Part 47 (2/2)

Come to our own recent history. Texas was one of the States of the Union which is called Mexico. Texas seceded from that Union. She declared her independence, and during a struggle of arms became a _de facto_ Government. Mexico would not recognize her independence, and continued her intention to restore her to the old Union. The United States, however, recognized the right of Texas to her independence, and invited her to enter into our Union, and did incorporate her in that Union in defiance of the doctrine of Mexico, ”once a sovereign, always a sovereign until independence shall be acknowledged.” We then denounced that doctrine, but now we seem ready to embrace its odious sentiments. We placed our declaration on record before the world, that Texas, by her act alone, unauthorized and unrecognized by the central Government of Mexico, had become a sovereign and independent State, invested with full power to dispose of her territory and the allegiance of her citizens, and, as a sovereign State, to enter into compacts with other States.

Have not the Courts of the United States sanctioned that proceeding?

Suppose that Hungary, or Venice, or Ireland shall separate from their present empires and establish Governments for themselves, what will be our position? Let your verdict in this case determine.

It is, perhaps, well, now, to recur to the law of nations. That is a part of the common law of England and of this country. We may claim in this Court the benefit of its enlightened and humane provisions, as if they were embodied in our statutes. There are circ.u.mstances in the history of every nation, when the law of nations supervenes upon the statutes and controls their literal interpretation.

If the case becomes one to which the law of nations is applicable, it thereby is removed from the pale of the statute. Such is the present case. In the seceded States a Government has been established. It has been hitherto maintained by force, it is true, as against the United States, but by consent of the people at home; and both sides have taken up arms, and large armies now stand arrayed against each other, in support of their respective Governments. It is all-important to the cause of justice, and to the honor of the United States, to see that in their official acts, in their treatment of prisoners, either of the army or captured privateers, they conform to the rules recognized as binding, under similar circ.u.mstances, by civilized and Christian nations, and sanctioned by the authoritative publicists of the world. I will recall your attention to extracts from Vattel, and with the firmest confidence that they will vindicate my views, that the defendants are ent.i.tled to be held as prisoners of war, and not as criminals awaiting trial:

Vattel, Book III., chapter 18, sec. 292:

”When a party is formed in a State, which no longer obeys the sovereign, and is of strength sufficient to make a head against him, or when, in a Republic, the nation 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 appellation will they give to a war in a Republic torn by two factions, or, in a Monarchy, between two compet.i.tors for a crown? Use appropriates the term of civil war to every war between the members of one and the same political society.”

Subsequent clause in same section:

”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 carried on between them in the same manner as between two different nations; and they are to leave open the same means for preventing enormous violences and restoring peace.”

Last clause in section 295:

”But when a nation becomes divided into two parties absolutely independent and no longer acknowledging a common superior, the State is dissolved, and the war betwixt the two parties, in every respect, is the same with that in a public war between two different nations. Whether a Republic be torn into two factious parties, each pretending to form the body of the State, or a Kingdom be divided betwixt two compet.i.tors to the Crown, the nation is thus severed into two parties, who will mutually term each other rebels. Thus there are two bodies pretending to be absolutely independent, and who having no judge, they decide the quarrel by arms, like two different nations. The obligation of observing the common laws is therefore absolute, indispensable to both parties, and the same which the law of nature obliges all nations to observe between State and State.”

”If it be between part of the citizens, on one side, and the sovereign, with those who continue in obedience 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 war_, and not that of _rebellion_. This last term is applied only to such an insurrection against lawful authority as is void of all appearance of justice. The sovereign, indeed, never fails to term all subjects rebels openly resisting him; but when these become of strength sufficient to oppose him, so that he finds himself compelled to make war regularly on them, he must be contented with the term of civil war.”

Clause of section 293:

”A civil war breaks the bands of society and government, or at least it suspends their force and effect. It produces in the nation two independent parties, considering each other as enemies, and acknowledging no common judge. Therefore, of necessity, these two parties must, at least for a time, be considered as forming two separate bodies--two distinct people. Though one of them may be in the wrong in breaking up the continuity of the State--to rise against lawful authority--they are not the less divided in fact.

Besides, who shall judge them? On earth they have no common superior. Thus they are in the case of two nations who, having dispute which they cannot adjust, are compelled to decide it by force of arms.”

First clause in sec. 294:

”Things being thus situated, it is evident that the common laws of war, those maxims of humanity, moderation and probity which we have before enumerated and recommended, are, in civil wars, to be observed on both sides. The same reasons on which the obligation between State and State is founded, render them even more necessary in the unhappy circ.u.mstance when two incensed parties are destroying their common country. Should the sovereign conceive he has a right to hang up his prisoners as rebels, the opposite party will make reprisals; if he does not religiously observe the capitulations and all the conventions made with his enemies, they will no longer rely on his word; should he burn and destroy, they will follow his example; the war will become cruel and horrid; its calamities will increase on the nation.”

Remember you are an American Jury; that your fathers were revolutionists; that they judged for themselves what Government they would have, and they did not hesitate to break off from their mother Government, even though there were penalties of statutes with which they were threatened. And remember, also, that from the beginning of your fathers' revolution, they claimed that they were not liable to the treatment of offenders against British statutes, but that the Colonies were a nation, and ent.i.tled to belligerent rights--one of which was, that if any of their army or navy fell into the hands of the British army, they should be held as prisoners of war.

Your fathers never admitted that the _continental army_ were liable to punishment with the _halter_, if taken prisoners.

To be sure, the statute of Great Britain, literally construed, so provided, but the law of nations had supervened, and rendered that statute no longer applicable. Vindicate your respect for your fathers'

claims, by extending the same immunities to the prisoners at the bar, whose situation is a.n.a.logous to that of our fathers.

At the commencement of the Revolution, preceding the Declaration of Independence in 1776, the Colonies became each a separate sovereignty.

That became the _status_, with some, without doc.u.mentary declaration to that effect; but most of them have left on record positive enunciations of their a.s.sumption of independence and sovereignty as States, unconnected with the proceedings of any other State.[4] They entered into a Confederation as independent States, declaring, however, distinctly, in a separate article, that each State retained its own sovereignty, freedom, and independence, and every power of jurisdiction and right not expressly delegated to the United States in Congress a.s.sembled. And at the close of the war, when the treaty of peace was made, recognizing the independence of the Colonies, each State was named individually. I have never been able to discover when and where, since that period, any State has surrendered its sovereignty, or deprived itself of its right to act as a sovereign.

The Const.i.tution suspends the exercise of some of the functions of sovereignty by the States, but it does not deprive them of their power to maintain their rights as sovereigns, when and how they shall think best, if that Const.i.tution shall, in their judgment, be broken or perverted as a delegated trust of power.

[4] An interesting fact, not published previously, I believe, has been communicated to the public recently by Mr. Dawson, of New York, a historical student and writer of great research and culture. He has found an original minute in the records of the General Court of Ma.s.sachusetts, whereby, as early as May 1st, 1776, the sovereignty and independence of that _Colony_ was declared formally.

Listen, therefore, to the better voices whispering to each heart.

Remember, the honor and consistency of the United States are involved in this case. By a conviction of the defendants, you condemn the Revolution of your ancestors; you sustain the theories of the worst courtiers who surrounded George III. in his war to put down the rebellion; you will appear to the world as stigmatizing revolutionists with the names of outlaws and pirates, which is the phraseology applied to them by Austria and Russia; you will violate the law of nations; you will appear to be merely wreaking vengeance, and not making legitimate war; you will henceforth preclude your nation from offering a word of sympathy to people abroad who may be struggling for their independence, and who have heretofore always turned their hearts to you. You can never--having punished your revolutionists on the gallows--send an invitation to the unfortunate champions of independent Government in the old world. Kossuth will reply: The American maxim is that of Francis Joseph, and of Marshal Haynau. You cannot say ”G.o.dspeed!” to Ireland, if she shall secede. No! as you love the honor of your country, and her place among nations, refuse to p.r.o.nounce these men pirates.

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