Part 12

Well, with reference to offences committed at sea, the officers capturing a prize have a right to bring it into any port, it is true, and the port where the prisoners are brought is, as we claim under the construction of the statute, the port where the trial is to take place; the port where the prisoners are first brought, whether they are landed or not. On that question of jurisdiction the rule is this: The jurisdiction of the State extends to the distance of a marine league from shore; and if these prisoners were brought on this vessel within the distance of three miles from the shores of Virginia, where the vessel anchored, as in port, having communication with the land, the jurisdiction of the Circuit Court of the Eastern District of Virginia attached, and they could not, after that, be put on trial for that offence elsewhere. It is not necessary for me now to trouble the Jury with re-reading authorities which were read upon this subject yesterday. In a case which occurred some years ago, before Judge Story, the learned Judge had fallen into a misapprehension on a question which did not necessarily arise, because the facts to give rise to it did not occur in the case. An offence had been committed--an attempt to create a revolt on board of a vessel at sea. Those who had made the attempt had either repented of the design, or had not succeeded in it; at all events, they had afterwards gone on to do their duty on the vessel, and had not been incarcerated on board the vessel at all. The vessel first got into a port in Connecticut, and finally got into a port in Massachusetts, and there, for the first time, those prisoners were arrested and put into confinement. Undoubtedly the Court in Massachusetts had jurisdiction in that case; but Judge Story, speaking on a question which did not arise, appeared to treat the language of the statute as being alternative, giving the Government the right to select one of two places for the trial. That was corrected in a late case which came before the Court in Massachusetts, in the same District where Judge Story had decided the previous case. Both Judge Sprague, of the District Court, and Judge Clifford, of the Circuit Court, held that in a case where prisoners had been captured as malefactors on the high seas, and had been confined on board a United States vessel, where the vessel had gone into Key West for a temporary purpose, to get water, without the prisoners ever having been landed, and where they went from thence to Massachusetts, where the prisoners were arrested by the civil authorities and imprisoned, that the Court of Massachusetts had no jurisdiction whatever. Under the instructions of the Court, the Grand Jury refused to find an indictment, and a warrant of removal was granted to remove the prisoners for trial in the Court at Key West,--the Court of Massachusetts holding that that was the only place where they could be tried for the offence, because the vessel having them in custody as prisoners had touched there to get water on her voyage. We have not even the information in that case as to whether the vessel went within three miles of the shore; it was enough that she had communicated with Key West, and that the prisoners might have been landed there; but it was held that the Government had not a right to elect the place of trial of the prisoners; and it is important, particularly in cases of this kind, that no one shall have the right to elect a place of trial. I say that, not with the slightest intention of imputing any unfair motives to the Government, to the officers of the Navy, or any one else. It is a great deal better that where men are to be put on trial for their lives, they should have the benefit of the chapter of accidents.

If it would have been any better for these prisoners to have had a Jury to try them in Virginia, they were entitled to the benefit of that. In saying so, I mean no reflection on any Jury in New York. I have no doubt you will try this case as honestly, as fairly, and as impartially as any Jury in Virginia could try it. But at the same time we all know that if this right of election can be resorted to on the part of the United States, men might suffer, not from any wrong intention, but from the natural and inevitable and often unconscious tendency of those who are to prosecute, to select the place of prosecution most convenient for themselves.

We shall therefore claim before you, gentlemen, following the rule laid down in Massachusetts by Judge Clifford and Judge Sprague, that this vessel, having been within a marine league of the shore of Virginia, was within the jurisdiction of the District Court of Virginia, and that that was the only place where they could be tried. Suppose, as was well suggested to me by one of my associates, that on the Minnesota, lying where she did, or on the Harriet Lane, lying where she did in Hampton Roads, a murder had been committed: could it be contended by any one that the United States Court in Virginia would not have had jurisdiction, and the only jurisdiction over the case?

Now, gentlemen, that is all which, on the opening of this case, I am going to say on the subject of jurisdiction.

Our next defence will be, that the commission in this case affords adequate protection to these prisoners; and we will put that before you in several points of view. It will undoubtedly be read to you in evidence. It was one of the documents found on board this vessel.

_Mr. Evarts:_ It is not in evidence; and how can counsel open to the Jury upon a commission which is not in evidence?

_Judge Nelson:_ Counsel can refer to it as part of his opening.

_Mr. Larocque:_ Now, gentlemen, you will recollect that the counsel for the prosecution, in framing this indictment, has treated this in the way in which we claim he was bound to treat it; that is to say, that the 9th section of the Act of 1790 was intended to refer exclusively to offences claimed to have been committed under a commission; throwing on the prosecution the necessity of setting forth the commission or the pretence of authority. Having set it forth, the prosecution is bound by the manner in which it is described in the indictment; and if it is described as something which it is not, the prisoners must have the benefit of that mis-description.

Now, in framing this indictment, the counsel for the prosecution has set forth that the prisoners claimed to act under a commission issued by one Jefferson Davis. That is to say, he has attempted to ground his claim to a conviction on that section of the statute. You will recollect that the statute reads, "under pretence of any commission granted by any foreign Prince or State" (which the Courts of the United States have held, to mean a foreign State), "or under pretence of authority from any person." And it was necessary, in order to ground an indictment on that section of the statute, to bring this case within the exact letter or words of one or the other clause of that section of this statute. It would not do for them to claim that this commission was issued by a foreign Prince or foreign State, because, if by a foreign Prince or foreign State, there would be no doubt or question that all of these parties were citizens of that foreign State or residents there, and were not citizens of the United States. Of course, if this were a foreign State, they were foreign citizens, and not citizens of the United States.

What is this commission? As we shall lay it before you, it reads in this way:

"JEFFERSON DAVIS,

"President of the Confederate States of America,

"To all who shall see these Presents, Greeting:

"Know ye, That by virtue of the power vested in me by law, I have commissioned, and do hereby commission, have authorized, and do hereby authorize, the schooner or vessel called the 'Savannah' (more particularly described in the schedule hereunto annexed), whereof T. Harrison Baker is commander, to act as a private armed vessel in the service of the Confederate States, on the high seas, against the United States of America, their ships, vessels, goods, and effects, and those of their citizens, during the pendency of the war now existing between the said Confederate States and the said United States.

"This commission to continue in force until revoked by the President of the Confederate States for the time being.

"Given under my hand and the seal of the Confederate States, [c.s.] at Montgomery, this eighteenth day of May, A.D. 1861.

"(Signed) JEFFERSON DAVIS.

"By the President.

"R. TOOMBS, "_Secretary of State_.

"SCHEDULE OF DESCRIPTION OF THE VESSEL.

"Name--Schooner 'Savannah.' "Tonnage--Fifty-three 41/95 tons. "Armament--One large pivot gun and small arms. "No. of Crew--Thirty."

That is the document, bearing the seal of ten States, signed by Jefferson Davis as President--signed by the Secretary of State for those ten States, which the learned counsel who framed the indictment has undertaken to call "a pretence of authority from one Jefferson Davis." The counsel was forced to frame his indictment in that way; for if he had alleged in the indictment that it was by pretence of authority from the Confederate States--to wit, South Carolina, Georgia, &c., naming States which this Government, for the purpose of bringing this prosecution at all, must claim to be in the Union--it would be clearly outside of the provision of the statute, and could never get before a Jury, because it would have been dismissed on application to the Court beforehand. But the learned counsel has sought, by stating an argumentative conclusion of law in his indictment, according to his understanding of it, to bring within the statute a case which the statute was not meant to meet--an entirely different and distinct case. I submit to you, that that cannot be done,--that the commission on its face does not purport to be a commission granted by any person. It purports to be, and, if anything, it is, a commission granted by authority of the States that are joined together under the name of Confederate States; and, gentlemen, as I said, we shall claim before you that this commission is a protection to these parties, against the charge of piracy, upon various distinct grounds.

In the first place, we shall claim before you that the Government, called the Government of the Confederate States (whether you call it a Government _de jure_ or a Government _de facto_, or whatever name under the nomenclature of nations you choose to give it), is the present existing Government of those States, exercising dominion over them, without any other Government having an officer or court, or any insignia of Government within them.

This is a point which, at a future stage of the case, my learned associate, who is much better able to do so than I am, will have occasion to dwell upon. I wish, however, to call your attention to the rules as they have been laid down; and first, I would desire to refer you, and also to call the attention of the Court, to what is said by Vattel,--who, as you all probably know, is one of the most celebrated authors upon international rights, and international law, and who is received as authority upon that subject in every Court in Europe and America. I refer to Vattel, book 1, chap. 17, secs. 201 and 202, where he says:

"_Sec. 201._ When a city or province is threatened, or actually attacked, it must not, for the sake of escaping a danger, separate itself, or abandon its natural Prince, even when the State or the Prince is unable to give it immediate and effectual assistance. Its duty, its political engagements, oblige it to make the greatest efforts in order to maintain itself in its present state. If it is overcome by force, necessity, that irresistible law, frees it from its former engagements, and gives it a right to treat with the conqueror, in order to obtain the best terms possible. If it must either submit to him or perish, who can doubt but it may, and even ought to prefer the former alternative? Modern usage is conformable to this decision,--a city submits to the enemy, when it cannot expect safety from vigorous resistance. It takes an oath of fidelity to him, and its sovereign lays the blame on fortune alone."

"_Sec. 202._ The State is obliged to protect and defend all its members; and the Prince owes the same assistance to his subjects. If, therefore, the State or the Prince refuses or neglects to succor a body of people who are exposed to imminent danger, the latter, being thus abandoned, become perfectly free to provide for their own safety and preservation in whatever manner they find most convenient, without paying the least regard to those who, by abandoning them, have been the first to fail in their duty. The Canton of Zug, being attacked by the Swiss in 1352, sent for succor to the Duke of Austria, its sovereign; but that Prince, being engaged in discourse concerning his hawks at the time when the deputies appeared before him, would scarcely condescend to hear them. Thus abandoned, the people of Zug entered into the Helvetic Confederacy. The city of Zurich had been in the same situation the year before. Being attacked by a band of rebellious citizens, who were supported by the neighboring nobility, and the House of Austria, it made application to the head of the Empire; but Charles IV., who was then Emperor, declared to its deputies that he could not defend it, upon which Zurich secured its safety by an alliance with the Swiss. The same reason has authorized the Swiss in general to separate themselves entirely from the Empire which never protected them in any emergency. They had not denied its authority for a long time before their independence was acknowledged by the Emperor, and the whole Germanic Body, at the treaty of Westphalia."

I also refer to the case of the United States _v._ Hayward, 2 Gallison, 485, which was a writ of error to the District Court of Massachusetts, in a case of alleged breach of the revenue laws. It appears that Castine (in Maine) was taken possession of by the British troops on the 1st of September, 1814, and was held in their possession until after the Treaty of Peace.

Judge Story says:

"The second objection is, that the Court directed the Jury that Castine was, under the circumstance, a foreign port. By 'foreign port,' as the terms are here used, may be understood a port within the dominions of a foreign sovereign, and without the dominions of the United States. The port of Castine is the port of entry for the District of Penobscot, and is within the acknowledged territory of the United States. But, at the time referred to in the bill of exceptions, it had been captured, and was in the open and exclusive possession of the enemy. _By the conquest and occupation of Castine, that territory passed under the allegiance and sovereignty of the enemy. The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced, or be obligatory upon the inhabitants, who remained and submitted to the conquerors._"

Now, gentlemen, I must trouble you, very briefly, with a reference to one or two other authorities on that subject. At page 188 of Foster's Crown Law that learned author says:

"_Sec 8._ Protection and allegiance are reciprocal obligations, and consequently the allegiance due to the Crown must, as I said before, be paid to him who is in the full and actual exercise of the regal powers, and to none other. I have no occasion to meddle with the distinction between Kings _de facto_ and Kings _de jure_, because the warmest advocates for that distinction, and for the principles upon which it hath been founded, admit that even a King _de facto_, in the full and sole possession of the Crown, is a King within the Statute of Treasons; it is admitted, too, that the throne being full, any other person out of possession, but claiming title, is no King within the act, be his pretensions what they may.

"These principles, I think, no lawyer hath ever yet denied. They are founded in reason, equity, and good policy."

And again, at page 398, he continues:

"His Lordship [Hale] admitted that a temporary allegiance was due to Henry VI. as being King _de facto_. If this be true, as it undoubtedly is, with what color of law could those who paid him that allegiance before the accession of Edward IV. be considered as traitors? For call it a temporary allegiance, or by what other epithet of diminution you please, still it was due to him, while in full possession of the Crown, and consequently those who paid him that due allegiance could not, with any sort of propriety, be considered as traitors for doing so.

"The 11th of Henry VII., though subsequent to these transactions, is full in point. For let it be remembered, that though the enacting part of this excellent law can respect only future cases, the preamble, which his Lordship doth not cite at large, is declaratory of the common law: and consequently will enable us to judge of the legality of past transactions. It reciteth to this effect, 'That the subjects of England are bound by the duty of their allegiance to serve their Prince and Sovereign Lord for the time being, in defence of him and his realm, against every rebellion, power, and might raised against him; and that whatsoever may happen in the fortune of war against the mind and will of the Prince, as in this land, some time past it hath been seen, it is not reasonable, but against all laws, reason, and good conscience, that such subjects attending upon such service should suffer for doing their true duty and service of allegiance.' It then enacteth, that no person attending upon the King for the time being in his wars, shall for such service be convict or attaint of treason or other offence by Act of Parliament, or otherwise by any process of law."

The author says then:

"Here is a clear and full parliamentary declaration, that by the antient law and Constitution of England, founded on principles of reason, equity, and good conscience, the allegiance of the subject is due to the King for the time being, and to him alone. This putteth the duty of the subject upon a rational, safe bottom. He knoweth that protection and allegiance are reciprocal duties. He hopeth for protection from the Crown, and he payeth his allegiance to it in the person of him whom he seeth in full and peaceable possession of it. He entereth not into the question of title; he hath neither leisure or abilities, nor is he at liberty to enter into that question. But he seeth the fountain, from whence the blessings of Government, liberty, peace, and plenty flow to him; and there he payeth his allegiance. And this excellent law hath secured him against all after reckonings on that account."

And another author on that subject [Hawkins], in his Pleas of the Crown, Book I., chap. 17, sec. 11, says:

"As to the third point, who is a King within this act? [26 Edw. 3, ch. 2.] It seems agreed that every King for the time being, in actual possession of the crown, is a King within the meaning of this statute. For 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 to us the safety of our lives, liberties, and properties, and all other advantages of Government, he may justly claim returns of duty, allegiance, and subjection."

"_Sec. 12._ And this plainly appears by the prevailing opinions in the reign of King Edward IV., in whose reign the distinction between a King _de jure_ and _de facto_ seems first to have begun; and yet it was then laid down as a principle, and taken for granted in the arguments of Bagot's case, that a treason against Henry VI. while he was King, in compassing his death, was punishable after Edward IV. came to the Crown; from which it follows that allegiance was held to be due to Henry VI. while he was King, because every indictment of treason must lay the offence _contra ligeantiae debitum_.

"_Sec. 13._ It was also settled that all judicial acts done by Henry VI. while he was King, and also all pardons of felony and charters of denization granted by him, were valid; but that a pardon made by Edward IV., before he was actually King, was void, even after he came to the Crown."

"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.