"A civil war breaks the bands of society and government, or at least it suspends their force and effect. It produces in the nation two independent parties, considering each other as enemies, and acknowledging no common judge. Therefore, of necessity, these two parties must, at least for a time, be considered as forming two separate bodies—two distinct people. Though one of them may be in the wrong in breaking up the continuity of the State—to rise against lawful authority—they are not the less divided in fact. Besides, who shall judge them? On earth they have no common superior. Thus they are in the case of two nations who, having dispute which they cannot adjust, are compelled to decide it by force of arms."
"A civil war breaks the bands of society and government, or at least it suspends their force and effect. It produces in the nation two independent parties, considering each other as enemies, and acknowledging no common judge. Therefore, of necessity, these two parties must, at least for a time, be considered as forming two separate bodies—two distinct people. Though one of them may be in the wrong in breaking up the continuity of the State—to rise against lawful authority—they are not the less divided in fact. Besides, who shall judge them? On earth they have no common superior. Thus they are in the case of two nations who, having dispute which they cannot adjust, are compelled to decide it by force of arms."
First clause in sec. 294:
"Things being thus situated, it is evident that the common laws of war, those maxims of humanity, moderation and probity which we have before enumerated and recommended, are, in civil wars, to be observed on both sides. The same reasons on which the obligation between State and State is founded, render them even more necessary in the unhappy circumstance when two incensed parties are destroying their common country. Should the sovereign conceive he has a right to hang up his prisoners as rebels, the opposite party will make reprisals; if he does not religiously observe the capitulations and all the conventions made with his enemies, they will no longer rely on his word; should he burn and destroy, they will follow his example; the war will become cruel and horrid; its calamities will increase on the nation."
"Things being thus situated, it is evident that the common laws of war, those maxims of humanity, moderation and probity which we have before enumerated and recommended, are, in civil wars, to be observed on both sides. The same reasons on which the obligation between State and State is founded, render them even more necessary in the unhappy circumstance when two incensed parties are destroying their common country. Should the sovereign conceive he has a right to hang up his prisoners as rebels, the opposite party will make reprisals; if he does not religiously observe the capitulations and all the conventions made with his enemies, they will no longer rely on his word; should he burn and destroy, they will follow his example; the war will become cruel and horrid; its calamities will increase on the nation."
Remember you are an American Jury; that your fathers were revolutionists; that they judged for themselves what Government they would have, and they did not hesitate to break off from their mother Government, even though there were penalties of statutes with which they were threatened. And remember, also, that from the beginning of your fathers' revolution, they claimed that they were not liable to the treatment of offenders against British statutes, but that the Colonies were a nation, and entitled to belligerent rights—one of which was, that if any of their army or navy fell into the hands of the British army, they should be held as prisoners of war.
Your fathers never admitted that thecontinental armywere liable to punishment with thehalter, if taken prisoners.
To be sure, the statute of Great Britain, literally construed, so provided, but the law of nations had supervened, and rendered that statute no longer applicable. Vindicate your respect for your fathers' claims, by extending the same immunities to the prisoners at the bar, whose situation is analogous to that of our fathers.
At the commencement of the Revolution, preceding the Declaration of Independence in 1776, the Colonies became each a separate sovereignty. That became thestatus, with some, without documentary declaration to that effect; but most of them have left on record positive enunciations of their assumption of independence and sovereignty as States, unconnected with the proceedings of any other State.[4]They entered into a Confederation as independent States, declaring, however, distinctly, in a separate article, that each State retained its own sovereignty, freedom, and independence, and every power of jurisdiction and right not expressly delegated to the United States in Congress assembled. And at the close of the war, when the treaty of peace was made, recognizing the independence of the Colonies, each State was named individually. I have never been able to discover when and where, since that period, any State has surrendered its sovereignty, or deprived itself of its right to act as a sovereign. The Constitution suspends the exercise of some of the functions of sovereignty by the States, but it does not deprive them of their power to maintain their rights as sovereigns, when and how they shall think best, if that Constitution shall, in their judgment, be broken or perverted as a delegated trust of power.
Listen, therefore, to the better voices whispering to each heart. Remember, the honor and consistency of the United States are involved in this case. By a conviction of the defendants, you condemn the Revolution of your ancestors; you sustain the theories of the worst courtiers who surrounded George III. in his war to put down the rebellion; you will appear to the world as stigmatizing revolutionists with the names of outlaws and pirates, which is the phraseology applied to them by Austria and Russia; you will violate the law of nations; you will appear to be merely wreaking vengeance, and not making legitimate war; you will henceforth preclude your nation from offering a word of sympathy to people abroad who may be struggling for their independence, and who have heretofore always turned their hearts to you. You can never—having punished your revolutionists on the gallows—send an invitation to the unfortunate champions of independent Government in the old world. Kossuth will reply: The American maxim is that of Francis Joseph, and of Marshal Haynau. You cannot say "Godspeed!" to Ireland, if she shall secede. No! as you love the honor of your country, and her place among nations, refuse to pronounce these men pirates.
Tell your Government to wage manly, open, chivalric war on the field and ocean, and thus or not at all; that dishonor is worse even than disunion. Stain not your country's hand with blood. If I were your enemy, I would wish no worse for your names, than to record your verdict against these prisoners. Leave no such record against your country in her annals; and when the passions of the hour shall have subsided, your verdict of acquittal of Thomas H. Baker and the other defendants herein, will be recalled by you with satisfaction, and will receive the approval of your countrymen.
ARGUMENT OF MR. DAVEGA.
May it please your Honors: Gentlemen of the Jury:
On the 25th of June last, when the startling intelligence was announced in our daily papers of the capture of the so-calledPirates of the Savannah, our community was thrown into afuroreof excitement. Every one was anxious to get a glimpse of the "monsters of the deep," as they were carried manacled through our streets. Some expected to see in Captain Baker a "counterfeit presentment" of the notorious Captain Kidd; others expected to trace resemblances in Harleston and Passalaigue to Hicks and Jackalow; but what was their surprise when they discovered, instead offiendsin human shape, gentlemen of character, intelligence, refinement, and education! Captain Baker is a native of the Quaker City, Harleston and Passalaigue of the State of South Carolina,—all occupying the best positions in society, and respectably connected. The father of Harleston was educated in one of our Northern universities, and, by a strange coincidence, one of his classmates was no less a person than the venerable and distinguished counsel who now appears in behalf of his unfortunate son. (The counsel directed his eyes to Mr. Lord.) Another strange coincidence in the case is, that twelve men are sitting in judgment upon the lives of twelve men, and these men "enemies of the country, enemies of war," and as such are entitled to the rights of prisoners of war.
They do not belong to your jurisdiction; their custody belongs exclusively to the military and not the civil power. Instead of being incarcerated as felons, in the Tombs, they should have been imprisoned in Fort Lafayette, as prisoners of war. They are your enemies to-day; they were your friends yesterday. It is no uncommon occurrence that when two men engage in a quarrel, ending in a fierce combat, they are afterwards better friends than they were before; the vanquished magnanimously acknowledging the superiority of the victor, and the victor in return receiving him kindly. And so, gentlemen, I hope the day is not far distant when the Stars and Stripes will float in the breeze upon every house-top and every hill-top throughout the length and breadth of our glorious Republic: then shall we establish the great principle, for which our forefathers laid down "their lives, their fortunes, and their sacred honor," that this is a Government of consent, and not of force; and "that free governments derive their just powers from the consent of the governed."
In this case some of the gravest and most complicated questions of political and international jurisprudence are involved.
The learned counsel who have preceded me have so fully and ably argued the political questions involved, that it would be the work of supererogation for me to go over them; but in this connection it is not inappropriate to refer to the fact that political opinions instilled into the minds of the prisoners may have influenced their conduct. They were indoctrinated with the principles of political leaders who advocated States' Rights, Nullification, and Secession; and without undertaking to justify or approve the soundness or correctness of their views, it is enough for me to show that the prisoners at the bar were actuated by these principles. The name of John C. Calhoun wasoncedear to every American; his fame is now sectional. Every Southerner believes implicitly in his doctrines; his very name causes their bosoms to swell with emotions of pride; his works are political text books in the schools. It has been facetiously said that when Mr. Calhoun took a pinch of snuff, the whole State of South Carolina sneezed. I do not mean to treat this case with levity, but merely intend to show the sympathy that existed between Mr. Calhoun and his constituents. Then what is the "head and front of their offending"? They conscientiously believed thatallegiancewas due to their State, and she in return owed them protection; and under such convictions enlisted in her behalf. If they have erred, it was from mistaken or false notions of patriotism, and not from criminality. It is theintentthat constitutes the crime. And this is the only just rule that should obtain inhumanas well asdivinetribunals.
The prisoners at the bar stand charged with the offence of piracy. I contend that they do not come within the intention and purview of the statute against piracy. To understand and properly interpret a law, we must look to the intention of the legislator, and the motives and causes which give rise to the enactment of the law. In the construction of a will, the intention of the testator is to be ascertained; and the same rules apply in the just interpretation of every law. These laws were enacted at a period when peace and prosperity smiled upon this country. If they had been passed during Nullification in 1832, when the disruption of the Union was threatened, then we might reasonably infer that they were intended to apply to the existing state of affairs; so that the irresistible conclusion is, that they were applicable only to a state of peace, and not to a state of war.
The question then arises, Does a state of war exist? The learned counsel for the prosecution (Mr. Evarts), in an able and elaborate argument for the Government, when this question arose in the trial of prize causes, in the other part of this Court (when it was the interest of the Government to assume that position), demonstrated clearly, to my mind, that a state of war did exist, and confirmed his views by citations from the best authorities on international law.
Vattel, who ranks among the first of authors, and whose work on the law of nations is recognized by every enlightened jurist throughout the civilized world, defines "war to be that state, where a nation prosecutes its rights by force." That this is a nation no one will doubt; that it is prosecuting its rights can not be denied; and no one will doubt that it is using force upon a stupendous scale—requiring four hundred millions of dollars, and 500,000 men, with the probability of additional requisitions of men and treasure for a successful termination of this fratricidal war.
It may be said that this is a civil war. Admitting it to be so, the only distinction between this and an international war is, that the former is an intestinal war between the people, where the Republic is divided into two factions, and the latter is where two nations are opposed to each other. All the rules of civilized war, therefore, should govern equally, and it is to soften and mitigate the horrors of civil war that an exchange of prisoners is recognized.
I have endeavored to show that the prisoners at the bar are not guilty of piracy, as defined by the Acts of Congress; and if they are not guilty of municipal piracy, they are certainly not guilty of piracy by the law of nations. What is a pirate? He is defined to be an enemy of the human race—a common sea rover, without any fixed place of residence, who acknowledges no sovereign, no law, and supports himself by pillage and depredation. Do the prisoners come within the meaning of this definition? Did they not encounter a British vessel upon the high seas? Could they not have captured her? But, no, gentlemen of the Jury, as soon as they ascertained that she belonged to a nation in amity with theirs, they allowed her to depart in peace. With the permission of the Court, I would beg leave to refer to an authority entitled to high respect—the works of Sir Leoline Jenkins, 4th Institutes, p. 154, where this principle is laid down: "If the subjects of different States commit robbery upon each other upon the high seas, if their respective States be in amity, it is piracy; if at enmity, it is not, for it is a general rule that enemies never can commit piracy on each other, their depredations being deemed mere acts of hostility."
The prisoners were acting in good faith, by virtue of a commission under the seal of the Confederate States. It is said, by the learned counsel for the prosecution, that the prisoners were acting under the authority of a person named Jefferson Davis. This does so appear nominally, but it is virtually and actually a commission issuing from eight millions of people, who recognize and sanction it under the hand of their President and the seal of their Government—each one beingparticeps criminis, and each one being amenable to the laws of the country, and liable to the penalties of treason and piracy, if evenhanded justice is to be meted out.
I have not yet been able to perceive the distinction between this offence as committed upon sea or land, except that it is attended with more danger. Why, then, have not the prisoners captured by our armies, who are now in Fortress Monroe and Fort Lafayette, been brought to the bar of justice? Because the Government has come to the conclusion that it would be unwise, impolitic, and impracticable; our tribunals would be inadequate in the administration of the laws. But justice should be equal.
One of the learned Judges who charged the Jury in the case of the privateers who were tried in Philadelphia, has undertaken to establish the doctrine that rebellion is wrong, and that it is only justifiable when it acquires the form of a successful revolution. To analyze this doctrine, it means no more nor less than this: that that which was originally wrong, success makes right. To carry out the metaphor, a certain insect in its chrysalis state is the loathsome and detestable caterpillar, but when it assumes the form and variegated hues of the butterfly, it is glorious and beautiful to behold. With equal force of reason it might be said, that if the Father of his country had been unsuccessful in consummating our independence, his name, instead of going down to posterity in glory and honor, would have descended in infamy and disgrace to all succeeding generations. Such notions are unworthy of refined and enlightened civilization.
It was intimated by the learned District Attorney, in his opening remarks, that in the event of a conviction, the President would exercise the pardoning prerogative. Gentlemen, this is a delusion. I do not mean to insinuate that the learned counsel would willfully mislead you; for I am bound to admit, in all becoming candor, that the prosecution have acted with fairness and magnanimity highly creditable, and not in any manner inconsistent with theperformance of their arduousand responsible duties; but I do say that it should not have the slightest weight in your deliberations upon the important questions involved in this case. Is this a mere form—a farce? is your time, and the valuable time of the Court, to be consumed in the investigation of a long and tedious case like the present as a mere pastime? It is a reflection upon the good sense and intelligence of a Jury, for the Executive to exercise the pardoning power, except in special cases, where new evidence is discovered after conviction which may go to establish the innocence of the party so convicted.
Gentlemen of the Jury, you have a duty to perform that requires almost superhuman nerve and moral courage—requiring more prowess than to face the cannon's mouth. You have it in your power to prove to the nation, and to the whole civilized world, that in the administration of the criminal laws of the country, in a case involving the rights and interests of this Republic, before a Jury of New York citizens, that "justice can triumph over passion, and reason prevail over prejudice." If there is no other feeling which can influence your judgment, if you have no sympathy in common with these men, there is a sympathy you should have—a sympathy for those brave and valiant spirits who fought so nobly for the Union, the Constitution, and the enforcement of the laws, and who are now prisoners of war in the power of the enemy; and it would be expecting too much clemency from the hands of the enemy to suppose that they would allow the sacrifice of these men to go unavenged.
I repeat, you have a solemn duty to perform, and public opinion should not have the slightest influence upon your mind. You are to be governed by a "higher law;" a law based upon the sacred precepts of Holy Writ—its teachings emanating from God himself; and therein you are commanded to observe that golden rule, "Do unto others as you would that they should do unto you."
ARGUMENT OF JAMES T. BRADY, ESQ.
Mr. Bradyinquired of Mr. Evarts for what purpose he intended to refer to the statute against treason.
Mr. Evarts: Not in any other light than I have already referred to the doctrine of treason, to wit, that a party cannot be shielded from indictment for the crime of piracy by showing a warrant or assumed authority for acts which made out that his crime was treason; that showing a treasonable combination did not make out a warrant or authority for that which was piracy or murder.
Mr. Bradythen proceeded to address the Jury on behalf of the accused:
May it please the Court: Gentlemen of the Jury:
I feel quite certain that all of you are much satisfied to find that this important trial is rapidly drawing to a close; and I think it would be unbecoming in me, as one of the counsel for the accused, to proceed a step farther in my address to you without acknowledging to the Court the gratitude which we feel for their kindness in hearing so largely discussed the grave legal questions involved in this controversy; to the Jury, for their unvarying patience throughout the investigation; and to our learned opponents, for the frank and open manner in which the prosecution has been conducted. Our fellow-citizens at the South—certainly that portion of them who cherish affection for this part of the Union—will find in the course of this trial most satisfactory evidence that respect for law, freedom of speech, freedom of discussion, liberty of opinion, and the rights of all our countrymen, here exist to the fullest extent. All of us have heretofore been connected with interesting and exciting trials. I am warranted in saying that, considering the period at which this trial has occured, and all the facts and circumstances attending it, the citizens of New York have reason to be proud that such a trial could proceed without one word of acerbity, without one expression of angry feeling, or one improper exhibition of popular sentiment. At the same time, as an American citizen, loyal to the Union,—one who has never recognized as his country any other than the United States of America; who has known and loved his country by that name, and will so continue to know and love it to the end of his existence,—I deeply regret that, for any purpose of public policy, it has been deemed judicious to try any of these "piratical" cases, as they are denominated, at this particular juncture. I am not to assume that good reasons for such a proceeding have not in some quarters been supposed to exist; and I certainly have no right to complain of the officers of the law, charged with a high duty, who bring to trial, in the usual course, persons charged with crime. I have not a word to say against my friend the District Attorney, for whom I feel a respect I am happy to express; nor against his learned associate, Mr. Evarts, for whom I have high regard; nor our brother Blatchford, who always performs the largest amount of labor with the smallest amount of ostentation. Still I regret the occurrence of this trial at a time when war agitates our country; for, apart from all theories of publicists, all opinions of lawyers, for you or me to say that there is not a war raging between two contending forces within our territory, is to insult the common sense of mankind. A war carried on for what? What is to be its end, gentlemen of the Jury? This war to which you, like myself, and all classes and all denominations of the North have given a cheerful and vigorous support—pouring out treasure and blood as freely as water—what is it for? Not to look at the result which must come out of it is folly; and it is the folly that pervades the whole American people. Suppose it were now announced that the entire Southern forces had fled in precipitate retreat before our advancing hosts, and that the American flag waved over every inch of American soil—what then? Are we fighting to subjugate the South in the sense in which an emperor would make war upon a rebellious province? Is that the theory? Are we fighting to compel the seceded States to remain in the Union against their will? And do we suppose such a thing practicable? Are we fighting simply to regain the property of the Federal Government of which we have been despoiled in the Southern States? Or are we fighting with a covert and secret intention, such as I understand to have been suggested by an eloquent and popular divine, in a recent address to a large public audience, some of them, like himself, from the Bay State, "that Massachusetts understands very well what she is fighting for"? Is it to effect the abolition of slavery all over the territory of the United States? I will do the Administration the justice to say that, so far as it has given the country any statement of its design in prosecuting the war, it has repelled any such object as negro emancipation. Who can justify the absurd aspect presented by us before the enlightened nations of the Old World, when they find one commander in our army treating slaves as contraband of war; another declaring that they belong to their masters, to whom he returns them; and another treating them all as free. I am an American, and feel the strongest attachment to my country, growing out of affection and duty; but I cannot see that we present before the world, in carrying on this war, anything like a distinct and palpable theory. But I tell you, and I stand upon that prophecy, as embodying all the little intelligence I possess, that if it be a war for any purposes of mere subjugation—that if it be for the purpose of establishing a dictatorship, or designedly waged for the emancipation of all the slaves, our people never will sustain it at the North. (Applause, which was checked by the Court.)
You will see presently, gentlemen, why I have deemed it necessary, at the very outset, to speak thus of what I call a state of civil war,—a condition which, if the learned Judges on the bench, in their charge to you, shall, as matter of law, declare to have existed, then this commission, under which the acts charged in the indictment were perpetrated, forms an absolute legal protection to the accused. Whether such a war exists, is one of the great questions with which the Jury have to deal; and I understand that the Juryhaveto deal with this case—that they are not mereautomata—that we have not had twelve men sitting in the jury-box for several days as puppets.
The great question for this Jury, absorbing all others, is, Have the twelve men named in the indictment, or has either of them, committed piracy, and thus incurred the penalty of death? It is a very interesting inquiry, gentlemen,—interesting in its historical, national, judicial, and political aspects,—interesting, too, because of the character and description of the accused. We discover that eight of them are foreigners, who have never been naturalized, and do not judicially come under the designation of citizens of the United States. Four of them are what we call natural-born citizens—two from the State of South Carolina, one from North Carolina, and one from Philadelphia. Two of them are in very feeble health; and I am sorry to say, some are not yet of middle age—some quite young, including Passalaigue, who has not yet attained his eighteenth year. I know my fellow-citizens of New York quite well enough to be quite sure that even if there had been any exhibition of popular prejudice, or feeling, or fury, with a view to disturb their judgments in the jury-box, the sympathy that arises properly in every well-constituted heart and mind, in favor of the accused, their relatives and friends, would overcome any such wrong impulse as might be directed to deprive them of that fair trial which, up to this point, they have had, and which, to the end, I know they will have.
Are they pirates and robbers? Have they incurred the penalty of death? Gentlemen, it is a little curious, that during the present reign of Victoria, a statute has been passed in England softening the rigor of the punishment for piracy, and subjecting the person found guilty to transportation, instead of execution, unless arms have been used in the spoliation, or some act done aggravating the offence. I have used the term "pirate," and the term "robber." There is another which, strangely enough, was employed by a Judge of the Vice Admiralty Court in South Carolina, in 1718, who calls these pirates and robbers, as we designate them, "sea thieves;" and I am very glad to find that phrase, because the words robber and pirate have fallen into mere terms of opprobrium; while the word "thief" has a significance and force understood by every man. You know what you thought a "thief" to be, when a boy, and how you despised him; and you are to look at each prisoner mentioned in this indictment, and say, on your consciences as men, in view of the facts and of the law, as expounded by the learned Court, do you consider that the word "thief" can be applied to any one of the men whom I have the honor to assist in defending? That is the great practical question which you are to decide.
[Here Mr. Brady briefly alluded to the question of jurisdiction as already discussed fully enough, and made some observations on the Hicks case, which had been referred to. He then continued as follows:]
This indictment charges two kinds of offence: Piracy, as that crime existed by thelaw of nations,—which law may be said to have been incorporated into the jurisprudence of the United States,—and Piracyunder the ninth section of the Act of 1790. Piracy by the law of nations is defined by Wheaton, the great American commentator on international law, on page 184 of his treatise on that subject. "Piracy" says that eminent gentleman, who was an ornament to the country which gave him birth, and an honor to my profession, "Piracy is defined by the text writers, to be the offence of depredating on the seaswithout being authorized by any sovereign state,or with commissions fromdifferent sovereignsat war witheach other." The last part of the definition you need not trouble yourselves about as I only read it so as not to quibble the text. I will read the passage without the latter part. "Piracy is defined to be the offence of depredating on the seaswithout being authorized by any sovereign state." Other definitions will hereafter be suggested.
This leads me to remark upon certain judicial proceedings in Philadelphia against men found on board the Southern privateer "Jefferson Davis," and who were convicted of piracy for having seized and sent away as a prize the "Enchantress." Now my way of dealing with juries is to act with them while in the jury box as if they were out of it. I never imitate that bird referred to by the gentleman who preceded me—the ostrich, which supposes that when he conceals his head his whole person is hidden from view. I know, and every gentleman present knows, that a jury in the city of Philadelphia has convicted the men arrested on the "Jefferson Davis," of piracy. We are a nation certainly distinguished for three things—for newspapers, politics, and tobacco. I do not know that the Americans could present their social individualities by any better signs. Everybody reads the papers, and everybody has a paper given him to read. The hackman waiting for his fare consumes his leisure time perusing the paper. The apple-woman at her stall reads the paper. At the breakfast table, the dinner table, and the supper table, the paper is daily read. I sometimes take my meals at Delmonico's, and have there observed a gentleman who, while refreshing himself with a hasty meal, takes up the newspaper, places it against the castor, and eats, drinks and reads all at the same time. Gentlemen, I say that a people so addicted to newspapers must have ascertained that the men in Philadelphia were convicted; and how the jury could have done otherwise upon the charge of Justices Grier and Cadwalader I am incapable of perceiving. I have the pleasure of knowing both those eminent Judges. My acquaintance with Judge Cadwalader is slight, it is true, but of sufficient standing to ensure him the greatest respect for his learning and character. With Judge Grier the acquaintance is of longer duration; and as he has always extended to me in professional occupations before him courtesies which men never forget, I cannot but speak of him with affection. I have nevertheless something to say about the law laid down by those Judges on that case. No question on the merits was left to the jury, as I understand the instructions. The jurymen were told thatif they believed the testimony, then the defendants were guilty of piracy. Now, as to the aspect of this case in view of piracy by the law of nations, the question for the jury is, in the first place,Did these defendants, in the act of capturing the "Joseph," take her by force, or by putting the captain of her in fear,with the intent to steal her? That is the question as presented by the indictment, and in order to convict under either of the first five counts, the jury must be satisfied, beyond all reasonable doubt,that in attacking the "Joseph" the defendants were actuatedas described in the indictment, from which I read the allegation that they, "withforceandarms, piratically, feloniously, and violently, put the persons on board inpersonal fear and danger of their lives, and in seizing the vessel did, as aforesaid,seize,rob,stealand carry her away." In this the indictment follows the law. Another question of fact, in the other aspect of the case, under the ninth section of the act of 1790, will be, substantially,whether the existence of a civil war is shown. That involves inquiry into the existence of the Confederate States as ade factoGovernment or as ade jureGovernment.
Theanimus furandi, so often mentioned in this case, means nothing but the intent tosteal. The existence of that intent must be found in the evidence, before these men can be called pirates, robbers, or thieves; and whether such intent did or did not exist, is a question entirely for you.
To convict under the ninth section of the Act of 1790, the prosecution must prove that the defendants, being at the time of such offencecitizens of the United States of America, did something which by that Act is prohibited. You will bear in mind that the Act of 1790, in its ninth section, has no relation except to American-born citizens, and as to that part of the indictment the eight foreigners charged are entirely relieved from responsibility.
Well, on page 104, 5 Wheaton, in the case ofThe United Statesvs.Smith, the Jury found a special verdict, which I will read to illustrate what is piracy and what is not piracy.
[Here Mr. Brady commented on the case referred to, saying, amongst other things,—]
According to the evidence in the case of Smith, the defendants were clearly pirates. They had no commission from any Government or Governor, and were mere mutineers, who had seized a vessel illegally, and then proceeded to seize others without any pretence or show of authority, but with felonious intent. For these acts they were justly convicted.
Now, we say, that this felonious intent as charged against these defendants, must be proved. But what say my learned friends opposed? Why (in effect), that it need not be proved to a Jury by any evidence, but must beinferred, as a matter of law, or by the Jury first, from the presumption that every man knows the law; and these men, in this view, are pirates—though theyhonestly believed that there was a valid Government called the Confederate States, and that theyhad a right to act under it—because theyoughtto have known the law;oughtto have known that, although the Confederate States had associated for the purpose of forming, yet they had notcompleteda Government;oughtto have known that, though Baker had a commission signed by Jefferson Davis, the so-called President of the Confederate States, under which he was authorized to act as a privateer, yet the law did not recognize the commission.
There is, indeed, a rule of law, said to be essential to the existence of society, that all men must be taken to know the law, except, I might add, lawyers and judges, who seldom agree upon any proposition until they must.
The whole judicial system is founded upon the theory that judges will err about the law, and thus we have the Courts of review to correct judicial mistakes and to establish permanent principles. Yet it is true that every man is presumed to know the law; and the native of Manilla (one of the parties here charged),Loo Foo, or whatever his name may be, who does not, probably, understand what he is here for, is presumed to know the law as well as one of us. If he did not know it better, considering the differences between us, he might not be entitled to rate high as a jurist. One of my brethren read to you an extract from a recent German work, which presents a different view of this subject as relates to foreign subjects in particular cases. I was happy to hearMr. Mayeron the law of this case, more particularly as he declared himself to be a foreign-born citizen; for it is one of the characteristics of this Government—a characteristic of our free institutions—that no distinction of birth or creed is permitted to stand in the way of merit, come from what clime it may.
There is another presumption. Every man is presumed tointend the natural consequences of his own acts. Now, what are the natural consequences of the acts done by these defendants? The law on this point is illustrated and applied with much effect in homicide cases. Suppose a man has a slight contention with another, and one of the combatants, drawing a dagger, aims to inflict a slight wound, say upon the hand of the other; but, in the struggle, the weapon enters the heart, and the injured party dies. The man is arrested with the bloody dagger in his hand, the weapon by which death was unquestionably occasioned; and the fact being established that he killed the deceased, the law will presume the act to be murder, and cast upon the accused the burthen of showing that it was something other than murder. I hope, gentlemen, to see the day when this doctrine of law will no longer exist. I never could understand how the presumption of murder could be drawn from an act equally consistent with murder, manslaughter, justifiable or excusable homicide, or accident, but such is the law, and it must be respected.
I say, that neither of the defendants intended, as the ordinary and natural consequence of his act,to commit piracy or robbery, though what he did might, in law, amount to such an offence. He intended to take legal prizes, and no more to rob than the man in the case I supposed designed to kill.
The natural consequences of his acts were, to take the vessel and send her to a port to be adjudicated upon as a prize. Now, I state to my learned friends and the Court this proposition—that though alegal presumptionas to intent might have existed in this case if the prosecution had proved merely the forcible taking, yet if, in making out a case for the Government, any fact be elicited which shows that the actual intent was different from what the law in the absence of such fact would imply, the presumption is gone. And when the prosecution made their witness detail a conversation which took place between Captain Baker and the Captain of the Joseph, with reference to the authority of the former to seize the vessel, and when you find that Captain Baker asserted a claim of right, that overcomes the presumption that he despoiled the Captain of the Joseph with an intent to steal. Theanimus furandimust, in this case, depend on something else than presumption. I will refer you for more particulars of the law on this point, to1 Greenleaf on Evidence, sections 13 and 14, and I make this citation for another purpose. When an act is in itself illegal, sometimes, if not in the majority of cases, the law affixes to the party the intent to perpetrate a legal offence. But this is not the universal rule. In cases of procuring money or goods under false pretences, where the intent is the essence of the crime, the prosecution must establish the offence, not by proving alone the act of receiving, but by showing the act and intent; so both must be proved here. Now, I ask, has the prosecution entitled itself to the benefit of any presumption as to intent? What are the facts—the conceded facts? Baker, and a number of persons in Charleston, did openly and notoriously select a vessel called the "Savannah," then lying in the stream, and fitted her outas a privateer. Baker, in all of these proceedings, acted under the authority of a commission signed by Jefferson Davis, styling and signing himself President of the Confederate States of America. Baker and his companions then went forth as privateersmen, and in no other capacity, for the purpose of despoiling the commerce of the United States, andwith the strictest injunction not to meddle with the property of any other country. The instructions were clear and distinct on this head, as you know from having heard them read. They went to sea, and overhauled the Joseph; gave chase with the American flag flying—one of the ordinary devices or cheats practiced in naval warfare; a device frequently adopted by American naval commanders to whose fame no American dare affix the slightest stigma. On nearing the Joseph, the Savannah showed the secession flag, and Baker requested Captain Meyer to come on board with his papers. The Captain asked by what authority, and received for answer: "The authority of the Confederate States." The Captain then went on board with his papers, when Baker, helping him over the side, said: "I am very sorry to take your vessel, but I do so in retaliation against the United States, with whom we are at war." Baker put a prize crew on board the Joseph, and sent her to Georgetown; the Captain he detained there as a prisoner. She was then duly submitted for judgment as a prize. These are the facts upon which they claim that piracy at common law is established.
My learned associate, Mr. Larocque, cited a number of cases to show that though a man might take property of another, and appropriate it to his own use, yet if he did so under color of right, under abona fideimpression that he had authority to take the property, he would only be a trespasser; he would have to restore it or pay the value of it, but he could not be convicted of a crime for its conversion.
Let me state a case. You own a number of bees. They leave your land, where they hived, and come upon mine, and take refuge in the hollow of a tree, where they deposit their honey. They are your bees, but you cannot come upon my land to take them away; and though they are in my tree, I cannot take the honey. Such a case is reported in our State adjudications. But, suppose that I did take the bees and appropriate the honey to my own use: I might be unjustlyindictedfor larceny, because I took the property of another, but I am not, consequently, a thief in the eye of the law; the absence of intent to steal would ensure my acquittal.
That is one illustration. I will mention one other, decided in the South, relating to a subject on which the South is very strict and very jealous. A slave announced to a man his intention to escape. The man secreted the slave for the purpose of aiding his escape and effecting his freedom. He was indicted for larceny, on the ground that he exercised a control over the property of the owner against his will. The Court held that the object was not to steal, and he could not be convicted. InWheaton's Criminal Proceedings, page 397, this language will be found, and it is satisfactory on the point under discussion.
"There are cases where taking is no more than a trespass: Where a man takes another's goodsopenly before him, or where, having otherwise than byapparent robbery, possessed himself of them, heavows the factbefore he is questioned. This isonly a trespass."
"There are cases where taking is no more than a trespass: Where a man takes another's goodsopenly before him, or where, having otherwise than byapparent robbery, possessed himself of them, heavows the factbefore he is questioned. This isonly a trespass."
Now all these principles are familiar and simple, and do not require lawyers to expound them, for they appeal to the practical sense of mankind.It is certainly a most lamentable result of the wisdom of centuries, to place twelve men together and ask them, fromfictionsortheoriesto say, on oath, that a man is a thief, when every one of themknows that he is not. If any man on this Jury thinks the word pirate, robber or thief can be truly applied to either of these defendants, I am very sorry, for I think neither of them at all liable to any such epithet.
But, suppose that the intent is to be inferred from the act of seizing the Joseph, and the defendants must be convicted, unless justified bythe commission issued for Captain Baker; let us then inquire as to the effect of that commission. We say that itprotects the defendants against being treated as pirates. Whether it does, or not, depends upon the question whether the Confederate States have occupied such a relation to the United States of America that they might adopt the means of retaliation or aggression recognized in a state of war.
It is our right and duty, as advocates, to maintain that theConfederate Government was so situated; and to support the proposition by reference to the political and judicial history and precedents of the past, stating for these men the principles and views which they and their neighbors of the revolting States insist upon; our personal opinions being in no wise called for, nor important, nor even proper, to be stated at this time and in this place.
If it can be shown that the Confederate States occupy the same position towards the Government of the United States that the thirteen revolted Colonies did to Great Britain in the war of the Revolution, then these men cannot be convicted of piracy.
I do not ask you to decide that the Southern States had therightto leave the Union, or secede, or to revolt—to set on foot an insurrection, or to perfect a rebellion. That is not the question here. I will place before the Jury such views of law and of history as bear upon the case—endeavoring not to go over the ground occupied by my associates. I will refer you to a small book published here in 1859, entitled, "The History of New York from the Earliest Time," a very reliable and authentic work. In this book I find a few facts to which I will call your attention, one of which may be unpleasant to some of our friends from the New England States, for we find that New York, so far as her people were concerned—exclusive of the authorities—was in physical revolt against the parent Government long before our friends in New England, some of whom often feel disposed to do just what they please, but are not quite willing to allow others the same privilege. I will refer to it to show you what was the condition of things long before the 4th of July, 1776, and to show that, though we now hurl our charges against these men as pirates,—who never killed anybody, never tried to kill anybody,—who never stole and never tried to steal,—yet the men of New York city who committed, under the name of "Liberty Boys," what England thought terrible atrocities, in New York, were never touched by justice—not even so heavily as if a feather from the pinion of the humming bird had fallen upon their heads. I find that, about the year 1765, our people here began to grumble about the taxes and imposts which Great Britain levied upon us. And you know, though the causes of the Revolutionary war are set forth with much dignity in the Declaration of Independence, the contest originated about taxes. That was the great source of disaffection, directing itself more particularly to the matter of tea, and which led to the miscellaneous party in Boston, at which there were no women present, however, and where salt water was used in the decoction. I find that the governor of the city had fists, arms, and all the means of aggression at his command; but at length, happily for us, the Government sent over a young gentleman to rule us (Lord Monckford), who, when he did come, appears to have been similar in habits to one of the accused, who is described as being always idle. The witness for the prosecution explained that separate posts and duties were assigned to each of the crew of the Savannah; one fellow, he said, would do nothing. But he will be convicted of having done a good deal, if the prosecution prevail. A state of rebellion all this time and afterwards existed in this particular part of the world, until the British came and made themselves masters of the city. In the course of the acts then committed by the citizens, and which the British Government called an insurrection, a tumultuous rebellion and revolution, they offered, or it was said they offered, an indignity to an equestrian statue of George III. The British troops, in retaliation, and being grossly offended at the conduct of Pitt, who had been a devoted friend of the Colonists, mutilated the statue of him which stood on Wall street. The remains of the statue are still with us, and can be seen at the corner of West Broadway and Franklin street, where it is preserved as a relic of the past—a grim memento of the perfect absurdity of charging millions of people with being all pirates, robbers, thieves, and marauders.
When the British took possession of this city, they had atone time in custody five thousand persons. That was before any formal declaration of independence—before the formation of a Governmentde jureorde facto—and yet did they ever charge any of the prisoners with being robbers? Not at all. Was this from any kindness or humane spirit? Not at all: for they adopted all means in their power to overcome our ancestors. The eldest son of the Earl of Chatham resigned his commission, because he would not consent to fight against the colonies. The Government did not hesitate to send to Germany for troops. They could not get sufficient at home. The Irish would not aid them in the fight. The British did not even hesitate to employ Indians; and when, in Parliament, the Secretary of State justified himself, saying that they had a perfect right to employ "all the means God and nature" gave them, he was eloquently rebuked. Even, with all this hostility, such a thing was never thought of as to condemn men, when taken prisoners, and hold them outside that protection which, according to the law of nations, should be extended to men under such circumstances, even though in revolt against the Government.
In October, 1774, the King, in his Message to Parliament, said that a most daring spirit of resistance and disobedience to the laws existed in Massachusetts, and was countenanced and encouraged in others of his Colonies.
Now, I want you to keep your minds fairly applied to the point, on which the Court will declare itself, as to whether I am right in saying, that the day when that Message was sent to Parliament the Colonies occupied towards the old Government a position similar to that of the Confederate States in their hour of revolt to the United States. But we will possibly see that the Confederate States occupy a stronger position.
In the course of the discussion which ensued upon the Message, the famous Wilkes remarked: "Rebellion, indeed, appears on the back of a flying enemy, but revolution flames on the breastplate of the victorious warrior."
If an illegal assemblage set itself up in opposition to the municipal Government, it is a mere insurrection, though ordinary officers of the law be incapable of quelling it, and the military power has to be called out. That is one thing. But when awhole Stateplaces itself in an attitude of hostility to the other States of a Confederacy, assumes a distinct existence, and has the power to maintain independence, though only for a time, that is quite a different affair.
We remember how beautifully expressed is that passage of the Irish poet, so familiar to all of us, and especially to those who, like myself, coming from Irish ancestry, know so well what is the name and history of rebellion: