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you, as he could, a deliverance from the danger that encompassed him. In that hope I have been disappointed. As if the salvation of the State depended upon the conviction of this unfortunate man, whose situation, one would think, an inquisitor might deplore, the district attorney has gone out of his way to bring down vengeance upon him; and one of the court has told you that he is a traitor, and that you ought to find him so.
In a case where justice might be expected to be softened into clemency, and even to connive at acquittal, where every generous sentiment must take part with the accused, and law might be thought to fear the approach of tyranny, if it should succeed in crushing him; in such a case the established order of trial is deserted, a pernicious novelty is introduced, the court is called upon to mix itself in your deliberations, to mutilate the defence of the prisoner's counsel, to harden your consciences against the solicitations of an enlightened mercy, and to sacrifice the prisoner to gloomy and exterminating principles, which would render the noble and beneficent system of law, for which we are distinguished, a hideous spectacle of cruelty and oppression. For the sake of the country to which I belong, as well as of my client, I will not only protest before you against these principles, but will examine and
speak of them with freedom, restrained only by the decorum which this place requires.
In my argument to the court, I showed that if it be done treacherously it is treason; but that if the commander act from any motive not corrupt, no indictment can touch him. If the fort be as impregnable as Gibraltar, and be garrisoned by 50,000 men, and it is surrendered to a force of half that number, from motives of fear, the commander cannot be punished as a traitor. What can be more strong to show that upon an indictment for adherence, the law looks into the heart, and adapts its penalties accordingly? Has that authority been answered?
In the case of Stone, which was parallel with the point, the court said expressly, if the heart be pure it matters not how incorrect the conduct. So the counsel argued and Stone was acquitted. Has any answer been given to that authority? Has any been ever attempted?
This indictment charges Hodges with having done certain things wickedly, maliciously and traitorously. Must not the United States prove what they allege? When the law allows even words to be given in evidence as explanatory of intention to exculpate, it admits that exculpation may be made out by proof of innocent motives; that overt
acts alone do not furnish a criterion; that concomitant facts, illustrative of the state of the heart, must not be neglected.
A military force levies contributions. If you pay them for the purpose of saving the country from further mischief, although there be no fear or danger of death, the law says this is not treason. By the doctrine of the chief justice, however, it is treason, and consequently his doctrine is unsound.
On this occasion the enemy were in complete power in the district where the transactions occurred which are complained of in the indictment. They were unawed by the thing which we call an army, for it had fled in every direction. They were omnipotent. The law of war prevailed and every other law was silent. The domestic code was suspended. They menaced pillage and conflagration; and after they had wantonly destroyed edifices which all civilized warfare had hitherto respected, was it to be believed that they would spare a petty village which had renewed hostilities before the seal of capitulation was dry? There was menacepower to execute - probability -nay, certainty, that it would be executed.
How, then, can you find a wicked and traitorous motive in the breast of my client? There is not only the absence of my wicked motive, but there is
the visible presence of those which are laudable: an attachment to Dr. Beanes, anxiety for the defenceless people about him, or desire to preserve the county from the afflictions that hung over it. In conduct so characterized, so produced, we discover the operation of an excellent heart upon a mind which virtuous inducements could betray into error, but what way we can distort it into treason, I have not yet been able distinctly to learn.
The conduct is in itself treasonable, says the chief justice. It necessarily imports the wicked intention charged by the indictment. The construction makes it treason, because it aids and comforts the enemy.
These are strong and comprehensive positions; but they have not been proved; and they cannot be proved until we relapse into the gulf of constructive treason, from which our ancestors in another country have long since escaped.
Gracious God! In the nineteenth century to talk of constructive treason! Is it possible in this favored land this last asylum of liberty blest with all that can render a nation happy at home and respected abroad - this should be law? No. I stand up as a man to rescue my country from this reproach. I say there is no color for this slander upon our jurisprudence. Had I thought otherwise,
I should have asked for mercy, not for law. would have sent my client to the feet of the president, not have brought him, with bold defiance, to confront his accusers, and demand your verdict. He could have had a nolle prosequi. I confirmed him in his resolution not to ask it, by telling him that he was safe without it. Under these circumstances, I may claim some respect for my opinion. My opportunities for forming a judgment upon this subject, I am compelled to say, by the strange turn which this cause has taken, are superior to those of the chief justice. I say nothing of the knowledge which long study and extensive practice enabled me to bring to the consideration of this case. I rely upon this; my opinion has not been hastily formed since the commencement of the trial. It is a result of a deliberate examination of all the authorities, of a thorough investigation of the law of treason in all its forms, made at leisure and under a deep sense of a fearful responsibility of my client. It depended upon me whether he should submit himself to your justice, or use, with the chief magistrate, the intercession of the grand jury, which could not have failed to have been successful. You are charged with his life and honor, because I assured him that the law was a pledge for the security of both. I declared to him that I would stake my