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 THE JEFF. DAVIS PIRACY CASES. 
 
 TRIAL 
 
 OF 
 
 WILLIAM SMITH 
 
 FOR 
 
 PIRACY, 
 
 AS ONE OF THK CREW OF THE CONFEDERATE PRIVATEER, 
 
 THE JEFF. DAYIS. 
 
 PHILADELPHIA: 
 KING & BAIRD, PRINTERS, No. 607 SANSOM STREET, 
 
 18 Gl. 
 
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/ 
 THE JEFF DAVIS PIRACY CASES 
 
 FULL REPORT 
 
 OF THE 
 
 ' /6-33 
 
 OP 
 
 WILLIAM SMITH, 
 
 FOR 
 
 PIRACY, 
 
 AS ONE OF THE CREW OF THE CONFEDERATE PRIVATEER, THE JEFF DAVIS. 
 
 BEFORE JUDGES GRIER AND CADWALADEE, 
 
 IN THE CIRCUIT COURT OF THE UNITED STATES, FOR THE EASTERN DISTRICT OF PENNSYLVANIA, 
 HELD AT PHILADELPHIA, IN OCTOBER, 1861. 
 
 BY D. F. MURPHY, 
 
 OF THE PHILADELPHIA BAK. 
 
 PHILADELPHIA : 
 KING & BAIRD, PRINTERS, No. GOT SANSOM STREET. 
 
 1861. 
 
E 
 
 5^b 
 
 CONTENTS- 
 
 Indictment 9 
 
 Jury 13 
 
 Opening op Mr. Ashton 13 
 
 Testimony of Benjamin Davis. 17 
 
 " " John L. Priest H 
 
 " " " " (recalled) 34 
 
 " Charles W. Page 19 
 
 (recalled) 38 
 
 " " Jacob Garrick 25 
 
 " John C. Fifield 29 
 
 " " Thomas Ackland 34 
 
 " " Thomas B. Patterson 37 
 
 Opening of Mr. O'Xeill 39 
 
 Testimony of Edward Rochford 43 
 
 " " Daniel Mullinzs 51 
 
 Argument op Mr. Earle 52 
 
 " Harrison 55 
 
 " " Wharton 71 
 
 " Kelley 83 
 
 Charge of Judge Grier 95 
 
 " " " Cadwalader 97 
 
 Verdict of the Jury...* 99 
 
 Motion and Reasons for Xew Trial 99 
 
 Trial of the Other Prisoners , 100 
 
 
 
 
"1 
 
 TRIAL 
 
 ^ ^VILLI^M SMITH, 
 
 FOB 
 
 _Jft iJze f^ucLLit f^aiut af ike flLnlted <0^tateA, fat ike 
 ^aktetn. QLLhttiat af. ^e.nnAij^LiLaizicL. 
 
 Reported, by D. F. MURPHY, of the Philadelphia Bar. 
 
 Tuesday, October 22, 1861. 
 In the Circuit Court of the TJiiited States, for the Eastern District of Pennsylvania, 
 
 Judges Grier and Cadwalader. 
 
 ^aurLSicl ^a^ tlie flbiltacL ^ta±e.s.. 
 
 J. HUBLEY ASIITON, ESQ., Assistant District Attor'y. 
 GEORGE H. EARLE. ESQ., 
 ttON. WILLIAM D. KELLEY. 
 
 JOHN' P. O'NEILL, ESQ., 
 N. HARRISON, ESQ., 
 GEORGE M. WHARTON, ESQ. 
 
 Mr. Ashton. I move your Honors for 
 the arraignment of William Smith, who is 
 charged in Bill of Indictment (Circuit 
 Court, No. 88, October Sessions,) with the 
 crime of piracy. 
 
 Judge Grier. Is William Smith pre- 
 sent? 
 
 Mr. AsHTON. Yes, sir. 
 
 Judge Grier. Very well. Let him be 
 arraigned. 
 
 The prisoner stepped forward to the Bar, 
 and the Clerk of the Court read to him the 
 Bill of Indictment, as follows : 
 
 In the District Court of the United States 
 in and for the Eastern District of Penn- 
 sylvania, in the Third Circuit. Of 
 August Sessions, in the year one thou- 
 sand eight hundred and sixty-one. 
 Eastern District of Pennsylvania, ss. 
 
 The GRAND INQUEST of the United States 
 of America inquiring within and for the 
 Eastern District of Pennsylvania, in the 
 Third Circuit, on their oaths and affirma- 
 tions respectively, do present, that William 
 Smith, late of the said district, mariner, on 
 the sixth day of July, in the year of our 
 Lord one thousand eight hundred and sixty- 
 one, upon the high seas, out of the jurisdic- 
 tion of any particular State 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 vio- 
 lently set upon, board, break and enter a 
 certain vessel, to wit, a schooner called the 
 Enchantress, 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 Inquest 
 aforesaid unknown, and did then and there, 
 in and on board of the said schooner called 
 the Enchantress, in and upon one John 
 Devereux, then and there being a mariner, 
 and then and there being one of the ship's 
 company of the said schooner called the 
 Enchantress, and then and there master 
 and commander thereof, and in and upon 
 Charles W. Page; John Devereux, Junior; 
 Joseph Taylor ; Antoine, a Portuguese ; 
 Peter, a German ; and Jacob Garrick, each 
 then and there being a mariner and one of 
 the ship's company of the said schooner 
 called the Enchantress, piratically, feloni- 
 ously and violently make an assault, and 
 them did then and there, in and on board 
 of the said schooner called the Enchan- 
 tress, upon the high seas aforesaid, out of 
 the jurisdiction of any particular State, and 
 within the jurisdiction of this Court, pirati- 
 
8 
 
 cally, feloniously and violently put in botlily 
 fear and dansrer of their lives, and the said 
 schooner called the E)icha7Ure.sfi, and the 
 tafkle. anparel and furniture thereof, of the 
 value of three thousand dollars, together with 
 seventy-tive sacks of corn, one hundred bar- 
 rels of mackerel, one hundred and seventy 
 grind stones, fifty boxes of candles, twenty- 
 three thousand feet of white pine boards, 
 two hundred covered hams, thirty tierces 
 of lard, fifty barrels of clear pork, two hun- 
 dred quarter boxes of soap, two hundred 
 and forty half boxes of candles, and one 
 package of glassware, of the value of ten 
 thousand dollars, of the goods, chattels and 
 personal property of certain persons whose 
 names are to the Inquest aforesaid unknown, 
 the said last mentioned goods, chattels and 
 merchandize being then and there, in and 
 on board of the said schooner called the 
 Enchantress, and being then and there the 
 lading thereof, and Ihe said schooner called 
 the Enchantress, and the tackle, apparel 
 and furniture thereof, and the said goods, 
 chattels and personal property in and on 
 board of said schooner called the Enchant- 
 ress, then and there upon the high seas 
 aforesaid, out of the jurisdiction of any par- 
 ticular State and within the jurisdiction of 
 this Court, being under the care and cus- 
 tody, and in the possession of the said John 
 Devereux ; Charles W. Page ; John Deve- 
 veux, Junior; Antoine, a Portuguese; 
 Peter, a German ; and Jacob Garrick ; and 
 Joseph Taylor; the said William Smith 
 from the care, custody and possession of 
 the said John Dexereux ; Charles W. 
 Page; John Devereux, Junior; Joseph 
 1'aylor ; Antoine, a Portuguese ; Peter, a 
 German ; and Jacob Garrick ; t-hen and 
 there to wit, upon the high seas aforesaid, 
 out of the jurisdiction of any particular 
 State and within the jurisdiction of this 
 Court, piratically, feloniously and by force 
 and violence, and against the will of the 
 mariners aforesaid, did steal, seize, rob, take 
 and run away with ; against the form of the 
 statute of the said United States of Ame- 
 rica in such case made and provided, and 
 against the peace and dignity of the United 
 States. 
 
 And the Inquest aforesaid inquiring as 
 aforesaid, upon their respective oaths and 
 affirmations aforesaid, do further present, 
 that the said William Smith, on the sixth 
 day of July, in the year of our Loi-d one 
 thousand eight hundred and sixty one upon 
 the high seas, out of the jurisdiction of any 
 particular State, within the admiralty and 
 maritime jurisdiction of the said United 
 States of America and within the jurisdic- 
 tion of this Court, did with force and arms, 
 piratically, feloniously and violently set 
 upon, board, break, and enter a certain 
 
 Ameiican vessel, to wit : a schooner called 
 the Enchantress, the same being then and 
 there owned in part by Benjamin Davis, 
 Junior; Richard Plummcr ; John T.Page; 
 Ezekiel Evans ; J. B. Creasy ; J. W. 
 Oeasy; and E. M. Read, then citizens of 
 the said United States of America, and did 
 then and there in and on board of the said 
 schooner called the Enchantress, in and 
 upon one John Devereux. then and there, 
 being a mariner and one of the ship's com- 
 pany of the said schooner called the En- 
 chant) ess, and master and commander 
 thereof, and in and upon divers other 
 persons whose names are to the jurors 
 aforesaid unknown, piratically, feloniously 
 and violently make an assault, and them 
 did then and there in and on board of the 
 said schooner called the Enchantress upon 
 the high seas aforesaid out of the jurisdic- 
 tion of any particular State and within the 
 jurisdiction of this Court, piratically, felo- 
 niously and violently put in bodily fear and 
 danger of their lives ; and the said schooner 
 called the Enchantress, and the tackle, 
 apparel and furniture thereof, of the 
 value of three thousand dollars, of the 
 goods, chattels and personal property of 
 Benjamin Davis. Junior: Richard Plum- 
 mer ; John T. Page ; Ezekiel Evans ; J. B. 
 Creasy; J. W. Creasy; and E. M. Read, 
 citizens of the United States of America, 
 and seventy-five sacks of corn, one hundred 
 barrels of mackerel, one hundred and 
 seventy grind stones, fifty boxes of candles, 
 twenty-three thousand feet of white pine 
 boards, two hundred covered hams, thirty 
 tierces of lard, fifty barrels of clear pork, 
 two hundred quarter boxes of soap, and 
 package of glassware, of the value of five 
 thousand dollars, of the goods, chattels and 
 personal property of William H. Greeley, 
 the said last mentioned goods, chattels and 
 merchandize being then and there on board 
 of the said schooner called the Enchant- 
 ress and being then and there the lading 
 thereof, and the said schooner called tho 
 Enchantress and the tackle, apparel, and 
 furniture thereof, and the lading of the said 
 schooner then and there upon the high seas 
 aforesaid, out of the jurisdiction of any par- 
 ticular State, and within the jurisdiction of 
 this Court, being under the care and cus- 
 tody, and in possession of the said John 
 Devereux and the said divers other per- 
 sons, mariners as aforesaid whose names 
 are to the Inquest aforesaid unknown, the 
 said William Smith from the care, custody, 
 and possession of the said John Devereux 
 and the said divers other persons mariners 
 as aforesaid whose names are to the In- 
 quest aforesaid unknown, then and there, 
 upon the high seas aforesaid, out of the 
 jurisdiction of any particular State, and 
 
9 
 
 within the jurisdiction of this Court, pirati- 
 cally, feloniously and by force and violence 
 and against the will of the said John Deve- 
 reux. and the said divers other persons, 
 mariners as aforesaid whose names are 1o 
 the Inquest aforesaid unknown, did steal, 
 seize, rob, take, and run aw;iy with, against 
 the form of the statute of the said United 
 iStates of America, in such case made and 
 jirovided, and against the peace and dignity 
 of the United States. 
 
 And the Inquest aforesaid inquiring 
 aforesaid upon their respective oaths and 
 affirmations aforesoid. do further present, 
 that the said William Smilh, on the sixth 
 day of July, in the year of our Lord one 
 thousand eifiht hundred and sixty-oue. on 
 the high seas, out of the jurisdiction of any 
 particular State, within the admiralty and 
 maritime jurisdiction of the said United 
 States of America, and within the juris- 
 diction of this Court, did with force and 
 arms, piratically, feloniously, and violently 
 set upon, board, break, and enter a certain 
 schooner called the Endianfre.ssAh.e same 
 being then and there owned l)y certain per- 
 sons, citi7,eus of the United States of 
 America, to wit: Benjamin Davis, Junior, 
 Richard Plnmmer, John T. Page, Ezekiel 
 Kvans. J. B. Creasy, J. W. Creasy, and E. 
 M. Read, and did then and there, in and 
 upon certain divers persons whose names 
 are to the Inquest aforesaid unknown, the 
 said last mentioned persons, each being 
 then and there a mariner and of the ship's 
 company of the said schooner called the 
 Enchai'tress. piratically, feloniously, and 
 violently made an assault, and them did 
 then and there in and on board of the said 
 schooner called \h<i Enchantress, upon the 
 high seas aforesaid, without the jurisdiction 
 of any particular State, and within the 
 jurisdiction of this Court, piratically, 
 feloniously and violently put in Ijodily fear 
 and danger of their lives, and the said 
 schooner called the Enc'iantress, and the 
 tackle, apparel, and furniture thereof, of the 
 value of three thousand dollars, of the 
 goods, chattels, and personal property of 
 the said Benjamin Davis, Junior, Rich.ird 
 Plummer, John T. Page, Ezekiel Evans, 
 J. B. Creasy, J. W. Creasy, and E. M. 
 Read, and one hundred barrels of mackerel, 
 one hundred and seventy grind stones, and 
 twenty-three thousand feet of white pine 
 boards, of the value of five thousand dollars, 
 of the goods, chattels, and personal pro- 
 perty of William II. Greeley, from the 
 said divers persons, mariners as aforesaid, 
 whose names are to the Inquest aforesaid 
 unknown, in their presence and against 
 their will, then and there upon the high seas 
 aforesaid, out of the jurisdiction of any 
 particular State, and within the jurisdiction 
 
 1 of this Court, piratically, feloniously, and 
 violently take, seize, rob, steal, 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 
 
 1 peace and dignity of the said United 
 
 1 States. 
 
 And the Inquest aforesaid, inquiring as 
 aforesaid, upon their respective oaths and 
 affirmations aforesaid, do further present, 
 
 j that the said William Smith, on the sixth 
 day of July, in the year of our Lord one 
 thousaml eight hundred and sixty-one, 
 upon the high seas, out of the jurisdiction 
 of any particular State, within the admiralty 
 and maritime jurisdiction of the said United 
 States of America and within the juris- 
 
 I diction of this Court, did, with force and 
 arms, piratically, feloniously and violently 
 set upon, board, break, and enter a certain 
 vessel, to wit : a schooner called the En- 
 chantress, and in and upon one John 
 Devereux, then and there being in and on 
 board of the said schooner called the 
 Enchantress, and being a mariner and 
 master and commander of the said schooner 
 called the Encliavtress, and the said John 
 Devereux, then and there being a citizen 
 of the said United States of America, did 
 then and there piratically, feloniously, and 
 violently make an assault, and him the said 
 John Devereux did then and there upon 
 the hijih seas aforesaid and out of the juris- 
 diction of any particular State, and within 
 the jurisdiction of this Court, piratically, 
 feloniously, and violently put in great 
 bodily fear and danger of his life, and the 
 said schooner called the Enchantress, and 
 the tackle, apparel, and furniture thereof, 
 of the value of three thousand dollars, and 
 seventy-five sacks of corn, one hundred 
 barrels of mackerel, one hundred and 
 seventy grind stones, fifty boxes of candies, 
 twenty-three thousand feet of white pine 
 boards, two hundred covered hams, thirty 
 tierce of lard, fifty barrels of clear pork, 
 two hundred quarter boxes of soap, two 
 hundred and forty half boxes of candles. 
 and one package of glass ware, of the value 
 of ten thousand dollars, the same being 
 then and there of the lading of the said 
 schooner called the Enchantress, of the 
 goods, chattels, and personal property of 
 the said John Devereux, in his presence 
 and against his will did piratically, 
 feloniously, and violently take, seize, rob, 
 steal, and carry away ; against the form of 
 the statute of the United States of America 
 in such case made and provided, and 
 against the peace and dignity of the said 
 United States. 
 
 And the Inquest aforesaid, inquiring as 
 aforesaid, upon their oaths and affirmations 
 aforesaid, do further present, that the said 
 
 2 
 
10 
 
 William Smith, on the sixth day of July, 
 ill the year of our Lord one thousand eight 
 hundred and sixty-one, upon the high seas, 
 out of the jurisdiction of any particular 
 State, within the admiralty and maritime 
 jurisdiction of the United States of 
 America, and within the jurisdiction of 
 this Court, in and upon one John Devereux, 
 then and there being a citizen of the said 
 United States, and he, the said John 
 Devereux, then and there being in and on 
 board of a certain vessel of the United 
 States of America, to wit, a schooner 
 called the Enchantress, and the said 
 schooner being then and there on the high 
 seas aforesaid, did piratically, feloniously, 
 and violently make an assault, and him, 
 the said John Devereux did then and there 
 upon the high seas aforesaid, out of the 
 jurisdiction of any particular State, pirati- 
 cally, feloniously, and violently put in 
 bodily fear and danger of his life, and the 
 said schooner called the Enchantress, and 
 the tackle, apparel, and furniture thereof, 
 of the value of three thousand dollars, and 
 seventy-five sacks of corn, one hundred 
 barrels of mackerel, one hundred and 
 seventy grind stones, fifty boxes of candles, 
 twenty-three thousand feet of white pine 
 boards, two hundred covered hams, thirty 
 tierces of lard, fifty barrels of clear pork, 
 two hundred quarter boxes of soap, two 
 hundred and forty half boxes of candles, 
 and one package of glass ware, of the value 
 often thousand dollars, of the goods, chat- 
 tels and personal property of the said John 
 Devereux, from the said John Devereux, 
 and in his presence and against his will 
 then and there, on the high seas aforesaid, 
 and out of the jurisdiction of any particular 
 State, and within the jurisdiction of this 
 Court, did piraticallj', feloniously, and 
 violently seize, rob. steal, take, and carry 
 away ; against the form of the statute of the 
 said United States in such case made and 
 provided, and against the peace and dignity 
 of the United States. 
 
 And the Inquest aforesaid, inquiring as 
 aforesaid, upon their respective oaths and 
 affirmations aforesaid, do further present, 
 that the said William Smith, on the sixth 
 day of July, 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 jurisdic- 
 tion of this Court, did, with force and arms, 
 piratically, feloniously, and violently set 
 upon, board, break, and enter a certain ves- 
 sel, being a schooner called the Enchan- 
 tress, then being a vessel belonging to cer- 
 tain persons to the said Inquest unknown, 
 and then and there piratically, feloniously, 
 
 and violently did assault certain mariners, 
 whose names to the said Inquest are also 
 yet unknown, in the same vessel and in the 
 peace of the said United States then and 
 there being; and then and there, upon the 
 high seas aforesaid, out of the jurisdiction 
 of any particular State, and within the 
 jurisdiction of this Court, piratically, felo- 
 niously, and violently the said mariners in 
 and on board of said schooner called the 
 Eii'hanfress, then and there being, did put 
 in bodily fear and danger of their lives ; and 
 the said schooner called the Enchantress 
 and the apparel, tackle, and furniture of the 
 same, of the value of three thousand dollars, 
 together with seventy-five sacks of corn, 
 one hundred barrels of mackerel, and fifty 
 boxes of candles, of the value of five thous- 
 and dollars then being in and on board the 
 same vessel, and then and there of the lad- 
 ing thereof, of the goods, chattels, and per- 
 sonal property of certain persons to this 
 Inquest unknown, and then and there upon 
 the high seas aforesaid, out of the jurisdic- 
 tion of any particular State, and within the 
 jurisdiction of this Court, being under the 
 care and custody and in the possession of 
 the mariners aforesaid, he, the said Wil- 
 liam Smith, from the care, custody, and 
 possession of the mariners aforesaid, then 
 and there, to wit, upon the high seas afore 
 said, out of the jurisdiction of any particu- 
 lar State, and within the jurisdiction, of this 
 Court, piratically, feloniously, and by force 
 and violence, and against the will of the 
 mariners aforesaid, did steal, seize, rob, 
 take and run away with ; against the form 
 of the statute of the said United States of 
 America in such case made and provided, 
 and against the peace and dignity of the 
 United States. 
 
 And the Inquest aforesaid, inquiring as 
 aforesaid, upon their respective oaths and 
 affirmations aforesaid, do further present, 
 that the Kastern District of Pennsylvania, 
 in the Third Circuit, is the District and 
 Circuit into which the said William Smith 
 was first brought, and in which he was first 
 apprehended for the said offences. 
 
 GEO. A. COFFEY, 
 
 Attorney for the U. S. for the Eastern District of Pcnna. 
 
 [The indictment was regularly certified 
 from the District to the Circuit Court.] 
 
 At the conclusion of the reading of each 
 count of the indictment, the prisoner 
 pleaded " Nut Guilty." 
 
 The Ci.ERK. — William Smith, how will 
 you be tried ? 
 
 The Prisoner. — By God and the coun- 
 try. 
 
 The Clehk. — God send you a good de- 
 liverance. 
 
11 
 
 The jurors' names were then drawn from 
 the box, and finally a jury was obtained 
 composed as follows : 
 
 1. Horatio Jones, gentleman, of Reading, Berks Co. 
 
 2. Lkwis B- Fhete, gentleman, Hatbcrough, Montgomery 
 
 Co. 
 
 3. William KiNSEY, gentleman, Bristol, Bucks Co. 
 
 4. Alfred J. White, clerk, Philadelphia. 
 
 5. JdiiN Franklin, machinist, Philadelphia. 
 
 6. John R. Paul, yarnisher, Philadelphia. 
 
 7. .John P. AfiLLEK. gentleman, Reading, Berks Co. 
 
 8. John Logan, lime dealer, Philadelphia. 
 
 9. Josei-h Stoney, gentleman, Conshohocken, Montgom- 
 
 ery Co. 
 
 10. Jonathan Chapman, engineer, Philadelphia. 
 
 11. Samiel S. Tomkins, trunk maker. Philadelphia. 
 
 12. Simon Mudge, collector, Philadelphia. 
 
 The jurors having all been sworn or af- 
 firmed, well and truly to try the case, and 
 a true deliverance to make according to the 
 evidence, 
 
 Mr. AsHTON, opened the case for the 
 United States. He said: 
 
 May it please your Honors, Gentlemen of 
 the Jury: — The gravity of this occasion, the 
 the magnitude and interest of the case I am 
 about to present for your consideration, im- 
 press me with a deep sense of the responsi- 
 bility which, ill the absence of the learned 
 Attorney for the United States, has devolved 
 upon me. 
 
 1 had wished, gentlemen, tliat other lips 
 than mine would have spoken the opening 
 words of the important trials to which you 
 have been summoned. I had hoped, may it 
 please your Honors, that the United States 
 might have been represented here to-day by 
 liiin whose absence is a subject of sincere re- 
 gret to us all, and that the cause of govern- 
 ment and of law might have been presented 
 and sustained before this high tribunal with 
 the ability and power that he would have 
 brought to the performance of his high duty. 
 But it has been otherwise ordained. 
 '• Our thoughts are ours, their ends uoue of our own." 
 
 I dare not shrink, however much I might 
 desire that this case, and the cases that are to 
 follow it, should be committed to other and 
 worthier guidance, — I dare not shrink, espe- 
 cially at this hour in our country's history, 
 from the task which has been set before me. 
 
 The public interest wliich has been awakened 
 by this trial leads to the belief that there is a 
 deep public wrong to be avenged. The prison- 
 er at the bar is no ordinary defendant. The 
 trials of which this court room is usually the 
 scene, have an interest merely for the accused, 
 and those who are nearly bound to them, 
 whether by the ties of blood or friendship. — 
 The stories of crime or of misfortune which 
 they disclose are forgotten almost as soon as 
 tliey are told; and there is nothing left, save 
 the lifeless record of the court, to perpetuate 
 the memory of the fact that any human being 
 has paid, with his life or with his liberty, the 
 penaltj' of a violated law. The determination 
 of the fate of tliis prisoner, however, involves 
 the determination of questions infinitely more 
 iinportaut than whether he shall die or live. 
 The issues of the present session of this court 
 are fraught with consequences which reach far 
 
 into the future. The verdict which j'ou sh.all 
 render will leave this room and find its record 
 in the imperishable history of the land. 1 con- 
 jure you, gentlemen, to meet the high require- 
 ments of your position with the promptitude 
 and fidelity which your solemn oaths demand, 
 and which your country expects at your hands. 
 
 Gentlemen of the jury, the prisoner at the 
 bar, William Smith, is charged in this indict- 
 ment with the offence — one of the very highest 
 in the black catalogue of crime — known to the 
 laws of nations and to the laws of the United 
 States as that of piracy. The indictment, 
 which is the chart we are to be guided by in 
 this inquiry, contains six counts, as they are 
 technically called, all of them setting forth 
 substantially the same offence, but varying 
 somewhat as to the manner and form in which 
 the offence is charged. The single question 
 which will ultimately be submitted to you for 
 your determination under this indictment, is, 
 whether, on the sixth day of July, in the year 
 of our Lord one thousand eight Ijundred and 
 sixty-one, the prisoner at the bar did, feloni- 
 ously and piratically, set upon, board, bieak 
 and enter a certain American schooner named 
 the Enchanlrcts, and did, piratically' and feloni- 
 ously assault her officers and mariners, and 
 did, piratically and feloniously, and by force 
 and violence, steal and carry away the said 
 vessel and the cargo laden on board of her ? 
 Such is the question of fact which you are to 
 determine under the law and the evidence, and 
 upon which depends the guilt or innocence of 
 the prisoner at the bar. 
 
 The testimony which the Government will 
 present to you in support of the charge con- 
 tained in the present indictment, is that of eye 
 witnesses of the scene of violence and robbery 
 enacted on the deck of the Enchantress. Their 
 story is a simple one ; but that you may the 
 better understand the circumstances under 
 which the crime was committed, 1 will give 
 you a brief narrative of the facts to which the 
 witnesses will testify. 
 
 On the first day of last July, the schooner 
 Enchantress, under the command of Captain 
 John Devekeux set sail from the harbor of 
 lioston. She was an American vessel, sailing 
 from the time of her birth under the flag of 
 the United States, and loaded with a cargo of 
 miscellaneous articles, consigned to parties in 
 St. Jago de Cuba. Her owners are citizens of 
 Massachusetts, resident in Newburyport, where 
 the vessel was built, and was registered, I be- 
 lieve, at the time of her last voyage from Bos- 
 ton. The cargo shipped on board of her was 
 owned by a number of Boston merchants, and 
 among others, by Mr. William H. Gbkeley, 
 whose name is mentioned in the indictment. 
 
 The Enchantress left her moorings, as I have 
 said, on the first of July, and put to sea; but 
 upon the second a heavy gale of wind — pro- 
 phetic, as it would seem, of the misfortune 
 that was in store for her — drove her back to 
 port, and it was not till the third of July that 
 her voyage began. No voyage upon that sum- 
 mer sea was more prosperous than hers, till 
 
IQ 
 
 the afternoon of the sixth of July. About 
 noon of that thiy, the hjokers-out from the 
 Enchantress deck descried a sail to -ffiadward, 
 which they made out in a short time to be that 
 of a square-rigged vessel. She kegt bravely 
 on her course, tlie ship, however, standing to- 
 ward her so as to cross her bow. A few 
 liours' sail brought the pursuing vessel within 
 a mile of the schooner, when the , former 
 hoisted the French flag. The latter immedi- 
 ately ran up the Stars and Stripes to the main 
 rigging. The stranger, still pursuing, Cain'e 
 down to our schooner within less than a quar- 
 ter of a mile, hauled down lier studding-sail 
 and brought her to the wind. Soon tiie order 
 came from the deck of the sttanger to heave 
 to, to which Captain Devkbeux replied, that 
 it was impossible to do so in tiie present posi- 
 tion of the schooner, but that he would run 
 his vessel to windward, and obey the order. 
 The Enchantress then crossed her bow aiid 
 heaved to. It was immediately seen that this 
 imperious stranger was an armed brig, ; n ! 
 that upun her deck, amidships, was a long gun 
 surrounded with men, leveled so as to sweep 
 the deck of the Enchantress. 
 
 As the vessel approached and came rour'id 
 by the port stern of the Enchantress to her 
 Starboard side, it was observed that the men 
 on board the privateer, for such they knew 
 lier then to be, were in the act of preparing 
 this giin for use — ramming home the cartridge. 
 The vessels, in that position, were but a few 
 hundred yards apart. The unsuspecting, fee- 
 ble merchant craft lay under the frowning 
 batteries of the dark pirate ship. Submission 
 was the only alternative for the Ciptain of the 
 Eachanircss A boat was then lowered from 
 the privateer, and si.x men, armed to the teeth, 
 leaped into her ; a few strokes of the oar 
 brougiit them to the side of their captive, and 
 as the officer in command of the boat passed 
 up the side of the Enchantress, the French tiag 
 •was taken from the mast-head and- the pirate 
 flag of the so-called Confederate States was 
 spread to the breeze. The officer in charge 
 of the b'lat announced liimself to the mate of 
 the Enchantress, who met him at the "angway, 
 fts the First Lieutenant of the Confederate 
 brig Jifcrson Davis, and made inquiry for the 
 captain of the schooner. C^iptain Dy.vERKrx 
 was standing upon the quarter-deck; the 
 J.ieutenant, approaching him, said: " Cap- 
 tiin, 1 will thank you for your papers — you 
 !)re a prize to the Confederate brig Jefferson 
 J)aris; get ready to go on board of her." 
 Captain Dlvkrei^x procured the papers from 
 the cabin and handed them to the boarding 
 otticer : the stores being inquired for, the 
 mate of our schooner pointed them out to the 
 Lieutenant, who took them from the vessel 
 and placed them in his boat. The captain, his 
 son and the mate were ordered then to remain 
 behind, while the crew of the schooner were 
 transferred to the privateer. The Lieutenant 
 and two or three of his men remaining in 
 charge of the schooner, the crew, together 
 with the colored cook of the Enchantress, who 
 
 afterwards became the hero of this affair, 
 were next placed in the boat and taken to the 
 Jeff. Davis. The boat soon returned, bringing 
 with her this defendant and four others, who 
 came on board of the Enchantress and took 
 possession of her. The colored cook. J.acob 
 GAKiiiriv returned with them, ami when the 
 Lieutenant inquired why Garkick had been 
 brought \ ack, the prisoner replied that the 
 captain liad so directed, but that the man 
 would bring a thousand dollars when he got 
 him into Charleston. The vessel being now in 
 the possession of her despoilers, the Lieuten- 
 ant sngge-'ted to the prisoner, who acted as 
 the prize-master, to make sail. Captain Feve- 
 iiEU.x !ind the mate were thereupon ordered to 
 leave the schooner, and, stepping into the boat, 
 they went alongside of the privateer, i. 
 , They foumi her heavily armed, and manned 
 by more than a hundred men. Upon the deck 
 were two l2-pounders, and two guns carrying 
 balls of eighteen pounds, together with the 
 long l8-ponnder amidships. Her cabin (as 
 the mate of the Enchantress will describe it) 
 was hung all over with muskets, cutlasses and 
 boarding weapons. It was now past twiligiit. 
 The sail of the pirate was first seen about six 
 o'clock on that July evening ; it was past eight 
 when the captain of the Enchantress stepped 
 upon the deck of the Jeff. Davis. The captain 
 and the crew of our schooner are in the 
 clutches of their enemies. The End antress 
 ami her cargo are in the possession of the 
 pirates — this prisoner and his fellows. The 
 scene now changes. The vessels are to pait 
 company ; the one to proceed on her voyage 
 of plunder, piracy and death, the other to 
 seek a harbor in some Southern port. 
 
 Aboard the captured ship there was a heart 
 as brave as Ci«s\K's, one Jacob GAitPioK, a 
 poor black man, who was to become, in the 
 hamls of Providence, the instrument for the 
 safe deliverance of this captured ship, and 
 whose devotion to the right has brougiit tliis 
 prisoner to the bar of his country for the 
 punishment he deserves J cob Ga' r;ck will 
 tell yyu the story of the voyage of the En- 
 chantress after the tith of July. He is the 
 solitary witness of what transpired on board 
 the schooner after the -capture, and what lie 
 saw he will tell you simply but truthfully. On 
 the morning of the 2"Jd of July, the Encliav- 
 tress made the light-house at Cape Hatteras : 
 but about two o'clock in the afternoon of that 
 day, the United States gun-boat Albatross 
 came in sight. Gentlemen of the jury,~you 
 can picture, better than I can describe it, the 
 scene of consternation and dismay upon the 
 deck of the Enchantress, created by the appear- 
 ance of our national vessel. The men had 
 agreed that if a United States war ship crossed 
 their path they would personate the captain 
 and crew of the schooner, if they found it im- 
 possible to escape, and that in the event of 
 capture, they would either burn or scuttle her. 
 
 Gai!Rick, the cook, was ordered to go be- 
 low, as the Albatross came down upon them, 
 but he ran to the galley, prepared and ready 
 
13 
 
 to frustrate the plans of the pirates when tlie 
 moment should come for him to act. As the 
 gun-boat approached, Garrick leaped from the 
 ressel's side into the sea. exclaiming as he 
 jumped, " She is a prize of the privateer Jeff. 
 DuL'ls.. and they are taking us to Charleston." 
 
 A boat was sent from the Albatross to his 
 relief, and he was taken breathless and ex- 
 hausted from the water. Tlie Enchantress was 
 immediately boarded by officers of the AlLa^ 
 tr:>ss, the prisoner and the rest of the pVize 
 crew were soon sr.fely in irons, and the 
 schooner, under tlie convoy of the man-of- 
 war, on her way to Hampton Roads. The 
 prisoners were thence brought to Philadel- 
 phia, and held for trial in this Court. 
 
 Such, gentlemen of the jury, is a concise 
 nari-ative of the incidents of this vessel's cap- 
 ture, and of her release, out of which the 
 present prosecution has arisen The testi- 
 mony upon which we ask you for the convic- 
 tion of this defendant will be given to you 
 from the lips of those who suffered from liis 
 conduct, and who were the victims of his 
 cupidity and crime 
 
 Captain Dkvk.bkux, the cafitain of the En- 
 chantress, is at prcf^ent absent with the schooner 
 at sea. We have in attendance upon the trial, 
 liowever, Mr P.\gk, who was the mate of the 
 ship when she was taken, and.J.xcon Gakr CK, 
 the brave colored man, to whom is due the 
 credit of tlie rescue of this vessel, and whose 
 bravery and !<elf-possession, in a very ciitical 
 liour, liave placed it in the power of the offi- 
 cers of the law to bring the prisoner before 
 you and this Cwurt for trial. 
 
 The sixth of July was a memorable day in 
 tlie short and guilty life of tlie privateer J'ff. 
 JJai-i^. On the morning of that day, previ- 
 ously to the assiiult upon the Enclianrress, she 
 had fallen in with the IMiiladelphia brig Joint 
 Welsh. Short work had been made of her. 
 A cannon ball was fired across her bow, which 
 brought the vesi^el to; in a few minutes the 
 crew and captain of the Welsh were prisoners 
 on board of the privateer, and the stolen ship 
 on her way to a Southern port under the 
 ciiaige of a band of pirates, such as those 
 who will be arraigned before you in the pro-, 
 gress of the present trials. The captain and 
 the mate of thcJohn Wehh wei'e the witnesses 
 of the assault and capture of the Enchantress 
 from the deck of tlie privateer. They will 
 confirm in every particular the testimony of 
 Mr. Page and Jacob Garrick. They will 
 give you a detailed account of the armament 
 of this ship, her strength and power as a ves- 
 sel of war, fitted and equipped to roam the 
 sea with the Hag of a pirate confederacy at 
 her mast head. Tliey will tell you how im- 
 possible it would have been for any of these 
 tiny merchant crafts to attempt resistance to 
 her demands. Immediate destruction of the 
 vessels and the instant death of all on board 
 would inevitably have followed the manifesta- 
 tion of the slightest spirit of resistance on the 
 part of Captain Di-.vereiix and liis crew. His 
 only course was to submit — to abandon his 
 vessel and the property on board to the pri- 
 
 soner and his fellows, trusting that liis conn- 
 try would, some day or other, avenge his 
 wrongs and the wrongs of those committed to 
 his charge. That day, gentlemen, has now 
 come - One other matter of fact alone re- 
 mains to he stated. Wlien Captain Devereux 
 and the mate of the Enchantress crossed the 
 railing of the JJarls, they found on board of 
 iier, as I have appristd you, the officers of the 
 brig Welsh, which had been taken on the 
 morning of July the iith. The next day was 
 the Sabbath — tlie 7th of July. The day was 
 begun oil boaid the privateer by religious 
 service, in the course of which a prayer was 
 offei-ed that '-God Almiglity might bless Jef- 
 TERSON Davis, and all others in authority, 
 and th.ow confusion upon their enemies at tl.e 
 North." The next business was to look out 
 for sails. Jlen were sent aloft for tliat pur- 
 pose, and it was not long before the schooner 
 S. J.'WaruKj liove in sight above the horizon. 
 The i-ails of the privateer were taken in, and 
 she hiy like a decoy duck upon the surface of 
 the ocean, knowing full well that the unwary 
 stiaiiger, fancying that she was in distress, 
 would come up within the range of her guns : 
 and so it happened. The Waring was taken. 
 by tlie pirate that Sunday morning, and the 
 next day, the 8lh of July, a large ship of 
 eight hundred tons, the Mary Goodell. crossed 
 the tr;ick of the privateer. Twelve marines, 
 armed to the teeth, were detailed to go on 
 board, and c|uaiitities of water and stores 
 were taken from her and transferred to the 
 Uacis. This cruise of the privateer had been 
 a successful and eventful one. Every capture 
 had brought on board of the vessel numerous 
 pi'isoners, who were becoming a source of 
 anxiety and danger to the privateersmen. 
 They desired, accordingly, and very naturally, 
 to get rid of them. The Goodell presented the 
 oppoi-tunity and the facility for their dis- 
 charge ; so Captains Devkreux and Fifielp, 
 of the E/iC' antress and the Welsh, with their 
 respecti\e mates, Mr. Page and Mr. Ack- 
 land, were ordered to go aboard the Goodell; 
 and by that vessel they were taken to Port- 
 land, Maine You have tiius. gentlemen of 
 the jury, the story of their capture and cf 
 their release. 
 
 Permit me now, gentlemen of the jurj', and 
 may it please your Honors, to close these 
 opening remarks with a few words touching 
 the legal nature of the crime for which the 
 prisoner stands indicted. I need not say to 
 you fhfit prosecutions for this offence are 
 not often instituted. I do not know of any 
 trial for piracy in this District, except, per- 
 haps, prosecutions for slave-trading, which 
 has been made piracy by statute, since the 
 year 1 82 > — certainly none later than that is 
 reported in the books. That was the case, 
 sirs, of the United States rs. Kesslek, re- 
 ported in 1 Baldwin, and tried before the late 
 learned Judge Hopkinson. 
 
 I may premise that piracies are of two 
 kinds: — (1) Those that are such under the 
 laws of nations; and (2) those that are such 
 by the force of statutory enactments. Piracy, 
 
u 
 
 under the first description of it, is defined to 
 be robbery or a forcible depredation on the 
 high f-eas, without hiwful authority, and done 
 anivio furandi, and in the spirit and intention 
 of universal hostility. It is an offence against 
 the universal law of society — a pirate being 
 deemed, in the public opinion of all times 
 and countries, an enemy of the human race; 
 and, as such, punishable by any nation into 
 ■whose jurisdiction he may be bi'ought. 
 
 The common law of England — the country 
 from whom we derive our legal usages and 
 thoughts — adopted the definition of piracy 
 under the laws of nations, and recognized 
 and punished it as an offence, not against the 
 municipal code, but as against that other 
 great code of laws which regulates and de- 
 fines the duties and obligations of independ- 
 ent, sovereign communities in their external 
 relations to one another. Before the statute 
 of 28th Henry VIII., ch. 15, piracy was pun- 
 ishable in England only in the Admiralty. 
 That statute changed the jurisdiction, but 
 not the nature of the offence So well defined 
 is this ofl'ence under international law, that 
 in the year 1819 an act of Congress was 
 passed making the crime of piracy, "as de- 
 fined by the laws of nations," a crime against 
 the laws of the United States, and it was held 
 by the Supreme Court that this act was a 
 constitutional exercise of the power of Con- 
 gress to define and punish that ciime. (U. 
 S. vs. Smith, 5 Wheaton, 153.) But, gentle- 
 men of the jury, the prisoner at the bar is 
 not indicted under the laws of nations or 
 under the act of IBlSt. 
 
 The present indictment is in part under the 
 Act of Congress of 1820, which makes robbery 
 in or upon any ship, and in or upon any person 
 or thing on boaj-d of any ship, piracy, and, as 
 such, punishable by death. This leads nie^to 
 a brief consideration of the various statutory 
 enactments that exist upon this subject. The 
 Constitution confers upon Congress the power 
 to define and punish that offence. The first 
 act passed in pursuance of this authority, 
 was that of 1790, section 8, which was very 
 unskillfully and obscurely drawn, and led to 
 many questions of jurisdiction, which were 
 determined finally by the Supreme Court of 
 the United States. In conseijuence of some 
 adjudications of that Court, the act of 18U> 
 was passed, to which I have referred. It was 
 intended to enlarge the jurisdiction of tnc 
 Courts of the United States beyond the limits 
 assigned to it by judicial constructions of 
 the act of 17U0. But it lasted for one year 
 only, and, in 1820, the act under which this 
 indictment is partly drawn, was passed by 
 Congress. Its terms are bioad, general and 
 comprehensive, and the evidence in this case 
 will show you, beyond doubt or question, that 
 the defendant is guilty of the crime which it 
 defines. 
 
 The Act of Congress of 30th April, 1790, 
 declares, " if anj' person or persons shall 
 coinniit upon the high seas or in any river, 
 
 haven, basin or bay, out of the jurisdiction 
 of any particular State, murder or rohhery, 
 or any other ofl'ence which if committed 
 within the body of a county, would by the 
 laws of the United States be punishable 
 with death ; every such offender shall be 
 deemed, taken and adjudged to be a pirate 
 and felon, and being thereof convicted 
 shall suffer death." 
 
 The 9th Section of the same .\ct renders 
 another offence, of a vei-y peculiar character, 
 piracy; and as it will he important in the 
 aspect which the present case may assume 
 under the testimony for the prisoner, I will 
 give you the very words of the Statute : 
 
 "If any citizen shall commit any piracy 
 or robbery aforesaid, (such as is mentioned 
 in the 8th sec) or any act of hostility 
 against the Waited 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, notwith- 
 standing the pretence of any swh autho- 
 rity, be deemed, adjudged and taken to be 
 a pirate, felon and robber, and on being 
 thereof convicted shall suffer death." 
 
 Judge Washington has called attention to 
 the fact, that this Section is copied liter- 
 ally from the English Statute of Uth and 
 12lh Will, 3, c. 7, the history of whicii is ex- 
 plained by Hawkins. The British Act was 
 aimed at commissions granted to crniaers liy 
 James II , after iiis abdication of the throne. 
 These commissions were regarded as conferr- 
 ing a legal authority to cruise, so as to protect 
 those wlio jicteil under them against a cnarge 
 of piracy. The English Parliament said by this 
 Statute that no authority conteried by the 
 weak and wicked Stuart would protect those 
 w 10 acted under it from the doom of pirates. 
 The American Statue has a direct and immedi- 
 ate application to those of our own citizens who 
 roam and rob on the high seas undei- commis- 
 sions granted by a rebel leader. They confer 
 no authority and no protection. 
 
 The Act, as I remarked, is not drawn with 
 the clearness and precision that characterize 
 our elder American Statutes. A primary ques- 
 tion arose in Palmer's case (3 Wheaton, (JlO), 
 respecting the extent of the operation of the 
 Statute. The full and literal meaning of tlie 
 words would seem to indicate that it applied 
 to any person, whether a citizen of the United 
 States or not, who may commit the crime of 
 robbery, murder, or any of the otl'ences men- 
 tioned in the Act, on board of any ship or 
 vessel, whether owned in whole or in part by 
 citizens of the United States, or belonging ex- 
 clusively to the sutijects orcitiiens of a foreign 
 State. In Palmer's c ^se, however, the Supreme 
 Court decided. Chief Justice Marshall de- 
 livering its opinion, that the crime of robbery 
 committed by a person on the high seas — 
 whether an American citizen or a foreiguer — 
 
15 
 
 on board of any ship or vessel belonging ex- 
 clusively to subjects of a foreign State, is not 
 piracy within tlie true intent of the Act, of 
 v?liich I am now speaking In otiier words, 
 the act of piracy must be committed on hoard 
 of an American vessel. \Vlietlier the defend- 
 ant is a citizen or not, if the offence was com- 
 mitted on board of a foreign ship he cannot 
 be convicted under this Act of Congress. The 
 case of Palmer was decided in the year 1818. 
 The question, snon after the decision in this 
 case had been rendered, came before Mr 
 Justice Wasliington in this Circuit, upon the 
 trial of Howard and otliers fir the ciime of 
 confederating and combining with pirates 
 That great and learned Judge, (whose eminent 
 virtues and abilities are commemorated upon 
 the modest tablet which is placed in yonder 
 wall,) had occasion to employ the authority of 
 I'almer's case, on that occasion, and he then 
 said that robbery on the high seas committed 
 on board of a foreign vessel, did not amount 
 to piracy within the true intent and meaning 
 of the 8th Section of the Act of 1790, and that 
 it was not cognizable in the Circuit Court of 
 the United States 
 
 The next case, two years later, was that of 
 the United States v. Klintock, reported in 6 
 Wheaton (144.) The vessel in that case was 
 owned without the United States The same 
 question — whether the national character of 
 the vessel wus the criterion of jurisdiction — 
 came up for decision ; and the Court again 
 held, (the great Chief Justice speaking for it 
 in his opinion), that if the piracy be com- 
 mitted on board of a foreign vessel by a citi- 
 zen of the United States, or on board of a vessel 
 belon,i:ing to the United States by a foreigner, 
 the offender is to be considered in respect to 
 this subject as belonging to the nation under 
 whose flag he sails The substance of these 
 adjudications, as it has been expressed by 
 Jadge Hopkinsoi) in United States v. Kessler, 
 is, that the national character of the offender 
 io nothing; the jurisdiction is decided by the 
 character of the vessel. 
 
 Thus stood the decisions, when the Act of 
 March ;^rd, 1819, Section 5, to which I have 
 also referred, was passed by Congress. The 
 object of its framers, doubtlessly, was, to 
 avoid the effect of the decisions to which 1 
 have just called your attention. The 5th 
 Section of the .-^ct provided, " that if any 
 person u-Ji'ilxoeuer, shall, on the high seas, 
 commit the crime of piracy, as dffined by the 
 law of ?hi!ions, such offender shall, upon con- 
 viction thereof, be punished witli death," The 
 law of nations upon the subject of piracy was 
 thus incorporated into the laws of the United 
 States. Whatever was piracy in the eye of 
 the laws of nations became an offence against 
 the municipal law of this country. The penal 
 law of the Unitetl States was thus made to ex- 
 tend beyond their own vessels, and to embrace 
 acts of robbery committed on board of all 
 vessels, whether owned by our own citizens or 
 nut — whether sailing under the American flag 
 or under a foreign ensign. One of the defini 
 
 tions of piracy, as it is known to the laws of 
 nations, I have already given to you. A very 
 forciVile description of the offence I find, may 
 it please your Honors, in a quaint speech of 
 Sir David L>alrymple, in the case of Green, the 
 notorious pirate, wlio was tried before the 
 Scotch Court of Admiralty in the year 1705. 
 The case is found in the fourteenth volume 
 of the State Trials. 
 
 "A pirate," says Sir David, "is in a 
 perpetual war with every individual, and 
 every State. Christian or infidel. Pirates 
 properly have no country, but hy the na- 
 ture of their guilt, separate themselves, 
 and renounce on this matter, the benefit 
 of all lawful societies. They are worse 
 than ravenous beasts, in as far as their 
 fatal reason gives them a greater faculty 
 and skill to do evil : And whereas such 
 creatures follow the bent of there natures, 
 and that promiscuously pirates extinguish 
 I humanity in themselves, and prey upon 
 men only, especially upon traders, who are 
 the most innocent. The crime of piracy is 
 complex and is made up of oppression, 
 robbery and murder committed in places 
 far remote and solitary," 
 
 The 5th Section of the Act of 1819, adopt- 
 ing the definition of piracy in the law of 
 nations, expired, however, by its own limita- 
 tion. Congress, probably, thought it unwise 
 or impolitic to punish robbery committed oa 
 hoard of foreign vessels. Other nations pro- 
 vided punishment for the offence, when com- 
 mitted upon ships sailing under their own flags, 
 and why should the Congress of the United 
 States undertake to do more than make laws 
 for the punishment of the crime when com- 
 mitted on board of American vessels ? This 
 was the argument that probably induced 
 Congress to suffer the 5th Section of the 
 Act of 1820 to expire, and to enact in ita 
 stead, the Statute of 15th May, 1820, § 3, 
 which is in these words : 
 
 "If any person shall, upon the high seas, 
 or in any open roadstead or in any haven, 
 b.isin or bay, or in any river where the sea 
 ebbs and flows, commit the crime of rob- 
 bery, in or npon 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." (3 Stat, U, S., 600. Brightley's 
 Digest, 208.) 
 
 The effect of this enactment is, as it has 
 been said, to revive the principle which Pal- 
 mer's case and Klintock's case had estab- 
 lished and reaflfirmed, namely, that the char- 
 acter of the vessel, and not of the offender, is 
 to determine the jurisdiction of the courts of 
 
16 
 
 the United States. In every prosecution, 
 therefore, under either the 8rh Section of the 
 Act of 1700, or thp 3d Section of the Act of 
 18"_'0, it must he shown that the vessel, on 
 boJinl of which the rohhery was committed, 
 was an American vessel ; and if that app^'ar. 
 the national ciiaracter of the offender is of no 
 importance — whether a citizen cr n fnreisrner 
 he is subject to tlie laws of the United States. 
 The two Acts of 1790 and 1820, are not 
 essentially different, in so far a,s robbery on 
 the liigh seas is concerned. The former uses 
 the simple word " robbery.'" The other couples 
 with it the wO' ds ^- in or upon ant/ ship or 
 vesse!.'' The former makes " jnurdfr,'' as 
 well as " robbery," piracy, if the crime is 
 committed on the liigh seas. The other pro- 
 vides .^^iniply and alone fur the punishment of 
 " robbrrir on the sea. While they provide 
 for the punishment of piracy, as defined hy 
 the laws of nations, they also establish "a 
 STATUTOHY PIR.ACY, in wliicli the fff'nder is 
 not regarded or treated as an enemy of the 
 ■whole human race, and in wh'ch the oflFence 
 need not, of necessity, be committed in the 
 spirit and intention of universal hostility. 
 The piracy in the present case is of. the 
 species tiiat I describe. The very reason that 
 writers upon international law treat of piracy, 
 is that it is an offence against the un'ver-al 
 law of human society, and not. especially, 
 against the municipal law of any particular 
 State or people. The pirate of the law of 
 nations is an enemy of the human race; his 
 kand is against every man, and every man's 
 hatid is against him. He sails under no flag 
 known among nations, and acknowledges alle- 
 giance to no prince or State He plunders from 
 love of gain. His pa.«sion is money, and he 
 kills and robs that he may get it. All nations 
 are alike his enemies. He recognizes no 
 neutrals and no friends. The subjects and 
 ships of every people are the victims of his 
 wild and lawless pa'-sions. 
 
 On the other hand, the peculiar piracy 
 created by our statutes, may be of a very 
 dift'erent character. A single act of robbery 
 on the seas may stamp the offender as a 
 pirate under the statutes of the United States. 
 He may liave committed but the single rob 
 bery ; the article stolen may be of almos« 
 inappreciable value, and yet this court would 
 have jurisdiction to try and punish h'm for 
 the offence, as a pirate, in contemplation of 
 the Acts of Congress. 
 
 I would have you, gentlemen of the jury. 
 bear in mind, throughout this case, the dis- 
 tinction which I have endeavored to draw 
 between the two species of piracy ; and to 
 remember that we charge this prisoner with 
 the guilt of that offence alone which is created 
 by the Acts of Congress. 
 
 The gist of the offence is robbery. The 
 place must be either the high seas, or a river 
 Or bay wliere the tide ebbs and flows. The 
 robbery may be in or upon a vessel, or the 
 lading or crew of the vessel. The taking 
 
 must be, in legal phrase, animo furandi; it 
 must he either with fui-ce and violence, or by 
 putting the owners or fier.<ons in possession 
 of the property in personal fear and liodily 
 danger of their lives. The force or violence 
 applied may be eitiier actual or constiuctive, 
 as the law books say ; all th;it isnecessary in 
 order to make tlie offence pii-acy, is that tiie 
 power of the owner to retain the possession 
 of the property was oveicome by the robber, 
 either by actual violence physically applied, 
 or by putting liim in such fear as to over- 
 power )iis will It is only necessary to prove, 
 in a pi-osecution for piracy, that the t.nking 
 was attended with those circumstances of 
 violence or terror which, in common expe- 
 i-ience, aie likely to induce a man unwillingly 
 to part with his money for the safety of his 
 person, property or reputation. The present 
 case will disclose to you the fact that the 
 robbery of this vessel and of her cargo was 
 accomplished both by putting those in posses- 
 sion of her in fear, and by the application of 
 actual violence 
 
 Under the very shadow of an arined ship, 
 manned by a hundred men, the guns levelled 
 to sweep her deck, and ready, upon the in- 
 stant, to send all on board into eternity if flie 
 slightest evidence of resistance should bo 
 manif'e-ted by them, the little Eitchantrens lay 
 on that summer afternoon. It was while she 
 lay in this position that the piracy was con- 
 summated. Th s prisoner came on board, the 
 captain of the pirate crew, and from the pos- 
 session of the master and his marin'-s, stole 
 the vessel and her cargo. Resistance on their 
 part, as I have said, would have been mad- 
 ness and death. They were not bound to 
 resist force by force. Indeed, if Captain 
 DEyEiJKix had ventured to prevent the 
 boarding of his vessel, and death had been the 
 result — the death of himself and of his crew 
 — he would have been, from Bvavy moral point 
 of view, a suicide and a murderer The alter- 
 native of submission was adopted, very happily 
 for him, and for the cause of law and justice. 
 
 I have thus, gentlemen of the jury, reviewed 
 the facts of the case about to be presented to 
 yon — tiie principles of law that I deem appli- 
 cable to it, and the testimony which I will 
 offer on behalf of the Government, and upon 
 which the counsel for the United States will 
 ask you for the conviction of the prisoner. 
 
 I need liardly remind you that the issue 
 presented for your determination is a very 
 solemn one, involving as it does the life or 
 death of a fellow being. 
 
 r.ut independently of this consideration, 
 which affects merely the personal fate of the 
 prisoner, the case which we present will pro- 
 bably involve tiie practical determination by 
 you of the great question which is now shak- 
 ing the continent of America to its centre, 
 and finding its everlasting solution on the 
 battle-fields of Virginia and Missouri. 
 
 I need scarcely say to you — a jury of Penn- 
 sylvania men — that which it will be the duty 
 
17 
 
 of the Court, in a subsequent stage of tlie 
 cause, to instruct you, tliat tlie pretendfU 
 authority, under which it may be chiinied the 
 "orinie^of the prisoner were coniniitted, can- 
 not avail him before this tribunal, either to 
 justify or excuse them. 
 
 I hoM before you the Statute Rook of the 
 United States, and ( ut my tinger upon tlie 
 law which he lias violated. Not a jot or tittle 
 of that law lias passed away; and 1 ask you. 
 if I bring luime to liini tlie ollence charged in 
 this indictment, to say the truth before your 
 country and your God — to render a verdict of 
 guilty. We acknowledge but one Constitu- 
 tion, whose law is su[)renie — supreme here as 
 everywhere throuiLhout this land, which it has 
 blessed and honored Toe obligations of alle- 
 giance to the Government which that Consti- 
 tution has established, and which it has im- 
 posed upon all American citizens, cannot be 
 desti'03'ed or annulled by the conduct or 
 action of any State or any community of 
 States. No other doctrine, 1 believe, can 
 reach the ear of this Court, or enter the mind 
 of M Pennsylvania jury. 
 
 If, however, the evidence which the Govern- 
 ment will bring before you shall be inadequate 
 to supi'iort the charge which is preferred 
 against the defendant, no one would more 
 willingly ihan I listen to a venlict of ac- 
 quittal ; and it will be your duty then to say 
 that he is not guilty in the manner and form 
 in which he stands indicted. 
 
 Gentlemen of the Jury, my duty in opening 
 to you the case of the Government of the 
 Uniteil States has been now fulfilled. The 
 cause is committed into your hands under the 
 guidance and control of the learned Court, 
 and all that I ask in closing these remarks is 
 that full and impartial justice may be done 
 between the Government and the prisoner at 
 the bar. 
 
 At the request of the counsel for the 
 defence, the Court ordered that during the 
 examination of anj- witness, the remaining- 
 witnesses should not be present in the 
 Court room. Accommodations were pro- 
 vided for them in the Clerk's office. 
 
 Benmamin Davis called and sworn, and 
 examined by Mr. Ashton : 
 
 Question. Whore do you reside ? 
 
 Answer. In Newburyport. 
 
 Q. Yon are part owner of the schooner 
 Enchantress ? 
 
 A. I am. 
 
 Q. Where was she built? 
 
 A. At Newburyport. 
 
 Q. In what year ? 
 
 A. In May, L858. 
 
 Q. Where was she registered ? 
 
 A. yhe was enrolled at Newbnrj'port. 
 
 Q. Are all her owners citizens of the 
 United States ? 
 
 A. They are, and of Newburyport, as far 
 as I know. 
 
 Q. Who are the owners of the vessel ? 
 A. It would be almost impossible for me 
 to swear to it. because oftentimes bills of 
 sale of that kind of property are held by- 
 persons that we know not of. I own, my- 
 self, five-sixteenths of the Enchantress. 
 
 Q. Have you the evidences of your own- 
 ership ? 
 A. I have. 
 
 Q. Have you got them here? 
 A. I have. 
 
 Q. Is Mr. Creasy one of the owners? 
 A. I presume the owners are Messrs. 
 Richard Plummer, John T. Page, Emnh 
 M. Read. J. B. k J. W. Creasy, J. F. and 
 Th<imas At wood, and myself. 
 
 Q. Has she always sailed under the flag 
 of the United States? 
 
 A. She has. as far as I know. Her jia- 
 pers show it so ainhow? 
 
 Q. Where is she now enrolled or regis- 
 tered ? 
 
 A. Site is now registered in the port of 
 New York under a temporary register. 
 
 Q. Where was she registered on the sixth 
 day of July, the time of her capture ? 
 
 A. She has been under register from the 
 port of New York, I think, for nearly two 
 years past. 
 
 Q. Who was her captain upon the sixth 
 of J uly ? 
 
 A. John Pevereux of Newburyport. 
 Q. Who was her mate? 
 A. Charles W. Page. 
 Q Who were her sailors? 
 .A. I do not know. 
 
 Q. What was the value of the schooner? 
 A. Her cost at the time she was built, 
 three years since, was about ^OdOO. 
 
 Q. What do you suppose her value was 
 at the time of her capture ? 
 
 A. She has been valued in this city since 
 her return, at some five or six thousand 
 dollars. 
 
 Q. On what day did she last sail from 
 Boston ? 
 
 A. She sailed from Boston on the first 
 day of July, as far as I know. I was not 
 present atiier sailing; 1 presume sl.e sailed 
 then, as the captain wrote me on that uay 
 that he was about to do so. 
 
 Q. 'I'he schooner Enchantress is an 
 American vessel? 
 A. Yes, sir. 
 No cross-examinatior. 
 
 JoHx L. Priest called and sworn, and 
 examined by Mr. Asirrox : 
 
 Q. Where do you reside. Mr. Priest? 
 
 A. In Boston, Massachusetts. 
 
 il. Do you know the schooner Enchan- 
 tress ? 
 
 A. I do. 
 
 Q. How long have you known her? 
 
18 
 
 A. Since about the 20th of June last, I 
 think, when I chartered her for a voyaire 
 from Boston to St. Jago de Cuba and 
 back. 
 
 Q. Then the connection which you had 
 with her on the sixth of July was that of 
 her charterer? 
 
 A. I was her charterer and shipper of a 
 portion of her cargo. 
 
 Q. Do you know what the cargo of the 
 Enchantress was upon the 6th of July ? 
 
 A. I know some of the articles. I have 
 a general idea of the cargo ; I saw part of 
 it loaded. 
 
 Q. Would you recognise the bills of la- 
 ding for that cargo ' 
 
 A. Yes, sir. 
 
 Q. Do you know whether there were on 
 board of her .seventy-five sacks of corn ? 
 
 A. Yes, sir, I shipped them. 
 
 Mr. Harrison (to Mr. Asiiton) I would 
 rather you should ask the witness what he 
 knows, and put the questions in a less sug- 
 gestive form. 
 
 Mr. AsHTox. It is impossible for the 
 witness to remember the contents of all the 
 bills of lading. 
 
 Judge Cadwalader. Perhaps he may 
 
 Mr. AsHTON, (to the witness.) Give us, 
 if you can, the articles of the cargo ? 
 
 A. I can speak definitely in regard to 
 the shipment of seventy-five sacks of corn. 
 1 shipped them myself and saw them put 
 on board myself. 
 
 Q. AVhat other things do you remember ? 
 
 A. There were also about twenty thous- 
 and feet of lumber put on the deck of the 
 the vessel — white pine and oak luml)er in 
 the form of boards. I saw it shipped my- 
 self. 
 
 Q. What other things do you recollect? 
 
 A. There were also sundry l)arrels of 
 mackerel, boxes of candles, and barrels of 
 Lams. 
 
 Q. Do you remember any other thing? 
 
 A. My recollection is more positive in 
 regard to those. 
 
 Q. Was there any lard on board the 
 vessel ? 
 
 A. There was. 
 
 t^. Any pork ? 
 
 A. There was. 
 
 Q. Was there any soap? 
 
 A. There was, I know. T saw most of 
 the bills of lading when they were made 
 out and the freight list also. 
 
 Q. Was there any glass ware on board 
 the vessel ? 
 
 A. 1 think there was. 
 
 Q. Do you remember the names of the 
 shippers of the cargo ? 
 
 A. I do, of a good portion of the cargo. 
 Messrs. (jlreeley tSc Sons, of Boston, shipped 
 quite a quantity of mackerel, boxes of can- 
 
 dles, and white pine boards. The firm of 
 Jacobs & Son, of Boston, shipped a quan- 
 tity of pork. The Boston Sandwich (ilass 
 Company shipped a quantity of glass ware. 
 Q. Do you remember the names of any 
 of the other shippers ? 
 A. No. sir. 
 
 Q. Were all these persons whom you 
 have mentioned, citizens of the United 
 States? 
 
 A. They were citizens of the United 
 States, merchants doing business in Boston. 
 
 Q. About what time was that cargo 
 shipped on board ? 
 
 A. I think the vessel commenced load- 
 ing about the 2.5th of June. 
 
 Q. AVhen was her cargo taken on board 
 entirely ? 
 
 A. 1 think it was finished on Saturday 
 evening, the 30th of June. I thing she 
 sailed from Boston on Monday, the 2nd of 
 July. 
 
 Q. And that cargo was on board of her 
 so far as you know on the 6th of July ? 
 
 A. I presume that it was. It was on 
 board the second and must have been on 
 board on the sixth. 
 
 Mr. Wharton. You did not go with 
 the vessel ? 
 
 The Witness. I did not go with the ves- 
 sel. I saw the vessel partly loaded, and 
 was down on the wharf when she com- 
 pleted her loading. 
 
 Mr. AsHTON. Did you ever see the bills 
 of lading for the articles on board the ves- 
 sel shipped by Mr. Greeley? 
 
 A. 1 have seen most of the bills of lading, 
 having had the freight list made out from 
 them. 
 
 (4. Are these the bills of lading for Mr. 
 Greeley's articles? [Exhibiting to the 
 witness a number of bills of lading.] 
 
 A. These are the bills of lading of the 
 goods shipped by Mr. Greeley. 
 
 Mr. Wharton. One moment about that. 
 How do you know that, Mr. Priest ? 
 
 A. I chartered the vessel and made out 
 a freight list of the articles. 
 
 Mr. Wharton. 1 want to know how you 
 know these particular papers ? 
 
 The Witness. I saw these papers origi- 
 nally in Boston, before Captain Devereux 
 signed them. 
 
 Mr. AVharton. Before they were signed ? 
 
 The Witness. I saw them before and 
 after. I knew that such articles were to 
 be shipped, and saw them. 
 
 Mr. AsHTON. It is not important. 
 
 Mr. Wharton. I do not know that it 
 is important ; but the District Attorney 
 seemed to suppose it was important to have 
 these particular papers identified. I do 
 not understand that what the witness says 
 gives any validity to the papers. All that 
 
19 
 
 he says is that he saw them on a prior oc- 
 casion. 
 
 The Witness. I presume these are the 
 same. 
 
 Judge Cadwalader. I do not see that 
 it is very important on either side. 
 
 Mr. Wharton. I do not know that it 
 is. I presume the witness has not that 
 particular knowledge which would justify 
 hose particular papers jj-oing- in. 
 
 Mr. AsHTON. Mr. Priest, the articles 
 you have mentioned, so far as you know, 
 ■were on board the vessel on the 6th of 
 July, 1861? 
 
 The Witness. As far as I know, they 
 •were. 
 
 Q. They were on board of her when the 
 vessel loft the port ? 
 
 A. They were on board when she left 
 Boston 
 
 Q. Is Mr. Greeley a resident of Boston ? 
 
 A. Yes, sir. 
 
 Cross-examined by Mr. Wharton. 
 
 Q. To whom was she consigned ? 
 
 A. To the house of Masperan, Prenard, 
 & Co., of St. Jago de Cuba. 
 
 Q. For what purpose was the cargo sent 
 there ? 
 
 A. For the purpose of sale. 
 
 Q. On your account ? 
 
 A. Part of the goods were on my ac- 
 count. Some of them were sent on freight 
 by these various Boston shippers. 
 
 Q. What was her tonnage ? 
 
 A. I think her tonnage was about one 
 hundred and eighty tons. 
 
 Q. Where was she to go, after leaving 
 St. Jago ? 
 
 A. She was to procure freight, or to be 
 loaded with sugar on my account, and re- 
 turn to Boston or some northern port in 
 the United States. 
 
 Q. Have you the charter with you ? 
 
 A. I gave the charter to Mr. Woodbury 
 the U. S. Commissioner in Boston, and i 
 understood him to say that he had sent it 
 on with the other papers to Philadelphia. 
 
 Mr. Ashton. To whom? 
 
 The Witness. To Mr. Morton P. 
 Henry. J asked Mr. Woodbury for it 
 when he wished me to come on here as a 
 •witness. He told me he did not find it 
 among his papers, and he thought he had 
 Bent it on. He did not think it material. 
 
 Mr. Ashton. I have not seen it. 
 
 Mr. Wharton. That has nothing to do 
 ■with the transaction, I suppose. I pre- 
 sume it must have been some other affair 
 of business. Was it ? 
 
 The Witness. I think it had something 
 to do with the release of the vessel, 
 
 Mr. Ashton. The question of salvage, 
 ■was it not ? 
 
 The Witness. I think so. 
 
 Charles W. Page called and siuom, 
 and examined by Mr. Ashton. 
 
 Q. AVhere do you reside, Mr. Page ? 
 
 A. In Newburyport. 
 
 Q. Do you know the schooner Enchant- 
 ress ? 
 
 A. 1 do. 
 
 Q. What was your connection with that 
 schooner on the Gth of July, 1861 ? 
 
 A. I was first officer other. 
 
 Q. When did she sail from Boston on 
 that voyage ? 
 
 A. The first day of July. 
 
 Q. Who was the captain of the schooner ? 
 
 A. Captain John Devereux. 
 
 Q. Who were the mariners on board the 
 schooner ? 
 
 A. Joseph Taylor; John Devereux ; An- 
 toine, a Portuguese, I do not recollect his 
 last name ; Peter, a German, his last name 
 I do not recollect; and Jacob Garrick, a 
 colored man, the cook. 
 
 Q. This John Devereux, whom you men- 
 tion now, was not the captain ? 
 
 A. The captain's son. 
 
 Q. Then the captain was named John 
 Devereux, and one of the mariners was 
 John Devereux, junior ? 
 
 A. Yes, sir. 
 
 Q. When was her cargo taken on board ? 
 
 A. During the last week in June. 
 
 Q. Of what did that cargo consist? 
 
 A. A general cargo of provisions. 
 
 Q. Did you superintend the taking in of 
 the cargo ? 
 
 A. I did. 
 
 Q Can you enumerate some of the 
 articles that were on board of the schooner, 
 that were taken on board at the time you 
 have mentioned ? 
 
 A. Codfish, mackerel, ham, candles, 
 crockery ware, hardware. 
 
 Q. Do you remember any other articles ? 
 
 A. 1 think there was some soap. 
 
 Q. Were there any grindstones on 
 board ? 
 
 A. There were. 
 
 Q. Were there any white pine boards ? 
 
 A. Yes, sir. 
 
 Q. Was there any lard ? 
 
 A There was. 
 
 Q. Was there any clear perk? 
 
 A. There was pork on Ourd. 
 
 Q. Was there any glass ware ? 
 
 A. Yes, sir. 
 
 Q. Was there any corn ? 
 
 A. Yes. 
 
 R. In what form was that corn ? How 
 was it placed on board ? 
 
 A. In bags, sacks. 
 
 Q. Do you recollect the precise quan- 
 tities of the articles that you have mea- 
 tioiied? 
 
 A. I do not. 
 
20 
 
 Q. Do you know who were the owners 
 or shippers of this cargo ? 
 
 A. I do not. 
 
 Q How was this cargfo laden? Was 
 some of it on deck or all of it below ? 
 
 A. All below but the lumber. Most of 
 the lumber was on deck. 
 
 Q. For what place did the Enchantress 
 clear ? 
 
 A. St. Jago, Cuba. 
 
 Q. And on what day ? 
 
 A. I cannot tell you the day she cleared. 
 She sailed on the first of July. 
 
 Q. What happened to the vessel on the 
 second of July, if anything? 
 
 A. There was a gale of wind on the 
 morning of the second, and she put back. 
 
 Q. Was any of her cargo unladen when 
 she put back ? 
 
 A. No, sir. 
 
 Q. When did she sail again ? 
 
 A. On the third. 
 
 Q. What was the position of the vessel 
 upon the 6th of July, at sea? What was 
 her latitude and longitude? 
 
 A. On the (>th day of July, at twelve 
 o'clock, her latitude was thirty eight de- 
 grees fifty-two minutes north, und her lon- 
 gitude sixty-nine degrees fifteen minutes 
 west. 
 
 Q. IIow far from shore was she ? 
 
 Judge Cadwalader, (to Mr. Ashton.) 
 You can fix that by the chart if it becomes 
 important. 
 
 Mr, Ashtox, (to the witness.) Do you 
 know the chart of the Enchantress? 
 
 A. Yes, sir, 1 have seen it. 
 
 Q. To whom did the chart of the En- 
 chantress belong ? 
 
 A. 1 do no know. 
 
 Q. Is that thechart of the Enchantress? 
 [Exhibiting it. J 
 
 A. Yes. sir. 
 
 Q. Now look at that chart and tell us 
 how far this vessel was from the coast on 
 the 6th of July, at twelve o'clock. 
 
 Judge Cadwalader. There is no diffi- 
 culty in supposing that the vessel was on 
 the high seas. That is evident from what 
 he has already sworn to. 
 
 Judge Grier. We take it for granted 
 that she had not run on shore. 
 
 'J'he Witness, (having measured the dis- 
 tance on the chart by the compass.) She 
 was about two hundred and fifty miles from 
 the shore. 
 
 Mr. AsiiTON. On the high seas? 
 
 A. Yes, sir. 
 
 Q. AVhat were the incidents of that day. 
 the 6th of July, on board the schooner En- 
 chantress? Be good enough, if you please, 
 to give deliberately and fully to the Court 
 and Jury the occurrences on board the 
 schooner on that day ? 
 
 A. On that day things went on as usual 
 on board up to about two o'clock in the 
 afternoon, when we descried a sail to wind- 
 ward. We could just make out that she 
 was a square rigged vessel. We kept on 
 our course. We gradually gained upon 
 her, and we found that she was a srpiare 
 rigged brig. She was standing so as to 
 cross our bow. When within about a mile 
 I should judge, she hoisted the French 
 flag. We hoisted the Stars and Stripes. 
 We still kept on our way thinking she 
 might be a French vessel that wanted to 
 get news from the United States. When 
 within about half a mile, she altered her 
 course and ran towards us. 'i'he vessel 
 was hauled to the wind, her studding sails 
 lowered, and we were ordered to heave 
 to. 
 
 Q. As a mariner, Mr. Page, state what 
 was the object of this maneuver with the 
 sails ? 
 
 A. Hauling his vessel to the wind he 
 had to lower his studding sails. To take 
 them back would have retarded his pro- 
 gress. 
 
 C^. He ordered you to do what ? 
 
 A. To heave to. Captain Devereux told 
 him that he could not heave to in the posi- 
 tion he was. He said, " I will cross your 
 bow and run to windward, and heave to." 
 We did so. went to windward of him, and 
 hove to. He immediately lowered a boat. 
 The boat came alongside of us with an offi- 
 cer and some six men. 
 
 Q. How far was the Enchantress from 
 this vessel at that time? 
 
 A. Perhaps some seven or eight times 
 her length; I could not state the exact 
 distance. It was within hailing distance. 
 I stood in the gangway of the Enchantress 
 The ofiicer, when he came over the gang, 
 way, said to one of his own men, " Haul 
 down that flag in the main rigging." 
 
 il. That was your flag? 
 
 A. Yes, sir. 
 
 Q. Did the man obey the order? 
 
 A. He did. 
 
 il. The flag was removed ? 
 
 A. Yes, sir. 
 
 Q. Where did those men post themselves 
 when they came on board the Enchant- 
 ress? 
 
 A. The men went all over the vessel, 
 anywhere they chose. The officer went aft 
 to the captain. 
 
 t^. Did he ask you for the captain ? 
 
 A. He asked me where the captain was ; 
 I told him he was aft. 
 
 Q. Did you hear what he said to the cap- 
 tain ? 
 
 A. I did. 
 
 Mr. Wharton. Wo\dd it not be better 
 to let him tell his whole story himself? 
 
21 
 
 Oftentimes the incidents in regular order 
 may present a different impression from the 
 same incidents brought out by various 
 questions not pursuing the exact order of 
 events. 
 
 Judge Grier. The best way is to let 
 the witness tell his story, and then ask him 
 as to anything he has omitted. 
 
 Mr. AsHToN. 'I'hat is exactly what I 
 wanted. (To the witness.) — Go on with 
 your statement. 
 
 The WiTNE.ss. The officer asked our 
 captain where he was from, and where 
 bound, and what was his cargo. The cap- 
 tain told him. He then said, " I will thank 
 you for your papers, captain ; you are a 
 prize of the Confederate brig Jeff. Davis ; 
 get ready to go on board of her." The 
 officer asked if I was the mate of the ves- 
 sel. I told him I was. Said he, "Show 
 me where your stores are." I showed him. 
 He tcok two of his men down into the cabin, 
 and they took out whatever stores they 
 wanted and put them into their boat. 'I'hey 
 then took the Enchantress' crew (with the 
 exception of Captain Devereux, his son, and 
 myself) into the boat. 'i"he lieutenant and 
 three men remained on board the schooner. 
 
 Judge Cadwalader. When you say 
 " lieutenant," you mean the boarding offi- 
 cer ? 
 
 The Witness. Yes, sir, the lieutenant 
 of the Jeff. Davis, Three men rowed back 
 to the privateer with all our men except 
 Captain Devereux, his son, and myself. 
 Some half-hour's time elapsed, and they 
 came back to our vessel with the prize 
 crew, five men. The lieutenant then gave 
 Captain Devereux, his son, and myself 
 orders to get ready to go in the boat. We 
 put our things in the boat and got in our- 
 selves, and they rowed us to the brig, and 
 we went on board. 
 
 Mr. AsHTON. Now, let me interrupt you 
 at this point, and ask you if the defendant, 
 the prisoner at the bar here, was one of 
 those five men ? 
 
 A. He was, sir. 
 
 Judge Grier. One of the five who were 
 left in the possession of your vessel? Is 
 that what you mean ? 
 
 A. Yes, sir ; they were left in possession 
 of our vessel. 
 
 Mr. AsHTON. Let me ask you another 
 question before you go on. Was any mem- 
 ber of the Enchantress' crew brought back 
 in that boat ? 
 
 A. Yes, sir, Jacob Garrick, the negro 
 cook. He came back in the boat that 
 brought the prize crew on board. The 
 officer asked the prisoner at the bar what 
 they brought him back for. He said the 
 captain would not have hira on board the 
 brig, and the prisoner at the bar said, " He 
 
 will fetch fifteen hundred dollars when we 
 get him into Charleston." 
 
 Q. You went on board the brig ? 
 
 A. Yes, sir. 
 
 Q. In whose possession was the Enchan- 
 ti-ess at that time ? 
 
 A. The prize crew from the brig. 
 
 Q. And there was no member of the 
 Enchantress' crew, except Jacob Garrick 
 on board of her then. 
 
 A. None. 
 
 Q. Was the cargo on board of the 
 schooner, to which you have referred, in 
 the possession of the defendant and the 
 other four men ? 
 
 A. It was. 
 
 Q. Was any portion of that cargo re- 
 moved by you or by Captain Devereux, or 
 any of you ? 
 
 A. There was not. 
 
 Q. "What did you take with vou to the 
 brig? 
 
 A. We took our clothes. 
 
 Q. The clothes you had on ? 
 
 A. All our clothes that belonged to us. 
 
 Q. Were the charts of the vessel and the 
 instruments of navigation left on board? 
 
 A. They would not let us take them. 
 
 Q. Who would not let you take them ? 
 
 A. The prize crew and the officer of the 
 brig said we must leave everything on board 
 in the schooner, the nautical instrument?, 
 charts, &c. 
 
 Q. When you went on board the brig 
 Jeff. Davis, what was her condition in re- 
 gard to arms ? 
 
 A. She carried five guns, two on each 
 side, and — 
 
 Q. What was their calibre? 
 
 A. I could not swear to their calibre, 
 but I heard some of them say they were 
 two eighteens, two twelve-pounlers, and 
 one long eighteen amidships (a pivot gun). 
 
 Q. What was the number of her crew? 
 
 A. About one hundred men and officers. 
 
 Q. Was there any cargo on board of her 
 that you saw ? 
 
 A. None that I saw. 
 
 Q. You have seen men-of-war, Mr. Page ; 
 was she manned and equipped as a vessel 
 of war? 
 
 A. She was, to the best of my judgment. 
 
 Q. Now, to return : when the Enchan- 
 tress hove to, how many hundred yards was 
 this vessel from her ? 
 
 A. A very short distance ; I cannot state 
 exactly. 
 
 (4. Could you. from the deck of the En- 
 chantress, see the brig very plainly or not? 
 
 A. We could. 
 
 Q. Could you see the men on her? 
 
 A. AVe saw perhaps some twelve or fif- 
 teen when she first ordered us to heave 
 to. 
 
22 
 
 Q. You say this gun amidships was a 
 pivot gun : in what position was it? 
 
 A. It was pointed at us ; and as we went 
 across his bow to go to windward to heave 
 to, he swivelled his gun around — kept it to 
 balance all the time. 
 
 Q. Did you see the men about the gun ? 
 
 A. I did. 
 
 Q. What did they seem to be doing ? 
 
 A. To be ramming home a cartridge. 
 
 Q. Were there any arms on board the 
 Enchantress? 
 
 A. There was one musket. 
 
 Q. Was that all ? 
 
 A. That was all. 
 
 Q. What time did you leave the Enchan- 
 tress ? 
 
 A. As near as I could judge, about half- 
 past seven o'clock in the evening. 
 
 Q. Was it dark? 
 
 A. Just getting dark. 
 
 Q. How long did it take you to get to 
 the brig ? 
 
 A. Some fifteen or twenty minutes. It 
 was about eight o'clock when we got on 
 board Ihe brig. 
 
 Q. During the time you were on board 
 the brig, were you down in her cabin ? 
 
 A. 1 was. 
 
 Q. What did you see there ? 
 
 A. All sorts and descriptions of arms, 
 all around the cabin, hung up in racks. 
 
 Q. Small arms — pistols, and things of 
 that sort ? 
 
 A. Pistols, cutlasses, rifles. 
 
 Q. You have spoken of the men on 
 board her. Were there any marines on 
 board her? 
 
 A. There were what they called marines. 
 
 Q. Armed with muskets, or not ? 
 
 A. Sometimes they would be allowed to 
 Lave muskets, and sometimes they would 
 go without them, on board the vessel. 
 
 Q. Where were those marines posted 
 when you went on board the brig ? 
 
 A. I could not state. It being dark, I 
 did not recognize them. 
 
 Q. You, and Captain Devereux, and his 
 son, were on board the Jeff'. Davis. Who 
 else? 
 
 A. The remainder of the Enchantress' 
 crew. 
 
 Q. How long did you remain on board 
 that brig ? 
 
 A. I was on board her from the evening 
 of the 6th of July until the evening of the 
 9th. 
 
 Q. As a prisoner ? 
 
 A. As a prisoner. 
 
 Q. How happened it that you were re- 
 leased from this imprisonment ? 
 
 A. 'I'hey captured a ship called the 
 Mary Guodell on the afternoon of the 9th, 
 and the captain of the brig told us we 
 
 could get ready to go on board her as he 
 would release us. 
 
 Q. Did the captain give any reason for 
 that ? 
 
 A. He said that the ship was so large 
 that they could not do anything with her; 
 they could not get her into any southern 
 port. 
 
 Q. How large was she? 
 
 A. A ship, I should judge, of between 
 eight and nine hundred tons. They let all 
 our crew go except two, whom they kept 
 on board the privateer. 
 
 Q. Were any other of the prisoners on 
 board the brig released at the same time ? 
 
 A, There were. 
 
 Q. Who were they ? 
 
 A. Captain Fifield of the brig John 
 Welsh, Thomas Ackland his mate, and a 
 boy that belongs in Philadelphia, who was 
 with Captain Fifield ; I do not know his 
 name. 
 
 Q. When you went on board the brig 
 did you find these persons there ? 
 
 H. I did. 
 
 Q. As prisoners, or as mariners of the 
 brig ? 
 
 A. As prisoners taken that morning. 
 
 Q. During the three days you were on 
 board the brig, had you an opportunity of 
 knowing something about her conduct ? 
 
 A. I had. 
 
 Q. What did the Captain say, or any 
 body on board the vessel connected with 
 her say was the object of her voyage? 
 
 Mr. Wharton. What is that ? 
 
 Mr. AsHTON. I want to know whether 
 anything was said by the officers or per- 
 sons in control of the vessel as to the 
 object of her voyage? 
 
 Mr. Wharton. After this man Smith 
 was on board ? 
 
 Mr. AsHTON. Either before or after- 
 wards. 
 
 Mr. Wharton. W^e object to that. 
 
 Mr. Ashton. If your Honors please, 
 we have shown the relation between this 
 prisoner and the persons on board the ves- 
 sel in the nature of a conspiracy, and I take 
 it that the words of one bind the other. 
 
 Judge Grier. So far as they are part 
 of the res gefitce, they would, but this is a 
 mere mutter of confessions afterwards. 
 
 Judge Cadwalader. This is outside of 
 the rule. 
 
 Judge Grier. They are found together 
 and acting together, and so far the acts and 
 conduct and words of each one are evi- 
 dence as part of the rts gestce, and they 
 are all bound by them ; but I do not see, 
 that mere confessions afterwards could 
 affect them. 
 
 Judge Cadwalader. This was after the 
 couuection was severed. 
 
23 
 
 Judge Grier. The connection might not 
 be severed; but the position, the locus, 
 was severed. 
 
 Mr. AsHTON. Would your Honors' 
 ruling apply to the acts of this vessel ? 
 
 Judge Cadwalader. All you can want 
 to prove is the character of the vessel, and 
 that you show by her conduct in a specific 
 case. I rather think you have got out all 
 you want in that respect. 
 
 Judge Grier. When you prove that a 
 man knocks you down, it is pretty good 
 proof that he is not a peaceable man. 
 Here you have proven that this brig 
 captured a vessel. You do not want any- 
 thing else. The conduct of the brig has 
 shown what she is, better than any words 
 anybody could use about it. If the other 
 side can show a defence or justification of 
 it, that is another matter ; but, you cannot 
 make it any worse or better by any words 
 they said afterwards. 
 
 Mr. AsHTON (to the witness.) Well, 
 Mr. Page, while the two vessels were in 
 the position that you referred to, at the 
 time you left the Enchantress, would it 
 have been possible for the men on board 
 the Enchantress to have resisted ? 
 
 A. It would not. 
 
 Q. Why not? 
 
 A. We were laying right under the guns 
 of the Jeff. Davis. They were pointed 
 at us, and if there had been any resistance, 
 they would have blown the vessel out of 
 water, I suppose without a doubt. 
 
 Q. You identify this defendant. Smith, 
 as one of the men who came on board the 
 vessel under the circumstances that you 
 have described ? 
 
 A. I do. 
 
 Q. Do you know the value of the cargo 
 on board the schooner at the time of her 
 capture ? 
 
 A. I do not. 
 
 [Mr. AsuTON ofifered the chart in evi- 
 dence,] 
 
 Cross-examined by Mr. Wharton. 
 
 Q. You have spoken of a French flag 
 that was run up : was that flag pulled down 
 at any time before your capture ? 
 
 A. The French flag was pulled down and 
 the Confederate run up when the Lieu- 
 tenant was coming over the gangway, at 
 the time of actual boarding. 
 
 Q. At the time of actual boarding, you 
 saw the French flag hauled down and what 
 you call the Confederate flag run up ? 
 
 A. They said it was the Confederate 
 flag. I never saw it before. 
 
 Q. I never saw it, and perhaps the jury 
 never did, either; will you be kind enough 
 to describe the flag that was run up, which 
 you call the Confederate flag ? 
 
 A. It has eleven stars, a red stripe and 
 a white stripe — "the Stars and Bars" they 
 call it, I shall not be sure about the 
 stripes ; but it has eleven stars, and I think 
 the stripes are red and white ; there are 
 two stripes. 
 
 Q. Do those bars or stripes run across 
 or lengthwise? 
 
 A. I cannot say positively. 
 
 Q. Are the stars in the centre or in the 
 corner? 
 
 A. In one corner. 
 
 Q. Did you hear the order given to haul 
 down one flag and run up the other. 
 
 A. I did not hear it from my own vessel. 
 I was not on board the brig. 
 
 Q. Then the brig lay at some distance ? 
 
 A. She lay within hailing distance. 
 
 Judge Cadwalader. I suppose the 
 communications you gave us in the early 
 part of your testimony were by the 
 trumpet? 
 
 The Witness. Yes, sir. 
 
 Mr. Wharton. Was the order to haul 
 down one flag and hoist the other, given 
 by the boarding officer or by some one that 
 you do not know ? 
 
 A. Some one I do not know. 
 
 Q. It was not given by the boarding 
 officer that came on board of your vessel? 
 
 A. No, sir, he ordered our flag to be 
 hauled down. 
 
 Q, You have spoken of him as the Lieu- 
 tenant ; did he give himself that title ? 
 
 A. He told me that he was Lieutenant 
 and gave me his name. 
 
 Q And therefore you got his title from 
 himself? 
 
 A. Yes sir. 
 
 Q. Was that done when he first came on 
 deck? 
 
 A. No, sir, afterwards, — after he had got 
 aft and took the Captain's papers. 
 
 Q. Aft on board your vessel ? 
 
 A. Yes, sir. 
 
 Q. Did he say who his Captain was ? did 
 he give the name of the Captain of the 
 brig ? 
 
 A. He did not. 
 
 Q. You have mentioned, that when you 
 got on board the brig, she was called the 
 Jeff. Davis ; was that her name ? 
 
 A. She had no name on her. They gave 
 her that name. 
 
 Q. You have described a good many 
 things that you saw when you got on board 
 — arms, &c. Did you see, or did they 
 speak of, a commission which they held ? 
 
 A. Not to my knowledge, any further 
 than when boarding the schooner the 
 officer said "you are a prize to the Con- 
 federate brig, Jeff". Davis,"- nothing further 
 than that. 
 
 Q. You have already said that she had 
 
24 
 
 all the appearance of a vessel of war in her 
 equiiiments. armament, and every thing? 
 
 A. She had. 
 
 Q. How many davs were you on board 
 of her ? 
 
 A. "lliree days. 
 
 Q. lldw were you treated? 
 
 A. As well as could be expected under 
 the circumstances. 
 
 Q. T do not ask what your feelings were, 
 only the actual fact as to your treatment. 
 
 A. "We were not ill used after going on 
 board. 
 
 Q. I have not heard you describe any 
 circumstance of ill usage in your ca]iture. 
 There was nothing that occurred that you 
 have not stated. 1 jnesume. "Was there no 
 olher violence used than what you have 
 already indicated by an officer coming on 
 board with men and directing your sur- 
 render. &c. ? 
 
 A. None other. 
 
 Q. In regard to the P^nchantress, did 
 you part company with her on the same 
 evening? You mentioned that about 8 
 o'clock, when it was dusk, you went on 
 board the brig, and then you parted with 
 the Enchantress ; and therefore, you have 
 no personal knowledue of the course she 
 took ? 
 
 A. No, sir. 
 
 Q. Can you give us some general idea, 
 without reference particularly to the 
 chart, but with reference to some neigh- 
 boring island or land, where you were when 
 you were captured on that occasion, where- 
 abouts you were, in what waters ? 
 
 A. From two hundred to two hundred 
 and fifty miles southeast from Nantucket 
 South shoal. 
 
 Q. That was the nearest land ? 
 
 A. Yes, sir. 
 
 Q. AVas that in your direct course to St. 
 Jago ? 
 
 A. Yes, sir. We were steering in a di- 
 rect course. 
 
 Q. You did not remain long enough 
 upon the Enchantress at the time of her 
 capture to know what course she was di- 
 rected to take ? Do you know anvthing 
 about that ? 
 
 A. In the bustle of the moment, I did 
 not take any notice of it. 
 
 By Mr. tl aurison : 
 
 C^. Did you ever see the defendant. Smith, 
 until you saw him on board the Enchanircss 
 on the 6th of July ? 
 
 A. I never did. 
 
 Q. How long did you have an oppor- 
 tunity of seeing him on that occasion? 
 
 A. An hour or more. 
 
 Q. Have you seen him before to-day 
 since he has been confined inMoyamensing 
 prison ? 
 
 A. T have been there and seen him. 
 
 Q. How often have you seen him in 
 prison ? 
 
 A. I have been there twice I think. 
 
 Q. Why did you go to see him ? 
 
 A. I did not go in to see him in par- 
 ticular. I went to see the priscm. 
 
 Mr. Harrison. I ask why you went to 
 see the prisoner and by whose authority 
 did you go? 
 
 The VViTNKss. I went because I wished 
 to go. 
 
 ^Ir. Harriso.v. Was it a visit entirely 
 of a friendly character that you made to 
 Smith ? 
 
 A. That was all, 
 
 Mr. Ashton. Excuse me. It may be 
 that the witness does not understand your 
 question. 
 
 Mr. Harrison. I will try to make him 
 understand it. 
 
 Mr. AsHi'ON. He went there by my 
 authority one or twice. 
 
 Mr. Harrison. Then I understand you, 
 Mr. Page, that you were sent there or were 
 authorized by the government officers to 
 go to that prison ? 
 
 The Witness. Yes, sir. 
 
 Mr. Harrison. 'I'hat brings me to the 
 very point to which my interrogatory was 
 addressed: unless you had been directed to 
 the cell where you were told Smith was, if 
 you had met him anywhere else, would you 
 have been able to identify him ? 
 
 A. I would. 
 
 Q. Your recollection of him was suffici- 
 ent without the visit? 
 
 A. Yes, sir. 
 
 Q. The object of the vtsit, then, was not 
 to enable you to identify Smith, or to see 
 whether you could identify him ? 
 
 A. It was not. 
 
 Q. Why did you pay him a second visit ? 
 
 A. Because 1 wished to go to the prison 
 and see him. and 1 went upon authority. 
 
 Q. Neither visit had any reference at all 
 to the testimony you expected to give in 
 this case ? 
 
 A. None whatever. 
 
 Q. AVhy did you go to see Smith? 
 
 A. I had no particular reason, but I 
 thought 1 would like to see them. 
 
 Q. Did you go to see all of them ? 
 
 A. 1 saw the whole of them. 
 
 Q. Do you think you wouid be able to 
 recognise Lieutenant Postell ? 
 
 A. Yes, sir. 1 could recognise him if I 
 met him in the dark, almost. 
 
 Bi/ a Juror. 
 
 Q. In what relation did the defendant 
 stand to the rest of the party that boarded 
 the Enchantress as a prize crew? Was he 
 an associate, or the commander ? 
 
 A. He was the prize master. 
 
25 
 
 Re-examined by Mr. Kelley : 
 
 Q. Had the marines of whom you spoke, 
 any distinctive uniform ? 
 
 A. They had not. 
 
 Q. How did you know they were ma- 
 rines ? 
 
 A. I was told so on board the vessel. 
 
 Q. Was there anything like uniformity 
 of dress on board the vessel? 
 
 A, There was not, to my knowledge. 
 
 By Mr. Wharton : 
 
 Q. You state that Smith was the prize 
 master : do you know whether any instruc- 
 tions were given to him? What was he 
 told to do with his prize ? ^ 
 
 A. I do not know. If there were any 
 instructions given to him, I suppose it was 
 on board the brig before he left it. I did 
 not hear them. 
 
 Q. You said he was the prize master : 
 how did you know that? 
 
 A. The lieutenant pointed him out to 
 me and told me his name was Smith, and 
 that he was the prize master, and immedi- 
 ately when he came on deck, he took charge 
 of the vessel and ordered the crew to make 
 sail. 
 
 Q. Did you hear at all what Smith was 
 told to do with the vessel ? 
 
 A. I did not. 
 
 Q. You only know that he was the prize 
 master, indicated by the lieutenant as 
 such ? 
 
 A. Yes, sir. 
 ] Jacob Garrick, called and sworn, and 
 ' examined by Mr. Ashtou. 
 
 Q. How old are you ? 
 
 A. About 25. 
 
 iQ. Where were you born? 
 A. In Santa Cruz, Danish West Indies. 
 Q. What is your business ? 
 A. I generally follow the sea as cook 
 and steward. 
 
 Q. How long have you followed the sea? 
 
 A. About eight years and a half, I 
 think 1 went to sea in 1852 or 1853. 
 
 Q. What were your duties on board the 
 Enchantress ? 
 
 A, I was cook and steward. 
 
 Q. When did she sail from Boston? 
 
 A. On the first of July. 
 
 Q.. You were on board of her on the 6th 
 of July? 
 
 A. Yes, sir. 
 
 Q. Tell us what you saw that day ? 
 
 A. On the 6th of July, about two or three 
 o'clock, we made a sail. I heard them sing 
 out "sail ho." I looked and saw the sail 
 myself. We were going on our course 
 with a pretty fair breeze of wind, this sail 
 still coming on to us. It came on pretty 
 late ; I had supper about half past five 
 o'clock. When we came on deck after 
 supper, we saw the sail, having the French 
 
 flag flying. Some of the men said it was a 
 French vessel. It kept coming along and 
 got pretty near us. I was washing my 
 dishes, and I heard one of the men sing out 
 forward "that's a privateer." I looked 
 over ray galley, and I saw they had the 
 French flag set and were ramming home a 
 cartridge. I saw the big gun amidships. 
 She came around, hailed us, and told us to 
 heave to. The captain sung out something 
 to her, and she kept on and came round on 
 the stern. Then 1 heard them sing out for 
 us to lower away our fore-sail and haul 
 down our jib. The captain did so, and 
 hove our vessel to, and then I saw a boat 
 come to us. Previous to that, when they 
 got on the starboard side of us, they hauled 
 down the French flag, and hauled up the 
 Confederate flag. Then they lowered the 
 boat. The boat came alongside of us, and 
 some of the men got off and spoke to the 
 captain. I took notice of a man with a 
 glazed cap on and a white coat. 
 
 Q. How many men came on board ? 
 
 A. I cannot tell how many men were in 
 the boat. It was a boat's crew. They 
 rowed four oars, I know. 
 
 Q. Where was the captain of the En- 
 chantress ? 
 
 A. Aft, on the quarter deck. 
 
 Q. Did these men speak to the captain? 
 
 A. Yes, sir, I saw them go and speak to 
 the captain. I could not hear what they 
 said because I was forward. 
 
 Q. What did the captain do, if anything, 
 after they had spoken to him ? 
 
 A. He went down into the cabin. 
 
 Q. Did he bring up anything with him ? 
 
 A. I did not take notice whether he did 
 or not. 
 
 Q. What did these men do to the sailors 
 on board the Enchantress ? 
 
 A. They said " men, get ready to go on 
 board the Jeff". Davis ; take all the things 
 belonging to you." 
 
 Q. Who said that ? , 
 
 A. I heard that man (Smith) say so. 
 
 Q. Was Smith one of those men ? 
 
 A. Oh, yes, sir. 
 
 Q. Did your captain go into the boat? 
 
 A. Not at first. They took us on board, 
 and then the boat returned to the Enchant- 
 ress with the prize crew and took oif the 
 captain, and his son, and the mate. 
 
 Q. Were you in that boat? 
 
 A. Yes, sir. 
 
 Q. How near to the Jeff. Davis did yoa 
 go? 
 
 A. I was right alongside of her. Once 
 I stood up and looked over the rail. 
 
 Q. AVhere did the men of the Enchant 
 ress go ? 
 
 A. On board the Jeff". Davis. 
 
 Q. Why did you not go ? 
 
26 
 
 A. Well, I heard them say " take that 
 colored individual back ; you need not pass 
 up his things." 
 
 Q. Did they refer to you ? 
 
 A. Oh, yes. I knew they referred to me 
 then. 
 
 Q. How many men got into that boat, 
 then, from the Jeff. Davis ? 
 
 A. I do not know how many. The prize 
 crew came in with their things, and there 
 were some few more — the steward of the 
 Jeff. Davis, and others. 
 
 Q. Was this defendant one of the men ? 
 
 A. Yes, sir. 
 
 Q. One of those that sailed with you in 
 this boat from the Jeff. Davis to the En- 
 chantress ? 
 
 A. Yes, sir. 
 
 Q. Did this defendant go on board the 
 Enchantress when you did ? 
 
 A. Yes, sir. 
 
 Q. When he went on board, where was 
 the captain of the Enchantress ? 
 
 A. He was aft on the starboard side, sit- 
 ting down. 
 
 Q. Who was with him? 
 
 A. The captain's son and the mate. 
 
 Q. How long was this defendant on the 
 ■ Enchantress before the order was given to 
 the captain to leave ? 
 
 A. I suppose about ten or fifteen min- 
 utes at the longest. 
 
 Q. Who ordered the captain to leave ? 
 
 A. The officer who came from the Jeff. 
 Davis told the captain to stay, and his son 
 and mate. The others went on the boat to 
 the Jeff. Davis. Then the boat returned 
 back and took them aboard. 
 
 Q. Was the captain ordered to get into 
 the boat then ? 
 
 A. Yes, when they were ready. 
 
 Q. What was done ? 
 
 A. The captain went in, and took his ' 
 things with him. 
 
 Q. Who went with him ? 
 
 A. His son and the mate. 
 
 Q. Where were you then ? 
 
 A. I was left on board the Enchantress. 
 
 Q. When the brig hove to, how far was 
 she from the Enchantress ? 
 
 A. I suppose she was about as far as from 
 here down to the corner there, [meaning 
 the distance diagonally across the court 
 room from one corner to the opposite one!] 
 
 ' Q. Did you see her plainly ? 
 
 A. Oh, yes, sir. 
 
 Q. How long after the captain left, did 
 they make sail ? 
 
 A. As soon as the captain left, the boat 
 returned back and brought the prize crew 
 some tobacco from the Jeff. Davis, and in 
 a few minutes the Enchantress set sail. It 
 was dark. 
 
 Q. Who took command of her ? 
 
 A. Smith. I suppose he did, because he 
 ordered me to get some supper for him. 
 
 Q. Did you get the supper ? 
 
 A. Yes, sir, I got him some tea. 
 
 Q. During the time you were on board 
 the Enchantress under Smith, what was 
 your position? what did you do? 
 
 A. I was cooking, the same as before. 
 
 Q. How long were you on board the En- 
 chantress then ? 
 
 A. Sixteen days from the day we were 
 captured. 
 
 Q. When were you recaptured ? 
 
 A. On the22d of July. 
 
 Q. Now tell us what occurred on the 22d 
 of July? 
 
 A. Soon after dinner I took my dishes 
 to the galley and washed them. In going 
 liack to the cabin with the dishes, I saw 
 Smith have a spy glass. I looked under 
 the lee of the mainsail and I saw a vessel 
 coming that I thought was a steamer. I 
 took my dishes down and came back and 
 took another look, and I saw it was a 
 steamer. The steamer was coming right in 
 our direction. Smith said to the men to 
 take the flying jib off to bend ; but they 
 sang out to Smith, "you had better not 
 bend that jib now, because if they see us 
 making sail they will think something and 
 come at us." He said, " go ahead and bend 
 it." Then they started out to bend it, and 
 he said " never mind, you can let it lie." 
 Then I heard him say, " one of you men go 
 up and sheer over that topsail sheet." A 
 man went up to do it, and was there a con- 
 siderable while. Then Lane said to me, 
 "you can go in the forecastle, steward ; and 
 if they should come and overhaul us, and 
 your name is called, you can answer." I 
 said I would rather stay in the galley. I 
 went in the galley and watched the steamer 
 coming. When the steamer saw us tack 
 ship, she hauled right up for us. I kept 
 looking through from one galley door to 
 the other according as we would go about. 
 We went about three or four times. The 
 schooner was going pretty fast. I still 
 kept looking to see how near the steamer 
 was getting to us. I heard one of the men 
 say, "she has hoisted her flag," and they 
 went out jind hoisted our flag. The steamer 
 hoisted the American flag, and we hoisted 
 our American flag. The steamer kept 
 coming on. I heard them say, " it is a 
 man-of-war." When the steamer got pretty 
 close to us, I heard a hail " what schooner 
 is that?" The reply was, "the Enchan- 
 tress." " Where bound to ?" " St. Jago 
 de Cuba." As soon as that was said, I 
 jumped out of my galley and jumped over- 
 board. 
 
 Q. How far was the steamer from you ? 
 
27 
 
 A. About across tbis room, — within 
 speakine^ distance. 
 
 Q. What did you do when you jumped 
 into the water ? 
 J A. I sang out " a captured vessel of the 
 privateer Jeff. Davis, and they are taking her 
 into Charleston." I sang it out so that 
 they could hear me on board the steamer. 
 
 Q, How did you get out of the water? 
 
 A. The steamer's boat picked me up. 
 
 Q. What was done then ? 
 A. First, when the boat picked me up, 
 they took me on board the schooner, and 
 then they took the prize crew ott' the schoo- 
 ner and took me on board the steamer along 
 with them. 
 
 Q. Did they take this defendant out of 
 the schooner ? 
 
 A. Yes, sir. 
 
 Q. Where did they put him? 
 
 A. They took him on board and stood 
 him up on deck, and then they took him 
 below. 
 
 Q. When the steamer was coming down 
 to you. did you hear this defendant or any 
 of these men make arrangements about 
 what they would do? 
 
 A. Oh yes, they were arranging them- 
 selves to take the names of the Enchan- 
 tress' crew. 
 
 Q. How do you mean ? 
 
 A. One was to act in place of the cap- 
 tain with his name ; another in the place of 
 the mate with his name ; and so on through 
 the crew. 
 
 Q. Was there not one less of these men ? 
 
 A. Yes, they were one short. 
 
 Q. What about that? 
 
 A. I heard that they were to say that 
 man was washed overboard. 
 
 Q. To whom was all that to be said ? 
 
 A. If any of the United States armed 
 vessels should speak them, they were to do 
 this, of course, to get clear. 
 
 Q. What was the name of this steamer ? 
 
 A. The Albatross. 
 
 Q. Do you know her commander? 
 
 A. Captain Prentiss. 
 
 Q. What did they do with the schooner 
 when they boarded her ? 
 
 A. The first lieutenant boarded her and 
 took the prize crew off her, and made them 
 row him to his own vessel, leaving his 
 boat's crew on board to take charge of the 
 Enchantress. I 
 
 Q. What did they do with the schooner ? \ 
 
 A. A prize crew was put on board from ] 
 the steamer, with me along as cook. Then ' 
 we made sail in her and steered to Hamp- 
 ton Roads. The steamer came up to us. i 
 threw us a hawser, and towed us to Hamp- 
 ton Roads. I 
 
 Q. How did you get to Philadelphia ? I 
 
 A. After being there seven or eight days 
 
 the steamer came again, took us in tow, 
 and brought us up here. 
 
 Q. And you have been here ever since ? 
 
 A. Yes, sir. 
 
 Q. Are you a man of family ? 
 
 A. No, sir. I have a brother in New 
 York. 
 
 Q. What flag had the Enchantress flying 
 when she was captured ? 
 
 A. The American flag. 
 
 Q. What flag did she carry after she was 
 captured ? 
 
 A. The American flag. She had no 
 other on board. 
 
 Q. This prisoner, then, kept the Ameri- 
 can flag still on the vessel ? 
 
 A. Yes, sir, all the flags on board were 
 American. 
 
 Q. Do you know where you were at the 
 time the Albatross took you ? 
 
 A. I heard them say we were near Cape 
 Hatteras on the coast of North Cai-olina. 
 
 Q. Who did you hear say that ? 
 
 A. The man Bradford, I think. 
 
 Q. How long after you saw the Hatteras 
 light, were you captured by the Albatross ? 
 
 A. We saw the lighthouse in the morn- 
 ing about six o'clock, and we were taken 
 by the Albatross about three o'clock in 
 the afternoon. 
 
 Q. Do you know in what direction the 
 Enchantress sailed after the prize crew, 
 the defendant and the other four men, were 
 put on board her ? 
 
 A. I heard them say to steer the course 
 southwest, they were going to Savannah ; 
 but after they were a few days out they 
 said they would not go to Savannah but to 
 Charleston. By going to an inlet called 
 Bulls', they said they could take a steam- 
 boat and be towed up to Charleston. 
 
 Q. How long did it take you to get from 
 the place where you were taken by the 
 Albatross, to Hampton Roads? 
 
 A. Soon after we were taken, a gale of 
 wind came up, and it took a long time to 
 tow us with the wind ahead. We should 
 have been in the next day if it were not for 
 that, but the following day we were in at 
 Hampton Roads. 
 
 Q. Did the Albatross take you in the di- 
 rection the Enchantress was sailing at tliat 
 time, or in the opposite direction ? 
 
 A. She turned back. 
 
 Q. Then you weut north after the re- 
 capture ? 
 A. Yes sir. 
 
 Q. You spoke of a place called Bulls, 
 do you know where it is ? 
 
 A. I do not, but I heard them say it was 
 twenty-five miles from Charleston. 
 Q. Who told you so ? 
 A. I heard them say so on board among 
 themselves. 
 
28 
 
 Q. Did these persons keep the log after 
 the Enchantress was taken ? 
 
 A. No, sir, they did not keep any log. 
 
 Q. Was the log book on board ? 
 
 A. Yes, there were two logs. 
 
 Cross-examined hy Mr. Wiiakton. 
 
 Q. You were cook originally, and you 
 continued in your ordinary pursuits ? 
 
 A. Yes, sir, I cooked for them. 
 
 Q. You held the office of cook under 
 every change of administration ? 
 
 A. I cooked for four captains. 
 
 Q. Did you hear the instructions that 
 were given, or did you hear these men say 
 ■ where they were told to take the Enchant- 
 ress ? 
 
 A I never heard them say where they 
 were told to take her. I heard them say 
 where they were going to take her. 
 ■ Q. Where was that ? 
 
 A. They started to take her to Savannah. 
 After they were a few days out, they 
 altered and said they would take her to 
 Bull's so as to get her up to Charleston. 
 
 Q. Then they were to take her either to 
 Savannah or Charleston as far as you under- 
 stood ? 
 
 A. Yes, sir. 
 
 Q. You did not hear Smith or any of 
 them say where they were told to take her 
 by the persons who put them on board ? 
 
 A. No, sir, but I heard from the Jeff. 
 Davis, several give messages to friends in 
 Savannah. 
 
 Q. Who was the Captain of the Jeff 
 Davis ? 
 
 A. I do not know. 
 
 Q. Do you know his name ? 
 
 A. No, sir. 
 
 Q. You think you were off Cape Hatte- 
 ras when the Albatross came along ? 
 
 A. Yes, sir. 
 
 Q. And you were steering southwest ? 
 
 A. Steering to Charleston. I do not 
 know the course we were steering that 
 day. 
 
 Q. The Albatross took you in tow and 
 brought you into Hampton Roads ? 
 
 A. Yes, sir. 
 
 Q. Did you come to anchor in Hampton 
 Roads ? 
 
 A. Yes, sir. 
 
 Q. Smith was there ? 
 
 A. He was on board the gun boat. 
 
 By Mr. Asiiton. 
 
 Q Did you see Smith at Hampton 
 Roads ? 
 
 A. No, sir. I did not see any of them 
 at Hampton Roads. 
 
 Q. Then Smith was kept on board the 
 Albatross, and you were with the prize 
 crew of the Albatross ? 
 
 A. Yes, sir. 
 
 Mr. Wharton. The Albatross towed 
 
 you to Hampton Roads, and she and the 
 Enchantress arrived there together, and 
 stayed there about a week you say ? 
 
 A. Yes, sir. 
 
 Mr. AVharton. Did the Albatross lay 
 with you at Hampton Roads ? 
 
 A. No, sir. She was out cruising around. 
 She went to relieve a gun boat somewhere 
 up the river. 
 
 Mr. Wharton. But what was done 
 with Smith ? 
 
 A. 1 do not know. 
 
 Q. Do you know what they did with 
 Smith and the other men of the original 
 prize crew ? 
 
 A. I will say I did not see Smith nor 
 any of them after they were taken on board 
 the Albatross when they were captured, 
 until I saw them here. 
 
 Q. Did you not see them at all at Hamp- 
 ton Roads ? 
 
 A. No, sir. 
 
 Q. I suppose the Albatross came to 
 anchor in Hampton Roads ? 
 
 A. Yes, sir ; she lay some two days 
 there. 
 
 Mr. Harrison. How far from the 
 shore ? 
 
 A. I suppose as far as from here to the 
 corner ; I cannot tell exactly. 
 
 Mr. Wharton. A very short distance ? 
 
 A. Yes, sir. 
 
 Q. What was the nearest place ? 
 
 A. AVe lay right abreast of Fortress 
 Monroe. 
 
 Q. How near were you to the fort ? 
 
 A. I suppose we were about four hun- 
 dred or five hundred yards from Fortress 
 Monroe. 
 
 Q. Do you know that the crew from the 
 Albatross were sent ashore there ? 
 
 A. I do not know any more than that I 
 saw boats from the Albatross go ashore. 
 Boats were going backwards and forwards 
 from the vessel to the wharf. 
 
 Mr. Harrison. For two days ? 
 
 A. Whilst they lay there. They lay 
 there a couple of days. 
 
 Mr. Wharton. Then the Albatross 
 went off on a cruise ? 
 
 A. She went up the river. 
 
 Q. What river ? 
 
 A. I do not know the names of the 
 rivers there, 
 
 Mr. AsHTON, Did you see all this. 
 
 A. I saw when they hauled across and 
 went up the river. 
 
 Mr. Wharton. How long was she 
 gone ? 
 
 A. I cannot tell rightly now. 
 
 Mr. Wharton. You seem to have been 
 very accurate in your recollection of other 
 dates and I thought you might recollect 
 this. 
 
29 
 
 The Witness. Well, she was away 
 about five days. She came up ia the 
 night. 
 
 Q. Did she take you in tow again ? 
 
 A. She came up in the night, and next 
 day she took us in tow. 
 
 Q. And then brought you to Phila- 
 delphia ? 
 
 A. Yes, sir. 
 
 Q. You say you did not see Smith till 
 you arrived here ? 
 
 A. No, sir. 
 
 Q. On board what vessel did you then 
 see him ? 
 
 A. I saw him here in the Court. 
 
 Q. You did not see him on board the 
 Albatross ? 
 4, A. No, sir. 
 
 (.},. Who were the persons that went 
 from the Albatross to the fortress in boats 
 and back again? 
 
 A. I do not know who they were. 
 The Court adjourned till to-morrow. 
 
 Wednesday, October 23, 1861. 
 
 John C. Fifield called and sworn, and 
 examined by Mr. Ashton. 
 
 Question. Where do you reside? 
 
 -Answer. In New Jersey. 
 
 Q. What is your business ? 
 
 A. Seafaring business. 
 
 Q. How long have you been following 
 the sea? 
 
 A. About sixteen years. 
 
 Q. Where have you sailed from ? 
 
 A. I have sailed from the port of Boston 
 and from this port. 
 
 Q. From what port did you sail last ? 
 
 A. Philadelphia. 
 
 Q. In what vessel ? 
 
 A. The John Welsh. 
 
 Q. As captain of that brig? 
 
 A. Yes, sir. 
 
 Q. Was she a Philadelphia built brig? 
 
 A. She was built in Gloucester, but 
 owned in Philadelphia. 
 
 Q. Where were you bound when you 
 sailed from Philadelphia last in that 
 brig? 
 
 A. To Trinidad de Cuba. 
 
 Q. Did you reach Trinidad de Cuba? 
 
 A. Yes, sir. 
 
 Q. Did you sail back fr«m Trinidad de 
 Cuba? 
 
 A. I sailed for Falmouth, England, with 
 a cargo of sugar from Trinidad. 
 
 Mr. Wharton. I presume the object is 
 to bring this gentleman in some way into 
 contact with the defendant. 
 
 Mr. AsHTON. That is all. 
 
 Mr. Wharton. The mode of doing that, 
 I suggest, is not important to us. 
 
 Mr. Ashton (to the witness.) Have you 
 
 seen William Smith, the prisoner at the 
 bar, before? 
 
 A. Yes, sir. 
 
 Q. Where did you see him first? 
 
 A. I first saw him on board the John 
 Welsh. 
 
 Q. Where did you see him next ? 
 
 A. On board the Jeff. Davis, or what 
 was said to be the Jeff. Davis. 
 
 Q. How did you happen to be on board 
 the Jeff. Davis ? 
 
 A. I was captured by her. 
 
 Q. What was the date of the capture ? 
 
 A. The 6th of July. 
 
 Q. At what time of the day did it occur ? 
 
 A. I should think about nine o'clock in 
 the morning. 
 
 Q. How did you happen to get on board 
 the Jeff. Davis ? 
 
 A. I was taken in their boat. 
 
 Q. And on board the Jeff. Davis you 
 saw for the second time William Smith ? 
 
 A. Yes, sir. 
 
 Q. What was his capacity on board that 
 vessel ? 
 
 A. I was told that he was prize-master. 
 
 Q. How long were you on board the 
 Jefl'. Davis ? 
 
 A. I was captured on Saturday, about 
 nine o'clock, and was on board until the 
 Tuesday evening following. 
 
 Q. How many days did you see William 
 Smith, the prisoner, on board the Jefl". 
 Davis ? 
 
 A. I only saw him till that Saturday af- 
 ternoon. 1 suppose he left about six or 
 seven o'clock ; I cannot state exactly when. 
 
 Q. You recognize him as the person 
 whom you saw on board that vessel? 
 
 A. That is the man [pointing to the 
 prisoner.] 
 
 Q. Did you see the assault upon the 
 schooner Enchantress? 
 
 A. No, sir; I was below. When the 
 Jeff. Davis came within about three miles 
 as I supposed of the Enchantress, we were 
 all ordered below. 
 
 Q. At what time in the day did you first 
 see the sail of the Enchantress ? 
 
 A. I cannot say when, precisely. I saw 
 it probably by three o'clock ; at what time 
 they saw her, I do not know ; there were 
 some three or four sails at the time ; I do 
 not think I saw her more than two or 
 three hours before she was brought to. 
 
 Q. How long after the chase began, were 
 you ordered below ? 
 
 A. When we came within about three 
 miles of her, all the prisoners on board 
 were ordered below. 
 
 Q. How long did you remain below ? 
 
 A. Until she was boarded by the boat 
 from the Jeff. Davis. After she was 
 boarded, we came on deck. 
 
30 
 
 Q. Did you see the flag that she had fly- 
 ing (luring the chase ? 
 
 A. Yes ; we saw that out of a small 
 window. When she came alongside, she 
 had the American flag. 
 
 Q. But I mean the flag of the Jeff. Pavis? 
 
 A. We saw that out of the skylight ; we 
 watched when they hauled the French flag 
 down, and hoisted what I suppose is called 
 the Confederate flag. 
 
 Q. At what time did they hoist the 
 Confederate flag ? 
 
 A. Js^ot until the vessel was probably 
 not more than a quarter of a mile off"; I 
 should think she was less than a quarter of 
 a mile distant ; she was alongside, close 
 under the guns. 
 
 Q. Did you see William Smith leave the 
 Jefl'. Davis for the purpose of going on 
 board the Enchantress ? 
 
 A. Yes, sir; I saw him leave as prize- 
 master ; that is what was said. 
 
 Q. Then you were ou deck at that time? 
 
 A. Yes, sir. 
 
 Q. How many left with him ? 
 
 A. That I could not say, as there was 
 iu the boat a number of the other crew. I 
 understood that he went as prize-master to 
 take charge of the schooner. 
 
 Q. Then you saw him go on board the 
 Enchantress ? 
 
 A. I saw him leave the brig. I did not 
 notice particularly his going on board the 
 Enchantress. 
 
 Q. How long after William Smith left 
 did the Jeff". Davis make sail? 
 
 A. I do not think she made sail that 
 night at all ; it was dark. After he left, 
 the boat that took him and the prize crew 
 on board the Phichantress, brought to the 
 Jeff. Davis Captain Devereux, his son, and 
 mate, I think ; three or four of them ; and 
 it was then dark. 
 
 Q. Did you see the Enchantress make 
 sail? 
 
 A. Yes, sir; I saw her make sail, and 
 stand away ; but I think the Davis lay 
 still all that night ; it was squally and rainy. 
 
 Q. William Smith did not return with 
 the boat that brought Captain Devereux 
 and the mate to the Jeff. Davis ? 
 
 A. No, sir ; I did not see him on board 
 again while I was there. 
 
 Q. Did you see any preparations that 
 were being made on the Jeff". Davis ? 
 
 A. Yes, sir ; the guns were all got ready, 
 the ports were unlashed, the waist guns 
 were pointed, and the swivel was shotted 
 and manned, and all ready to fire into her 
 if it was needful in order to capture her. 
 
 Q. What do you mean by the swivel ? 
 
 A. The long gun amidships, which they 
 could turn all the way round. They 
 brought it to bear on the Enchantress, be- 
 
 fore she came within hailing distance, and 
 kept it bearing on her all thn while. As 
 soon as the vessel went around in any di- 
 rection, they swivelled the gun around so 
 as to bear on the vf'ssel. 
 
 Q. Did you see them load that gun ? 
 
 A. No, but I think it was kept loaded 
 all the time. 
 
 Q. IIow many guns did the Jeff. Davis 
 carry ? 
 
 A. She had four waist guns and this 
 swivel. 
 
 Q. Do you know the calibre of the guns ? 
 
 A. 1 do not. 
 
 Q. Do you know whether those guns 
 were loaded at the time of the assault on 
 the Enchantress? 
 
 A. I was told they were loaded. 
 
 Q. Told by whom ? 
 
 A. By the purser and assistant surgeon. 
 
 Q. During the time William Smith was 
 on board the vessel ? 
 
 A. Yes, sir. 
 
 Q. Did you see any other arms on board 
 that ship, with the exception of those you 
 have mentioned ? 
 
 A. Yes, sir; I saw muskets, double bar- 
 reled guns, pistols, cutlasses, boarding- 
 jiikes. I should think there were about 
 fifty muskets with bayonets ; I cannot say 
 how many double barreled guns, but quit© 
 a number. 
 
 Q. How many cutlasses? 
 
 A. I cannot say. 
 
 Q. Where were they kept? 
 
 A. In the cabin. 
 
 Q. Were you down in the cabin often ? 
 
 A. Yes, sir, I slept in the cabin. 
 
 Q. Do you know whether the muskets 
 and double barreled guns you speak of, 
 were kept loaded ? 
 
 A. Yes, sir, they were said to be loaded. 
 
 Q. Who said so ? 
 
 A. The captain of the marines. The 
 double barreled gnus were loaded with buck 
 shot, and the others with balls, I was told. 
 
 Q. How many men were there on board 
 the Jeff. Davis during this cruise — I mean 
 of her company? 
 
 A. It was said there were seventy. I 
 never had any means of ascertaining the 
 number, but I should think there were 
 about that many; that is, when I was cap- 
 tured ; nine weje taken out and put on 
 board my vessel ; that reduced their num- 
 ber, and made it sixty-one. 
 
 Q. Were there persons ou board who 
 were termed marines ? 
 
 A. Yes, sir. 
 
 Q. What were their duties on board that 
 ship? 
 
 A. They kept guard over the cabin at 
 night. I cannot say what their duty was 
 otherwise. 
 
31 
 
 Q. Were they armed during the day ? 
 
 A. No, sir; but during the night they 
 were. 
 
 Q. What arms had they ? 
 
 A. They had the muskets then, and the 
 captain of marines generally had a pistol 
 or two when he was on deck himself. 
 
 Q. Did these men wear any distinctive 
 uniform ? 
 
 A. No, sir; there was no particular uni- 
 form on board the vessel ; they were dressed 
 just as it happened. 
 
 Q. Was there a magazine on board the 
 ship? 
 
 A. Yes, sir. 
 
 Q. Did you see any powder and balls ? 
 
 A. I sawthe powder as it was passed 
 out of the magazine. 
 
 Q. Where was it passed ? 
 
 A. On deck, to load the guns. Before 
 they captured the Mary Goodell, prepara- 
 tions were made for a severe attack on her, 
 and at that time a number of small arms 
 were carried on deck ; that was the only 
 time I saw the magazine opened. 
 
 Q. Did you bear any conversation be- 
 tween William Smith and the officers of 
 the Jeff. Davis, at the time he left for the 
 purpose of going on board the Enchan- 
 tress ? 
 
 A. No, sir ; I saw him in conversation 
 with them, but I heard nothing of what 
 was said. 
 
 Q. You said that William Smith went 
 on board your ship : in what capacity ? 
 
 A. He seemed to have charge of a lot 
 of men who came to take provisions out of 
 the vessel. 
 
 Q. You said that you were ordered to 
 go down below when the assault was made 
 on the Enchantress? 
 
 A. We were all ordered to go below, or 
 lie down on deck, except the ordinary crew 
 of a merchant vessel, say four or five men. 
 They were about the vessel, but the rest 
 were ordered to lie down ou deck or go 
 below. 
 
 Q, Was there any peculiarity that you 
 noticed about the rigging of this vessel, 
 the Jeff. Davis ? 
 
 A. Her sails were mostly hemp sails; 
 that was one peculiarity which led me to 
 suppose she was a foreign vessel. 
 
 Q. Explain that. 
 
 A. American vessels mostly have cotton 
 sails, by which you can tell them very dis- 
 tinctly wherever you see them at sea; they 
 are much whiter than hemp sails ; all 
 European vessels have hemp sails ; and 
 you can usually tell whether a vessel at sea 
 is an American or foreign vessel by the 
 sails, when you see nothing else. 
 
 Q. Then it is to some extent a badge of 
 nationality ? 
 
 A. You very seldom see a United States 
 vessel, particularly of that class, with hemp 
 sails. The Jeff. Davis had, and she was 
 rigged very much like a foreign vessel; 
 they asked me if the French flag and hemp 
 sails had deceived me, and I told them yes. 
 
 Q. Who asked you that? 
 
 A. The first lieutenant, Postell. He 
 said they tried to get her as much like a 
 French vessel as possible, before they left, 
 for the sake of deceiving our ships. 
 
 Q. At what distance would one on the 
 sea observe the guns of this brig? 
 
 A. I did not observe them until I was 
 within half a mile of her, as they were 
 kept covered up. Thinking she was a 
 merchant vessel, we did not suspect any- 
 thing until we were right underneath her 
 guns ; and the others told me it was the 
 same with them. 
 
 Q. How were the guns kept covered up ? 
 
 A. They had a large canvass covering 
 that they had painted and thrown over the 
 long swivel gun. The waist guns were also 
 covered up with canvass. 
 
 Q. Was the canvass painted black ? 
 
 A. I cannot say what color it was 
 painted. 
 
 Q. What was the color of the vessel ? 
 
 A. She was painted black, 
 
 Q. When was this covering removed ? 
 
 A. It was removed about the time they 
 wanted to fire the guns. 
 
 Q Did they fire a gun when they cap- 
 tured your ship ? 
 
 A. Yes, sir. 
 
 Q. From what gun, and in what direc- 
 tion, was it fired? 
 
 A. Frem the swivel gun . 
 
 Mr. Wharton. (To the witness ) Not at 
 the ship, but across the bow, to bring you 
 to, I suppose. 
 
 The Witness. We were running to the 
 eastward ; and the gun was fired so as to 
 make the ball cross alongside of us. 
 
 Mr. AsHTON. Was it not a blank car- 
 tridge ? 
 
 A. No, sir, a ball. 
 
 Q. Were Captain Devereux and the 
 mate of the Enchantress released with 
 you? 
 
 A, Yes, sir, on the ship Mary Goodell. 
 
 Q. What reason did the captain of the 
 Jeff". Davis give for the release of Captain 
 Devereux, and Mr. Page, and the rest of 
 you? 
 
 A. He did not give me any himself; I 
 had it from the other officers. The ship 
 drew too much water to allow her to be 
 got into a southern port, and her cargo 
 was not of much value, being mostly lum- 
 ber. 
 
 Q. What ship ? 
 
 A. The Mary Goodell. 
 
32 
 
 Q. Was she a large vessel? " 
 
 A. I should think she was about seven 
 hundred tons and drew eighteen feet of 
 water. They then had twenty-one prisoners 
 on board the JefF. Davis, and they did not 
 want any more then. Besides, they wanted 
 to reserve their crew for more valuable 
 prizes. 
 
 Q. Did they visit the Mary Goodell? 
 
 A. Yes, sir. 
 
 Q. How many went on board her ? 
 
 A. A large boat load — I cannot say 
 what number; some marines with cutlasses 
 and muekets. 
 
 Mr. Harrison. That was after the de- 
 fendant had left. I do not know that that 
 is evidence in this case. 
 
 Judge Grier. This is only part of the 
 history of the conduct of this vessel, to 
 show what her character was. So far as 
 that is concerned, it may properly be given 
 in evidence. 
 
 Question by Mr. Ashton. Were any of 
 the contents of the IMary Goodell removed 
 from her ? 
 
 Judge Grikr. That seems to be getting 
 beyond the transaction. 
 
 Mr. Harrison. I presume we are not to 
 be affected by any unlawful acts committed 
 by others. 
 
 Mr. AsHTON. I will not press that. Mr. 
 Fifield how did you get into Philadelphia? 
 
 The AViTNKss. Tlie ship Mary Goodell 
 went to Portland, and from there I came 
 to Philadelphia by the usual route. 
 
 Cross-examined by Mr. Wharton. 
 
 Q. You have been master of a vessel, 
 and know somewhat of the usages of the 
 sea? 
 
 A. Yes, sir, T have been long enough on 
 the sea to know something of it. 
 
 Q. Firing a shot across the bow of a 
 vessel is a sort of invitation to her to stop, 
 and not to go on ; is it not ordinarily so 
 understood ? 
 
 A. Yes, sir, a blank cartridge is gene- 
 rally so understood. 
 
 Mr. Wharton. A blank cartridge does 
 not pass in front of the bow. 
 
 Judge Cadwalader. The witness is 
 right ; the first shot is a blank. 
 
 The Witness. The first is a blank car- 
 tridse, next a ball. 
 
 Mr. Wharton. But I mean to say the 
 firing across the bow is of course not a 
 firing at the vessel. It is an intimation, a 
 very distinct one, to the vessel, that she is 
 not to go ahead. 
 
 The Witness. That is the intimation I 
 took. I expected that the next shot would 
 come into me. 
 
 Mr. Wharton. You have spoken of cer- 
 tain preparations made on the deck of the 
 vessel in regard to the pivot guu, which 
 
 you say was turned round so as to follow 
 the Enchantress. I understood you to say 
 that when she was about three miles off 
 you were ordered below. 
 
 A. Yes, sir. 
 
 Q. When you were below, you could 
 hardly see the preparations on deck, could 
 you? 
 
 A. We could see them at work on the 
 swivel. The cabin was not very low ; it 
 was half under deck, and half on deck. 
 
 Q,. I wanted to understand whether you 
 could actually see what was going on. 
 You say you could ? 
 
 A. Yes, sir. The cabin was half under 
 and half on deck, so that you could stand 
 and see what was going on. 
 
 Q. You have mentioned already several 
 officers who were on board the Jeff". Davis. 
 Just tell us, if you please, who the officers 
 were, what were their particular ranks, 
 how many officers there were, as near as 
 you can ? Give us the arrangement of the 
 ship's company. 
 
 A. Coxsetter was the commander; Pos- 
 tell was the first lieutenant. 
 
 Q. Did you ever hear Coxsetter called 
 captain ? 
 
 A. I do not know that I ever did. Per- 
 haps I did. I do not recollect. He was 
 considered captain. Whether he was 
 called " Captain Coxsetter" or not, I can- 
 not now say. 
 
 Q. Give us now the other officers? 
 
 A. Postell was first lieutenant, and there 
 was a man named Stewart second lieuten- 
 ant ; I think that was the capacity they 
 held there. Babcock was the purser and 
 assistant surgeon ; I think that was what 
 they called him. 
 
 Q. Did he hold both posts? 
 
 A. So I was told. 
 
 Q. Then there was a surgeon, I take it 
 for granted, besides the assistant? 
 
 A. Yes, sir, but his name I do not know. 
 
 Q. Can you give us either the names or 
 titles of any other officers on board ? 
 
 A. I cannot. 
 
 Q. You have spoken of marines, — who 
 were their officers? 
 
 A. There was a captain of marines. 
 
 Q. Did they seem to be equipped diff'er- 
 ently from the rest of the ship's company ? 
 
 A. Only when they were on watch at 
 night. Then they stood guard over the 
 cabin with muskets, and the captain of 
 marines had a pistol when he was on deck. 
 
 Q. Did they not seem to be a distinct 
 body of men from the rest of the crew ? 
 
 A. I should think probably they were. 
 I do not know what duty the marines did 
 outside of that. They cleaned the guns 
 and the small arms they had in the cabin. 
 
 Q. You have said that Smith, the pris- 
 
33 
 
 oner, was appointed or designated as prize 
 master, — just tell us if you please all that 
 passed on that subject. 
 
 A. I know nothing of what passed, ex- 
 cept that before the papers were fixed I 
 saw the captain and the purser in conver- 
 sation with Smith. There may have been 
 some others with them. That was a little 
 while bpfore he left. 
 
 Q. What " papers" do you refer to ? 
 
 A. I saw a letter handed to hiiu. 
 
 Q. By whom ? 
 
 A. I think Dr. Babcock, the purser. 
 
 Q. A sealed letter, or an open letter? 
 
 A. I do not know anything about that. 
 
 Q. Did you not hear any of the language 
 used? 
 
 A. Nothing whatever. 
 
 Q. You said in your examination in chief 
 that he was appointed prize master ? 
 
 A. I was told he was appointed prize 
 master. 
 
 Q. By whom were you told ? 
 
 A. I think by the purser. Dr. Babcock. 
 
 Q. Did he tell you so after Smith had 
 left, or at the time he left ? 
 
 A. After he left, I heard different per- 
 sons on board the Jeff. Davis speak about 
 him and his feelings. They wondered how 
 he must feel, and spoke of the risks he had 
 to run, &c. 
 
 Q. And they spoke of him on those oc- 
 casions as having been designated as prize 
 master ? 
 
 A. Yes, sir, as having charge of the 
 vessel. 
 
 Q. Then what you saw of the actual 
 occurrence of his being appointed prize 
 master was merely that he took a letter 
 and was pointed out and took some men 
 with him, I presume ? 
 
 A. Yes, sir. 
 
 Q. Did he select the men, or were they 
 selected for him ? 
 
 A . I do not know who selected the men. 
 
 Q. This you also saw from the cabin ? 
 
 A. We were on deck then. 
 
 Q. Then it was after you came up on 
 deck, and after the Enchantress was 
 boarded ? 
 
 A. Yes, sir ; as soon as she was boarded 
 we were allowed to go on deck. 
 
 Q. Did you hear any instructions given 
 to him at all ? 
 
 A. I did not. 
 
 Q. Did you know what instructions were 
 given? 
 
 A. I knew nothing of them. 
 
 Q. You do not know where he was to 
 take the Enchantress ? 
 
 A. No, sir. 
 
 Q. You do not know what he was to do 
 with her ? 
 
 A. No, sir ; I know nothing at all about it. 
 
 Q. You say you slept in the cabin, — had 
 you as good accommodations as the vessel 
 afforded ? 
 
 A. I suppose about the same as any one 
 on board. We all slept there together, 
 and the captain of marines slept there. 
 The captain and the purser had state 
 rooms. 
 
 Q. But the captain of marines and your- 
 self slept in the cabin ? 
 
 A. We slept in berths which were put 
 up in the cabin. 
 
 Q. What was your treatment generally ? 
 
 A. We had all we wanted to eat, but 
 mostly out of my own provisions. 
 
 Mr. Wharton. But you were allowed to 
 eat your own bread, which is not the case 
 with everybody. 
 
 The Witness, Yes, sir, we had all we 
 wanted in that way. 
 
 Q. You have stated that you were or- 
 dered below, when the vessel came within 
 a few miles of the Enchantress, — at other 
 times, had you not your liberty about the 
 vessel ? 
 
 A. We had. 
 
 By Mr. Harrison. 
 
 Q. Was not the shot of which you speak 
 as having been discharged by the Jeff. 
 Davis, discharged at such an angle as to 
 make it impossible for it to take effect 
 upon the John Welsh ? 
 
 A. I cannot say at what angle the ball 
 was shot. I heard the ball go by, whiz- 
 zing. 
 
 Q. How far ahead of the bow did it 
 pass ? 
 
 A. I did not see. I heard it, but did 
 not see it. 
 
 Q. Are you not sailor enough to know 
 that it passed sufficiently ahead of the bow 
 to make it impossible that it should take 
 effect ? 
 
 A. It might have hit the spars. 
 
 Mr. Wharton. That was the shot at the 
 John Welch, — not at the Enchantress, 
 
 The Witness. Yes, sir; I am positive 
 no shot was fired at the Enchantress, 
 
 Re-examined by Mr. Ashton. 
 
 Q. You have beeu a sailor for several 
 years ? 
 
 A. About sixteen years. 
 
 Q. You have come across naval vessels 
 of the United States frequently on the sea? 
 
 A. Yes, sir. 
 
 Q. Did you ever know a vessel of the 
 United States Navy fire first a shot to 
 bring a vessel to ? 
 
 A. No, sir; nor of any other navy. A 
 blank is always fired first. 
 
 Q. Was there any cargo on board the 
 Jeff. Davis? 
 
 A. None that I know of. I should think 
 not, as she was very light. 
 
34 
 
 Re-cross-examined by Mr. Wharton. 
 
 .Q. Did you ever know a vessel of the 
 United States V)ring a merchantman to. with- 
 out 6rino^ at all, ball or blank cartridge? 
 
 A. I do not know that I ever did. 
 
 Q. Then this was a singular instance in 
 the case of the Enchantress, of the Jeff. 
 Davis bringing her to without any firing? 
 
 A. Yes, sir. It was because she hove 
 to before there was any occasion to fire ; 
 but all the preparations were made. She 
 was so close that it was not necessary to 
 fire a shot to bring her to. 
 
 John L. Priest recalled, and examined 
 by Mr. Ashton. 
 
 Q. I omitted, yesterday, to ask you one 
 or two questions, that may or may not be 
 important. What was the gross value of 
 the cargo on board the Enchantress, in 
 round numbers? I do not want you to be 
 very particular. 
 
 A. I could hardly make an estimate ; 
 but I should judge, from the papers I have 
 since seen about the salvage cause, that 
 the cargo cost from seven to eight thou- 
 sand dollars. 
 
 Q. You enumerated, yesterday, a num- 
 ber of articles that were on board : what 
 were those seventy-five sacks of corn 
 worth ? 
 
 A. About $100, or a little over. 
 
 Q. What were those twenty-three thou- 
 sand feet of white pine boards worth ? 
 
 A. About $350. 
 
 Q. What were those fifty boxes of can- 
 dles worth? 
 
 A. About $6 a box. 
 
 Q. Then there were two hundred cov- 
 ered hams ; what were they worth ? 
 
 A. I cannot say exactly, but I should 
 think about eleven cents a pound. 
 
 Judge Grier. It is unnecessary to have 
 the particular value of everything. No 
 doubt they were valuable articles. 
 
 Judge Cadwalader. They were articles 
 acquired for the purpose of being sent for 
 sale. Of course, they have value. 
 
 Mr. AsHTON. I did not think this testi- 
 mony was absolutely necessary ; but I 
 wished to cover the ground fully. 
 
 Judge Cadwalader. I think you have 
 enough. 
 
 Mr. AsHTON (to the witness). Wm. H. 
 Greeley, of whom you spoke, was a mem- 
 ber of the firm of Greeley & Son, of 
 Boston ? 
 
 The Witness. Yes, sir. 
 
 Q. The goods were shipped in his name ? 
 
 A. Yes, sir. 
 
 Thomas Ackland called and sworn, and 
 examined by Mr. Ashton. 
 
 Q. Where do you live ? 
 
 A. la Philadelphia. 
 
 Q. What is your business ? 
 
 A. I go to sea, and have followed it for 
 twenty-one years for a living. 
 
 Q. In what vessel did you last sail ? 
 
 A. The John Welsh. 
 
 Q. What was your capacity on bo.ird 
 the John Welsh ? 
 
 A. First officer. 
 
 Q. Were you on board her at the time 
 of her capture by the Jeff. Davis ? 
 
 A. I was. 
 
 Q. Were you taken to the Jeff. Davis ? 
 
 A. I was. 
 
 Q. Were you on board the Jeff. Davis at 
 the time of the assault upon the Enchant- 
 ress ? 
 
 A. I was. 
 
 Q. What time in the day were you cap- 
 tured ? 
 
 A. As near as I could tell you, it was 
 between eight and nine o'clock in the 
 morning. 
 
 Q. On what day and at what time of the 
 day, was the assault upon the Enchantress 
 made? 
 
 A. About seven o'clock in the evening. 
 They got on board the brig about seven 
 o'clock in the evening. 
 
 Q. Then you were on board the Jeff. 
 Davis at the time of the assault and cap- 
 ture of the Enchantress? 
 
 A. Yes, sir. 
 
 Q. Be good enough to tell us briefly, and 
 in your own way, what vou saw on that 
 day. the 6th of July? 
 
 The Witness. What time do you wish 
 me to commence from ; the time of our 
 capture, or that of the Enchantress ? 
 
 Mr. AsHTON. From the time you first 
 saw the Enchantress. 
 
 A. The man at the mast head made a 
 
 sail about two o'clock in the afternoon, 
 
 and of course she drew nigher to her until 
 
 about four o'clock, somewhere toward 
 
 evening ; I cannot state the time exactly. 
 
 About seven o'clock they got on board of 
 
 us. Between these times, two o'clock in 
 
 the afternoon and seven o'clock in the 
 
 evening, they took a boat from the Jeff. 
 
 ! Davis, which was the John Welsh's boat, 
 
 ; and went on board the Enchantress, with 
 
 the first lieutenant, Mr. Postell. I believe 
 
 they had arms with them. 
 
 I Q. How many men ? 
 
 ! A. I cannot say ; but probably from 
 
 I eight to a dozen. 
 
 I Q. How did they get the John Welsh's 
 boat ? 
 
 A. They took it from the John AVelsh. 
 
 Q. Was it a large boat ? 
 
 A. A pretty good sized boat. 
 
 Q. A larger boat than any of the boats 
 of the Jeff. Davis, or smaller ? 
 
 A, Larger. 
 
35 
 
 Q. How do you know they were armed ? 
 A. I believe they used to conceal the 
 arms about them, because I saw them take 
 them from different places about them. 
 The second lieutenant'showed me where he 
 concealed his arms underneath his stocking, 
 in his shoe. His knife was in a place 
 made for it between his pants and drawers, 
 by the calf of his leg. I saw him take the 
 knife from there, and then he told me that 
 was where he carried it. 
 
 Q. Where did you see that ? 
 A. On board the Jeff, Davis. 
 Q. Prior to the capture of the Enchant- 
 ress? 
 
 A. I cannot say as to that. 
 Q. At what time did Captain Devereux 
 and the mate of the Enchantress come on 
 board the Jeff. Davis ? 
 
 A. Between seven and eight o'clock in 
 the evening. 
 
 Q. Were you ordered below when the 
 vessel came up ? 
 A. I was. 
 
 Q. At what time were you ordered 
 below? 
 
 A. Sometime before they came up to us ; 
 I should say they were four or five miles 
 off, when we were ordered below. 
 
 Q. And you were kept below until what 
 time ? 
 
 A. Until they had captured her, I 
 looked up through the skylight and saw 
 them haul down the French flag and hoist 
 what they called the Confederate flag; I 
 never saw that flag before in my life. 
 
 Q. And then you were allowed to go on 
 deck, after the capture? What do you 
 mean by after the capture ? after the 
 vessel sailed ? 
 
 A. No ; after they had taken charge of 
 her. 
 
 Q. After who had taken charge of her ? 
 the lieutenant? 
 
 A. Yes, sir ; and bis crew from the brig 
 Jeff. Davis. 
 
 Q. Did you see the lieutenant and his 
 crew return to the Jeff. Davis ? 
 A. Oh, yes. 
 
 Q. When did they return? 
 A. They returned with Captain Deve- 
 reux and Mr. Page, and, I think, Captain 
 Devereux's son. 
 
 Q. In whose charge was the vessel when 
 they returned ? 
 
 A. In the charge of the prize crew. 
 Q. Did you see the prize crew leave the 
 Jeff. Davis ? 
 
 A. Yes, sir. I saw the second lieuten- 
 ant, Mr. Stewart, make out the list ; I sat 
 by the side of him at the time, on board 
 the Jeff. Davis when he made out the list 
 for them to go. 
 
 Q. Do you recollect the names in laat 
 
 list?" , 
 
 A Yes sir; there sits a man whose 
 name was 'first on the list, [pointing to the 
 prisoner.] 
 
 Q. How many men went? 
 A. Five, with himself. 
 Q. Did they return to the Jeff. Davis ? 
 A. No, sir. . .1, X , 
 
 Q. What time in the evening was that i 
 A. Somewhere about seven o'clock; it 
 might have been before, it might have been 
 after. I cannot say exactly. 
 
 Q. Do you recognize William bmith as 
 that man ? 
 A Yes sir. 
 
 Q." Did you see him frequently on board 
 the Jeff. Davis while you were there ? 
 
 A. Of course I did. I was in his com- 
 pany all the time, sometimes near, some- 
 times not. We were always as near as the 
 business of the vessel allowed. 
 
 Q Give us a little notion of the charac- 
 ter of the armament of this vessel ? How 
 many guns had she. . 
 
 A. She had an eighteen pound pivot 
 gun that went around, worked any way. 
 amidships, and she had four other guns, 
 two on each side. 
 
 Q. Did you see any pistols ? 
 A She had also a rack down below in 
 her cabin of double barrelled guns. I can- 
 not say how many there were ; there might 
 be fifty for all I know, I should not say 
 there was much less than fifty. . 
 
 Q. The Enchantress and the Jett. Uavis 
 parted company about eight o'clock in the 
 evening ? 
 A- Yes sir. 
 
 Q.' That was the last you saw of the En- 
 chantress ? . 1 • -Dl -1 
 
 A. Yes, sir, until she arrived m Phila- 
 delphia. , , 1 • 
 Q. How did you get to Philadelphia ? 
 A. I came here in the ship Mary 
 Goodell. 
 Q. With your captain ? 
 A Yes, sir, with Captain Fifield. 
 q" And with Captain Devereux and Mr. 
 Page ? 
 
 A. Yes, sir. 
 • Cross-eicammefZ by Mr. Whartok. 
 
 Q I think you said it was the second 
 lieutenant that made out the list of the 
 prize crew ? 
 A. Yes, sir. 
 
 Q. He wrote their names down on a 
 piece of paper ? 
 
 A. Yes, sir, he wrote their names down. 
 Q.' Did he hand that paper to Smith ? 
 A. I do not know what he did with that 
 paper ; he went away from me then. 
 Q. With the list in his hand ? 
 
36 
 
 A. Yes, sir. 
 
 Q. Did you see Smith leave with the 
 men under him ? 
 
 A. Yes, sir, I saw him go away. 
 
 Q. How near were you to him while he 
 was making out this list and piclcing out 
 the prize crew ? 
 
 A. We were sitting side by side. 
 
 Q. Then you heard what he said to 
 Smith, I presume ? 
 
 A. No, he only picked the crew out him- 
 self. I saw him pick out the crew for the 
 other schooner, also. 
 
 Q. That I am not asking about; but just 
 this particular thing. What direction did 
 he give Smith ? 
 
 A. He did not give him any directions 
 that I heard. I only saw him make out 
 the list. 
 
 Q. Then you did not hear him or see 
 him direct Smith to go on board? 
 
 A. No, sir. 
 
 Q. How long afterwards did that occur? 
 
 The AV'iTNESs. After when ? 
 
 Mr. AViiARTO.v, After he made out the 
 list. 
 
 The Witness. Before Smith went on 
 board the vessel ? 
 
 Mr. Wharton. Yes, sir. 
 
 The WiTXEs.s. I do not know as to that. 
 It might be an hour or two hours. 
 
 Mr. Wharton. I thought it occurred 
 probably at the same moment, from the 
 manner you described it. 
 
 The Witness. While they were board- 
 ing, he made out the list of the prize crew 
 who were to go. 
 
 Q. Then they were selected beforehand, 
 and an hour or two afterwards they left? 
 
 A. Yes, sir. 
 
 Q. Then you were not with the second 
 lieutenant when he sent them on board ? 
 
 A. No, sir. 
 
 Q. Did you know where the Enchantress 
 was to be taken to ? 
 
 A. It would be impossible for me to tell 
 where they were going to. I cannot tell 
 you. I heard on board the vessel that they 
 intended to take her to some Southern 
 port, Charleston or Savannah. 
 
 Q. Do you know of any messages being 
 sent along with them, or letters, or any- 
 thing ? 
 
 A. No, sir. I saw papers sent 
 
 Q. What papers ? 
 
 A. I do not know what they were. 
 
 Q. What do you mean by " papers ?" 
 newspapers ? 
 
 A. No ; not newspapers, but some 
 papers that they had, that they took with 
 them. 
 
 Judge Cadwalader. You mean the 
 prize crew took certain papers with them ? 
 
 The Witness. Yes, sir. 
 
 Mr. Wharton. From whom were those 
 papers received by the prize crew ? 
 
 A. I do not know. They used to handle 
 the papers of every vessel they took, from 
 one to the other. I did not take particular 
 notice. 
 
 Q. But you know the fact that certain 
 papers were taken by the prize crew on 
 board the Knchantress ? 
 
 A. Yes, sir. 
 
 Q. Where did you sleep while you were 
 on board the Jeff. Davis ? 
 
 A. In various places. I slept in the 
 cabin, I slept in the hold, and I slept on 
 deck. 
 
 Q. According to the necessities of the 
 occasion ? 
 
 A. No, just as I chose. 
 
 Q. Then you had an option of sleeping 
 pretty much all about ? 
 
 A. I had a bunk in the cabin. It was 
 taken away from me, and I was told to 
 sleep in the hold ; and one night I slept on 
 deck. 
 
 Q. You got your meals regularly ? 
 
 A. Yes, sir. 
 
 Q. How many days were you there ? 
 
 A. From the 6th to the Uth of July. 
 
 Mr. AsHTON. What did you eat on board 
 the Jeff. Davis ? 
 
 The Witness. Our own provisions 
 principally — the provisions that were taken 
 from the different prizes. 
 
 Mr. Wharton. Do you happen to know 
 who was the captain of the Jeif. Davis? 
 
 A. Captain Coxsetter, I believe. 
 
 Q. Do you know the list of officers that 
 she had ? 
 
 A. I can tell you some. Postell was 
 first lieutenant, and Stewart second 
 lieutenant. 
 
 Q. Were there any other officers that 
 you know of? 
 
 A. There was a doctor; I forgot his 
 name. 
 
 q. Was it Babock ? 
 
 A. Yes, that was it, 
 
 il, Were there any other officers ? 
 
 A. They used to have petty officers,- 
 such as boatswain and stewards, but I do 
 not know their names. 
 
 Q. They had the usual petty officers on 
 board a vessel ? 
 
 A. Yes, sir ; they termed them such, 1 
 believe. 
 
 Q. Had they a sailing master ? 
 
 A. 1 do not know. 
 
 Q. AVho navigated the vessel ? 
 
 A. I do not know. I used to see all 
 hands at work in navigation. 
 
 Q. But you do not know who directed 
 her, whether it was the captain, first lieu- 
 tenant, or some other officer ? 
 
 A. I do not know. 
 
37 
 
 Q. Had the marines a captain or com- 
 mander? 
 
 A. Yes, sir ; there was a captain and a 
 lieutenant of marines onboard. 
 
 Mr. Harrison. Can you mention the 
 names of the five persons who you stated 
 •were put along with Smith, on board the 
 Enchantress, as a prize crew ? 
 
 A. I can give you the names, I think. 
 
 Mr. Wharton. When did you happen 
 to make that memorandum that you are 
 looking at? 
 
 The Witness. I have memorandums 
 from the time I was taken. 
 
 Mr. AVharton. Then it is contempo- 
 raneous history — very valuable of course. 
 
 The AViTNESs, (after consulting a memo- 
 randum book). The prize crew consisted 
 of Smith, Lane, Bradford or Radford, (I do 
 not know which it was,) and two others 
 whose names I do not recollect. 
 
 Mr. Harrison. AYere there five besides 
 the defendant, or five in all ? 
 
 The Witness. There were four besides 
 Smith, he made five. 
 
 Thomas B. Patterson called and af- 
 firmed, and examined by Mr. Ashton. 
 
 Q. You are deputy marshal of this dis- 
 trict ? 
 
 A. Yes, sir. 
 
 Q. How long have you been deputy 
 marshal ? 
 
 A. Since the first of May, I think. 
 
 Q. Do you recollect arresting Smith, the 
 prisoner at the bar ? 
 
 A. I do not recollect the name. I recol- 
 lect arresting five prisoners ; I think Smith 
 was one of them, 
 
 Q. Upon a warrant issued by whom ? 
 
 A. By Mr. Heazlitt, United States Com- 
 missioner. 
 
 Q. Did you make the arrest yourself per- 
 sonally ? 
 
 A. Yes, sir. 
 
 Q. AVhere was the arrest made ? 
 
 A. At the Navy Yard. I took them 
 from on board a vessel. 
 
 Q. AVhat vessel ? 
 
 A. It was the Albatross. 
 
 Q. Where did you find the prisoners ? 
 
 A. They were down below when I went 
 on board the vessel, and they were ordered 
 up by the commander of the vessel. 
 
 Q. AA''ere they in irons ? 
 
 A. They were in irons. 
 
 Q. To whom did you show your warrant 
 when you first went on board the vessel. 
 
 A. The commander. I told him I had a 
 warrant for the prisoners. 
 
 Q AVho pointed them out to you as the 
 prisoners ? 
 
 A. They were brought up and put into 
 carriages in irons. I did not disturb the 
 irons. 
 
 Q. Where did you take them ? 
 
 A. To Aloyamensing prison and lodged 
 them there. 
 
 Q. AAliere was the Albatross lying at 
 that time ? 
 
 A. Lying at one of the wharves of the 
 Navy Yard, right alongside the wharf? 
 
 Q. AVas she moored to the wharf? 
 
 A. Yes, sir. • 
 
 Q. Had you any conversation with the 
 captain of the Albatross in regard to them 
 in their presence ? 
 
 A. Not in the presence of the prisoners. 
 
 Q. Had you a conversation before they 
 were brought before you ? 
 
 A. No, sir. 
 Cross-examination hy Mr. AA'harton. 
 
 Q. You say you arrested these men, and 
 they were in irons ? 
 
 A. Yes, sir. 
 
 Q. Is that what you would say was an 
 ordinary arrest, to take a man who was al- 
 ready in irons and in the custody of some- 
 body else ? 
 
 A. I do not know. I took them just as 
 they were. 
 
 Q. Be kind enough to describe to the 
 jury the character of the irons ; how were 
 they fastened ? 
 
 A. I think they were ironed, hands and 
 feet. 
 
 Q. Describe the character of the irons, 
 or manacles, or whatever you call them ? 
 
 A. I think the irons on their wrists were 
 the ordinary cuffs with a bar ; and on their 
 feet they had a short chain, just so that 
 they could move about and walk. 
 
 Q. How was the chain fastened? To 
 either or both legs ? 
 
 A. To both legs. 
 
 Q. How fastened? 
 
 A. There was a band that went around 
 the ankle and then a chain connecting the 
 two bands. 
 
 Q. AA'hat was the weight of these irons ? 
 
 A. They were not very heavy. I do not 
 know what the weight was. They were 
 light. 
 
 Q. Have you got them ? 
 
 A. No, sir. 
 
 Q. AVhat has become of them ? 
 
 A. I sent them on board the vessel 
 again. 
 
 Q. You did not preserve them ? 
 
 A. No, sir. They belonged to the vessel. 
 
 Q. How did you know that ? 
 
 A. The captain told me so. He asked 
 me to send them back immediately. They 
 were sent back. 
 
 Q. AVhen you went on board the vessel 
 these men were down in the hold ? 
 
 A. Yes, sir. 
 
 Q. Did you go down there ? 
 
 A. No, sir. 
 
38 
 
 Q. You say they were ordered to be 
 brought up : were they able to walk ? 
 
 A. Yes, sir. The chain was long enough 
 to allow them to walk. They walked from 
 the vessel and got ashore. 
 
 Q. Do you know how long they had been 
 confined in the hold thus ironed ? 
 
 A. No, sir. I do not know anything 
 about that ? 
 
 Q. Where is the captain of the Alba- 
 tross ? Do you know ? 
 
 A. I do not know. 
 
 Q. How long ago was this? 
 
 A. 1 cannot tell you without referring 
 to the dates in the marshal's office. 
 
 Mr. Wharton. I suppose the warrant 
 is here on file. That would give the date. 
 
 The Witness. The warrant would give 
 the date ; but it is not here. I believe it 
 is down at the prison. 
 
 Q. AVhat is the name of the captain of 
 the Albatross ? 
 
 A. I do not recollect his name. 
 
 Q. He is an officer of the United States 
 Navy ? 
 
 A. Yes, sir. 
 
 Mr. AsuTON. CaptainPrentiss was cap- 
 tain of the Albatross at that time, and I 
 presume is now. 
 
 Mr. Wharton (to the witness.) Do you 
 know where the Albatross is now ? 
 
 A. 1 do not. 
 
 Q. Do you know any of the other officers 
 of the Albatross? 
 
 A. No, sir. 
 
 Q. How soon after her arrival, did you 
 go on board and receive these men ? 
 
 A. I think it was two or three days after 
 the arrival of the vessel. I am not certain 
 as to that. 
 
 Q. Who made the oath for the issuing of 
 the warrant ? 
 
 A. That I do not know. The oath, 
 though, was made here. 
 
 Mr. Wharton. It ought to be among 
 the records here. 
 
 Mr. Ashton. I will see where it is. I 
 presume Mr. Heazlitt has it. 
 
 Mr. Wharton (to the witness.) Was it { 
 necessary to lift the chain to enable the j 
 men to get into the carriage ? i 
 
 A. It was necessary to lift them into the 
 the carriage ; but they walked freely. 
 
 Q. What was the length of the chain ? 
 
 A. About twelve inches, perhaps a little i 
 longer. I did not take very particular j 
 notice of the length. They could move ! 
 about freely, though. ■ 
 
 Q. Do you know whether the Albatross 
 brought along with her any papers that 
 were taken with these men ? 
 
 A. I do not. 
 
 Q. You do not know whether the cap- 
 
 tain of the Albatross had possession of 
 papers belonging to them ? 
 
 Q. I do not know anything about that. 
 I merely made the arrest. 
 
 Charles W. Page recalled and ex- 
 amined by Mr. Ashton. 
 
 Q. Do you know where the i^nchantress 
 is at present. 
 
 A. I believe she is on her way from St. 
 Jago to some Northern port. 
 
 Q. Were you in Philadelphia when she 
 sailed from this port ? 
 
 A. I was. 
 
 Q. When did she sail from Philadelphia ? 
 
 A. I think it was the 22 nd or 2ord of 
 August, I cannot state positively. 
 
 Q. Were you present when she sailed ? 
 
 A. Yes, sir. 
 
 il- Did she go down the river ? 
 
 A. Yes, sir. 
 
 Cross-exammed by Mr. Wharton. 
 
 Q. You say the Enchantress sailed from 
 this port on the 22d of August for some 
 foreign place. Were you here at the 
 time '! 
 
 A. I was. 
 
 Q. How did she get here: was she 
 brought up by the Albatross ? 
 
 A. That is more than I can tell you. 
 
 Q. How long had she been here when 
 you knew she was here ? 
 
 A. I cannot tell. 
 
 (}. Then how do you happen to know 
 that she sailed from here just on the 22nd 
 of August, and know nothing else about 
 her ? 
 
 A. I was telegraphed to at the place 
 where I belong to, to come on here and go 
 in the vessel. 
 
 Q. When you came here you found her 
 here ? 
 
 A. Yes, sir. 
 
 Q. You do not know that she was 
 brought here by the Albatross ? 
 
 A. I cannot swear to that. I have read 
 that ; that is all I know about it. 
 
 Q. You had not been here at all before 
 that ? 
 
 A. I had not. 
 
 Mr. Wharton. Of course, that accounts 
 for you not knowing what occurred in the 
 interval. 
 
 Mr. Ashton. Did you see the log of the 
 Enchantress when she sailed. 
 
 The Witness. The log was on board. 
 
 Mr. Ashton. What log ? 
 
 'J'he Witness. The log book that was 
 originally on the Enchantress. 
 
 Mr. Ashton. I now offer in evidence 
 the Appendix to the United States Statutes 
 at Large for the 37th Congress, 1st Session, 
 containing the various proclamations of the 
 President of the United States in relation 
 to the rebellion. 
 
39 
 
 Mr. Wharton. Certainly. 
 
 Mr. AsHTON. We rest here for the 
 present. 
 
 Mr. Wharton. I should like to have 
 the date of the affidavit from the warrant, 
 as part of the case of the United States. 
 A witness was on the stand, who, by refer- 
 ence to a document in court, could fix the 
 date. Mr. Patterson said he could not 
 speak of the date without reference to the 
 warrant. 
 
 Judge Cadwalader. Is your sole pur- 
 pose to get the date ? 
 
 Mr. Wharton. Not my sole purpose. 
 It is to get the date and also see whose 
 affidavit it was, and perhaps it may lead to 
 an inquiry why that person is not here. I 
 do not know who made the affidavit. 
 
 Mr. AsHTON. Nor do I. I know that 
 the arrest was upon an affidavit. Whose 
 affidavit it was, I do not know. Mr. Whar- 
 ton can prove that as well as we can. 
 
 Judge Grier. Can that be material in 
 any possible point of view ? 
 
 Mr. Ashton. I do not see how it can 
 be. 
 
 Judge Grier. I suppose if that paper 
 is found at any time, it will be brought 
 here and handed to the counsel. 
 
 Mr. Wharton. That will satisfy us. 
 
 Mk. O'Neill opened the case for the de- 
 fence, as follows : 
 
 With submission to your Honors, Gentle- 
 men of the jury, it is my part in this case to 
 lay before you the answer of this prisoner, to 
 the very grave and serious charge of which 
 he stands indicted ; and in doing so, I shall 
 not prolong this trial by any lengthened open- 
 ing, but shall briefly state to you the facts 
 upon which we shall rely, in asking you here- 
 after for a verdict of not guilty. 
 
 As the learned Gentleman for the Govern- 
 ment has told you, this prisoner stands indicted 
 for the crime of piracy. The definition of 
 that offence you learned as the case, on the 
 part of the Government, was opened. We 
 shall assume it for the purposes of this case, 
 and shall hereafter contend before you, that 
 the facts, submitted on the part of the prose- 
 cution as well as those to be submitted on the 
 part of the defence, remove the case of this 
 prisoner outside the scope and terms of the 
 crime, as defined by the District Attorne3\ 
 
 The learned gentleman has told you the 
 ingredieutsof the offence, and those requisites 
 of proof to be established, on the part of the 
 Government. I need not tell you that they 
 must be satisfactorily made out, and that fail- 
 ing in any essential particular, it will be our 
 duty to ask, and yours to render, a verdict 
 of not guilty. Piracy, as you have heard, 
 and as we assume it to be, is any violent 
 depredation on the high seas with a felonious 
 intent. To this definition, gentlemen, it will 
 be your province to apply the facts of the case. 
 
 There must be a violent depredation coupled 
 with a felonious intent. I need not tell you, 
 gentlemen, the meaning of a felonious intent. 
 The world knows, — the desire that prompts the 
 thief to plunder, and impels the highwayman 
 to strip his victim. With him there is no dis- 
 tinction of person, age, or sex. The strong, 
 the weak, the old, the young, are all alike to 
 him : his desire of theft hurries him on to 
 acts of plunder, and discrimination is alone 
 made, in the riches of the wayfarer. So, 
 gentlemen, it is with the pirate. He roams 
 the sea, the enemy of this wide world's family ; 
 nations, to him, are alike ; flags and national 
 ensigns, to him, have no character ; his heart 
 loves and seeks but plunder, and his strong 
 hand takes it away. Such, gentlemen, in our 
 idea, is the pirate, and such to you must ap- 
 pear the prisoner, before you can convict him 
 as he stands charged. 
 
 We shall, gentlemen, contend before you 
 that the prisoner had not and did not in any 
 way, share, at the time of this occurrence, 
 the animus furandi, as the law terms it, that 
 guilty intent, that disposition for theft which 
 is the very heart of this indictment, and in 
 the absence of which he must be acquitted. 
 To this part of the case, though not altogether, 
 our defence shall be directed. 
 
 You know, of course, the diEBculties out of 
 which this case springs, and I do trust that 
 in laying before you the defence of the pri- 
 soner, we shall not scandalize your patriotism, 
 by establishing, as a fact in this cause, the 
 present political state of the South. Un- 
 fortunate and wrong, deeply wrong, as that 
 position may be, we shall have, though con- 
 demning and deploring it as intensely as j'ou, 
 to contend that, in this issue, and in this 
 the prisoner's hour of peril, it must be his 
 shield and protection. As a necessary part of 
 ourcase, we shall prove to you, gentlemen, that 
 there exists such a thing as a Southern Confed- 
 eracy ; that there is South a government in fact, 
 issuing letters of marque, and that they were 
 duly granted to the command under which 
 this prisoner served, and in obedience to which 
 he had been engaged when arrested on the 
 the high seas, and brought to Hampton Roads. 
 
 You will ask me what relation has this with 
 the case before you. I shall tell you, gentle- 
 men. The prisoner was a citizen of the South ; 
 he owed allegiance to his State, and that alle- 
 giance was to be promptly rendered or penal- 
 ties almost as heavy as the one that now 
 hangs over him, were soon to follow. He was 
 forced to serve his State in a military or naval 
 capacity ; to enlist as a soldier on land, or go 
 on board as a mariner. There was no volition 
 left for him, no aid to help his loyalty ; the 
 protecting arm of the Federal Government 
 reached not him, or his home ; and to delay 
 obedience to the laws of his own State, would 
 be but to have his property sequestered, him- 
 self imprisoned, or banished from those he 
 loved, and who looked to him for aid and 
 protection. Being forced to serve, he went 
 on board the Jeff. Davis, for he was cradled 
 
40 
 
 on the sea, and followed its life, from his 
 earliest childhood, preferring this service as 
 more consonant with his habits and education. 
 Whilst thus, gentlemen, yielding forced obe- 
 dience, whilst thus acting under the order, 
 command, and authority of the South, he was 
 taken by the Albatross. 
 
 Gentlemen, is he the pirate, the hostis 
 humani generis, who roamed the sea without 
 flag or nation, ready to and willing to strip 
 the first victim that might cross his way? Is 
 he the public robber on the sea, who draws his 
 knife as he meets his victim, and says "yoiir 
 property or your life " irrespective of person, 
 age, or nation? No, gentlemen, the mind that 
 prompts the pirate, — and you know the mean- 
 ing of the term, — never urged him to the act 
 for which he stands indicted. He must be 
 proved as having this intent, ere he be found 
 guilty. You may look upon him as having 
 erred in judgment. Be it so. That error is 
 not indictable, nor has indiscretion ever had 
 a place in the calendar of crime. To be 
 amenable to this tribunal, the prisoner must 
 have liad freedom of thought to reason, free- 
 dom of judgment to decide, and freedom of 
 will to act in accordance with his own decree. 
 The heart must err and show that error in 
 some act, ere this law of nations seeks its 
 vengeance at your hands. 
 
 If this prisoner has acted with an honest 
 confidence in this commission of the South, 
 as we shall contend he has, or if forced to 
 act he went on board this vessel, — and this the 
 facts will show, — he must go hence untouched 
 as their Honors will tell you. If owing al- 
 legiance to the South, and that allegiance was 
 to be rendered in military or naval service, 
 and this prisoner being forced to one or the 
 other, assumed as more congenial to his 
 habits, I might say his cradle, the duties of 
 the latter, you cannot, gentlemen, under the 
 laws of your country, convict him. He is 
 not the pirate whom the laws would punish 
 with death, because his heart is free of the 
 malice whicli gives the crime its infamy and 
 its punishment. 
 
 We shall show you, gentlemen, that the life 
 of the prisoner has been such as to repudiate 
 the offence charged. The history of himself 
 and his little home shall be leaf after leaf un- 
 folded, yes, from the moment when, thirty 
 years ago, he sought the sea as an humble 
 pilot, to this very hour when he stands 
 indicted of piracy, on the very waters where 
 his reputation was made, and his name re- 
 spected. After we shall have done this, gen- 
 tlemen, we shall call on you to say that he is 
 not the public enemy who went on board this 
 vessel, to plunder indiscriminately, the 
 Frenchman, the Englishman, or any other 
 citizen of the world; but that forced there, he 
 acted under a compelling and inexecrable au- 
 thority, which must now be his defence, and 
 plead his excuse. 
 
 The different proclamations of the Presi- 
 dent, as well as those of Mr. Jeff"erson Davis, 
 will be laid before you, and fully will you hear 
 
 of the present condition of the South. Want 
 of jurisdiction in this court to try this alleged 
 offence will also, gentlemen, be urged before 
 you and their Honors. 
 
 I believe I have now opened the case of the 
 defence as advised, and I shall leave it to be 
 hereafter discussed by my learned colleagues, 
 who are, and I hoj^e with success, to argue it 
 before you. 
 
 Mr. Harrison. Before calling any wit" 
 nesses, we propose, if your Honors please 
 to present as evidence in this case, because 
 they are matters of public notoriety and 
 part of the history of the country, the Con- 
 stitution, proclamations, and laws, and 
 various proceedings of what is called the 
 Southern Confederacy, as contained inthes 
 three volumes of a book published in the 
 City of New York, and entitled " Moore's 
 Rebellion Record." 
 
 Mr. AsHTON. For what purpose ? 
 
 Mr. Harrison. To show that there was 
 such a Constitution, and that there were 
 such laws, proclamations, and proceedings 
 as they purport to be. I do not present 
 them as evidence of the authority of the 
 Southern Confederacy to make or to issue 
 any such laws, proclamations, and Consti- 
 tution, but simply as part of the res gestce 
 of this case to go before the jury and 
 before your Honors so as to permit us to 
 be heard in regard to them. 
 
 Mr. AVhartox. For the purpose of 
 showing the existence of a government de 
 facto, claiming to be such and to administer 
 justice, and to regulate those persons actu- 
 ally within its jurisdiction, whether rightful 
 or wrongful that jurisdiction happens to be. 
 
 Mr. Harrison. And to show the quo 
 aiumo with which this act was done. 
 
 Mr. Wharton. Your Honors are no 
 doubt aware, that, there are consequences 
 resulting from the facts, if the evidence is 
 admitted, which it is unnecessary now to 
 discuss, but, which will be discussed in an 
 after stage of the cause. "VVe are simply 
 stating now the points of fact that we de- 
 sire to prove and the purpose of laying 
 those facts before the court and jury. 
 
 Mr. Harrison, I stated to your Honors 
 the day before yesterday, that I had made 
 every possible effort to obtain that evidence 
 in an authentic shape ; but, owing to the 
 extreme difficulty, indeed, I may say, the im- 
 possibilty of postal communication with the 
 only source from which that information 
 could be obtained, we were compelled to 
 resort to this as the only possible evidence 
 of these matters within our reach. 
 
 Judge Grier. Do the gentlemen repre- 
 senting the government object ? 
 
 Mr. AsiiTON. Yes, sir, we object. 
 
 Judge Grier. On what grounds? 
 
 Mr. AsHTON. On two grounds; first. 
 
41 
 
 that there is no evidence that this book 
 contains correct copies of these documents ; 
 second, that it is not pertinent to the issue, 
 because it would not either excuse or jus- 
 tify the acts proved to have been done by 
 the defendant. 
 
 Judge Grikr. Suppose it is all the ex- 
 cuse or justification they have g-ot, have 
 they not a right to show it and have the 
 court pass upon it ? 
 
 Mr. AsHTON. I merely make the ob- 
 jection, and state the grounds on which it 
 rests, and ask your Honors to pass upon it. 
 
 Judge (tRIER. You want us to decide 
 what may l)e the grave question of the cause, 
 on a mere point as to the admission of testi- 
 mony. J am inclined to admit the testi- 
 mony if it is all relevant to the defence. 
 Whether that defence is a good one or not, 
 is to be considered afterwards. 
 
 Mr. Kellev. May it please your Honors, 
 as 1 understand the ofl'er now, it is to ])ut 
 in a certain book called -'The Rebelliou 
 Kecord," which, from my general recollec- 
 tion contains a large amount of poetry. 
 
 Judge Oauwai,adkr. 1 do not under- 
 stand the offer in that way, but it is to 
 submit particular parts of the book. 
 
 Mr. Wharton. AVe propose to offer 
 specific parts. The poetry we leave to the 
 other side. 
 
 Mr. Kelley. We would rather go to a 
 purer fountain, even for that. 
 
 Judge Grier. 1 suppose it is proposed 
 to give historical evidence of historical facts. 
 
 Mr. Wharton. 'J'hat is it; and it hap- 
 pens to be found in a particular book. It 
 may be damaged by intercourse with 
 poetry, we do not know. We only offer 
 what purports to be official documents, — 
 as official as anything from such a source 
 can be. We do not offer the book in the 
 mass, but merely as containing a list of 
 those public documents, which we can best 
 reach m this form — no better for being in 
 the book, perhaps no worse. 
 
 Mr. Harrison. If there is any other 
 and more authentic publication of these 
 facts, we shall accept it from the learned 
 counsel on the other side. 
 
 Judge Cadwalader. Whatever docu- 
 ments are offered, I think ought to be par- 
 ticularly indicated and read We cannot 
 consider such publications as this in a 
 lump. Or, if counsel do not wish the 
 trouble of reading them aloud, the page 
 and line may be indicated, so that the 
 Court may examine the various documents. 
 We cannot understand a book of that sort 
 to be in evidence, without the parts which 
 counsel desire to consider being particu- 
 larized. It would be inconvenient to both 
 sides. 
 
 Mr. Harrison. I want first to present 
 
 4 
 
 I the Constitution of the Southern Con. 
 federacy, and the Secession Ordinances of 
 
 ! the Southern States. 
 
 j Judge Grier. 'I'he offer is to show the 
 Constitution of the so-called Southern 
 
 I Confederacy, and the Secession Acts of the 
 different States. 
 
 [ Mr. Harrison. Yes, sir. 
 
 I Judge Grikr. I am disposed to admit 
 it. You cannot get absolutely authentic 
 
 I copies of those documents. They are re- 
 garded as historical facts, and you must 
 take the best historical evidence you can 
 get. Indeed, they are referred to in the 
 
 j President's proclamation already produced 
 by the prosecution. It is now proposed to 
 
 ! offer them as historical facts. We never 
 
 I decide the value of evidence on such a 
 
 I point. If it tends to prove the defence, 
 
 I (whether that defence be good or bad,) we 
 
 I think the testimony should be received. 
 We should prefer to have authentic copies 
 of these documents, properly certified ; but 
 that being impossible, and the facts being 
 historically true, there ought to be some 
 way of getting at them. I do not know 
 what effect they may have. We shall have 
 to consider that after the documents are 
 before us. But, as the case now stands, I 
 think this offer ought to be admitted. 
 
 Mr. AsHTON. My objection did not ap- 
 ply to the form in which the documents 
 are, but to the documents themselves. I 
 think if those documents themselves were 
 here properly certified, they would not be 
 evidence to justify the crime. 
 
 Judge Grie^.. That question is not de- 
 cided. A man's defence ought to be the 
 best he can make. If the testimony tends 
 to prove it, it ought to be received ; and 
 then, whether that can be a justification or 
 not is afterwards the question of the case 
 to be decided ; but you must have the case 
 before you, before you can decide it. 
 
 Mr. AsHTON It was decided in Hutch- 
 ing's case tried in the Circuit Court of the 
 United States, before Chief Justice Mar- 
 shall at Richmond, in ISIT, (1 Wheeler's 
 Criminal Cases. .543,) that on a trial for 
 piracy, a commission as a privateer from a 
 government not recognized by the United 
 States, cannot be received in evidence as a 
 valid commission, but only as a paper found 
 on board the vessel, and cannot be received 
 to justify piratical acts. 
 
 Judge Grier. You can find hundreds 
 of cases, both civil and criminal, where the 
 essence of the case has been decided on the 
 admission of testimonj'. I only say, as a 
 matter personal to myself, that I never do 
 it. If the testimony offered is proof of the 
 defence urged, I always admit it, and de- 
 cide on it when the wholecase is presented. 
 1 know you will find hundreds of cases to 
 
42 
 
 the contrary. I do not act on authority 
 when I so decide, but on my own particular 
 method of doing business, which I think is 
 just and right. 
 
 Mr. AsHTON. My impression was that the 
 authorities were in a different direction, 
 that it was first to be seen whether the 
 defence would be a good defence, before 
 testimony would be admitted. 
 
 Mr. Wharton. I will give yoar Honors 
 some documents by date and specific refer- 
 ence, that we offer ; first, the proclamation 
 of President Lincoln, of April 15, 1861, to 
 be found on page 301 of " Upton's Mari- 
 time Warfare and Prize." 
 
 Judge Cadwalader. Excuse me for sug- 
 gesting that you have that in a more au- 
 thentic form. 
 
 Mr. Wharton. I know the District 
 Attorney has offered it, I merely allude 
 to it now in connection with other docu- 
 ments in the same book. We next offer 
 the proclamation of Jeflerson Davis, dated 
 April 17th, 1861, which is the proclama- 
 tion under which these letters of marque 
 and reprisal were issued. That is to be 
 found on page 302 of Upton's Work. That 
 was followed two days afterwards by a se- 
 cond proclamation of the President of the 
 United States, dated April 19th, 1861. 
 Then fallowed the proclamation of Presi- 
 dent Lincoln of April 27th ; and then the 
 proclamation of Comodore Pendergast, of 
 April 30th. 
 
 Judge Cadwalader. Notification, you 
 had better call that. 
 
 Mr. Wharton. It is a notice of the 
 blockade by Commodore Pendergast on the 
 30th of April, referring to the President's 
 proclamation of the 27th, and therefore 
 properly a notification, undoubtedly. Then, 
 next in order is the proclamation of Presi- 
 dent Lincoln of the 3d of May. Next, is 
 the proclamation of Queen Victoria. We 
 give that in evidence to show the state of 
 hostilities in the apprehension of the civil- 
 ized powers of the world, as existing be- 
 tween the so-called Confederate States of 
 America and the United States of America. 
 It is to be found at page 3U4 of Upton. 
 The date is the 14th of May, the District 
 Attorney tells me. Then 1 offer in evi- 
 dence, simply as proof of the facts 1 have 
 just mentioned and other facts connected 
 with the subject, Twiss' Law of Nations, 
 the London edition, published in the present 
 year. 
 
 Judge Cadwalader. Would you not pre- 
 fer reading that as authority in the course 
 of the argument ? 
 
 Mr. Wharton. AVe offer it as historical 
 evidence of a state of facts existing in this 
 country. Your Honors will see how it 
 bears on the case as part of its general 
 
 complexion, showing the manner in which 
 the state of things in this country is viewed 
 by other nations. On pages 56 and 57 of 
 Twiss' Work — I am now merely making an 
 offer and describing what the ofi'er is— will 
 be found a historical statement of the oc- 
 currences in this country, and the dates of 
 the different secession ordinances of the 
 States, and of the Constitution of the so- 
 called Confederate States. The provisions 
 of these ordinances and this constitution 
 are historically mentioned and treated in 
 this book, and the facts alluded to as ex- 
 isting facts in the history of the world. 
 
 Judge Grier. You may offer that book 
 as the best evidence you can get of the 
 dates of certain proclamations and certain 
 ordinances of these men ; but we cannot 
 receive as authority his opinion of the facts 
 or the opinion of people in Europe who do 
 not care a fig about the matter. 
 
 Mr. AsHTON. If I remember Twiss's book 
 aright, it announces the fact that certain 
 secession ordinances were passed at certain 
 times. 
 
 Judge Crier. We all know the fact that 
 they were passed. 
 
 Mr. Wharton. The secession ordinance 
 of South Carolina is dated December 20, 
 1860. Then the Constitution of the so- 
 called Confederate States of America for 
 their provisional government, is dated Feb- 
 ruary 8, 1861. Then, 1 offer this book as 
 proof of the fact, which perhaps could only 
 be proved historically in some such way, 
 that Mr. Jefferson Davis, whose proclama- 
 tion 1 have put in evidence, was inaugu- 
 rated as President of the so-called Southern 
 Confederacy on the 18th of February, 1861 
 — prior to the date of the proclamation 
 that 1 have given in evidence ; I think the 
 locality was Montgomery, Alabama. 
 
 Mr. Kelley. We agree that that book 
 and the " Rebellion Record" may fix the 
 date of the various secession ordinances. 
 
 Mr. Harrison. If your Honors please, 
 there are sundry proclamations which were 
 issued by the Southern Confederacy after 
 its formation, and some which were issued 
 by the various States composing that Con- 
 federacy, from time to time, which I desire 
 to offer. If your Honors insist on our 
 giving you a note of these documents regu- 
 larly, we must ask a little time in order to 
 enable us to ransack this " record" and fur- 
 nish the dates. It is proper for me to state 
 that that would have been done, and I 
 would not stand here now ottering this evi- 
 dence in this wholesale manner, but that I 
 was under the impression that this '• record" 
 would be considered as in evidence, to be 
 taken up, and referred to, and commented 
 on by counsel on both sides, in part or in 
 whole as might be deemed necessary. 
 
41 
 
 Judge Cadwalader. But you do not now 
 ask to put it on that footing. You ask to 
 put it in as evidence. It is very likely that, 
 if nothing had been said on the subject, the 
 counsel on both sides might have referred 
 to this as matter of public notoriety and 
 conceded all that you ask ; but you desire, 
 with prudent caution, to have the matter on 
 which you rely particularly cited. It is to 
 promote your own wishes, Mr. Harrison, 
 that if you desire that, you must make your 
 offer particular. 
 
 Mr. Kkllky. I think that the opening of 
 my learned brother (Mr. Ashton,) exhib- 
 ited just such a desire on our part, and I 
 tried to make my friend on the other side 
 understand that such was our desire. 
 
 Judge Grikr. Counsel may refer histori- 
 cally to any book that shows the date when 
 particular acts were done. 
 
 Mr. Kkllky. Originally, we did not feel 
 disposed to file an agreement that that 
 might be done, and we do not now feel dis- 
 posed to admit that that which is not legal 
 evidence should be admitted ; but we were 
 disposed to take the great facts before the 
 country from the best sources we could get 
 them. I have, myself, relied largely upon 
 this very " Rebellion Record" which is be- 
 fore us. Twiss's book appears to have 
 been compiled with great care — I mean as 
 to its facts, not as to its theories of law. 
 As to its facts, it seems to have the dates 
 accurately. 
 
 Mr. Wharton. I take it that where you 
 refer in the course of a case historically to 
 historical facts as bearing on the case, you 
 can only refer to them properly as matters 
 of evidence bearing on the case ; and as 
 there seemed to be a little misapprehension 
 between the other gentlemen in this case, 
 (in which I was not a partaker at all.) I 
 thought I would put our proposition in a 
 formal shape by the offer of the evidence 
 which has been received ; and it seems to 
 me to be enough to fill up the general out- 
 line of the case, and then the other docu- 
 ments which are subsidiary — the acts of 
 the ditfereut States, the warlike proclama- 
 tions, <fcc. — we may perhaps leave for refer- 
 ence as we go along. 
 
 Judge Grikr. They are matters of very 
 little importance. You have the great 
 facts. 
 
 M r. Wharton. We have the great fact 
 of a government de facto in the South, 
 and especially the proclamation authorizing 
 these letters of marque and reprisal ; and 
 as this was a charge of piracy, that procla- 
 mation seemed to me to be the great docu- 
 ment in the case. 
 
 Judge Grikr. Certainly enough to raise 
 your defence. 
 
 Mr. Wharton. Enough to raise the ques- 
 
 tion whether this man is or is not a pirate 
 or robber. 
 
 Mr. Harrison. I am very sorry to be 
 under the necessity of troubling your Hon- 
 ors again ; but I want to know, and with 
 the permission of your Honors, I intend to 
 know, how I shall stand when I come to 
 sum up for the defence. I desire to know 
 whether, under the view announced by your 
 Honors now, I shall be at liberty to com- 
 ment on the sequestration and confiscanon 
 and militia laws of the Southern Con- 
 federacy as I shall find them laid down in 
 this " Rebellion Record." If I cannot 
 have that permission without specially re- 
 ferring to them now, I ask to be allowed a 
 few moments until I can specify such por- 
 tions of this book as I desire to refer to. 
 I do not intend to be met again, as I have 
 been met to day, with objections that I did 
 not anticipate. 
 
 Judge Cadwalader. I do not think you 
 have met with any embarrassment. 
 
 Mr. Harrison. Certainly not on the part 
 of your Honors. 
 
 Judge Cadvvaladrr. Nor any from 
 counsel that need cause you any difficulty. 
 Although it would have been more conve- 
 nient if these things had been prepared 
 beforehand, it is perfectly agreeable to the 
 Court that you should sit down now and 
 take all the time you want to do what you 
 suggest. 
 
 Mr. Harrison. I will select the docu-, 
 ments which I propose to offer. 
 
 Judge Cadwalader. If it is preferred 
 the gentlemen can defer this part of the 
 case until to-morrow morning. 
 
 Mr. Harrison. That will be very satis- 
 factory. 
 
 Judge Cadwalader. In the mean time 
 you can go on with your oral testimony. 
 
 Edward Rochford called and sworn, 
 and examined by Mr. Harrison. 
 
 Q. Where were you born ? 
 
 A. In England. 
 
 Q. In what State were you living when 
 you joined the service of the Southern 
 Confederacy ? 
 
 A. Georgia. 
 
 Mr. AsHTON. Excuse me for interpos- 
 ing ; but it is proper for me to state to the 
 Court that this is one of the defendants 
 who have been indicted for the same crime 
 in another bill. 
 
 Judge Cadwalader. Mr. Rochford, 
 you will understand that you are not bound 
 to answer any questions which may tend 
 in any way to criminate yourself, as it is 
 said you are also under charges. You un- 
 derstand that what you answer will be of 
 your own free will, and you will not injure 
 yourself by being silent. If you choose 
 
44 
 
 not to answer there is no unfavorable in- ' 
 ference against you. Do you understand me? 
 
 The Witness. Yes, sir. 
 
 Mr. Harrison. I am counsel for Mr. 
 Rochford, and would, therefore, hardly ask 
 him a question in this case that would em- 
 barrass his defence. I am very much 
 obliged to the Government, though, for its 
 interposition. [To the witness.] Do you 
 know of what State the defendant, William 
 Smith was a resident ? 
 
 The Witness. He lived in Savannah, 
 Georgia. 
 
 Q. Has he, or has he not been a resident 
 of Savannah, Georgia, for several years ? 
 
 A. Yes, sir. He has been a branch 
 pilot there. I knew him to pilot in several 
 vessels whilst I remained there. I saw him 
 on board vessels. I was going to Europe 
 in the summer and coming back in the f;ill, 
 
 Q. He was a resident of Savannah at the 
 time and before the commencement of the 
 difficulties between Georgia and the Gov- 
 ernment of the United States? 
 
 A. Yes, sir. 
 
 Q. Do you know that fact ? 
 
 A. Yes, sir. 
 
 Q. Are you acquainted with the prison- 
 er's family ? 
 
 A. I was acquainted with both his 
 brothers-in-law and a brother of his. 
 
 Q. Do you not know that he is a married 
 man, with a family ? 
 , A. Yes, sir. 
 
 Mr. Kelley. One moment. I do not 
 see the pertinency of this kind of exami- 
 nation. 
 
 Mr. Harrison. We can argue that 
 hereafter. 
 
 Judge Grier. I suppose it does not 
 make any difference whether he is mar- 
 ried or not ; but if the gentleman thinks it 
 of any importance, let him ask it. 
 
 Mr. Harrison. It may be important as 
 showing that he had reasons for not desir- 
 ing to submit to the confiscation or seques- 
 tration of his property. [To the witness.] 
 Did you see Smith on board the Jeff. 
 Davis ? 
 
 The Witness. Yes, sir. 
 
 Q. Who was the captain of the Jeff. 
 Davis ? 
 
 A. Coxsettcr. 
 
 (I. State if you ever saw or heard the 
 letters of marque and reprisal, or what 
 purported to be letters of marque and re- 
 prisal, read to the crew of the Jeff. Davis ? 
 
 A. Yes, sir. T saw them and heard 
 them read by the purser, Mr. Babcock. 
 
 il- State when that occurred and in what 
 way it was done ? 
 
 A. On the I'ith of June, Captain Cox- 
 setter called all hands aft. We were lying 
 in the harbor of Charleston. The purser 
 
 and the captain stood together and said 
 they were letters of marque issued by Pre- 
 sident Davis, of the Southern Confederacy. 
 He read them. 
 
 Q. Did this letter purport to give an 
 authority to the Jeff. Davis to make war 
 upon the Government of the United States ? 
 
 Mr. Ashton. I object. 
 
 Mr. AVuarton. Suppose he states what 
 he heard read. 
 
 Judge Cadwalader. That would be 
 better. 
 
 Mr. Wharton, (to the witness.) Just 
 state what you heard read ? 
 
 A. They gave authority to the brig Jeff. 
 Davis to wage war against the United 
 States, as near as I can explain it. 
 
 Mr. Harrison. Was there any portion 
 of the brig Jeff. Davis where the letters 
 of marque, or a copy thereof, or a reference 
 thereto, was stuck up in a public place? 
 
 A. No, sir. 
 
 Q, Was it under that letter, that Mr. 
 Smith and the rest of the crew enlisted and 
 served ? 
 
 A. When the full number were on board 
 that were going in the brig, it was read to 
 us. 
 
 Mr. Kelley. Stateonly what you know. 
 
 Mr. Wharton. Was Smith there? 
 
 The Witness. Yes, Captain Smith was 
 one of the men. 
 
 Mr. Harrison. Now tell us if you 
 know anything about the operation of the 
 sequestration, confiscation, and militia laws 
 of the Southern Confederacy ? 
 
 Mr. Ashton. That 1 object to. 
 
 Mr. Harrison. Let me put the question 
 in a specific form and you can make a spe- 
 cific objection. [To the witness.] Can 
 you state how far the militia laws of Geor- 
 gia, at the time of which we are speaking, 
 compelled persons to render either military 
 or naval duty to the State of Georgia and 
 to the Southern Confederacy ? 
 
 Mr. Ashton. We object to that. 
 
 Judge Grier. I do not think a person 
 unlearned in the law can be brought here 
 to testify to the statutes of another coun- 
 try. 
 
 Mr. Harrison. Your Honors will see 
 the point to which the question is put. I 
 am not able to offer those laws because I 
 have been cut off' from all possibility of com- 
 municating with the only source from which 
 they could be obtained. 
 
 Judge Grier. You may speak histori- 
 cally of what everybody knows. Every one 
 knows there has been great violence used 
 down there, men comjielled to enlist, &c. 
 
 Judge Cadwaladek. What is it pro- 
 posed to prove ? 
 
 Mr. Harrison. I simply desire to prove, 
 that according to the state of things exist- 
 
45 
 
 injr in Georo;ia at the time in question, all 
 able-bodied men over the age of sixteen 
 and under the age of sixty, were required 
 to render military or naval duty or to leave 
 the country. That has a bearing materi- 
 ally on the point of duress, which is one of 
 the points on which we purpose to rely in 
 this case. I think when your Honors con- 
 sider the peculiar condition in which we 
 are placed, and the impossibility of our 
 being able to offer these laws in a more 
 authentic form, and the material bearing 
 they have on the quo animo of these par- 
 ties, you will conclude that we ought to be 
 permitted to offer this testimony. 
 
 Mr. Wharton. 1 will merely add to what 
 my colleague has said, in order to put it in 
 a slightly different shape, without by so 
 doing interfering at all with the form of the 
 question as he has put it, that we propose 
 not so much to prove a foreign law by the 
 testimony of a witness like the one at the 
 stand, as to prove the fact that by any law, 
 or without any law, (and that is unimport- 
 ant as bearing on the intention of this 
 party,) by the compulsion, so to speak, of 
 those who administered the government 
 there, he and others were compelled to 
 render military or naval service to the ex- 
 isting government, whatever it was. 
 
 Judge Cadwalader. Mr. Harrison stated 
 it differently. He said, " or to leave the 
 country." 
 
 Mr. Wharton. I include that in the 
 mode of putting it. 
 
 Judge Grier. If you could prove that 
 the defendant was put on board the vessel 
 by compulsion, against his own will, and 
 served there (as many a man has done on 
 a pirate vessel) contrary to his own will, 
 that would be directly to the point. 
 
 Mr. Whartox. That is a strong state- 
 ment of what would be within the same 
 principle as what we propose to prove. I 
 do not mean to put it exactly, as a matter 
 of fact, in that shape, that he was carried 
 on board by compulsion. I do not mean 
 that the offer of evidence goes to that ex- 
 tent ; but what I do mean to offer is, (not 
 interfering at all with the point of view in 
 which Mr. Harrison put it, which stands on 
 its own merits,) that in the state of things 
 existing in Georgia when this man was 
 there, he was compelled by those who ad- 
 ministered the government to render to 
 that government military service, and that 
 as the alternative of not doing it, he would 
 be compelled to quit the country. How 
 far that would in law amount to the sort 
 of compulsion to which his Honor has re- 
 ferred, is of course, a question for argument 
 hereafter ; but the state of facts we desire to 
 put in evidence is that, and it seems to us 
 to bear very strongly on the intention of the 
 
 party in carrying on the particular kind of 
 warfare to which he devoted himself. 
 
 Mr. Kelley. May it please your Honors, 
 if I understand the offer at all, it is to prove 
 that there was at some time, in the State of 
 Georgia, a law, which all these men may 
 have participated in making, which they 
 themselves may have brought about, which 
 called upon every man to serve either in a 
 certain army or navy, on the painful alter- 
 native of leaving that State. I take it that 
 that can have no bearing on this case. If 
 the gentlemen proposed to prove that this 
 man Smith was impressed, forcibly seized 
 in the streets of Savannah or elsewhere, 
 carried on board this vessel, and there de- 
 tained against his will, that would be per- 
 fectly competent. But suppose that there 
 even were proof before the Court that there 
 was such a law, and that these men had 
 opposed its passage, it would not exclude 
 (nor do I understand that there is a pur- 
 pose to follow it up with the exclusion of) 
 the alternative of leaving the State ; it 
 would not show that they were in any wise 
 impressed, that they did not voluntarily 
 choose the position they assumed and acted 
 upon when they captured the schooner En- 
 chantress. I cannot see its relevancy. 
 Even under all the liberal offers of the 
 government here as to what may be deemed 
 testimony, I cannot see that it is the best 
 which could be offered. If it were at all 
 pertinent, relevant, or in any wise conclu- 
 sive, we should not object. 
 
 Judge Cadwalader. The question at 
 present is not the effect of it, but its com- 
 petency. Mr. Harrison says, if I under- 
 stand him, that he desires to prove that all 
 able-bodied men in that country were re- 
 quired by law to render naval or military 
 service, or leave the country. Mr. Whar- 
 ton adds, " we desire to prove that this 
 man was in fact compelled to enter into 
 military or naval service or leave the coun- 
 try." 
 
 Mr, Whartox. As an existing state of 
 facts there, where he was. 
 
 Judge Cadwalader. That is to say, the 
 existing state of facts produced the neces- 
 sity. Is that what you mean ? 
 
 Mr. Whartox. Yes, sir. 
 
 Mr. AsHTox. I should like to know 
 which offer is before the Court — that of 
 Mr. Harrison, or that of Mr. Wharton ? 
 
 Mr. Whartox. Both. 
 
 Mr. Harrisox. I thought it was agreed 
 that this was a case in which we were not 
 to be very particular as to form. 
 
 Judge CiRiER. I think we have got very 
 wide already, but this is extravagantly wide. 
 
 Mr. Harrison. I respectfully submit 
 that we may be able by this testimony to 
 show such a state of facts as, if not amount- 
 
46 
 
 ing to actual, positive physical force, would 
 at least amount to that degree of moral and 
 legal force which would constitute that 
 kind of duress which would be a good legal 
 defence to the accused here. That, how- 
 ever, is a question for argument hereafter, 
 and I do not propose to go into it now. I 
 did suppose that under the peculiar state 
 of things existing here, in view of the im- 
 possibility of getting copies of these laws, 
 we should be allowed to show by a witness 
 who iinows the fact, that these laws, so far 
 as they were susceptible of producing du- 
 ress, were brought to bear on the prisoner 
 at the bar, and that under their influence 
 he was induced to take the position which 
 he did take at the time of the commission 
 of the alleged offence. 
 
 Judge Grier. a sort of moral duress. 
 
 Mr. Harrison. Something more than 
 that. If this man's home and property lay 
 South, he may not have been able to afford 
 to leave them. It may have been impossi- 
 ble for him, without an absolute sacrifice 
 of everything, to leave the country in which 
 he lived and to which, as we shall contend 
 before your Honors, he owed at least an 
 involuntary if not a voluntary allegiance 
 How are we to get the benefit of this 
 point ? It is an important point in the case. 
 
 Judge Grier. You might, more justifia- 
 bly, I think, plead the total insanity of the 
 people in the South altogether. The ques- 
 tion was once asked whether a nation could 
 be insane, as well as an individual. I have 
 no doubt it can. You might as well set up 
 national insanity. If, however, my brother 
 Cadwalader has any doubt about it, your 
 question shall be admitted. 
 
 Mr. Harrison. I hope your Honors will 
 give us the benefit of that doubt. 
 
 Judge Grier. I do not know that he has 
 any. 
 
 Judge Cadwalader. I am of opinion 
 that this witness is not competent to tes- 
 tify as to the law of Georgia. When a 
 question is put tending to prove any par- 
 ticular fact that occurred, it will be time 
 enough to consider its competency. 
 
 Mr. Wharton. Then I will put the ques- 
 tion in the modified shape I suggested, 
 whether at the time in question the defend- 
 ant was not in point of fact compelled to 
 render military service to the existing 
 government of the place where he was, 
 under pain of being turned out of the coun- 
 try if he did not. 
 
 Judge Grier. It seems to me that that 
 is only the previous question generalized a 
 little so as to get clear of the particular 
 facts on which it was rejected. It is only 
 asking his opinion of a fact. I observe 
 that it was very nicely put. 
 
 Mr. Wharton. May it please your Hon- 
 
 ors, it is very difficult to view broad facts, 
 such as national facts, without incorporat- 
 ing matters of opinion into the view of 
 those facts. It is not like the question put 
 by my colleague, which your Honors over- 
 ruled, as to the existence of particular facts 
 in certain figures written, as a statute law. 
 You prove the existence of a certain pub- 
 lic statute ; there is no matter of opinion or 
 conjecture about it. But when you deal 
 with great political facts, it is different. 
 Take, for example, the fact of an insurrec- 
 tion in the southern country. That neces- 
 sarily involves matter of opinion. Upon 
 that state of facts, we have in evidence the 
 opinion of the President of the United 
 States, as shown in his proclamations. He 
 has stated that a rebellion and insurrection 
 existed within certain tentorial limits. That 
 is partly a matter of opinion ; perhaps on 
 the part of the President, altogether so, 
 because derived from the information of 
 others. He was not there, he did not see 
 the assembling of armed men, and the com- 
 mencement of belligerent operations. Those 
 great national facts which are shown in 
 that way are of themselves, necessarily, in 
 a great measure, matters of opinion or 
 judgment. That is in the case already, and 
 all that 1 propose to ask of this witness now 
 is, whether the state of things was not such 
 that in point of fact the prisoner at the bar 
 was compelled to render military service 
 to the existing government. He will tell 
 us exactly what he knows on that subject, 
 and what the state of public opinion and of 
 action there was in reference to this sort 
 of conduct. I agree that it is partly com- 
 pounded of the opinion of the witness ; but 
 I respectfully submit that that does not 
 exclude it from the character of legal tes- 
 timony in the case. 
 
 Judge Grier. It strikes me that this is 
 only inserting the words "in point of fact" 
 in the previous question, in order to get the 
 opinion of the witness. If there is a great 
 insurrection, on this theory may not every 
 fellow say " 1 had to go with them ; there 
 was so much violence and excitement, that 
 1 was forced to act with them," and thus 
 may not the whole hundred or hundred 
 thousand escape ? 
 
 Mr. Wharton. I submit that that is 
 the only way you can deal with communi- 
 ties ; and it is just that concentrated action 
 which gives character to the act, gives it 
 publicity, in fact. To refer to an analogy 
 which was suggested by one of the Judges 
 on the Bench in the case of insanity, it is 
 very easy for a man to counterfeit or feign 
 insanity so as to impress his neighbors and 
 those who are conversant with him with 
 the conviction that he is insane ; but when 
 you call a witness to testify as to the state 
 
41 
 
 of mind of another, it is not an objection 
 to his testifying to the fact that it is possi- 
 ble the whole of it may be feigned. I 
 respectfully submit, therefore, that, al- 
 though these questions do involve to a 
 certain extent matter of opinion, that does 
 not deprive them of the character of legal 
 evidence. We cannot get at the f.ict of 
 an existing law in Georgia, I presume, 
 by any mode known to the laws of the 
 United States. That is one of the facts in 
 the case which we cannot get over. 
 
 Mr. AsHTON. It is one of the enormities. 
 
 Mr. Whakton, It may be one of the 
 enormities of the conduct of others, under 
 whose enormity of conduct this defendant 
 may be now suffering. I suggest that if a 
 state of things existed at that time in the 
 Southern country to induce the conduct 
 complained of on the part of this defend- 
 ant, he cannot be tainted with the imputa- 
 tion of that general spirit of plundering all 
 mankind, which is an essential composition 
 in the character of a pirate or sea-robber. 
 It is all as bearing on that, that this testi- 
 mony is offered, and I respectfully submit 
 that in that shape the question may be 
 properly put. 
 
 Mr. Harrison. There is, if the Court 
 please, another point of view, in which this 
 testimony, it seems to me, may be properly 
 admitted. This is clearly a case where the 
 party having shown the impossibility of 
 obtaining that primary evidence which 
 would alone be admissible if the circum- 
 stances of the case had allowed it, is justi- 
 fied in law in introducing that secondary 
 evidence of which the case is susceptible. 
 Have we not strictly brought ourselves 
 within that rule of law which entitles us 
 here to introduce before your Honors and 
 the jury as secondary evidence the only 
 possible proof in our power of the existence 
 and character of the statute of Georgia ? 
 "VV'e are unable to obtain a certified copy 
 from the State of Georgia. Every effort 
 has been made to obtain it. More than 
 twice have I written for the purpose of 
 getting a full and authentic copy of all 
 these documents, and I have been disap- 
 pointed in obtaining them, in consequence 
 of the impossibility of holding any postal 
 communication with the Southern authori- 
 ties or any portion of the Southern Confed- 
 eracy. I submit to your Honors whether, 
 upon that principle which authorizes the 
 introduction of secondary evidence where 
 primary evidence is unattainable, we are 
 not entitled to ask this witness whether 
 there is not in the State of Georgia a law 
 of the description I have indicated, and 
 whether its character is not of the purport 
 which is embodied in the question before 
 your Honors ? 
 
 Judge CADWAtiADER. In view of the 
 statement of the opening counsel for the 
 defence (Mr. O'Neill), and of the argument 
 on the question of evidence already decided, 
 I think this question cannot be put, unless 
 it is proposed to prove some fact of actual 
 compulsion exercised as to the defendant 
 in particular, or as to the crew of which he 
 was one. 
 
 Judge Grtrr. My colleague has cor- 
 rectly stated the law. 
 
 Judge Cadwalader. I desire in this 
 stage of the cause, to avoid, as far as pos- 
 sible, discussing the legal effect of these 
 questions. I would merely remind the 
 counsel of the decisions as to what shall 
 constitute compulsion under such circum- 
 stances, particularly the cases of the Scotch 
 Highlanders, which were very strong cases. 
 Mr. Harbison. Will your Honors ex- 
 cuse me for putting the question in another 
 shape ? 
 
 J udge Cadwalader. That is what I 
 rather meant to invite. 
 
 Mr. Harrison. I will put it in this 
 form : At the time the prisoner entered 
 into the service of the privateer Jeff. Davis, 
 what was the law of Georgia in regard to 
 military and naval duty to the Southern 
 Confederacy ? 
 
 Judge Grier. That is more objection- 
 able. 
 
 Mr. Kei-ley. Mlow me to suggest a 
 question of fact that may obviate all this 
 difBculty ; and that is, to learu whether 
 this man joined the ship in the State of 
 Georgia. That has not been shown yet. 
 
 Mr. Wharton (to the witness). Mr. 
 Rochford, where did Smith join the Jeff. 
 Davis? 
 The Witness. In Savannah. 
 Mr. Wharton. You have spoken of 
 the reading of the letters of marque ia the 
 hearing of the crew ? 
 A. Yes, sir. 
 
 Q. Did you leave the port of Charleston, 
 and Smith with you, under those letters, 
 after their reading? 
 
 A. We had to fit out the vessel after 
 that time. There were some repairs to be 
 done, both aloft and below. 
 
 Q. I want to know whether those letters 
 made the contract between the men and 
 the commander under which they entered 
 into service ? 
 A. Yes, sir. 
 
 Q. At what time did Smith leave there? 
 A. We left Charleston on Friday even- 
 ing. June 'iSth, 
 
 Judge Cadwalader. I thought you said 
 he joined at Savannah. 
 
 The Witness. We left Savannah about 
 the 8th of June, and went to Charleston. 
 Mr. Harrison. Where were you taken, 
 
48 
 
 after you were captured by the Alba- 
 tross ? 
 
 A. We were put on boaril the Albatross 
 about twenty-five miles south of Hatteras 
 Inlet, sailed to Hampton Roads, lay at 
 anchor there, and then went up as far as 
 the Potomac. 
 
 Q. How lonj; did you lay at anchor in 
 Hampton Roads ? 
 
 A. About twenty-four hours 
 
 Mr. Wharton. ^V'ere you taken up the 
 Potomac, Smith with you ? 
 
 A. Yes, sir. We were taken up the 
 Potomac to relieve a steamer that was sta- 
 tioned there, which had to go somewhere 
 else. We came to anchor there, and 
 stopped forty-eight hours. 
 
 Mr. Harrison. How far from the Vir- 
 ginia shore, at Old Point, were you at 
 anclior ? 
 
 A. About three-quarters of a mile. 
 
 Q. When you got to the mouth of the 
 Potomac, how far from the Virginia shore 
 were you ? 
 
 A. As far as I can recollect, about a 
 mile and a-half. 
 
 Q. Where did you go, when you left the 
 mouth of the Potomac ? 
 
 A. We came down to Hampton Roads, 
 and came to anchor again? 
 
 Q. Then you anchored twice at Hamp- 
 ton Roads? 
 
 A. Yes, sir. 
 
 Q. How long did you remain at anchor 
 at Hampton Roads the second time ? 
 
 A. 1 should think not more than twenty- 
 four hours. We then weighed anchor, 
 took the schooner Enchantress in tow, and 
 came to Philadelphia. 
 
 Q. Whilst you were at anchor at Hamp- 
 ton Roads, did the Albatross have commu- 
 nication with the land by boats? j 
 
 A. They had communication with the ' 
 flag ship. 1 Saw some vegetables coming 
 on board. 
 
 Q. Did boats pass backwards and for- 
 wards from the ship to the shore? 
 
 A. Not that I ain aware of. 
 
 Mr. Wharton. Will you state, if you 
 please, what was done with Smith when he 
 was first taken by the Albatross? 
 
 A. We were taken on board and put in 
 double irons, and put down below, along- 
 side the boilers, 'i'hey call it the engine 
 room — the passage that goes by the boil- 
 ers, where the men put their hammocks in 
 the day time. 
 
 Q. Is that a warm place? 
 
 A. Yes, sir; pretty warm. 
 
 Mr. Karlk, What is the relevancy of 
 this ? 
 
 Mr. Wharton. It rather expands the 
 evidence in regard to the arrest, which 
 was made a point by the government. 
 
 ' Judge Grier. I see nothing in it. What 
 
 has it to do with the case ? 
 I Mr. Wharton. Perhaps I can indicate 
 ! some connection. 
 I Jud.'ft (Jkier. Very well. 
 ; Mr. Wharton. The indictment contains 
 ' an averment that this defendiint was first 
 brought into this district, and was appre- 
 [ hended here. In order to prove that aver- 
 ment in the indictment, the tiovernment 
 brought up the deputy marshal to show 
 that he took a warrant to the navy yard, 
 j and arrested him there. C)ur purpose is to 
 j show that he had been arrested, and put in 
 irons long theretofore. We propose to 
 show that he was not first brought into this 
 district, but into another district. 
 I Judge Grier. What have the handcuffs 
 to do with it? If he had been taken to 
 Baltimore and laiided. or to any other place 
 and landed, there might be something in 
 your point ; but it is not affected by the 
 fact that a naval officer put irons on a man 
 charged with piracy. 
 
 Mr. Wharton. The word is "appre- 
 hended," not "arrested." 
 
 Judge Cadwalader. That is the alter- 
 native; but the jurisdiction is not rested 
 by the United States in this case on the 
 placit where the person was apprehended, 
 but on the district into which he was 
 brought. He was on board the Albatross, 
 I suppose, as a prisoner of war; and from 
 that custody, as 1 understand the tendency 
 of the lestiuiony, he was handed over to 
 the civil authorities. The question then is 
 whether the Court has jurisdiction. There 
 are two alternatives as to the jurisdiction : 
 one. depending on the place where the man 
 is apprehended, which we will not prejudge 
 the j)oint by saying does not apply to a 
 capture of this sort, but may not apply to 
 it; and the other, depending on the dis- 
 trict into which he is tirst brought. Now, 
 how is either of those points affected by 
 the manner in which he was treated while 
 in custody ? 
 
 Mr. Wharton. 'Ihe particular mode of 
 treatment is perhaps not so important upon 
 the legal question ; but as there was some 
 testimony from the witnesses of the govern- 
 ment with respect to the condition of the 
 party, tliis was intended to show the point 
 of time from which that condition should 
 date. 1 shall not press it. 
 
 Mr. Harrison. 1 do not know how far 
 we shall be at liberty to avail ourselves of 
 any objection to the rulings of your Honors 
 on any point in tliis case; but stdl I re- 
 spectfully ask that your Honors will note 
 our objections to the points which have 
 been raised and overruled. 
 
 Judges Grier and Cadwalader. C§r- 
 taiuly. 
 
49 
 
 Mr. Wharton (to fbe witnrss.) Air. 
 Rocliford, at the time and before llieperio(] 
 of Srnitli's shippinji on board the Jeff. Da- 
 vis, were tlie United States' courts open in 
 Savannah and Charleston? 
 
 The WiTXKss. No, sir — 
 
 Mr. Kki.i.kv. Stop We object to that. 
 
 Judge (iRiER. It is a fact that every one 
 knows. The proclamations of the Presi- 
 dent show it. 
 
 Mr. Wharton. The witness says tliat in 
 point of fact the courts were not open and 
 tlie United States' officers were not per- 
 forming their functions there. 
 
 Judge Grikr. 'I'he judges had resigned 
 before that time in both South Carolina 
 and Georjiia, 
 
 Mr. WiiARTON (to the witness.) How 
 long had you known Smith, either person- 
 ally or by reputation, before jou started in 
 June on this voyajre ? 
 
 A. I have known him for four years, by 
 coming into Savannah in the fall of the 
 year from Liverpool, and going back in 
 the spring. 
 
 Q. Did you consort with him so as to 
 know about him ? 
 
 A. Yes, sir. I have conversed with him 
 many a time about seafaring business. 
 
 Q. Had he a fixed home there ? 
 
 A. Yes, sir. He had a wife, and one 
 boy, fourteen years old. who went to New 
 York some twelve months ago, to get his 
 education. 
 
 Q. You have stated that he was a pilot : 
 was that his reguUir occupation ? 
 
 A. Yes, sir, that was his profession — a 
 full branch pilot of the Savannah river. 
 
 Q What was iiis reputation — that of an 
 orderly, quiet, law-abiding citizen, or other- 
 wise ? 
 
 A. He was an honest citizen of Savan- 
 nah, a native of the place, as 1 understood. 
 
 il- Was be a peaceable, quiet man ? 
 
 A. Yes, sir. 1 had an opportunity of 
 knowing him because I stayed there in the 
 winter time, and worked in a cotton press 
 and saw him pass regularly once or twice 
 a week. 
 
 Q. You have heard others speak of him ? 
 
 A. Yes, sir. 
 
 Q. Was that the manner in which he 
 was held and reputed by people generally 
 about the town ? 
 
 A. Ye?, sir. I never heard of his get- 
 ling in any difficulty. 
 
 Cross-examined by Mr. Astiton. 
 
 Q. Was Smith on board the Jeff. Davis 
 when you went on board? 
 
 A. He arrived just one day before me. 
 
 Q. Do you happen to recollect what day 
 of the month it was, and in what month? 
 
 A. It was on the 8th of June that I 
 arrived. 
 
 Q. In what capacity did you find Smith 
 on board that ship ? 
 
 A lie was acting as boatswain of the 
 vessel. 
 
 Q. What were the duties of that office ? 
 
 A. The occupaticm of a boatswain is to 
 teach a man's work if a man d^es not know 
 how to do it as a mariner. A man canimt 
 fulfil the duty without having some under- 
 standing of seafaring business. 
 
 Q. What day did the vessel leave Char- 
 leston harbor? 
 
 A. On the '28lh of June. 
 
 Q. Then front the 8th of June to the 
 28th of June. Smith was on board that 
 vessel in the harbor of Charleston? 
 
 A. Y'^es, sir. fitting her out for sea. 
 
 Q. Was William Smith in confinement 
 on board the shi]) during that time ? 
 
 The Witness. Do you mean handcuffed ? 
 
 Mr. AsuTON. I mean physical restraint 
 of any kind. Was he confined in the cabin ? 
 
 A. No, sir; but he was confined in this 
 respect; that neither he nor any man on 
 board the Jeff Davis could go ashore with- 
 out getting permission from the captain. 
 There was a sentry of marines on the gang- 
 way, and your business had to be known, 
 and you had to get permission from the 
 captain to get ashore, or to come aboard. 
 
 Q. Were the officers allowed to go oa 
 shore ? 
 
 A. Not without permission from the 
 captain. 
 
 Q. Were the ordinary sailors of the ves- 
 sel allowed to go on shore? 
 
 A. No, sir. 
 
 Q. During the days the vessel lay as yoa 
 have stated in Charleston, do you or do 
 you not know that William Smith went 
 ashore ? 
 
 A. Not to my recollection. 
 
 Q. Do you know that he did not go 
 ashore ? 
 
 A. The vessel was small, and he held a 
 situation from which a man could miss him 
 very readily; and, as far as 1 recollect, he 
 did not go ashore. 
 
 Q. But you do not say positively that he 
 did not go ashore ? 
 
 A. I cannot say that ; but I had a pood 
 opportunity of missing him out of the ves- 
 sel. .\o officers went ashore while I was 
 there excej)t the cajjlain. not even th • first 
 lieutenant or second lieutenant, according 
 to my recollection. 
 
 Q. Was the letter that you spoke of as 
 having been read on board the Jeff. Davis, 
 read in the harbor of Charleston during 
 your stay there? 
 
 A. Yes, sir. Some dispute got up 
 among the men, and Coxsetter called thein 
 all out, and read the letter of marque. He 
 was bv the side of Dr. Babcock. 
 
50 
 
 Q. Did that proclamation or any an- 
 nouncement made on hoard the vessel dur- 
 in<^ this time speak of the prize money that 
 you were to get ? 
 
 A. No, sir. 
 
 Q. Was there any arrangement in re- 
 gard to prize money ? 
 
 A. Well, I heard some mumbling amon<j 
 the men about it, but not from the officers. 
 
 Q. What proportion of prize money were 
 the men on board the Jeff. Davis to get? 
 
 A. I hardly recollect now. 'i'hey w^re 
 talking about some a quarter of a share, 
 and some half a share, and so on, accord- 
 ing to the situation each man occupied on 
 board tiie vessel. 
 
 Q. Then the boatswain was to get more 
 than the common sailor? 
 
 A. I never heard any thing mentioned 
 about the officers. 
 
 Q. How long were you going from Char- 
 leston to Savannah. 
 
 A. One day. 
 
 Q. How long did you lie in the harbor of 
 Savannah ? 
 
 A. I was not on board the vessel at Sa- 
 vannah. I came from Savannah to Char- 
 leston. 
 
 Q. Was that document read in Charles- 
 ton or Savannah ? 
 
 A. In Charleston harbor. 
 
 Q. Where did you go when you left 
 Charleston ? 
 
 A. To sea. 
 
 Q. When did the vessel go from Savan- 
 nah to Charleston ? 
 
 A. The vessel did not go to Savannah. 
 We joined her in Charleston harbor. 
 
 Mr. AsiiTON. I thought you said you 
 joined her at Savannah? 
 
 The WiTNKss. In Savannah, we arranged 
 to go, Hud joined the vessel at Charleston. 
 
 Q. You saw Smith on board the Jeff. 
 Davis on the 8th of June : where did you 
 see him last before you saw him then ? 
 
 A. Ill Savannah. 
 
 Q. How long before? 
 
 A. About the oth or 6th of June, I saw 
 him there. 
 
 Q. You were in Savannah on the 5th or 
 6th of June, and on the 8th you went from 
 Savannah to Charleston ? 
 
 A. Yes, sir, on the cars. 
 
 l^. So far as you know, then, William 
 Smith went from Savannah to Charleston 
 Vuluu arily ? 
 
 A. No, sir, I will not say that. He did 
 not go voluntarily. The laws of the South- 
 ern States — 
 
 Mr. AsHTON. Never mind about the 
 laws. 
 
 Mr. Wharton. The gentleman asks 
 ■whether he went voluntarily. We are en- 
 titied to the answer. 
 
 Judcre Grirr. The counsel has a right 
 to put the questions as he pleases, but the 
 witness has a right to answer. 
 
 Mr. AsHTON. I withdraw the question. 
 
 Mr. Harrison. I object to its being 
 withdrawn after the witness has commenced 
 to answer it. 
 
 Mr. W}iARTON. It seems to me it is part 
 of the proper answer to the question to 
 show how he went and why he went. 
 
 Judge Cadwai.\dkr. After the full warn- 
 ing which the early examination gave as to 
 the tendency of this question, 1 think it 
 ou'jht to have l)een withdrawn before it was 
 withdrawn, or else the witness ought to be 
 allowed to complete his answer. 1 suppose 
 that in strictness the counsel for the United 
 States can withdraw the question, though 
 it may have been partly answered. At the 
 same time, as it was put advisedly, after the 
 full nature of the subject had been devel- 
 oped and discussed, I think it would be 
 taking a very strict advantage of their legal 
 right not to allow the question to be ans- 
 wered. 
 
 Judge Gbier. (To the witness.) You 
 said he was compelled to go. Give us the 
 full answer. 
 
 The WiTNR.ss. I was asked whether 
 Smith came voluntarily or not. I say 
 every man was compelled to join the army 
 or navy; and he being acquainted with sea 
 life, like every seafaring man, thought it 
 better to go in the navy than the army. 
 
 Mr. AsHToN. Mr. Kochford, did you 
 see anybody take him from Savannah to 
 Charleston ? 
 
 A. 1 did not see anybody take him ; but 
 I saw him in Savannah with a valise in his 
 hand, on the hotel i)iazza. 
 
 Judge Grier. And from that you con- 
 cluded he was compelled ? 
 
 A. No; but by the laws of the Southern 
 States 
 
 Judge Grikr. Oh ! never mind ! 
 
 By Mr. Keu.ey : 
 
 Q. I understood you to say that Smith 
 joined this vessel at Savannah ? 
 
 A. No, sir; I did not say that. The 
 vessel could not be at Savannah and in 
 Charleston harbor at the same time. He 
 joined the vessel at Savannah, to go on 
 board of her at Charleston. 
 
 Q. You mean that he shipped in Savan- 
 nah ? 
 
 A. Yes. sir. 
 
 Q. And he went to Charleston by rail- 
 road ? 
 
 A. Yes, sir. 
 
 Q. Did the whole crew go together? 
 
 A. The greatest portion of them did. The 
 remainder were in Charleston before. 
 
 Q. Are you a citizen of the United 
 States ? Have you ever been naturalized? 
 
51 
 
 A. I never had my papers. The first 
 time I came to the United States I was 
 under age, and I had no occasion to get 
 papers. 
 
 Daniei, Mui.i.inzs called and sworn, and 
 examined by Mr. Harrison. 
 
 Q. or what place are you a native ? 
 
 A. Charleston, South Carolina. 
 
 Q. Are you acquainted with the defend- 
 ant. Smith? 
 
 A. Yes. 
 
 Q. or what State is he a native ? 
 
 A. I believe he is a native of South Caro- 
 lina, but a citizen of Savannah, Georgia. 
 
 Q. How long has he been a citizen of 
 Savannah ? 
 
 A. I do not know. He served an ap- 
 prenticeship there in a Savannah pilot 
 boat, fie must have been there when 
 very young. 
 
 Q. Then he has been a resident of Sa- 
 vannah for several years, to your know- 
 ledge ? 
 
 A. Yes, sir. 
 
 Q. Was he a resident of Georgia at the 
 time of the passage of the secession ordi- 
 nance of Georgia, and the formation of the 
 Southern Confederacy ? 
 
 A. Yes, sir. 
 
 Q. Was he a housekeeper, and the head 
 of a family, in Savannah? 
 
 A. Yf'S, sir. 
 
 Q. What was his occupation ? 
 
 A. A full branch Savannah pilot. 
 
 By Mr. Wharton. 
 
 Q. Does it not require previous training 
 and education, to become a full branch 
 pilot ? 
 
 A. Yes, sir; a servitude of years. 
 From one grade you rise to another, from 
 twelve to fourteen, sixteen, eighteen feet, 
 to full. 
 
 Q. According to the draft of water of 
 the vessels you pilot? 
 
 A. Yes, sir. You have to serve an ap- 
 prenticeship according to that, and to be a 
 citizen. 
 
 Q. How far is sobriety a necessary 
 quality ? 
 
 A. That is required. 
 
 (^. How tar is honesty requisite ? 
 
 A. That also. He has to give security 
 as regards conduct. 
 
 Q. You knew him in his occupation and 
 profession as a pilot? 
 
 A. Yes, sir, for many years. 
 
 Q. What did people generally say of 
 him, who knew him ? 
 
 A. 1 never heard anything spoken 
 against him ? 
 
 Q. How was he reputed, generally? How 
 did he stand with his neighbors, with those 
 who knew him ? 
 
 parents or grandparents 
 He had them some time, 
 I think they lived in 
 
 A. They all seemed to like him well. 
 
 Q. He was a peaceable, quiet man? 
 
 A. Yes, sir. He was connected with 
 the vessels of Northern men more than 
 those of Southern men. There are more 
 Northern and European vessels in those 
 waters than Southern vessels. 
 
 Q. Were you acquainted with his family 
 in Savannah ? 
 
 A. No, sir. 
 
 Q. Had he 
 living ? 
 
 Mr. K EI, LEY. 
 
 no doubt. 
 
 The Witness, 
 South Carolina. 
 
 Mr. Wharton. I do not want to go too 
 far, but to show that the man had connec- 
 tions there. 
 
 The Witness. I knew a Mrs. Smith on 
 Sullivan's Island, South Carolina, who is 
 either his aunt or his grandmother. 
 
 No cross-examinaton. 
 
 Mr. Harrison. We are through with 
 our oral testimony, but I understood your 
 Honors to allow us until to-morrow to make 
 a note of the various documents to be re- 
 ferred to. 
 
 Judge Grier. I suppose so far as mat- 
 ters of history are concerned, such as the 
 dates of the various secession acts of the 
 States, you can take them from any book 
 you please, 
 
 Mr, Wharton, We should like to put 
 these matters in as evidence, so that the 
 history may be fixed here. 
 
 Judge Grier. Make a brief in writing 
 of the documents you want in, and hand it 
 to us in the morning. Have we the case 
 on both sides? 
 
 Judge Cadwalader, Is there any re- 
 butting testimony for the prosecutiou? 
 
 Mr. AsHTON. No, sir. 
 
 The Court adjourned till to-morrow. 
 
 Thursday, October 24, 1861, 
 Mr, Harrison ottered the list of docu- 
 ments alluded to yesterday, viz. : Procla- 
 mation of marque and reprisal of President 
 Davis, of the Confederate States; the Con- 
 stitution of the Confederate States ; the 
 Inaugural Address of President Davis; 
 a synopsis of the Confederate States Army 
 Bill ; the secession ordinances of South 
 Carolina, Alabama, Georgia, Louisiana, 
 Florida, Mississippi, Texas, Virginia, Ten- 
 nessee, Arkansas, and North Carolina, 
 respectively ; the Act of the Confederate 
 Congress of May 6, 1861, recognizing a 
 state of war between the United States 
 I and the Confederate States ; President 
 i Davis' Message to the Confederate Con- 
 1 gress, April 29, 1861; Instructions for 
 i Privateers, by order of the President of 
 
52 
 
 the Conffderate States ; and the Procla- 
 mations oF Governor Letcher, of Virginia, 
 and (Jovernor Ellis, of North Carolina, as 
 contained in Moore's Rebellion Record. 
 
 Judge Grier. These papers are not re- 
 ceived as evidence of any fact except the 
 fact of their own existence. 
 
 Mb. Earle proceeded to sum up for the 
 Government : 
 
 With submission to your Honors, Gentle- 
 men of tbe Jur}', it is a ni;itter of contract 
 ■vvhich must strike every mind who glances ;it 
 the mode of procedure here in our courts, 
 and the mode of procedure in other pbice-' 
 vhtre a government rival to our own has 
 been set up, and it is a matter, also, of plea- 
 sure, that we go on in this court tianquilly, 
 without disturbance, in tlie midst of general 
 wreck and ruin which surround us, and ad- 
 minister justice quietly and deliberately, nnd 
 that tlie prisoner at the bar will have as fair 
 a trial at the hands of his countrymen, will 
 have justice as fairl}' meted out to him by the 
 Court and byjthe Jury, as if the tranquillity 
 which existed four years ago, now prevailed 
 in our midst. He can complain of nothing 
 but the fairest treatment, even on the part of 
 those whose duty it lias been to prosecute him. 
 It must have struck you, in the course of the 
 trial, tluit a great deal of the matter which 
 has been offered by his leained and able 
 counsel, might have been ruled out on 
 different technical grounds ; but that was not 
 the desire of the government, nor of the prose- 
 cuting officers. The desire was that this man 
 should have, in every sense, a fair trial, and 
 that that conviction of which we felt assured 
 in redress of the violated and injured law of 
 the country, should stand on so broad and 
 sol'd a basis, tliat there could be no objection 
 taken to its having been secured by any sharp 
 technical point, but that it would stand as an 
 adjudication of this Cdurt, on an offence of a 
 high national character, in a great and im- 
 portant State trial. 
 
 The evidence is so simple that it would 
 seem to be a matter of no necessity for me to 
 recapitulate it to you. The cardinal facts 
 are undisputed. If such a thing were known 
 in criminal proceedings as an admission in 
 the shape of a case stated, we might take 
 even the facts as detailed by the defendant's 
 own witnesses, write them down, let you find 
 them as a special verdict, and let the Coui't 
 pronounce their opinion on it as a matter of 
 law. 
 
 In the first place, gentlemen, the defendant 
 is a citizen of the United States. He cannot 
 divest himself of that allegiance which he 
 owes to the United States. It appears by tiie 
 testimony that he was born in the State of 
 South Carolina, and resided in the State of 
 Georgia ; but he is a citizen of tlie United 
 States, and can never divest himself of that 
 allegiance, in law, without the consent of the 
 United States. Certainly, I may state that 
 
 doctrine without limitation, so far as the pur- 
 poses of this trial are concerned. He being 
 such citizen, let me briefly call your atten- 
 tion and that of the Court, to an act which 
 shows what Congress has thought of his con- 
 duct in this case : 
 
 "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 auth(U-ity fiom any 
 " person, such offender shall, notwitlistanding 
 '• the pretence of any such authority, be 
 " deemed, juljudged, and taken to be a 
 " pirjite. felon, and robber, and on being 
 '• thereof convicted, shall suffer death." — Act 
 of April 30, 1790, § 9; Briyhlh/s DiijeH 
 Laws U. S.,p. 207. § 29. 
 
 The other acts, I nmy advert to presently. 
 It jippears in evidence that tlie prisoner 
 voluntarily went from Savannah to Charleston 
 to go upon the expedition. It appears, on 
 his own allegation, that he exercised his 
 volition in that act. There was no constraint ; 
 there was no compulsion : but even if there 
 were, it would be no defence, because it was 
 held by Mr. .Justice Washington, in the case 
 of the United States vs. Jones, (3 Washing- 
 ton's Circuit Court Repcu-ts, p. Iili9), that no 
 orders from a superior officer will justify a 
 subordinate in the commission of what the 
 latter knows or ought to know to be piracy; 
 all who are present acting or assisting in the 
 offence, are deemed to be principals. There- 
 fore, when he took his valise and proceeded 
 in the railroad car from Savannah to Charles- 
 ton, with the other parties forming the expe- 
 dition, doubtless in high spirits, doubtless 
 without a thought on his mind of tiiat which 
 has been set up hei-e in his behalf, perhaps as 
 an evasion, perhaps as an after thought, that 
 there was the least compulsion or control 
 upon him in doing this — when he did it, he 
 did it under the law of his country as a 
 voluntary act, of which he must take all the 
 consequences. He took tiie risk of capture, 
 for the profit that he might make. lie took 
 the risks of the expedition, and he can blame 
 nobody but himself, for the consequences 
 which his own act has brought upon him. 
 
 The offence with whicli this man is charged, 
 has been condemned by almost every legal 
 writer, and certainly by every moralist who 
 has ever written on the subject. Dymond, 
 Paley, others that might be cited, have said 
 that privateering, (taking this offence in the 
 lenient way contended for by the defendant's 
 counsel) is the most cruel part of warfare, 
 when legitimate and when recognized, and is 
 the meanest part of it, under any circum- 
 stances, be it legal or illegal. The privateer 
 is supposed to be less animated by the spirit 
 of patriotism, misguided or proper, than any 
 other man. He starts on the expedition as a 
 kind of Jerry Sneak of the ocean, if I may 
 use the expression. He starts, not for the 
 purpose of carrying on war in the most 
 
53 
 
 effective way, but for the purpose of filling 
 his own pocket. He preys on the commerce 
 of innocent people, property owned, perhaps, 
 by widows and cliildren afar off, whom he 
 never knew, who, perhaps, might agree in 
 sentiment with him on the very difficulties 
 existing. He starts on the ocean to seize tlieir 
 property, to pillage their ships, to inflict on 
 them the worst effects and sufferings of 
 piracy. It may be that the privateer comes 
 across a poor sailor returning from a voyage 
 to China, or to the North or South Pole, who 
 started years ago in a time of peace and 
 tranquillity. A poor sailor who sailed, per- 
 haps, on a whaling voyage at tlie commence- 
 ment of the administration of President 
 Buchanan, now returning after four years' 
 absence from his family, is met by the J(ff. 
 Davis, a shot fired across the bow, and tlie 
 poor whaler brought to, and to his astonish- 
 ment, the first question is, " Did you not know 
 that war had broken out in the United States ?" 
 He knows of no such thing. If a messenger 
 had come from Heaven, he could not believe 
 it in view of the state of affairs wiiich pre- 
 vailed four years ago. He is brought to, his 
 cargo of whale oil is taken from him, and 
 after four or five years' of suffering in the 
 frozen regions of the North, he finds himself 
 a penniless, ruined man at the hands of the 
 very scum and off-scouring of Southern cities, 
 poured on the ocean to sweep tlie commerce 
 of poor and suffering working people of the 
 North, from that ocean, by acts in law and in 
 morals, piratical. Privateering has been con- 
 demned, and it has been proposed, time after 
 time, by civilized nations, to abolish it, and 
 I believe thatlatterly our Government has con- 
 sented to its abolition. It has been proposed 
 to abolish it, because it was non-eftective in 
 war, because it was destructive and injurious 
 to innocent parties, and because it had no 
 savor of Heaven about it in any waj' or in 
 any light ; and how any good man could 
 engage in it, be the quarrel what it might be, 
 would be exceedingly difficult to understand, 
 because it inflicts ruin on the innocent. 
 
 The evidence shows you that a citizen of the 
 United States embarks in this nefarious busi- 
 ness; and what is the defence? There has 
 been a great deal of legal fencing here. A 
 great many questions have been asked, wliich 
 must have struck you as wholly immaterial. 
 The materiality of them consisted entirely in 
 the fact that they were sharp legal points. 
 They had no relation to the case. All those 
 points fell to the ground, owing to the 
 vigilance and preparation of the acting Dis- 
 trict Attorney. He met each and all of them, 
 and foiled them all But the defence that I 
 understand to be set up — and which will be 
 alluded to more particularly by my learned 
 colleague, who is to follow mc — is that this 
 man acted under some paper authority. The 
 answer to that is simply this : that in all the 
 decisions to which I shall allude, and which 
 will be alluded to more fully by Judge Kelley. 
 it has been uniformly held that this defence 
 
 of a piratical act is not good unless it is done, 
 bona fide, under a commission. Hence, to 
 that defence which may be set up, maik my 
 plain and honest reply : — that the commission 
 must be issued bona fide, and must be acted 
 on bona fide. The reply — and there is the 
 nut shell of the case — is that as allegiance is 
 owing by the citizen to the United States, and 
 as he is presumed to know the law of the 
 United States, he cannot shield himself under 
 a commission issued to plunder the United 
 States ; no commission to rob his own country- 
 men can be lona fide ; but such an excuse 
 is an aggravation of the offence in law and in 
 morals. A man brought befoi-e this court on 
 a charge of contempt, might just as well put 
 in an answer denying the power of the court 
 and saying that he refused to obey or execute 
 the mandate of the court, which would only 
 be aggravation, like the excuse of the clown 
 who struck the King, and apologised to his 
 majesty by saying he thought it was the 
 Queen. Meeting that point at the outset, by 
 the answer which stiikes me as the iiinge of 
 the whole case, 1 will call your attention very 
 briefly to the facts. 
 
 The defend nt. Smith, leaves the port of 
 Charleston, on board this piratical vessel. 
 She makes different captures. She meets the 
 Enchantress My learned friend, Mr. Harrison, 
 I believe, asked if any more violence was 
 used than was necessary to effect her capture. 
 Certainly, it would have been unnecessary to 
 use unnecessary violence. These engaged in 
 the capture would not fire into and destroy 
 property which they were about stealing. But 
 the language of the courts on that point is 
 very simple. In the case of the Malek Adhel 
 (2nd Howard's Reports, 210), the Supreme 
 Court of the United States, decided that by 
 the words "piratical aggi-essions" in the act 
 of 1819, were meant such offences as pirates 
 are in the habit of committing, whatever the 
 motive, whether plunder, revenge, hatred, or 
 wanton abuse of power; and consequently 
 that actual plunder or intent to plunder, need 
 not appear to bring the case within the com- 
 pass of the act, any piratical aggression, 
 search, restraint, or seizure being sufficient. 
 It was decided in the case of the United 
 States vs. Tully (1 Gallisou's Reports, 247), 
 that there need be no peisonal violence to 
 constitute pii-acy, within the '.Hh section of the 
 act of 1790. If the intention of taking or 
 stealing, the animus furandi appears, it is 
 sufficient. Of course, that disposes of the 
 whole questidn, whether the crew of the En- 
 chantress yielded to reasonable fear of violence 
 or not. They looked over to this vessel and 
 saw the motley crew armed to the teeth. They 
 were not required to commit any act of in- 
 sanity, let the insanity in any portion of our 
 country, be what it may, as his Honor .Judge 
 Grier suggested. We are not to suppose the 
 whole human race are mad. The crew of the 
 Encha) tress were not to wait to be blown out 
 of water. Mark the conduct of the defendant 
 at this juncture. It is set up here that he 
 
54 
 
 
 Teas innocent in tbis matter, that he had no 
 \vrong intention, that he was the victim of 
 compulsion ; and laws of some Southern 
 States which have no relevancy to the matter, 
 have been referred to, which could only be 
 offered to sustain some such theory as that 
 Smith was an unwilling actor in this trans- 
 action. The whole evidence shows the re- 
 verse. Look at his conduct towards the 
 colored man, as an example. He had been 
 sent from the Enchanlress to the Jeff. Davis, 
 but was brought back in the boat with Smith. 
 He was asked " why have you brought him 
 along?" What is the answer? Why, "we 
 will take him to Charleston, where he will 
 bring $1500," — an offeiice against the law of 
 South Carolina, an offence against the law of 
 Georgia, and an offence without feeling, be- 
 cause to tear a man from his home and en 
 slave him forever, against the usages of war- 
 fare, stamps this transaction just in the light 
 in which I wish you to look at it in all truth, 
 and fairness, and honesty. It was a piratical, 
 outrageous aggression, without any of the 
 color or the forms of law, like other piratical 
 expeditions of Kyd and such men in earlier 
 dfiys; but it had this distinction, that those 
 men pretended not to attack the vessels of 
 their own country, though they did sometimes 
 make mistakes, as they gravely tell us, and 
 did seize and run down a vessel of their own 
 country, and after she had been sunk they 
 "were very unhappy to find that thej' had com- 
 mitted a mistake ! The United States do not 
 pretend to say that tliese men are pirates in 
 that light. We say, and we believe the court 
 will sustain us in it, that under the laws of 
 the United States, the offence of this man is 
 piracy, that the act committed is piratical 
 under the laws of the United States, and that 
 the punishment meted out to it is the same 
 as that of piracy, under the law of nations. 
 You would not say that the slave trade car- 
 ried on upon the coast of Africa was piracy. 
 So, in this matter, we submit that this is a 
 case of piracy in the legal sense. 
 
 Before proceeding further, I may call the 
 attention of the court, very briefly, to a case 
 which is very much like this indeed," where 
 similar piratical acts where conunitted — the 
 case of the United States vs. Kliiitock, 6 
 Wheaton's Reports, p. 144. In the syllabus 
 it is stated : 
 
 " Under the particular circumstances of 
 " this case, showing tiiat the seizure was made, 
 " not jure bfili, but ujiimo furandi, the com- 
 *' mission was held not to exempt the prisoner 
 " from the charge of piracy." 
 
 " The act of the 30th of April, 1790, c. 80, 
 " p. 8, extends to all persons, on board all 
 " vessels, which throw off their national 
 " character by cruising piraticallj', and com- 
 " mitting piracy on other vessels." 
 
 The facts appeared to be that the prisoner 
 was a citizen of the United States, that he 
 sailed as first lieutenant on the Yotiny Sj.>ar- 
 t'tn, a vessel owned without the United States, 
 and cruised uuder a coLumissiou from Aury, 
 
 styling himself Brigadier of the Mexican Re- 
 public, and Generalissimo of the Floridas, 
 granted at Fernandin.i, after the United 
 States government took possession of it. The 
 prisoner was convicted in the court below, 
 and his counsel moved in arrest of judgment, 
 upon various grounds, one of which is '-that 
 Aury's commission exempts the prisoner from 
 the charge of piracy." Chief Justice Mar- 
 shall, delivering the opiuiun of the court, 
 said : 
 
 *' So far as this Court can take any 
 " cognizance of the fact, Aury can have no 
 " power, either as Brigadier of the Mexican 
 " Republic, a republic of whose existence we 
 " know notliing, or as Generalissimo, of the 
 " Floridas, a possession of Spain, to issue 
 " commissions to authorize private or public 
 " vessels to make captures at sea. Whether 
 " a person acting with good faith under auch 
 " commission, may or may not be guilty of 
 " piracy, we are all of opinion that the com- 
 " mission can be no justification of the facts 
 " stated in this case." 
 
 If our courts were so particular as to a 
 commission executed by a foreign power, how 
 little would they recognise a commission 
 which aimed a blow at the very existence of 
 I our government, and which aims a blow at 
 j the very existence of this court, which sits 
 only by viitueof the power conferred on it by 
 the United States ? 
 
 I may in this connection call attention to 
 the fact that by the Constitution the power of 
 issuing letters of marque and reprisal, is con- 
 fined exclusively to the Congress ot the United 
 States. Our government recognises no other 
 power to do that ; nor lias it abdicated the very 
 function of government within its own limits. 
 I will call your Honors' attention to the case of 
 Rose vs. Himely, in which the court said : (4 
 Cranch's Reports, p. 27li.) " It is for govern- 
 " ments to decide whether they will consider 
 " St. Domingo as an independent nation, and 
 " until !-ucli decision shall be made, or France 
 " shall relinquish lier cluim, courts of justice 
 " must consider the ancient state of things 
 " as remaining unaltered, and the sovereign 
 " power of France over that colony as still 
 " subsisting." All this applies with ten-fold 
 force, when you consider that these arc 
 adjudications in reference to other nations, 
 but that in the case now befoi'e you the point 
 rises to the dignity of the national existence, 
 and the question involves the recognition of 
 the right of a portion of the country to revolt 
 and det-troy the government. 
 
 I do not say that this is piracy at common 
 law, but piracy under the acts of Congiess, 
 under which the defendant is indicted. i'ou 
 will find on the back of the indictment a 
 reference to the acts under which he is 
 indicted. 
 
 Mil. Hakrison. AVill you please tell me 
 whether you proceed under all the statutes 
 or under the one specified by the Di.--trict 
 Attornev ? He specified the Srd section of 
 the act of 1820. 
 
5§ 
 
 ^ Mr. Earle. I will read that section as it 
 has been mentioned : 
 
 "If any person shall, upon the high seas, 
 " or in anj' open roadstead, or in any haven, 
 " basin, or bay, or in any river where the sea 
 •' ebbs and flows, commit the crime of rob- 
 " bery, 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." 
 
 Under this act and the act of 1790, to 
 which I have before referred, this indictment 
 is drawn. I shall take up none of your time, 
 gentlemen, in talking about the facts. The 
 testimony of the defendant makes out the 
 case. It is not denied that he was there ; it 
 is not denied that he did the act. Some 
 questions were asked his witnesses in regard 
 to his character What is the honest man, 
 whafistheman of character doing on the 
 high seas, taking other peoples' property 
 against the law ? He assisted in several 
 captures ; after the Enchantress was captured, 
 he was put on board as prize master, and he 
 took her away. We show that he committed 
 these acts. What is the reply? That he 
 was an honest man. Has the reply any 
 coherence or sense in it ? What is the man 
 of character doing in such company ? What 
 is he doing on such an exploit? If he fired 
 the gun, does the fact of his previous honesty 
 lessen the crime ? Does it not aggravate it ? 
 Besides, do we not know how men of charac- 
 ter fall ? Do we not know how, prior to the 
 commission of murder, Dr. Webster had a 
 good character ? Do we not know that one 
 of the weaknesses of human nature, against 
 which we are all to guard, is that men of the 
 brightest character fall into crime ? I do not 
 suppose the defence was urged seriously, and 
 so waste no time upon it. 
 
 I have not taken up your time, gentlemen, 
 in going over the facts, because they are 
 undisputed. There can be no question about 
 them. My friend. Judge Kelley, will notice 
 the law more particuhirly, in reply to the 
 learned gentlemen on the other side. In con- 
 clusion, let me hope that your verdict will 
 be such that the law will be a redress, that 
 you will perform your duty in that spirit of 
 firmness, moderation, and justice, which 
 should ever characterize a jury in our com- 
 munity ; that while you mete out justice to 
 the prisoner under the charge of the court, 
 you will also reflect that the interests of the 
 community' are in your hands, that the inter- 
 ests of the government are in your hands ; 
 and whilst you acquit him, if you can under 
 the evidence and the charge of the court, if 
 you have a fair, reasonable doubt of his, 
 guilt, if you feel that doubt conscientiously 
 and scrupulously, yet, if under the charge 
 of the court, and under the superabundant 
 evidence in this case, you believe him to be 
 guilty, you will in the same spirit find him 
 guilty. 
 
 Mr. Harrison. — If your Honors please, 
 before I proceed with my argument, I desire 
 to furnish the court with some points of law 
 on which we propose to rely. 
 
 The points were handed to the court, and 
 are as follows ; 
 
 First. If the Confederate States of Amer- 
 ica is a Government, either de facto or de 
 jure, it had a right to issue letters of marque 
 and reprisal ; and if issued before the com- 
 mission of the alleged ofi"ence, the defendant, 
 acting under the authority of such letters, 
 would be a privateer, and not a pirate, and, 
 as such, is entitled to be acquitted. 
 
 Second. That, if at the time of the alleged 
 ofi'ence, the Southern Confederacy, by actual 
 occupation, as well as acts of Government, 
 had so far acquired the mastery or control 
 of the particular territory within its limits, 
 as to enable it to exercise authority over, 
 and to demand and exact allegiance from 
 its residents, then a resident of such Con- 
 federacy owes allegiance to the Govern- 
 ment under which he lives, or, at least, that 
 by rendering allegiance to such Government, 
 whether on sea or land, he did not thereby 
 become a traitor to the Government of the 
 United States. 
 
 Third. That, if at the time of the alleged 
 oflfence, and the issuing of the letters of 
 marque and reprisal iipon which the defen- 
 dant acted, the Courts of the United States 
 were so suspended or closed in the Southern 
 Confederacy, as to be no longer able to 
 administer justice and to enforce the law in 
 such Confederacy, the defendant thereby 
 became so far absolved from his allegiance 
 to the United States as to enable him to take 
 up arms for and to enter the service of the 
 Southern confederacy, either on land or sea, 
 without becoming a traitor to the Govern- 
 ment of the United States. 
 
 Fourth. That, if at the time of the alleged 
 offence and his entering in the service of 
 the Southern Confederacy, the defendant 
 was so situated as to be unable to obtain 
 either civil or military protection from the 
 United States, whilst at the same time he 
 was compelled to render either military or 
 naval service to the Southern Confederacy, or 
 to leave the country ; and in this latter event, 
 to have his property sequestrated or confis- 
 cated by the laws of the said Confederacy — 
 such a state of things, if they existed, 
 would amount, in law, to such duress as 
 entitles the defendant here to an acquittal. 
 
 Fifth. That this Court has no jurisdiction 
 of the case, because the prisoner, after his 
 apprehension on the high seas, was first 
 brought into another district, and ought to 
 have been there tried. 
 
 Mr. Harrison. May it please your Honors, 
 and you. Gentlemen of the Jury, it becomes 
 my duty now, to open this case for the ac. 
 cused. I should much have preferred if that 
 duty had devolved upon some one else ; not 
 
56 
 
 that I shall shrink from the discharge of it as 
 Well as I can ; but that I acknowledge my 
 inability to discharge it, as I think it ought 
 to be. I hope I may be pardoned for saying, 
 that I sincerely regret the absence here to 
 day of my learned friend Mr. Cotfey ; not 
 only upon his own account, but on that of 
 the Government, for I know that he had 
 thoroughly ami profoundly studied this 
 case, (and it is to that perliai s more than 
 any thing else, that his recent illness is 
 ascribable^ and that he would liave brought 
 to bear upon the argument, all the ingenuity, 
 and ability, and research, which a strong 
 mind, and a stout heart, and a clear, capaci- 
 ous, independent, honest intellect, would 
 have placed within his reach. I expected 
 no mercy ; I should at least have received 
 justice and fairness at his hands, which is 
 all I ask. 
 
 I know, too, tliat in the argument of this 
 case, I have much to contend with ; not 
 only in the skill and ability of the learned 
 counsel who are opposed to me, but more, 
 perhaps, if any thing, in the excited condi- 
 tion of the public mind, and in the popular 
 prejudice and prejudgment, which, in sur- 
 rounding the questions now before you, 
 may be said to surround even the prisoners 
 themselves. Of this, however, I shall not 
 complain. I have no right, in fact, to 
 complain of it. At a time like this, that 
 man must be something more, or something 
 less than man, who could divest himself 
 entirely of every thing in the shape of 
 prejudice. It is only when prejudice usurps 
 the place of reason, and turns a deaf ear to 
 fact as well as argument, that the trial by 
 jury becomes a farce, and thatjurors simply 
 meet, not to deliberate and to determine, as 
 they ought to do, and as I think you will ; 
 but to render a foregone conclusion This 
 is not the prejudice, I am sure, which I 
 shall have to encounter at your hands. If 
 it be a prejudice at all, like the Ghost in 
 Hamlet, it is an honest prejudice, gentle- 
 men, and I shall meet it honestly. 1 shall 
 meet it as a man, who asks nothing and 
 expects nothing, and who is entitled to 
 nothing at your hands, but a fair and im- 
 partial trial This much I do ask, however, 
 and this much I shall expect to receive, as 
 well upon your own account, as that of the 
 prisoner. 
 
 Gentlemen, we have met here to day, for 
 the first time, and under circumstances of 
 no little embarrassment and responsibility ; 
 their honors to expound the Lw, you to 
 judge of the facts of this case, and I, it may 
 be, to argue both of them, if I choose, and 
 as best as I can. And if, in the course of 
 that argument, I should happen to take any 
 position, or to utter any sentiment which 
 you may not like — I do not know that I 
 shall do so — but if I do, — I appeal to you, 
 gentlemen of the jury, and I apj^eal to their 
 honors upon the bench, to bear with me 
 
 notwithstanding, and to hear me out. It is 
 the boasted privilege of the law, that it gives 
 to every man, however humble, or howso- 
 ever criminal he may be, the right to be 
 heard by counsel ; and nowhere, in my 
 opinion, is that privilege more respected 
 ami observed, than in the City of Philadel- 
 phia. The fullest possible latitude of free 
 and uninterrupted discussion, was afforded 
 to the learned counsel, who opened the case 
 for the Government ; and all I ask is, that 
 a similar latitude of discussion, may be 
 allowed to me. 
 
 Gentlemen, before I proceed any further 
 with the argument, I desire to call your 
 attention to a few dates and events, which 
 may possibly have some bearing upon the 
 case On the 20th of December, IbliO, the 
 State of South Carolinia, for reasons which 
 are set forth in her Secession Ordinance, but 
 which it is unnecessary to recur to more 
 particularly, declared herself completely 
 separated and withdrawn from the Federal 
 Union. In this she was soon followed, first 
 by Mississippi, then Alabama, then Florida, 
 then Georgia, then Louisiana, then Texas, 
 then North Carolina, then Virginia, then 
 Tennessee, and lastly by Arkansas — leaving 
 in all but 23 of the 34 States ( not to mention 
 Missouri and Kentucky and probably Mary- 
 land, which are at least divided,^ still 
 faithful and loyal to the Union. The rest 
 had all seceded. These States soon framed 
 a Constitution, and soon formed a Govern- 
 ment of their own, and entered into a social, 
 and political compact, called the Confederate 
 States of America. On the 12th of April, 
 1861, Fort Sumter, one of the national 
 fortifications of the United States, was taken 
 and held by main force, and is still held by 
 main force, by the State of South Carolina. 
 This was followed by the President's Procla- 
 mation of the 15th of April, declaring South 
 Carolina, and the other States which had 
 seceded, to be in a state of insurrection or 
 rebellion; and ordering out the Militia, to 
 the number of 75,000, (and afterwards, and 
 by a similar proclamation of the President, 
 the Naval force of the Government, was 
 ordered out also) for the purpose of repress- 
 ing it. On the 19th of April, 18G1, by an 
 order of the President to that effect, the 
 States of South Carolina, Georgia, Alabama, 
 Mississippi, Louisiana, llorida, and Texas, 
 were declared to be in a state of blockade. 
 And, on the 29th of the same month, and 
 by a similar order of the President, this 
 blockade was declared to be extended to the 
 States of North Carolina and Virginia. 
 Subsequent to all this, other military Proc- 
 lamations and preparations were from time 
 to time issued, and made by the President, 
 all of which, it is proper to add, have since 
 received the sanction and concurrence of 
 the Congress of the United States. 
 
 So much for the proceedings on the part 
 of the United States. But in the meantime, 
 
57 
 
 gentlemen of the jury, the Southern Con- 
 federacy has not been idle. Through its 
 President, Mr. Davis, it has issued its proc- 
 lamations from time to time. It lias elected 
 its senators and representatives. It has 
 twice convened its congress, and adjourned 
 it. It has organized a fleet and army. It 
 has voted supplies of men and money. It 
 has declared war, and carried it on ; amongst 
 the recognized, and not unfrequent modes 
 of civilized warfare, it has authorized the 
 issuing of letters of marque and reprisal by 
 its President, and they h ive been issued by 
 that President, and it was under, and by 
 virtue of a cmnmission of that very descrip- 
 tion, that this man was acting, at the time 
 he was captured by the Albatross and 
 brought here to be tried before your honors, 
 upon a charge of piracy. And the question 
 now submitted to your honors and to the 
 jury is : whether he is protected at all, and 
 how far is he protected by that commission? 
 Is he a privateer, or is he a pirate? Is he a 
 pirate, and thus shut out from all law, and 
 entitled to ni> mercy either at your hands, 
 or at the hands of any one else, (for that is 
 the condititiu of tlie pirate, J or is he simply 
 a privateer, and, thus, according to the law 
 of nations and to the usages of all civilized 
 warfare, entitled to be dealt with as a 
 prisoner of war merely? 
 
 Now what is a pirate ? A pirate, fsays 
 Hawkins,) is he who commits some act of 
 robbery or spoliation on the high seas, 
 which, if committed upon land, would 
 amount to a felony there. (Hawkins, b. 1, 
 ch. 20, s. 3. 1 He is hostis humani generis — 
 He is out of the pale of all social as well as 
 municipal comity or protection ; and he is 
 liable to be captured any where, and at any 
 time, and by the private, as well as public, 
 vessels of every nation. This is tlie com- 
 mon law definition of a pirate ; so that the 
 prisoner here, if a pirate, and if any act of 
 piracy is proved upon him, is not only an 
 offender against the laws of the United 
 States, but he is an offender against the law 
 of England, and against the law of France, 
 and against the law of all civilized as well as 
 christianized humanity, both here and else- 
 where. On the other hand, if he be not an 
 offender against England, and France, and 
 other nations, and if he could not be cap- 
 tured and punished, by England, and France, 
 and other nations, no more is he an offender 
 against, and no more could he be captured 
 and punished fat least piratically speaking) 
 by, the Government of the United States ; 
 because a pirate in one place, is a i>irate 
 everywhere, or not at all. 
 
 But the Constitution of the United states 
 has authorized Congress to define piracy, and 
 Congress, by the 3d section of the Act of 
 15th of May, lb20, (which is admitted to be 
 the foundation of this indictment) has thus 
 defined it: "If any person shall upon the 
 " high seas, or in any open roadstead, or in 
 
 " any haven, bas'n, or bay, or in .nny river, 
 " wliere the sea ebbs and Hows, commit the 
 '• crime of ro'jheiy in or upon any vessel, or 
 '•upon any of the ship's company of any 
 ''vessel, or the liding thereof, such person 
 " shiill be adjudged to l)e a pirate; and be'ng 
 " thereof convicted, before a Circuit Court of 
 " the United Stuies, for the District into which 
 " he shitli he hroiiyhl, or in which he nhiill be 
 "found, shall suffer d-afh." This statute, 
 however, does not do aw;iy with the distinc- 
 tion between a privateer and a pirate. It 
 siniplj declares when a citizen of the United 
 States or (itlier person shall be deemed to be 
 guilty of pii-acy; but it does not say, and it 
 could not say in fact, whether the prisoner 
 here is a privateer or is a pirate ; whether he 
 is a citizen of the United States, or a citizen 
 of the Southern Confederacy, to the extent at 
 least of piotecting him against a charge of 
 piracy. This statute, 1 submit, was not 
 intended to abolish piivateering, or to place 
 all privateers upon the footing of pirates ; 
 nor could it, in fact, have done so had it 
 so designed. That is a matter for international 
 compact; for public treaty between nation and 
 nation; not for private or municipal legisla- 
 tion. And when the United States, in 1855, 
 was appealed to by France and England to 
 abolish privateering by matter of treaty, she 
 declined to do so. Certainly, so far as foreign 
 nations are concerned, the United States 
 would be estopped from taking the ground 
 that her congress has abolislicil privateering. 
 And whether the Southern Confederacy is 
 simply still an integral portion of the Union, 
 or whether it is a separate and independ- 
 ent government of its own, de facto if not de 
 jure, to the extent at least of protecting it 
 against a charge of piracy-, is one of the very 
 grounds of the defence, and is a question 
 upon which I sliall presently ask permission 
 to be heard more fully before the juiy. What 
 I say now is, tliat a pirate, under the statutr, 
 is the same thing as a robber at tlie common 
 law, and, that to constitute robbery at the 
 common law, there must be shown to have 
 been the animus furandi, or the felonious as 
 well as forcible taking of the property which 
 is wanting here. The case of the United 
 States V. Klintock (5 Wheaton, p. 150,) which 
 was cited and commented on by Mr. Earle, is 
 in fact an authority in our favor for there the 
 distinction between a capture Jure belli and 
 aiiimo furandi, between a bona fide belligerent 
 cruiser and a mere freebooter or robber on 
 the high seas, was expressly taken by Ch. J. 
 Marshall, and is the same which is relied 
 upon here. 
 
 So much for the common law as well as 
 statutory definition of a pirate. Now what is 
 a privateer? Privateering, as I understand 
 it. is simply a delegation of the war making 
 power of the government, from the govern- 
 ment itself to individuals ; and a privateer, 
 or at least an authorized or commissioned 
 privateer, is nothing more than a maritime 
 
68 
 
 Tolunteer, or a commissioned naval warrior, 
 fitted out by private enterprize, and sailing 
 under letters of marque and reprisal from the 
 government under which he sails. This is 
 what 1 understand, may it please your honors, 
 by the definition of a privateer. He is an 
 enemy, it is true, and is liable to be taken as 
 an enemy and to be dealt with as an enemy, 
 by the adverse nation, and so far he may be 
 said to resemble a common pirate ; but he 
 differs from a pirate in this, that he is not the 
 enemy of all humanity ; that he is only the 
 enemy of tliat particular country which he is 
 tlius at war with ; and above all, that he is 
 entitled, when captured, to all the considera- 
 tion and protection of an ordinary prisoner 
 of war. He differs in fact in nothing from 
 any other prisoner who may be taken flagranti 
 bello. Nay, during a state of actual warfare, 
 even a non-commissioned privateer, may 
 attack and seize the enemy's property, when- 
 soever and wheresoever he may choose, with- 
 out violating any principle of international 
 law ; being responsible only to the sovereignty 
 of his own nation, which may retroactively 
 ratify, and legalize or validate liis acts, how- 
 ever unauthorized. For the doctrine and dis- 
 tinctions upon this point, I refer your honors 
 to Phillimore on Int. Law, p. 3'J3. (85 Law 
 Lib. i:yU-V»7; lb. p. 141 ; Bynk, 2 Q. P. 1. 1, 
 eh. 18. Vattel 1. 3, ch. 15, S. 229, 1 Rents 
 C. 99. 2 Azuni's Maritime Law, 347. Spel- 
 man Glossary in Voce. IMrata, p. 4<i0. Kud- 
 ley's Civil Law, p. 2, ch. 1, s. 3, p. 127. 
 This, gentlemen of the jury, is the distinction 
 between a privateer and a pirate ; and 1 ask 
 YOU to bear in mind this distinction, because 
 if the prisoner here be a privateer, he cannot 
 be a pirate ; and if a pirate, he is not a pri- 
 vateer. If a pirate, he is guilty of a capital 
 offence against the law, and you ought to find 
 accordingly. If a privateer, he is guilty of 
 no offence against the government, under the 
 issue which you are sworn to try. If a priva- 
 teer, he is liable, it is true, to be taken and 
 dealt with as a public enemy, or as a prisoner 
 of war, by the proper authorities, but you, at 
 least, as privateer, have nothing to do with 
 him. Your inquiry, and your sole inquiry, 
 gentlemen, is, whether he is guilty or not of 
 the piracy with which he is charged in this 
 indictment? And this depends first, upon the 
 validity or invalidity of the commission of 
 marque and leprisal, upon which the prisoner 
 acted; and, if that should be adjudged to be 
 invalid, then, it furthermore depeiu.s, upon 
 the motives of tiie prisoner in doing the act 
 with which he is charged ; upon the situation 
 and condition of the prisoner, at the time hfe 
 did it; and, above all, upon the reasons which 
 the prisoner had for thinking and believing, 
 at the time, that that commission, whether 
 valid or invalid, was at least sufficient to pro- 
 tect him against the charge of piracy. If 
 valid, there is an end of the case, of course, 
 lor the act would then be lawful, or, at least, 
 not piratical ; and eveu, if invalid, if he 
 believed, and if he had reason to believe, and, 
 
 more especially if be was' necessitated to 
 believe, and to act upon the belief, that that 
 commission was a good one, he would be still 
 protected ; for, however as a general rule, 
 and in a mere civil point of view, the maxim 
 of the law is, that ignorance of the law is no 
 excuse for any one ; yet there are cases, may 
 it please your Honors, (and 1 shall endeavor 
 to show that this is one of them), in which a 
 well founded ignorance of the law, and a 
 ditt'erence of opinion, and a diversity of 
 authority as to what the law is, and even the 
 absence, as in this case, of any positive law 
 or express decision upon the subject, may 
 well exempt, at least from criminal, if not 
 from civil, responsibility. 1 think your Honors 
 will find that there is an abundance of sound 
 reason, as well as good authority, to this 
 effect ; and especially is this true, where 
 any element either of physical or of moral 
 duress, where any actually existing danger, 
 or any well grounded apprehension of a diinger 
 of a present and pi'essing character, can be 
 considered as blending with such ignorance ; 
 for there one of the main essentials to every 
 contract, which is the free will of the party, 
 is supposed to be wanting. It n:ay be fairly 
 assumed from the evidence, that letters of 
 marque and reprisal were duly and regularly 
 granted by the Southern Confederacy (so far 
 as it had any authority so to grant them) to 
 Captain Coxsetter, of the Privateer Jfff. 
 Davis; and if adequate to the protection of 
 Captain Coxsetter, they must be adequate to 
 the protection of the prize crew of the Enchant- 
 ress (one of whom is the prisoner now before 
 you), and who were acting under the same 
 authority. The only question is, whether 
 they were adequate to the protection of Cap- 
 tain Coxsetter, or any one else; or, in other 
 words, whether the SouthernConfederacyis not 
 so far a government de facto, if not de jure, as 
 to authorize, or at least excuse privateeiing. 
 
 If a government at all, may it please your 
 Honors; if an organized and acting govern- 
 ment, however wrongful; — if a government 
 either de facto or dejure, it hud an undoubted 
 and admitted right, 1 apprehend, to issue 
 letters of marqe and reprisal, and to establish 
 a system of privateering : for however some 
 writers may have written against it, or how- 
 ever some nations, at different periods, may 
 have imposed restraints upon its exercise, yet 
 privateering, as 1 understand it, is now recog- 
 nized and approved, or at least tolerated and 
 sustained, by every nation. Every man (says 
 Vattel) "may, with a safe conscience, fit out 
 " privateers in defence of his country during ii 
 "time of war." Vattel, b. 3, ch. 15. s. 229; 2 
 Azuni, p 3;7. 
 
 But the first question is, whether the South- 
 ern Confederacy is not a government de facto 
 if not de jure, at least so far as to authorize 
 privateering; or at least so far as to exempt 
 its privateers from all the penalties of the 
 crime of piracy ? 
 
 Now, in the view which I take of this ques- 
 tion, it is not very material to enquire into 
 
59 
 
 the doctrine of secession ; by -wliicli I under- j stances, would be treated not onlj' as an 
 stand, the right, or, at least, the assumed | absurdity but as a, nudum pad um— and hence 
 constitutional right of any state, or of any , it was, that the first articles of confederation 
 
 number of states, in the union, not to revo- 
 lutionize, (because the right to revolutionize 
 is not disputed), but to secede — that is to 
 say, peaceably to go out of the Union — 
 peaceably to remain out of the Union, and 
 peaceably to form a government for them- 
 selves — a government disconnected from, and 
 totally independent of, the Union, if they 
 should find it to their interest, or their honor, 
 or their happiness, so to do ; and of which 
 they themselves, of course, must be tlie judges. 
 This is what I understand by the doctrine of 
 secession ; and if that is conceded, all is con- 
 ceded; if that is admitted by the government, 
 tbe whole argument of the government falls 
 to the ground, for there is nothing else in 
 fact for it to stand upon. On the other hand, 
 it does not follow, by any means, because 
 the learned covmsel for the government deny 
 the doctrine of secession (as I suppose they 
 will,) that they will make out that these men 
 are pirates. Not at all. Even if the doctrine 
 of secession is not admitted, still the right to 
 revolutionize is not denied. The warmest 
 and ablest opponents of secession (Mr. Web- 
 ster himself not excepted), have not hesitated 
 
 to which Pennsylvania herself was a party) 
 were afterwards superseded, and by that very 
 constitution under which you are now exist- 
 ing. Such is the nature of the right of revo- 
 lution. It is the right of the few against the 
 many — the right of a minority, to shake off 
 the domination of the majority, in a proper 
 case, and of which the minority themselves 
 must be the judges ; for, otherwise, there 
 would be no such thing in practice, as revolu- 
 tion by a minority against the injustice or 
 oppression of the majority. I put this ques- 
 tion to the jury : Was it not by an exercise 
 of this very principle of revolution that 
 American independence was first established ? 
 We were then in a minority also. We were 
 then in a minority, and a far greater minority, 
 than the Sotithern Confederacy now is. We 
 had then, all told, only a population of about 
 two millions; whilst that of the Southern 
 Confederacy, as it is said, amounts, at this 
 time, to at least seven millions. We were 
 weaker in men, weaker in money, weaker in 
 credit, weaker in unity, weaker in discipline, 
 weaker, perhaps, in every respect, than the 
 Southern Confederacy now is, and yet we 
 
 to admit the right of revolution. In his j revolutionized notwithstanding. We not only 
 speech in the Senate of the United States in revolutionized, but we succeeded by revolu- 
 reply to Mr. Hayne, in 1830, Mr. Webster I tion in establishing the independence of 
 uses this language. "If the gentleman had | America. And the first Congress which met, 
 "intended no more than to assert the right ! after the declaration of independence in 1776 
 " of revolution, for justifiable cause, /le would j not only claimed to legislate for a government 
 ■have said onli/ rcliat all a(jrcc to. But I can- | de facto, but de jure. And even before a rati- 
 
 " not conceive, tliat there can be a middle 
 "course, between submission to the laws, 
 "when regularly pronounced constitutional, 
 " on the one hand, and open resistance, which 
 " is revolution or rebellion, on the other. I 
 *' say the right of a State to annul a law of 
 " Congress, cannot be maintained, but on the 
 " ground of the unalienable rigid of man to re- 
 '^ /list oppression; that is to say, upon the 
 
 fication of the constitution by the people, and 
 before that constitution in fact was even 
 made, were not letters of marque and reprisal 
 granted by the government of the United 
 States — granted, I say, by the government of 
 the United States, or I should rather say by 
 the Continental Congress of the States, before 
 the government itself was even formed, or 
 before its fundamental law, at least, was ever 
 
 '■'■ground of revolution. I admit that there is adopted. Letters of marque and reprisal were 
 "an ultimate, violent remedy, above the con- | first issued and acted on in 1775; but it was 
 
 " stituiion, and in defiance of the constitution. 
 " which mag be resorted to, when a revolution, 
 " is' to be justified. But I do not admit that, 
 " under the constitution, and in conformity 
 " with it, there is any mode in which a state 
 " government, as a member of the Union can 
 " interfere with and stop the progress of the 
 " general government, by force of her own 
 " laws, under any circumstances whatever." 
 This is the doctrine of revolution, as laid down 
 by Mr. Webster, in 1830, and as contradis- 
 tinguished from that of secession. It is a 
 principle, I believe, which is not disputed 
 
 not until 1787, that the Constitution of the 
 United States was ratified and adopted by a 
 single State ; nor was it completely ratified 
 and adopted until 1790. But in the meantime, 
 the British trade in many places, and especially 
 along the Island of Bermuda, and the Coast of 
 Africa, literally swarmed with American pri- 
 vateers. Nay, the first American flag which was 
 ever hoisted in the service of the Continental 
 Congress, was hoisted here, in this very City 
 of Philadelphia, and on board of a privateer 
 — on board of the privateer, the Alfred, and 
 under the command of John Paul Jones— that 
 
 any where, or by any one. It is not so much same Paul Jones who afterwards spiked all 
 
 a gift of the government, as it is a preroga- 
 tive of the people, and a prerogative which 
 no government upon earth can control or 
 fetter. So true is this, that even a compact 
 by the people, never to revolutionize, at any 
 time, or for any cause, or under any circum- 
 
 the guns in two forts, and who, but for an 
 accident, it is said, would have burnt two 
 hundred ships at White Haven, in the North 
 of England. 
 
 But why do I refer to all this ? I simply 
 advert to this to show you that the American 
 
60 
 
 people are the very last people upon earth 
 who ought to object to this doctrine of revo- 
 lution, or to privateering as an incident to 
 that doctrine ; and I do not understand them, 
 as oV)jecting to it. Undoubtedly Mr. Webster 
 did not object to it; undoubteilly the learned 
 counsel who concludes this case for the govern- 
 ment, will not object to it. However we may 
 ditfer as to the proprietj' or impropriety of 
 its exercise, or as to the practical application 
 of the doctrine, as to the right at least, I am 
 sure, we shall not differ. It is the great, in- 
 herent, indispensable, unalienable, political 
 right of self-defence — ;just as much so, as it is 
 a physical or a brutal law of self-defence for 
 the serpent, when stung, to sting again, or 
 for the worm, when trod upon, to turn and 
 rend you. 
 
 Now, gentlemen, I do not want to be 
 misunderstood. I beg you, and I beg my 
 friends the reportt^rs here, who appear to be 
 taking notes of what I am saying, not to 
 misunderstand me, or misquote me. At a 
 time like this, it is as much as a man's 
 liberty, or even his life is worth, to be cor- 
 rectly quoted. I know where I stand, and 
 Jiow I stand, and how I want to stand in 
 this case, and there I mean to stand, come 
 what may of it — but nothing more. I do 
 not stand here as a secessionist, or as the 
 advocate of secession, nor is it necessary in 
 fact, that I should do so. But what I say, 
 and all I say, is, that, admitting secession 
 to be all wrong ; and admitting that the 
 Southern Confederacy had no right what- 
 ever to revolutionize, still it has revolution- 
 ized — it has not only gone out of the Union, 
 but it has taken eleven of the States along 
 with it, and it has left, at least, two more 
 upon the fence top. It has framed a Consti- 
 tution, and it has formed a government of 
 its own. It has elected a President and 
 Vice President, and all its officers, in all its 
 branches, whether legislative, judicial, or 
 executive. It has organized an army, and 
 equipped a fleet. It has voted supplies of 
 men and money. It has issued treasury 
 notes. It has declared war, and carried it 
 on, and it is still carrying it on, both 
 persistently and effectively. It has recently 
 made an exchange of prisoners with the 
 general government. It has thousands of 
 ])risoners still remaining, either in actual 
 cu.stody, or upon parole. It has been recog- 
 nized, or at least treated by foreign nations, 
 or by some of them, and by England in 
 particular, and even by the United States 
 herself, not only as a belligerent, but as a 
 government. All of this, I say, it has done, 
 and more besides ; and having done all this, 
 may it please your honors, would it not be 
 going too far to say, that the Southern 
 Confederacy is not a government? is not a 
 government cle facto, if not dejiire? is not a 
 government, at least so far as to authorize 
 privateering, or at least so far as to ex- 
 empt its privateei'S, from all the penalties 
 
 and consequences of being pirates ? After 
 the declaration of Lord .John Russel, upon 
 the floor of Parliament, that the Southern 
 Confederacy was a belligerent, — after the 
 refusal of the lords commissioners of the 
 admiralty to make any distinction between 
 a Confederate privateer, and a United States 
 man-of-war's man, and after the whole 
 course of the British Government upon this 
 subject, would it now be competent to that 
 government, to treat the privateers of the 
 Southern Confederacy as pirates ? I pre- 
 sume not. I ask your honors' attention to 
 the fact too, that, by a regulation of the 
 French (government to that effect, the pri- 
 vateers and other vessels of the Southern 
 Confederacy are permitted to remain unmo- 
 lested, for the sjaace of twenty-four hours, in 
 any of the ports of France — a space long 
 enough in all conscience, for any ordinary 
 vessel to unload and to effect a clearance. 
 With all deference, too, I might very well re- 
 fer to the recent ruling of one of your honors 
 in the case of the General Parkliill, as fur- 
 nishing additional evidence of the pretension 
 of the Southern Confederacy to the character 
 of a belligerent. The ground there taken by 
 Judge ('adwalader was, that Peterson & 
 Stock, of Charleston, being residents of the 
 Southern Confederacy, and that Confederacy 
 being in a state of hostility against the gov- 
 ernment, that Peterson & Stock, therefore, 
 whether personally loyal or disloyal, had 
 forfeited all claim to national citizenship, 
 and were no longer entitled to any proprie- 
 tary status in a prize court. This I humbly 
 conceived, at that time, and I still conceive, 
 was a virtual recognition by your honor, of 
 the Southern Confederacy as a belligerent. 
 And did not the Congress of the United 
 States, lately allow a claim of several 
 thousand dollars, to the heirs or representa- 
 tives of Paul .Jones ? and for what ? Why, for 
 the privateering services of their ancestor, 
 during the war of the Revolution ; thus 
 recognizing and rewarding as a patriot, that 
 man, whose memory, according to tlie argu- 
 ment of our learned friends here, ought 
 much rather to have been desecrated with 
 the name of pirate. If this man is a pirate, 
 upon what principle, or by what authority, 
 did the Congress of the United States dare 
 to appropriate one cent to the real or per- 
 sonal representatives of .John Paul Jones ? 
 
 But it is idle to cite authorities upon this 
 point. It is useless to multiply examples to 
 show your honors, that the Southern Con- 
 federacy—whether right or wrong, is another 
 question, and is not the question which I have 
 now to deal with, or which I mean to have 
 to deal with before the jury — that the South- 
 ern Confederacy, at least practically speak- 
 ing, is not a political nonentity or abstraction, 
 but is a substantial and efl'ective government. 
 How long it may remain so, is another ques- 
 tion. It may be ultimately subjugated. It 
 may soon be stripped of all its pretensions to 
 
61 
 
 the character and position of one of the na- 
 tions of the earth. But what I say, and what 
 I submit to your honors, is, tliat, standing 
 as it now does, and wliere it now is, is it not, 
 I will not say preposterous, but impossible 
 to maintain that tlie Southern Confederacy 
 is not a government — a government de facto, 
 if not de jure — a government not in theory 
 only, but in practice — a government of law, 
 of purpose, of policy, of principle, of action, 
 of efficiency — a government of arts and 
 sciences, of agriculture, of manufactures 
 and even of commerce itself, to some extent, 
 crippled and paralysed as it has been, and 
 as it is, by the blockading power of the 
 United States — a government in short, pos- 
 sessing all the attributes, and exercising and 
 exhibiting all the functions, of a tlioroughly 
 organized and perfectly systematized body, 
 politic ? And if this be not a government, 
 what is? To show what constitutes a 
 government and the different kinds of gov- 
 ernment, see Puflfendorf, b. 7, ch. 2, s. 13, 
 p. 645, and ch. 5, s. 3, p. 670. All govern- 
 ment ("says Thomas Paine) is the result 
 eitber of superstition, or of power, or of the 
 common rights of man. AH government 
 ( says Mackintosh, ) with the exception of 
 tlie United States, (for be makes an excep- 
 tion of this government) is tlie result more 
 of accident, than of art. If it bejiin in 
 rebellion, it ends in revolution ; but wliat 
 that revolution is to end in, wliether in 
 monarchy, or oligarchy, or aristocracy, or 
 democracy, or what not, it is hard to tell. 
 This is the history perliaps of nine tenths 
 of all governments upon the face of the earth. 
 And with all deference to Mr. Mackintosh, 
 when the American Revolution first started, 
 it would have been pretty hard to determine, 
 whetlier it was to eventuate in a democratic 
 form of government, or in the establishment 
 of another monarchy. But such, I submit, 
 is the governme 't of the Southern Confed- 
 eracy; and if it be a government at all — 
 whether just or unjust, rightful or wrongful 
 in its inception — if it be a government either 
 <le facto or de jure, — then I humbly submit 
 to your Honors, that nei her at common 
 law, nor under the statute, nor according 
 to the law of nations, can this prisoner be 
 adjudged to be a pirate. 
 
 I will now ask permission of your Honors, 
 to cite a few authorities on this subject and 
 I wi 1 tell your Honors, by and by, why it is 
 that I refer to them. I refer in tlie first 
 place to "Rawle on the Constitution," page 
 292. "7/ (says Mr. Rawle j the majority 
 ''''of the people of a state d liberately and 
 "peaceably resolve to relinquish the republican 
 '\form of government, they cease to be members 
 ''of the Union." And then at' page 295, 
 " The secession of a state from the Union 
 " depends on the will of the people of such 
 "siute.'^ And again at page 296, " But in 
 ' ' any manner by which a secession is to 
 ' ' take place, nothing is more certain, than 
 
 I "that the act should be deliberate, clear, 
 "and unequivocal. The perspicuity and 
 "solemnity of the original obligation require 
 "correspondent qualities in its dissolution. 
 "The powers of the general government 
 "cannot be defeated or impaired by an am- 
 " biguous or implied secession on the part 
 "of the State, although a secession may be 
 " conditional. The people of the State may 
 " have some reasons to complain in respect 
 "to acts of the general government — they 
 "may in such cases invest some of their 
 " own officers with the power of negociation, 
 "and may declare an absolute secession in 
 "case of their failure. Still, however, the 
 " sece^■sion must in such cases, be distinctly 
 " and peremptorily declared to take place on 
 "that event, and in such case — as in the case 
 "of an unconditional secession, the previous 
 " licjament tcith the Union, ivould be legiti- 
 " mattly and fairly destroyed. But in either 
 '''case the people is ihc only moving power.'' ^ 
 This was from a gentleman of your own 
 city, a gentleman of acknowledged ability 
 and unblemished public, as well as private, 
 character in his day, and who held the 
 same high office under Washington himself, 
 which my learned friend, Mr. Cofl'ey, now 
 holds under President Lincoln. 
 
 I refer next to the appendix to the Vir- 
 ginia edition of Blackstone's Commentaries, 
 published by St. George Tucker, in 1802, 
 and from which I also have permission to 
 read a few extracts. (See 1st Tucker's 
 Blackstone, page 73, s. 13.) "The disso- 
 " lution of these systems happens, when all 
 "the Confederates, by mutual consent, or 
 "some of them, voluntarily abandon the 
 "confederacy, and govern their own States 
 " apart ; or a part of them form a different 
 " league and confederacy among each other, 
 " and withdraw tliemselves from the con- 
 "federacy with the rest. Such was the 
 "proceeding on the part of those of the 
 " American States which first adopted the 
 "present Constitution of the United States, 
 "and established a form of federal govern- 
 "ment, essentially diflerent from that which 
 " was first established by the articles of 
 "Confederation, leaving the States of Rhode 
 " Island and North Carolina, both of which, 
 " at first, rejected the new Constitution, to 
 "themselves. This was an evident breach 
 " of tliat article of the confederation, which 
 " stipulated that those ' Articles should be 
 " 'inviolably oliserved by every State, and 
 " ' that the Union should be perpetual ; nor 
 " 'should any alteration at any time here- 
 " 'after be made in any of them, unless 
 "'such alteration be agreed to in the 
 " 'Congress of the United States, and be 
 "'afterwards confirmed by the legislature 
 " 'of every State.' Yet the seceding States, 
 " as they may be not improperly termed, 
 "did not hesitate, as soon as nine States 
 " had ratified the new Constitution, to super- 
 "sede the former Federal Government, and 
 
62 
 
 "establish a new form, more consonant to 
 "their opinion of what was necessary to the 
 " preservation and prosperity of the federal 
 " Union." And again, at page 74, " Conse- 
 " quently whenever the people of any State, 
 " or number of States, discovered the inad- 
 " equacy of the first form of Federal Gov- 
 " ernment to promote or preserve their 
 "independence, happiness, and imion, they 
 " only exerted that natural riglitin rejecting 
 "it, and adopting another, which all had 
 "unanimously assented to, and of which 
 "no force or compact can deprive the peo- 
 "ple of any State, whenever they see the 
 "necessity, and possess the power to do it. 
 "And since the seceding States, by estab- 
 " lishing a new Constitution and form of 
 " Federal Government among themselves, 
 "without the consent of tlje rest, have 
 "shown that they consider the right to do 
 " so whenever the occasion may, in their 
 " opinion, require it, as unquestionable ; 
 ' ' we may infer that that right has not been 
 ' ' diminished by any new compact which t' ey 
 "may have since entered into, since none 
 " could be more solemn or explicit than the 
 "first, or more binding upon the contracting 
 "parties. Their obligation, therefore, to 
 "preserve the present Constitution, is not 
 " greater than their former obligations were, 
 "to adhere to the articles of the confedera- 
 " tion ; each State possessing the same 
 "right of withdrawing itself from the oon- 
 " federacy without the consent of the rest, 
 " as any number of them do or ever did, 
 "possess." 
 
 ******* 
 
 "To deny this, woiild be to deny to 
 "sovereign independent States, the power 
 "which, as colonies, and dependant terri- 
 " tories, they have mutually agreed they 
 " had a right to exercise, and did actually 
 "exercise, when they shook off the Govern- 
 " ment of England, first, and adopted the 
 "present Constitution of the United States, 
 "in the second instance." 
 
 Another instance to the same efll"ect, is to 
 be found in the History of Massachusetts. 
 On the 1st of August, 1812, Governor Strong 
 of Massachusetts, addressed a letter to the 
 three Judges of Massachusetts, in which, 
 amongst other things, lie propounded to the 
 Judges this question : "WhetJier it was for 
 tlie President of the United States, or for the 
 States themselves, respectively, to deter- 
 mine the constitutional exigency upon which 
 the militia of the States were liable to be 
 ordered out into the service of the Federal 
 Government." 
 
 The reply of the Judges was, "that that 
 right was vested solely in the commanders- 
 in-chief of tlie militia of the several States." 
 This question, it is true, was never formally 
 adjudicated by the Judges, but this was 
 their answer to the question ; and it was as 
 much as to say, (so far as the Governor, and 
 the Judges at least oould say soj that if the 
 
 President enforced, or attempted to enforce 
 this right, that was claimed for him, tlie 
 State of Massachusetts would resist it; and 
 she did resist it, for, in point of fact, she 
 never furnished her quota, or even a soli- 
 tary militiaman, I believe, under the requi- 
 sition which was made upon her by the Pre- 
 sident. What was this but secession, or 
 revolution, or practical nullification, if you 
 choose, and in the most ultra shape ? See 
 Supplement to 8th Mass. Reports, page 54tJ. 
 Doubtless your Honors have not forgotten 
 how persistently the conscription and im- 
 pressment scheme of Mr. Monroe, for rais- 
 ing an army in 1815, was resisted and op- 
 posed by five of the States ; how it first led 
 to a legislative protest and resolutions on the 
 part of Connecticut, strongly tinctured with 
 secession and nullification; and how it after- 
 wards led to that celebrated conclave called 
 the Hartford Convention, which met on the 
 1,'ith day of December, 1815, and whose 
 members, I apprehend, were nothing more 
 or less than a set of nullifiers or seqession- 
 ists, under the cloak of federalism. See 
 Dwight's History of Connecticut, pages 435, 
 43(3, and 437. And when New Hampshire 
 stood out, and continued to stand out, for 
 nearly two years, against the adoption of 
 the Constitution, no attempt was made to 
 force her in by the rest of the States which 
 had adopted it It might well be said, in 
 fact, that the whole histoi-y of this country, 
 tib urbe cnntlita, from first to last, is but a 
 practical exliibition of secession, nullifica- 
 tion, or revolution, at some time, and in 
 some shape or other ; that it is, at least, the 
 assertion of a principle, of whieli the present 
 revolution is but the exercise. In his 
 " Brief Enquiry into the nature and charac- 
 ter of the Federal Government," page 124, 
 the learned author CJudge Upshur,) says, 
 " The principle that ours is a consolidated 
 " government of all the people of the United 
 " States, and not a confederation of Sovereign 
 " States, must necessarily render it little less 
 "than omnipotent;" and again, at page 125, 
 " Let it be supposed that a certain number 
 "of States, containing a majority of the 
 " people of all the States, should find it to 
 "their interest to pass laws oppressive to 
 " the minority, and violating their rights 
 " as secured by the Constitution. What re- 
 " dress is there upon the prinoip/les of our 
 " author? Is it to be found in the Federal 
 '■ tribunals ? They are themselves a part of 
 " the oppressing government, and are, there- 
 " fore, not impartial judges of the powers of 
 " government. Is it to be found in the virtue 
 " and intellgence of the people ? This is tlie 
 " author's great reliance. He acknowledges 
 " that the system, as he understands it, is 
 "liable to great abuses; but he supposes 
 " that the virtue and intelligence of the 
 " people will, under all circi^mstances, prove 
 "a sufficient corrective. Of what people? 
 "Of that very majority who have committed 
 
es 
 
 "the injustice complained of, and who, ac- 
 " cording to the autlior's theory, are the 
 "sole judges whether they have power to 
 " do it or not, and whether it be injut^tice or 
 " not. Under such a system as this, it is a 
 " cruel mockery to talk of the rights of the 
 "minority. If they possess riglits, they 
 " have no means of vindicating them. Tlie 
 "majority alone possess the government; 
 "they alone measure its powers, and wield 
 "them, without control or responsibility. 
 " This is despotism of the worst sort, in 
 " a system like ours. More tolerable, by 
 "far, is the despotism of one man, than 
 " that of a party ruling without control, 
 " consulting its own interests, and justify- 
 " ing its excesses under the name of repul> 
 " lican liberty. Free government, so far as 
 "its protective power is concerned, is made 
 " for minorities alone." 
 
 The opiniom? of Mr. Calhoun, and of that 
 peculiar school of politicians, of which he 
 may be said to have been the founder, are 
 too well known to require any comment. 
 
 Judge Grier. Mr. Calhoun denied the 
 right of secession as absolutely as any man 
 in the North. 
 
 Mr. Har:iison. But he contended as 
 strongly as any man in the South for the 
 doctrine of nullification. Mr. Calhoun, I 
 presume, just at this time, would not be 
 very high authority in Pennsylvania: but, 
 I suppose, I may refer, without offence, to 
 his Honor, Judge Sharswood's letter to Mr. 
 E. Spencer Miller, of the 4th of October last, 
 in wliich he speaks of this very doctrine of 
 secession as an open question, and as a 
 question which he himself had so regarded 
 and so treated in his lectures for the last ten 
 years. This opinion, I apprehend, is enti- 
 tled to some weight, not only as emanating 
 from an able judge and eminent jurist, but 
 from one who, but a few days ago, was the 
 judicial nominee and almost unanimous 
 electee of every party in the city of Phila- 
 delphia. And what would you think, if I 
 told you, that the President of tlie United 
 States was himself an avowed secessionist or 
 revolutionist. In his speech in the House 
 of Representatives, delivered January 12th, 
 1848, Mr. Lincoln, then an honorable mem- 
 ber from Illinois, used this language ; 
 
 "Any people any where, being inclined, 
 and having the power, have the right to rise 
 up and shake olf the existing government, 
 and form a new one that suits them better. 
 This is a most valuable, a most sacred right 
 — a right which we hope, and believe, is to 
 liberate the world. 
 
 "Nor is this right, confined to cases in 
 which the whole people of an existing gov- 
 ernment may choose to exercise it. Any 
 portion of such people that can, mat/ revolu- 
 tionize, and make ttieir own of so much of 
 the territory as they inhabit. It is a quality 
 of revolutions not to go by old lines, or old 
 laws ; but to break up both, and make new 
 
 ones." {Appendix, Congressional Globe, 
 1st Session 30th Congress, page 94.) 
 
 I will now tell your Honors why it is that 
 T refer to these authorities. 1 do not cite 
 them for the purpose either of advocating 
 secession, or of endeavoring to make a se- 
 cessionist of any of the jury, and, least of 
 all, of attempting to secessionize either of 
 your Honors ; but I do cite them for the 
 purpose of showing that good men, and able 
 men, and patriotic men, that the ablest and 
 most respectable authorities, both North and 
 South, have differed very widely on this 
 subject ; that whilst some, (and especially 
 of latej are ready to denounce secession as 
 treason, and secessionists as traitors, yet 
 others, and Mr. Rawle amongst the num- 
 ber, have not liesitated to defend secession, 
 not only as a legal right, but as a necessary 
 consequence or corroUary from the Constitu- 
 tion itself, as one of those reserved rights, (as 
 they are called, J which, not being exi)ressly 
 delegated by the Constitution to the Federal 
 Government, nor expressly prohibited by 
 that Constitution to the people, are there- 
 fore considered, as being reserved by the 
 Constitution to the people themselves. No 
 one ever doubted either the patriotism or 
 ability of Mr. Rawle ; and the time has been, 
 perhaps, when I might have ventured to say 
 the same thing of Mr. Tucker. Tliirty yeans 
 ago, when Mr. Webster and Mr. Hayne dis- 
 cussed secession, on the floor of the Senate, 
 they did it openly — they did it fairly — they 
 did it calmly and dispassionately— they did 
 it like statesmen, and like gentlemen — they 
 discussed it as a proposition, which was po- 
 sitively afiirmed upon the one hand, and as 
 positively denied upon the other ; and I 
 must say, as I always sa d, and as I have 
 always thought, that Mr. Webster, in my 
 opinion, got l)y far the best of that argu- 
 ment ; but still it never occurred to Mr. 
 Webster, or any one else, to charge Mr. 
 Hayne with treason, or to cause him to be 
 prosecuted as a traitor, simply for entertain- 
 ing or avowing secession sentiments. And 
 how far it is treason even now, for a single 
 State, or for a number of States in the Union, 
 either to think secession, or to speak seces- 
 sion, or even to act secession, may it please 
 your honors, still remains to be decided. 
 Martially speaking, and as a mere military 
 safe-guard or precaution, peisons liave been 
 arrested and imprisoned, it is true, since 
 this war commenced, upon the bare suppo- 
 sition of being secessionists ; but wliat I 
 say, and what I submit to your honors is, 
 that, civilly and legally speaking, this ques- 
 tion is without a precedent in the history of 
 this country. It is res iiitacta altogether. It 
 has yet to pass into the judgment either of 
 the Supreme Court of the United States, or 
 any of its branches ; and the learned Judges 
 of this Court, who are called upon to-day for 
 the first time to decide this question, will no 
 doubt do so, not only with a full sense of all 
 
64 
 
 the legal responsibility which rests upon 
 them, but with a due regard to all the cir- 
 cumstances under which it is presented. 
 They may tell you, perhaps, that this is a 
 question about which men have honestly 
 and innocently differed before, and about 
 which they may honestly and innocently 
 differ again. They will be reluctant, I am 
 sure to tell you, that this man ought to be 
 punished either as traitor or as pirate, sim- 
 ply for entertaining or acting upon a view of 
 the Constitution, which has the sanction of 
 such a man, and such a statesman as Mr. 
 "William Rawle. If secession, according to 
 Mr, Rawle, is constitutional, much more is 
 revolution, according to Mr. Webster, con- 
 stitutional ; or rather, much more is revolu- 
 tion independent of the Constitution, and in 
 defiance of it, because it is a higher riglit ; 
 because it is the inherent, and unalienable, 
 and indefeasible right of every people, every 
 where, and under every possible or conceiv- 
 able form of government upon ear h And all 
 of this, it seems tome — all this difference of 
 opinion, and this discrepancy of authority, 
 which I have shown you, bears materiality 
 upon the point at issue ; for it bears upon 
 the mind — the purpose— the quo animo - the 
 supposed intent of the prisoner in doing the 
 act with which he is charged, and the intent 
 is every thing. It is the intention and the 
 act combined which constitute the offence, 
 if there be any. If the prisoner supposed, 
 as Mr, Rawle did, that secession was con- 
 stitutional, or if he believed, as Mr. Web- 
 ster did, that revolution was constitutional, 
 (and why not suppose that he believed so ?) 
 then in neither case, I apprehend, ought he 
 to be convicted and punished as a traitor, 
 for having thus seceded or revolutionized, 
 or for aiding in secession or revolution ; nor 
 in either case, I imagine, can he be convic- 
 ted and punished as a pirate, for having ac- 
 cepted and acted under, a commission from a 
 government, which is founded upon such se- 
 cession or revolution. The point I make is. 
 that he who perpetrates an act, which is no- 
 toriously and admittedly wrong, commits a 
 much greater offence than he who perpe- 
 trates the same act, where it is of doubtful or 
 even questionable criminality. It lias al- 
 ways been regarded as an instance of ex- 
 treme cruelty in Caligula, that he hung up 
 his laws so high, and that he wrote them in 
 characters so small, that it was impossible 
 for his subjects to decipher them. Here 
 there was no law at all to be deciphered, in 
 characters either large or small — not one 
 statutory enactment — not (me syllable in the 
 Constitution — not one solitary decision of 
 the ffupieme Court of the United States, any 
 where or by any one, declaring secession to 
 be unconstitutional or illegal. 
 
 I make this further point before your 
 honors, that where a government de facto, 
 such as this is, (however wrongful,) acquires 
 a mastery or ascendency over the regular 
 
 government, not only by actual occupation, 
 but by go vermental organization and the ex- 
 ercise of governmental functions, that there a 
 resident of such government dejacto, owes 
 allegiance to the government under which he 
 lives, or, at least, that by rendering allegiance 
 to such government, he does not thereby be- 
 come a traitor to, and ought not, therefore, to 
 be treated as a traitor by the established gov- 
 ernment. And why ? He may be compelled 
 in self-defence to do so, and then, of course, 
 he is not a traitor. Or he may do so of his own 
 accord, and still he is not a traitor, for he 
 owes at least a temporary, an involuntary, 
 if not a voluntary allegiance, to the acting 
 government. He may be taken and dealt 
 with as a public enemy, or as a prisoner of 
 war, or compelled to resume his allegiance 
 to the government, but he cannot be treated 
 as a traitor; any more than a colonial enemy 
 of Great Britain, during the war of the Re- 
 volution, could have been treated as a trai- 
 tor by that government ; nor was he so 
 treated by that government. If this man is 
 a jiirate, simply for siding with, or for taking 
 up arms for, or for accepting a commission 
 from the government under which he lived, 
 then I submit to your honors that every co- 
 lonist, in 177G, who took sides with General 
 Washington, against the government of 
 Great Britain, ought to have been hung up 
 as a traitor by that government. There, as 
 well as here, it was a contest between rebel- 
 lion and authority ; between loyalty and dis- 
 loyalty ; between the new government and 
 the <ild one. And the British government, ac- 
 cording to the theory of its Constitution, 
 had as much right to expect allegiance, and 
 to exact allegiance from the colonies, as the 
 government of the United States has to ex- 
 pect, or to exact it from the States. This, it 
 seems to me, is the present stdtiist in quo of 
 the Southern Confederacy. It is no longer 
 an insurrection. It has passed the j)oint of 
 mere rebellion. It is impossible to assimi- 
 late it to an insurrection, which has all the 
 objection of a rebellion, without possessing 
 any of the prestige or advantage of a regu- 
 lar government. So far as its residents are 
 concerned, and in respect of their obligation 
 to submit to it, and, above all, in respect of 
 their exemption from a charge of treason, 
 for such submission — •jiioctd all this, I say, 
 it is not only a government de facto, but it 
 has assumed all the semblance, and propor- 
 tions, and potentiality, and protection, of a 
 regular government. It can no more be now 
 assimilated to an insurrection or rebellion, 
 than it could be assimilated to a mob or to a 
 common riot. Even the newspapers of your 
 city no longer speak of it as a rebellion, but 
 as a "great rebellion," — As a great rebellion 
 I suppose, in contr distinction to the little 
 whiskey rebellion, which occifi'red in 1793. 
 Besides, how would my learned friend, Mr. 
 Coffey, set about indicting a community of 
 seveu millions of human beings upon a charge 
 
65 
 
 of treason ? Or how long would it take him, 
 even with his learned colleagues to assist him, 
 to prepare all the indictments in such a case ? 
 Or how could he bring any of the ordinary 
 rules or principles of criminal jurisprudence 
 to bear upon a contest of this description ? I 
 put these questions, may it please your hon- 
 ors, almost in the identical language of Mr. 
 Burke, iu his great speech upon the subject of 
 "American Conciliation," in v hicli he says : 
 
 "At this proposition, I must pause a mo- 
 ment. The thing seems a great deal too big 
 for my ideas of jurisprudence. It should 
 seem, to my way of conceiving such mat- 
 ters, that there is a wide difference in reason 
 and policy, between the mode of proceeding 
 on the irregular conduct of scattered indi- 
 viduals, or even of ba: ds of men wlio dis- 
 turb order within the State, and the civil 
 dissensions which may, from time to time, 
 on great questions, agitate the several com- 
 munities which compose a great empire. It 
 looks to me to be narrow and pedantic, to 
 apply the ordinary ideas of criminal justice 
 to this great public contest. I do not know 
 the method of drawing up an indictment 
 against an whole people I cannot insult 
 and ridicule the feelings of millions of my 
 fellow creatures as Sir Edward Coke insulted 
 an excellent individual ("Sir Walter RaleighJ 
 at the bar. I am not ripe to pass sentence 
 on the gravest public bodies entrusted with 
 magistracies of great authority and dignity, 
 and charged with the safety of their fellow 
 citizen.5, upon the very same title that I am. 
 I really think that for wise men this is not 
 judicious, for sober men not decent, for 
 minds tinctured with humanity, not mild 
 and merciful." 
 
 Your Honors will bear in mind, that this 
 speech was delivered by Mr. Burke, on the 
 22nd of March, 1775, more than twelve 
 months before the Declaration of Inde- 
 pendence, and, at a time, when the Ameri- 
 can Colonies, all told, both black and white, 
 did not number a population of more than 
 two millions. And what is the inference 
 from all this ? Why, if America was not then 
 indictable, at the suit of England, upon a 
 charge of treason, how can the Southern 
 Confederacy be now indictable, at the suit of 
 America, upon a similar charge ? But, to 
 come nearer home, in the late case of the 
 United States vs. The General Parkhill, 
 page 3, his Honor Judge Cadwalader, said, 
 "Incidental hostilities against the United 
 " States, including the capture of some of 
 "their forts, have been followed by organ- 
 "ized opposing hostilities, and counter hos- 
 " tilities, on so large a scale, that the 
 " present proportions of the contest resemble 
 "those of a general war." And again, at 
 page 8, " If the authority of an established 
 "government has been suspended in a part 
 "of its territory by insurgents, who have 
 "temporarily substituted a revolutionaiy 
 "government in it, other governments 
 
 "which are not parties to the contest can- 
 " not, without a breach of international 
 "decorum, declare precipitately that the 
 "case is that of civil war, as disting^^ished 
 "from rebellion or organized war. But if 
 "civil war, in truth, is its legal character, 
 " such other governments may lawfully 
 "treat the revolted insurgents, not as mere 
 " {)irates, or outlaws, but as entitled, in the 
 "war to the same immunities as ordinary 
 " belligerents in a foreign war." And again 
 on page 11, " Tlie 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." Here 
 the distinction between insurrection and 
 revolution : between, organized and un- 
 organized civil war ; between mere rebellion 
 and a government, which is the result of 
 that rebellion, was well and forcibly taken 
 by your Honor, and it seems to me, to be 
 Imt a recognition by your Honor, in a 
 different shape, of the position taken by Mr. 
 Burke upon the same subject in 177-'>. 
 
 Doubtless your Honors well remember the 
 spirited contest in 1775, between the little 
 American privateer the Randolph, and the 
 British man-of-war the Yarmouth, in which a 
 gallant son of one of the most prominent 
 families of Pennsylvania, lost his life Now, 
 even if the American colonies had failed to 
 establish their independence, it would 
 probably not have occurred to the descend- 
 ants of Captain Biddle, of Philadelphia, that 
 there was a piratical bar-sinister in the 
 escutcheon of the Biddle family ; any more 
 than it would have occurred to your Honors, 
 whose ancestors I believe, as well as mine 
 did some service in the cause of the Revo- 
 lution, that we were descended from a line 
 of traitors. Or, can it be, gentlemen, that 
 the only difference between the rebel and 
 the patriot, between a privateer and a corsair, 
 is the difference between successful and un- 
 successful revolution ? I apprehend not. I 
 suppose, may it please your Honors, that a 
 much sounder and a far more intelligible cri- 
 terion, is to be found in the distinction which 
 was taken by one of your Honors in the case 
 of the General Parkhill : is to be found in the 
 distinction between insurrection and revolu- 
 tion, between organized and unorganiz d 
 civil war, between mere rebellion itself, and 
 a government which is the result of that 
 rebellion — a government, which, however 
 wrongful, or evanescent, so long as it is 
 capable of exercising authority over, and 
 demanding and exacting allegiance from its 
 subjects, is capable of affording to those 
 subjects, at least an exemption from a charge 
 of treason for such allegiance. 
 
 I trust your Honors will see what I am 
 aiming at. I am not arguing before your 
 Honors, that there was any necessity or 
 ground for this rebellion ; for it might be 
 
66 
 
 safely concederl, that there was none : but, 
 I am arguincr. before your Honors, that rebel- 
 lion lias taken place — that revolution has been 
 the result of that rebellion — that government 
 has been tlie result of that revolution, and 
 that that government, whether right or wrong, 
 is so far a government de facto if not de jure, 
 as to authorize, or, at least, to excuse pri- 
 vateering. This is what I contend for, and 
 what I mean to contend for before your 
 Honors ; and what your Honors and this 
 jury, I conceive, would be perfectly well 
 warranted in sustaining me in. I do not 
 ask you either to recognize the Southern 
 Confederacy, or to spare its subjects. No, 
 capture them; imprison them; subjugate 
 them if you can ; exterminate them if you 
 choose ; but until you do so, and so long as 
 this war shall last (whether it be long or 
 shortj in God's name, treat them as they 
 are treating you — treat them as you would 
 expect to be treated by them — treat them as 
 the law of nations and the dictates of 
 humanity require, that they should be 
 treated — treat them as captives, not as 
 criminals — treat them as prisoners of war, 
 not as traitors or as pirates. This is wisdom, 
 policy, justice, law, humanity, mercy, 
 Christianity. Take my word for it, this will 
 go far to prevent retaliation, and to save 
 the elfiision of blood upon both sides, which 
 is always, according to Vattel, to be mainly 
 looked to in a time of war. Whether it is a 
 civil war, or a foreign war, or a simple in- 
 surrection or rebellion, there is no difl'erence 
 in the humanity which ought to be shown 
 to prisioners. As a civil war between two 
 parties of the same nation, it stands upon 
 the same ground, in every respect, as a 
 public war between two dilFerent nations. 
 "Custom" fsays Vattel, b. 3, cli. 18, s. 
 292,) "appropriates the term of ciril w r 
 " to every war between the members of one 
 "and the same political society. If it be 
 "between part of tlie 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 rivil mn, and not that of rehellion. 
 " This latter term is applied only to such 
 " an insurrection against lawful authority as 
 " is void of all appearance of justice. The 
 " sovereign imleed, 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 
 " io 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.' " And again .section 
 293,^ " a civil war breaks the bands of 
 " society and government, or at least sus- 
 " pends their force and effect: it produces 
 " iu 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 consti- 
 " tuting, 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, l^esides, 
 "who shall judge them? who shall pro- 
 " nounce on which side the right or the 
 " wrong lies ? On earth they have no com- 
 " mon 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 ol>- 
 I " servedbyboth parties iu every civil war " 
 ! And what has the government done here- 
 tofore with its prisoners ? What did it do 
 ' with them at Fort Hatteras ? If prisoners 
 \ of war at Fort Hatteras, why not prisoners 
 of war on board the Petrel, or the Enchaut- 
 I ress, or any where else ? Or, if j^risoners 
 : upon land, why not at sea ? Who ever 
 I heard of such a distinction as is now at- 
 tempted to be maintained by the govern- 
 j ment of the United States ? Or why is it, 
 I up to this time, that the first Southern 
 prisoner, whether privateer or otherwise, 
 ' has yet to be punished as a traitor by the 
 I government ? It is because tlie government 
 j of the United States, however it may de- 
 precate the existence of this revolutionary 
 movement, or however determined or able 
 it may be to crush it out, is yet unwilling — 
 whether from motives of humanity, or from 
 I motives of policy, is not material — to regard 
 I this war as anything more than an unautho- 
 I rized, but organized civil war, or to consider 
 the captured subjects of the Southern Con- 
 I federacy, whether privateers or soldiers, as 
 anything more than prisoners of war. 
 
 When Fort Hatteras was surrendered the 
 other day, was it not one of the terms of 
 that surrender, that its prisoners should be 
 treated as prisoners of war ? I appeal to the 
 learned counsel (.ludge Kelley) who con- 
 cludes this prosecution for the government, 
 to say, if it is not so. Beyond the news- 
 paper statements to that effect, I have no 
 evidence, I confess to show the fact, but it 
 is not my fault. I have written to Wash- 
 ington, I even telegraphed to Washington 
 to obtain it, but I could not do so I appeal, 
 therefore, to the learned counsel himself, to 
 say, (if, forsooth, he is in the secrets of the 
 government, J whether the articles of capit- 
 ulation at Fort Hatteras, which were accepted 
 and signed by General Butler, on behalf of 
 the Government of the United States, were 
 
67 
 
 not also accepted and signed by Commodore 
 Barron, as Flag officer inthe service of the 
 Confederate Navy ? 
 
 Mr. Kelley. Do you appeal for a present 
 answer ? 
 
 Mr. Harrison. No, sir, it will do when 
 the uentleman suras up. 
 
 Here then, may it please your Honors, and 
 in the most solemn form imaginable, the 
 Government of the United States not only 
 recognized the Southern Confederacy as a 
 belligerent, but as a government ; as a 
 government de facto if not de jure ; as a 
 government having competent authority, 
 throngh its proper officer, not only to dic- 
 tate but to consummate the terms upon 
 which a beleagured fortress was surrendered. 
 And has not the Government of the United 
 States recently made an exchange of prison- 
 ers with the Southern Confederacy ? Again 
 call for light upon the subject. What was I 
 this, but another and a still more formal 
 recognition of the Southern Confederacy as 
 a government ? And after all this, may it 
 please your honors ; and after much more 
 of the same description, which I have not 
 the time at present to recur to, would it not 
 be the most astonishing thing in the world, 
 if persons, thus treated by the government, 
 as prisoners of war in one place, were to be 
 hung up as pirates in another? Verily it 
 ■would sound well in the after history of the 
 United States, that the sword of criminal 
 justice, which had overlooked so shining 
 a mark as the Honorable Charles James 
 Faulkner, of Virginia, had been plunged at 
 last, and for the first time, into the bosom 
 of a poor seaman like William Smith ; and 
 that tlie learned legal triumvirate wlio rep- 
 resent the government on this occasion, had 
 been instrumental in effecting so distin- 
 guished a public execution. If they should 
 fail, however, in that attempt fas I liope 
 tbey will j they will at least have the conso- 
 lation of exclaiming, 
 
 " Nee tJiin turpe fuit vin>i, 
 Qiiam conti'ti'lisse di coi um < st." 
 
 So much for the first point, in the case, 
 which is, that the Southern Confederacy is a 
 government dr facto if not de jure, at least 
 so far as to authorize privateering — or at least 
 so far as to exempt its privateers from all 
 the penalties of the crime of piracy. 
 
 The next point is, that, whether the com- 
 mission was valid or invalid, tlie prisoner at 
 least believed, and had reason to believe, 
 that it was valid, and that he is protected 
 in law, by that belief. Whether he looked to 
 the government itself, or to the power of 
 that government, o>r to the conformation 
 of that government, or to the operations 
 and success of that government, or to the 
 mode by which that government was estab- 
 lished, whether founded in revolution or 
 secession, or to the difference of opinion, as 
 well as conflict of authority in regard to it — 
 all, I say, was well calculated to produce 
 
 the belief upon his mind, ("and it no doubt 
 did), that he was acting under a commission, 
 which, whether valid or invalid, was at least 
 sufficient to protect him against a charge of 
 piracy. When, on the morning of tlie 12th of 
 June, 1861, he first saw and heard the letters 
 of marque and reprisal publicly read by 
 Captain Coxsetter, from the quarter deck of 
 the Jeff. Davis, did he not believe, and did lie 
 not have reason to believe, and would not 
 the jury, themselves, under similar circum- 
 stances, have believed, that Captain Coxset- 
 ter was a privateer and not a pirate ; and that 
 the commission and flag under which they 
 sailed, were at least potential enough to 
 shield them from a felon's grave ? This 
 brings him within the principle wliich I have 
 spoken of, that a well founded ignorance of 
 the law, and a difference of opinion, and a 
 discrepancy of authority as 'o what the law 
 is, and especially in tlie absence of any posi- 
 tive law or express decision upon the sub- 
 ject, may well exempt, at least fiom criminal, 
 if not from civil responsibility. The maxim, 
 that every man is presumed at his peril to 
 know the law. applies only to the law, either 
 as it is actually written, or as it is actually 
 expounded by the judges; either to the lex 
 scrijita or to the lex judicata of the country. 
 Here there was neither. Where is the law, 
 or where is the constitution, or where is the 
 judicial exposition, either of law or consti- 
 tution, declaring secession to be unconstitu- 
 tional or illegal ? No where — no where. I 
 undertake to assert, that it is no where. The 
 courts have said, and very properly, that it 
 is not comjjetent to any State in the Union, 
 and under the Union, and under the Consti- 
 tution of that Union, to refuse obedience to 
 its laws, and still remain in it ; but if ever 
 the question which 1 am now considering ; 
 if ever the question, as to how far it is trea- 
 son for any State, or for any number of 
 States in the Union, not only to revolution- 
 ize, but to secede — if ever this question, I 
 say, has been judicially acted upon or de- 
 cided, I have yet to be apprised ot it ; and I 
 challenge the production by the government 
 of a solitary decision to that elfect. 
 
 So much for the second ground of the de- 
 fence ; and this is a ground, gentlemen, upon 
 which you amy readily acquit the jirisoner, 
 without recognizing the right of the Southern 
 Confederacy as a government, to authorize 
 privateering. In the case of the United 
 States rs. Hanway, (2 Wallace, Jr., p. 2()(JJ 
 ignorance of the acts of Congress which ho 
 was charged with violating, was one of the 
 very grounds assigned by your Honor, Judge 
 Grier, for the acquittal of the prisoner. 
 
 The third point I shall make is, that, 
 whethm- the commission was valid or invalid, 
 and whether the prisoner believed or did 
 not believe that it was valid, he is still pro- 
 tected ; and this concedes every thing to 
 the government, save the guilt of the ac- 
 cused. What I say now is, that he had no 
 
68 
 
 discretion or volition in the premises ; that 
 in legal contemplation, it cannot be said that 
 he ever consented to become a privateer. 
 "Consent," (^says Mr. Story, J "is an act of 
 reason, accompanied with deliberation ; the 
 mind weighing as in a balance the good 
 and the evil upon both sides." Can it 
 be said that he ever gave sucli a consent 
 in this case ? Look to the sequestration 
 and confiscation laws of the Southern Con- 
 federacy. Was there no compulsion in that ? 
 Or look to the militia sy tem of that Con- 
 federacy, which requires every able bodied 
 man, over the age of sixteen, and under the 
 age of sixty, to render military or naval 
 duty or to quit the country. Was there no 
 compulsion in that either ? How far he may 
 have voluntarily submitted to the vis major, 
 or to the over ruling necessity which sur- 
 rounded him, it is impossible for us to tell, 
 nor is it necessary, in truth, that we should 
 tell. It is enough for you to know, that he 
 was surrounded, in fact, by such neces ity; 
 that he was acting under a physical, or at 
 least under a moral or legal duress, which 
 there was no resisting ; and that he had no 
 alternative un<ier the circumstances, but 
 submission or flight ; and flight, it may be, 
 was impossible. If his property and his 
 home were in the South, he may not have 
 been able to afford to leave them. It may 
 have been utter, absolute, startling, staring 
 ruin forhim tothinkof leavingthem; or, if his 
 family and his friends lived South, he may 
 have been anxious, if possible, to get them 
 away from there, but had not the means of 
 doing so. What then ? Would you hang 
 a man as a traitor, simply for sticking to a 
 country where rebellion is, when it was not 
 in his power to get away from it, and when 
 he was compelled to submit to it if he staid. 
 Was not this the condition of this prisoner 1 
 He owed, at least, a temporary, an involun- 
 tary, if not a voluntary allegiance to the 
 government under which he lived. That 
 government was strong enough to enforce 
 its laws. Right or wrong, it was not only 
 strong enough to enforce its laws, but it did 
 enforce them. It exacted his allegiance, 
 and it demanded his support — and he was 
 bound to pay it — and if he was bound to pay 
 it in one shape, he had a right to pay it in 
 another. If he was bound to enlist as a 
 volunteer, or as a soldier in the Confederate 
 army, he had a right to become a privateer; 
 because privateering, as 1 understand it, is 
 but another form of fealty ; but another 
 mode of manifesting his allegiance to the 
 reigning government. And just precisely 
 such consideration as would have been shown 
 to him as acaptured volunteer or soldier in the 
 Confederate service, ought to be shown to 
 him as a captured privateer. Nothing more, 
 nothing less. If, according to the ruling in 
 the case of the Parkhill, a mere residence 
 South, without more, is sufficient to dena- 
 tionalize such resident as an American 
 
 citizen, then I put it to you, gentlemen" of 
 the jury, and I put it to their Honors upon 
 the bench, what was it possible for this 
 prisoner to have done, but to go over, heart 
 and hand, body and soul, willingly or un- 
 willingly, to the Southern Confederacy, if 
 it was not in his power to get away from it. 
 I have a right to presume in this case, from 
 the humble circumstances and condition of 
 the prisoner, that it was not in his power to 
 get away from it. On the question of duress, 
 I refer your Honors to 1 Story, Eq. s. 222, 
 Pnffendorf (Barbeyrack's note) 16. ch. b", 
 s. 3 ; Grotius lib. 2, ch. 11, s. 4 and 5, and 
 to his Honor, Judge Cadwalader's opinion, 
 and the authorities cited by him in the late 
 case of Charles A. Greiner ; see Leg. Int. 
 10th of May, 1861, p. 150. 
 
 "All consent," (says Grotius,) "sup- 
 poses three things. 1st. A physical power. 
 2nd. A moral power, and 3rd. A serious and 
 free use of them." Now I apprehend, may 
 it please Honors, that a Unionist South, 
 just at this time, would stand about as poor 
 a chance of speaking and acting what he 
 thought, as a Secessionist would here in 
 Philadelphia. In either case, he would have 
 to lie low and keep dark ; to study the 
 philosophy of reticence ; and to have a 
 thorough knowledge and comprehension of 
 that little cabalistical word called ''nmm." 
 If he did not, he might possibly find, in his 
 case, that the transition from Philadelphia to 
 Fort Lafayette, was quite as sudden and un- 
 expected as that of a certain Christopher Sly, 
 who fell asleep upon the hard pavement, and 
 woke up in the bed chamber of a nobleman. 
 Or possibly, the obligation to submit in this 
 case, might be well referred to that lex neces- 
 sitatis which is spoken of by Vattel, and 
 which was held to have justified the rape of 
 the Sabine women. Certainly, the instinct 
 of self-preservation, is quite as strong as 
 that of the propagation of the species. 
 
 I rely upon your Honors' decision in the 
 case of Greiner, for two purposes, 1st. to 
 show that actual force, or its equivalent, is 
 a good legal defence here for the accused ; 
 and then, I contend, in this connection, that 
 the sequestration, confiscation, and militia 
 laws, and army bill, and the various procla- 
 mations, and other proceedings of the 
 Southern Confederacy, were tantamount in 
 law to such a force ; and 2nd, to show that 
 the obligation to submit to any government, 
 and tbe right to receive protection from that 
 government, are convertible and corrella- 
 tive terms. It is of the essence of every 
 government ; it enters necessarily and in- 
 evitably into every man's conception of any 
 government, that whilst it receives support 
 upon the one hand, it is bound to afford 
 protection upon the other ; and the moment 
 you destroy or suspend the one, you annihi- 
 late or suspend the other ; so, that, when 
 the courts of the United States became com- 
 pletely suspended or closed in the Southern 
 
69 
 
 Confederacy ("as it is a matter of notoriety 
 as well as proof, that tliey have been for 
 months, and that they still are,) so as to he 
 no longer able to administer justice, and to 
 enforce the law in that Confederacy, tliat 
 then a resident of such Confederacy, became 
 absolved, at least so far absolved from all 
 allegiance to the government of the United 
 States, so as to place him upon the footing 
 (if a public enemy, and not of a traitor, to 
 that government, because he rendered that 
 allegiance, which he was bound to render 
 to the government under which he lived. 
 This, it seems to me, is the plain English 
 and purport of you Honors' decision in the 
 (xreiner case ; and Vattel's Law of Nations, 
 b. 3, ch. 18, s. 200, is to the same effect. 
 It is said in Martin vs. Hunter's Lessee, 
 (1 Wheaton, 3G3, ) that when judicial pro- 
 cess is obstructed by any opposition, which 
 it cannot overcome, that government is no 
 more. I know your Honor, Judge Cadwala- 
 der, said, in the case of the Parkhill, that the 
 right to revolutionize could not be considered 
 here, until the power to revolutionize had 
 been established. Very well. But my 
 answer to that is, first, that I am not con- 
 sidering the right to revolutionize but the 
 effect of revolution ; and second, even if it 
 were neccssarj^ to consider the right to revo- 
 lutionize, and if that right were only con- 
 siderable after the power to revolutionize 
 lias been established, still, I say, that that 
 power has in fact been established, or at 
 least so far established by the Southern Con- 
 federacy, as to bring it fully and fairly within 
 the qualification or restriction which was laid 
 down by your Honor in the Parkhill case. 
 
 So much for the third point of the defence ; 
 and this is another ground upon which the 
 jury may acquit the prisoner, without con- 
 ceding the right of the Southern Con- 
 federacy to establish privateering. 
 
 Fourth and lastly : — This court, I contend, 
 has no jurisdiction of this case. The Statute 
 says, that the prisoner must be tried "before 
 the Circuit Court of the United States, for 
 the District into which he shall be brought, 
 or in which he shall be found." This means, 
 into which he shall,/irs« be brought, or where 
 he shall ^' /-.si be found, and this was neither. 
 He was neither found in Philadelphia, nor 
 was he brought to Philadelphia in the sense 
 of the Statute. On the contrary, before 
 coming here at all, he was twice brought 
 into Hampton Roads, within four or five 
 hundred yards of the Virginia coast, and 
 there he was detained as a prisoner on 
 board the Albatross, for several days. This 
 gave jurisdiction to the Circuit Court of the 
 United States, for the Eastern District of 
 Virginia; and, although that court is now 
 practically suspended, and there is no 
 longer any Judge thereof in Virginia, still, 
 accoi-ding to your Honors' decision in the 
 case of Greiner, its jurisdiction, at least, is 
 unimpaired. The Statute could not have 
 
 intended to use the word ' found ' as 
 synonymous with 'apprehended.' If it did, 
 still the prisoner, I say, was not apprehended 
 in Philadelphia, but on the high seas, and 
 as he could not have been tried where he 
 was first arrested, he ought to have been 
 tried in the District into which he was 
 first brought, which was the Eastern District 
 of Virginia. This is all I have to say upon 
 the question of jurisdiction. 
 
 And now, may it jjlease your Honors, I 
 have a word or two to say to the learned 
 counsel, Mr. Earle, who opened the argu- 
 ment for the prosecution. I have not suf- 
 fered myself to be drawn into a discussion 
 of the origin of this unfortunate war. 
 Whether the blame is on the North, or on 
 the South, or a little on both — whether it is 
 the natural and necessary offspring either 
 of slavery, or of anti-slavery propagandism 
 —whether it originated in Southern ultra- 
 ism, or in Northern abolition— whether it 
 originated with the party to which the learned 
 counsel himself belongs, or some where else 
 — these are questions, I say, which I will not 
 permit myself to be dragged into for a mo- 
 ment, not, even, if such an example had been 
 set me by the learned counsel. If I did, 
 however, I might probably hold the learned 
 counsel himself to his full share of responsi- 
 bility in the matter. I might possibly 
 venture to suggest to him, that it is he 
 himself — that it is such ultraists and ex- 
 tremists as he is, both North and South, 
 and in the pulpit as well as out of it — that 
 it is such virulence of language, and such 
 intolerance of opinion, as we have heard to 
 day, (and this is notthe first time, and in this 
 very Court House, that I have heard such 
 language from that counsel}, which has 
 done more to sever the cords of brotherly 
 love, and to shake the foundations of this 
 government, than any thing else. But, be 
 this as it may, I assure the learned counsel 
 of one thing, that no one regrets this un- 
 fortunate condition of the country more than 
 I do, or would rejoice to see it remedied, 
 more than I would. It is the last picture 
 upon earth which I ever expected, or de- 
 sired, or designed to contemplate. And if 
 ever the learned counsel thinks proper to 
 erect an altar to the manes of a broken 
 Union, (if broken indeed it bej, I promise 
 to be as honest and as earnest a worshipper 
 at that altar, and to shed as few crocodile 
 tears over its precious relics, as the learned 
 counsel for the government or any one else. 
 
 Two years ago, when I removed from 
 Virginia to Philadelphia, all fat least com- 
 paratively speaking) was peace, tranquillity, 
 happiness, power, Union — a Union not in 
 name only, but in fact — a Union, it is true, 
 to some extent, discordant and belligerent, 
 but still a Union. But now what is it ? In 
 the last few months, the pistol has taken 
 the place of the ploughshare — peace has 
 been exchanged for war — and the sword, as 
 
70 
 
 it leaps to-day from its scabbard, hardly 
 knows, whether it is to be plunged into the 
 , l)osoni of an enemy, or a stranger, or into 
 ^ that of a father, or a brother, or even of a 
 beloved child. But I will not pursue this 
 picture any farther. It is sickening, sad- 
 dening, heart-rending, woful, wretched in 
 tlie extreme. It is a spectacle, over which 
 angels well might weep, and devils laugh. 
 15 at the learned counsel (Mr. Earlej made a 
 singular argument before the jury. I would 
 not do him any injustice. I would not 
 detract from the force of his argument, if I 
 could. If it was not so able an ai'gument 
 as I have sometimes heard from him ; it was 
 at least well calculated to produce all the 
 lodgment and effect, which it was designed 
 to have. It was an argument, too, to which 
 1 listened, I confess, both with pain and 
 ])leasure ; with pleasure, because I trust I 
 can appreciate the well rounded periods, 
 and the flowing diction of that counsel, 
 liowever we may differ, as to the purpose or 
 the principles, to which he is endeavoring 
 to apply them ; with pain, because it is a 
 matter of no little regret to me, I confess, 
 that one so gifted as the learned counsel, 
 should have made this the occasion of such i 
 a display, as we have heard to-day ; that he 
 should have lost sight of the fact entirely j 
 (as he seems to have done) that this is not I 
 a hustings, or an arena, but a Court of j 
 Justice ; and that this man, that this unfor- 
 tunate individual now before you, whether ' 
 lie be privateer or pirate, rebel or patriot, i 
 guilty or innocent, is nevertheless entitled 
 to a fair and impartial, and dignified, and 
 decorous trial, at the hands of this jury. | 
 How far it may comport with such a trial, oi- 
 with the dignity or magnanimity of the 
 ]irosecution, not only to condemn but to 
 revile ; not only to prosecute with severity, 
 but to pursue with venom ; and even to 
 appeal to prejudice as well as reason to 
 secure a verdict, — I leave it to the learned 
 counsel for the Government, when profes- 
 sional rivalry has subsided, and when the 
 passions of this day have passed away, to 
 determine for himself. My learned friend, 
 Mr. Coffey — I know him too well to think 
 the contrary — would not have imitated the 
 example which has been set him by his 
 learned colleague. He would have done his 
 iluty, I am sure, but nothing more ; and 
 whilst he discharged that duty skillfully 
 and faithfully, as he ought to have done 
 (and as 1 think he would) lie would not 
 have encroached one hair's breadth, wan- 
 tonly and unnecessarily, upon the feelings or 
 the rights of those, whom accident, or mis- 
 fortune, or even crime, may have thrown 
 across his path. If lie felt any indignation, 
 or manifested any indignation, ujion the 
 occasion, it would rather have been against 
 tiie heads and front of the offence, (who are 
 not before yon) and not against this humble 
 individual, who, whether he be guilty, or 
 
 whether he be innocent of the offence, is but 
 an instrument in the hands of others. This 
 is the part of manhood, and of noble nature 
 everywhere ; and my learned friend Mr. 
 Coffey (I would he were here to hear me 
 say so^ is every inch a man. He would 
 liave recollected too, I am sure that there 
 are others, besides the prisoner, who are 
 interested in the verdict you may render. 
 Would to God that it were otherwise ! 
 Would to God, gentlemen, that whenever it 
 becomes necessary to enforce the severity of 
 th<> law, the blow could fall only upon the 
 guilty, or upon those at least who are sup- 
 posed to be. But this we know to l>e 
 impossible. Constituted and circumstanced 
 as we are, it is impossible. The meanest 
 wi'etch that crawls upon the face of the 
 eavtli has still a claim upon the sympathy 
 of some one. You cannot separate him ; 
 you cannot alienate him ; you cannot tear 
 him from that sympathy. You cannot touch 
 I a chord in his bosom which doef? not vibrate, 
 j by a thousand feelings, and with a thous- 
 j and sympathies and emotions, through the 
 hearts of others. Place him where youi 
 may, dishonor and degrade him, as jon 
 j choose ; in all time of his tribulation ; in all 
 time of his distress ; in prosperity and in 
 j adversity ; in guilt, or in innocence ; in 
 I honor and dishonor ; in weal or in woe, he 
 j is still the centre of a circle, which he calls 
 liis own, and to which kindred, and liome, 
 ' and friends, and family, and a thousand 
 j interesting and endearing associations and 
 relations, have indissolubly and forever 
 ' bound him. Into this little sanctuary of 
 this humble prisoner, my learned friend 
 (Mr. Coffey^ would no more obtrude with 
 ruthless stei), than he would tread too hard 
 upon the cradle of an only child, ( if he had 
 one, ) or upon the grave of a departed 
 mother. 
 
 Gentlemen, if you have a doubt as to the 
 guilt of the accused, you ought to Hcquit 
 him. The law requiies no sacrifice ; it de- 
 mands no victim at your hands. It would 
 much rather that ninety-nine guilty persons 
 should escape from punishment, than that 
 one innocent man should be made to suffer. 
 If you have a doubt therefore, you should 
 acijuit. Absolute, mathematical, or meta- 
 physical certainty, is not to be expected or 
 refjuired. But still if you have a doubt, 
 upon your minds, a solitary doubt in reason, 
 as to the guilt or innocence of the prisoner, 
 it is your duty to acquit him. The law 
 requires you to give him the benefit of 
 every doubt, whether as to law or as to fact, 
 whicli the case admits of. And it seems to 
 me, it would be difficult if not impossible 
 for any unprejudiced, or even prejudiced 
 mind to say, that this case, in all its 
 branches, and upon all the points which I 
 have stated, fand which will be no doubt 
 much more fully, and much more forcibly 
 presented by my learned colleague, Mr. 
 
71 
 
 Wharton who concludes the defence of the 
 accused,) is utterly free from all that doubt 
 which entitles him to an acquittal at your 
 hands. I hardly think you will be able to 
 come to this conclusion. 
 
 Gentlemen, I have no ground in this case 
 for any personal appeal to you for the pri- 
 soner. He has none of those appliances 
 either of wealth or station or connexion, 
 which sometimes lend an interest and im- 
 portance to a case like this. He stands 
 here alone, and he looks to you alone for 
 all that portion either of justice or of mercy, 
 which is left to him upon earth. So far, 
 however, I do appeal to you, and I have a 
 right to appeal to you in his behalf. To 
 you, at least, it is a matter of little conse- 
 quence, whether he is an ex-minister of 
 France, or a Senator of the United States, 
 or an humble pilot from Savannah, rocked, 
 almost from his infancy, upon the sea itself. 
 The law knows no one, and ought to know 
 no one, in the administration of criminal 
 justice. It punishes all alike. It looks 
 with an eye single to the crime, without 
 reference to the condition of the criminal. 
 It metes out to every man, and every 
 where, the same measure and degree of hu- 
 man justice; "good measure, pressed down, 
 shaken together, and running over." This is 
 all I ask, or which I have a right to ask for 
 the accused. With these remarks, gentle- 
 men, so far as I am concerned, and with 
 many thanks to you, as well as to their 
 Honors upon the bench, for the patience and 
 kindness with which you have been pleased 
 to listen to me upon this occasion, I submit 
 the case of the prisoner into your hands. 
 
 Mr. Wharton. May it please your 
 Honors, Gentlemen of the Jury, alter the 
 very full, and, I may say, exhaustive argu- 
 ment of my learned colleague, it would 
 appear almost unnecessary for me to con- 
 sume more of your time in the defence of 
 this case. This man, however, who sits 
 behind nie, and who was a perfect stranger 
 to me until about three days ago, has 
 asked my professional services in his be- 
 half, and in the discharge of my profes- 
 sional duty I have accorded them to him. 
 Feeble although that effort may be, that 
 effort will be now rendered, as briefly as I 
 can make it consistently with my sense of 
 duty. 
 
 This case, gentlemen, commends itself to 
 your consideration not only by reason of 
 its gravity, but of its novelty. It is a grave 
 case, because the happiness of a Northern 
 wile, of a littb' boy at a Northern college, 
 and of an aged ancestor yet living at the 
 South, hang upon your verdict. Besides 
 that, the life of one who has heretofore 
 passed among his fellows as an honest, 
 industrious, and good man, hangs upon it. 
 The novelty of the question, also, com- 
 
 mends it to your grave consideration. It 
 is the first time, thank God, in the history 
 of our country, in which such a question 
 has been presented to the determination of 
 a jury. Since the formation of our happy 
 constitution of government, no man has 
 been tried as this man is now tried. I 
 believe it to be the first case in which one 
 has stood before a jury of his countrymen, 
 his life resting upon their verdict, for 
 alleged disobedience to such a law as this 
 which is now on the statute book. We 
 have hud heretofore in the history of our 
 country, no organized civil war. We have 
 had cases of partial rebellion ; the history 
 of our own Commonwealth, unfortunately, 
 furnishes the two most prominent instan- 
 ces. You have heard of the insurrection 
 in the W^est, at Pittsburgh, and of the 
 Northampton insurrection; they both oc- 
 curred within the limits of Pennsylvania. 
 They were the resistance of armed bodies 
 of men (not, however, claiming to them- 
 selves the functions of civil government), 
 against the laws of the United States, 
 'i'hey were dealt with, and properly dealt 
 with, as traitors, and were convicted as 
 such. But if this is the first instance in the 
 history of the United States of America, 
 in which a man has been placed in a court 
 of justice to answer with the penalty of his 
 life for an offence such as that with which 
 this man is charged, and who has presented 
 to a jury the defence which he does, I trust 
 it may be the last arising out of an organ- 
 ized civil war in the United States of 
 America. There is everything, therefore, 
 gentlemen, in this case, to commend it to 
 your careful and conscientious deliberation ; 
 and I am sure that neither you nor either 
 of the learned Judges on the bench will 
 criticise the counsel in the cause for the 
 consumption of time in its discussion, or 
 for the presentation of points which may 
 be — many of them, I hope not all of them 
 — foreign to your prepossessions and your 
 opinions as citizens. I am sensible of the 
 difficulty of arguing such a case as this 
 before a jury of citizens of the United 
 States of America, and before Judges who 
 have been sworn to support the Constitution 
 of the United States, and faithfully to ad- 
 minister her laws. At the same time, 1 feel 
 entirely confident that if I can satisfy those 
 Judges or yourselves, gentlemen, that the 
 existing laws of the United States do not 
 mean such a case as the present; if, on a 
 fair consideration of the question presented, 
 the result should be reached that this man 
 is not within the spirit of the existing 
 statutes of the United States, whatever 
 your political opinions may be in regard to 
 the course of those persons at the South 
 with whom this man was associated, you 
 
72 
 
 ^'ill cheerfully render a verdict of acquittal 
 and leave it to the Conoress of the United 
 States to meet the exigency of the case by 
 after-legislation. 
 
 I am quite justified, I think, in saying 
 that we are in a state of tilings and in a 
 condition of the country tlnit was hardly 
 antici])ated when our government was 
 formed and our existing laws were enacted. 
 No man doulits that we are in a state of 
 war in the United States of America. 
 Kvery mail brings us the news of the death 
 of some one who has fallen upon the battle- 
 field, and its mournful lidings ctnne heavily 
 to many a heart in Pennsylvania. No 
 man, I say, can doubt that we are in a 
 stale of war; and yet who will assert that 
 that war is within the letter ol the Consti- 
 tution of the United States, which declares 
 that the Congress shall ''declare war?" We 
 are governed by statutes which were passed, 
 just as that clause of the Constitutiun was 
 penned, not with a view at all to such a 
 case as the present, but with a regard to 
 our foreign relations; and so far as the 
 statutes which are supposed to apply to 
 this case are concerned, with a view to 
 ofiences entirely dilierent, as I shall en- 
 deavor to show you, from that with which 
 this man is charged. In other words, in 
 construing this statute of the United 
 fcjtates, just as in construing the Constitu- 
 tion of the United States, we must take 
 things as we find them ; and if we discover 
 that we are in circumstances which arc 
 thought to jusffy the President of the 
 United States and the great officers of the 
 Goveruuient in asserting thut they are eor;- 
 tendin^ for the life of tlie Union and must 
 shut their eyes to the letter ol the Constitu- 
 tion; and when the President, in substance, 
 says, " I take from necessity a course 
 ■which is not in strict conformity to the 
 ■written Constitution, but 1 rely for my 
 approval on the sanction of the representa- 
 tives of the people, to be afterwards as- 
 sembled;" and when we find these same 
 great officers of Government maintaining 
 that, in consequence of the ininunent peril 
 to which our Government is exposed, we 
 must not regard the piovisioii of the 
 Constitution relative to the great writ of 
 habeas corpus, that shield of individual 
 right; and when we thus find the supposed 
 necessities of the case excusing these de- 
 partures from the spirit of the Constitu- 
 tion, shall we not say, gentlemen, and will 
 you not be glad to say in regard to the 
 poor man now before you, that if the stat- 
 ute under which he is indicted has no 
 reference, aud had none in the intention 
 of its makers to such a case as his, in the 
 name of J ustice let him go from this Court, 
 to be welcomed by his wife aud his child, j 
 
 If there has been no law for the President, 
 in his acts, but that of necessity, do not 
 now reject such a palliation for the conduct 
 of the unfortunate accused. 
 
 Now, may it please your Honors, this 
 man stands, as I understand it, indicted 
 under :m Act of Congress passed in 1S20. 
 That Act is in general words, — it says that 
 any person who shall commit robbery on 
 the high seas shall be punished with death. 
 The iiidi';tment is under that particular 
 Act of Congress. It. was so opened l^y my 
 friend, the Assistant District Attorney. 
 His colleague, Mr. Earle, who summed up 
 this case for the Government, threw into 
 the argument another Act of Conuress as 
 perhaps applicable to the case. I do not 
 understaiiii that it was distinctly put before 
 the Court and jury, that the indictment 
 was framed under the Act of 1790; but 
 that previous Act of Congress, in view of 
 the probable weakness of the prosecution, 
 it was supposed, might possibly help the 
 case. Under one or the other of these 
 Acts of Congress, this man stands indicted, 
 and upon your decision thereupon depends 
 the question of his life or death. 1 will, 
 however, take the case as it was openea to 
 you by the District Attorney, and will sup- 
 pose that he stands in peril of his life by 
 reason of his alleged violation of the Act 
 of Congress of 1B20, which, almost in the 
 words I have used, punishes with death 
 robbery by any person on the high seas. 
 How stands the question under that law'? 
 
 The Act of 1"<19. passed a year before, 
 as your Honors well know, was temporary 
 in its terms; it expired long ago. It pro- 
 vided that any one who committed piracy 
 "as defined by the law of nations," should 
 suffer death; and the question came up in 
 the case of the United States against 
 Smith, 5 Wheaton, p. 153, in the first 
 place, whether Congress by that Act had 
 fulfilled the constitutional provision which 
 gave it power "to define and punish pira- 
 cies" by providing that piracy sliould be, 
 not what was expressly defined by the 
 statute itself, but such a crime as the law 
 (if nations defined it to be. The Supreme 
 Court decided that the particular Act was 
 a constitutional exi-rcise by Congress of its 
 power in the premises, and that the defini- 
 tion of piracy by the law of nations was so 
 specific that a man in the Courts of the 
 United States could be indicted, tried, con- 
 victed, and hanged for the otfence under 
 that Act of Congress. Piracy was an 
 otfence so well known to the laws of na- 
 tions, that Congress could adopt it in those 
 general words, and declare that whatever 
 was piracy by the law of nations, should 
 be piracy under the statutes of the United 
 States. Questions, however, of constitu- 
 
n 
 
 tional power were raised, and, no doubt, in 
 view of that fact. Congress, in the following 
 year, passed the present Act under which 
 William Smith is indicted ; which, while it 
 extends the provisions of the Act of 1819 
 beyond the high seas, into bays and rivers 
 emptying into the ocean, strikes out the 
 general definition of piracy contained in 
 the Act of 1810, and puts into the Act of 
 1820, in express terms, the definition which 
 was recognized by the law of nations. The 
 point, therefore, that I respectfully make 
 to your Honors, and to the gentlemen of 
 the jury, is, that whatever was piracy under 
 the laws of nations is piracy under the Act 
 of 1820, under which this man stands in- 
 dicted; and that whatever was not piracy 
 by the law of nations, is not piracy under 
 the Act of 1820. 'J'here is no alteration 
 in the two x\cts, except that which I have 
 indicated. The Act of 1819 was a tempo- 
 rary Act ; it contained certain provisions 
 which were temporary in their character; 
 it had also a provision, in its fifth section, 
 which was more general, which assumed to 
 punish piracy as defined by the law of na- 
 
 with him on the great pathway of nations. 
 The term becomes known to the law of na- 
 tions because of the place of the commission 
 of the oflfence. A robber on land pursues 
 his avocation within the jurisdiction of a 
 particular country. He assaults you on the 
 highways of Pennsylvania, or Virginia, or 
 the roads of New York; he does not ex- 
 tend his operations over the whole earth ; 
 he is local in the commission of his crime, 
 and is therefore within the jurisdiction of 
 a municipal tribunal. 'I'he robber who 
 goes upon the seas, goes beyond the juris- 
 diction of any nation ; plunders any or all, 
 upon the great highway of nations; and 
 therefore his offence is against nil nations ; 
 he goes where the citizens of all nations tra- 
 vel, where the Englishman can be caught, 
 where the Frenchman can be surprised, 
 and where the Spaniard can be found, as 
 well as our own countrymen ; he goes not 
 into some secret place in the woods of 
 Pennsylvania, and there assaults and ro'^s 
 his victim. Hence, he is an enemy of the 
 human race, and his offence is punished 
 by the laws of all nations ; he knows no 
 
 tions ; but as it was a question which was j law himself, and as with Cain, every man's 
 gravely mooted in the country, and which hand is against him, and his hand is against 
 ultimately came before the Supreme Court , every man. Such is a pirate. Whether 
 of the United States for decision, whether the poor man behind me comes under this 
 the definition of the crime was so precise description, you are to say by your verdict, 
 as to make it just to punish persons under ] It was on this principle, therefore, that 
 it. Congress, in 1820, re-affirmed the prin- i the United States of America, claiming to 
 ciple of the Act, by substituting the pre- 1 be one of the great family of the civilized 
 sent for the then Act of 1819. and instead \ nations of the earth, undertook to do what 
 of leaving the definition as it had stood in ! all other nations had done, what the parent 
 the first Act, in the general phraseology [ country especially had done — punish this 
 that I have mentioned, adopted into its ' great offence against civilization ; and hence 
 
 own terms that phiaseology which the law 
 of nations had furnished as the definition 
 of piracy. 
 
 If William Smith, then, is not a pirate 
 by the law of nations, he is not a pirate in 
 the sense of this Act of Congress. 
 
 Now, gentlemen, let me say one word be- 
 fore I leave this head, on the general subject 
 of piracy. It is a subject that we are com- 
 pelled to discuss here, not the most agreea- 
 
 it was that she passed her acts in regard 
 to piracy; and that in her earliest acts on 
 the subject, she said, we know no other 
 law, than that which our sister govern- 
 ments recognize; we know the law of na- 
 tions ; we profess to follow that law, and 
 to be governed by it, and whatever is a 
 crime against that law, we recognise as a 
 crime against our law and we punish it 
 with death. It bemg a well settled 
 
 ble, perhaps, that could be selected, but for- j principle in our government and in the ju- 
 tunately we have treatises on the topic, that j diciary departii'ent of it, that there is no 
 are in the hands of most general readers, criminal law of the United States that is 
 certainlyof all lawyers and judges; and there ; not to be found in our acts of legitilation, 
 is just as much precision in the description i (a principle that is at once recognized by 
 of piracy as of any other crime known to the the counsel of the government and by the 
 law. A pirate is a robber of a particular I judges on the bench,) Congress provided 
 class ; he is a robber on the sea, or, by stat- [ for the definition and punishment of piracy 
 utes of different countries, on the bays and [ on the statute book of the country. Now, 
 rivers which empty into the sea. He is a I gentlemen, what the definition of the crime 
 sea rover ; the word in its original root sig- ' of piracy by the law of nations is, my col- 
 nifying roving; and the main difference be- ' league has elaborately considered. 1 shall 
 tween a robber on land and one on sea, has I therefore, without truubling you with the 
 respect to the place in which he commits reading of specific authorities, merely refer 
 his crime. A pirate has all the bad qualities ! to some as 1 go along. The law is perfectly 
 of an ordinary robber, and he carries these ' well settled, as your Honors know. 1 have 
 
 6 
 
74 
 
 given the general definition of it, adopted I be influenced by the spirit of a thief or 
 by the Supreme Court of the United States | robber, which the law regards as the essen« 
 in the several cases in 5th Wheaton, and ! tial element in piracy. Force or violence 
 vou will find in the note to one of those is an accompaniment, but not an essential 
 
 cases, a complete syllabus of the law on 
 the subject of piracy, and citations at 
 length from all the writers on the subject. 
 I will give your honors a reference to the 
 learned note in 5th Wheaton. 
 
 Judge Grier. Made by Judge Story 
 himself. 
 
 Mr. Wharton. Yes, sir. On page 161 
 of 5th Wheaton, at the case of the United 
 
 element of the transaction at all. Its es- 
 sential element is the robber's heart or ani- 
 mus. The pirate is a man who recognizes 
 no compact but that of crime. Grotius 
 gives that definition of it when he says 
 that pirates are connected only '^ causa 
 criminis." It is the compact of robbery 
 which is their only bond of association, 
 'I'hey recognize and know no other. If, 
 
 States -y. Smith, your Honors will find a j therefore, gentlemen, you meet a case where 
 note extending over many pages, which • a man commits violence in the acquisition 
 contains all the necessary citations upon j of another's property, but not with the in- 
 the subject of piracy as defined by the law tention of appropriating it to himself, in 
 of nations. the spirit of the robber, he may be guilty 
 
 The definition extracted from those wri- I of some offence, any offence that you choose, 
 
 ters and adopted by the Supreme Court of 
 the United States, is, that piracy is forci- 
 ble depredation upon the sea, animo fu- 
 rancli ; and as put in another place, it ifi 
 depredation on the seas without the autho- 
 rity of a commission, or beyond that autho- 
 rity. It is sometimes difficult, gentlemen, 
 in discussing a case before men Avho are 
 not lawyers, to impart the same exact idea 
 which is on an advocate's mind when a 
 technical term is employed ; but I shall 
 
 but he i? not guilty of robbery on the seas, 
 if the act be committed there, or on land, 
 if it be committed there, 1 say, therefore, 
 that the essential element in the crime of 
 piracy is the spirit with which the act is 
 done. If a man be a pirate, under the law 
 of nations, he goes upon the ocean with 
 the intention of plundering whomsoever he 
 may find. He does not direct his hate 
 solely against this nation or that nation, 
 against this man or that man ; he goes 
 
 endeavor in a few words to do this, because there with the intention, not of carrying 
 the judges will say to you in their charge, | his prize into a civilized and Christian state, 
 that, although laymen, it is your duty in a \ or into a port where it is to be subjected 
 criminal case, or your privilege rather, to \ to the determination of honest and learned 
 pass upon the law as well as the fact ; and j judges, but of carrying his plunder, divid- 
 you cannot find a man guilty, or pronounce j ing and enjoying it, beyond the ken and 
 him innocent in a prosecution under a law, not subject to the supervision of civilized 
 
 without understanding what that law is 
 You cannot conscientiously discharge your 
 duty otherwise. The meaning of the term 
 animo furcmdi, I respectfully submit, was 
 
 men. That is the pirate's purpose. 
 
 The question came up, not e.xactly as it 
 here comes up, but it seems to me very 
 much the same in principle, in the case 
 
 misconceived by the District Attorney, if i cited from Wheaton by Mr. Earle, and 
 he intended to give, as I supposed him to ; commented upon by my colleague. The 
 do, a definition of those words in his open- [ point arose there as to the legal aspect of 
 ing address to the jury. Perhaps I do him j an act of violence on the sea, con)mitted 
 injustice; if so, I shall very cheerfully cor- i by a citizen of the United States, who 
 rect it in a moment. After using the term, ! claimed to justify it under a commission 
 he said, that the words signified the force | from one Aury, a Mexican, who styled him- 
 and violence by wliich property was taken self brigadier of the Mexican republic and 
 
 from another 
 
 Allow me to say that the mere force or 
 violence has nothing to do with the ques- 
 tion ; such a definition as that would make 
 every belligerent, a pirate or a rubber. 
 You march down to the South at the call 
 
 generalissimo of the Floridas ; a title 
 which he used to give color to his proceed- 
 ings. It was not exactly this case ; it could 
 not well be so, because our country was 
 then peaceful and happy : we had no di- 
 vided Union; no civil war raging within 
 
 of your country, and you meet there at the our borders. As I have said, one of the 
 cannon's mouth or at the bayonet's point great features of this case, which commends 
 the belligerents who are opposed to you. : it to the consideration of the jury, and to 
 They take your properly or your life, or ! the careful reflection of each one of us, is, 
 you take their's, with force and violence. Or i that it is perfectly novel in its character, 
 should yourcountrycall you, you might pass I and you are called on to discharge the 
 the northern boundary of the United States, I most embarrassing duty of applying to an 
 and enter into Canada, and meet enemies ] existing state of facts, a law, in its general 
 there ; but you would not, in either case, 1 language apparently meeting it, and yet 
 
75 
 
 evidently not in tbe mind or intention of 
 the legislature when the law was passed. 
 The case alluded to had respect to what is 
 now unfortunately one of the seceded States, 
 Florida, then in the possession of Spain, 
 and not of the country the officer of which 
 claimed to exercise dominion over it, and 
 to issue from it letters of marque and re- 
 prisal. The question before the Supreme 
 Court of the United States in that case 
 involved the legal aspect of the conduct of 
 the defendant, who had acted under one of 
 those letters, and who thereby claimed ex- 
 emption from the penalties of piracy. 
 What did that court say ? There could be 
 no question that, by the law of nations, 
 those letters of marque and reprisal were 
 void. 'I'hey were not issued by the govern- 
 ment de facto of the country under which 
 the defendant claimed to act. The ques- 
 tion was as to his guilt or innocence; and 
 what did the Supreme Court say 1 It said, 
 in effect, that every case of piracy is a 
 question of intention; the accused must 
 have the robber's heart, or he is not guilty. 
 You will observe that the question regarded 
 the conduct of one who, in good faith, as 
 it was alleged, had acted under a commis- 
 sion which was void by the law of nations, 
 admittedly so. No valid argument could 
 be used against that position ; and yet the 
 guilt of the party did not follow as a con- 
 sequence, because, as the court thought, 
 there was a question back of that : did the 
 man, in good faith, act under that commis- 
 sion, supposing it to be valid, and had he 
 the robber's heart which would justify his 
 conviction and his death? It turned out 
 that the defendant had gone beyond his 
 pretended authority; and his conviction 
 was sustained on the ground that he had 
 not kept within his authority. Jf he en- 
 deavored to shield himself under a com- 
 mission from a government which he sup- 
 posed to be legal, he was bound to conform 
 to the commission of that government, and 
 having transgressed it, he was responsible 
 as a pirate; just as this man would have 
 l»een, if, under the commission from Mr. 
 Davis, assuming to be President of the 
 Southern Confederacy, he had taken on the 
 high seas, and robbed an English vessel. 
 Plad he done so, and been captured, he 
 would have been hanged in England as a 
 pirate. Such a decision there would have 
 been in conformity to that of the Supreme 
 Court of our own United States ; but that 
 is not the question here ; the question here 
 is not whether William Smith has gone be- 
 yond the limits and the fair meaning of the 
 commission under which his vessel sailed. 
 If he had, his commission would have been 
 no justification: because he does not act 
 with good faith, who, professing to act 
 
 under the terms of a warrant or commis- 
 sion, goes wilfully beyond it, and seizes 
 those who are not within its purview or 
 spirit. But, may it please your Honors, I 
 take it that the decision referred to is one 
 which goes to this effect: that if a man 
 acts in good faith under a commission of 
 marque issued by an existing government, 
 and therefore a government recognized by 
 the law of nations, he is not a pirate or a 
 robber on the sea, by any such code, or by 
 any statute of the United States. 
 
 Now, gentlemen, what is this man's case ? 
 He was a pilot; he had been born in South 
 Carolina, had gone at an early age, when 
 three, or four, or five years old, to the State 
 of Georgia; he had been educated there; 
 he had served a long apprenticeship at the 
 occupation of a pilot ; it was an apprentice, 
 ship which involved years of study, and much 
 rough experience. It was an occupation, 
 which, before he could follow it, involved 
 on his part the possesion of sobriety, in- 
 dustry, and honesty. He qualified himself 
 for that occupation and he was making it 
 the means of livelihood. He had married, 
 and had a child to support, and a wife to 
 nourish and take care of. He was follow- 
 ing the peaceful pursuits of commerce, and 
 was contributing not only to the wealth of 
 his adopted State, but was giving his ser- 
 vices to the people of other States and of 
 other countries, as the commerce of Georgia 
 was carried on chiefly in Northern or 
 foreign bottoms. He is not Mr. Jefferson 
 Davis, or Mr. Robert Toombs, not General 
 this, nor Commodore that, but a poor 
 Savannah pilot, who was faithfully laboring 
 in his avocation, glad to pilot any vessel 
 that came within his reach ; not anxious to 
 do anything out of his profession ; earning 
 the good will of all his neighbors ; when 
 he suddenly finds, without any fault or 
 agency of his — being not a member of any 
 Congress, confederate or otherwise, not a 
 man of war, — he discovers his whole country 
 blockaded ; no vessels coming in or out of 
 the familiar waters of his State ; with no 
 means of earning bread for his wife and 
 child; a mariner by occupation ; he knows 
 more of the sea than of the land ; his na- 
 tive and his adopted State are both involved 
 in war; they place their heavy hand upon 
 him, telling him in substance, "come Wil- 
 liam Smith, you are quite able to fight our 
 battles on the ocean ; those Northern men 
 are coming to drive us from our homes and 
 take our property from us; stand by your 
 State and country ; if you do not, we will 
 drive you out, with your wife and child, 
 and you may go North and starve there." 
 What could this man do ? He did, 1 think, 
 what most men would have done. Few 
 honorable men, whatever their notions of 
 
76 
 
 political matters, would have fled from | 
 their homes. Smith went from Savannah i 
 to Charleston. There was a vessel, — 1 will j 
 show you in a moment what her character ! 
 was. It is necessary that I should turn 
 3'our attention to some of the documents in 
 this case. You have already, I hope, got 
 the notion of piracy well in your minds ; 
 when you understand the official documents 
 that regulated the conduct of this man, 
 you M'ill be able to say whether he went on 
 board of the Jeff. Davis with the felon's or 
 robber's heart ; for that is the question you 
 are to pass upon. His State called upon 
 him, under a requisition to which he was 
 compelled to submit ; and he enrolled him- 
 self, how? In a pirate ship? In a priva- 
 teer, carefully fitted out by the government 
 of the Confederate States, in a vessel which 
 was subject to military discipline ; which 
 Lad its commander and its lieutenants, its 
 surgeons and its pursers. Aye, from the 
 time he went on board that vessel, he was 
 subject to the commands of the officers and 
 could not leave it without their permission. 
 Jn other words, he went into the ranks of 
 war — war on the ocean, but none the less 
 war — went, with no intention of robbing 
 any one, but .simply to perform his duty as 
 a sailor in the service of the existing gov- 
 ernment at the South. 
 
 Now gentlemen, let me, as I pass along, 
 recall rapidly your attention to the leading- 
 facts in this case as they are shown by the 
 evidence. A great revolution, or rebellion, 
 or insurrection had occurred in our South- 
 ern country. The President thought it right 
 to use the military force of that part of the 
 Union which stood by him, to put down the 
 organized opposition ; and M orthern men 
 stepped forward in answer to his summons. 
 'J he people at the South determined to re- 
 sist. 'I'hey thought the course of the 
 Executive unconstitutional, and that it 
 was their duty to resist war by war, or 
 rather force by force. It is not for me to 
 pass any opinion on their conduct ; I am 
 not doing so ; I am simply presenting in its 
 truth, as 1 understand it, the case of this 
 man who is before you in peril of his life. 
 'J'wo days after the President, by his pro 
 clamatiou of the 1,5th of April last, had 
 called out seventy-five thousand men of the 
 bone and sinew of the country to re-possess 
 the property of which the United States 
 had been dispossessed, and to compel sub- 
 mission to her laws, an already organized 
 government at the South, with Mr. Jeffer- 
 son Davis at its head, issued a proclamation 
 which was the basis of the action of this 
 particular defendant; for on the 17th of 
 April, referring in terms to the proclama- 
 tion of President Lincoln of the 1.5th, Mr. 
 Davis, by another proclamation, invited the 
 
 co-operation of privateersmen, in order to 
 resist what he was pleased to call, the ag- 
 gressions of the North, and to assist in 
 driving away war from Southern borders. 
 Here was therefore a great community, an 
 immense body of people, exercising all the 
 functions of government, calling upon the 
 residents of that country to render their 
 assistance in the war which was upon them. 
 Tt was not, we respectfully contend, for 
 William Smith to question the rightfulness 
 of the contest. He was bound to render 
 service. " Render unto Caesar the things 
 that^are Caesar's." If there was any autho- 
 rity unrighteous, in the "land of Jud.a," 
 where that language was used, it was Cae- 
 sar's ; and if ever there was an authority 
 that rightfully required submission to its 
 dictates, it was the authority of the person 
 who uttered that command. \\'i!liara 
 Smith rendered the service which was de- 
 manded of him. Soon after the 17th of 
 April, the Congress of the Confederate 
 States, as they style themselves, passed an 
 act, to which I will ask your attention for 
 a moment, in order that you may see 
 whether what Smith did, was done under 
 any notion on his part that when be en- 
 tered on board the Jeff. Davis, he did it 
 with the intention of committing piracy 
 against the people of the United States. 
 The Southern Congress, by an act which 
 was published on the 6th 5lay, 1861, after 
 the proclamation of Mr. Davis, reciting 
 that " the earnest efforts made by this 
 government to establish friendly relations 
 between the government of the United 
 States and the Confederate States, and to 
 settle all questions of disagreement between 
 the two governments upon principles of 
 right, justice, equity and good faith, have 
 proved unavailing," * * * proceeds to de- 
 clare that " ^Vhercas, the President of the 
 United States of America has issued his 
 proclamation, making requisition upon the 
 States of the American Union for seventy- 
 five thousand men, for the purpose as 
 therein indicated, of capturing forts, and 
 other strongholds, &c.," and then to enact 
 that "the President of the Confederate 
 States is hereby authorized to use the 
 whole land and naval force of the Con- 
 federate States to meet the war thus com- 
 menced, and to issue to private armed 
 I vessels, commissions or letters of marque 
 i and general reprisal, in such form as he 
 shall think proper, under the seal of the 
 Confederate States, against the vessels, 
 goods, and effects of the government of the 
 j United States, and of the citizens or inhabi- 
 ' tants of the States and Territories thereof 
 except the States and Territories herein- 
 before named." 
 ; 'J'hose States and Territories were th'i 
 
77 
 
 States of Maryland, North Carolina, Ken- 
 tucky, Tennessee, Arkansas and Missouri ; 
 and the Indian Territory, Arizona and 
 New Mexico. 
 
 ^'Provided, however, That property of 
 the enemy (unless it be contraband of war) 
 laden on board a neutral vessel shall not 
 be subject to seizure under this Act. And 
 provided further. That vessels of the citi- 
 zens or inhabitants of the United States 
 now in the ports of the Confederate States, 
 except such as have been since the 5th of 
 April, or may hereafter be in the service 
 of the Government of the United States, 
 shall be allowed thirty days after the pub- 
 lication of this act, to leave said ports and 
 reach their destination." 
 It provides further, 
 
 "That all persons applying for letters of 
 marque and reprisal, pursuant to this act, 
 shall state in writini!; the name, and a suit- 
 able description of the tonnage and force 
 of the vessel, and the name and place of 
 residence of each owner concerned therein, 
 and the intended number of the crew ; 
 which statement shall be signed by the 
 person or persons making such application, 
 and filed with the Secretary of State, or 
 shall be delivered to any other officer or 
 person who shall be employed to deliver 
 out such commissions, to be by him trans- 
 mitted to the Secretary of State. * * * * 
 
 " That before any commission or letters 
 of marque and reprisal shall be issued as 
 aforesaid, the owner or owners of the ship 
 or vessel for which the same shall be re- 
 quested, and the commander thereof for 
 the time being, shall give bond to the Con- 
 federate States, with at least two responsible 
 sureties not interested in such vessel, in 
 the penal sum of §5,000 ; or if such vessel 
 be provided with more than one hundred 
 and fifty men, then in the penal sum of 
 $10,000; with condition that the owners, 
 officers, and crew, who shall be employed 
 on board such commissioned vessel, shall 
 and will observe the laws of the Confederate 
 States and the instructions which shall be 
 given them according to law, for the regu- 
 lation of their conduct ; and will satisfy all 
 damages and injuries which shall be done 
 or committed contrary to the tenor thereof, 
 by such vessel, during her commission, and 
 to deliver up the same when revoked by 
 
 the President of the Confederate States. 
 ***** 
 
 " That all captures and prizes of vessels 
 and property shall be forfeited, and shall 
 accrue to the owners, officers, and crews of 
 the vessels by whom such captures and 
 prizes shall be made ; and, on due condem- 
 nation had, shall be distributed according 
 to any written agreement which shall be 
 made between them : And if there be no 
 
 such written agreement, then" in a certain 
 proportion. 
 
 " That all vessels, goods, and effects, the 
 property of any citizen of the Confederate 
 States, or of persons resident within and 
 under the protection of the Confederate 
 States, or of persons permanently within 
 the territories, and under the protection of 
 any foreign prince. Government, or State 
 in amity with the Confederate States, 
 which shall have been captured by the 
 United States, and which shall be recap- 
 tured by vessels commissioned as aforesaid, 
 shall be restored to the lawful owners, upon 
 payment by them of a just and reasonable 
 salvas^e," &c. * * * * 
 
 "That the President of the Confederate 
 States is hereby authorized to establish 
 and order suitable instructions for the bet- 
 ter government and directing the conduct 
 of the vessels so commissioned, their offi- 
 cers and crews, copies of which shall be de- 
 livered, by the collector ot the customs, to 
 the commanders, when they shall give bond 
 as before provided." 
 
 Under that law, instructions were issued 
 to the privateers, and to those instructions 
 I will ask your attention, in a moment. My 
 object in these citations is merely to show 
 you, that there was in the case of this man 
 serving on board the Jeff. Davis, a totally 
 different intention and in regard to him a 
 totally different state of things, from that 
 which exists in the ordinary case of pirates 
 or sea-robbers. The instructions were these : 
 
 " The tenor of your commission, undei' 
 the act," (which 1 have read.) "a copy of 
 which is hereto annexed, will be kept con- 
 stantly in your view." 
 
 The instructions then proceed to define 
 the •' high seas," and further state : 
 
 " You are to pay the strictest regard to 
 the rights of neutral Powers and the usages 
 of civilized wa^ious, and in all your pro- 
 ceedings towards neutral vessels, you are 
 to give them as little molestation or inter- 
 ruption as will consist with the right of 
 ascertaining their neutral character, and 
 of detaining and bringing them in for regu- 
 lar adjudication in the proper cases." 
 
 ***** * * 
 
 " The master, and one or more of the 
 principal persons belonging to the captured 
 vessels, are to be sent, as soon after the 
 capture as may be, to the Judge or Judges 
 of the proper Court in the Confederate 
 States, to be examined upon oath touch- 
 ing the interest or property of the captured 
 vessel and her lading, and at the same 
 time are to be delivered to the Judge or 
 Judges all papers, charter parties, bills of 
 lading, letters, and other documents and 
 writings found on board ; and the said 
 papers to be proved by the affidavit of the 
 
78 
 
 commander of the captured vessel, or some 
 other person present at the capture, to be 
 produced as they were received, without 
 fraud, subtraction, or embezzlement. 
 
 " Property, even of the enemy, is exempt 
 from seizure on neutral vessels, unless it be 
 contraband of war. 
 
 * * * ^ * * * 
 
 " Towards enemy vessels and their 
 creivs you are to proceed in exercising the 
 rights of war, with all the justice and hu- 
 manity ivhich characterize this Govern- 
 ment and its citizens." 
 
 Such were the instructions under which 
 this man was marshaled into the service 
 of the Confederate States ; and they were 
 carried out in the proceedings of the Jeff. 
 Davis privateer, so far as we have them in 
 evidence, and arguing from what appears 
 to other things of a like nature, you will 
 suppose that those instructions were fol- 
 lowed throughout her cruise. You will 
 recollect the testimony which speaks of tlie 
 manner in which their captives on the high 
 seas were treated. You had some of them 
 here on the stand ; you cannot but have 
 admired the candor of those witnesses for 
 the Government, and their manly bearing 
 After capture " how were you treated ?' 
 " Were you put in heavy irons ?" " Were 
 your legs locked together by a chain about 
 twelve inches long?" " W^ere your arms 
 pinioned and ironed, and were you stuffed 
 together in the narrow hold of the ves- 
 sel ?" Oh, no ; " we were treated just 
 like everybody else ;" " we slept in the 
 cabin ;" '• we got the best food." Two or 
 three of them said, "it happened to be our 
 own food." I suppose you could not have 
 done them a greater favor, in this respect, 
 than in providing them with their own care- 
 fully selected provisions. If that food was 
 not good, it was not the fault of the priva- 
 teers. They slept in the cabin, where the 
 officers of this privateer slept, and came on 
 deck, when it suited theui better. In the 
 hot nights of July, it did suit them better 
 to lie under the canopy of the fresh air ol 
 the ocean. They were treated with every 
 consideration; and when their condition 
 became a little uncomfortable, because ol 
 the crowd of prisoners, this privateer, 
 having t>ecured a good large ship, placed 
 them politely on board, and actually sent 
 them to one of the Northern ports of the 
 United States, and thus furnished testi- 
 mony against William Smith, on trial for 
 his life. 
 
 Now, I would desire to be informed ol 
 " the usages of any civilized nation" that 
 are more conformable to justice and hu- 
 manity, than this privateer seems to have 
 exhibited in the course of her cruise. J 
 have never had the luck of the company ol 
 
 robbers and pirates; but T have read about 
 them, and I never yet have heard of one 
 such who treated his prisoners as these 
 people seem to have treated their's. 
 
 I shall leave the argument of compulsion, 
 generally, where my colleague placed it, 
 without desiring to weaken it in any way 
 by not dwelling on it. ]t seemed to me to 
 be a powerful one. If there was not physi- 
 cal compulsion, there was that sort of 
 moral compulsion which compels to a cer- 
 tain line of conduct, and which justified the 
 defendant so far as to free him fruni the 
 imputation of being a sea-robber. How it 
 may affect his character otherwise, I do 
 not think it necessary to inquire, and I do 
 not suppose the jury do ; but 1 say that 
 under the invitation addressed to the citi- 
 zens of the Southern States, this man took 
 his position on board that vessel, and com- 
 ported himself in accordance with the 
 j instructions he received. Now, I agree, 
 that, if, in overhauling the Enchantress, or 
 the Mary Goodell, or the John Welsh, or 
 any of the other vessels that were met on the 
 high seas, these men had violated their in- 
 structions, and had acted towards their cap- 
 tives as was done to them by those in com- 
 mand of the Albatross, they would have been 
 guilty of piracy. I am content to admit it. 
 1 think they would, because their instruc- 
 tions were, while they carried on war 
 against the (jovernmeut of the United 
 Slates and her citizens, to conduct them- 
 selves according to the usages of civilized 
 nations, and to observe the laws of justice 
 and humanity; and they did so. Had 
 they gone beyond their warrant, the deci- 
 sions of the Courts would have ranked 
 them with pirates, and they must have 
 taken the penalty. 
 
 Now, gentlemen, it becomes proper for 
 me to say something in addition even to 
 what my colleague has said on this subject 
 of privateering. From the opening of the 
 Assistant District Attorney and his col- 
 league who summed up the case for the 
 Covernniout, a person who knew nothing 
 about the subject would leave this court 
 house with the impression that a privateer 
 was worthy of any invective you might 
 choose to hurl at him, and that the Govern- 
 ment which tolerated privateering was nut 
 worthy to be ranked in the sisterhood of 
 civilized nations ; and my learned friend, 
 Mr. Earle, whose private opinions are 
 supposed to be well known on this subject 
 — 1 believe he is a peace man — quoted two 
 or three authors, who advocate "(lO in 
 for peace" always and everywhere. There 
 are eminent statesmen who contend tnat 
 you must not go to war on any occasion or 
 for any cause, as it is always wrong. If 
 you think so, I cannot help it. Gentle- 
 
79 
 
 men, it is not my opinion. I do not think 
 that war is one of the absolute crimes. 
 It may be Mr. Earle's opinion ; perhaps 
 not ; but he quoted writers who have said 
 so. That is not the state of the law, nor 
 of public opinion, in this country, gentle- 
 hien. Privateering is nothing but one 
 mode of going to war; and to capture a 
 vessel on the high seas and treat her crew 
 with tenderness and humanity, to give 
 them good food and comfortable living, 
 and send them to their own homes again 
 in peace and quietness, is not quite as bad, 
 certainly not worse than takins- a gun and 
 ehooting a man, as happens under the ordi- 
 nary operations of war. Privateering, 1 
 Bay, is but one mode of carrying on war; 
 and it has been sanctioned by almost every 
 government on earth, and has been especi- 
 ally sanctioned by our own Government; 
 and not only by our own national Govern- 
 ment, but by the States of this Union long 
 before tliey were united under the present 
 Constitution. My learned colleague has 
 presented some portion of the history of 
 privateering; I will add one or two facts 
 only, and, as he has referred to the State 
 of Massachusetts, 1 will also allude to her. 
 Massachusetts has taken the lead, gentle- 
 men, in several operations in this couutry. 
 It is narrated — I do not pretend to say so 
 myself — but it is narrated in books that she 
 and some other of the Eastern Common- 
 wealths took a prominent part in the slave 
 trade; and it is also said that she took the 
 lead, as my colleague has attempted to 
 show by citations, in secession, or nullifica- 
 tion, or whatever you may call it. She has 
 led off in many public affairs, some very 
 good, and son)e otherwise ; but she ap- 
 pears certainly to have been foremost in 
 privateering. If you will allow me to 
 quote from a book, written, I think, by 
 a Massachusetts man, though published in 
 New York, Hildreth's History of the 
 United States, you vvil find that before the 
 Declaration of Independence, and of course 
 long before the formation of the present 
 Constitution, as early, indeed, as tlie 10th 
 cf November, 1775, the State of Massachu- 
 setts passed a law to authorize the fitting 
 out of privateers and to establish a court 
 for the trial and condemnation of prizes. 
 If any one feels an interest in the citation, 
 he will find it at the 101st page of the 3d 
 vol. of Hildreth's History of the United 
 States. That law, preceded, by fifteen 
 days, the action of the old Continental 
 Congress upon the same subject; for it 
 was on the 25th of November, 1775, that 
 the Congress passed a law authorizing pri- 
 vateering. Massachusetts was two weeks 
 ahead of Congress, and she passed a law 
 to institute and encourage privateering. 
 
 The history of this country has taught 
 us that Massachusetts did not stand alone 
 in this act; her lead was followed by other 
 States ; her lead was followed by our own 
 Commonwealth. The Continental Con- 
 gress encouraged the practice. One of the 
 greatest men that has ever adorned the 
 naval history of this country earned his 
 fame partly as a privateer, partly as an offi- 
 cer in the Continental navy ; and the naval 
 history of this country is brilliant with his 
 achievements. We know very well the tes- 
 timonials which have been offerod to him. 
 I happen to hold in my hand the life of 
 John Paul Jones. You will find that it is 
 preceded by laudatory notices from James 
 Madison, Thomas Jefferson, and Joseph 
 Story. It is Sherborn's life of that cheva- 
 lier, as he was styled, and his virtues and 
 his glory are there commemorated largely. 
 
 The best argument, however, in a court 
 of law, perhaps, is, that our national statute 
 book contains existing laws in regard to 
 privateering, which sanction it. There 
 were acts in 1812 that have since expired : 
 the existing laws on the subject date from 
 the year 1813, during the war with Great 
 Britain ; and any man, therefore, who rises 
 in a Court of the United States, and at- 
 tempts to brand another with disgrace or 
 crime, by reason of his having been a pri- 
 vateersman, casts an imputation not only 
 on the naval history of his country, but on 
 her statute laws. I say this, without fear 
 of contradiction ; and so far, therefore, 
 from you having an impression injurious to 
 this defendant from the fact that he accep- 
 ted office under a privateer's commission, 
 you ought rather to say, (independently 
 of the other questions of the case, but look- 
 ing simply at that of privateersman or not,) 
 that he did good service to his country. 
 
 Now, gentlemen, let us look at this mat- 
 ter a little more closely. I have detained 
 you somewhat with expositions upon the 
 subject of the law of piracy, and the history 
 and character of privateering. Just ask 
 yourselves a plain, practical question : what 
 is the difference in principle between fight- 
 ing us on the ocean and fighting us on the 
 land ? Why is it that this man, who went 
 upon the ocean to fight the battles of his 
 existing government, should be brought be- 
 fore you as a jury, and branded as a felon 
 and a pirate? Why is it that he should 
 be selected, and the officers of rank and 
 station who have been taken by our army 
 at the South, should be treated, practically, 
 as honorable prisoners of war, and many of 
 them discharged on their parole of honor? 
 Why is it that the vengeance of this great 
 government should settle on the head of 
 William Smith, as a felon, a pirate, a sea_ 
 robber, who is to be consigned to a felon' 
 
80 
 
 death on a gallows, and those men of rank 
 and character who upon the land fight us, 
 not a whit more bravely, or honorably, or 
 humanely, than this man would have fought 
 us, should be discharged on their parole of 
 honor, the simple word of a gentleman ? 
 Why is it that they shall return to their 
 homes and enjoy their firesides, upon their 
 promise not to bear arms again against the 
 United States of America, as discharged 
 prisoners of war? And this poor man is 
 to be dragged into this court, and after 
 your verdict, be hanged on a gallows ? Is 
 not he as much a belligerent as they? Is 
 he not in reason entitled to be treated as a 
 prisoner of war as much as they? "Why 
 do they not send home, on his parole of 
 honor, William Smith, to a suffering wife 
 and child ? Why send home, or retain as 
 mere prisoners of war, this commodore or 
 that captain, and keep William Smith here 
 in irons, as he was until he came beneath 
 the panoply of this court, when those irons 
 indeed fell from him, and they were restored, 
 to whom? To the commander of a vessel 
 of the United t^tates, as the property of 
 the United States The Marshal could not 
 keep the fetters ; they belonged to the na- 
 tional ship; and William Smith comes into 
 court with the marks upon him of those 
 irons, -which had worn .into his very flesh, 
 through weeks of torment. This is to be 
 the conduct observed towards him ! Why, 
 gentlemen, it makes the blood boil, when 
 we think of these differences and distinc- 
 tions. If we are in a civil war, let us war 
 like Christian men, and fight our opponents 
 like brave and honorable men; for I tell 
 you that mercy and kindness are ever con- 
 stituent elements of truth, bravery, and 
 honor. 
 
 Such is the practical question for you. I 
 say if we are to initiate the system that 
 has been suggested to us by the govern- 
 ment in this case, we must erect a line of 
 gallows that shall extend from Philadelphia 
 to the banks of the Potomac ; but, let me 
 add, that for every man hanged here, there 
 will be tin executed at the South ; there 
 will be an opposition line of gallows reach- 
 ing from Richmond northwards; they have 
 many more prisoners than we hold ; and I 
 predict, if William Smith shall be executed 
 on account of the ofl'ence with which he is 
 indicted, that there will go up to Heaven a 
 wail from Castle Pinckney that will be 
 heard even on the banks ot the Delaware. 
 Theie will be reprisals and retaliations, 
 and that state of things which a learned 
 and humane writer, on the law of nations 
 has so earnestly deprecated. There is no 
 greater authority on the subject than 
 Yattel,the Frenchman who wrote the book 
 which 1 now hold. The 18th chapter of 
 
 the 3d book of his great work is devoted to 
 the subject of civil war. I commend it to 
 the perusal of each one of you. He dis- 
 cusses the question not only of subjects re- 
 belling against a monarchy ; but of a revo- 
 lution, insurrection or rebellion in a Repub- 
 lic : and he lays it down as part of the 
 acknowledged law of nations, that when a 
 civil war takes place in a country, that law 
 requires that the combatants on either side 
 shall conduct themselves according to the 
 established, well settled rules of Christian, 
 civilized warfare. He says, it has been the 
 usage or the talk of persons in power, to 
 treat all that resist their authority as 
 rebels. 
 
 Gentlemen, in reading this work, and in 
 looking over some of the prominent news- 
 papers of the present day, one would sup- 
 pose, that the latter had copied their senti- 
 ments from the parties to whom Yattel re- 
 fers. He says in substance, that it has 
 been the fashion of every existing Govern- 
 ment to say when a rebellion, or insurrec- 
 tion occurs. " you are all rebels, or traitors ; 
 we will hang you or shoot you." Such is 
 the not uncommon language of this day in 
 reference to our own opponents. But what 
 does Vattel say in answer ? Such is not the 
 sense of civilized Europe ; it is not the 
 code of laws which regulates the intercourse 
 of nations. What is the necessary conse- 
 quence of the opposite doctrine ? Who can 
 tell which, in the ordering of Divine Pro- 
 vidence, may be the stronger party ? The 
 stronger party in the end will visit reprisals 
 with vengeance indeed, on the heads of 
 those who inaugurated such a system ; and 
 if the majority begin by shooting and 
 hanging the minority, and ultimately the 
 minority should become the majority, there 
 will be few of the conquered whose heads 
 will not be cut off, or whose necks will not 
 be broken ; for it is not in man's nature to 
 resist such an inducement to vengeance. I 
 tell you, gentlemen, that you are now asked 
 to initiate in this happy and free land of 
 ours as it was a short time back, a system 
 at which the subjects of the monarchies of 
 Europe would turn pale. Tiiey have not 
 the hardihood to proclaim such a doctrine 
 as this. 
 
 Their writers say with one voice, as your 
 rebellious citizens are able to frame a gov- 
 ernment of their own, and claim, whether 
 right or wrong, to stand on the same 
 platform with yourselves ; as they have 
 organized a government, and administer 
 its laws, according to their notions of justice 
 and propriety ; as they have the capacity 
 to raise and t-quip fleets and armies, and to 
 meet you on your own soil in battle ; it is 
 not important in the view of the law of na- 
 tions to consider whether they or you are 
 
81 
 
 right r you must be jgroverned by a universal 
 law; a higher law if you choose so to call it ; 
 thelawof luimanity and of justice ; they will 
 tell you that, if you initiate any other sys- 
 tem, the day of peace, of Christianity, and 
 of comfort has gone far from your land, and 
 your fields will be filled with the dead 
 bodies of your people, and your rivers will 
 flow with torrents of their blood. 
 
 Is this an indictment under the law of na- 
 tions ? If so, that law is too clear to sustain 
 it. I ask my learned friend who is to fol- 
 low me, to point out anyone writer on that 
 code who says that one who goes forth in 
 good faith, on the ocean, under a commis- 
 sion in a privateer vessel, to make war on 
 the enemies of his existing government, is 
 held or treated as a robber or a pirate. I 
 beli-ve that no such authority can be 
 found. You recollect, that when such an 
 attempt was made in the Supreme Court of 
 the United States, in a case much less sus- 
 tainable than the present, the learned 
 Judges of that Court were careful to ab- 
 stain from any such opinion. 
 
 In order to convince you, that I have not 
 misinterpreted the views of Vattel, 1 will 
 cite a few passages from the chapter of his 
 treatise, to which 1 have especially alluded. 
 They are as follows: 
 
 "It is a question very much debated 
 whether a sovereign is to observe the com- 
 mon laws of war towards rebellious subjects 
 who have openly taken up arms against him ? 
 A flatterer, or a cruel ruler immediately 
 says, that the laws are not made for rebels, for 
 whom no punishment can be too severe. 
 Let us proceed more mildly, and reason 
 from the iucontestible principles above laid 
 down. * * -» * 
 
 " Popular commotion is a concourse of 
 people tumultuously assembled, who resist 
 the voice of their superiors, whether their 
 design be against those superiors themsel- 
 ves, or only some private persons. * * * 
 When the evil spreads, infecting great num- 
 bers in the city or provinces, and subsists 
 in such a manner that the sovereign is no 
 longer obeyed, such a disorder, custom has 
 more particularly distinguished by the 
 name of insurrection. * * * 
 
 " When a party is formed in a state, 
 which no longer obeys the sovereign, and 
 is of strength sufficient to make head 
 against him ; or when in a republic the na- 
 tion is divided into two opposite factions, 
 and both sides take arms ; this is called a 
 civil war. Some confine this term only to 
 a just insurrection of subjects against an 
 unjust sovereign, to distinguish this lawful 
 resistance from rebellion, which is an open 
 and unjust resistance ; but what appella- 
 tion will they give to a war in a republic 
 torn by two factious, or in a monarchy be- 
 
 tween two competitors for a crown ? Use 
 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 one side, and the 
 sovereign with those who continue in obed- 
 ience to him on the other ; it is sufficient 
 that the malcontents have some reasons 
 for taking arms, to give this disturbance 
 the name of civil tear, and not that of re- 
 bellion. This last term is applied only to 
 such an insurrection against lawful author- 
 ity, as is void of all appearance of justice. 
 The sovereign indeed never fails to term 
 rebels all subjects openly resisting him ; 
 but when these become of strength suffi- 
 cient to oppose him, so that he find himself 
 compelled to make war regularly on them, 
 he nmstbe contented with the term of civil 
 war. ****** 
 
 "Things being thus situated, it is very 
 evident that the common laws of war, those 
 maxims of humanity, moderation, and pro- 
 bity, which we have before enumerated and 
 recommended, are in civil wars to be ob- 
 served on both sides. The same reasons 
 on which the obligation between state and 
 state is founded, render them even more 
 necessary in the unhappy circumstauce 
 when two incensed parties are destroying 
 their common country. Should the sove- 
 reign conceive he has a right to hang up 
 his prisoners as rebels, the opposite party 
 will make reprisals ; if he does not religi- 
 ously observe the capitulations, and all the 
 conventions made with his enemies, they 
 will no longer rely on his word ; should he 
 burn and destroy, they will follow his ex- 
 ample ; the war will become cruel and hor- 
 rid ; its calamities will increase on the 
 nation. The Duke de Montpensier's in- 
 famous and barbarous excesses against the 
 reformed in 1: ranee are too well known : 
 the men were delivered up to the execu- 
 tioner, and the women to the brutality of 
 the soldiers. What was the consequence ? 
 The reformed became exasperated — they 
 took vengeance of such inhuman practices ; 
 and the war, before sufficiently cruel as a 
 civil and religious war, became more bloody 
 and destructive. ***** Even 
 troops have often refused to serve in a war 
 wherein the prince exposed them to cruel 
 reprisals. Officers who had the iiighest 
 sense of honor, though ready to shed their 
 blood in the field of battle for his service, 
 have not thought it any part of their duty 
 to run the hazard of an ignominious death. 
 Therefore, whenever a numerous party 
 thinks it has a right to resist the sovereign, 
 and finds itself able to declare that opinion 
 sword in hand, the war is to be earned on 
 between them in the same manner as be- 
 tween two difi'erent nations; and they are 
 
82 
 
 to leave open tlie same means for pi-event- 
 ilig enormous violences and restorinj^ peace. 
 
 " When subjects take up arms without 
 ceasing to acknowledge the sovereign, and 
 only to procure a redress of grievances, 
 there are two reasons for observing the 
 common laws of war towards them. First, 
 lest a civil war becoming more cruel and 
 destructive by the reprisals, which, as we 
 liave observed, the insurgents will oppose 
 to the prince's severities. 2. 'I'he danger 
 of committing great injustice by the hast- | 
 ily punishing those who are accounted re- 
 bels : the tumult of discord, and tlie flame 
 of a civil war, little agree with the proceed- 
 ings of pure and sacred justice : more quiet 
 times are to be waited for. It will be wise 
 in the prince to secure his prisoners till, 
 having restored tranquility, he is in a con- 
 dition of having them tried according to 
 the laws." 
 
 Gentlemen, I have little more to say to 
 you about this case. It is, as I have befnre 
 said, one not only of gravity but of diffi- 
 culty. I know it to be difficult, in a court 
 of the United States, to argue against the 
 language of a statute of the United States. 
 I know it will be pressed upon you that 
 the plain words of the law are these : 
 "Any person who commits robbery on the 
 high seas, shall be punished vvith death." 
 I know you will be told that William Smith 
 is a pirate ; that he did an act which con- 
 tains the essential elements of lobbery; 
 that is, he took property on the sea by 
 force. I am not disposed to cavil about 
 small matters. There is no question that 
 the Enchantress yielded herself to a supe- 
 rior force ; there is no question that that 
 pivot gun, and those waist guns, and those 
 armed men, and the cutlasses, and the pis- 
 tols, and the muskets, all induced her cap- 
 ture. There is no doubt at all that she 
 was taken with force and violence, and that 
 her men were confined, and that she would 
 have been treated, if carried to port, as a 
 prize of war. There is no question that 
 they literally ran away with the captured 
 vessel ; and that they ])ut a pnxe crew on 
 board. It was necessary by the laws of 
 nations to do this ; their instructions re- 
 quired it. This placing; on board a prize 
 crew, which has been dwell upon, was one 
 of the Very items of instruction under 
 whicii they acted. They were to take the 
 Knchautress where? 'Jo the isles of the 
 South, or into solitary haunts of robbers 
 &nd pirates, not showing themselves in the 
 face of civilized men? Were they to do 
 this? Not at all. 'i'liis prize crew was 
 put on board, and they were directed to go 
 to Savannah, to Charleston, or to New 
 Orleans, ports of our own country, Tliey 
 Avejo to hand her over to a court of justice 
 
 there ; to surrender the papers ; to libel 
 this vessel for condemnation ; they were to 
 do in their Courts what is done every day 
 in this Court when our vessels brirt^ in a 
 prize. With us, a commissioner is ap- 
 pointed by the Court, who takes the testi» 
 mony. The same formalities would have 
 been gone through in her case ; the distri- 
 bution would have been made under the 
 decree of a Court; and AYilliam Smith 
 would have received only what the laws of 
 his existing government would h ive ac- 
 corded to him. If their Honors shall say 
 that they must, as Judges of the United 
 States, shut their eyes to the fact that we 
 are in a civil war — that you, gentlemen, 
 must shut your eyes to the fact that there 
 is a great government at war with ns— that 
 in the South there is an existing govern- 
 ment which administers its own laws in its 
 own way, and that the laws of the United 
 States are not administered there — that 
 there is an army and a navy contending 
 with us ; and that you can know none but 
 citizens of the United States, and no gov- 
 ernment but the government of the United 
 States — that every man south of the Poto- 
 mac who is caught on the land in arms 
 against us, or on the sea under their pri- 
 vateer commissions, is to be treated as a 
 citizen of the United States engaged in 
 robbing his fellow-citizens — if you are to 
 take only that narrow view of the law, and 
 close your eyes to this great chapter in the 
 history of nations, so like to what is every- 
 where to be read on its pages, and if. I say, 
 a Court of the United States is to declare, 
 as a consequence of all this, that William 
 Smith must be hanged by the neck, let it 
 be so ; God have mercy on him ! 
 
 But I trust, gentlemen of the jury, that 
 the honorable Judges on the bench will 
 tell you that although they sit to adniinistev 
 the law of the United States, they do not 
 shut their eyes to the reason and spirit of 
 the law, and that they will say it liad no 
 application to a case such as this ; that it 
 has reference to robbers who act without 
 pretence of commission or authority from a 
 State, and that therefore the case of Wil- 
 liam Sniith is entirely out of the written 
 statutes of the United States. 1 1 it should 
 please Congress to pass a law touching the 
 subject-matter, it must do so in reference 
 to future transactions alone. 
 
 1 knew that in a Court of law, unless I 
 can present an argument which commends 
 itself to the judicial mind, all other sugges- 
 tions are of little account ; and 1 have no 
 desire to induce these gentlemen wlio are 
 before me, to give a verdict against the 
 reality of the law. I have a right, how. 
 ever, in a criminal case, to persuade their 
 judgments, that the law is as I have argued 
 
83 
 
 it to be, they being influenced, of course, 
 by the opinion of the Court. Bearing then 
 upon this question and feeling its interest 
 and importance, I draw your Honors' at- 
 tention, and that of the jury, to the fact 
 that the government of the United States 
 has made a distinction between ordinary 
 piracy, and piracy under the color of a com- 
 mission from another government. There 
 is a statute which draws that distinction. 
 I do not intend to go now into a discussion 
 of that statute. I had supposed that the 
 government might frame its indictment 
 under it ; but it has not ; and I simply refer 
 therefore to the ninth section of the Act 
 of April 30th, 1790, for the purpose of 
 showing that that law of the United States 
 is framed on the presumption of a necessity 
 to distinguish between the case of acting 
 under a commission, and of not so acting ; 
 and that where a party proceeds under a 
 commission from a foieign power, he is 
 not because of that, a pirate at all ; to ren- 
 der him such, he must be a citizen of the 
 United States, acting under the authority 
 of a foreign government, and by virtue of 
 that, joining in the war upon other citizens 
 of the United States ; for, as the Supreme 
 Court of the United States has said in 
 United States v. Wiltberger, .5 Wheaton, 
 99-lUO, the whole purpose of that Act was 
 to prevent citizens of the United States 
 from accepting privateers' connnissions from 
 foreign governments and then making war 
 upon their fellow citizens in breach of their 
 allegiance. So I'ar, however, from condem- 
 ing privateering, that law impliedly recog- 
 nizes it ; though upon that subject we have 
 as I have said, what are more satisfactory 
 than a mere implication, existing laws of 
 the United States. 
 
 Gentlemen, I have done with my sugges- 
 tions and my argument. I need not say to 
 you in conclusion, that this man's fate is 
 with you. ]f this be a new case, as 1 sup- 
 pose it to be ; if it be a doubtful one, as 1 
 suppose it to be ; in Hod s name, give this 
 man the benefit of that doubt. Where men 
 like Mr. Calhoun and Mr. Webster have 
 differed ; and where men like the latter have 
 differed with themselves at different periods 
 of their own lives ; where learned jurists 
 have differed, and where that difference 
 still exists, inducing all our troubles, dis- 
 tracting many a man's mind, and puzzling 
 many a good man's conscience, it is very 
 hard indeed, gentlemen, that one like Wil- 
 liam Smith should pay for his error of 
 judgment with the forfeit of his life. It is 
 a fearful thing to think of. I know that 
 justice must be done though the heavens 
 fall ; and that individual hardship is never 
 an argument against the application of law ; 
 but 1 say that it is a great cousolatiou to 
 
 counsel when they come into Court to de- 
 fend a prisoner at the bar of a criminal 
 court, to know, that whatever may have 
 been his conduct, and whatever the penalty 
 for that conduct, his client can go out of 
 Court and perhaps out of the world, with 
 the conviction of the purity of his motives ; 
 that if he has erred against government in 
 such way as to call for so heavy a forfeit, 
 he made at least an honest mistake ; and if 
 he is to hang, it will be in obedience to the 
 better judgment of persons who are more 
 learned and nioi'e intelligent than himself, 
 but not a whit more honest at heart. 
 
 Mr. Keli.ey — With submission to your 
 Honors — Gentlemen of the Jury, — More fully 
 than any man in this crowded court room, can 
 I appreciate the sincerity of the expression of 
 diifiiJence with which each of the gentlemen 
 who have precedeil me, has commenced his 
 remarks. The case is, as has been said to 
 you, a grave cue, and in our courts a novel 
 one. It may, therefore, well impress each one, 
 acting as counsel either on behalf of the de- 
 leudant or the government, with a sense of 
 his own insufficiency. But, to me, this is 
 peculiarly so : for I am here as the repr<Jseuta- 
 tive of a friend upon whom providence has 
 laid its hand sorely, — one who while yet in 
 the enjoyment of health had given to this case 
 the care and attention it deserved from a man 
 full of energy, devoted to the honor of his 
 profession and the duties of his office, possess- 
 ing an intellect at once subtle and grasping, 
 highly cultivated in the schools and thoroughly 
 disciplined by the conflicts and labors of a suc- 
 cessful professional career. As the friend of 
 the District Attorney, George A. CoSey, Esq., 
 I appear to represent tlie government and to 
 utter the concluding words of counsel in the 
 case; and I could well wish that the position 
 had fallen to another. But the duty is upon 
 me, and I will perform it to the best of my 
 ability. 
 
 I propose first, gentlemen, to ask you to go 
 hastily with me over the leading points in the 
 testimony, — not to repeat tlie language of the 
 witnesses, but to give you the evidence in sub- 
 stance. On the first day of last July, there 
 sailed from ihe port of Boston, the schooner 
 Enchantress, an American vessel having 
 American papers and the American Aug, 
 chartered by an American merchant, and 
 carrying as cargo the property of American 
 citizens. The cargo was to be exchanged at 
 8t Jiigo de Cuba, and she was to bring by a 
 circuitous voyage, to its owners the just 
 results of their enterprise. Tlie story of 
 her voyage until the sixth of the month, is 
 brief iind unirnpurtant. Observing a sail 
 in sight on the after noon of that day, her 
 officers sh.iped iier course so that she came 
 near to the vessel. There floated at the 
 mast-head of the stranger, the flag of 
 France, a nation at peace with their own. 
 They came near her, feeling that thex-e 
 
84 
 
 •were friendly hearts on board. When they 
 had come within the proper distance for such 
 a purpose, they were hailed and found them- 
 selves under the range of the guns of an 
 armed brig, from the deck of whicli they were 
 ordered to heave to; and as they passed 
 around her bow to a position of safety for 
 compliance with that order, a long eigh teen- 
 pounder, a pivot gun, kept them in range. Thus 
 under constraint of overwhelming force, the 
 schooner hove to. William Smith, the defend- 
 ant, was on board of the vessel that thus 
 brought her under the power of its guns and 
 thus constrained her to surrender her voy- 
 age and lay to. The Enchantress was soon 
 boarded ; her papers demanded and surrend- 
 ered ; her crew sent on board the stranger 
 vessel, the captain, his son a lad, and the 
 mate, alone left in possession. In a little 
 while, the boat that had borne the crew away, 
 returned, bringing back one of the number, a 
 native of the Danish West ludies, who had 
 left the port of Boston under the protection 
 of the American flag. Why did he return ? 
 The boat came to carry away the ofBcers 
 and the boy that had been left behind. Why 
 did it bring Jacob Garrick back? He was 
 sent back because he was not wanted on board 
 the pirate brig, and because he would, as mer- 
 chandise, bring $1,500 in the port of Charles- 
 ton ! So the witness Page, has told you. He 
 left the deck of the Enchantress a man, and 
 before the clock had struck returned to it a 
 mercliantable thing for a market. The cap- 
 tain, mate, and boy were now ordered to the 
 boat; they obeyed the order; then where 
 went our Enchantress with her American 
 papers, American flag, and American mer- 
 chandise ? Where went the ventures of your 
 fellow-citizens ? They were now destined for 
 a market nearer than St Jago de Cuba, to be 
 reduced to dollars and cents, that William 
 Smith, the defendant, might receive his ap- 
 pointed portion of them, — the price of the 
 schooner, merchandise, man, and all! 
 
 These are, briefly, but I think clearly told, 
 the essential facts of the voyage, so long as 
 the Enchantress remained in charge or in any 
 possible or constructive possession of her offi- 
 cers. Was robbery perpetrated then and 
 there? I ask this question now, because the 
 question before you is, was this defendant 
 guilty of piracy under the laws of the United 
 Stales ; and if there was a taking of property 
 under these circumstances, fur which no legal 
 justification has been shown, there was rob- 
 bery ; and he was guilty of the crime charged. 
 The sole question for you to decide, 1 repeat, 
 is, has this defendant been guilty of jnracy 
 under the laws of the United States, — not 
 under the common law, — not is he the gene- 
 ral enemy of the human kind, — not has he 
 the highwayman's heart and habits; — but 
 are you as a jury, satisfied that he has vio- 
 lated the laws of the United States for the 
 prevention and punishment of piracy. In 
 connection with the facts referred to, you 
 have also learned that the vessel which 
 
 1 brought the Enchantress to and took off her 
 crew, was heavily armed ; that her cabin was 
 ' stacked around with bayonetted muskets, 
 j double barrelled fowling pieces, boarding 
 pikes, and pistols ; and that there were a hun- 
 dred men on board of her. Nine, says one of 
 I the witnesses, had been sent on b^ ard of my 
 I vessel that morning, and when the Enchantress 
 ! was taken there were, I think, seventy-three 
 left. We heard also of crews having gone 
 on board of other vessels from this brig now 
 i known to us as the Jeff. Danis. 
 ^ The law of the United States to which you 
 are to apply the facts of the case, has been read 
 I to yon, but I will take the liberty of reading 
 it again. Its terms are simple and express. 
 ! My learned friend who with so much power 
 closed for the defendant (Mr. Wharton), ad- 
 i mitted that the case seemed to be within the 
 letter of the law, and his argument to you 
 was that it was not within its spirit if you 
 I would kindly ascertain that spirit by the aid 
 of certain facts which appeared to have great 
 weight upon his mind. The letter of the law 
 and its interpretation, as you will receive it 
 from their Honors upon the bench will, I ap- 
 1 prehend, guide you, and I will therefore best 
 j perform my duty by calling your attention to 
 j its letter. It is : 
 
 [ '• 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 
 t 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." 
 
 Now, gentlemen of the jury, what are the 
 \ defences set up to this charge? The facts as 
 I they stand seem in my judgment, to make out 
 j as clear a case of piracy as ever was made 
 out. To it, what are the defences ? First, 
 ! you are told that this man was not voluntarily 
 there, that he was there under duress, — re- 
 straint. It is argued, and you are persuaded 
 I to infer, that he would gladly have escaped if 
 ' he could, for if that is not true his duress or 
 I restraint was not such as the law recognises. 
 How did he come to be there? If you may be- 
 ' lieve his own witness, Edward Rochford, one of 
 I his companions in crime, who is, like himself 
 ' under indictment, the day before the body of 
 '■ the crew left the port of Savannah, he was 
 I seen upon the steps of a hotel, valise in hand, 
 I apparently at liberty. He traveled by railroad 
 ; to the city of Charleston, and there he went 
 on the Jeff' Davis, and after some days she 
 went to sea with him on board. If the argu- 
 ment, and the facts from which it is attempted 
 to be deduced, establish duress in his case, 
 they apply to every man on board that vessel, 
 and we are left to wonder why it is that the 
 Jeff. Davis did not immediately come north, 
 and the defendant and his worthy comrades 
 find freedom from such outrageous restraint ! 
 With a hundred men, she sailed to sea on the 
 26th of June. What vessel she captured or 
 what course she pursued on that day, or the 
 
85 
 
 next, or the next, we know not ; we begin to 
 learn these matters only on the afternoon of 
 the 6th of July, and we then discover what 
 she had done in the morning of that day as 
 well as what she did in the afternoon. I say 
 the argument that tlie defendant was on board 
 the Jeff. Davis under restraint, applies to 
 every man on board, for the idea upon which 
 it rests is that there was some law or sup- 
 posed law that compelled him to go. He was 
 there, however; and to get there he had 
 traveled by rail, valise in hand, from Savan- 
 nah; he had remained on board for weelis 
 and there is no allegation that he had at- 
 tempted to escape; but it appears that he did 
 leave the Jeff. Davis on the Gth of July, and 
 went as prize master on board the Enchant- 
 ress. Here he had a prize crew of four and 
 one prisoner, Jacob Garr.ck the colored man. 
 AVhich way did he steer that vessel? Did he 
 now, when he was the master of his position, 
 attempt to escape the service to which he had 
 been constrained and to which he was so unwil- 
 lingly held ? Oh, no. When he took charge of 
 the £nch an tress, she was two hundred and fifty 
 miles south-east of Nantucket South Shoal, 
 and when she was re-capt>ired by the Alba- 
 tross, she was in the neighborhood of Hat- 
 teras. But again: Where liad he talked of 
 taking her ? Where had he thought of taking 
 her? Where did he wish to take her? The 
 witness tells you, he spoke first of going to Sa- 
 vannah, and then he changed his mind and pro- 
 posed to take her to a place called Bulls, 
 about twenty-five miles from Charleston, and 
 whence she could be towed to that city by a 
 steamer. Had some evidence of original duress 
 been exhibited, what would it weigh against 
 this absence of effort to escape, this persistent 
 and vigorous performance of a pirate's duty ? 
 The law defines this matter of the measure of 
 duress, which will relieve a man from the con- 
 sequences of his criminal act — no recent law; 
 it is not a new question. In Foster's Crown 
 Case, chap. 2, sec. 8, p. 216, of the London 
 edition of 17'J2, the law is given thus : 
 
 " The joining with rebels in an act of rebel- 
 lion or with enemies in acts of hostility, will 
 make a man a traitor; in the one case within 
 the clause of levying war, in the other within 
 that of adhering to the king's enemies. But, 
 if this be done for fear of death, and while the 
 party is under actual force, and he taketh the 
 first opportunity that olFereth to make his 
 escape ; this fear and compulsion will excuse 
 him. It is however incumbent on the party 
 who maketh fear and compulsion his defence, 
 to show, to the satisfaction of the court and 
 jury, that the compulsion continued during 
 all the time he staid with the rebels or ene- 
 mies." 
 
 Let me illustrate this law by a case — 
 McGrowther's case, which was tried in 
 1746. 
 
 "In the case of Alexander McGrowther, 
 there was full evidence touching his having 
 been in the rebellion, and his acting as a 
 lieutenant in a regiment of the rebel army, 
 
 called the Duke of Perth's regiment. The de- 
 fence he relied on was, that he was forced 
 in. And to that purpose he called several 
 witnesses, who in general swore that on the 
 28th of August, the person called the Duke of 
 Ferth and the Lord Strathallan, with about 
 twenty Highlanders, came to the town where 
 the prisoner lived; that on the same day three 
 several summonses were sent out by the Duke 
 requiring his tenants to meet him and to con- 
 duct him over a moor in the neighborhood 
 called Luiny Moor; that upon the third sum- 
 mons the prisoner, who is a tenant to the duke, 
 with about twelve of the tenants appeared; 
 that then the Duke proposed to them that they 
 should take arms and follow him into the re- 
 bellion ; that the prisoner and the rest refused 
 to go ; whereupon they were told that they 
 should be forced, and cords were brought by 
 the Duke's party in order to bind them ; and 
 that then the prisoner and ten more went off, 
 surrounded by the Duke's party. 
 
 " These witnesses swore that the Duke of 
 Perth threatened to burn the houses, and to 
 drive off the cattle of such of the tenants as 
 should refuse to follow him. 
 
 " They all spoke very extravagantly of the 
 power lords in Scotland exercise over their 
 tenants ; and of the obedience, (even to the 
 joining in rebellion,) which they expect from 
 them." 
 
 Somewhat analogous it may be supposed 
 to the power exercised over the people of the 
 south by themselves, or the masters they have 
 set upon their backs, who liking their seats 
 make them show their paces. But to the 
 case. In summing up, the Lord Chief Justice 
 said in response to these arguments : 
 
 " The fear of having houses burnt or goods 
 spoiled, supposing that to have been the case 
 of the prisoner, is no excuse in the eye of the 
 law for j(jining and marching with rebels, 
 
 "The only force that doth excuse is a force 
 upon the person, and present fear of death ; 
 and this force and fear must continue all the 
 time the party remains with the rebels. It 
 is incumbent on every man who makes force 
 his defence, to show an actual force, and that 
 he quitted the service as soon as he could, 
 agreeably to the rule laid down in Oldcastle's 
 case, that they joined pro timore mortis, and 
 recesseruntquaiii cito potuerunt.^' Foster's Crown 
 Cases, pp. 13, 14, 
 
 Under this law, and it is indisputable, what 
 becomes of the argument of duress ? The 
 defendant could have returned the Enchant- 
 ress and her cargo to their owners, and re- 
 ceived the " God speed" of his country, and 
 the proud and tender expressions of love and 
 gratitude of his " Northern wife, and boy at a 
 Northern college," lor his act of honesty and 
 patriotism. It was then open to William 
 Smith, the prize master, to pursue the course 
 of the humble man, Jaco Garrick, who saw 
 before him worse than death, and when the Al- 
 batross approached, threw himself into the 
 ocean, that at the cost of his life, if need be, 
 the Enchantress should be restored to her 
 
86 
 
 country, the property on board to its owners, 
 and lie escape the outrages and unrequited 
 toil, that $1,500 Cto be divided among the 
 pirate crew, J were to entail upon him, and 
 his posteiify. But where is the evidence of 
 Smith's desire to escape, his honesty, patriot- 
 ism, or any redeeming element of character — 
 the love even of wife and child, whom he 
 could have visited so gratefully with his 
 protection, in this season of turbulence, 
 distraction, doubt, and danger? What one 
 generous or honest impulse seems at any 
 time to have possessed or impelled him ? 
 No, gentlemen of the jury, the suggestion 
 of duress will not avail : indeed it is not the 
 defence in this case — it is but dust for jurors 
 eyes. The defence upon which counsel rely 
 is that their client acted under a commission, 
 a letter of marque, and I proceed to inquire 
 whether they have established this fact. 
 
 A letter of marque is a commission granted 
 by an established government to the com- 
 mander of a merchant ship or privateer, to 
 cruise against and make prizes of the enemy's 
 ships and vessels, either at sea or in tlieir 
 harbors, under pretence of making reprisals 
 for injuries received ; and let me, at the outset 
 of this inquiry, premise that you have not 
 heard that sort or measure of evidence, which, 
 despite all t'le difficulties that surround the 
 defendant's case, ought to have been produced 
 to show that there was a letter of marque, 
 real or pretended, on board the Jeff Davis. 
 There is, I aver, no evidence that there was a 
 genuine letter of marque from any government 
 or pretended government on board that robber 
 craft. The prosecution freely admits that the 
 presumption, deducible from notorious facts, is 
 that there was in the possession of one of her 
 officers, a paper purporting to be such a letter ; 
 but so far as this case is concerned, the offer 
 of evidence in support of the allegation was 
 to the last, degree slender and feeble. One ot 
 the defendant's confederates in crime was 
 called to show, that while on board, he heard 
 what purported to be such a paper, read. He \ 
 seemed to have a pretty distinct recollection 
 of the fact, much more definite indeed than he 
 had as to facts nearer to him, as for instance 
 as to what share of the plunder he was to get ! 
 He had heard that subject '-a little talked 
 about," ''somewhat discussed," but he did 
 not know precisely what share he was to get I 
 He had been led to believe, however, that it 
 was to be divided among them. 
 
 The spectacle now presented is one of the 
 most extraordinary, and 1 think one of the 
 most sublime ever beheld by man. We are 
 in a court of justice of the United States, try- 
 ing a cause quietly, courteously, and with a 
 tender regard for the rights of tie defend- 
 ant, at a lime when I'lUU.UUO of our brothers 
 auu friends are armed and on the tented 
 field, — and when, as has been said to you 
 every mail brings the tidings of the death 
 of some loved or honored one. We are 
 trying a mau who comes from a section 
 
 of our own country, in wMch, to profess 
 a love for the United States, its govern- 
 ment and its flag, not only suspends the 
 the habeas corpus in the particular case, but 
 seems to suspend all law, human or divine, 
 curdles and paralyzes all generous emotions 
 and manly instincts, and inflicts even upon 
 gentle woman, such brutal punishments, as 
 only barbarous nations apply to hardened 
 malefactors; sparing their lives, it may be, 
 but sending them to their homes with shavea 
 heads, excoriated backs and limbs, and other 
 enduring badges of degradation and shame. 
 And what defence is set up, and how is it 
 received ? It is that this defendant was aid- 
 ing the cause of those who are arrayed in arms 
 against our brethren ; that he was aiding the 
 cause of those who thus punish our people lor 
 loyalty to their government ; that he ^waa 
 aiding the cause of those who have stricken 
 down and dishonored the flag of our country, 
 and made war upon its institutions and its 
 people. And that defence is pressed and 
 listened to, and weighed, and strengthened 
 even by presumptions. It is right that it should 
 be so. Such scenes as this, will redeem our 
 generation in history. They prove that it is 
 not our democratic republican institutions, 
 that have begotten a tendency to barbarism 
 among a people once civilized, generous, and 
 humane ; that the love of law and order, justice, 
 truth, and right, still dwells in the hearts of 
 the American people, and are the sure pledge 
 of the ultimate realization of the best hopes of 
 those who have most faith in man's capacity 
 for self-government. 
 
 Men have a right to change their form of 
 government, says the learned counsel (Mr. 
 Harrison,) and the remark discloses the car- 
 dinal point of the defence. Yes, men have a 
 right to change their government. That ar- 
 gument is not novel ; it has been made before, 
 under somewhat similar circumstances, and I 
 thank his Honor, Judge Cadwalader, for hav- 
 ing in an opinion cited this morning by my 
 learned adversaries, called my attention, to 
 the reply it has elicited. 
 
 Savs Lord Chief Justice Eyre, in Hardy's 
 case : 
 
 " It was observed to you by the leading 
 counsel on tlie part of the prisoner (to whom 
 L am always desirous of paying attention), 
 and the observation was repeated, that a peo- 
 ple had a right to alter their government. 
 That proposition, under certain circumstances 
 may he true; but it ought not to have been 
 introduced into a court of justice, bound to 
 administer the law of the existing government 
 and to suffer no innovation upon it. i did 
 not interrupt the learned counsel when he 
 stated this proposition, because I did not wish 
 to stop him, or to disconcert the chain of his 
 argument; hut having passed it by upon that 
 occasion, 1 feel it my duty to notice it now, 
 betause it can have no relation to the busi- 
 ness beiore us, because it tends to unsettle 
 men's minds, to bring on a thirst for iuuova- 
 
87 
 
 tions, and to shake all the foundations of 
 government." 24 Sla'.e Trials, 1371 ; Trial 
 of Thomas Hardy. 
 
 We, gentlemen of the jury, have not changed 
 our government. We live under the Consti- 
 tution and laws of the United States. We are 
 here to maintain that Constitution, and to en- 
 force those laws. We have not joined what 
 my learned brother Wharton says is now re- 
 cognized not only as a rebellion but as a great 
 rebellion ; and it ill becomes a member of our 
 Bar, sworn to support our Constitution and 
 
 several States are, it is true, independent 
 of one another. They are also independent of 
 the government of the United States, except 
 for such purposes as the Constitution speci- 
 fies. But, for all the specitie purposes for 
 which it was adopted, the States are, with 
 reference to the United States, dependent 
 and subordinate, and not loreign States, 
 In the Constitution, the word 'foreign,' oc- 
 curring in five clauses of the original instru- 
 ment, and once in the amendments, is always 
 used in such a sense as to exclude its appli- 
 
 our laws, to put in the defence that some peo- i cability to a State of the Union, or to any 
 pie think they have changed our government, thing appertaining to one. The States, there- 
 Nobody denies the right of revolution ; but it ' fore, though for some purposes foreign to 
 does not exist every day. and extend to all i one another, are, for all national purposes 
 people under all circumstances. The eloquent embraced in the Constitution, united under 
 gentleman, (Mr. Harrison,) quoted Mr. Web- , a government which is both independent and 
 Bter on this point. Let us see if Mr. Webster i supreme." (6 Cranch, 1S6 ; 6 Wheat, on 
 puts tno limitations to the right. He said: i 381 ; 2 Peters. 590; 12 Peters, 720; 21 How- 
 " If the gentleman had intended no more \ ard, 517.) Decision in case of ship General 
 than to assert the right of revolution for Parkhill, p. 7. 
 justifiable cause, he would have said only I Vou perceive that his Honor recognizes the 
 
 what all agree to ; but I cannot conceive 
 that thete can be a middle course between 
 submission to the laws when regularly pro- 
 nounced constitutional, on the one hand. 
 
 Constitution of the United States as what its 
 letter declares it to be, the supreme law of 
 the land, by which the Judges in every State 
 are bound, anything in the constitution orlaws 
 
 and open resistance, which is revolution or of any State to the contrary notwithstanding, 
 rebellion, on the other." I The doctrine of State sovereignty is 
 
 Even here, in the learned counsel's chosen broached in this case, and the right of a 
 passage, justifiable cause is said to be State to secede is argued, and, with equivocal 
 a pre -requisite to the right of revolution, qualification, asserted by all the counsel. 
 I have shown you that it has ever been held i Whence is it drawn? What sentence or para- 
 that it is not a proper defence to offer in the graph of the Constitution implies it? Look 
 court of the existing government, the laws of i through that instrument, take it line by line, 
 which are being administered. When then ' section by section, article by article, and say 
 can it be set up? Has the time come with where the most astute of southern or north- 
 us? Has there been a revolution that has j ern statesmen find the text or principle upon 
 overthrown our government ? Is there a j which the doctrine of State sovereignty, and 
 government peaceably established on its ] the right to secede, is based ? Every section 
 ruins in any part of its territory that has ■ refutes the doctrine. Take, for instance, a 
 issued a letter of marque to these people? part of the 1st Article: 
 These questions you must decide in passing j " Congress shall have power, 
 upon the defence set up. And in deciding 1 *' To lay and collect taxes, duties, imposts 
 them, gentlemen of the jury, you will decide I and excise, to pay the debts and provide for 
 so far as in you lies, whether the U. S. Con- the common defence and general welfare of 
 stitution is still extant; whether the Ameri- 1 the United States; but all duties, imposts, 
 can people still have a government. For if i and excises, shall be uniform throughout the 
 
 the letter of marque in question (conceding 
 that there was one,) is a sufficient justifi- 
 cation of the crime charged, the United States 
 government is at an end, and that which we 
 have so confidently believed to be enduring. 
 
 United States. 
 
 " To borrow money on the credit of the 
 United States. 
 
 " To regulate commerce with foreign na- 
 tions, and among the several States, and 
 
 perpetual, a thing to bless mankind while , with the Indian tribes, 
 time should flow, has passed away and is at j " To establish an uniform rule of natu- 
 an end. If this be true, our Republican in- ' ralization, and uniform laws on the subject 
 stitutions have been a delusion, as fleeting as ! of bankruptcies, throughout the United States, 
 it was resp'eudent with promise. Let us see " To coin money, regulate the value there- 
 whether I am right in this. Turn with me of, and of foreign coin; and to fix the stand- 
 to a recent opinion of his Honor, Judge Cad- i ard of weights and measures, 
 ■waliader, quoted by my learned brother. " To provide for the punishment of coun- 
 Let Die quote a brief passage, the argument | terfeiting the securities and current coin of 
 of which you will perceive is sustained by j the United States. 
 
 numerous citations from the highest au- " To establish post offices and post roads, 
 thority known to American courts : "To promote the progress of science and 
 
 " The States which compose the Constitu- j useful arts, by securing, for limited times, to 
 tional Union, are not, with reference to it ; authors and inventors, the exclusive right to 
 either foreign or independent States. The their respective writings and discoveries. 
 
88 
 
 " To constitute tribunals inferior to the 
 Supreme Court. 
 
 ♦' To define and punish piracies and felo- 
 nies committed on the high seas, and offences 
 against the law of nations. 
 
 " To declare war, grant letters of marque 
 and reprisal, and make rules concerning cap- 
 tures on land and water. 
 
 " To raise and support armies; but no ap- 
 propriation of money to that use shall be 
 for a longer term than two years. 
 
 " To provide and maintain a navy. 
 
 *' To make rules for the government and 
 regulation of the land and naval forces. 
 
 " To provide for calling forth the militia 
 to execute the laws of the Union, suppress 
 insurrections, and repel invasions." 
 
 So it proceeds, through a series of clauses, 
 to limit the power and sovereignty of the sev- 
 eral States, by giving to the general govern- 
 ment all those powers which are essential to 
 every well-regulated nation. But lest all this 
 might not be sufficient to establishment be- 
 yond argument the subordination of the States, 
 there was, as if to provide for this case, era- 
 bodied in the 10th section of the same article, 
 this paragraph : 
 
 " No State shall enter into any treaty, al- 
 liance, or confederation ; grant letters of 
 marque and reprisal; coin money ; emit bills 
 of credit; make anything but gold and silver 
 coin a tender in payment of debts; pass any 
 bill of attainder, ex post fado law, or law im- 
 pairing the obligation of contracts, or grant 
 any title of nobility." 
 
 But. gentlemen, take the Constitution with 
 you; look at it line by line, and section by 
 section ; and though on every page you will 
 find the evidence that it was to be the supreme 
 law of the land, you will nowhere find the 
 point upon which ingeniiity can hang the ar- 
 gument that each State was sovereign, and 
 the United States government subordinate ; 
 that it was a temporary compact or treaty 
 of peace between neighboring sovereigns, 
 which could be broken whenever any of the 
 parties to it became impatient of its restraint. 
 It was a government ordained by a people and 
 invested with power to enter into treaties with 
 the governments of other nations, and to 
 maintain itself against the assaults of foreign 
 or domestic foes. 
 
 My learned brother, the senior counsel for 
 the defendant, (Mr. Wharton), said well that 
 the present circumstances could not have 
 been anticipated by the men who framed our 
 government. No, for while the Constitution 
 provides for the suppression of rebellion, and 
 its own peaceable amendment, it purports to 
 be a bond of perpetual union. The founders 
 of the government could not have foreseen 
 the present stnte of affairs. Gifted as they 
 appear to have been with prescience, they could 
 not have imagined that an American citi- 
 zen taken in the act of piracy as defined by a 
 law of Congress, should come into court and 
 through learned counsel sworn to maintain 
 ihat Constitution which ordains that Congress 
 
 shall have power to grant letters of marque, 
 and provides that no State shall grant letters 
 of marque, ask an acquittal because the act 
 was perpetrated under such a letter granted 
 hy a State or a combination of States. 
 
 The Constitution is still, thank God, the su- 
 preme law of our land under which we are to 
 try the cause, and its very letter, with wise 
 forecast, proclaims the inefficiency, the illegal- 
 ity, the utter worthlessness of the alleged 
 commission by which the defendant's crime is 
 attempted to be justified. 
 
 The effrontery of this defence is amazing. 
 It is, as my colleague said, like the apology 
 for a blow inflicted on the king which con- 
 sisted of an earnest assurance that it was in- 
 tended for the queen. 
 
 The defendant substantially says, " I did not 
 commit piracy, because I was engaged in a 
 higher crime; I did not commit piracy, because 
 I did not try to steal the property of Englishmen 
 or Frenchmen, or Spaniards; 1 only stole that 
 of American citizens; and I did not do that 
 entirely for my own advantage, but in part 
 that by harassing and impoverishing my loyal 
 countrymen, I might help forward the great 
 conspiracy to destroy the Constitution which 
 their Honors have sworn to support, and 
 which you, gentlemen of the jury, are bound 
 by your oaths to maintain." 
 
 He did not commit piracy, because he did 
 not want to injure Englishmen, or Frenchmen, 
 or Spaniards! Did the learned gentleman, (Mr. 
 Wharton), put that argument to you seriously? 
 Did the eloquent gentleman who talked so glibly 
 of the right of secession and of State Sove- 
 reignty, and of the defendant's paramount al- 
 legiance to the State of Georgia ( Mr. Harrison) 
 mean to say, that the defendant and his con- 
 federates in this cruel and wicked rebellion, 
 intended no harm to the people of foreign na- 
 tions ? It is not true. Free, republican Ame- 
 rica, is the promised land of oppressed millions 
 toward which they journey when hope gilds 
 their dreams. The Constitution of the United 
 States is the pillar of tire by night, and the 
 cloud by day, to weary, oppressed, and long- 
 ing multitudes ; it is the miracle of modern 
 times ; it stands and will stand, in all history, 
 so far above and beyond any other state 
 paper or document, that it is without peer or 
 parallel, or thing comparative ; it is the out- 
 growth of ages, the pledge of future peace and 
 prosperity to the world, and it was well 
 characterized years ago by our venerable and 
 distinguished townsman, Hon. George M. 
 Dallas, as the fit canopy for a continentj 
 Not want to injure the Englishman, the 
 Frenchman, or the Spaniard! Go to the 
 homes of the poor and ojipressed in the British 
 realm, the wide empire of France, or the 
 kingdom of herCatholic .Majesty, and jou will 
 find the young patriot heart beating at the 
 mention of this far-off land of ours. You will 
 find that America is the land toward which 
 the heart of the young man leaps, and for 
 which the pining old man sighs — not for the 
 fertility or beauty of our land, not for the 
 
89 
 
 grandeur of our lakes and rivers, but for the 
 prosperity, the growing progress and freedom 
 of a multitudinous people made up from the 
 oppressed of all lands and enjoying the bless- 
 ings of equal laws. 
 
 The defendant did not commit piracy, say 
 Lis counsel, because he was engaged in the 
 work of armed rebellion; he is not a felon, 
 because he was only trying to tear to pieces 
 the Constitution of our country ! He was 
 only trying to involve in a state of perpetual 
 war, thirty-four great States ; he was only 
 trying to m?ike a line of custom houses, and 
 a system of passports, and a standing army 
 necessary to mark the boundaries of every 
 little principality or great state, kingdom or 
 empire, that mad ambition may carve out of 
 what is now the territory of the United States 
 of America I He was only trying to obliterate 
 tl e glorious memories and forever dispel the 
 blessed hopes of the American people I Per- 
 mit me to say here, gentlemen of the jury, 
 that the deteiice is not competent, or in my 
 judgment one tlmt ought to have been set up 
 in this court. You have been told that the 
 doctrine of secession is a received legal doc- 
 trine, and Mr. Rawle's and other speculative 
 and metjiphysical essays have been referred 
 to in its support ; but 1 ask my learned 
 brothers to point to a single decision in any 
 American Court in which that doctrine has 
 been held. I throw open to them the law 
 library, the decisions of the entire country, 
 and ask them to bring to your notice one 
 single decision that can guide them or you to 
 that conclusion. 
 
 Mr, Harrison. My argument was that 
 there had been no decibion on the suVject 
 either way. 
 
 Mr. Kelley. The cases cited by his Honor 
 Judge Cadwalader, in the brief quotation I 
 have made from his opinion in the Parkliill 
 case, abundantly answer that suggestion 
 But let us look for a moment at Mr. llawle's 
 book. I do not know its history. This may 
 be much to my shame ; but I have not found it 
 among the generally recognized expositions of 
 the Constitution. It was written by a very 
 distinguished lawyer, but I apprehend from 
 the hasty glance I have been able to cast over 
 its pages, when he was a young man, and 
 rather for his own gratification as a general 
 essay upon the Constitution, than under the 
 impression that he was preparing a legal ar- 
 gument, or authoritative exposition; but even 
 he shrinks from the conclusion to which, by 
 some extraordinary process, he seems to have 
 come. 
 
 '•Separation," (said he, in the paragraph 
 following the passage read by my learned 
 brother,) *' would produce jealousies and dis- 
 cord, which in time would ripen into mutual 
 hostilities, and while our country would he 
 weakened by internal war, foreign enemies 
 would be encouraged to invade with the flat- 
 tering prospect of subduing in detail those 
 whom collectively they would dread to en- 
 counter." 
 
 And again: — "If in other countries, and par- 
 ticularly in Europe, a systematic subversion 
 of the political rights of man shall gradually 
 overpower all rational freedom and endanger 
 all political happiness, the failure of our ex- 
 ample should not be held up as a discourage- 
 ment to the legitimate opposition of the suf- 
 ferers. If, on the other hand, an emancipated 
 people should seek a model on which to frame 
 their own structure, our Constitution, as per- 
 manent in its duration as it is sound and 
 splendid in its principles, should remain to be 
 their guide." Kawlt ok the Constitution, pp. 
 
 299, aoo. 
 
 Seeing how Mr. Rawle recoiled from his 
 own conclusion, let us turn to the Commen- 
 taries of that distinguished jurist, Judge 
 Story, upon the Constitution. After allud- 
 ing to the fact that some of the people of 
 Masf^achusetts, Virginia, and other States had 
 conceived "queer notions,"' as the eloquent 
 gentleman, Mr. Harrison, said the other day, 
 he says : 
 
 " What, then, is to become of the Consti- 
 tution, if its powers are thus perpetually to 
 be the subject of debate and controversy ? 
 What exposition is to be allowed to be of au- 
 thority ? Is the exposition of one State to 
 be of authority there, and the reverse to be of 
 authority in a neighboring State entertaining 
 an opposite exposition? Then, there would 
 be at no time in the United States the same 
 Constitution in operation over the whole 
 people. Is a power, which is doubted or de- 
 nied by a single State, to be suspended, either 
 wholly or in that State? Then, the Consti- 
 tution is practicilly gone as a uniform sys- 
 tem, or indeed as any system at all, at the 
 pleasure of any State. If the power to nul- 
 lify the Constitution exists in a sing'e S'a'e, 
 it may rightfully exercise it at its pleasure. 
 Would not this be a far more dangerous and 
 misth evous power, than a power granted by 
 all the States to the judiciary to construe 
 the Constitution? Would not a tribunal, ap- 
 pointed under the authority of all, be more 
 safe than twenty-four tribunals, acting at 
 their own pleasure, and upon no common 
 priuiiples and co-operation? Suppose Con- 
 gress should declare war; shall one State 
 have power to suspend it? Supfose C n- 
 gress should make peace; shall one State 
 have power to involve the whole country in 
 war ? Suppose the Pres-ident and Senate 
 should make a treaty ; shall one State declaie 
 it a nullity, or subject the whole country to 
 reprisals lor refus.ng to obey it ? Yet, if 
 every State may for itself judge of its obli- 
 gations under theConstitution, it may disobty 
 a particular law or treaty, because it may 
 detm it an unconstitutional e^erciseof power, 
 although every other State shall concur in a 
 contrary opinion. Suppose Congress should 
 lay a tax upon imports burthensome to a par- 
 ticular State, or for purposes which such 
 State deems unconstitutional, and yet all the 
 other States are in its favor; is the law lay- 
 ing the tax to become a nullity ? That would 
 
 T 
 
90 
 
 be to allow one State to ■withJraw a power 
 from the Union which was given by the peo- 
 ple of all the States. That would be to 
 make the general government the servant of 
 twenty-four masters, of different wills and 
 ditierent purposes, and yet bound to obey 
 them all." Story on the Constitution, vol. 1, 
 pai;e 353. 
 
 Such was the view of Judge Story. It is 
 authoritative, and is so received wherever 
 the Constitution is studied. It would hare 
 been the slave of twenty-four masters at 
 the time he wrote, but of tliirty four to- 
 day, and if the people of the United States 
 maintain and defend it, a day will come 
 when he who quotes that passage may 
 insert a hundred for the twenty-four. Y'our 
 country, and mine, gentlemen of the jury, is 
 alike on the plains of Texas and in the harbor 
 of (Charleston, among the enduring rocks that 
 resist tlie surging billows of the Atlantic, and 
 on the golden sands that hem in the still wa- 
 ters of tlie Pacific. The Constitution of tlie 
 United States, the right to establish which 
 was won by the valor and endurance of our 
 fathers, and the wisdom to indite which seems 
 to have been providentially given, makes 
 each State of the Union the country of each 
 one of us, and secures to our posterity the 
 right of citizenship in every future American 
 State ; and when the Mississippi valley, 
 drained as it is by more than fifty thousand 
 miles of water course, shall feed and clothe, 
 and house and educate a hundred millions of 
 Iree people of a single generation, there will 
 be one United S'ates Court into which the 
 people of a hundred States will come to liti- 
 gate and settle their diSerences peaceably. 
 The Constitution is the great guarantee of 
 future peace. To maintain it, in its integrity, 
 is to secure the countless millions who shall 
 succeed us in the enjoyment of our rich heri- 
 tage against such wicked outbreaks as the 
 military and naval power of the country are 
 DOW suppressing. But if we now fail in loy- 
 alty, or falter in duty, tlie angel of peace 
 may bid the world farewell, till some modern 
 Alexander or Ctesar, acC' pted hy an enfeehied 
 and despairing p^'ople, sighing for peace on 
 any terms, inay estahlish a despotism wide- 
 spread as the limits of our republic. 
 
 " iMr. President," (said Danie! Webster,) 
 "if the friends of nullification should be able 
 to propagate their opinions and give them 
 jiractical effect, they would, in my judgment, 
 prove themselves the mo.-t skiitul 'architects 
 of ruin,' the most effectual extinguishers of 
 high-raised expectation, the greatest blasters 
 of human hopes, that any age has produced 
 'J'hey wiiuld bland up to proclaim, in tones 
 which would pierce the ears of half the hu- 
 man race, that the last great experiment ot 
 lepresentative government had failed. They 
 would send furth sounds, at the hearing of 
 which the doctrine of the divine right ot 
 kings, would feel, even in its grave, a return- 
 ing sensation of vitality and resuscitation. 
 Millions of eyes, of those who now feed their 
 
 inherent love of liberty on the success of the 
 American example, would turn away from 
 beholding our dismemberment, and find no 
 place on earth whereon to rest their gratified 
 sight. Amidst the incantations and orgies of 
 nullification, secession, disunion, and revohi- 
 tion, would be celebrated the funeral rites '^f 
 constitutional and republican liberty." Wtb- 
 ffr's Works, vol. 3, p. .503, 504. 
 
 How prophetic were these words. The mere 
 attempt to carry the baneful doctrines into 
 effect, has suspendeil the arts of peace 
 throughout our country, summoned more tiian 
 half a million of freemen to the bloody field 
 of civil war, filled the hearts of the penple 
 with grief and anxiety, and shrouded tlieir 
 houses in gloom. Nor, mighty and terrible 
 as those results are, do they indicate the full 
 mea.'-ure of fearful consequences which flow 
 irresistibly from the mere attempt to reduce 
 to practice the insane dogma npon which the 
 counsel hare rested the defence of the pris- 
 oner. The world is not too wide a field 
 to illustrate the effects of so great a crime. 
 Where are the liberalists of England in the 
 political contests of the day? "The Thun- 
 derer" proclaims the end of the great He- 
 public, ami the friends of freedom in that 
 land shrink from pressing forward the hu- 
 mane movement which has engaged their 
 hearts and hopes for years Again, the 
 Thunderer proclaims to all Europe that the 
 experiment of democratic republicanism is at 
 an end, and Kossuth and his brave Hungari- 
 ans accept the fact, and consult as to who 
 shall be king of Hungary. And again, says 
 the Thunderer, the great experiment is at an 
 end ; the civil war in America has ex- 
 tinguished the fjiith of the world in a de- 
 mocracy, and Garibaldi sinks into quietude and 
 gives up the hope of an Italian republic ! 
 
 I might here, gentlemen of the jury, rest 
 the case, with the single remark that it is no 
 defence to the crime charged in the indict- 
 ment and proven by the witnesses, to say 
 that the act was perpetrated in furtherance 
 of this grandest of all historic crimes. But 
 respect for the able gentlemen who have 
 managed the defence, requires me to notice 
 some of the minor points they have pressed 
 upon your attention, which I will now proceed 
 to do, as briefly and with as much method 
 as 1 may, in view of the fact that the contin- 
 uing progress of the discussion has pre- 
 cluded the possibility of an examination of 
 my notes. 
 
 Why, you are asked, convict the defendant, 
 when hundreds of thousands are armed and 
 in the field against you? 
 
 The answer is, because it has been proven 
 that he was guilty of one of the most henious 
 of indictable offences. Did he, when he 
 shipped as a seaman for that voyage, believe 
 that the engagement was for honorable war- 
 fare and involved no peculiar risk ? Let his 
 confederates answer. 
 
 Did you hear, we asked, anything said 
 about Smith, after he left the brig? Yes, 
 
91 
 
 said Richford, the men were talking about 
 how he felt, ami what risk he was running, 
 and so on. Yes, he and every man on 
 board that vessel knew he was running a 
 risk ; the risk of his neck; hence it was that 
 tliey wondered how he felt when absent from 
 her armamenf^ind desperate crew 
 
 Privateering, it is said, has been recognized 
 by all civilized nations, and I admit it, but the 
 
 meeting soldier, and taking the risk of the 
 contest with no golden vision of prize money 
 on either side. Not so with the defendant 
 and his companions. Numbering a hun- 
 dnd, armed with muskets, boarding pikes, 
 and pistols, with knives concealed in their 
 boot-legs, that it should not be seen how 
 thoroughly they were armed, with a long 
 eighteen pound swivel gun, commanding 
 
 great niitions of Europe have recently provided any point of the horizon, with four heavy 
 by treaty for its abolition, and our govern- j wai-^t guns, two eighteen pounders and tw-> 
 nient, though the last to do so, has, I believe, ; twelve pounders, they went to sea, not to 
 acceded to the proposition. I will not speak meet, but to skulk from armed vessels, 
 of the recent history of the question in this I and rob unarmed men such ns the witnesses 
 country, as it is somewhat involved in parti- { w have produced. Not with armed men 
 san politics, and to discuss it might create and vessels of war was the conflict they 
 the impression that there was some justifica- j sought, but with the Enchantress. John 
 
 tion f I r the one act of discourtesy in the 
 course of this trial — the allusion of the gen- 
 tleman to the party relations of my colleagues 
 a id myself. In the highest court of the land, 
 gentlemen, we are considering questicins re- 
 lating to the highest issue tliat can be con- 
 tided to man, and no assault shall make me 
 
 Welsh, and sucii other unarmed, hut richly 
 laden merchantmen as they might fall in with. 
 Was this the conduct of soldiers, or fe'ons? 
 
 But again, say bis counsel, he is not a thief 
 and a pirate, but a prisoner of war, and in sup- 
 port of the proposition, ask, " Did he not give 
 his prisoners a siitficiericy of food — and did 
 
 pollute the cause with an alluj'ion to a party not the officers of the Albatross confine him 
 question or a party relation. I will even ' more closely, and treat him more harshly than 
 waive the discussion of wiiat the gentlemen i he had treated his prisoners?" 
 appear to deem a point of much importance, | Yes, he did give his prisoners a fair, daily 
 lest it might be suspected that my sugjrestions j allow ince of the water and stores he had 
 were intended to vindicate or condemn anj' : stolen from them, and he did not put them in 
 party organization with which I or others may irons, as the United States officers put him, 
 
 Lave been connected. 
 
 Why not, asked the senior counsel, ex- 
 change William Smith as a prisoner of war, 
 and send him on his parole, to his sorrowing 
 wife? Because he did not go to his wife when 
 he might have done so without the taint 
 of felony, and because the man in our 
 whole army, most wanting in a soldier's 
 
 when they arrested him in the act of piracy ; 
 but how this proves him to be a prisoner of 
 war, and not a pirate, or why upon this 
 showing, our Government should recognize the 
 Southern confederacy, it is somewhat difficult 
 to tell. 
 
 Is not Smith's case, you are also asked, 
 precisely analogous to tiiat of Paul Jones, and 
 
 attributes, would be overwhelmed with shame, are you prepared to say that he should have 
 
 at the thought that he had obtained his 
 freedom on such terms. '' Why not," the 
 changes ring, " exchange this man and 
 his companions, as prisoners of war, as 
 a certain Commodore and others have been 
 exchanged?" In the first place, let me 
 say, that no Commodore has been exchanged ; 
 and in the next, that our Government has 
 not sanctioned any exchange of prisoners ; 
 and further, that while I admit that the 
 manner of signing, and the letters of the 
 Lastily drawn terms of capitulation at Forts 
 Clark and Hatteras. imply the existence of 
 a government known as that of the Con- 
 federated American States, I challenge the 
 proof, even through the " Rebellion Record" 
 of any such act on the part of our government, 
 or tliat it has by any expression or implica- 
 tion, recognized the existence of a foreign 
 government wiiliin the limits of the United 
 States. 
 
 But, if the Government were prepared to 
 exchange prisoners of war, the defendant 
 would not come within the category. Treat 
 him like a soldier taken on the battle-field ! 
 The men who shot the eloquent and gallant 
 Baker a few days ago, were in the open field 
 to contend with armed men. It was soldier 
 
 been hung as a pirate ? Let me answer that 
 question so adroitly put, by asking another. 
 Is any one of the counsel for the defence pre- 
 pared as a lawyer to say, that if before the 
 recognition of our independence, Paul Jones 
 had been taken on board a privateer, by a 
 British cruiser, the English law would not 
 have condemned him as a pirate? The truth 
 is, gentlemen, that Paul Jones, and all the 
 American privateers of that day knew very 
 well, that if they were taken, they would go 
 into England and be tried for the crime of 
 piracy. They took that ri.sk in the cause of 
 their country, and the defendant has assumed 
 it in that of the great rebellion, and it is not 
 for you to shield him from the legal conse- 
 quences of his deliberate act. 
 
 This wicked and groundless rebellion has 
 been compared to the American Revolution, 
 and you are appealed to by the memories of 
 our fathers, to pronounce piracy an act of pa- 
 triotism, and acquit the defendant. We 
 were in the minority at the time of the Revo- 
 lution, said my learned brother Harrison. 
 He was mistaken. He has not read history 
 correctly. We were not in the minority ; we 
 were the people of the country. Outside of 
 South Carolina, the royalists and tories were 
 
92 
 
 the exceptional few. There is no analogy 
 between this infamous rebellion, and the Ame- 
 rican Revolution. Had the American people 
 a majority in the British House of Lords at 
 that time? Had they a practical workinfr 
 majority in the House of Commons ? Was the 
 highest court of the realm so much in their 
 favor that it had recently given a strained de- 
 cision securing them the enjoyment of what 
 they regarded as their most sacred right ? Or 
 had the king appeared among them, and pub- 
 licly sworn to fairly administer the laws and 
 protect us in all our rights and privileges? 
 No ! no ! there is no analogy. We, says he, 
 were weaker in every respect, than are the 
 confederates. In men, money, the munitions, 
 and paraphernalia of war, we were weaker, 
 but in the merits of our cause, we were more 
 than thrice armed. In au effort to main- 
 tain justice and right, to extend and per- 
 petuate popular institutions, and to construct 
 a Republic whose ultimate limits should be 
 circumscribed only by those of a continent, 
 and the enduring corner-stone of which, 
 should be human equality, we had a cause 
 that invoked the sympathy, prayers and aid 
 of all good men, and the superintending care 
 of the Eternal Father of men, and fountain of 
 blessing. But who sympathizes with the am- 
 bitious and unprinci(>le<J demagogues who are 
 drenching the country in blood, in an effort to 
 turn back the hands on the dial of time, and 
 obliterate the precepts and example of their 
 fathers. 
 
 But it is said, that this is no mere insurrec 
 tion or rebellion ; that it has assumed the 
 ampler proportions and characteristics of a 
 civil war; that the Soutliern Confederacy is 
 an existing government, fosteii;ig the arts and 
 sciences, administering law, and having its own 
 system of revenue and finance; that foreign 
 nations long since recognized it as a belligerent 
 power, and tliat its people have been treated 
 as belligerents in our own civil courts; and 
 can it not, you are asked, grant letters ot 
 marque? No, gentlemen, if all this be true — 
 and for argument's sake 1 admit it all — it 
 gives no validity to the letter of Mr. Divis. 
 Letters of marque can only be granted by 
 a member of the family of nations — hy a 
 State whose national existence is recognized, 
 and which lias, or may have, diplomatic re- 
 lations. The commerce of the world may not 
 be interfered with hy every insurgent chief 
 or rebel leader. Nor does tlie adoption of a 
 constitution by the rebels or insurgents, how- 
 ever wisely and formally it may be done, 
 invest them with the power. "A revolution," 
 says his Honor, Judge Cadwalader, in the 
 opinion to which I have already referred, 
 '• must have been consummated as an act of 
 power, before the question of its rightful- 
 ness can be judicially considered " 
 
 You, gentlemen of the jury, are judicially 
 considering the question of piracy, and the 
 act of the leaders of a rebellion is set up as 
 a defence. But it has not been and cannot 
 be shown that a revolutiou has been consum- 
 
 mated, and the defence fails. The revolution 
 must have been established ; the new govern- 
 ment must have maintained itself, been recog- 
 nized as a member of the family of nations 
 by the original government or those of neutral 
 powers. 
 
 Judge C.\nwAL.\i>ER. Mr/ Kelley, sup- 
 pose you were to put in the word "peacea- 
 bly." Are not all the authorities which 
 establish the de fjcto right of a revolutionary 
 government, founded upon its having been for 
 a measurable time peaceably established ? Is 
 there any such doctrine, as that there can be 
 an establishment of a revolutionary govern- 
 ment which is organized under a contest, 
 while the contest continues ? 
 
 Juiige Grikr. Docs it cease to be rebellion 
 in that case? " 
 
 Judge CAnwALAj>ER. The subjpct is a 
 verj' interesting one, and very delicate in its 
 application, unless upon that definition ; but 
 so far as 1 can recollect, if the doctrine be 
 defined in that way, it is perhaps a question 
 on which there wiil be found little or no con- 
 flict of authority. 
 
 Mr. Kellet. I think I shouli] have come 
 to meet the suggestion which your Honor has 
 thrown out. " Neither," gentlemen of the 
 jury, says the same opinion, " the power nor 
 the right of revolt against a government, can 
 be asserted in its own courts." 
 
 Judge CAmvALADER. I did not mean to 
 interrupt you, Mr. Kelley, but to call your 
 attention to the point, that it might be applied 
 to the subject under consideration, because 
 subordinates of all ranks have been protected 
 greatly on the principle of a de fa"to estab- 
 lishment of that which originated in wrong; 
 but the question I suggested was. whether that 
 had not always been under circumstances 
 showing that it had, for a time at least, been 
 peaceably established — not merely that the 
 former jjovernment had been subverted, but 
 that the new one had been peaceably estab- 
 lished ; and not where there was a continu- 
 ing contest. 
 
 Mr. Kelley. His Honor has probably, 
 gentlemen of the jury, made you undeistand, 
 as be has me, the point he makes, which lay 
 in my mind to be exhibited to you at some 
 stage of my argument 
 
 Mr. Wharton. Allow me to ask how the 
 doctrine would apply to the present kingdom 
 of Italy. Does your Honor mean peaceably 
 established, or peaceably maintained? 
 
 Judge Cadwalader. I will endeavor to 
 state it more clearly to the jury if 1 shall have 
 occasion to do so. I mean to say that a revo- 
 lutionary government must have been peace, 
 ably established, before the question could 
 arise for the purpose now before us. Whether 
 it must be afterwards pe,;ce.ibly maintained, 
 [ have not said ; but it must first be said to 
 have had a peaceable existence. For ex- 
 ample, take the case of the revolutionary 
 government of England between ltJ48 and 
 1660. There was a time when there was no 
 other governmeuti there, and no other govera- 
 
98 
 
 ment hostile to it. Upon that state of things 
 arose the question which has been so much 
 dehnted. 
 
 iMr. AVhabton. Our govirnment went 
 thriiugh a baptism of wnr ; and the present 
 l<ii:gdoni of Italy has done the same, and yet 
 perhaps it is not peaceably established, for 
 there may be an attempt to overcome it by 
 arms. 1 desired merely to km w whether 
 your Honor meant a peaceable establishment 
 or a peaceable origin. 
 
 Judge Cadwalauer. Though the origin 
 was hostile, there may have been a peaceable 
 establishment, as occurred in the English 
 revolution. However, I did not mean to in- 
 terrupt the argument ; I merely meant to 
 simplify the question. 
 
 Mr. Kellet. The point that has brought 
 on this discussion — and I thank his Honor 
 for the interruption — is, that the counsel 
 for the prisoner, maintain that the Southern 
 Confederacy exists de facto, and that her 
 net is to be accepted as his defence : and 
 I maintain, (and there lie.i the whole ditfer- 
 ence between us,) that the United States gov- 
 ernment exists, and that the two are incom- 
 patible, by force of that law which prevents 
 the possilile occupation of the same space by 
 two objects at the same titne. The United 
 States government extends over the territory 
 of the thirty-four States. If it does not, it 
 has ceased to exist. If it does exist, their 
 proposition is at an end, and no ailequate 
 defence to the indictment has been presented. 
 
 The government that issues letters of 
 marque must have had a peaceable existence. 
 It must have conquered the original govern- 
 ment, or purchased its independence ; or so 
 far have exhausted the pt wer of the original 
 government that, for a per'o 1 of greater or 
 less duration, it should have suspended its 
 belligerent efforts to bring the rebels into 
 subjection. Tlie point may be illustrated by 
 the case of Texas. Mexico and the United 
 States. We recognized the independence of 
 Texas before Mexico, but not until Mexico 
 seemed to have abandoned military ett'oi t to 
 repossess herself of the province. Tiie war 
 having ceased in fact, our government recog- 
 nizt-d the rightfulness of a revolution that had 
 resulted in the peaceful existfrice of a young 
 State, and with a friendly )e;ognition wel- 
 comed Texas into the family of natiuns 
 AVhile their struggle continued, a Texan letter 
 of mar(|U3 would not have been a sufficient 
 defence to the charge of piracy in a Mexican 
 court; but after lier recognition, and before 
 her admission into tlie .American Union, it 
 would, I apprehend, have l)een so recognized. 
 Hut wliat n>iti(m has recognized the Southern 
 Confederacy? None; atid is not the proof 
 in tills case, that it is forcing all its male in- 
 habitants between sixteen and sixty years of 
 age to do naval or military duty in a war by 
 wliich its leaders hope to estatdish a n ition 
 and secure reci gnition ? Mr. Davis's letter 
 can, 1 repeat, have no val dily in this Court, 
 liut, gentlemen, if I have tailed to make 
 
 this point clear to you, lean leave it with the 
 assurance that their Honors will ; and in a 
 case of this magnitude, a jury should take 
 the law from the Court, and not from con- 
 tending counsel. We who represent the gov- 
 ernment, are not, as has been intimated, 
 contending for a professional victory. What 
 we desire is an honest and intelligent applica- 
 tion of the law to the facts of the case, a 
 conscientious and legal verdict. 
 
 Much allowance must be made for the ear- 
 nestness of centlemen charged with the de- 
 fence of a prisoner whose life has been im- 
 perilled by his guilty conduct. But there are 
 limits beyond which enthusiasm should not 
 carry a man even in the jierformance of such 
 a duty. The State of Georgia nor the South- 
 ern C(mfederacy was the Caisar to whom the 
 prisoner, an American citizen, was bound to 
 render the things that are Cve ar's. Nor was 
 tlie other assertion of my Iriend Mr. Whar- 
 ton, that after the President had issued his 
 Proclamation c illing for seventy-five thousand 
 troops to make war upon them, the people of 
 the South thought it but right to resist force 
 by force and began to prepare for war, his- 
 torically correct. Nearer to the truth was he 
 in fact, though I fear not much in spirit or 
 purpose, when he asked you, and the Court and 
 the audience, the question, who shall say that; 
 we are engaged in a war which Congress has 
 declared ? No man shall say so, not even the 
 counsel, nor his eloquent colleagues. It was 
 not the Congress of the United States that 
 directed the walls of Fort Sumter to be bat- 
 tered down, and a foreign flag hoisted over 
 their blackened ruins. It was not the voice 
 of Congress that on the ]Sth of April last 
 proclaimed in th; distant city of .Montgom- 
 ery, that the same foreign flag before the 
 first day of the next month would flout the 
 insulteii heavens trom the dome of our coun- 
 try's capitol. Nor was it (Congress that du- 
 ring the entire autumn, winter, and early 
 sfiring, busied itself in circulating hate-engen- 
 dering lies, that throughout a large section 
 of the country suspended all peaceful avoca- 
 tions, drained workshop and counting-room, 
 and having from excited aud inflamed masses 
 of men, recruited, enlisted, and organized 
 regiments, waged th s unholy war. What 
 man shall be found so base as to charge these 
 crimes and this fratricidal strife upon Con- 
 gress or any deiiartment of the government 
 of the United States? When the peace of the 
 country had been violated ; its fl ig dis- 
 honored ; a little band of its soldiers half- 
 famished and sick at heart from hope de- 
 ferred, driven from one of its forts by over- 
 whelming numliei's, acting without regard to 
 the amenities of civilized war, — its arsenals, 
 hospitals, mints, aud other prop rty des- 
 poiled, and the very capitol of the country 
 threatened, the President who had sworn to 
 " preserve, protect and defend the Constitu- 
 tion of the United States," summoned the 
 people to arm and aid him in the periormance 
 of this great duty. Nor, let me in passiug 
 
94 
 
 remark, was it Congress that attempted by 
 tlie destruction of bridges on the great lines 
 of transit, to prevent the seizure of the Cafi- 
 tol and the overthrow of the Government. 
 Wliat the President did Congress has ap- 
 proved, and more than two hundred thousand 
 American citizens are now voluntarily under 
 arms to suppress the unjustifiable and in- 
 iquitous rebellion in aid of which the war 
 has begun, and in defetice of the Government 
 and institutions it was intended to overthrow 
 The prisoner threw himself into this war in 
 aid of those who so wantonly waged it, not as 
 a belligerent, but as a robber and a pirate: 
 he chose the felon's part, and went to rub his 
 unarmed countrymen upon the high seas. The 
 captures he and his companions made, were 
 not intended to enrich the treasury of the pre- 
 tended government he professed to serve. His 
 object was to make gain, and put money in 
 his purse. But, says his senior counsel, it 
 will be dangerous to convict him, for if you 
 do, he mny be hanged Well, what then ? 
 Not, it is true, an admonition V< look out for 
 yourselves, your wives and children ; but the 
 declaration that lus death will be terribly 
 avenged, that for every man hanged here, 
 there will be ten men hung at the South — tiiat 
 if this prisoner he convicted and executed, 
 there will go up to Heaven from CastlePinckney 
 a wail that will be heard even on the banks of 
 the Delaware. There has, gentlemen, been 
 much to admire in the course of this trial, and 
 much to surprise him who regards loyalty as a 
 virtue, but the coolness with which these sug- 
 gestions were submitted to you exceeds all 
 else. One would rather doubt the evidence 
 of his own senses, than believe that he had 
 heard an American jury gravely informed by 
 distinguished counsel, that if they had the 
 temerity to render a conscientious verdict 
 and tiie law should take its course, their fel- 
 low citizens would be hung by the score, and 
 the heart of the n^ition be wrung by the wail 
 of its suffering children. Vou have not been 
 sworn, gentlemen, to exercise a ho ind discre 
 tion in tiie premises : your oath requires you 
 to ascertain the facts, apply the law to them 
 and a true verdict find Do it — not under the 
 influence of fear or malice or indignation, but 
 calmly and conscientiously; and, if such an 
 administration of tiie law of the Utiited States 
 shall provoke many !ind barbarous murders, 
 let it be so! In God's name, let u- know the 
 worst. But, if you are to calculate conse- 
 quences, permit me to ask, wliat word or fact 
 ■would carry such insj'iration to the armies of 
 the South, or impart so much confidence to the 
 leaders whose S;itanic ambition is now agon- 
 izing the heart of the nation, as the announce- 
 ment that in the city where the Constitution 
 was adopted, in the Ciicuit Court, ho den in 
 the shadow of Independetice Hall, the Con- 
 federacy of Jeff. Davis had been judicially 
 recognized, and its letter of marque, accepted 
 as a defence for the crime of piracy. Better 
 than a brigade, division or whole corps d'ar- 
 
 mde, would it servp their unholy cause. AVith 
 what wild shouts of enthusiasm, would they 
 not receive such an assurance that the people 
 of the North sympathize with them in their 
 iniquities, and yearn for peace on such terms 
 as they may graciously condescend to (if t. 
 
 Again, gentlemen, if the possible conse- 
 quences of your finding are to influence your 
 delil)erations, let me .'■uggest that such a ver- 
 dict !is in my judgment is demanded by the 
 law iuxl the facts of this case, might possibly 
 produce effects much less sanguinary and 
 atrocious than those suggested by the pri- 
 soner's counsel. May it nut be that among 
 the mercurial people of the South tlin-e .are 
 some who have been inflamed against the 
 govir iment by the floods of calumny poured 
 upon the heads of tlie men to whom the people 
 hfive confided its admini.>^tration for an execu- 
 tive term, who would be kindly influenced by 
 the fact that one of the guiltiest of their mis- 
 guided compatriots, taken in the act of a ca- 
 pital crime had been tried with care and de- 
 liberation, and properly ctmvicted — but not 
 hurried to the gillows-trce or the lamp-post ; 
 not sentenced on the spot to execution, but 
 held as a po-sible subji'ct for executive clem- 
 ency. Might not such a fact refute many an 
 infamous lie — bring back to duty some of 
 ambition's misguided victims — save the beau- 
 tiful locks of some poor girl unable to conceal 
 the love she still bears the dear old flag that 
 waved from the stjiff on the village green in 
 the days of her childhood ; shield from the 
 soothing application of tar and sand the 
 lacerated back of some unhappy man who 
 cannot forget the home of his childhood, or 
 the love of freedom and the Union, inspired 
 by his grandsire's story so often repeated 
 under the shade of the old roof tree ; or possi- 
 bly diminish the number of lawless executions, 
 which by their frequency and cruelty, are in- 
 flicting such ineffable disgrace upon the coun- 
 try, [s it not possible, I ask, that some such 
 beneficent consequences as these may follow 
 the conscientious and fearless discharge of 
 your duty. 
 
 While the counsel for the government do 
 not wish you to forget th.at the prisoner has 
 a home, a wife, a child, and an aged grar.d- 
 motiier, thfv are unable to see what thi se 
 facts, so important to him, have to do with 
 the case. In connection with a plea for mer- 
 cy, they may be potential, but geutlemeu. 
 that blessed attribute does not pertain to your 
 present office. It belongs to the nation, the 
 majesty of whose laws has been outrage<l, 
 and can be legally exercised by the President 
 alone, and to his consideration you may safely 
 leave itas your dutj' requ res. Other men hive 
 wives and children too — and the presumption 
 does not seem to be overstrained that even poor 
 Jacob Garrick, who having been a mati when on 
 his native Danish soil, and when in the harbor 
 of Boston, and again, when under his responsi- 
 bility to the great Searcher of Hearts, he was 
 permitted from yonder witness stand, to tes- 
 
95 
 
 tifj' tc the tacts (vitbin his knowledge touch- 
 ing tlic plamtilt 's guilt, though he was np- 
 pruiseu i>s Dieiooandise by the pirates who 
 seized him, ui».y also in the course of Nature 
 have had a gidiidmother — certain it is that 
 he has known a sister's love, for he spoke to 
 you (if his brother-in-law. 
 
 Yes, I'age, and Fitit'M, and Ackland, the 
 officers and men of the Enchantress, Joiin 
 Welsh and S. J. Waring had wives and chil- 
 dren to watch the winds during their absence 
 upon the great deep and pray for tiieir safe 
 return. The rock-bound coast of our country 
 is dotted by the homes of mariners whose har- 
 dihood, enterprise and industry bind the na- 
 tiiins to peace by the gulden bonds of profita- 
 ble commercial intercourse, and in their behalf 
 we ask that the law as it has existed for ages, 
 may now be firmly administered. For, if it 
 should be announced that a I'ennsylvaniji jury 
 under the charge of the Judges if the Circuit 
 Court of the United !Sta es, have ht*ld that the 
 prisoner and his lawless comrades were en- 
 gaged in honorable warfare, and as his coun- 
 sel will have it, deserve the thanks of their 
 country for their patriotic performance of 
 duty, you will have armed vessels fitting out 
 fi'om every port in the country in which des- 
 perate and unprincipled men can be lound to 
 prey upon your commerce, and the hearts of 
 the families of your mariners will be torn by 
 agony such as is but too familiar to the wives 
 of our soldiers. What wife of a seaman, mo- 
 ther of a sailor boy, or daughter of a weather- 
 beaten mate or captain will sleep soundly, 
 after she shall have heard that under tiie so- 
 lemnity of your oaths you have bid VMIliam 
 Smith, the prisoner, God speed, and assured 
 him that in your judgment the officers and 
 crew of the JefJ'. Davis deserve well at the 
 hands of your country. 
 
 Uue point more, gentlemen, and the duty 
 of counsel will be enUed. 
 
 The prisoner's counsel have asked you to 
 judge his case without prejudice In that re- 
 quest we unite most cordially. You entered 
 the box strangers to him, with no opinion as 
 to his guilt or innocence, and, if my collea- 
 gues or 1 have uttered one word outside of the 
 facts or the law of this case by wliich preju- 
 dice might be excited against him, I pray ^ou 
 to banish it from your memory, give full con- 
 sideration to any fact from which an infer 
 ence favorable to him can be drawn, and 
 take the law from the Court as it shall 
 give it to you. Let prejudice have no iuflu 
 ence in deciding a case so grave in its results, 
 so grand in its relations. 13ut, gentlemen, 
 1 do not as my learned triends seem, to recog- 
 nise love of country — devotion to tiie beauti- 
 ful flag that symbolizes its freedom, power 
 and majesty — pride in the glorious memories 
 that fill the pages of its history, or veneration 
 for the brave men wlio won its freedom, or 
 the wise men who fashioned its institutions as 
 prejudice. 1 cannot, as they seem, to recog- 
 nize as prejudice the hopes with which the 
 
 heart thrills as we contemplate the ever ex- 
 panding glories of our country — 'he ever in- 
 creasing multitude of free people who shall 
 inhabit its broad prairies, its teeming valleys, 
 its rugged mountain sides, and traverse its 
 majestic lakes and rivers — its ever increasing 
 progress in arts, sciencp, letters, morals and 
 religion — the benefioent influMice it is to ex- 
 ert in the cause of freedom and social pro- 
 gress among the nations, and the undying 
 perpetuity secured to it by the inspired sages 
 who fashioned the Constitution now so madly 
 assailed. No, these emotions are not prej i- 
 dice They are essential e'ements of patriot- 
 ism known to you and all true men, and I 
 ask you to carry them with you to the jury 
 room, and allow them full consideration in 
 y lur deliberations. 
 
 Judge Grier intimated to the Jury that 
 he would charge them now, or to-morrow 
 morning, as they might prefer. 
 
 The Jurors preferring to wait till the 
 morning, the Court adjourned. 
 
 Friday, October 2.5, 1861. 
 
 Judge Grier proceeded to charge the 
 Jury as follows : 
 
 Gentlemen of the Jury, you have listened 
 with patience for three days to the evi- 
 dence and argument in this case ; and it 
 now becomes your duty, after a few re- 
 marks from the Court, to make up your 
 verdict. It is unnecessary, to gentlemen 
 of your understanding, to repeat the com- 
 mon places about your duty of giving a fair 
 and impartial trial, without prejudice, &c. 
 You are all aware of your duty. 
 
 The defendant, William Smith, whom 
 you have in charge, is indicted for the 
 crime of piracy. It is proper that the 
 Court should give you a definition of it, so 
 that you may apply the testimony to the 
 case. It is briefly defined "as robbery on 
 the high sea." (5 Wheaton, 1.53.) As the 
 sea belongs to no nation, but to all nations, 
 and as the ott'eiice is usually committed 
 without the particular municipal juris- 
 diction of any nation, it is an offence 
 against the law of nations, and may be 
 punished by any nation, whether committed 
 by natives or foreigners. Pirates or rob- 
 bers on the ocean are called hostes humani 
 generis. But every nation has the offence 
 and the punishment defined by its own 
 municipal laws. 
 
 Of the several acts of Congress on this 
 subject, we need only refer to the Third Sec- 
 tion of the Act of the 15th of May, 1820, 
 as the one which defines the offence as 
 charged in the indictment. It is as follows : 
 
 " 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 
 
96 
 
 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 per- 
 son 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." 
 
 First. The offence is robbery — a crime 
 defined by the common law as " the felo- 
 nious and violent taking of any money or 
 goods from the person of another, putting 
 him in fear." 
 
 The epithet "felonious" has reference to 
 the intention, which must be " anmo /«- 
 randi," for the purpose of stealing or ap- 
 propriating the thing taken. 
 
 Second. There need not be absolute 
 personal violence used, if there be threats 
 and the person robbed, submits peaceably, 
 through fear of violence. When the rob- 
 bery is committed by several acting to- 
 gether, all are equally guilty. Nor need 
 the money or goods taken be on the per- 
 son, provided they be in the possession of 
 the owner, such as household goods or, cat- 
 tle in the field, or, as in this case, " upon a 
 vessel and its lading," as defined in the 
 act. 
 
 Third. The robbery must be committed 
 on the " high seas," <kc. 
 
 If you believe the testimony, (which I 
 need not repeat to you,) the charge as thus 
 defined, appears to be fully established. In 
 fact, if the case rested here, the learned 
 counsel of the defendant seem to admit that 
 they could not resist a conviction. 
 
 But it is contended that, though pro- 
 perty may be taken " by violence on the 
 high seas," yet if it be done by authority of 
 a State in prosecution of a war against 
 another State, the persons acting under 
 such authority are not guilty of piracy, and 
 cannot be punished as such. This is no 
 doubt true, for piracy has been defined 
 '• as depredation on or near the sea with- 
 out authority from any Prince or State." 
 (6 Bacon's Abridgment, 163.) 
 
 Those having such authority are treated 
 as enemies, or as having the privileges of 
 enemies in open war. Thus, Turks and 
 Algerines, though acting as freebooters on 
 the ocean, could not according to Sir Leo- 
 line Jenkins, be treated as pirates, be- 
 cause they acted under a commission from 
 States with whom the Government had 
 treaties, and had acknowledged to be 
 States in the great family of nations. But 
 it does not follow that every band of con- 
 spirators who may combine together for 
 the purpose of rebellion or revolution, or 
 overturning the government or nation of 
 which they were citizens or subjects, be- 
 come ipso facto, a separate and inde- 
 
 pendent member of the great family of 
 sovereign States. 
 
 A successful rebellion may be termed a 
 revolution : but until it has become such, 
 it has no claim to be recognized as a mem- 
 ber of the family, or exercise the rights or 
 enjoy the privileges consequent on sove- 
 reignity. " When a civil war rages in a 
 foreign nation, or in our own, and one part 
 separates from the old established govern- 
 ment, and erects itself into a distinct 
 government, the Courts of the Uinted 
 States must view such newly constituted 
 government as it is viewed by the legisla- 
 tive and executive departments of the 
 government of the United States." Every 
 government is bound, by the law of self- 
 preservation, to suppress insurrections ; and 
 tlie fact that the number and power of the 
 insurgents may be so great as to carry on 
 a civil war against their legitimate 
 sovereign, will not entitle them to be con- 
 sidered a State. The fact that a civil war 
 exists for the purpose of suppressing a re- 
 bellion, is conclusive evidence that the 
 Government of the United States, refuses 
 to acknowledge their right to be considered 
 as such. Consequently, this (jourt sitting 
 here to execute the laws of the United 
 States, can view those in retiellion against 
 them in no other light than traitors to 
 their country, and those who assume by 
 their authority a right to plunder the pro- 
 perty of our citizens on the high seas, as 
 pirates and robbers. 
 
 1 do not think it necessary on the pre- 
 sent occasion, to follow the wide range of 
 questions which have been drawn into the 
 discussion of this case by counsel, or to re- 
 fute the sophisms and platitudes put forth 
 by speculating theorists or political dema- 
 gogues on the constitutional right of any 
 portion of this one nation, or of any of the 
 States composing it, to destroy the Con- 
 stitution and Union because they are dis- 
 pleased at the result of an election. The 
 right to secede is not to be found in the 
 Constitution, either in its letter or its 
 spirit. If so, it would be/e^o f/e se. It is 
 a Government and Constitution ordained 
 by the people of the whole United States 
 for ail time — not a mere tempurary compact 
 of independent and sovereign confederates. 
 
 Judge the tree by its fruits, and we see 
 the results of this miserable political 
 heresy in the present situation of our 
 country, (we need not go to Mexico.) with 
 more tlian half a million of men in arms 
 drenching our fields in blood. 
 
 This fratricidal war is nut only the fruit 
 of this doctrine, but the demonstration of 
 its ini(iuity. What are our mighty armies 
 arrayed for, but to compel, by force of 
 arms, its acknowledgment, by those whom 
 
97 
 
 reason cannot convince of its absurdity. 
 Why prate about the right of an oppressed 
 people to change their government by a 
 revolution ? Can that justify the treason 
 and rebellion of those who were never op- 
 pressed, but who seek to substitute a mili- 
 tary tyranny for the purpose of conquest 
 and. oppression ? 
 
 Of the plea of duress, I need only say 
 that I am sorry iudeed that there is 
 not some evidence to support it; for I 
 should grieve to see these poor fellows, 
 who have been led astray by wicked dema- 
 gogues, become the scape 'goats for the 
 greater iniquity of others. But the dis- 
 pensation of mercy is not with us. Your 
 duty is to render a true verdict, and that of 
 the Court to pronounce the sentence of 
 the law thereon. Whether under all the 
 circumstances of the case, a proper policy 
 might not suspend its execution, is a ques- 
 tion for the Executive to decide. 
 
 Certain points have been presented to 
 the Court on which we are requested to 
 instruct the jury. My opinion of them may 
 be inferred from what I have already said ; 
 but I have requested my learned brother 
 to notice them more particularly in his 
 remarks to the jury, which he will now 
 proceed to do. 
 
 Judge Cadwalader. Gentlemen of the 
 Jury, independently of the request of the 
 presiding Judge, this case, from its general 
 importance and specific novelty, might re- 
 quire that the views of each member ol 
 the Court on the questions involved should 
 be stated. 
 
 One of the witnesses examined on the 
 part of the defence has deposed that in 
 June last, the defendant shipped as one ol 
 the crew of an armed vessel called the Jeff'. 
 Davis, fitted out as a hostile cruiser against 
 the United States. The defendant's "coun- 
 sel allege, and it is perhaps admitted by 
 the counsel for the prosecution, that she 
 was a privateer, commissioned under letters 
 of marque and reprisal from the so called 
 Confederate States. 'J'he defendant ap- 
 pears to have resided at Savannah, Geor- 
 gia, where he had followed the business of 
 a branch pilot, and had been a person of 
 good repute. He is entitled here to the 
 benefit of this former good charact'r, jtnd 
 also to that of the testimony which proves 
 the kind treatment by the crew of the Jeff'. 
 Davis of their prisoners, while he was on 
 board and afterwards. The same witness 
 has testified that the defendant was a 
 boatswain in this vessel ; that he left Sav- 
 annah for the purpose of joining her in the 
 early part of June last ; that he joined her 
 at Charleston, South Carolina, where she 
 then lay, and that he went to sea in her 
 
 on the 28th of that month. from Charles- 
 ton. 
 
 The character and strength of her arma- 
 ment has been described by several wit- 
 nesses ; and some occurrences prior to 
 those particularly charged in the indict- 
 ment have been proved in order to show 
 that she was cruising for the purpose of 
 capturing merchant vessels of the United 
 States. (.)n the 6th of July last, according 
 to the testimony, (of which you, of course, 
 are the judges,) she captured the schooner 
 Enchantress, a vessel owned by citizens 
 of the United States, laden with a cargo 
 which was also the property of citizens of 
 the United States. The facts proved, in 
 order to show that the Enchantress and her 
 cargo were forcibly taken and forcibly de- 
 tained by her captors, are doubtless fresh 
 in the recollection of the jury. The defend- 
 ant, as prize master, with four others, was, 
 according to the testimony placed in charge 
 of her. The place of capture, as one of 
 the witnesses deposed, was about two 
 hundred and fifty miles southeast of Nan- 
 tucket South Shoal, The Enchantress, in 
 charge of the prize crew, and according to 
 the evidence under the command of the 
 defendant, appears to have borne away to 
 the southward, and after having been at 
 sea till the 22d of July, to have been on 
 that day recaptured off the coast of Caro- 
 lina by a national armed vessel of the 
 United States. This recapturing vessel 
 was a steamer which took her i i tow and 
 brought her into Hampton Koads. The de- 
 fendant and the others of the prize crew 
 were kept as prisoners on board of this war 
 steamer, which, after anchoring in Hamp- 
 ton Roads, near to P^ortress Monroe, went 
 a short distance up the Potomac, returned, 
 and again anchored in Hampton Roads; 
 after which she brought the prisoners, in- 
 cluding the defendant, to Philadelphia, 
 where they were taken into the Marshal's 
 custody. 
 
 This, I believe, is an outline of the whole 
 of the proofs. I have taken full notes of 
 the evidence w.th great care, and will read 
 the whole, or any parts ol it, to the jury, if 
 any one of them, or any of tne counsel, re- 
 quest me to do so. 
 
 The counsel for the pros 'cution contend 
 that those who participated in the capture 
 of the Enchantress and her cargo, were 
 guilty of piracy under the act of Congress 
 of 15th of May, ld20, which enacts that 
 any person committing upon the high sea 
 the crime of robbery in or upon any ship 
 or vessel, or upon any of the ship's com- 
 pany of any ship or vessel, or the lading 
 thereof, shall be adjudged a pirate. The 
 off'ence thus described in this act is, in the 
 several counts of the indictment, stated in 
 
98 
 
 different specific or particular forms, in 
 order to meet alternative aspects in which 
 the case might be presented by the evi- 
 dence. The indictment also contains an 
 averment showing that the case is within 
 the jurisdiction of the Court under the 
 enactment that the trial of crimes commit- 
 ted 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. 
 
 One of the points of law on which the 
 counsel for the defendant have requested 
 instructions to the jury, is, that this Court 
 has no jurisdiction of the case, because, 
 " after his apprehension on the high seas," 
 he " was first brought into another district," 
 — meaning the Eastern District of Virginia, 
 — " and ought to have been there tried." 
 This instruction cannot be given. When 
 he was taken prisoner, and was detained 
 in the recapturing vessel, he was not ap- 
 prehended for trial within the meaning of 
 the Act of Congress. His first apprehension 
 for this purpose, of which there is any evi- 
 dence, was at Philadelphia, after his arri- 
 val in this district. Whether he had been 
 previously brought into another district, 
 within the meaning of the Act, is unimport- 
 ant. It has been decided that, under this 
 law, a person first brought into one district 
 and afterwards apprehended in another, may 
 be tried in the latter district. Therefore, 
 if you believe the testimony on the sub- 
 ject, this Court has jurisdiction of the case. 
 Upon the main question of the guilt of 
 the prisoner, there is, I believe, no dispute 
 that the case would be within the words 
 and meaning of the Act of Congress, if 
 the revolutionary proceedings whose char- 
 acter and effect have been discussed, had 
 not occurred, and had not resulted in a 
 civil war. An established government 
 may prosecute hostilities against its ene- 
 mies in a civil war in like modes as against 
 its foreign enemies in a national war, and 
 for certain purposes, with like effects. For 
 example, vessels captured in the present 
 civil war may be confiscable in prize courts 
 of the United States, and captured persons 
 may be detained by the United Stales as 
 prisoners of war. Moreover, in all wars, na- 
 tional as well as intestine, innocent and 
 harmless inhabitants of hostile districts, 
 may, in common with authors and abettors 
 of the war, become involved in its calami- 
 ties. These results when produced by a 
 civil war, do not alter its legal character. 
 They do not convert it into a foreign or a 
 national war. In a civil war — however orga- 
 nized and systematic the hostilities prosecu- 
 ted by an established government — its ene- 
 mies, may, when captured, be liable as trai- 
 
 tors or as pirates, to prosecution in its Courts 
 of justice. I have recently had occasion to 
 say, and I now wish to repeat, that during 
 civil wars, in which organized hostilities are 
 prosecuted on an extended scale, persons 
 in arms against an established Government, 
 captured by its naval or military forces, are 
 often treated, not as traitors or pirates, but 
 according to those humane modern usages 
 which are observed as to public enemies in 
 a national war. They are detained as pri- 
 soners of war until exchanged or discharged 
 on parole ; or, if surrendered to the civil 
 authorities for trial, are, after conviction, 
 respited or pardoned. Hostile feelings have 
 thus been softened, and measures of retali- 
 ation, endangering a revival of obsolete 
 systems of barbarous warfare, have been 
 prevented. But some writers on public 
 law have discussed the subject, as if such 
 civilized modern usages were founded in 
 rules of legal right, rather than in consider- 
 ations of mere policy. I therefore think 
 it my duty to state that such usages, how- 
 ever commendable, are not, in a civil war, 
 founded in any rules of absolute legal 
 right, but are measures of governmental 
 policy. The question of their observance 
 depends upon the decision of the legislative 
 or executive departments of the Govern- 
 ment, not upon the opinions of its judicial 
 organs. Thus, Courts and Juries have, 
 with such questions no proper concern, 
 certainly none that should influence the 
 finding of a verdict. The jury who find a 
 defendant guilty, may, indeed, recommend 
 him to mercy. But such a recommenda- 
 tion, though always respectfully considered, 
 is, in law, no part of the verdict itself. In 
 finding the verdict, the rules of law should 
 be applied with calmness and firmness, 
 without admitting any qualification of them 
 from extrinsic reasons. If there is any ra- 
 tional doubt of the defendant's legal guilt, 
 the jury should acquit him ; otherwise, he 
 should be convicted. 
 
 In the arguments of the counsel on both 
 sides, the general question of the lawfulness 
 of privateering, as a method of naval war- 
 fare, has been debated. In a national war 
 between independent States, privateering is 
 at present lawful except where it has been 
 abolished by treaty. In such a war a commis- 
 sioned privateer is to be treated as a part 
 of the belligerent naval forces of the Gov- 
 ernment which has granted the commission. 
 This heretofore established rule of the law 
 of nations, cannot, so far as the United 
 States may be concerned, be changed 
 otherwise than by Act of Congress, or by 
 treaty with foreign governments. No law 
 of Congress to this effect has been enacted ; 
 no such treaty is in force ; and, therefore, 
 uciiuer the Executive nor the Judicial 
 
99 
 
 organs of our Government can, at present, 
 rightfully condemn the practice of priva- 
 teering. 
 
 But these remarks apply only to priva- 
 teering in legitimate war, in which the 
 commissioning government is that of an in- 
 dependent State. The commission of a 
 revolutionary government, whose existence 
 is not recognized by that of the United 
 States, can confer no such authority as 
 will change the legal character of piracy, 
 by merely giving to it the name and form of 
 privateering. 
 
 Of the propositions of law upon which 
 the defendant's counsel have requested in- 
 structions to the jury, only one has been as 
 yet particularly answered. The others in- 
 volve the question whether the hostile re- 
 volutionary government may not have been 
 so organized and established, in fact, if not 
 of right, as to exempt a resident under 
 its actual dominion from criminal respon- 
 sibility for acts of submission or allegiance 
 to it, though they may have included a hos- 
 tile breach of his duty of allegiance to the 
 United States. The question in another 
 form is, whether the duty of allegiance may 
 not have been so suspended there, as to re- 
 lieve him of it to the extent required for 
 the purpose of exemption from the guilt 
 imputed in this indictment. 
 
 'i'he law might be as the counsel have 
 stated it, if either of two additional state- 
 ments could be made : First, if the govern- 
 ment of the United States had been super- 
 seded by a local government, which, though 
 it had originated in a hostile revolution, 
 had, for a definite subsequent period, been 
 established and maintained in peace ; or, 
 secondly, if the defendant, though such a 
 government had not been thus peaceably 
 established and maintained, had been im- 
 pressed into the hostile service of the revo- 
 lutionary government, and compulsorily 
 detained in such service. As to the first 
 of these two points, the difficulty in the 
 way of the defence is, that the Government 
 of the United States has not been sub- 
 verted, and that its authority in the hostile 
 districts, if suspended, or at present super- 
 seded, is not superseded by that of a gov- 
 ernment which has at any time been peace- 
 ably established, much less by one which 
 has been maintained in peace. The gov- 
 ernment of the States now confederated 
 for purposes hostile to the Constitutional 
 Union, was not organized without a cotem- 
 poraneous outbreak of civil war. This 
 war has been continued without interrup- 
 tion. 'J'he contest has been on their part 
 a war against an established government, 
 to which they owe allegiance. So long as 
 this government exists, and the contest is 
 maintained, the peaceable establishment of 
 
 the revolutionary government cannot be 
 
 asserted. 
 
 As to the other point— I mean the ques- 
 tion of compulsion — the defence has not 
 been sufficiently made out in law. The 
 mere fact, if it were proved, that by an act 
 of legislation of the revolutionary govern- 
 ment, under whose power the defendant 
 resided, military or naval service was re- 
 quired of every such resident, under pain 
 of banishment, or confiscation of property, 
 would be no justification or excuse. Un- 
 less actual force was exercised against him 
 personally, or threats and intimidation 
 placed him personally under a reasonable 
 fear of death or serious bodily harm, the 
 allegation of compulsion cannot be sus- 
 tained. If he was, at first, impressed forci- 
 bly into the hostile service, the inference 
 might be that his detention in it was after- 
 wards compulsory, so long as he remained 
 on board the armed vessel in which he was 
 a subordinate. But any such favorable in- 
 ference would, even in that case, be re- 
 butted by the proof that, as prizemaster, 
 he afterwards remained in the hostile ser- 
 vice when he was no longer a subordinate. 
 The consideration of this point is, however, 
 not necessary, because there is no sufficient 
 proof that he did not at first engage volun- 
 tarily in the hostile service. 
 
 The propositions of law stated by the 
 defendant's counsel must, for these reasons, 
 be answered negatively. 
 
 The Jury retired, and after an absence 
 of three-quarters of an hour, returned and 
 rendered a verdict of GUILTY. 
 
 Mr. Harrison intimated that the defence 
 would file reasons for a new trial hereafter. 
 
 On the 28tb of October, the counsel for 
 the prisoner moved for a new trial, and in 
 arrest of judgment, and filed the following 
 reasons therefor, to be argued hereafter : 
 
 1. Because the Court answered in the 
 negative and overruled the six several 
 points of law presented on the trial of this 
 cause to the learned Judges for their 
 opinion and instruction thereon to the 
 jury. 
 
 2. Because the Court should have af- 
 firmed, severally, the said six points of law 
 presented as aforesaid, and should have 
 charged that the same severally were cor- 
 rect and sound in law. 
 
 3. Because one of the learned Judges 
 charged the jury " that the existence of 
 the present civil war for the purpose of 
 suppressing a rebellion," was conclusive 
 evidence that the so-called Southern Con- 
 federacy was not an existing State, acknow- 
 
(/^ 
 
 100 
 
 ledged by the United States, and conse- 
 quently that the Court could view the 
 defendant only as a pirate and a robber. 
 
 4. Because one of the learned Judg-es 
 charged that in order to render the doc- 
 trine or points of law relied on by the de- 
 fendant's counsel applicable or correct, it 
 •was necessary that the so-called Southern 
 Confederacy should have been, or be esta- 
 blished and maintained in peace for a defi- 
 nite period subsequent to the hostile revo- 
 lution in which it had or filiated, which the 
 said Judsre charged was nnt the case. 
 
 5. Because the Court charged that there 
 was no evidence of any duress which in law 
 would exonerate th(^ defendant iVoin the 
 offence laid in the indictment. 
 
 6. Because any length of tinip longer 
 than is actually consumed in enabling a 
 government to exercise exclusive jurisdic- 
 tion and control over the people within its 
 territorial limits, is not necessary, by the 
 law of nations, to constitute the same a 
 government de facto, and that it matters 
 not whether the establishment of such a 
 government be brought about or main- 
 tained by force of arms or otherwise. 
 
 7. Because the commission under which 
 the defendant acted, exonerated him from 
 the crime of piracy with which he stood 
 charged. 
 
 8. Because the defendant was not first 
 brought into this District, but, on the con- 
 trary, into the Eastern District of Virginia. 
 
 9. Because the defendant was not first 
 
 apprehended in the Eastern District of 
 Pennsylvania. 
 
 10. Because, if the defendant, in doing 
 the act wherewith he is charged, acted in 
 good faith, under a commission which he 
 supposed to be valid, he ought to have been 
 acquitted. 
 
 11. Because the verdict is against tlie 
 law. 
 
 12. Because the verdict is against the 
 evidence. 
 
 In arrest of judgment: Because the in- 
 dictmt^nt avers that the defendant was first 
 brought into this District, and was appre- 
 hended here. 
 
 On the 28th of October, Thomas Quin- 
 LKY, Edward RocuKORD, and Daniei, Mi'i,- 
 i.iNZs, of the crew of the Jeff Davis, were 
 arraigned on the charge of Piracy, and 
 pleaded "Not Guilty." A Jury was eni- 
 pannelied, and the trial continued till 6 
 o'clock the next day, when thev were foQnd 
 "GUILTY." 
 
 On the 29th of October, the case of 
 Eben Lane, the only remaining prisoner of 
 the crew of the Jeff Davis, was submitted 
 to the Jury without any evidence on the 
 part of the government, and he was found 
 " Not Guilty." It was alleged that Lane 
 who had charge of steering the Knchant- 
 ress, as one of the prize crew, steered 
 south in daytime and north by night, when 
 he was not observed, thereby keeping her 
 longer on the ocean., and conducing to her 
 capture.