"Laws of individual nations (as, for instance, the French law of the 10th April, 1825) may, so far as their own subjects are concerned, either alter the meaning of piracy, or extend its operation; but they are not allowed to do that to the prejudice of other States."
"Laws of individual nations (as, for instance, the French law of the 10th April, 1825) may, so far as their own subjects are concerned, either alter the meaning of piracy, or extend its operation; but they are not allowed to do that to the prejudice of other States."
I refer to Hefter on Modern International Law, 4th ed., page 191.
From this we can see that there are two kinds of piracy—national piracy and municipal piracy. No State can be prevented by any law of nations from making anything piracy which that State pleases. For instance, there is a law of piracy in Spain that any person committing frauds in matters of insurance is a pirate; or that any one even cutting the nets of a simple fisherman is a pirate. I might quote other instances. In our own country the slave-trade is a piracy; but that does not make it piracy everywhere. In some of the States of Germany slave-trade is kidnapping, and is punished as such.
What, now, is the relation of these foreigners to this municipal piracy, under the indictment with which they stand charged? That it is municipal piracy, I need not say anything further, after the full argument of our friend and father, Mr. Lord. The law is very distinct. It is, "if anycitizenshall do so and so." But how do these men come in? Here I come to the point why I thought it fit and incumbent on me to offer my propositions. The prosecution will certainly stretch, as I said before, the construction and interpretation of the law in this way: It will say, "These men were apprehended on an American bottom, and, being on an American bottom, they were on American soil, and as, according to criminal law, they are protected by our law, so they are bound by our law." This, I apprehend, is the theory on which the prosecution will urge that these foreigners—notwithstanding the distinct expression of the law, "if any citizen"—shall be found guilty under this indictment. But as they are foreigners to this law, so is this law foreign to them. And there is a principle in criminal law which says—I read from section 238 of Bishop's Criminal Law, vol. I.—
"It is a general principle that every man is presumed to know the laws of the country in which he dwells, or, if resident abroad, transacts business. And within certain limits, not clearly defined, this presumption is conclusive. Its conclusive character rests on considerations of public policy, and, of course, it cannot extend beyond this foundation, though we may not easily say, on the authorities, precisely how far the foundation of policy extends. We may safely, however, lay down the doctrine that in no case may one enter a Court of Justice to which he has been summoned, in either a civil or criminal proceeding, with the sole and naked defence that when he did the thing complained of he did not know of the existence of the law he violated.Ignorantia juris non excusatis, therefore, a principle of our jurisprudence, as it is of the Roman, from which it is derived."
"It is a general principle that every man is presumed to know the laws of the country in which he dwells, or, if resident abroad, transacts business. And within certain limits, not clearly defined, this presumption is conclusive. Its conclusive character rests on considerations of public policy, and, of course, it cannot extend beyond this foundation, though we may not easily say, on the authorities, precisely how far the foundation of policy extends. We may safely, however, lay down the doctrine that in no case may one enter a Court of Justice to which he has been summoned, in either a civil or criminal proceeding, with the sole and naked defence that when he did the thing complained of he did not know of the existence of the law he violated.Ignorantia juris non excusatis, therefore, a principle of our jurisprudence, as it is of the Roman, from which it is derived."
This rule, so essential to the ordinary administration of justice, cannot be deemed strange in criminal cases generally, because most indictable wrongs aremala in se, and, therefore, offenders are still conscious of violating the law "written in every man's heart."
But—and now I refer to the note to this section, which says—"ignorance of the law of foreign countries is, with the exception noticed in the text, ignorance of fact which persons are not held to know." The author cites the following authorities: Story's Equity Jurisprudence, sections 110, 23; American Jurisprudence, sections 146 and 347; to which I would add 8 Barbour's Supreme Court Reports, 838 and 839, and the case of RexversusLynn, 2d Term Report, 233.
Now, I contend that, as this law under which the indictment is drawn is a law creating municipal piracy, so it is a law foreign to these foreigners; that, therefore, as to them, it is a matter of fact, and, according to the criminal theory,ignorantia facti excusat, these foreigners cannot be found guilty under this law. Municipal piracy, to carry out the doctrine of this theory, is notmalum in se; for, as I said before, international law does not acknowledge it as such, but is opposed to it as to foreigners; and if I understand well the decision of the Supreme Court, it is even acknowledged, in the case of the United StatesversusPalmer, 3d Wheaton, 610, that the Congress of the United States cannot make that piracy which is not piracy by the law of nations, in order to give jurisdiction to its Courts over such offences.
Besides, this knowledge of facts enters a good deal into the theory of intent. So much has been said about the piratical intent, that I can pass this by in silence. But, with reference to the theory that foreigners are to be taken as ignorant of facts, I will give an illustration that was suggested to me this morning by an incident which occurred on my way to the Court. A little boy in the street handed to me a card of advertisement which had all the appearance of a bank note. Now, I remembered at the moment that about three years ago the Legislature of South Carolina passed a law making the issuing and publication of such advertisements—such business cards—an offence, punishable, if I am not mistaken, both by fine and imprisonment. Now suppose that the great American showman at the corner of Ann and Broadway should carry his "What is it" or Hippopotamus down to Charleston, and issue such an advertisement, and he should be brought before the Court of South Carolina; would it not be unjust, as the offence is notmalum in se, to find him guilty? Certainly it would be; and, according to the same theory, I cannot imagine, by any possible process of reasoning, that these prisoners should be deemed guilty under an indictment, when the law was entirely foreign to them. They may justly say, as they might have known, and did perhaps know, that our country, too, holds to this simple doctrine: "Let us have fair play." So when certain provinces rose up in revolt against the parent or original Government, to conquer, as it were, their independence, this country maintained a state of neutrality, and granted to both parties belligerent rights. Many such cases have been cited; but the most striking one, I am astonished, has not been cited. I will refer to it now. It is the case of the United States against the Miramon and the Havana, tried before the District Court of New Orleans. These two steamers were commissioned vessels, belonging to an authority not only not recognized by the Government of the United States, but opposed to the Government which had been recognized by ours. They were commissioned ships of General Miramon, and were seized and libeled; yet they were released. Perhaps it would have been better for us if they had not been released, because they have since given us some trouble—one of them (the Havana) having been converted into the ubiquitous Sumter, which is rather a terror to our mercantile marine.
I will not further trespass upon your honors' time, but will immediately read my proposition. That proposition is, that, "As to the defendants who are shown to have been citizens of foreign States at the date of the alleged offence, the law is, that they cannot be found guilty of piracy under the present indictment, which includes only piracy by municipal law—the ignorance of which, as to foreigners, is notignorantia legis, butignorantia facti. Therefore the defendant Clarke, and the other foreigners, should be acquitted."
Before, however, I close my few remarks, I must, in justice to my immediate client, William Charles Clarke, add another observation. I have, by submitting to your honors the proposition, separated, as it were, his case and that of the other foreigners from the rest of the prisoners. I did so on my own responsibility; for he let me understand that he did not wish to see his case separated from the others. He expressed that sentiment to me in a very forcible German proverb. It was, "Mitgegangen, mitgefangen, mitgehangen!"[3]Yet I thought it incumbent on me, as his counsel, to urge all those circumstances that might be beneficial to him and to those in the same position,—trusting that the unity and identity of the fate of all thus severed by me may be restored in this wise: that the case of these foreigners may be made also the case of the four citizens, both by the ruling of your honors and the verdict of general acquittal of the Jury.
Mr. Brady—Before Mr. Evarts proceeds to close the legal considerations involved in the case I feel it proper to advise him of a point for which I will contend, and on the discussion of which I do not now intend to enter. I will not admit that Congress had the power, under the Constitution of the United States, to pass the ninth section of the Act of 1790, which, upon my construction of it, would punish as piracy the act of an American citizen who should take a commission from England or France and then commit an act of hostility on an American ship or on an American citizen on the high seas. The argument is in a nutshell; though, of course, I shall give some illustrations at the proper time. It is this—that there is no common-law jurisdiction of offences in this Government; that it can take cognizance of no crimes except those which are created by Act of Congress, including piracy; and that the authority of the Constitution conferred upon Congress, to pass laws defining piracy and to punish offences against the law of nations, relates only to such offences as were then known, and does not invest the Legislature of the Federal Government with authority, under pretence of defining well-known offences, to create other and new offences, as is attempted to be done in the Act of 1790.
ARGUMENT OF MR. EVARTS.
Mr. Evartssaid: If the Court please, I shall hardly find it necessary, in stating the propositions of law for the Government, to consume as much time as has been, very usefully and very properly, employed by the various counsel for the prisoners in asking your attention to the views which they deem important and applicable in defence of their clients. The affirmative propositions to which the Government has occasion to ask the assent of the Court, in submitting this case to the Jury, are very few and simple. Your honors cannot have failed to notice that all the manifold, and more or less vague and uncertain, views of ethics, of government, of politics, of moral qualifications, and of prohibited crimes, which have entered into the discussion of the particular transaction whose actual proportions and lineaments have been displayed before the Court and Jury, are, in their nature, affirmative propositions, meeting what is an apparently clear and simple case on the part of the Government, and requiring to be encountered on our part more by criticism than by any new and positive representation of what the law is which is to govern this case under the jurisprudence of the United States.
I shall first ask your honors' attention to the question of jurisdiction, which, of course, separates itself from all the features and circumstances of the particular crime. Your honors will notice that this question of jurisdiction does not, in the least, connect itself with the subject or circumstances of the crime, as going to make up its completeness, under the general principles which give thelocalityof the crime as thelocalityof the trial. With these principles, whether of right and justice, or of convenience for the adequate and complete ascertainment of the facts of an alleged crime, we have no concern here. The crime complained of is one which has no locality within the territorial jurisdiction of the United States, and assigns for itself, in its own circumstances, no place of trial. From the fact that the crime was completed on the high seas, equally remote, perhaps, from any District the Courts of which might have cognizance of the transaction, there are no indications whatever, in its own circumstances, pointing out the jurisdiction for its trial. It is, therefore, wholly with the Government, finding a crime which gives, of itself, no indication of where, on any principle, it should be tried, to determine which of all the Districts of the United States in which its Courts of Judicature are open,—all having an equal judicial authority, and all being equally suitable in the arrangement of the judicial establishment of the Union,—it is entirely competent, I say, for the Government to determine, on reasons of its own convenience, which District, out of the many, shall gain the jurisdiction, and upon what circumstances the completeness of that jurisdiction shall depend.
It is not at all a right of the defendant to claim a trial before a particular tribunal, nor are there any considerations which should prevent the selection of the place of jurisdiction through whatever casual agency may be employed in that selection. In the eye of the law, the Judges are alike, and the Districts are alike. Congress, considering the matter thus wholly open, in order that there might be no contest open for all the Districts, and assuming that there would be some natural circumstance likely to attend the bringing of the offender within the reach of civil process, when a crime had been committed outside of the civil process of every nation, determined, by the 14th section of the Crimes Act of March 3d, 1825, which gives the law of jurisdiction in this case, that the trial should be "had in the District where the offender is apprehended, or into which he may be first brought." Nor is it a true construction of this statute to say that the law intends that the cognizance of the crime—all of the Districts being equally competent to try it, and there being nothing in the crime itself assigning its locality as the place of trial—shall belong exclusively to that Court which shall first happen to get jurisdiction by the actual bringing of the offender within its operation. If that be true, it is apparent that neither one of the Districts thus differently described has jurisdiction exclusively of the other. Now, the language of the statute certainly gives this double place of trial in the alternative; and it is very difficult to say what principle either of right, of convenience, or of judicial regularity, is offended by such a construction and application of the statute. Accordingly, I understand it to have been held by Mr. Justice Story, in the case ofThe United Statesvs.Thompson(1Sumner, 168), that there were these alternative places of trial; and, as a matter of reasoning, he finds that such arrangement is suitable to the general principles of jurisprudence, and to the general purposes of the statute. Now, if this be so, then, as we come, in this District, within one of the alternatives of the statute, and as this District is confessedly the one in which the apprehension of the offenders took place, we are clear of any difficulty about jurisdiction.
The case of Hicks, decided here, was, perhaps, not entirely parallel to the one now under consideration. But, let us see how far the views and principles there adopted go to determine this case, in the construction of the statute in any of its parts. Hicks had committed a crime on the high seas—in the immediate vicinity, I believe, of our own waters. Making his way to the land, he proceeded unmolested to Providence, in Rhode Island. The officers of justice of the United States, getting on his track, pursued him to Rhode Island, and there he was found, unquestionably within the District of Rhode Island. They did not obtain his apprehension by legal process there, and thus bring him within the actual exercise of the power of a Court of the District of Rhode Island; but they persuaded him, or in some way brought about his concurrence, to come with them into the District of New York, and here the process of this Court was fastened upon him, and he was brought to trial on the capital charge of piracy. On a preliminary plea to the jurisdiction of the Court, and on an agreed state of facts, to the effect, I believe, of what I have stated, the matter was considerably argued before your honor, Judge Nelson, on behalf of the prisoner; but your honor, as I find by the report, relieved the District Attorney from the necessity of replying, considering the matter as settled, under the facts of the case, in the practice of the Court. Now, the argument there was, that the District of Rhode Island was the District where the offender was apprehended; and it could not be contended that the Southern District of New York was the one into which he was first brought by means other than those of legal process. And the argument was, that the crime for which he was to be tried here, being a felony, any control of his person by private individuals was a lawful apprehension, and one which might be carried out by force, if necessary; and that, therefore, there was, in entire compliance with the requisition of the statute, an apprehension within the District of Rhode Island. If, under the circumstances of that case, that view had been sustained by the Court, it could not have been, I think, pretended that the Courts of this District had concurrent jurisdiction, because of Hicks having been first brought into this District. The whole inquiry turned on the question whether he was apprehended in the District of Rhode Island.
In considering the case, your honor, Judge Nelson, recognized, as I suppose, the view of the alternative jurisdiction which I have stated. You said to the District Attorney: "We will not trouble you, Mr. Hunt. The question in this case is not a new one. It is one that has been considered and decided by several members of the Supreme Court, in the course of the discharge of their official duties. It has repeatedly arisen in cases of offences upon the high seas, and the settled practice and construction of the Act of Congress is, that in such cases the Court has jurisdiction of the case, in the one alternative, in the District into which the offender is first brought from the high seas—meaning, into which he is first brought by authority of law and by authority of the Government. In cases where the offender has been sent home under the authority of the Government, the Courts of the District into which he is first brought, under that authority, are vested with jurisdiction to try the case. The other alternative is, the District in which the prisoner is first apprehended—meaning an apprehension under the authority of law—under the authority of legal process. This interpretation of the Statute rejects the idea of a private arrest, and refers only to an arrest under the authority of law and under legal process. It is quite clear, in this case, that no District except the Southern District of New York possesses jurisdiction of the offence; for here the prisoner was first apprehended by process of law. We do not inquire into anything antecedent to the arrest under the warrant in this District, because it has no bearing whatever upon the question of the jurisdiction of the Court. We have no doubt, therefore, that the Court has jurisdiction of the case, and that this is the only District in which the prisoner can be tried."
Now I owe the Court and my learned friend, Mr. Lord, an apology for having supposed and stated that the provisions of the Act of March 3d, 1819, giving certain powers to the naval officers of the United States "to protect the commerce of the United States," as is the title of the Act, were not now in force. I was misled. The Act itself was but temporary in its character, being but of a year's duration. By the Act of May 15th, 1820, the first four sections of the Act of March 3d, 1819, were temporarily renewed. But afterwards, by the Act of January 30th, 1823, those four sections were made a part of the permanent statutes of the country. The substantial part of the Act of March 3d, 1819, namely, the fifth section, which defined and punished the crime of piracy, was repealed, and replaced by the Act of May 15th, 1820, and has never reappeared in our statutes.
Judge Nelson: It is the fifth section of the Act of 1819 that is repealed.
Mr. Evarts: Yes; that Act is found at page 510 of the 3d volume of the Statutes at Large.
Mr. Lord: All that relates to the apprehension of offenders is in force.
Mr. Evarts: Yes; that is all in force. The Act is entitled, "An Act to protect the Commerce of the United States, and punish the Crime of Piracy." The first section provides, that "the President of the United States be, and hereby is, authorized and requested to employ so many of the public armed vessels as, in his judgment, the service may require, with suitable instructions to the commanders thereof, in protecting the merchant vessels of the United States and their crews from piratical aggressions and depredations." There is nothing in that section which is pertinent to this case. The second section provides, "that the President of the United States be, and hereby is, authorized to instruct the commanders of the public armed vessels of the United States to subdue, seize, take, and send into any port of the United States, any armed vessel or boat, or any vessel or boat, the crew whereof shall be armed, and which shall have attempted or committed any piratical aggression, search, restraint, depredation, or seizure, upon any vessel of the United States or of citizens thereof, or upon any other vessel, and also to retake any vessel of the United States or its citizens which may have been unlawfully captured upon the high seas."
This, your honors will notice, is entirely confined to authority to subdue the vessel and take possession of it, and send it in for the adjudication and forfeiture which are provided in the fourth section.
The third section gives the right to merchant vessels to defend themselves against pirates.
There is nothing in the Act which gives to the officers of the Government the power, or enjoins on them the duty, of apprehending the pirates. I will now ask your honors' attention to the distinction between this Act and the powers conferred by the slave-trading Act.
Judge Nelson: The Act of 1819 gives to the commanders authority to bring home prisoners,—does it not?
Mr. Evarts: It does not, in terms, say anything about them. That is the point to which I ask your honors' attention. The Act instructs the commanders of public armed vessels to subdue, seize, take, and send into any port of the United States, any armed vessel or boat, or any vessel or boat, the crew whereof is armed, and that may have attempted or committed any piratical aggression, &c. There is nothing said as to the arrest of the criminals. It is a question of construction.
Judge Nelson: It is not specific in that respect.
Mr. Evarts: No, sir, it is not specific. Now, in the Act of March 3d, 1819, entitled, "An Act in addition to the Acts prohibiting the slave trade," which will be found at page 532 of the 3d volume of the Statutes at Large, a general authority is given to the President, "whenever he shall deem it expedient, to cause any of the armed vessels of the United States to be employed to cruise on any of the coasts of the United States or Territories thereof, or on the coast of Africa, or elsewhere," "and to instruct and direct the commanders of all armed vessels of the United States to seize, take, and bring into any port of the United States, all ships or vessels of the United States, wheresoever found," engaged in the slave trade. And then comes this distinct provision in reference to the apprehension and the bringing in for adjudication of persons found on board of such vessels. It is the last clause of the first section: "And provided further, that the commanders of such commissioned vessels do cause to be apprehended and taken into custody every person found on board of such vessel so seized and taken, being of the officers or crew thereof, and him or them convey, as soon as conveniently may be, to the civil authority of the United States, to be proceeded against in due course of law, in some of the Districts thereof."
This Act is the one referred to by Judge Sprague in the case ofThe United Statesvs.Bird(Sprague's Decisions, 299)
Judge Nelson: There is limitation to that Act, is there?
Mr. Evarts: No, sir; it is unlimited in duration, and a part of the law now administered. Now, I need not ask your honors' attention to the familiar act which gives to Consuls of the United States direct authority to take offenders into custody and detain them, and send them by the first convenient vessel to the United States, to be delivered to the civil authorities to be proceeded against.
Now, my proposition is this,—that neither under the slave-trading Act, nor under the Act for the prevention and punishment of piracy passed in 1819, does the extra-territorial seizure, control and transmission of offenders, exclude the plain terms of the alternative of the statute, which makes jurisdiction dependent, not on apprehension merely, but on apprehension within a District; and that, even though there is a governmental introduction of the offender into a District, making that District, in a proper sense, the one into which he is first brought, yet that does not in the least displace the alternative of jurisdiction of an apprehension within a District, there having been no prior apprehension, by process, within any other District, as the consummation and completion of the delivery of the offender to the civil authorities for the purpose of a trial, the transaction having been instituted on the high seas or in a foreign port.
Now, on the facts in this case, there is no room for disputing that the first apprehension was within this District. Nor can I deny that the seizure of these persons on the high seas was made by an armed vessel of the United States, either under the general right which the law of nations gives both to public and private vessels to seize pirates, or under the implied right and power to do so, certainly so far as to make it justifiable on the part of commanders of cruisers, by virtue of the provision of the Act of 1819 which authorizes them to send in a piratical vessel. These men were sent in, in the course of such active intervention, by an armed vessel of the United States. But I submit to your honors, that the provisions of that Act, which thus incidentally include, as it were, the transmission of the ship's company of a pirate, because they are to be subdued, and the ship is to be sent in, cannot be turned, by any process of reasoning, into anything that can be called a legal apprehension. I am satisfied that your honor, Judge Nelson's view, that the term "apprehension" is only meant to apply to the service of judicial process within a District, is entirely sound.
The principal argument and the principal authority relied on to displace the jurisdiction thus plainly acquired under one alternative of the statute, denies, really, that there is any alternative, or that there can possibly be two Districts, either one of which may rightfully have jurisdiction. That, I take it, is the substance of the proposition. It is, that the alternative gives to one of the two exclusive jurisdiction; and that, whenever facts have occurred—whether jurisdiction has been exercised or not—which give to the one District jurisdiction and an opportunity to exercise it, then, by the prior concurrence of all the circumstances which fix the statutory jurisdiction on that District, the possibility of the occurrence of any new circumstances to give jurisdiction in the other and alternative District is displaced.
The case ofThe United Statesvs.Townsendhas been brought to your honors' attention in the manuscript record of the preliminary proceedings. The prisoner, who had been taken and brought into Key West, where the vessel stopped, as we are told, for the temporary purpose of supplies, was thence brought into Massachusetts. It is the record of a proceeding wherein Judge Sprague, with the concurrence of his associate, Mr. Justice Clifford, of the Supreme Court, sent the prisoner, in that predicament, back to Key West for trial, and would not permit an indictment to be found against him in the District of Massachusetts. We have no knowledge of the facts of that case, except what are contained in this record. Now, your honors will notice, in the first place, that this is not a judicial determination as to the right of jurisdiction of the Massachusetts Court, necessarily; but that, on the theory which I present, that there are two alternative jurisdictions, it may have been only a prudent and cautious exercise of the discretion of that Court, preliminary to indictment, that this man should be sent, on his own application, to the District of Florida for trial. In other words, he interposed an objection that he was entitled to a trial in Key West; and the Court, affirming the opinion that that District had jurisdiction of the crime, determined that it would send him there for trial, and that it would not exercise its own jurisdiction, which might be made subject to some question. And yet it is not to be denied that Judge Sprague is apparently of the opinion that there are not two alternative places of jurisdiction, neither one exclusive of the other; but that they are only alternative as respects the one or the other which is the first to gain jurisdiction. It is a little difficult to see, on this view, how there can be any two places, rightfully described as separate places, one of which is the place into which the prisoner is first brought, and the other of which is the place where he is first apprehended; because, in the very nature of the case, the moment you raise the point that the offender has been in two Districts, and that in the latter of them he is apprehended, then it follows that he has passed through the former; and the statute is really reduced to this—that the offender must be indicted in the District into which he is first brought. There cannot then be two different Districts, into one of which he is brought, within the meaning of the law, and in the other of which he is apprehended; because, that into which he is first brought must necessarily precede, in time, that in which he is first apprehended, and he could not have been apprehended before, in a District other than that into which he is first brought. So that you necessarily reduce the statute to a fixing of the place of trial in the District into which the offender is first brought.
The case of Smith—the trial just terminated in Philadelphia, in which the prisoner was tried and convicted before the Circuit Court of the United States—is an authority of the two Judges of that Court on this very point, the circumstances of a prior introduction of the prisoner within the Eastern District of Virginia being much more distinct than in this case. The capturing vessel was a steamer, which took the prize into Hampton Roads. The defendant and the others of the prize crew were kept as prisoners on board this war steamer, which, after anchoring in Hampton Roads, near Fortress Monroe, went a short distance up the Potomac, returned, and again anchored in Hampton Roads, after which she brought the prisoners, including the defendant, into Philadelphia, where they were taken into the custody of the Marshal. Now, unquestionably, geographically, that prisoner was within the State of Virginia, and within the Eastern District of Virginia, rather more distinctly than in the case now on trial. In that case, the Court said—"One of the points of law on which counsel for the defence requests instruction to the Jury is, that the Court has no jurisdiction of the case; because, after his apprehension on the high seas, he was first brought into another District, meaning the Eastern District of Virginia, and ought to be there tried. This instruction cannot be given. When he was taken prisoner, and was detained in the capturing vessel, he was not apprehended for trial, within the meaning of the Act of Congress. His first apprehension for that purpose, of which there is any evidence, was at Philadelphia, after his arrival in this District. Whether he had been previously brought into another District, within the meaning of the Act, is immaterial"—recognizing the doctrine of two alternative jurisdictions, neither exclusive of the other. "It has been decided that, under this law, a person, first brought into one District, and afterwards apprehended in another, may be tried in the latter District. Therefore, if you believe the testimony on the subject, this Court has jurisdiction of the case."
Now, your honors very easily understand, that without any election or purpose on the part of any authority, civil or naval, representing the Government, a prisoner may be brought into a District, yet never come, in any sense, under the judicial cognizance of that District. In this case, these prisoners might have escaped from the Harriet Lane, and have fled to Massachusetts, or Pennsylvania, or wherever else their fortune should have carried them, and might there have been first apprehended. Now, what is there in the nature of the jurisprudence of the United States, in respect of a crime committed outside of both Districts, which should prevent the jurisdiction of Massachusetts being just as effective as the jurisdiction of New York? If such be the law, I have no occasion to argue any further. But the decision of Judge Sprague is, in my judgment, quite opposed to that view of the law; and I, must, therefore, present to your honors some considerations which, in my judgment, make this the District, in the intendment of the statute, into which these offenders were first brought, as well as the District in which they were first apprehended.
The alleged prior introduction of these persons within any other Judicial District of the United States, within the meaning of the statute, is shown by the evidence of what occurred in reference to the transit of the Minnesota, after she had taken them on board from the capturing vessel, the Perry, off the coast of South Carolina. She anchored off Fortress Monroe, just opposite Hampton Roads, and there transferred these prisoners to the Harriet Lane, which brought them into this District.
Now, it is said that that incident of the anchorage of the Minnesota in or near Hampton Roads, and the transhipment of the prisoners to another vessel, which the exigencies of the naval service sent to New York, did fulfill the terms of the law in reference to the introduction of those offenders within a District of the United States, and that they were, therefore, first brought into the Eastern District of Virginia; and, if that circumstance displaces the alternative jurisdiction, and thereby Virginia became the exclusive District of jurisdiction, this trial cannot be valid, and must result in some other disposition of these prisoners than a verdict of guilty, if, on the merits of the case, such a verdict should be warranted.
What are the traits and circumstances of that transmission? I understood my learned friend, Mr. Lord, to concede that he would not argue that the mere transit of the keel of the vessel transporting the prisoners, in the course of its voyage to a port of destination, through the waters of another District, was an importation or introduction of the offenders into that District, so as to make it the place of trial. Take, for instance, the case of a vessel making a voyage from Charleston to New York. For aught I know, certainly, within the practicability of navigation, her course may be within a marine league of the shore of North Carolina, of the shore of Virginia, of the shore of Maryland, and of the shore of New Jersey, before making the port which is the termination of her transit. Well, my learned friends say that they do not claim that this local position of a vessel within a marine league while she is sailing along, is, within any sensible view of the statute, an introduction into the District, so as to found a jurisdiction.
Let us see, if your honors please, whether the transit of these prisoners from the capturing vessel to the Marshal's office in New York was not simply part of the continuous voyage of the vessel from one point to the other. Where was the Minnesota, and on what employment and duty, at the time she received these prisoners on board? She was the flag ship, as the Commodore has told us, of the Atlantic Blockading Squadron, and her whole duty was as a cruiser or blockading ship, at sea, in discharge of the duty assigned to her.
I take it for granted that my learned friends will not contend that a vessel, pursuing her voyage continuously along the coast of North Carolina and the coast of Virginia, introduces an offender within a District by stopping, either under any stress of navigation, or for any object unconnected with any purpose to terminate her voyage, or that the fact of her being becalmed, or of her having anchored off the coast to get water or supplies, and having then pursued her voyage continuously to New York, would alter the character of the transit, in any legal construction that it should receive.
Now, what did the Minnesota do? The Commodore took the prisoners on board that vessel, as he tells you, for the purpose of sending them to New York by the first naval vessel that he should be able to detach from the service. Did he, in the interval between the capture and the complete transmission and reception of the prisoners here, ever make a port or a landing from his vessel, or ever depart from the design of the voyage on which he was engaged? No. He was on his cruise, bound to no port, always at sea, and only in such relations to the land as the performance of his duty to blockade at such points as he saw fit, whether at Charleston or the Capes of Virginia, required him to be in. And there is no difference, in the quality of the act, arising from his having stopped at Hampton Roads, and thence sent forward the prisoners by the Harriet Lane, because she was the first vessel that was going to New York—going, as has been stated, for a change of her armament and for repairs.
Now, I submit to your honors, that there is nothing, either in the design or the act of this blockading vessel, the Minnesota, or of the Harriet Lane, that causes the course of transmission of these prisoners to the point of their arrest in this District to differ from what it would have been if, with an even keel, and without any interruption, the capturing vessel, the Perry, had started for New York, and had, in the course of her navigation, come within the line of a marine league from the shore of some District of the United States, and had, perchance, anchored there, for the purpose of replenishing her supplies for the voyage. In other words, in order to make out, within the terms of the statute, a bringing into a District of the United States, so as to make it a District of jurisdiction, within the sense of the statute, it is impossible for the Court to fail to require the ingredient of a voyage into a port, at least as a place of rest and a termination of the passage of the vessel, temporary or otherwise. That is requisite, in order to make an introduction within a District. And I cannot imagine how his honor, Judge Sprague, or his honor, Judge Clifford, could, in the case before them, have given any such significance to the prior arrival of the vessel of the United States at Key West; for, it was but a stopping at an open roadstead for the purpose, not of a port, but of continuing at sea or in the sea service of the country.
Your honors will notice that, by such a construction of the Act, instead of making the place where jurisdiction shall be acquired dependent on some intelligent purpose, in the discretion of the officers who control the person of the prisoner, as to where he shall be landed, you make the question of jurisdiction dependent upon the purest accident in the navigation of the vessel. Thus, in this particular case, the Captain of the Minnesota tells us he had not coal enough to come directly to New York, if he had designed to do so, and that he stopped at his blockading station and sent the prisoners on by another vessel, which the exigencies of the service required to make the voyage.
There is another proposition upon this question of jurisdiction which I deem it my duty to make to your honors, although I suppose the whole matter will be disposed of on considerations which have been presented on one side or the other, and, as I suppose, in favor of the jurisdiction. Yet I cannot but think that the rules of jurisprudence and the regular and effective administration of criminal justice will suffer if these questions are to be interposed and to be passed upon by the Court at the same time as the indictment itself. Where the question of the locality of the trial forms no part of the body of the crime, and has nothing to do with the place where the crime was committed, but is wholly a question of the local position of the prisoner, then the exception to the jurisdiction can only be taken as a preliminary plea, or in the shape of a plea in abatement. That was the construction in the Hicks case, and is the general rule in reference to jurisdiction in civil cases which are dependent upon the proper cognizance of the person of the defendant. I refer to the cases ofIrvinevs.Lowry, (14Peters, 293;)Sheppardvs.Graves, (14Howard, 505;) andD'Wolfvs.Rabaud, (1Peters, 476.)
Mr. Larocque: I ask what particular point is decided by those cases?
Mr. Evarts: They are wholly on the point that where the jurisdiction of a Court of the United States depends, not on the subject matter of the suit, but on the District where the defendant is found, or on the citizenship of the parties, an objection to the jurisdiction must be taken by a plea in abatement.
Mr. Larocque: But suppose it depends upon the place where the crime was committed, whether in New York or Ohio, whether on land or at sea?
Mr. Evarts: It is not necessary to ask that question, for I have expressly excluded that consideration by the preliminary observation, that the locality of the trial forms no part of the body of the crime. In this case, the crime having been committed outside of any locality, it is wholly a question of the regularity and legality of the means whereby the criminal has been brought into the jurisdiction—nothing else.
Mr. Larocque: Does the counsel cite these cases to show that want of jurisdiction must be pleaded in abatement?
Mr. Evarts: It is the rule in civil cases. Now, your honors will see that the question forms no part of the issue of guilty or not guilty.
Mr. Larocque: Will you look at the last averment in your indictment?
Mr. Evarts: I repeat, that it forms no part of the body of the crime, and no part of the issue of guilty or not guilty, that is to be determined by the Jury. If the Jury, upon the issue of guilty or not guilty, should pass upon the question as to what District the defendant had been first brought into, or as to what District he was apprehended in, and should find that this Court had no jurisdiction, he would be entitled to an acquittal on that ground, and that acquittal would be pleadable in bar if he were put on trial in the proper District; for, there is no mode, that I know of, of extricating this part of the issue from the issue on the merits of the case, when it is decided by a verdict. There is no possibility of discriminating in the verdict. There is no special verdict and no question reserved. It is a verdict of not guilty. And, therefore, on the question of regularity of process, the crime itself is disposed of—the whole result of the judicial investigation being that the trial should have been in another District.
But, where the locality of the crime forms a part of its body, of course, the Government, undertaking to prove a crime to have been committed within a District, rightly fails if the crime is shown not to have been committed within that District.
Mr. Larocque: And then can they not try it where it was committed?
Mr. Evarts: I should not like to be the District Attorney who would try it.
Now, if the Court please, upon the matters connected with the merits of this trial, the first proposition to which I ask your honors' attention is—that the Act of April 30th, 1790, in the sections relating to piracy, is constitutional, and that the evidence proves the crime as to all the prisoners under the eighth section, and as to the four citizens under the ninth section. The crime is also charged and proved against all the prisoners under the third section of the Act of May 15th, 1820.
I do not know that your honors' attention has been drawn to the distinction between the eighth section of the Act of 1790 and the third section of the Act of 1820. The counts in the indictment cover both statutes, and both statutes are in force. The words of the eighth section of the Act of 1790 are these:
"If any person or persons shall commit, upon the high seas," "murder or robbery," "every such offender shall be deemed, taken and adjudged to be a pirate and felon, and, being thereof convicted, shall suffer death."
"If any person or persons shall commit, upon the high seas," "murder or robbery," "every such offender shall be deemed, taken and adjudged to be a pirate and felon, and, being thereof convicted, shall suffer death."
The whole description of the crime is "murder or robbery" "upon the high seas."
The third section of the Act of 1820 adds to that simple description of criminality certain words not at all tautological, but making other acts equivalent to the same crime. The section provides that, "if any person shall, upon the high seas, or in any haven, &c., commit the crime of robbery in or upon any ship or vessel, or upon any of the ship's company of any ship or vessel, or the lading thereof, such person shall be adjudged to be a pirate, and, being thereof convicted," "shall suffer death." Beyond the simple word, "robbery," is added, "in or upon any ship or vessel, or upon any of the ship's company of any ship or vessel, or the lading thereof."
Judge Nelson: The fifth section of the Act of March 3d, 1819, provides for piracy on the high seas according to the law of nations. The previous Act of 1790, and the third section of the Act of 1820, prescribe the punishment of the crimes of murder and robbery on the high seas.
The District Attorney: The Act of 1820 does not refer to murder, only to robbery on the high seas.
Judge Nelson: It denominates as a pirate a person guilty of robbery on the high seas.
Mr. Evarts: But the body of the crime is the robbery, and not the epithet.
Mr. Brady: That is the question.
Mr. Evarts: But, in the fifth section of the Act of 1819, the provision is, that "if any person shall, on the high seas, commit the crime of piracy as defined by the law of nations."
Judge Nelson: That is a different offence.
Mr. Evarts: Yes, and is open always to the inquiry, what the law of nations is.
Now, that Act of 1790 is, we say, constitutional. And here I may as well say what seems to be necessary in reference to the point made by Mr. Brady on behalf of the prisoners. He will contend, he says, that the ninth section of the Act of 1790 is beyond the constitutional power of Congress—its constitutional power in the premises being limited, as he supposes, to the right to define and punish the crime of piracy.
Mr. Brady: "And offences against the law of nations."
Mr. Evarts: To that explicit clause in the Constitution.
Now, your honors will notice what the crime in the ninth section of the Act of 1790 is. It is not piracy so described, nor robbery so described merely, but it is a statutory definition of the crime, which includes a particular description and predicament of the offender (the eighth section having included all persons), and also defines the subject of the robbery, or the object of the piratical aggression. It is this: "If any citizen shall commit any piracy or robbery aforesaid, or any act of hostility against the United States, or any citizen thereof," &c. "Piracy or robbery aforesaid" would, of course, include the definition of the crime as embraced in the eighth section. But, the ninth section proceeds to add a new and substantive completeness of crime, not described either as piracy or robbery, to wit: "Or any act of hostility against the United States, or any citizen thereof, upon the high seas, under color of any commission from any foreign Prince or State, or on pretence of authority from any person, such offender shall, notwithstanding the pretence of any such authority, be deemed, adjudged, and taken to be a pirate, felon, and robber, and, on being thereof convicted, shall suffer death."
Now, it is quite immaterial whether this statute is accurate in declaring the offender to be "a pirate, felon, and robber." It has made the offence a crime. Under what restrictions has it made it a crime? Has it undertaken to extend the jurisdiction of the Federal Government, as supported by the law of nations respecting piracy, which is a right on the part of every nation to legislate not only for its own citizens—not only in protection of its own property—but in punishment of all pirates, of whatever origin, and in protection of all property on sea, and wherever owned? Now that, undoubtedly, is the jurisdiction under the law of nations, and neither by the Constitution has Congress received any greater power under the law of nations than that, nor, I respectfully submit, can it receive any greater power under the law of nations; that is, Congress cannot receive any power greater than that which other nations, not bound by our municipal statutes, would be bound to respect, as sustained by the law of nations. Now I agree that "any act of hostility against the United States, or any citizen thereof," would not necessarily be up to the grade and of the quality of piracy under the law of nations; and that the Congress of the United States, in undertaking to make laws which would create an offence, and punish it as piracy, which was not piracy by the law of nations, and in seeking to enforce its jurisdiction and inflict its sanctions on a people who owed it no municipal obedience, and in protection of property over which it had no municipal control, and no duty to perform, could not control foreign nations; and that foreign nations would not be bound to respect convictions obtained under such a municipal extension of our law over persons never subject to us, and in respect to property never under our dominion.
And thus your honors see that, just in proportion as the ninth section has extended the crime, it has limited both the persons to whom the statute is applied, and the property in respect of which the crime is defined. It is wholly limited to our own citizens, subject to whatever laws we choose to make for our own government, and in respect of the marine property of the United States, and of its citizens when at sea, which, by every rule of the extension or limit of municipal authority, is always regarded, on general principles of public jurisprudence, as a part of the property and of the territory of the nation to which the ship and cargo belong, wherever it may be on the high seas.
Now, this ninth section, I suppose, if your honors please,—and such I understand to be the views of Judge Sprague, as expressed by him to the Grand Jury, at Boston,—proceeds and is supported on the general control given by the Constitution to Congress over all external commerce, which, I need not say, must, to be effective, extend to the criminal jurisprudence which protects against wrong, and the criminal control which punishes crime perpetrated by our citizens on our own commerce on the high seas. My learned friend would certainly not contend that the different States had this authority in reference to crimes on the high seas. And, if they have not that authority, then, between these jurisdictions, we should have omitted one of the most necessary, one of the most ordinary, one of the wisest and plainest duties of Governments in regard to the protection of their commerce. For, it is idle to say that there are no crimes which may be committed at sea which are not piracy, and that there is no protection needed for our own commerce against our own citizens which does not fall within the international law of piracy.
Mr. Brady: I ask Mr. Evarts' permission to make a suggestion upon this point, which it is due to him, and to myself, also, that I should present, that I may hear his views in respect to it. I would ask the learned gentleman, and the Court, to suppose the case of an American citizen who, on the breaking out of a war between the United States and England, should be residing in England as a denizen, and who had resided there for many years, and who should take a commission for privateering from the British Government, regularly issued, having about it all the sanctions belonging to such an authority, and who, in the prosecution of a war, should take an American prize,—would he be liable to be convicted in the Courts of the United States of piracy or robbery, under the act of 1790? He clearly would, on its language. And then the question occurs—Had Congress any authority to pass such a law?
Now, I will put a case which is stronger, and which comes equally within the plain terms, purview, and spirit of that Act, upon a literal construction. Suppose that two American vessels should come into collision on the Pacific Ocean, each manned and officered exclusively by American citizens, and, an angry feeling being engendered, the Captain of one of them should direct a sailor to throw a belaying-pin at the Captain of the other, and the sailor should do it. That would clearly be an act of hostility against one citizen of the United States perpetrated by another, and would be perpetrated under pretence of authority from a person, to wit, the Captain of the ship who gave the violent order. Would the sailor be liable to a conviction for that offence, as a pirate or robber? and would Congress have the authority to pass such a law? I doubt it very much.
Mr. Evarts: I agree with my learned friend that the case which he first stated is not only within the words, but within the intent, of the ninth section.
Mr. Brady: That an American citizen cannot take a commission from a foreign Government without being a pirate?
Mr. Evarts: To serve against the United States, he certainly could not; and, if the law of nations and the rights of citizens require that a Government which demands allegiance and repays it by protection cannot make penal the taking of service from a foreign power against itself, I do not know what a Government can do. So much for the general right or power of a Government. If the particular and clipped interpretation of our Constitution has shorn our Government of that first, clearest, and most necessary power, why, very well. Such a result follows, not from that power or its exercise being at variance with the general principles or powers of Government, but because, as I have said, in the arrangement of the Government, there has fallen out of the general fund of sovereignty this plain, and clear, and necessary right.
But, on the second instance which my learned friend has put, I am equally clear in saying, that the case he there suggests is not within the statute of 1790, simply because, although by a forced and literal construction, if you please, about which I will not here quarrel, my learned friend thinks he places it within the general terms of the ninth section, yet I imagine your honors will at once come to the conclusion, which seems to my poor judgment a sensible one, that the case he puts has nothing to do with the subject matter of the statute, within its intent or purpose—and that, simply, because the statute has not chosen to cover the case proposed, by applying to it so extravagant a penalty. It is not from any defect in the power of Congress. Congress does punish just such an offence as the one suggested, whenever the weapon and the assault make it of the gravity of offences to which Congress has chosen to apply its penal legislation. The statute covering such an offence is enforced every day in this Court. And, certainly, I do not need to argue that, if Congress had the right to pass a statute prohibiting an assault with a belaying-pin, it had the right to call the offence piracy, if it pleased, and might punish it by hanging, if it saw fit; and, for that, it is not amenable to the law of nations, nor is its power exercised with reference to piracy under the law of nations when it deals with that class of offences.
I certainly do not need to fortify my answer to the case first put by my learned friend, in regard to the right of a nation to punish its citizens for taking service against its own country and commerce, by the practice or the legislation of other nations. But your honors will find, in the statutes of Great Britain—the statutes of 11 and 12 William III., and 2 George II.—precisely the same exercise of power and authority, and to the same extent, as respects the gravity of the crime and the punishment prescribed for it. And it would seem to me to be one of the plainest rights and most necessary duties of the Government, if its attention is called to any proclivity of its citizens to take service against itself, to punish them not as prisoners of war, and not under the laws affecting privateers.
Mr. Brady: I will only mention to you that, when I argue the question hereafter, and answer your suggestions, I will refer to the case ofThe United Statesv.Smith, (5Wheaton, 153,) where Mr. Webster conceded, in the Federal Court, that this original Act defining piracy was, as respects the language I have referred to, not a constitutional exercise of the power conferred on Congress. He took the ground that the statute made a general reference to the law of nations as defining piracy, whereas, in his view, Congress should have proceeded to state what were the elements of the offence. I want to use that, in my argument, as an illustration of how strictly the Courts have held that it was never intended that even the case of taking a commission in a foreign service and making war against the United States, which might be treason, should be converted into piracy by any necromancy or alchemy of the law, such as the gentleman seems to have in view.
Mr. Evarts: Whenever a statute declares an offence to be a certain offence, that offence the Courts must hold it to be. The nomenclature of the Legislature is not to be quarreled with by the Courts which sit under its authority. They are to see that the crime is proved. What the crime is called is immaterial.
Mr. Brady: Then the Legislature might say that speaking offensive words on the high seas by our citizens is piracy.
Mr. Evarts: They can call it piracy, and punish it.
Mr. Brady: Yes, by death!
Mr. Evarts: It does not come under the law of nations as piracy, but under the general control of Congress over our citizens at sea. In other words, no nation depends, in the least, on the law of nations and its principles for the extent of its control over its own citizens on the high seas, or for the extent of the penalties by which it protects its own commerce against the acts of its own citizens on the high seas. It takes cognizance of such offences by the same plenary power by which it takes cognizance of offences on land. The difference with us would be, that the State government would have the control of these offences when committed on the land, as a general rule, and they would come within the Federal jurisprudence and the Federal legislation only by their being committed on the high seas. Now, what was said by Mr. Webster in the case ofThe United Statesv.Smith, a case arising under the Act of 1819? Mr. Webster argued that the special verdict did not contain sufficient facts to enable the Court to pronounce the prisoner guilty of the offence charged—that his guilt could not be necessarily inferred from the facts found, but that they were, on the contrary, consistent with his innocence—but that, even supposing the offence to have been well found by the special verdict, it could not be punished under the Act of 1819, because that Act was not a constitutional exercise of the power of Congress to define and punish piracy,—that Congress was bound to define it in terms, and was not at liberty to leave it to be settled by judicial interpretation. That was Mr. Webster's criticism upon the statute—that while the Constitution had said that the law must define what was piracy, Congress had left it to the Courts to define. Mr. Justice Story delivered the opinion of the Supreme Court in that case, to the effect, that the crime of piracy was constitutionally defined by the Act of Congress, and the point was so certified to the Circuit Court.
The authority which this Court has for punishing the crime which has come under consideration in this case is the law of the United States, supported by the Constitution of the United States, in respect to both branches of the statute under inquiry. As the indictment follows the law, and the law follows the Constitution, the subject for your cognizance is rightfully here, and the proofs and the evidence in the case show that the crime has been committed, and that the acts of the prisoners which resulted in the seizure of the Joseph on the high seas include all the ingredients that enter into the completeness of the crime of robbery on the high seas, as named in the eighth section of the Act of 1790, and in the third section of the Act of 1820. I am confining myself, in these observations, to the crime of the whole twelve, not affected by the question of citizenship, and not falling under the ninth section of the Act of 1790.
It is certainly not necessary for me here to insist, with much of detail, on the question of the completeness or effect of the evidence as showing that the seizure of the Joseph was attended by all the circumstances of force, and was stimulated by all the purposes of robbery, which the law makes an ingredient of this offence. So far as the sufficiency of the evidence is to pass under the judgment of the Jury, it is entirely out of place for me to comment on it here. And, so far as any purpose of instruction to the Jury by your honors requires any consideration now, it is sufficient for me to say, that there is no trait of violence, and threat, and danger which, within the law of robbery,—and the law of piracy, if there be any difference,—makes up the necessary application of force, that is not present here. And I understand my learned friend, Mr. Lord, to concede, that there was force enough to make up the crime, if the element of intent, the vicious purpose of robbery, was present, as part of the body of the crime.
My learned friends have treated this latin phrase,animo furandi, as if it meantanimo fruendi—as if the point was, not the intent to despoil another, but the intent to enjoy the fruits of the crime themselves. Now, I need not say that a man who robs his neighbor to give the money to charity, despoils him,animo furandi, just as much as if he did it with the intention of using the money for his own purposes of pleasure or profit. That is the point, and all the cases cited only touch the question of whether, in the violent taking, or the fraudulent taking, imputed as a crime, there could be supposed by the Jury to be, on any evidence introduced, any honest thought, even the baseless notion, on the part of the offender, that the property was not that of the man from whom he took it, but was his own. I have not seen anything in this evidence which should lead us to suppose that Mr. Baker and his crew thought that this vessel, the Joseph, belonged to them, and that they took her under a claim of right, as property of their own. The right under which they acted was a supposed right to make it their own, it then and there being the property of somebody else—to wit, of the United States of America, or of some of its citizens. So, your honors will find, that except so far as the considerations of the moral quality of this crime, in regard to its not being furtive and stealthy, are raised and supported by the general considerations which are to change this transaction from its private quality and description into a certain public dignity, as part of a wider contest, and which considerations are to be disposed of by the views which your honors may take of the affirmative proposition of the defence, which would make this privateering at least an act of hostility in flagrant war—except so far, I say, as these considerations are concerned, I need not say anything more as to the completeness of the ingredients, both of force, and of robbery or despoiling another, necessary to make up the crime.
We come, now, if the Court please, to a variety of considerations, many of them, I think, not at all pertinent to a judicial inquiry; many of them ethical; many of them political; many of them addressed to the consciences of men; and many of them addressed to the policy of Governments—and which, in the forum where they are debatable, and which for the most part is a forum which can never make a decision, may be useful and interesting. Some of them do approach, doubtless, the substance and shape of legal propositions; and I am sure I do no injustice either to the nature, or purpose, or character of these manifold views, when I say that they all centre on the proposition, that this transaction, which, in its own traits and features as a private act of these parties, is a crime of piracy, is transferred into the larger range of a conflict of force, authorized by the laws of war, and with no arbiter and no avenger, but in the conscience, and before the common Judge of all. Now, if the Court please, the legal notion to which we must bring this down, is this—that the acts here complained of are, within the law and jurisprudence which this Court administers, acts of privateering, not falling within the law of piracy.
Now, what is privateering? My learned friends have spoken of privateering as if it were one of the recognized, regular, suitable public methods of carrying on hostilities between nations, and as if it fell within the general protection which makes combatants in the field, fighting as public enemies, and against public enemies, amenable only to the laws of war. And my learned friend, Mr. Lord, has read, with much satisfaction, the very pointed observations made by Mr. Marcy in his letter to the French Minister, which were very just and very appropriate as a home argument against France; that is, the encomiums of certain French commanders on the dignity and nobility of the conduct of privateers who rushed to the aid of their country when at war. Now, my view, and I believe the view of the law books and of the publicists of the present day, is this—that privateering is the last relic of the early and barbarous notions of war, that a trial of force between nations involved a rightful exercise of personal hostility by every individual of one nation against every individual of the other, and against every portion of the property of the other. That law of war which authorizes the attack on peaceful persons by armed bands on land, and the robbery, devastation, and destruction of private property wherever it may be found, has been long since displaced by those principles of humanity, of necessity, and of common sense, which make war an appeal, when there is no other arbiter, to the strength of the parties, to be determined with as little injury to property and life as possible. Now, privateers have never been looked upon as being themselves entitled to the least comparison with the regularly enrolled military power, or with the regular naval service, in respect to their motives, or the general rules of their conduct, or the general effect which their depredations are expected to produce. And the tendency of all movements in the public laws of nations, as affecting the maintenance of war, has been at least to discourage and to extirpate, if possible, this private war on sea, in both of its forms—to wit, in the form of public armed vessels taking private and peaceable property on sea, and in the still more aggravated form of private armed vessels, with crews collected for the purposes of gain and plunder, under the license which war may give. So far from this Government having, on the general principles, moral and social, which should govern such a discussion, desired to maintain or extend privateering, it was among the first and the earliest to concede in its treaties, and to gain from the other contracting parties the concession, that if war should arise between the parties to the treaty, privateers should not be commissioned or tolerated on either side. And, if this Government has failed to yield to the attempt made on the part of certain European powers to crush this single branch of private war on the ocean, to wit, war by private parties on the ocean, it has only been because it saw that that design, not including the destruction of that other branch of private war at sea—the war of public vessels against private property—was not a design clearly stimulated by the purposes and interests of humanity. While the European Governments chose to destroy that branch which was least important to them—the use of private armed vessels—they claimed to continue in full force the right of public armed vessels to make aggressions on private property on every sea. The one point was quite as important to have ameliorated as the other, which permits us to recruit the small navy which our republican institutions justify us in maintaining, by the vigor of our mercantile marine in the time of naval war. Therefore, there is nothing in the history of the country which can, in the least, support the idea that we look with favor on the notion of privateering.
Some sensible observations upon the subject are to be found on marginal page 97, in the first volume of Kent's Commentaries, to which I ask your honors' attention: