Now, you will have observed, gentlemen, in all this, that whatever may be the circumstances or the propositions of law connected with this case, that may change or qualify the acts and conduct of Mr. Baker, so far as the owners of this vessel and the owners of this cargo are concerned, there has been as absolute, as complete, as final and as perfect a deprivation of their property, as if there had been no commission—no public or other considerations that should expose them to having the act done with impunity. You will discover, then, that, so far as the duty of protection from this Government to its citizens and their property—so far as the duty of maintaining its laws and enforcing them upon the high seas—is concerned, there is nothing pretended—there is nothing, certainly, proved—that has excused or can excuse this Government, in its Executive Departments, in its Judicial Departments, in the declaration of law from the Court, or in the finding of facts by the Jury, from its duty towards its citizens and their property. And, while you have been led to look at all the qualifying circumstances that should attend your judgment concerning the act and the fact on the part of these prisoners, I ask your ready assent to the proposition, that you should look at the case of these sufferers, the victims of those men, whose property has been ventured upon the high seas in reliance on its safety against aggression, from whatever source, under the exercise of the authority of the Government to repel and to punish such crimes.
Before I go into any of the considerations which are to affect the relations of these prisoners to this alleged crime, and to this trial for such alleged crime, let us see what there are in the private circumstances particular to themselves, and their engagement in this course of proceeding, that is particularly suited to attract your favor or indulgence. Now, these men had not, any of them, been under the least compulsion, or the least personal or particular duty of any kind, to engage in this enterprise. Who are they? Four of them are citizens of the United States. Mr. Baker is, by birth, a citizen of the State of Pennsylvania; two are citizens, by birth, of the State of South Carolina, and one of North Carolina. The eight men, foreigners, are, three of Irish origin, two of Scotch, one a German, one a native of Manilla, in the East Indies, and one of Canton, in China. Now, you will observe that no conscription, no enlistment, no inducement, no authority of any public kind has been shown, or is suggested, as having influenced any of them in this enterprise. My learned friend has thought it was quite absurd to impute to this Chinaman and this Manillaman a knowledge of our laws. Is it not quite as absurd to throw over them the protection of patriotism—the protection of indoctrination in the counsels and ethics of Calhoun—to give them the benefit of a departure from moral and natural obligations to respect the property of others, on the theory that they must surrender their own rectitude—their own sense of right—to an overwhelming duty to assist a suffering people in gaining their liberty? What I have said of them applies equally to these Irishmen, this German, and these Scotchmen—as good men, if you please, in every respect, as the same kind of men born in this country. I draw no such national distinctions; but I ask what there is, in the sober, sensible, practical consideration of the motives and purposes with which these men entered into this enterprise to despoil the commerce of the United States, and make poor men of the owners of that vessel, that should give them immunity from the laws of property and the laws of the land, or form any part in the struggles of a brave and oppressed people, (as we will consider them, for the purpose of the argument), against a tyrannical and bloodthirsty Government?
No! no! Let their own language indicate the degree and the dignity of the superior motives that entered into their adoption of this enterprise: "We thought we had a right to do it, and we did it." Was there the glow of patriotism—was there the self-sacrificing devotion to work in the cause of an oppressed people, in this? No! And the only determination that these men knew or looked at, was the lawfulness of the enterprise, in respect of the sanctions and punishments of the law. They, undoubtedly, had not any purpose or any thought of running into a collision with the comprehensive power and the all-punishing condemnation of the statutes of the United States, whether they knew what the statutes were or not; but they did take advantage of the occasion and opportunity to share the profits of a privateering enterprise against the commerce of the United States; and they were unquestionably acquainted, either by original inspection or by having a favorable report made to them with the fundamental provision in regard to this system of privateering, so called. They knew that the entire profits of the transaction would be distributed among those who were engaged in it. Now, I am not making any particular or special condemnation of these men, (in thus readily, without compulsion, and without the influence of any superior motives, however mistaken, of patriotism,) beyond what the general principles of public law, and general opinion, founded on the experience of privateering, have shown to be the reckless and greedy character of those who enter upon private war, under the protection of any, however recent, flag. Every body knows it—every body understands it—every body recognizes the fact that, if privateers, who go in under the hope of gain, and for the purposes of spoliation, are not corrupt and depraved at the outset, they expose themselves to influences, and are ready to expose themselves to influences, which will make them as dangerous, almost, to commerce, and as dangerous to life, as if the purpose and the principle of privateering did not distinguish them from pirates. And, to show that, in this law of ours, there is nothing that is forced in its application to privateers—that there is nothing against the principles of humanity or common sense in the nation's undertaking to say, We will not recognize any of those high moral motives, any of this superior dignity, about privateers; we understand the whole subject, and we know them to be, in substance and effect, dangerous to the rights of peaceful citizens, in their lives and their property,—reference need only be had to the action of civilized Governments, and to that of our Government as much as any, in undertaking to brush away these distinctions, wherever it had the power—that is my proposition—wherever it had the power to do so. And I ask your Honors' attention to the provision on this subject, in the first treaties which our Government—then scarcely having a place among the nations of the earth—introduced upon this very question of piracy and privateers. I refer to the twenty-first article of the Treaty of Commerce with France, concluded on the 6th of February, 1778, on page 24 of the eighth volume of the Statutes at Large. This is a commercial arrangement, entered into by this infant Government, before its recognition by the Throne of Great Britain, with its ally, the most Christian Monarch of France:
"No subjects of the Most Christian King shall apply for or take any commission or letters of marque, for arming any ship or ships to act as privateers against the said United States, or any of them, or against the subjects, people or inhabitants of the said United States, or any of them, or against the property of any of the inhabitants of any of them, from any Prince or State with which the said United States shall be at war; nor shall any citizen, subject or inhabitant of the said United States, or any of them, apply for or take any commission or letters of marque for arming any ship or ships, to act as privateers against the subjects of the Most Christian King, or any of them, or the property of any of them, from any Prince or State with which the said King shall be at war; and if any person of either nation shall take such commissions or letters of marque, he shall be punished as a pirate."
"No subjects of the Most Christian King shall apply for or take any commission or letters of marque, for arming any ship or ships to act as privateers against the said United States, or any of them, or against the subjects, people or inhabitants of the said United States, or any of them, or against the property of any of the inhabitants of any of them, from any Prince or State with which the said United States shall be at war; nor shall any citizen, subject or inhabitant of the said United States, or any of them, apply for or take any commission or letters of marque for arming any ship or ships, to act as privateers against the subjects of the Most Christian King, or any of them, or the property of any of them, from any Prince or State with which the said King shall be at war; and if any person of either nation shall take such commissions or letters of marque, he shall be punished as a pirate."
Now, we have had a great deal of argument here to show that, under the law of nations,—under the law that must control and regulate the international relations of independent powers—it is a gross and violent subversion of the natural, inherent principles of justice, and a confusion between crime and innocence, to say to men who, under the license of war, take commissions from other powers, that they shall be hanged as pirates. And yet, in the first convention which we, as an infant nation, formed with any civilized power, attending in date the Treaty of Alliance which made France our friend, our advocate, our helper, in the war of the Revolution, his Most Christian Majesty, the King of France, standing second to no nation in civilization, signalized this holy alliance of friendship in behalf of justice, and humanity, and liberty, by engaging that, whatever the law of nations might be, whatever the speciousness of publicists might be, his subjects, amenable to the law, should never set up the pretence of a commission of privateering against the penalties of piracy. Nor had this treaty of commerce which I have referred to, anything of the nature of a temporary or warlike arrangement between the parties, pending the contest with Great Britain. It was a treaty independent of the Treaty of Alliance which engaged them as allies, offensive and defensive, in the prosecution of that war. Nor is this an isolated case of the morality and policy of this Government on the subject of piracy. By reference to the 19th Article of the Treaty between the Netherlands and the United States, concluded in 1782, at p. 44 of the same volume, your honors will find the same provision. After the same stipulation, excluding the acceptance of commissions from any power, to the citizens or subjects of the contracting parties, there is the same provision: "And if any person of either nation shall take such commissions or letters of marque, he shall be punished as a pirate."
Now, our Government has never departed from its purpose and its policy, to meliorate the law of nations, so as to extirpate this business of private war on the ocean. It is entirely true that, in its subsequent negotiations with the great powers of Christendom, it has directed its purpose to the more thorough and complete subversion and annihilation of the whole abominable exception, which is allowed on the high seas, from the general melioration of the laws of war, that does not tolerate aggressions of violence, and murder, and rapine, and plunder, except by the recognized forces contending in the field. It has attempted to secure not only the exclusion of private armed vessels from privateering, but the exclusion of aggressions on the part of public armed vessels of belligerents on private property of all kinds upon the ocean. And no trace of any repugnance or resistance on the part of our Government to aid and co-operate in that general melioration in the laws of war, in respect to property on the ocean, can be charged or proved. In pursuance of that purpose, as well as in conformity with a rightful maintenance of its particular predicament in naval war,—to wit., a larger commerce than most other nations, and a smaller navy,—it has taken logically, and diplomatically, and honestly, the position: I will not yield to these false pretences of humanity and melioration which will only deprive us of privateers, and leave our commerce exposed to your immense navies. If you are honest about it, as we are, and opposed to private war, why, condemn and repress private war in respect to the private character of the property attacked, as well as private war in respect to the vessels that make the aggressions.
Nor, gentlemen, do I hesitate to say that, whatever we may readily concede to an honest difference of opinion and feeling, in respect to great national contests, where men, with patriotic purposes, raise the standard of war against the Government, and, on the other hand, uphold the old standard to suppress the violence of war lifted against it, we do not, we cannot, as honest and sensible men, look with favor upon an indiscriminate collection from the looser portions of society, that rush on board a marauding vessel, the whole proceeds and results of whose aggressions are to fill their own pockets. And, when my learned friends seek to go down into the interior conscience and the secret motives of conduct, I ask you whether, if this had been a service in which life was to be risked, and all the energies of the man were to be devoted to the public service, for the glory and the interests of the country, and the poor food, poor clothing and poor pay of enlisted troops, you would have found precisely such a rush to that service?
Now, I am not seeking, by these considerations, to disturb in the least the legal protections, if there be any, in any form, which it is urged have sprung out of the character of privateering which this vessel had assumed, and these men, as part of its crew, had been incorporated in. If legal, let it be so; but do not confound patriotism, which sacrifices fortune and life for the love of country, with the motives of these men, who seek privateering because they are out of employment. Far be it from me to deny that the feeling of lawful right, the feeling that statutory law is not violated, if it draw the line between doing and not doing a thing, is on the whole a meritorious consideration and a trait that should be approved. But I do object to having the range of these men's characters and motives exalted, from the low position in which their acts and conduct place them, into the high purity of the patriot and the martyr. We are trying, not the system of privateering—we are trying the privateers, as they are called; and, when they fail of legal protection, they cannot cover themselves with this robe of righteousness in motive and purpose.
Now, how much was there of violence in the meditated course, or in the actual aggression? Why, the vessel is named in the commission as having a crew of thirty. In fact, she had twenty. Four men was a sufficient crew for a mercantile voyage. She had an eighteen pounder, a great gun that must have reached half way across the deck, resting on a pivot in the middle, capable of being brought around to any quarter, for attack. At the time this honest master and trader of the Joseph descried the condition of the vessel, he was struck with this ugly thing amidships, as he called it—to wit, this eighteen pound cannon, and was afraid it was a customer probably aggressive—a robber. But he was encouraged by what? Although he saw this was a pilot boat, and not likely, with good intent, to be out so far at sea, what was this honest sailor encouraged by? The flag of the United States was flying at her mast! But, when hailed—still under that view as to the aspect presented by the marauding vessel—he is told to come on board, and asks by what authority—instead of what would have been the glad and reassuring announcement—the power of the American flag—the Confederate States were announced as the marauding authority, and the flag of his country is hauled down, and its ensign replaced by this threat to commerce. Now, when this gun, as he says, was pointed at him, and this hostile power was asserted, my learned friends, I submit to you, cannot, consistently with the general fairness with which they have pursued this argument, put the matter before you as failing in any of the completeness of proof concerning force. For, when we were proposing to show that these prisoners all the while, in their plans, had the purpose of force, if force was necessary, and that, in the act of collision with the capturing vessel, that force occurred, we were stopped, upon the ground that it was unnecessary to occupy the attention of the Court and the Jury with anything that was to qualify this vessel's violent character, by reason of the admission that, if it was not protected by the commission, or the circumstances of a public character of whatever kind and degree—about which I admit there was no restriction of any kind,—if it stood upon the mere fact that the vessel was taken from its owners by the Savannah, in the way that was testified,—it would not be claimed to be wanting in any of the quality of complete spoliation, or in any of the quality of force. Now, that defence, we may say, must not be recurred to, to protect, in your minds, these men from the penalty which the law has imposed upon the commission of piracy. It cannot be pretended that there was any defect in the purpose of despoiling the original owners, nor that there is any deficiency in the exhibition of force, to make it piracy; and you will perceive, gentlemen, that although my learned friends successively, Mr. Dukes, Mr. Sullivan, and Mr. Brady, have, with the skill and the purpose of advocates, taken occasion, at frequent recurring points, to get you back to the want of a motive and intent or purpose of the guiltiness of robbing, yet, after all, it comes to this—that the inconsistency of the motive and intent, or the guiltiness of robbing, with the lawfulness, under the law of nations, of privateering, is the only ground or reason why the crime is deficiently proved.
I do not know that I need say anything to you about privateering, further than to present somewhat distinctly what the qualifications, what the conditions, and what the purposes, of privateering are. In the first place, privateering is a part of war, or is a part of the preliminary hostile aggressions which are in the nature of a forcible collision between sovereign powers. Now what is the law of nations on this subject—and how does there come to be a law of nations—and what is its character, what are its sanctions, and who are parties to it? We all know what laws are when they proceed from a Government, and operate upon its citizens and its subjects. Law then comes with authority, by right, and so as to compel obedience; and laws are always framed with the intent that there shall be no opportunity of violent or forcible resistance to them, or of violent or forcible settlement of controversies under them, but that the power shall be submitted to, and the inquiry as to right proceed regularly and soberly, under the civil and criminal tribunals. But, when we come to nations, although they have relations towards each other, although they have duties towards each other, although they have rights towards each other, and although, in becoming nations, they nevertheless are all made up of human beings, under the general laws of human duty, as given by the common lawgiver, God, yet there is no real superior that can impose law over them, or enforce it against them. And it is only because of that, that war, the scourge of the human race—and it is the great vice and defect of our social condition, that it cannot be avoided—comes in, as the only arbiter between powers that have no common superior. I am sure that the little time I shall spend upon this topic will be serviceable; as, also, in some more particular considerations, as to what is called a state of war, and as to the conditions which give and create a war between the different portions of our unhappy country and its divided population. So, then, nations have no common superior whom they recognize under this law, which they have made for themselves in the interest of civilization and humanity, and which is a law of natural right and natural duty, so far as it can be applied to the relations which nations hold to one another. They recognize the fact that one nation is just as good, as matter of right, of another; that whether it be the great Powers of Russia, as England, of France, of the United States of America, or of Brazil, or whether it be one of the feeble and inferior Powers, in the lowest grade,—as, one of the separate Italian Kingdoms, or the little Republic of San Marino, whose territories are embraced within the circuit of a few leagues, or one of the South American States, scarcely known as a Power in the affairs of men,—yet, under the proposition that the States are equal in the family of nations, they have a right to judge of their quarrels, and, finding occasions for quarrel, have a right to assert them, as matter of force, in the form of war. And all the other nations, however much their commerce may be disturbed and injured, are obliged to concede certain rights that are called the rights of war. We all understand what the rights of war are on the part of two people fighting against each other. A general right is to do each other as much injury as they can; and they are very apt to avail themselves of that right. There are certain meliorations against cruelty, which, if a nation should transgress, probably other nations might feel called upon to suppress. But, as a general thing, while two nations are fighting, other nations stand by, and do not intervene. But the way other nations come to have any interest, and to have anything to say whether there is war between sovereign powers, grows out of certain rights of war which the law of nations gives to the contending parties, against neutrals. For instance: Suppose Spain and Mexico were at war. Well, you would say, what is that to us? It is this to us. On the high seas, a naval vessel of either power has a right, in pursuit of its designs against the enemy, to interrupt the commerce of other nations to a certain extent. It has a right of visitation and of search of vessels that apparently carry our flag. Why? In order to see whether the vessel be really our vessel, or whether our flag covers the vessel of its enemy, or the property of its enemy. It has also a right to push its inquiries farther, and if it finds it to be a vessel of the United States of America, to see whether we are carrying what are called contraband of war into the ports of its enemy; and, if so, to confiscate it and her. Each of the powers has a right to blockade the ports of the other, and thus to break up the trade and pursuits of the people of other nations—and that without any quarrel with the other people. And so you see, by the law of nations, this state of war, which might, at first, seem to be only a quarrel between the two contending parties, really becomes, collaterally, and, in some cases, to a most important extent, a matter of interest to other nations of the globe. But however much we suffer—however much we are embarrassed (as, for example, in the extreme injury to British commerce and British interests now inflicted in this country—the blockade keeping out their shipping, and preventing shipments of cotton to carry on their industry)—we must submit, as the English people submit, in the view their Government has chosen to take of these transactions.
Now, gentlemen, this being the law of nations, you will perceive that, as there is no human earthly superior, so there are no Courts that can lay down the law, as our Courts do for our people, or as the Courts of England do for their people. There are no Courts that can lay down the law of nations, so as to bind the people of another country, except so far as the Courts of that country, recognizing the sound principles of morality, humanity and justice obtaining in the government and conduct of nations towards each other, adopt them in their own Courts. So, when my learned friends speak of the law of nations as being the law that is in force here, and that may protect these prisoners in this case against the laws of the United States of America, why, they speak in the sense of lawyers, or else in a sense that will confuse your minds, that is to say, that the law of nations, as the Court will expound and explain it, has or has not a certain effect upon what would be otherwise the plain behests of the statute law.
Now, it is a part of the law of nations, except so far as between themselves they shall modify it by treaty—(two instances of which I have read in the diplomacy of our own country, and a most extensive instance of which is to be found in the recent treaty of Paris, whereby the law of nations, in respect to privateering, has been so far modified as to exclude privateering as one of the means of war)—outside of particular arrangements made by civilized nations, it was a part of the original law of war prevailing among nations, that any nation engaged in war might fit out privateers in aid of its belligerent or warlike purposes or movements. No difficulty arose about this when war sprang up between two nations that stood before the world in their accredited and acknowledged independence. If England and France went to war, or if England and the United States, as in 1812, went to war, this right of fitting out privateers would obtain and be recognized. But, there arises, in the affairs of nations, a condition much more obscure and uncertain than this open war between established powers, and that is, when dissension arises in the same original nation—when it proceeds from discontent, sedition, private or local rebellion, into the inflammation of great military aggression; and when the parties assume, at least, (assume, I say), to be rightfully entitled to the position of Powers, under the law of nations, warring against one another. The South American States, in their controversy which separated them from the parent country, and these States, when they were Colonies of Great Britain, presented instances of these domestic dissensions between the different parts of the same Government, and the rights of war were claimed. Now, what is the duty of other nations in respect to that? Why, their duty and right is this—that they may either accord to these struggling, rebellious, revolted populations the rights of war, so far as to recognize them as belligerents, or not; but, whether they will do so, or not, is a question for their Governments, and not for their Courts, sitting under and by authority of their Governments. For instance, you can readily see that the great nations of the earth, under the influences upon their commerce and their peace which I have mentioned, may very well refuse to tolerate the quarrel as being entitled to the dignity of war. They may say—No, no; we do not see any occasion for this war, or any justice or benefit that is to be promoted by it; we do not see the strength or power that is likely to make it successful; and we will not allow a mere attempt or effort to throw us into the condition of submitting to the disturbance of the peace, or the disturbance of the commerce of the world. Or, they may say—We recognize this right of incipient war to raise itself and fairly contend against its previous sovereign—not necessarily from any sympathy, or taking sides in it, but it is none of our affair; and the principles of the controversy do not prevent us from giving to them this recognition of their supposed rights. Now, when they have done that, they may carry their recognition of right and power as far as they please, and stop where they please. They may say—We will tolerate the aggression by public armed vessels on the seas, and our vessels shall yield the right of visitation and search to them. They may say—We will extend it so far as to include the right of private armed vessels, and the rights of war may attend them; or they may refuse to take this last step, and say—We will not tolerate the business of privateering in this quarrel. And, whatever they do or say on that subject, their Courts of all kinds will follow.
Apply this to the particular trouble in our national affairs that is now progressing to settle the fate of this country. France and England have taken a certain position on this subject. I do not know whether I accurately state it (and I state it only for the purpose of illustration, and it is not material), but, as I understand it, they give a certain degree of belligerent right, so that they would not regard the privateers on the part of the Southern rebellion as being pirates, but they do not accord succor or hospitality in their ports to such privateers. Well, now, suppose that one of these privateers intrudes into their ports and their hospitalities, and claims certain rights. Why, the question, if it comes up before a Court in Liverpool or London, will be—Is the right within the credit and recognition which our Government has given? And only that. So, too, our Government took the position in regard to the revolting States of South America, that it would recognize them as belligerents, and that it would not hang, as pirates, privateers holding commissions from their authority. But, when other questions came up, as to whether a particular authority from this or that self-styled power should be recognized, our Government frowned upon it, and would not recognize it. With regard to Captain Aury, who styled himself Generalissimo of the Floridas, or something of that kind, when Florida was a Spanish province, our Courts said—We do not know anything about this—his commissions are good for nothing here—our Government has not recognized any such contest or incipient nationality as this. So, too, in another case, where there was an apparent commission from one struggling power, the Court say—Our Government does not recognize that power, and we do not, in giving any rights of war to it; but, the Court say, it appears in the proof that this vessel claims to have had a commission from Buenos Ayres, another contending power; if so, that is a power which our Government recognizes; and the case must go down for further proof on that point.
I confess that, if the views of my learned friends are to prevail, in determining questions of crime and responsibility under the laws and before the Court, and are to be accepted and administered, I do not see that there is any Government at all. For you have every stage of Government: first, Government of right; next, a Government in fact; next, a Government trying to make itself a fact; and, next, a Government which the culprit thinks ought to be a fact. Well, if there are all these stages of Government, and all these authorities and protections, which may attend the acts of people all over the world, I do not see but every Court and every Jury must, finally, resolve itself into the great duty of searching the hearts of men, and putting its sanctions upon pure or guilty secret motives, or notions, or interpretations of right and wrong—a task to which you, gentlemen of the Jury, I take it, feel scarcely adequate.
Now, gentlemen, I have perhaps wearied you a little upon this subject; because it is from some confusion in these ideas,—first, of what the law of nations permits a Government to do, and how it intrudes upon and qualifies the laws of that Government; and, second, upon what the rights are that grow out of civil dissensions, as towards neutral powers,—that some difficulty and obscurity are introduced into this case.
If the Court please, I maintain these propositions, in conformity with the views I have heretofore presented—first, that the law of the land is to determine whether this crime of piracy has been committed, subject only to the province of the Jury in passing upon the facts attending the actual perpetration of the offence; and, second, upon all the questions invoked to qualify, from the public relations of the hostile or contending parties in this controversy, the attitude that this Government holds towards these contending parties, is the attitude that this Court, deriving its authority from this Government, must necessarily hold towards them.
I have argued this matter of the choice and freedom of a Government to say how it will regard these civil dissensions going on in a foreign nation, as if it had some application to this controversy, in which we are the nation, and this Court is the Court of this nation.
But, gentlemen, the moment I have stated that, you will see that there is not the least pretence that there is any dispensing power in the Court, or that there has been any dispensing power exercised by our Government, or that there has been any pardon, or any amnesty, or any proclamation, saving from the results of crime against our laws, any person engaged in these hostilities, who at any time has owed allegiance and obedience to the Government of the United States. Therefore, here we stand, really extricated from all the confusion, and from all the wideness of controversy and of comment that attends these remote considerations of this case, that have been pressed upon your attention as if they were the case itself, on the part of our learned friend.
Now, if the Court please, I shall bestow some particular consideration upon the statute, but I shall think it necessary to add very little to the remarks I have heretofore made to the Court. The 8th section of the statute has been characterized by the learned counsel, and, certainly, with sufficient accuracy, for any purposes of this trial, as limited to the offence of piracy as governed by the law of nations. I do not know that any harm comes from that description, if we do not confuse it with the suggestion that the authority of this Government over the crime is limited to the construction of the law of nations which is expressed in that section of the statute. At all events, as they concede, I believe, that the 8th section is within the constitutional right and power of Congress, under the special clause giving them authority to define and punish piracy, under the law of nations, there is no room for controversy here on the point. When we come to the 9th section, we have two different and quite inconsistent views presented by the different counsel. One of the counsel (I think, Mr. Dukes) insists that the 9th section does not create any additional crime beyond that of piracy as defined in the 8th section, but only robs that crime of piracy of any apparent protection from a commission or authority from any State. But, my friend Mr. Brady contends (and, I confess, according to my notion of the law, with more soundness) that there is an additional crime, which would not be embraced, necessarily, in the crime of piracy or robbery on the high seas—which is the whole purview of the 8th section, and which is in terms repeated in the 9th—and that the additional words, "or any act of hostility against the United States, or any citizens thereof," create a punishable offence, although it may fall short of the completed crime of piracy and robbery, as defined. Now, I concede to my learned friend that the particular case he put of a quarrel between two ships' crews on the high seas, and of an attack by one of the crew of one upon one of the crew of the other with a belaying pin, would not, in my judgment, as an indictable, punishable offence, fall within the 9th section. But, whether I am right or wrong about it, it does not impede the argument of the Government, that there are crimes which are in the nature of and up to the completeness of hostile attacks upon vessels or citizens of the United States which would not be piracy, but yet are punishable under the 9th section.
Now, agreeing, thus far, that there is an added offence to the crime of piracy in the 9th section, I am obliged to meet his next proposition, that such additional offence is beyond the constitutional power of Congress, because it is an offence which does not come up to the crime of piracy, and, therefore, exceeds the grant of authority under the particular section of the Constitution which gives to Congress power over the definition and punishment of piracy under the law of nations.
Now, if the Court please, the argument is a very simple one. This 9th section does not profess to carry the power of this Government where alone the principles of the law of nations would justify; that is, to operate upon all the world, so far as the subjects of it—that is, the persons included in its sanctions—are concerned, or so far as the property protected by it is concerned. It is limited to citizens, and limited to hostilities against citizens of the United States, or their property at sea. Now, the authority in respect to this comes to Congress under the provision of the Constitution which gives the regulation of commerce and its control, in regard to which I need not be more particular to your Honors, because there are statutes of every-day enforcement, and under the highest penalty, too, of the law, such as revolt, mutiny, &c., which have nothing to do with the national considerations of the law of piracy, and nothing to do with the clause of the Constitution which gives to Congress power over the crime of piracy, but rest in the power reposed in Congress to protect the commerce of the United States. So, this is wholly within the general competency of Congress to govern citizens of the United States on the high seas, and to protect the property of citizens on the high seas, although there is no common law of general jurisdiction of Congress on the subject of crimes.
Now, upon this subject there is but one other criticism, and that is—that although the statute is framed with the intent, and its language covers the purpose, of prohibiting any defence or protection being set up under an assumed or supposed authority from any foreign Government, State, or Prince, or from any person, yet the particular authority which is averred in the indictment and produced in proof, if you take it in the sense that we give to it, is not within the purview of the statute, and, if you take it in any other sense, is not proved; and that thus a variance arises between the indictment and the proof, because the proof goes so far as to remove from under the statute the four defendants who would otherwise be amenable as citizens, by making the Government foreign, and making them foreign citizens. Now, to take up one branch of this at a time, I do not care at all whether the Government of the United States, when they passed this law, anticipated that there ever would be an occurrence which would give shape to such a commission as this, from either a person or an authority that emanated from what was or ever had been a part or a citizen of the United States. If these new occurrences here have produced new relations—(and that is the entire argument of my learned friends, for, if they have produced no new relations, what have we to do with any of these discussions?)—if they have produced new relations, perfect or imperfect, effectual or ineffectual, to this or that extent, why then, if these new relations and attitude have brought this matter within the purview of a statute of the United States which was framed to meet all relations that might arise at any time, they come within its predicament, and the argument seems to me to amount to nothing. It will not be pretended that the 9th section of this statute can only be enforced as to Powers in existence at the time it was passed. Whenever a new Power or new authority is set forth as a protection to the crime of piracy, the 9th section of the statute says: "Well, we do not know or care anything about what the law of nations says about your protection, or your authority—we say that no citizen of the United States, depredating against our commerce, shall set up any authority to meet the justice of our criminal law." Well, now, that the statute has said; and we have averred and proved the commission such as it is. It is either the commission of a foreign Prince, or State, or it is an authority from some person. We do not recognize it as from a foreign State or Prince. Indeed, Mr. Davis does not call himself a Prince, and we do not recognize the Confederate States as a nation or State, in any relation. Therefore, if we would prove this authority under our law, we must aver it as it is, coming from an individual who was once a citizen of the United States, and still is, as the law decides, a citizen of the United States. Whatever port or pretension of authority he assumes, and whatever real fact and substance there may be to his power, it is, in the eye of the law, nothing. It is not provable, and it is not proved.
Now, as to the right of Congress to include the additional crime, under the authority given to it to punish piracy according to the law of nations, my learned friend contends that this statute is limited by that authority, and is, as respects anybody within its purview, unconstitutional, and that, although a particular act may be within the description of the statute, so far as regards hostility, it is not piracy. On that subject I refer your Honors to a very brief proposition contained in the case ofThe United Statesv.Pirates (5 Wheaton, 202):
"And if the laws of the United States declare those acts of piracy in a citizen, when committed on a citizen, which would be only belligerent acts when committed on others, there can be no reason why such laws should not be enforced. For this purpose the 9th section of the Act of 1790 appears to have been passed. And it would be difficult to induce this Court to render null the provisions of that clause, by deciding either that one who takes a commission under a foreign power, can no longer be deemed a citizen, or that all acts committed under such a commission, must be adjudged belligerent, and not piratical acts."
"And if the laws of the United States declare those acts of piracy in a citizen, when committed on a citizen, which would be only belligerent acts when committed on others, there can be no reason why such laws should not be enforced. For this purpose the 9th section of the Act of 1790 appears to have been passed. And it would be difficult to induce this Court to render null the provisions of that clause, by deciding either that one who takes a commission under a foreign power, can no longer be deemed a citizen, or that all acts committed under such a commission, must be adjudged belligerent, and not piratical acts."
I would also refer to the case ofThe Invincible, to which my learned friend called the attention of the Court, in the opinion of the late Attorney-General, Mr. Butler. It is to be found in the 3d volume of theOpinions of the Attorney-Generals, page 120. My learned friend cited this case in reference to the proposition that persons holding a commission (as I understood him) should not be treated as pirates, under the law of nations, by reason of any particular views or opinions of our Government. I refer to that part of the opinion where he says: "A Texan armed schooner cannot be treated as a pirate under the Act of April 30th, 1790, for capturing an American merchantman, on the alleged ground that she was laden with provisions, stores, and munitions of war for the use of the army of Mexico, with the Government of which Texas, at the time, was in a state of revolt and civil war."
Now, undoubtedly, Mr. Butler does here hold that, by the law of nations, in a controversy between revolting Colonies and the parent State, where our Government recognizes a state of war as existing, a privateer cannot be treated as a pirate. But we will come to the opinion of the Attorney-General on the other proposition we contend for—that is, in support of the 9th section of the statute, as far as it would have exposed citizens of the United States to the penalty of piracy:
"In answer to this question, I have the honor to state that, in my opinion, the capture of the American shipPocketcan in no view of it be deemed an act of piracy,unless it shall appear that the principal actors in the capture were citizens of the United States. The ninth section of the Crimes Act of 30th April, 1790, declares 'that if any citizen shall commit any piracy or robbery, or any act of hostility against the United States, or any citizen thereof, upon the high seas, under color of any commission from any foreign Prince, or State, or on pretence of authority from any person, such offender shall, notwithstanding the pretence of any such authority, be deemed, adjudged and taken to be a pirate, felon and robber, and on being thereof convicted, shall suffer death.' This provision is yet in force, andshould it be found that any of those who participated in the capture of the Pocket are American citizens, the flag and commission of the Government of Texas would not protect them from the charge of piracy."
"In answer to this question, I have the honor to state that, in my opinion, the capture of the American shipPocketcan in no view of it be deemed an act of piracy,unless it shall appear that the principal actors in the capture were citizens of the United States. The ninth section of the Crimes Act of 30th April, 1790, declares 'that if any citizen shall commit any piracy or robbery, or any act of hostility against the United States, or any citizen thereof, upon the high seas, under color of any commission from any foreign Prince, or State, or on pretence of authority from any person, such offender shall, notwithstanding the pretence of any such authority, be deemed, adjudged and taken to be a pirate, felon and robber, and on being thereof convicted, shall suffer death.' This provision is yet in force, andshould it be found that any of those who participated in the capture of the Pocket are American citizens, the flag and commission of the Government of Texas would not protect them from the charge of piracy."
It will be seen here, that the condition of belligerents will not protect our citizens from aggressions against our commerce; and there is no place for my learned friends to put this authority, and this assumed belligerent power and right, on any footing that must not make it, either actually or in pretence, at least, proceed from a separate contending power. And, if they say, (as, in one of their points substantially is said,) that the 9th section cannot apply, because the alleged authority is not from a foreign State, or a foreign personage, but from a personage of our own country,—why, then, we are thrown back at once to the 8th section entirely, and there is either no pretence of authority at all, and it is just like arguing that the pirate accused was authorized by the merchant owner of a vessel in South street, to commit piracy, or we are put in the position, which is unquestionably the true one, that the 9th section was intended to cover all possible although unimagined forms in which the justice of the country could be attempted to be impeded under the claim of authority.
Now, gentlemen, if the Court please, I come to a consideration of the political theories or views on which these prisoners are sought to be protected against the penalties of this law. In that argument, as in my argument, it must be assumed that these penalties, but for those protections, would be visited upon them; for we are not to be drawn hither and thither by this inquiry, and to have it said, at one time, that the crime itself, in its own nature, is not proved, and, at another time, that, if it be proved, these are defences. I have said all I need to say, and all I should say, about the crime itself. The law of the case on that point will be given to you by the Court, and, if it should be, as I suppose it must, in accordance with that laid down by the Court in the Circuit of Pennsylvania, then, as my learned friend Mr. Brady has said of that, that he could not see how the Jury could find any verdict but guilty, it necessarily follows, if that is a sound view of the law, that you cannot find any other verdict but guilty. I proceed, therefore, to consider these other defences which grow out of the particular circumstances of the piracy.
Now, there are, as I suggested, three views in which this subject of the license, or authority, or protection against our criminal laws in favor of these prisoners, is urged, from their connection with particular occurrences disclosed in the evidence. One is, that they are privateers; but I have shown you that, to be privateers, their commission must come from an independent nation, or from an incipient nation, which our Government recognizes as such. Therefore, they fail entirely to occupy that explicit and clear position, under the law of the land, and the law of nations. But, as they say, they are privateers either of a nation or a Power that exists, as the phrase is,de jure,—that has a right, the same as we, or England, or France,—or of a Power that has had sufficient force and strength to establish itself, as matter of fact. Without considering the question of right, as recognized under the system of nations, they contend, and with a great deal of force and earnestness, in the impression of their views upon the Jury, and great skill and discretion in handling the matter,—they contend that there is a state of civil war in this country, and that a state of civil war gives to all nations engaged in it, against the Government with which they are warring, rights of impunity, of protection, of respect, of regard, of courtesy, which belong to the laws of war; and that, without caring to say whether they are a Government, or ever will be a Government, so long as they fight, they cannot be punished.
That is the proposition,—there is nothing else to it. They come down from the region ofde jureGovernment andde factoGovernment, and have nothing to prove but the rage of war on the part of rebels, in force enough to be called war. Then they say that, by their own act, they are liberated from the laws, and from their duty to the laws, which would otherwise, they admit, have sway over them, and against which they have not as yet prevailed. That is the proposition.
Another proposition, on which they put themselves, is that whatever may be the law, and whatever the extent of the facts, if any of these persons believed that there was a state of war, rightful to be recognized, and believed, in good faith, that they were fighting against the United States Government, they had a right to seize the property of United States' citizens; and that, if they believed that they constituted part of a force co-operating, in any form or effect, with the military power which has risen up against the United States of America, then, so long as they had that opinion, they, by their own act, and their own construction of their own act, impose the law upon this Government, and upon this Bench, and upon this Jury, and compel you to say to them that if, in taking, in a manner which would have been robbery, this vessel, the Joseph, they were also fighting against the United States of America, they have not committed the crime of piracy.
Now, if the Court please, and gentlemen of the Jury, let us, before we explore and dissect these propositions,—before we discover how utterly subversive they are of any notions of Government, of fixity in the interpretation of the law, or certainty in the enforcement of it,—let us see what you will fairly consider as being proved, as matter of fact, concerning the condition of affairs in this country. Let us see what legal discrimination or description of this state of things is likely to be significant and instructive, in determining the power and authority of the Government, and the responsibility of these defendants. They began with an Ordinance of South Carolina, passed on the 20th of December of last year, which, in form and substance, simply annulled the Ordinance of that State with which, as they say, they ratified or accepted the Constitution of the United States. They then went on with similar proceedings on the part of the States of Georgia, Alabama, Mississippi, and Florida, showing the establishment and adoption of a Provisional Constitution, by which they constituted and called themselves the Confederate States of America. They proved, then, the organization of the Government, the election of Mr. Davis and Mr. Stephens as President and Vice-President, and the appointment of Secretaries of War, and of the Navy, and other portions of the civil establishment. They proved, then, the occurrences at Fort Sumter, and gave particular evidence of the original acts at Charleston—the firing on the Star of the West, and the correspondence which then took place between Major Anderson and the Governor of South Carolina. They then went on to prove the evacuation of Fort Moultrie; the storming of Fort Sumter; the Proclamation of the President of the United States, of the 15th of April, calling for 75,000 troops; Mr. Davis' Proclamation, of the 17th of April, inviting privateers; and then the President's Proclamation, of the 19th of April, denouncing the punishment of piracy against privateers, and putting under blockade the coasts of the revolted States. The laws about privateering passed by what is called the Confederate Government, have, also, been read to you; and this seems to complete the documentary, and constitutional, and statutory proceedings in that disaffected portion of the country. But what do the prisoners prove further? That an actual military conflict and collision commenced, has proceeded, and is now raging in this country, wherein we find, not one section of the country engaged in a military contest with another section of the country—not two contending factions, in the phrase of Vattel, dividing the nation for the sake of national power—but the Government of the United States, still standing, without the diminution of one tittle of its power and dignity—without the displacement or disturbance of a single function of its executive, of its legislative, of its judicial establishments—without the disturbance or the defection of its army or its navy—without any displacement in or among the nations of the world—without any retreat, on its part, or any repulsion, on the part of any force whatever, from its general control over the affairs of the nation, over all its relations to foreign States, over the high seas, and over every part of the United States themselves, in their whole length and breadth, except just so far as military occupation and military contest have controlled the peaceful maintenance of the authority and laws of the Government.
Now, this may be conceded for all sides of the controversy. I do not claim any more than these proofs show, and what we all know to be true; and I am but fair in conceding that they do show all the proportions and extent which make up a contest by the forces of the nation, as a nation, against an armed array, with all the form and circumstances, and with a number and strength, which make up military aggression and military attack on the part of these revolting or disaffected communities, or people.
Now, some observations have been made, at various stages of this argument, of the course the Government has taken in its declaration of a blockade, and in its seizure of prizes by its armed vessels, and its bringing them before the Prize Courts; and my learned friend, Mr. Brady, has done me the favor to allude to some particular occasion on which I, on behalf of the Government, in the Admiralty Court, have contended for certain principles, which would lead to the judicial confiscation of prizes, under the law of the land, or under the law of nations adopted and enforced as part of the law of the land. Well, now, gentlemen, I understand and agree that, for certain purposes, there is a condition of war which forces itself on the attention and the duty of Governments, and calls on them to exert the power and force of war for their protection and maintenance. And I have had occasion to contend—and the learned Courts have decided—that this nation, undertaking to suppress an armed military rebellion, which arrays itself, by land and by sea, in the forms of naval and military attack, has a right to exert—under the necessary principles which control and require the action of a nation for its own preservation, in these circumstances of danger and of peril—not only the usual magisterial force of the country—not only the usual criminal laws—not only such civil posses or aids to the officers of the law as may be obtained for their assistance—but to take the army and the navy, the strength and the manhood of the nation, which it can rally around it, and in every form, and by every authority, human and divine, suppress and reduce a revolt, a rebellion, a treason, that seeks to overthrow this Government in, at least, a large portion of its territory, and among a large portion of its people. In doing so, it may resort—as it has resorted—to the method of a warlike blockade, which, by mere force of naval obstruction, closes the harbors of the disaffected portion of the country against all commerce. Having done that, it has a right, in its Admiralty Courts, to adjudicate upon and condemn as prizes, under the laws of blockade, all vessels that shall seek to violate the blockade. Nor, gentlemen, have I ever denied—nor shall I here deny—that, when the proportions of a civil dissension, or controversy, come to the port and dignity of war, good sense and common intelligence require the Government to recognize it as a question of fact, according to the actual circumstances of the case, and to act accordingly. I, therefore, have no difficulty in conceding that, outside of any question of law and right—outside of any question as to whether there is a Government down there, whether nominal or real, or that can be described as having any consistency of any kind, under our law and our Government—there is prevailing in this country a controversy, which is carried on by the methods, and which has the proportions and extent, of what we call war.
War, gentlemen, as distinguished from peace, is so distinguished by this proposition—that it is a condition in which force on one side and force on the other are the means used in the actual prosecution of the controversy. Now, gentlemen, if the Court please, I believe that that is all that can be claimed, and all that has been claimed, on behalf of these prisoners, in regard to the actual facts, and the condition of things in this country. And I admit that, if this Government of ours were not a party to this controversy,—if it looked on it from the outside, as England and France have done,—our Government would have had the full right to treat these contending parties, in its Courts and before its laws, as belligerents, engaged in hostilities, as it would have had an equal right to take the opposite course. Which course it would have taken, I neither know, nor should you require to know.
But, I answer to the whole of this, if the Court please, that it is a war in which the Government recognizes no right whatever on the part of the persons with whom it is contending; and that, in the eye of the law, as well as in the eye of reason and sound political morality, every person who has, from the beginning of the first act of levying war against the United States until now, taken part in this war, actively and effectively, in any form—who has adhered to the rebels—who has given aid, information, or help of any kind, wherever he lives, whether he sends it from New Hampshire or New York, from Wisconsin or from Baltimore—whether he be found within or without the armed lines—is, in his own overt actions, or open espousal of the side of this warring power, against the Government of the United States, a traitor and a rebel. I do not know that there is any proposition whatever, of law, or any authority whatever, that has been adduced by my learned friends, in which they will claim, as matter of law, that they are notrebels. I invited the attention of my learned friends, as I purposed to call that of the Court, to the fact, that the difficulty about all this business was, that the plea of authority or of war, which these prisoners interposed against the crime of piracy, was nothing but a plea of their implication in treason. I would like to hear a sober and solemn proposition from any lawyer, that a Government, as matter of law, and a Court, as matter of law, cannot proceed on an infraction of a law against violence either to person or property, instead of proceeding on an indictment for treason. The facts proved must, of course, maintain the personal crime; and there are many degrees of treason, or facts of treason, which do not include violent crime. But, to say that a person who has acted as a rebel cannot be indicted as an assassin, or that a man who has acted, on the high seas, as a pirate, if our statutes so pronounce him, cannot be indicted, tried and convicted as a pirate, because he could plead, as the shield of his piracy, that he committed it as part of his treason, is, to my apprehension, entirely new, and inconsistent with the first principles of justice.
Now, this very statute of piracy is really a general Crimes Act. The first section is: