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 A TRIBUTE TO 
 
 JUDGE Sl^RAGUE. 
 
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^ Tribnte to Judge Sprague. 
 
 REMARKS 
 
 RICHARD H. DANA, JR., ESQ.: 
 
 AT A DINNER GIVEN TO THE 
 
 OFFICERS OF THE ''KEARSARGE/' 
 
 In response to a Toast in honor of the Judiciary. 
 
 Printed for Private Circuration by some of the Friends of Judge Sprague. 
 
 BOSTON: 
 ALFRED MUDGE & SON, PRINTERS, 34 SCHOOL STREET. 
 
 1864. 
 

 Gih 
 Author 
 
 ■Prison) 
 
Remarks of Richard H. Dana, Jr., Esq., at a 
 dinner given to Captain Winslow and the 
 officers of the United States steamer Kearsarge, 
 in honor of their victory over the rebel steamer 
 Alabama, by the merchants and shipowners of 
 Boston, November 15th, 1864, in response to 
 the following toast, proposed by the Hon. 
 George B. Upton, the President of the day : 
 
 " The Judiciary of the United. States, — never 
 appearing to greater advantage than when adjudi- 
 cating upon maritime law, and administering justice 
 as thoroughly as did our friends of the Kearsarge 
 upon the Alabama in the British Channel." 
 
REMARKS. 
 
 [Corrected from a Report in the Boston Daily Advertiser of Nov. 16, 1864.] 
 
 Mr. President : 
 
 There is an ancient maxim that laws are 
 silent where arms prevail. That maxim, sir, was 
 true to the fact at the time it was made. War 
 knew no law. The hostile city was devoted to 
 destruction by solemn religious rites. It was not 
 only hostile, but accursed. Its wealth, public and 
 private, was the spoil of the conqueror, and its 
 inhabitants became the slaves of their captors. 
 Strong men were drawn in chains at the wheels 
 of the victor's chariot, and beautiful women, 
 following as captives, graced the triumphal procession. 
 With the disastrous battle vanished the last hope 
 of the conquered. All his rights and liberties 
 were cloven down. This was the state of things 
 under the much admired civilization of Greece and 
 Rome. And in the Old 'I'estament, it is told of a 
 
6 
 
 great prince, that three score and ten kings, having 
 their thumbs and great toes cut off, gathered their 
 meat under his table. 
 
 What nobler proof can there be of the excellence 
 of Christian civilization than that it is no longer true 
 that law is silent amid arms. The soldier draws his 
 sword only at the command of the civil magistrate. 
 Armies and fleets are but armed and disciplined 
 international police. And it is the peculiar glory 
 of modern civilization that captures upon the high 
 seas, made beyond the sight or interposition of man, 
 must be submitted to the adjudication of judicial 
 tribunals. How great is the contrast ! In a remote 
 sea, two ships fly at each other in deadly combat ; 
 their thunders shock the air ; the horizon is obscured 
 in a cloud of battle-smoke ; — and there is bloodshed, 
 death, the sharp pursuit, surrender, victory ! The 
 scene changes. Justice is sitting in her own 
 temple, with calmness and dignity awaiting the 
 approach of the victor and the vanquished. Before 
 her they stand as equals. The captor surrenders 
 his rich prize into the custody of the law. Neither 
 cupidity, nor pride, nor violence can touch it ; and 
 it is accounted for, scrupulously, in shillings and 
 pence. The captor and the captured alike are 
 represented by counsel, and thus the more fully 
 equalized ; and the magistrate adjudicates, calmly 
 
and impartially, not by the law of the strongest, 
 nor by the local law of his own country, but in 
 accordance with those universal rules and maxims 
 of justice, humanity and policy which the nations 
 of Christendom have accepted, and which we call 
 the international law. 
 
 The consummate orator at your side, whom New 
 England delights to honor,* has just told us that the 
 late election, so exciting, so momentous, so peaceful, is 
 a spectacle of moral sublimity. It is so, indeed. But 
 am I assuming too much for the Judiciary if I claim 
 that there is also moral sublimity in the spectacle of 
 the unobtrusive magistrate, in the quiet, — even the 
 dullness, of his court-room, unattended by any of the 
 insignia of physical force, stilling the storm of battle , 
 and bringing the pride of power, the lust of spoil, the 
 will of the triumphant, to the rules of justice, humanity 
 and of wise, permanent policy, in responsibility to an 
 observing world, and with the assent and approbation of 
 armed and jealous sovereigns ? Truly, sir, were there 
 nothing else, we might, for this alone, bless the results 
 of Christian civilization. And nowhere is it more 
 fitting that the Judiciary should be mentioned with 
 respect and gratitude, than in an assembly of merchants 
 and shipowners of a great commercial city. 
 
 * Mr. Everett. 
 
8 
 
 While we honor the institution, let us not be un- 
 mindful of the men who have made it what it is. 
 Let us not forget the honored dead who have caused 
 the jurisprudence of the United States, in its inter- 
 national relations, to be respected the world over. 
 In the science of international law, there are no 
 names more honored than those of Marshall, Story, 
 Kent and Wheaton. They are authority wherever, 
 in the world, there is authority in reason and right. 
 In the exciting controversies of the last few years, 
 to unwilling hearers, Mr. Vernon Harcourt, (better 
 known, perhaps, as Historicus, of the London 
 Times,) has borne his testimony that the prize decisions 
 of the American Courts in the last generation have 
 commanded the respect of the world ; and it is 
 no small thing to say that there is no decision 
 of the Supreme Court of the United States in a 
 prize cause, against which a settled opinion has 
 been formed. And, recently, in an excited debate 
 in the House of Commons, where our country 
 and its cause had few friends, the Solicitor-Gen- 
 eral, Sir Roundell Palmer, the best authority in 
 Parliament on that subject, told a reluctant au- 
 dience that the prize decisions made by the Ameri- 
 can Courts in the present war, had been beyond 
 exception. 
 
 This leads me to remember, sir, that I should 
 
not do my duty to your sentiment, if 1 paused 
 with the jurists of the last generation. No, sir, 
 there is another name that Massachusetts, that 
 Boston, will demand to have mentioned in this 
 honorable connection, that is the name of Judge 
 Sprague. 
 
 I will not pronounce an eulogy upon Judge 
 Sprague. I have known him for many years, and 
 for the last four years intimately, in official rela- 
 tions. Were T to say in full all that I think 
 of his moral and intellectual qualities, and of his 
 legal learning, I should be suspected of wander- 
 ing into the fields of panygeric. But some 
 things I may say, which will carry along with 
 them your glad assent. 
 
 When this insurrection broke out, there was an 
 unsettled condition of public opinion as to the rela- 
 tions of the rebel states and their inhabitants to 
 the National Government, and the rights and 
 powers of the National Government in dealing 
 with a rebellion inaugurated by asserted State 
 authority. Judge Sprague took the occasion of the 
 first meeting of the Grand Jury to deliver a 
 charge on the doctrine of allegiance and treason, 
 as applicable to this rebellion, and on the powers 
 and rights of the General Government. The 
 Grand Jury unanimously requested a copy for the 
 
lU 
 
 press. It was published, largely circulated, ex- 
 tracted into the daily journals, and freely discussed 
 and examined. I believe, sir, all lawyers will 
 agree with me that that charge did more to 
 settle the minds of professional men in this part 
 of the country, and of other men studying the 
 subject, than anything that appeared, from what- 
 ever source, in the early stages of the contro- 
 versy. The President of the United States, 
 (James Buchanan,) had just declared, in the most 
 solemn public document, that although secession 
 by a State was illegal, the Government had no 
 power to coerce a State by force of arms, — that 
 the moment the insurrection got beyond the reacli of 
 the Marshal, the Government was powerless. Judge 
 Sprague allowed of no line beyond which the 
 Government could not follow a treasonable rebel- 
 lion. He refused to acknowledge that the extent 
 of the power of the rebels furnished the limit of 
 our own. He allowed of no interregnum, no 
 
 point of pause and powerlessness. Just so fast 
 and far as the Judge and the Marshal were dis- 
 placed, the General and the Admiral came in. 
 There was no vacant place for treason to tiourish 
 in between peace and war, between the authority 
 of the writ and the power of the bayonet. 
 
 The doctrine of Judge Sprague's charge would be 
 
11 
 
 accepted law now. I assure you, sir, — I assure you 
 all, gentlemen, it was not so then. We were like 
 a surprised army of new levies, attacked in front and 
 flank, before the dawn of day. Friends and foes were 
 mingled together, lines of defence were obscured by 
 the darkness and smoke and crowd ; the weapons of 
 resistance were lost or overlooked, the trumpets blew 
 uncertain blasts, and the bravest and wisest wielded 
 their unwonted weapons with uncertain hands. I re- 
 member a barrister of considerable legal and political 
 credit questioning with Judge Sprague, after his 
 charge, whether a man could be tried for treason in 
 Massachusetts, where there was no war. He objected 
 that the constitution limited treason to the levying of 
 war, and to overt acts, and guaranteed to each man a 
 trial in the State in which the treason was com- 
 mitted. Judge Sprague replied, '^ Bring me a man 
 who here, in Massachusetts, has, by an act however 
 slight, and however remote from the field of war, 
 intentionally given aid to the rebels in arms, as by 
 communicating to them information or advice, and 1~ 
 will not only show you that I can try him, but that 
 I can have him hanged." 
 
 The first prize brought to Boston, the Amy War- 
 wick, raised the great question, whether, in a rebel- 
 lion risen to the dimensions of war, the Government 
 could make prize, at sea, of a vessel and cargo of a 
 
12 
 
 citizen of the United States, without proof of his 
 having been engaged in any treasonable acts, — the 
 cargo not being contraband, nor the vessel guilty of 
 an intent to break blockade, — on the sole ground 
 that his actual and permanent residence was in a 
 region of country in the possession of the rebel au- 
 thorities. It raised also the question, whether, if the 
 General Government could do this, the power of 
 ordering such capture could be exercised by the 
 President, without a special Act of Congress declar- 
 ing war, or recognizing that the state of war existed. 
 The first question went to the very foundations of all 
 social organizations, the springs of all national life. 
 The latter presented a question of the elements of 
 our constitutional law. Judge Sprague was fully 
 equal to them both. He rose to the height of the 
 great argument. His decision gave the lead to the 
 bar and courts on both those questions ; and to 
 this day, after all the arguments, discussions and 
 decisions, from the lower tribunals to the highest, no 
 substantial departure has been made from the grounds 
 upon which he placed his decision. He may well rest 
 his reputation, as a constitutional and international jurist, 
 upon his charges to the grand jury and the decision in 
 the Amy Warwick. But these are not all, The entire 
 line of his decisions during this war, in prize causes, 
 on points of practice as well as of doctrine, has given 
 
13 
 
 him an enviable reputation throughout the land. I 
 would particularly refer to his opinion in the case of 
 the French ship La Manche, which he restored to its 
 owners, where he made a most critical and searching 
 analysis of the British precedents on the subject of 
 the liability of captors to pay damages in a case of 
 restitution, developing for the first time, in a satisfac- 
 tory manner, the reasons of the doctrine, and its qual- 
 ifications. Another class of interesting prize cases 
 has been before him, as to which no decisions of 
 any consequence have been made elsewhere. I refer to 
 questions of participation in the distribution of prizes 
 among alleged joint-captors, or vessels within signal 
 distance. In the memorable case of the iron clad 
 ram Atlanta, captured in Wassaw Sound by the 
 monitors Weehawken and Nahant, he made a most 
 thorough analysis of all the precedents on the sub- 
 ject of joint captors, going, as he always does, be- 
 yond the form and letter into the reasons of the 
 decisions, and developing a philosophical principle 
 by which all cases may be tested. In the cases of 
 the Cherokee, Aries, and Ella and Annie, Judge 
 Sprague, with a patience of investigation into details, 
 and a fullness and carefulness of deliberation, of 
 which no one, perhaps, but myself knows the extent, 
 has decided, I think satisfactorily to parties and to 
 the Government alike, the vexed and embarrassing 
 
14 
 
 questions relating to signal distances by night and day, 
 by flags, by night-signals, by rockets and guns, and 
 those questions arising out of co-operation in a joint 
 enterprise of blockade, search or pursuit. 
 
 You have been pleased to speak, Mr. President, 
 in language complimentary to myself, of the repu- 
 tation this district enjoys by reason of the honest, 
 rapid and inexpensive manner in which its prize pro- 
 ceedings have been conducted. AVhatever praise you 
 may have designed for the Attorney of the United 
 States, it carries with it a deserved tribute to the 
 Judge. Judge Sprague's integrity is not of the neg- 
 ative sort. It is vigilant and aggressive. It would 
 allow neither extortion, chicanery nor delay within 
 the reach of its observation, if any such were in- 
 tended, and if rules and the application of rules 
 could prevent it ; while his learning and carefulness, 
 and the enlarged philosophical character of his mind, 
 secure him the confidence of the government, the 
 captors and claimants, in the decision of the greatest 
 questions. 
 
 It is not generally known that the magistrate com- 
 monly called the United States District Judge has 
 the most varied, and in some respects the highest 
 jurisdiction ever exercised by a single judge in England 
 or America. In the District Court, he tries alone 
 causes of admiralty jurisdiction, of whatever amount, 
 
15 
 
 all revenue causes, whether in admiralty or at common 
 law, and all criminal causes, under the Federal juris- 
 diction, short of capital. But the District Judge is 
 also ex officio Circuit Judge. He can hold the Circuit 
 Court alone ; and, sitting alone, he constitutes the Court 
 for all purposes. He can try causes of equity, 
 patents, copyrights, and all common law causes within 
 Federal jurisdiction, questions of prerogative writs, 
 and all criminal causes ; and from his single decision 
 on the law in a trial even for murder, piracy or 
 treason, there is no appeal. This has been the 
 jurisdiction and these the functions which your fellow- 
 citizen. Judge Sprague, has exercised, going in and 
 out before you for the last twenty years, — a great 
 magistrate and an uncorruptible man. 
 
 I have said all that I have just spoken with the 
 more pleasure, — I correct the expression, — with more 
 satisfaction to my sense of duty, from the sad reflec- 
 tion that perhaps we have seen the last labors of 
 this excellent magistrate. A life-long invalid, by 
 great care he has been able to accomplish the 
 work of a strong man. But at last the tide seems 
 to be running out, to which there is no return. We 
 are not without some hope, but the public must be 
 prepared to reconcile itself to the loss. 
 
 I would not leave upon your minds, gentlemen, a 
 mournful impression on this auspicious night. This 
 
16 
 
 gay array of honored epaulets and flags and martial 
 insiofnia recalls to me that we are met to celebrate 
 victory and to crown the victors. I thank you, Mr. 
 President, that, in the sentiment you propose, you 
 felicitously connected the Judiciary with the Naval 
 service, of which our guests are the honored 
 representatives, and enabled me to pay to the 
 Judiciary a tribute which, I trust, will not be 
 thought unfitting the special interests of this hour. 
 
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