Part 41

"If any person or persons owing allegiance to the United States of America shall levy war against them, or shall adhere to their enemies, giving them aid and comfort within the United States, or elsewhere, and shall be thereof convicted," "such person or persons shall be adjudged guilty of treason against the United States, and shall suffer death."

Now, you will observe that treason is not a defence against piracy; nor is good faith in treason a defence against treason, or a defence against piracy. What would be the posture of these prisoners, if, instead of being indicted for piracy, they were indicted for treason? Should we then hear anything about this notion that there was a war raging, and that they were a party engaged in the war? Why, that is the very definition of treason. Against whom is the war? Against the United States of America. Did you owe allegiance to the United States of America? Yes, the citizens did; and I need not say to you, gentlemen, that those residents who are not citizens owe allegiance. There is no dispute about that. Those foreigners who are living here unnaturalized are just as much guilty of treason, if they act treasonably against the Government, as any of our own citizens can be. That is the law of England, the law of treason, the necessary law of civilized communities. If we are hospitable, if we make no distinction, as we do not, in this country, between citizens, and foreigners resident here and protected by our laws, it is very clear we cannot make any distinction when we come to the question of who are faithful to the laws. So, therefore, if they were indicted for treason, what would become of all this defence? It would be simply a confession in open Court that they were guilty of treason. Well, then, if they fell back on the proposition,--"We thought, in our consciences and judgments, that either these States had a right to secede, or that they had a right to carry on a revolution; that they were oppressed, and were entitled to assert themselves against an oppressive Government, and we, in good faith, and with a fair expectation of success, entered into it,"--what would become of them? The answer would be, "Good faith in your attempt to overthrow the Government, does not excuse you from responsibility for the crime of attempting it." Our statute is made for the purpose of protecting our Government against efforts made, in good faith or in bad faith, for its overthrow.

And now, in this connection, gentlemen, as your attention, as well as that of the Court, has been repeatedly called to it, let me advert again to the citation from that enlightened public writer, Vattel, who has done as much, perhaps, as our learned friends have suggested, to place on a sure foundation the amelioration of the law of nations in time of war, and their intercourse in time of peace, as any writer and thinker whom our race has produced. You remember, that he asks--How shall it be, when two contending factions divide a State, in all the forms and extent of civil war--what shall be the right and what the duty of a sovereign in this regard? Shall he put himself on the pride of a king, or on the flattery of a courtier, and say, I am still monarch, and will enforce against every one of this multitude engaged in this rebellion the strict penalties of my laws? Vattel reasons, and reasons very properly: You must submit to the principles of humanity and of justice; you must govern your conduct by them, and not proceed to an extermination of your subjects because they have revolted, whether with or without cause. You must not enforce the sanctions of your Government, or maintain its authority, on methods which would produce a destruction of your people. And you must not further, by insisting, under the enforced circumstances which surround you, on the extreme and logical right of a king, furnish occasion for the contending rebels, who have their moments of success and power, as well as you, to retaliate on your loyal people, victims of their struggle on your behalf, and thrown into the power of your rebellious subjects,--to retaliate, I say, on them the same extreme penalties, without right, without law, but by mere power, which you have exerted under your claim of right.

And now, gentlemen of the Jury, as the Court very well understands, this general reasoning, which should govern the conduct of a Sovereign, or of a Government, against a mere local insurrection, does not touch the question as to whether the law of the nation in which the Sovereign presides, and in violation of which the crime of the rebels has been perpetrated, shall be enforced. There has been, certainly, in modern times, no occasion when a Sovereign has not drawn, in his discretion, and under the influence of these principles of humanity and justice, this distinction, and has not interposed the shield of his own mercy between the offences of misled and misguided masses of his people and offended laws. We know the difference between law and its condemnation, and mercy and its saving grace; and we know that every Government exercises its discretion. And, I should like to know why these learned counsel, who are seeking to interpose, as a legal defence on the part of a criminal, the principles of policy and mercy which should guide the Government, are disposed to insist that this Government, in its prosecutions and its trials, has shown a disposition to absolve great masses of criminals from the penalties of its laws. I should like to know, when my learned friend Mr. Brady, near the close of his remarks, suggested that there had been no trial for treason, whether this Government, from the first steps in the outbreak, down to the final and extensive rage of the war, has not foreborne to take satisfaction for the wrongs committed against it, and has not been disposed to carry on and sustain the strength of the Government, without bloody sacrifices for its maintenance, and for the offended justice of the land. But it is certainly very strange if, when a Government influenced by those principles of humanity of which Vattel speaks, and which my learned friends so much insist upon, has foreborne, except in signal instances, or, if you please, in single instances that are not signal, to assert the standard of the law's authority and of the Government's right,--that it may be seen that the sword of justice, although kept sheathed for the most part, has yet not rusted in its scabbard, and that the Government is not faithless to itself, or to its laws, its powers, or its duties, in these particular prosecutions that have been carried, one to its conclusion, in Philadelphia, and the other to this stage of its progress, here,--it is strange, indeed, that the appeal is to be thrust upon it--"Do not include the masses of the misguided men!" and, when it yields so mercifully to that appeal, and says--"I will limit myself to the least maintenance and assertion of a right," that the answer is to come back: "Why, how execrable--how abominable, to make distinctions of that kind!"

But, gentlemen, the mercy of the Government, as I have said to you, remains after conviction, as well as in its determination not to press numerous trials for treason; but it is an attribute, both in forbearing to try and in forbearing to execute, which is safely left where the precedents that are to shape the authority of law cannot be urged against its exercise. Now, I look upon the conduct and duty of the Government on somewhat larger considerations than have been pressed before you here. The Government, it is said, does not desire the conviction of these men, or, at least, should not desire it. The Government does not desire the blood of any of its misguided people. The Government--the prosecution--should have no passion, no animosities, in this or in any other case; and our learned friends have done us the favor to say that the case is presented to you as the law should require it to be; that you, and all, are unaffected and unimpeded in your judgment; and that, with a full hearing of what could be said on the part of these criminals, you have the case candidly and openly before you.

Now, gentlemen, the Government, although having a large measure of discretion, has no right, in a country where the Government is one wholly of law, to repeal the criminal law, and no right to leave it without presenting it to the observation, the understanding, and the recognition of all its citizens, whether in rebellion or not, in its majesty, in its might, and in its impartiality. The Government has behind it the people, and it has behind it all the great forces which are breathing on our agitated society, all the strong passions, all the deep emotions, all the powerful convictions, which impress the loyal people of this country as to the outrage, as to the wickedness, as to the perils of this great rebellion. Do you not recollect how, when the proclamation of Mr. Davis invited marauders to prey upon our commerce, from whatever quarter and from whatever motives--(patriotism and duty not being requisite before they would be received)--the cry of the wounded sensibilities of a great commercial people burst upon this whole scene of conflict? What was there that as a nation we had more to be proud of, more to be glad for in our history, than our flag? To think that in an early stage of what was claimed to be first a constitutional, and then a peaceful, and then a deliberate political agitation and maintenance of right, this last extreme act, the arming of private persons against private property on the sea, was appealed to before even a force was drawn on the field on behalf of the United States of America! The proclamation of the President was but two days old when privateers were invited to rush to the standard. The indignation of the community, the sense of outrage and hatred was so severe and so strong, that at that time, if the sentiment of the people had been consulted, it would have found a true expression in what was asserted in the newspapers, in public speeches, in private conversations--that the duty of every merchantman and of every armed vessel of the country, which arrested any of these so-called privateers, under this new commission, without a nation and without authority, was, to treat them as pirates caught in the act, and execute them at the yard-arm by a summary justice.

Well, I need not say to you, gentlemen, that I am sure you and I and all of us would have had occasion to regret, in every sense, as wrong, as violent, as unnecessary, and, therefore, as wholly unjustifiable, on the part of a powerful nation like ourselves, any such rash execution of the penalties of the law of nations, and of the law of the land, while our Government had power on the sea, had authority on the land, had Courts and laws and juries under its authority to inquire and look into the transaction.

The public passions on this subject being all cool at this time, after an interval of four months or more from the arrest, we are here trying this case. Yet my learned friends can find complaint against the mercy of the Government and its justice, that it brings any prosecution; and great complaint is made before you, without the least ground or cause, as it seems to me, that the prosecution is pressed in a time of war, when the sentiments of the community are supposed to be inflamed.

Well, gentlemen, what is the duty of Government, when it has brought in prisoners arrested on the high seas, but to deliver them promptly to the civil authorities, as was done in this case--and then, in the language of the Constitution, which secures the right to them, to give them a speedy and impartial trial? That it is impartial, they all confess. How speedy is it? They say, they regret that it proceeds in time of war. Surely, our learned friends do not wish to be understood as having had denied to them in this Court any application which they have made for postponement. The promptness of the judicial and prosecuting authorities here had produced this indictment in the month of June, I believe, the very month in which the prisoners were arrested, or certainly early in July; and then the Government was ready to proceed with the trial, so far as I am advised. But, at any rate, an application--a very proper and necessary application--was made by our learned friends, that the trial should be postponed till, I believe, the very day on which it was brought on. That application was not objected to, was acquiesced in, and the time was fixed, and no further suggestion was made that the prisoners desired further delay; and, if the Government had undertaken to ask for further delay, on the ground of being unprepared, there was no fact to sustain any such application. If it was the wish of the prisoners, or for their convenience, that there should be further delay, it was for them to suggest it. But, being entitled by the Constitution to a speedy as well as an impartial trial, and the day being fixed by themselves on which they would be ready, and they being considered ready, and no difficulty or embarrassment in the way of proof having been suggested on the part of the Government, it seems to me very strange that this regret should be expressed, unless it should take that form of regret which all of us participate in, that the war is not over. That, I agree, is a subject of regret. But how there has ever been any pressure, or any--the least--exercise of authority adverse to their wishes in this matter, it is very difficult for me to understand.

Now, gentlemen, I approach a part of this discussion which I confess I would gladly decline. I have not the least objection--no one, I am sure, can feel the least objection--to the privilege or supposed duty of counsel, who are defending prisoners on a grave charge,--certainly not in a case which includes, as a possible result, the penalty of their client's lives,--to go into all the inquiries, discussions and arguments, however extensive, varied, or remote, that can affect the judgment of the Jury, properly or fairly, or that can rightly be invoked. But, I confess that, looking at the very interesting, able, extensive and numerous arguments, theories and illustrations, that have been presented in succession by, I think, in one form or another, seven counsel for these prisoners, as the introduction into a judicial forum, and before a Jury, of inquiries concerning the theories of Government, the course of politics, the occasion of strife on one side or the other, within the region of politics and the region of peace, in any portion of the great communities that composed this powerful nation--in that point of view, I aver, they seem to me very little inviting and instructive, as they certainly are extremely unusual in forensic discussions. Certainly, gentlemen of the Jury, we must conceive some starting point somewhere in the stability of human affairs, as they are entrusted to the control and defence of human Governments. But, in the very persistent and resolute views of the learned counsel upon this point--first on the right of secession as constitutional; second, if not constitutional, as being supposed by somebody to be constitutional; third, on the right of revolution as existing on the part of a people oppressed, or deeming themselves oppressed, to try their strength in the overthrow of the subsisting Government; fourth, on the right to press the discontents inside of civil war; and then finally and at last, that whoever thinks the Government oppresses him, or thinks that a better Government would suit his case, has not only the right to try the venture, but that, unsuccessful, or at any stage of the effort, his right becomes so complete that the Government must and should surrender at once and to every attempt--I see only what is equivalent to a subversion of Government, and to saying that the right of revolution, in substance and in fact, involves the right of Government in the first place, and its duty in the second place, to surrender to the revolutionist, and to treat him as having overthrown it in point of law, and in contemplation of its duty. That is a proposition which I cannot understand.

Nevertheless, gentlemen, these subjects have been so extensively opened, and in so many points attacks have been made upon what seems to me not only the very vital structure and necessary support of this, our Government, but the very necessary and indispensable support of any Government whatever, and we have been so distinctly challenged, both on the ground of an absolute right to overthrow this Government, whenever any State thinks fit--and, next, upon the clear right, on general principles of human equity, of each State to raise itself against any Government with which it is dissatisfied--and upon the general right of conscience--as well as on the complete support by what has been assumed to have been the parallel case, on all those principles, of the conduct of the Colonies which became the United States of America and established our Government--that I shall find it necessary, in the discharge of my duty, to say something, however briefly, on that subject. Now, gentlemen, these are novel discussions in a Court of Justice, within the United States of America. We have talked about the oppressions of other nations, and rejoiced in our exemption from all of them, under the free, and benignant, and powerful Government which was, by the favor of Providence, established by the wisdom, and courage, and virtue of our ancestors. We had, for more than two generations, reposed under the shadow of our all-protecting Government, with the same conscious security as under the firmament of the heavens. We knew, to be sure, that for all that made life hopeful and valuable--for all that made life possible--we depended upon the all-protecting power, and the continued favor of Divine Providence. We knew, just as well, that, without civil society, without equal and benignant laws, without the administration of justice, without the maintenance of commerce, without a suitable Government, without a powerful nationality, all the motives and springs of human exertion and labor would be dried up at their source. But we felt no more secure in the Divine promise that "summer and winter, seed-time and harvest," should not cease, than we did in the permanent endurance of that great fabric established by the wisdom and the courage of a renowned ancestry, to be the habitation of liberty and justice for us and our children to every generation. We felt no solicitude whatever that this great structure of our constituted liberties should pass away as a scroll, or its firm power crumble in the dust. But, by the actual circumstances of our situation,--and, if not by them, certainly by the destructive theories which are presented for your consideration,--it becomes necessary for us, as citizens, and, in the judgment at least of the learned counsel, for these prisoners, for you, and for this learned Court, in the conduct of this trial, and in the disposition of the issue of "guilty" or "not guilty" as to these prisoners, to pay some attention to these considerations. If, in the order of this discussion, gentlemen, I should not seem to follow in any degree, or even to include by name, many of the propositions, of the distinctions, and of the arguments which our learned friends have pressed against the whole solidity, the whole character, the whole permanence, the whole strength of our Government, I yet think you will find that I have included the principal ideas they have advanced, and have commented upon the views that seem to us--at least so far as we think them to be at all connected with this case--suitable to be considered.

Now, gentlemen, let us start with this business where our friends, in their argument, where many of the philosophers, and partisans, and statesmen of the Southern people, have found many of their grounds of support. Let us start with this very subject of the American Revolution, with the condition that we were in, and with the place that we found ourselves raised to, among the nations of the earth, as the result of that great transaction in the affairs of men. What were we before the Revolution commenced? Was any one of the original thirteen States out of which our nation was made, and which, previous to the Revolution, were Colonies of Great Britain--was any one of them an independent nation at the time they all slumbered under the protection of the British Crown? Why, not only had they not the least pretension to be a nation, any of them, but they had scarcely the position of a thoroughly incorporated part of the great nation of England. Now, how did they stand towards the British power, and under what motives of dignity, and importance, and necessity did they undertake their severance from the parent country? With all their history of colonization, the settlement of their different charters, and the changes they went through, I will not detain you. For general purposes, we all know enough, and I, certainly not more than the rest of you. This, however, was their condition. The population were all subjects of the British Crown; and they all had forms of local Government which they had derived from the British Crown; and they claimed and possessed, as I suppose, all the civil and political rights of Englishmen. They were not subject to any despotic power, but claimed and possessed that right to a share in the Government, which was the privilege of Englishmen, and under which they protected themselves against the encroachment of the Crown. But, in England, as you know, the monarch was attended by his Houses of Parliament, and all the power of the Government was controlled by the people, through their representatives in the House of Commons. And how? Why, because, although the King had prerogatives, executive authority, a vast degree of pomp and wealth, and of strength, yet the people, represented in the House of Commons, by controlling the question of taxation, held all the wealth of the kingdom--the power of the purse, as it was described--and without supplies, without money for the army, for the navy, for all the purposes of Government, what authority, actual and effective, had the Crown of England? These were the rights of Englishmen; these made them a free people, not subject to despotic power. They cherished it and loved it. Now, what relation did these Colonies, becoming off-shoots from the great fabric of the national frame of England, bring with them, and assert, and enjoy here? Why, the king was their king, just as he was the king of the people whom they left in England, but they had their legislatures here, which made their laws for them in Massachusetts, in Connecticut, in Virginia, in South Carolina, and in the rest of these provinces; and among those laws, in the power of law-making, they had asserted, and possessed, and enjoyed the right of laying taxes for the expenses and charges of their Government. They formed no part of the Parliament of England, but, as the subjects of England within the four seas were obedient to the king, and were represented in the Parliament that made laws for them, the Colonies of America were subject to the king, but had local legislatures, to pass laws, raise and levy taxes, and graduate the expenses and contributions which they would bear.