Vattel, who ranks among the first of authors, and whose work on the law of nations is recognized by every enlightened jurist throughout the civilized world, defines "war to be that state, where a nation prosecutes its rights by force." That this is a nation no one will doubt; that it is prosecuting its rights can not be denied; and no one will doubt that it is using force upon a stupendous scale—requiring four hundred millions of dollars, and 500,000 men, with the probability of additional requisitions of men and treasure for a successful termination of this fratricidal war.
It may be said that this is a civil war. Admitting it to be so, the only distinction between this and an international war is, that the former is an intestinal war between the people, where the Republic is divided into two factions, and the latter is where two nations are opposed to each other. All the rules of civilized war, therefore, should govern equally, and it is to soften and mitigate the horrors of civil war that an exchange of prisoners is recognized.
I have endeavored to show that the prisoners at the bar are not guilty of piracy, as defined by the Acts of Congress; and if they are not guilty of municipal piracy, they are certainly not guilty of piracy by the law of nations. What is a pirate? He is defined to be an enemy of the human race—a common sea rover, without any fixed place of residence, who acknowledges no sovereign, no law, and supports himself by pillage and depredation. Do the prisoners come within the meaning of this definition? Did they not encounter a British vessel upon the high seas? Could they not have captured her? But, no, gentlemen of the Jury, as soon as they ascertained that she belonged to a nation in amity with theirs, they allowed her to depart in peace. With the permission of the Court, I would beg leave to refer to an authority entitled to high respect—the works of Sir Leoline Jenkins, 4th Institutes, p. 154, where this principle is laid down: "If the subjects of different States commit robbery upon each other upon the high seas, if their respective States be in amity, it is piracy; if at enmity, it is not, for it is a general rule that enemies never can commit piracy on each other, their depredations being deemed mere acts of hostility."
The prisoners were acting in good faith, by virtue of a commission under the seal of the Confederate States. It is said, by the learned counsel for the prosecution, that the prisoners were acting under the authority of a person named Jefferson Davis. This does so appear nominally, but it is virtually and actually a commission issuing from eight millions of people, who recognize and sanction it under the hand of their President and the seal of their Government—each one being particeps criminis, and each one being amenable to the laws of the country, and liable to the penalties of treason and piracy, if evenhanded justice is to be meted out.
I have not yet been able to perceive the distinction between this offence as committed upon sea or land, except that it is attended with more danger. Why, then, have not the prisoners captured by our armies, who are now in Fortress Monroe and Fort Lafayette, been brought to the bar of justice? Because the Government has come to the conclusion that it would be unwise, impolitic, and impracticable; our tribunals would be inadequate in the administration of the laws. But justice should be equal.
One of the learned Judges who charged the Jury in the case of the privateers who were tried in Philadelphia, has undertaken to establish the doctrine that rebellion is wrong, and that it is only justifiable when it acquires the form of a successful revolution. To analyze this doctrine, it means no more nor less than this: that that which was originally wrong, success makes right. To carry out the metaphor, a certain insect in its chrysalis state is the loathsome and detestable caterpillar, but when it assumes the form and variegated hues of the butterfly, it is glorious and beautiful to behold. With equal force of reason it might be said, that if the Father of his country had been unsuccessful in consummating our independence, his name, instead of going down to posterity in glory and honor, would have descended in infamy and disgrace to all succeeding generations. Such notions are unworthy of refined and enlightened civilization.
It was intimated by the learned District Attorney, in his opening remarks, that in the event of a conviction, the President would exercise the pardoning prerogative. Gentlemen, this is a delusion. I do not mean to insinuate that the learned counsel would willfully mislead you; for I am bound to admit, in all becoming candor, that the prosecution have acted with fairness and magnanimity highly creditable, and not in any manner inconsistent with the performance of their arduous and responsible duties; but I do say that it should not have the slightest weight in your deliberations upon the important questions involved in this case. Is this a mere form—a farce? is your time, and the valuable time of the Court, to be consumed in the investigation of a long and tedious case like the present as a mere pastime? It is a reflection upon the good sense and intelligence of a Jury, for the Executive to exercise the pardoning power, except in special cases, where new evidence is discovered after conviction which may go to establish the innocence of the party so convicted.
Gentlemen of the Jury, you have a duty to perform that requires almost superhuman nerve and moral courage—requiring more prowess than to face the cannon's mouth. You have it in your power to prove to the nation, and to the whole civilized world, that in the administration of the criminal laws of the country, in a case involving the rights and interests of this Republic, before a Jury of New York citizens, that "justice can triumph over passion, and reason prevail over prejudice." If there is no other feeling which can influence your judgment, if you have no sympathy in common with these men, there is a sympathy you should have—a sympathy for those brave and valiant spirits who fought so nobly for the Union, the Constitution, and the enforcement of the laws, and who are now prisoners of war in the power of the enemy; and it would be expecting too much clemency from the hands of the enemy to suppose that they would allow the sacrifice of these men to go unavenged.
I repeat, you have a solemn duty to perform, and public opinion should not have the slightest influence upon your mind. You are to be governed by a "higher law;" a law based upon the sacred precepts of Holy Writ—its teachings emanating from God himself; and therein you are commanded to observe that golden rule, "Do unto others as you would that they should do unto you."
ARGUMENT OF JAMES T. BRADY, ESQ.