"There is evidence that at the time of the crew of the Savannah shipping for the cruise, and at the time of the capture of the Joseph, the authorities of the State of South Carolina had become parties to a confederation of others of the United States of America, named in the President's proclamation. That under such confederation a Government, in fact, existed; and exercised, in fact, the powers of civil and military Government over the territories and people of those States, or the principal part thereof. That the said Confederate States had, in fact, declared war against the United States of America, and were openly prosecuting the same, with large military forces, and the military and civil organization of a Government; and had assumed, and were in the exercise of, the power of issuing commissions to private armed ships, to make captures of the property of the United States, and the citizens thereof, as prize of war, and to send them into port for adjudication as such. And that a civil war thus, in fact, existed. That the taking of the Joseph was under such authority of the Confederate States, and in the name of prize of war, and with the purpose of having the same adjudged by a Prize Court in South Carolina, or some other of the said Confederate States. And, if the facts are so found, then the taking of the Joseph was not piratical, under the eighth section of the Act of 1790, and the prisoners must be acquitted from the charge under this count." Now I approach the case of the commission. I suppose that the District Attorney, by not proving the commission as a part of the charge, is not entitled to convict any of these prisoners under the commission which is shown. He does not prove his case; and it is no matter what we have proved,--he is not entitled to a conviction under evidence which he does not bring. But now I take up the matter of the commission, and the consideration of _piracy by statute_, under the 9th section. If your honors please, it is right that I should give some history of that 9th section's coming into the law of piracy. The 8th section you will find to be the law of piracy, by the law of nations. All nations hold that to be piracy which is there described. But, in the 11th and 12th of William III., this state of things existed: King James had abdicated the Crown of England twelve years before; William and Mary reigned together six years; William survived her. Here, then, was a Government in England, with a pretender, whom the English Government had declared was an alien from the Throne; they had banished him. But he was at the Court of St. Germain, in France; and there, through his instrumentality, privateers were fitted out against English commerce. Then this Act was enacted which I will now mention. You find it in _Hawkins' Pleas of the Crown_, under the title _Piracy_, book I., chap. 37, sec. 7: