It is not necessary for me to discuss these questions. It belongs to the Government, after it has procured a conviction, either for piracy or for treason, to decide, in its own discretion, whether the penalty of the law shall be inflicted. Let us confine ourselves to our duties. Let us not be asked here, as a learned Bench, or as honest Jurymen, to recognize a Government or a state of belligerency that our nation does not recognize. And let us not be asked to repeal statutes of treason because the number of the traitors is so great that we cannot carry out the penalties of the law against the whole. I would like to know if in the face of any Court of Justice,--if in the face of the public opinion of the world,--if in the face of the principles of eternal justice,--it is to be set forward as a shield over the heads of the rebel leaders and traitors, that they have inflamed and misled so large a body of the common people, that they, the leaders, cannot be punished. I would like to know if, when in advance, immediately upon the rebel proclamation inviting privateers, our Government, through every newspaper in the land, proclaimed that whoever should voluntarily take up this form of piracy would be treated as a pirate, and you find the first privateer, with the first commission taken out under this proclamation of sovereignty, and the first band that volunteer--Mr. Baker and his crew, collected from all the quarters of the globe,--the first engaged in this new and flagrant form of outrage, against which they had been warned,--I would like to know if these bold outlaws, stretching forward a ready hand to grasp the license of war for plunder, the whole proceeds of which are to fill their pockets, are to be presented in this Court as being special objects of protection, under the principles of humanity, and as being shielded against public justice in enforcing the laws of piracy.
Now, if your honors please, treating, as I do, this question as one to be passed upon, not with the coolness of a neutral power looking upon these contending parties as independent nations, but by this Court as the Government's own judicial organ for administering the public justice, I would like to know what pretence there is that, under the laws of the United States, the crime of piracy having been proved, there is anything in this notion of a commission from a nationality recognized by our Government, or of a belligerent right recognized by our Government, that this Court can adopt as a merger of the private crime in the public conflict. We contend, therefore, that in the conflict now raging, the Constitution and the laws of the United States make every person levying war against the Government a rebel and traitor, and, if the war thus levied take the form of piratical aggression, a pirate, within the statute.