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Title: Trial of the Officers and Crew of the Privateer Savannah, on the Charge of Piracy, in the United States Circuit Court for the Southern District of New York

Author: A. F. Warburton

Release Date: June 3, 2011 [EBook #36306]

Language: English

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TRIAL

OF THE

OFFICERS AND CREW OF THE PRIVATEER SAVANNAH,

ON THE CHARGE OF PIRACY,

IN THE

UNITED STATES CIRCUIT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK.

HON. JUDGES NELSON AND SHIPMAN, PRESIDING.

REPORTED BY A. F. WARBURTON, STENOGRAPHER,
AND CORRECTED BY THE COUNSEL.

NEW YORK:
BAKER & GODWIN, PRINTERS,
PRINTING-HOUSE SQUARE, OPPOSITE CITY HALL.
1862.

CONTENTS.

Page Preliminary Proceedings:

Capture of the Savannah; the removal of the prisoners to New York, and their committal for trial,

The Indictment,

The Arraignment,

xiii

Trial of the Prisoners. First Day:

Organization of the Court,

Impaneling of the Jury,

Opening of Mr. E. Delafield Smith, United States

District Attorney,

Testimony for the Prosecution:

Albert G. Ferris,

William Habeson,

George Thomas,

George H. Cables,

Thies N. Meyer,

Horace W. Bridges,

Silas H. Stringham,

Argument on the Jurisdiction:

Mr. Larocque,

Mr. Brady,

Mr. Evarts,

Mr. Larocque,

Trial. Second Day:

Decision on the Jurisdiction,

Testimony for the Prosecution, resumed:

Silas H. Stringham,

David C. Constable,

Daniel D. Tompkins,

J. Buchanan Henry,

Ethan Allen,

Mr. Larocque's Opening for the Defence,

Documentary Testimony,

108

Trial. Third Day:

Documentary Testimony,

110

Testimony for the Defence:

Daniel D. Tompkins,

112

Presentation of Authorities by Counsel for the Prosecution,

113

Arguments of Counsel on the Points of Law:

Mr. Lord,

117

Mr. Larocque,

133

Trial. Fourth Day:

Arguments of Counsel on the Points of Law:

Mr. Larocque, continued,

144

Mr. Mayer,

164

Mr. Brady,

169

Mr. Evarts,

170

Trial. Fifth Day:

Summings up of Counsel to the Jury:

Mr. Dukes,

204

Mr. Sullivan,

218

Mr. Davega,

231

Mr. Brady,

236

Trial. Sixth Day:

Summings up of Counsel to the Jury:

Mr. Brady, continued,

270

Mr. Evarts,

283

Trial. Seventh Day:

Summings up of Counsel to the Jury:

Mr. Evarts, continued,

334

Charge to the Jury, by Judge Nelson,

368

Return of the Jury and further instructions,

373

Trial. Eighth Day:

Discharge of the Jury,

375

Appendix:

President's Proclamation, April 15, 1861,

377

Proclamation of the President, declaring a Blockade,

378

Correspondence between Gov. Pickens and Major Anderson,

379

Extracts from President Lincoln's Inaugural,

380

The President's Speech to the Virginia Commissioners,

381

Extracts from President Lincoln's Message to Congress, July 4, 1861,

382

Extracts from President Buchanan's Message to Congress, December 4, 1860,

383

Proclamation of August 16, 1861,

384

PRELIMINARY PROCEEDINGS

During the month of May, 1861, the schooner Savannah, of Charleston, of about fifty-three tons burden, and mounting one pivot gun, was fitted out as a privateer, in the City of Charleston; and on the second of June, under the authority of "a paper, purporting to be a letter of marque, signed by Jefferson Davis," she sailed from that port for the purpose of making captures among the commercial marine of the United States.

On the following day (Monday, June 3), after having captured the brig Joseph, laden with sugar, she was, in turn, herself taken by the United States brig-of-war Perry, Captain Parrott, and carried to the blockading squadron, off Charleston, to the commander of which (Commodore Stringham) she was surrendered by her captors.

On the fifth of June the officers and crew of the Savannah were transferred from the Perry to the United States steam-frigate Minnesota, while the prize was taken in charge by a prize crew from the Perry and sent to New York.

The Minnesota, with the prisoners on board, proceeded, on her way to New York, to Hampton Roads, where the prisoners were transferred to the steam-cutter Harriet Lane; and thence, on board that vessel, they were conveyed to New York, at which port they arrived in the course of the month of June.

On the arrival of the Harriet Lane at New York, the prisoners were given in charge to the United States Marshal; and, on application of the District Attorney of the United States, a warrant was issued, under which the prisoners were committed for trial.

On the 16th of July following, the Grand Jury of the Federal Court, then sitting in this city, came into court and presented a true bill against the prisoners, a copy of which Indictment is as follows:—

CIRCUIT COURT OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, IN THE SECOND CIRCUIT. [1]

At a stated Term of the Circuit Court of the United States of America for the Southern District of New York, in the Second Circuit, begun and held at the City of New York, within and for the District and Circuit aforesaid, on the first Monday of April, in the year of our Lord 1861, and continued by adjournments to the 26th day of June in the year last aforesaid:

Southern District of New York, ss.:—The Jurors of the United States of America, within and for the District and Circuit aforesaid, on their oath, present:

That Thomas Harrison Baker, late of the City and County of New York, in the District and Circuit aforesaid, mariner; and John Harleston, late of the same place, mariner; Charles Sidney Passalaigue, late of the same place, mariner; Henry Cashman Howard, late of the same place, mariner; Joseph Cruz del Carno, late of the same place, mariner; Henry Oman, late of the same place, mariner; Patrick Daly, late of the same place, mariner; William Charles Clark, late of the same place, mariner; Albert Gallatin Ferris, late of the same place, mariner; Richard Palmer, late of the same place, mariner; John Murphy, late of the same place, mariner; Alexander Carter Coid, late of the same place, mariner; and Martin Galvin, late of the same place, mariner, on the 3d day of June, A.D. 1861, upon the high seas, out of the jurisdiction of any particular State, and within the admiralty and maritime jurisdiction of the said United States of America, and within the jurisdiction of this Court, did, with force and arms, piratically, feloniously, and violently set upon, board, break, and enter a certain vessel, to wit, a brig called the Joseph, the same being then and there owned in whole or in part, by a citizen or citizens of the United States of America, whose name or names are to the Jurors aforesaid unknown, and did then and there in and on board of the said brig, the Joseph, in and upon one Thies N. Meyer, then and there being a mariner, and then and there one of the ship's company of the said brig, the Joseph, and then and there master and commander thereof, and in and upon Horace W. Bridges, Albert Nash, William H. Clanning, John J. Merritt, John Quin, and Joseph H. Golden, each then and there being a mariner and one of the ship's company of the said brig, the Joseph, piratically, feloniously, and violently make an assault, and them did then and there piratically, feloniously, and violently, put in personal fear and danger of their lives, and did then and there, the brig, the said Joseph, of the value of $3,000, and the tackle, apparel, and furniture thereof, of the value of $500, and 250 hogsheads of sugar, of the value of $100 each hogshead, of the goods, chattels, and personal property of certain persons whose names are to the jurors aforesaid unknown, the said 250 hogsheads of sugar being then and there in and on board of the said brig, and being then and there the lading thereof, and the said brig, the tackle, apparel, and furniture thereof, and the said 250 hogsheads of sugar, being then and there in the care, custody, and possession of the said Thies N. Meyer, Horace W. Bridges, Albert Nash, William H. Clanning, John J. Merritt, John Quin, and Joseph H. Golden, from the said Thies N. Meyer, Horace W. Bridges, Albert Nash, William H. Clanning, John J. Merritt, John Quin, and Joseph H. Golden, and from their said possession, care, and custody, and in their presence and against their will, violently, piratically, and feloniously seize, rob, steal, take, and carry away against the form of the statute of the said United States of America in such case made and provided, and against the peace of the said United States and their dignity.

Second Count: And the jurors aforesaid, upon their oath aforesaid, do further present: That Thomas Harrison Baker, late of the City and County of New York, in the District and Circuit aforesaid, mariner; and John Harleston, late of the same place, mariner; Charles Sidney Passalaigue, late of the same place, mariner; Henry Cashman Howard, late of the same place, mariner; Joseph Cruz del Carno, late of the same place, mariner; Henry Oman, late of the same place, mariner; Patrick Daly, late of the same place, mariner; William Charles Clark, late of the same place, mariner; Albert Gallatin Ferris, late of the same place, mariner; Richard Palmer, late of the same place, mariner; John Murphy, late of the same place, mariner; Alexander Carter Coid, late of the same place, mariner; and Martin Galvin, late of the same place, mariner, on the third day of June, in the year of our Lord 1861, upon the high seas, out of the jurisdiction of any particular State, and within the admiralty and maritime jurisdiction of the said United States of America, and within the jurisdiction of this Court, did, with force and arms, piratically, feloniously, and violently set upon, board, break, and enter a certain American vessel, to wit, a brig called the Joseph, the same then and there being owned, in part, by George H. Cables, John Cables, and Stephen Hatch, then citizens of the United State of America, and did then and there, in and on board of the said brig, the Joseph, in and upon one Thies N. Meyer, then and there being a mariner and one of the ship's company of the said brig, the Joseph, and master and commander thereof, and in and upon divers other persons, each then and there being a mariner and one of the ship's company of the said brig, the Joseph, whose names are to the jurors aforesaid unknown, piratically, feloniously, and violently make an assault, and them did then and there piratically, feloniously, and violently put in bodily fear and danger of their lives, and did then and there, the said brig, the said Joseph, of the value of three thousand dollars, and the tackle, apparel, and furniture of the same, of the value of five hundred dollars, of the goods, chattels, and personal property of George H. Cables, John Cables, and Stephen Hatch, citizens of the United States of America, and two hundred and fifty hogsheads of sugar, of the value of one hundred dollars each hogshead, of the goods, chattels, and personal property of one Morales, whose Christian name is to the jurors aforesaid unknown, the said sugar being then and there in and on board of the said brig, the Joseph, and being then and there the lading thereof, and the said brig and the tackle, apparel, and furniture thereof, and the said two hundred and fifty hogsheads of sugar then and there being in the care, custody, and possession of the said Thies N. Meyer, and the said divers other persons, mariners, as aforesaid, and of the ship's company of the said brig, the Joseph, and whose names are to the jurors aforesaid unknown, from the said Thies N. Meyer and the said divers other persons, mariners, aforesaid, and of the ship's company of the said brig, the Joseph, whose names are, as aforesaid, to the jurors aforesaid, unknown, and from their care, custody, and possession, and in their presence and against their will, piratically, feloniously, and violently, rob, seize, steal, take and carry away, against the form of the statute of the said United States of America in such case made and provided, and against the peace of the said United States and their dignity.

Third Count: And the jurors aforesaid, upon their oath aforesaid, do further present: That Thomas Harrison Baker, late of the City and County of New York, in the District and Circuit aforesaid, mariner; and John Harleston, late of the same place, mariner; Charles Sidney Passalaigue, late of the same place, mariner; Henry Cashman Howard, late of the same place, mariner; Joseph Cruz del Carno, late of the same place, mariner; Henry Oman, late of the same place, mariner; Patrick Daly, late of the same place, mariner; William Charles Clark, late of the same place, mariner; Albert Gallatin Ferris, late of the same place, mariner; Richard Palmer, late of the same place, mariner; John Murphy, late of the same place, mariner; Alexander Carter Coid, late of the same place, mariner; and Martin Galvin, late of the same place, mariner, on the 3d day of June, A.D. 1861, upon the high seas, out of the jurisdiction of any particular State, and within the admiralty and maritime jurisdiction of the said United States of America, and within the jurisdiction of this Court, did, with force and arms, piratically, feloniously, and violently set upon, board, break, and enter a certain vessel, to wit: a brig called the Joseph, then and there being owned by certain persons, citizens of the United States of America, to wit: George H. Cables, John Cables, and Stephen Hatch, of Rockland, in the State of Maine, and in and upon certain divers persons whose names are to the jurors aforesaid unknown, the said last-mentioned persons each being then and there a mariner, and of the ship's company of the said brig called the Joseph, and then and there being in and on board of the said brig the Joseph, did then and there, piratically, feloniously, and violently make an assault, and them did then and there piratically, feloniously, and violently put in bodily fear, and the said brig, the Joseph, of the value of $3,000; the apparel, tackle, and furniture thereof, of the value of $500; of the goods, chattels, and personal property of the said George H. Cables, John Cables, and Stephen Hatch, and 250 hogsheads of sugar of the value of $100 each hogshead, of the goods, chattels, and personal property of one Thies N. Meyer, from the said divers persons, mariners, as aforesaid, whose names are to the jurors aforesaid unknown, in their presence, then and there, and against their will, did then and there piratically, feloniously, and violently seize, rob, steal, take, and carry away, against the form of the statute of the said United States of America in such case made and provided, and against the peace of the said United States and their dignity.

Fourth Count: And the jurors aforesaid, upon their oath aforesaid, do further present: That Thomas Harrison Baker, late of the City and County of New York, in the District and Circuit aforesaid, mariner; and John Harleston, late of the same place, mariner; Charles Sidney Passalaigue, late of the same place, mariner; Henry Cashman Howard, late of the same place, mariner; Joseph Cruz del Carno, late of the same place, mariner; Henry Oman, late of the same place, mariner; Patrick Daly, late of the same place, mariner; William Charles Clark, late of the same place, mariner; Albert Gallatin Ferris, late of the same place, mariner; Richard Palmer, late of the same place, mariner; John Murphy, late of the same place, mariner; Alexander Carter Coid, late of the same place, mariner; and Martin Galvin, late of the same place, mariner, on the third day of June, in the year of our Lord one thousand eight hundred and sixty one, upon the high seas, out of the jurisdiction of any particular State, and within the admiralty and maritime jurisdiction of the said United States of America, and within the jurisdiction of this Court, did, with force and arms, piratically, feloniously, and violently set upon, board, break, and enter a certain vessel then and there being, to wit, a brig called the Joseph, and in and upon one Thies N. Meyer, then and there being in and on board of the said brig, and being a mariner and master and commander of the said brig, and the said Thies N. Meyer then and there being a citizen of the United States of America, did then and there piratically, feloniously, and violently make an assault, and him, the said Thies N. Meyer, did then and there piratically, feloniously, and violently put in great bodily fear, and the said brig, the Joseph, of the value of $3,000, and the tackle, apparel, and furniture thereof, of the value of $500, and 250 hogsheads of sugar, of the value of $100 each hogshead, the same then and there being of the lading of the said brig, of the goods, chattels, and personal property of the said Thies N. Meyer, in his presence and against his will, did violently, feloniously, and piratically rob, steal, seize, take, and carry away, against the form of the statute of the said United States of America in such case made and provided, and against the peace of the said United States and their dignity.

Fifth Count: And the jurors aforesaid, upon their oath aforesaid, do further present: That Thomas Harrison Baker, late of the City and County of Nev York, in the District and Circuit aforesaid, mariner; and John Harleston, late of the same place, mariner; Charles Sidney Passalaigue, late of the same place, mariner; Henry Cashman Howard, late of the same place, mariner; Joseph Cruz del Carno, late of the same place, mariner; Henry Oman, late of the same place, mariner; Patrick Daly, late of the same place, mariner; William Charles Clark, late of the same place, mariner; Albert Gallatin Ferris, late of the same place, mariner; Richard Palmer, late of the same place, mariner; John Murphy, late of the same place, mariner; Alexander Carter Coid, late of the same place, mariner; and Martin Galvin, late of the same place, mariner, each being a citizen of the United States of America, on the 3d day of June, in the year of our Lord 1861, upon the high seas, out of the jurisdiction of any particular State, and within the admiralty and maritime jurisdiction of the United States of America, and within the jurisdiction of this Court, in and upon one Thies N. Meyer, then and there being, the said Thies N. Meyer then and there being a citizen of the said United States, and he, the said Thies N. Meyer, then and there being in and on board of a certain American vessel of the United States of America, to wit, a brig called the Joseph, and the said brig then and there being on the high seas as aforesaid, did, piratically, feloniously and violently, make an assault, and him, the said Thies N. Meyer, did, piratically, feloniously and violently, then and there put in bodily fear, and the said brig, the Joseph, of the value of $3,000, the tackle, apparel and furniture of the same, of the value of $500, and 250 hogsheads of sugar, of the value of $100 each hogshead, of the goods, chattels and personal property of the said Thies N. Meyer, from the said Thies N. Meyer, and in his presence, and against his will, did, piratically, feloniously and violently, seize, rob, steal, take and carry away, against the form of the statute of the said United States of America in such case made and provided, and against the peace of the said United States and their dignity.

Sixth Count: And the Jurors aforesaid, upon their oath aforesaid, do further present: That Thomas Harrison Baker, late of the City and County of New York, in the District and Circuit aforesaid, mariner; and John Harleston, late of the same place, mariner; Charles Sidney Passalaigue, late of the same place, mariner; Henry Cashman Howard, late of the same place, mariner; Joseph Cruz del Carno, late of the same place, mariner; Henry Oman, late-of the same place, mariner; Patrick Daly, late of the same place, mariner; William Charles Clark, late of the same place, mariner; Albert Gallatin Ferris, late of the same place, mariner; Richard Palmer, late of the same place, mariner; John Murphy, late of the same place, mariner; Alexander Carter Coid, late of the same place, mariner; and Martin Galvin, late of the same place, mariner, on the 3d day of June, in the year of our Lord 1861, upon the high seas, out of the jurisdiction of any particular State, and within the admiralty and maritime jurisdiction of the said United States of America, and within the jurisdiction of this Court, each then and there being a citizen of the said United States of America, did, on pretense of authority from a person, to wit, one Jefferson Davis, with force and arms, piratically, feloniously and violently set upon, board, break and enter, a certain vessel, to wit, a brig called the Joseph, the same being then and there owned, in whole or in part, by a citizen or citizens of the United States of America, whose name or names are to the Jurors aforesaid unknown, and did, on pretense of authority from a person, to wit, one Jefferson Davis, then and there in and on board of the said brig, the Joseph, in and upon one Thies N. Meyer, then and there being a mariner, and then and there one of the ship's company of the said brig, the Joseph, and then and there master and commander thereof, and in and upon Horace W. Bridges, Albert Nash, William H. Clanning, John J. Merritt, John Quin, and Joseph H. Golden, each then and there being a mariner and one of the ship's company of the said brig, the Joseph, piratically, feloniously and violently make an assault, and them did, on pretense of authority from a person, to wit, one Jefferson Davis, then and there piratically, feloniously and violently, put in personal fear and danger of their lives, and did, on pretense of authority from a person, to wit, one Jefferson Davis, then and there, the brig, the said Joseph, of the value of $3,000, and the tackle, apparel and furniture thereof, of the value of $500, and two hundred and fifty hogsheads of sugar, of the value of $100 each hogshead, of the goods, chattels and personal property of certain persons whose names are to the Jurors aforesaid unknown, the said two hundred and fifty hogsheads of sugar being then and there in and on board of the said brig, and being then and there the lading thereof, and the said brig, the tackle, apparel and furniture thereof and the said two hundred and fifty hogsheads of sugar, being then and there in the care, custody and possession of the said Thies N. Meyer, Horace W. Bridges, Albert Nash, William H. Clanning, John J. Merritt, John Quin and Joseph H. Golden, from the said Thies N. Meyer, Horace W. Bridges, Albert Nash, William H. Clanning, John J. Merritt, John Quin and Joseph H. Golden, and from their said possession, care and custody, and in their presence and against their will, violently, piratically and feloniously, seize, rob, steal, take and carry away, against the form of the statute of the said United States of America in such case made and provided, and against the peace of the said United States and their dignity.

Seventh Count: And the Jurors aforesaid upon their oath aforesaid, do further present: That Thomas Harrison Baker, late of the City and County of New York, in the District and Circuit aforesaid, mariner; and John Harleston, late of the same place, mariner; Charles Sidney Passalaigue, late of the same place, mariner; Henry Cashman Howard, late of the same place, mariner; Joseph Cruz del Carno, late of the same place, mariner; Henry Oman, late of the same place, mariner; Patrick Daly, late of the same place, mariner; William Charles Clark, late of the same place, mariner; Albert Gallatin Ferris, late of the same place, mariner; Richard Palmer, late of the same place, mariner; John Murphy, late of the same place, mariner; Alexander Carter Coid, late of the same place, mariner; and Martin Galvin, late of the same place, mariner, on the third day of June, in the year of our Lord one thousand eight hundred and sixty-one, upon the high seas, out of the jurisdiction of any particular State, and within the admiralty and maritime jurisdiction of the said United States of America, and within the jurisdiction of this Court, each then and there being a citizen of the said United States of America, did, on pretense of authority from a person, to wit, one Jefferson Davis, with force and arms, piratically, feloniously and violently set upon, board, break and enter a certain American vessel, to wit, a brig called the Joseph, the same then and there being owned in part by George H. Cables, John Cables and Stephen Hatch, then citizens of the United States of America, and did, on pretense of authority from a person, to wit, one Jefferson Davis, then and there in and on board of the said brig, the Joseph, in and upon one Thies N. Meyer, then and there being a mariner and one of the ship's company of the said brig, the Joseph, and master and commander thereof, and in and upon divers other persons, each then and there being a mariner, and one of the ship's company of the said brig, the Joseph, whose names are to the Jurors aforesaid unknown, piratically, feloniously and violently make an assault, and them did, on pretense of authority from a person, to wit, one Jefferson Davis, then and there, piratically, feloniously and violently, put in bodily fear and danger of their lives, and did, on pretense of authority from a person, to wit, one Jefferson Davis, then and there, the said brig, the said Joseph, of the value of $3,000, and the tackle, apparel and furniture of the same, of the value of $500, of the goods, chattels and personal property of George H. Cables, John Cables and Stephen Hatch, citizens of the United States of America, and two hundred and fifty hogsheads of sugar, of the value of $100 each hogshead, of the goods, chattels and personal property of one Morales, whose Christian name is to the Jurors aforesaid unknown, the said sugar being then and there in and on board the said brig, the Joseph, and being then and there the lading thereof, and the said brig, and the tackle, apparel and furniture thereof, and the said two hundred and fifty hogsheads of sugar, then and there being in the care, custody and possession of the said Thies N. Meyer and the said divers other persons, mariners as aforesaid, and of the ship's company of the said brig, the Joseph, and whose names are to the Jurors aforesaid unknown, from the said Thies N. Meyer and the said divers other persons, mariners as aforesaid, and of the ship's company of the said brig, the Joseph, whose names are as aforesaid to the Jurors aforesaid unknown, and from their care, custody and possession, and in their presence and against their will, piratically, feloniously, and violently, rob, seize, steal, take and carry away, against the form of the statute of the said United States of America in such case made and provided, and against the peace of the said United States and their dignity.

Eighth Count: And the Jurors aforesaid, upon their oath aforesaid, do further present: That Thomas Harrison Baker, late of the City and County of New York, in the District and Circuit aforesaid, mariner; and John Harleston, late of the same place, mariner; Charles Sidney Passalaigue, late of the same place, mariner; Henry Cashman Howard, late of the same place, mariner; Joseph Cruz del Carno, late of the same place, mariner; Henry Oman, late of the same place, mariner; Patrick Daly, late of the same place, mariner; William Charles Clark, late of the same place, mariner; Albert Gallatin Ferris, late of the same place, mariner; Richard Palmer, late of the same place, mariner; John Murphy, late of the same place, mariner; Alexander Carter Coid, late of the same place, mariner; and Martin Galvin, late of the same place, mariner, on the 3d day of June, in the year of our Lord, 1861, upon the high seas, out of the jurisdiction of any particular State and within the admiralty and maritime jurisdiction of the said United States of America and within the jurisdiction of this Court, each then and there being a citizen of the said United States of America, did, on pretense of authority from a person, to wit, one Jefferson Davis, with force and arms, piratically, feloniously, and violently, set upon, board, break, and enter a certain vessel, to wit, a brig, called the Joseph, then and there being owned by certain persons, citizens of the United States of America, to wit, George H. Cables, John Cables, and Stephen Hatch, of Rockland, in the State of Maine, and in and upon certain divers persons whose names are to the Jurors aforesaid unknown, the said last-mentioned persons each being then and there a mariner, and of the ship's company of the said brig called the Joseph, and then and there being in and on board of the said brig, the Joseph, did, on pretense of authority from a person, to wit, one Jefferson Davis, then and there, piratically, feloniously, and violently, make an assault, and them did, on pretense of authority from a person, to wit, one Jefferson Davis, then and there, piratically, feloniously, and violently, put in bodily fear, and the said brig, the Joseph, of the value of $3,000, and the apparel, tackle, and furniture thereof, of the value of $500, of the goods, chattels, and personal property of the said George H. Cables, John Cables, and Stephen Hatch, and 250 hogsheads of sugar, of the value of $100 each hogshead, of the goods, chattels, and personal property of one Thies N. Meyer, from the said divers persons, mariners as aforesaid, whose names are to the Jurors aforesaid unknown, in their presence, then and there, and against their will, did, on pretense of authority from a person, to wit, one Jefferson Davis, then and there, piratically, feloniously, and violently, seize, rob, steal, take and carry away, against the form of the statute of the said United States of America in such case made and provided, and against the peace of the said United States and their dignity.

Ninth Count: And the Jurors aforesaid, upon their oath aforesaid, do further present: That Thomas Harrison Baker, late of the City and County of New York, in the District and Circuit aforesaid, mariner; and John Harleston, late of the same place, mariner; Charles Sidney Passalaigue, late of the same place, mariner; Henry Cashman Howard, late of the same place, mariner; Joseph Cruz del Carno, late of the same place, mariner; Henry Oman, late of the same place, mariner; Patrick Daly, late of the same place, mariner; William Charles Clark, late of the same place, mariner; Albert Gallatin Ferris, late of the same place, mariner; Richard Palmer, late of the same place, mariner; John Murphy, late of the same place, mariner; Alexander Carter Coid, late of the same place, mariner; and Martin Galvin, late of the same place, mariner, on the 3d day of June, in the year of our Lord 1861, upon the high seas, out of the jurisdiction of any particular State, and within the admiralty and maritime jurisdiction of the said United States of America, and within the jurisdiction of this Court, each then and there being a citizen of the said United States of America, did, on pretense of authority from a person, to wit, one Jefferson Davis, with force and arms, piratically, feloniously, and violently set upon, board, break, and enter a certain vessel then and there being, to wit, a brig called the Joseph, and in and upon one Thies N. Meyer, then and there being in and on board of the said brig, and being a mariner and master and commander of the said brig, and the said Thies N. Meyer then and there being a citizen of the United States of America, did, on pretense of authority from a person, to wit, one Jefferson Davis, then and there, piratically, feloniously, and violently, make an assault, and him, the said Thies N. Meyer, did, on pretense of authority from a person, to wit, one Jefferson Davis, then and there, piratically, feloniously, and violently, put in great bodily fear, and the said brig, the Joseph, of the value of $3,000, and the tackle, apparel, and furniture thereof, of the value of $500, and 250 hogsheads of sugar, of the value of $100 each hogshead, the same then and there being of the lading of the said brig, of the goods, chattels, and personal property of the said Thies N. Meyer, in his presence and against his will, did, on pretense of authority from a person, to wit, one Jefferson Davis, violently, feloniously, and piratically, rob, steal, seize, take, and carry away, against the form of the statute of the said United States of America in such case made and provided, and against the peace of the said United States and their dignity.

Tenth Count: And the Jurors aforesaid, upon their oath aforesaid, do further present: That Thomas Harrison Baker, late of the City and County of New York, in the District and Circuit aforesaid, mariner; and John Harleston, late of the same place, mariner; Charles Sidney Passalaigue, late of the same place, mariner; Henry Cashman Howard, late of the same place, mariner; Joseph Cruz del Carno, late of the same place, mariner; Henry Oman, late of the same place, mariner; Patrick Daly, late of the same place, mariner; William Charles Clark, late of the same place, mariner; Albert Gallatin Ferris, late of the same place, mariner; Richard Palmer, late of the same place, mariner; John Murphy, late of the same place, mariner; Alexander Carter Coid, late of the same place, mariner; and Martin Galvin, late of the same place, mariner, each being a citizen of the United States of America, on the 3d day of June, in the year of our Lord 1861, upon the high seas, out of the jurisdiction of any particular State, and within the admiralty and maritime jurisdiction of the United States of America, and within the jurisdiction of this Court, in and upon one Thies N. Meyer, then and there being, the said Thies N. Meyer, then and there being a citizen of the said United States, and he, the said Thies N. Meyer, then and there being in and on board of a certain American vessel, of the United States of America, to wit, a brig called the Joseph, and the said brig then and there being on the high seas as aforesaid, did, on pretense of authority from a person, to wit, one Jefferson Davis, piratically, feloniously and violently, make an assault, and him, the said Thies N. Meyer, did, on pretense of authority from a person, to wit, one Jefferson Davis, piratically, feloniously and violently, then and there put in bodily fear, and the said brig, the Joseph, of the value of $3,000, the tackle, apparel and furniture of the same, of the value of $500, and 250 hogsheads of sugar, of the value of $100 each hogshead, of the goods, chattels and personal property of the said Thies N. Meyer, from the said Thies N. Meyer, and in his presence, and against his will, did, on pretense of authority from a person, to wit, one Jefferson Davis, piratically, feloniously and violently seize, rob, steal, take and carry away, against the form of the statute of the said United States of America in such case made and provided, and against the peace of the said United States and their dignity.

And the Jurors aforesaid, on their oath aforesaid, do further present: That the Southern District of New York, in the Second Circuit, is the district and circuit in which the said Thomas Harrison Baker, John Harleston, Charles Sidney Passalaigue, Henry Cashman Howard, Joseph Cruz del Carno, Henry Oman, Patrick Daly, William Charles Clark, Albert Gallatin Ferris, Richard Palmer, John Murphy, Alexander Carter Coid, and Martin Galvin, were brought and in which they were found, and is the district and circuit where they were apprehended, and into which they were first brought, for the said offense.

E. DELAFIELD SMITH,

Attorney of the United States for the Southern District of New York.

On Wednesday, the seventeenth of July, the prisoners were brought into Court to plead to the Indictment, when Mr. E. Delafield Smith, United States District Attorney, said:

If the Court please,—In the case of Baker and others, the prisoners now at the bar, indicted for robbery on the high seas, I move that they be arraigned. I may here remark, that I have caused the service of a notice of this motion upon all the counsel known to me as engaged in the case; and if any gentleman has not received a notification, the omission proceeds from the fact that his name has not been given to the District Attorney. I understand that Mr. Larocque is counsel for one or two of the prisoners, and that he is in the building.

Mr. Larocque here entered the Court.

The District Attorney: I would now renew my motion that the prisoners at the bar be arraigned under the indictment presented yesterday.

Mr. Larocque: If your honor please, I represent but one of the prisoners. There are other counsel, I believe, who represent them generally. I appear for Mr. Harleston (the mate), and I will now state what I have to say with respect to the motion made by the District Attorney. Mr. Daniel Lord is associated with me, and I believe he is now engaged in the adjoining Court, but will soon be here. The Court will perceive that the learned District Attorney has very properly taken a considerable period of time for the framing of this indictment. It is some weeks now since the warrant of arrest was issued, and the course which he has taken certainly deserves great commendation; for the indictment in this case, more than any other that has ever been found in this Court, required greater care in its preparation, and it is one which will certainly present more important questions than probably any that has ever been tried in this Court. The indictment was only presented yesterday, and, as far as I am concerned, I was only informed of its presentation late yesterday afternoon. Of course, I had no opportunity to examine it. I believe it is quite a voluminous document, and contains a great many counts; and before the prisoners at the bar would be prepared to plead to the indictment, it will certainly be necessary that their counsel should examine it with care, and determine what course to take with regard to it; and then, probably, there may be some application that it will be necessary to make to the Court before the prisoners will be prepared to plead. I therefore desire a postponement for that purpose, until we can have time to examine this indictment.

The District Attorney: I doubt not it is proper that time should be given to examine this indictment, and to adopt such course with respect to it as gentlemen standing in the sacred relation of counsel may deem it their duty to take. I should be very glad, however, if that time could be, with due regard to the convenience of counsel, so near as that the pleas may be recorded and the trial set down for some day before the Court adjourns. I shall be ready, if your honor please, on behalf of the Government, to try the prisoners on any day. I shall be prepared to try them within two or three days; but, certainly, it is right that counsel should have time to examine the indictment, as suggested. I hope only that such examination may be made speedily, as I understand your honor will adjourn the Court at an early day.

Mr. Larocque: It would be utterly impossible for this case to be tried this term. In conversation with the counsel for the Government, a few days ago, the gentleman himself declared that the case could not be tried this term of the Court, and it would be impossible, your honor, for us to be ready for trial during this term. It will be necessary for us to obtain testimony from abroad, out of the limits of this State, and that cannot be procured in time to try the case this term. Certainly, no interest of public justice can suffer by a delay of the trial of this case; and I think it is eminently proper, and I am sure the Court will agree with me, that a proceeding of this importance should be conducted with deliberation, and that ample time should be given to the prisoners to prepare their defence. I had understood, moreover, that some intimation had been made by your honor's associate on the bench (Judge Nelson) that he would attend upon the trial of this case. I am told that Judge Nelson met with an accident shortly after his return home from his attendance upon his judicial duties, by being run away with by a horse, and that he is so lame that he is unable to move at present; and I am very credibly assured that Judge Nelson has expressed his conviction that it was his duty to attend and to sit on the trial of this case. Very important questions of law will be presented, and your honor is aware that in a criminal case in this Court there is no writ of error. The prisoner has the right to a review of any decision that might be made in this Court, in case a difference of opinion should arise between the Judges who preside. And certainly, in a case of such great importance as this is, where the lives of so many prisoners are at stake, it is of the utmost consequence that there should be a full Court present when the prisoners are tried. So far with respect to the trial of the case. Now, your honor is also aware that, by the statutes of the United States, the prisoners have a right to a certain period of time before any movement can be made with a view to trial. We certainly cannot be ready to plead to this indictment in less than a week.

The District Attorney: The Court will permit a single remark concerning the conversation to which my learned friend has alluded. I never intended to say decidedly that the trial could not take place during the present term. I did, however, at one time, express an opinion that, as the term was nearly ended, and as the summer was upon us, probably I should not succeed in bringing the case on for trial until the autumn. As, however, the indictment has been promptly found, delay till fall is, I trust, unnecessary. Events continually taking place upon the ocean seem to render it important that the trial should take place at an early day. With these suggestions, I leave the matter entirely with the Court, where, of course, it ultimately belongs.

Mr. Sullivan: May it please the Court, I appear for Captain Baker, the first prisoner named in the indictment.

Judge Shipman asked who appeared for the other prisoners. He wished to know if all the prisoners were supplied with counsel; if not, he would assign them counsel.

Mr. Sullivan said he did not desire a week's postponement, as he understood his honor had intimated that the Court would adjourn on Wednesday. As to the time of trial, he was authorized and instructed specially to say for Captain Baker that he would ask for no delay other than what was absolutely necessary for his counsel to prepare. He (Mr. Sullivan) hoped that the Court would continue its session specially to hear the case, or at least to try some portion of the defendants. He made that remark on the presumption that the defendants would ask to be tried separately.

Mr. Mayer said he appeared for one of the seamen, Wm. C. Clark; and he concurred in Mr. Larocque's remarks.

Judge Shipman: It is hardly necessary now to discuss when the case will be set down for trial. The motion now before the Court is for the arraignment of the prisoners, and counsel asks for time to plead. I should like to know the names of the counsel who appear for the prisoners.

Mr. Larocque said he appeared, in conjunction with Mr. Lord, for Mr. Harleston.

Mr. Ridgway appeared for the sailors Carno, Oman, Daly, Palmer, Murphy, Galvin, and Coid; and he, also, concurred in the motion for time to plead.

Mr. Sandford appeared for Albert G. Ferris, and desired that the trial should be brought on as speedily as possible.

The District Attorney: I have a suggestion to make as to the time of pleading. With regard to the indictment, when counsel come to examine it, I think they will find, that although the counts are numerous, yet, after all, the indictment is simple. I would suggest that counsel should examine the record between this and to-morrow morning, and then the prisoners could undoubtedly be arraigned without objection.

Mr. Daniel Lord: I perceive that the prisoners are brought here to plead in chains. If that is to be repeated each time they are brought here, I would wish to have the time named when they are to plead.

Mr. James T. Brady said that he believed the engagement under which he acted, in connection with some other gentlemen, covered the cases of all the accused who had not already been represented before his honor by distinct counsel.

Judge Shipman: There is no necessity, then, for the Court to assign counsel?

Mr. Brady: In response to your honor, allow me to say that I represent Captain Baker more particularly. From the very necessity of this case a number of counsel have been employed, and more, probably, than will take part, as your honor is well aware, in the trial. I have had the pleasure of conferring with Mr. Lord only once since this case arose; and as he is in every respect the senior of the gentlemen who are employed in the case, we should like an opportunity for conference. It is highly important to determine what species of plea should be put into the indictment; and while, as I remarked, all the counsel may not take a prominent part in the argument or the trial, yet their judgments ought to be considered by each other, and some decisive course concluded upon. There certainly can be no great occasion for hurry, as these men are closely confined, and certainly are under the closest kind of restraint, from what I see around me (glancing at the prisoners, handcuffed). I don't suppose there is any apprehension, even if the prison doors were opened, that they would be likely to escape, from the state of feeling which at present exists in this city and this section of the country. We only wish for time that is necessary to determine what kind of an answer to make to this indictment; and after that we will proceed, I venture to say, with the utmost diligence, to have this case prepared for trial, or it may probably turn out that there will be no necessity for any trial. That may occur to a legal mind, or it may not.

Judge Shipman: Well, let the prisoners be remanded until Tuesday morning next.

The Court then adjourned.

On Tuesday, the twenty-third of July, the prisoners were again brought into Court, and were placed within the bar, at the south end of the room.

E. Delafield Smith, Esq., District Attorney, moved that the prisoners be arraigned.

Algernon S. Sullivan, Esq., of counsel for the prisoners, stated that all the prisoners were represented by counsel, and that they were acquainted with the charges contained in the indictment.

The prisoners were ordered to stand up; and the Clerk of the Court called T. Harrison Baker, saying: "You have been indicted for robbery on the high seas; how do you plead—guilty, or not guilty?" To which Mr. Baker replied, "Not guilty."

The District Attorney suggested that the indictment be read to the prisoners, unless each one of them expressly waived the reading. He would prefer to have it read, however.

The prisoners' counsel respectively submitted that it was of no consequence. The accused knew the contents of it.

Judge Shipman remarked that the reading of the indictment would consume some time; but the District Attorney said that questions had been raised on this point, and, to insure regularity, he desired to have the indictment read; whereupon the Court ordered the Clerk to read the instrument.

At the conclusion of the reading, the prisoners severally pleaded, each for himself, "not guilty."

District Attorney Smith: If the Court please, the facts in this case are exceedingly simple. The evidence in reference to them—as well such as is required by the prosecution, as that which we may suppose to be desired by the defendants—is within a narrow range and easily attainable. I have examined the testimony with care. There can be no doubt, upon the evidence in the case, that the prisoners are guilty, and that as a matter of law, as well as a matter of fact, they ought to be convicted. It is impossible to close our eyes to the facts relating to this case, as they bear upon what is daily taking place upon the high seas. The merchant marine of the country is subjected to piratical seizure from day to day. Murder is the natural child of robbery, and we may daily expect to hear of bloodshed on the ocean, in attempting the execution of the purpose conceived by so many of our countrymen, to deal a death-blow to American commerce.

It seems to me, that the ends of public justice require that I should urge upon your Honor the propriety and necessity of an early trial of this issue. If, peradventure, the prisoners are innocent, it can work no injury to them; if guilty, they ought to be convicted, and in my judgment, the law ought to take its course to the end, in order that an example may be set to those who are pursuing the species of marauding, of which I think the testimony will show the prisoners to have been guilty.

I respectfully urge, that the trial be set down for Wednesday, July 31st, a week from to-morrow. I may add that I shall be happy to render to the counsel for the prisoners every facility within my power for the presentation of all the facts. The plea of authority, which we can anticipate, is set forth in the indictment, and a copy of the letter of marque has been furnished to counsel for the defence. I can see no valid reason for postponing the trial; none, certainly, in the present state of the country.

Mr. Larocque said, it seemed to him the idea might have occurred to the District Attorney, that these men had not yet been convicted. The law presumed every man to be innocent until he was proved guilty. The counsel should not presume these men to be guilty until they were tried. There were questions of international law involved in this case which would be entitled to consideration. The counsel for the United States would learn that he had misunderstood the meaning of the statute under which these men were indicted. The prisoners' counsel were not ready. They required documentary evidence and witnesses to be procured from a distance. They could not be ready to go on at this term of the Court. He submitted that a cause of this magnitude should not be disposed of so hurriedly. What had the prisoners to do with others on the ocean? Did the counsel for the Government desire to hurry them to trial unprepared for the purpose of striking terror to those on the ocean? He could not believe it to be so.

Mr. Sullivan said the prisoners would not ask any further delay after procuring their testimony. Some of the evidence could not be obtained this side of Charleston, and it would be impossible to procure it under three or four weeks. The case involved the legal status between the United States and the seceded States. He opposed setting down the case for trial on next Wednesday.

Mr. Davega, of counsel for the prisoners, also opposed the motion, reiterating the statements in relation to the testimony to be procured.

Mr. Mayer called the attention of the District Attorney to the fifth count of the indictment, describing the prisoners as citizens of the United States. His client was a citizen of Hamburg, and he would not be ready to try the case in several weeks.

Mr. Daniel Lord, in behalf of Mr. Harleston, said this case involved the lives of thirteen men. If the District Attorney supposed the law of the case was simple, he took a very different view of it from what that gentleman did.

The District Attorney, in reply, said that in respect to the intimation of a necessity to refer to Charleston, it was a matter of notoriety that the prisoners were in constant communication with that city. Counsel were bound to disclose the nature of testimony required, that the Court might judge of the sufficiency of the reasons for a postponement. Much of it might be to facts which the prosecution would admit; as, in reference to the question of citizenship, there would be no difficulty in conceding the fact that certain of the prisoners were not citizens of the United States. He was not tenacious as to the very day named. Without throwing the case over to the fall term, the trial could be so fixed as to afford counsel ample opportunity to collect their proofs and examine the questions of law involved. All the difficulties suggested to impede the trial were obstructions created by these defendants themselves and their confederates, and it was in the nature of taking advantage of their own wrong to seek a postponement because of the existence of a state of things for which they were responsible. It had been said, thirteen lives are at issue. He would say that many more lives were at stake—lives, in his judgment, of far greater value—the lives of innocent officers and sailors in the merchant marine. The facts are simple. The law appears to be certain. There can be no defence here, the nature of which is not visible. The only justification for the piracy would seem to be the treason. If the prisoners ought justly to be convicted, such conviction should be speedy, in order to deter their confederates from expeditions partaking of the character of both treason and piracy.

Judge Shipman said, that he had no doubt in relation to the disposition to be made of this motion. The Court could not have several sets of rules to apply at will to the same class of cases; and even if the Court had power to adopt a different rule in some criminal cases from that fixed in others of the same grade, it would be very questionable whether such power ought to be exercised. The law had made no distinction in regard to this class of criminal offences. Upon the statute book of the United States are various acts of Congress defining atrocious crimes punishable capitally; and among these, is the crime of piracy, or robbery upon the high seas, for which the defendants are indicted. In all cases where parties are charged with criminal offences, and especially with capital crimes, it is customary to give the defendants a reasonable time for the preparation of their defence; and the Court must always assume and act, so far as the technical proceedings are concerned, upon the presumption of innocence which the law always interposes. The Court cannot take into consideration many of the suggestions made by counsel for the Government or for the defence; and in disposing of this motion, I wish it to be distinctly understood that I do so just as I should in any other case of alleged robbery or piracy upon the high seas, where, if the defendants be convicted, they must suffer, according to the statute, the penalty of death. I cannot look at other considerations. I cannot anticipate other defences. In the administration of the criminal law, although the principles are usually very simple, and although, for aught I know, they may be as simple when applied to this case as to any other, yet in the application of those principles, there is often ground for difference of opinion. Courts that have been long regarded as entitled to very great respect for learning, discrimination, and experience, frequently differ as to the application of principles of law to particular cases. In view of this fact, in capital cases, it has been a rule usually adhered to in the United States Circuit Courts (which are so constituted by the Act of Congress that two Judges are authorized to sit) to have, if applied for, a full Court, so that the defendant might have the benefit, if I may so speak, of the chance of a division of opinion. For such division of opinion constitutes the only ground upon which the case can be removed to a higher Court for revision. In this view of the case, and upon the strenuous application of the defendants for the presence of a full Court, I certainly cannot deny the application consistently with my judgment of what is right and proper; and I say this with a full recognition of the importance of this trial. I might add, it may be desirable for the Government, in the event of a certain determination of this case, that in the preliminary proceedings—the time fixed for trial and the constitution of the Court—there should be nothing to weaken the full and appropriate effect of such determination.

After some observations in regard to two exceptional cases—that of Gordon, on his first trial for engaging in the slave trade, [2] and the case of the parties convicted of murder on board the ship "Gen. Parkhill," both cases having been tried before a District Judge sitting alone, the counsel for the defendant in each case making no request to have a full Court—Judge Shipman went on to say, that in consequence of Judge Nelson's engagements in another District, in September, and in view of his confinement with the effects of a fall from his carriage, which would prevent his sitting in August, he (Judge Nelson) could not probably hear this case until the October term. He therefore ordered the trial to be set down for the third Monday of October, at eleven o'clock.

The prisoners were remanded to the custody of the Marshal, and their manacles, which had been removed while they were in Court, being replaced, they were taken to the Tombs.

[1] At the request of the United States District Attorney, the publishers state that the Indictment was mainly the work of Mr. John Sedgwick, of the New York bar.

[2] The second trial of Gordon, resulting in a conviction, took place before a full Court, Mr. Justice Nelson sitting with Judge Shipman.

TRIAL

OF THE

OFFICERS AND CREW OF THE SCHOONER SAVANNAH, ON THE CHARGE OF PIRACY.

UNITED STATES CIRCUIT COURT,

SOUTHERN DISTRICT OF NEW YORK.

Wednesday, Oct. 23, 1861.

The United States

against

Thomas Harrison Baker,
Charles Sydney Passalaigue,
John Harleston,
Joseph Cruse del Carno,
Patrick Daly,
John Murphy,
Martin Galvin,
Henry Cashman Howard,
Henry Oman,
William Charles Clarke,
Richard Palmer,
Alexander Carter Coid,
Albert G. Ferris.

Hon. Judges NELSON and SHIPMAN Presiding.

Counsel for the United States:

E. DELAFIELD SMITH, WM. M. EVARTS, SAML. BLATCHFORD, ETHAN ALLEN.

Counsel for the Defendants:

BOWDOIN, LAROCQUES & BARLOW, DANIEL LORD, JAMES T. BRADY, ALGERNON S. SULLIVAN, JOSEPH H. DUKES, ISAAC DAVEGA, MAURICE MAYER.

E. Delafield Smith, Esq., United States District Attorney, stated that he desired to use Albert Gallatin Ferris, one of the prisoners indicted, as a witness, and would therefore enter a nolle prosequi in regard to him.

The Court: Are the prisoners to be tried jointly?

Mr. Lord: I believe so, sir.

The Clerk called over the names of the prisoners, directing them to challenge the Jurors as called.

Judge Nelson: Those of the prisoners who desire to do so may take seats by the side of their counsel.

The Clerk proceeded to call the panel.

Edward Werner called, and challenged for principal cause by Mr. Smith:

Q. Have you any conscientious scruples that would prevent your finding a verdict of guilty, in a capital case, where the evidence was sufficient to convince you that the prisoner was guilty?

A. No, sir.

By Mr. Larocque, for the prisoners:

Q. Have you read the account in the newspapers of the capture of the Savannah privateers?

A. Yes, sir.

Q. Have you ever formed or expressed any opinion as to the guilt or innocence of these prisoners?

A. No, sir.

Q. Have you ever formed or expressed any opinion as to whether they were guilty of piracy, if the facts were as alleged?

A. No, sir.

Challenge withdrawn. Juror sworn.

William H. Marshall called, and challenged for principal cause:

Q. Have you any conscientious scruples that would prevent your finding a verdict of guilty in a capital case, where the evidence was sufficient to convince you that the prisoner was guilty?

A. No, sir.

By Mr. Larocque, for the prisoners:

Q. You read the account of the privateer Savannah?

A. I believe I have.

Q. Have you formed or expressed any opinion as to the guilt or innocence of the prisoners?

A. No, sir.

Q. Have you ever formed or expressed any opinion as to whether they were guilty of piracy, if the facts were as alleged?

A. I have not formed any opinion as to these men.

Q. As to the general question, whether cruising under a commission from the Confederate States is piracy?

A. I do not think I have formed any opinion, or expressed one.

Challenge withdrawn. Juror sworn.

William Powell called, and challenged for principal cause by Mr. Smith:

Q. Have you any conscientious scruples that would prevent your finding a verdict of guilty, in a capital case, where the evidence was sufficient to convince you that the prisoner was guilty?

A. No, sir.

By Mr. Larocque, for the prisoners:

Q. Have you formed or expressed any opinion as to the guilt or innocence of these prisoners?

A. I have not formed any opinion that would prevent me from giving a verdict according to the facts of the case. I have read the account, and I presume have formed such an opinion as most men do from reading an account, if the facts be so and so.

Q. Have you formed any opinion as to whether cruising, under a commission from the Confederate States, is piracy?

A. Yes, sir, I have.

Mr. Evarts objected that this was purely a question of law, and one jurors should not be inquired of.

The Court sustained the objection.

Q. Did you believe the accounts which you read of this transaction?

A. Well, it is difficult to say. There is so much published in the papers now-a-days that is not correct, that I am hardly prepared to say I believe anything I see, without palpable evidence. I believe the fact of the capture of the Savannah.

Q. Did you read what had been done by the Savannah before she was captured?

A. Well, I formed no opinion with regard to that.

Q. Did you form an opinion of the character of the act with which the defendants were charged?

A. No, sir.

Q. Do you entertain the settled opinion that acting under a commission from President Davis, or the Confederate Government, constitutes piracy?

Mr. Evarts objected that this was a question of law.

The Court: I doubt whether that is a question that would be proper.

Mr. Larocque: This is a very peculiar case, as your honor is well aware. It is a case of first impression in the courts of the United States. It is a case in which, probably, there will be very little difference between the prosecution and the defendants as to the mere facts which are charged in this indictment, and it is a case in which jurors who present themselves to be sworn, if they have any bias or prejudice whatever, have it rather in reference to the character of the acts than as to the acts themselves having been committed or not having been committed. Now, we all know, if your honor please, that in all criminal trials a great deal of discussion has always taken place with reference to the jurisdiction of the jury over questions of law. The Courts have held that they are bound to receive their instructions on the law from the Court; but, at the same time, if they do not act in pursuance of the instructions which they receive, it is a matter between them and their own consciences, and it is a matter which no form of review in these Courts will reach. Now, one of my associates has handed to me an authority upon this subject from 1st Baldwin's Reports—that on the trial of Handy, in 1832, for treason, Judge Grier held that a juror who had formed an opinion that the riots in question did not amount to treason, was incompetent; and, in the case of the United States v. Wilson, it was held that a juror was incompetent who stated, on being challenged, that he had read the newspaper account of the facts at the time, and had come to his own conclusion, and had made up his mind that the offence was treason, although he had not expressed that opinion, nor formed or expressed an opinion that the defendant was or was not engaged in the offence. It seems to me that these authorities cover precisely the case before the Court, the only difference being that this is a charge of piracy, and the other a charge of treason.

Judge Nelson: The only difference is that there the question was put to the juror as to the crime, after it appeared he had read the account of the transaction, which involved both the law and the facts—involved the whole case; but as we understand your question, you put a pure question of law, which we do not think belongs to the juror.

Mr. Larocque: I understand your honor to rule the question is not admissible.

Judge Nelson: Yes.

Defendants' Counsel took exception.

Mr. Larocque: Permit me to put the question in two forms.

Q. Have you formed or expressed the opinion that the acts charged, if proved, constitute the offence of piracy?

The Court: That question is admissible.

A. I have not expressed the opinion, and I can hardly say I have formed an opinion, because I am not sufficiently informed on the law to do so.

Challenge withdrawn. Juror sworn.

The Court: Then the other form of the question is withdrawn?

Mr. Larocque: Yes, sir; we are satisfied with the form of the question the Court allows us to put.

James Cassidy called. Challenged for principal cause, by Mr. Larocque, for the defendants.

Q. Did you read the account of the capture of the Savannah privateer?

A. I believe I did.

Q. Have you formed or expressed any opinion upon the guilt or innocence of these prisoners?

A. I believe not, sir. I may have made some mention of it at the time of reading the transaction, but not to express any opinion.

Q. Have you formed or expressed an opinion whether the facts, if proved, constitute the offence of piracy?

A. No, sir.

By Mr. Smith:

Q. Have you any conscientious scruples on the subject of capital punishment that would interfere with your rendering a verdict of guilty, if the evidence proved the prisoners to be guilty?

A. No, sir.

Challenge withdrawn. Juror sworn.

Joel W. Poor called. Challenged for principal cause by Mr. Smith:

Q. Have you any opinion on the subject of capital punishment which would prevent your rendering a verdict of guilty, if the evidence was such as to satisfy you?

A. No, sir.

By Mr. Larocque, for the prisoners:

Q. Have you read the account of the capture of the Savannah privateers?

A. I have.

Q. Have you formed or expressed any opinion as to the guilt or innocence of the prisoners?

A. I think not, sir.

Q. Have you formed or expressed any opinion whether the facts charged, if proved, constitute the offence of piracy?

A. I have not.

Q. Have you never conversed on this subject?

A. I do not think I have.

Q. Have you no recollection of having conversed upon it at all?

A. I may have talked about it something at the time, but I do not recollect.

Q. Are you a stockholder, or connected with any marine insurance company?

A. No, sir.

Q. Have you been engaged in Northern trade?

A. No, sir.

Challenged peremptorily, by prisoners.

Thomas Dugan called. Challenged for principal cause, by Mr. Smith:

Q. Have you any conscientious scruples that would interfere with your rendering a verdict of guilty, if you deemed the prisoners guilty upon the evidence?

A. I have strong conscientious scruples.

Mr. Smith asked that the juror stand aside.

Defendants' Counsel objected to the question, as not proper in form. Objection sustained.

Q. In a capital case, where the evidence is sufficient to satisfy your mind of the prisoner's guilt, have you any conscientious scruples that would prevent your finding a verdict of guilty?

A. If I may explain, I would endeavor to find a verdict; but I believe my sympathy would control my judgment to that extent that I would not be able to do my duty between the people and the prisoner. I have been on a jury before, and I doubt that my judgment would be controlled by my sympathy.

Mr. Larocque: The witness has not said his sympathies would be of that strength that would prevent his finding a verdict of guilty, if the evidence was satisfactory. A juror that has doubts of himself is the most honest and reliable, according to all experience in criminal trials.

The Court: Examine him on that point.

By Mr. Larocque:

Q. Suppose that upon this trial the facts charged in this indictment were proved by clear and satisfactory evidence, and the Court should instruct you, upon that evidence, that those facts constitute the offence of piracy, would your conscientious scruples be so strong as to prevent your finding a verdict of guilty in such a case as that?

A. There must be not a shadow of doubt. It must be strong and conclusive in my mind before a verdict is rendered.

Q. But where there was strong, conclusive evidence, you would render a verdict of guilty?

A. Yes, sir.

Mr. Evarts: It is pretty apparent that the juror does not regard himself as in a position to deal impartially with this question, which involves human life. The intention of this cause of challenge is, that the juror should be in a position to yield to the evidence that just assent which its character is entitled to call for, unimpeded by his repugnance to the result when fatal to human life. Still, if your honor should not think that upon this ground he ought to be excluded absolutely, certainly it would be consistent with the course of practice, and with the just feeling of the juror, that he should stand aside until the panel be made up.

Mr. Brady: That practice I understand not to prevail any longer, since it has been provided that the empanneling of jurors in the United States Courts shall be the same as in the State Courts, and we do not consent to any such principle as the gentleman proposes. Your honor has decided that a juror, to disqualify him from serving in a capital case, must say that his conscientious scruples are of such a character that, though the evidence be clear and conclusive under the law, as stated by the Court, they would prevent his doing his duty and giving a verdict of guilty. To my mind, nothing can be more clear and satisfactory than the statement of the juror himself, which exhibits a state of mind that should be possessed by every juror; that is, that he must be satisfied beyond all reasonable doubt of the guilt of the accused before rendering a verdict of guilty; and when be speaks of his sympathy on behalf of human life, it is only that sympathy which the law recognizes where it gives the prisoner the benefit of every doubt. It is true he does use the expression that there must not be the shadow of a doubt; but when the Court comes to expound the law, he will be instructed that it must be a reasonable doubt. I do not see anything against the juror on the ground of conscientious scruples. Your honor knows that the prosecution have no peremptory challenge in cases of piracy or treason, and the old practice of setting aside jurors until the panel is exhausted, and then, if not able to make up twelve without the rejected jurors, requiring their acceptance, has passed. That is decided in the case of Shackleford, in 18 Howard's Reports.

The Court (to the Juror): We do not exactly comprehend the views you entertain upon this question; therefore we desire, for our own satisfaction, to put some questions to you, to ascertain, if we can, the state of your mind and opinions upon these questions, and see whether you are a competent juryman or not in a capital case. It is a very high duty, and a common duty, devolving upon every respectable citizen. The question is this—and we desire that there may be no delusion or misapprehension on your mind in respect to it—in a capital case, if the proof on behalf of the Government should be such as to satisfy your mind that the prisoner was guilty of the capital offence, whether or not you have any conscientious scruples as respects capital punishment, that would prevent your rendering a verdict of guilty?

A. In answer to that I would say that this is what troubles me: I want to do my duty; I want to render a verdict fairly and squarely as between the prisoner and the people; but I have this to contend with—I have read that people have been convicted upon the clearest testimony, and afterwards found to be innocent; and before I would have such feelings I would as soon go to the scaffold as send a person there who was not guilty. Therefore my sympathy is so strong that I am afraid to trust myself. I did serve on a former occasion, and I do not know that even then I did my duty.

Q. What do you mean by being afraid to trust yourself? Is it a conscientious feeling and opinion against the penalty of capital punishment?

A. Yes, sir, it is. I have a great abhorrence of it, if I may so express myself. Yet I should like to render a verdict, and do what is right; but I believe my feelings are too great to trust myself.

The Court: We think we are bound to set the juror aside.

Mr. Larocque: Permit me to put one question.

Q. It strikes me that you are a little at fault as to what the purport of this question is. It is not whether you have an abhorrence of convicting a prisoner of a capital offence. The question is, whether you have such conscientious scruples against capital punishment as would prevent your finding the prisoner guilty, if the facts were proved, and the Court instructed you that those facts constituted the offence?

A. I answered before. It places me in rather a peculiar position. As I said, I want it understood distinctly, I desire to do my duty; but there is a struggle between that and my sympathy, and I am afraid to trust myself.

Q. But you can draw a distinction between your sympathy and any conscientious scruples against the punishment of death, can you not?

A. Well, sir, where it comes to the point——

Q. Allow me to put the question in another way: If you are entirely satisfied, upon the evidence and instructions of the Court, that the prisoner was guilty, your conscience would not trouble you in finding him guilty?

A. Well, sir, there would be this: I would feel that persons, under the strongest kind of testimony, have been found guilty, wrongfully, and it would operate on me—the fear that I had judged wrong on the facts, and committed murder. That feeling is very strong.

Q. If the evidence satisfied you that the prisoner was guilty, would your conscience prevent your saying so?

A. It would not now. It might in the jury-room. When it comes to the point, and I feel that I hold the life of a human being, it is pretty hard to know what I would do then.

Q. Your conscience would only trouble you if you doubted that your judgment was right?

A. Yes, sir.

Mr. Larocque: I submit that the juror is competent.

Juror: You must take your chances if you take me. I still think I am not fit to sit on a jury to represent the people.

The Court: I think we must take the opinion of the juror as against himself.

Set aside. [Defendants took exception.]

John Fife called, and challenged for principal cause:

Q. In a capital case, where the evidence is sufficient to convince you of the guilt of the prisoner, have you any conscientious scruples that would prevent your finding a verdict of guilty?

A. No, sir.

By Mr. Larocque, for the prisoners:

Q. Did you read the account of the capture of the privateer Savannah?

A. I did.

Q. Have you formed or expressed an opinion as to the guilt or innocence of the prisoners?

A. I believe not, sir.

Q. Have you formed or expressed an opinion whether the facts charged, if proved, constitute the offence of piracy?

A. I have not, sir.

Q. You think you have no bias or prejudice in this case?

A. No, sir.

Challenge withdrawn. Juror sworn.

Thomas Costello called. Challenged for principal cause.

By Mr. Smith:

Q. In a capital case, where the evidence is sufficient to convince you of the guilt of the prisoner, have you any conscientious scruples that would prevent your finding a verdict of guilty?

A. No, sir.

By Mr. Larocque, for the prisoners:

Q. You know that this case is an indictment for piracy against the prisoners. Have you formed or expressed any opinion upon their guilt or innocence?

A. No, sir.

Q. Have you formed or expressed any opinion whether the facts charged against them, if proved, constitute the offence of piracy?

A. I have not, sir.

Challenge withdrawn. Juror sworn.

Tuganhold Kron called. Challenged for principal cause.

By Mr. Smith:

Q. In a capital case, where the evidence was sufficient to convince you of the guilt of the prisoner, have you any conscientious scruples that would prevent your finding a verdict of guilty?

A. Yes, sir. (Question repeated.)

A. No, sir.

Q. Do you readily understand English?

A. Pretty well.

Q. You did not understand me when I asked the question the first time?

A. No, sir.

Q. Do you understand English well?

A. Yes, pretty well. There may be some words I do not understand.

Q. Did you ever sit as a juror on a trial?

A. Yes, sir.

Q. Did you understand all the witnesses said?

A. No, because I did not hear, sometimes.

Q. Do you think you understand English well enough, so that you can hear a trial intelligently?

A. I cannot say, sir.

Q. You are not sure?

A. No, sir.

By Mr. Larocque:

Q. What is your occupation?

A. A bookbinder.

Q. Have you an establishment of your own?

A. Yes, sir.

Q. The men you employ—do they speak English or German?

A. Some English—the most of them German.

Q. And you transact your business with gentlemen who speak English?

A. Yes, sir.

Q. How long have you done so?

A. Eight years.

By the Court:

Q. How long have you been in this country?

A. Seventeen years.

Q. Have you been in business all that time?

A. I worked as journeyman ten years, and have been seven years in business of my own.

By Mr. Smith:

Q. Do you think you can understand English well enough so that you can, from the evidence, form an opinion of your own?

A. I think I will.

By Mr. Larocque:

Q. You read the account of the capture of the privateer Savannah in the newspapers?

A. Yes, sir; in some German paper.

Q. Did you form or express any opinion as to the guilt or innocence of these prisoners?

A. No, sir.

Q. Did you form or express an opinion whether the facts charged against them, if proved, constitute the offence of piracy?

A. No, sir.

Mr. Evarts: We think the juror's knowledge of the language is shown, by his own examination, to be such as should at least entitle the Government to ask that he should stand aside until it is seen if the panel shall be filled from other jurors—if that right exists. Your honor held, in the case of the United States v. Douglass—a piracy case tried some ten years ago—that that right did exist.

The Court: I think we have since qualified that in the case of Shackleford. It was intended to settle that debatable question, and it was held that the Act of Congress, requiring the empanneling of jurors to be according to the practice in State Courts, did not necessarily draw after it this right of setting aside. We think the objection taken is not sustained.

Juror sworn.

Matthew P. Bogart called. Challenged for principal cause by Mr. Smith:

Q. In a capital case, where the evidence is sufficient to convince you of the guilt of the prisoner, have you any conscientious scruples that would prevent your rendering a verdict of guilty?

A. No, sir.

By Mr. Larocque, for the prisoners:

Q. Have you read the account of the capture of the privateer Savannah in the newspapers?

A. I recollect reading it at the time—not since.

Q. Have you ever formed or expressed an opinion upon the guilt or innocence of these prisoners?

A. Not to my recollection.

Q. Have you ever formed or expressed an opinion whether the facts charged against them, if proved, constitute the offence of piracy?

A. I have not.

Challenge withdrawn. Juror sworn.

George Moeller called. Challenged for principal cause by Mr. Smith:

Q. In a capital case, where the evidence is sufficient to convince you of the guilt of the prisoner, have you any conscientious scruples that would prevent your finding a verdict of guilty?

A. No, sir.

By Mr. Larocque, for the prisoners:

Q. Have you read the account of the capture of the Savannah? A. Yes, sir.

Q. Have you formed or expressed any opinion as to the guilt or innocence of these prisoners?

A. No, sir.

Q. Have you formed or expressed any opinion as to whether, if the facts were proved, as alleged, it was piracy?

A. I do not know what the facts are, sir. I have only read an account of the capture.

Challenge withdrawn. Juror sworn.

Robert Taylor called. Challenged for principal cause, by Mr. Smith:

Q. In a capital case, where the evidence is sufficient to convince you of the guilt of the prisoner, have you any conscientious scruples that would prevent your finding a verdict of guilty?

A. No, sir.

By Mr. Larocque, for the prisoners:

Q. You read of the capture of the privateer Savannah?

A. I think I have.

Q. Did you form or express any opinion as to the guilt or innocence of the prisoners?

A. Not that I know of, sir.

Q. Have you formed or expressed any opinion whether the facts, if proved, constitute the offence of piracy?

A. No, sir, not any.

Challenge withdrawn. Juror sworn.

Daniel Bixby called. Challenged for principal cause, by Mr. Smith:

Q. In a capital case, where the evidence is sufficient to convince you of the guilt of the prisoner, have you any conscientious scruples that would prevent your finding a verdict of guilty?

A. I have not.

By Mr. Larocque:

Q. Have you ever formed or expressed any opinion as to the guilt or innocence of the prisoners?

A. I have not.

Q. Or whether the facts, if proved, constitute the offence of piracy?

A. No, sir.

Challenge withdrawn. Juror sworn.

Ira L. Cady called. Challenged for principal cause, by Mr. Smith:

Q. In a capital case, where the evidence is sufficient to convince you of the guilt of the prisoner, have you any conscientious scruples that would prevent your finding a verdict of guilty?

A. No, sir.

By Mr. Larocque:

Q. You know what this case is for?

A. I believe I understand it.

Q. An indictment of piracy against the privateersmen captured on the Savannah?

A. Yes, sir.

Q. Have you formed or expressed any opinion upon the guilt or innocence of the prisoners?

A. I do not recollect that I have.

Q. Have you formed or expressed any opinion whether the facts, if proved, constitute piracy?

A. I do not think I have.

Q. Have you any opinion now upon either of these subjects?

A. I cannot say that I am entirely indifferent of opinion on the subject, but still I have not formed any definite opinion.

Q. Your mind, however, is not entirely unbiased upon the question?

A. Well, no, sir—not if I understand the question; that is, the question whether the facts, if proved, constitute the offence of piracy?

Mr. Larocque submitted that the juror was not indifferent.

Mr. Evarts: All that has been said by the juror is that, on the question of whether the facts charged constitute the offence of piracy, he has no fixed opinion; but he cannot say he has no opinion on the subject. He is ready to receive instruction from the Court.

Mr. Larocque contended that, as the question of whether the facts alleged constituted piracy, or not, was a most important one to be discussed, they were entitled to have the mind of the juror entirely blank and unbiased on that subject.

The Court: Let us see what the state of mind of the juror is.

Q. You mentioned, in response to a question put to you, that you had read an account in the newspapers of the capture of this vessel.

A. I was not asked that question. I have no mind made up in respect to the subject that would prevent my finding a verdict in accordance with the evidence; but I said I was not entirely devoid of an opinion in regard to the case—that is, the offence.

Q. Have you read an account of the capture of this vessel?

A. Yes, sir; I read it at the time.

Q. Is it from the account, thus read, of the transaction of the capture, that you found this opinion upon?

A. No, sir; it is not that. It is upon the general subject that I mean to be understood—not in reference to this case particularly.

Q. Do you say, upon the general question, that you have an opinion?

A. Well, not fully made up. I have the shadow of an opinion about it.

Q. Not a fixed opinion?

A. No, sir; I would be governed by the law and instructions of the Court.

Q. You are open to the control of your opinion upon the facts and law as developed in the course of the trial?

A. Certainly, sir.

The Court: We do not think the objection sustained.

Challenged peremptorily by the prisoners.

Samuel Mudget called. Challenged for principal cause.

By Mr. Smith:

Q. In a capital case, where the evidence is sufficient, in your opinion, to convict the prisoner, have you any conscientious scruples that would prevent your finding a verdict of guilty?

A. I have not.

By Mr. Larocque:

Q. You have read the account of the capture of the privateer Savannah?

A. Yes, sir; at the time.

Q. Have you formed or expressed any opinion upon the guilt or innocence of these privateersmen?

A. I have not.

Q. Have you formed or expressed an opinion whether the acts charged upon them, if proved, constitute piracy?

A. No, sir; I have not formed any opinion with regard to the question whether it was piracy or not.

Challenged peremptorily by the prisoners.

George H. Hansell challenged for principal cause.

Q. In a capital case, where the evidence is sufficient to convince you that the prisoner was guilty, have you any conscientious scruples that would prevent your finding a verdict of guilty?

A. No, sir.

By Mr. Larocque:

Q. Have you read the account of the capture of the Savannah privateer?

A. I believe I read the account at the time. I have a very indistinct recollection of it.

Q. Have you formed or expressed an opinion as to the guilt or innocence of the prisoners?

A. I do not remember that I have, sir. I certainly do not have any opinion now; and certainly would not have until I have heard the evidence.

Q. Do you say you do not recollect whether you have formed or expressed any opinion?

A. I do not remember that I have, sir. I may, on reading the article, have expressed an opinion on it; but I am not positive of that.

Q. Have you formed or expressed an opinion whether the facts charged, if proved, amount to piracy?

A. I should not consider myself competent to form an opinion upon that until I have heard the law on the subject.

Challenge withdrawn. Juror sworn.

Panel completed.

DISTRICT ATTORNEY'S OPENING.

Mr. E. Delafield Smith opened the case for the prosecution. He said:

May it please the Court, and you, Gentlemen of the Jury:

The Constitution of the United States, in the eighth section of the first article, authorized the Congress, among other things, to define and punish piracies and felonies committed on the high seas, and offences against the law of nations.

In pursuance of that authority, the Congress, on the 30th of April, 1790, made provisions contained in an act entitled "An Act for the punishment of certain crimes against the United States." I refer to the 8th and 9th sections of that act, which is to be found in the first volume of the U.S. Statutes at Large, page 112.

In the State Courts, gentlemen, it is common to say that the jury is judge both of the law and the fact; but such is not the case in the United States Courts. The Court will state to you the law, which you are morally bound to follow. But in opening this case, I refer to the statutes for the purpose of showing you precisely what the law is supposed to be under which this indictment is found, and under which we shall ask you for a verdict.

The 8th section of the act of 1790, commonly called "The Crimes Act," and to which I have just referred, declares, that if any person or persons shall commit, upon the high seas, or in any river, haven, basin, or bay, out of the jurisdiction of any particular State, murder or robbery, or any other offence which, if committed within the body of a county, would, by the laws of the United States, be punishable with death; or if any captain or mariner of any ship or other vessel shall piratically and feloniously run away with such ship or vessel, or any goods or merchandize to the value of fifty dollars, or yield up such ship or vessel voluntarily to any pirate; or if any seaman shall lay violent hands upon his commander, thereby to hinder and prevent his fighting in defence of his ship or goods committed to his trust, or shall make a revolt in the ship; every such offender shall be deemed, taken, and adjudged to be a pirate and felon, and, being thereof convicted, shall suffer death; and the trial of crimes committed on the high seas, or in any place out of the jurisdiction of any particular State, shall be in the district where the offender is apprehended, or into which he may first be brought.

The 9th section of the same act provides, that if any citizen shall commit any piracy or robbery aforesaid, or any act of hostility against the United States, or any citizen thereof, upon the high sea, 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.

A statute, on this subject, enacted in 1819, expired by its own limitation; but on the 15th of May, 1820, an act was passed making further provisions for punishing the crime of piracy. This law is printed in the third volume of the U.S. Statutes at Large, page 600. The 3d section provides, that if any person shall, upon the high seas, or in any open roadstead, or in any haven, basin, or bay, or in any river where the sea ebbs and flows, commit the crime of robbery in or upon any ship or vessel, or upon any of the ship's company of any ship or vessel, or the lading thereof, such person shall be adjudged to be a pirate; and, being thereof convicted before the Circuit Court of the United States for the district into which he shall be brought, or in which he shall be found, shall suffer death.

I now refer to the act of March 3d, 1825, to be found in the 4th volume of the Statutes at Large, page 115. It is entitled, "An act more effectually to provide for the punishment of certain crimes against the United States, and for other purposes." I cite it simply on the question of jurisdiction. The 14th section provides, that the trial of all offences which shall be committed upon the high seas or elsewhere, out of the limits of any State or district, shall be in the district where the offender is apprehended, or into which he may be first brought. The twenty-fifth section of this act repeals all acts, or parts of acts, inconsistent therewith.

Under the act of 1790 a question of construction arose, in the Supreme Court of the United States, as to whether robbery on the high seas was punishable with death. It was settled (3 Wheaton, 610) that the statute did punish robbery with death if committed on the high seas, even though robbery on land might not incur that extreme penalty. I refer to the United States v. Palmer, 3 Wheaton, 610; the United States v. Jones, 3 Washington's Circuit Court Reports, 209; United States v. Howard, Id., 340; 2 Whar. Crim. Law, fifth ed., p. 543.

I have been thus particular in referring to the laws under which this indictment is framed, in order that you may perceive precisely the inquiry which we now have to make. It is, whether the statutory law of the United States has or has not been violated? You have all, undoubtedly, heard more or less of the crime of piracy as generally and popularly understood. A pirate is deemed by the law of nations, and has always been regarded as the enemy of the human race,—as a man who depredates generally and indiscriminately on the commerce of all nations. Whether or not the crime alleged here is piracy under the law of nations, is not material to the issue. It might well be a question whether, in regard to depredations committed on the high seas, by persons in a foreign vessel, under the acknowledged authority of a foreign country, Congress could effectively declare that to be piracy which is not piracy under the law of nations; but it is not material in this case. Congress is unquestionably empowered to pass laws for the protection of our national commerce and for the punishment of those who prey upon it. Congress has done so in the statutes to which I have referred. If the words "pirate and felon" were stricken out from the act of 1790, and if the statutes simply read that any person committing robbery on the high seas should suffer death, the law would be complete, and could be administered without reference to what constitutes piracy by the law of nations.

Having thus referred to the statutory law under which this indictment was found, I will state as succinctly as possible, with due regard to fullness, fairness, and completeness, the facts in this case. In the middle or latter part of May, 1861, a number of persons in the city of Charleston, South Carolina, conceived the purpose of purchasing or employing a vessel to cruise on the Atlantic with the object of depredating on the commerce of the United States. They proceeded to the fulfillment of that design by procuring persons willing to act as captain, officers, and crew of such piratical vessel. This there was at first considerable difficulty in effecting, and it was not until many men were thrown out of employment in Charleston, by the acts of South Carolina and of what is called the Confederate Government, and by the action of the United States Government in blockading the port of Charleston and other Southern ports, that a crew could be found to man this vessel. There were no shipping articles or agreement as to wages; but it was understood that all were to share in the plunder or proceeds arising from the capture of American vessels on the high seas. We shall show to you that the prisoners at the bar were finally induced to embark on this enterprise; that Captain Baker was one of the first to engage in it; that he used exertions to obtain a crew, and succeeded, after considerable difficulty. On Saturday, the first of June, 1861, the crew were embarked on a small pilot boat and proceeded down to opposite Fort Sumter, where they were transferred, in small boats, to the schooner Savannah. We shall show, by the declarations of the parties who stand charged here to-day, and also by the facts and circumstances of the equipment of the vessel, the intent and purpose of this voyage. The Savannah, a schooner of fifty-three or fifty-four tons, was armed with cannon and small arms. Pistols and cutlasses were provided for her men. On Sunday afternoon, the 2d of June, she sailed from opposite Fort Sumter, her crew numbering about twenty men, all of whom are here with the exception of six, who were detached to form a prize crew of the brig Joseph. On the morning of Monday, the 3d of June, a sail was descried; it was remarked among the crew that the vessel, from her appearance, was undoubtedly a Yankee vessel, as they termed it—a vessel owned in one of the Northern States of the Union. She proved to be the brig Joseph, laden with sugar, and bound from Cardenas, in Cuba, to Philadelphia. The Savannah, displaying the American flag, gave chase. When within hailing distance, Captain Baker spoke the Joseph, ordered her captain on board his schooner, and ran up the rebel standard. Captain Meyer, of the Joseph, perceiving that the Savannah was armed, and that her men were ready for assault, fearing for his safety and that of his crew, obeyed the summons. A prize crew was placed on board the Joseph—the captain of the Savannah declaring that he "was sailing under the flag of the Confederate Government." The Savannah proceeded on her cruise. In a few hours afterward, she descried the United States brig-of-war Perry. Supposing her to be a merchant vessel, she started in pursuit, fired a gun, and finally fired several guns. On discovering, however, that the brig was a United States vessel-of-war, she attempted resistance, Captain Baker saying to his men, "Now, boys, prepare for action!" When within speaking distance, the commander of the Perry asked Captain Baker whether he surrendered, and he replied that he did. The prisoners were transferred from the Savannah to the Perry; thence to the United States steam ship-of-war, Minnesota. The Savannah was then taken in charge by a prize crew from on board the Perry and brought to New York. The Minnesota, with the prisoners on board, proceeded—on her way to New York—to Hampton Roads, where, after two days, she transferred the prisoners to the Harriet Lane, which delivered them at New York. Here they were given in charge to the United States Marshal. On my official application, a warrant was issued by a United States Commissioner, and under it the Marshal, as directed, took formal possession of and held the prisoners. They were committed for trial and were, within a few weeks afterwards, indicted by the United States Grand Jury. Although the guilt and mischief of both piracy and treason may be embraced in the crime and its consequences, the charge is not one of treason, nor necessarily of piracy, as commonly understood, but the simple one of violating the statutes to which I have referred.

The learned District Attorney here stated the evidence which he was prepared to submit, with the decisions upon which he would rest the case, and he proceeded to cite and comment upon the following, among other authorities:—U.S. v. Furlong, 5 Wheaton, 184; U.S. v. Klintock, 5 Id., 144; Nueva Anna and Liebre, 6 Id., 193; U.S. v. Holmes, 5 Id., 412; U.S. v. Palmer, 3 Id., 610; U.S. v. Tully, 1 Gallison, first ed., 247; U.S. v. Jones, 3 Wash. Circuit Court Rep., 209; U.S. v. Howard, 3 Id., 340; U.S. v. Gibert, 2 Sumner, 19; U.S. v. Smith, 5 Wheaton, 153; 3 Chitty's Criminal Law, 1128; 1 Kent's Com., 25, note c, and cases cited; 1 Id., 99, 100, and cases cited; 1 Id., 184, 185, 186, 187, 188, 191, and cases cited. Decisions as to jurisdiction: U.S. v. Hicks, MS. Judge Nelson; Irvine v. Lowry, 14 Peters, 293, 299; Sheppard v. Graves, 14 Howard, 505; D'Wolf v. Rabaud, 1 Peters, 476, 498. Mr. Smith then continued as follows:

The atrocity of the authors and leaders of this rebellion against a government whose authority has never been felt, with the weight of a feather, upon the humblest citizen, except for crime, has been portrayed so much more eloquently than I could present it, that I should not indulge in extended remarks on that subject, even if relevant to the case. Ignominy and death will be their just portion. The crime of those who have acted as the agents and servants of these leaders is also a grave one—a very grave one—mitigated, no doubt, by ignorance, softened by a credulous belief of misrepresentations, and modified by the very air and atmosphere of the place from which these prisoners embarked. It is, undoubtedly, a case where the sympathies of the jury and of counsel—whether for the prosecution or the defence—may be well excited in reference to many, if not all, of the prisoners at the bar, misguided and misdirected as they have been. But it will be your duty, gentlemen, while allowing these considerations to induce caution in rendering your verdict, to disregard them so far as to give an honest and truthful return on the evidence, and on the law as it will be stated to you by the Court. This is all the prosecution asks. As to the policy of ultimately allowing the law to take its course in this case, it is not necessary for us to express any opinion whatever. That is a question which the President of the United States must determine if this trial should result in a conviction. It is for him, not for us. You must leave it wholly to those who are charged with high duties, after you shall have performed yours.

The case is of magnitude; but the issue for you to determine is simple. Leaving out of view the alleged authority under which the prisoners claim to have acted, you will inquire, in the first instance, whether the seizure of the Joseph and her lading was robbery. You will be unable to discover that any element of the crime was wanting. If no actual force was employed in compelling the surrender, it is enough that the captain and crew were put in bodily fear. So the traveler delivers his purse in obedience to a request, and the crime is complete, although violence proves unnecessary. That the humble owners of the brig were despoiled of their property—how hardly earned we know not—will not be disputed. Nor is it material that the proceeds were to be shared between the prisoners and absent confederates. As to the question of intent, it cannot be denied that the prisoners designed to do, and to profit by, what they did. They are without excuse, unless possessed of a valid commission. This brings us to the plea of authority.

A paper, purporting to be a letter of marque, signed by Jefferson Davis, was found on the Savannah. Such a commission is of no effect, in our courts of law, unless emanating from some government recognized by the Government of the United States. The political authority of the nation, at Washington, has never recognized the so-called Confederate States as one of the family of nations. On the contrary, it resists their pretensions, and proclaims them in rebellion. In this position of affairs, a court of justice will not, nor can you as its officers, regard the letter as any answer to the case which the prosecution will establish. Such is the law. It is so determined in decisions of the Supreme Court of the United States, which I have just cited.

I will now proceed with the examination of the witnesses.

Albert G. Ferris called and sworn. Examined by District Attorney Smith:

Q. Where were you born?

A. In Barnstable, Massachusetts.

Q. How old are you?

A. Fifty on the 10th of September last.

Q. Have you a family?

A. Yes, sir.

Q. Does your family reside at Charleston?

A. Yes, sir, at Charleston, South Carolina.

Q. How long have you resided at Charleston?

A. Since 1837.

Q. What has been your business there?

A. Sea-faring man.

Q. In what capacity have you acted as a sea-faring man?

A. As master and mate.

Q. In what crafts?

A. In various crafts, small and large, and steamers.

Q. Sailing out of the port of Charleston?

A. Yes, and from ports of New York, and Virginia, and other places.

Q. In what capacity were you acting just prior to the time you embarked on board the Savannah?

A. I was acting as master of a vessel sailing from Charleston on the Southern rivers, in the rice and cotton trade.

Q. What was the name of the vessel?

A. The James H. Ladson, a schooner of about seventy-five tons.

Q. Was the business in which you were engaged stopped?

A. Yes, sir.

Q. At what time?

A. In December, 1860.

Q. What was your employment after that?

A. I had no employment after that. The blockade prevented vessels from going out, although some did get out after the blockade was established.

Q. State the facts and circumstances which preceded your connection with the Savannah?

A. I joined the Savannah as a privateer, through the influence of acquaintances of mine, with whom I had sailed, and from the necessity of having something to do, and under the idea of legal rights from the Confederate Government.

Q. What did you first do in reference to shipping on the Savannah?

A. I was on the bay with an acquaintance of mine, named James Evans, who is now, I believe, at Charleston, and who spoke to me about it.

Q. Was Evans one of the crew of the Savannah?

A. Yes, he was one of the prize crew that went off with the Joseph. He solicited me to join him, and said that he knew Captain Baker, and that he and others were going in the Savannah.

Q. Where did you see him?

A. I saw him on the bay at Charleston.

Q. Did you go anywhere with him in reference to enlisting?

A. Yes, we went to the house of Bancroft & Son, and I was there introduced to Captain Baker.

Q. Did you recognize Captain Baker on the cruise?

A. Yes, I recognized him then and since.

Q. State the conversation?

A. Mr. Evans recommended me to Captain Baker as a man who was acquainted with the coast, and who was likely to be just the man to answer his purpose. I partly made arrangements with Captain Baker to—that is, he was to send for me when he wanted me. He further proposed, as nothing was doing, that he would give me a job to go to work on board the Savannah and fit her out; but I had some little business to attend to at the time and declined.

Q. State the conversation at Bancroft & Son's when you and Evans and Captain Baker were there?

A. These were the items, as near as my memory serves me: that we were going on a cruise of privateering. I considered it was no secret. It was well known, and posted through the city. Previous to that I had met some of the party, who talked about going, and who asked me whether I had an idea of going, and I said I had talked about it. They said that Captain Baker was the officer. I then declined to go, and did not mean to go in her until Saturday morning.

Q. Did you have a further interview with Captain Baker, or any others of these men?

A. I had no other interview with Captain Baker at that time. I had no acquaintance with Captain Baker, or any on board, except these men who came from shore with me.

Q. Did you see any one else in reference to shipping on this vessel, except those you mentioned?

A. I believe there was a man by the name of Mills who talked of it. He did not proceed in the vessel. I believe he fitted her out, but did not go in her.

Q. Did you talk to any one else in regard to going?

A. No; he only told me he was going to get a crew.

Q. What articles did you see drawn up?

A. There were no articles whatever drawn up, and I do not know what arrangements were made. I understood since I have been here that arrangements were made, but they were not proposed to me. It was a mere short cruise to be undertaken.

Q. Was the purpose or object of the cruise stated?

A. It was the object of going out on a cruise of privateering.

Q. When did you embark on the vessel?

A. On Saturday night, the 1st of June, 1861.

Q. Do you recollect who embarked with you that night?

A. Some five or six of us.

Q. Give their names?

A. Alexander Coid was one (witness identified him in Court), Charles Clarke was another, and Livingston or Knickerbocker was another. I do not recollect any more names. There was a soldier, whose name I do not know, who went on the prize vessel.

Q. How did you get from the dock at Charleston?

A. In a small boat to a pilot-boat, and in the pilot-boat to the Savannah in the stream. She was lying about three miles from the city, and about three-quarters of a mile from Fort Sumter.

Q. How did you get from the pilot-boat to the Savannah?

A. In a small boat.

Q. And from the dock at Charleston to the pilot-boat?

A. In a small boat.

Q. Did any one have any direction in the embarkation?

A. No one, particular. There were some agents employed to carry us down. There was no authority used whatever.

Q. When did you sail from Charleston in the Savannah?

A. On Sunday afternoon from the outer roads.

Q. When did you weigh anchor and sail from Fort Sumter?

A. On Sunday morning, about 9 or 10 o'clock.

Q. Do you know the men you saw on board?

A. Yes, sir.

Q. Do you know the names of all the prisoners?

A. I believe I do, pretty nearly. I do not know that I could pronounce the name of the steward or cook, but I know that they were with us.

(The prisoner, Passalaigue, was asked to stand up, and the witness identified him.)

Q. What was his position on board?

A. I do not know what his position was. I never learned that. He was on board as if superintending the provisions, or something of that kind.

(The prisoner, John Harleston, was asked to stand up, and witness identified him.)

Q. What position had he on board?

A. I do not know what he did on board, anything more than that he arranged the big gun, and asked assistance to lend him a hand in managing the gun.

Q. Was he an officer, or seaman?

A. I believe he is no seaman.

Q. In what capacity did he act on board?

A. Nothing further than that, so far as I learned.

Q. Did you hear him give any directions?

A. No, sir; I was at the helm most of the time, when anything was done at the gun.

(The prisoner, Henry Howard, was asked to stand up, and witness identified him.)

Q. In what capacity was he?

A. That was more than I learned. They were all on board when I joined her.

Q. Was he a seaman or officer?

A. He stood aft with the rest of us, and assisted in working the vessel.

(The prisoner, Del Carno, was directed to stand up, and witness identified him as being the steward. He also identified Henry Oman as attending to the cooking department. The prisoner was directed to stand up, and was identified by the witness.)

Q. In what capacity was he?

A. The same as the rest—a seaman.

(Witness also identified William Charles Clarke, Richard Palmer, and John Murphy, as seamen, and Alexander C. Coid, as seaman. Martin Galvin, the prisoner, was directed to stand up, and was identified by the witness.)

Q. Was he a seaman?

A. I do not think he was either seaman or officer.

Q. What did he do on board?

A. Little of anything. There was very little done any way.

Q. Did he take part in working the vessel?

A. Very little, if anything at all. I believe he took part in weighing anchor.

Q. You identify Captain Baker as captain of the vessel?

A. Yes, I could not well avoid that.

Q. How many more were there besides those you have identified?

A. Some six. I think about eighteen all told, not including Knickerbocker and myself.

Q. How many went off on the Joseph?

A. There were six of them.

Q. Did any of those that are now here go off on the Joseph?

A. No, I believe not. I know all here. We have been long enough in shackles together to know one another.

Q. Do you remember the names of those that went on the Joseph?

A. I know two of them—one named Hayes, and Evans, the Charleston pilot.

Q. The same Evans who went on board with you?

A. Yes, sir; he was a Charleston pilot.

Q. What did Hayes and Evans do on board?

A. They did the same as the rest—all that was to be done.

Q. Were either of them officers?

A. Mr. Evans was the Charleston pilot. He gave the orders when to raise anchor and go out. He acted as mate and pilot when he was there. I presume he had as much authority, and a little more, than any one else; he was pilot.

Q. What did Hayes do?

A. He was an old, experienced man—did the same as the rest—lived aft with the rest. He was a seaman.

Q. The other four, whose names you do not recollect, did they act as seamen?

A. Exactly, sir.

Q. Any of them as officers?

A. No, sir; if they were, they were not inaugurated in any position while I was there.

Q. What did you do?

A. I did as I was told by the captain's orders—steered and made sail.

Q. What time did you get off from the bar in Charleston?

A. We got off Sunday afternoon and made sail east, outside of the bar, and proceeded to sea.

Q. Do you remember any conversation on board when any of the prisoners were present?

A. Yes; we talked as a party of men would talk on an expedition of that kind.

Q. What was said about the expedition?

A. That we were going out privateering. The object was to follow some vessels, and that was the talk among ourselves.

Q. Did anything happen that night, particularly?

A. No, sir; nothing happened, except losing a little main-top mast.

Q. What course did you take?

A. We steered off to the eastward.

Q. Did you steer to any port?

A. No, sir; we were not bound to any port, exactly.

Q. What directions were given in respect to steering the vessel?

A. To steer off to the eastward, or east by south, just as the wind was; that was near the course that was ordered.

Q. When did you fall in with the Joseph?

A. On Monday morning, the 3d.

Q. Do you remember who discovered the Joseph?

A. I think it was Evans, at the masthead.

Q. What did he cry out?

A. He sung out there was a sail on the starboard bow, running down, which proved afterwards to be the brig Joseph.

Q. State all that was said by or in the presence of the prisoners when and after the vessel was descried?

A. We continued on that course for two or three hours. We saw her early in the morning, and did not get up to her until 9 or 10 o'clock.

Q. How early did you see her?

A. About 6 o'clock. There were other vessels in sight. We stood off on the same course, when we saw this brig,—I think steering northeast by east. We made an angle to cut her off, and proceeded on that course until we fell in with her.

Q. What was said while running her down?

A. When near enough to be seen visibly to the eye, our men, Mr. Hayes, and the others, said she was a Yankee vessel; she was from the West Indies, laden with sugar and molasses. The general language was very little among the men; in fact, sailor-like, being on a flare-up before we left port, not much was said.

Q. State what was said?

A. Well, first the proposition was made that it was a Yankee prize; to run her down and take her. That was repeated several times. Nothing further, so far as I know of.

Q. During the conversation were all hands on deck?

A. Yes, sir, all hands on deck. In fact, they had been on deck. It was very warm; our place was very small for men below. In fact, we slept on deck. No one slept below, while there, much. It was a very short time we were on board of her—from Saturday to Monday night—when we were taken off.

Q. What was said was said loud, so as to be heard?

A. Yes; it was heard all about deck. That was the principal of our concern in going out; it was our object and our conversation.

Q. When you ran along down towards the Joseph, state what was said.

A. That was about the whole of what occurred—the men talking among themselves.

Q. When you got to the Joseph what occurred?

A. She was hailed by Captain Baker, and requested to send a boat on board.

Q. Who answered the hail?

A. I believe Captain Meyer, of the brig.

Q. Would you recognize Captain Meyer now?

A. Yes, sir.

Q. State what Captain Baker said?

A. Captain Baker, as near as I can bear in mind, hailed him, and told him to come on board and fetch his papers.

Q. Did Captain Meyer come on board?

A. He lowered his boat, and came on board with his own boat and crew. Captain Baker said to him that he was under the Confederate flag, and he considered him a prisoner, and his vessel a prize to the Confederate Government.

Q. Repeat that?

A. If I bear in mind, Captain Meyer asked what authority he had to hail his vessel, or to that effect. The reply of Captain Baker, I think, was that he was under a letter of marque of the Confederate Government, and he would take him as a prisoner, and his vessel as a prize to the Southern Confederacy. I do not know the very words, but that was the purport of the statement, as near as I understood.

Q. When Captain Baker hailed the Joseph, do you remember the language in which he hailed her?

A. I think, "Brig, ahoy! Where are you from?" He answered him where from—I think, from Cardenas; I think, bound to Philadelphia or New York.

Q. Did he inquire about the cargo?

A. No, sir, I think not, until Captain Meyer came on board. We were but a short distance from the brig. The brig was hove to.

Q. Do you remember anything further said by Captain Baker, or any of the prisoners?

A. He had some further conversation with Captain Meyer, on the deck, with respect to the vessel, where from, the cargo, and the like of that. She had in sugars, as near as my memory serves me.

Q. What flag had the Savannah, or how many?

A. She had the Confederate flag.

Q. What other flags, if any?

A. She had the United States flag.

Q. Any other?

A. No, sir, I do not know that she had any other.

Q. Did you notice what flag the Joseph had?

A. I did not see her flag, or did not notice it. I saw her name, and where she hailed from. I knew where she belonged.

Q. What was on her stern?

A. I think "The Joseph, of Rockland." I knew where it was. I had been there several times.

Q. When the sail was first descried was there any flag flying on the Savannah?

A. No, sir.

Q. When you ran down towards the Joseph was there any flying?

A. Yes, sir, we had the Confederate flag flying, and, I believe, the American flag.

Q. Which was it?

A. I believe both flying—first one, and then the other.

Q. Which first?

A. I think the Stars and Stripes first. I am pretty certain that Mr. Evans then hauled that down.

Q. When running down toward the Joseph you had the American flag flying?

A. Yes, sir; I think so; and Mr. Evans hauled down that, and put up the Confederate flag, when we got close to her.

Q. She ran with the American flag until close to her, and then ran up the Confederate flag?

A. Yes, when some mile or so of her—in that neighborhood.

Q. Do you remember who gave the order to the prize crew to leave the Savannah and go on board the Joseph?

A. Issued the orders? Well, Captain Baker, I believe, told the pilot, Mr. Evans, to select his men, and go with the boat.

Q. And they went on board?

A. Yes, they went on board.

Q. Do you remember anything said among the men, after the prize crew went off, in respect to the Joseph, or her cargo, or her capture?

A. Captain Meyer was there, and stated what he had in her, and where he was from, and so forth. We were merely talking about that from one to the other.

Q. Do you remember any directions given to the prize crew, as to the Joseph—where to go to?

A. I do not recollect Captain Baker directing where to get her in, or where to proceed with her. Evans was better authority, I presume, than Captain Baker, where to get her in.

Q. Any directions as to where the vessel was to be taken?

A. No, sir; either to Charleston or Georgetown—the nearest place where they could get in, and evade the blockade. That was the reason of having the pilot there.

Q. Did Captain Meyer remain on board the Savannah?

A. Yes, sir, until we were captured, and then he was transferred to the brig Perry, with the rest of us.

Q. What direction did the Joseph take after she parted from you?

A. Stood in northward and westward. Made her course about northwest, or in that neighborhood.

Q. In what direction from Charleston and how far from Charleston was the Joseph?

A. I think Charleston Bar was west of us about 50 or 55 miles.

Q. Out in the open ocean?

A. Yes, sir. I calculated that Georgetown light bore up about 35 miles in the west; but whether that is correct or not I cannot say.

Q. Where was the nearest land, as nearly as you can state?

A. I think the nearest land was Ball's Island, somewhere in the neighborhood of north and west, 35 or 40 miles.

Q. What sail did you next fall in with?

A. We fell in with a British bark called the Berkshire.

Q. What did you do when you fell in with her?

A. We passed closely across her stern. She was steering to the northward and eastward—I suppose bound to some Northern port.

Q. That was a British brig?

A. Yes, sir.

Q. What was the next sail you fell in with?

A. The next sail we fell in with was the brig-of-war Perry.

Q. At what time did you descry her?

A. I suppose about 3 o'clock in the afternoon of the same day.

Q. Where were you when you fell in with her?

A. We were somewhere in the same parallel. We saw the brig Perry from the masthead, and stood towards her.

Q. What was said when she was seen?

A. We took her to be a merchant vessel. That was our idea, and we stood to the westward.

Q. Did you make chase?

A. Yes, sir, we stood to the westward when we saw her; and the brig Joseph, that we took, saw her. The Perry, I presume, saw us before we saw her, and was steering for us at the time we were in company with the Joseph.

Q. How far off was the Joseph at the time?

A. Not more than three or four miles. When we made her out to be the brig-of-war Perry, we then tacked ship and proceeded to sea, to clear her.

Q. How near was the brig Perry when you first discovered she was a man-of-war?

A. I should think she was all of 10 or 11 miles off.

Q. The brig Perry made chase for you?

A. Yes, sir.

Mr. Larocque: If the Court please, from the opening of counsel I suppose he is now proceeding to that part of the case that he laid before the jury in his opening, that consists in an exchange of shots between the brig Perry and the Savannah. We object to that. There is no charge in the indictment of resisting a United States cruiser, or of any assault whatever.

Mr. Smith: What the vessel did on the same day, before and after the main charge, goes to show the purpose of the voyage—the general object of the Savannah and her crew. It may be relevant in that respect.

Mr. Larocque: We are not going to dispute the facts testified to by this witness. There will be no dispute on this trial that this was a privateer—that her object was privateering under the flag of the Confederate Government, and by authority of that Government, and, under these circumstances, the gentleman has no need to trouble himself to characterize these acts by showing anything that occurred between the Savannah and the Perry. Your honor perceives at once that this indictment might have been framed in a different way, under the 8th section of the Act of 1790, with a view of proving acts of treason, if you please, which are made piracy, as a capital offence, by that act. The counsel has elected his charge, and he has strictly confined the charge in the indictment to the allegation of what occurred between the Savannah and the Joseph. There is not one word in the indictment of any hostilities between the Perry and the Savannah, and therefore it must be utterly irrelevant and immaterial under this indictment. Evidence on that subject would go to introduce a new and substantial charge that we have not been warned to appear here and defend against, and have not come prepared to defend against, for that reason. So far as characterizing the acts we are charged with in the indictment, there can be no difficulty whatever.

The Court: I take it there is no necessity for this inquiry after the admission made.

Mr. Evarts: We propose to show the arrest and bringing of the vessel in, with her crew.

The Court: Of course.

Mr. Evarts: That cannot very well be done without showing the way in which it was done.

The Court: But it is not worth while to take up much time with it.

Mr. Brady: The witness has stated that this vessel was captured, and he has stated the place of her capture; and of course it is not only proper, but, in our view, absolutely necessary, that the prosecution should show that, being captured, she was taken into some place out of which arose jurisdiction to take cognizance of the alleged crime. But the cannonading is no part of that.

Q. By Mr. Smith: State the facts in regard to the capture of the Savannah by the Perry.

A. Well, the brig Perry ran down after dark and overtook us; came within hail.

Q. At what time?

A. Near 8 o'clock at night. Without any firing at all, she hailed the captain to heave to, and he said yes; she told him to send his boat on board. He said that he had no boat sufficient to go with. They then resolved to send a boat for us, and did so, and took us off. That was the result.

Q. The Perry sent her boat to the Savannah?

A. Yes, sir; we had no boat sufficient to take our crew aboard of her. We had a small boat, considerably warped, and it would not float.

Q. Where at sea was the capture made of the Savannah by the Perry?

A. It was in the Atlantic Ocean.

Q. About how far from Charleston?

A. Well, about 50 miles from Charleston light-house, in about 45 fathoms of water.

Q. How far from land?

A. I suppose the nearest land was Georgetown light, about 35 or 40 miles; I should judge that from my experience and the course we were running.

Q. Were you all transferred to the Perry?

A. Yes, sir.

Q. When was that?

A. Monday night; it was later than 8 o'clock.

Q. Transferred by boats?

A. Yes, sir; the Perry's boats. She sent her boat, with arms and men, and took us on board. There we were all arrested and put in irons that night, except the captain and Mr. Harleston, I believe. I do not know whether they were, or not.

Q. Was Mr. Knickerbocker put on board the Perry, with the rest?

A. Yes, sir, and on board the Minnesota, with us.

Q. Who were put in charge of the Savannah? Were there any men of the Perry?

A. Yes, sir; I believe they sent a naval officer on board to take charge of her, and a crew; and I think they took Mr. Knickerbocker and Capt. Meyer, too, on board the Savannah.

Q. Did you hear the direction as to the port the Savannah should sail to after the prize crew were put on board?

A. To New York I understood it was ordered. I was told that she was ordered to New York.

(Objected to as incompetent.)

Q. In respect to the Perry, what course did she take after you were taken on board?

A. As informed by the captain, next day, she was bound to Florida, to Fernandina, to blockade.

Q. When did she fall in with the Minnesota?

A. About the third day after our capture, I think; lying 8 or 10 miles off Charleston.

Q. In the open ocean?

A. Yes, sir.

Q. You were all transferred to the Minnesota?

A. Yes, sir.

Q. What did the Minnesota do?

A. We were confined on board the Minnesota.

Q. When was it you went on board the Minnesota?

A. I think on Wednesday or Thursday; I forget which.

Q. You were captured on Monday night?

A. Yes, sir, the 3d of June, and I think it was on Wednesday or Thursday (I do not know which) we went on board the Minnesota.

Q. How long did you lie off Charleston?

A. Several days.

Q. At anchor?

A. The ship was under way sometimes, steering off and on the coast.

Q. How far from Charleston?

A. I think in 8 or 9 fathoms of water, 8 or 10 miles from the land.

Q. Where did the Minnesota proceed from there?

A. To Hampton Roads.

Q. Were all the persons you have identified here on board the Minnesota?

A. Yes, sir.

Q. State the facts as to transfer from ship to ship?

A. We were transferred from the Savannah to the Perry; from the Perry to the Minnesota; from the Minnesota to the Harriet Lane.

Q. All of you?

A. Yes, sir; all.

Q. State, as near as you can, where, at Hampton Roads, the Minnesota came?

A. She came a little to the westward of the Rip Raps; I suppose Sewall's Point was bearing a little to the west of us, 3/4 or 1/2 a mile to the west of us; I should judge west by south. I am well acquainted there. We call it 24 miles from Old Point Comfort.

Q. What was the nearest port of entry to where you were anchored?

A. Norfolk, Va.

Q. How far from Fortress Monroe?

A. A mile, or 1-1/8 or 1-1/4—not a great distance.

Q. How long did you lie there before you were transferred to the Harriet Lane?

A. Several days. I did not keep any account. Some two or three days.

Q. And you were brought to this port in the Harriet Lane?

A. Yes, sir.

Q. And all the prisoners you identified to-day were brought here?

A. Yes, sir, to the Navy Yard, Brooklyn; there transferred to a ferry-boat and brought to the Marshal's office here.

Mr. Evarts: If the Court please, we deem it a regular and necessary part of our proof to show the manner of the seizure of this vessel by the U.S. ship Perry; to show that it was a forcible seizure, by main force, and against armed forcible resistance of this vessel. Besides being almost a necessary part of the circumstances of the seizure, it is material as characterizing the purpose of this cruise, and the depth and force of the sentiment which led to it, and the concurrence and cohesion of the whole ship's crew in it.

The Court: What necessity for that after what has been conceded on the other side?

Mr. Evarts: They concede that she was seized; but do they concede that, as against all those accused, the crime of piracy is proved—the concurrence of the whole—and that the only question is, whether the protection claimed from what is called the privateering character of the vessel shields them?

The Court: I understand the admission to be broad.

Mr. Evarts: If as broad as that, that there is no distinction taken between the concurrence of these men, it is sufficient.

Mr. Brady: We have said nothing about that?

The Court: So far as the capture is concerned, that does not enter into any part of the crime, and has no materiality to the elements of this case at all. The force that may enter into the crime is in the capture by the privateer of the Joseph. I do not want to confound this case by getting off on collateral issues; and so far as concerns the animus, or intent, I understand it to be admitted.

Mr. Evarts: My learned friends say that on this point they have not said anything as to the jointness or complicity of the parties in this crime. Now I think your honor would understand that a concurrence in resistance, by force, of an armed vessel of the United States, bearing the flag of the United States, and undertaking to exercise authority over it, would show their design.

The Court: Have you any question as to the facts?

Mr. Evarts: The Government have all the facts. Stripped of all the circumstances that attended the actual transaction, it would appear as if, when the brig Perry came along, these people at once surrendered, gave up, and submitted quietly and peacefully. As against that, we submit the Government should protect itself by proving the actual transaction.

Mr. Brady: One thing is certain, that if these men committed any offence whatever, it was committed before they saw the Perry; it was an act consummated and perfect, whatever may have been its legal character, and whatever may have been the consequences which the law would attach to it. The proof of the capture of the Savannah by the Perry is in no way relevant, except in proving jurisdiction, for which purpose alone is it of any importance that it should be mentioned here. And whether the capture was effected after a chase, or without one, against resistance, or by the consent of the persons to that from which they could not escape, is of no possible consequence in any aspect of the case. Whether there was firing or armed resistance can make no difference. It cannot bear on the question whether all the defendants are responsible for the acts of each other, like conspirators. It may be, as the counsel for the prosecution holds, that when you show they did set out on a common venture each became the agent of the other. That may be, and they must take the responsibility of trying the case on such a theory of the law as they think proper. We would not feel any hesitation in saying they all acted with a common design, only that there are some of the prisoners that we have had no communication with, and it may be that some of them went on board without knowing what the true character of the enterprise was. It is sufficient now to object that the question, whether there was resistance or not, after the Perry came up, is of no consequence in deciding the question of whether the men are responsible.

Mr. Evarts: My learned friend is certainly right in saying that the crime was completed when the Joseph was seized; but it does not follow that the proof of what the crime was, and what the nature of the act was, is completed by the termination of that particular transaction. You might as well say that the fact of a robbery or theft has been completed by a pickpocket or highwayman when his victim has been despoiled of his property; and that proof of the crime prohibits the Government from showing the conduct of the alleged culprit after the transaction—such as evading the officer, running away from or resisting the officer.

The Court: You do not take into account the admission of the counsel. I believe the subsequent conduct of the privateers, if the intent with which they seized and captured the Joseph was in question, would be admissible; but when this is admitted broadly by the counsel for the defendants, I do not see why it is necessary to go into proof with a view to make out that fact, except to occupy the time of the Court.

Mr. Evarts: I am sure your honor will not impute to us any such motive. The point of difficulty is: my learned friends do not admit the completeness of the crime by all the prisoners, subject only to the answer whether the privateering character of the enterprise protects them. The moment that is admitted, I have no occasion to dwell upon the facts.

The Court: I understand the admission as covering all the prisoners, as to the intent.

Mr. Brady: That she was fitted out as a privateer—the enterprise, and capture of the Joseph.

Mr. Smith: Is the admission that all were engaged in a common enterprise, and all participators in the fact?

The Court: So I understand the admission, without any qualification.

Mr. Smith: Do we understand the counsel as assenting to the Court's interpretation as to the breadth of the admission?

Mr. Brady: There is no misunderstanding between the Court and the counsel; but the learned gentlemen seem not to be satisfied with the admission we made. The intent is, of course, an element in the crime of piracy. There must be an animus furandi established, in making out the crime; and that is, of course, a question about which we have a great deal to say, both as to the law and the fact, at a subsequent stage of the case. When the counsel proposed to prove the firing of cannon, and armed resistance, we said—what we say now—that we do not intend to dispute the facts proved by the witness on the stand: that the Savannah was, at the port of Charleston, openly and publicly, without any secresy (to use the witness's language, it was "posted"), fitted out as a privateer, in the service of the Confederate States, under their flag, and by their authority; that it was so announced, and that these men were shipped on board of her as a privateer. All that, there is no intention to dispute at all; and, of course, that all the men who shipped for that purpose were equally responsible for the consequences, we admit.

Mr. Evarts: Do you admit that all shipped for the purpose? If we can prove their conduct, concurring in this armed resistance, then I show that they were not there under any deception about its being a peaceable mercantile transaction. I may be met by the suggestion that, so far as the transaction disclosed about the Joseph is concerned, there was not any such depth of purpose in this enterprise as would have opposed force and military power in case of overhauling the vessel. It would seem to me, with great respect to the learned Court, that when the facts of the transaction can be brought within very narrow compass, as regards time, it is safer that we should disclose the facts than that admissions should be accepted by the Court and counsel when there is so much room for difference of opinion as to the breadth of the admission. We may run into some misunderstanding or difference of view as to how far the actual complicity of these men, or the strength of their purpose and concurrence in this piratical (as we call it) enterprise, was carried.

Mr. Lord: If your honor will permit, it appears to me that this is exceedingly plain. The notoriety and equipment of the vessel—all the character of the equipment—the sailing together—all that is covered by the admission of my friend, Mr. Brady. So far as to there being a joint enterprise up to the time of the capture of the Joseph, it seems to me there is nothing left. Now, what do they wish? They wish to show, what is in reality another, additional, and greater crime, after this capture of the Joseph, for which we alone are indicted, as they say, for the purpose of showing that we assented to this, which we went out to do.

Your honor knows that, if we have any fact to go to the jury, they are getting into this case a crime of a very different character and of a deeper dye, for which they have made no charge, and which does not bear upon that which, if a crime at all, was consummated in the capture of the Joseph—the only crime alleged in the indictment. I submit that they cannot, with a view of showing complicity in a crime completed, show that the next day the men committed another crime of a deeper character. I think it is not only irrelevant, but highly objectionable.

The Court: We are of opinion that this testimony is superfluous, and superseded by the admission of the counsel. I understand the admission of the counsel to be, that the vessel was fitted out and manned by common understanding on the part of all the persons on board, as a privateer; and that in pursuance of that design and intent, and the completion of it, the Joseph was captured. That is all the counsel can ask. That shows the intent—all that can be proved by this subsequent testimony; and unless there is some legitimate purpose for introducing this testimony, which might, of itself, go to show another crime, we are bound to exclude it.

Mr. Evarts: We consider the decision of your honor rests upon that view of the admission, and we shall proceed upon that as being the admission.

The Court: Certainly; if anything should occur hereafter that makes it necessary, or makes it a serious point, the Court will look into it.

Examination resumed by District Attorney Smith.

Q. You stated, I believe, that it was after 8 o'clock in the evening when the boat of the Perry came to the Savannah?

A. Yes, sir.

Q. Who was in that boat?

A. There was a gentleman from the Perry; I do not know that I ever saw him before; an officer and boat's crew,—I suppose 15 or 20 men.

Q. One of the United States officers?

A. Yes, sir; some officer from the brig Perry boarded us, and demanded us to go on board the Perry.

Q. Where were the crew of the Savannah at the time the boat came from the Perry?

A. All on deck, sir.

Q. At the time the Savannah was running down the Joseph, what time was it?

A. We got up to the Joseph somewhere late in the forenoon, as near as my memory serves me.

Q. I want to know whether all the officers and crew of the Savannah were on duty, or not, at the time you were running down?

A. Yes, sir; there were some walking the deck, and some lying down, right out of port; the men, after taking a drink, did not feel much like moving about; they were all on deck.

Q. Was there any refusal to perform duty on the part of any one?

A. No, sir; all did just as they were told.

Q. How was the Savannah armed, if armed at all?

A. I never saw all her arms, sir.

Q. What was there on deck?

A. A big gun on deck.

Q. What sort of a gun?

A. They said an eighteen-pounder; I am no judge; I never saw one loaded before.

Q. A pivot gun?

A. No, sir, not much of a pivot. They had to take two or three handspikes to round it about.

Q. It was mounted on a carriage, the same as other guns?

A. Yes, sir.

Q. With wheels?

A. I believe so; I took no notice of the gun.

Q. Reflect, and tell us how the gun was mounted?

A. It was mounted so that it could be altered in its position by the aid of handspikes; it could be swung by the use of handspikes.

Q. The gun could be swung on the carriage without moving the carriage?

A. I do not know that part of it; I know the men complained that moving the gun was hard work.

Q. What other arms had you on board?

A. I saw other arms on board,—pistols, I believe, and cutlasses.

Q. How many pistols did you see?

A. I saw several; I do not know how many.

Q. About how many cutlasses?

A. I cannot say how many; I saw several, such as they were—cutlasses or knives, such as they were.

Q. Where were the cutlasses?

A. Those were in the lockers that I saw; I never saw them until Monday noon, when we ran down the Joseph; I saw them then.

Q. Where were they then?

A. I saw them in the lockers that lay in the cabin.

Q. When the Perry's boat came to you where were they?

A. Some out on the table, and some in the lockers.

Q. When you captured the Joseph where were they?

A. I think there were some out on the table, and about the cabin; the pistols, too; but there were none used.

Q. Were any of the men armed?

A. No, sir; I saw none of our men armed, except in their belt they might have a sheath knife.

Q. Where were all hands when you captured the Joseph, in the forenoon of Monday?

A. All on deck, sir; there might be one or two in the forecastle, but most on deck, some lying down, and some asleep.

Q. What size is the Savannah?

A. I think in the neighborhood of 50 to 60 tons.

Q. What is the usual crew for sailing such a vessel, for mercantile purposes?

A. I have been out in such a boat with four men and a boy, besides myself; that was all-sufficient.

Q. Where did you run to?

A. I ran to Havana, and to Key West, with the mails, and returned again in a pilot boat of that size, with four men and a boy, some years ago.

Q. Was the Savannah in use as a pilot boat before that expedition?

A. Yes; that is what she was used for.

Q. Do you know where the Savannah was owned?

A. I believe she was owned in Charleston.

Q. How long have you known her?

A. Two or three years, as a pilot boat.

Q. Do you know her owners?

A. I know one of them.

Q. What was his name?

A. Mr. Lawson.

Q. Is he a citizen of the United States?

A. Yes, I believe so.

Cross-examined by Mr. Larocque.

Q. In speaking of your meeting with the Joseph, you spoke of a conversation that took place between Captain Baker and Captain Meyer, after Captain Meyer came on board the Savannah. Do you not recollect that before that, when Captain Meyer was still on the deck of the Joseph, Captain Baker having called him to come on board the Savannah, and bring his papers, he asked Captain Baker by what authority he called on him to do that?

A. I think this conversation occurred on board the Savannah.

Q. The way you stated was this: that Captain Baker, on board the Savannah, stated to Captain Meyer that he must consider himself and crew prisoners, and his vessel a prize to the Confederate States?

A. Yes, sir.

Q. That was on board the Savannah?

A. It was.

Q. But do you not recollect that before that, when Captain Baker called on the Captain of the Joseph to come on board the Savannah, and bring his papers, Captain Meyer asked by what authority Captain Baker called on him to do that?

A. I do not bear that in mind. I cannot vouch for that. I do not exactly recollect those words, I think the proposition was only made when he was on board the Savannah, but probably it might have been made before.

Q. Did Captain Meyer bring his papers with him?

A. I do not know. I did not see them.

Q. You spoke of having met another vessel after that, and before you fell in with the Perry—I mean the Berkshire—you spoke of her as a British vessel?

A. Yes. We did not speak her.

Q. How did you ascertain the fact that she was a British vessel?

A. We could tell a British vessel by the cut of her sails.

Q. Was the Berkshire, so far as you observed, an armed or an unarmed vessel?

A. I think she was an unarmed vessel. I considered she had been at some of the Southern ports, and had been ordered off.

Q. She was a merchant vessel?

A. Yes.

Q. Which you, from your seamanlike knowledge, thought to be a British vessel?

A. Yes; and I think that the words, "Berkshire, of Liverpool," were on her stern.

Q. Did you read the name on the stern?

A. I think I did.

Q. You had fallen in with the Joseph, one unarmed vessel, and had made her a prize, and her crew prisoners?

A. Yes.

Q. You fell in with the Berkshire, another unarmed vessel, and passed under her stern and did not interfere with her. What was the reason of that difference?

A. We had no right to interfere with her.

Q. Why not?

A. She was not an enemy of the Confederate Government. The policy we were going on, as I understood it, was to take Northern vessels.

Q. Then you were not to seize all the vessels you met with?

A. No; we were not to trouble any others but those that were enemies to the Confederate Government. That was the orders from headquarters. The Captain showed no disposition to trouble any other vessels.

Q. When you were taken on board the Perry were you put in irons?

A. Yes.

Q. Where were those irons put on. Was it on board the Savannah, or after you were put on board the Perry?

A. When we got on board the Perry.

Q. How soon after you went on board the Perry were those irons put on?

A. As soon as our baggage was searched. We were put in the between-decks on board the Perry and irons put on us immediately after we were searched.

Q. Were you in irons when you were transferred from the Perry to the Minnesota?

A. No, sir.

Q. When were the irons taken off?

A. On board the Perry, when we were going into the boat to go on board the Minnesota.

Q. When you were on board the Minnesota were your irons put on again?

A. They were, at night.

Q. Was that the practice—taking them off in the day, and putting them on at night?

A. Yes; we were not ironed at all on that day on board the Minnesota.

Q. When you arrived in Hampton Roads,—you have described the place where the Minnesota lay, about half a mile from the Rip Raps?

A. Yes. (A chart was here handed to witness, and he marked on it the position of the Minnesota off Fortress Monroe.)

Q. As I understand it, you have marked the position of the anchorage of the Minnesota a little further up into the land than on a direct line between the Rip Raps and Fortress Monroe? A. Yes, sir.

Q. You were then taken on board the Harriet Lane, from the Minnesota?

A. Yes.

Q. Where did the Harriet Lane lie when you were taken on board of her?

A. She was further up into the Roads, about half a mile from the Minnesota, westward. (Witness marked the position of the Harriet Lane on the chart.)

Q. You are familiar with these Roads?

A. Yes, sir; for years.

Q. You know the town of Hampton?

A. Yes.

Q. And the college there?

A. Yes.

Q. How, with reference to the college at Hampton, did the Harriet Lane lie?

A. The college at Hampton appeared N.N.W., and at a distance of a mile and a quarter, or a mile and a half.

Q. How were you taken from the Minnesota on board the Harriet Lane?

A. The ship's crew took us in a boat.

Q. In one trip, or more trips?

A. We all went in one of the ship's boats.

Q. On what day was that?

A. I do not bear in mind exactly.

Q. Was the Harriet Lane ready to sail when you were taken on board of her?

A. Yes; she sailed in a few hours afterwards.

Q. She had already had steam up?

A. Yes; they were waiting for the commander, who was on shore.

Q. How long were you lying on board the Minnesota after your arrival there?

A. I think we were transferred from the Minnesota on Saturday, the 20th of June.

Q. How long had you been lying on board the Minnesota, in Hampton Roads?

A. Two or three days; I do not recollect exactly.

Q. You have been a seafaring man a good many years?

A. I have been about 34 years at it.

Q. In the capacity of master and mate?

A. Yes, sir.

Q. As pilot, also?

A. I have run pilot on all the coasts of America.

Q. How often had you been in Hampton Roads?

A. Many a time. I sailed a vessel in and out in the West India trade.

Q. How familiar are you with the localities about there?

A. I am so familiar that I could go in, either night or day, or into Norfolk.

Q. Do you know the ranges, bearings, distances, depth of water, and all about it?

A. Yes; and could always find my way along there.

Q. (By a Juror.) I understood you to say that the Savannah carried both the American flag and the Confederate flag?

A. Yes.

Q. And that the American flag was flying when you were bearing on the Joseph?

A. Yes.

Q. What was the object of sailing under that flag?

A. I presume our object was to let her know that we were coming; and, no doubt, the vessel heaved to for us. Suddenly enough we raised the Confederate flag.

Q. Then it was deception?

A. Of course; that was our business—that was as near as I understood it.

William Habeson called, and sworn. Examined by District Attorney Smith.

Q. You are the Deputy Collector of the port of Philadelphia? A. Yes, sir.

Q. Have you charge of the register of vessels there?

A. Yes.

Q. Did you take this certified copy of the register of the Joseph from the original book?

A. It is copied from the original book.

Mr. Evarts: It is a temporary register, dated 26th January, 1861, showing the building of the vessel, and the fact of her owners being citizens of the United States.

Q. Who was the master of the vessel then?

A. George H. Cables.

Q. Do you know who was the master afterwards?

A. Yes; I saw him afterwards. That man (pointing to Captain Meyer) is the man. He was endorsed as master after the issuing of this register.

Q. And you recollect this person being master of the vessel mentioned in that register?

A. I do, sir.

George Thomas called, and sworn. Examined by District Attorney Smith.

Q. Where do you reside?

A. Quincy, Massachusetts.

Q. What is your business?

A. Shipbuilder.

Q. Do you know the brig Joseph?

A. I have known her; I built her.

Q. Where did you build her?

A. At Rockland, Maine.

Q. Who did you build her for?

A. For Messrs. Crocket, Shaller, Ingraham, and Stephen N. Hatch—all of Rockland.

Q. Were they American citizens?

A. They were all American citizens.

Q. What was the tonnage of the vessel?

A. About 177 tons. She was a hermaphrodite brig.

Q. Look at this description in the register and say whether it was the vessel you built.

A. I have no doubt that this is the vessel.

George H. Cables called, and sworn. Examined by District Attorney Smith.

Q. Where do you reside?

A. Rockland, Maine.

Q. Look at the description of the brig Joseph, in this register, and see if you know her?

A. Yes, sir.

Q. You were formerly master of the vessel?

A. Yes, sir.

Q. Who was the master that succeeded you?

A. I put Captain Meyer in charge of her.

Q. You recognize Mr. Meyer here?

A. Yes, sir.

Q. Did you own any part of that vessel?

A. I bought a part of it, and gave it to my wife.

Q. Is your wife an American-born woman?

A. She is.

Q. Where does she reside?

A. In Rockland.

Q. Do you know any others of the part-owners of her?

A. Yes; my brother and myself bought a three-eighth interest.

Q. Where does your brother reside?

A. In Rockland.

Q. Is he an American-born citizen?

A. Yes.

Q. Are you an American citizen?

A. Yes.

Q. You spoke of some other owner?

A. Yes; Messrs. Hatch and Shaler.

Q. Are they American citizens?

A. Yes.

Q. Did you know all the owners?

A. Yes.

Q. Were they all American citizens?

A. Yes.

Q. When did you put Meyer in charge of the vessel?

A. On the 26th or 27th of April last.

Q. Where?

A. In Philadelphia.

Q. Where did you sail from?

A. From Cardenas, in Cuba, on a round charter which I made at Cardenas myself with J. L. Morales & Co., consigned to S. H. Walsh & Co.

Q. The ownership remained the same?

A. Just the same.

Q. Was there any change up to the time of her capture?

A. No, sir.

Thies N. Meyer, examined by District Attorney Smith.

Q. You were Captain of the brig Joseph at the time of her capture?

A. I was.

Q. What American port had you sailed from?

A. Philadelphia.

Q. Where did you go to?

A. Cardenas, in Cuba.

Q. What port did you sail for from Cardenas?

A. Back to Philadelphia.

Q. What cargo had you?

A. Sugar.

Q. By whom was it owned?

A. By J. M. Morales & Co., of Cardenas.

Q. When did you leave the port of Cardenas?

A. 28th May, 1861.

Q. And you were captured by the Savannah on the 3d June?

A. Yes.

Q. State the particulars of the capture by the Savannah of the brig Joseph from the time she first hove in sight?

A. Mr. Bridges, my mate, called me some time between 6 and 7 o'clock in the morning, and told me there was a suspicious looking vessel in sight, and he wished me to look at her. I went on deck and asked him how long he had seen her, he told me he had seen her ever since day-light. When I took the spy-glass and looked at her I found that she was a style of vessel that we do not generally see so far off as that. I hauled my vessel to E.N.E., and when I found that she was gaining on me I hauled her E. by N. and so until she ran E. About 8 o'clock she came near enough for me to see a rather nasty looking thing amid-ships, so that I mistrusted something; but when I saw the American flag hanging on her main rigging, on her port side, I felt a little easier—still, I rather mistrusted something, and kept on till I found I could not get away at all. When she got within half a gun shot of me I heaved my vessel to, hoping the other might be an American vessel.

Q. Had she any gun on board?

A. I saw a big gun amid-ships, on a pivot.

Q. How far on was she when you saw the gun?

A. About a mile and a half or two miles; I could see it with the spy-glass very plainly.

Q. Can you give us the size of the gun?

A. Not exactly; I believe it was an old eighteen pound cannonade.

Q. How was it mounted?

A. On a kind of sliding gutter, which goes on an iron pivot: it was on a round platform on deck, so that it could be hauled round and round.

Q. So that it could be pointed in any direction?

A. Yes, in any direction. After she came up alongside of me, Captain Baker asked me where I was from, and where bound, and ordered me with my boat and papers on board his vessel. I asked him by what authority he ordered me on board, and he said, by authority of the Confederate States. I lowered my boat and went on board with two of my men. When I got alongside, Captain Baker helped me over the bulwarks, or fence, and said he was sorry to take my vessel, but he had to retaliate, because the North had been making war upon them. I told him that that was all right, but that he ought to do it under his own flag. He then hoisted his own flag, and ordered a boat's crew to go on board the brig. Some of them afterwards returned, leaving six on board the brig.

Q. Did Captain Baker take your papers?

A. Yes.

Q. Do you recognize Captain Baker in court?

A. Yes. As soon as they secured my crew they hauled the brig on the other tack, and stood into the westward, with the privateer in company. Captain Baker desired me to ask my mate to take the sun, as he had a chronometer on board, and the privateer had not. At 3 o'clock the privateer stood back to find out the longitude; while so doing she got astern of the brig, and about that time the brig Perry hove in sight, steering southward and eastward. When they saw the brig Perry they hauled the privateer more on the wind, because she would go a point or two nearer to the wind than the brig Joseph, so as to cut off the Perry if they could. They went aloft a good deal with opera glasses, to find out what she was, and they made her out to be a merchant vessel, as they thought. Then they saw the Perry's quarter boats, and rather mistrusted her. They backed ship and stood the same as the Perry. The Perry then set gallant stern-sail, and kept her more free, because she got the weather-gauge of the privateer.

Q. At the time of the capture of the Joseph by the Savannah did you observe all the crew, and in what attitude they were on deck?

A. I saw them working around the gun and hauling at it. Whether it was loaded or not, I could not say.

Q. Were any of the men armed?

A. None at that time that I know of; but after I went on board I saw them armed with a kind of cutlass, and old-fashioned boarding-pistols; and they had muskets with bayonets on.

Q. At the time you left your vessel for the Savannah, in what attitude were the men on board the Savannah?

A. They were all around on deck. Perhaps half of them were armed.

Q. How was the gun pointed?

A. The gun was pointing toward the brig.

Q. Who were about the gun?

A. Before I went on board I saw that a man was stationed beside the gun; I could not say which of them it was.

Q. What crew had you?

A. I had four men, a cook, and mate.

Q. Were they armed?

A. No, sir.

Q. Were you armed?

A. I had one old musket that would go off at half-cock.

Q. Was there any gun on board your vessel?

A. None except that.

Q. How many men did you see on the deck of the Savannah? A. Some 16, or 18, or 20.

Q. Were you transferred to the Perry from the Savannah?

A. Yes.

Q. And from the Perry to the Minnesota?

A. Yes.

Q. And from the Minnesota to the Harriet Lane?

A. No; to the Savannah. I came to New York in the Savannah.

Q. Then the Savannah sailed to New York before the Harriet Lane did?

A. Yes, sir.

Q. Where were you born?

A. In the Duchy of Holstein, under the flag of Denmark.

Q. You have been naturalized?

A. Yes.

Q. In what Court?

A. In the Court of Common Pleas, New York.

Q. When did you come to this country?

A. In the winter of '47.

Q. Did you hail from here ever since?

A. I hailed from almost all over the States. I never had a home until lately. I have hailed from here about a year. Before that, wherever my chest was was my home.

Q. You have resided in the United States ever since you were naturalized?

A. Yes, sir; I have never been out of it except on voyages.

Q. You have continued to be a citizen of the United States since you were naturalized?

A. Yes.

Q. And to reside in the United States?

A. Yes.

Q. Do you recollect the names of your crew?

A. No, sir; none except the mate; his name was Bridges.

Q. Is he here?

A. Yes.

Q. When the Joseph was seized by the Savannah, what was done with the Joseph?

A. She was taken a prize, a crew of six was put on board of her, and they started with her to westward.

Q. What became of the rest of the men of the Joseph besides yourself?

A. They were carried on with the Joseph; I continued on the Savannah.

Q. When did you first observe, on board the Savannah, that the American flag was flying?

A. When she was within about a mile and a half off.

Q. At what time, in reference to her distance from you, did she run up the Confederate flag?

A. The Confederate flag was not run up until after I had asked Captain Baker by what authority he ordered me to go on board; then the Confederate flag was run up; that was just before I went on board.

Cross-examined by Mr. Larocque.

Q. Be good enough to spell your name.

A. Thies N. Meyer.

Q. Was there any flag hoisted on board the Savannah at the time she was captured by the Perry, or immediately preceding that?

A. They were trying to hoist the Stars and Stripes up, but it got foul and they could not get it up, and they had to haul it down again.

Q. Then she had no flag flying at the time?

A. No, sir.

The District Attorney here put in evidence the certified copy of the record of naturalization of Thies N. Meyer, captain of the Joseph, dated 28th January, 1856.

Horace W. Bridges, examined by District Attorney Smith.

Q. You were mate of the Joseph when she was captured by the Savannah?

A. Yes.

Q. Do you know the names of the others of the crew beside yourself and the captain?

A. I do not know all of them.

Q. State those you know?

A. The cook's name is Nash, and there was another man named Harry Quincy; that is all I know.

Q. Were they citizens of the United States?

A. I think they were both.

Q. Are you a citizen of the United States?

A. Yes; I was born in the State of Maine.

Q. You have heard the statement of Captain Meyer as to the seizure of the vessel?

A. Yes.

Q. You were on board the Joseph after she parted company with the Savannah and sailed for South Carolina?

A. Yes, sir.

Q. Under whose direction did she sail?

A. By the direction of the prize-master.

Q. With a prize crew from the Savannah?

A. Yes.

Q. Do you recollect the name of the prize-master?

A. Evans.

Q. How many men did the crew consist of?

A. Six, with the prize-master.

Q. What did they do with the vessel?

A. Took her into Georgetown.

Q. What was done with you and the others of the crew?

A. We were taken to jail at Georgetown.

Q. What was done with the vessel?

A. I believe she was sold, from what I saw in the papers and what I was told.

Q. Where were you taken from Georgetown?

A. To Charleston.

Q. What was done with you there?

A. We were put in jail again.

Q. How long were you kept in jail in Georgetown?

A. About 2 months and 20 days.

Q. How long were you kept in jail in Charleston?

A. Three days.

Cross-examined by Mr. Larocque.

Q. You said that, while you were held as a prisoner at Georgetown, you saw something in reference to the sale of the Joseph in the papers?

A. Yes.

Q. What was the purport of it?

A. She was advertised for sale.

Q. Under legal process?

A. I do not know about that. I was also told of it by one of the prize crew that took us in.

Q. You saw in the newspapers an advertisement of the sale?

A. Yes.

Q. Was that of a sale by order of a Court?

A. It was a sale by order of the Sheriff or Marshal.

Q. As a prize?

Objected to by District Attorney Smith, for two reasons:

First—That it was a mere newspaper account; and,

Secondly—That the newspaper was not produced.

After argument, the Court decided that there was no foundation laid for this hearsay evidence.

Q. Did the advertisement state by whose authority the sale was to take place?

A. I do not recollect anything about that.

Q. Do you recollect the name of a judge as connected with it?

A. No, sir. There was no judge connected with the sale.

Q. Do you recollect the name of Judge Magrath in connection with it?

A. No, sir; I recollect his name in connection with some prize cases, but not in connection with the sale of the Joseph.

Q. Since your arrival at New York, you have been examined partially by the District Attorney, and have made a statement to him?

A. Yes.

Q. Did you not state on that examination that while you were in confinement the vessel was confiscated by Judge Magrath, and sold at Georgetown?

A. No, sir; I do not think I did.

Q. You were released at Charleston, after a confinement of three days?

A. Yes.

Q. How did you get out?

A. The Marshal let us out.

Q. While you were in confinement at Georgetown or Charleston was your examination taken in any proceeding against the bark Joseph, or in relation to her?

A. Yes, sir. In Georgetown.

Q. By whom was that examination taken?

Mr. Evarts suggested that there was a certain method of proving a judicial inquiry.

Judge Nelson: They may prove the fact of the examination.

Q. Before whom were you examined?

A. Before a man who came from Charleston.

Q. Did he take your examination in writing?

A. Yes, sir.

Q. Did you learn what his name was?

A. I think his name was Gilchrist.

Q. Were you sworn, as a witness?

A. Yes.

Q. What proceeding was that, as you were given to understand, and what was the object of the examination?

A. The object of it was to find out what vessel she was, what was her nationality, and who owned the cargo belonging to her.

Q. And you gave your testimony on these subjects.

A. Yes.

Q. Was it in written questions put to you?

A. I think so.

Q. And you signed your examination?

A. Yes.

Q. And what came of it afterwards?

A. I do not know.

Q. Was it taken away by Mr. Gilchrist?

A. I expect so.

Q. Was there any other of the crew besides yourself examined? A. Yes; all of them.

Q. On the same subject?

A. I expect so.

Q. Were you present during the examination of them all?

A. No; only at my own.

Q. What newspaper was it that you saw that advertisement in?

A. I think in the Charleston Courier.

Q. Do you recollect its date?

A. No, sir.

Q. What had become of the vessel when you went to Charleston?

A. She was lying in Georgetown.

Q. Do you know in whose possession, or under whose charge, she was?

A. I do not.

Q. Was she in Georgetown, in the hands of the Marshal, to your knowledge?

A. No, sir; not to my knowledge. I was in prison at the time.

Commodore Silas H. Stringham, examined by District Attorney Smith.

Q. You are in the United States Navy?

A. I am.

Q. The Minnesota was the flag ship of the Atlantic Blockading Squadron, off Charleston?

A. Yes, sir. I was the commanding officer.

Q. The Minnesota took the prisoners off the Perry?

A. Yes; on the 5th of June, in the afternoon.

Q. State precisely where the transfer from the Perry to the Minnesota was made?

A. I discovered, about mid-day, a vessel close in to Charleston. I stood off to make out what she was. A short time afterwards we discovered it was the Perry, and were surprised to find her there, as she had been ordered, some time previously, to Fernandina, Fla. She hailed us, and informed us she had captured a piratical vessel. The vessel was half a mile astern. Captain Parrott, of the Perry, came and made to me a report of what had taken place. I ordered him to send the prisoners on board, and sent a few men on board the Savannah to take charge of her during the night. The vessels were then anchored. The next morning I made arrangements to put a prize crew on board the Savannah, and send her to New York, and I directed the Captain of the Joseph to take passage in her. I took the prisoners from the Perry, and directed the Perry to proceed on her cruise, according to her previous orders. I then got the Minnesota under weigh, and took the privateer in tow, and brought her close in to Charleston harbor, within 3 miles, so as to let them see that their vessel was captured. Some slaves in a boat told me next day that they had seen and recognized the vessel.

Mr. Brady: The question you were called upon to answer is, as to the place where the prisoners were transferred from the Perry to the Minnesota.

A. The transfer was made about 10 miles from Charleston Harbor, out at sea. It was fully 10 miles off.

Q. State the design of transferring the prisoners to the Minnesota?

Objected to by Mr. Larocque.

ARGUMENT ON THE JURISDICTION.

The District Attorney, Mr. Smith, stated that he would prove that every thing done from that time onward was done in pursuance of a design then conceived of sending the prisoners, to the port of New York.

Mr. Larocque contended that the naked question of jurisdiction, or want of jurisdiction, could not be affected by showing that the prisoners were taken on board a particular vessel, with or without a particular design. All that affected that question was, the place where the prisoners were first taken to after they were captured. The only question their honors could consider was, whether, after their apprehension, the prisoners were or were not brought within the District of Virginia, so as to give the Court of Virginia jurisdiction, before they were brought to New York. The fact that Commodore Stringham did, or did not, entertain in his own mind a design to bring the prisoners to New York, was of no relevancy whatever. Their objection was based on the broad ground, that the statute had fixed the only District that was to have jurisdiction of these criminals, namely, the District within which they are first brought. If they were first brought within the District of Virginia, the design which the Commodore might have entertained made no manner of difference, and the fact could not be got rid of by any evidence to show that the design was not to put themselves in that dilemma.

Mr. James T. Brady submitted an argument on the same side. He said that the true test of the correctness of the objection could be ascertained thus: If a man were arrested anywhere on the high seas, supposed to be amenable to the Act of 1790, and was brought into a port of the United States, within a Judicial District of the United States, could he not demand, under the Act of Congress, to be tried in that District? Could the commander of the vessel supersede that Act of Congress, and say he would take the prisoner into the port of New York, or any other port? What answer would that be to a writ of habeas corpus sued out by either of these men confined on that ship, within that Judicial District? If any such rule as that could prevail, the Act of Congress would become perfectly nugatory and subservient to the will of the individual who apprehended prisoners on the high seas. If he had started on a cruise round the world, he could carry them with him, and, after returning to the United States, could take them into every District till he came to the one that suited him. Mr. Brady, therefore, claimed that it was wholly immaterial what might have been the design of Commodore Stringham; and that the question of jurisdiction was determined by the physical fact, as to what was the first Judicial District into which these men were brought after being apprehended on the high seas.

Mr. Evarts considered that this was a question rather of regularity of discussion, than a question to be now absolutely determined by the Court. He supposed that they were entitled to lay before the Court all the attendant facts governing the question of, whether the introduction of these criminals from the point of seizure on the high seas was, within the legal sense, made into the District of New York, or into that of Virginia—whether the physical introduction of prisoners, in the course of a voyage toward the port of New York, into the roads at Hampton, is, within the meaning of the law, a bringing them into the District of Virginia. If the substantial qualification of the course of the voyage from the point of seizure to the place of actual debarcation was to affect the act, this was the time for the prosecution to produce that piece of evidence; and he supposed that that important inquiry should be reserved till the termination of the case, when the proof would be all before the Court. He suggested that no large ship could enter the port of New York without physically passing through what might be called the District of New Jersey; and argued that, in no sense of the act, and in no just sense, should these prisoners be tried in New Jersey, because the ship carrying them had passed through her waters.

Mr. Larocque, for the defendants, contended that the arrest of the parties as criminals was at the moment when they were taken from on board the Savannah, placed on board the Perry, and put in irons. The learned gentleman (Mr. Evarts) had said that it would be impossible to bring them within the District of New York without first bringing them within the District of New Jersey; but that objection was met by the fact that, over the waters of the bay of New York, the States of New Jersey and New York exercised concurrent jurisdiction, and therefore they came within the District of New York, to all intents and purposes. He proposed to refer to the authorities on which the point rested.

In this case, the place where the arrest was made was the Perry, a United States cruiser, which, in one sense, was equivalent to a part of the national soil; and he held that the idea under this statute was, that their apprehension and confinement from the moment they were arrested as criminals was complete, without being required to be under legal process, it being sufficient that they were arrested by the constituted authorities of the United States. The moment they were brought within a Judicial District of the United States, that moment the jurisdiction attached; and no jurisdiction could attach anywhere else. This was an offence committed on the high seas. All the Districts of the country could not have concurrent jurisdiction over it; and this very case was an exemplification of the injustice that would result from permitting an officer, in times of high political excitement, to have the privilege, at his mere pleasure or caprice, of selecting the place of jurisdiction, and the place of trial. Suppose these prisoners, instead of being landed at the first place where the vessel touched, could have been taken up the Mississippi river in a boat, and up the Ohio river in another boat, and landed within the District of Ohio, for the purpose of being tried there,—would not their honors' sense of justice and propriety revolt at that? The same injustice would result in a different degree, and under different circumstances, if, after taking these prisoners to Virginia and ascertaining the difficulties in the way of their being tried there, the officer could change their course and bring them into the port of New York. The prisoners were entitled to the benefit of being tried in the District where they were first taken, in preference to any other District; and justice would be more surely done by holding a strict rule on that subject, by requiring that the facts should control, and that no mere intention on the part of the captors should be allowed to govern.

One of the cases on this subject which had produced a misapprehension of the question was that of the United States vs. Thompson, 1st Sumner's Reports, which was an indictment for endeavoring to create a revolt, under the Act of 1790. It was in the Massachusetts District. The facts in the case were these:—"The vessel arrived at Stonington, Connecticut, and from thence sailed to New Bedford, Massachusetts, where the defendant was arrested, and committed for trial. It did not appear that he had been in confinement before. Judge Story ruled on the question of jurisdiction. He said: 'The language of the Crimes Act of 1790 (Cap. 36, sec. 8) is, that the trial of crimes committed on the high seas, or in any place out of the jurisdiction of any particular State, shall be in the District in which the offender is apprehended, or into which he shall first be brought. The provision is in the alternative, and therefore the crime is cognizable in either District. And there is wisdom in the provision; for otherwise, if a ship should, by stress of weather, be driven to take shelter temporarily in any port of the Union, however distant from her home port, the master and all the crew, as well as the ship, might be detained, and the trial had far from the port to which she belonged, or to which she was destined. And if the offender should escape into another District, or voluntarily depart from that into which he was first brought, he would, upon an arrest, be necessarily required to be sent back for trial to the latter. And now there is no particular propriety, as to crimes committed on the high seas, in assigning one District rather than another for the place of trial, except what arises from general convenience; and the present alternative provision is well adapted to this purpose.'"

This was noticed, in the first place, in the case of the United States vs. Edward C. Townsend, of which he (Mr. Larocque) held in his hand a copy of the exemplication of the record. Townsend was charged, in the District Court of Massachusetts, with piracy, in having been engaged in the slave trade, in 1858. He was captured on board the brig Echo, by a United States cruiser. That vessel first made the port of Key West, putting in there for water; and thence proceeded to Massachusetts, where the prisoner was landed, taken into custody under a warrant of the Commissioner, and the matter brought before the Grand Jury, for the purpose of having an indictment found against him. In that case Judge Sprague charged the Grand Jury that, under the law, the prisoner could only be tried in Key West, because that was the first port which the vessel had made after he had been captured and confined as a prisoner. Under that instruction the Grand Jury refused to find a bill of indictment; and thereupon the District Attorney (Mr. Woodbury) applied to the court for a warrant of removal, to remove him to Key West, for trial; and also to have the witnesses recognized to appear at Key West, to testify on the trial. The counsel read a note from Mr. Woodbury on the subject, showing that Mr. Justice Clifford, of the Supreme Court of the United States, sat and concurred with Judge Sprague in granting the warrant of removal. He referred also to another case, decided by Judge Sprague—the United States vs. Bird—volume of Judge Sprague's Decisions, page 299: "This indictment alleged an offence to have been committed on the high seas, and that the prisoner was first brought into the District of Massachusetts. Questions of jurisdiction arose upon the evidence. The counsel for the prisoner contended that the offence, if any, was committed on the Mississippi river, and within the State of Louisiana; and, further, that if committed beyond the limits of that State, the prisoner was not first brought into this District. Sprague, J., said that, if an offence be committed within the United States, it must be tried in the State and District within which it was committed. Constitution Amendment 6, If the offence be committed without the limits of the United States, on the high seas, or in a foreign port, the trial must be had in the District 'where the offender is apprehended, or into which he may be first brought.'—Stat. 1790, cap. 9, sec. 8; Stat. 1825, cap. 65, sec. 14. By being brought within a District, is not meant merely being conveyed thither by the ship on which the offender may first arrive; but the statute contemplates two classes of cases: one, in which the offender shall have been apprehended without the limits of the United States, and brought in custody into some Judicial District; the other, in which he shall not have been so apprehended and brought, but shall have been first taken into legal custody, after his arrival within some District of the United States, and provides in what District each of these classes shall be tried. It does not contemplate that the Government shall have the election in which of two Districts to proceed to trial. It is true that, in United States vs. Thompson, 1 Sumner, 168, Judge Story seems to think that a prisoner might be tried either in the District where he is apprehended, or in the District into which he is first brought. But the objection in that case did not call for any careful consideration of the meaning of the word 'brought,' as used in the statute; nor does he discuss the question, whether the accused, having come in his own ship, satisfies that requisition. In that case the party had not been apprehended abroad; and the decision was clearly right, as the first arrest was in the District of Massachusetts. The statute of 1819, cap. 101, sec. 1 (3 U.S. Statutes at Large, 532), for the suppression of the slave trade, is an example of a case in which an offender may be apprehended without the limits of the United States, and sent to the United States for trial. Ex parte Bollman vs. Swartwout, 4 Cranch, 136."

Their honors would observe that in both the cases cited, correcting the manifest misapprehension of Judge Story, the point was distinctly held that the question of jurisdiction was controlled exclusively by the fact as to what District the prisoner was first brought into after his arrest on the high seas, out of the United States, for a crime committed on the high seas.

Judge Nelson stated that, as it was now late (half-past 5 P. M.), the question might go over till morning.

The counsel on each side assenting, the Jury were allowed to separate, with a caution from the Court against conversing in respect to the case.

Adjourned to Thursday, at 11 A.M.

SECOND DAY.

Thursday, Oct. 24, 1861.

The Court met at 11 o'clock A.M.

Judge Nelson, in deciding the question raised yesterday, said:

So far as regards the question heretofore under consideration of Judge Sprague, we do not think that at present involved in the case. We will confine ourselves to the decision of the admissibility of the question as it was put by the District Attorney and objected to, as respects the purpose with which the Minnesota, with the prisoners, was sent to Hampton Roads. We think that the fact of their being sent by the commanding officer of that place, with the prisoners, to Hampton Roads, is material and necessary; and, in order to appreciate fully the fact itself, the purpose is a part of the res gestæ that characterizes the fact. What effect it may have upon the more general question, involving the jurisdiction of the Court, is not material or necessary now to consider. We think the question is proper.

Counsel for defendants took exception to the ruling of the Court.

Commodore Stringham recalled. Direct examination resumed by Mr. Smith.

Q. What was your object in transferring the prisoners from the Perry to the Minnesota?

A. Sending them to a Northern port. The port of New York was the port I had in my mind. To send them by the first ship from the station, as soon as possible, to a Northern port, for trial. I could not send them to a Southern port for trial. The only way I could do so would be by guns. I could get no landing in those places otherwise; and I could get no judge or jury to give them a trial.

Mr. Larocque asked if, conceding the propriety of the inquiry, the statement of the witness was competent, viz.: that he had a port in his mind.

The Court: No; the question was not put in the shape I supposed. The question should have been—for what purpose or object did he send the prisoners in the Minnesota to Hampton Roads? That is the point in the case—the intent with which the vessel was sent to Hampton Roads?

A. I sent them there with the intention of sending them to a Northern port, for trial. The Harriet Lane being the first vessel that left, after my arrival there, they were sent in the Harriet Lane to the Northern port of New York.

Q. Why did you not take them in the Minnesota directly to New York, instead of taking them to Hampton Roads?

A. My station was at Hampton Roads, and I went there to arrange the squadron that might be there, and to get a supply of fuel for the ship. I do not think we had enough to go to New York, if we wished to go there. I had supplied vessels on the coast below, and had exhausted pretty nearly all the coal from the Minnesota when we arrived at Hampton Roads.

Q. What directions did you give to the officers of the Harriet Lane?

A. I gave no directions to the officers of the Harriet Lane. I gave directions to the commander of the Minnesota. I left on the day previous, I think, to their being transferred to the Harriet Lane,—giving directions that, as soon as she came down from Newport News, to send her to New York, with the prisoners. I had been called to Washington, by the Secretary of the Navy, the day before she sailed.

Q. Are you aware of any facts which rendered it impossible to land the prisoners in the Virginia District, or on the Virginia shore?

A. It was impossible to land without force of arms, and taking possession of any port. We could land them there, but not for trial, certainly. The Harriet Lane had been fired into but a short time previous; and that was one cause of sending her to New York.

Q. Fired into from the Virginia shore?

A. Yes, sir; from Field Point; I should judge, about 8 miles from Norfolk port, on the southern shore, nearly opposite Newport News. I was not there, but it was reported to me. She was fired into, and she was ordered to New York to change her armament.

Q. Was that fort in the way, proceeding to Norfolk?

A. Not on the direct way to Hampton Roads, but a little point on the left.

Q. Would a vessel, going the usual way to Norfolk, be in range of the guns that were fired at the Harriet Lane?

A. Not of these; but she would be in the range of four or five forts that it would be necessary to pass in order to land the prisoners at Norfolk.

Q. What was the nearest port to where the Minnesota went with the prisoners?

A. The nearest port of entry was Norfolk. Hampton Roads was a little higher up. We were not anchored exactly at the Roads, but off Old Point, which is not considered Hampton Roads.

[Map produced.] I have marked the position of the Minnesota on this map, in blue ink. [Exhibits the position to the Court.]

Q. State the position of the Minnesota?

A. That is as near as I can put it—between the Rip Raps and Fortress Monroe—a little outside of the Rip Raps.

Q. In what jurisdiction is the Fort?

A. In the United States.

(Objected to, as matter of law.)

Q. At what distance were you from Fortress Monroe?

A. About three-quarters of a mile, and nearly the same from the Rip Raps.

Q. What distance from Norfolk?

A. I think 14 miles, as near as I can judge; 12 or 14.

Q. Had you any instructions from the Government, in respect to any prisoners that might be arrested on the high seas, as to the place they were to be taken to?

A. Not previous to my arriving at Hampton Roads. After that, I had. Those instructions were in writing.

Q. You had no particular or general instructions previous to that?

A. No, sir; it was discretionary with me, previous to that, where to send the prisoners I had.

Q. When vessels are sent from one place to another, state whether it is not frequently the case that they take shelter in roadsteads?

(Objected to. Excluded.)

Q. Where did your duties, as flag-officer of the squadron, require you to be with your ship, the Minnesota?

(Objected to. Excluded.)

Q. Where do Hampton Roads commence on this map, and where end?

A. In my experience, I have always considered it higher up than where we were anchored. This is anchoring off Fortress Monroe, when anchoring there. When they go a little higher up, they go to Hampton Roads; and, before the war, small vessels anchored up in Newport News, in a gale of wind.

Q. Where did the Minnesota anchor, in respect to Hampton Roads?

A. We anchored outside, sir. I can only say this from the pilot. When commanding the Ohio, he asked me whether I wished to anchor inside the Roads. Baltimore pilots have permission to go into Hampton Roads, and no farther. That is considered as neutral ground for all vessels.

By the Court:

Q. What is the width of the entrance to the Hampton Roads?

A. I should judge about 3-1/2 miles, or 3-1/4, from Old Point over to Sewall's Point. I have not measured it accurately. It is from 3 to 4 miles.

By Mr. Smith:

Q. Was the Minnesota brought inside or outside of a line drawn from Old Point to the Rip Raps?

A. A little outside of the line, sir.

By a Juror:

Q. Would a person be subject to any port-charges where the Minnesota lay?

A. No, sir.

Defendants' counsel objected to the question and answer.

The Court:

Q. What do you mean by port dues?

A. I mean they do not have to enter into the custom-house to pay port-charges. It is not a port of entry, that compels them to carry their papers. The only port-charges I know of are the pilot-charges, in and out.

(The Court ruled it out as immaterial.)

Cross-examined by Mr. Brady.

Q. I want, for the purpose of preventing any misapprehension, to ask if there is any line that you know of, which you could draw upon that map, distinguishing the place at which Hampton Roads begins?

A. Nothing only among sea-faring men;—just as the lower bay of New York, which is considered to be down below the Southwest Spit. When anchored between this and that, it is called off a particular place, as Coney Island, &c. So, there, after you pass up from Fortress Monroe, it is called Hampton Roads.

Q. Is there any specific point you can draw a line from on the map that distinctly indicates where Hampton Roads begin? A. I cannot, sir.

Q. Designate where the Harriet Lane was?

A. I cannot say, sir. She was at Newport News when I left, and came down the next day, I believe, and took the prisoners on board and proceeded to New York.

Q. The Minnesota was anchored?

A. Yes, sir, but not moored; with a single anchor.

Q. How much cable was out?

A. From 65 to 70 fathoms, I think. I generally order 65 fathoms; but the captain gave her 5 fathoms more.

Q. Would she swing far enough to affect the question whether she was in or outside of Hampton Roads, as you understood it?

A. No, sir.

Q. Had you often been there before?

A. I had, sir, often. I was there 51 years ago. I started there.

Q. Did you ever have occasion, for any practical purposes, to locate where Hampton Roads began?

A. Yes, sir; several times I have anchored there with ships under my command, and the pilots have said, "Will you go up into the Roads?" and I said, "Yes;" and we never anchored within two or three miles of where we lay with the Minnesota.

Q. But it was not your object to get at any particular line which separated Hampton Roads?

A. No; we considered it a better anchorage. The only importance was a better anchorage.

Q. You had no instructions of any kind in regard to the prisoners before you left for Washington?

A. I would say I had not, before I arrived at Hampton Roads, or at Old Point.

Q. Did you receive any between the time of your arrival and your departure for Washington?

A. I cannot say, but I think not.

Q. The only instructions you gave were that, when the Harriet Lane came up, the prisoners should be removed, and sent to New York?

A. I gave orders that they should be sent to New York and delivered to the Marshal.

Q. There would be no difficulty to transfer prisoners to Fortress Monroe?

A. No, sir, no difficulty.

Q. Could they not have been taken to Hampton?

A. I think not. Our troops had abandoned Hampton and moved in, I think. There was nothing there to land at Hampton. We may have had possession at that time.

Q. Do you know of any obstacle whatever to these men having been taken ashore at Old Point Comfort and carried to Hampton?

A. I went up twice to Washington, with Colonel Baker, when he abandoned Hampton; but I think at the time the prisoners were on board we had the occupation of Hampton by our troops. My impression is, we occupied it partly with our troops at that time. I went to Washington at another time, when the troops had abandoned Hampton, and Colonel Baker took his soldiers up in the same boat.

Q. A college has been described on shore, and the locality described. Was it not occupied as an hospital?

A. Yes, sir, at the time the Minnesota arrived. It is not in Hampton.

Q. When the Minnesota arrived with the prisoners was not that building in possession of our Government?

A. It was, sir, I believe. I was not in it.

By Mr. Evarts: Is not the hospital at Old Point?

A. Near Old Point.

By Mr. Brady: Designate on the chart where it is?

A. I have done so,—the square mark, on the shore, in the rear of the fort, on the Virginia shore.

By the Court: How much of a town is Hampton?

A. There is none of it left now. I suppose it was a town of 4,000 or 5,000 inhabitants.

Q. Was it not formerly a port of entry?

A. No, sir, I believe not; not that I know of. That was 4 or 5 miles off from the vessel.

By Mr. Brady: How far was Hampton from Fortress Monroe?

A. I should judge 3 miles.

Q. I ask again, before you left the Minnesota, after the arrival of the prisoners, had you any instructions from Washington in regard to these prisoners?

A. I cannot bring to my mind whether I had any or not. I had instructions, subsequent to my arrival, about all prisoners, and that was the reason why I came here. There was some question as to why I came with 700 prisoners; but I had instructions to bring all prisoners taken, and turn them over to Colonel Burke, of New York.

Q. After you arrived at Washington did you receive any instructions in regard to these prisoners?

A. I do not know that I did. I had some discussion in Washington.

Q. Did you communicate from Washington, in any way, to Fortress Monroe, or the Minnesota, in regard to the prisoners? A. No, sir.

Q. They went forward under the directions you gave before leaving to go to Washington?

A. They did, sir; I gave the instructions. I did not know whether the Harriet Lane would be ready. She was waiting until the vessel arrived to relieve her from the station.

Q. Was General Butler at Fortress Monroe at the time of the arrival of the prisoners?

A. He was, sir.

Q. Did you confer with him about it?

A. No, sir.

Q. Neither then nor at Washington?

A. No, sir.

Q. Was there any conversation between you and him in regard to that?

A. I do not think there was until after my return and the prisoners had gone to New York.

Re-direct.

Q. How large a space is occupied by the hospital to which you have referred?

A. I cannot give the number of feet, but I think about 150 feet square. I never was in it but once, when I passed in for a moment, and right out of the hall.

David C. Constable called by the prosecution and sworn.

Examined by Mr. Smith.

Q. You are a Lieutenant in the United States Navy?

A. Not now; I am First Lieutenant of the Harriet Lane. We were then serving under the Navy; I am now in a revenue cutter.

Q. Were you on board the Harriet Lane when she received the prisoners from the Minnesota?

A. I was, sir.

Q. Who did you receive your orders from on the subject?

A. Captain Van Brunt, of the Minnesota.

Q. Was that a verbal order?

A. No; a written one, sir.

Q. Was it an order to bring the prisoners to New York?

A. To proceed with the prisoners to New York, and deliver them to the civil authorities, I think.

Q. Where was the Harriet Lane, in respect to the Rip Raps and fort at Old Point Comfort, when the prisoners were taken on board from the Minnesota?

A. We were about half a mile, I should judge, from the Minnesota; a little nearer in shore.

Q. Where had the Harriet Lane come from?

A. From Newport News.

Q. Did she, or not, come from Newport News in pursuance of the object to go to New York?

A. Yes, sir; although at the time we had received no orders in regard to any prisoners. We were coming on for a change of armament and for repairs.

Q. The Harriet Lane had been fired into?

A. She had, sir.

Q. Where was she when fired into?

(Objected to. Offered to show the impossibility of landing. Ruled out as immaterial.)

Q. How was the transfer made from the Minnesota to the Harriet Lane?

A. By boats.

Q. Show on this map where the Harriet Lane was when the transfer was made of the prisoners from the Minnesota, and also where the Minnesota lay?

[Witness marked the place on map.]

Q. State the relative position of the vessels as you have marked it?

A. I should judge we were about a mile from Old Point, in about eleven fathoms of water, and probably about a mile from the Rip Raps. I do not remember exactly.

Q. The Harriet Lane was about half a mile further up?

A. Yes, a little west of the Minnesota, but farther in shore.

Q. What is your understanding in respect to where Hampton Roads commence, in reference to the position of these vessels?

A. I had always supposed it was inside of Old Point and the Rip Raps, after passing through them,—taking Old Point as the Northern extremity, and out to Sewall's Point.

Q. How in respect to where the Harriet Lane lay?

A. I consider she was off Old Point, and not, properly speaking, in Hampton Roads.

Q. The Minnesota was still further out?

A. Yes, sir, a very little.

Q. You brought the prisoners to New York in the Harriet Lane and delivered them to the United States Marshal at New York?

A. Yes, sir.

Q. You delivered them from your vessel to the United States Marshal?

A. Yes, sir; the United States Marshal came alongside our ship, while in the Navy Yard, in a tug, and they were delivered to him.

Q. Do you remember the day they arrived at New York?

A. On the 25th of June, in the afternoon.

Q. In what service was the Harriet Lane?

A. In the naval service of the United States.

Cross-examined by Mr. Brady.

Q. As has already been stated, there was no difficulty about landing the prisoners from the Minnesota at Fortress Monroe, or at the College Hospital, or at Hampton. Was there any difficulty in taking them to Newport News?

A. No, sir; I suppose they might have been taken to Newport News.

Q. Who was in possession of Newport News at that time?

A. The United States troops, sir. Our vessel had been stationed there for six weeks preceding.

Re-direct.

Q. What occupation had the United States of Fortress Monroe, and of this hospital building, and of Newport News? Was it other than a military possession?

(Objected to by defendants' counsel.)

The Court: It is not relevant.

Mr. Evarts: We know there was no physical difficulty in landing them; we want to know whether there was any other.

The Court: We need not go into any other. Practically, they could have been landed there. That is all about it. As to being a military fort, and under military authority, that is not of consequence.

Mr. Evarts: As to military forts receiving prisoners at all times?

The Court: We do not care about that. It is not important to go into that. We know it is a military fort, altogether under military officers. Civil justice is not administered there, I take it.

Daniel T. Tompkins called by the Government; sworn.

Examined by Mr. Smith.

Q. You were Second Lieutenant on the Harriet Lane?

A. I was, sir.

Q. You were present at the transfer of these prisoners from the Minnesota to the Harriet Lane?

A. Yes, sir.

Q. You were with them to New York?

A. Yes; but I was ashore when they were delivered here.

Q. You accompanied the prisoners on the voyage?

A. Yes, sir.

Q. Where did the Harriet Lane lie at Hampton Roads, in relation to the Fort and Rip Raps?

A. I should think we were about a mile from the Rip Raps, and probably three-fourths of a mile from the Fort.

Q. At the time of the transhipment?

A. Yes, sir.

Q. The transhipment was made in boats?

A. Yes, sir,—in a boat from the Minnesota. I believe all came in one boat.

Q. Where do Hampton Roads commence, as you understand, in respect to where the Harriet Lane was?

A. I think they commence astern of where we lay; a little to the westward, as we were lying off of Old Point.

Q. Look upon that map and indicate, by a pencil, where the vessels lay, without any reference to the marks already made there—in the first place the Minnesota and then the Harriet Lane—when the transhipment was made, taken in relation to the Fort and the Rip Raps?

Witness marks the positions, and adds: We were about half a mile from the Minnesota, I should say.

J. Buchanan Henry called by the prosecution; sworn. Examined by Mr. Smith.

Q. In June and July last you were United States Commissioner? A. From the 15th of June.

Q. [Producing warrant.] Is that your signature?

A. It is.

Counsel for prosecution reads warrant, issued by J. Buchanan Henry, in the name of the President, addressed to the Marshal, dated June 26, 1861.

(Objected to as irrelevant. Objection overruled.)

Q. This warrant was issued by you?

A. It was, sir.

Q. On an affidavit filed with you?

A. Yes, sir.

Cross-examined.

Q. Against all these prisoners?

A. Yes, sir.

Defendants take exception to the admission of the testimony.

The U.S. District Attorney was about to call the Marshal, to prove that he arrested the prisoners.

Defendants' counsel admitted the prisoners were arrested, under this warrant, by the Marshal, in this district.

Mr. Brady: Perhaps you can state, Mr. Smith, where they were when arrested under that warrant?

Mr. Smith: They had been brought to the Marshal's office, I think.

Mr. Brady: They were in the Marshal's office when arrested?

Mr. Smith: They were brought to the Marshal's office before the writ was served.

Ethan Allen called by the prosecution; sworn. Examined by Mr. Smith.

Q. You are Assistant District Attorney?

A. I am, sir.

Q. And were in June last?

A. Yes, sir.

Q. Do you remember, at my request, calling upon the prisoners now in Court?

A. I do, sir.

Q. Did you call upon every one?

A. I called upon all the prisoners at the Tombs.

Q. Upon each one separately?

A. I called upon them in the different cells. They were confined two by two.

Q. Had you previously attended, as Assistant District Attorney, upon the examination of these prisoners?

A. I had, upon one or two occasions.

Q. Were the prisoners all present on those occasions?

A. They were present once, I distinctly recollect.

Q. Did you then talk with them?

A. No, sir; I addressed myself to the Commissioner in adjourning the case.

Q. Was there any examination proceeded with?

A. There was no examination.

Q. State what you said to the prisoners, the object of your calling, and what their reply was. I ask, first, did you make a memorandum at the time?

A. I did, sir.

Q. Was it made at the very time you asked the questions?

A. I took paper and pencil in hand, and asked the questions which you requested, and took a note of it.

Q. What was the object of your calling upon them?

A. To ask them where they were born; and, if born elsewhere, were they naturalized.

Q. Did you state for what purpose you made this inquiry?

A. I do not recollect that I made any statement to the prisoners for what purpose I wanted the information. I told them I wanted it. They seemed to recognize me as Assistant District Attorney; and as to those that did not recognize me, I told them I was Assistant District Attorney. The memorandum produced is the one I made at the time.

Q. Referring to that, give the statements that were made by each of the prisoners in reply to your questions?

A. Henry Cashman Howard said he was born in Beaufort, North Carolina.

Charles Sydney Passalaigue said he was born in Charleston, South Carolina.

Joseph Cruse del Carno said he was born in Manilla, in the Chinese Seas, and was never naturalized.

Thomas Harrison Baker said he was born in Philadelphia.

John Harleston said he was born in Anderson District, or County, in South Carolina.

Patrick Daly was born in Belfast, Ireland. Has never been naturalized.

William C. Clarke born in Hamburg, Germany. Never naturalized.

Henry Oman born in Canton. Never was naturalized.

Martin Galvin born in the County Clare, Ireland. Not naturalized.

Richard Palmer born in Edinburgh. Never naturalized.

Alexander C. Coid was born in Galloway, Scotland. Was naturalized in Charleston,—about 1854 or 1855, he thinks.

John Murphy born in Ireland. Never naturalized.

Mr. Brady: We will insist, hereafter, that this admission of naturalization cannot be used at all.

Mr. Evarts: We will concede that.

By Mr. Smith: Do you remember asking the prisoners for their full names?

A. I asked them particularly for their full names.

Q. Are they correctly stated in the indictment?

A. They are stated from the memorandum which I then took; that is my only means of recollection.

Mr. Smith: The Assistant District Attorney desires me to state that he did not know that he was to be called as a witness in the case; that if he had had any idea that he would be called as a witness, he would not have made the visit. Yesterday, for the first time, he ascertained that he would be called. I would also state that I did not send him there for the purpose of making him a witness, but with the object of obtaining particulars which might render the allegations in the indictment entirely accurate in respect to every detail.

Mr. Smith added: I now close the case for the prosecution.

OPENING FOR THE DEFENCE.

Mr. Larocque opened the case for the defence. He said:

May it please the Court, and you, Gentlemen of the Jury:

We have now reached that stage in this interesting trial where the duty has been assigned to me, by my associates in this defence, of presenting to you the state of facts and the rules of law on which we expect to ask from you an acquittal of these prisoners. I could wish that it had been assigned to some one more able to present it to you than myself, for I feel the weight of this case pressing upon me, from various considerations connected with it, in a manner almost overpowering. I think that we have proceeded far enough in this case for you to have perceived that it is one of the most interesting trials that ever took place on the continent of America, if not in the civilized world. For the first time, certainly in this controversy, twelve men are put on trial for their lives, before twelve other men, as pirates and—as has been well expressed to you by the learned District Attorney who opened this case on behalf of the prosecution—as enemies of the human race. If you have had time, in the exciting progress of this trial, to reflect in your own minds as to what the import of these words was, it must certainly, ere this, have occurred to you that, in regard to these prisoners, whatever may be the legal consequences of the acts charged upon them, it was a misapplication of the term. Look for a moment, gentlemen, first, at the position of things in our country under which this trial takes place. All these prisoners come before you from a far distant section of the country. Some of them were not born there—some of them were. At the time when these events occurred all of the prisoners lived there, and were identified with that country, with its welfare, with its Government, whatever it was. They had there their homes, their families, everything which attaches a man to the spot in which he lives. Those of them who had not been born in America had sought it as an asylum. They had come from distant regions of the earth—some from the Chinese Sea and the remote East—because they had been taught there that America was the freest land on the globe. They had lived there for years. Suddenly they had seen the country convulsed from one end to the other. They had seen hostile armies arrayed against each other, the combatants being for the most part divided by geographical lines as to the place where they were born or as to the State in which they lived. This very morning a newspaper in the city of New York estimates the numbers thus arrayed in hostility against each other at no less than seven hundred thousand souls. These prisoners have the misfortune, as I say, of being placed on their trial far from their homes. They have been now in confinement and under arrest on this charge for some four or five months. During that whole period they have had no opportunity whatever of communicating with their friends or relatives. Intercourse has been cut off. They have had no opportunity of procuring means to meet their necessary expenses, or even to fee counsel in their defence. Without the solace of the company of their families, immured in a prison among those who, unfortunately, from friends and fellow-countrymen have become enemies, they are now placed in this Court on trial for their lives. You will certainly reflect, gentlemen, that it was not for a case of this kind that any statute punishing the crime of piracy was ever intended to be enacted. You will reflect, when you come to consider this case, after the evidence shall have been laid before you, and after you have received instructions from the Court, that however by technical construction our ingenious friends on the other side may endeavor to force on your minds the conviction that this was a case intended to be provided for by statutes passed in the year 1790, and by statutes passed in the year 1820,—it is a monstrous stretch of the provisions of those statutes to ask for a conviction in a case of this kind. And I may be permitted, with very great respect for the constitutional authorities of our Government, to which we all owe our allegiance and respect, to wonder that this case has been brought for trial before you. I cannot help, under the circumstances surrounding these trials—for while you are sitting here, another jury is passing on a similar case in the neighboring City of Philadelphia—attributing the determination of the Government to submit these cases to the judicial tribunals at this time to a desire to satisfy the mind of the community itself, which has been naturally excited on this subject, that these men are not pirates within the meaning of the law. And I do most sincerely hope, for the credit of our Government, that that is the object which it has in view, and that the heart of every officer of the Government, at Washington or elsewhere, will be most rejoiced at the verdict of acquittal, which, I trust, on every consideration, you will pronounce. We all know that in a time of civil commotion and civil war like this, the minds of the people, particularly at the incipient stages of the controversy, become terribly excited and aroused. We could not listen, at the outbreak of these commotions, to any other name but that of pirate or traitor, as connected with those arrayed against our Government and countrymen. One of the misfortunes of a time of popular excitement like this is, that it pervades not only the minds of the community, but reaches the public halls of legislation, and the executive and administrative departments of the Government. And it is no disrespect, even to the Chief Magistrate of the country to say, that he might, in a time like this, put forward proclamations and announce a determination to do what his more sober judgment would tell him it was imprudent to announce his intention of doing. You will all probably recollect that when this outbreak occurred the Government at Washington announced the determination of treating those who might be captured on board of privateers fitted out in the Confederate States as pirates. Such an announcement once made, it is difficult to depart from. And therefore I do most sincerely hope that the administration in Washington, as my heart tells me must be the case, are looking at these trials in progress here and in Philadelphia, with an earnest desire that the voice of the Juries shall be the voice of acquittal,—thus disembarrassing the Government of the trammels of a proclamation which it were better, perhaps, had never been issued. This civil war had at that time reached no such proportions as those which it has since acquired. It was then a mere beginning of a revolution. The cry was, that Washington was in danger. There were no hostile forces arrayed on the opposite sides of the Potomac. There was a fear that they would soon make their appearance; and there was also an earnest hope—which I lament most deeply has not been realized—that that outbreak would be stopped in its commencement, and that no armies approaching to the proportions of those which have since been in hostile conflict would be arrayed on the field of battle. Look at the state of things now. Scarcely a day elapses on which battles are not taking place, from one end to the other of this broad continent—in Virginia, Kentucky, Missouri, and other States—and where the opposing forces are not larger than those that met in any battle of the Revolution which gave this country its independence. Does humanity, which rules war as well as peace, permit that while whole States, forming almost one half of the Confederacy; have arrayed themselves as one man—for aught we know to the contrary—while they think, no matter how mistakenly, that they have grievances to be redressed, and that they have a right to exercise that privilege of electing their own Government, which we claimed for ourselves in the day of our own Revolution—does humanity, I say, permit, in such a state of things, one side or the other to treat its opponents as pirates and robbers, as enemies of the human race? Gentlemen, our brave men who are fighting our battles on land and sea have a deep interest in this question; and if the votes of our whole army could be taken on the question of whether, as a matter of State policy, these men should be treated as pirates and robbers, I believe, in my heart, that an almost unanimous vote would go up from its ranks not to permit such a state of things to take place.

I wish to say a word here, gentlemen, preliminarily, on another subject, and that is, what the duty and right of counsel is on a trial of this kind. I hold the doctrine that counsel, when he appears in Court to defend the life of one man, much less the lives of twelve men, is the alter ego of his clients—that he has no trammels on his lips, and that his conscience, and his duty to God, and to his profession, must direct him in his best efforts to save the lives of his clients,—and that it becomes his duty; regardless of all other considerations, except adherence to truth and the laws of rectitude, to present every argument for his clients which influenced their minds when they embarked in the enterprise for which they are placed before the Jury on trial for their lives. It is not the fault of counsel, in a case of this kind, if he is obliged to call the attention of the Jury to the past history of his own country, to the cotemporaneous expositions of its Constitution, to the decisions of its Courts of Judicature, and of the highest Court of the Union, which have laid down doctrines with reference to the Constitution of the Government, which are accepted at the present day, entirely incompatible with the success of this prosecution. In doing so, you will certainly perceive that, however much these men on trial for their lives may have been deceived and deluded, as I sincerely think they have been to a very great extent, and, as was frankly admitted by the learned counsel who opened the case for the prosecution, that at least, there was the strongest excuse for that deception and delusion among those of them who had read the Constitution of their Government, who had read its Declaration of Independence, who had read the cotemporaneous exposition of its Constitution, put forward by the wisest of the men who framed it, and on the honeyed accents of whose lips the plain citizens of the States reposed when they adopted the Constitution. If it had been their good fortune to be familiar with the decisions of its Courts, they had learned what the Supreme Court had said with reference to the sovereign rights of the States, and with reference to the strict limit and measure of power which they had conceded to the General Government, and there was, at least, a very strong excuse for their following those doctrines, however unpopular they may have become in a later day of the Republic.

One of the reasons why I most regret that the Government has thought fit to force these cases to trial at the present time is, that it forces the counsel for the prisoners, in the solemn discharge of their duty to their clients, whose lives hang in the balance, to call the attention of the Jury and the attention of the public to those doctrines, doing which, under other circumstances, might be considered as a needless interference with the efforts of the Government to restore peace to the country. But, as I say, I hold that our clients in this case have a right to all the resources of intelligence with which it has pleased God to bless their counsel. They have a right to every pulsation of their hearts, and I do not know that I can sum up the whole subject in more appropriate language than that used by the Marquis of Beccaria, which was quoted by John Adams on the trial of some British soldiers in Boston, who, in a time of great public excitement, had shot some citizens, and were placed on trial for their lives before a Jury in Boston. He quoted and adopted on that occasion, as his own, these memorable words of that great philanthropist: "If I can be but the instrument of saving one human life, his blessing and tears of gratitude will be a sufficient consolation to me for the contempt of all mankind." I hold, with John Adams, that counsel on a trial like this has no right to let any earthly consideration interfere with the full and free discharge of his duty to his client; and in what I have to say, and in my course on this trial, I will be actuated by that feeling, and by none other. And, gentlemen, I love my country when I say that; I feel as deep a stake in her prosperity as does any man within the hearing of my voice, and as deep a stake as any man who lives under the protection of her flag.

The Jury have a great and solemn duty to discharge on this occasion. They have the great and solemn duty to discharge of forgetting, if possible, that they are Americans, and of thinking, for the moment, that they have been transformed into subjects of other lands; of forgetting that there is a North or a South, an East or a West, and of remembering only that these twelve men are in peril of their lives, and that this Jury is to judge whether they have feloniously and piratically, with a criminal intent, done the act for which it is claimed their lives are forfeited to their country. I wish to dispel from the minds of the Jury, at the outset of this case, an illusion which has been attempted to be produced on them, with no improper motive, I am sure, by the counsel who opened the case on the part of the Government—that this trial is a mere matter of form. I tell you, gentlemen, that it is a trial involving the lives of twelve men, and this Jury are bound to assume, from the beginning to the end of the case, that if their verdict shall pronounce these men guilty of the crime of piracy, with which they are charged, every one of them will as surely terminate his life on the scaffold, as the sun will rise on the morrow of the day on which the verdict shall be pronounced. We have nothing to do with what the Government in its justice and clemency may see fit to do after that verdict has been pronounced. We are bound to believe that the Government does not put these men upon their trial with an intention to make the verdict, if it shall be one of guilty, a mere idle mockery. I, for one, while I love my country, and wish its Government to enjoy the respect of the whole world, would not be willing to believe that it would perform a solemn farce of that kind; and, gentlemen, as you value the peace and repose of your own consciences, you will, in the progress of this trial, from its beginning to its end, look on it in this light, and in none other.

Now, gentlemen, what is the crime of piracy, as we have all been taught to understand it from our cradle? My learned friend has given one definition of what a pirate is, by saying that he is the enemy of the human race. And how does his crime commence? Is it blazoned, before he starts on his wicked career, in the full light of the sun, or is it hatched in secret? Does it commence openly and frankly, with the eyes of his fellow-citizens looking on from the time that the design is conceived, or does it originate in the dark forecastle of some vessel on the seas, manned by wicked men, to whom murder and robbery have been familiar from their earliest days, and who usually commence by murdering the crew of the vessel, the safety of which has been partly entrusted to them? And when the first deed of wickedness has been done which makes pirates and outcasts of the men who perpetrated it, what is their career from that moment to the time when they end their lives, probably on the scaffold? Is it not one of utter disregard to the laws of God and man, and to those of humanity? Is it not a succession of deeds of cruelty, of rapine, of pillage, of wanton destruction? Who ever heard of pirates who, in the first place, commenced the execution of their design by public placards posted in the streets of a populous city like Charleston, approved of by their fellow-citizens of a great and populous city, and not only by them, but by the people of ten great and populous States? And who ever heard of pirates who, coming upon a vessel that was within the limits of the commission under which they were acting, took her as a prize, with an apology to her Captain for the necessity of depriving him of his property, and claiming to act under the authority of ten great and populous States, and under that authority alone? And who ever heard of pirates doing what has been testified to in this case by the witnesses for the Government,—taking one ship because she belonged to the enemies of the Confederate States, to which they sincerely believed they owed the duty of allegiance, and passing immediately under the stern of another vessel, because they knew by her build and appearance that she was a British vessel, and not an enemy of their country, as they believed?

But, gentlemen, the difficulties with which the prosecution had to contend, in making out this case, are too great to be lost sight of; and the Jury must certainly have seen how utterly preposterous it is to characterize as piracy acts of this kind. Who ever heard of a pirate who, having seized a prize, put a prize-crew on board of her, sent her home to his native port—a great and civilized city, in a great and populous country—to be submitted to the adjudication of the Courts in that city, and to be disposed of as the authorities of his home should direct? I beg to call your attention to the facts that have been brought out on the testimony for the prosecution itself—that, in regard to this vessel, instead of her crew having been murdered—instead of helpless women and children having been sent to a watery grave, after having suffered, perhaps, still greater indignities—that not a hair of the head of any one was touched,—that not a man suffered a wound or an indignity of any kind—that they were sent, as prisoners of war, into the neighboring port of Georgetown, where, in due time, by decree of a court, the vessel was condemned and sold—and the prisoners, having been kept in confinement some time as prisoners of war, were released, and have been enabled to come into Court and testify before you.

Comparing this case, gentlemen, with the cases which are constantly occurring in the land, what earthly motive can you conceive, on the part of the Government, for having made the distinction between these poor prisoners, taken on board of this paltry little vessel of 40 or 50 tons, and the great bands in arms in all parts of the country? Look what occurred a little while ago in Western Virginia, where a large force of men, in open arms against the Government, who had been carrying ravage and destruction through that populous country, and over all parts of it, were captured as prisoners. Were any of those men sent before a court, to be tried for their lives? Did not the commanding officer of the forces there, acting under the authorization, and with the approval, of the Government, release every one of those men, on his parole of honor not to bear arms any more against the country? And what earthly motive can be conceived for making the distinction which is attempted to be made between these men and those? Shall it be said, to the disgrace of our country—for it would be a disgrace if it could be justly said—that we had not courage and confidence enough in our own resources to believe that we would be able to cope with these adversaries in the field in fair and equal warfare? Gentlemen, I think it would be a cowardly act, which would redound to the lasting disgrace of the country, to have it said, one century or two centuries hence, that, in this great time of our country's troubles and trials, eighteen States of this Confederacy, infinitely the most populous, infinitely the most wealthy, abounding in resources, with a powerful army and navy, were obliged to resort to the halter or the ax for the purpose of intimidating those who were in arms against them. I do not think that any one of this Jury would be willing to have such a thing said.

Now, gentlemen, with regard to the conduct of these men, an impression has been attempted to be created on your minds by one circumstance, and that is, that at the time of the capture of the Joseph by the Savannah the American flag was hoisted on board the Savannah, and that the Joseph came down to her, and permitted her to approach from the false security and confidence occasioned by that circumstance. The time has now arrived to dispel the illusion from your mind that there was anything reprehensible in that, or anything in it not warranted by the strictest rules of honor and of naval warfare. Why, gentlemen, I could not give you a more complete parallel on that subject than one which occurred at the time of the chase of the Constitution by a British fleet of men-of-war, and the escape of the Constitution from which fleet at that time reflected such lasting honor on our country and her naval history. You will all recollect that the Constitution, near the coast of our country, fell in with and was chased for several days by a large British fleet. Let me read to you one short sentence, showing what occurred at that time. I read from Cooper's Naval History:

"The scene, on the morning of this day, was very beautiful, and of great interest to the lovers of nautical exhibitions. The weather was mild and lovely, the sea smooth as a pond, and there was quite wind enough to remove the necessity of any of the extraordinary means of getting ahead that had been so freely used during the previous eight and forty hours. All the English vessels had got on the same tack with the Constitution again, and the five frigates were clouds of canvas, from their trucks to the water. Including the American ship, eleven sail were in sight; and shortly after a twelfth appeared to windward; that was soon ascertained to be an American merchantman. But the enemy were too intent on the Constitution to regard anything else, and though it would have been easy to capture the ships to leeward, no attention appears to have been paid to them. With a view, however, to deceive the ship to windward, they hoisted American colors, when the Constitution set an English ensign, by way of warning the stranger to keep aloof."

After that, I hope we will hear no more about the Savannah having hoisted the American flag for the purpose of inducing the Joseph to approach her.

It now becomes my duty, gentlemen, to call your attention, very briefly, to the grounds on which the prosecution rests this case. There are two grounds, and I will notice them in their order. The first is, that this was robbery. Well, I have had occasion, already, in what I have said to you, to call your attention to some of the points that distinguish this case from robbery. I say it was not robbery, because, in the first place, one of the requisites of robbery on the sea, which is called piracy, is, that it shall be done with a piratical and felonious intent. The intent is what gives character to the crime; and the point that we shall make on that part of the case is this, that if these men, in the capture of the Joseph (leaving out of view for the present the circumstance of their having acted under a commission from the Confederate States), acted under the belief that they had a right to take her, there was not the piratical and felonious intent, and the crime of robbery was not committed. I will very briefly call your attention to a few authorities on that subject. One of the most standard English works, and the most universally referred to on this subject of robberies, is Hale's Pleas of the Crown. Hale says:

"As it is cepit and asportavit so it must be felonice or animo furandi, otherwise it is not felony, for it is the mind that makes the taking of another's goods to be a felony, or a bare trespass only; but because the intention and mind are secret, they must be judged by the circumstances of the fact, and though these circumstances are various and may sometimes deceive, yet regularly and ordinarily these circumstances following direct in this case.

"If A, thinking he hath a title to the horse of B, seizeth it as his own, or supposing that B holds of him, distrains the horse of B without cause, this regularly makes it no felony, but a trespass, because there is a pretence of title; but yet this may be but a trick to color a felony, and the ordinary discovery of a felonious intent is, if the party does it secretly, or being charged with the goods, denies it.* * * * *

"But in cases of larceny, the variety of circumstances is so great, and the complications thereof so weighty, that it is impossible to prescribe all the circumstances evidencing a felonious intent; on the contrary, the same must be left to the due and attentive consideration of the Judge and Jury, wherein the best rule is, in dubiis, rather to incline to acquittal than conviction."

The next authority on that subject to which I will refer you is 2d East's Pleas of the Crown, p. 649. The passage is:

"And here it may be proper to remark, that in any case, if there be any fair pretence of property or right in the prisoner, or if it be brought into doubt at all, the court will direct an acquittal; for it is not fit that such disputes should be settled in a manner to bring men's lives into jeopardy.

"The owner of ground takes a horse damage feasant, or a lord seizes it as an estray, though perhaps without title; yet these circumstances explain the intent, and show that it was not felonious, unless some act be done which manifests the contrary: as giving the horse new marks to disguise him, or altering the old ones; for these are presumptive circumstances of a thievish intent."

I call attention also to the case of Rex vs. Hall, 3d Carrington & Payne, 409, which was a case before one of the Barons of the Exchequer in England. It was an indictment for robbing John Green, a gamekeeper of Lord Ducie, of three hare-wires and a pheasant. It appeared that the prisoner had set three hare-wires in a field belonging to Lord Ducie, in one of which this pheasant was caught; and that Green, the gamekeeper, seeing this, took up the wires and pheasant, and put them into his pocket; and it further appeared that the prisoner, soon after this, came up and said, "Have you got my wires?" The gamekeeper replied that he had, and a pheasant that was caught in one of them. The prisoner asked the gamekeeper to give the pheasant and wires up to him, which the gamekeeper refused; whereupon the prisoner lifted up a large stick, and threatened to beat the gamekeeper's brains out if he did not give them up. The gamekeeper, fearing violence, did so.

Maclean, for the prosecution, contended—

"That, by law, the prisoner could have no property in either the wires or the pheasant; and as the gamekeeper had seized them for the use of the Lord of the Manor, under the statute 5 Ann, c. 14, s. 4, it was a robbery to take them from him by violence."

Vaughan, B., said:

"I shall leave it to the Jury to say whether the prisoner acted on an impression that the wires and pheasant were his property, for, however he might be liable to penalties for having them in his possession, yet, if the Jury think that he took them under a bona fide impression that he was only getting back the possession of his own property, there is no animus furandi, and I am of opinion that the prosecution must fail.

"Verdict—Not guilty."

Without detaining the Court and Jury to read other cases, I will simply give your honors a reference to them. I refer to the King vs. Knight, cited in 2d East's Pleas of the Crown, p. 510, decided by Justices Gould and Buller; the case of the Queen vs. Boden, 1st Carrington and Kirwan, p. 395; and for the purpose of showing that this is the same rule which has been applied by the Courts of the United States, in these very cases of piracy, I need do nothing more than read a few lines from a case cited by the counsel for the prosecution in opening the case of the United States vs. Tully, 1st Gallison's Circuit Court Reports, 247, where Justices Story and Davis say, that to constitute the offence of piracy, within the Act of 30th April, 1790, by "piratically and feloniously" running away with a vessel, "the act must have been done with the wrongful and fraudulent intent thereby to convert the same to the taker's own use, and to make the same his own property, against the will of the owner. The intent must be animo furandi."

Now, gentlemen, I think that when you come to consider this case in your jury-box, whatever other difficulties you may have, you will very speedily come to the conclusion that the taking of the Joseph was with no intent of stealing on the part of these prisoners.

But, gentlemen, there is another requisite to the crime of robbery, which, I contend, and shall respectfully attempt to show to you, is absent from this case. I mean, it must be by violence, or putting him in fear that the property is taken from the owner, and that the crime of robbery is committed. I beg to refer the Court to the definition of robbery in 1st Blackstone's Commentaries, p. 242, and 1st Hawkins' Pleas of the Crown, p. 233, where robbery at common law is defined to be "open and violent larceny, the rapina of the civil law, the felonious and forcible taking from the person of another of goods or money to any value by violence, or putting him in fear."

Now, gentlemen, I say there was nothing of that kind in this case. What are the circumstances as testified to by the witnesses for the prosecution? The circumstances are, that the Joseph and the Savannah, having approached within hailing distance, the Captain of the Savannah hailed the Captain of the Joseph, standing on the deck of his own vessel, and requested him to come on board and bring his papers. The answer of the Captain of the Joseph was an inquiry by what authority that direction was given; and the Captain of the Savannah replied, "by the authority of the Confederate States." Whereupon the Captain of the Joseph, in his own boat, with two of his crew, went alongside the Savannah, was helped over the side by the Captain of the Savannah, and was informed by him that he was under the disagreeable necessity of taking his vessel and taking them prisoners; and without the slightest force or violence being used by the Captain, or by a single member of the crew of the Savannah—without a gun being fired, or even loaded, so far as anything appears—the Captain of the Joseph voluntarily submitted, yielded up his vessel, and there was not the slightest violence or putting any body in fear.

Therefore, gentlemen, I say, that so far as the crime charged here is the crime of robbery, there is no evidence in the case under which, on either of these grounds, by reason of the secrecy of the act, or the violence or putting in fear, or the showing a felonious intent, by the evidence for the prosecution, these prisoners can be convicted under the indictment before you. To show that the definition of robbery at common law is the one that applies to these statutes of the United States, I beg to refer your honors to cases in the Supreme Court of the United States. I refer to the case of the United States vs. Palmer, 3 Wheaton, 610; the United States vs. Wood, 3d Washington, 440; and the United States vs. Wilson, 1 Baldwin, p. 78.

But, gentlemen, there is another set of counts in this indictment on which, probably, as to those who are citizens, a conviction will be pressed for by counsel on the part of the Government. That is a set of counts to which I am about to call your attention in reference to the acts under which they were framed. You will recollect this, gentlemen, that under the counts charging the offence of robbery, the majority of these prisoners must be convicted, or none of them can be convicted at all, for reasons which I will immediately give you. The only statute under which it is claimed on the part of the prosecution that a conviction can be had, if not for robbery on the high seas, imperatively requires that the prisoners to be convicted must be citizens of the United States. There are twelve prisoners here, and by the statement of the last witness produced on the part of the prosecution, only four of them appear to be citizens of the United States, or ever to have been citizens of the United States. The others were all born in different countries in Europe and Asia, and had never been naturalized; and the Court, whenever this case comes before you, so far as that point is concerned, will give you the evidence on the subject, by which you will see exactly which of these prisoners had ever been citizens of the United States, and which of them had not been. I therefore proceed to examine as to what the statute is, and what the requisites are for a conviction of those who were citizens of the United States at any time. I will read to you the section of the statute to which I have reference. It is the 9th section of the Act of 1790. It reads, "That if any citizen shall commit any piracy or robbery aforesaid, 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."

Now, it will be interesting and necessary to understand the circumstances under which that statute was passed, and the application which it was intended to have. I will briefly read to you the explanation of that subject, which your honors will find in Hawkins' Pleas of the Crown, 1st Vol., p. 268. Hawkins says:

"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 2nd, 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 by 11 and 12 Will. III., chap. 7, sec. 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 of 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 the Eighth, shall have and suffer such pains of death, loss of land and chattels, as pirates, felons, and robbers upon the sea ought to have and suffer.'"

Your honors will find that further referred to in the case of the United States vs.Jones, 3d Wash. Cir. Court Reps. p. 219, in these terms:

"The 9th sec. of this law (the Act of 1790) is in fact copied from the statute of the 11th and 12th Wm. 3d, ch. 7, the history of which statute is explained by Hawkins. It was aimed at Commissions granted to Cruisers by James II., after his abdication, which, by many, were considered as conferring a legal authority to cruise, so as to protect those acting under them against a charge of piracy. Still, we admit that unless some other reason can be assigned for the introduction of a similar provision in our law, the argument which has been founded on it would deserve serious consideration. We do not think it difficult to assign a very satisfactory reason for the adoption of this section without viewing it in the light of a legislative construction of the 8th sec, or of the general law.

"If a citizen of the United States should commit acts of depredation against any of the citizens of the United States, it might at least have been a question whether he could be guilty of piracy if he acted under a foreign commission and within the scope of his authority. He might say that he acted under a commission; and not having transgressed the authority derived under it, he could not be charged criminally. But the 9th sec. declares that this shall be no plea, because the authority under which he acted is not allowed to be legitimate. It declares to the person contemplated by this section, that in cases where a commission from his own Government would protect him from the charge of piracy, that is, where he acted within the scope of it or even where he acted fairly but under a mistake in transgressing it, yet that a foreign commission should afford him no protection, even although he had not exceeded the authority which it professed to give him. But it by no means follows from this that a citizen committing depredations upon foreigners or citizens, not authorized by the commission granted by his own Government, and with a felonious intention, should be protected by that commission against a charge of piracy. Another object of this section appears to have been to declare that acts of hostility committed by a citizen against the United States upon the high seas, under pretence of a commission issued by a foreign Government, though they might amount to treason, were nevertheless piracy and to be tried as such."

Your honors will find another very interesting history in reference to this statute in Phillimore's International Law, 1st vol., sec. 398. Phillimore says:

"Soon after the abdication of James II., an international question of very great importance arose, namely, what character should be ascribed to privateers commissioned by the monarch, who had abdicated, to make war against the adherents of William III., or rather against the English, while under his rule. The question, in fact, involved a discussion of the general principle, whether a deposed sovereign, claiming to be sovereign de jure, might lawfully commission privateers against the subjects and adherents of the sovereign de facto on the throne; or whether such privateers were not to be considered as pirates, inasmuch as they were sailing animo furandi et depraedundi, without any national character. The question, it should be observed, did not arise in its full breadth and importance until James II. had been expelled from Ireland as well as England, until, in fact, he was a sovereign, claiming to be such de jure, but confessedly without territory. It appears that James, after he was in this condition, continued to issue letters of marque to his followers. The Privy Council of William III. desired to hear civilians upon the point of the piratical character of such privateers. The arguments on both sides are contained in a curious and rather rare pamphlet, published by one of the counsel (Dr. Tindal) for King William, in the years 1693-4. The principal arguments for the piratical character of the privateers appear to have been—

"That they who acted under such commission may be dealt with as if they had acted under their own authority or the authority of any private person, and therefore might be treated as pirates. That if such a titular Prince might grant commissions to seize the ships and goods of all or most trading nations, he might derive a considerable revenue as a chief of such freebooters, and that it would be madness in nations not to use the utmost rigor of the law against such vessels.

"That the reason of the thing which pronounced that robbers and pirates, when they formed themselves into a civil society, became just enemies, pronounced also that a king without territory, without power of protecting the innocent or punishing the guilty, or in any way of administering justice, dwindled into a pirate if he issued commissions to seize the goods and ships of nations; and that they who took commissions from him must be held by legal inference to have associated sceleris causâ, and could not be considered as members of a civil society."

I will not occupy the time of the Court and Jury by recapitulating the rest of the arguments which were urged with very great ability by the learned and distinguished civilians arrayed against each other in that interesting debate. But the points which arise, and which the Court will have, in due time, to instruct you upon, we respectfully claim and insist are these: That this English statute, after which our own statute was precisely copied, was intended only to apply to the case of pirates cruising under a commission pretended to have been given, in the first place, by a Prince deposed, abdicated, not having a foot of territory yielding him obedience in any corner of the world; and, in the next place, that it was intended to be aimed against those cruising under a commission issued under the pretence of authority from a foreigner, and not from the authorities over them de jure or de facto, or from any authorities of the land in which they lived, and where the real object was depredation; because, where it was issued by a monarch without territory—by a foreigner, having no rule, and no country in subjection to him—there could be no prize-court, and none of the ordinary machinery for disposing of prizes captured, according to the rules of international law; and, lastly, it was intended to apply to the case of a citizen, taking a privateer's commission from a foreign Government as a pretence to enable him to cruise against the commerce of his own countrymen. But it was never intended to apply to a case of this kind, where the commission was issued by the authorities of the land in which the parties receiving it live, exercising sway and dominion over them, whether de jure or de facto.

Now, gentlemen, so far I have thought it necessary to go in explanation of what the statutes were, of the circumstances bearing on them, and of the requisites which the prosecution had to make out, in order to ask a conviction at your hands. I come now, for the purpose of this opening, to lay before you what we shall rely upon in our defence. The first defence, as has already appeared to you from the course of the examination of the prosecution's witnesses, has reference to the question of the jurisdiction of this Court to hear and determine this controversy. The statute has been already read to you, on which that question of jurisdiction rests; but, for fear that you do not recollect it, I will beg once more to call your attention to it. The concluding paragraph of sec. 14 of the Act of 1825, 4th vol. of the Statutes at Large, p. 118, is as follows:

"And the trial of all offences which shall be committed on the high seas or elsewhere out of the limits of any State or District, shall be in the District where the offender is apprehended, or into which he may first be brought."

Now, you observe that the language of the statute is imperative—the reasons which led to its adoption were also imperative and controlling. It is necessary that the law shall make provision for the place where a man shall be put on trial under an indictment against him; and the law wisely provides that in cases of offences committed on the land, the trial shall only take place where the offence was committed. It was thought even necessary to provide for that by an amendment to the Constitution of the United States, in order that there might be no misunderstanding of, and no departure from, the rule.

The Constitution, by one of its amendments, in the same paragraph which provides for the right of every accused to a speedy and impartial trial, provides also that that trial shall take place in the District, which District shall first have been ascertained by law; and as I said to you, in cases of crimes committed on the land, that District must be the District where the offence was committed, and no other.

Now look at the state of things here, gentlemen. These men are all citizens or residents of the State of South Carolina, and have been so for years. This vessel was fitted out in South Carolina. The authority under which she professed to act was given there. The evidence for the defence, if it could be got, must come from there. All the circumstances bearing on the transaction occurred in that section of the country, and not elsewhere,—occurred in a country which is now under the same Government and domination as Virginia, because Virginia is included at present under the domination and Government of the Confederate States.

Well, with reference to offences committed at sea, the officers capturing a prize have a right to bring it into any port, it is true, and the port where the prisoners are brought is, as we claim under the construction of the statute, the port where the trial is to take place; the port where the prisoners are first brought, whether they are landed or not. On that question of jurisdiction the rule is this: The jurisdiction of the State extends to the distance of a marine league from shore; and if these prisoners were brought on this vessel within the distance of three miles from the shores of Virginia, where the vessel anchored, as in port, having communication with the land, the jurisdiction of the Circuit Court of the Eastern District of Virginia attached, and they could not, after that, be put on trial for that offence elsewhere. It is not necessary for me now to trouble the Jury with re-reading authorities which were read upon this subject yesterday. In a case which occurred some years ago, before Judge Story, the learned Judge had fallen into a misapprehension on a question which did not necessarily arise, because the facts to give rise to it did not occur in the case. An offence had been committed—an attempt to create a revolt on board of a vessel at sea. Those who had made the attempt had either repented of the design, or had not succeeded in it; at all events, they had afterwards gone on to do their duty on the vessel, and had not been incarcerated on board the vessel at all. The vessel first got into a port in Connecticut, and finally got into a port in Massachusetts, and there, for the first time, those prisoners were arrested and put into confinement. Undoubtedly the Court in Massachusetts had jurisdiction in that case; but Judge Story, speaking on a question which did not arise, appeared to treat the language of the statute as being alternative, giving the Government the right to select one of two places for the trial. That was corrected in a late case which came before the Court in Massachusetts, in the same District where Judge Story had decided the previous case. Both Judge Sprague, of the District Court, and Judge Clifford, of the Circuit Court, held that in a case where prisoners had been captured as malefactors on the high seas, and had been confined on board a United States vessel, where the vessel had gone into Key West for a temporary purpose, to get water, without the prisoners ever having been landed, and where they went from thence to Massachusetts, where the prisoners were arrested by the civil authorities and imprisoned, that the Court of Massachusetts had no jurisdiction whatever. Under the instructions of the Court, the Grand Jury refused to find an indictment, and a warrant of removal was granted to remove the prisoners for trial in the Court at Key West,—the Court of Massachusetts holding that that was the only place where they could be tried for the offence, because the vessel having them in custody as prisoners had touched there to get water on her voyage. We have not even the information in that case as to whether the vessel went within three miles of the shore; it was enough that she had communicated with Key West, and that the prisoners might have been landed there; but it was held that the Government had not a right to elect the place of trial of the prisoners; and it is important, particularly in cases of this kind, that no one shall have the right to elect a place of trial. I say that, not with the slightest intention of imputing any unfair motives to the Government, to the officers of the Navy, or any one else. It is a great deal better that where men are to be put on trial for their lives, they should have the benefit of the chapter of accidents.

If it would have been any better for these prisoners to have had a Jury to try them in Virginia, they were entitled to the benefit of that. In saying so, I mean no reflection on any Jury in New York. I have no doubt you will try this case as honestly, as fairly, and as impartially as any Jury in Virginia could try it. But at the same time we all know that if this right of election can be resorted to on the part of the United States, men might suffer, not from any wrong intention, but from the natural and inevitable and often unconscious tendency of those who are to prosecute, to select the place of prosecution most convenient for themselves.

We shall therefore claim before you, gentlemen, following the rule laid down in Massachusetts by Judge Clifford and Judge Sprague, that this vessel, having been within a marine league of the shore of Virginia, was within the jurisdiction of the District Court of Virginia, and that that was the only place where they could be tried. Suppose, as was well suggested to me by one of my associates, that on the Minnesota, lying where she did, or on the Harriet Lane, lying where she did in Hampton Roads, a murder had been committed: could it be contended by any one that the United States Court in Virginia would not have had jurisdiction, and the only jurisdiction over the case?

Now, gentlemen, that is all which, on the opening of this case, I am going to say on the subject of jurisdiction.

Our next defence will be, that the commission in this case affords adequate protection to these prisoners; and we will put that before you in several points of view. It will undoubtedly be read to you in evidence. It was one of the documents found on board this vessel.

Mr. Evarts: It is not in evidence; and how can counsel open to the Jury upon a commission which is not in evidence?

Judge Nelson: Counsel can refer to it as part of his opening.

Mr. Larocque: Now, gentlemen, you will recollect that the counsel for the prosecution, in framing this indictment, has treated this in the way in which we claim he was bound to treat it; that is to say, that the 9th section of the Act of 1790 was intended to refer exclusively to offences claimed to have been committed under a commission; throwing on the prosecution the necessity of setting forth the commission or the pretence of authority. Having set it forth, the prosecution is bound by the manner in which it is described in the indictment; and if it is described as something which it is not, the prisoners must have the benefit of that mis-description.

Now, in framing this indictment, the counsel for the prosecution has set forth that the prisoners claimed to act under a commission issued by one Jefferson Davis. That is to say, he has attempted to ground his claim to a conviction on that section of the statute. You will recollect that the statute reads, "under pretence of any commission granted by any foreign Prince or State" (which the Courts of the United States have held, to mean a foreign State), "or under pretence of authority from any person." And it was necessary, in order to ground an indictment on that section of the statute, to bring this case within the exact letter or words of one or the other clause of that section of this statute. It would not do for them to claim that this commission was issued by a foreign Prince or foreign State, because, if by a foreign Prince or foreign State, there would be no doubt or question that all of these parties were citizens of that foreign State or residents there, and were not citizens of the United States. Of course, if this were a foreign State, they were foreign citizens, and not citizens of the United States.

What is this commission? As we shall lay it before you, it reads in this way:

"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 ships, vessels, goods, and effects, and those of their citizens, during the pendency of the war now existing between the said Confederate States and the said United States.

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

"Given under my hand and the seal of the Confederate States,

[c.s.]

at Montgomery, this eighteenth day of May, A.D. 1861.

"(Signed) JEFFERSON DAVIS.

"By the President.

"R. TOOMBS,
"Secretary of State.

"SCHEDULE OF DESCRIPTION OF THE VESSEL.

"Name—Schooner 'Savannah.'
"Tonnage—Fifty-three 41/95 tons.
"Armament—One large pivot gun and small arms.
"No. of Crew—Thirty."

That is the document, bearing the seal of ten States, signed by Jefferson Davis as President—signed by the Secretary of State for those ten States, which the learned counsel who framed the indictment has undertaken to call "a pretence of authority from one Jefferson Davis." The counsel was forced to frame his indictment in that way; for if he had alleged in the indictment that it was by pretence of authority from the Confederate States—to wit, South Carolina, Georgia, &c., naming States which this Government, for the purpose of bringing this prosecution at all, must claim to be in the Union—it would be clearly outside of the provision of the statute, and could never get before a Jury, because it would have been dismissed on application to the Court beforehand. But the learned counsel has sought, by stating an argumentative conclusion of law in his indictment, according to his understanding of it, to bring within the statute a case which the statute was not meant to meet—an entirely different and distinct case. I submit to you, that that cannot be done,—that the commission on its face does not purport to be a commission granted by any person. It purports to be, and, if anything, it is, a commission granted by authority of the States that are joined together under the name of Confederate States; and, gentlemen, as I said, we shall claim before you that this commission is a protection to these parties, against the charge of piracy, upon various distinct grounds.

In the first place, we shall claim before you that the Government, called the Government of the Confederate States (whether you call it a Government de jure or a Government de facto, or whatever name under the nomenclature of nations you choose to give it), is the present existing Government of those States, exercising dominion over them, without any other Government having an officer or court, or any insignia of Government within them.

This is a point which, at a future stage of the case, my learned associate, who is much better able to do so than I am, will have occasion to dwell upon. I wish, however, to call your attention to the rules as they have been laid down; and first, I would desire to refer you, and also to call the attention of the Court, to what is said by Vattel,—who, as you all probably know, is one of the most celebrated authors upon international rights, and international law, and who is received as authority upon that subject in every Court in Europe and America. I refer to Vattel, book 1, chap. 17, secs. 201 and 202, where he says:

"Sec. 201. When a city or province is threatened, or actually attacked, it must not, for the sake of escaping a danger, separate itself, or abandon its natural Prince, even when the State or the Prince is unable to give it immediate and effectual assistance. Its duty, its political engagements, oblige it to make the greatest efforts in order to maintain itself in its present state. If it is overcome by force, necessity, that irresistible law, frees it from its former engagements, and gives it a right to treat with the conqueror, in order to obtain the best terms possible. If it must either submit to him or perish, who can doubt but it may, and even ought to prefer the former alternative? Modern usage is conformable to this decision,—a city submits to the enemy, when it cannot expect safety from vigorous resistance. It takes an oath of fidelity to him, and its sovereign lays the blame on fortune alone."

"Sec. 202. The State is obliged to protect and defend all its members; and the Prince owes the same assistance to his subjects. If, therefore, the State or the Prince refuses or neglects to succor a body of people who are exposed to imminent danger, the latter, being thus abandoned, become perfectly free to provide for their own safety and preservation in whatever manner they find most convenient, without paying the least regard to those who, by abandoning them, have been the first to fail in their duty. The Canton of Zug, being attacked by the Swiss in 1352, sent for succor to the Duke of Austria, its sovereign; but that Prince, being engaged in discourse concerning his hawks at the time when the deputies appeared before him, would scarcely condescend to hear them. Thus abandoned, the people of Zug entered into the Helvetic Confederacy. The city of Zurich had been in the same situation the year before. Being attacked by a band of rebellious citizens, who were supported by the neighboring nobility, and the House of Austria, it made application to the head of the Empire; but Charles IV., who was then Emperor, declared to its deputies that he could not defend it, upon which Zurich secured its safety by an alliance with the Swiss. The same reason has authorized the Swiss in general to separate themselves entirely from the Empire which never protected them in any emergency. They had not denied its authority for a long time before their independence was acknowledged by the Emperor, and the whole Germanic Body, at the treaty of Westphalia."

I also refer to the case of the United States v. Hayward, 2 Gallison, 485, which was a writ of error to the District Court of Massachusetts, in a case of alleged breach of the revenue laws. It appears that Castine (in Maine) was taken possession of by the British troops on the 1st of September, 1814, and was held in their possession until after the Treaty of Peace.

Judge Story says:

"The second objection is, that the Court directed the Jury that Castine was, under the circumstance, a foreign port. By 'foreign port,' as the terms are here used, may be understood a port within the dominions of a foreign sovereign, and without the dominions of the United States. The port of Castine is the port of entry for the District of Penobscot, and is within the acknowledged territory of the United States. But, at the time referred to in the bill of exceptions, it had been captured, and was in the open and exclusive possession of the enemy. By the conquest and occupation of Castine, that territory passed under the allegiance and sovereignty of the enemy. The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced, or be obligatory upon the inhabitants, who remained and submitted to the conquerors."

Now, gentlemen, I must trouble you, very briefly, with a reference to one or two other authorities on that subject. At page 188 of Foster's Crown Law that learned author says:

"Sec 8. Protection and allegiance are reciprocal obligations, and consequently the allegiance due to the Crown must, as I said before, be paid to him who is in the full and actual exercise of the regal powers, and to none other. I have no occasion to meddle with the distinction between Kings de facto and Kings de jure, because the warmest advocates for that distinction, and for the principles upon which it hath been founded, admit that even a King de facto, in the full and sole possession of the Crown, is a King within the Statute of Treasons; it is admitted, too, that the throne being full, any other person out of possession, but claiming title, is no King within the act, be his pretensions what they may.

"These principles, I think, no lawyer hath ever yet denied. They are founded in reason, equity, and good policy."

And again, at page 398, he continues:

"His Lordship [Hale] admitted that a temporary allegiance was due to Henry VI. as being King de facto. If this be true, as it undoubtedly is, with what color of law could those who paid him that allegiance before the accession of Edward IV. be considered as traitors? For call it a temporary allegiance, or by what other epithet of diminution you please, still it was due to him, while in full possession of the Crown, and consequently those who paid him that due allegiance could not, with any sort of propriety, be considered as traitors for doing so.

"The 11th of Henry VII., though subsequent to these transactions, is full in point. For let it be remembered, that though the enacting part of this excellent law can respect only future cases, the preamble, which his Lordship doth not cite at large, is declaratory of the common law: and consequently will enable us to judge of the legality of past transactions. It reciteth to this effect, 'That the subjects of England are bound by the duty of their allegiance to serve their Prince and Sovereign Lord for the time being, in defence of him and his realm, against every rebellion, power, and might raised against him; and that whatsoever may happen in the fortune of war against the mind and will of the Prince, as in this land, some time past it hath been seen, it is not reasonable, but against all laws, reason, and good conscience, that such subjects attending upon such service should suffer for doing their true duty and service of allegiance.' It then enacteth, that no person attending upon the King for the time being in his wars, shall for such service be convict or attaint of treason or other offence by Act of Parliament, or otherwise by any process of law."

The author says then:

"Here is a clear and full parliamentary declaration, that by the antient law and Constitution of England, founded on principles of reason, equity, and good conscience, the allegiance of the subject is due to the King for the time being, and to him alone. This putteth the duty of the subject upon a rational, safe bottom. He knoweth that protection and allegiance are reciprocal duties. He hopeth for protection from the Crown, and he payeth his allegiance to it in the person of him whom he seeth in full and peaceable possession of it. He entereth not into the question of title; he hath neither leisure or abilities, nor is he at liberty to enter into that question. But he seeth the fountain, from whence the blessings of Government, liberty, peace, and plenty flow to him; and there he payeth his allegiance. And this excellent law hath secured him against all after reckonings on that account."

And another author on that subject [Hawkins], in his Pleas of the Crown, Book I., chap. 17, sec. 11, says:

"As to the third point, who is a King within this act? [26 Edw. 3, ch. 2.] It seems agreed that every King for the time being, in actual possession of the crown, is a King within the meaning of this statute. For there is a necessity that the realm should have a King by whom and in whose name the laws shall be administered; and the King in possession being the only person who either doth or can administer those laws, must be the only person who has a right to that obedience which is due to him who administers those laws; and since by virtue thereof he secures to us the safety of our lives, liberties, and properties, and all other advantages of Government, he may justly claim returns of duty, allegiance, and subjection."

"Sec. 12. And this plainly appears by the prevailing opinions in the reign of King Edward IV., in whose reign the distinction between a King de jure and de facto seems first to have begun; and yet it was then laid down as a principle, and taken for granted in the arguments of Bagot's case, that a treason against Henry VI. while he was King, in compassing his death, was punishable after Edward IV. came to the Crown; from which it follows that allegiance was held to be due to Henry VI. while he was King, because every indictment of treason must lay the offence contra ligeantiæ debitum.

"Sec. 13. It was also settled that all judicial acts done by Henry VI. while he was King, and also all pardons of felony and charters of denization granted by him, were valid; but that a pardon made by Edward IV., before he was actually King, was void, even after he came to the Crown."

"And by the 11th Henry VII., ch. 1, it is declared 'that all subjects are bound by their allegiance to serve their Prince and Sovereign Lord for the time being in his wars for the defence of him and his land against every rebellion, power, and might reared against him, &c., and that it is against all laws, reason, and good conscience that he should lose or forfeit any thing for so doing;' and it is enacted 'that from thenceforth no person or persons that attend on the King for the time being, and do him true and faithful allegiance in his wars, within the realm or without, shall for the said deed and true duty of allegiance be convict of any offence.'"

"Sec. 15. From hence it clearly follows: First, that every King for the time being has a right to the people's allegiance, because they are bound thereby to defend him in his wars, against every power whatsoever.

"Sec. 16. Secondly, that one out of possession is so far from having any right to allegiance, by virtue of any other title which he may set up against the King in being, that we are bound by the duty of our allegiance to resist him."

And these doctrines, if the Court please, have been recently acted upon and enforced by a learned Judge in the case of the United States vs. The General Parkhill, tried in Philadelphia, and published in the newspapers, although not yet issued in the regular volumes of Reports.

I need not tell you, gentlemen, that what is said there of the King, applies to any other form of Government equally well, whether it be a republican form of Government, or whatever it may be. These doctrines belong to this country as well as they belong to England. They belong to every country which has adopted the common law; and what would be due to a King in the actual possession of the Government in England, under our statutes and decisions, and under the rules adopted here, would be equally due to a President of the United States in any part of the country in which we live.

I have only to call your attention, in that connection, in opening the defence, to what the condition of things was in the South at the time the acts charged in the indictment occurred. You will bear in mind there is no pretence in this case that any one of these prisoners had anything whatever to do with the initiation of this controversy,—with the overthrow or disappearance of the United States authority in those Confederate States, or with any act occurring anterior to the 2d of June, when this vessel, the Savannah, started upon her career. Nothing, so far, appears, and, in reality, nothing can be made to appear, to show any event, before that time, with which they were connected.

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

I say, therefore, gentlemen, that this was not a commission issued by a "person, to wit, one Jefferson Davis." I say it was a commission issued by several of the States of the Union, represented, if you please, by Jefferson Davis, and by authority, in fact, from those States, and from the Government in force over them. And more than that, gentlemen, to bring the case still more clearly within the authorities I have read to you, and which you, no doubt, carry in your minds, we will show by the declarations of the Presidents of the United States—by the declaration of Mr. Buchanan, in December, 1860, and by the declaration of Mr. Lincoln, on the 4th of March, 1861—that neither of them, at either of those dates, intended to interfere, or to attempt to interfere, by force, with this existing Government. They both, publicly and solemnly, in the presence of the United States, declared that they would not attempt, by any forcible invasion of those States, to overthrow the Government established over them;—that there would be no "invasion," is the expression;—that they would leave it to the sober second thought of the people of those States, by process of time, by maturer thought and better reflection, to return, probably, to their former position under the Government of the United States. And what were men to do, in that condition of things, in the State of South Carolina, in the State of Georgia, or in any one of those States, with not an officer of the United States to protect them—with not a Court of Justice to protect them—with Courts of Justice, on the contrary, organized by the new Government, and exercising dominion of life and death, and every other dominion that Government could exercise—but to yield their allegiance to it, and from thenceforth to support it, as honest men should do, who yield their allegiance to the Government?

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

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

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

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

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

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

I want to call your attention to another thing, as I go along with this line of the argument. I contend that, among the powers which have been delegated to the State governments by the Constitutions of the States, is the power in the executive government of the State, co-ordinately with the General Government, to decide whether itself or the General Government has transcended the line which bounds their respective jurisdictions, upon any case in which a collision may arise between them, which affects the public domain of the State, or the whole State, or its citizens, considered as a body politic. And you will see, in a moment, the reason why I state my proposition in that way.

You have all heard of what, in the history of the country, has been called nullification, and you probably all understand very nearly what that is. By nullification, as it has been spoken of in the history of our country, was meant the claim on the part of a State, by a convention of its people, or otherwise, to decide that the laws of the United States should not operate within its limits upon its citizens, in cases where the law could legitimately operate upon individual citizens. Because you will all recollect that the laws of the United States, in their operation throughout the Union—their criminal laws, laws for the collection of duties, and similar laws—operate upon individual citizens, without reference to whether they are citizens of one State or another. The law operates upon them as people of the United States. And therefore, if you are carrying on business in the port of New York, and a consignment comes to you, it is a question between you as a citizen of the United States and the Government whether the tariff, under which duties are attempted to be collected is valid, as between you and the Government, or not—whether it was legitimate for Congress to pass that tariff; and, in all cases arising on these subjects, the Constitution has provided a tribunal, an arbiter, which is supreme and final, without any appeal. For instance, if you deny the validity of the law under which duties are attempted to be collected upon the goods imported by you, and the Collector attempts to collect them, you refuse to pay, or pay under protest,—and the case must come into the District Court of the United States; and if the Court decides that the law was unconstitutional, you get immediate redress; if it decides that it was constitutional, the question can be carried to the Supreme Court of the United States, and there finally settled. And, therefore, I say that in all cases that come within the purview of the judicial department of the Government, the laws of the United States, as administered by the Courts, and their decisions, bind the citizens of the States in every part of the land.

But, gentlemen, there are an immense class of cases constantly arising where no opportunity can ever be presented to a Court to pass upon them, which were never intended to be passed upon by a Court, which are cases of collision between the executive department of the General Government and the State government in matters, as I expressed it to you before, affecting the public domain, or the State or its citizens as a body politic. As laid down by the expounders of the Constitution of the United States, that instrument is one to which the States are parties, as well as the people of the United States and people of each State.

Suppose a case of this kind. It is not a case likely to arise; but every case may arise, as we have been sadly admonished by the events of the last few months. Suppose we had a President in the executive chair at Washington who was a citizen of the State of Massachusetts, and greatly interested in the prosperity of the commerce of the City of Boston; and suppose that, being a wicked man (for wicked men have been sometimes elected to offices in this and every country), he had conceived the iniquitous design of ruining the commerce of New York, for the purpose of benefiting the commerce of the City of Boston; and suppose, in the prosecution of that wicked design, without the pretense of authority to do so under the Constitution of the United States, without a pretense that Congress had passed any law authorizing him to do anything of the kind, he should station a fleet of vessels, by orders to the commander of his squadron, off the harbor of New York, and should say, from this day forward the commerce of the port of New York is hermetically closed, and the commerce which has formerly gone to New York must go to Boston. Is the State of New York, under a condition of things of that kind, to submit to the closing of her commerce, to her ruin and destruction? Can she get before the Courts for redress against such an infringement of the Constitution by the President? How is she to get there? She cannot go to the Supreme Court of the United States, for in the Courts of the United States there is no form of jurisdiction by which the question can be brought before the Courts by any possibility whatever; and New York is a sovereign and independent State, and, so far as she has not conceded jurisdiction to the United States by the Constitution, has a right to exercise every sovereign and independent power that she has. There is a case, therefore, in which the Courts of law can afford no redress,—in which the Constitution has erected no common arbiter between the General Government and the government of the State.

Who, then, is the arbiter in such a case? Why, gentlemen, the books have expressed it. It is the last argument of Kings—it is the law of might; and in case of a collision of that kind, I maintain before you, upon this trial, that the State has a right to redress herself by force against the General Government; that she has a right, if necessary, to commission cruisers, to drive the squadron away from the port of New York; and she has a right, if more effectual, to commission private armed vessels to aid in driving them away, or to capture or subdue them. There being no common arbiter between her and the General Government in a case of that kind, she has a right to use force in redressing herself, and to take the power into her own hands.

And the authorities are uniform upon that subject. I have been obliged to detain you so long that I shall not read them to you; but I have them collected before me, and in the future discussions which may take place before the Court I shall be able to show that that right was maintained by Hamilton, one of the most distinguished members of the Convention who helped to frame the Constitution, and the strongest advocate of placing large powers in the hands of the Federal Government; by Madison, Jefferson, and all the Fathers of the Constitution, and by all who have written upon the subject; that it is a doctrine which has been asserted by the Legislature of the State of New Jersey, and, indeed, by the State Legislatures of all the States, pretty much, in which the question has arisen—that the Supreme Court of the United States have themselves over and over again declared that the only safeguard that existed, under the Constitution, against the right of the State to come into collision with the General Government, in all cases whatever, was the existence of the judiciary power, in cases where that was applicable between them, and that in all cases where that judiciary power failed, they were left to the law of nature and the might of Kings to redress themselves.

Now, gentlemen, if I am right in that step in my argument,—if that right would exist at any time or under any circumstances,—there must be some authority, in the State that has the jurisdiction, to decide for the citizens of the State when that occasion has arisen; and there must be some authority in the United States which has a right to decide for the Government of the United States when that occasion has arisen; whose decision (that is, in the General Government) is binding for the people of all the States, except the State in collision with the Federal Government and which makes a contrary decision; and whose decision, in that State, is an authority and protection for all the citizens of that State.

I say to you, moreover, gentlemen, that that right, under the law of nature, to resist the attempted usurpation of a power which has not been granted by the Constitution, resides, in a State, in the executive government, and necessarily in the Governor of the State; because you will recollect one of the premises upon which we started was, that all the residuary power in the government, beyond what had been expressly ceded to the Government of the United States by the Federal Constitution, is, by the Constitution, reserved to the State; and the Governor of the State is the sentinel upon the watch-tower for the protection of the rights of the State. He is placed in that position to watch the danger from afar. He communicates with the General Government. Any steps taken having reference to the State, pass under his inspection; and he alone has the materials within his reach for knowing the circumstances and deciding upon the facts in regard to the question whether the General Government is acting within the constitutional limit of its powers, or whether it is guilty of any usurpation of power, in any claim of authority it makes with reference to the affairs of the State. Because, in the case I have supposed, of a President elected from the State of Massachusetts, seeking to destroy the commerce of New York, and stationing a fleet off the harbor, it is not likely that a President who was guilty of such wickedness would avow that he did it for the purpose of building up the commerce of Boston and destroying that of New York. No; he would say that he had notice of a hostile invasion—a fleet leaving the coast of Great Britain or of some other maritime power to make a descent upon New York,—that he had notice of some threatened injury to New York, which would make it necessary to station a fleet there, and to prevent vessels from entering or leaving. The Governor alone would have the means of ascertaining whether there was any foundation in truth for that, or whether it was a mere pretence to cover his iniquitous purpose; and in determining the case whether the Federal Government is exceeding its power or not, or acting within the constitutional limit of its power, the Governor has to deal with a compound question of law and fact. He must first read the Constitution of the United States, and ascertain its grant of power, and then compare that with the facts as presented to him; and upon that comparison the jurisdiction is placed in him to decide whether the act of the General Government is within its power, or a transgression of it.

He decides the question, and what more have we then? He is, by his office, commander-in-chief of the military and naval forces of the State; for the State can have both military and naval forces. It has its militia at all times. It is authorized expressly by the Constitution to keep ships of war, in time of war. There is, certainly, a prohibition in the Constitution of the United States against a State granting letters of marque; but that is a prohibition against its granting letters of marque in a war against foreign States; it has no reference whatever to any possible collision that may take place between the State and the Federal Government. And that rule is laid down by Grotius and Vattel both; for they both maintain and assert the right of the people, under every limited Constitution, in the case of a palpable infringement of power by the chief of the State, forcibly to resist it; and Grotius puts the case of a State with a limited Constitution, having both a King and a Senate, in which the power of declaring war was in express terms reserved to the King alone, and he says that by no means prevents the Senate, in case of an infringement of the Constitution by the King, from declaring and making war against him; because the phrase is to be understood of a war with foreign nations and not of an internal war. I say, therefore, that in a case of that kind—a palpable infringement by the General Government of the Constitution—the Governor of the State, in the first place, has the only means and the only right of deciding whether that infringement has taken place.

In each State the Governor is commander-in-chief of the naval and military forces; he has a right to give military orders to citizens; he has a right to order them to muster in the service of the State; and if they disobey him they can be punished the same as they can in any civilized country.

And more than that: suppose a case arises of that kind, in which the General and State Governments come into forcible collision, and suppose a citizen should take arms against the State; there is the law of the State which punishes for treason every citizen of the State who adheres to its enemies, giving them aid and comfort; and, under the theory of the prosecution, if he adheres to the State, and the Federal Government should happen to be the victor in the contest, there is the law of the Federal Government which punishes him for adhering to the State. So that the poor citizen of the State, if this theory be correct, is to be punished and hanged, whichever party may succeed in the unhappy contest.

But, gentlemen, the law perpetrates no such absurdity as that; for the very moment the doctrine for which I contend is admitted, the citizen, in a conflict like that between the Federal Government and the State, is not liable to be considered a traitor or punished as such, let him adhere to which of the two parties he pleases, in good faith. The reason of which is clear. He is the subject of two sovereigns,—the one the Federal Government and the other the State in which he lives. Either of these sovereigns has jurisdiction to decide for him the question whether the other is committing a usurpation of power or not; and it inevitably follows that if these two sovereigns decide that question differently, the citizen is not to be punished as a traitor, let him adhere to which he pleases in good faith. And I submit to you, gentlemen, that is the only doctrine, under the Constitution of the United States, and under our complex system of government, which can be admitted for a moment. I will give you a confirmation of that. I have already stated to you the clause of the Constitution of the United States which defines the punishment of the crime of treason against the United States,—and by looking at the reports of the debates in the Convention which adopted the Constitution, you will find that the clause, as originally reported to the Convention, read: "Treason against the United States shall consist in levying war against the United States or any of them, or in adhering to the enemies of the United States, or any of them, giving them aid and comfort,"—and the clause, as reported, was amended by striking out the words, "or any of them," and making it read: "Treason against the United States shall consist in levying war against them or in adhering to their enemies," &c. Therefore, under our Constitution, treason against the United States must be levying war against all the States of this Confederacy. It does not mean the Government. The amendment which I have spoken of shows it must be an act of hostility which is, in judgment of law, an act of hostility against all the States of the Union. Therefore I say that a citizen who owes allegiance to a State of the Union, when he acts in good faith, under the jurisdiction of one of the sovereigns to whom he owes allegiance—to wit, the State—does not levy war against the United States. He levies war against the Government which claims to represent him, in that case,—his other sovereign, to whom he equally owes allegiance, deciding that that Government is committing an usurpation of power; and he is acting under the authority of those in whom he rightly and justly reposes faith,—to whom has been delegated the right to decide; and however the Governor of the State may be punished by impeachment, if he has acted in bad faith, the citizen cannot be subject to the halter for doing that which he was under a legal obligation to do.

Then, gentlemen, to show the application of the rule for which I have been contending—and with the necessary details of which I fear I must have wearied you—to the case in hand: The moment it is conceded that any possible case can arise in which a State would have the right to resist by force the General Government,—the moment it is conceded that it is the Governor of the State, who, co-ordinately with the President of the Union, has a right to decide that question for himself,—then I say we have nothing whatever to do with the question, whether, under the unhappy circumstances which have arisen, the Governor of the State, or of any of the States, decided right or wrong. We know they did claim that the General Government was usurping power which did not belong to it. In fact, I think we have the confession of the President of the United States that, with an honest heart and with honest purposes, which I believe have actuated him all through, he has, as he says, for the preservation of the Union, the hope of humanity in all ages, and the greatest Government, as I shall ever believe, that man has ever created,—that he has been compelled to, and did, usurp power which did not belong to him. President Buchanan, before and after this controversy arose, asserted plainly and unequivocally that he had searched the Constitution and laws of the United States for the purpose of finding any color of authority for the invasion of a State by military force, or the using of force against it; and that he could find no such warrant in the Constitution. He was right. There was nothing of the kind in the Constitution; but he failed to see (in my humble judgment) that the law of nature gave him the power to enforce the legitimate authority of the Union, as it gave to the State government the power to repel usurpation. President Lincoln, when he assumed the reins of power, admitted that there was a doubt on that subject. He declared at first that it was not expedient to exercise that power, and that he would not exercise it. He changed his mind afterwards, and did exercise it; and on the 13th of April he issued a proclamation calling for 75,000 volunteers, the first duty assigned to whom, as he stated in his proclamation, would be to invade the Southern States, for the purpose of recapturing the forts and retaking the places that had passed out of the jurisdiction of the United States. And in a subsequent proclamation he declared that he had granted to the military commanders of these forces, without the sanction of an Act of Congress, authority to suspend the writ of habeas corpus, within certain limits and in certain cases, in those States. And he makes the frank admission that, in his own belief at least, some of the powers which he had found himself compelled to exercise were not warranted in the Constitution of the United States.

Now these acts of hostility complained of in the indictment took place long subsequent to that. This proclamation was in the month of April. These commissions were not issued, and the Act of the Confederate States to authorize their issue was not passed, until some time afterwards—after they had learned of this proclamation; and this commission was not granted until the month of June subsequent.

I say, therefore, a case was presented for the exercise of the jurisdiction of the Government of the United States, to decide whether it was exercising its rightful powers, under the Constitution, and for the Governor of the State to decide, for the State, that same question; and that an unhappy case of collision, ever to be regretted and deplored, had arisen between the Government of the United States and the Government of those States; and I say that the citizens of any one of those States owing the duty of allegiance to two sovereigns—to the government of their State and to the Government of the United States—had a right honestly to make their election to which of the two sovereigns they would adhere, and are not to be punished as traitors or pirates if they have decided not wisely, nor as we would have done in the section of the country where we live.

I am sorry, gentlemen, to detain you on the question; but it is a most important one—one that enters into the very marrow of this case; and we do claim that the issuing of this commission, whether on the footing of its having been issued by a de facto Government, or by authority from the State, considering it as remaining under the Constitution, was a commission that forms a protection to the defendants, and one which is not within the purview of the Act of 1790; because it was not, in the language of that section, a commission taken by a citizen of the United States to cruise against other citizens of the United States, either from a foreign Prince or State, or a person merely.

You will observe that if the claim of the Confederate States, that the ordinances of secession are valid, be correct, then it is true that they are foreign States; but their citizens have ceased to be citizens of the United States, and are therefore not within the purview of the ninth section of the Act of 1700.

If, on the contrary, the claim on the part of the Government of the United States, that these ordinances are absolutely void, be correct, then the States are still States of this Union, and the commission, being issued by their authority, is not a commission issued by a foreign State, and therefore the case is not within the purview of the ninth section of the Act of 1790.

I must allude very briefly, before closing, to another ground on which this defence will be placed: and that is, that conceding (if we were obliged to concede) that this was not an authority, such as contemplated, to give protection to cruisers as privateers, there was a state of war existing in which hostile forces were arrayed against each other in this country, and which made this capture of the Joseph a belligerent act, even obliterating State lines altogether, for the purpose of the argument.

But before I pass from what I have said to you on the subject of the claim of authority of the States of this Union to come into collision with the General Government, allow me to call attention to the forcible precedents shown in the history of our own glorious Revolution, when the thirteen Colonies, numbering little more than three millions, instead of thirty, separated from Great Britain. At the time when that occurred, in 1776, this very statute of 1790 was in force in England, as I have shown you. It was passed in England, if I recollect right, in 1694. The position of the thirteen Colonies towards the mother country, at that time, was precisely the position that those States which call themselves the "Confederate States" now occupy towards the General Government of the Union.

Appealing to God, as the Supreme Ruler of the Universe, for the rectitude of their intentions, and acknowledging their accountability to no other power, they had claimed to resist the usurpation of the King of Great Britain. They had not even claimed, at the time of which I speak—for I speak of the end of the year 1775 and the beginning of 1776—to declare their independence and to throw off their subjection to Great Britain. At that very early day there were very few in these Colonies that contemplated a thing of that kind, or whose minds could be brought to contemplate such an act. They had risen in resistance against what they claimed to be arbitrary power; they claimed that the King of Great Britain had encroached upon their rights and privileges in a manner not warranted by the Constitution of Great Britain. They did not claim to secede from Great Britain; they did not claim to make themselves independent of subjection to her rule; they claimed to stop the course of usurpation which, they held, had been commenced; and they proposed to return under subjection to the British crown the very moment that an accommodation should be made, yielding allegiance to the King of Great Britain as in all time before. And now, gentlemen, on the 23d March, 1776, on a Saturday, the little Continental Congress was sitting in the chamber, of which you have often seen the picture, composed of the great, wise, and good men, who sat there in deliberation over the most momentous event that has ever occurred in modern times, if we except that now agitating and convulsing our beloved country. I never heard one of those men stigmatized as a pirate. I never heard one of those men calumniated as an enemy of the human race. I have often heard them called the greatest, wisest, and best men that ever lived on the face of God's earth. I will read to you what occurred on the 23d March, 1776;—they being subjects of the King of Great Britain, and having never claimed to throw off allegiance to him, but claiming that he was usurping power which did not belong to him, and that they, as representatives of the thirteen Colonies of America, were the judges of that question and those facts, as we claim that the States are now the judges of this question and these facts. They adopted the following preamble and resolutions:

"The Congress resumed the consideration of the Declaration, which was agreed to, as follows:

"Whereas, The petitions of the United Colonies to the King for the redress of great and manifold grievances have not only been rejected, but treated with scorn and contempt, and the opposition to designs evidently formed to reduce them to a state of servile subjection, and their necessary defence against hostile forces actually employed to subdue them, declared rebellion;

"And Whereas, An unjust war hath been commenced against them which the commanders of the British fleets and armies have prosecuted and still continue to prosecute with their utmost vigor, in a cruel manner, wasting, spoiling, and destroying the country, burning houses and defenceless towns, and exposing the helpless inhabitants to every misery, from the inclemency of the winter, and not only urging savages to invade the country, but instigating negroes to murder their masters;

"And Whereas, The Parliament of Great Britain hath lately passed an Act, affirming these Colonies to be in open rebellion; forbidding all trade and commerce with the inhabitants thereof until they shall accept pardons, and submit to despotic rule; declaring their property wherever found upon the water liable to seizure and confiscation, and enacting that what had been done there by virtue of the royal authority were just and lawful acts, and shall be so deemed; from all which it is manifest that the iniquitous schemes concerted to deprive them of the liberty they have a right to by the laws of nature, and the English Constitution, will be pertinaciously pursued. It being, therefore, necessary to provide for their defence and security, and justifiable to make reprisals upon their enemies and otherwise to annoy them according to the laws and usages of nations; the Congress, trusting that such of their friends in Great Britain (of whom it is confessed there are many entitled to applause and gratitude for their patriotism and benevolence, and in whose favor a discrimination of property cannot be made) as shall suffer by captures will impute it to the authors of our common calamities, Do Declare and Resolve as follows, to wit:

"Resolved, That the Inhabitants of these Colonies be permitted to fit out armed vessels to cruise on the enemies of these United Colonies.

"Resolved, That all ships and other vessels, their tackle, apparel and furniture, and all goods, wares and merchandize belonging to any inhabitant of Great Britain, taken on the high seas, or between high and low water-mark, by any armed vessel fitted out by any private person or persons, and to whom commissions shall be granted, and being libelled and prosecuted in any Court erected for the trial of maritime affairs in any of these Colonies, shall be deemed and adjudged to be lawful prize, and after deducting and paying the wages which the seamen and mariners on board of such captures as are merchant ships and vessels shall be entitled to, according to the terms of their contracts, until the time of their adjudication, shall be condemned to and for the use of the owner or owners, and the officers, marines, and mariners of such armed vessels, according to such rules and proportions as they shall agree on. Provided, always, that this resolution shall not extend to any vessel bringing settlers, arms, ammunition or warlike stores to and for the use of these Colonies, or any of the inhabitants thereof who are friends to the American cause, or to such warlike stores, or to the effects of such settlers.

"Resolved, That all ships or vessels, with their tackle, apparel and furniture, goods, wares and merchandize, belonging to any inhabitant of Great Britain, as aforesaid, which shall be taken by any of the vessels of war of these United Colonies, shall be deemed forfeited; one-third, after deducting and paying the wages of seamen and mariners, as aforesaid, to the officers and men on board, and two-thirds to the use of the United Colonies.

"Resolved, That all ships or vessels, with their tackle, apparel and goods, wares and merchandizes, belonging to any inhabitant of Great Britain, as aforesaid, which shall be taken by any vessel of war fitted out by and at the expense of any of the United Colonies, shall be deemed forfeited and divided, after deducting and paying the wages of seamen and mariners, as aforesaid, in such manner and proportions as the Assembly or Convention of such Colony shall direct."

There are two or three other resolutions, which it is not necessary for me to trouble you with the reading of. You will bear in mind that there were no two sovereignties over these United Colonies at that time. They had no sovereignty or independence whatever; they were mere Provinces of the British Crown; the Governors derived their appointment from the Crown itself, or from the proprietors of the Colonies; and these wise and good men, on the 23d March, 1776, claimed that the King of Great Britain had usurped powers which did not belong to him under the Constitution of Great Britain, and that they had the right to resist his encroachments; and they authorized letters of marque to cruise against the ships and property of their fellow subjects of Great Britain, because of the state of things which arose from a collision between them and the Crown. They were enemies, and although they regretted that they had to injure in their property men who were their friends, they trusted they would excuse them, owing to the inevitable necessity that existed and the impossibility of discriminating between friends and foes in the case of inhabitants of Great Britain.

And now, gentlemen, to trouble you with one more brief reference, let me show you what took place before that Act of the Provincial Congress was passed in the Province of Massachusetts. They had already passed a Provincial Act of the General Assembly, couched in similar language, authorizing cruisers and privateers against the enemies of that Province; and you will see what occurred. I read again from Cooper's Naval History, 1st Vol., p. 42. He is speaking of the year 1775:

"The first nautical enterprise that succeeded the battle of Lexington was one purely of private adventure. The intelligence of this conflict was brought to Machias, in Maine, on Saturday, the 9th of May, 1775. An armed schooner, in the service of the Crown, called the Margaretta, was lying in port, with two sloops under her convoy, that were loading with lumber on behalf of the King's Government.

"The bearers of the news were enjoined to be silent,—a plan to capture the Margaretta having been immediately projected among some of the more spirited of the inhabitants. The next day being Sunday, it was hoped that the officers of the schooner might be seized while in church; but the scheme failed, in consequence of the precipitation of some engaged. Captain Moore, who commanded the Margaretta, saw the assailants, and, with his officers, escaped through the windows of the church to the shore, where they were protected by the guns of their vessel. The alarm was now taken; springs were got on the Margaretta's cables, and a few harmless shot were fired over the town by way of intimidation. After a little delay, however, the schooner dropped down below the town to a distance exceeding a league. Here she was followed, summoned to surrender, and fired on from a high bank, which her own shot could not reach. The Margaretta again weighed, and running into the bay, at the confluence of the two rivers, anchored. The following morning, which was Monday, the 11th of May, four young men took possession of one of the lumber sloops, and, bringing her alongside of a wharf, they gave three cheers as a signal for volunteers. On explaining that their intentions were to make an attack on the Margaretta, a party of about thirty-five athletic men was soon collected. Arming themselves with firearms, pitchforks, and axes, and throwing a small stock of provisions into the sloop, these spirited freemen made sail on their craft, with a light breeze at northwest. When the Margaretta observed the approach of the sloop, she weighed and crowded sail to avoid a conflict that was every way undesirable,—her commander not yet being apprised of all the facts that had occurred near Boston. In jibing, the schooner carried away her main-boom, but, continuing to stand on, she ran into Holmes' Bay, and took a spar out of a vessel that was lying there. While these repairs were making, the sloop hove in sight again, and the Margaretta stood out to sea, in the hope of avoiding her. The breeze freshened, and, with the wind on the quarter, the sloop proved to be the better sailer. So anxious was the Margaretta to avoid a collision, that Captain Moore now cut away his boats; but, finding this ineffectual, and that his assailants were fast closing with him, he opened a fire—the schooner having an armament of four light guns and fourteen swivels. A man was killed on board the sloop, which immediately returned the fire with a wall-piece. This discharge killed the man at the Margaretta's helm, and cleared her quarter-deck. The schooner broached to, when the sloop gave a general discharge. Almost at the same instant the two vessels came foul of each other. A short conflict now took place with musketry,—Captain Moore throwing hand-grenades, with considerable effect, in person. This officer was immediately afterwards shot down, however, when the people of the sloop boarded and took possession of their prize. The loss of life in this affair was not very great, though twenty men, on both sides, are said to have been killed and wounded. The force of the Margaretta, even in men, was much the most considerable; though the crew of no regular cruiser can ever equal, in spirit and energy, a body of volunteers assembled on an occasion like this. There was, originally, no commander in the sloop; but, previously to engaging the schooner, Jeremiah O'Brien was selected for that station. This affair was the Lexington of the sea,—for, like that celebrated land conflict, it was a rising of the people against a regular force; was characterized by a long chase, a bloody struggle, and a triumph. It was also the first blow struck on the water, after the war of the American Revolution had actually commenced."

And that is the act, gentlemen, which, instead of being the act of desperadoes, pirates, and enemies of the human race, is recorded in history as an act of spirited freemen. You will remember that the act was done without any commission; it was done while these Provinces were Colonies of the British Crown; it was done long before the Declaration of Independence. The Act of the Provincial Congress, so far as that could have any validity, authorizing letters of marque, was not passed until afterwards, on the 23d of March. The Declaration of Independence was passed on the 4th July, 1776. According to the theory on the other side, call this lawful secession—call it revolution—call it what you please,—these Confederate States, as they are called, are not independent. They have not any Government—they cannot do any thing until their independence is acknowledged by the United States. Therefore, according to the theory of the other side, no act of the Provincial Congress, no act of any of the United Colonies, had any validity in it until the treaty of peace between them and Great Britain was signed, in 1783. But, I need not tell you, gentlemen, that in this country, in all public documents, in all public proceedings, in the decisions of our Courts, the actual establishment of the independence of the United States is dated as having been accomplished on the 4th July, 1776. All the state papers that run in the name and by the authority of the United States of America, run in their name, and by their authority, as of such a year of their independence, dating from the 4th July, 1776. Let me, therefore, show you what was done by the Colonies, in 1776, before and after the date of the Declaration of Independence; and let me show how many piracies our hardy seamen of those days must have committed, on the theory of the prosecution in this case. I read again from Cooper's Naval History:

"Some of the English accounts of this period state that near a hundred privateers had been fitted out of New England alone, in the two first years of the war; and the number of seamen in the service of the Crown, employed against the new States of America, was computed at 26,000.

"The Colonies obtained many important supplies, colonial as well as military, and even manufactured articles of ordinary use, by means of their captures,—scarce a day passing that vessels of greater or less value did not arrive in some one of the ports of their extensive coast. By a list published in the 'Remembrancer,' an English work of credit, it appears that 342 sail of English vessels had been taken by American cruisers, in 1776; of which number 44 were recaptured, 18 released, and 4 burned."

Well, gentlemen, with these facts staring you in the face, I ask you if it is not flying in the face of history—if it is not rejecting and trampling in the dust the glorious traditions of our own country—to be asked seriously to sit in that jury box and try these men for their lives, as pirates and enemies of the human race, on the state of things existing here? Gentlemen, my mind may be under a strong hallucination on the subject; but I cannot conceive the theory on which the prosecution can come into Court, on the state of things existing, and ask for a conviction. Remember that, in saying that, I am speaking as a Northern man,—for I am a Northern man; I am speaking as a subject and adherent to the Government of the Union; I am speaking as one who loves the flag of this country—as one who was born under it—as one who hopes to be permitted to die under it; and I am speaking with tears in my eyes, because I do not want to see that flag tarnished by a judicial murder, and by an act cowardly and dastardly, as I say it would be, if we are to treat these men as pirates, while we are engaged in a hand-to-hand conflict with them with arms in the field, and while they are asserting and maintaining the rights which we claimed for ourselves in former ages. In God's name, gentlemen, let us, if necessary, fight them; if we must have civil war, let us convince them, by the argument of arms, and by other arguments that we can bring to bear, that they are in the wrong; let us bring them back into the Union, and show them, when they get back, that they have made a great mistake; but do not let us tarnish the escutcheon of our country, and disgrace ourselves in the eyes of the civilized world, by treating this mighty subject, when States are meeting in mortal shock and conflict, with the ax and the halter. In God's name, let us have none of that!

I have but one word more to say, gentlemen, before I close. I have already said that we claim that this commission is an adequate protection, considering that this is an inter-state war. It has been so considered, and is now so considered by the Government of the United States itself, because, after the conflict had commenced and had gone on for some time, it being treated by the Government at Washington as a mere rebellion or insurrection by insurgent and rebellious citizens in some of the Southern States, it was found that it had assumed too mighty proportions to be treated in that way, and therefore, in the month of July last, the Congress then in session passed an Act, one of the recitals of which was that this state of things had broken out and still existed, and that the war was claimed to be waged under the authority of the governments of the States, and that the governments of the States did not repudiate the existence of that authority. Congress then proceeded to legislate upon the assumption of the fact that the war was carried on under the authority of the governments of the States. There is a distinct recognition by your own Government of the fact that this is an inter-state war, and that the enemies whom our brave troops are encountering in the field are led on under authority emanating from those who are rightfully and lawfully administering the Government of the States.

You will recollect, gentlemen, that in most of those States the State governments are the same as they were before this condition of things broke out. There has been no change in the State constitutions. In a great many of them there has been no change in the personnel of those administering the government. They are the recognized legitimate Governors of the States, whatever may be said of those claiming to administer the Government of the Confederate States.

But, gentlemen, let us pass from that, and let us suppose it was not a war carried on by authority of the States. It is, then, a civil war, and a civil war of immense and vast proportions; and the authorities are equally clear in that case, that, from the moment that a war of that kind exists, captures on land and at sea are to be treated as prizes of war, and prisoners treated as prisoners of war, and that the vocation of the ax and the halter are gone. I refer you to but a single authority on this subject, because I have already occupied more of your time than I had intended doing, and I have reason to be very grateful to you for the patience and attention with which you have listened to me in the extended remarks that I was obliged to make. I refer to Vattel, Book 3, cap. 18, secs. 287, 292 and 293:

"Sec. 287. It is a question very much debated whether a sovereign is bound to observe the common laws of war towards rebellious subjects who have openly taken up arms against him. A flatterer, or a Prince of cruel and arbitrary disposition, will immediately pronounce that the laws of war were not made for rebels, for whom no punishment can be too severe. Let us proceed more soberly, and reason from the incontestible principles above laid down."

The author then proceeds to enforce the duty of moderation towards mere rebels, and proceeds:

"Sec. 292. When a party is formed in a State who no longer obey the sovereign, and are possessed of sufficient strength 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 competitors 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 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 entitle such disturbance to the name of civil war, and not that of 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.

"Sec. 293. It is foreign to our purpose, in this place, to weigh the reasons which may authorize and justify a civil war; we have elsewhere treated of the cases wherein subjects may resist the sovereign. (Book 1, cap. 4.) Setting, therefore, the justice of the cause wholly out of the question, it only remains for us to consider the maxims which ought to be observed in a civil war, and to examine whether the sovereign, in particular, is on such an occasion bound to conform to the established laws of war.

"A civil war breaks the bonds of society and Government, or at least suspends their force and effect; it produces in the nation two independent parties, who consider each other as enemies, and acknowledge no common judge. Those two parties, therefore, must necessarily be considered as thenceforward constituting, at least for a time, two separate bodies—two distinct societies. Though one of the parties may have been to blame in breaking the unity of the State, and resisting the lawful authority, they are not the less divided in fact. Besides, who shall judge them? Who should pronounce on which side the right or the wrong lies? On each they have no common superior. They stand, therefore, in precisely the same predicament as two nations who engage in a contest, and, being unable to come to an agreement, have recourse to arms.

"This being the case, it is very evident that the common laws of war—those maxims of humanity, moderation and honor, which we have already detailed in the course of this work—ought to be observed by both parties in every civil war. For the same reasons which render the observance of those maxims a matter of obligation between State and State, it becomes equally and even more necessary in the unhappy circumstances of two incensed parties lacerating their common country. Should the sovereign conceive he has a right to hang up his prisoners as rebels, the opposite party will make reprisals; if he does not religiously observe the capitulations, and all other conventions made with his enemies, they will no longer rely on his word; should he burn and ravage, they will follow his example; the war will become cruel, horrible, and every day more destructive to the nation."

After noticing the cases of the Duc de Montpensier and Baron des Adrets, he continues:

"At length it became necessary to relinquish those pretensions to judicial authority over men who proved themselves capable of supporting their cause by force of arms, and to treat them not as criminals, but as enemies. Even the troops have often refused to serve in a war wherein the Prince exposed them to cruel reprisals. Officers who had the highest sense of honor, though ready to shed their blood on the field of battle for his service, have not thought it any part of their duty to run the hazard of an ignominious death. Whenever, therefore, a numerous body of men think they have a right to resist the sovereign, and feel themselves in a condition to appeal to the sword, the war ought to be carried on by the contending parties in the same manner as by two different nations, and they ought to leave open the same means for preventing its being carried into outrageous extremities and for the restoration of peace."

Now, gentlemen, can anything be more explicit on this subject, leaving out of view all questions of the authority of the States or of the Confederate Government to issue this commission? Can anything be more pointed or more direct on the question? Treat this as a mere civil war—treat it as though all State lines of the Union were obliterated, and as though this was a common people, actuated by some religious or political fanaticism, who had set themselves to cutting each others' throats—treat it as a purely civil strife, without any question of State sovereignty or State jurisdiction connected with it,—and still you have the authority of Vattel, an authority than which none can be higher, as the Court will tell you—and I could multiply authorities on that point from now until the shadows of night set in—that even in that case it is obligatory to observe the laws of war just the same as if it was a combat between two nations, instead of between two sections of the same people. Even if there was no commission whatever here, by any one having a color or pretence of right to issue it, but if those belonging to one set of combatants, in a civil strife which had reached the magnitude and proportions of which Vattel speaks, had set out to cruise, and had captured this vessel, I submit to you that it could not be treated as a case of piracy.

I have closed, gentlemen, the argument which, on opening the case, I have thought it necessary to advance in order that you may be able to apply the evidence. Every word that Vattel says there endorses the entreaty which I have made to you, as you love your country and as you love her prosperity, to view this case without passion and without prejudice created by the section in which you live, as I know and trust by your looks and indications that you will. And I say to you, gentlemen, that a greater stab could not be inflicted on our Government—not a greater wound could be given to the cause in which we all, in this section of the country, are enlisted—than to proclaim the doctrine that these cases are to be treated as cases for the halter, instead of as cases of prisoners of war between civilized people and nations. The very course of enlistment of troops for the war has been stopped in this city by that threat. As I said before, the officers and soldiers on the banks of the Potomac, if they could be appealed to on that question, would say, "For God's sake, leave this to the clash of arms, and to regular and legitimate warfare, and do not expose us to the double hazard of meeting death on the field, or meeting an ignominious death if we are captured." And as history has recorded what I have called your attention to as having occurred in the days of the Revolution, so history will record the events of the year and of the hour in which we are now enacting our little part in this mighty drama. The history of this day will be preserved. The history of your verdict will be preserved. You will carry the remembrance of your verdict when you go to your homes. It will come to you in the solemn and still hours of the night. It will come to you clothed in all the solemn importance which attaches to it, with the lives of twelve men hanging upon it, with the honor of your country at stake, with events which no one can foresee to spring from it. And I have only to reiterate the prayer, for our own sake and for the sake of the country, that God may inspire you to render a verdict which will redound to the honor of the country, and that will bring repose to your own consciences when you think of it, long after this present fitful fever of excitement shall have passed away.

DOCUMENTARY TESTIMONY.

Mr. Brady, for the defence, put in evidence the following documents:

1. Preliminary Chart of Part of the sea-coast of Virginia, and Entrance to Chesapeake Bay.—Coast Survey Work, dated 1855.

2. The Constitution of Virginia, adopted June 29, 1776. It refers only to the western and northern boundaries of Virginia—Art. 21—but recognizes the Charter of 1609. That charter (Hemmings' Statutes, 1st vol., p. 88) gives to Virginia jurisdiction over all havens and ports, and all islands lying within 100 miles of the shores.

3. The Act to Ratify the Compact between Maryland and Virginia, passed January 3, 1786—to be found in the Revised Code of Virginia, page 53. It makes Chesapeake Bay, from the capes, entirely in Virginia.

Mr. Sullivan also put in evidence, from Putnam's Rebellion Record, the following documents:

1. Proclamation of the President of the United States, of 15th April, 1861. (See Appendix.)

2. Proclamation of the President, of 19th April, 1861, declaring a blockade. (See Appendix.)

3. Proclamation of 27th April, 1861, extending the blockade to the coasts of Virginia and North Carolina.

4. Proclamation of May 3d, for an additional military force of 42,034 men, and the increase of the regular army and navy.

5. The Secession Ordinance of South Carolina, dated Dec. 20, 1860.

Mr. Smith stated that, in regard to several of the documents, the prosecution objected to them,—not, however, as to any informality of proof. He supposed that the argument as to their relevancy might be reserved till the whole body of the testimony was in.

Judge Nelson: That is the view we take of it.

Mr. Brady suggested that the defence would furnish, to-morrow, a list of the documents which they desired to put in evidence.

The Court then, at half-past 4 P.M., adjourned to Friday, at 11 A.M.

THIRD DAY.

Friday, Oct. 25, 1861.

The Court met at 11 o'clock A.M.

Mr. Brady stated to the Court that two of the prisoners—Richard Palmer and Alexander Coid—were exceedingly ill, suffering from pulmonary consumption, and requested that they might be permitted to leave the court-room when they wished. It was not necessary that they should be present during all the proceedings.

Mr. Smith: It would be proper that the prisoners make the application.

Mr. Brady: They will remain in Court as long as they can; and will, of course, be present when the Court charges the Jury.

The Court directed the Marshal to provide a room for the prisoners to retire to, when they desired.

Mr. Sullivan: Before adjourning yesterday it was stated that the different ordinances of the seceded States were all considered in evidence without being read.

Mr. Smith: Are any of them later in date than the commission to the Savannah?

Mr. Sullivan: No, sir. Some States have seceded since the date of the commission, and have been received into the Confederacy.

Mr. Evarts: We will assume, until the contrary appears, that there are no documents of date later than the supposed authorization of the privateer.

Mr. Larocque: With this qualification,—that there are a great many documents from our own Government which recognize a state of facts existing anterior to those documents.

Mr. Sullivan read in evidence from page 10 of Putnam's Rebellion Record:

Letter from Secretary of War, John B. Floyd, to President James Buchanan, dated December 29, 1860.

President Buchanan's reply, dated December 31, 1860.

Also, from page 11 of Rebellion Record:

The Correspondence between the South Carolina Commissioners and the President of the United States.

[Considered as read.]

Also, referred to page 19 of Rebellion Record, for the Correspondence between Major Anderson and Governor Pickens, with reference to firing on the Star of the West.

Read Major Anderson's first letter (without date), copied from Charleston Courier, of Jan. 10, 1861. (See Appendix.)

Governor Pickens' reply, and second communication from Major Anderson. (See Appendix.)

Also, from page 29 of Rebellion Record, containing the sections of the Constitution of the Confederate States which differ from the Constitution of the United States.

Also, from page 31 of Rebellion Record: Inaugural of Jefferson Davis, as President of the Confederate States.

Also, page 36 of Rebellion Record: Inaugural of Abraham Lincoln, President of the United States, (for the passages, see Appendix.)

Also, page 61 of Rebellion Record: The President's Speech to the Virginia Commissioners. (See Appendix.)

Also, page 71 of Rebellion Record: Proclamation of Jefferson Davis, with reference to the letters of marque, dated 17th April, 1861.

Also, page 195 of Rebellion Record: An Act recognizing a state of war, by the Confederate Congress,—published May 6, 1861.

[Read Section 5.]

Mr. Lord read from pages 17, 19, and 20, of Diary of Rebellion Record, to give the date of certain events:

1861,

February

The Constitution of the Confederate States adopted. February 18. Jefferson Davis inaugurated President.

February

21.

The President of the Southern Confederacy nominates members of his Cabinet.

February

21.

Congress at Montgomery passed an Act declaring the establishment of free navigation of the Mississippi.

March

19.

Confederates passed an Act for organizing the Confederate States.

April

South Carolina Convention ratified the Constitution of the Confederate States by a vote of 119 to 16.

Mr. Sullivan: We propose now to introduce the papers found on board the Savannah when she was captured. The history of these papers is, that they were captured by the United States officers, taken from the Savannah, and come into our hands now, in Court, through the hands of the United States District Attorney, in whose possession they have been;—and they have been proceeded upon in the prize-court, for the condemnation of the Savannah. The first I read, is—

The Commission to the Savannah, dated 18th May, 1861.

Also, put in evidence, copy of Act recognizing the existence of war between the United States and the Confederate States, and concerning letters of marque,—approved May 6, 1861.

Also, read President Davis' Instructions to Private Armed Vessels,—appended to the Act.

Also, an Act regulating the sale of prizes, dated May 6, 1861,—approved May 14, 1861.

Also, an Act relative to prisoners of war, dated May 21, 1861.

Mr. Sullivan also read in evidence three extracts from the Message of President Lincoln to Congress, at Special Session of July 4, 1861. (See Appendix.)

Also, extracts from the Message of President Buchanan, at the opening of regular Session of Congress, December 3d, 1860. (See Appendix.)

Also, from page 245 of Rebellion Record: Proclamation of the Queen of Great Britain, dated May 13, 1861.

Mr. Evarts objected to this, on the ground that it could not have been received here prior to the date of the commission.

Objection overruled.

Also, from page 170 of Rebellion Record: Proclamation of the Emperor of France,—published June 11, 1861.

Also, the Articles of Capitulation of the Forts at the Hatteras Inlet, dated August 29th, on board the United States flagship Minnesota, off Hatteras Inlet.

Mr. Evarts remarked that this latter document was not within any propositions hitherto passed upon; but he did not desire to arrest the matter by any discussion, if their honors thought it should be received.

Judge Nelson: It may be received provisionally.

Mr. Brady also put in evidence the Charleston Daily Courier, of 11th June, 1861, containing a Judicial Advertisement,—a monition on the filing of a libel in the Admiralty Court of the Confederate States of America, for the South Carolina District, and an advertisement of the sale of the Joseph, she having been captured on the high seas by the armed schooner Savannah, under the command of T. Harrison Baker,—attested in the name of Judge Magrath, 6th June, 1861.

And containing, also, a judicial Act, relating to the administration of an estate in due course of law.

Mr. Brady stated that the reference was to show that they had a judicial system established under their own Government.

Lieutenant D. D. Tompkins recalled for the defence, and examined by Mr. Sullivan.

Q. State your knowledge as to the sending of any flags of truce while your vessel, the Harriet Lane, was lying at Fortress Monroe?

(Same objection; received provisionally.)

A. I have seen flags of truce come down from the direction of Norfolk.

Q. Did your vessel have any communication with the officer bearing the flag of truce?

A. No, sir.

Q. Did they come with the Confederate flag flying on the same vessel with the flag of truce?

A. Yes. One vessel came down with the Confederate flag flying, and a flag of truce, also.

Q. Where was it received, and by what officer?

A. I am not positive whether it was received by the Cumberland or the Minnesota. They communicated with either of those vessels.

Q. Were any vessels or boats, with flags of truce, ever sent from Fort Monroe toward the Confederate forces?

A. I have seen vessels go up the Roads with a flag of truce.

Q. And the United States flag on the same vessels?

A. Yes.

Q. You saw Captain Baker and the other prisoners—were they uniformed?

A. No, sir; I do not think they had any regular uniform. Captain Baker had a uniform, with metal buttons on his coat. I did not notice what was on the buttons.

Q. He had on such a dress as he wears to-day?

A. Something similar to that. He was the only one who had a uniform.

Q. Do you know anything as to the exchange of prisoners between the forces of the United States and of the Confederate States on any station where you have been?

A. No, sir.

The defence here closed.

The District Attorney stated that the prosecution had no rebutting evidence to offer.

Judge Nelson: Before counsel commence summing up the case to the Jury, they will please present the propositions of law on both sides.

Mr. Lord: I was going to ask my friends on the other side to give us their authorities, so that we shall know what we are to go to the Jury upon. We would then be able to lay our views before the Court and to divide the labor of summing up—some of us addressing ourselves entirely to the Court.

Mr. Evarts: I would have no objection to taking that course if I had been prepared for it. In the presentation of the case, we rely on the statute of the United States—on the fact that the defendants are within the terms of the statute; and that the affirmative defence, growing out of the state of things in this country, does not apply in a Court of the United States, and under a statute of the United States, which still covers the condition of the persons brought in. Whether they are citizens or aliens, nothing has been shown which takes them out of the general operation of our laws. On the question of the ingredients of the crime of piracy—which is a particular inquiry, irrespective of the considerations connected with the state of war—I do not know that we need refer to anything which is not quite familiar. The cases referred to by the learned counsel for the prisoners—the United States vs. Jones, the United States vs. Palmer, and the United States vs. Tully—contain all the views in reference to the ingredients of the crime of piracy, or to the construction of the statutes, that we need to present. In the general elementary books to which the learned counsel have referred—the various books on the Pleas of the Crown—there are passages to which we shall have occasion to refer.

Judge Nelson: The counsel for the Government should give to the counsel on the other side, before the summing up is commenced, all the authorities on which they intend to rely.

Mr. Evarts: That we shall do, of course.

Judge Nelson: We will take them now.

Mr. Evarts: I refer to 1st East's Pleas of the Crown, 70-1.

It is under the title of Treason, but it is on the point of the character of the crime as qualified by the influence on the party, of force, or of the state of the population by which the accused was surrounded. I read from page 70:

"Joining with rebels freely and voluntarily in any act of rebellion is levying war against the King; and this, too, though the party was not privy to their intent. This was holden in the case of the Earl of Southampton, and again in Purchase's case, in 1710. But yet it seems necessary, in this case, either that the party joining with rebels, and ignorant of their intent at the time, should do some deliberate act towards the execution of their design, or else should be found to have aided and assisted those who did.* * * But if the joining with rebels be from fear of present death, and while the party is under actual force, such fear and compulsion will excuse him. It is incumbent, however, on the party setting up this defence, to give satisfactory proof that the compulsion continued during all the time that he stayed with the rebels."

The case of Axtell, one of the regicides, is referred to. The defense was set up for him that he acted by command of his superior officer; but that was ruled to be no defence. I now read from page 104:

"One species of treason, namely, that of committing hostilities at sea, under color of a foreign commission, or any other species of adherence to the King's enemies there, may be indicted and tried as piracy, by virtue of the statutes."

That is, that although being guilty of treason, in its general character of adhering to the enemy, yet it also falls within the description of piracy, and may be proceeded against as such. On the question of the element of force or intimidation as entering into the crime of robbery, I refer to 1st Hawkins' Pleas of the Crown, page 235:

"Wherever a person assaults another with such circumstances of terror as put him into fear, and cause him, by reason of such fear, to part with his money, the taking thereof is adjudged robbery, whether there were any weapon drawn, or not, or whether the person assaulted delivered his money upon the other's command, or afterwards gave it him upon his ceasing to use force, and begging an alms; for he was put into fear by his assault, and gives him his money to get rid of him.

"But it is not necessary that the fact of actual fear should either be laid in the indictment or be proved upon the trial; it is sufficient if the offence be charged to be done violenter et contra voluntatem. And if it appear upon the evidence to have been attended with those circumstances of violence or terror which in common experience are likely to induce a man to part with his property against his consent, either for the safety of his person or for the preservation of his character and good name, it will amount to a robbery."

I refer to Hale's Pleas of the Crown, vol. I., p. 68, on the question of double or doubtful allegiance:

"Though there may be due from the same person subordinate allegiances, which, though they are not without an exception of the fidelity due to the superior Prince, yet are in their kind sacramenta ligea fidelitatis, or subordinate allegiances, yet there can not, or at least should not, be two or more co-ordinate allegiances by one person to several independent or absolute Princes; for that lawful Prince that hath the prior obligation of allegiance from his subject can not lose that interest without his own consent, by his subject's resigning himself to the subjection of another."

I refer to the case of the United States against Tully, 1st Gallison's Reports, p. 253-5, to show that the statute does not, in terms, require that there shall be any personal violence or putting in fear to constitute robbery, provided the offence is committed animo furandi.

I also refer to the case of the United States vs. Jones, 3 Washington C.C.R., p. 219, on the point of the justification given by a commission; to the case of United States vs. Hayward, 2 Gallison, 501; to the observations of Chancellor Kent, vol. I., p. 200, marginal page 191; to the United States vs. Palmer, 3 Wheaton, p. 634, as to the manner in which our Courts deal with international questions respecting the recognition of nationalities; to the case of the Santissima Trinidad, Kent's Commentaries, vol. I., p. 27, marginal page 25; to the case of Rose vs. Hinely, 4 Cranch, 241. I refer to the latter case for the general doctrines therein contained on the proposition that although a parent or original Government may find the magnitude and power of the rebellion such as to induce or compel it to resort to warlike means of suppression, so as that toward neutral nations there will grow up such a state of authority as will compel the recognition by neutral nations of the rights of war and belligerents, that is not inconsistent with or in derogation of the general proposition that the parent Government still maintains the sovereignty, and can enforce its municipal laws, by all those sanctions, against its rebellious subjects. In other words, that the flagrancy of civil war, which gives rise to the aspect and draws after it the consequences of war, does not destroy either the duty of allegiance or the power of punishing any infraction of law which the rebels may be guilty of, either in reference to the principal crime of treason, or in reference to any other violation of municipal rights.

I also ask your honors' attention to a recent charge of Judge Sprague, to the Grand Jury in the Massachusetts District, in reference to the crime of piracy.

On the question of jurisdiction, I refer to the case of the United States vs. Hicks, decided in this Court.

I refer to the case of the Mariana Flora, to show that the arrest of a pirate at sea arises under a general principle of the law of nations, which authorizes either a public or a private vessel to make the arrest. It is analogous to the common-law arrest of a felon. The point in the case of the Mariana Flora is, that any public or private vessel has a right to arrest a piratical vessel at sea and bring it in. It differs in that respect from the authority to arrest a slaver.

On the general question of the ingredients of robbery, I refer to Archbold's Criminal Practice and Pleadings, 2 vol., p. 507, marginal pages 417, 510, 526.

In political connections I shall have occasion to refer to the Constitution of the United States and to the Articles of the Confederation, to the Virginia and Kentucky resolutions, and the answers of the other States of the Union, which will be found collected in Ellett's Debates, vol. 4, pages 528 to 545.

I may refer also to Mr. Pinckney's speech in the Convention of South Carolina which adopted the Constitution, same volume, p. 331; to the formal ratifications of the Constitution by the different States of the Union, same volume, p. 318; and I may have occasion to refer to Grotius in connection with the discussion of the general state of war. The citations will be—book 1st, chap. 1, secs. 1 and 2; chap. 3, secs. 1 and 4; and chap. 4, sec. 1.

MR. LORD'S ARGUMENT.

Mr. Lord, of counsel for the defence, said:

May it please your honors,—The distribution of duties which counsel for the defence have made among themselves is, that I shall briefly present the propositions of law, somewhat irrespective of the wide political range which my friends seem to think is to be involved. I shall not pursue even the field which Mr. Larocque has opened, knowing that he has cultivated it to a far greater degree than I have, and therefore I will leave it to him to till. My friend, Mr. Brady, will address the Jury on any questions of fact that may be supposed to be involved.

Before I enter upon the discussion, and with the view that this case may be relieved from one prejudice which probably every man has felt on first hearing of it, I beg leave to set ourselves all right on the idea that there is something different in a private armed ship from a public armed vessel, in the law, and in the view of the people of the country. I desire to read on that subject a letter from Mr. Marcy to the Count de Sartiges.

Mr. Lord read the letter, and continued:

Therefore in this discussion, so far from a private armed vessel being regarded with disfavor, it is regarded, and has to be regarded, with all the favor which would belong to it as a regularly commissioned cruiser, belonging to the State, and not to the individual.

I now approach, with all the brevity due to your valuable time, the question of jurisdiction. It seems to me to be very clear indeed that after Harleston and the crew, of the Savannah were taken by the Perry, he was confined as a prisoner, as one of a crew of a piratical vessel, for an act charged as piratical, on board the United States ship-of-war Minnesota, by order of its commander. That Harleston was taken by the said commander into the District of Virginia, within a marine league of its shores, where the said ship remained; and the said Harleston and the other prisoners could have been there landed and detained for trial. If the facts are so, the Circuit Court of this District has no jurisdiction, and the prisoners should be acquitted.

The evidence of our friend, Commodore Stringham, on that subject, leaves us no doubt as to the character of the arrest. After seeing the Perry close in to Charleston, she having been ordered by him to cruise further off, and he, wondering what she was doing there—he says:

"She hailed us and informed us she had captured a piratical vessel. The vessel was half a mile astern. Captain Parrot, of the Perry, came and made to me a report of what had taken place. I ordered him to send the prisoners on board, and I sent a few men on board the Savannah to take charge of her during the night. The vessels were then anchored. Next morning I made arrangements to put a prize crew on board the Savannah and send her to New York, and I directed the Captain of the Joseph to take passage in her. I took the prisoners from the Perry, and directed the Perry to proceed," &c.

Again he testifies:

"Q. What was your object in transferring the prisoners from the Perry to the Minnesota?

"A. Sending them to a Northern port. The port of New York was the port I had in my mind to send them to, in the first ship from the station."

The prisoners, thus taken from a piratical vessel, he determined to carry to Norfolk, and to send them thence to the North for trial.

Now, if your honors please, my learned friend (Mr. Evarts) seems to say that there is no authority in law for a United States vessel to arrest pirates at sea; but if you will read the President's proclamation of 19th June you will find that he speaks of dealing with the persons who may be taken on board private armed ships as pirates. I will then ask to direct your attention to the Act of 1819 (3d Vol. Statutes, p. 510), where the President is authorized to employ public armed vessels to arrest offenders against that law. Therefore the capture of the prize was not only a part of the general law of nations, but it was particularly a thing which the commanders of ships of the United States were charged by the proclamation of the President, and by Act of Congress, to do.

I now approach the other question, as to where these prisoners were apprehended, or into what District they were first brought. That they were apprehended by a warrant from the United States Commissioner in New York, is not in dispute. The question, however, is, where they were first brought. If an officer having them in charge could anchor his vessel at Baltimore, and then at Philadelphia, and then bring his prisoners to New York, it would be putting the law entirely in his hands and dissipating all its force. In ordinary cases of crime the jurisdiction is local; and that for many reasons. One is, that a man is to be tried by his peers—meaning those of his own neighborhood,—and that it is easier to procure evidence at the place where the crime is committed. The law does not give to any man the power of assigning the place of trial. In the case of offences committed on the high seas, the law declares that the accused shall be tried in the District into which he is first brought.

Now, that tnese men were held by Capt. Stringham for the purpose of being tried as pirates, the evidence is clear. They were transferred from the Perry to the Minnesota, taken to the Norfolk station, and there kept in irons on board the Minnesota till they were transferred to the Harriet Lane. Could they have been detained there for trial? It might be an inconvenience if there was no Court. They might have had to be detained for a long time, or Congress might pass some law varying the jurisdiction. But as the law stood, if these men could have been landed and detained for trial, then that was the District in which they were necessarily to be tried. Can any one say that it was not as easy to have landed these men at Fortress Monroe, or at Hampton, as to transfer them to the Harriet Lane? And could they not have been detained there? You did not need a Court to detain them. They were taken by force, and might have been detained in the fortress till a trial should be had. There was no difficulty in their being landed in Virginia; and, moreover, there were in Western Virginia loyal Courts, where they could be tried.

Now, what is there that takes away the jurisdiction which belongs to that part of the country and not to this? "Why," says Captain Stringham, "I wanted to send them to New York." But had he any right to do so, when he had actually brought them to that station where his ship belonged, and where he was bound to keep her unless he returned her to the cruising ground? Remember that his ship remained there some time before the transfer was made. They were detained as prisoners there, and might as well have been detained on shore. Therefore, it seems to me, that unless the capturing officer, and not Congress, has the right to determine the place where the trial shall be had, these men were to be tried in the District of Virginia.

Now, it is no answer to this to say that, where a vessel is sailing along the shores of a District, a prisoner on board is not brought there in the proper sense of the word. The ship is not bound to stop and break up her voyage in order to have the Court designated where he is to be tried; but where the ship comes into port—where she stops at a port—I submit to your honors that this is the bringing contemplated by the statute.

I now approach, if your honors please, the merits of this case. The indictment is founded on two sections of the Crimes Act, originally two separate and very distinct statutes. It is the eighth section which makes robbery on the high seas piracy. That embraces the first five counts of the indictment, which are varied in mere circumstances. The remaining counts rest on the transcript into the legislation of this country, from the Act of 11 and 12 William III., to the effect, substantially, that if any citizen of the United States shall, under color of a commission from any foreign Prince or State, or under pretence of authority from any other person, commit acts of hostility against the United States, or the citizens thereof, that shall be piracy. In the argument which I shall address to your honors I will beg leave to characterize the first as piracy by the laws of nations, and the second as statutory piracy. But, before I discuss that subject, permit me to say that, as to eight of these prisoners, it is conceded that they do not come under that section, as the evidence for the prosecution shows that they were not citizens of the United States. So that, as to these eight, unless they are adjudged pirates under the eighth section, they must be acquitted, if they can justify themselves under the commission.

Judge Nelson: Then the other four, you say, can only be convicted under the ninth section?

Mr. Lord: Yes; that is the statutory process, if I may be permitted to give it that name.

The act is charged as an act of robbery, not as an act of treason. It is not alleged to have been done treasonably. If the prosecution wanted to give it that character, they must have alleged it to be treason. They must have alleged that this act, done on the high seas, was done treasonably, traitorously, and therefore piratically. They have alleged no such thing. I take pleasure in saying that the District Attorney, in opening this case, did it with great fairness, and disavowed any idea of introducing treason into the case. There are many reasons why, if that were pretended, this whole trial should stop. The requisites of a prosecution for treason have not been, in any degree, complied with. The charge is robbery. It may be charged as done piratically, involving animus furandi. Let us see, for an instant, what piratical is. Piracy is, by all definitions, a crime against all nations. It enters into every description of a pirate that he is hostis humani generis. That is the common-law idea of piracy. It is not a political heresy that will make piracy. It is not a political conformity that will always exempt from the charge of piracy. For instance, if the officer of a Government vessel, with the most full and complete commission, such as my friend Commodore Stringham had, should invade a ship at sea, and should, under pretence of capture, take jewels and secrete them, not bringing them in for adjudication, he would be a pirate, because, though he held a commission, he did the act animo furandi,—did it out of the jurisdiction of any particular country,—did it against the great principles of civilization and humanity.

Again, if a commissioned vessel hails a private ship, and, on the idea that she is a subject of prize, captures her, and it turns out that that capture is illegal and unwarranted, that fact does not make the act piracy. Although the act might be ever so irregular—although it might subject the officer to the severest damages for trespass—yet it is not piratical, and the officer is not to be hung at the yard-arm because he mistakes a question of law. Your honors therefore see how utterly it enters into the whole subject that the thing shall be done animo furandi, piratically, as against the general law of nations and the sense of right of the civilized world.

Well, now, we are at once struck with this consideration: Suppose the act is regarded as not piratical by millions of people having civilized institutions, having Courts of Justice, giving every opportunity for a trial of the question of forfeiture or no forfeiture—why, it shocks the moral sense to say that that is done animo furandi, that it is a theft and a robbery, and that the man who does it is an enemy to the human race. Carry the idea a little further, and you find that the commission under which a man acts in seizing a vessel with a view of bringing it in as a prize is regarded by all the great commercial nations of the world as regular, and that the act is regarded not as a piratical, but as a belligerent act. Does it not shock the very elements of justice to have it supposed that in such a case the man acting under the commission, and within its powers, is to be deemed an enemy of the whole human race, while all the human race, except the power which seeks to subject him to punishment, says the act is not piratical?

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 circumstances of rebellions in States. Now I beg leave, at the outset of the consideration of this case, to say that the question of passing title 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 trespass which are committed on the high seas by vessels of every nation. The books are full of cases of marine trespass, 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 title—of the mere transfer of title—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 title 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 circumstances 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 shipped 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 title to property or not; the fact is there, that a State—one of the original, recognized States of the Union—united itself, under an assumption 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 principal 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 constitute 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 assumes 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 assumed, and were in the exercise of, the power of issuing commissions to private armed ships 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 trespass you could have an action of trespass? 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 constitutes 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 substitutes 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 competitors 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 entitle 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 punishing, 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 pass 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 pass 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 trespass, 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 shipping 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 principal 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 assumed, and were in the exercise of, the power of issuing commissions to private armed ships, 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 entitled 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 entitled 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 title 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 ships, 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 Godsend 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 circumstances, to have ships-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 institutions 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 assuming 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 succumbed 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 associate, 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 participated, 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 Constitution 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.

"Third, That the defendants cannot be convicted of robbery, in the capture of the Joseph, unless she was taken with a piratical and felonious intent.

"Fourth, That if the defendants, at the time of her capture, were acting under the commission in evidence, and, in good faith, believed that such commission authorized her capture, they did not act with a piratical or felonious intent, and cannot be convicted under either of the first five counts in the indictment."

There are one or two authorities I did not state yesterday, which I beg now to furnish, as some additional authorities have been handed up on the other side:

The Josefa Segunda, 5 Wheaton, 357. In this case Judge Livingston says:

"Was the General Arismendi a piratical cruiser? The Court thinks not. Among the exhibits is a copy of a commission, which is all that in such a case can be expected, which appears to have been issued under the authority of the Government of Venezuela. This Republic is composed of the inhabitants of a portion of the dominions of Spain, in South America, which have been for some time, and still are, maintaining a contest for independence with the mother country. Although not acknowledged by our Government as an independent nation, it is well known that open war exists between them and His Catholic Majesty, in which the United States maintain strict neutrality. In this state of things, this Court cannot but respect the belligerent rights of both parties, and does not treat as pirates the cruisers of either so long as they act under and within the scope of their respective commissions."

In the United States vs. The Brig Malek Adhel (2 Howard's U.S. Rep. 211), as to the Act of 1819, Judge Story (page 232) says:

"Where the Act uses the word piratical, it does so in a general sense,—importing that the aggression is unauthorized by the law of nations, hostile in its character, wanton and cruel in its commission, and utterly without any sanction from any public authority or sovereign power. In short, it means that the act belongs to the class of offences which pirates are in the habit of perpetrating, whether they do it for purposes of plunder, or purposes of hatred, revenge, or wanton abuse of power. A pirate is deemed—and properly deemed—hostis humani generis. But why is he so deemed? Because he commits hostilities upon the subjects and property of any or all nations, without any regard to right or duty, or any pretence of public authority. If he willfully sinks or destroys an innocent merchant ship, without any other object than to gratify his lawless appetite for mischief, it is just as much piratical aggression, in the sense of the law of nations, and of the Act of Congress, as if he did it solely and exclusively for the sake of plunder, lucri causâ. The law looks to it as an act of hostility; and, being committed by a vessel not commissioned and engaged in lawful warfare, it treats it as the act of a pirate, and one who is emphatically hostis humani generis."

Then upon the question that this commission is only by color of authority from an unrecognized power, and that the authority to grant such a commission is disputed, I refer to the case of Davison vs. Certain Seal Skins (2 Paine's C.C.R. 332), which was a case of salvage of property after a piracy alleged to have been committed by Louis Vernet, at Port St. Louis, in the Eastern Falkland Islands, by taking them from a vessel,—he wrongfully and unlawfully claiming and pretending to be Governor of the Islands, under Buenos Ayres. The Court says:

"Robbery on the high seas is understood to be piracy by our law. The taking must be felonious. A commissioned cruiser, by exceeding his authority, is not thereby to be considered a pirate. It may be a marine trespass, but not an act of piracy, if the vessel is taken as a prize, unless taken feloniously, and with intent to commit a robbery: the quo animo may be inquired into. A pirate is one who acts solely on his own authority, without any commission or authority from a sovereign State, seizing by force and appropriating to himself, without discrimination, every vessel he meets with; and hence pirates have always been compared to robbers. The only difference between them is that the sea is the theatre of action for the one, and the land for the other."

By referring to this case, pp. 334, 335, your honors will find that Buenos Ayres had no lawful jurisdiction over the islands, and that our Executive Government had so decided; but Buenos Ayres avowed the acts of those claiming to act under her authority, and our Government discharged the prisoners who had been captured as pirates, disclaiming, under those circumstances, to hold them personally criminally responsible.

The next proposition which I state is this: "That, by the public law of the world, the law of nations, and the laws of war, the commission in evidence, supported by the proof in the case as to the color of authority under which it was issued, would afford adequate protection to the defendants against a conviction for piracy; and being an authority emanating neither from a foreign Prince nor foreign State, nor from a person merely, the offence charged in the last five counts of the indictment, is not within the purview of the 9th section of the Act of 1790, and the defendants cannot be convicted under either of those counts, if they acted in good faith under that commission."

I refer your honors to the case of the Santissima Trinidad, 7 Wheaton, 283, to the opinion of Judge Story, in which he says:

"There is another objection urged against the admission of this vessel to the privileges and immunities of a public ship, which may as well be disposed of in connection with the question already considered. It is, that Buenos Ayres has not yet been acknowledged as a sovereign independent Government, by the Executive or Legislature of the United States, and therefore is not entitled to have her ships-of-war recognized by our Courts as national ships. We have, in former cases, had occasion to express our opinion on this point. The Government of the United States has recognized the existence of a civil war between Spain and her Colonies, and has avowed a determination to remain neutral between the parties, and to allow to each the same rights of asylum, and hospitality, and intercourse. Each party is, therefore, deemed by us a belligerent nation, having, so far as concerns us, the sovereign rights of war, and entitled to be respected in the exercise of those rights. We cannot interfere to the prejudice of either belligerent, without making ourselves a party to the contest and departing from the posture of neutrality. All captures made by each must be considered as having the same validity; and all the immunities which may be claimed by public ships in our ports, under the laws of nations, must be considered as equally the right of each, and as such must be recognized by our Courts of Justice, until Congress shall prescribe a different rule. This is the doctrine heretofore asserted by this Court, and we see no reason to depart from it."

Your honors, by referring to the case of The Bello Corunnes, 6 Wheaton, 152, will see the doctrine laid down distinctly, that acts may be piratical for all civil purposes which would not authorize the conviction of the perpetrators criminally as pirates; e.g., a citizen of the United States, taking from a State at war with Spain a commission to cruise against that power, contrary to the 14th art. of the Spanish Treaty;—and the Court held, in that case, that that would involve the consequences of a piracy, for the purpose of condemnation of property; but it would not be criminal piracy, under either the law of nations or of the United States.

On the general subject of privateers I had a reference to Vattel, but I do not think it necessary to read it, because the authorities on that subject cover it so fully.

I come now, if your honors please, to what my learned friend, when he addressed the Court on the part of the Government, has been pleased to call the political part of this case; and I have distinctly stated in my propositions what I contended for on that subject. In the first place, that the Federal Executive Government, and the executive governments of the States, under the Constitution of the United States, each possess the jurisdiction to decide whether their respective acts are within or exceed the limits of their respective constitutional powers, in cases of collision between them in their administrative acts, operating upon the public domain, or upon the State, or its citizens as a body politic.

I shall, without stopping for any discussion, simply state the subordinate propositions by which I think that is established, and give a reference to the authorities. I say, in the first place, as I said to the Jury, that citizens of the United States owe a divided allegiance, partly to the United States and partly to their respective States. They can commit treason against either; for the State constitutions and laws define and punish treason against the States, as the Constitution of the United States does treason against them.

The Federal and State Governments are each supreme and sovereign within the limits of their respective jurisdictions under the Federal and State Constitutions; each operates directly upon the citizen, and each also operates as a check and restriction upon the other, and upon the encroachments of the other, in seeking to extend beyond legitimate limits its jurisdiction over the citizen, or over the public domain common to both. Now, if your honors please, in regard to that, I will very briefly refer you to what I rely upon. I refer, in the first place, to sections 2 and 3, of Article 6th, of the Constitution of the United States.

"Sec. 2. This Constitution, and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the Judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.

"Sec. 3. The Senators and Representatives before mentioned, and the members of the several State Legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States."

In the amendments to the Constitution of the United States, Articles 9 and 10, we find this language:

"The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

I refer to the case of McCulloch vs. The State of Maryland, 4 Wheaton, p. 400, in which the opinion was delivered by Chief Justice Marshall. He says:

"No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass."

I cite particularly from pp. 402 and 410. On page 410 his language is as follows:

"In America, the powers of sovereignty are divided between the Government of the Union and those of the States. They are each sovereign with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other. We cannot comprehend that train of reasoning which would maintain that the extent of power granted by the people is to be ascertained, not by the nature and terms of the grant, but by its date. Some State constitutions were formed before, some since, that of the United States. We cannot believe that their relation to each other is in any degree dependent upon this circumstance. Their respective powers must, we think, be precisely the same as if they had been formed at the same time."

The next I refer to is the case of Rhode Island agst. Massachusetts, 12 Peters, 889, where Judge Baldwin says:

"Before we can proceed in this cause, we must, therefore, inquire whether we can hear and determine the matters in controversy between the parties, who are two States of this Union, sovereign within their respective boundaries, save that portion of power which they have granted to the Federal Government, and foreign to each other for all but federal purposes."

I now refer to the case of Livingston vs. Van Ingen, 9 Johnson, 574, where Chancellor Kent reasons thus:

"When the people create a single entire Government, they grant at once all the rights of sovereignty. The powers granted are indefinite and incapable of enumeration. Every thing is granted that is not expressly reserved in the constitutional charter, or necessarily retained as inherent in the people. But when a Federal Government is erected with only a portion of the sovereign power, the rule of construction is directly the reverse, and every power is reserved to the members that is not, either in express terms or by necessary implication, taken away from them and rested exclusively in the Federal Head."

"This rule has not only been acknowledged by the most intelligent friends to the Constitution, but is plainly declared by the instrument itself. This principle might be illustrated by other instances of grants of power to Congress, with a prohibition to the States from exercising the like powers; but it becomes unnecessary to enlarge upon so plain a proposition, as it is removed beyond all doubt by the 10th article of the amendments to the Constitution. That article declares that 'the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.' The ratification of the Constitution by the Convention of this State was made with the explanation and understanding that 'every power, jurisdiction and right which was not clearly delegated to the General Government remained to the people of the several States, or to their respective State governments.' There was a similar provision in the articles of Confederation, and the principle results from the very nature of the Federal Government, which consists only of a defined portion of the undefined mass of sovereignty vested in the several members of the Union. There may be inconveniences, but generally there will be no serious difficulty, and there cannot well be any interruption of the public peace in the concurrent exercise of those powers. The powers of the two Governments are each supreme within their respective constitutional spheres. They may each operate with full effect upon different subjects, or they may, as in the case of taxation, operate upon different parts of the same subject."

I now refer to the Massachusetts Bill of Rights of 1780, art. 4. It reads:

"The people of this Commonwealth have the sole and exclusive right of governing themselves as a free, sovereign and independent State; and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction and right, which is not, or may not hereafter be, by them expressly delegated to the United States of America, in Congress assembled."

I also refer to the New Hampshire Bill of Rights, of September, 1792:

"Art. 7. The people of this State have the sole and exclusive right of governing themselves as a free, sovereign and independent State; and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction and right pertaining thereto, which is not, or may not hereafter be by them expressly delegated to the United States of America, in Congress assembled."

I next beg leave to refer your honors to No. 32 of the Federalist, by Hamilton, who says:

"An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts, and whatever power might remain in them would be altogether dependent on the general will. But as the plan of the Convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not by that act exclusively delegated to the United States."

Also, to the Federalist, No. 39, by Madison, in which he says:

"The difference between a Federal and National Government, as it relates to the operation of the Government, is, by the adversaries of the plan of the Convention, supposed to consist in this, that in the former the powers operate upon the political bodies composing the Confederacy in their political capacities; in the latter, on the individual citizens composing the nation in their individual capacities. On trying the Constitution by this criterion, it falls under the national and not the federal character, though perhaps not so completely as has been understood. In several cases, and particularly in the trial of controversies to which States may be parties, they must be viewed and proceeded against in their collective and political capacities only. But the operation of the Government on the people in their individual capacities, in its ordinary and most essential proceedings, will, on the whole, in the sense of its opponents, designate it, in this relation, a National Government.

"But if the Government be national with regard to the operation of its powers, it changes its aspect again when we contemplate it with regard to the extent of its powers. The idea of a National Government involves in it not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the National Legislature. Among communities united for political purposes, it is vested partly in the general and partly in the municipal Legislatures. In the former case all local authorities are subordinate to the supreme, and may be controlled, directed or abolished by it at pleasure. In the latter the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them within its own sphere. In this relation, then, the proposed Government cannot be deemed a national one, since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that, in controversies relating to the boundary line between the two jurisdictions, the tribunal which is ultimately to decide is to be established under the General Government. But this does not change the principle of the case. The decision is to be impartially made according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than the local Governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated."

I will refer, also, to the letter of Gov. Seward, written to Gov. Gilmore, of Virginia, October 24th, 1839, taken from the Assembly Journal, 63d Sess., 1840, p. 55. That distinguished public man says:

"You very justly observe, 'that neither the Government nor the citizens of any other country can rightfully interfere with the municipal regulations of any country in any way;' and in support of this position you introduce the following extract from Vattel's Law of Nations, 'that all have a right to be governed as they think proper, and that no State has the smallest right to interfere in the government of another. Of all the rights that belong to a nation, sovereignty is doubtless the most precious, and that which other nations ought the most scrupulously to respect if they would not do her an injury.'

"It might, perhaps, be inferred, from the earnestness with which these principles are pressed in your communication, that they have been controverted on my part. Permit me, therefore, to bring again before you the following distinct admissions: 'I do not question the constitutional right of a State to make such a penal code as it shall deem necessary or expedient; nor do I claim that citizens of other States shall be exempted from arrest, trial and punishment in the State adopting such code, however different its enactments may be from those existing in their own State.' Thus you will perceive that I have admitted the sovereignty of the several States upon which you so strenuously insist. To prevent, however, all possible misconstruction upon this subject, I beg leave to add that no person can maintain more firmly than I do the principle that the States are sovereign and independent in regard to all matters except those in relation to which sovereignty is expressly, or by necessary implication, transferred to the Federal Government by the Constitution of the United States. I have at least believed that my non-compliance with the requisition made upon me in the present case would be regarded as maintaining the equal sovereignty and independence of this State, and by necessary consequence, those of all the other States."

I contend, then, that the people of the several States, in forming the State governments, have surrendered to the latter supreme and sovereign jurisdiction over all questions affecting the State, or its citizens as a body politic, not included in the grant of power to the General Government by the Federal Constitution. This surrender necessarily includes the power and jurisdiction to determine, co-ordinately with the Federal Government, whether the Federal Executive Government is acting within or transgressing the limits of its legitimate authority in any case affecting the State as such, or its citizens as a body politic, when the question is not one of the validity or constitutionality of a law of the United States, operating directly upon individual citizens, and conformity to which is to be enforced or resisted by suit or defence in the Federal or State Courts, with the right of ultimate appeal, in either case, to the Supreme Court of the United States; but, on the contrary, brings into collision the Federal and State Executive Departments of the Government, in the exercise of powers which, from their very nature and the mode in which they are exerted, never can be presented for the determination of a Court.

And with regard to that proposition I would cite Vattel, Book I., chap. 1, sec. 2, upon the proposition that jurisdiction to determine such a mixed question of law and fact has been ceded equally to the State as to the Federal Government. Vattel says:

"It is evident that, by the very act of the civil or political association, each citizen subjects himself to the authority of the entire body in everything that relates to the common welfare. The authority of all over each member therefore essentially belongs to the body politic or State; but the exercise of that authority may be placed in different hands, according as the society may have ordained."

I refer, also, to the Federalist, No. 40, by Madison. He uses this language:

"Will it be said that the fundamental principles of the Confederation were not within the purview of the Convention, and ought not to have been varied? I ask, what are those principles? Do they require that, in the establishment of the Constitution, the States should be regarded as distinct and independent sovereigns? They are so regarded by the Constitution proposed.* * * Do they require that the powers of the Government should act on the States, and not immediately on individuals? In some instances, as has been shown, the powers of the new Government will act on the States in their collective character. In some instances, also, those of the existing Government act immediately on individuals. In cases of capture, of piracy, of the post-office, of coins, weights and measures; of trade with the Indians; of claims under grants of land by different States; and, above all, in the cases of trial by Courts Martial, in the Army and Navy, by which death may be inflicted without the intervention of a Jury, or even of a Civil Magistrate,—in all these cases the powers of the Confederation operate immediately on the persons and interests of individual citizens."

I would also refer your honors to the Report of the Committee of the General Assembly of Connecticut, on a call for the militia, by the General Government, in 1812. The Report reads:

"The people of this State were among the first to adopt that Constitution; they have been among the most prompt to satisfy all its lawful demands, and to give facility to its fair operations; they have enjoyed the benefits resulting from the Union of the States; they have loved, and still love and cherish that Union, and will deeply regret if any events shall occur to alienate their affection from it. They have a deep interest in its preservation, and are still disposed to yield a willing and prompt obedience to all the legitimate requirements of the Constitution of the United States.

"But it must not be forgotten that the State of Connecticut is a free, sovereign and independent State,—that the United States are a Confederacy of States,—that we are a confederated and not a consolidated Republic. The Governor of this State is under a high and solemn obligation 'to maintain the lawful rights and privileges thereof as a sovereign, free and independent State,' as he is 'to support the Constitution of the United States,' and the obligation to support the latter imposes an additional obligation to support the former. The building cannot stand if the pillars upon which it rests are impaired or destroyed. The same Constitution which delegates powers to the General Government, forbids the exercise of powers not delegated, and reserves those powers to the States respectively."

And that was "approved by both Houses," and the following resolution passed:

"Resolved, That the conduct of His Excellency, the Governor, in refusing to order the militia of this State into the service of the United States, on the requisition of the Secretary of War and Major-General Dearborn, meets with the entire approbation of this Assembly."

I would also refer to the second speech of Mr. Webster on Mr. Foot's resolution, in reply to Mr. Hayne, in the Senate of the United States, where he thus expresses himself:

"The States are unquestionably sovereign, so far as their sovereignty is not affected by this supreme law (the Constitution). * * * The General Government and the State governments derive their authority from the same source. Neither can, in relation to the other, be called primary; though one is definite and restricted, and the other general and residuary."

Also, to the case of Luther vs. Borden, 7 Howard, 1—one of the Dorr rebellion cases. The Supreme Court of the United States there decided that the government of a State, by its Legislature, has the power to protect itself from destruction by armed rebellion by declaring martial law, and that the Legislature is the judge of the necessary exigency.

At this point the Court intimated that they would adjourn to the following day.

The District Attorney, Mr. E. Delafield Smith, stated that the case of the United States vs. William Smith, one of the ship's company of the privateer Jefferson Davis, the trial of which had been proceeding in Philadelphia, had terminated in a verdict. That case involved the main questions, and also the question of jurisdiction involved here. Mr. Smith further stated that he had sent for a copy of the charge of Mr. Justice Grier in that case, and expected to receive it by telegraph, and he desired to reserve the right to refer to that charge as one of his authorities in this case.

The Court assented.

Adjourned to Saturday, October 26th, at 11 A.M.

FOURTH DAY.

Saturday, Oct. 26, 1861.

The Court met at 11 o'clock, when—

Mr. Larocque resumed:

I will proceed very briefly, if your honors please, to close what I was submitting to the Court upon the propositions which, as I maintain, tend to show a colorable authority in the State government, in possible cases that might arise, to authorize the issuing of letters of marque. I will state them in their connection, in order that your honors may see what they are. The first is the one I considered yesterday, viz., that the Federal Executive Government and the executive governments of the States, under the Constitution of the United States, each possess the jurisdiction to decide whether their respective acts are within or exceed the limits of their respective constitutional powers in cases of collision between them in their administrative acts operating upon the public domain, or upon the State, or its citizens as a body politic.

I had concluded what I intended to submit upon that, and proceed to the others, which are—

2. That in such cases, the Constitution having erected no common arbiter between them, the right of forcible resistance to the exercise of unlawful power, which, by the law of nature, resides in the people, has been delegated by them, by the Federal and State Constitutions respectively, to the Federal and State Governments respectively, and each having the jurisdiction to judge whether its acts are within the constitutional limit of its own powers, has also necessarily the right to employ force in their assertion or defence, if needed.

3. That in such cases the citizen of a State which, in its political capacity, has come into forcible collision with the Federal Government, owing allegiance to both within the limits of their respective constitutional powers, and each possessing the jurisdiction to determine for him the compound question of law and fact, whether the constitutional limit of those powers has been exceeded by itself or the other in the particular case, is protected from all criminal liability for any act done by him, in good faith, in adhering to and under the authority of either Government.

I wish very briefly to refer your honors to a few authorities, which, I hold, sustain these propositions. I say, in the first place, that this right bears no analogy whatever to the right, once claimed and most successfully refuted, of the inhabitants of a State, in Convention, to decide by ordinance upon the unconstitutionally of a law of the Union, and to prevent by force its operation within the limits of the State, in a case legitimately falling within the cognizance of the Courts. The claim to collect duties under an Act of Congress alleged to be unconstitutional was strictly an instance of this latter class. The citizen from whom the duties were claimed could simply refuse to pay, and thereby refer the question of constitutionality of the law to the judicial tribunals to which it properly belonged, and which must necessarily pass upon the question before the duties could be collected. On the other hand, the claim to hold or retake forts or other public places within the limits of a State, as property of the United States, is one against which, if unauthorized, the State could not by possibility defend itself through the agency of the Courts.

Now, if your honors please, I have stated most distinctly, and admitted most fully, that, in whatever cases the judicial power of the United States extends to, it is supreme. That is to say, if a collision takes place in a suit in a State Court between the Federal and State laws, and the decision of the State Court is against the right, privilege, or exemption, as it is called in the judiciary Act, claimed under the authority of the Union, the Supreme Court of the United States can redress the error. But I am now speaking of that class of cases where the judiciary have nothing whatever to do, and in which, I contend, the Federal and State authorities are each supreme and sovereign, within the limits of their respective power, and neither has any right or authority beyond the lines which bound their respective jurisdiction. And, if your honors please, I refer to the Inaugural Address of Mr. Lincoln, not only for the proposition that the judicial authority has nothing to do whatever in a case such as that I am now supposing, but that, even in cases where the judiciary is competent to act, its decisions do not form precedents, do not form rules for the government of the co-ordinate departments of the Union, in future cases of State policy, and that the executive and the legislative departments are still left at liberty to act as if no decision had been made. I do not mean to be understood as acquiescing in that claim; I consider it as a doctrine infinitely more dangerous and destructive than the doctrine of constitutional secession; but it comes to us as the claim set up on the part of the President; and if that is at all correct, there is an end of all pretence that the judiciary is competent to afford any relief or protection in the other class of cases referred to.

He says:

"I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decision must be binding in any case upon the parties to a suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government; and while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it being limited to that particular case, with the chances that it may be overruled, and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time the candid citizen must confess that, if the policy of the Government upon the vital questions affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court, the instant they are made in ordinary litigations between parties in personal actions, the people will have ceased to be their own masters, having to that extent practically resigned the Government into the hands of that eminent tribunal. Nor is there, in this view, any assault upon the Court or the Judges. It is a duty from which they may not shrink, to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes."

I have not the document at this moment; but your honors will probably bear in mind that the Executive also lately consulted the law-officer of the Government upon the question of suspending the privilege of habeas corpus, and I well remember the clause in the opinion which was delivered by that eminent legal gentleman and high officer of the Government on that occasion, and which was afterwards communicated by the President to Congress as the basis of his action. In that opinion the present learned Attorney-General used this language: "To say that the departments of our Government are co-ordinate, is to say that the judgment of one of them is not binding upon the other two, as to the arguments and principles involved in the judgment. It binds only the parties to the case decided." And your honors will recollect that, acting upon that enunciation of the law of the land and of the construction of the Constitution, although he admitted that the Supreme Court of the United States had decided that the privilege of habeas corpus could not be suspended by the Executive, without the interposition of Congress, the legal adviser of the Government held, at the same time, that that decision of the Supreme Court was not binding upon the Executive.

Now, for the purpose of showing what I mean by the right of resistance reserved to the people by the law of nature, which, as I say, is delegated by them to these two sovereigns, for the purpose that each may maintain its own authority and prevent encroachment by the other, I beg to refer your honors to Rutherforth's Institutes of Natural Law, vol. 1, page 391, commencing with section 10. And as a proof than I broach no novel or revolutionary doctrine, your honors will bear in mind that these Institutes of Natural Law were a course of lectures delivered in one of the great seminaries of learning of England, and their doctrines thought fit and proper to be instilled into the minds of the youth of that Kingdom, the loyalty of whose people to their Government has become proverbial among all the nations of the world.

The author says:

"It is a question of some importance, and has been thought a question not easily to be determined, whether the members of a civil society have, upon any event, or in any circumstances whatsoever, a right to resist their governors, or rather the persons who are invested with the civil power of that society."

Then he states several cases in which the civil governors, as he calls them, lose their power over their subjects, and continues:

"Fourthly, Though the governors of a society should be invested by the constitution with all civil power in the highest degree and to the greatest extent that the nature of a civil power will admit of, yet this does not imply that the people are in a state of perfect subjection. Civil power is, in its own nature, a limited power; as it arose at first from social union, so it is limited by the ends and purposes of such union, whether it is exercised, as it is in democracies, by the body of the people, or, as it is in monarchies, by one single person. But if the power of a Monarch, when he is considered as a civil governor, is thus limited by the ends of social union, whatever obedience and submission the people may owe him whilst he keeps within these limits, he has no power at all, and consequently the people owe him no subjection, when he goes beyond them.

"Having thus taken a short view of the several ways in which the authority of the governors of a society fails, and the subjection of the people ceases, we may now return to the question which was before us.

"If you ask whether the members of a civil society have a right to resist the civil governors of it by force? your question is too general to admit of a determinate answer.

"As far as the just authority of the civil governors and the subjection of the people extend, resistance by force is rebellion.

"Subjection consists in an obligation to obey; as far, therefore, as the people are in subjection, they can have no right to resist; because an obligation to obey, and a right to resist, are inconsistent with one another.

"But the power of civil governors is neither necessarily connected with their persons, nor infinite whilst it is in their possession.

"It ceases by abdication; it is overruled by the laws of nature and of God; and it does not extend beyond the limits which either the civil constitution or the ends of social union have set to it.

"Where their power thus fails in right, and they have no just authority, the subjection of the people ceases; that is, as far as of right they have no power, or no just authority, the people are not obliged to obey them; so that any force which they make use of, either to compel obedience or to punish disobedience, is unjust force; the people may perhaps be at liberty to submit to it, if they please; but, because it is unjust force, the law of nature does not oblige them to submit to it.

"But this law, if it does not oblige the people to submit to such force, allows them to have recourse to the necessary means of relieving themselves from it, and of securing themselves against it, to the means of resistance by opposing force to force, if they cannot be relieved from it and secured against it by any other means."

I continue my citation at—

"Sec. XV. In the general questions concerning the right of resistance, it is usually objected that there is no common judge who is vested with authority to determine, between the supreme governors and the people, where the right of resistance begins; and the want of such a judge is supposed to leave the people room to abuse this right; they may possibly pretend that they are unjustly oppressed, and, upon this pretence, may causelessly and rebelliously take up arms against their governors, although they are laid under no other restraints, and no other compulsion is made use of, but what the general nature of civil society or the particular circumstances of their own society require.

"But, be this as it may, the possibility that the right may be abused, does not prove that no such right subsists.

"If we would conclude, on the one hand, that the people have no right of resistance, because this right is capable of being abused, we might, for the same reason, conclude, on the other hand, that supreme governors have no authority.

"Whatever authority these governors have in any civil society, it was given them for the common benefit of the society; and it is possible that, under the color of this authority, they may oppress the people in order to promote their own separate benefit.

"Sec. XVI. It is a groundless suggestion, that a right of resistance in the people will occasion treason and rebellion, and that it will weaken the authority of civil government, and will render the office of those who are invested with it precarious and unsafe, even though they administer it with the utmost prudence and with all due regard to the common benefit.

"The right of resistance will indeed render the general notion of rebellion less extensive in its application to particular facts.

"All use of force against such persons as are invested with supreme power, would come under the notion of rebellion, if the people have no right of this sort; whereas, if they have such a right, the use of force to repel tyranical and unsocial oppression, when it cannot be removed by any other means, must have some other name given to it. So that, however true it may be that, in consequence of this right of resistance, supreme government will be liable, of right, to some external checks, arising out of the law of nature, to which they would otherwise not be liable, yet it cannot properly be said to expose them to rebellion."

I beg, in the next place, to read to your honors, from the opinion of Mr. Justice Johnson, a short paragraph. It is to be found in 1st Wheaton, 363, in the case of Martin vs. Hunter's Lessee. I believe a paragraph from that has been already read, on the other side, and I wish to give you, in connection with it, what he says, speaking of the power of the judiciary, and the consequences that would result in any case to which that power did not reach. He says:

"On the other hand, so firmly am I persuaded that the American people no longer can enjoy the blessings of a free Government, whenever the State sovereignties shall be prostrated at the feet of the General Government, nor the proud consciousness of equality and security, any longer than the independence of judicial power shall be maintained consecrated and intangible, that I could borrow the language of a celebrated orator, and exclaim, 'I rejoice that Virginia has resisted.'"

I also wish to read a sentence from the case of Moore vs. The State of Illinois, in 14 Howard, p. 20—the opinion by Mr. Justice Grier. He says:

"Every citizen of the United States is also a citizen of a State or Territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either."

And Mr. Justice McLean, in speaking of the same subject, in the same case, at page 22, says:

"It is true the criminal laws of the Federal and State Governments emanated from different sovereignties; but they operate on the same people, and should have the same end in view. In this respect the Federal Government, though sovereign within the limitation of its powers, may, in some sense, be considered as the agent of the States, to provide for the general welfare by punishing offences under its own laws within its jurisdiction."

I wish also to refer to the case of the United States vs. Booth, in 21 Howard—the opinion of Chief Justice Taney—in connection with the question of what the result is where the judiciary has not power to act. He says:

"The importance which the framers of the Constitution attached to such a tribunal, for the purpose of preserving internal tranquillity, is strikingly manifested by the clause which gives this Court jurisdiction over the sovereign States which compose this Union, when a controversy arises between them. Instead of reserving the right to seek redress for injustice from another State by their sovereign powers, they have bound themselves to submit to the decision of this Court, and to abide by its judgment. And it is not out of place to say, here, that experience has demonstrated that this power was not unwisely surrendered by the States; for, in the time that has already elapsed since this Government came into existence, several irritating and angry controversies have taken place between adjoining States, in relation to their respective boundaries, and which have sometimes threatened to end in force and violence, but for the power vested in this Court to hear them and decide between them.

"The same purposes are clearly indicated by the different language employed when conferring supremacy upon the laws of the United States and jurisdiction upon its Courts. In the first case, it provides that 'this Constitution, and the laws of the United States, which shall be made in pursuance thereof, shall be the supreme law of the land, and obligatory upon the Judges in every State.' The words in italics show the precision and foresight which marks every clause in the instrument. The sovereignty to be created was to be limited in its powers of legislation; and, if it passed a law not authorized by its enumerated powers, it was not to be regarded as the supreme law of the land, nor were the State Judges bound to carry it into execution."

And further on, speaking of the claimed right of the State of Wisconsin to discharge a prisoner convicted in the United States Court upon a criminal conviction, and to refuse afterwards to obey a writ of error issued out of the Supreme Court of the United States to review that judgment, he uses language of this kind:

"This right to inquire by process of habeas corpus, and the duty of the officer to make a return, grows necessarily out of the complex character of our Government, and the existence of two distinct and separate sovereignties within the same territorial space, each of them restricted in its powers, and each, within its sphere of action prescribed by the Constitution of the United States, independent of the other."

Now, if your honors please, upon that question still further—that where there is no possibility of the power of the judiciary being exercised, there being, as the learned Chief Justice expresses it in his own language, "two distinct and separate sovereignties within the same territorial space" exercising jurisdiction, the right of forcible resistance exists in the State governments. I beg to refer to the Federalist, No. 28, by Alexander Hamilton, p. 126. He says:

"It may safely be received as an axiom in our political system, that the State governments will in all possible contingencies afford complete security against invasions of the public liberty by the federal authority. Projects of usurpation cannot be masked under pretences so likely to escape the penetration of select bodies of men as of the people at large. The Legislatures will have better means of information; they can discover the danger at a distance, and, possessing all the organs of civil power and the confidence of the people, they can at once adopt a regular plan of opposition; they can combine all the resources of the community. They can readily communicate with each other in the different States, and unite their common forces for the protection of their common liberty."

I refer also to the Federalist, No. 46, by James Madison, where he uses this language:

"Were it admitted, however, that the Federal Government may feel an equal disposition with the State governments to extend its power beyond the due limits, the latter would still have the advantage in the means of defeating such encroachments. If the act of a particular State, though unfriendly to the National Government, be generally popular in that State, and should not too grossly violate the oaths of the State officers, it is executed immediately, and of course by means on the spot, and depending on the State alone. * * * On the other hand, should an unwarrantable measure of the Federal Government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are at hand. * * *

"But ambitious encroachments of the Federal Government on the authority of the State governments would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause; a correspondence would be opened; plans of resistance would be concerted; one spirit would animate and conduct the whole. The same combination, in short, would result from an apprehension of the federal as was produced by the dread of a foreign yoke; and, unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other. But what degree of madness would ever drive the Federal Government to such an extremity?* * * But what would be the contest in the case we are supposing? Who would be the parties? A few Representatives of the people would be opposed to the people themselves; or, rather, one set of Representatives would be contending against thirteen sets of Representatives, with the whole body of their common constituents on the side of the latter. The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the Federal Government may previously accumulate a military force for the projects of ambition.* * * Extravagant as the supposition is, let it, however, be made. Let a regular army, fully equal to the resources of the country, be formed, and let it be entirely at the devotion of the Federal Government; still it would not be going too far to say that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed 1/100th of the whole number of souls, or 1/25th part of the number able to bear arms. This proportion would not yield to the United States an army of more than 25 or 30,000 men. To these would be opposed a militia amounting to near 500,000 citizens, with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence."

I shall not spend the time of your honors by reading the Virginia and Kentucky resolutions—the one the production of James Madison, and the other of Thomas Jefferson—with which you are so familiar. They fully bear out the doctrine for which I contend, and much more than I contend for. I wish, however, to read, from the American State Papers, vol. 21, p. 6, a series of resolutions adopted by the Legislature of Pennsylvania, on the 3d April, 1809. They are as follows:

"Resolved, by the Senate and House of Representatives of the Commonwealth of Pennsylvania:

"That, as a member of the Federal Union, the Legislature of Pennsylvania acknowledges the supremacy, and will cheerfully submit to the authority, of the General Government, as far as that authority is delegated by the Constitution of the United States. But while they yield to this authority, when exerted within constitutional limits, they trust they will not be considered as acting hostile to the General Government when, as the guardians of the State rights, they cannot permit an infringement of those rights by an unconstitutional exercise of power in the United States Courts.

"Resolved, That in a Government like that of the United States, where there are powers granted to the General Government and rights reserved to the States, it is impossible, from the imperfection of language, so to define the limits of each that difficulties should not sometimes arise from a collision of powers; and it is to be lamented that no provision is made in the Constitution for determining disputes between the General and State Governments by an impartial tribunal, when such cases occur.

"Resolved, That, from the construction which the United States Courts give to their powers, the harmony of the States, if they resist the encroachments on their rights, will frequently be interrupted; and if, to prevent this evil, they should on all occasions yield to stretches of power, the reserved rights of the States will depend on the arbitrary powers of the Courts.

"Resolved, That should the independence of the States, as secured by the Constitution, be destroyed, the liberties of the people in so extensive a country cannot long survive. To suffer the United States Courts to decide on State rights, will, from a bias in favor of power, necessarily destroy the federal part of our Government; and, whenever the Government of the United States becomes consolidated we may learn from the history of nations what will be the event."

To prevent the balance between the General and State Governments from being destroyed, and the harmony of the States from being interrupted—

"Resolved, That our Senators in Congress be instructed, and our Representatives be requested, to use their influence to procure amendment to the Constitution of the United States, that an impartial tribunal may be established to determine disputes between the General and State Governments; and that they be further instructed to use their endeavors that, in the meantime, such engagements may be made between the Governments of the Union and of the State as will put an end to existing difficulties."

Those resolutions were transmitted to Congress by President Madison. They were never acted upon.

My next reference is to the Remonstrance of the State of Massachusetts against the War of 1812, adopted June 18th, 1813—from the American State Papers, vol. 21, page 210:

"The Legislature of Massachusetts, deeply impressed with the sufferings of their constituents, and excited by the apprehension of still greater evils in prospect, feel impelled by a solemn sense of duty to lay before the National Government their views of the public interests, and to express, with the plainness of freemen, the sentiments of the people of this ancient and extensive Commonwealth.

"Although the precise limits of the powers reserved to the several State sovereignties have not been defined by the Constitution, yet we fully concur in the correctness of the opinions advanced by our venerable Chief Magistrate, that our Constitution secures to us the freedom of speech, and that, at this momentous period, it is our right and duty to inquire into the grounds and origin of the present war, to reflect upon the state of public affairs, and to express our sentiments concerning them with decency and frankness, and to endeavor, so far as our limited influence extends, to promote, by temperate and constitutional means, an honorable reconciliation.* * * The States, as well as the individuals composing them, are parties to the National Compact; and it is their peculiar duty, especially in times of peril, to watch over the rights and guard the privileges solemnly guaranteed by that instrument."

There were also a set of resolutions, which I will not take time to read, passed by the Legislature of New Jersey, November 27th, 1827, which will be found in the American State Papers, vol. 21, page 797. They were based upon the then prevalent opinion that the Constitution had not conferred upon the Supreme Court of the United States the power to decide disputed questions of boundary, or similar questions, between States of the Union, and proposed an amendment to remedy that difficulty, expressly recognizing that the right to resort to force in such cases necessarily resulted from the omission. The decision of the Supreme Court, in the case of Rhode Island vs. Massachusetts, that it possessed that jurisdiction, conjured that danger. The greater one, however, of there being no tribunal to administer justice between the federal and State sovereignties, remains.

I will also refer to one other resolution, passed by the Legislature of the State of New York, on the 29th January, 1833, upon the Nullification Ordinances, as they were called:

"Resolved, That we regard the right of a single State to make void within its limits the laws of the United States, as set forth in the Ordinance of South Carolina, as wholly unauthorized by the Constitution of the United States, and, in its tendency, subversive to the Union and the Government thereof."

I do not know that any sane man will now dispute that truth; but this follows. The present Secretary of State of the United States, at that time a member of the Senate of this State, then moved:

"That this Legislature do adhere, in their construction of the Constitution, to the principle that the reserved rights of the States, not conceded to the General Government, ought to be maintained and defended."

This latter resolution was indefinitely postponed.

I will not now stop to read what was said by President Buchanan, in his Message to Congress, on December 4th, 1860, as to the consequences of a refusal by the States to repeal the obnoxious laws which had been enacted. You will recollect that he said that, if that was not done, the injured States would be justified, standing on the basis of the Constitution, in revolutionary resistance to the Government of the Union. I do not need to claim that, for I have nothing to do, on this trial, with the justice of these mighty questions, debated between the General Government and the governments and people of these States. The question of their justice or injustice does not arise upon this trial. I was simply making these citations to show that, by the ablest writers cotemporaneous with the Constitution, and who performed the work of framing it—by the proceedings of legislative bodies and the decisions of the Supreme Court—the principle has been recognized that, in all cases in which jurisdiction has not been given to the judiciary over questions between the General Government and the State, they are equal, co-ordinate, each possessed of the right to decide for itself as to the excess by the other, if it is claimed that there is an excess of constitutional power, and to assert its own right or repel the encroachments of the other by force.

I say, in further confirmation of this, that the offence of treason against the United States, under the 3d section of the 3d article of the Constitution of the United States, must be a levying of war against them all. The words, "United States," in that section, mean the States, and not merely the Government of the Union. This is evident from the fact that the section, as originally reported (being sec. 2 of art. 7), read: "Treason against the United States shall consist only in levying war against the United States, or any of them; and in adhering to the enemies of the United States, or any of them," &c. (Journal of the Convention, page 221). It was amended so as to read collectively only, and not disjunctively. When, however, the act done is not under authority of a State, I concede that levying war against the General Government is levying war against all the States.

And, in this connection, I wish to refer to the proceedings, which I have hastily adverted to in opening to the Jury, upon the adoption of the section of the Constitution relating to treason. I refer to the Madison Papers, vol. 3, page 1370:

"Art. 7, sec. 2, concerning treason, was then taken up.

"Mr. Gouverneur Morris was for giving to the Union an exclusive right to declare what should be treason. In case of a contest between the United States and a particular State, the people of the latter must, under the disjunctive terms of the clause, be traitors to one or other authority.

"Dr. Johnson contended that treason could not be both against the United States and individual States, being an offence against the sovereignty, which can be but one in the same community.

"Mr. Madison remarked that as the definition here was of treason against the United States, it would seem that the individual States would be left in possession of a concurrent power, so far as to define and punish treason particularly against themselves, which might involve double punishment."

The words, "or any of them," were here stricken out by a vote.

"Mr. Madison: This has not removed the difficulty. The same act might be treason against the United States, as here defined, and against a particular State, according to its laws.

"Dr. Johnson was still of opinion there could be no treason against a particular State. It could not, even at present, as the Confederation now stands—the sovereignty being in the Union; much less can it be under the proposed system.

"Colonel Mason: The United States will have a qualified sovereignty only. The individual States will retain a part of the sovereignty. An act may be treason against a particular State, which is not so against the United States. He cited the rebellion of Bacon, in Virginia, as an illustration of the doctrine.

"Mr. King: No line can be drawn between levying war and adhering to the enemy, against the United States, and against an individual State. Treason against the latter must be so against the former.

"Mr. Sherman: Resistance against the laws of the United States, as distinguished from resistance against the laws of a particular State, forms the line."

Mr. Ellsworth, afterwards Chief Justice of the Supreme Court of the United States, closed the debate in these memorable words:

"The United States are sovereign on one side of the line dividing the jurisdictions; the States, on the other. Each ought to have power to defend their respective sovereignties."

Now, if your honors please, it will probably be attempted to be answered to the argument, that by section 10 of article 1 of the Constitution of the Union, the States are forbidden to enter into any treaty, alliance, or confederation, or to grant letters of marque and reprisal; or, without the consent of Congress, to enter into any agreement or compact with another State; or to engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. This does not conflict with, but, on the contrary, confirms, the views I have presented, for the following reasons:

The prohibition against entering into any treaty, alliance, or confederation, and against granting letters of marque and reprisal, has clearly no reference whatever to the relations which the States of the Union sustain to each other. It refers solely to their relations towards foreign powers.

I beg to cite, upon that subject, from Grotius, Lib. 1, chap. 4, sec. 13. He says:

"In the sixth place, when a King has only a part of the sovereignty, the rest being reserved to the people, or to a Senate, if he encroaches upon the jurisdiction which does not belong to him he may lawfully be opposed by force, since in that regard he is not at all sovereign. This is the case, in my opinion, even when in the distribution of the sovereign power the power of making war is assigned to the King. For the grant of such a power must in that case be understood only in its relation to wars with foreign powers, those who possess a part of the sovereignty necessarily having at the same time the right of defending it; and when a necessity arises of having recourse to forcible resistance against the King, he may, by right of war, lose even the part of the sovereignty which incontestibly belonged to him."

I say, then, in the next place, that if any of the States, having come into collision with any of their sister States, or with the General Government, and being threatened with invasion or overthrow in the contest, resort to letters of marque as a means of weakening their adversary, and thereby preventing or retarding the threatened invasion, their right to do so is not at all affected or impaired by that provision of the Federal Constitution. The right of resistance includes it as well as every other means of rendering resistance effectual.

So also with regard to the prohibition against entering into any treaty, alliance, or confederation, which is coupled with the prohibition against granting letters of marque in the first paragraph of the tenth section. That that prohibition is restricted to compacts or agreements with foreign powers, is manifest from the whole structure of the section.

The second paragraph of the section provides that no State shall, without the consent of Congress, enter into any agreement or compact with another State. It follows that, conceding the invalidity of the State acts of separation from the Union, which the whole of the preceding argument admits, the Confederation of the States claiming to have separated is not valid against the authority of the Union; but the individual States, in ratifying the Constitution of the so-called Confederate States, have done more than to make an agreement or compact with each other. Each one of them, separately, has conferred upon the same agent the authority to issue the commission in question, as its act.

Moreover, this second paragraph of the tenth section strongly confirms the doctrine of the right of forcible resistance of the States in the Union. It permits a State, without the consent of Congress, to engage in war when actually invaded, or in such imminent danger as will not admit of delay. This, it will be remembered, is in the paragraph of the section imposing restrictions upon the States, and clearly justifies forcible resistance, rising even to the dignity of war, by one State, to aggressive invasion, from another or others, when the danger is so imminent that it will not admit of delay.

The same paragraph also permits individual States to keep troops and ships of war, in time of war. The word "troops" here is evidently used in the sense of regular troops, forming an army, in contradistinction to the ordinary State militia.

To apply, then, these principles to the facts of this case: The President of the United States had, by proclamation, on the 15th April last, called for military contingents from the various States of the Union, to put down resistance to the exercise of federal authority in the State of South Carolina and other Southern States.

Those States had, by their Legislatures and Conventions of their people, decided that a proper case for resistance to the federal authority claimed to be exercised within their borders had arisen, and had authorized and commanded such resistance.

The 5th section of the Act of July 13th, 1861, and the President's Proclamation of August 16th, under that Act, concede that the resistance was claimed to be under authority of the State governments; that that claim was not disavowed by the State governments; and Congress thereupon legislated, and the President exercised the authority vested in him by the Act, on the assumption that such was the fact,—prohibiting commercial intercourse with those States, authorizing captures and confiscations of the property of their citizens without regard to their political affinities, and placing them, as we contend, in all respects, upon the footing of public enemies.

They were, moreover, threatened with immediate invasion. The Proclamation of the President assigned, as their first probable duty, to the military contingents called for from other States, to repossess the Federal Government of property which it could not repossess without an actual invasion of the discontented States.

The Congress of the Union was not then in session. It had adjourned, after having omitted to confer upon the Federal Executive the power to resort to measures of coercion, which had been under discussion during its sitting.

The commission in question was issued as one of the measures of forcible resistance to this exercise of federal power, claimed—whether rightfully or wrongfully, is not the question here—to be unlawful by the governments of all the States against which it was directed, and to which those governments enjoined forcible resistance upon, and authorized it by, their citizens.

I contend, therefore, that whether the action of the Federal Government or of the State government was justifiable or unjustifiable, no citizen of any of the States which authorized and enjoined such resistance is criminally responsible, whether he espoused one side or the other in the unhappy controversy, either to the General Government or to the government of the State of which he is a citizen, so long as he acted in good faith, and in the honest belief that the government to which he adhered was acting within the legitimate scope of its constitutional powers. We contend that every sovereign has necessarily power to defend its sovereignty, and to decide the mixed question of law and fact as to whether it has been infringed; that there can be no sovereign, or defence of sovereignty, without subjects to whom the sovereign's mandate and authority are a protection; and that as one sovereign cannot lawfully punish another, who is his equal, by personal pains and penalties, for resistance, after he is subdued, so neither can punish the subject of both who, in good faith and under honest convictions of duty, adhered to either in the struggle.

Now, if your honors please, I pass to the next proposition, which is:

That the defendants, who are citizens of the States calling themselves Confederate States, cannot be convicted under this indictment, if they in good faith believed, at the time of the capture of the Joseph, that the political status of those States, as members of the Federal Union, had been legally terminated, and that they had thereby ceased to be citizens of the United States, and made the capture in good faith, under the commission in evidence, as a belligerent act,—such States being, as they supposed, at war with the United States.

It is not necessary for me, if your honors please, to enlarge upon that. I rely, for that proposition, on the same authorities that I have already cited to the point, that robbery or piracy cannot be committed, unless it is committed with felonious or piratical intent. But I say, with reference to the validity or invalidity of those acts of separation from the Union, that the counsel for the prisoners, whatever their private convictions may be, are not at liberty to concede their invalidity, so long as that concession may affect the lives of their clients. Their validity has been maintained by some of the ablest lawyers of the country, and in the Senate of the United States itself, and by all the authorities, legislative, executive and judicial, of the States which have adopted them. If, as they undoubtedly did, the prisoners bona fide believed in their validity, the argument in favor of the protection afforded by the commission, or, by what comes to the same thing, the absence of criminal intent, becomes so much the more irresistible. And even though wholly invalid, such illegal action could not deprive the citizen of the State of the shield and protection afforded him by the action of the State government authorizing resistance, and regarded as still continuing a member of the federal Union.

The next proposition is:

That under the state of facts existing in South Carolina, as established by the public documents and other evidence in the cause, those administering the Government of the so-called Confederate States constituted the de facto Government which replaced the Government of the United States in those States before and at the time of the commission of the acts charged in the indictment; and the defendants who are citizens of those States were justified by overpowering necessity in submitting to that Government, in yielding their allegiance to it, and thenceforth in actively aiding and supporting it; and that the capture of the Joseph, having been a belligerent act in a war between such de facto Government, and the people of the States which had submitted to its authority on the one side, and the United States on the other, such defendants cannot be convicted under this indictment.

Now, with reference to that, allow me to call your honors' attention to but a single authority, in addition to those which I cited in my opening remarks to the Jury. It is the case of The United States vs. The General Parkhill, decided by Judge Cadwalader, in the United States District Court, in Philadelphia, in July, 1861. He says:

"The foregoing remarks do not suffice to define the legal character of the contest in question. It is a civil war, as distinguished from such unorganized intestine war as occurs in the case of a mere insurrectionary rebellion.

"Civil war may occur where a nation without an established Government is divided into opposing hostile factions, each contending for the acquisition of an exclusive administration of her Government. If a simple case of this kind should occur at this day, the Governments of the nations not parties to the contest might regard it as peculiarly one of civil war. As between the contending factions themselves, however, neither could easily regard their hostile opponents in the contest otherwise than as mere insurgents engaged in unorganized rebellion. Thus, in the language of Sir M. Hale, every success of either party would subject all hostile opponents of the conqueror to the penalties of treason. A desire to prevent the frequency of such a result was the origin of the rule of law, that allegiance is due to any peaceably established Government, though it may have originated in usurpation. The statute of 11 H. 7, c. 1 (A.D. 1494), excusing an English subject who has yielded obedience, or who has even rendered military service to a Ruler who was King in fact, though not in law, was declaratory of a previous principle of judicial decision."

After referring to Bracton, Coke, Hawkins, and Foster, the learned Judge proceeds:

"It has already been stated that a King in whose name justice was administered in the Courts of law was usually regarded as in actual possession of the Government.

"Civil war of another kind occurs where an organized hostile faction is contending against an established Government, whose laws are still administered in all parts of its territory except places in the actual military or naval occupation of insurgents or their adherents.

"In such a case the question has been, whether a place in the actual military occupation of the revolutionary faction, or of its adherents, may, under the law of war, be treated by that Government as if the contest was a foreign war and the place occupied by public enemies. In the case of a maritime blockade of such a place, the affirmative of this question was decided in England, in the year 1836. It had previously been so decided by the Supreme Tribunal of Marine, at Lisbon (3 Scott, 201; 2 Bingh., N.C., 781)."

Judge Cadwalader then refers to Grotius (Proleg., sec. 23), citing with approval the statement by Demosthenes of the rule of public law in the case of the invasion by Deiopeithes, the Athenian commander in the Chersonese, of the dominions of Philip of Macedon, who had sent a military force to the relief of Cardia, when sought to be reduced to submission by Deiopeithes—that wherever judicial remedies are not enforceable by a Government against its opponents, the proper mode of restoring its authority is war,—and continues:

"This doctrine is of obvious applicability to civil war of a third kind, which occurs where the exercise of an established Government's jurisdiction has been revolutionarily suspended in one or more territorial Districts, whose willing or unwilling submission to the revolutionary rule prevents the execution of the suspended Government's laws in them, except at points occupied by its military or naval forces. The present contest exemplifies a civil war of this kind. It was also, with specific differences, exemplified in the respective contests which resulted in the independence of the United Netherlands and of the United States."

He then proceeds:

"Within the limits of two of the States in which so-called ordinances of secession have been proclaimed the execution of the laws of the United States has not been wholly suppressed. They are enforceable in the Western Judicial District of Virginia, and perhaps in the adjacent Eastern Division of Tennessee. In the other nine States which profess to have seceded, including South Carolina, those laws are not enforceable anywhere.

"The Constitution of the United States prohibits the enactment by Congress of a bill of attainder, and secures, in all criminal prosecutions, to the accused, the right to a speedy public trial, by Jury of the State and District wherein the crime shall have been committed, which District must have been previously ascertained by law. Therefore if a treasonable or other breach of allegiance is committed within the limits of one of these nine States, it is not at present punishable in any Court of the United States. This was practically shown in a recent case (Greiner's case, Legal Intelligencer, May 10, 1861). War is consequently the only means of self-redress to which the United States can, in such a case, resort, for the restoration of the constitutional authority of their Government.

"The rule of the common law is, that when the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the Courts of justice cannot be kept open, civil war exists, and hostilities may be prosecuted on the same footing as if those opposing the Government were foreign enemies invading the land. The converse is also regularly true, that when the Courts of a Government are open, it is ordinarily a time of peace. But though the Courts be open, if they are so obstructed and overawed that the laws cannot be peaceably enforced, there might perhaps be cases in which this converse application of the rule would not be admitted. (1 Knapp, 346, 360, 361; 1 Hale, P.C. 347; Co. Litt. 249 b.)"

Now, if your honors please, the last proposition with which I am compelled to trouble you is:

That the Acts of Congress and the Proclamations of the President since the outbreak of the present struggle evidence the existence of a state of war between the Federal Government and the States calling themselves the Confederate States from a time anterior to the performance of the acts charged in the indictment, in which all the citizens of those States are involved and treated as public enemies of the Federal Government, whether they had any agency in initiating the conflict or not; and that the natural law of self-preservation, under these circumstances, justified the defendants, who are citizens of those States, in the commission of the acts charged in the indictment, as a means of weakening the power of destruction possessed by the Federal Government.

Now the counsel on the other side, from the intimation which he gave when he addressed the Court, intended to treat that subject of a de facto Government, or whatever it was, on the footing of men under duress, not in danger of their lives, joining with rebels and aiding them in a treasonable enterprise. Your honors will perceive that was not the footing on which we put it at all. It was the footing on which it stood at one time, when rebellion first broke out, when forts were seized—acts which it is no part of the duty of counsel on this trial to justify or say anything about, because there is no act connected with that part of the struggle which is in evidence on this trial. But on that I wish to refer to what Judge Cadwalader said in another case—that of Greiner—which undoubtedly the learned counsel for the Government had in his mind when he drew that distinction. Shortly before the late so-called secession of Georgia, a volunteer military company, of which Greiner was a member, by order of the Governor, took possession of a fort within her limits, over which jurisdiction had been ceded by her to the United States, and garrisoned it until her ordinance of secession was promulgated, when, without having encountered any hostile resistance, they left it in the possession of her Government. A member of this company, Charles A. Greiner, who had participated in the capture and detention of the fort, afterwards visited Pennsylvania, at a period of threatened if not actual hostilities between the Confederate States and the United States. He was arrested in Philadelphia, under a charge of treason. Your honors will very readily perceive what a difference there was between that case and this. Judge Cadwalader applies the rule in reference to that; and, speaking of this doctrine of allegiance due to a Government in fact, he says:

"This doctrine is applicable wherever and so long as the duty of allegiance to an existing Government remains unimpaired. When this fort was captured, the accused, in the language of the Supreme Court, owed allegiance to two Sovereigns, the United States and the State of Georgia (see 14 How. 20). The duty of allegiance to the United States was co-extensive with the constitutional jurisdiction of their Government, and was, to this extent, independent of, and paramount to, any duty of allegiance to the State (6 Wheaton, 381, and 21 Howard, 517). His duty of allegiance to the United States continued to be thus paramount so long at least as their Government was able to maintain its peace through its own Courts of Justice in Georgia, and thus extend there to the citizen that protection which affords him security in his allegiance, and is the foundation of his duty of allegiance. Though the subsequent occurrences which have closed these Courts in Georgia may have rendered the continuance of such protection within her limits impossible at this time, we know that a different state of things existed at the time of the hostile occupation of the fort. The revolutionary secession of the State, though threatened, had not then been consummated. This party's duty of allegiance to the United States, therefore, could not then be affected by any conflicting enforced allegiance of the State. He could not then, as a citizen of Georgia, pretend to be an enemy of the United States, in any sense of the word 'enemy' which distinguishes its legal meaning from that of traitor. Future cases may perhaps require the definition of more precise distinctions and possible differences under this head. The present case is, in my opinion, one of no difficulty, so far as the question of probable cause for the prosecution is concerned."

Having decided that, in the present state of things, he could not commit the prisoner for trial, to be conveyed to Georgia, because there were no Courts of the United States there, and because it would be a violation of the Constitution of the United States—that he could not have a speedy trial—he decided that, under a subsequent act of Congress, he had a right to require the prisoner to find sureties to be of good behavior towards the United States.

I have thus ended what I had to say upon this subject, with but one single exception.

A great deal will be said, undoubtedly, on the part of the prosecution, here, with reference to this being a revolutionary overthrow of the Government of the United States in the States which have taken these steps. I have only to ask, in reference to that—conceding it, for the sake of argument, in its fullest extent—what was the adoption of the Constitution of the United States but a revolutionary overthrow of the previously existing Confederation? It was done by nine States, without the consent of four, whose consent was necessary, and the Government of the United States went into operation; and it was a long time before at least two of them came in under the new Government.

Mr. Evarts: Will my learned friend allow me to ask him, in that part of his argument which proceeds upon the right of a State, yet being a State, to justify the acts of its citizens, to explain the proposition that a State can oppose the United States, within and under the Constitution, in regard to any law of the United States about which this essential right of judgment, whether the aggression of the United States has carried it beyond the powers of the Constitution, or not, is claimed to exist?

Mr. Larocque: I thought I had been very explicit on that. I said, in the first place, that I had nothing to do with the question of right or wrong. I said this: That a collision had occurred between the government of the State and the Federal Government; that each being sovereign, within the limitation of its powers, had a right to judge for itself whether the occasion for such a collision had occurred, or not; that these prisoners, citizens of the States which had decided that such a case had occurred, as subjects owing allegiance to two equal and co-ordinate sovereigns, which had come into hostile collision with each other, must exercise, upon their consciences, their election to which Sovereign they would adhere; and that, whatever may be the unfortunate consequences, they are not responsible before the tribunal of the other sovereignty because they adhered to one of them; that they would be no more responsible before the criminal tribunals of South Carolina if, in this contest, they had adhered to the General Government and borne arms against their native State, than they are responsible in the tribunals of the Federal Government because, exercising their own consciences, they had adhered to the State and not to the Federal Government. I say it is like the case of a child whose parents disagree, and who is obliged to adhere either to his father or his mother; and that he violates no law of God or of man in adhering to either.

Mr. Smith: If the Court please, I rise for a purpose different from the remark that I wish to make in reply to the last illustration of my learned friend. I might say that the instance of a child is one very parallel to that we might have given—that the father is the superior authority, where there is a difference between two parents.

I rise, however, to present to the Court, as one of the authorities, or rather a citation which will receive its respectful consideration, the Charge of Mr. Justice Grier, in the case tried in Philadelphia; and also the opinion of Judge Cadwalader, in the same case.

Mr. Brady: Who reported this?

Mr. Smith: I received it, by telegraph, from the District Attorney of Philadelphia; and it is also printed in a newspaper published last evening in Philadelphia. I have compared them, and the two accounts perfectly agree. I do not cite them as authority, but as entitled to the respectful consideration of the Court.

Mr. Brady: As, now-a-days, what the newspapers publish one day they generally contradict the next, I think any report should be taken with some grains of allowance, at least. I suppose I would recognize the style of Judge Grier.

Mr. Blatchford: I think you will, on examining it. It is evidently printed from the manuscript.

Mr. Smith read the charge of Judge Grier in the case of the privateers tried in Philadelphia.

Mr. Brady: Tell me what question of fact was there left to the Jury?

Mr. Smith: I refer you to Judge Cadwalader's opinion, which is much longer.

Mr. Brady: I do not see that there was anything left for the Jury. Judge Grier decided that case,—which undoubtedly he could do, for he is a very able man.

Mr. Sullivan put in evidence the log-book of the Savannah.

ARGUMENT OF MR. MAYER, OF COUNSEL FOR THE DEFENCE.

Mr. Mayer said:—May it please your honors,—A foreign-born citizen now rises, on behalf of eight of the defendants, who, as it has been conceded by the prosecution, are subjects of foreign States. It might appear almost superfluous, after the full and eloquent argument of our venerable brother—I was almost tempted to say father (Mr. Lord)—for one of the junior counsel for the defence to say anything. Still, I thought it incumbent on me to anticipate a construction or interpretation which the prosecution may attempt to make, by offering, myself, a proposition. But before reading it, I will, as briefly as my proposition is brief, state my comment thereon.

Let us, in the first place, look at the aspect of the relations in which these foreigners stood at the time of their committing this alleged offence. They are all sea-faring men. Their various crafts had been locked up in the port of Charleston by the blockade there. Business, as we have heard here in evidence, was prostrated. Nothing was left for them but to enlist in the army of the Confederacy, or to become privateers. It is certainly a pity that they did not choose the first alternative; for, even if they had been caught with arms in their hands, their fate would now be far better than it is. They would not now be in jeopardy of their lives, threatened with the pains and penalties of a law that is not applicable to them. But being, as I said before, inured to the life of seafarers, they chose to become privateers.

We must, however, in judging of their act, place ourselves in their position. They were foreigners. As foreigners, they brought to this country views and notions as regards their act which are widely different from those sought to be enforced here. They knew the practice and theories of Europe in regard to their act. What are those views and theories? I can state them in a very few words, and am sorry that the authorities to which I shall refer are in a language which may not be familiar to your honors. I will, however, state their effect. It is this: Whenever a rebellion in any country has assumed such extensive magnitude as no longer to be a simple insurrection, which may be put down by police measures or regulations, but has come to such a degree that mighty armies are opposed to each other, although the revolted portion may not have been acknowledged by any nation, yet belligerent rights must be granted to it. This is the notion, or theory, which has entered into the mind of every European, to whatever State or nation he may belong. I may be permitted to quote a few historical facts to show why this is so. When the Netherland Colonies revolted against Spain the privateers of the Prince of Orange, even before he was elected Admiral General by those Colonies, were by most nations recognized. They were only not recognized by some of those nations against which they committed depredations; and it is a historical fact that a great many of those privateers commissioned by the Prince of Orange became pirates.

Another case is furnished by our own Revolution. It is known to all Europeans that, although in the beginning of the American Revolution England did not recognize the belligerent rights of America, yet, after some time, she did recognize those rights, even by a Parliamentary Act. I refer to 16 George the Third, ch. 5. The same was the case in the French Revolution; and there I may refer to a very curious fact. England recognized the privateers of the revolutionary Government of France, so far as those privateers went against other nations; but when they cruised against her own commerce she did not recognize them. She remonstrated with Denmark because Denmark had recognized them, and Denmark simply pointed to her (England's) own course.

All these facts are very well known to every European, and it is with a knowledge of these facts that every European looks upon a revolution. To express it in a very short sentence, it is the theory of "Let us have fair play."

If your honors please, I may say that this notion of belligerent rights in revolution has entered into the flesh and blood of every European to such an extent, that the only nation which does not allow, in revolution, that fair play, is despised and hated, except by these United States. I mean Russia. Russia is now very friendly towards this Union; not, however, I may be permitted to state—reversing an oft-quoted passage of Shakspeare—not because she loves Rome more, but that she loves Cæsar less. It is not out of love for this country, but because the diplomatists of Russia—the farthest-seeing diplomatists of Europe—hope that England and France will interfere in the contest between these States, and that she may get an opportunity to return the compliment to these two powers which she received from them at Sebastopol. With a knowledge of these facts, and with these European theories, these foreigners, now indicted under the Act of 1790, entered into this privateering business.

They saw, as I said before, Charleston blockaded. To them a blockade is an act of belligerent rights. They saw a constitutional government adopted in the Confederate States. They never dreamed that, if they wished to embark in this privateering business, they should be treated as pirates. They knew well, as every European knows who has any knowledge of international law, that there are two kinds of piracy—piracy by international law, and piracy under municipal law—municipal piracy, or, as Mr. Lord called it yesterday, statutory piracy.

And now I refer, as to the right of one nation making anything piracy that is not piracy by the law of nations, to Wheaton, volume 6, page 85; 1st Phillimore, 381; and to 1st Kent, 195. I will not take up the time of your honors in reading all these passages, but I hold here the last work on international law. It is, however, written in the German language. It is of unbounded authority on the Continent, and has been translated into French and Greek. It is very frequently referred to by all those authors whom I have just quoted. It states this theory in two lines, which I will read to your honors in a translation:

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Читать бесплатно онлайн книгу Trial of the Officers and Crew of the Privateer Savannah, on the Charge of Piracy, in the United States Circuit Court for the Southern District of New York
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