"Privateering, under all the restrictions which have been adopted, is very liable to abuse. The object is not fame or chivalric warfare, but plunder and profit. The discipline of the crews is not apt to be of the highest order, and privateers are often guilty of enormous excesses, and become the scourge of neutral commerce. They are sometimes manned and officered by foreigners, having no permanent connection with the country or interest in its cause."
"Privateering, under all the restrictions which have been adopted, is very liable to abuse. The object is not fame or chivalric warfare, but plunder and profit. The discipline of the crews is not apt to be of the highest order, and privateers are often guilty of enormous excesses, and become the scourge of neutral commerce. They are sometimes manned and officered by foreigners, having no permanent connection with the country or interest in its cause."
I agree that there is still left, under the license and protection of the law of nations, the prosecution of hostilities on the high seas by privateers and private armed vessels. And I agree that, although the crime proved in this case does come within the description and punishment of robbery and piracy, in its own actual traits and features, yet if it be shown that what is thus made piracy and robbery by the statute was actually perpetrated by a privateer, under the protection of the law of nations, with a commission from a sovereign nation, within the scope of the authority of that commission, it is an answer to an indictment, the terms of which had been otherwise proved. And that is undoubtedly what is claimed here. You have proved piracy and robbery under the eighth section, say these defendants, if we cannot impart to the circumstances and features of this crime some public quality and authority which saves the transaction from condemnation and punishment.
Mr. Brady: We say no such thing. We say that, if they acted in good faith, however mistaken, and though the commission may be void, they have not committed any offence whatever.
Mr. Evarts: This is the extent of my concession, as matter of law,—that it is an answer to a charge of piracy which is otherwise complete, that the crime was committed under conditions which, by the law of nations, relieve it from punishment. Now, what are the conditions that the law of nations requires?
First, there must be a war. We do not allow private armed vessels to prosecute general marauding hostilities in support of the views of their Governments. We do not allow the interruption of the freedom of the seas by such marauding vessels, except in cases of flagrant war, which neutral nations are compelled to recognize.
Secondly. The privateer must have received its commission from a public, national, sovereign power. You cannot make a privateer, and turn private acts that, by the law of nations and by municipal law, are piratical, into acts of war, which are of the same intrinsic quality and have the force of national acts, unless by thissine qua nonof public authority and adoption.
Now, if the Court please, when it comes up for judicial inquiry, whether a case of privateering, under the law of nations, is fairly made out, and where the case arises during flagrant war between two separate, independent, established nations, whose nationality is a part of the order of things in the world, the Court has only really to inquire, judicially, into two subjects—whether the vessel had a lawful privateer's commission from one of the contending parties—and whether the acts committed by her were within its scope, either actually or in the sense of a fair construction of the authority, and of good faith in the exercise of the power. But, even in these cases, where the only points are, whether there be war, and whether there be nationalities on each side which can convey this public authority, the Court is all the while governed by, dependent upon, and subordinate to, the views of the Government from which the Court derives its authority. No judicial tribunal has a right to recognize a nation, of its own motion. No judicial tribunal has authority to recognize a Government which the Government from which it derives its authority does not recognize. I have never heard it proposed, as a view either of public or of domestic law, that when a Government has declined to recognize a nation, it was within the jurisdiction of a Court of that Government to determine differently, and reverse the decision of the political power. In the cases of France and England, which are recognized Governments that have placed themselves as firmly among the nations of the world as private individuals are planted in the rights of man, our Courts intermit this inquiry. A privateer of England which confines itself within the scope of its commission, can not be proceeded against as a pirate, although it commits acts which would of themselves be piracy. But, there do arise questions which come under the jurisdiction of the Courts, under circumstances of doubt and obscurity as to the course or view which our Government has taken in relation to the alleged nationalities of alleged belligerents; and I need not say to your honors, that by an unbroken series of the decisions of the Supreme Court, as well as by the necessary subordination of the judicial authority to the political power of the Government, our Courts always take the view which their Government takes in respect to struggles and hostilities which arise between uncertain, indefinite and unascertained powers. Thus, whenever there occur, between Colonies and the parent Government,—between disaffected regions or populations and the sovereign to which they have been subject—dissensions which, arising from the region of discontent, sedition and turbulent disorder, reach the proportion of military conflict and appeal to arms, then, when acts in the nature of war are assumed to be performed, under circumstances that bring them within judicial cognizance in our Courts, and in the Courts of any other civilized nation, as to whether they still retain their quality and character of private acts, attended by the private responsibility of the criminals, or whether they are transferred to the wider theatre and looser responsibility of warlike engagement, our Courts, as do the Courts of other civilized nations, look to the Government to see what is its policy and its purpose. The instances in which these unhappy contests and these obscure questions have been presented before the Courts, have been almost entirely connected with the separation of the South American Colonies from the mother country of Spain. In all these cases, the new Governments of the revolted Colonies gave commissions to privateers, and undertook to put themselves before the nations of the world as belligerents, claiming from neutral nations, not a recognition of their independence, or of their completed nationality, but of their right to struggle, through the forms of force and war, to establish that nationality. They presented to the discretion and the policy of every other civilized Government precisely this question—Is there enough of substance, of good faith, of power, to justify us, as equal expounders and equal defenders and protectors of the laws of nations, although there be now no present nationality that can support, under the rules of the law of nations, by mere right, the exercise of warlike powers—is there enough, in the transaction, to justify us in considering it to be so substantial andbona fidean effort for the assertion of independence and the creation of a new nation, that we shall give to it the opportunity, and turn what would be piracy and marauding into an act of belligerents, so far as we neutrals are concerned?
When a nation is an independent nation, all other nations of the earth are, by public law, bound to recognize it, and bound to recognize its right to make war. The most powerful nation in the world has no more right to make war than the smallest nation in the world; and, each being judge of its own conduct, when a state of war exists, such war must, by the public law of the world, be recognized. But when new, unformed, inchoate, tentative consolidations or efforts of nationalities present themselves, every nation has, by the public law, a right to exercise its own wisdom, its own policy and its own sense of justice, to determine whether or not it will recognize them; and, in every one of the cases I have referred to that came before our Courts, arising for their consideration as between two parts of a foreign country, our Courts said—Our Government has done so and so; it has recognized them as belligerents, and we follow our Government. In other cases, as in that of the Commander Aury, the Court said—We do not understand that there is any such power known in the world; our Government has never in any way recognized, not its independence, for that is not necessary, but its position as a war-making power, or as a struggling power, fighting for nationality, and we cannot recognize that condition of things.
Now, unhappily, there arises a conflict in our own country, which presents the case of an armed military rebellion—a revolt of certain portions of population, maintaining, if you please, to a certain extent, the mastery over a certain portion of our soil, using against us the actual means and processes of war, and compelling from our Government, in maintaining dominion against their aggressive assaults, the means of military power, naval and land forces, and all the authority and violence of war. Foreign nations have had, in regard to us and to this conflict, the same kind of questions presented that have been presented to us in the contests between the dismembered parts of other countries. And every nation was free to determine, upon this exact question of the right of private war, as belonging to those rebellious portions of this country—to determine whether it would tolerate privateering as a warlike proceeding, or would regard privateers as marauders or pirates without just right or cause, and without the pretence of sufficient force and dignity, in a movement to disturb the peace of the world.
My learned friends have said, using the force of the argument in aid of their cause, that France and England have recognized the insurgents as belligerents, and have precluded themselves from treating as pirates private armed vessels that shall derive authority from these rebellious powers. Well, by the same law of nations that gave to France and England this right thus to elect, they had the right to determine, and to announce by proclamation, that the peace of the world upon the ocean should not be disturbed, under pretence of war, by these insurgents, and that, if they should resort to private armed vessels to inflict aggressions and disturb the commerce of the world, they would be treated as pirates. And if, under the law of nations, the political authorities of France and England had thus announced their policy that these insurgents should be treated as pirates, I would like to know if advocates would be heard, in the Court of Queen's Bench or in the Courts of France, to urge that the Court, wiser than its Government, should, in the exercise of sovereign discretion under the law of nations, tolerate, as an act of war, what is piracy by municipal statute or the law of nations, unless accredited as part of a warlike movement. Would those Courts permit the defence to be made, that what were declared to be acts of piracy were acts of war,—the Government having so elected and so announced, that it would regard them as acts of piracy and not as acts of war?
Now, I am arguing this case altogether on this point, as if the Government from which this Court derives its authority—whose laws we are administering—whose authority is vested in your honors on this trial—stood as a stranger to and spectator of this contest, and it was really a controversy between parts of another nation. And all I have claimed is, that our Government, in common with the other nations of the world, has, by the law of nations, the right, in its discretion, to determine how this proceeding shall be treated, and what consequences shall follow from it. Now, I need not say that, treating our Government as if it stoodab extra, and as if, passing its judgment on what was going on, it had determined that these privateers should be regarded as pirates, they should not be recognized as having the right of war, or the right, as an inchoate nationality, to perfect their independence.
The Proclamation of the President of the United States, of the 19th of April, 1861, is a complete and perfect denunciation of this threatened crime of piracy, the purpose to recur to which had been manifested by a public declaration of Jefferson Davis, which had invited, from all quarters of the globe, privateers to prey upon the commerce of the United States. I need not say to your honors that when our Government has pronounced this to be piracy, and to be not within the law of nations, under its discretion to determine whether it will recognize an inchoate nationality, this Court has not, any more than has a Court of England or France, the power to say that what its Government does not choose to recognize, even in the quality of belligerents, it will recognize. What our Government has said shall remain in the quality of criminality, must so remain, notwithstanding this proclamation of Jefferson Davis, or any commission that may issue in pursuance of it.
I apprehend that even if we were to bring ourselves into the paradoxical condition of passing judgment on this question as a disinterested, yet sovereign nation, your honors would find in the acts of the Government a complete denunciation against this proceeding as a crime of piracy, and a complete policy, which the Court must follow, leaving any diplomatic considerations of the results which may follow its mistaken, if you please, construction of its duty, to be disposed of by the authorities that are responsible for it.
Mr. Brady:I believe there is no proof of any such action by the legislative branch of this Government.
Mr. Evarts:I apprehend that the whole course of the legislation of this country shows that we do not recognize or tolerate this contest as a thing that is rightfully to go on. That is all that is necessary.
I say, if the Court please, that the course of an external sovereignty, in these intestine quarrels, turns upon the point whether it will give its sanction to an intrusion upon the peace of the world by an inchoate nation, and I am trying to consider that question as if our Government had passed judgment upon itab extra; and I say that the action of our Government shows that we do not intend to recognize it as something that should be allowed to go on. These considerations, as to any recognition by this Court of rights derivable fromquasi, pretended, nascent, public powers, would induce this Court to follow the decision of the Government, in case we were judging of the question as a controversy between parts of another nation.
I am now brought to the consideration of who are the parties to this controversy, and what are the relations of this Court and of the laws we are administering to the subject and the inquiry. The Government of the United States still stands. The old Constitution, the whole system of its statutes, the whole power of its army and of its navy, stand. It has its Courts of judicature; it has its commerce still on the seas; its laws are still operative, and still to be administered. And when this Court considers this case, it finds it brought before it as every other criminal case is, and limited to the considerations that belong to every criminal case. The Government of the United States, by the ordinary exercise of the process of judicature,—by seizure under public authority,—by arrest within this District, through the criminal process of this Court,—by the indictment of a Grand Jury,—by the prosecution of the District Attorney,—has proposed to this Court the naked and narrow inquiry of whether these men have committed a crime against the statutes of the United States. Now, I would like to know whether there is anything in these occurrences, that have secured, if you please, for the present, (and the future may be uncertain,) in large portions of our territory, a practical control over great portions of our population,—I would like to know if there is anything in these transactions that has displaced the constitutional legislation of the United States of America over crimes on the high seas, and over its citizens committing crimes on the high seas, or over subjects or citizens, of whatever country, committing crimes on the high seas against our property? I take it, not. Therefore, if your honors please, whatever may be said, in one form or another, of the political right, as respects these States, either constitutionally or by the right of force, to be independent, or to attempt to be independent of the United States, or to engage in this struggle for the settlement of some question of dispute under the Constitution,—whatever may be said of that, your honors cannot fail to discover that nothing which has occurred has destroyed the organism of our Government, or altered for a moment the judicial authority or the force and supremacy of the Constitution and the laws, within the territory where the Courts are open, over the subjects of our Government, and the subjects of whatever Government, in respect to whatever property, upon the high seas.
I understand that my learned friend, Mr. Larocque, supposes that the ordinance of repeal of South Carolina, constitutionally or unconstitutionally supported by the strength to maintain its independence, has changed these four men who are indicted here and are proved to be citizens of the United States, from their condition of citizens of the United States; and he holds, and asks as legal proposition from your honors, that, at the time of the commission of this crime, these men were not citizens of the United States, by reason of the constitutional right of South Carolina to carry itself out of the Union, by force of ordinances, or supported by military power that had maintained itself up to the first of June in the possession of independent power. Your honors will charge, or refuse to charge, accordingly as you may find that the old Government has sovereignty and has attempted to exercise it, and that there has been no severance of our territory to the extent of a permanent division,—whether these men are citizens of the United States, or of a foreign country. If they are held to be citizens of a foreign country, to wit, of South Carolina, or of the Confederate States, then they fall back under the eighth section of the Act, as having committed piracy under that section.
But, to come back to the attitude of our Government, which this Court must follow, towards these rebels,—towards these malcontents,—towards these combinations, which are exercising the processes of war, undoubtedly,—what is the attitude of our Government? Does it recognize their right—does it recognize their independence—does it recognize their authority, so that you find that our Government has adopted the policy of not punishing them under the laws of the United States?
And this brings me to the consideration of another general subject, which Mr. Lord adverted to, and upon which he cited the authority of Vattel—that it would be monstrous, and would expose this Government to the execration of the world, if the criminal laws against murder and robbery on land, and the civil laws against trespass, were to be executed to the letter, and to the full extent of the vengeance of the law against the multitudinous enemies that are arrayed against this Government. Now, I must decline to be led out of a Court of Justice, by this argument, to considerations that appeal to the wisdom, or humanity, or policy of the Government. I would like to know whether my learned friend would contend that, if a private soldier, found in arms, and part of a military force, against the Government of this country, is arrested by that Government, and is indicted, and put upon his trial for treason, which the Constitution of the United States limits to the overt act of levying war against the Government, and if, under the indictment, he pleads in bar that he was levying war against the United States of America,—that would relieve him? For that is the whole nature of the proposition put forward in a Court of Justice,—that, because there are armies, there is no treason! Why, if your honors please, how absurd to present for the recognition of a Government, in its Courts of Judicature, the proposition that there is no treason, from the number of the confederates in the treachery! Your honors see at once that, the idea of setting up such a defence, on a trial for treason, against a private soldier, found in arms against the Government, is absurd. And yet, your honors recognize what is laid down by the publicists, that when the dimensions of a rebellion have been aggravated into the proportions of flagrant war, for a Government to insist upon the decimation or extermination of the population by the gallows or the axe, would be inconsistent with those general principles of humanity and justice that actuate, by necessity, the affairs of men.
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.
Now, let me consider the ninth section of the statute. I will readily concede to my learned friends whatever advantage they can gain from the proposition that, when the ninth section was drawn, in the year 1790, one year after the adoption of the Constitution, it was never supposed that a pretended commission or authority to prey upon the commerce of the United States and violate its laws would come from any part of the people or of the territory of the United States. And I claim that there is nothing in this commission which, if there had been no statute recognizing a possible protection from a commission—there is nothing in this commission from a citizen of the United States, Jefferson Davis, to another citizen of the United States, Thomas Harrison Baker, to prey upon the commerce of the United States, that can be regarded for a moment as a license which makes him a privateer, instead of a pirate. My learned friends have even sought to find occasion for a variance between the proof and the indictment because we have alleged, under the ninth section, that the pretended authority comes from "one Jefferson Davis," and have proved a commission which says, "I, Jefferson Davis, in the name of the Confederate States," have given such authority. Why, if your honors please, this indictment was drawn by an officer of the United States Government, to be tried in a Court of the United States; and, having a fear of the law and a sense of his duty to his country, he describes things as they are. And I would like to have my learned friends point out to me any place, any office, any title, any description, any addition, any qualification, that, under the laws of the United States of America and its Constitution, describes Jefferson Davis, except "one Jefferson Davis." He has precisely that port and dignity before the law and the Constitution that every other individual in the United States has, not filling an office and post of authority under our Government and under our laws. He does fill the place of citizen of the United States, and no measures of separate State action, or of Confederate authority, have relieved him from that full and complete description of him, under the Constitution of the United States, as the measure of his allegiance and of the penalties for its forfeiture. How could we have found a legal phrase or term, if we regard the Government of the United States and its Constitution, by which we could designate any such thing as "Confederate States," or a foreign state, within the accredited territory of the United States? The terms and intent of this ninth section were framed so as to cover every imaginable authority, in the nature of a commission from a State, from a nation, from a power, or from any person, under the law of nations, for the conversion of private marauders into public enemies with the rights of war; and, although it never entered into the imagination of the framers of this statute that it would ever have to be applied to exclude protection under a commission from a citizen of the United States, its terms are absolutely fitting. I contend that the statute is complete, and that this commission is not a pretence of authority, even under the law of nations establishing and recognizing privateers for struggling communities. It is nothing but an authority from one citizen of the United States to another citizen of the United States to prey upon the property of the United States.
There are, if the Court please, some political considerations which were, it appears to me, more appropriately urged by my learned friend, Mr. Larocque, in his first address to the Jury, than in his argument to the Court. The point made by him was this—that, under the Constitution of the United States, every citizen of every State held what was called the position of divided allegiance, having two sovereign masters over him; that they were equal and co-ordinate sovereigns; and that it was his duty to obey both of them. Now, with the necessary limitation that each one is sovereign over him in some respects, and has not the least power over him in others, and that the other is sovereign over him in other respects, and does not include the first topic or line of duty, there is a speculative support for this general notion. And, whenever it is not urged into any absurd consequences, it serves, in the language of the Courts and of public men, to describe the complex Government under which we live. But, if my learned friend means to assert that there are, under the Government of the United States, according to its form and method of organic operation, two equal sovereigns over every citizen on the same subjects, why then he has flown in the face of a fundamental proposition, coming from higher authority than the Convention of 1790—that no man can serve two masters. It is not in the nature of things that there can be two sovereigns having equal rights and authority over one subject; and my learned friend illustrates the absurdity of the proposition when he comes to consider what would be the result if the two sovereigns should disagree. He says it is the duty of the subject to adhere to one side or the other; that, it being his complete duty to adhere to one side, the other side cannot complain of it as a breach of duty that he does not adhere to him, but to the other; and that, therefore, the general rule, that when you have a sovereign and are unfaithful to him you may be hanged, cannot apply to the case, because you would, in either case, be hanged. And his wise, and suitable, and certainly humane solution of this difficulty is, that when one of the sovereigns indicts you for treason, it is a good bar to say you elected in good faith to serve the other sovereign. Thus, so far from there being two sovereigns, the nature of the term sovereign including the right to hang you for unfaithfulness, there is not one that has the right to hang you, and you are master of both; for, whatever you do in good faith is a supreme answer to both.
Now, if the Court please, this is the point of the whole thing—that, under this peculiar Constitution of ours, and under this division of the subjects of Government, each sovereign is judge of when the other has passed the limits of his authority, and that the States possess the right to compel the obedience of their citizens, and the United States possess the right to compel the obedience of their citizens. It is sufficient for us to say that we represent, as Federal citizens, the Government of the United States in its interpretation of its own position towards those its citizens, or those persons not its citizens, who are alleged to have perpetrated crimes against its commerce; and, whether there be, or not, speculations of political and theoretical and ethical and conscientious right, in good faith, to put yourself at variance with the Government of the United States because other people do so, or because the State authority does so, it follows that the United States, its authorities, its Courts, and its population, have the right to think, and feel, and act, as if its Government were in the right and you were in the wrong; and you, being brought within the criminal justice of their law, can find no support and no protection upon the good faith or upon the speculative political theories upon which you have rested for your protection and for your authority.
It is said, that outside of this question of the political and legal qualifications of this act which we say is criminal, the circumstances, actual and moral, which surround these actors, and are shown by their actions, have deprived their acts of the criminal quality which the statute affixes to them; and that if, in good faith, they thought there was a commission, and in good faith thought there was a rightful Government, that good faith, which has despoiled the American merchant of his property, is a plea in bar to the criminal jurisdiction of the United States of America, whose laws they have violated, although all this pretence, all this show, all this form of political and legal support qualifying their acts, comes from men whom the Constitution pronounces to be in the category of rebels and traitors, every one of them amenable to the final jurisdiction of our laws. This is but another form of saying that criminals joining hand in hand shall go unpunished. Make the number of them what you will, if in the eye of the law they assume authority which is on its face criminal and illegal, and even though it is a part of a general scheme and organization for violent military resistance to the authority of the country, no Court can dispense from the punishment, but must inflict it through the general and ordinary criminal authority in respect to the crime in question, leaving the question of dispensation to the clemency, the humanity, and the policy of the Government.
I believe that all the cases have been cited, either on the one side or the other, from the Reports of the Supreme Court of the United States, that have had to do with the question as to the political character of the revolted South American States. Those which were cited by my learned friend, Mr. Larocque,The Josefa Segunda(5Wheaton, 338),The Bello Corunnes(6Wheaton, 152), andThe Santissima Trinidad(7Wheaton, 283), are all authorities, as we suppose, for the view which the Courts adopt, even when they are Courts of a neutral nation—that they follow the decisions of their Government as to the public quality and character of belligerents.
Adjourned to Monday, 28 Oct., at 11 o'clock, A.M.
FIFTH DAY.
October 28, 1861.
ARGUMENT OF MR. DUKES FOR THE DEFENCE.
Mr. Evartssaid: Perhaps it is unnecessary that I should say to the Court and learned counsel, that I shall refer to the Statute of treason, as well as to the Constitutional provision as to treason. The Statute of treason is found in the first section of the Crimes Act of 1790.
Mr. Dukessaid:
May it please your honors and gentlemen of the Jury.
It has been said by one of the most eminent statesmen that ever lived, that "civil wars strike deepest into the manners of the people,—they vitiate their politics; they corrupt their morals; they pervert the natural taste and relish of equity and justice."
If this be so, one would think that this was a singularly unfortunate time for the Government to bring on the trial of these prisoners at your bar, who are entitled to that right which the Constitution offers to the meanest citizen—that of a fair and impartial trial.
Is it to obtain that fair and impartial trial that the case is brought on now, when the flame of civil war lights the land, and when, in every stage and condition of society, the bitterest sentiments of hostility prevail?
Is it in order to afford the prisoners a fair and impartial trial that the case is brought on now, when tender infancy and gentle woman unite with stern and selfish man in uttering the deepest imprecations on their enemies?
Is it in order to obtain a fair and impartial trial that the case is brought on now, when, on God's holy day, in his holy temple, his chosen ministers officiating at his holy altar, utterly unmindful of the injunction of their meek and lowly Master, "to forgive their enemies, and to pray for those who despitefully use them"—offer up to Heaven prayers for its severest vengeance upon the heads of their enemies?
If so, gentlemen, I beg at least, (as one of the counsel,) to offer my dissent.
It does, indeed, seem to me that this is a singularly unfortunate time to bring on this trial. But yet, gentlemen, I feel buoyed up with hope, because I know the unbending integrity of the Judges that officiate, and I know that the Jury, which sits in judgment over the lives of these men, is chosen from the citizens of New York—a city in which, if any city in the world possesses large, liberal, and enlightened views, we may hope to find them. But, still, the officers of the Government must excuse me for saying that I think it unfortunate, and somewhat illiberal in them, considering the character of the charge made against these men, to try them now. It does seem to me that it is, at best, but trying treason with an odious name.
Gentlemen, this is no new thing. Years ago this very question, as to the propriety of trying men situated as these men are, was brought before the mind of that liberal and enlightened statesman, Edmund Burke—the long-tried and faithful friend of America; and I trust that I may be pardoned for referring to his words on this occasion, and for reading to you a passage from his celebrated letter to the Sheriffs of Bristol, in 1777, which, perhaps, will more fully illustrate my views than anything I can say. Speaking about American privateersmen, then in the same position as these men now are, he says:
"The persons who make a naval warfare upon us, in consequence of the present troubles, may be rebels; but to treat and call them pirates is confounding, not only the natural distinction of things, but the order of crimes; which, whether by putting them from a higher part of the scale to the lower, or from the lower to the higher, is never done without dangerously disordering the whole frame of jurisprudence."Though piracy may be, in the eye of the law, a less offence than treason, yet, as both are, in effect, punished with the same death, the same forfeiture, and the same corruption of the blood, I never would take from any fellow-creature whatever any sort of advantage which he may derive to his safety from the pity of mankind, or to his reputation from their general feelings by degrading his offence, when I cannot soften his punishment."The general sense of mankind tells me, that those offences which may possibly arise from mistaken virtue are not in the class of infamous actions."Lord Coke, the oracle of the English law, conforms to that general sense, where he says, 'That those things which are of the highest criminality may be of the least disgrace.'* * * * *"If Lord Balmerine, in the last rebellion, had driven off the cattle of twenty clans, I should have thought it would have been a scandalous and low juggle, utterly unworthy of the manliness of an English judicature, to have tried him for felony as a stealer of cows."Besides, I must honestly tell you that I could not vote, or countenance in any way, a statute which stigmatizes with the crime of piracy these men, whom an Act of Parliament had previously put out of the protection of the law."When the legislature of this Kingdom had ordered all their ships and goods, for the mere new-created offence of exercising trade, to be divided as a spoil among the seamen of the navy—to consider the necessary reprisal of an unhappy, proscribed, interdicted people as the crime of piracy, would have appeared, in any other legislature than ours, a strain of the most insulting and unnatural cruelty and injustice. I assure you, I never remember to have heard any thing like it, in any time or country."
"The persons who make a naval warfare upon us, in consequence of the present troubles, may be rebels; but to treat and call them pirates is confounding, not only the natural distinction of things, but the order of crimes; which, whether by putting them from a higher part of the scale to the lower, or from the lower to the higher, is never done without dangerously disordering the whole frame of jurisprudence.
"Though piracy may be, in the eye of the law, a less offence than treason, yet, as both are, in effect, punished with the same death, the same forfeiture, and the same corruption of the blood, I never would take from any fellow-creature whatever any sort of advantage which he may derive to his safety from the pity of mankind, or to his reputation from their general feelings by degrading his offence, when I cannot soften his punishment.
"The general sense of mankind tells me, that those offences which may possibly arise from mistaken virtue are not in the class of infamous actions.
"Lord Coke, the oracle of the English law, conforms to that general sense, where he says, 'That those things which are of the highest criminality may be of the least disgrace.'* * * * *
"If Lord Balmerine, in the last rebellion, had driven off the cattle of twenty clans, I should have thought it would have been a scandalous and low juggle, utterly unworthy of the manliness of an English judicature, to have tried him for felony as a stealer of cows.
"Besides, I must honestly tell you that I could not vote, or countenance in any way, a statute which stigmatizes with the crime of piracy these men, whom an Act of Parliament had previously put out of the protection of the law.
"When the legislature of this Kingdom had ordered all their ships and goods, for the mere new-created offence of exercising trade, to be divided as a spoil among the seamen of the navy—to consider the necessary reprisal of an unhappy, proscribed, interdicted people as the crime of piracy, would have appeared, in any other legislature than ours, a strain of the most insulting and unnatural cruelty and injustice. I assure you, I never remember to have heard any thing like it, in any time or country."
Gentlemen, I read this extract because it is the testimony of an eminently wise man, and an eminently just one. Such were his views at that day, and I am inclined to believe that those words spoken by him then have a better application to the state of things at present than any remarks I can make, or that can be made by any one of us who are in the midst of this whirl of excitement.
But, gentlemen, the Government has chosen to make the issue. It was at liberty to do so; and that issue is piracy.
Piracy, gentlemen of the Jury, you have heard defined by the eminent counsel who preceded me. The parties here occupy, as it were, a two-fold capacity. The eighth section of the Act of 1790 applies to piracy under the common law; the ninth section of that Act creates what we have called statutory piracy. The eighth section of the Act only alludes to piracy as it is acknowledged under the law of nations, and as known to the common law. The ninth section, however, differs from the eighth, because it applies peculiarly to citizens of the United States, and is supposed to be more enlarged in its character than the eighth section. Now, with reference to a portion of the prisoners here,—to those who are not citizens,—eight of them come entirely under the eighth section; and we shall contend that, under that section, they cannot be convicted. As regards the other four, it will be contended, that not only are they embraced by the first, but likewise by the second of these sections—that of statutory piracy, which applies peculiarly to them.
Well now, gentlemen, in regard to the eighth section, the learned counsel who very ably addressed the Court on last Saturday, stated that intent had little or nothing to do with the offence; that he did not choose to be held to theanimus fruendi, but that the charge was theanimus furandi, and that when a person committed robbery it was but of very little consequence to what purpose he applied the proceeds of the robbery, or for whom he committed it. Now, with all due deference to the learned counsel, I think this is putting the case rather unfairly, because he is quietly assuming the very point we are discussing; for it is the fact of theanimus furandi—the fact whether or not this is robbery—that we are discussing.
We have distinctly said, and shown by the books, that that which he says is not the characteristic of the crime, is really its characteristic, and that intent in this, as in every other offence, peculiarly constitutes the crime.
It is just because the taking is not for the party himself—is not an appropriation for his own purpose, and for his own ends, and for his own object, that there is a difference between piracy and privateering. And why is this so? Because the party who goes forth on a privateering expedition, goes forth under the sanction of a nation. It may be a nation onlyde facto, but still it is a nation. He goes by the authority of that nation, armed with a commission under its sanction, after having given the most ample security to be responsible to the nation itself for any act of misconduct on his part; that nation holding itself out to the civilized world as responsible for every excess on the part of the citizen to whom it grants letters of marque. Well, gentlemen, the taking of property on the part of the privateer is not for himself. The taking is in the name of the State. The title which the privateer has in the captured property is no title at all, nor does he pretend to claim it. The title is in the State, and up to the very moment of condemnation, although the property may have been acquired by his blood, and by his treasure, the State has the right to release it. So important is this fact of intention, as entering into the transaction, that it has been held that no excess on the part of a person carrying letters of marque from a regular Government could be punished as piracy—the Government being liable, and he himself being referred to his own Government for punishment.
It has been even held in England, that where the act of taking a commission from a foreign prince was so unlawful in its character as to amount under the law to a felony, yet still the party having letters of marque, should not be charged with piracy.
Now, gentlemen, there was an attempt made by the learned counsel to cast odium upon privateering and upon this transaction, by speaking of these men as going out for their own plunder. Well, I have nothing to say about that; but there is one thing to be remarked: that in times of hostility the plunder does not belong to one side, nor does it belong to the privateersman alone, but the regularly armed vessels of every nation in the world, as well as privateersmen, are enriched by the capture of prizes at sea; and I suspect that the members of the bar now present can tell you how extensively our own navy has been enriched within the last few weeks by the condemnation of prizes. If the spoils derived from enemies' property be plunder, and if it be disgraceful to take it, then the highest names in England have been associated with such plunder, for you have but to look into the English books to find the name of the great and distinguished Arthur, Duke of Wellington, as connected with such cases.
But, gentlemen, there is another thing which would prevent the parties from being convicted of piracy, that is, the state of enmity existing between the two nations. It is a general rule that enemies can never commit piracy against each other, their depredations being deemed mere acts of hostility. This is as far back as the days of Lord Coke; and the rule has been carried so far as to protect the citizen of one of the belligerents, who, without any letter of marque at all, goes on the ocean and seizes the property of the enemy. It is true, it has been said that in such cases citizens act at their peril, and are liable to be punished by their own sovereign; but the enemy is not warranted in considering them as criminals.
That the people of the Confederate States, under whose commission these men have acted, stand in the light of enemies, the learned decisions of Judges Cadwalader and Betts; the blockade of the Southern ports, which is a hostile measure; the confiscation of the property of their citizens—not only of the property of the men who have arms in their hands, but of the citizens at large; the captures at sea; the vessels condemned here; the virtual dissolution of partnerships; the admission of the plea of alien enemy; the President's proclamation of non-intercourse; the arrest of citizens of those States returning from Europe; and the opinion of my learned friend, the District Attorney himself, showing that it is treason for the banks here to pay over the bank balances to Southern customers,—all these things go to establish, thoroughly and sufficiently, the condition of enmity or hostility, which forms a protection to these parties. They fix the status of war; they decide that the two powers are enemies, and that, too, without any declaration of war, for no declaration of war is needed. It seems to me that it is all useless to attempt to evade the admission that there is war. We cannot by legal enactments—we cannot by judicial decisions—we cannot by Presidential Proclamations—establish the condition of war and all the consequences of war, and yet shrink from its open avowal. And yet that is precisely what is attempted here. It may do with those that are strong to oppress their own subjects, but it will not do when you come to deal with foreign nations. When you come to deal with these eight men who are here, the subjects of foreign powers, those powers have a right to put in a word. Gentlemen, it is impossible for this Government to do less than acknowledge that, in fact, there is a state of hostility; and you may as well call it by its proper name—we are in the midst of war.
It will not do for the Government, like the ostrich, to put its head under its wing, and fancy that because it sees nobody, nobody sees it. The Government has enacted all the consequences of war without making an open or decided declaration of it. Under such circumstances, however, the status of enmity is sufficiently fixed to protect the prisoners.
But there is another test of piracy, gentlemen, and it is this—Is the privateer a universal enemy? Is he a universal plunderer? Is his hand against every man? Has he not a nation?
Now a pirate has no nation. He is an outlaw, and is justiciable everywhere. His is the law of might—
"For why? Because the good old ruleSufficeth him: the simple planThat they should take who have the power,And they should keep who can."
"For why? Because the good old ruleSufficeth him: the simple planThat they should take who have the power,And they should keep who can."
"For why? Because the good old rule
Sufficeth him: the simple plan
That they should take who have the power,
And they should keep who can."
But it is not necessary that the nation under whose commission he acts, shall be one which is already established and acknowledged among the family of nations. It may be a colony struggling for independence, and not yet recognized by the nations of the earth. Our own Courts years ago decided this case with a liberality which has eminently distinguished them, and established the principle in respect to the South American colonies—colonies at that time not acknowledged by our Government as independent nations.
So, gentlemen, it was with regard to the powers of Europe during the days of the American Revolution. Every power in the world respected the letters of marque issued by Congress; and if there is an instance of a single case in which, in any land in the civilized world, there was a criminal trial of an American privateersman, I have not been able to find it. Their letters of marque were recognized because they were the letters of ade factoGovernment.
Now, gentlemen, what are the tests sufficient to form such a nationality as will cover these commissions? Are the Confederate States, in this instance, competent to maintain the relations of war and of peace? Gentlemen, if the South American provinces were, I think it can hardly be disputed that the people of ten great States like these certainly are. They are very far beyond them in civilization, in information, in wealth, and in all the means by which nations sustain their independence.
So important, however, is the fact of a commission, that even a commission from the Barbary powers—states which subsisted entirely, I may say, by plunder and piracy—was regarded as sufficient, in the Courts of England, to protect an Algerine who was taken with letters of marque. And that opinion comes with the authority of one of the greatest masters of the science of jurisprudence—Sir William Scott—a name that can never be mentioned without feelings of reverence by any man who respects the sentiments of justice and their application to the principles of international law. In the case I allude to, the Barbary subject was taken in an attempt to seize an English vessel. The crew was composed of foreigners, men of different nations, most of them belonging to Spain and France. It was held that as to all the rest of the parties they should be treated as outlaws, but the Algerine was allowed the plea ofrespondeat superior. In other words, he had but to point to his country, and say she was responsible; that she gave him authority, and assumed the responsibility; and upon that plea he was allowed to go. I mention this to show how far the doctrine has been carried.
But, gentlemen, if the commission from a Governmentde factogenerally is a plea in bar (and that it is, I have no doubt the Court will charge you), it certainly holds good in a case of this kind, where the authority is much less questionable. Now, are the United States bound to recognize the Confederate States as belligerents? Not as an independent nation,—that is an entirely different question. We say, gentlemen, not only that the United States are bound to recognize the Confederate States as belligerents, but we think we have shown that they have done so. The capitulation between Commodore Stringham, General Butler, and Commodore Barron, recognized the existence of a state of war, and recognized the prisoners as prisoners of war; and not one word has been said, and not one act done, by the Government, to disavow their authority in so doing. It is the principle of civilized nations—and we belong to the family of civilized nations—to recognize parties, even in the midst of civil war, as belligerents; and this country is too just, too powerful, and too elevated in sentiment, to shrink from that which civilization, decency and honor compel her to stand to. She must recognize even those who are her children—struggling against her authority though they be—as fair and honest antagonists. From the time of our own struggle, in the days of the Revolution, we professed the principles of international law. They are now a part of the law of the land. There is a moral obligation upon us to occupy our position in the great family of nations; to hold it, as we have always done, with honor and with distinguished consideration. Sorry, indeed, would I be to think that there should be, on this occasion, any eminent departure from it, as there certainly would be if these men were held in any other light than as mere privateersmen, and not pirates.
But if these principles are true, as applying between the people of this country and the people of England during the days of the Revolution,—if the mother country then considered us as belligerents where there could be no subtle political question such as may be raised here, and has already been raised—the doctrine of the two sovereignties,—there is then, at least, a reason which applies in this case, and never could have applied in that case; for the allegiance of the colonies to the mother country was firm, fixed, and undivided: it never was, and never could be, questioned.
I say, then, that these parties are not pirates; and I further say that the municipal laws of a State, or of a number of States, cannot constitute that offence to be piracy which is not so characterized by international law; and for this principle I refer to 1st Phillimore, 381 (International Law).
I come now to the 9th section, and I will read that section: