We contend, therefore, that the ninth section of the Act of 1790, as construed by our opponents, would be unconstitutional; that it only applies, if valid, to acts done under authority of a foreign power or person; that if Jefferson Davis was, or represented, such foreign power, then the defendants were subjects of that power, not citizens of the United States, and not within the Act; if he were not or did not represent a foreign power, the Act does not apply to the case; and so, in every view of the subject, there is no right to convict any of these men under this Act.
I will now cite some authorities on the question of variance made by my friend, Mr. Lord, in describing this commission as a pretence of authority from one Jefferson Davis. Certainly, in law, that commission is the act and authority of the Confederate States. There can be no dispute about that.
I refer my learned opponents to Wharton's Criminal Treatise, at pps. 78, 91, 93, 94 and 96, for these two propositions: In the first place, that, where a new offence is created by statute, the utmost particularity is required, when drawing the indictment, to set forth all the statutory elements of the offence; and, in the second place, what is thus averred must be proved strictly as laid. Well, it may seem to you, gentlemen, rather a technical and immaterial question, whether this was set out as a pretence of authority from one Jefferson Davis, or from the Confederate States,—and it is. But, nevertheless, it is a legal technicality; and these prisoners, if it be well founded, have a right to the benefit of it. It is very little that I have to read from this book, for the propositions are pointedly stated:
Page 91. "It is a general rule that, in regard to offences created by statutes, it is necessary that the defendant be brought within all the material words of the statute; and nothing can be taken by intendment."
Page 93. "Defects in the description of a statutory offence will not be aided by a verdict, nor will the conclusion contra formam statutis cure it."
Page 94. "An indictment under the Stat. 5th Elizabeth, which makes it high treason to clip round or file any of the coin of the realm for wicked lucre or gain sake,—it was necessary to charge the offence as being committed for wicked lucre or gain sake, otherwise the indictment was bad. In another case, an indictment on that part of the black act which made it felony willfully or maliciously to shoot at a person in a dwelling-house was held to be bad, because it charged the offence to have been done 'unlawfully and maliciously,' without the word 'willfully.'"
That is technical enough, I admit, but it emanates from high authority.
[Mr. Brady read other passages from Wharton, and said]:
And, now, what relates more particularly to the matter in hand, is the case of The United States vs. Hardiman, 13 Peters, 176. In that case the defendant was indicted for receiving a fifty-dollar treasury note, knowing it to have been stolen out of the mail of the United States. The indictment was under the 45th section of the Post-Office Law. The thing stolen was described as a fifty-dollar treasury note, bearing interest at one per cent.; and it turned out to be a treasury note which, although of fifty-dollars' denomination, bore interest at the rate of one mill per cent.; and the Court held the variance to be fatal. Now, we claim that to describe the commission as emanating from one Jefferson Davis, when in fact it emanated from the Confederate States, is such a variance as is here referred to; and, on that ground, the indictment is not sustained.
The argument is made here, that, no matter what publicists may say,—no matter what Courts of other countries may declare as international law, about the organization of government or the creation of powers de jure or de facto,—this Court has nothing to do with the debate; that your honors have simply to inquire whether Mr. Lincoln, the President, has said, or whether Congress has said, a certain thing, and the matter proceeds no further; that the citizen is not entitled to have a trial, in a Court of Justice, on the question whether, being in a state of revolt, a civil war does in fact exist; and that the right of trial by Jury does not, as to such a question, exist at all.