New-York daily tribune., 1861-10-30

lne Citi0eDe OF Loe COnfe1erute STATES afe IL hs
under all the forms Of regularly constituted Coy
erDment, and must obey the mandates of that Gov
ernEnent, whether relating to service the land
on the sea. We insiHt that Congress had no power
TO pass such law ths, and the construction put
upon Il 10y opponents is incorrect The authority
given to Congress is to define and punish piracy
under tto law of nations, and when they passed that
hact, contend that the power was exhausted. 1t
was fully defined in the 9Th section, and Congress
could not include further ofenses within the defni-
tion. We slaim that this is q usurpation of power
on the part Of Congress. To assert that an assault
upon the high seas by the authority Of person is
piracy is monstrous. The cases of Charles ii.
and Miranda will not sutserve the purposes Of
this prosecution. If Jefferson Davis is to be
regarded as a foreign power, then Capt.
Baker is acting under that power, and
| if II IL not a foreign power, then we cannot
press this prosecution under the charge Of piracy.
when these men were captured, they were entitled
to be treated either prisoners of war; as trail
tors to their country. This treating them pirates
is not dgnihed, to say tie least, and is unjust to
them. The Government has not called them trai.
tors but they have been brought under this act of
1890, with a view Of convic.ing them Of piracy. If
understand this case, there is proof OF violence
or putting in fear on the part of these men In the
capture of the Joseph which is necessary to consti
tute the crime Of robbery piracy The captain OF
the Joseph thought the Savannah had suspicious
look, but he testified to no fear. In law, the COM
mission under which these men acted must be con-
sidered as valid. Counsel read from Wheaton, to
show the necessity of particularly in the statement
of offenaes in indictments. We claim that the de.
ecribiDg OF tbis commission as emanstng from one
Jefferson Davis, when, in fact, it emanated from
constituted Government, vitates the indictment.
have conteDded that there il distinct recognition
by US OF the Confederate Government; and now
refer to a case sent Inc from The Boston Post,
where the opinion Of the Attorney-General bears
upon the same point. Mr.. Brady read the Gaze. Is
it not singular that Government should recognize
the operation of this principle when applied to
other nations but, when relating TO our own citi-
zens, refuses 20 do no 7 There was no declaration
of war between our Government and the Confed-
crate States bat at Q certain time there was hriDg
upon "a certain fort, upon which proclamation was
issued by the President of the United States, calling
Tor troops for wsrlike purposes, which was In TACT
a declaration of war. In the case OF hcCloud, our
Government admitted that they had no jurisdiction.
will detain you but a short time longer. These
men, l contend, cannot be held unless 1t can be
shown that they committed some iawless act we
claim that there is Government under which they
acted and that they are entitled TO all the rights OF
prisoners of war. II would have been much more
acceptable to my feelings If we had been spared any
such proceedings those. But the advocate Is OF
very little in days Of prosperity. Ii ls only wnen
public opinion the strong power OF the Government,
The force of the nation or the fury Of the multitude,
is directed against you that the advocate s oil value
Happily this trial furnishes brilliant illustration OF
the best possible results Of judicial care. Nothing
could be more fair than this trial has BEEN know
| the gentlemen on that Jury well enough 20 know
that thew will render true verdict. ! would that
could invoke the bodily presence OF those dis-
tiDgushed patriots who have been here In spirit
Lee and Hamilton, and Adams, and Washington,
aud Jeferson-and OF all those distinguished Ievo-
lufionary men who fought TO achieve our freedom
I wish that these doors could be opened, and they
allowed 20 walk in here and they wouldsay to you,
in regard 10 these men, the angel eaid to Abraham
when about to sacrifice his son Isaac: Lay not
your hands upon them"
At the conclusion Of Mr.. Brady's argument there
were decided symptoms Of applause, which were
promptly checked by the Court.
THE PROSECUTION.
Mr. Evarts followed on the part OF the Govern,
ment, and began by saying that trial IA Sourl oi
u,tiee h TRIAL Of many other things than the pris-
opers st the bar; Il Ia a trial OF the law OF the power
Of the Government 81 the dr'y ~ tho "iTsS, S TIC
oeiiy in conscience and the Intelligence OF the Jury.
II is trial Of the great principles Of faith OF duty,
of law Of civil society, which distinguish the eondi-
tion of ciyilLaiionfrom that OF barbarsm You have
no responsibility concerning the construction Of the
law that is province Of the Courts AZ intelligent
and faithful men, you have to dispose OF this case Is
you would Of any other fact, graduating your aten-
tion 10 the gravity Of the inquryi beyond that you
have no responsibility. IL has been stated thai
the whole duty of civil governments is to deal
out retributive justice TO moral ouehders' ~
should leave vengeance where II belongs, 10 Dim
who searches the secret interests ana purposes VI t9c
heart of the offender. The main duty OF Government
il 10 the prevention and suppression OF criminal acts
for the good Of community Society, framed In the
form and for the purposes Of government lnds that
the tribunal Of conscience and the last aud future ac-
counability OF another world are Inadequate TO lts
protection against crime. When a crime is commit
ted whi n the duties Of society and the enactmenis
| of law have made highly penal, and yet contains
within itself circumstances that APPEAL very strongly
to whatever authority or magistrate who hhs control
of the subject and it is subject for special examin
alton and special concession from the penalty OF the
law. But il is nothing with which You have TO do,
nothing with which this Court has 10 do. What are
the facts which constitute robberyl They are un-
doubtedly that the act alone should be with the m
tent OF depriyng the person who Is In the possession
of the property or who is the representative OF the
owner, Of that property. Unless there be some
foundation for the suggestion that the wiful and in
territorial act Of depriying party OF property rests
upon the claim that 1t is the property OF the roboer
Won cannot rid the act of robbery OF its crminaty,
by showing that the robber or the pirate had In the
protection Of h conscience and in the governing OF
his ow conduct certain views Of night to exclnde
that purpose. II is contended that this seiz-
ure OF the Joseph by the Savannah had not
enough Of threat TO use force to constitute
/ IL robbery; that there was 10 evidence that
the master Of the Joseph was frightened; that tho
cannon was not fred OIL You are not jSdges OF
what the statutes of the United Sstee are, 60 ir ~
their Interpretation IL eonceynod you are hVs 70 oe
\ indOes Of what the law OF nations Is IN the mist
Lace nor how much has been adopted in the system
~ orr Government. These are questions Tor tue
Court to determine. Let me ask your consideration
70 the condition of the proofs from the consideration
of which we have been Withdrawn by the subjects
which have occupied the attention OF the counsel
Mr. Evarts recapituated the circumstances OF tne
capture OF the Joseph. There is nothing In this
case said he, that has excused or can excuse this
Coyernment, in its executive department, IN the
declaration Of the law from the Court, or IN the
finding Of the facts by the jury or that can renevs