, page_ 30, in which he says, that "_sovereignty_ is acquired by a State, _either_ at the _origin_ of the civil society of which it is composed, _or_ when it _separates itself_ from the community of which it previously formed a part, and on which it was dependent." Then he says, that "CIVIL WAR _between the members of the same society is, by the general usages of nations, such a war as entitles both the contending parties to all the rights of war as against each other, and as against neutral nations._"

This, if your honors please, seems to me an answer to the doctrine put forward in this case, that the Judges are to treat this question in reference to the seceding States as it has been viewed by the executive and legislative branches of the Government. If it be true that when a state of civil war exists, as stated by Wheaton, both the contending parties have all the rights of war as against each other, as well as against neutral nations, then it follows very clearly that the seceding States, as well as our own, have all the rights of war; and there is no such rule as that they must have those rights determined only by the executive or legislative branches of the Government, or by both.

And here, gentlemen, let us refer to the matter of blockade, which I take to be the highest evidence of a distinct recognition, by the General Government, of a state of war as between the United and the Confederate States. I see no escape from that conclusion. It is true that a learned Judge in New England, an eminent and pure man, has determined, as we see from the newspapers, that in his judgment it is not a blockade which exists, but merely the exercise by the General Government of its authority over commerce and territory in a state of insurrection--that it is a mere police or municipal regulation. Well, gentlemen, that is not the view taken by the Judges elsewhere. Certainly it is not adopted in this District, where prize cases have arisen, instituted by the Government, which calls this a blockade; and I undertake to say that, in the history of the human race, that word, blockade, never was applied except in a state of war; and the exercise of that power never can occur except in a state of war, because, as the writers inform us, blockade is the right of a belligerent _affecting a neutral, and_ ONLY ALLOWABLE IN A STATE OF WAR. Why is it that France and England and all the other countries of the world do not attempt to send their vessels to any of the ports in guard of which we place armed vessels?

A word more about piracy: A pirate is an offender against the law of nations. He is called in the Latin, and by the jurists, the enemy of the human race. Any nation can lay hold of him on the high seas, take him to its country, and punish him. Now, if a ship of war--British, French, Russian, or of any other nation--should meet with a piratical craft, she would capture and condemn it in the courts of her country, and the crew would suffer the punishment of pirates. No one will dispute that proposition. But if such a ship of war had met with the privateer Savannah, even in the very act of capturing the Joseph, would she have captured the Savannah, or attempted to arrest her crew as pirates? If not, does it not follow, as a necessary consequence, that the "Savannah" was not engaged in piratical business? and does it not involve a palpable absurdity to say, that a vessel on the high seas, cruising under a privateer's commission, can be treated as a pirate by the power with which it is at war, and yet be declared not a pirate by all the other powers of the earth? This must be so, if there is anything in the idea that piracy is an offence against the law of nations.

There is not a case in our books where any man, under a commission emanating from any authority or person, was ever treated as a pirate, and so condemned, unless the _actual_ intent to steal was proved. In the case of _Aurey_ such was the fact, as in many other cases which have been cited. And so it seems that if the Confederate States were either an actual Government, established in virtue of the principles of right to which I have referred, or if a Government _de facto_, as distinguished from one having that right, or if these men believed that the commission emanated from either kind of Government was--lawfully issued--we claim that it is impossible in law, and would be wrong in morals, and unjust in all its consequences, to hold them as pirates, or to treat them otherwise than as prisoners of war. And, gentlemen, I am sorry to say, or rather I am glad to say, that if they should be acquitted of the crime of piracy, they would yet remain as prisoners of war. The worst thing to do with them is to hang them. By preserving their lives we have just their number to exchange for prisoners taken by the enemy.

You, gentlemen, will do your duty under the law, whatever be the consequences. If you have no doubt that these men have committed piracy, they should be convicted of piracy. No threat of retaliation from any quarter should or will influence right-minded men in the disposition to be made of cases where they have to give a verdict according to their conscience, the evidence, and the law of the land.

But the fact of retaliation, as a danger that may ensue from treating as pirates men engaged in war, is referred to by VATTEL in his treatise on the laws of nations. It is one of the considerations which enjoin on Courts and Governments the duty of seeing that, when people are prosecuting civil war, they shall enjoy the humanities of war.

I will now consider this case under the ninth section of the Act of 1790, which is as follows:

"If any _citizen_ shall commit any piracy or robbery aforesaid, or
_any act of hostility_ against the United States, _or any of the
citizens thereof_, on the high seas, under color of any commission
from _any foreign Prince or State,_ or on _pretence_ of authority
_from any person_, such offender shall, notwithstanding the
pretence of any such authority, be deemed, adjudged, and taken to
be a pirate, felon, and robber, and, on being thereof convicted,
shall suffer death."

Now, in the first place, we say, as was before urged, that statute has no bearing whatever on the case of the eight foreigners, and you are to disregard them entirely in passing upon all the questions which this Act may raise; and we say that it has no bearing on the four Americans before you, even if it be a valid Act and applicable to a case of this character, because, at the time of the acts charged, they were _citizens of another Government, owing it allegiance, receiving its protection, engaged in its service, and bound to perform such service_. We have been told that allegiance and protection are reciprocal. The people of the Southern States would be placed in a very extraordinary condition if the arguments of my learned opponent are to prevail. Look at the citizens of Charleston. There are men in that city who love the Union, among whom is MR. PETTIGREW, an able lawyer, a patriot, and a man of great virtue, talents, and distinction. If those loyal people wanted to leave Charleston and come North, they could not do it. If they felt inclined to utter, at this moment, their sentiments in favor of reunion of the States, it would be an act of folly and danger. They are living in A STATE, under its government and jurisdiction, and bound to perform their duties as citizens. Can they refuse? They may be ordered into the service of the government--sent to sea--enlisted as soldiers. They cannot refuse to fight. If they do, they make themselves amenable to their own Judges. I refer to _1st Hawkins, Pl. Crown_, 87, 89, where it is said:

"_There is a_ NECESSITY _that the realm should have a King, by whom
and in whose name the laws shall be administered; and the King_ IN
POSSESSION, _being the only person who either doth or can administer
those laws_, MUST BE THE ONLY PERSON _who has a right to that
obedience which is due to him who administers those laws; and
since, by virtue thereof, he secures us the safety of our lives,
liberties, and properties, and all the advantages of Government,
he may_ JUSTLY CLAIM RETURNS OF DUTY, ALLEGIANCE, AND SUBJECTION."

And BLACKSTONE is equally explicit (_4 Blackstone's Comm._, 78):

"When, therefore, an USURPER is _in possession_, the subject is
_excused_ and _justified in obeying and giving him assistance_;
OTHERWISE, UNDER AN USURPATION, NO MAN _could_ BE SAFE, _if the
lawful Prince had a right to hang him for obedience to the power in
being, as the_ USURPER WOULD CERTAINLY DO FOR DISOBEDIENCE."

_3d Inst. (Coke)_ 7, is to the same point:

"_The stat. 11 Henry VII., ch. 1_, is declaratory of the law on
this subject; _and the year books, 4 Edw. IV., 1, 9 Edw. IV., 1, 2,
show that it was always the English law_."

Our statute, or rather constitutional definition, of _treason_, is a transcript of the English statute of treason; and it is hardly necessary to cite _2 Story on the Constitution, sec. 1799_, to the point that our Courts will construe the Constitution as the English law is construed by the English Courts. And here we observe a marked difference between a revolt by the subjects of a single consolidated Government which is a unit, and the action of one or more States in a Confederacy, or of the people dwelling within them, when such States resolve, as States, to recognize no sovereignty or Government within their territory except that established under their own Constitution.

But I insist upon it that _Congress had no power to pass this 9th section of the Act of 1790_; that the construction put upon it by our opponents is entirely unwarranted; and that it cannot be applied to a case like this. Your honors are aware that in _The case of Smith, 5 Wheaton_, Mr. Webster took the ground that the law was not constitutional, because it did not define piracy otherwise than by referring to the law of nations. The authority given to Congress on that subject is to define and punish piracy and other offences against the law of nations. "To define and punish piracy" is all of the phrase with which I have to deal. Now, you understand, gentlemen, that there is no common-law jurisdiction of offences residing in the United States Courts. They can punish no crime except by statute. Congress had fully defined piracy and robbery in the _eighth_ section of the Act of 1790; and, having done so, what power or authority was there in Congress to go on and say that something else should be called piracy, when the definition of it was complete? Let me refer your honors again to the language of the law, which furnishes a strong argument on this subject: "If any citizen shall commit any piracy or robbery _aforesaid_, or any act of hostility against the United States," &c. Does not that clearly recognize and admit that piracy has been defined? and can it be pretended that Congress, under pretence of defining piracy, can provide that a common assault and battery on the high sea shall be piracy? Is there no limitation to that grant? We claim that its terms are just as much a _restriction_ as a _delegation_ of power. It defines as clearly the limits which the Government shall not transcend, as it does the area which Congress may occupy. You may "define piracy and punish it:" does this mean that you can call anything piracy, whether it be so or not? Suppose Congress passed an Act providing that, if any man _on land_ should, during a state of war, attempt to make reprisals on another, it should be piracy, punishable with death: would that be a legitimate exercise of the authority vested in Congress? We claim that it would not, and that it would be a manifest usurpation against the true meaning, spirit, and proper effect of the Constitution.

Again, it has been argued to your honors, and we insist, that _this statute, if it be operative_, only _relates to the case of a person taking a commission from a_ FOREIGN _Government or State_. To say that an act of hostility committed by authority of any _person_ whatever--using the word "person" to mean a human being--against another, on the high seas, would be piracy, and punishable by death, is a monstrous construction of this Act; and if I understood brother Evarts, in the course of the discussion that took place between him and myself, he conceded that the case which I suggested, of throwing a belaying-pin, by order of the Captain of one vessel, at the Captain of another, on the high seas, _although an act of hostility by one citizen against another_, under pretence of authority from a person, would not come within the law; yet this assault would be within the _very letter_ of the Act. Read that law just as it is, and say, after the words "Prince" and "State" have been used, what other term is necessary or apposite. Why, no other, except as in the case of Aurey, an _individual_ fitting out an expedition against a foreign Government, and undertaking to grant commissions; or as in the case of _James II._, who, as shown by Mr. Lord, was an exile in a foreign land, having no territory, no Government, and no subjects; and he was treated in the English Act--from which ours is taken--as a _mere person_, not to be denominated King. I do not mean to concede that the case of _Miranda_, who fitted out the expedition against Spain, assisted by some of our citizens, and granted commissions to privateers, would be a case within the statute of 1790; but if it would, it will not subserve the purposes of the prosecution at all, or be injurious to us. The word "person," in this connection, means a person standing in the same relation to another as a Prince or a State. Gentlemen, that this was never intended to apply between so many States as remained in the Union and those that went out, is a proposition about which Mr. Lord has been heard, and I see no answer to his argument.

Now, there is a dilemma here. If the gentlemen insist that, in the construction I have given, we are right, and that Mr. Jefferson Davis or the Confederate States, in the giving of this commission or authority, are to be regarded as a power or person within my definition, then it is as a foreign power; in which case Capt. Baker is the subject or citizen of that power, and not a citizen of the United States, and not within the Act of 1790. And if the Confederate States is _not_ a foreign power, within the construction and meaning of the Act of 1790, then there is no violation of that statute by Capt. Baker, or any one associated with him, if it be true, as I contend, that the pretence of authority must be of one from a foreign source. If they make out that the Confederate States is a foreign power, it is because it is a Government in existence; and if it be a Government in existence, then its commission must be recognized by the law of nations.

Now, I certainly understood, from the opening by the learned District Attorney, that the prosecution did not rely much on the piracy branch of this case; they did not abandon it; they have never said they would not press a conviction upon it. But the strong effort is made to convict under the ninth section of the Act of 1790, saying to you of the Jury, "All you have to find is, that Baker and three of his associates were citizens of the United States; that they were on the high seas; and that, being there, they committed an act of hostility against another citizen of the United States, under pretence of authority from Jefferson Davis; and, then, they are pirates." I think it would have been a little more magnanimous in the Government not to attempt any scheme of this kind. I think, if it be possible to drag these men, manacled, within the construction of a statute which exposes their lives to danger, it is yet not the right way to deal with them. When they were captured they were entitled to be treated either as prisoners of war, or as traitors to the Government. Why were they not indicted for treason?

Now, my learned friend said that this indictment was drawn with the utmost possible care and circumspection, when he spoke of the averment that this act of the defendants was done under pretence of the authority of "_one Jefferson Davis_." The pleader did not wish to admit, by the language of the indictment, that it was under pretence of any authority from any Government or Confederate States. He wanted to regard it as the act of a mere individual, who, although he claimed to represent so-called States, was, after all, merely a person signing a paper on his own account, and for which he was to take the exclusive responsibility.

I will refer your honors to _Blackstone, 4 vol., p. _72, where he interprets this statute of _11 and 12 William III., chap. _4, to relate to acts done under color of a commission from a _foreign power_; and it was never supposed to have meant anything else. In 1819, Great Britain passed a law making it a crime for British subjects to be connected in any way with the sending out of vessels to cruise against a power at peace with England. By the _18th George II., chap. _30, it is made piracy, in time of war, for English subjects to commit hostilities of any kind against fellow subjects. How did that act become necessary in the legislation of England, if the previous law had already provided for the same thing? That, certainly, is a question of some importance in this case. We have statutes that punish citizens of the United States, under certain circumstances when they are engaged in privateering; and there have been trials and convictions under these statutes, as your honors will find by referring to _Wharton's State Trials_.

We contend, therefore, that the ninth section of the Act of 1790, as construed by our opponents, would be unconstitutional; that it only applies, if valid, to acts done under authority of a foreign power or person; that if Jefferson Davis was, or represented, such foreign power, then the defendants were subjects of that power, not citizens of the United States, and not within the Act; if he were not or did not represent a foreign power, the Act does not apply to the case; and so, in every view of the subject, there is no right to convict any of these men under this Act.

I will now cite some authorities on the question of _variance_ made by my friend, Mr. Lord, in describing this commission as a pretence of authority from one Jefferson Davis. Certainly, in law, that commission is the act and authority of the Confederate States. There can be no dispute about that.

I refer my learned opponents to _Wharton's Criminal Treatise, at pps. 78, 91, 93, 94 and 96_, for these two propositions: In the first place, that, where a new offence is created by statute, the utmost particularity is required, when drawing the indictment, to set forth all the statutory elements of the offence; and, in the second place, what is thus averred must be proved strictly as laid. Well, it may seem to you, gentlemen, rather a technical and immaterial question, whether this was set out as a pretence of authority from one Jefferson Davis, or from the Confederate States,--and it is. But, nevertheless, it is a legal technicality; and these prisoners, if it be well founded, have a right to the benefit of it. It is very little that I have to read from this book, for the propositions are pointedly stated:

Page 91. "It is a general rule that, in regard to offences created
by statutes, it is necessary that the defendant be brought within
all the material words of the statute; and nothing can be taken by
intendment."

Page 93. "Defects in the description of a statutory offence will
not be aided by a verdict, nor will the conclusion _contra formam
statutis_ cure it."

Page 94. "An indictment under the Stat. 5th Elizabeth, which makes
it high treason to clip round or file any of the coin of the realm
for wicked lucre or gain sake,--it was necessary to charge the
offence as being committed for wicked lucre or gain sake, otherwise
the indictment was bad. In another case, an indictment on that part
of the black act which made it felony willfully or maliciously to
shoot at a person in a dwelling-house was held to be bad, because
it charged the offence to have been done '_unlawfully and
maliciously_,' without the word '_willfully_.'"

That is technical enough, I admit, but it emanates from high authority.

[Mr. Brady read other passages from Wharton, and said]:

And, now, what relates more particularly to the matter in hand, is the case of _The United States_ vs. _Hardiman, 13 Peters_, 176. In that case the defendant was indicted for receiving a fifty-dollar treasury note, knowing it to have been stolen out of the mail of the United States. The indictment was under the 45th section of the Post-Office Law. The thing stolen was described as a fifty-dollar _treasury note, bearing interest at one per cent._; and it turned out to be a treasury note which, although of fifty-dollars' denomination, bore interest at the rate of _one mill per cent._; and the Court held the variance to be fatal. Now, we claim that to describe the commission as emanating from one Jefferson Davis, when in fact it emanated from the Confederate States, is such a variance as is here referred to; and, on that ground, the indictment is not sustained.

The argument is made here, that, no matter what publicists may say,--no matter what Courts of other countries may declare as international law, about the organization of government or the creation of powers _de jure_ or _de facto_,--this Court has nothing to do with the debate; that your honors have simply to inquire whether Mr. Lincoln, the President, has said, or whether Congress has said, a certain thing, and the matter proceeds no further; that the citizen is not entitled to have a trial, in a Court of Justice, on the question whether, being in a state of revolt, a civil war does in fact exist; and that the right of trial by Jury does not, as to such a question, exist at all.