Part 26

Now, if the Court please, when it comes up for judicial inquiry, whether a case of privateering, under the law of nations, is fairly made out, and where the case arises during flagrant war between two separate, independent, established nations, whose nationality is a part of the order of things in the world, the Court has only really to inquire, judicially, into two subjects--whether the vessel had a lawful privateer's commission from one of the contending parties--and whether the acts committed by her were within its scope, either actually or in the sense of a fair construction of the authority, and of good faith in the exercise of the power. But, even in these cases, where the only points are, whether there be war, and whether there be nationalities on each side which can convey this public authority, the Court is all the while governed by, dependent upon, and subordinate to, the views of the Government from which the Court derives its authority. No judicial tribunal has a right to recognize a nation, of its own motion. No judicial tribunal has authority to recognize a Government which the Government from which it derives its authority does not recognize. I have never heard it proposed, as a view either of public or of domestic law, that when a Government has declined to recognize a nation, it was within the jurisdiction of a Court of that Government to determine differently, and reverse the decision of the political power. In the cases of France and England, which are recognized Governments that have placed themselves as firmly among the nations of the world as private individuals are planted in the rights of man, our Courts intermit this inquiry. A privateer of England which confines itself within the scope of its commission, can not be proceeded against as a pirate, although it commits acts which would of themselves be piracy. But, there do arise questions which come under the jurisdiction of the Courts, under circumstances of doubt and obscurity as to the course or view which our Government has taken in relation to the alleged nationalities of alleged belligerents; and I need not say to your honors, that by an unbroken series of the decisions of the Supreme Court, as well as by the necessary subordination of the judicial authority to the political power of the Government, our Courts always take the view which their Government takes in respect to struggles and hostilities which arise between uncertain, indefinite and unascertained powers. Thus, whenever there occur, between Colonies and the parent Government,--between disaffected regions or populations and the sovereign to which they have been subject--dissensions which, arising from the region of discontent, sedition and turbulent disorder, reach the proportion of military conflict and appeal to arms, then, when acts in the nature of war are assumed to be performed, under circumstances that bring them within judicial cognizance in our Courts, and in the Courts of any other civilized nation, as to whether they still retain their quality and character of private acts, attended by the private responsibility of the criminals, or whether they are transferred to the wider theatre and looser responsibility of warlike engagement, our Courts, as do the Courts of other civilized nations, look to the Government to see what is its policy and its purpose. The instances in which these unhappy contests and these obscure questions have been presented before the Courts, have been almost entirely connected with the separation of the South American Colonies from the mother country of Spain. In all these cases, the new Governments of the revolted Colonies gave commissions to privateers, and undertook to put themselves before the nations of the world as belligerents, claiming from neutral nations, not a recognition of their independence, or of their completed nationality, but of their right to struggle, through the forms of force and war, to establish that nationality. They presented to the discretion and the policy of every other civilized Government precisely this question--Is there enough of substance, of good faith, of power, to justify us, as equal expounders and equal defenders and protectors of the laws of nations, although there be now no present nationality that can support, under the rules of the law of nations, by mere right, the exercise of warlike powers--is there enough, in the transaction, to justify us in considering it to be so substantial and _bona fide_ an effort for the assertion of independence and the creation of a new nation, that we shall give to it the opportunity, and turn what would be piracy and marauding into an act of belligerents, so far as we neutrals are concerned?

When a nation is an independent nation, all other nations of the earth are, by public law, bound to recognize it, and bound to recognize its right to make war. The most powerful nation in the world has no more right to make war than the smallest nation in the world; and, each being judge of its own conduct, when a state of war exists, such war must, by the public law of the world, be recognized. But when new, unformed, inchoate, tentative consolidations or efforts of nationalities present themselves, every nation has, by the public law, a right to exercise its own wisdom, its own policy and its own sense of justice, to determine whether or not it will recognize them; and, in every one of the cases I have referred to that came before our Courts, arising for their consideration as between two parts of a foreign country, our Courts said--Our Government has done so and so; it has recognized them as belligerents, and we follow our Government. In other cases, as in that of the Commander Aury, the Court said--We do not understand that there is any such power known in the world; our Government has never in any way recognized, not its independence, for that is not necessary, but its position as a war-making power, or as a struggling power, fighting for nationality, and we cannot recognize that condition of things.

Now, unhappily, there arises a conflict in our own country, which presents the case of an armed military rebellion--a revolt of certain portions of population, maintaining, if you please, to a certain extent, the mastery over a certain portion of our soil, using against us the actual means and processes of war, and compelling from our Government, in maintaining dominion against their aggressive assaults, the means of military power, naval and land forces, and all the authority and violence of war. Foreign nations have had, in regard to us and to this conflict, the same kind of questions presented that have been presented to us in the contests between the dismembered parts of other countries. And every nation was free to determine, upon this exact question of the right of private war, as belonging to those rebellious portions of this country--to determine whether it would tolerate privateering as a warlike proceeding, or would regard privateers as marauders or pirates without just right or cause, and without the pretence of sufficient force and dignity, in a movement to disturb the peace of the world.

My learned friends have said, using the force of the argument in aid of their cause, that France and England have recognized the insurgents as belligerents, and have precluded themselves from treating as pirates private armed vessels that shall derive authority from these rebellious powers. Well, by the same law of nations that gave to France and England this right thus to elect, they had the right to determine, and to announce by proclamation, that the peace of the world upon the ocean should not be disturbed, under pretence of war, by these insurgents, and that, if they should resort to private armed vessels to inflict aggressions and disturb the commerce of the world, they would be treated as pirates. And if, under the law of nations, the political authorities of France and England had thus announced their policy that these insurgents should be treated as pirates, I would like to know if advocates would be heard, in the Court of Queen's Bench or in the Courts of France, to urge that the Court, wiser than its Government, should, in the exercise of sovereign discretion under the law of nations, tolerate, as an act of war, what is piracy by municipal statute or the law of nations, unless accredited as part of a warlike movement. Would those Courts permit the defence to be made, that what were declared to be acts of piracy were acts of war,--the Government having so elected and so announced, that it would regard them as acts of piracy and not as acts of war?

Now, I am arguing this case altogether on this point, as if the Government from which this Court derives its authority--whose laws we are administering--whose authority is vested in your honors on this trial--stood as a stranger to and spectator of this contest, and it was really a controversy between parts of another nation. And all I have claimed is, that our Government, in common with the other nations of the world, has, by the law of nations, the right, in its discretion, to determine how this proceeding shall be treated, and what consequences shall follow from it. Now, I need not say that, treating our Government as if it stood _ab extra_, and as if, passing its judgment on what was going on, it had determined that these privateers should be regarded as pirates, they should not be recognized as having the right of war, or the right, as an inchoate nationality, to perfect their independence.

The Proclamation of the President of the United States, of the 19th of April, 1861, is a complete and perfect denunciation of this threatened crime of piracy, the purpose to recur to which had been manifested by a public declaration of Jefferson Davis, which had invited, from all quarters of the globe, privateers to prey upon the commerce of the United States. I need not say to your honors that when our Government has pronounced this to be piracy, and to be not within the law of nations, under its discretion to determine whether it will recognize an inchoate nationality, this Court has not, any more than has a Court of England or France, the power to say that what its Government does not choose to recognize, even in the quality of belligerents, it will recognize. What our Government has said shall remain in the quality of criminality, must so remain, notwithstanding this proclamation of Jefferson Davis, or any commission that may issue in pursuance of it.

I apprehend that even if we were to bring ourselves into the paradoxical condition of passing judgment on this question as a disinterested, yet sovereign nation, your honors would find in the acts of the Government a complete denunciation against this proceeding as a crime of piracy, and a complete policy, which the Court must follow, leaving any diplomatic considerations of the results which may follow its mistaken, if you please, construction of its duty, to be disposed of by the authorities that are responsible for it.

_Mr. Brady:_ I believe there is no proof of any such action by the legislative branch of this Government.

_Mr. Evarts:_ I apprehend that the whole course of the legislation of this country shows that we do not recognize or tolerate this contest as a thing that is rightfully to go on. That is all that is necessary.

I say, if the Court please, that the course of an external sovereignty, in these intestine quarrels, turns upon the point whether it will give its sanction to an intrusion upon the peace of the world by an inchoate nation, and I am trying to consider that question as if our Government had passed judgment upon it _ab extra_; and I say that the action of our Government shows that we do not intend to recognize it as something that should be allowed to go on. These considerations, as to any recognition by this Court of rights derivable from _quasi_, pretended, nascent, public powers, would induce this Court to follow the decision of the Government, in case we were judging of the question as a controversy between parts of another nation.

I am now brought to the consideration of who are the parties to this controversy, and what are the relations of this Court and of the laws we are administering to the subject and the inquiry. The Government of the United States still stands. The old Constitution, the whole system of its statutes, the whole power of its army and of its navy, stand. It has its Courts of judicature; it has its commerce still on the seas; its laws are still operative, and still to be administered. And when this Court considers this case, it finds it brought before it as every other criminal case is, and limited to the considerations that belong to every criminal case. The Government of the United States, by the ordinary exercise of the process of judicature,--by seizure under public authority,--by arrest within this District, through the criminal process of this Court,--by the indictment of a Grand Jury,--by the prosecution of the District Attorney,--has proposed to this Court the naked and narrow inquiry of whether these men have committed a crime against the statutes of the United States. Now, I would like to know whether there is anything in these occurrences, that have secured, if you please, for the present, (and the future may be uncertain,) in large portions of our territory, a practical control over great portions of our population,--I would like to know if there is anything in these transactions that has displaced the constitutional legislation of the United States of America over crimes on the high seas, and over its citizens committing crimes on the high seas, or over subjects or citizens, of whatever country, committing crimes on the high seas against our property? I take it, not. Therefore, if your honors please, whatever may be said, in one form or another, of the political right, as respects these States, either constitutionally or by the right of force, to be independent, or to attempt to be independent of the United States, or to engage in this struggle for the settlement of some question of dispute under the Constitution,--whatever may be said of that, your honors cannot fail to discover that nothing which has occurred has destroyed the organism of our Government, or altered for a moment the judicial authority or the force and supremacy of the Constitution and the laws, within the territory where the Courts are open, over the subjects of our Government, and the subjects of whatever Government, in respect to whatever property, upon the high seas.

I understand that my learned friend, Mr. Larocque, supposes that the ordinance of repeal of South Carolina, constitutionally or unconstitutionally supported by the strength to maintain its independence, has changed these four men who are indicted here and are proved to be citizens of the United States, from their condition of citizens of the United States; and he holds, and asks as legal proposition from your honors, that, at the time of the commission of this crime, these men were not citizens of the United States, by reason of the constitutional right of South Carolina to carry itself out of the Union, by force of ordinances, or supported by military power that had maintained itself up to the first of June in the possession of independent power. Your honors will charge, or refuse to charge, accordingly as you may find that the old Government has sovereignty and has attempted to exercise it, and that there has been no severance of our territory to the extent of a permanent division,--whether these men are citizens of the United States, or of a foreign country. If they are held to be citizens of a foreign country, to wit, of South Carolina, or of the Confederate States, then they fall back under the eighth section of the Act, as having committed piracy under that section.

But, to come back to the attitude of our Government, which this Court must follow, towards these rebels,--towards these malcontents,--towards these combinations, which are exercising the processes of war, undoubtedly,--what is the attitude of our Government? Does it recognize their right--does it recognize their independence--does it recognize their authority, so that you find that our Government has adopted the policy of not punishing them under the laws of the United States?

And this brings me to the consideration of another general subject, which Mr. Lord adverted to, and upon which he cited the authority of Vattel--that it would be monstrous, and would expose this Government to the execration of the world, if the criminal laws against murder and robbery on land, and the civil laws against trespass, were to be executed to the letter, and to the full extent of the vengeance of the law against the multitudinous enemies that are arrayed against this Government. Now, I must decline to be led out of a Court of Justice, by this argument, to considerations that appeal to the wisdom, or humanity, or policy of the Government. I would like to know whether my learned friend would contend that, if a private soldier, found in arms, and part of a military force, against the Government of this country, is arrested by that Government, and is indicted, and put upon his trial for treason, which the Constitution of the United States limits to the overt act of levying war against the Government, and if, under the indictment, he pleads in bar that he was levying war against the United States of America,--that would relieve him? For that is the whole nature of the proposition put forward in a Court of Justice,--that, because there are armies, there is no treason! Why, if your honors please, how absurd to present for the recognition of a Government, in its Courts of Judicature, the proposition that there is no treason, from the number of the confederates in the treachery! Your honors see at once that, the idea of setting up such a defence, on a trial for treason, against a private soldier, found in arms against the Government, is absurd. And yet, your honors recognize what is laid down by the publicists, that when the dimensions of a rebellion have been aggravated into the proportions of flagrant war, for a Government to insist upon the decimation or extermination of the population by the gallows or the axe, would be inconsistent with those general principles of humanity and justice that actuate, by necessity, the affairs of men.

It is not necessary for me to discuss these questions. It belongs to the Government, after it has procured a conviction, either for piracy or for treason, to decide, in its own discretion, whether the penalty of the law shall be inflicted. Let us confine ourselves to our duties. Let us not be asked here, as a learned Bench, or as honest Jurymen, to recognize a Government or a state of belligerency that our nation does not recognize. And let us not be asked to repeal statutes of treason because the number of the traitors is so great that we cannot carry out the penalties of the law against the whole. I would like to know if in the face of any Court of Justice,--if in the face of the public opinion of the world,--if in the face of the principles of eternal justice,--it is to be set forward as a shield over the heads of the rebel leaders and traitors, that they have inflamed and misled so large a body of the common people, that they, the leaders, cannot be punished. I would like to know if, when in advance, immediately upon the rebel proclamation inviting privateers, our Government, through every newspaper in the land, proclaimed that whoever should voluntarily take up this form of piracy would be treated as a pirate, and you find the first privateer, with the first commission taken out under this proclamation of sovereignty, and the first band that volunteer--Mr. Baker and his crew, collected from all the quarters of the globe,--the first engaged in this new and flagrant form of outrage, against which they had been warned,--I would like to know if these bold outlaws, stretching forward a ready hand to grasp the license of war for plunder, the whole proceeds of which are to fill their pockets, are to be presented in this Court as being special objects of protection, under the principles of humanity, and as being shielded against public justice in enforcing the laws of piracy.

Now, if your honors please, treating, as I do, this question as one to be passed upon, not with the coolness of a neutral power looking upon these contending parties as independent nations, but by this Court as the Government's own judicial organ for administering the public justice, I would like to know what pretence there is that, under the laws of the United States, the crime of piracy having been proved, there is anything in this notion of a commission from a nationality recognized by our Government, or of a belligerent right recognized by our Government, that this Court can adopt as a merger of the private crime in the public conflict. We contend, therefore, that in the conflict now raging, the Constitution and the laws of the United States make every person levying war against the Government a rebel and traitor, and, if the war thus levied take the form of piratical aggression, a pirate, within the statute.