Trial of the Officers and Crew of the Privateer Savannah, on the Charge of Piracy, in the United States Circuit Court for the Southern District of New York. Warburton Adolphus Frederick
of Government, liberty, peace, and plenty flow to him; and there he payeth his allegiance. And this excellent law hath secured him against all after reckonings on that account."
And another author on that subject [Hawkins], in his Pleas of the Crown, Book I., chap. 17, sec. 11, says:
"As to the third point, who is a King within this act? [26 Edw. 3, ch. 2.] It seems agreed that every King for the time being, in actual possession of the crown, is a King within the meaning of this statute. For there is a necessity that the realm should have a King by whom and in whose name the laws shall be administered; and the King in possession being the only person who either doth or can administer those laws, must be the only person who has a right to that obedience which is due to him who administers those laws; and since by virtue thereof he secures to us the safety of our lives, liberties, and properties, and all other advantages of Government, he may justly claim returns of duty, allegiance, and subjection."
"Sec. 12. And this plainly appears by the prevailing opinions in the reign of King Edward IV., in whose reign the distinction between a King de jure and de facto seems first to have begun; and yet it was then laid down as a principle, and taken for granted in the arguments of Bagot's case, that a treason against Henry VI. while he was King, in compassing his death, was punishable after Edward IV. came to the Crown; from which it follows that allegiance was held to be due to Henry VI. while he was King, because every indictment of treason must lay the offence contra ligeantiæ debitum.
"Sec. 13. It was also settled that all judicial acts done by Henry VI. while he was King, and also all pardons of felony and charters of denization granted by him, were valid; but that a pardon made by Edward IV., before he was actually King, was void, even after he came to the Crown."
"And by the 11th Henry VII., ch. 1, it is declared 'that all subjects are bound by their allegiance to serve their Prince and Sovereign Lord for the time being in his wars for the defence of him and his land against every rebellion, power, and might reared against him, &c., and that it is against all laws, reason, and good conscience that he should lose or forfeit any thing for so doing;' and it is enacted 'that from thenceforth no person or persons that attend on the King for the time being, and do him true and faithful allegiance in his wars, within the realm or without, shall for the said deed and true duty of allegiance be convict of any offence.'"
"Sec. 15. From hence it clearly follows: First, that every King for the time being has a right to the people's allegiance, because they are bound thereby to defend him in his wars, against every power whatsoever.
"Sec. 16. Secondly, that one out of possession is so far from having any right to allegiance, by virtue of any other title which he may set up against the King in being, that we are bound by the duty of our allegiance to resist him."
And these doctrines, if the Court please, have been recently acted upon and enforced by a learned Judge in the case of the United States vs. The General Parkhill, tried in Philadelphia, and published in the newspapers, although not yet issued in the regular volumes of Reports.
I need not tell you, gentlemen, that what is said there of the King, applies to any other form of Government equally well, whether it be a republican form of Government, or whatever it may be. These doctrines belong to this country as well as they belong to England. They belong to every country which has adopted the common law; and what would be due to a King in the actual possession of the Government in England, under our statutes and decisions, and under the rules adopted here, would be equally due to a President of the United States in any part of the country in which we live.
I have only to call your attention, in that connection, in opening the defence, to what the condition of things was in the South at the time the acts charged in the indictment occurred. You will bear in mind there is no pretence in this case that any one of these prisoners had anything whatever to do with the initiation of this controversy,—with the overthrow or disappearance of the United States authority in those Confederate States, or with any act occurring anterior to the 2d of June, when this vessel, the Savannah, started upon her career. Nothing, so far, appears, and, in reality, nothing can be made to appear, to show any event, before that time, with which they were connected.
The question, then, is, What was the state of things existing in Charleston, and in the Confederate States, at that time? In the course of the evidence, we will lay that before you, in the completest form it can be laid. We will show you, by the official documents, by the messages of the President, by proclamations, and by the Acts of Congress themselves, that there was not an officer of the United States exercising jurisdiction in one of these Confederate States—not a Judge, or Marshal, or District Attorney, or any other officer by whom the Government had been previously administered on the part of the United States. Every one of them had resigned his office. This new Government had been formed. It was the existing Government, which had replaced the United States in all these States, long anterior to the time that this vessel was fitted out and sailed from the port of Charleston; and upon these questions, whether that was a de jure or de facto Government, we say it was the existing Government that was in authority over these men—that exercised the power of life and death over them, for it had Courts administering its decrees, as well as every other form and all the other insignia of power; and they were justified by overruling necessity, and by every other title, in yielding obedience to that Government, and in yielding their allegiance to it, as the cases I have read decide; and that duty enjoined upon their consciences to aid and support it by all means in their power from that time forward, until there was another Government over them.
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