Part 36

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.