Part 30

Let me illustrate further the absence of all reason to support the proposition that, until a formal acknowledgment of the existence of the Confederate States by the United States, the official acts of the former cannot be regarded as having any validity, or as affording protection to their citizens. Go beyond our own borders, to countries where the sovereign is an individual, with fixed hereditary right to reign, and where the doctrine established is that which I repudiate, "Once a sovereign, always a sovereign," and that the sovereign rules by divine right and cannot innocently be superseded. If the doctrine affirmed in this case be true, that to give validity to the acts of a Government established by a revolution the preceding Government must have recognized its existence, then the world will be sadly at fault. Show me where the King of Naples has acknowledged the kingship of Victor Emanuel? Show me where the sovereigns of Parma and Modena and Tuscany have consented to the establishment of the new government in their territory?

But the people have voted in the new Government, and they maintain it; and Victor Emanuel is, in spite of King Bomba, _de facto_, King of Naples; and Victor's commissions to his army and navy, and his letters of marque, will be recognized in every court in every enlightened nation.

Even in Italy, the Courts of Justice would, when the case arose that required it, enforce the same regard to the existing Government as if the former sovereigns had formally relinquished their claims to sovereignty. Again, I say, the act of the people is entitled to more weight in an inquiry, "what is the Government?" than the seal and recognition of the former sovereign.

As Americans, imbued with correct opinions upon the relation of the governed to the governing, your hearts reject the theory propounded by this prosecution, and concur with me.

To vindicate your opinion you will find the defendants herein "not guilty."

Come to our own recent history. Texas was one of the States of the Union which is called Mexico. Texas seceded from that Union. She declared her independence, and during a struggle of arms became a _de facto_ Government. Mexico would not recognize her independence, and continued her intention to restore her to the old Union. The United States, however, recognized the right of Texas to her independence, and invited her to enter into our Union, and did incorporate her in that Union in defiance of the doctrine of Mexico, "once a sovereign, always a sovereign until independence shall be acknowledged." We then denounced that doctrine, but now we seem ready to embrace its odious sentiments. We placed our declaration on record before the world, that Texas, by her act alone, unauthorized and unrecognized by the central Government of Mexico, had become a sovereign and independent State, invested with full power to dispose of her territory and the allegiance of her citizens, and, as a sovereign State, to enter into compacts with other States.

Have not the Courts of the United States sanctioned that proceeding? Suppose that Hungary, or Venice, or Ireland shall separate from their present empires and establish Governments for themselves, what will be our position? Let your verdict in this case determine.

It is, perhaps, well, now, to recur to the law of nations. That is a part of the common law of England and of this country. We may claim in this Court the benefit of its enlightened and humane provisions, as if they were embodied in our statutes. There are circumstances in the history of every nation, when the law of nations supervenes upon the statutes and controls their literal interpretation.

If the case becomes one to which the law of nations is applicable, it thereby is removed from the pale of the statute. Such is the present case. In the seceded States a Government has been established. It has been hitherto maintained by force, it is true, as against the United States, but by consent of the people at home; and both sides have taken up arms, and large armies now stand arrayed against each other, in support of their respective Governments. It is all-important to the cause of justice, and to the honor of the United States, to see that in their official acts, in their treatment of prisoners, either of the army or captured privateers, they conform to the rules recognized as binding, under similar circumstances, by civilized and Christian nations, and sanctioned by the authoritative publicists of the world. I will recall your attention to extracts from Vattel, and with the firmest confidence that they will vindicate my views, that the defendants are entitled to be held as prisoners of war, and not as criminals awaiting trial:

Vattel, Book III., chapter 18, sec. 292:

"When a party is formed in a State, which no longer obeys the sovereign, and is of strength sufficient to make a head against him, or when, in a Republic, the nation is divided into two opposite factions, and both sides take arms, this is called a _civil war_. Some confine this term only to a just insurrection of subjects against an unjust sovereign, to distinguish this lawful resistance from _rebellion_, which is an open and unjust resistance; but what appellation will they give to a war in a Republic torn by two factions, or, in a Monarchy, between two competitors for a crown? Use appropriates the term of civil war to every war between the members of one and the same political society."

Subsequent clause in same section:

"Therefore, whenever a numerous party thinks it has a right to resist the sovereign, and finds itself able to declare that opinion, sword in hand, the war is to be carried on between them in the same manner as between two different nations; and they are to leave open the same means for preventing enormous violences and restoring peace."

Last clause in section 295:

"But when a nation becomes divided into two parties absolutely independent and no longer acknowledging a common superior, the State is dissolved, and the war betwixt the two parties, in every respect, is the same with that in a public war between two different nations. Whether a Republic be torn into two factious parties, each pretending to form the body of the State, or a Kingdom be divided betwixt two competitors to the Crown, the nation is thus severed into two parties, who will mutually term each other rebels. Thus there are two bodies pretending to be absolutely independent, and who having no judge, they decide the quarrel by arms, like two different nations. The obligation of observing the common laws is therefore absolute, indispensable to both parties, and the same which the law of nature obliges all nations to observe between State and State."

"If it be between part of the citizens, on one side, and the sovereign, with those who continue in obedience to him, on the other, it is sufficient that the malcontents have some reasons for taking arms, to give this disturbance the name of _civil war_, and not that of _rebellion_. This last term is applied only to such an insurrection against lawful authority as is void of all appearance of justice. The sovereign, indeed, never fails to term all subjects rebels openly resisting him; but when these become of strength sufficient to oppose him, so that he finds himself compelled to make war regularly on them, he must be contented with the term of civil war."

Clause of section 293:

"A civil war breaks the bands of society and government, or at least it suspends their force and effect. It produces in the nation two independent parties, considering each other as enemies, and acknowledging no common judge. Therefore, of necessity, these two parties must, at least for a time, be considered as forming two separate bodies--two distinct people. Though one of them may be in the wrong in breaking up the continuity of the State--to rise against lawful authority--they are not the less divided in fact. Besides, who shall judge them? On earth they have no common superior. Thus they are in the case of two nations who, having dispute which they cannot adjust, are compelled to decide it by force of arms."

First clause in sec. 294:

"Things being thus situated, it is evident that the common laws of war, those maxims of humanity, moderation and probity which we have before enumerated and recommended, are, in civil wars, to be observed on both sides. The same reasons on which the obligation between State and State is founded, render them even more necessary in the unhappy circumstance when two incensed parties are destroying their common country. Should the sovereign conceive he has a right to hang up his prisoners as rebels, the opposite party will make reprisals; if he does not religiously observe the capitulations and all the conventions made with his enemies, they will no longer rely on his word; should he burn and destroy, they will follow his example; the war will become cruel and horrid; its calamities will increase on the nation."

Remember you are an American Jury; that your fathers were revolutionists; that they judged for themselves what Government they would have, and they did not hesitate to break off from their mother Government, even though there were penalties of statutes with which they were threatened. And remember, also, that from the beginning of your fathers' revolution, they claimed that they were not liable to the treatment of offenders against British statutes, but that the Colonies were a nation, and entitled to belligerent rights--one of which was, that if any of their army or navy fell into the hands of the British army, they should be held as prisoners of war.

Your fathers never admitted that the _continental army_ were liable to punishment with the _halter_, if taken prisoners.

To be sure, the statute of Great Britain, literally construed, so provided, but the law of nations had supervened, and rendered that statute no longer applicable. Vindicate your respect for your fathers' claims, by extending the same immunities to the prisoners at the bar, whose situation is analogous to that of our fathers.

At the commencement of the Revolution, preceding the Declaration of Independence in 1776, the Colonies became each a separate sovereignty. That became the _status_, with some, without documentary declaration to that effect; but most of them have left on record positive enunciations of their assumption of independence and sovereignty as States, unconnected with the proceedings of any other State.[4] They entered into a Confederation as independent States, declaring, however, distinctly, in a separate article, that each State retained its own sovereignty, freedom, and independence, and every power of jurisdiction and right not expressly delegated to the United States in Congress assembled. And at the close of the war, when the treaty of peace was made, recognizing the independence of the Colonies, each State was named individually. I have never been able to discover when and where, since that period, any State has surrendered its sovereignty, or deprived itself of its right to act as a sovereign. The Constitution suspends the exercise of some of the functions of sovereignty by the States, but it does not deprive them of their power to maintain their rights as sovereigns, when and how they shall think best, if that Constitution shall, in their judgment, be broken or perverted as a delegated trust of power.

[4] An interesting fact, not published previously, I believe, has been communicated to the public recently by Mr. Dawson, of New York, a historical student and writer of great research and culture. He has found an original minute in the records of the General Court of Massachusetts, whereby, as early as May 1st, 1776, the sovereignty and independence of that _Colony_ was declared formally.

Listen, therefore, to the better voices whispering to each heart. Remember, the honor and consistency of the United States are involved in this case. By a conviction of the defendants, you condemn the Revolution of your ancestors; you sustain the theories of the worst courtiers who surrounded George III. in his war to put down the rebellion; you will appear to the world as stigmatizing revolutionists with the names of outlaws and pirates, which is the phraseology applied to them by Austria and Russia; you will violate the law of nations; you will appear to be merely wreaking vengeance, and not making legitimate war; you will henceforth preclude your nation from offering a word of sympathy to people abroad who may be struggling for their independence, and who have heretofore always turned their hearts to you. You can never--having punished your revolutionists on the gallows--send an invitation to the unfortunate champions of independent Government in the old world. Kossuth will reply: The American maxim is that of Francis Joseph, and of Marshal Haynau. You cannot say "Godspeed!" to Ireland, if she shall secede. No! as you love the honor of your country, and her place among nations, refuse to pronounce these men pirates.

Tell your Government to wage manly, open, chivalric war on the field and ocean, and thus or not at all; that dishonor is worse even than disunion. Stain not your country's hand with blood. If I were your enemy, I would wish no worse for your names, than to record your verdict against these prisoners. Leave no such record against your country in her annals; and when the passions of the hour shall have subsided, your verdict of acquittal of Thomas H. Baker and the other defendants herein, will be recalled by you with satisfaction, and will receive the approval of your countrymen.

ARGUMENT OF MR. DAVEGA.

_May it please your Honors: Gentlemen of the Jury_:

On the 25th of June last, when the startling intelligence was announced in our daily papers of the capture of the so-called _Pirates of the Savannah_, our community was thrown into a _furore_ of excitement. Every one was anxious to get a glimpse of the "monsters of the deep," as they were carried manacled through our streets. Some expected to see in Captain Baker a "counterfeit presentment" of the notorious Captain Kidd; others expected to trace resemblances in Harleston and Passalaigue to Hicks and Jackalow; but what was their surprise when they discovered, instead of _fiends_ in human shape, gentlemen of character, intelligence, refinement, and education! Captain Baker is a native of the Quaker City, Harleston and Passalaigue of the State of South Carolina,--all occupying the best positions in society, and respectably connected. The father of Harleston was educated in one of our Northern universities, and, by a strange coincidence, one of his classmates was no less a person than the venerable and distinguished counsel who now appears in behalf of his unfortunate son. (The counsel directed his eyes to Mr. Lord.) Another strange coincidence in the case is, that twelve men are sitting in judgment upon the lives of twelve men, and these men "enemies of the country, enemies of war," and as such are entitled to the rights of prisoners of war.

They do not belong to your jurisdiction; their custody belongs exclusively to the military and not the civil power. Instead of being incarcerated as felons, in the Tombs, they should have been imprisoned in Fort Lafayette, as prisoners of war. They are your enemies to-day; they were your friends yesterday. It is no uncommon occurrence that when two men engage in a quarrel, ending in a fierce combat, they are afterwards better friends than they were before; the vanquished magnanimously acknowledging the superiority of the victor, and the victor in return receiving him kindly. And so, gentlemen, I hope the day is not far distant when the Stars and Stripes will float in the breeze upon every house-top and every hill-top throughout the length and breadth of our glorious Republic: then shall we establish the great principle, for which our forefathers laid down "their lives, their fortunes, and their sacred honor," that this is a Government of consent, and not of force; and "that free governments derive their just powers from the consent of the governed."

In this case some of the gravest and most complicated questions of political and international jurisprudence are involved.

The learned counsel who have preceded me have so fully and ably argued the political questions involved, that it would be the work of supererogation for me to go over them; but in this connection it is not inappropriate to refer to the fact that political opinions instilled into the minds of the prisoners may have influenced their conduct. They were indoctrinated with the principles of political leaders who advocated States' Rights, Nullification, and Secession; and without undertaking to justify or approve the soundness or correctness of their views, it is enough for me to show that the prisoners at the bar were actuated by these principles. The name of John C. Calhoun was _once_ dear to every American; his fame is now sectional. Every Southerner believes implicitly in his doctrines; his very name causes their bosoms to swell with emotions of pride; his works are political text books in the schools. It has been facetiously said that when Mr. Calhoun took a pinch of snuff, the whole State of South Carolina sneezed. I do not mean to treat this case with levity, but merely intend to show the sympathy that existed between Mr. Calhoun and his constituents. Then what is the "_head and front of their offending_"? They conscientiously believed that _allegiance_ was due to their State, and she in return owed them protection; and under such convictions enlisted in her behalf. If they have erred, it was from mistaken or false notions of patriotism, and not from criminality. It is the _intent_ that constitutes the crime. And this is the only just rule that should obtain in _human_ as well as _divine_ tribunals.

The prisoners at the bar stand charged with the offence of piracy. I contend that they do not come within the intention and purview of the statute against piracy. To understand and properly interpret a law, we must look to the intention of the legislator, and the motives and causes which give rise to the enactment of the law. In the construction of a will, the intention of the testator is to be ascertained; and the same rules apply in the just interpretation of every law. These laws were enacted at a period when peace and prosperity smiled upon this country. If they had been passed during Nullification in 1832, when the disruption of the Union was threatened, then we might reasonably infer that they were intended to apply to the existing state of affairs; so that the irresistible conclusion is, that they were applicable only to a state of peace, and not to a state of war.

The question then arises, Does a state of war exist? The learned counsel for the prosecution (Mr. Evarts), in an able and elaborate argument for the Government, when this question arose in the trial of prize causes, in the other part of this Court (when it was the interest of the Government to assume that position), demonstrated clearly, to my mind, that a state of war did exist, and confirmed his views by citations from the best authorities on international law.

Vattel, who ranks among the first of authors, and whose work on the law of nations is recognized by every enlightened jurist throughout the civilized world, defines "war to be that state, where a nation prosecutes its rights by force." That this is a nation no one will doubt; that it is prosecuting its rights can not be denied; and no one will doubt that it is using force upon a stupendous scale--requiring four hundred millions of dollars, and 500,000 men, with the probability of additional requisitions of men and treasure for a successful termination of this fratricidal war.

It may be said that this is a civil war. Admitting it to be so, the only distinction between this and an international war is, that the former is an intestinal war between the people, where the Republic is divided into two factions, and the latter is where two nations are opposed to each other. All the rules of civilized war, therefore, should govern equally, and it is to soften and mitigate the horrors of civil war that an exchange of prisoners is recognized.

I have endeavored to show that the prisoners at the bar are not guilty of piracy, as defined by the Acts of Congress; and if they are not guilty of municipal piracy, they are certainly not guilty of piracy by the law of nations. What is a pirate? He is defined to be an enemy of the human race--a common sea rover, without any fixed place of residence, who acknowledges no sovereign, no law, and supports himself by pillage and depredation. Do the prisoners come within the meaning of this definition? Did they not encounter a British vessel upon the high seas? Could they not have captured her? But, no, gentlemen of the Jury, as soon as they ascertained that she belonged to a nation in amity with theirs, they allowed her to depart in peace. With the permission of the Court, I would beg leave to refer to an authority entitled to high respect--the works of Sir Leoline Jenkins, 4th Institutes, p. 154, where this principle is laid down: "If the subjects of different States commit robbery upon each other upon the high seas, if their respective States be in amity, it is piracy; if at enmity, it is not, for it is a general rule that enemies never can commit piracy on each other, their depredations being deemed mere acts of hostility."

The prisoners were acting in good faith, by virtue of a commission under the seal of the Confederate States. It is said, by the learned counsel for the prosecution, that the prisoners were acting under the authority of a person named Jefferson Davis. This does so appear nominally, but it is virtually and actually a commission issuing from eight millions of people, who recognize and sanction it under the hand of their President and the seal of their Government--each one being _particeps criminis_, and each one being amenable to the laws of the country, and liable to the penalties of treason and piracy, if evenhanded justice is to be meted out.

I have not yet been able to perceive the distinction between this offence as committed upon sea or land, except that it is attended with more danger. Why, then, have not the prisoners captured by our armies, who are now in Fortress Monroe and Fort Lafayette, been brought to the bar of justice? Because the Government has come to the conclusion that it would be unwise, impolitic, and impracticable; our tribunals would be inadequate in the administration of the laws. But justice should be equal.

One of the learned Judges who charged the Jury in the case of the privateers who were tried in Philadelphia, has undertaken to establish the doctrine that rebellion is wrong, and that it is only justifiable when it acquires the form of a successful revolution. To analyze this doctrine, it means no more nor less than this: that that which was originally wrong, success makes right. To carry out the metaphor, a certain insect in its chrysalis state is the loathsome and detestable caterpillar, but when it assumes the form and variegated hues of the butterfly, it is glorious and beautiful to behold. With equal force of reason it might be said, that if the Father of his country had been unsuccessful in consummating our independence, his name, instead of going down to posterity in glory and honor, would have descended in infamy and disgrace to all succeeding generations. Such notions are unworthy of refined and enlightened civilization.