Front matter (continued 4)

"And by the 11th Henry VII., ch. 1, it is declared 'that all subjects are bound by their allegiance to serve their Prince and Sovereign Lord for the time being in his wars for the defence of him and his land against every rebellion, power, and might reared against him, &c., and that it is against all laws, reason, and good conscience that he should lose or forfeit any thing for so doing;' and it is enacted 'that from thenceforth no person or persons that attend on the King for the time being, and do him true and faithful allegiance in his wars, within the realm or without, shall for the said deed and true duty of allegiance be convict of any offence.'"

"Sec. 15. From hence it clearly follows: First, that every King for the time being has a right to the people's allegiance, because they are bound thereby to defend him in his wars, against every power whatsoever.

"Sec. 16. Secondly, that one out of possession is so far from having any right to allegiance, by virtue of any other title which he may set up against the King in being, that we are bound by the duty of our allegiance to resist him."

And these doctrines, if the Court please, have been recently acted upon and enforced by a learned Judge in the case of the United States vs. The General Parkhill, tried in Philadelphia, and published in the newspapers, although not yet issued in the regular volumes of Reports.

I need not tell you, gentlemen, that what is said there of the King, applies to any other form of Government equally well, whether it be a republican form of Government, or whatever it may be. These doctrines belong to this country as well as they belong to England. They belong to every country which has adopted the common law; and what would be due to a King in the actual possession of the Government in England, under our statutes and decisions, and under the rules adopted here, would be equally due to a President of the United States in any part of the country in which we live.

I have only to call your attention, in that connection, in opening the defence, to what the condition of things was in the South at the time the acts charged in the indictment occurred. You will bear in mind there is no pretence in this case that any one of these prisoners had anything whatever to do with the initiation of this controversy,—with the overthrow or disappearance of the United States authority in those Confederate States, or with any act occurring anterior to the 2d of June, when this vessel, the Savannah, started upon her career. Nothing, so far, appears, and, in reality, nothing can be made to appear, to show any event, before that time, with which they were connected.

The question, then, is, What was the state of things existing in Charleston, and in the Confederate States, at that time? In the course of the evidence, we will lay that before you, in the completest form it can be laid. We will show you, by the official documents, by the messages of the President, by proclamations, and by the Acts of Congress themselves, that there was not an officer of the United States exercising jurisdiction in one of these Confederate States—not a Judge, or Marshal, or District Attorney, or any other officer by whom the Government had been previously administered on the part of the United States. Every one of them had resigned his office. This new Government had been formed. It was the existing Government, which had replaced the United States in all these States, long anterior to the time that this vessel was fitted out and sailed from the port of Charleston; and upon these questions, whether that was a de jure or de facto Government, we say it was the existing Government that was in authority over these men—that exercised the power of life and death over them, for it had Courts administering its decrees, as well as every other form and all the other insignia of power; and they were justified by overruling necessity, and by every other title, in yielding obedience to that Government, and in yielding their allegiance to it, as the cases I have read decide; and that duty enjoined upon their consciences to aid and support it by all means in their power from that time forward, until there was another Government over them.

I say, therefore, gentlemen, that this was not a commission issued by a "person, to wit, one Jefferson Davis." I say it was a commission issued by several of the States of the Union, represented, if you please, by Jefferson Davis, and by authority, in fact, from those States, and from the Government in force over them. And more than that, gentlemen, to bring the case still more clearly within the authorities I have read to you, and which you, no doubt, carry in your minds, we will show by the declarations of the Presidents of the United States—by the declaration of Mr. Buchanan, in December, 1860, and by the declaration of Mr. Lincoln, on the 4th of March, 1861—that neither of them, at either of those dates, intended to interfere, or to attempt to interfere, by force, with this existing Government. They both, publicly and solemnly, in the presence of the United States, declared that they would not attempt, by any forcible invasion of those States, to overthrow the Government established over them;—that there would be no "invasion," is the expression;—that they would leave it to the sober second thought of the people of those States, by process of time, by maturer thought and better reflection, to return, probably, to their former position under the Government of the United States. And what were men to do, in that condition of things, in the State of South Carolina, in the State of Georgia, or in any one of those States, with not an officer of the United States to protect them—with not a Court of Justice to protect them—with Courts of Justice, on the contrary, organized by the new Government, and exercising dominion of life and death, and every other dominion that Government could exercise—but to yield their allegiance to it, and from thenceforth to support it, as honest men should do, who yield their allegiance to the Government?

As I said before, in respect to this question, even if this were a voluntary act on the part of the prisoners—if they were not controlled by necessity—if they had a state of things before them which authorized them to believe that their conduct was right—that the States did nothing more than they had a right to do—they were justified in giving allegiance to the Government in existence. We have nothing to say as to the correctness of the political views or opinions of the prisoners whatever. The question is, What did these men believe—what were they taught to believe, by your own expounders of the Constitution—what did they conscientiously and sincerely believe? When they acted under this commission, did they believe that it was a legitimate authority, and had they full color for the belief which they held?

And now, gentlemen, another point that we shall maintain before you is, that under the Constitution of the United States, those States had color of authority to grant this commission; and that the executive government of the State had the jurisdiction to decide, for all the citizens of the State, whether the emergency for taking hostile proceedings against the General Government had arrived, or not. And I know that, in saying that, I am speaking to this Jury an unpalatable doctrine, at the present day; but it is a doctrine which is amply borne out by the cotemporaneous expositions of the Constitution, penned by its own framers, by the decisions of the Courts, and by authorities on which we are accustomed to rely for questions of that character.

Now, the Constitution of the country is a complex one. There are two sovereigns in every State, exercising allegiance over the inhabitants of the State. The one sovereign is the United States of America, and the other sovereign is the State in which the citizen lives. And when I say that, I am speaking in the language of the Supreme Court of the United States itself, over and over repeated, as late as the 21st of Howard's Reports (but a few removes, I believe, from the last volume issued from that Court), without a dissenting voice. The theory of our Government is, that the States are sovereign and independent, and that, in coming into the Union, they have retained that sovereignty and independence for every purpose, and in every case, except those in which an express grant of power has been made to the Government of the United States, either in express words, or by necessary implication; and the Courts have held, over and over again, that any act of the General Government of the United States, which transcends the express grant of power made by the Constitution, is absolutely void, to all intents and purposes whatever.

And more than that, gentlemen, the citizen of a State cannot only commit treason against the United States, or other kindred political offences; but he can, in like manner, commit treason against the State in which he lives, or other kindred political offences against its government.

The Constitution of the United States defines treason to be, "levying war against the United States, or adhering to their enemies, giving them aid and comfort." The Constitution of the State of New York defines treason against the State of New York to be, "levying war against the State, or adhering to its enemies, giving them aid and comfort." The Constitution of South Carolina defines and punishes treason against the State, in the language of the old English statute, bringing it to precisely the same thing.

As I said, therefore, the citizen of New York or the citizen of South Carolina (because, whether in one or the other locality, it is the same thing) is under two sovereigns, owing allegiance to each of them—the sovereign State in which he is, owning the whole mass of residuary power (as it has been happily expressed in the decisions of the Court) beyond the express, limited power granted to the Federal Government by the Constitution of the United States.

I want to call your attention to another thing, as I go along with this line of the argument. I contend that, among the powers which have been delegated to the State governments by the Constitutions of the States, is the power in the executive government of the State, co-ordinately with the General Government, to decide whether itself or the General Government has transcended the line which bounds their respective jurisdictions, upon any case in which a collision may arise between them, which affects the public domain of the State, or the whole State, or its citizens, considered as a body politic. And you will see, in a moment, the reason why I state my proposition in that way.

You have all heard of what, in the history of the country, has been called nullification, and you probably all understand very nearly what that is. By nullification, as it has been spoken of in the history of our country, was meant the claim on the part of a State, by a convention of its people, or otherwise, to decide that the laws of the United States should not operate within its limits upon its citizens, in cases where the law could legitimately operate upon individual citizens. Because you will all recollect that the laws of the United States, in their operation throughout the Union—their criminal laws, laws for the collection of duties, and similar laws—operate upon individual citizens, without reference to whether they are citizens of one State or another. The law operates upon them as people of the United States. And therefore, if you are carrying on business in the port of New York, and a consignment comes to you, it is a question between you as a citizen of the United States and the Government whether the tariff, under which duties are attempted to be collected is valid, as between you and the Government, or not—whether it was legitimate for Congress to pass that tariff; and, in all cases arising on these subjects, the Constitution has provided a tribunal, an arbiter, which is supreme and final, without any appeal. For instance, if you deny the validity of the law under which duties are attempted to be collected upon the goods imported by you, and the Collector attempts to collect them, you refuse to pay, or pay under protest,—and the case must come into the District Court of the United States; and if the Court decides that the law was unconstitutional, you get immediate redress; if it decides that it was constitutional, the question can be carried to the Supreme Court of the United States, and there finally settled. And, therefore, I say that in all cases that come within the purview of the judicial department of the Government, the laws of the United States, as administered by the Courts, and their decisions, bind the citizens of the States in every part of the land.

But, gentlemen, there are an immense class of cases constantly arising where no opportunity can ever be presented to a Court to pass upon them, which were never intended to be passed upon by a Court, which are cases of collision between the executive department of the General Government and the State government in matters, as I expressed it to you before, affecting the public domain, or the State or its citizens as a body politic. As laid down by the expounders of the Constitution of the United States, that instrument is one to which the States are parties, as well as the people of the United States and people of each State.

Suppose a case of this kind. It is not a case likely to arise; but every case may arise, as we have been sadly admonished by the events of the last few months. Suppose we had a President in the executive chair at Washington who was a citizen of the State of Massachusetts, and greatly interested in the prosperity of the commerce of the City of Boston; and suppose that, being a wicked man (for wicked men have been sometimes elected to offices in this and every country), he had conceived the iniquitous design of ruining the commerce of New York, for the purpose of benefiting the commerce of the City of Boston; and suppose, in the prosecution of that wicked design, without the pretense of authority to do so under the Constitution of the United States, without a pretense that Congress had passed any law authorizing him to do anything of the kind, he should station a fleet of vessels, by orders to the commander of his squadron, off the harbor of New York, and should say, from this day forward the commerce of the port of New York is hermetically closed, and the commerce which has formerly gone to New York must go to Boston. Is the State of New York, under a condition of things of that kind, to submit to the closing of her commerce, to her ruin and destruction? Can she get before the Courts for redress against such an infringement of the Constitution by the President? How is she to get there? She cannot go to the Supreme Court of the United States, for in the Courts of the United States there is no form of jurisdiction by which the question can be brought before the Courts by any possibility whatever; and New York is a sovereign and independent State, and, so far as she has not conceded jurisdiction to the United States by the Constitution, has a right to exercise every sovereign and independent power that she has. There is a case, therefore, in which the Courts of law can afford no redress,—in which the Constitution has erected no common arbiter between the General Government and the government of the State.

Who, then, is the arbiter in such a case? Why, gentlemen, the books have expressed it. It is the last argument of Kings—it is the law of might; and in case of a collision of that kind, I maintain before you, upon this trial, that the State has a right to redress herself by force against the General Government; that she has a right, if necessary, to commission cruisers, to drive the squadron away from the port of New York; and she has a right, if more effectual, to commission private armed vessels to aid in driving them away, or to capture or subdue them. There being no common arbiter between her and the General Government in a case of that kind, she has a right to use force in redressing herself, and to take the power into her own hands.

And the authorities are uniform upon that subject. I have been obliged to detain you so long that I shall not read them to you; but I have them collected before me, and in the future discussions which may take place before the Court I shall be able to show that that right was maintained by Hamilton, one of the most distinguished members of the Convention who helped to frame the Constitution, and the strongest advocate of placing large powers in the hands of the Federal Government; by Madison, Jefferson, and all the Fathers of the Constitution, and by all who have written upon the subject; that it is a doctrine which has been asserted by the Legislature of the State of New Jersey, and, indeed, by the State Legislatures of all the States, pretty much, in which the question has arisen—that the Supreme Court of the United States have themselves over and over again declared that the only safeguard that existed, under the Constitution, against the right of the State to come into collision with the General Government, in all cases whatever, was the existence of the judiciary power, in cases where that was applicable between them, and that in all cases where that judiciary power failed, they were left to the law of nature and the might of Kings to redress themselves.

Now, gentlemen, if I am right in that step in my argument,—if that right would exist at any time or under any circumstances,—there must be some authority, in the State that has the jurisdiction, to decide for the citizens of the State when that occasion has arisen; and there must be some authority in the United States which has a right to decide for the Government of the United States when that occasion has arisen; whose decision (that is, in the General Government) is binding for the people of all the States, except the State in collision with the Federal Government and which makes a contrary decision; and whose decision, in that State, is an authority and protection for all the citizens of that State.

I say to you, moreover, gentlemen, that that right, under the law of nature, to resist the attempted usurpation of a power which has not been granted by the Constitution, resides, in a State, in the executive government, and necessarily in the Governor of the State; because you will recollect one of the premises upon which we started was, that all the residuary power in the government, beyond what had been expressly ceded to the Government of the United States by the Federal Constitution, is, by the Constitution, reserved to the State; and the Governor of the State is the sentinel upon the watch-tower for the protection of the rights of the State. He is placed in that position to watch the danger from afar. He communicates with the General Government. Any steps taken having reference to the State, pass under his inspection; and he alone has the materials within his reach for knowing the circumstances and deciding upon the facts in regard to the question whether the General Government is acting within the constitutional limit of its powers, or whether it is guilty of any usurpation of power, in any claim of authority it makes with reference to the affairs of the State. Because, in the case I have supposed, of a President elected from the State of Massachusetts, seeking to destroy the commerce of New York, and stationing a fleet off the harbor, it is not likely that a President who was guilty of such wickedness would avow that he did it for the purpose of building up the commerce of Boston and destroying that of New York. No; he would say that he had notice of a hostile invasion—a fleet leaving the coast of Great Britain or of some other maritime power to make a descent upon New York,—that he had notice of some threatened injury to New York, which would make it necessary to station a fleet there, and to prevent vessels from entering or leaving. The Governor alone would have the means of ascertaining whether there was any foundation in truth for that, or whether it was a mere pretence to cover his iniquitous purpose; and in determining the case whether the Federal Government is exceeding its power or not, or acting within the constitutional limit of its power, the Governor has to deal with a compound question of law and fact. He must first read the Constitution of the United States, and ascertain its grant of power, and then compare that with the facts as presented to him; and upon that comparison the jurisdiction is placed in him to decide whether the act of the General Government is within its power, or a transgression of it.

He decides the question, and what more have we then? He is, by his office, commander-in-chief of the military and naval forces of the State; for the State can have both military and naval forces. It has its militia at all times. It is authorized expressly by the Constitution to keep ships of war, in time of war. There is, certainly, a prohibition in the Constitution of the United States against a State granting letters of marque; but that is a prohibition against its granting letters of marque in a war against foreign States; it has no reference whatever to any possible collision that may take place between the State and the Federal Government. And that rule is laid down by Grotius and Vattel both; for they both maintain and assert the right of the people, under every limited Constitution, in the case of a palpable infringement of power by the chief of the State, forcibly to resist it; and Grotius puts the case of a State with a limited Constitution, having both a King and a Senate, in which the power of declaring war was in express terms reserved to the King alone, and he says that by no means prevents the Senate, in case of an infringement of the Constitution by the King, from declaring and making war against him; because the phrase is to be understood of a war with foreign nations and not of an internal war. I say, therefore, that in a case of that kind—a palpable infringement by the General Government of the Constitution—the Governor of the State, in the first place, has the only means and the only right of deciding whether that infringement has taken place.

In each State the Governor is commander-in-chief of the naval and military forces; he has a right to give military orders to citizens; he has a right to order them to muster in the service of the State; and if they disobey him they can be punished the same as they can in any civilized country.

And more than that: suppose a case arises of that kind, in which the General and State Governments come into forcible collision, and suppose a citizen should take arms against the State; there is the law of the State which punishes for treason every citizen of the State who adheres to its enemies, giving them aid and comfort; and, under the theory of the prosecution, if he adheres to the State, and the Federal Government should happen to be the victor in the contest, there is the law of the Federal Government which punishes him for adhering to the State. So that the poor citizen of the State, if this theory be correct, is to be punished and hanged, whichever party may succeed in the unhappy contest.

But, gentlemen, the law perpetrates no such absurdity as that; for the very moment the doctrine for which I contend is admitted, the citizen, in a conflict like that between the Federal Government and the State, is not liable to be considered a traitor or punished as such, let him adhere to which of the two parties he pleases, in good faith. The reason of which is clear. He is the subject of two sovereigns,—the one the Federal Government and the other the State in which he lives. Either of these sovereigns has jurisdiction to decide for him the question whether the other is committing a usurpation of power or not; and it inevitably follows that if these two sovereigns decide that question differently, the citizen is not to be punished as a traitor, let him adhere to which he pleases in good faith. And I submit to you, gentlemen, that is the only doctrine, under the Constitution of the United States, and under our complex system of government, which can be admitted for a moment. I will give you a confirmation of that. I have already stated to you the clause of the Constitution of the United States which defines the punishment of the crime of treason against the United States,—and by looking at the reports of the debates in the Convention which adopted the Constitution, you will find that the clause, as originally reported to the Convention, read: "Treason against the United States shall consist in levying war against the United States or any of them, or in adhering to the enemies of the United States, or any of them, giving them aid and comfort,"—and the clause, as reported, was amended by striking out the words, "or any of them," and making it read: "Treason against the United States shall consist in levying war against them or in adhering to their enemies," &c. Therefore, under our Constitution, treason against the United States must be levying war against all the States of this Confederacy. It does not mean the Government. The amendment which I have spoken of shows it must be an act of hostility which is, in judgment of law, an act of hostility against all the States of the Union. Therefore I say that a citizen who owes allegiance to a State of the Union, when he acts in good faith, under the jurisdiction of one of the sovereigns to whom he owes allegiance—to wit, the State—does not levy war against the United States. He levies war against the Government which claims to represent him, in that case,—his other sovereign, to whom he equally owes allegiance, deciding that that Government is committing an usurpation of power; and he is acting under the authority of those in whom he rightly and justly reposes faith,—to whom has been delegated the right to decide; and however the Governor of the State may be punished by impeachment, if he has acted in bad faith, the citizen cannot be subject to the halter for doing that which he was under a legal obligation to do.

Then, gentlemen, to show the application of the rule for which I have been contending—and with the necessary details of which I fear I must have wearied you—to the case in hand: The moment it is conceded that any possible case can arise in which a State would have the right to resist by force the General Government,—the moment it is conceded that it is the Governor of the State, who, co-ordinately with the President of the Union, has a right to decide that question for himself,—then I say we have nothing whatever to do with the question, whether, under the unhappy circumstances which have arisen, the Governor of the State, or of any of the States, decided right or wrong. We know they did claim that the General Government was usurping power which did not belong to it. In fact, I think we have the confession of the President of the United States that, with an honest heart and with honest purposes, which I believe have actuated him all through, he has, as he says, for the preservation of the Union, the hope of humanity in all ages, and the greatest Government, as I shall ever believe, that man has ever created,—that he has been compelled to, and did, usurp power which did not belong to him. President Buchanan, before and after this controversy arose, asserted plainly and unequivocally that he had searched the Constitution and laws of the United States for the purpose of finding any color of authority for the invasion of a State by military force, or the using of force against it; and that he could find no such warrant in the Constitution. He was right. There was nothing of the kind in the Constitution; but he failed to see (in my humble judgment) that the law of nature gave him the power to enforce the legitimate authority of the Union, as it gave to the State government the power to repel usurpation. President Lincoln, when he assumed the reins of power, admitted that there was a doubt on that subject. He declared at first that it was not expedient to exercise that power, and that he would not exercise it. He changed his mind afterwards, and did exercise it; and on the 13th of April he issued a proclamation calling for 75,000 volunteers, the first duty assigned to whom, as he stated in his proclamation, would be to invade the Southern States, for the purpose of recapturing the forts and retaking the places that had passed out of the jurisdiction of the United States. And in a subsequent proclamation he declared that he had granted to the military commanders of these forces, without the sanction of an Act of Congress, authority to suspend the writ of habeas corpus, within certain limits and in certain cases, in those States. And he makes the frank admission that, in his own belief at least, some of the powers which he had found himself compelled to exercise were not warranted in the Constitution of the United States.

Now these acts of hostility complained of in the indictment took place long subsequent to that. This proclamation was in the month of April. These commissions were not issued, and the Act of the Confederate States to authorize their issue was not passed, until some time afterwards—after they had learned of this proclamation; and this commission was not granted until the month of June subsequent.

I say, therefore, a case was presented for the exercise of the jurisdiction of the Government of the United States, to decide whether it was exercising its rightful powers, under the Constitution, and for the Governor of the State to decide, for the State, that same question; and that an unhappy case of collision, ever to be regretted and deplored, had arisen between the Government of the United States and the Government of those States; and I say that the citizens of any one of those States owing the duty of allegiance to two sovereigns—to the government of their State and to the Government of the United States—had a right honestly to make their election to which of the two sovereigns they would adhere, and are not to be punished as traitors or pirates if they have decided not wisely, nor as we would have done in the section of the country where we live.

I am sorry, gentlemen, to detain you on the question; but it is a most important one—one that enters into the very marrow of this case; and we do claim that the issuing of this commission, whether on the footing of its having been issued by 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;

"And Whereas, 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:

Therefore in this discussion, so far from a private armed vessel being regarded with disfavor, it is regarded, and has to be regarded, with all the favor which would belong to it as a regularly commissioned cruiser, belonging to the State, and not to the individual.

I now approach, with all the brevity due to your valuable time, the question of jurisdiction. It seems to me to be very clear indeed that after Harleston and the crew, of the Savannah were taken by the Perry, he was confined as a prisoner, as one of a crew of a piratical vessel, for an act charged as piratical, on board the United States ship-of-war Minnesota, by order of its commander. That Harleston was taken by the said commander into the District of Virginia, within a marine league of its shores, where the said ship remained; and the said Harleston and the other prisoners could have been there landed and detained for trial. If the facts are so, the Circuit Court of this District has no jurisdiction, and the prisoners should be acquitted.

The evidence of our friend, Commodore Stringham, on that subject, leaves us no doubt as to the character of the arrest. After seeing the Perry close in to Charleston, she having been ordered by him to cruise further off, and he, wondering what she was doing there—he says:

"She hailed us and informed us she had captured a piratical vessel. The vessel was half a mile astern. Captain Parrot, of the Perry, came and made to me a report of what had taken place. I ordered him to send the prisoners on board, and I sent a few men on board the Savannah to take charge of her during the night. The vessels were then anchored. Next morning I made arrangements to put a prize crew on board the Savannah and send her to New York, and I directed the Captain of the Joseph to take passage in her. I took the prisoners from the Perry, and directed the Perry to proceed," &c.

Again he testifies:

"Q. What was your object in transferring the prisoners from the Perry to the Minnesota?

"A. Sending them to a Northern port. The port of New York was the port I had in my mind to send them to, in the first ship from the station."

The prisoners, thus taken from a piratical vessel, he determined to carry to Norfolk, and to send them thence to the North for trial.

Now, if your honors please, my learned friend (Mr. Evarts) seems to say that there is no authority in law for a United States vessel to arrest pirates at sea; but if you will read the President's proclamation of 19th June you will find that he speaks of dealing with the persons who may be taken on board private armed ships as pirates. I will then ask to direct your attention to the Act of 1819 (3d Vol. Statutes, p. 510), where the President is authorized to employ public armed vessels to arrest offenders against that law. Therefore the capture of the prize was not only a part of the general law of nations, but it was particularly a thing which the commanders of ships of the United States were charged by the proclamation of the President, and by Act of Congress, to do.

I now approach the other question, as to where these prisoners were apprehended, or into what District they were first brought. That they were apprehended by a warrant from the United States Commissioner in New York, is not in dispute. The question, however, is, where they were first brought. If an officer having them in charge could anchor his vessel at Baltimore, and then at Philadelphia, and then bring his prisoners to New York, it would be putting the law entirely in his hands and dissipating all its force. In ordinary cases of crime the jurisdiction is local; and that for many reasons. One is, that a man is to be tried by his peers—meaning those of his own neighborhood,—and that it is easier to procure evidence at the place where the crime is committed. The law does not give to any man the power of assigning the place of trial. In the case of offences committed on the high seas, the law declares that the accused shall be tried in the District into which he is first brought.

Now, that tnese men were held by Capt. Stringham for the purpose of being tried as pirates, the evidence is clear. They were transferred from the Perry to the Minnesota, taken to the Norfolk station, and there kept in irons on board the Minnesota till they were transferred to the Harriet Lane. Could they have been detained there for trial? It might be an inconvenience if there was no Court. They might have had to be detained for a long time, or Congress might pass some law varying the jurisdiction. But as the law stood, if these men could have been landed and detained for trial, then that was the District in which they were necessarily to be tried. Can any one say that it was not as easy to have landed these men at Fortress Monroe, or at Hampton, as to transfer them to the Harriet Lane? And could they not have been detained there? You did not need a Court to detain them. They were taken by force, and might have been detained in the fortress till a trial should be had. There was no difficulty in their being landed in Virginia; and, moreover, there were in Western Virginia loyal Courts, where they could be tried.

Now, what is there that takes away the jurisdiction which belongs to that part of the country and not to this? "Why," says Captain Stringham, "I wanted to send them to New York." But had he any right to do so, when he had actually brought them to that station where his ship belonged, and where he was bound to keep her unless he returned her to the cruising ground? Remember that his ship remained there some time before the transfer was made. They were detained as prisoners there, and might as well have been detained on shore. Therefore, it seems to me, that unless the capturing officer, and not Congress, has the right to determine the place where the trial shall be had, these men were to be tried in the District of Virginia.

Now, it is no answer to this to say that, where a vessel is sailing along the shores of a District, a prisoner on board is not brought there in the proper sense of the word. The ship is not bound to stop and break up her voyage in order to have the Court designated where he is to be tried; but where the ship comes into port—where she stops at a port—I submit to your honors that this is the bringing contemplated by the statute.

I now approach, if your honors please, the merits of this case. The indictment is founded on two sections of the Crimes Act, originally two separate and very distinct statutes. It is the eighth section which makes robbery on the high seas piracy. That embraces the first five counts of the indictment, which are varied in mere circumstances. The remaining counts rest on the transcript into the legislation of this country, from the Act of 11 and 12 William III., to the effect, substantially, that if any citizen of the United States shall, under color of a commission from any foreign Prince or State, or under pretence of authority from any other person, commit acts of hostility against the United States, or the citizens thereof, that shall be piracy. In the argument which I shall address to your honors I will beg leave to characterize the first as piracy by the laws of nations, and the second as statutory piracy. But, before I discuss that subject, permit me to say that, as to eight of these prisoners, it is conceded that they do not come under that section, as the evidence for the prosecution shows that they were not citizens of the United States. So that, as to these eight, unless they are adjudged pirates under the eighth section, they must be acquitted, if they can justify themselves under the commission.

Judge Nelson: Then the other four, you say, can only be convicted under the ninth section?

Mr. Lord: Yes; that is the statutory process, if I may be permitted to give it that name.

The act is charged as an act of robbery, not as an act of treason. It is not alleged to have been done treasonably. If the prosecution wanted to give it that character, they must have alleged it to be treason. They must have alleged that this act, done on the high seas, was done treasonably, traitorously, and therefore piratically. They have alleged no such thing. I take pleasure in saying that the District Attorney, in opening this case, did it with great fairness, and disavowed any idea of introducing treason into the case. There are many reasons why, if that were pretended, this whole trial should stop. The requisites of a prosecution for treason have not been, in any degree, complied with. The charge is robbery. It may be charged as done piratically, involving animus furandi. Let us see, for an instant, what piratical is. Piracy is, by all definitions, a crime against all nations. It enters into every description of a pirate that he is hostis humani generis. That is the common-law idea of piracy. It is not a political heresy that will make piracy. It is not a political conformity that will always exempt from the charge of piracy. For instance, if the officer of a Government vessel, with the most full and complete commission, such as my friend Commodore Stringham had, should invade a ship at sea, and should, under pretence of capture, take jewels and secrete them, not bringing them in for adjudication, he would be a pirate, because, though he held a commission, he did the act animo furandi,—did it out of the jurisdiction of any particular country,—did it against the great principles of civilization and humanity.