Chapter VIII: Appendix (7)

I am sorry, gentlemen, to detain you on the question; but it is a most important one--one that enters into the very marrow of this case; and we do claim that the issuing of this commission, whether on the footing of its having been issued by a _de facto_ Government, or by authority from the State, considering it as remaining under the Constitution, was a commission that forms a protection to the defendants, and one which is not within the purview of the Act of 1790; because it was not, in the language of that section, a commission taken by a citizen of the United States to cruise against other citizens of the United States, either from a _foreign_ Prince or State, or a person merely.

You will observe that if the claim of the Confederate States, that the ordinances of secession are valid, be correct, then it is true that they are foreign States; but their citizens have ceased to be citizens of the United States, and are therefore not within the purview of the ninth section of the Act of 1700.

If, on the contrary, the claim on the part of the Government of the United States, that these ordinances are absolutely void, be correct, then the States are still States of this Union, and the commission, being issued by their authority, is not a commission issued by a _foreign_ State, and therefore the case is not within the purview of the ninth section of the Act of 1790.

I must allude very briefly, before closing, to another ground on which this defence will be placed: and that is, that conceding (if we were obliged to concede) that this was not an authority, such as contemplated, to give protection to cruisers as privateers, there was a state of war existing in which hostile forces were arrayed against each other in this country, and which made this capture of the Joseph a belligerent act, even obliterating State lines altogether, for the purpose of the argument.

But before I pass from what I have said to you on the subject of the claim of authority of the States of this Union to come into collision with the General Government, allow me to call attention to the forcible precedents shown in the history of our own glorious Revolution, when the thirteen Colonies, numbering little more than three millions, instead of thirty, separated from Great Britain. At the time when that occurred, in 1776, this very statute of 1790 was in force in England, as I have shown you. It was passed in England, if I recollect right, in 1694. The position of the thirteen Colonies towards the mother country, at that time, was precisely the position that those States which call themselves the "Confederate States" now occupy towards the General Government of the Union.

Appealing to God, as the Supreme Ruler of the Universe, for the rectitude of their intentions, and acknowledging their accountability to no other power, they had claimed to resist the usurpation of the King of Great Britain. They had not even claimed, at the time of which I speak--for I speak of the end of the year 1775 and the beginning of 1776--to declare their independence and to throw off their subjection to Great Britain. At that very early day there were very few in these Colonies that contemplated a thing of that kind, or whose minds could be brought to contemplate such an act. They had risen in resistance against what they claimed to be arbitrary power; they claimed that the King of Great Britain had encroached upon their rights and privileges in a manner not warranted by the Constitution of Great Britain. They did not claim to secede from Great Britain; they did not claim to make themselves independent of subjection to her rule; they claimed to stop the course of usurpation which, they held, had been commenced; and they proposed to return under subjection to the British crown the very moment that an accommodation should be made, yielding allegiance to the King of Great Britain as in all time before. And now, gentlemen, on the 23d March, 1776, on a Saturday, the little Continental Congress was sitting in the chamber, of which you have often seen the picture, composed of the great, wise, and good men, who sat there in deliberation over the most momentous event that has ever occurred in modern times, if we except that now agitating and convulsing our beloved country. I never heard one of those men stigmatized as a pirate. I never heard one of those men calumniated as an enemy of the human race. I have often heard them called the greatest, wisest, and best men that ever lived on the face of God's earth. I will read to you what occurred on the 23d March, 1776;--they being subjects of the King of Great Britain, and having never claimed to throw off allegiance to him, but claiming that he was usurping power which did not belong to him, and that they, as representatives of the thirteen Colonies of America, were the judges of that question and those facts, as we claim that the States are now the judges of this question and these facts. They adopted the following preamble and resolutions:

"The Congress resumed the consideration of the Declaration, which
was agreed to, as follows:

"WHEREAS, The petitions of the United Colonies to the King for the
redress of great and manifold grievances have not only been
rejected, but treated with scorn and contempt, and the opposition
to designs evidently formed to reduce them to a state of servile
subjection, and their necessary defence against hostile forces
actually employed to subdue them, declared rebellion;

"AND WHEREAS, An unjust war hath been commenced against them which
the commanders of the British fleets and armies have prosecuted and
still continue to prosecute with their utmost vigor, in a cruel
manner, wasting, spoiling, and destroying the country, burning
houses and defenceless towns, and exposing the helpless inhabitants
to every misery, from the inclemency of the winter, and not only
urging savages to invade the country, but instigating negroes to
murder their masters;

"R. TOOMBS, The Parliament of Great Britain hath lately passed an
Act, affirming these Colonies to be in open rebellion; forbidding
all trade and commerce with the inhabitants thereof until they
shall accept pardons, and submit to despotic rule; declaring their
property wherever found upon the water liable to seizure and
confiscation, and enacting that what had been done there by virtue
of the royal authority were just and lawful acts, and shall be so
deemed; from all which it is manifest that the iniquitous schemes
concerted to deprive them of the liberty they have a right to by
the laws of nature, and the English Constitution, will be
pertinaciously pursued. It being, therefore, necessary to provide
for their defence and security, and justifiable to make reprisals
upon their enemies and otherwise to annoy them according to the
laws and usages of nations; the Congress, trusting that such of
their friends in Great Britain (of whom it is confessed there are
many entitled to applause and gratitude for their patriotism and
benevolence, and in whose favor a discrimination of property cannot
be made) as shall suffer by captures will impute it to the authors
of our common calamities, Do Declare and Resolve as follows, to
wit:

"_Resolved_, That the Inhabitants of these Colonies be permitted to
fit out armed vessels to cruise on the enemies of these United
Colonies.

"_Resolved_, That all ships and other vessels, their tackle,
apparel and furniture, and all goods, wares and merchandize
belonging to any inhabitant of Great Britain, taken on the high
seas, or between high and low water-mark, by any armed vessel
fitted out by any private person or persons, and to whom
commissions shall be granted, and being libelled and prosecuted in
any Court erected for the trial of maritime affairs in any of these
Colonies, shall be deemed and adjudged to be lawful prize, and
after deducting and paying the wages which the seamen and mariners
on board of such captures as are merchant ships and vessels shall
be entitled to, according to the terms of their contracts, until
the time of their adjudication, shall be condemned to and for the
use of the owner or owners, and the officers, marines, and mariners
of such armed vessels, according to such rules and proportions as
they shall agree on. Provided, always, that this resolution shall
not extend to any vessel bringing settlers, arms, ammunition or
warlike stores to and for the use of these Colonies, or any of the
inhabitants thereof who are friends to the American cause, or to
such warlike stores, or to the effects of such settlers.

"_Resolved_, That all ships or vessels, with their tackle, apparel
and furniture, goods, wares and merchandize, belonging to any
inhabitant of Great Britain, as aforesaid, which shall be taken by
any of the vessels of war of these United Colonies, shall be deemed
forfeited; one-third, after deducting and paying the wages of
seamen and mariners, as aforesaid, to the officers and men on
board, and two-thirds to the use of the United Colonies.

"_Resolved_, That all ships or vessels, with their tackle, apparel
and goods, wares and merchandizes, belonging to any inhabitant of
Great Britain, as aforesaid, which shall be taken by any vessel of
war fitted out by and at the expense of any of the United Colonies,
shall be deemed forfeited and divided, after deducting and paying
the wages of seamen and mariners, as aforesaid, in such manner and
proportions as the Assembly or Convention of such Colony shall
direct."

There are two or three other resolutions, which it is not necessary for me to trouble you with the reading of. You will bear in mind that there were no two sovereignties over these United Colonies at that time. They had no sovereignty or independence whatever; they were mere Provinces of the British Crown; the Governors derived their appointment from the Crown itself, or from the proprietors of the Colonies; and these wise and good men, on the 23d March, 1776, claimed that the King of Great Britain had usurped powers which did not belong to him under the Constitution of Great Britain, and that they had the right to resist his encroachments; and they authorized letters of marque to cruise against the ships and property of their fellow subjects of Great Britain, because of the state of things which arose from a collision between them and the Crown. They were enemies, and although they regretted that they had to injure in their property men who were their friends, they trusted they would excuse them, owing to the inevitable necessity that existed and the impossibility of discriminating between friends and foes in the case of inhabitants of Great Britain.

And now, gentlemen, to trouble you with one more brief reference, let me show you what took place before that Act of the Provincial Congress was passed in the Province of Massachusetts. They had already passed a Provincial Act of the General Assembly, couched in similar language, authorizing cruisers and privateers against the enemies of that Province; and you will see what occurred. I read again from Cooper's Naval History, 1st Vol., p. 42. He is speaking of the year 1775:

"The first nautical enterprise that succeeded the battle of
Lexington was one purely of private adventure. The intelligence of
this conflict was brought to Machias, in Maine, on Saturday, the
9th of May, 1775. An armed schooner, in the service of the Crown,
called the Margaretta, was lying in port, with two sloops under her
convoy, that were loading with lumber on behalf of the King's
Government.

"The bearers of the news were enjoined to be silent,--a plan to
capture the Margaretta having been immediately projected among some
of the more spirited of the inhabitants. The next day being Sunday,
it was hoped that the officers of the schooner might be seized
while in church; but the scheme failed, in consequence of the
precipitation of some engaged. Captain Moore, who commanded the
Margaretta, saw the assailants, and, with his officers, escaped
through the windows of the church to the shore, where they were
protected by the guns of their vessel. The alarm was now taken;
springs were got on the Margaretta's cables, and a few harmless
shot were fired over the town by way of intimidation. After a
little delay, however, the schooner dropped down below the town to
a distance exceeding a league. Here she was followed, summoned to
surrender, and fired on from a high bank, which her own shot could
not reach. The Margaretta again weighed, and running into the bay,
at the confluence of the two rivers, anchored. The following
morning, which was Monday, the 11th of May, four young men took
possession of one of the lumber sloops, and, bringing her alongside
of a wharf, they gave three cheers as a signal for volunteers. On
explaining that their intentions were to make an attack on the
Margaretta, a party of about thirty-five athletic men was soon
collected. Arming themselves with firearms, pitchforks, and axes,
and throwing a small stock of provisions into the sloop, these
spirited freemen made sail on their craft, with a light breeze at
northwest. When the Margaretta observed the approach of the sloop,
she weighed and crowded sail to avoid a conflict that was every way
undesirable,--her commander not yet being apprised of all the facts
that had occurred near Boston. In jibing, the schooner carried away
her main-boom, but, continuing to stand on, she ran into Holmes'
Bay, and took a spar out of a vessel that was lying there. While
these repairs were making, the sloop hove in sight again, and the
Margaretta stood out to sea, in the hope of avoiding her. The
breeze freshened, and, with the wind on the quarter, the sloop
proved to be the better sailer. So anxious was the Margaretta to
avoid a collision, that Captain Moore now cut away his boats; but,
finding this ineffectual, and that his assailants were fast closing
with him, he opened a fire--the schooner having an armament of four
light guns and fourteen swivels. A man was killed on board the
sloop, which immediately returned the fire with a wall-piece. This
discharge killed the man at the Margaretta's helm, and cleared her
quarter-deck. The schooner broached to, when the sloop gave a
general discharge. Almost at the same instant the two vessels came
foul of each other. A short conflict now took place with
musketry,--Captain Moore throwing hand-grenades, with considerable
effect, in person. This officer was immediately afterwards shot
down, however, when the people of the sloop boarded and took
possession of their prize. The loss of life in this affair was not
very great, though twenty men, on both sides, are said to have been
killed and wounded. The force of the Margaretta, even in men, was
much the most considerable; though the crew of no regular cruiser
can ever equal, in spirit and energy, a body of volunteers
assembled on an occasion like this. There was, originally, no
commander in the sloop; but, previously to engaging the schooner,
Jeremiah O'Brien was selected for that station. This affair was the
Lexington of the sea,--for, like that celebrated land conflict, it
was a rising of the people against a regular force; was
characterized by a long chase, a bloody struggle, and a triumph. It
was also the first blow struck on the water, after the war of the
American Revolution had actually commenced."

And that is the act, gentlemen, which, instead of being the act of desperadoes, pirates, and enemies of the human race, is recorded in history as an act of spirited freemen. You will remember that the act was done without any commission; it was done while these Provinces were Colonies of the British Crown; it was done long before the Declaration of Independence. The Act of the Provincial Congress, so far as that could have any validity, authorizing letters of marque, was not passed until afterwards, on the 23d of March. The Declaration of Independence was passed on the 4th July, 1776. According to the theory on the other side, call this lawful secession--call it revolution--call it what you please,--these Confederate States, as they are called, are not independent. They have not any Government--they cannot do any thing until their independence is acknowledged by the United States. Therefore, according to the theory of the other side, no act of the Provincial Congress, no act of any of the United Colonies, had any validity in it until the treaty of peace between them and Great Britain was signed, in 1783. But, I need not tell you, gentlemen, that in this country, in all public documents, in all public proceedings, in the decisions of our Courts, the actual establishment of the independence of the United States is dated as having been accomplished on the 4th July, 1776. All the state papers that run in the name and by the authority of the United States of America, run in their name, and by their authority, as of such a year of their independence, dating from the 4th July, 1776. Let me, therefore, show you what was done by the Colonies, in 1776, before and after the date of the Declaration of Independence; and let me show how many piracies our hardy seamen of those days must have committed, on the theory of the prosecution in this case. I read again from Cooper's Naval History:

"Some of the English accounts of this period state that near a
hundred privateers had been fitted out of New England alone, in the
two first years of the war; and the number of seamen in the service
of the Crown, employed against the new States of America, was
computed at 26,000.

"The Colonies obtained many important supplies, colonial as well as
military, and even manufactured articles of ordinary use, by means
of their captures,--scarce a day passing that vessels of greater or
less value did not arrive in some one of the ports of their
extensive coast. By a list published in the 'Remembrancer,' an
English work of credit, it appears that 342 sail of English vessels
had been taken by American cruisers, in 1776; of which number 44
were recaptured, 18 released, and 4 burned."

Well, gentlemen, with these facts staring you in the face, I ask you if it is not flying in the face of history--if it is not rejecting and trampling in the dust the glorious traditions of our own country--to be asked seriously to sit in that jury box and try these men for their lives, as pirates and enemies of the human race, on the state of things existing here? Gentlemen, my mind may be under a strong hallucination on the subject; but I cannot conceive the theory on which the prosecution can come into Court, on the state of things existing, and ask for a conviction. Remember that, in saying that, I am speaking as a Northern man,--for I am a Northern man; I am speaking as a subject and adherent to the Government of the Union; I am speaking as one who loves the flag of this country--as one who was born under it--as one who hopes to be permitted to die under it; and I am speaking with tears in my eyes, because I do not want to see that flag tarnished by a judicial murder, and by an act cowardly and dastardly, as I say it would be, if we are to treat these men as pirates, while we are engaged in a hand-to-hand conflict with them with arms in the field, and while they are asserting and maintaining the rights which we claimed for ourselves in former ages. In God's name, gentlemen, let us, if necessary, fight them; if we must have civil war, let us convince them, by the argument of arms, and by other arguments that we can bring to bear, that they are in the wrong; let us bring them back into the Union, and show them, when they get back, that they have made a great mistake; but do not let us tarnish the escutcheon of our country, and disgrace ourselves in the eyes of the civilized world, by treating this mighty subject, when States are meeting in mortal shock and conflict, with the ax and the halter. In God's name, let us have none of that!

I have but one word more to say, gentlemen, before I close. I have already said that we claim that this commission is an adequate protection, considering that this is an inter-state war. It has been so considered, and is now so considered by the Government of the United States itself, because, after the conflict had commenced and had gone on for some time, it being treated by the Government at Washington as a mere rebellion or insurrection by insurgent and rebellious citizens in some of the Southern States, it was found that it had assumed too mighty proportions to be treated in that way, and therefore, in the month of July last, the Congress then in session passed an Act, one of the recitals of which was that this state of things had broken out and still existed, and that the war was claimed to be waged under the authority of the governments of the States, and that the governments of the States did not repudiate the existence of that authority. Congress then proceeded to legislate upon the assumption of the fact that the war was carried on under the authority of the governments of the States. There is a distinct recognition by your own Government of the fact that this is an inter-state war, and that the enemies whom our brave troops are encountering in the field are led on under authority emanating from those who are rightfully and lawfully administering the Government of the States.

You will recollect, gentlemen, that in most of those States the State governments are the same as they were before this condition of things broke out. There has been no change in the State constitutions. In a great many of them there has been no change in the personnel of those administering the government. They are the recognized legitimate Governors of the States, whatever may be said of those claiming to administer the Government of the Confederate States.

But, gentlemen, let us pass from that, and let us suppose it was not a war carried on by authority of the States. It is, then, a civil war, and a civil war of immense and vast proportions; and the authorities are equally clear in that case, that, from the moment that a war of that kind exists, captures on land and at sea are to be treated as prizes of war, and prisoners treated as prisoners of war, and that the vocation of the ax and the halter are gone. I refer you to but a single authority on this subject, because I have already occupied more of your time than I had intended doing, and I have reason to be very grateful to you for the patience and attention with which you have listened to me in the extended remarks that I was obliged to make. I refer to Vattel, Book 3, cap. 18, secs. 287, 292 and 293:

"_Sec. 287._ It is a question very much debated whether a sovereign
is bound to observe the common laws of war towards rebellious
subjects who have openly taken up arms against him. A flatterer, or
a Prince of cruel and arbitrary disposition, will immediately
pronounce that the laws of war were not made for rebels, for whom
no punishment can be too severe. Let us proceed more soberly, and
reason from the incontestible principles above laid down."

The author then proceeds to enforce the duty of moderation towards mere rebels, and proceeds:

"_Sec. 292._ When a party is formed in a State who no longer obey
the sovereign, and are possessed of sufficient strength to oppose
him; or when, in a Republic, the nation is divided into two
opposite factions, and both sides take up arms, this is called a
civil war. Some writers confine this term to a just insurrection of
the subjects against their sovereign to distinguish that lawful
resistance from rebellion, which is an open and unjust resistance.
But what appellation will they give to a war which arises in a
Republic, torn by two factions, or, in a Monarchy, between two
competitors for the Crown? Custom appropriates the term of civil
war to every war between the members of one and the same political
society. If it be between part of the citizens on the one side, and
the sovereign with those who continue in obedience to him on the
other, provided the malcontents have any reason for taking up arms,
nothing further is required to entitle such disturbance to the name
of civil war, and not that of rebellion. This latter term is
applied only to such an insurrection against lawful authority as is
void of all appearance of justice. The sovereign, indeed, never
fails to bestow the appellation of rebels on all such of his
subjects as openly resist him; but when the latter have acquired
sufficient strength to give him effectual opposition, and to oblige
him to carry on the war against them according to the established
rules, he must necessarily submit to the use of the term civil war.

"_Sec. 293._ It is foreign to our purpose, in this place, to weigh
the reasons which may authorize and justify a civil war; we have
elsewhere treated of the cases wherein subjects may resist the
sovereign. (Book 1, cap. 4.) Setting, therefore, the justice of the
cause wholly out of the question, it only remains for us to
consider the maxims which ought to be observed in a civil war, and
to examine whether the sovereign, in particular, is on such an
occasion bound to conform to the established laws of war.

"A civil war breaks the bonds of society and Government, or at
least suspends their force and effect; it produces in the nation
two independent parties, who consider each other as enemies, and
acknowledge no common judge. Those two parties, therefore, must
necessarily be considered as thenceforward constituting, at least
for a time, two separate bodies--two distinct societies. Though one
of the parties may have been to blame in breaking the unity of the
State, and resisting the lawful authority, they are not the less
divided in fact. Besides, who shall judge them? Who should
pronounce on which side the right or the wrong lies? On each they
have no common superior. They stand, therefore, in precisely the
same predicament as two nations who engage in a contest, and, being
unable to come to an agreement, have recourse to arms.

"This being the case, it is very evident that the common laws of
war--those maxims of humanity, moderation and honor, which we have
already detailed in the course of this work--ought to be observed
by both parties in every civil war. For the same reasons which
render the observance of those maxims a matter of obligation
between State and State, it becomes equally and even more necessary
in the unhappy circumstances of two incensed parties lacerating
their common country. Should the sovereign conceive he has a right
to hang up his prisoners as rebels, the opposite party will make
reprisals; if he does not religiously observe the capitulations,
and all other conventions made with his enemies, they will no
longer rely on his word; should he burn and ravage, they will
follow his example; the war will become cruel, horrible, and every
day more destructive to the nation."

After noticing the cases of the Duc de Montpensier and Baron des Adrets, he continues:

"At length it became necessary to relinquish those pretensions to
judicial authority over men who proved themselves capable of
supporting their cause by force of arms, and to treat them not as
criminals, but as enemies. Even the troops have often refused to
serve in a war wherein the Prince exposed them to cruel reprisals.
Officers who had the highest sense of honor, though ready to shed
their blood on the field of battle for his service, have not
thought it any part of their duty to run the hazard of an
ignominious death. Whenever, therefore, a numerous body of men
think they have a right to resist the sovereign, and feel
themselves in a condition to appeal to the sword, the war ought to
be carried on by the contending parties in the same manner as by
two different nations, and they ought to leave open the same means
for preventing its being carried into outrageous extremities and
for the restoration of peace."

Now, gentlemen, can anything be more explicit on this subject, leaving out of view all questions of the authority of the States or of the Confederate Government to issue this commission? Can anything be more pointed or more direct on the question? Treat this as a mere civil war--treat it as though all State lines of the Union were obliterated, and as though this was a common people, actuated by some religious or political fanaticism, who had set themselves to cutting each others' throats--treat it as a purely civil strife, without any question of State sovereignty or State jurisdiction connected with it,--and still you have the authority of Vattel, an authority than which none can be higher, as the Court will tell you--and I could multiply authorities on that point from now until the shadows of night set in--that even in that case it is obligatory to observe the laws of war just the same as if it was a combat between two nations, instead of between two sections of the same people. Even if there was no commission whatever here, by any one having a color or pretence of right to issue it, but if those belonging to one set of combatants, in a civil strife which had reached the magnitude and proportions of which Vattel speaks, had set out to cruise, and had captured this vessel, I submit to you that it could not be treated as a case of piracy.

I have closed, gentlemen, the argument which, on opening the case, I have thought it necessary to advance in order that you may be able to apply the evidence. Every word that Vattel says there endorses the entreaty which I have made to you, as you love your country and as you love her prosperity, to view this case without passion and without prejudice created by the section in which you live, as I know and trust by your looks and indications that you will. And I say to you, gentlemen, that a greater stab could not be inflicted on our Government--not a greater wound could be given to the cause in which we all, in this section of the country, are enlisted--than to proclaim the doctrine that these cases are to be treated as cases for the halter, instead of as cases of prisoners of war between civilized people and nations. The very course of enlistment of troops for the war has been stopped in this city by that threat. As I said before, the officers and soldiers on the banks of the Potomac, if they could be appealed to on that question, would say, "For God's sake, leave this to the clash of arms, and to regular and legitimate warfare, and do not expose us to the double hazard of meeting death on the field, or meeting an ignominious death if we are captured." And as history has recorded what I have called your attention to as having occurred in the days of the Revolution, so history will record the events of the year and of the hour in which we are now enacting our little part in this mighty drama. The history of this day will be preserved. The history of your verdict will be preserved. You will carry the remembrance of your verdict when you go to your homes. It will come to you in the solemn and still hours of the night. It will come to you clothed in all the solemn importance which attaches to it, with the lives of twelve men hanging upon it, with the honor of your country at stake, with events which no one can foresee to spring from it. And I have only to reiterate the prayer, for our own sake and for the sake of the country, that God may inspire you to render a verdict which will redound to the honor of the country, and that will bring repose to your own consciences when you think of it, long after this present fitful fever of excitement shall have passed away.

DOCUMENTARY TESTIMONY.

_Mr. Brady_, for the defence, put in evidence the following documents:

1. Preliminary Chart of Part of the sea-coast of Virginia, and Entrance to Chesapeake Bay.--Coast Survey Work, dated 1855.

2. The Constitution of Virginia, adopted June 29, 1776. It refers only to the western and northern boundaries of Virginia--Art. 21--but recognizes the Charter of 1609. That charter (Hemmings' Statutes, 1st vol., p. 88) gives to Virginia jurisdiction over all havens and ports, and all islands lying within 100 miles of the shores.

3. The Act to Ratify the Compact between Maryland and Virginia, passed January 3, 1786--to be found in the Revised Code of Virginia, page 53. It makes Chesapeake Bay, from the capes, entirely in Virginia.

_Mr. Sullivan_ also put in evidence, from _Putnam's Rebellion Record_, the following documents:

1. Proclamation of the President of the United States, of 15th April, 1861. (_See Appendix._)

2. Proclamation of the President, of 19th April, 1861, declaring a blockade. (_See Appendix._)

3. Proclamation of 27th April, 1861, extending the blockade to the coasts of Virginia and North Carolina.

4. Proclamation of May 3d, for an additional military force of 42,034 men, and the increase of the regular army and navy.

5. The Secession Ordinance of South Carolina, dated Dec. 20, 1860.

_Mr. Smith_ stated that, in regard to several of the documents, the prosecution objected to them,--not, however, as to any informality of proof. He supposed that the argument as to their relevancy might be reserved till the whole body of the testimony was in.

_Judge Nelson_: That is the view we take of it.

_Mr. Brady_ suggested that the defence would furnish, to-morrow, a list of the documents which they desired to put in evidence.

The Court then, at half-past 4 P.M., adjourned to Friday, at 11 A.M.

THIRD DAY.

_Friday, Oct. 25, 1861._

The Court met at 11 o'clock A.M.

_Mr. Brady_ stated to the Court that two of the prisoners--Richard Palmer and Alexander Coid--were exceedingly ill, suffering from pulmonary consumption, and requested that they might be permitted to leave the court-room when they wished. It was not necessary that they should be present during all the proceedings.

_Mr. Smith_: It would be proper that the prisoners make the application.

_Mr. Brady_: They will remain in Court as long as they can; and will, of course, be present when the Court charges the Jury.

_The Court_ directed the Marshal to provide a room for the prisoners to retire to, when they desired.

_Mr. Sullivan_: Before adjourning yesterday it was stated that the different ordinances of the seceded States were all considered in evidence without being read.

_Mr. Smith_: Are any of them later in date than the commission to the Savannah?

_Mr. Sullivan_: No, sir. Some States have seceded since the date of the commission, and have been received into the Confederacy.

_Mr. Evarts_: We will assume, until the contrary appears, that there are no documents of date later than the supposed authorization of the privateer.

_Mr. Larocque_: With this qualification,--that there are a great many documents from our own Government which recognize a state of facts existing anterior to those documents.

_Mr. Sullivan_ read in evidence from page 10 of _Putnam's Rebellion Record_:

Letter from Secretary of War, John B. Floyd, to President James
Buchanan, dated December 29, 1860.

President Buchanan's reply, dated December 31, 1860.

Also, from page 11 of _Rebellion Record_:

The Correspondence between the South Carolina Commissioners and the President of the United States.

[Considered as read.]

Also, referred to page 19 of _Rebellion Record_, for the Correspondence between Major Anderson and Governor Pickens, with reference to firing on the _Star of the West_.

Read Major Anderson's first letter (without date), copied from _Charleston Courier_, of Jan. 10, 1861. (_See Appendix._)

Governor Pickens' reply, and second communication from Major Anderson. (_See Appendix._)

Also, from page 29 of _Rebellion Record_, containing the sections of the Constitution of the Confederate States which differ from the Constitution of the United States.

Also, from page 31 of _Rebellion Record_: Inaugural of Jefferson Davis, as President of the Confederate States.

Also, page 36 of _Rebellion Record_: Inaugural of Abraham Lincoln, President of the United States, (for the passages, _see Appendix_.)

Also, page 61 of _Rebellion Record_: The President's Speech to the Virginia Commissioners. (_See Appendix._)

Also, page 71 of _Rebellion Record_: Proclamation of Jefferson Davis, with reference to the letters of marque, dated 17th April, 1861.

Also, page 195 of _Rebellion Record_: An Act recognizing a state of war, by the Confederate Congress,--published May 6, 1861.

[Read Section 5.]

_Mr. Lord_ read from pages 17, 19, and 20, of _Diary of Rebellion Record_, to give the date of certain events:

1861, February 8. The Constitution of the Confederate States adopted.
February 18. Jefferson Davis inaugurated President.
February 21. The President of the Southern Confederacy nominates
members of his Cabinet.
February 21. Congress at Montgomery passed an Act declaring the
establishment of free navigation of the Mississippi.
March 19. Confederates passed an Act for organizing the
Confederate States.
April 8. South Carolina Convention ratified the Constitution of
the Confederate States by a vote of 119 to 16.

_Mr. Sullivan_: We propose now to introduce the papers found on board the Savannah when she was captured. The history of these papers is, that they were captured by the United States officers, taken from the Savannah, and come into our hands now, in Court, through the hands of the United States District Attorney, in whose possession they have been;--and they have been proceeded upon in the prize-court, for the condemnation of the Savannah. The first I read, is--

The Commission to the Savannah, dated 18th May, 1861.

Also, put in evidence, copy of Act recognizing the existence of war between the United States and the Confederate States, and concerning letters of marque,--approved May 6, 1861.

Also, read _President Davis' Instructions to Private Armed Vessels_,--appended to the Act.

Also, an Act regulating the sale of prizes, dated May 6, 1861,--approved May 14, 1861.

Also, an Act relative to prisoners of war, dated May 21, 1861.

_Mr. Sullivan_ also read in evidence three extracts from the Message of President Lincoln to Congress, at Special Session of July 4, 1861. (_See Appendix._)

Also, extracts from the Message of President Buchanan, at the opening of regular Session of Congress, December 3d, 1860. (_See Appendix._)

Also, from page 245 of _Rebellion Record_: Proclamation of the Queen of Great Britain, dated May 13, 1861.

_Mr. Evarts_ objected to this, on the ground that it could not have been received here prior to the date of the commission.

Objection overruled.

Also, from page 170 of _Rebellion Record_: Proclamation of the Emperor of France,--published June 11, 1861.

Also, the Articles of Capitulation of the Forts at the Hatteras Inlet, dated August 29th, on board the United States flagship Minnesota, off Hatteras Inlet.

_Mr. Evarts_ remarked that this latter document was not within any propositions hitherto passed upon; but he did not desire to arrest the matter by any discussion, if their honors thought it should be received.

_Judge Nelson_: It may be received provisionally.

_Mr. Brady_ also put in evidence the _Charleston Daily Courier_, of 11th June, 1861, containing a Judicial Advertisement,--a monition on the filing of a libel in the Admiralty Court of the Confederate States of America, for the South Carolina District, and an advertisement of the sale of the Joseph, she having been captured on the high seas by the armed schooner Savannah, under the command of T. Harrison Baker,--attested in the name of Judge Magrath, 6th June, 1861.

And containing, also, a judicial Act, relating to the administration of an estate in due course of law.

_Mr. Brady_ stated that the reference was to show that they had a judicial system established under their own Government.

_Lieutenant D. D. Tompkins_ recalled for the defence, and examined by _Mr. Sullivan_.

_Q._ State your knowledge as to the sending of any flags of truce while your vessel, the Harriet Lane, was lying at Fortress Monroe?

(Same objection; received provisionally.)

_A._ I have seen flags of truce come down from the direction of Norfolk.

_Q._ Did your vessel have any communication with the officer bearing the flag of truce?

_A._ No, sir.

_Q._ Did they come with the Confederate flag flying on the same vessel with the flag of truce?

_A._ Yes. One vessel came down with the Confederate flag flying, and a flag of truce, also.

_Q._ Where was it received, and by what officer?

_A._ I am not positive whether it was received by the Cumberland or the Minnesota. They communicated with either of those vessels.

_Q._ Were any vessels or boats, with flags of truce, ever sent from Fort Monroe toward the Confederate forces?

_A._ I have seen vessels go up the Roads with a flag of truce.

_Q._ And the United States flag on the same vessels?

_A._ Yes.

_Q._ You saw Captain Baker and the other prisoners--were they uniformed?

_A._ No, sir; I do not think they had any regular uniform. Captain Baker had a uniform, with metal buttons on his coat. I did not notice what was on the buttons.

_Q._ He had on such a dress as he wears to-day?

_A._ Something similar to that. He was the only one who had a uniform.

_Q._ Do you know anything as to the exchange of prisoners between the forces of the United States and of the Confederate States on any station where you have been?

_A._ No, sir.

The defence here closed.

The District Attorney stated that the prosecution had no rebutting evidence to offer.

_Judge Nelson_: Before counsel commence summing up the case to the Jury, they will please present the propositions of law on both sides.

_Mr. Lord_: I was going to ask my friends on the other side to give us their authorities, so that we shall know what we are to go to the Jury upon. We would then be able to lay our views before the Court and to divide the labor of summing up--some of us addressing ourselves entirely to the Court.

_Mr. Evarts_: I would have no objection to taking that course if I had been prepared for it. In the presentation of the case, we rely on the statute of the United States--on the fact that the defendants are within the terms of the statute; and that the affirmative defence, growing out of the state of things in this country, does not apply in a Court of the United States, and under a statute of the United States, which still covers the condition of the persons brought in. Whether they are citizens or aliens, nothing has been shown which takes them out of the general operation of our laws. On the question of the ingredients of the crime of piracy--which is a particular inquiry, irrespective of the considerations connected with the state of war--I do not know that we need refer to anything which is not quite familiar. The cases referred to by the learned counsel for the prisoners--the United States _vs._ Jones, the United States _vs._ Palmer, and the United States _vs._ Tully--contain all the views in reference to the ingredients of the crime of piracy, or to the construction of the statutes, that we need to present. In the general elementary books to which the learned counsel have referred--the various books on the Pleas of the Crown--there are passages to which we shall have occasion to refer.

_Judge Nelson_: The counsel for the Government should give to the counsel on the other side, before the summing up is commenced, all the authorities on which they intend to rely.

_Mr. Evarts_: That we shall do, of course.

_Judge Nelson_: We will take them now.

_Mr. Evarts_: I refer to 1st East's Pleas of the Crown, 70-1.

It is under the title of Treason, but it is on the point of the character of the crime as qualified by the influence on the party, of force, or of the state of the population by which the accused was surrounded. I read from page 70:

"Joining with rebels freely and voluntarily in any act of rebellion
is levying war against the King; and this, too, though the party
was not privy to their intent. This was holden in the case of the
Earl of Southampton, and again in Purchase's case, in 1710. But yet
it seems necessary, in this case, either that the party joining
with rebels, and ignorant of their intent at the time, should do
some deliberate act towards the execution of their design, or else
should be found to have aided and assisted those who did. * * * But
if the joining with rebels be from fear of present death, and while
the party is under actual force, such fear and compulsion will
excuse him. It is incumbent, however, on the party setting up this
defence, to give satisfactory proof that the compulsion continued
during all the time that he stayed with the rebels."

The case of Axtell, one of the regicides, is referred to. The defense was set up for him that he acted by command of his superior officer; but that was ruled to be no defence. I now read from page 104:

"One species of treason, namely, that of committing hostilities at
sea, under color of a foreign commission, or any other species of
adherence to the King's enemies there, may be indicted and tried as
piracy, by virtue of the statutes."

That is, that although being guilty of treason, in its general character of adhering to the enemy, yet it also falls within the description of piracy, and may be proceeded against as such. On the question of the element of force or intimidation as entering into the crime of robbery, I refer to 1st Hawkins' Pleas of the Crown, page 235:

"Wherever a person assaults another with such circumstances of
terror as put him into fear, and cause him, by reason of such fear,
to part with his money, the taking thereof is adjudged robbery,
whether there were any weapon drawn, or not, or whether the person
assaulted delivered his money upon the other's command, or
afterwards gave it him upon his ceasing to use force, and begging
an alms; for he was put into fear by his assault, and gives him his
money to get rid of him.

"But it is not necessary that the fact of actual fear should either
be laid in the indictment or be proved upon the trial; it is
sufficient if the offence be charged to be done _violenter et
contra voluntatem_. And if it appear upon the evidence to have been
attended with those circumstances of violence or terror which in
common experience are likely to induce a man to part with his
property against his consent, either for the safety of his person
or for the preservation of his character and good name, it will
amount to a robbery."

I refer to Hale's Pleas of the Crown, vol. I., p. 68, on the question of double or doubtful allegiance:

"Though there may be due from the same person subordinate
allegiances, which, though they are not without an exception of
the fidelity due to the superior Prince, yet are in their kind
_sacramenta ligea fidelitatis_, or subordinate allegiances, yet
there can not, or at least should not, be two or more co-ordinate
allegiances by one person to several independent or absolute
Princes; for that lawful Prince that hath the prior obligation of
allegiance from his subject can not lose that interest without
his own consent, by his subject's resigning himself to the
subjection of another."

I refer to the case of the United States _against_ Tully, 1st Gallison's Reports, p. 253-5, to show that the statute does not, in terms, require that there shall be any personal violence or putting in fear to constitute robbery, provided the offence is committed _animo furandi_.

I also refer to the case of the United States _vs._ Jones, 3 Washington C.C.R., p. 219, on the point of the justification given by a commission; to the case of United States _vs._ Hayward, 2 Gallison, 501; to the observations of Chancellor Kent, vol. I., p. 200, marginal page 191; to the United States _vs._ Palmer, 3 Wheaton, p. 634, as to the manner in which our Courts deal with international questions respecting the recognition of nationalities; to the case of the Santissima Trinidad, Kent's Commentaries, vol. I., p. 27, marginal page 25; to the case of Rose _vs._ Hinely, 4 Cranch, 241. I refer to the latter case for the general doctrines therein contained on the proposition that although a parent or original Government may find the magnitude and power of the rebellion such as to induce or compel it to resort to warlike means of suppression, so as that toward neutral nations there will grow up such a state of authority as will compel the recognition by neutral nations of the rights of war and belligerents, that is not inconsistent with or in derogation of the general proposition that the parent Government still maintains the sovereignty, and can enforce its municipal laws, by all those sanctions, against its rebellious subjects. In other words, that the flagrancy of civil war, which gives rise to the aspect and draws after it the consequences of war, does not destroy either the duty of allegiance or the power of punishing any infraction of law which the rebels may be guilty of, either in reference to the principal crime of treason, or in reference to any other violation of municipal rights.

I also ask your honors' attention to a recent charge of Judge Sprague, to the Grand Jury in the Massachusetts District, in reference to the crime of piracy.

On the question of jurisdiction, I refer to the case of the United States _vs._ Hicks, decided in this Court.

I refer to the case of the Mariana Flora, to show that the arrest of a pirate at sea arises under a general principle of the law of nations, which authorizes either a public or a private vessel to make the arrest. It is analogous to the common-law arrest of a felon. The point in the case of the Mariana Flora is, that any public or private vessel has a right to arrest a piratical vessel at sea and bring it in. It differs in that respect from the authority to arrest a slaver.

On the general question of the ingredients of robbery, I refer to Archbold's Criminal Practice and Pleadings, 2 vol., p. 507, marginal pages 417, 510, 526.

In political connections I shall have occasion to refer to the Constitution of the United States and to the Articles of the Confederation, to the Virginia and Kentucky resolutions, and the answers of the other States of the Union, which will be found collected in Ellett's Debates, vol. 4, pages 528 to 545.

I may refer also to Mr. Pinckney's speech in the Convention of South Carolina which adopted the Constitution, same volume, p. 331; to the formal ratifications of the Constitution by the different States of the Union, same volume, p. 318; and I may have occasion to refer to Grotius in connection with the discussion of the general state of war. The citations will be--book 1st, chap. 1, secs. 1 and 2; chap. 3, secs. 1 and 4; and chap. 4, sec. 1.

MR. LORD'S ARGUMENT.

_Mr. Lord_, of counsel for the defence, said:

May it please your honors,--The distribution of duties which counsel for the defence have made among themselves is, that I shall briefly present the propositions of law, somewhat irrespective of the wide political range which my friends seem to think is to be involved. I shall not pursue even the field which Mr. Larocque has opened, knowing that he has cultivated it to a far greater degree than I have, and therefore I will leave it to him to till. My friend, Mr. Brady, will address the Jury on any questions of fact that may be supposed to be involved.

Before I enter upon the discussion, and with the view that this case may be relieved from one prejudice which probably every man has felt on first hearing of it, I beg leave to set ourselves all right on the idea that there is something different in a private armed ship from a public armed vessel, in the law, and in the view of the people of the country. I desire to read on that subject a letter from Mr. Marcy to the Count de Sartiges.

_Mr. Lord_ read the letter, and continued: