Trial of the Officers and Crew of the Privateer Savannah on the Charge of Piracy Part 37

Now, upon this subject my learned friends have cited many authorities, which all bear on the effect of what should give validity to the transfer of captured property under the circ.u.mstances of rebellions in States. Now I beg leave, at the outset of the consideration of this case, to say that the question of pa.s.sing t.i.tle to property is a thing entirely different from the question of hanging a man for committing a crime. In the first place, look at the numerous acts of trespa.s.s which are committed on the high seas by vessels of every nation. The books are full of cases of marine trespa.s.s, and of damages against captors for their irregularities; but are the authorities which bear upon that subject, which is a mere question of property--a question of t.i.tle--of the mere transfer of t.i.tle--are they authorities which decide the question that a man should be hanged if he mistakes the law, or if he acts under the impulse of a wrong judgment as to the sovereign which he should serve? I would call your attention to the case of Klintock, reported in the 5th of Wheaton, where the Court say that they will not regard the commission of General Aubrey as sufficient to give t.i.tle to the property, "although it might be sufficient to defend him from a charge of piracy." I also refer to Phillimore on International Law, vol. 3, p. 319. [Counsel read from the authority.]

Now, under what circ.u.mstances was this done? And in the discussion I give to this question I am entirely free from the necessity of considering how the Government of this country shall regard the seceded States,--as having a Government, or not. I am under the law of nations, because this act which I am now discussing, of robbery on the high seas, was evidently a transcript of the law of nations upon the subject of piracy. What are the undeniable facts?--the facts about which, in this case, there is not any dispute, either in this country or in the whole world--about which there is but one opinion--what are they? At the time the crew of the Savannah s.h.i.+pped for this cruise, and at the time of the capture of the Joseph, the authorities of the State of South Carolina (for the State of South Carolina had an organization from its beginning, as a part of this country, and, as a government, was well known to the Government of the United States)--the authorities of the State of South Carolina, where the Savannah was fitted out and the crew resided, had become parties to a confederation of others of the United States. Now it is immaterial to me, in the light in which I view this case, whether that was politically right or not--whether it was legally right or not--whether this country could look at it as a source of t.i.tle to property or not; the fact is there, that a State--one of the original, recognized States of the Union--united itself, under an a.s.sumption of authority, revolutionary if you please, with other similar States, and formed a league and a Government. That fact is undoubtedly so. Under such confederation a Government, in fact, existed, and exercised, in fact, the powers of civil and military Government over the territories and peoples of those States, or a princ.i.p.al part of them. Here we have eleven recognized States, doing, if you please, an illegal thing, when you come to submit it to the just principles of law. They form a league,--against an Act of Congress,--but they do form a league, and do const.i.tute a Government; and this Government takes possession of a territory of some ten millions of people, all of whom submit to it. It maintains the Government in its domestic character of States, and originates a Government for its foreign relations. It a.s.sumes to make war, and declares war. The President's proclamation says that the said Confederated States had in fact declared war against the United States of America, and were openly prosecuting the same with large military forces, under the military and civil organization of a Government; and had a.s.sumed, and were in the exercise of, the power of issuing commissions to private armed s.h.i.+ps to make captures of the property of the United States, and the citizens thereof, as prize of war, and to send them into Court for adjudication as such. Now, all that is beyond any doubt; and is it possible that it can be contended that an act of that vast extent, of that wide publicity and great power, should fail even to justify the killing of a chicken, without charge of petty larceny? Does it not shock the common sense of mankind that, in the case of men dwelling there, and acting in subordination to the existing Government (you cannot say whether voluntarily or not), for every shot fired and man killed you could have a trial for murder; that for every horse shot you could have an action of trover; and for every trespa.s.s you could have an action of trespa.s.s? This practically shocks us. How is it in view of the doctrine of _hostis humani generis_? Here are ten millions of people doing acts which, if done only by three or four, would be murders and treasons. But justice must be equal. If required to execute justice upon three or four, you are bound to execute it on tens of millions? Why, that is the very thing which publicists tell us const.i.tutes civil war. A civil war is always a rebellion when it begins. In the first instance it commences with a few individuals,--the Catalines of the country; but when it gets to be formed, so that a large force is collected, and, instead of the Courts of Justice before existing, it subst.i.tutes Courts of its own, then comes up the doctrine of humanity which belongs to the laws of war,--that you can no longer speak of it as a rebellion. In the judgments of publicists when a rebellion gets to that head that it represents States, and parts of a nation, humanity stops the idea of private justice, and it goes upon the principle of public and international law. That will be found elaborately stated in Vattel; but I do not intend to trouble you with any lengthened reading of citations. I refer to the 18th chap. on the subject of civil war, page 424:

"When a party is formed in a State, who no longer obey the sovereign, and are possessed of sufficient force to oppose him; or when, in a Republic, the nation is divided into two opposite factions, and both sides take up arms,--this is called a _civil war_. Some writers confine this term to a just insurrection of the subjects against their sovereign, to distinguish that lawful resistance from _rebellion_, which is an open and unjust resistance. But what appellation will they give to a war which arises in a Republic torn by two factions, or in a Monarchy, between two compet.i.tors for the crown? Custom appropriates the term of '_civil war_' to every war between the members of one and the same political society. If it be between the part of the citizens, on the one side, and the sovereign, with those who continue in obedience to him, on the other,--provided the malcontents have any reason for taking up arms, nothing further is required to ent.i.tle such disturbance to the name of _civil war_, and not _rebellion_.

This latter term is applied only to such an insurrection against lawful authority as is void of all appearance of justice. The sovereign, indeed, never fails to bestow the appellation of _rebels_ on all such of his subjects as openly resist him; but, when the latter have acquired sufficient strength to give him effectual opposition, and to oblige him to carry on the war against them according to the established rules, he must necessarily submit to the use of the term 'civil war.'"

The moment the term "civil war" comes up, the idea of punis.h.i.+ng, as rebellion or as piracy, the capture of a vessel, is an abuse of justice; and it is not only an abuse of justice, but it is an abuse of the fact, to say that those who are large enough to be a nation are to be considered as the enemies of all nations, because they undertake to make civil war. The point is not founded upon any technical considerations; it is founded upon the great doctrines of humanity and civilization. Because, what is to be the end of it? If we hang twelve men, they hang one hundred and fifty-six. If we treat them as rebels, why they treat our captured forces as these rebels are treated. You bring on a war without any civilizing rules. You bring in a war of worse than Indian barbarity. You bring in a war which can know nothing except bloodshed, in battle or upon the block. This is not a technical notion. It is that, when civil war is found to exist (and that altogether comes from the magnitude of the opposition), then the rules of war apply, as much as in any public war, so far as to protect the individuals acting under them. What would be said if you should take a gentleman who was made prisoner at Fort Hatteras, and try him for treason, and hang him? What would be said in this country, or in Europe,--what would be said anywhere, in the present or in future ages,--as to an act like that? Well, why not? Because justice must be equal. If you do it to one, you must do it to all. If you do it to all, you carry on an extermination of the human race, against all the principles which can animate a Court of Justice, or find a seat in the human bosom. Therefore, if we have the fact of civil war, we have the rules of war introduced.

Now, is this a civil war? I do not ask the question of how this country simply should regard it; but on the question in a Criminal Court, as to whether a civil war exists so as to give protection to those who act on one side of it, I have the concurrent judgments of the Courts. Judge Dunlop, in the case of the Tropic Wind, says there can be no blockade except in a case of war; that this is a civil war, and therefore there is a blockade. Judge Cadwalader says this is a civil war, and in civil war you may make captures; and Judge Betts, in a vastly profitable judgment, delivered in the other room, confiscating millions of property of Union men in the South, says that this is civil war. Now, if the Government of the United States forfeits the property of persons residing in these seceded States, without the formality of a trial for treason, because it is simply enemy's property, with what pretence can they set up the principle that they will not treat them as enemies?

They will treat them as enemies, for the purpose of confiscation, and not as enemies, but as traitors and pirates, for the purpose of execution? Why, it is a glaring inconsistency. It strikes us off our feet as a people fit to be looked at by any impartial or rational person, in political jurisprudence.

We submit, therefore, that there was a civil war. Then what was the taking of the Joseph? I now pa.s.s by the Savannah's commission for a moment. The capture of the Joseph was in this way: The Joseph was approached by the Savannah, and her Captain ordered on board. I make no question about its being a taking by force; I make no question but that, if it was done piratically, there was force enough to make it piratical. But when asked, Why do you do it? Captain Baker replied, "I take this by authority of the Confederated States. I am sorry for it; but you make war upon us, and we have, in retaliation, to make war upon you." The vessel is taken; nothing is removed from her; and she is sent in as a prize, and reaches Georgetown. Nothing is then taken from her, but she is proceeded against in Court, and men are examined there as to the vessel, just as fairly, and probably just as good men, as have been examined in the other room. The question is tried. It is an undeniable case that, if this is a civil war, they having declared war, the vessel belongs to a belligerent, and she is taken, condemned and sold, according to the laws which have dominion over that country--a proceeding (erroneous as it may be in the ultimate object of it) according to all the course of every civilized country. And yet, we are told, that is piratical! I submit that this cannot be so. We cannot, with any approach to consistency, hold that we can treat them both as enemies and rebels at the same time. Not so. Treat them as rebels, and confiscate the property by due course of law, and you can get nothing; because it is a singular thing that in this country there is no such thing as forfeiture for treason. You cannot forfeit the chattels, but only the land, and that for life; and as the penalty of treason is death, leaving no life estate for the forfeiture to act on, there is, practically, no forfeiture for treason. When these men come and say, we have taken this property as an enemy, you treat them as rebels. It seems to me this is indulging a private animosity; it is indulging a fanatical principle, an unworthy principle, that cannot be carried out without disregarding the great rules that belong to civilized nations with regard to war.

Again, if your honors please, piracy and robbery always have secrecy about them. The open robber, who meets you in noonday, yet secretes the plunder. He does not go into a Court of Justice and say, "Behold what I have taken! here are the jewels, and here the gold; adjudge if they are lawful prize!" The robber never does that. Here there is nothing secret or furtive. The vessel and cargo are taken before a Court and adjudicated to be a prize. Let us take a case which, although unlikely to happen, might occur. A man goes from seceding Virginia with an execution to levy upon a man in loyal Virginia. The man there says, "You are superseded; you have no authority;" and it is tried there. The Court hold that the execution and levy from the seceded State does not pa.s.s the property; but would it be possible to say, there was anything furtive in the taking on the part of the officer? There is nothing more plain, in criminal law, than that, if you act under color of authority, although you may be ruined by suits in trespa.s.s, yet you are not to be subjected to punishment as having done what was felonious.

But there is one other consideration which I would present on the subject of piracy: it is robbery upon the high seas,--an act _hostis humani generis_. It is made an offence in this country, because it is an offence against the law of nations; for this is a question on which civilized nations do not differ. All the nations of Europe look on at this controversy. Here comes a man that the District Attorney of New York says is _hostis humani generis_. What says the great commercial nation of Great Britain? We do not treat you as pirates, but as belligerents. We do not recognize your independence, because you have not achieved it; but when the question arises, whether we shall consider you as pirates, whom we, in common with all other nations, have a right to take up, we say it is no such thing. Judge Sprague says, that they say it is no such thing. So, too, with France. Here is the authority of a great Empire that this is not a piratical but a belligerent act. And again, Spain reiterates the same decision. Suppose I could bring the authority of the highest Court in Great Britain that, just in such a case as this, the Court acquitted a man of piracy; and suppose I could add to that a similar judgment under the law of France; and bring a case from the Courts in Spain, deciding the question in the same way; and so, too, from Holland,--and when I come down to New York, the District Attorney says the man is _hostis humani generis_! Is it not absurd? If piracy be a crime against public law, it is so. The recognition and the application of the doctrines of common humanity to this great struggle,--that they should be regarded as the determining point upon this great question--it seems to me your honors will never hesitate in admitting. I, therefore, present this point, and if your honors will permit me, after this discursive argumentation, I will read it as I think it ought to be decided in law:

"There is evidence that at the time of the crew of the Savannah s.h.i.+pping for the cruise, and at the time of the capture of the Joseph, the authorities of the State of South Carolina had become parties to a confederation of others of the United States of America, named in the President's proclamation. That under such confederation a Government, in fact, existed; and exercised, in fact, the powers of civil and military Government over the territories and people of those States, or the princ.i.p.al part thereof. That the said Confederate States had, in fact, declared war against the United States of America, and were openly prosecuting the same, with large military forces, and the military and civil organization of a Government; and had a.s.sumed, and were in the exercise of, the power of issuing commissions to private armed s.h.i.+ps, to make captures of the property of the United States, and the citizens thereof, as prize of war, and to send them into port for adjudication as such. And that a civil war thus, in fact, existed. That the taking of the Joseph was under such authority of the Confederate States, and in the name of prize of war, and with the purpose of having the same adjudged by a Prize Court in South Carolina, or some other of the said Confederate States. And, if the facts are so found, then the taking of the Joseph was not piratical, under the eighth section of the Act of 1790, and the prisoners must be acquitted from the charge under this count."

Now I approach the case of the commission. I suppose that the District Attorney, by not proving the commission as a part of the charge, is not ent.i.tled to convict any of these prisoners under the commission which is shown. He does not prove his case; and it is no matter what we have proved,--he is not ent.i.tled to a conviction under evidence which he does not bring.

But now I take up the matter of the commission, and the consideration of _piracy by statute_, under the 9th section. If your honors please, it is right that I should give some history of that 9th section's coming into the law of piracy. The 8th section you will find to be the law of piracy, by the law of nations. All nations hold that to be piracy which is there described. But, in the 11th and 12th of William III., this state of things existed: King James had abdicated the Crown of England twelve years before; William and Mary reigned together six years; William survived her. Here, then, was a Government in England, with a pretender, whom the English Government had declared was an alien from the Throne; they had banished him. But he was at the Court of St.

Germain, in France; and there, through his instrumentality, privateers were fitted out against English commerce. Then this Act was enacted which I will now mention. You find it in _Hawkins' Pleas of the Crown_, under the t.i.tle _Piracy_, book I., chap. 37, sec. 7:

"It being also doubted by many eminent civilians whether, during the Revolution, the persons who had captured English vessels, by virtue of commissions granted by James II., at his Court at St.

Germain, after his abdication of the Throne of England, could be deemed pirates, the grantor still having, as it was contended, the right of war in him, it is enacted--11 & 12 Wm. III., c. 7, s.

8--'That if any of His Majesty's natural-born subjects, or denizens of this Kingdom, shall commit any piracy or robbery, or any act of hostility against others, His Majesty's subjects, upon the sea, under color of any commission from any foreign Prince or State, or pretence of authority from any person whatsoever, such offender or offenders, and every of them, shall be deemed, adjudged, and taken to be pirates, felons, and robbers; and they, and every of them, being duly convicted thereof, according to this Act, or the aforesaid statute of King Henry VIII., shall have and suffer such pains of death, loss of lands, goods, and chattels, as pirates, felons, and robbers upon the seas ought to have and suffer.'"

When an Act of Congress, declaring the crime of piracy, was enacted, in 1790, it is perfectly apparent that those who drew up the Act were acquainted with _Hawkins' Pleas_, containing the 8th section, which is the recognized law of piracy by all nations, and from that book, then, took in this 9th section; because there was no exigency in our Government to call for it, and no reason for its introduction, except that it was found in a book familiar to those who were legislating for this country. In regard to the Act, there are some peculiarities which are very striking, and which bear strongly on this subject. The first is the fact that a commission, although from a foreign State, taken by a British subject or denizen of England, and committed against British commerce, protected the party against the charge of piracy,--because the thing was taken as prize, and for adjudication according to the principles of the laws of nations, for which national action the nation which took it was responsible. But, in the case and condition of James II., the English declared that he was no longer of England,--they declared him fallen from the Crown, and a foreigner. He had no dominions, and no place where the poor man could hold a Prize Court; and, if he could authorize a capture, there was no Court to adjudicate upon it; there was no sovereign to be responsible for the action of the Prize Court. He was a King without responsibility, and without the power of having Courts of Adjudication; and it was a necessity arising in the history of English law that that kind of action should be treated as piratical. The English adopted that, therefore, as the statute piracy. I refer your honors to Phillimore's International Law (vol. III., page 398), where all the discussion and reasons are contained; and they all are reasons applicable to a Prince without dominions, without Courts, without a country; and to a foreign Prince, in regard to English property and English subjects.

Now, then, let us see how these men stand. Under the 8th section, those men who were not citizens of the United States, are, of course, protected by a commission from a Government _de facto_. Their taking was not _animo furandi_, because there was a commission. The very enactment of the statute of William III. was upon the basis that it was not piracy where there was a commission, even of this questionable sort.

I say, then, in my third point, that if the facts are found as supposed in the preceding point, and if it also appears that the commission from the Confederated States, or the President thereof, had been issued for the Savannah, and that the capture was made under color thereof, then, as to the prisoners shown not to be citizens of the United States, the taking of the Joseph was not piratical under the eighth section of the Act of 1790,--_first_, because it was under color of authority; nor, _second_, was it piratical under the ninth section, because that only applies to citizens of the United States; and the prisoners, Del Carno, &c., must be acquitted under the ninth as well as under the eighth section.

But now we come to the American citizens who took that commission, and we are to see with some accuracy how the case stands as to them,--which involves two questions: One is, what kind of "other person" is embraced in that law? And the other is, whether this indictment is supported as under a commission from any _person_ whatever? Let me call your attention to the form of the indictment in this last count of the declaration. They all run in this way: that these persons, "being citizens, did, _on pretence of authority from a person, to wit, one Jefferson Davis_," &c. That is all that is said as to the pretence. Now there is no lack of skill in this indictment. The pleader under this indictment was surrounded with difficulties very grave indeed. He had the commission. If he had described it as a commission from certain foreign States, namely, South Carolina, Georgia, &c., the Government would have recognized the existence of those States in the most formal manner and by action of the most formal kind. If he said "Jefferson Davis, President of certain Confederate States," that would be simply that the pretence of authority was a pretence of authority from those States, and the same consequence would result. Well, what could he do?

The only way in which he could make this stand at all was by saying that it is an authority from Jefferson Davis, as an individual. That is the meaning of this allegation.

Now, then, under the facts already stated, including now the commission and the action under it, the taking of the Joseph was not piratical, under the ninth section, because the commission was from the Confederate States, and not from "a person, to wit, one Jefferson Davis," as described in the indictment. Now that leads me to a consideration of this commission. We had something a little like it here yesterday, when the warrant issued by Mr. Buchanan Henry was given in evidence for the arrest of these men. I suppose I would be charged with ridicule in the last degree if I said they were arrested by the authority of Buchanan Henry, or under pretence of authority from Buchanan Henry; yet the warrant ran in the name of Buchanan Henry. Now let us see whether this commission supports the allegation of its being a commission from a private person. The allegation is, that the capture was made under pretence of authority from one Jefferson Davis. The commission runs just as the President's commission to your honors:

"JEFFERSON DAVIS,

"PRESIDENT OF THE CONFEDERATE STATES OF AMERICA.

_"To all who shall see these presents, greeting:_--Know ye, that by virtue of the power vested in me by law, I have commissioned, and do hereby commission, have authorized, and do hereby authorize, the schooner or vessel called the Savannah (more particularly described in the schedule hereunto annexed), whereof T. Harrison Baker is commander, to act as a private armed vessel in the service of the Confederate States, on the high seas, against the United States of America, their s.h.i.+ps, vessels, goods, and effects, and those of her citizens, during the pendency of the war now existing between the said Confederate States and the said United States.

"This commission to continue in force until revoked by the President of the Confederate States for the time being.

"Schedule of description of the vessel:--Name, Schooner Savannah; tonnage, 53-41/95 tons; armament, one large pivot gun and small arms; number of crew, thirty.

"Given under my hand and the seal of the Confederate States, at Montgomery, this 18th day of May, A.D. 1861.

"JEFFERSON DAVIS.

"By the President--R. TOOMBS, Secretary of State."

Now I submit that, if they had framed an indictment for taking a commission under the King of England, and it had been under the Government of England as a foreign State, without naming the individual, such a commission as this would sustain it. If they had indicted as taking a commission out under any foreign State or nation, a commission in this way would have sustained that indictment; because the officer is merely the authenticator of the instrument; the authority is not his,--it is not under his authority; he is the mere ministerial officer, in fact, of the Government.

Now I submit, that this taking cannot be held piratical, under the ninth section, on this indictment; because it was a taking, not on pretence of authority from Jefferson Davis, but under authority of the Confederate States, exercised by Jefferson Davis. And, in a case of this kind, I must say that I consider it will prove the greatest G.o.dsend to the Government, and to the prisoners on both sides who now anxiously await the result, if, without touching the other questions, this indictment shall fall to the ground on a mere technical point.

That is one reason. Another reason is this: The Act is for taking vessels under a commission from any foreign Prince or State, or on pretence of authority from any person. Now what is a foreign Prince or a foreign State? If your honors please, at the time this Act was enacted, within some three years of the United States coming together, is it conceivable that the thought entered into the heart of any man who had anything to do with it that it was to take effect against any man acting under the authority of any of the States of this Union? The States all were authorized, under certain circ.u.mstances, to have s.h.i.+ps-of-war and to have armies. There was no telling what collision there might be; and the idea that this Act, almost a literal transcript from the English statute of 11 and 12 William III., contemplated that punishment for acting under the authority of domestic persons, is inconceivable.

In construing an Act so highly penal as this we must be very sure that we are not only within the letter, but within the very spirit and contemplation, of the Act; and can you think that the framers of this Government gravely provided for the offence of taking a commission under some of the persons acting as Governor, or in connection with the domestic inst.i.tutions of this country? I submit that the Act was intended to operate against foreign States and nations, and a foreign person; and it is inconceivable that the Act should have been contemplated to embrace any such thing as is now brought up. I submit, therefore, as the third of my specifications under this point, that Jefferson Davis was not a foreign person, nor a.s.suming the authority of a foreign Prince or Ruler. The statute was one against commissions under foreign authority of some kind or other, either Prince, or State, or person.

But I now draw your attention to another feature of the statute, which seems to me equally decisive. This statute is transmitted to us from England, and that which was the design and exigency of its adoption there is to bear with great, if not decisive, force, upon its construction here. We took it because they had it, and we took it, therefore, for reasons similar to theirs. Now what was the real difficulty there? It was this: that a Prince without dominion, a Prince having no Government _de facto_, a mere nominal Prince, undertook to issue commissions throughout the world against British commerce. Evils that are very manifest and plain, in regard to the law of prizes, apply to that case. The prizes could not be adjudicated in his Courts; he had none. This was an enactment against Princes who had abdicated and were without dominion. Such things were common, as well in the time of William III. as since. Abdicated Princes very soon turn to be robbers, whose only object is to get re-established, and they are not scrupulous as to means. They stand as mere fictions, undertaking to exercise authority, with none of the responsibilities which belong to Rulers.

How different it is with this Jefferson Davis! I speak now in no degree of his merits, or as lessening that feeling which my fellow-citizens and I share alike upon the subject of this rebellion. But here is a man, not a nominal Prince or Ruler, but he is (if you please without right) Ruler of ten millions of people. Is this Act, which is intended to meet the case of a man without people, or dominion, or force--without any thing but the name and claim of Ruler--to be applied to a man who represents (rightfully or wrongfully) a large fraction of a great nation? To say that every man who takes a commission (applying as well to civil as to military commissions), that any man who takes a commission, from him, is either a robber or a pirate--if on land, a robber, if on sea, a pirate--is unjust and unreasonable--contrary to every principle that governs the laws of nations. Patriotic vituperation may go far--patriotic spirit and feeling may go far--but there is a limit to every thing that is real. The human mind, as it seems to me, and the human heart, cannot go to the extent of the doctrine that they can be treated as robbers who act under a Government extending _de facto_ so far and doing _de facto_ so many things throughout upon the principles of civilized warfare, and having a vast territory, and vast numbers of people acting as it dictates. It is perverting the law of piracy to apply it to a case so entirely different.

Now it comes back to the fact that this "pretence of authority" was the authority of all those States. Those States, when they come back to the Union, if they ever do, will come back with all their powers as original States. The Confederation you may call illegal and improper, but it is a Confederation _de facto_; its right may be questioned, but it is a _de facto_ Government, with this gentleman presiding over it, and performing the duties which, as the Ruler of a great nation, devolve upon him--bringing out armies by hundreds of thousands, bringing out treasures by the million,--and yet you are to say it has no color of authority. It is idle, it seems to me, to say that a man situated as Jefferson Davis is was intended by a law against a mere nominal Prince. I submit that because Jefferson Davis was actually the Chief of a Confederation of States, not foreign, exercising actual power and government over large territories, with a large population, under an organized Government, having Courts within its territories for the adjudication of captures,--that upon each of these grounds Harleston, as well as the others who are citizens, should be acquitted under the 9th section.

That is all the argument which I address particularly; and I beg leave to read two or three general propositions on the construction of the law in this matter:

I.--The recognition, by the great commercial nations of the world, of the Confederate States as belligerents, and not pirates and robbers, prevents the captures under authority from being held piratical under the law of nations.

II.--1. The ninth section of the Act of 1790 has not in view any application to the States then recently united as the United States of America, or to the persons having authority _de facto_ in them.

2. That section had in view foreign Princes and States, and foreign authority only.

3. The authority from any person in that section has reference to persons without the possession, in fact, of territory.

If your honors please, I have endeavored, so far as it was possible, to abbreviate what I have had to say on this subject. It is a very interesting one, undoubtedly, not only to the legal student, but to all persons in the country. This war is a war to reclaim those States. To attempt to reclaim them by prosecutions for piracy, or by acts of hostility which disregard them as having any form of society,--it seems to me that no national evil could be greater. The idea that in a commercial city it is very offensive that there should be privateers, is a trifle. The navy can regulate that. Let them look more to the privateers that want to get out than to the prizes that want to come in, and that will be provided for. We need not violate principles of law, or of humanity, or the common sense of the world, to produce an effect of that kind. We need to show that, in the midst of all this excitement and outcry against piracy--in the midst of a press that never names any of these people without calling them "pirates"--the men brought in always in chains, for the purpose of exciting public indignation against them and preventing their being treated as men of common rights and common interests with us--all which is very humiliating, it seems to me--in a Court of Justice no such feelings will be succ.u.mbed to.

Certain I am that, where I stand, no such principles will be put in use. Justice will come--severe and stern, it may be--but it will be justice, with truth, and reason, and humanity, and political tenderness accompanying all its acts and all its judgments.

_Mr. Larocque_: If the Court please, I had hoped to be saved the necessity of addressing your honors upon these propositions of law; but, in the distribution that has been made among the counsel, it has fallen to my lot to present the propositions in reference to which my opening was made, yesterday, to the Jury, and which will be adverted to by the counsel who, on our side, will close the case; and, simply, without detaining your honors, at this late hour, with any remarks upon them further than the reading of some extracts from authorities I have collected, I will present the propositions, leaving them to the action of your honors, and to the remarks of my a.s.sociate, who will close this case, after we have ascertained the direction it will take before the Jury.

The first proposition I had stated, with reference to jurisdiction: "That the defendants, after their capture and confinement as criminals, for the acts charged in this indictment, having been taken within the District of Virginia, on board the vessel on which they were so confined before being brought within the Southern District of New York, cannot be convicted under this indictment."

In reference to that, there are a number of additional authorities that I will furnish to your honors. In the case of the _United States_ vs.

_Charles A. Greiner_, tried before Judge Cadwalader, in the Philadelphia District, the defendant had been arrested under a charge of treason committed in Georgia. It seems to have been understood, by the learned counsel on the other side, that the question of jurisdiction may be influenced by the fact of whether there was any possibility of these prisoners being tried in Virginia or not; and it is in reference to that point that I cite this case. Judge Cadwalader says:

"The questions in this case are more important than difficult. On the 2d of January last an artillery company of the State of Georgia, mustered in military array, took Fort Pulaski, in that State, from the possession of the United States, without encountering any forcible resistance. They garrisoned the post for some time, and left it in the possession of the government of the State. The accused, a native of Philadelphia, where he has many connections, resides in Georgia. He was a member of this artillery company when it occupied the fort, and, for aught that appears, may still be one of its members. He was not its commander. Whether he had any rank in it, or was only a private soldier, does not appear, and is, I think, unimportant. He is charged with treason in levying war against the United States. The overt act alleged is, that he partic.i.p.ated, as one of this military company, in the capture of the fort, and in its detention until it was handed over to the permanent occupation of the authorities of the State.

"The primary question is whether, if his guilt has been sufficiently proved, I can commit him for trial, detain him in custody, or hold him to bail to answer the charge. The objection to my doing so is, that the offence was committed in the State of Georgia, where a Court of the United States cannot, at present, be held, and where, as the District Attorney admits, a _speedy_ trial cannot be had. The truth of this admission is of public notoriety.

"The Const.i.tution of the United States provides that in all criminal prosecutions the accused shall enjoy the right to a _speedy_ trial by a Jury of the _State and District_ wherein the crime shall have been committed. The only statute which, if the Courts of the United States for the State of Georgia were open, would authorize me to do more than hold this party to security of the peace, and for good behavior, is the 33d section of the Judiciary Act of the 24th September, 1789. That section, after authorizing commitments, &c., for trial, before any Court of the United States having cognizance of the offence, provides that if the commitment is in a District other than that in which the offence is to be tried, it shall be the duty of the Judge of the District where the delinquent is imprisoned _seasonably_ to issue, and of the Marshal of the same District to execute, a warrant for the removal of the offender to the District in which the trial is to be had. The District Attorney of the United States does not ask me to issue such a warrant for this party's removal to Georgia for trial. Therefore I can do nothing under this Act of Congress. It does not authorize me to detain him in custody to abide the ultimate result of possible future hostilities in Georgia, or to hold him to bail for trial in a Court there, of which the sessions have been interrupted, and are indefinitely postponed."

In reference to the counts of the indictment founded upon the 8th section of the Act of 1790 and the Act of 1820, the propositions I have are these:

"_Second_, That to convict the defendants, under either of the first five counts of the indictment, the Jury must have such evidence as would warrant a conviction for robbery if the acts proved had been performed on land.