Mr. LAROCQUE opened the case for the defence. He said:
_May it please the Court, and you, Gentlemen of the Jury_:
We have now reached that stage in this interesting trial where the duty
has been assigned to me, by my associates in this defence, of
presenting to you the state of facts and the rules of law on which we
expect to ask from you an acquittal of these prisoners. I could wish
that it had been assigned to some one more able to present it to you
than myself, for I feel the weight of this case pressing upon me, from
various considerations connected with it, in a manner almost
overpowering. I think that we have proceeded far enough in this case
for you to have perceived that it is one of the most interesting trials
that ever took place on the continent of America, if not in the
civilized world. For the first time, certainly in this controversy,
twelve men are put on trial for their lives, before twelve other men,
as pirates and--as has been well expressed to you by the learned
District Attorney who opened this case on behalf of the prosecution--as
enemies of the human race. If you have had time, in the exciting
progress of this trial, to reflect in your own minds as to what the
import of these words was, it must certainly, ere this, have occurred
to you that, in regard to these prisoners, whatever may be the legal
consequences of the acts charged upon them, it was a misapplication of
the term. Look for a moment, gentlemen, first, at the position of
things in our country under which this trial takes place. All these
prisoners come before you from a far distant section of the country.
Some of them were not born there--some of them were. At the time when
these events occurred all of the prisoners lived there, and were
identified with that country, with its welfare, with its Government,
whatever it was. They had there their homes, their families, everything
which attaches a man to the spot in which he lives. Those of them who
had not been born in America had sought it as an asylum. They had come
from distant regions of the earth--some from the Chinese Sea and the
remote East--because they had been taught there that America was the
freest land on the globe. They had lived there for years. Suddenly they
had seen the country convulsed from one end to the other. They had seen
hostile armies arrayed against each other, the combatants being for the
most part divided by geographical lines as to the place where they were
born or as to the State in which they lived. This very morning a
newspaper in the city of New York estimates the numbers thus arrayed in
hostility against each other at no less than seven hundred thousand
souls. These prisoners have the misfortune, as I say, of being placed
on their trial far from their homes. They have been now in confinement
and under arrest on this charge for some four or five months. During
that whole period they have had no opportunity whatever of
communicating with their friends or relatives. Intercourse has been cut
off. They have had no opportunity of procuring means to meet their
necessary expenses, or even to fee counsel in their defence. Without
the solace of the company of their families, immured in a prison among
those who, unfortunately, from friends and fellow-countrymen have
become enemies, they are now placed in this Court on trial for their
lives. You will certainly reflect, gentlemen, that it was not for a
case of this kind that any statute punishing the crime of piracy was
ever intended to be enacted. You will reflect, when you come to
consider this case, after the evidence shall have been laid before you,
and after you have received instructions from the Court, that however
by technical construction our ingenious friends on the other side may
endeavor to force on your minds the conviction that this was a case
intended to be provided for by statutes passed in the year 1790, and by
statutes passed in the year 1820,--it is a monstrous stretch of the
provisions of those statutes to ask for a conviction in a case of this
kind. And I may be permitted, with very great respect for the
constitutional authorities of our Government, to which we all owe our
allegiance and respect, to wonder that this case has been brought for
trial before you. I cannot help, under the circumstances surrounding
these trials--for while you are sitting here, another jury is passing
on a similar case in the neighboring City of Philadelphia--attributing
the determination of the Government to submit these cases to the
judicial tribunals at this time to a desire to satisfy the mind of the
community itself, which has been naturally excited on this subject,
that these men are not pirates within the meaning of the law. And I do
most sincerely hope, for the credit of our Government, that that is the
object which it has in view, and that the heart of every officer of the
Government, at Washington or elsewhere, will be most rejoiced at the
verdict of acquittal, which, I trust, on every consideration, you will
pronounce. We all know that in a time of civil commotion and civil war
like this, the minds of the people, particularly at the incipient
stages of the controversy, become terribly excited and aroused. We
could not listen, at the outbreak of these commotions, to any other
name but that of pirate or traitor, as connected with those arrayed
against our Government and countrymen. One of the misfortunes of a time
of popular excitement like this is, that it pervades not only the minds
of the community, but reaches the public halls of legislation, and the
executive and administrative departments of the Government. And it is
no disrespect, even to the Chief Magistrate of the country to say, that
he might, in a time like this, put forward proclamations and announce a
determination to do what his more sober judgment would tell him it was
imprudent to announce his intention of doing. You will all probably
recollect that when this outbreak occurred the Government at Washington
announced the determination of treating those who might be captured on
board of privateers fitted out in the Confederate States as pirates.
Such an announcement once made, it is difficult to depart from. And
therefore I do most sincerely hope that the administration in
Washington, as my heart tells me must be the case, are looking at these
trials in progress here and in Philadelphia, with an earnest desire
that the voice of the Juries shall be the voice of acquittal,--thus
disembarrassing the Government of the trammels of a proclamation which
it were better, perhaps, had never been issued. This civil war had at
that time reached no such proportions as those which it has since
acquired. It was then a mere beginning of a revolution. The cry was,
that Washington was in danger. There were no hostile forces arrayed on
the opposite sides of the Potomac. There was a fear that they would
soon make their appearance; and there was also an earnest hope--which I
lament most deeply has not been realized--that that outbreak would be
stopped in its commencement, and that no armies approaching to the
proportions of those which have since been in hostile conflict would be
arrayed on the field of battle. Look at the state of things now.
Scarcely a day elapses on which battles are not taking place, from one
end to the other of this broad continent--in Virginia, Kentucky,
Missouri, and other States--and where the opposing forces are not
larger than those that met in any battle of the Revolution which gave
this country its independence. Does humanity, which rules war as well
as peace, permit that while whole States, forming almost one half of
the Confederacy; have arrayed themselves as one man--for aught we know
to the contrary--while they think, no matter how mistakenly, that they
have grievances to be redressed, and that they have a right to exercise
that privilege of electing their own Government, which we claimed for
ourselves in the day of our own Revolution--does humanity, I say,
permit, in such a state of things, one side or the other to treat its
opponents as pirates and robbers, as enemies of the human race?
Gentlemen, our brave men who are fighting our battles on land and sea
have a deep interest in this question; and if the votes of our whole
army could be taken on the question of whether, as a matter of State
policy, these men should be treated as pirates and robbers, I believe,
in my heart, that an almost unanimous vote would go up from its ranks
not to permit such a state of things to take place.
I wish to say a word here, gentlemen, preliminarily, on another
subject, and that is, what the duty and right of counsel is on a trial
of this kind. I hold the doctrine that counsel, when he appears in
Court to defend the life of one man, much less the lives of twelve men,
is the _alter ego_ of his clients--that he has no trammels on his lips,
and that his conscience, and his duty to God, and to his profession,
must direct him in his best efforts to save the lives of his
clients,--and that it becomes his duty; regardless of all other
considerations, except adherence to truth and the laws of rectitude, to
present every argument for his clients which influenced their minds
when they embarked in the enterprise for which they are placed before
the Jury on trial for their lives. It is not the fault of counsel, in a
case of this kind, if he is obliged to call the attention of the Jury
to the past history of his own country, to the cotemporaneous
expositions of its Constitution, to the decisions of its Courts of
Judicature, and of the highest Court of the Union, which have laid down
doctrines with reference to the Constitution of the Government, which
are accepted at the present day, entirely incompatible with the success
of this prosecution. In doing so, you will certainly perceive that,
however much these men on trial for their lives may have been deceived
and deluded, as I sincerely think they have been to a very great
extent, and, as was frankly admitted by the learned counsel who opened
the case for the prosecution, that at least, there was the strongest
excuse for that deception and delusion among those of them who had read
the Constitution of their Government, who had read its Declaration of
Independence, who had read the cotemporaneous exposition of its
Constitution, put forward by the wisest of the men who framed it, and
on the honeyed accents of whose lips the plain citizens of the States
reposed when they adopted the Constitution. If it had been their good
fortune to be familiar with the decisions of its Courts, they had
learned what the Supreme Court had said with reference to the sovereign
rights of the States, and with reference to the strict limit and
measure of power which they had conceded to the General Government, and
there was, at least, a very strong excuse for their following those
doctrines, however unpopular they may have become in a later day of the
Republic.
One of the reasons why I most regret that the Government has thought
fit to force these cases to trial at the present time is, that it
forces the counsel for the prisoners, in the solemn discharge of their
duty to their clients, whose lives hang in the balance, to call the
attention of the Jury and the attention of the public to those
doctrines, doing which, under other circumstances, might be considered
as a needless interference with the efforts of the Government to
restore peace to the country. But, as I say, I hold that our clients in
this case have a right to all the resources of intelligence with which
it has pleased God to bless their counsel. They have a right to every
pulsation of their hearts, and I do not know that I can sum up the
whole subject in more appropriate language than that used by the
Marquis of Beccaria, which was quoted by John Adams on the trial of
some British soldiers in Boston, who, in a time of great public
excitement, had shot some citizens, and were placed on trial for their
lives before a Jury in Boston. He quoted and adopted on that occasion,
as his own, these memorable words of that great philanthropist: "If I
can be but the instrument of saving one human life, his blessing and
tears of gratitude will be a sufficient consolation to me for the
contempt of all mankind." I hold, with John Adams, that counsel on a
trial like this has no right to let any earthly consideration interfere
with the full and free discharge of his duty to his client; and in what
I have to say, and in my course on this trial, I will be actuated by
that feeling, and by none other. And, gentlemen, I love my country when
I say that; I feel as deep a stake in her prosperity as does any man
within the hearing of my voice, and as deep a stake as any man who
lives under the protection of her flag.
The Jury have a great and solemn duty to discharge on this occasion.
They have the great and solemn duty to discharge of forgetting, if
possible, that they are Americans, and of thinking, for the moment,
that they have been transformed into subjects of other lands; of
forgetting that there is a North or a South, an East or a West, and of
remembering only that these twelve men are in peril of their lives, and
that this Jury is to judge whether they have feloniously and
piratically, with a criminal intent, done the act for which it is
claimed their lives are forfeited to their country. I wish to dispel
from the minds of the Jury, at the outset of this case, an illusion
which has been attempted to be produced on them, with no improper
motive, I am sure, by the counsel who opened the case on the part of
the Government--that this trial is a mere matter of form. I tell you,
gentlemen, that it is a trial involving the lives of twelve men, and
this Jury are bound to assume, from the beginning to the end of the
case, that if their verdict shall pronounce these men guilty of the
crime of piracy, with which they are charged, every one of them will as
surely terminate his life on the scaffold, as the sun will rise on the
morrow of the day on which the verdict shall be pronounced. We have
nothing to do with what the Government in its justice and clemency may
see fit to do after that verdict has been pronounced. We are bound to
believe that the Government does not put these men upon their trial
with an intention to make the verdict, if it shall be one of guilty, a
mere idle mockery. I, for one, while I love my country, and wish its
Government to enjoy the respect of the whole world, would not be
willing to believe that it would perform a solemn farce of that kind;
and, gentlemen, as you value the peace and repose of your own
consciences, you will, in the progress of this trial, from its
beginning to its end, look on it in this light, and in none other.
Now, gentlemen, what is the crime of piracy, as we have all been taught
to understand it from our cradle? My learned friend has given one
definition of what a pirate is, by saying that he is the enemy of the
human race. And how does his crime commence? Is it blazoned, before he
starts on his wicked career, in the full light of the sun, or is it
hatched in secret? Does it commence openly and frankly, with the eyes
of his fellow-citizens looking on from the time that the design is
conceived, or does it originate in the dark forecastle of some vessel
on the seas, manned by wicked men, to whom murder and robbery have been
familiar from their earliest days, and who usually commence by
murdering the crew of the vessel, the safety of which has been partly
entrusted to them? And when the first deed of wickedness has been done
which makes pirates and outcasts of the men who perpetrated it, what is
their career from that moment to the time when they end their lives,
probably on the scaffold? Is it not one of utter disregard to the laws
of God and man, and to those of humanity? Is it not a succession of
deeds of cruelty, of rapine, of pillage, of wanton destruction? Who
ever heard of pirates who, in the first place, commenced the execution
of their design by public placards posted in the streets of a populous
city like Charleston, approved of by their fellow-citizens of a great
and populous city, and not only by them, but by the people of ten great
and populous States? And who ever heard of pirates who, coming upon a
vessel that was within the limits of the commission under which they
were acting, took her as a prize, with an apology to her Captain for
the necessity of depriving him of his property, and claiming to act
under the authority of ten great and populous States, and under that
authority alone? And who ever heard of pirates doing what has been
testified to in this case by the witnesses for the Government,--taking
one ship because she belonged to the enemies of the Confederate States,
to which they sincerely believed they owed the duty of allegiance, and
passing immediately under the stern of another vessel, because they
knew by her build and appearance that she was a British vessel, and not
an enemy of their country, as they believed?
But, gentlemen, the difficulties with which the prosecution had to
contend, in making out this case, are too great to be lost sight of; and
the Jury must certainly have seen how utterly preposterous it is to
characterize as piracy acts of this kind. Who ever heard of a pirate
who, having seized a prize, put a prize-crew on board of her, sent her
home to his native port--a great and civilized city, in a great and
populous country--to be submitted to the adjudication of the Courts in
that city, and to be disposed of as the authorities of his home should
direct? I beg to call your attention to the facts that have been brought
out on the testimony for the prosecution itself--that, in regard to this
vessel, instead of her crew having been murdered--instead of helpless
women and children having been sent to a watery grave, after having
suffered, perhaps, still greater indignities--that not a hair of the
head of any one was touched,--that not a man suffered a wound or an
indignity of any kind--that they were sent, as prisoners of war, into
the neighboring port of Georgetown, where, in due time, by decree of a
court, the vessel was condemned and sold--and the prisoners, having been
kept in confinement some time as prisoners of war, were released, and
have been enabled to come into Court and testify before you.
Comparing this case, gentlemen, with the cases which are constantly
occurring in the land, what earthly motive can you conceive, on the
part of the Government, for having made the distinction between these
poor prisoners, taken on board of this paltry little vessel of 40 or 50
tons, and the great bands in arms in all parts of the country? Look
what occurred a little while ago in Western Virginia, where a large
force of men, in open arms against the Government, who had been
carrying ravage and destruction through that populous country, and over
all parts of it, were captured as prisoners. Were any of those men sent
before a court, to be tried for their lives? Did not the commanding
officer of the forces there, acting under the authorization, and with
the approval, of the Government, release every one of those men, on his
parole of honor not to bear arms any more against the country? And what
earthly motive can be conceived for making the distinction which is
attempted to be made between these men and those? Shall it be said, to
the disgrace of our country--for it would be a disgrace if it could be
justly said--that we had not courage and confidence enough in our own
resources to believe that we would be able to cope with these
adversaries in the field in fair and equal warfare? Gentlemen, I think
it would be a cowardly act, which would redound to the lasting disgrace
of the country, to have it said, one century or two centuries hence,
that, in this great time of our country's troubles and trials, eighteen
States of this Confederacy, infinitely the most populous, infinitely
the most wealthy, abounding in resources, with a powerful army and
navy, were obliged to resort to the halter or the ax for the purpose of
intimidating those who were in arms against them. I do not think that
any one of this Jury would be willing to have such a thing said.
Now, gentlemen, with regard to the conduct of these men, an impression
has been attempted to be created on your minds by one circumstance, and
that is, that at the time of the capture of the Joseph by the Savannah
the American flag was hoisted on board the Savannah, and that the
Joseph came down to her, and permitted her to approach from the false
security and confidence occasioned by that circumstance. The time has
now arrived to dispel the illusion from your mind that there was
anything reprehensible in that, or anything in it not warranted by the
strictest rules of honor and of naval warfare. Why, gentlemen, I could
not give you a more complete parallel on that subject than one which
occurred at the time of the chase of the Constitution by a British
fleet of men-of-war, and the escape of the Constitution from which
fleet at that time reflected such lasting honor on our country and her
naval history. You will all recollect that the Constitution, near the
coast of our country, fell in with and was chased for several days by a
large British fleet. Let me read to you one short sentence, showing
what occurred at that time. I read from Cooper's Naval History:
"The scene, on the morning of this day, was very beautiful, and of
great interest to the lovers of nautical exhibitions. The weather
was mild and lovely, the sea smooth as a pond, and there was quite
wind enough to remove the necessity of any of the extraordinary
means of getting ahead that had been so freely used during the
previous eight and forty hours. All the English vessels had got on
the same tack with the Constitution again, and the five frigates
were clouds of canvas, from their trucks to the water. Including
the American ship, eleven sail were in sight; and shortly after
a twelfth appeared to windward; that was soon ascertained to be
an American merchantman. But the enemy were too intent on the
Constitution to regard anything else, and though it would have been
easy to capture the ships to leeward, no attention appears to have
been paid to them. _With a view, however, to deceive the ship to
windward, they hoisted American colors, when the Constitution set
an English ensign, by way of warning the stranger to keep aloof._"
After that, I hope we will hear no more about the Savannah having
hoisted the American flag for the purpose of inducing the Joseph to
approach her.
It now becomes my duty, gentlemen, to call your attention, very
briefly, to the grounds on which the prosecution rests this case. There
are two grounds, and I will notice them in their order. The first is,
that this was robbery. Well, I have had occasion, already, in what I
have said to you, to call your attention to some of the points that
distinguish this case from robbery. I say it was not robbery, because,
in the first place, one of the requisites of robbery on the sea, which
is called piracy, is, that it shall be done with a piratical and
felonious intent. The intent is what gives character to the crime; and
the point that we shall make on that part of the case is this, that if
these men, in the capture of the Joseph (leaving out of view for the
present the circumstance of their having acted under a commission from
the Confederate States), acted under the belief that they had a right
to take her, there was not the piratical and felonious intent, and the
crime of robbery was not committed. I will very briefly call your
attention to a few authorities on that subject. One of the most
standard English works, and the most universally referred to on this
subject of robberies, is _Hale's Pleas of the Crown_. Hale says:
"As it is _cepit_ and _asportavit_ so it must be _felonice_ or
_animo furandi_, otherwise it is not felony, for it is the mind
that makes the taking of another's goods to be a felony, or a bare
trespass only; but because the intention and mind are secret, they
must be judged by the circumstances of the fact, and though these
circumstances are various and may sometimes deceive, yet regularly
and ordinarily these circumstances following direct in this case.
"If _A_, thinking he hath a title to the horse of _B_, seizeth it
as his own, or supposing that _B_ holds of him, distrains the horse
of _B_ without cause, this regularly makes it no felony, but a
trespass, because there is a pretence of title; but yet this may be
but a trick to color a felony, and the ordinary discovery of a
felonious intent is, if the party does it secretly, or being
charged with the goods, denies it. * * * * *
"But in cases of larceny, the variety of circumstances is so great,
and the complications thereof so weighty, that it is impossible to
prescribe all the circumstances evidencing a felonious intent; on
the contrary, the same must be left to the due and attentive
consideration of the Judge and Jury, wherein the best rule is, _in
dubiis_, rather to incline to acquittal than conviction."
The next authority on that subject to which I will refer you is 2_d
East's Pleas of the Crown, p._ 649. The passage is:
"And here it may be proper to remark, that in any case, if there be
_any fair pretence_ of property or _right_ in the prisoner, _or if
it be brought into doubt at all, the court will direct an
acquittal; for it is not fit that such disputes should be settled
in a manner to bring men's lives into jeopardy_.
"The owner of ground takes a horse _damage feasant_, or a lord
seizes it as an estray, though perhaps without title; yet these
circumstances explain the intent, and show that it was not
felonious, unless some act be done which manifests the contrary: as
giving the horse new marks to disguise him, or altering the old
ones; for these are presumptive circumstances of a thievish
intent."
I call attention also to the case of _Rex_ vs. _Hall_, _3d Carrington &
Payne_, 409, which was a case before one of the Barons of the Exchequer
in England. It was an indictment for robbing John Green, a gamekeeper
of Lord Ducie, of three hare-wires and a pheasant. It appeared that the
prisoner had set three hare-wires in a field belonging to Lord Ducie,
in one of which this pheasant was caught; and that Green, the
gamekeeper, seeing this, took up the wires and pheasant, and put them
into his pocket; and it further appeared that the prisoner, soon after
this, came up and said, "Have you got my wires?" The gamekeeper replied
that he had, and a pheasant that was caught in one of them. The
prisoner asked the gamekeeper to give the pheasant and wires up to him,
which the gamekeeper refused; whereupon the prisoner lifted up a large
stick, and threatened to beat the gamekeeper's brains out if he did not
give them up. The gamekeeper, fearing violence, did so.