Now a pirate has no nation. He is an outlaw, and is justiciable everywhere. His is the law of might--

"For why? Because the good old rule Sufficeth him: the simple plan That they should take who have the power, And they should keep who can."

But it is not necessary that the nation under whose commission he acts, shall be one which is already established and acknowledged among the family of nations. It may be a colony struggling for independence, and not yet recognized by the nations of the earth. Our own Courts years ago decided this case with a liberality which has eminently distinguished them, and established the principle in respect to the South American colonies--colonies at that time not acknowledged by our Government as independent nations.

So, gentlemen, it was with regard to the powers of Europe during the days of the American Revolution. Every power in the world respected the letters of marque issued by Congress; and if there is an instance of a single case in which, in any land in the civilized world, there was a criminal trial of an American privateersman, I have not been able to find it. Their letters of marque were recognized because they were the letters of a _de facto_ Government.

Now, gentlemen, what are the tests sufficient to form such a nationality as will cover these commissions? Are the Confederate States, in this instance, competent to maintain the relations of war and of peace? Gentlemen, if the South American provinces were, I think it can hardly be disputed that the people of ten great States like these certainly are. They are very far beyond them in civilization, in information, in wealth, and in all the means by which nations sustain their independence.

So important, however, is the fact of a commission, that even a commission from the Barbary powers--states which subsisted entirely, I may say, by plunder and piracy--was regarded as sufficient, in the Courts of England, to protect an Algerine who was taken with letters of marque. And that opinion comes with the authority of one of the greatest masters of the science of jurisprudence--Sir William Scott--a name that can never be mentioned without feelings of reverence by any man who respects the sentiments of justice and their application to the principles of international law. In the case I allude to, the Barbary subject was taken in an attempt to seize an English vessel. The crew was composed of foreigners, men of different nations, most of them belonging to Spain and France. It was held that as to all the rest of the parties they should be treated as outlaws, but the Algerine was allowed the plea of _respondeat superior_. In other words, he had but to point to his country, and say she was responsible; that she gave him authority, and a.s.sumed the responsibility; and upon that plea he was allowed to go. I mention this to show how far the doctrine has been carried.

But, gentlemen, if the commission from a Government _de facto_ generally is a plea in bar (and that it is, I have no doubt the Court will charge you), it certainly holds good in a case of this kind, where the authority is much less questionable. Now, are the United States bound to recognize the Confederate States as belligerents? Not as an independent nation,--that is an entirely different question. We say, gentlemen, not only that the United States are bound to recognize the Confederate States as belligerents, but we think we have shown that they have done so. The capitulation between Commodore Stringham, General Butler, and Commodore Barron, recognized the existence of a state of war, and recognized the prisoners as prisoners of war; and not one word has been said, and not one act done, by the Government, to disavow their authority in so doing. It is the principle of civilized nations--and we belong to the family of civilized nations--to recognize parties, even in the midst of civil war, as belligerents; and this country is too just, too powerful, and too elevated in sentiment, to shrink from that which civilization, decency and honor compel her to stand to. She must recognize even those who are her children--struggling against her authority though they be--as fair and honest antagonists.

From the time of our own struggle, in the days of the Revolution, we professed the principles of international law. They are now a part of the law of the land. There is a moral obligation upon us to occupy our position in the great family of nations; to hold it, as we have always done, with honor and with distinguished consideration. Sorry, indeed, would I be to think that there should be, on this occasion, any eminent departure from it, as there certainly would be if these men were held in any other light than as mere privateersmen, and not pirates.

But if these principles are true, as applying between the people of this country and the people of England during the days of the Revolution,--if the mother country then considered us as belligerents where there could be no subtle political question such as may be raised here, and has already been raised--the doctrine of the two sovereignties,--there is then, at least, a reason which applies in this case, and never could have applied in that case; for the allegiance of the colonies to the mother country was firm, fixed, and undivided: it never was, and never could be, questioned.

I say, then, that these parties are not pirates; and I further say that the munic.i.p.al laws of a State, or of a number of States, cannot const.i.tute that offence to be piracy which is not so characterized by international law; and for this principle I refer to 1st Phillimore, 381 (International Law).

I come now to the 9th section, and I will read that section:

"And be it further enacted, that if any citizen should commit any piracy or robbery aforesaid, or any act of hostility against the United States or any citizen thereof, on the high seas, under color of any commission of 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 convicted thereof shall suffer death."

This section applies particularly to the citizens of the United States.

Now, I contend that this section does not change the character of the offence. It differs only by stating that the commission shall not form a pretext. The words "piracy and robbery" explain the words "acts of hostility," which follow immediately afterwards. Where particular words are followed by general words, the latter are held as applying to persons and things of the same kind as those which precede. The coupling of words together shows that they are to be understood in the same sense. Take these two principles with the other principle, that penal statutes are to receive a strict interpretation. The general words of a penal statute must be restrained for the benefit of him against whom the penalty is inflicted.

To the same effect is the case of _The United States_ vs. _Bevins_ (5 _Wheaton_):

"Penal statutes, however, are taken strictly and literally only in point of defining and setting down the _crime_ and the _punishment_; and not literally in words that are but circ.u.mstances and conveyance in the putting of the case.

"Thus, though by the statute 1 Ed. 6, C. 12, it was enacted that those who were convicted of stealing _horses_ should not have the benefit of clergy, the Judges conceived that this did not extend to him that should steal but one horse, and therefore procured a new Act for that purpose in the following year.

"But upon the Statute of Gloucester, that gives the action of waste against him that holds _pro termino vitae vel annorum_, if a man holds but for a year he is within the statute; while, if the law be that for a certain offence a man shall lose his right hand, and the offender hath had his right hand before cut off in the wars, he shall not lose his left hand, but the crime shall rather pa.s.s without the punishment which the law a.s.signed than the letter of the law shall be extended.

"A penal law, then, shall not be extended by equity; that is, things which do not come within the words shall not be brought within it by construction.

"The law of England does not allow of constructive offences, or of arbitrary punishments. No man incurs a penalty unless the act which subjects him to it is clearly both within the spirit and the letter of the statute imposing such penalty.

"'If these rules are violated,' said Best, C.J., in the case of _Fletcher_ vs. _Lord Sondes, 3 Bing., 580_, 'the fate of accused persons is decided by the arbitrary discretion of Judges, and not by the express authority of the laws. _2d Dwarris Stat., 634_.'

"By another restrictive rule of construing penal statutes, if general words follow an enumeration of particular cases, such general words are held to apply only to cases of the _same kind_ as those which are expressly mentioned. By the 14 Geo. 2, C. 1, persons who should steal sheep _or any other cattle_ were deprived of the benefit of clergy. The stealing of any cattle, whether commonable or not commonable, seems to be embraced by these general words, "_any other cattle_," yet they were looked upon as too loose to create a capital offence. By the 15 George 2, C. 34, the Legislature declared that it was doubtful to what sorts of cattle the former Act extended besides sheep, and enacted and declared that the Act was made to extend to any bull, cow, ox, steer, bullock, heifer, calf, and lamb, as well as sheep, and to no other cattle whatsoever.

"Until the Legislature distinctly specified what cattle were meant to be included, the Judges felt that they could not apply the statute to any other cattle but sheep.

"The Legislature, by the last Act, says that it was not to be extended to horses, pigs, or goats, although all these are cattle.

"3 Bingh., 581.

"2 Dwarris, Statutes, 635."

By the English law, and by the principles of general law, may it please the Court, the offence must be clearly defined--it must be limited, ascertained, fixed. It must be clear to the accuser. It must be clear to the accused. It must be equally clear to the Judge. It must leave him no discretion whereby he can enlarge or alter it. And, may it please the Court, this is the safe and true principle of construction--to give as little as possible to the discretion of the Courts; for it has been well said, that the arbitrary discretion of any man is the law of tyrants. It is always unknown; it is different in different men; it is casual, and depends on const.i.tution, temper, and pa.s.sion. In the best of us it is oftentimes caprice; in the worst of us it is every vice, folly and pa.s.sion to which human nature is liable. It is by defining crime clearly that the citizen has his strongest guarantee for his personal safety. Let us see the opinion of perhaps the greatest master that ever touched the subject of jurisprudence--I mean _Montesquieu_.

"It is determined," he says, "by the laws of China, that whoever shows any disrespect to the Emperor is to be punished with death.

As they do not mention in what this disrespect consists, every thing may furnish a pretext to take away a man's life, and to exterminate any family whatsoever.

"If the crime of high treason be indeterminate, this alone is sufficient to make the Government degenerate into arbitrary power."--_Montesquieu, Spirit, Book_ 12, _c._ 7.

Now, may it please the Court, it is through statutes in which crimes are ill-defined--are not clearly and distinctly designated--that tyrants in every age have been able to crush their victims. Hence, in the n.o.ble system of laws that it is your honors' privilege to dispense, safeguards have been put in the strongest degree, and bulwarks have been erected around the life, the liberties, and the rights of the citizen.

Now, what is an "act of hostility"? Suppose these men had gone out with a commission instructing them to go on the seas, to board vessels, and to beat the captains of vessels, and to do no more--to abandon them then, and take to their own ships--would that be an act of piracy? Is it not plain that the law meant piracy or robbery, or any "act of hostility" _ejusdem generis_, that is, _animo furandi_? To show that this construction is not forced, your honors will find in the Act of March 3d, 1825 (Dunlop's Laws, p. 723, sect. 6), that a special law was pa.s.sed for the very purpose of punishing _acts of hostility_ against the United States and its citizens by _forcibly attacking_ and _setting upon vessels_ owned in part or wholly by either of them, _with intent to plunder and despoil the owners of moneys, goods_, &c., &c. If, therefore, this construction of these words, which I respectfully submit to the Court, has any weight in it, they amount to no more than what has been already decided in Clintock's case--the clear and well-settled principle of law that the commission shall not form a pretext for robbery.

But, may it please the Court, as to the ninth section of the Act, it never was contemplated as applying to organized States. It was an Act which was intended to apply to individuals alone. States are not the subjects of criminal law, nor can you legislate against them; and this has been distinctly decided. If the Confederate States have been guilty of a gross breach of faith in the attempt to withdraw from the Confederation, they may be coerced; but the citizen himself must go unpunished. They are States--recognized by yourselves as States. They are not a collection of piratical hordes; and under such circ.u.mstances the law will not apply to the citizen of any of these States who acts fairly and honestly under his commission.

The learned counsel who spoke last Sat.u.r.day, referred to privateering as a relic of the barbarous age. No one agrees with the learned counsel in that respect more than I do; and from the bottom of my heart I hope that he may be yet able to take his share in banishing from the world this relic of the olden time. But, really, I see very little chance of advancement in that line, so long as a vessel of war is allowed to take private property on the seas. There should be perfect immunity for all property on the ocean belonging to individuals; but the letter of Mr.

Marcy shows that we are not yet exactly up to that point.

The learned counsel stated that, before he could concede the commission in this case to be a justification, two things must be shown: First, there must be a state of war; and, second, the privateer must have received his commission from some public, national, sovereign power.

Well, we think we have shown the existence of war sufficiently strongly; and as to this point, I fancy that few gentlemen of the bar can forget the pointed and admirable allusion of the learned counsel himself (Mr. Evarts), in his argument in the District Court, some time since, to the absent clerk, in ill.u.s.trating the fact of the existence of war. I remember how forcibly it struck me when I read it. The decisions in the case of the South American privateers settles the point as to the nationality.

But, gentlemen, there is another subject to which I will briefly allude--that is, the abstract right of these States legally to secede.

Now, gentlemen, we do not deny that there is no such right. I concede all that. Yet, still, these men have ever held different notions; and, on this subject, a line has been drawn for many years through an immense tract of this our country. The right or the wrong of it does not affect us here. You have failed to convince them, and they have failed to convince you. There is no common arbiter between you, because they contend that, being sovereigns, they cannot submit to the Courts questions between themselves and the United States. Now, they may be wrong, but have you the right to declare them so? You ought to be perfectly certain. Justice, reason, and duty prompt that there ought to be no mistake. When you hold a party for a criminal charge, there ought not to be a reasonable doubt. Is there no possibility that, in the course of the proceedings between the Federal and State Governments, you may be wrong? Does truth only consort with one side of the line, and falsehood with the other? May you not be mistaken? Look at the different lights in which, for years, you have respectively viewed various questions. See how gradually the change has been effected; and yet how stronger and stronger it has grown day by day. Can any one forget the deep and intense anxiety with which that great statesman, Mr. Clay, just before his death, regarded the division between the Methodist and Baptist Churches of the North and the South? And yet no man was a truer or firmer patriot, or an abler advocate of the Government; and no man saw with more unerring certainty that the line, sooner or later, was destined to be drawn between the two sections, unless some compromise was effected.

Now, the doctrine in which these men have been brought up may be political heresy; but, do you crush a heresy with chains? Does history not tell us how utterly vain and futile such an attempt is? Have you to go back farther than the days of James the Second, to see the attempt of that despot to enforce upon the English people a religion which they did not choose to adopt? Can you forget the b.l.o.o.d.y a.s.sizes of Jeffreys, when hundreds were carried to the block and thousands were sent into exile to all parts of the world? Can you forget the great scene, when the n.o.ble Duke of Argyle, with his head bared and his limbs in chains, was led through Edinburgh amidst the reproaches and contempt of the populace; and do you forget the cold and manly dignity with which he endured it all? And do you reflect that, with all these things, the religion of England to-day is the same as it was then? Can you expect, by a system like this, to mould the human mind as you would mould potter's clay? Oh, no! gentlemen, the human heart is a different thing; love and tenderness may melt and control it, but chains and manacles never yet subdued it. Call this piracy! why this is, indeed, confounding the order of things; and when the real piracy comes, you will feel no dislike or contempt for the offence. You give it a dignity by thus confounding it with crimes of a different nature.

If these men are pirates, all are pirates who have taken naval commissions from the Confederate States, and all are robbers who have served them on land. Pirates! Is Tatnall a pirate--Tatnall who, by his skill, and valor, and daring, succeeded in landing your gallant army in Mexico, challenging on that occasion the admiration alike of the army and navy? Tatnall a pirate! Tatnall, whose name has been for forty years the synonym of all that is high and n.o.ble and brave in the American navy! Is Hartsteine a pirate--Hartsteine, the modest but hardy sailor, who carried your ensign into the far, remote, and unfriendly regions of the frigid zone? Is Ingraham a pirate--Ingraham, who, when the down-trodden naturalized refugee from Austria asked for the protection of the American flag said, "Do you want the protection of this flag?--then you shall have it!" Are these men pirates? Oh, no!

gentlemen; there is some mistake about this. Is Lee a robber--Lee, the chosen and bosom friend of your venerable commander in Washington, and who, but a few months ago, parted from him with an aching heart and eyes brimful of tears? Lee, a robber! Lee, whose glory is yours, and whose name is written on every page of your country's history which attests the triumphant march of your army from Vera Cruz to the gates of Mexico? Methinks I see the flash of fire light the eye, and the curl of contempt play upon the lips, of the old hero of Lundy's Lane, as he hears the foul imputation upon the stainless honor of the well-tried friend of many years. No, gentlemen, these men are not pirates! they are not robbers! Your own hearts tell you they are not.

Truly, it may indeed be said, that civil war does pervert the natural taste, and relish of equity and of justice.

But, gentlemen, what is the object of this prosecution? Can the united States desire revenge on these men? That is a pa.s.sion not attributable to States. States have no pa.s.sion. The dignity and the power of a State ought to make it tolerant. Is it because the President's proclamation has p.r.o.nounced these men pirates? Certainly, the respected Chief Magistrate of these United States has no disposition to enforce this law, simply because he has declared it, as in the case of King Ahasuerus. Is their punishment sought for the good of the community? If it is designed for such a purpose, its effect is very questionable.

It is extremely strange, gentlemen, that the prosecution should have been, any how, brought on now, and under this Act. Is it a strange fact, gentlemen, that, under the Act of William the Third, which has been cited to you, there was not, during the American Revolution, a single American privateersman ever brought to trial in England. And yet the English Government repeatedly captured them, and put them in prison. That Act is just as strong as this, for the ninth section of our Act of 1790 is copied from it. I suppose the truth is, gentlemen, that the English Government felt the utter inapplicability of that law to a case of this kind.

But, it is time that I should draw to a close. If these men have been brought into the position in which they now stand, much depends upon their political education--much depends upon the different views with which they have regarded this question from ourselves. It is the part of humanity to err. These men are the representatives of those who were once united with us in the gentle tie of brotherhood. That tie is now rent, and it may be years before the kindly and good feeling which once subsisted between the sections is restored. G.o.d grant that the hour may not be far distant! But, gentlemen, to treat these men with kindness; to treat them with humanity; to have respect for that great principle which underlies the bottom of our own Government--the right of resistance (and I mean here legal resistance, and not that revolutionary resistance which the Courts of justice do not adopt, and never have, and cannot sanction),--I say, to treat them with kindness and humanity will do more, in my honest belief, to knit together the two sections than a hundred battle-fields would do.

Gentlemen, if there has been a division between you, remember that that division has sprung up from honest conviction. Can you think otherwise?

Shoulder to shoulder with your fathers, in the days of the Revolution, their fathers fought the battles of freedom. Side by side with you, they trod the burning plains of Mexico, and encountered, in hostile strife, the foes of your country; and when the shock of battle was over, wrapped in the same honored flag, their dead and yours were borne to their final resting place. Is it for a light and a trifling cause that they have thus separated from you?

In conclusion, gentlemen, let me beg you to meet this issue like men.

No matter what the pressure upon you is, stand firm, do justice, and discharge these prisoners. In so doing, you will but do your duty, and G.o.d himself will sanction the act. But, gentlemen, if deaf to the promptings of reason, of justice, and of humanity--if, impelled by political rancor and pa.s.sion--you condemn these prisoners, and execution follows condemnation, be a.s.sured that they will meet their fate like men; and that these manacled hands, which you have so often disported through your streets to excited crowds, will, "though impotent here," be lifted, and not in vain, to a far more august tribunal than this, before whose unerring decrees Courts and nations alike must bow with awful reverence.

ARGUMENT OF MR. SULLIVAN.

Mr. Sullivan, of Counsel for the prisoners, said:

_May it please the Court: Gentlemen of the Jury_:

This case has brought to my mind an interesting episode in ancient history, to which I beg permission to refer. For many years, the States of Greece had been engaged in b.l.o.o.d.y civil strife, which ended in the discomfiture of Athens. The Spartans and their allies a.s.sembled in council to consider and determine on her fate. Animated by resentful pa.s.sion, the Thebans urged extreme and vindictive measures: that Athens should be razed to the ground, that the hand of the victorious States should fall heavy, and the Athenians be proclaimed exiles from their homes and outlaws in Greece. This proposal was applauded by the Corinthians and some others, but at that moment the deputy of the Phocians, who owed a debt of grat.i.tude to the Athenians, sang in the a.s.sembly the mournful Choral Ode from the Electra of Sophocles, which moved all present in such a manner that they declared against the design. The poem had lifted them from the pa.s.sion of the hour, and invoked the memories and ancestral glories of their common nation. The spirits of departed heroes now lent the inspiration of their presence, and yielding to it the members of that council and jury became great Greeks, as of old their fathers were. Marathon and Salamis, Plataea and Mycale, were pictured in the chambers of their souls, with Miltiades, Themistocles and Aristides for their counselors; and then, and not until then were they fit to render a verdict upon Athens, the loveliest sister of them all.

And gentlemen, before we touch upon the details of this case, may we not contemplate some examples and sentiments which will enlighten and strengthen our spirits as guardians of the important interests committed to our hands this day? I am sure it will be agreeable to you and to seek them in the annals of our forefathers,

"The great of old, The dead but sceptred sovereigns, who still rule Our spirits, from their urns."