"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 doc.u.ment, 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 a.s.sociate, 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 a.s.sistance. 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 a.s.sistance 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 n.o.bility, 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 Ma.s.sachusetts, 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 circ.u.mstance, 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 Pen.o.bscot, 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 pa.s.sed 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 t.i.tle, 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 Const.i.tution 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 t.i.tle; 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 compa.s.sing 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 t.i.tle 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.

The question, then, is, What was the state of things existing in Charleston, and in the Confederate States, at that time? In the course of the evidence, we will lay that before you, in the completest form it can be laid. We will show you, by the official doc.u.ments, by the messages of the President, by proclamations, and by the Acts of Congress themselves, that there was not an officer of the United States exercising jurisdiction in one of these Confederate States--not a Judge, or Marshal, or District Attorney, or any other officer by whom the Government had been previously administered on the part of the United States. Every one of them had resigned his office. This new Government had been formed. It was the existing Government, which had replaced the United States in all these States, long anterior to the time that this vessel was fitted out and sailed from the port of Charleston; and upon these questions, whether that was a _de jure_ or _de facto_ Government, we say it was the existing Government that was in authority over these men--that exercised the power of life and death over them, for it had Courts administering its decrees, as well as every other form and all the other insignia of power; and they were justified by overruling necessity, and by every other t.i.tle, in yielding obedience to that Government, and in yielding their allegiance to it, as the cases I have read decide; and that duty enjoined upon their consciences to aid and support it by all means in their power from that time forward, until there was another Government over them.

I say, therefore, gentlemen, that this was not a commission issued by a "person, to wit, one Jefferson Davis." I say it was a commission issued by several of the States of the Union, represented, if you please, by Jefferson Davis, and by authority, in fact, from those States, and from the Government in force over them. And more than that, gentlemen, to bring the case still more clearly within the authorities I have read to you, and which you, no doubt, carry in your minds, we will show by the declarations of the Presidents of the United States--by the declaration of Mr. Buchanan, in December, 1860, and by the declaration of Mr.

Lincoln, on the 4th of March, 1861--that neither of them, at either of those dates, intended to interfere, or to attempt to interfere, by force, with this existing Government. They both, publicly and solemnly, in the presence of the United States, declared that they would not attempt, by any forcible invasion of those States, to overthrow the Government established over them;--that there would be no "invasion,"

is the expression;--that they would leave it to the sober second thought of the people of those States, by process of time, by maturer thought and better reflection, to return, probably, to their former position under the Government of the United States. And what were men to do, in that condition of things, in the State of South Carolina, in the State of Georgia, or in any one of those States, with not an officer of the United States to protect them--with not a Court of Justice to protect them--with Courts of Justice, on the contrary, organized by the new Government, and exercising dominion of life and death, and every other dominion that Government could exercise--but to yield their allegiance to it, and from thenceforth to support it, as honest men should do, who yield their allegiance to the Government?

As I said before, in respect to this question, even if this were a voluntary act on the part of the prisoners--if they were not controlled by necessity--if they had a state of things before them which authorized them to believe that their conduct was right--that the States did nothing more than they had a right to do--they were justified in giving allegiance to the Government in existence. We have nothing to say as to the correctness of the political views or opinions of the prisoners whatever. The question is, What did these men believe--what were they taught to believe, by your own expounders of the Const.i.tution--what did they conscientiously and sincerely believe?

When they acted under this commission, did they believe that it was a legitimate authority, and had they full color for the belief which they held?

And now, gentlemen, another point that we shall maintain before you is, that under the Const.i.tution of the United States, those States had color of authority to grant this commission; and that the executive government of the State had the jurisdiction to decide, for all the citizens of the State, whether the emergency for taking hostile proceedings against the General Government had arrived, or not. And I know that, in saying that, I am speaking to this Jury an unpalatable doctrine, at the present day; but it is a doctrine which is amply borne out by the cotemporaneous expositions of the Const.i.tution, penned by its own framers, by the decisions of the Courts, and by authorities on which we are accustomed to rely for questions of that character.

Now, the Const.i.tution of the country is a complex one. There are two sovereigns in every State, exercising allegiance over the inhabitants of the State. The one sovereign is the United States of America, and the other sovereign is the State in which the citizen lives. And when I say that, I am speaking in the language of the Supreme Court of the United States itself, over and over repeated, as late as the 21st of Howard's Reports (but a few removes, I believe, from the last volume issued from that Court), without a dissenting voice. The theory of our Government is, that the States are sovereign and independent, and that, in coming into the Union, they have retained that sovereignty and independence for every purpose, and in every case, except those in which an express grant of power has been made to the Government of the United States, either in express words, or by necessary implication; and the Courts have held, over and over again, that any act of the General Government of the United States, which transcends the express grant of power made by the Const.i.tution, is absolutely void, to all intents and purposes whatever.

And more than that, gentlemen, the citizen of a State cannot only commit treason against the United States, or other kindred political offences; but he can, in like manner, commit treason against the State in which he lives, or other kindred political offences against its government.

The Const.i.tution of the United States defines treason to be, "levying war against the United States, or adhering to their enemies, giving them aid and comfort." The Const.i.tution of the State of New York defines treason against the State of New York to be, "levying war against the State, or adhering to its enemies, giving them aid and comfort." The Const.i.tution of South Carolina defines and punishes treason against the State, in the language of the old English statute, bringing it to precisely the same thing.

As I said, therefore, the citizen of New York or the citizen of South Carolina (because, whether in one or the other locality, it is the same thing) is under two sovereigns, owing allegiance to each of them--the sovereign State in which he is, owning the whole ma.s.s of residuary power (as it has been happily expressed in the decisions of the Court) beyond the express, limited power granted to the Federal Government by the Const.i.tution of the United States.