Now, agreeing, thus far, that there is an added offence to the crime of piracy in the 9th section, I am obliged to meet his next proposition, that such additional offence is beyond the const.i.tutional power of Congress, because it is an offence which does not come up to the crime of piracy, and, therefore, exceeds the grant of authority under the particular section of the Const.i.tution which gives to Congress power over the definition and punishment of piracy under the law of nations.

Now, if the Court please, the argument is a very simple one. This 9th section does not profess to carry the power of this Government where alone the principles of the law of nations would justify; that is, to operate upon all the world, so far as the subjects of it--that is, the persons included in its sanctions--are concerned, or so far as the property protected by it is concerned. It is limited to citizens, and limited to hostilities against citizens of the United States, or their property at sea. Now, the authority in respect to this comes to Congress under the provision of the Const.i.tution which gives the regulation of commerce and its control, in regard to which I need not be more particular to your Honors, because there are statutes of every-day enforcement, and under the highest penalty, too, of the law, such as revolt, mutiny, &c., which have nothing to do with the national considerations of the law of piracy, and nothing to do with the clause of the Const.i.tution which gives to Congress power over the crime of piracy, but rest in the power reposed in Congress to protect the commerce of the United States. So, this is wholly within the general competency of Congress to govern citizens of the United States on the high seas, and to protect the property of citizens on the high seas, although there is no common law of general jurisdiction of Congress on the subject of crimes.

Now, upon this subject there is but one other criticism, and that is--that although the statute is framed with the intent, and its language covers the purpose, of prohibiting any defence or protection being set up under an a.s.sumed or supposed authority from any foreign Government, State, or Prince, or from any person, yet the particular authority which is averred in the indictment and produced in proof, if you take it in the sense that we give to it, is not within the purview of the statute, and, if you take it in any other sense, is not proved; and that thus a variance arises between the indictment and the proof, because the proof goes so far as to remove from under the statute the four defendants who would otherwise be amenable as citizens, by making the Government foreign, and making them foreign citizens. Now, to take up one branch of this at a time, I do not care at all whether the Government of the United States, when they pa.s.sed this law, antic.i.p.ated that there ever would be an occurrence which would give shape to such a commission as this, from either a person or an authority that emanated from what was or ever had been a part or a citizen of the United States. If these new occurrences here have produced new relations--(and that is the entire argument of my learned friends, for, if they have produced no new relations, what have we to do with any of these discussions?)--if they have produced new relations, perfect or imperfect, effectual or ineffectual, to this or that extent, why then, if these new relations and att.i.tude have brought this matter within the purview of a statute of the United States which was framed to meet all relations that might arise at any time, they come within its predicament, and the argument seems to me to amount to nothing. It will not be pretended that the 9th section of this statute can only be enforced as to Powers in existence at the time it was pa.s.sed. Whenever a new Power or new authority is set forth as a protection to the crime of piracy, the 9th section of the statute says: "Well, we do not know or care anything about what the law of nations says about your protection, or your authority--we say that no citizen of the United States, depredating against our commerce, shall set up any authority to meet the justice of our criminal law." Well, now, that the statute has said; and we have averred and proved the commission such as it is. It is either the commission of a foreign Prince, or State, or it is an authority from some person. We do not recognize it as from a foreign State or Prince. Indeed, Mr. Davis does not call himself a Prince, and we do not recognize the Confederate States as a nation or State, in any relation. Therefore, if we would prove this authority under our law, we must aver it as it is, coming from an individual who was once a citizen of the United States, and still is, as the law decides, a citizen of the United States. Whatever port or pretension of authority he a.s.sumes, and whatever real fact and substance there may be to his power, it is, in the eye of the law, nothing. It is not provable, and it is not proved.

Now, as to the right of Congress to include the additional crime, under the authority given to it to punish piracy according to the law of nations, my learned friend contends that this statute is limited by that authority, and is, as respects anybody within its purview, unconst.i.tutional, and that, although a particular act may be within the description of the statute, so far as regards hostility, it is not piracy. On that subject I refer your Honors to a very brief proposition contained in the case of _The United States_ v. _Pirates (5 Wheaton, 202)_:

"And if the laws of the United States declare those acts of piracy in a citizen, when committed on a citizen, which would be only belligerent acts when committed on others, there can be no reason why such laws should not be enforced. For this purpose the 9th section of the Act of 1790 appears to have been pa.s.sed. And it would be difficult to induce this Court to render null the provisions of that clause, by deciding either that one who takes a commission under a foreign power, can no longer be deemed a citizen, or that all acts committed under such a commission, must be adjudged belligerent, and not piratical acts."

I would also refer to the case of _The Invincible_, to which my learned friend called the attention of the Court, in the opinion of the late Attorney-General, Mr. Butler. It is to be found in the 3d volume of the _Opinions of the Attorney-Generals_, page 120. My learned friend cited this case in reference to the proposition that persons holding a commission (as I understood him) should not be treated as pirates, under the law of nations, by reason of any particular views or opinions of our Government. I refer to that part of the opinion where he says: "A Texan armed schooner cannot be treated as a pirate under the Act of April 30th, 1790, for capturing an American merchantman, on the alleged ground that she was laden with provisions, stores, and munitions of war for the use of the army of Mexico, with the Government of which Texas, at the time, was in a state of revolt and civil war."

Now, undoubtedly, Mr. Butler does here hold that, by the law of nations, in a controversy between revolting Colonies and the parent State, where our Government recognizes a state of war as existing, a privateer cannot be treated as a pirate. But we will come to the opinion of the Attorney-General on the other proposition we contend for--that is, in support of the 9th section of the statute, as far as it would have exposed citizens of the United States to the penalty of piracy:

"In answer to this question, I have the honor to state that, in my opinion, the capture of the American ship _Pocket_ can in no view of it be deemed an act of piracy, _unless it shall appear that the princ.i.p.al actors in the capture were citizens of the United States_. The ninth section of the Crimes Act of 30th April, 1790, declares 'that if any citizen shall commit any piracy or robbery, or any act of hostility against the United States, or any citizen thereof, upon the high seas, under color of any commission from any foreign Prince, or State, or on pretence of authority from any person, such offender shall, notwithstanding the pretence of any such authority, be deemed, adjudged and taken to be a pirate, felon and robber, and on being thereof convicted, shall suffer death.'

This provision is yet in force, and _should it be found that any of those who partic.i.p.ated in the capture of the Pocket are American citizens, the flag and commission of the Government of Texas would not protect them from the charge of piracy_."

It will be seen here, that the condition of belligerents will not protect our citizens from aggressions against our commerce; and there is no place for my learned friends to put this authority, and this a.s.sumed belligerent power and right, on any footing that must not make it, either actually or in pretence, at least, proceed from a separate contending power. And, if they say, (as, in one of their points substantially is said,) that the 9th section cannot apply, because the alleged authority is not from a foreign State, or a foreign personage, but from a personage of our own country,--why, then, we are thrown back at once to the 8th section entirely, and there is either no pretence of authority at all, and it is just like arguing that the pirate accused was authorized by the merchant owner of a vessel in South street, to commit piracy, or we are put in the position, which is unquestionably the true one, that the 9th section was intended to cover all possible although unimagined forms in which the justice of the country could be attempted to be impeded under the claim of authority.

Now, gentlemen, if the Court please, I come to a consideration of the political theories or views on which these prisoners are sought to be protected against the penalties of this law. In that argument, as in my argument, it must be a.s.sumed that these penalties, but for those protections, would be visited upon them; for we are not to be drawn hither and thither by this inquiry, and to have it said, at one time, that the crime itself, in its own nature, is not proved, and, at another time, that, if it be proved, these are defences. I have said all I need to say, and all I should say, about the crime itself. The law of the case on that point will be given to you by the Court, and, if it should be, as I suppose it must, in accordance with that laid down by the Court in the Circuit of Pennsylvania, then, as my learned friend Mr. Brady has said of that, that he could not see how the Jury could find any verdict but guilty, it necessarily follows, if that is a sound view of the law, that you cannot find any other verdict but guilty. I proceed, therefore, to consider these other defences which grow out of the particular circ.u.mstances of the piracy.

Now, there are, as I suggested, three views in which this subject of the license, or authority, or protection against our criminal laws in favor of these prisoners, is urged, from their connection with particular occurrences disclosed in the evidence. One is, that they are privateers; but I have shown you that, to be privateers, their commission must come from an independent nation, or from an incipient nation, which our Government recognizes as such. Therefore, they fail entirely to occupy that explicit and clear position, under the law of the land, and the law of nations. But, as they say, they are privateers either of a nation or a Power that exists, as the phrase is, _de jure_,--that has a right, the same as we, or England, or France,--or of a Power that has had sufficient force and strength to establish itself, as matter of fact. Without considering the question of right, as recognized under the system of nations, they contend, and with a great deal of force and earnestness, in the impression of their views upon the Jury, and great skill and discretion in handling the matter,--they contend that there is a state of civil war in this country, and that a state of civil war gives to all nations engaged in it, against the Government with which they are warring, rights of impunity, of protection, of respect, of regard, of courtesy, which belong to the laws of war; and that, without caring to say whether they are a Government, or ever will be a Government, so long as they fight, they cannot be punished.

That is the proposition,--there is nothing else to it. They come down from the region of _de jure_ Government and _de facto_ Government, and have nothing to prove but the rage of war on the part of rebels, in force enough to be called war. Then they say that, by their own act, they are liberated from the laws, and from their duty to the laws, which would otherwise, they admit, have sway over them, and against which they have not as yet prevailed. That is the proposition.

Another proposition, on which they put themselves, is that whatever may be the law, and whatever the extent of the facts, if any of these persons believed that there was a state of war, rightful to be recognized, and believed, in good faith, that they were fighting against the United States Government, they had a right to seize the property of United States' citizens; and that, if they believed that they const.i.tuted part of a force co-operating, in any form or effect, with the military power which has risen up against the United States of America, then, so long as they had that opinion, they, by their own act, and their own construction of their own act, impose the law upon this Government, and upon this Bench, and upon this Jury, and compel you to say to them that if, in taking, in a manner which would have been robbery, this vessel, the Joseph, they were also fighting against the United States of America, they have not committed the crime of piracy.

Now, if the Court please, and gentlemen of the Jury, let us, before we explore and dissect these propositions,--before we discover how utterly subversive they are of any notions of Government, of fixity in the interpretation of the law, or certainty in the enforcement of it,--let us see what you will fairly consider as being proved, as matter of fact, concerning the condition of affairs in this country. Let us see what legal discrimination or description of this state of things is likely to be significant and instructive, in determining the power and authority of the Government, and the responsibility of these defendants. They began with an Ordinance of South Carolina, pa.s.sed on the 20th of December of last year, which, in form and substance, simply annulled the Ordinance of that State with which, as they say, they ratified or accepted the Const.i.tution of the United States. They then went on with similar proceedings on the part of the States of Georgia, Alabama, Mississippi, and Florida, showing the establishment and adoption of a Provisional Const.i.tution, by which they const.i.tuted and called themselves the Confederate States of America. They proved, then, the organization of the Government, the election of Mr. Davis and Mr.

Stephens as President and Vice-President, and the appointment of Secretaries of War, and of the Navy, and other portions of the civil establishment. They proved, then, the occurrences at Fort Sumter, and gave particular evidence of the original acts at Charleston--the firing on the Star of the West, and the correspondence which then took place between Major Anderson and the Governor of South Carolina. They then went on to prove the evacuation of Fort Moultrie; the storming of Fort Sumter; the Proclamation of the President of the United States, of the 15th of April, calling for 75,000 troops; Mr. Davis' Proclamation, of the 17th of April, inviting privateers; and then the President's Proclamation, of the 19th of April, denouncing the punishment of piracy against privateers, and putting under blockade the coasts of the revolted States. The laws about privateering pa.s.sed by what is called the Confederate Government, have, also, been read to you; and this seems to complete the doc.u.mentary, and const.i.tutional, and statutory proceedings in that disaffected portion of the country. But what do the prisoners prove further? That an actual military conflict and collision commenced, has proceeded, and is now raging in this country, wherein we find, not one section of the country engaged in a military contest with another section of the country--not two contending factions, in the phrase of Vattel, dividing the nation for the sake of national power--but the Government of the United States, still standing, without the diminution of one t.i.ttle of its power and dignity--without the displacement or disturbance of a single function of its executive, of its legislative, of its judicial establishments--without the disturbance or the defection of its army or its navy--without any displacement in or among the nations of the world--without any retreat, on its part, or any repulsion, on the part of any force whatever, from its general control over the affairs of the nation, over all its relations to foreign States, over the high seas, and over every part of the United States themselves, in their whole length and breadth, except just so far as military occupation and military contest have controlled the peaceful maintenance of the authority and laws of the Government.

Now, this may be conceded for all sides of the controversy. I do not claim any more than these proofs show, and what we all know to be true; and I am but fair in conceding that they do show all the proportions and extent which make up a contest by the forces of the nation, as a nation, against an armed array, with all the form and circ.u.mstances, and with a number and strength, which make up military aggression and military attack on the part of these revolting or disaffected communities, or people.

Now, some observations have been made, at various stages of this argument, of the course the Government has taken in its declaration of a blockade, and in its seizure of prizes by its armed vessels, and its bringing them before the Prize Courts; and my learned friend, Mr.

Brady, has done me the favor to allude to some particular occasion on which I, on behalf of the Government, in the Admiralty Court, have contended for certain principles, which would lead to the judicial confiscation of prizes, under the law of the land, or under the law of nations adopted and enforced as part of the law of the land. Well, now, gentlemen, I understand and agree that, for certain purposes, there is a condition of war which forces itself on the attention and the duty of Governments, and calls on them to exert the power and force of war for their protection and maintenance. And I have had occasion to contend--and the learned Courts have decided--that this nation, undertaking to suppress an armed military rebellion, which arrays itself, by land and by sea, in the forms of naval and military attack, has a right to exert--under the necessary principles which control and require the action of a nation for its own preservation, in these circ.u.mstances of danger and of peril--not only the usual magisterial force of the country--not only the usual criminal laws--not only such civil posses or aids to the officers of the law as may be obtained for their a.s.sistance--but to take the army and the navy, the strength and the manhood of the nation, which it can rally around it, and in every form, and by every authority, human and divine, suppress and reduce a revolt, a rebellion, a treason, that seeks to overthrow this Government in, at least, a large portion of its territory, and among a large portion of its people. In doing so, it may resort--as it has resorted--to the method of a warlike blockade, which, by mere force of naval obstruction, closes the harbors of the disaffected portion of the country against all commerce. Having done that, it has a right, in its Admiralty Courts, to adjudicate upon and condemn as prizes, under the laws of blockade, all vessels that shall seek to violate the blockade.

Nor, gentlemen, have I ever denied--nor shall I here deny--that, when the proportions of a civil dissension, or controversy, come to the port and dignity of war, good sense and common intelligence require the Government to recognize it as a question of fact, according to the actual circ.u.mstances of the case, and to act accordingly. I, therefore, have no difficulty in conceding that, outside of any question of law and right--outside of any question as to whether there is a Government down there, whether nominal or real, or that can be described as having any consistency of any kind, under our law and our Government--there is prevailing in this country a controversy, which is carried on by the methods, and which has the proportions and extent, of what we call war.

War, gentlemen, as distinguished from peace, is so distinguished by this proposition--that it is a condition in which force on one side and force on the other are the means used in the actual prosecution of the controversy. Now, gentlemen, if the Court please, I believe that that is all that can be claimed, and all that has been claimed, on behalf of these prisoners, in regard to the actual facts, and the condition of things in this country. And I admit that, if this Government of ours were not a party to this controversy,--if it looked on it from the outside, as England and France have done,--our Government would have had the full right to treat these contending parties, in its Courts and before its laws, as belligerents, engaged in hostilities, as it would have had an equal right to take the opposite course. Which course it would have taken, I neither know, nor should you require to know.

But, I answer to the whole of this, if the Court please, that it is a war in which the Government recognizes no right whatever on the part of the persons with whom it is contending; and that, in the eye of the law, as well as in the eye of reason and sound political morality, every person who has, from the beginning of the first act of levying war against the United States until now, taken part in this war, actively and effectively, in any form--who has adhered to the rebels--who has given aid, information, or help of any kind, wherever he lives, whether he sends it from New Hampshire or New York, from Wisconsin or from Baltimore--whether he be found within or without the armed lines--is, in his own overt actions, or open espousal of the side of this warring power, against the Government of the United States, a traitor and a rebel. I do not know that there is any proposition whatever, of law, or any authority whatever, that has been adduced by my learned friends, in which they will claim, as matter of law, that they are not _rebels_. I invited the attention of my learned friends, as I purposed to call that of the Court, to the fact, that the difficulty about all this business was, that the plea of authority or of war, which these prisoners interposed against the crime of piracy, was nothing but a plea of their implication in treason. I would like to hear a sober and solemn proposition from any lawyer, that a Government, as matter of law, and a Court, as matter of law, cannot proceed on an infraction of a law against violence either to person or property, instead of proceeding on an indictment for treason. The facts proved must, of course, maintain the personal crime; and there are many degrees of treason, or facts of treason, which do not include violent crime. But, to say that a person who has acted as a rebel cannot be indicted as an a.s.sa.s.sin, or that a man who has acted, on the high seas, as a pirate, if our statutes so p.r.o.nounce him, cannot be indicted, tried and convicted as a pirate, because he could plead, as the shield of his piracy, that he committed it as part of his treason, is, to my apprehension, entirely new, and inconsistent with the first principles of justice.

Now, this very statute of piracy is really a general Crimes Act. The first section is:

"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 ent.i.tled to a.s.sert 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 mult.i.tude 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 circ.u.mstances 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 ma.s.ses 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 ma.s.ses 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 b.l.o.o.d.y 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 a.s.sert 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 ma.s.ses of the misguided men!"

and, when it yields so mercifully to that appeal, and says--"I will limit myself to the least maintenance and a.s.sertion 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 pa.s.sion, 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 pa.s.sions, 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 const.i.tutional, 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 a.s.serted 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 pa.s.sions 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 Const.i.tution, 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 ent.i.tled by the Const.i.tution 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 embarra.s.sment 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 partic.i.p.ate 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 ill.u.s.trations, 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 const.i.tutional; second, if not const.i.tutional, as being supposed by somebody to be const.i.tutional; 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 a.s.sumed 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 const.i.tuted liberties should pa.s.s away as a scroll, or its firm power crumble in the dust. But, by the actual circ.u.mstances 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 princ.i.p.al 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 a.s.sert, 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 Ma.s.sachusetts, 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 a.s.serted, 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 pa.s.s laws, raise and levy taxes, and graduate the expenses and contributions which they would bear.

Now, gentlemen, it is quite true that the local legislatures were subject to the revision, as to their statutes, to a certain extent, of the sovereign power of England. The king had the veto power--as he had the veto power over Acts of Parliament--the power of revision--and other powers, as may have been the casual outgrowth of the forms of different charters. In an evil hour--as these Colonies, from being poor, despised, and feeble communities, gained a strength and numbers that attracted the attention of the Crown of England, as important and productive communities, capable of being taxed--the Government undertook to a.s.sert, as the principle of the Const.i.tution of England, that the king and Parliament, sitting in London, could tax as they pleased, when they pleased, and in the form, and on the subjects, and to the amount, they pleased, the free people of these Colonies. Now, you will understand, there was not an incidental, a casual, a limited subject of controversy, of right, of danger, but there was an attack upon the first principles of English liberty, which prevented the English people from being the subjects of a despot, and an attempt to make us subject to a despotic Government, in which we took no share, and in which we had no control of the power of the purse. What matter did it make to us that, instead of there being a despotic authority, in which we had no share or representation of vote or voice, exercised by the king alone, it was exercised by the king and Parliament? They were both of them powers of Government that were away from us, and in which we had no share; and we, then, forewarned by the voices of the great statesmen whose sentiments have been read to you, saw in time that, whatever might be said or thought of the particular exercise of authority, the proposition was that we were not ent.i.tled to the privilege and freedom of Englishmen, but that the power was confined to those who resided within the four seas--within the islands that made up that Kingdom--and that we were provinces which their King and their Parliament governed. Therefore, you may call it a question of taxation, and my friend may call it "a question of three pence a pound on tea;"

but it was the proposition that the power of the purse, in this country, resided in England. We had not been accustomed to it. We did not believe in it. And our first revolutionary act was to fight for our rights as Englishmen (subject to the King, whose power we admitted), and to a.s.sert the rights of our local legislature in the overthrow of this usurpation of Parliament. Now, of the course which we took before we resorted to the violence and vehemence of war, I shall have hereafter occasion to present you, very briefly and conclusively, a condensed recital; but this notion, that we here claimed any right to rise up against a Government that was in accordance with our rights, and was such as we had made it, and as we enjoyed it, equally with all others over whom it was exercised--which lies at the bottom of the revolt in this country--had not the least place, or the opportunity of a place, in our relations with England. We expected and desired, as the correspondence of Washington shows--as some of the observations of Hamilton, I think, read in your presence by the learned counsel, show--as the records of history show--we expected to establish security for ourselves under the British Crown, and as a part of the British Empire, and to maintain the right of Englishmen, to wit, the right of legislation and taxation where we were represented. But the parent Government, against the voice and counsels of such statesmen as Burke, and the warnings of such powerful champions of liberty as Chatham, undertook to insist, upon the extreme logic of their Const.i.tution, that we were British subjects, and that the king and Parliament governed all British subjects; and they had a theory, I believe, that we were represented in Parliament, as one English jurist put it, in the fact that all the grants in all the Colonies were, under the force of English law, "to have and to hold, as the Manor of East Greenwich," and that, as the Manor of East Greenwich was represented in Parliament, all this people were represented. But this did not suit our notions. The lawyers of this country, the Judges of this country, and many of the lawyers of England, as mere matter of strict legal right, held that the American view of the Const.i.tution of England, and of the rights of Englishmen who enjoy it, was the true one. But, at any rate, it was not upon an irritation about public sentiment; nor was it upon the pressure of public taxes; nor because we did not const.i.tute a majority of Parliament; nor anything of that kind; but it was on clear criteria of whether we were slaves, as Hamilton presents it, or part of the free people of a Government. We, therefore, by degrees, and somewhat unconscious, perhaps, of our own enlightened progress, but yet wisely, fortunately, prosperously, determined upon our independence, as the necessary means of securing those rights which were denied to us under the Const.i.tution of our country.

Now, there was not the least pretence of the right of a people to overthrow a Government because they so desire--which seems to be the proposition here--because they think they do not like it--and because there are some points or difficulties in its working they would like to have adjusted. No; it was on the mere proposition that the working of the administration in England was converting us into subjects, not of the Crown, with the rights of Englishmen, but subjects of the despotic power of Parliament and the king of England. Now, how did we go to work, and what was the result of that Revolution? In the first place, did we ever become _thirteen_ nations? Was Ma.s.sachusetts a nation? Was South Carolina a nation? Did either of them ever declare its independence, or ever engage in a war, by itself and of itself, against England, to accomplish its independence? No, never; the first and preliminary step before independence was union. The circ.u.mstances of the Colonies, we may well believe, made it absolutely necessary that they should settle beforehand the question of whether they could combine themselves into one effectual, national force, to contend with England, before they undertook to fight her. It was pretty plain that Ma.s.sachusetts could not conquer England, or its own independence, and that Virginia could not do so, and that the New England States alone could not do it, and that the Southern States alone could not do it. It was quite plain that New York, Pennsylvania and New Jersey, alone, could not do it; and, therefore, in the very womb, as it were, and preceding our birth as a nation, we were articulated together into the frame of one people, one community, one nationality. Now, however imperfectly, and however clumsily, and however unsuitably we were first connected, and however necessary and serious the changes which subst.i.tuted for that inchoate shape of nationality the complete, firm, n.o.ble and perfect structure which made us one people as the United States of America, yet you will find, in all the doc.u.ments, and in all the history, that there was a United States of America, in some form represented, before there was anything like a separation, on the part of any of the Colonies, from the parent country, except in these discontents, and these efforts at an a.s.sertion of our liberties, which had a local origin.

The great part of the argument of my learned friend rests upon the fact that these States were nations, each one of them, once upon a time; and that, having made themselves this Government, they have remained nations, in it and under it, ever since, subject only to the Confederate authority, in the terms of a certain instrument called a compact, and with the reserved right of nationality ready, at all times, to spring forth and manifest itself in complete separation of any one of the States from the rest. And I find, strangely enough, in the argument as well of the promoters of these political movements at the South as in the voice of my learned friends who have commented on this subject, a reference to the early diplomacy of the United States, as indicative of the fact that they were separate and independent communities--regarded as such by the contracting Powers into connection with whom they were brought by their treaties and conventions, and, more particularly, in the definitive treaty whereby their independence was recognized by Great Britain. Now, if the Court please, both upon the point (if it can be called a point, connected with your judicial inquiry) that these Colonies were formed into a Union before they secured their national independence, and that there was no moment of time wherein they were not included, either as united Colonies, under the parental protection of Great Britain, or as united in a struggling Provisional Government, or in the perfect Government of the Confederation, and, finally, under the present Const.i.tution--I apprehend there can be no doubt that our diplomacy, commencing, in 1778, with the Treaty of Alliance with France, contains the same enumeration of States that is so much relied upon by the reasoners for independent nationality on the part of all the States. In the preamble to that Treaty, found at page 6 of the 8th volume of the Statutes at Large, the language was: "The Most Christian King and the United States of North America, to wit, New Hampshire, &c., having this day concluded," &c. The United States are here treated as a strictly single power, with whom his Most Christian Majesty comes into league; and the credentials or ratifications pursued the same form. The Treaty of Commerce with the same nation, made at the same time, follows the same idea; and the Treaty with the Netherlands, made in 1782, contains the same enumeration of the States, and speaks of each of the contracting parties as being "countries." The Convention with the Netherlands, on page 50 of the same volume, and which was a part of the same diplomatic arrangement, and made at the same time, speaks, in Article 1, of the vessels of the "two nations." Now, the only argument of my learned friends, on the two treaties with Great Britain, of November, 1782, and September, 1783, is, that they are an agreement between England and the thirteen nations; and it is founded upon the fact, that the United States of America, after being described as such, are enumerated under a "viz." as being so many provinces. Now, the 5th and 6th articles of that Convention of 1782 with the Netherlands speak of "the vessels of war and privateers of one and of the other of the two nations." So that, pending the Revolution, we certainly, in the only acts of nationality that were possible for a contending power, set ourselves forth as only one nation, and were so recognized. And the same views are derivable from the language of the Provisional Treaty with Great Britain of November, 1782, and of the Definitive Treaty of Peace with Great Britain of September, 1783, which Treaties are to be found at pages 54 and 80 of the same 8th volume. The Preamble to the latter Treaty recites:

"It having pleased the Divine Providence to dispose the hearts of the most serene and most potent Prince George the Third, &c., and of the United States of America to forget all past misunderstandings and differences that have unhappily interrupted the good correspondence and friendship, which they mutually wish to restore; and to establish such a beneficial and satisfactory intercourse '_between the two countries_, &c.'"

And then comes the 1st article, which is identical in language with the Treaty with the Netherlands, of 1782:

"His Britannic Majesty acknowledges the said United States, viz., New Hampshire, &c., to be free, sovereign and independent States."

The United States had previously, in the Treaty, been spoken of as one country, and the language I have just quoted is only a statement of the provinces of which they were composed; for, we all know, as matter of history, that there were other British provinces that might have joined in this Revolution, and might, perhaps, have been included in the settlement of peace; and this rendered it suitable and necessary that the provinces whose independence was acknowledged should be specifically described. But, in the 2d article, so far from the separateness of the nationalities with which the convention was made being at all recognized, that important article, which is the one of boundaries, goes on to bound the entire nation as one undivided and integral territory, without the least attention to the divisions between them. It may be very well to say that England was only concerned to have one continuous boundary, coterminous to her own possessions, described, and that that was the object of the geographical bounding; but the entire Western, Eastern, and Southern boundaries are gone through as those of one integral nation. The 3d article speaks, again, of securing certain rights to the citizens or inhabitants of "both countries." Now, that "country" and "nation," in the language of diplomacy, are descriptive, not of territory, in either case, but of the nationality, admits of no discussion; and yet, I believe that the most substantial of all the citations and of all the propositions from the doc.u.mentary evidence of the Revolution, which seeks to make out the fact that we came into being as thirteen nations, grows out of this British Treaty, which, in its preamble, takes notice of but one country, called the United States of America, and, then, in recognition of the United States of America, names the States under a "viz."--they being included in the single collective nation before mentioned as the United States.

Now, gentlemen, after the Revolution had completed our independence, how were we left as respects our rights, our interests, our hopes, and our prospects on this very subject of nationality? Why, we were left in this condition--that we always had been accustomed to a parent or general Government, and to a local subordinate administration of our domestic affairs within the limits of our particular provinces. Under the good fortune, as well as the great wisdom which saw that this arrangement--a new one--quite a new one in the affairs of men--now that we were completely independent, and capable of being masters of our whole Government, both local and general, admitted of none of those discontents and dangers which belonged to our being subject collectively to the dominion of a remote power beyond the seas--under the good fortune and great wisdom of that opportunity, we undertook and determined to establish, and had already established provisionally, a complete Government, which we supposed would answer the purpose of having a general representation and protection of ourselves toward the world at large, and yet would limit the local power and authority, consistently with good and free Government, as respected populations homeogeneous, and acquainted with each other, and with their own wants and the methods of supplying them.

The Articles of Confederation, framed during the Revolution, ratified at different times during its progress, and at its close, was a Government under which we subsisted--for how long? Until 1787--but four years from the time that we had an independent nationality--we were satisfied with the imperfect Union that our provisional Government had originated, and that we had shaped into somewhat more consistency under the Articles of Confederation. Why did we not stay under that? We were a feeble community. We had but little population, but little wealth. We had but few of the occasions of discontent that belong to great, and wealthy, and populous States. But the fault, the difficulty, was, that there were, in that Confederation, too many features which our learned friends, their clients here, and theoretical teachers of theirs elsewhere, contend, make the distinctive character of the American Const.i.tution, as finally developed and established. The difficulty was that, although we were apparently and intentionally a nation, as respected the rest of the world, and for all the purposes of common interest and common protection and common development, yet this element of separate independency, and these views that the Government thus framed operated, not as a Government over individuals, but as a Government over local communities in an organized form, made its working imperfect, impossible, and the necessary occasion of dissension, and weakness, and hostility, and left it without the least power, except by continued force and war, to maintain nationality.

Now, it was not because we were sovereigns, all of us, because we had departed from sovereignty. There was not the least right in any State to send an amba.s.sador, or make a treaty, or have anything signed; but the vice was, that the General Government had no power or authority, directly, on the citizens of the States, but had to send its mandates for contributions to the common treasury, and its requirements for quotas