Front matter (continued 9)

We do not often find an opportunity, gentlemen, to regale ourselves with anything that emanated from the mind of Mr. Emmett. It is peculiar to the nature of his profession that most of what the advocate says passes away almost at the moment of its utterance. When Mr. Emmett comes to allude to the disfavor sought to be thrown on revolutionary ideas by the eminent counsel for the prosecution, he says:

"In particular, I remember, he termed Miranda a fugitive on the face of the earth, and characterized the object of the expedition as something audacious, novel, and dangerous. It has often struck me, gentlemen, as matter of curious observation, how speedily new nations, like new made nobility and emperors, acquire the cant and jargon of their station.

"Let me exemplify this observation by remarking, that here within the United States, which scarcely thirty years ago were colonies, engaged in a bloody struggle, for the purpose of shaking off their dependence on the parent State, the attempt to free a colony from the oppressive yoke of its mother country is called 'audacious, novel, and dangerous.' It is true, General Miranda's attempt is daring, and, if you will, 'audacious,' but wherefore is it novel and dangerous?

"Because he, a private individual, unaided by the public succor of any state, attempts to liberate South America. Thrasybulus! expeller of the thirty tyrants! Restorer of Athenian freedom! Wherefore are you named with honor in the records of history?

"Because, while a fugitive and an exile, you collected together a band of brave adventurers, who confided in your integrity and talents—because, without the acknowledged assistance of any state or nation, with no commission but what you derived from patriotism, liberty, and justice, you marched with your chosen friends and overthrew the tyranny of Sparta in the land that gave you birth. Nor are Argos and Thebes censured for having afforded you refuge, countenance, and protection. Nor is Ismenias, then at the head of the Theban government, accused of having departed from the duties of his station because he obeyed the impulse of benevolence and compassion towards an oppressed people, and gave that private assistance which he could not publicly avow."

Mr. Emmett, remembering the history of his own name, and the fate of that brother who perished ignominiously on the scaffold for an effort to disenthrall his native land, after that outburst of eloquence, indulged in the following exclamation:

"In whatever country the contest may be carried on, whoever may be the oppressor of the oppressed, may the Almighty Lord of Hosts strengthen the right arms of those who fight for the freedom of their native land! May he guide them in their counsels, assist them in their difficulties, comfort them in their distress, and give them victory in their battles!"

I have thought proper to fortify myself, gentlemen, by reference to this man of pure purpose, finished education, and thorough knowledge of international law, in what I said to you, that the principles which lie at the base of this American revolution, call it by what name you please, have been known and recognized at least as long as the English language has been spoken on the earth, and will be known forever—they furnishing certain rules, the benefit of which, I hope and trust, under the providence of God, after the enlightened remarks of the Court, and through your intervention, may be extended to our clients.

Some people in New England take particular offence at applying these doctrines to the present state of affairs. Has New England ever repudiated them? Has the South ever maintained with more unhesitating declaration, more vigorous resolve, more readiness for the deadly encounter, than the North, these views which I present? Gentlemen, when we look at history, we must take it as we find it. In the war of 1812, the New England States, which had taken offence before at the embargo of 1809, were found, to a very great extent among her people, in an attitude of direct resistance to the war; and they were not afraid to say so. New England said so through her individual citizens. She said so in her public associations. She said so in the form of conventions and solemn resolves. To one of these I will call attention. I do this for no other purpose than to present analogies, principles, and precedents showing what rights belong to those who oppose the Government, or to a state of civil war, or revolution,—that men situated like our clients are not to be treated as pirates and robbers.

I have here a book called "The Union Forever; the Southern Rebellion, and the War for the Union." It is an excellent compilation, prepared and published under the superintendence of James D. Torrey, of this city. I read from it:

"The declaration of war against Great Britain, June, 1812, brought the excitement to its climax. A peace party was formed in New England, pledged to offer all possible resistance to the war. * * * The State Legislatures of Massachusetts, Connecticut, Vermont, &c., passed laws forbidding the use of their jails by the United States for the confinement of prisoners committed by any other than judicial authority, and directing the jailors at the end of thirty days to discharge all British officers, prisoners of war, committed to them. The President, however, applied to other States of the confederacy for the use of their prisons, and thus the difficulty was, in a measure, obviated."

Thus these men set themselves up pretty strongly against the Government. It is an act of which I do not approve, gentlemen; but, suppose I should say that the men who did that were, because their political sentiments differed from mine, fools or idiots, knaves or traitors, what would you think of the taste or justice of such an observation? It is the intolerance, gentlemen, which abides in the heart of almost every man, woman, and child, and the diffusion of it over the land, that has led to our present dreadful condition. It is the endeavor of one party, or of one set, to set itself up in absolute judgment over the opinions, rights, persons, liberties and hearts of other men. It is that notion which Cromwell expressed when he said (I quote from memory alone), "I will interfere with no man's liberty of conscience; but, if you mean by that, solemnizing a mass, that shall not be permitted so long as there is a Parliament in England." I have no doubt that the men who did these acts in New England, which we would call unpatriotic, were actuated by conscientious motives; and I want to claim the same thing for the men who, in the South, are doing what is very offensive to you and very offensive to me, and the more offensive because I honestly and conscientiously believe that it is unnecessary and wanton. I know that I differ with very eminent men who belonged to the same political organization as myself when I make that remark; but it is the result of the best judgment that I can form, after a careful and just review of the circumstances attending the present unfortunate breach in our relation to each other. And certainly, gentlemen, it is in no spirit of anger that we, in this sacred temple of justice, should deal with our erring brethren. We do not mean to pronounce, through the forms of justice, from this jury-box, any anathema or denunciation against our fellow-men, merely for holding erroneous opinions. All the dictates of every enlightened religion on earth are against any such conduct. I take for granted that there is not one of you who has not some friend engaged in the war, on one side or the other. I took up a newspaper the other morning, and discovered that two men, with whom I had been in the most intimate relations of personal friendship, were in the same engagement, each commanding as colonel, and fighting against each other. They were men who had been close friends during a long series of years—men whom you and I might well be proud to know—each of them a graduate of West Point. One of them is said to have been seen to fall from his saddle, and the fate of the other (Colonel Cogswell) is at this moment uncertain. You or I, while we remain loyal to our flag and our country—while we wish and hope for success to our arms in all the conflicts that may occur—may regard with pity men born on the same territory, as well educated, as deftly brought up, as generous and as high minded as ourselves, because we consider them wrong. But, to look upon them as mere outlaws and outcasts, entitled to no protection, sympathy, or courtesy, is something which I am perfectly sure this Jury will never do, and which no community would feel justified or excusable in doing.

Now, let me read more to you from this book:

"On the 18th of October, twelve delegates were elected to confer with delegates from the other New England States. Seven delegates were also appointed by Connecticut, and four by Rhode Island. New Hampshire was represented by two, and Vermont by one. The Convention met at Hartford, Connecticut, on the 15th of December, 1814. After a session of twenty days a report was adopted, which, with a slight stretch of imagination, we may suppose to have originated from a kind of en rapport association with the South Carolina Convention of 1861. We may quote from the report."

Listen to this, gentlemen, and say how much right we have to stigmatize as novel, unprecedented, base, or wicked, the notions on which the Southern revolt is, in a certain degree, founded:

"Whenever it shall appear" (says this Report, the result of twenty days' labor among calm and cool men of New England) "that the causes are radical and permanent, a separation, by equitable arrangement will be preferable to an alliance by constraint among nominal friends, but real enemies, inflamed by mutual hatred and jealousy, and inviting, by intestine divisions, contempt and aggressions from abroad; but a severance of the Union by one or more States against the will of the rest, and especially in time of war, can be justified only by actual necessity."

The report then proceeds to consider the several subjects of complaint, the principal of which is the national power over the militia, claimed by Government. We will not agree, say they, that the general Government shall have authority over the militia; we claim that it shall belong to us. The report goes on to say:

"In this whole series of devices and measures for raising men, this Convention discerns a total disregard for the Constitution, and a disposition to violate its provisions, demanding from the individual States a firm and decided opposition. An iron despotism can impose no harder service upon the citizen than to force him from his home and occupation to wage offensive war, undertaken to gratify the pride or passions of his master. In cases of deliberate, dangerous and palpable infraction of the Constitution, affecting the sovereignty of a State and the liberties of the people, it is not only the right but the duty of such State to interpose its authority for the protection, in the manner best calculated to secure that end. When emergencies occur, which are either beyond the reach of the judicial tribunals or too pressing to admit of the delay incident to their forms, States which have no common umpire must be their own judges and execute their own decisions."

I think that is pretty strong secession doctrine. I do not see that it is possible, in terms, to state it more distinctly. Well, it is true that candid people in that section of the country did not approve these views, but disapproved them; and yet they were the views, clearly and forcibly expressed, of a large number of intelligent and moral people.

Now, this enables me to repeat, with a clearer view derived from history, the proposition that the Confederate States are—under the law of nations, and the principles embodied in the Declaration of Independence, sustained in the Revolution, and recognized by our people—in a condition not distinguishable from that of the Colonies in '76, except that, if there be a difference, the position of the Confederates, in reference to legality, as a judicial question, is more justifiable, as it is certainly more formidable. This word "secession" is, after all, only a word; a word, as Mr. Webster said in one of his great speeches, answering Mr. Calhoun, of fearful import; a word for which he could not according to his views, too strongly express condemnation. But whether you use the word "secession," or the familiar expression, "going out of the Union," or, "not consenting to remain in the Union," the idea is one and the same. Much acumen and ingenuity have been displayed, even by a mind profound as that of Mr. Calhoun—a most acute man and a pure man, as Mr. Webster eloquently attested in the Senate chamber, after the decease of that South Carolina statesman—I say a good deal of acumen has been spent on the question whether a State, or any number of States, have a right under the Constitution to secede from the Union. It is a quarrel about phrases. It is not necessary in any point of view, political, philological or moral, to use the word "secession" as either excusing or justifying the act of the Confederate States. Suppose I grant, as a distinct proposition, in accordance with what I admit to be the opinion of the great majority of jurists, and orators, and statesmen at the North, that there is no right in a State, under the Constitution, to recede from the Union—what then? I shall not stop to give you the argument with which the South presents a view of the question entirely different from that of the North. Of what consequence is it, practically, whether the right of the State to go out be found in any part of the compact called the Constitution, or be derived from a source extrinsic of it? You (let me suppose) are twelve States, and I am the thirteenth. There is the original Confederacy of States, pure and simple, under the agreement with each other; and there, according to the views of Mr. Webster and the prosecution here, we became constituted in a general Government, or, as Wheaton says, in a "composite Government," giving great power to the general center. Now, what difference does it make, if you twelve States conclude to leave me, whether you do it by virtue of anything contained in the Constitution, or inferable from the Constitution, or in virtue of some right or claim of right that resides out of the Constitution? It is not of the least consequence. I do not care for the word "secession." It would be, at the worst, revolution. In that same great speech of Mr. Webster's against Calhoun, in which I think I am justified in saying he exhausts the subject and makes the most formidable argument against the theory of secession that was ever uttered in the United States, all the conclusion he comes to is this:—"'Peaceable secession!' I cannot agree to such a name. I cannot think it possible. It would be revolution." Very well. Of what consequence is the designation? Who cares for the baptism or the sponsors? It is the thing you look to. And if they have either the right or the power to secede or revolutionize, they may do it, and there is no tribunal on earth to sit in judgment upon them; though we have the right and the power, on the other hand, to battle for the maintenance of the whole Union. Our friend, Mr. Justice Grier, says: "No band of conspirators can overcome the Government merely because they are dissatisfied with the result of an election." Now, gentlemen, with the deference he deserves, I would ask the learned Justice Grier, or any other Justice, or my learned friend, Mr. Evarts, how he will proceed to dispose of the case which I am about to put? Suppose that all but one of our States meet in their Legislatures, and, by the universal acclaim, and with the entire approval of all the people, resolve that they will remain no longer in association with the others—what will you do with them? That solitary State, which may be Rhode Island, says: "I have in me the sovereignty; I have in me all the attributes that belong to empire or national existence; but I think I will have to let you go. Whether you call it secession, or rebellion, or revolution, you may go, because you have the power to go, if there be no better reason." And power and right become, in reference to this subject, the same thing in the end. Do they not? Is there any relation on earth that has a higher sanction than marriage? So long as two parties, who have contracted that holy obligation, have, in truth, no fault to find with each other, is there any right in either to go away from the other? There is no such right, either by the law of God or of man. But there is a power to do it, is there not? And if the wife flee from her husband, instead of towards him, or if a husband go from his wife, is there any law of society that can compel them to unite? And why not? Because mankind, though they have perpetrated many follies, have, at least, recognized that this was a remedy utterly impossible. In the relation of partnership between two individuals, does not the same state of things exist? and do not the same arguments suggest themselves? I ask my learned brother what he can do in reference to the ten States that have claimed to secede from the Union, and have organized themselves into a Government? I will give him all the army he demands, and will let him retain in the chair of State this honest, pleasant Mr. Lincoln, who is not the greatest man in the world—nobody will pretend that—but is as good and honest a person as there is in the world. There is not the slightest question but that, in all his movements, he only proposes what he deems consistent with the welfare and honor of the country. I will give my learned brother the army now on the banks of the Potomac, doing nothing, and millions of money, and then I desire him to tell us how, with all these aids, he can coerce those ten States to remain in the Confederacy. What was said by Mr. Buchanan on the subject, in his Message of December last? "I do not propose" said he, "to attempt any coercion of the States. I believe that it would be utterly impossible. You cannot compel a State to remain in the Union. They may refuse to send Senators to the Senate of the United States. They may refuse to choose electors, and the Government stops." Well, I grant you that this is not the view of other men quite as eminent as Mr. Buchanan. I grant you that the great Chief Justice Marshall—a man to whom it would be bad taste to apply any other word than great, because that includes everything which characterized him—I grant you that brilliant son of Virginia met an argument like this with the great power that distinguished all his judgments, when a question arose in the Supreme Court of the United States, affecting the State of Virginia and a citizen. But of what importance is it what any man thinks about it? What is your theory as compared with your practice? Now, I will give my friend all the power he wants, and ask him to deal with these ten States. Do you believe it to be within the compass of a possibility to compel them to remain in the Union, as States, if they do not wish it?

Thus I reach the conclusion, on even the weakest view of the case for us, that the power to secede, and the power to organize a Government existing, there is no power on earth which, on any rule of law, can interfere with it, except that of war, conducted on the principles of civilized war.

Now, then, let us look at those Confederate States a little more closely. What says Vattel, in the passage referred to by my learned friend, Mr. Larocque, and which it is of the utmost importance, in this connection, to keep in mind?

[Here Mr. Brady read an extract, which will be found in the argument of Mr. Larocque. [5]]

Is not that clearly expressed, and easy to understand? All of us comprehend and can readily apply it in this case. That resolves the question, if indeed this be the law of the land, into this: Have the Confederate States, on any show of reason, or without it—for that does not affect the inquiry—attained sufficient strength, and become sufficiently formidable, to entitle them to be treated, under that law of nations, as in a condition of civil war, even if they have not constituted a separate, sovereign, and independent nation? Really, it seems to me, too clear for doubt, that they have. We had, in the Revolution, thirteen Colonies, with a limited treasury, almost destitute of means, and with some of our soldiers so behaving themselves, in the early part of the struggle, that General Washington, on one memorable occasion, threw down his hat on the ground and asked, "Are these the men with whom I am to defend the liberties of America?" And those of you, gentlemen, who have read his correspondence, know how constantly he was complaining to Congress about the inefficiency of the troops, and their liability to desertion. I remember that he says something like this: "There is no doubt that patriotism may accomplish much. It has already effected a good deal. But he who relies on it as the means of carrying him through a long war will find himself, in the end, grievously mistaken. It is not to be disguised that the great majority of those who enter the service do so with a view to the pay which they are to receive; and, unless they are satisfied, desertions may be expected." He also remarked, at another period, in regard to the troops of a certain portion of our country, which I will not name, that they would have their own way; that when their term of enlistment expired they would go home; and that they would sometimes go before that period arrived. That, I am mortified to say, has been imitated in the present struggle.

Such was the early condition of the Colonies.

Now, the Southern Confederacy have ten States—they had seven when this commission was issued—with about eight millions of people. They have separate State governments, which have existed ever since the Union was formed, and which would exist if this revolution were entirely put down. They have excluded us from every part of their territory, except a little foothold in the Eastern part of Virginia, and "debateable ground" in Western Virginia. We have not yet been able to penetrate farther into the Confederate States. We cannot send even food to the hungry or medicine to the afflicted there. We cannot interchange the commonest acts of humanity with those of our friends who are shut up in the South. I do think, with the conceded fact looking directly into the face of the American people that, with all the millions at the command of the Administration, there is yet found sufficient force and power in the Confederate States to maintain their territory, their Government, their legislature, their judiciary, their executive, and their army and navy, it is vain and idle to say that they are not now in a state of civil war, and that they ought to be excluded from the humanities incident to that condition. Such an idea should not, I think, find sanction in either the heart, the conscience, or intelligence of any right-minded man.

Not only are the facts already stated true, but the Confederate States have been recognized as a belligerent power by France and England, as we have proved by the proclamations placed before you; and they have been recognized by our Government as belligerents, at least. That I submit, as a distinct question of fact, to the Jury, unless the Court conceive that it is a pure question of law,—in which case I am perfectly content that the Court shall dispose of it.

And where do I find this? I find it in the admission of Mr. Lincoln, in his Inaugural Address, that there is to be no attempt at any physical coercion of these States—a concession that it is a thing not called for, not consistent with the views of the Administration, or with the general course of policy of the American people. According to his view, there was to be no war. I find it in the correspondence of General Anderson with Governor Pickens, which has been read in the course of the trial—which of course has been communicated to the Government, will be found among its archives, and of which no disapprobation has been expressed. And here I borrow a doctrine from the District Attorney, who said, when I declared that the legislative branch of the Government had not given their declaration as to what was the true condition of the South, that their silence indicated what it was; and so, the silence of the Government, in not protesting against this correspondence, is good enough for my purpose.

The proclamation of the President, calling for 75,000 troops, and then calling for a greater number, would, in any Court in Christendom, outside of the United States, be regarded, under international law, as conclusive evidence that those troops were to be used against a belligerent power. Who ever heard of eight millions of people, or of one million of people, being all traitors, and being all liable to prosecution for treason at once. I find this recognition in the exchange of prisoners, which we know, as a matter of history, has occurred. I find it in the capitulation at Hatteras, at which, and by which, General Butler, of his own accord, when he refused the terms of surrender proposed by Commodore Barron, declared that the garrison should be taken as prisoners of war; and that has been communicated to the Government, and no dissatisfaction expressed about it.

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

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

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

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

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

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

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

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

The District Attorney: (To Mr. Evarts) He was not removed for that reason.

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

But, gentlemen, this is a solemn subject, and is not to be dealt with lightly. And here it is that I will refer to the great speech of Mr. Webster, in the Senate of the United States, on the 7th of March, 1850—to be found in the fifth volume of his works, page 353. Mr. Webster was a great man, gentlemen, like John Marshall, and he could stand that test of a great man—to be looked at closely. Our country produces an abundance of so-called great men. The very paving-stones are prolific with them. Every village, and hamlet, and blind alley has one, at least. And when we catch a foreigner, just arrived, we first ask him what he thinks of our country, and then, pointing to some person, say, "He is one of the most remarkable men in the country;" until, finally, the foreigner begins to conclude that we are all remarkable men; that, like children, we are all prodigies until we grow up, when we give up the business of being prodigies very soon, as most of us have had occasion to illustrate.

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

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

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

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

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

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

They refer to the general assault on the institution of slavery which many men at the North have felt it on their conscience to make, including such distinguished orators as Lloyd Garrison, Gerrit Smith, the fascinating and silver-tongued Phillips—to whom I have listened with pleasure, much as I detested his sentiments—and Theodore Parker, the greatest of them all.

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

They refer to the declaration of Mr. Lincoln, in one of his addresses to the public, that Government could not endure half slave and half free.

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

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

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

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

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

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

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

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

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

SIXTH DAY.

Tuesday, Oct. 29th, 1861.

Mr. Brady resumed his address, and said:

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

"Any people anywhere, being inclined and having the power, have a right to rise up and shake off the existing Government, and form a new one that suits them better. This is a most valuable, a most sacred right—a right which, we hope and believe, is to liberate the world. Nor is this right confined to cases in which the whole people of an existing Government may choose to exercise it. Any portion of such people that can, may revolutionize and make their own of so much of the territory as they inhabit. More than this: a majority of any portion of such people may revolutionize—putting down a minority intermingled with or near about them who may oppose their movements. it is a quality of revolutions not to go by old lines or old laws, but to break up both and make new ones."—Appendix Con. Globe, 1st Session 35th Congress, p. 94.

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

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

Let me now cite to you Wheaton's International Law, page 30, in which he says, that "sovereignty is acquired by a State, either at the origin of the civil society of which it is composed, or when it separates itself from the community of which it previously formed a part, and on which it was dependent." Then he says, that "civil war between the members of the same society is, by the general usages of nations, such a war as entitles both the contending parties to all the rights of war as against each other, and as against neutral nations."

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

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

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

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

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

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

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

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

Now, in the first place, we say, as was before urged, that statute has no bearing whatever on the case of the eight foreigners, and you are to disregard them entirely in passing upon all the questions which this Act may raise; and we say that it has no bearing on the four Americans before you, even if it be a valid Act and applicable to a case of this character, because, at the time of the acts charged, they were citizens of another Government, owing it allegiance, receiving its protection, engaged in its service, and bound to perform such service. We have been told that allegiance and protection are reciprocal. The people of the Southern States would be placed in a very extraordinary condition if the arguments of my learned opponent are to prevail. Look at the citizens of Charleston. There are men in that city who love the Union, among whom is Mr. Pettigrew, an able lawyer, a patriot, and a man of great virtue, talents, and distinction. If those loyal people wanted to leave Charleston and come North, they could not do it. If they felt inclined to utter, at this moment, their sentiments in favor of reunion of the States, it would be an act of folly and danger. They are living in a State, under its government and jurisdiction, and bound to perform their duties as citizens. Can they refuse? They may be ordered into the service of the government—sent to sea—enlisted as soldiers. They cannot refuse to fight. If they do, they make themselves amenable to their own Judges. I refer to 1st Hawkins, Pl. Crown, 87, 89, where it is said:

"There is a necessity that the realm should have a King, by whom and in whose name the laws shall be administered; and the King in possession, being the only person who either doth or can administer those laws, must be the only person who has a right to that obedience which is due to him who administers those laws; and since, by virtue thereof, he secures us the safety of our lives, liberties, and properties, and all the advantages of Government, he may justly claim returns of duty, allegiance, and subjection."

And Blackstone is equally explicit (4 Blackstone's Comm., 78):

"When, therefore, an usurper is in possession, the subject is excused and justified in obeying and giving him assistance; otherwise, under an usurpation, no man could be safe, if the lawful Prince had a right to hang him for obedience to the power in being, as the usurper would certainly do for disobedience."

3d Inst. (Coke) 7, is to the same point:

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

Our statute, or rather constitutional definition, of treason, is a transcript of the English statute of treason; and it is hardly necessary to cite 2 Story on the Constitution, sec. 1799, to the point that our Courts will construe the Constitution as the English law is construed by the English Courts. And here we observe a marked difference between a revolt by the subjects of a single consolidated Government which is a unit, and the action of one or more States in a Confederacy, or of the people dwelling within them, when such States resolve, as States, to recognize no sovereignty or Government within their territory except that established under their own Constitution.

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

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

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

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

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

I will refer your honors to Blackstone, 4 vol., p. 72, where he interprets this statute of 11 and 12 William III., chap. 4, to relate to acts done under color of a commission from a foreign power; and it was never supposed to have meant anything else. In 1819, Great Britain passed a law making it a crime for British subjects to be connected in any way with the sending out of vessels to cruise against a power at peace with England. By the 18th George II., chap. 30, it is made piracy, in time of war, for English subjects to commit hostilities of any kind against fellow subjects. How did that act become necessary in the legislation of England, if the previous law had already provided for the same thing? That, certainly, is a question of some importance in this case. We have statutes that punish citizens of the United States, under certain circumstances when they are engaged in privateering; and there have been trials and convictions under these statutes, as your honors will find by referring to Wharton's State Trials.

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

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

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

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

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

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

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

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

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

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

It is utterly absurd to have you here, gentlemen, if all that is necessary to be shown against these men is the proclamation by the Executive, and an Act of Congress calling them rebels and pirates. Is there any trial by Jury under such circumstances? The form of it may exist, but not the substance. It is a mockery. No, your honors; this question, as to the status of the Confederate States, is a judicial question, when it arises in a Court of Justice. It is a juridical question. It is one of which Courts may take cognizance—must take cognizance—in view of and with the aid of that international law which is part of the common law, part of the birthright of all our citizens, and to the benefit and immunities as well as responsibilities of which they are subject and may make claim.

Otherwise it would lead to this most extraordinary consequence, that, whenever any portion of a State or any State of a Confederacy, either here or elsewhere, revolts, and attempts to withdraw itself from the old Government, the old Government shall be the only judge on earth to determine whether the seceders, or the revolutionists, or the rebels, shall be treated as pirates or robbers.

Would it not be very strange if our nation should extend to those who revolt in any other country, when they have attained a certain formidable position before the world, the rights and humanities of civil war; and that, when any of our own people, under the claim of right and justice, however ill-founded, unfortunate, or otherwise, put themselves in an attitude of hostility to the Government, they are to be treated as outlaws and enemies to the human race, having no rights whatever incident to humanity and growing out of benign jurisprudence?

Then, apart from all that has been said, if the United States made war upon the South, as it certainly did by the act of the President, it is one of the propositions which these men may insist upon, that the States had a right to defend themselves, to make reprisals, to issue letters of marque, and that they had all the other rights of warfare. On this point, Mr. Larocque has given copious and apposite arguments and citations. The Constitution itself, when it comes to prohibit a State from making war and granting letters of marque, distinctly recognizes that privateers are not illegal. It has limited the prohibition against granting letters of marque, &c., by saying that a State may do so in the case of invasion, and when the danger is imminent.

Now, what are the facts before us here which raise this as a question in the case? There was no declaration of war by our Government, and none by the South; but at a certain time there was a firing on an unarmed vessel entering Charleston harbor—the "Star of the West." General Anderson, who was in command of Fort Sumter—whether acting under the authority of the Government, or not, does not very clearly appear in the case—sent a communication to Governor Pickens, to the effect that, if unarmed vessels were to be fired upon, he wished to be informed of the fact, saying, "You have not yet declared war against the United States;" and that, if the offence were repeated, he should open his batteries on Charleston.

That is the substance of it. Mr. Pickens retorted, saying, substantially, that they would maintain their positions. The next thing in order is the proclamation by the President, for the organization of the army, for the purpose, as he said, of retaking our forts. When, therefore, that condition of things had arrived, war was begun by the United States upon the South.

You may say it was not a war. You may say it was the employment of means to put down an insurrection. I care not for the mere use of language. It was, in effect and substance, a war against those States which claimed the authority to hold territory for themselves, under a separate and independent Government; and that would give them the right to oppose force by force, unless, indeed, the whole thing was a tumultuous act—a mere act of treason—and so to be regarded in all aspects of the case.

There is a principle applicable to this whole case, referred to by Mr. Dukes, in his argument—the doctrine of respondeat superior, of which he gave some instances. These men may go wholly free by the law of nations, and yet the State which, in the name of Jefferson Davis or the Confederate States, issued this commission, would be responsible to the General Government for the consequences. We had a memorable instance of this in this State, some years since. You will remember that a man, named McLeod, was charged with coming across the lines from Canada and setting fire to an American steamer. He was tried, and acquitted on the ground—not very complimentary to him—that he did not do any such thing, although he had boasted of it. It was rather humiliating to be absolved of crime on the ground that the accused was a liar; yet still that is the history of the case. Now, there was a diplomatic correspondence in reference to this incident, as some of you well remember. Great Britain insisted that Mr. McLeod must not be tried at all; that the American Government had no authority to take cognizance of the act; and that we must look to Great Britain for redress. Well, gentlemen, I am sorry to say that our Government has very often acted like the Government of England. Each of us has been quite willing, occasionally, to swoop down on an inferior power, as the vulture on its prey; but, whenever there was a possibility of conflict with a power equal to either, a great deal of caution and reserve has been evinced. We have been for years—almost from the foundation of our Government—truckling to British ideas, British principles, British feelings, and British apprehensions, in a manner which has not done us any honor; and we see to-day what reward we are enjoying for it. There has not been a public speaker in England who has ever designated us, for a long period, by any other name than that of the Anglo-Saxon race—a designation which includes but one element of even the race which exists in the British Islands, omitting the gentle, noble, and effective traits imported into it by the Normans, and excluding those countrymen of my ancestors who do not like to be outside when there is anything good going on within. What said our Government to that? I understand that they distinctly admitted that McLeod was not amenable to our jurisdiction; but the State of New York held on, in virtue of its jurisdiction and sovereignty, and Mr. McLeod had to be tried, and was tried and acquitted. There the principle of respondeat superior was acknowledged by our Government; and I believe that is the policy upon which it has acted on every occasion when the case arose.

Gentlemen, I will detain you but a few moments longer. I have endeavored to show, in the first place, that these men cannot be convicted of piracy, because they had not the intent to steal, essential to the commission of that offence, and that you are the judges whether that intent did or did not exist. If it did not, then the accused men are entitled to acquittal on that ground. If the Act of 1790 be constitutional, and if it can be construed to extend to a case like this, then eight of the prisoners are to be discharged—being foreigners, not naturalized; and the other four, also—having acted under a commission issued in good faith by a Government which claimed to have existence, acted upon in good faith by themselves, and with the belief that they were not committing any lawless act of aggression. In this connection I hold it to be immaterial whether the Confederate Government was one of right, established on sufficient authority according to the law of nations, and to be recognized as such, or whether it was merely a Government in fact. We claim, beyond all that, and apart from the question of Government in law or Government in fact, that there exists a state of civil war; which entitles these defendants to be treated in every other manner than as pirates; which may have rendered them amenable to the danger of being regarded as prisoners of war, but which has made it impossible for them to be ever dealt with as felons. I am sorry that it has become necessary in this discussion to open subjects for debate, any inquiry about which, at this particular juncture in our history, is not likely to be attended with any great advantage. But, like my brethren for the defence, I have endeavored to state freely, fearlessly, frankly and correctly, the positions on which the defendants have a right to rely before the Court and before you. It would have been much more acceptable to my feelings, as a citizen, if we had been spared the performance of any such duty. But, gentlemen, it is not our fault. The advocate is of very little use in the days of prosperity and peace, in the periods of repose, in protecting your property, or aiding you to recover your rights of a civil nature. It is only when public opinion, or the strong power of Government, the formidable array of influence, the force of a nation, or the fury of a multitude, is directed against you, that the advocate is of any use. Many years ago, while we were yet Colonies of Great Britain, there occurred on this island what is known as the famous negro insurrection,—the result of an idle story, told by a worthless person, and yet leading to such an inflammation of the public mind that all the lawyers who then practiced at the bar of New York (and it is the greatest stigma on our profession of which the world can furnish an example) refused to defend the accused parties. One of them was a poor priest, of, I believe, foreign origin. The consequence was, that numerous convictions took place, and a great many executions. And yet all mankind is perfectly satisfied that there never was a more unfounded rumor—never a more idle tale—and that judicial murders were never perpetrated on the face of the earth more intolerable, more inexcusable, more without palliation. How different was it in Boston, at the time of what was called the massacre of Massachusetts subjects by British forces! The soldiers, on being indicted, sought for counsel; and they found two men, of great eminence in the profession, to act for them. One of them was Mr. Adams, and the other Mr. Quincy. The father of Mr. Quincy addressed a letter, imploring him, on his allegiance as a son, and from affection and duty toward him, not to undertake the defence of these men. The son wrote back a response, recognizing, as he truly felt, all the filial affection which he owed to that honored parent, but, at the same time, taking the high and appropriate ground that he must discharge his duty as an advocate, according to the rules of his profession and the obligation of his official oath, whatever might be the result of his course.

The struggles, in the history of the world, to have, in criminal trials, an honest judiciary, a fearless jury, and a faithful advocate, disclose a great deal of wrong and suffering inflicted on advocates silenced by force, trembling at the bar where they ought to be utterly immovable in the discharge of their duty—on juries fined, and imprisoned, and kept lying in dungeons for years, because they dared, in State prosecutions, to find verdicts against the direction of the Court. The provisions of our own Constitution, which secure to men trial by jury and all the rights incident to that sacred and invaluable privilege, are the history of wrong against which those provisions are intended to guard in the future. This trial, gentlemen, furnishes a brilliant illustration of the beneficial results of all this care. Nothing could be fairer than the trial which these prisoners have had; nothing more admirable than the attention which you have given to every proceeding in this case. I know all the gentlemen on that Jury well enough to be perfectly certain that whatever verdict they render will be given without fear or favor, on the law of the land, as they shall be informed it does exist, on a calm and patient review of the testimony, with a due sympathy for the accused, and yet with a proper respect for the Government, so that the law shall be satisfied and individual right protected. But, gentlemen, I do believe most sincerely that, unless we have deceived ourselves in regard to the law of the land, I have a right to invoke your protection for these men. The bodily presence, if it could be secured, of those who have been here in spirit by their language, attending on this debate and hovering about these men to furnish them protection—Lee, and Hamilton, and Adams, and Washington, and Jefferson, all whose spirits enter into the principles for which we contend—would plead in their behalf. I do wish that it were within the power of men, invoking the great Ruler of the Universe, to bid these doors open and to let the Revolutionary Sages to whom I have referred, and a Sumter, a Moultrie, a Marion, a Greene, a Putnam, and the other distinguished men who fought for our privileges and rights in the days of old, march in here and look at this trial. There is not a man of them who would not say to you that you should remember, in regard to each of these prisoners, as if you were his father, the history of Abraham when he went to sacrifice his son Isaac on the mount—the spirit of American liberty, the principles of American jurisprudence, and the dictates of humanity, constituting themselves another Angel of the Lord, and saying to you, when the immolation was threatened, "Lay not your hand upon him." (Manifestations of applause in Court.)

ARGUMENT OF WILLIAM M. EVARTS, ESQ., FOR THE PROSECUTION.

May it please your Honors, and Gentlemen of the Jury:

A trial in a Court of Justice is a trial of many things besides the prisoners at the bar. It is a trial of the strength of the laws, of the power of the Government, of the duty of the citizen, of the fidelity to conscience and the intelligence of the Jury. It is a trial of those great principles of faith, of duty, of law, of civil society, that distinguish the condition of civilization from that of barbarism. I know no better instance of the distinction between a civilized, instructed, Christian people, and a rude and barbarous nation, than that which is shown in the assertions of right where might and violence and the rage of passion in physical contest determine everything, and this last sober, discreet, patient, intelligent, authorized, faithful, scrupulous, conscientious investigation, under the lights of all that intelligence with which God has favored any of us; under that instruction which belongs to the learned and accredited expounders of the law of an established free Government; under the aid of, and yet not misled by, the genius or eloquence of advocates on either side.

But, after all, the controlling dominion of duty to the men before you in the persons of the prisoners, to the whole community around you, and to the great nation for which you now discharge here a vital function for its permanence and its safety,—your duty to the laws and the Government of your country (which, giving its protection, requires your allegiance, and finds its last and final resting-place, both here and in England, in the verdicts of Juries),—your duty to yourselves,—requires you to recognize yourselves not only as members of civil society, but as children of the "Father of an Infinite Majesty," and amenable to His last judgment for your acts. Can any of us, then, fail to feel, even more fully than we can express, that sympathies, affections, passions, sentiments, prejudices, hopes, fears, feelings and responsibilities of others than ourselves are banished at once and forever, as we enter the threshold of such an inquiry as this, and never return to us until we have passed from this sacred precinct, and, with our hands on our breasts and our eyes on the ground, can humbly hope that we have done our duty and our whole duty?

Something was said to you, gentlemen of the Jury, of the unwonted circumstances of the prosecution, by the learned counsel who, many days ago, and with an impressiveness that has not yet passed away from your memory, opened on behalf of the prisoners the course of this defence.