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

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

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

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

It is not necessary for me to discuss these questions. It belongs to the Government, after it has procured a conviction, either for piracy or for treason, to decide, in its own discretion, whether the penalty of the law shall be inflicted. Let us confine ourselves to our duties.

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

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

Now, let me consider the ninth section of the statute. I will readily concede to my learned friends whatever advantage they can gain from the proposition that, when the ninth section was drawn, in the year 1790, one year after the adoption of the Const.i.tution, it was never supposed that a pretended commission or authority to prey upon the commerce of the United States and violate its laws would come from any part of the people or of the territory of the United States. And I claim that there is nothing in this commission which, if there had been no statute recognizing a possible protection from a commission--there is nothing in this commission from a citizen of the United States, Jefferson Davis, to another citizen of the United States, Thomas Harrison Baker, to prey upon the commerce of the United States, that can be regarded for a moment as a license which makes him a privateer, instead of a pirate. My learned friends have even sought to find occasion for a variance between the proof and the indictment because we have alleged, under the ninth section, that the pretended authority comes from "one Jefferson Davis," and have proved a commission which says, "I, Jefferson Davis, in the name of the Confederate States," have given such authority. Why, if your honors please, this indictment was drawn by an officer of the United States Government, to be tried in a Court of the United States; and, having a fear of the law and a sense of his duty to his country, he describes things as they are. And I would like to have my learned friends point out to me any place, any office, any t.i.tle, any description, any addition, any qualification, that, under the laws of the United States of America and its Const.i.tution, describes Jefferson Davis, except "one Jefferson Davis." He has precisely that port and dignity before the law and the Const.i.tution that every other individual in the United States has, not filling an office and post of authority under our Government and under our laws.

He does fill the place of citizen of the United States, and no measures of separate State action, or of Confederate authority, have relieved him from that full and complete description of him, under the Const.i.tution of the United States, as the measure of his allegiance and of the penalties for its forfeiture. How could we have found a legal phrase or term, if we regard the Government of the United States and its Const.i.tution, by which we could designate any such thing as "Confederate States," or a foreign state, within the accredited territory of the United States? The terms and intent of this ninth section were framed so as to cover every imaginable authority, in the nature of a commission from a State, from a nation, from a power, or from any person, under the law of nations, for the conversion of private marauders into public enemies with the rights of war; and, although it never entered into the imagination of the framers of this statute that it would ever have to be applied to exclude protection under a commission from a citizen of the United States, its terms are absolutely fitting. I contend that the statute is complete, and that this commission is not a pretence of authority, even under the law of nations establishing and recognizing privateers for struggling communities. It is nothing but an authority from one citizen of the United States to another citizen of the United States to prey upon the property of the United States.

There are, if the Court please, some political considerations which were, it appears to me, more appropriately urged by my learned friend, Mr. Larocque, in his first address to the Jury, than in his argument to the Court. The point made by him was this--that, under the Const.i.tution of the United States, every citizen of every State held what was called the position of divided allegiance, having two sovereign masters over him; that they were equal and co-ordinate sovereigns; and that it was his duty to obey both of them. Now, with the necessary limitation that each one is sovereign over him in some respects, and has not the least power over him in others, and that the other is sovereign over him in other respects, and does not include the first topic or line of duty, there is a speculative support for this general notion. And, whenever it is not urged into any absurd consequences, it serves, in the language of the Courts and of public men, to describe the complex Government under which we live. But, if my learned friend means to a.s.sert that there are, under the Government of the United States, according to its form and method of organic operation, two equal sovereigns over every citizen on the same subjects, why then he has flown in the face of a fundamental proposition, coming from higher authority than the Convention of 1790--that no man can serve two masters. It is not in the nature of things that there can be two sovereigns having equal rights and authority over one subject; and my learned friend ill.u.s.trates the absurdity of the proposition when he comes to consider what would be the result if the two sovereigns should disagree. He says it is the duty of the subject to adhere to one side or the other; that, it being his complete duty to adhere to one side, the other side cannot complain of it as a breach of duty that he does not adhere to him, but to the other; and that, therefore, the general rule, that when you have a sovereign and are unfaithful to him you may be hanged, cannot apply to the case, because you would, in either case, be hanged. And his wise, and suitable, and certainly humane solution of this difficulty is, that when one of the sovereigns indicts you for treason, it is a good bar to say you elected in good faith to serve the other sovereign. Thus, so far from there being two sovereigns, the nature of the term sovereign including the right to hang you for unfaithfulness, there is not one that has the right to hang you, and you are master of both; for, whatever you do in good faith is a supreme answer to both.

Now, if the Court please, this is the point of the whole thing--that, under this peculiar Const.i.tution of ours, and under this division of the subjects of Government, each sovereign is judge of when the other has pa.s.sed the limits of his authority, and that the States possess the right to compel the obedience of their citizens, and the United States possess the right to compel the obedience of their citizens. It is sufficient for us to say that we represent, as Federal citizens, the Government of the United States in its interpretation of its own position towards those its citizens, or those persons not its citizens, who are alleged to have perpetrated crimes against its commerce; and, whether there be, or not, speculations of political and theoretical and ethical and conscientious right, in good faith, to put yourself at variance with the Government of the United States because other people do so, or because the State authority does so, it follows that the United States, its authorities, its Courts, and its population, have the right to think, and feel, and act, as if its Government were in the right and you were in the wrong; and you, being brought within the criminal justice of their law, can find no support and no protection upon the good faith or upon the speculative political theories upon which you have rested for your protection and for your authority.

It is said, that outside of this question of the political and legal qualifications of this act which we say is criminal, the circ.u.mstances, actual and moral, which surround these actors, and are shown by their actions, have deprived their acts of the criminal quality which the statute affixes to them; and that if, in good faith, they thought there was a commission, and in good faith thought there was a rightful Government, that good faith, which has despoiled the American merchant of his property, is a plea in bar to the criminal jurisdiction of the United States of America, whose laws they have violated, although all this pretence, all this show, all this form of political and legal support qualifying their acts, comes from men whom the Const.i.tution p.r.o.nounces to be in the category of rebels and traitors, every one of them amenable to the final jurisdiction of our laws. This is but another form of saying that criminals joining hand in hand shall go unpunished. Make the number of them what you will, if in the eye of the law they a.s.sume authority which is on its face criminal and illegal, and even though it is a part of a general scheme and organization for violent military resistance to the authority of the country, no Court can dispense from the punishment, but must inflict it through the general and ordinary criminal authority in respect to the crime in question, leaving the question of dispensation to the clemency, the humanity, and the policy of the Government.

I believe that all the cases have been cited, either on the one side or the other, from the Reports of the Supreme Court of the United States, that have had to do with the question as to the political character of the revolted South American States. Those which were cited by my learned friend, Mr. Larocque, _The Josefa Segunda_ (5 _Wheaton_, 338), _The Bello Corunnes_ (6 _Wheaton_, 152), and _The Santissima Trinidad_ (7 _Wheaton_, 283), are all authorities, as we suppose, for the view which the Courts adopt, even when they are Courts of a neutral nation--that they follow the decisions of their Government as to the public quality and character of belligerents.

Adjourned to Monday, 28 Oct., at 11 o'clock, A.M.

FIFTH DAY.

_October 28, 1861._

ARGUMENT OF MR. DUKES FOR THE DEFENCE.

_Mr. Evarts_ said: Perhaps it is unnecessary that I should say to the Court and learned counsel, that I shall refer to the Statute of treason, as well as to the Const.i.tutional provision as to treason. The Statute of treason is found in the first section of the Crimes Act of 1790.

_Mr. Dukes_ said:

_May it please your honors and gentlemen of the Jury._

It has been said by one of the most eminent statesmen that ever lived, that "civil wars strike deepest into the manners of the people,--they vitiate their politics; they corrupt their morals; they pervert the natural taste and relish of equity and justice."

If this be so, one would think that this was a singularly unfortunate time for the Government to bring on the trial of these prisoners at your bar, who are ent.i.tled to that right which the Const.i.tution offers to the meanest citizen--that of a fair and impartial trial.

Is it to obtain that fair and impartial trial that the case is brought on now, when the flame of civil war lights the land, and when, in every stage and condition of society, the bitterest sentiments of hostility prevail?

Is it in order to afford the prisoners a fair and impartial trial that the case is brought on now, when tender infancy and gentle woman unite with stern and selfish man in uttering the deepest imprecations on their enemies?

Is it in order to obtain a fair and impartial trial that the case is brought on now, when, on G.o.d's holy day, in his holy temple, his chosen ministers officiating at his holy altar, utterly unmindful of the injunction of their meek and lowly Master, "to forgive their enemies, and to pray for those who despitefully use them"--offer up to Heaven prayers for its severest vengeance upon the heads of their enemies?

If so, gentlemen, I beg at least, (as one of the counsel,) to offer my dissent.

It does, indeed, seem to me that this is a singularly unfortunate time to bring on this trial. But yet, gentlemen, I feel buoyed up with hope, because I know the unbending integrity of the Judges that officiate, and I know that the Jury, which sits in judgment over the lives of these men, is chosen from the citizens of New York--a city in which, if any city in the world possesses large, liberal, and enlightened views, we may hope to find them. But, still, the officers of the Government must excuse me for saying that I think it unfortunate, and somewhat illiberal in them, considering the character of the charge made against these men, to try them now. It does seem to me that it is, at best, but trying treason with an odious name.

Gentlemen, this is no new thing. Years ago this very question, as to the propriety of trying men situated as these men are, was brought before the mind of that liberal and enlightened statesman, Edmund Burke--the long-tried and faithful friend of America; and I trust that I may be pardoned for referring to his words on this occasion, and for reading to you a pa.s.sage from his celebrated letter to the Sheriffs of Bristol, in 1777, which, perhaps, will more fully ill.u.s.trate my views than anything I can say. Speaking about American privateersmen, then in the same position as these men now are, he says:

"The persons who make a naval warfare upon us, in consequence of the present troubles, may be rebels; but to treat and call them pirates is confounding, not only the natural distinction of things, but the order of crimes; which, whether by putting them from a higher part of the scale to the lower, or from the lower to the higher, is never done without dangerously disordering the whole frame of jurisprudence.

"Though piracy may be, in the eye of the law, a less offence than treason, yet, as both are, in effect, punished with the same death, the same forfeiture, and the same corruption of the blood, I never would take from any fellow-creature whatever any sort of advantage which he may derive to his safety from the pity of mankind, or to his reputation from their general feelings by degrading his offence, when I cannot soften his punishment.

"The general sense of mankind tells me, that those offences which may possibly arise from mistaken virtue are not in the cla.s.s of infamous actions.

"Lord c.o.ke, the oracle of the English law, conforms to that general sense, where he says, 'That those things which are of the highest criminality may be of the least disgrace.' * * * * *

"If Lord Balmerine, in the last rebellion, had driven off the cattle of twenty clans, I should have thought it would have been a scandalous and low juggle, utterly unworthy of the manliness of an English judicature, to have tried him for felony as a stealer of cows.

"Besides, I must honestly tell you that I could not vote, or countenance in any way, a statute which stigmatizes with the crime of piracy these men, whom an Act of Parliament had previously put out of the protection of the law.

"When the legislature of this Kingdom had ordered all their ships and goods, for the mere new-created offence of exercising trade, to be divided as a spoil among the seamen of the navy--to consider the necessary reprisal of an unhappy, proscribed, interdicted people as the crime of piracy, would have appeared, in any other legislature than ours, a strain of the most insulting and unnatural cruelty and injustice. I a.s.sure you, I never remember to have heard any thing like it, in any time or country."

Gentlemen, I read this extract because it is the testimony of an eminently wise man, and an eminently just one. Such were his views at that day, and I am inclined to believe that those words spoken by him then have a better application to the state of things at present than any remarks I can make, or that can be made by any one of us who are in the midst of this whirl of excitement.

But, gentlemen, the Government has chosen to make the issue. It was at liberty to do so; and that issue is piracy.

Piracy, gentlemen of the Jury, you have heard defined by the eminent counsel who preceded me. The parties here occupy, as it were, a two-fold capacity. The eighth section of the Act of 1790 applies to piracy under the common law; the ninth section of that Act creates what we have called statutory piracy. The eighth section of the Act only alludes to piracy as it is acknowledged under the law of nations, and as known to the common law. The ninth section, however, differs from the eighth, because it applies peculiarly to citizens of the United States, and is supposed to be more enlarged in its character than the eighth section. Now, with reference to a portion of the prisoners here,--to those who are not citizens,--eight of them come entirely under the eighth section; and we shall contend that, under that section, they cannot be convicted. As regards the other four, it will be contended, that not only are they embraced by the first, but likewise by the second of these sections--that of statutory piracy, which applies peculiarly to them.

Well now, gentlemen, in regard to the eighth section, the learned counsel who very ably addressed the Court on last Sat.u.r.day, stated that intent had little or nothing to do with the offence; that he did not choose to be held to the _animus fruendi_, but that the charge was the _animus furandi_, and that when a person committed robbery it was but of very little consequence to what purpose he applied the proceeds of the robbery, or for whom he committed it. Now, with all due deference to the learned counsel, I think this is putting the case rather unfairly, because he is quietly a.s.suming the very point we are discussing; for it is the fact of the _animus furandi_--the fact whether or not this is robbery--that we are discussing.

We have distinctly said, and shown by the books, that that which he says is not the characteristic of the crime, is really its characteristic, and that intent in this, as in every other offence, peculiarly const.i.tutes the crime.

It is just because the taking is not for the party himself--is not an appropriation for his own purpose, and for his own ends, and for his own object, that there is a difference between piracy and privateering.

And why is this so? Because the party who goes forth on a privateering expedition, goes forth under the sanction of a nation. It may be a nation only _de facto_, but still it is a nation. He goes by the authority of that nation, armed with a commission under its sanction, after having given the most ample security to be responsible to the nation itself for any act of misconduct on his part; that nation holding itself out to the civilized world as responsible for every excess on the part of the citizen to whom it grants letters of marque.

Well, gentlemen, the taking of property on the part of the privateer is not for himself. The taking is in the name of the State. The t.i.tle which the privateer has in the captured property is no t.i.tle at all, nor does he pretend to claim it. The t.i.tle is in the State, and up to the very moment of condemnation, although the property may have been acquired by his blood, and by his treasure, the State has the right to release it. So important is this fact of intention, as entering into the transaction, that it has been held that no excess on the part of a person carrying letters of marque from a regular Government could be punished as piracy--the Government being liable, and he himself being referred to his own Government for punishment.

It has been even held in England, that where the act of taking a commission from a foreign prince was so unlawful in its character as to amount under the law to a felony, yet still the party having letters of marque, should not be charged with piracy.

Now, gentlemen, there was an attempt made by the learned counsel to cast odium upon privateering and upon this transaction, by speaking of these men as going out for their own plunder. Well, I have nothing to say about that; but there is one thing to be remarked: that in times of hostility the plunder does not belong to one side, nor does it belong to the privateersman alone, but the regularly armed vessels of every nation in the world, as well as privateersmen, are enriched by the capture of prizes at sea; and I suspect that the members of the bar now present can tell you how extensively our own navy has been enriched within the last few weeks by the condemnation of prizes. If the spoils derived from enemies' property be plunder, and if it be disgraceful to take it, then the highest names in England have been a.s.sociated with such plunder, for you have but to look into the English books to find the name of the great and distinguished Arthur, Duke of Wellington, as connected with such cases.

But, gentlemen, there is another thing which would prevent the parties from being convicted of piracy, that is, the state of enmity existing between the two nations. It is a general rule that enemies can never commit piracy against each other, their depredations being deemed mere acts of hostility. This is as far back as the days of Lord c.o.ke; and the rule has been carried so far as to protect the citizen of one of the belligerents, who, without any letter of marque at all, goes on the ocean and seizes the property of the enemy. It is true, it has been said that in such cases citizens act at their peril, and are liable to be punished by their own sovereign; but the enemy is not warranted in considering them as criminals.

That the people of the Confederate States, under whose commission these men have acted, stand in the light of enemies, the learned decisions of Judges Cadwalader and Betts; the blockade of the Southern ports, which is a hostile measure; the confiscation of the property of their citizens--not only of the property of the men who have arms in their hands, but of the citizens at large; the captures at sea; the vessels condemned here; the virtual dissolution of partnerships; the admission of the plea of alien enemy; the President's proclamation of non-intercourse; the arrest of citizens of those States returning from Europe; and the opinion of my learned friend, the District Attorney himself, showing that it is treason for the banks here to pay over the bank balances to Southern customers,--all these things go to establish, thoroughly and sufficiently, the condition of enmity or hostility, which forms a protection to these parties. They fix the status of war; they decide that the two powers are enemies, and that, too, without any declaration of war, for no declaration of war is needed. It seems to me that it is all useless to attempt to evade the admission that there is war. We cannot by legal enactments--we cannot by judicial decisions--we cannot by Presidential Proclamations--establish the condition of war and all the consequences of war, and yet shrink from its open avowal.

And yet that is precisely what is attempted here. It may do with those that are strong to oppress their own subjects, but it will not do when you come to deal with foreign nations. When you come to deal with these eight men who are here, the subjects of foreign powers, those powers have a right to put in a word. Gentlemen, it is impossible for this Government to do less than acknowledge that, in fact, there is a state of hostility; and you may as well call it by its proper name--we are in the midst of war.

It will not do for the Government, like the ostrich, to put its head under its wing, and fancy that because it sees n.o.body, n.o.body sees it.

The Government has enacted all the consequences of war without making an open or decided declaration of it. Under such circ.u.mstances, however, the status of enmity is sufficiently fixed to protect the prisoners.

But there is another test of piracy, gentlemen, and it is this--Is the privateer a universal enemy? Is he a universal plunderer? Is his hand against every man? Has he not a nation?