From this we can see that there are two kinds of piracy--national
piracy and municipal piracy. No State can be prevented by any law of
nations from making anything piracy which that State pleases. For
instance, there is a law of piracy in Spain that any person committing
frauds in matters of insurance is a pirate; or that any one even
cutting the nets of a simple fisherman is a pirate. I might quote other
instances. In our own country the slave-trade is a piracy; but that
does not make it piracy everywhere. In some of the States of Germany
slave-trade is kidnapping, and is punished as such.
What, now, is the relation of these foreigners to this municipal
piracy, under the indictment with which they stand charged? That it is
municipal piracy, I need not say anything further, after the full
argument of our friend and father, Mr. Lord. The law is very distinct.
It is, "if any _citizen_ shall do so and so." But how do these men come
in? Here I come to the point why I thought it fit and incumbent on me
to offer my propositions. The prosecution will certainly stretch, as I
said before, the construction and interpretation of the law in this
way: It will say, "These men were apprehended on an American bottom,
and, being on an American bottom, they were on American soil, and as,
according to criminal law, they are protected by our law, so they are
bound by our law." This, I apprehend, is the theory on which the
prosecution will urge that these foreigners--notwithstanding the
distinct expression of the law, "if any citizen"--shall be found guilty
under this indictment. But as they are foreigners to this law, so is
this law foreign to them. And there is a principle in criminal law
which says--I read from section 238 of Bishop's Criminal Law, vol. I.--
"It is a general principle that every man is presumed to know the
laws of the country in which he dwells, or, if resident abroad,
transacts business. And within certain limits, not clearly defined,
this presumption is conclusive. Its conclusive character rests on
considerations of public policy, and, of course, it cannot extend
beyond this foundation, though we may not easily say, on the
authorities, precisely how far the foundation of policy extends. We
may safely, however, lay down the doctrine that in no case may one
enter a Court of Justice to which he has been summoned, in either a
civil or criminal proceeding, with the sole and naked defence that
when he did the thing complained of he did not know of the
existence of the law he violated. _Ignorantia juris non excusat_
is, therefore, a principle of our jurisprudence, as it is of the
Roman, from which it is derived."
This rule, so essential to the ordinary administration of justice,
cannot be deemed strange in criminal cases generally, because most
indictable wrongs are _mala in se_, and, therefore, offenders are still
conscious of violating the law "written in every man's heart."
But--and now I refer to the note to this section, which
says--"ignorance of the law of foreign countries is, with the exception
noticed in the text, ignorance of fact which persons are not held to
know." The author cites the following authorities: Story's Equity
Jurisprudence, sections 110, 23; American Jurisprudence, sections 146
and 347; to which I would add 8 Barbour's Supreme Court Reports, 838
and 839, and the case of Rex _versus_ Lynn, 2d Term Report, 233.
Now, I contend that, as this law under which the indictment is drawn is
a law creating municipal piracy, so it is a law foreign to these
foreigners; that, therefore, as to them, it is a matter of fact, and,
according to the criminal theory, _ignorantia facti excusat_, these
foreigners cannot be found guilty under this law. Municipal piracy, to
carry out the doctrine of this theory, is not _malum in se_; for, as I
said before, international law does not acknowledge it as such, but is
opposed to it as to foreigners; and if I understand well the decision
of the Supreme Court, it is even acknowledged, in the case of the
United States _versus_ Palmer, 3d Wheaton, 610, that the Congress of
the United States cannot make that piracy which is not piracy by the
law of nations, in order to give jurisdiction to its Courts over such
offences.
Besides, this knowledge of facts enters a good deal into the theory of
intent. So much has been said about the piratical intent, that I can
pass this by in silence. But, with reference to the theory that
foreigners are to be taken as ignorant of facts, I will give an
illustration that was suggested to me this morning by an incident which
occurred on my way to the Court. A little boy in the street handed to
me a card of advertisement which had all the appearance of a bank note.
Now, I remembered at the moment that about three years ago the
Legislature of South Carolina passed a law making the issuing and
publication of such advertisements--such business cards--an offence,
punishable, if I am not mistaken, both by fine and imprisonment. Now
suppose that the great American showman at the corner of Ann and
Broadway should carry his "What is it" or Hippopotamus down to
Charleston, and issue such an advertisement, and he should be brought
before the Court of South Carolina; would it not be unjust, as the
offence is not _malum in se_, to find him guilty? Certainly it would
be; and, according to the same theory, I cannot imagine, by any
possible process of reasoning, that these prisoners should be deemed
guilty under an indictment, when the law was entirely foreign to them.
They may justly say, as they might have known, and did perhaps know,
that our country, too, holds to this simple doctrine: "Let us have fair
play." So when certain provinces rose up in revolt against the parent
or original Government, to conquer, as it were, their independence,
this country maintained a state of neutrality, and granted to both
parties belligerent rights. Many such cases have been cited; but the
most striking one, I am astonished, has not been cited. I will refer to
it now. It is the case of the United States against the Miramon and the
Havana, tried before the District Court of New Orleans. These two
steamers were commissioned vessels, belonging to an authority not only
not recognized by the Government of the United States, but opposed to
the Government which had been recognized by ours. They were
commissioned ships of General Miramon, and were seized and libeled; yet
they were released. Perhaps it would have been better for us if they
had not been released, because they have since given us some
trouble--one of them (the Havana) having been converted into the
ubiquitous Sumter, which is rather a terror to our mercantile marine.
I will not further trespass upon your honors' time, but will
immediately read my proposition. That proposition is, that, "As to the
defendants who are shown to have been citizens of foreign States at the
date of the alleged offence, the law is, that they cannot be found
guilty of piracy under the present indictment, which includes only
piracy by municipal law--the ignorance of which, as to foreigners, is
not _ignorantia legis_, but _ignorantia facti_. Therefore the defendant
Clarke, and the other foreigners, should be acquitted."
Before, however, I close my few remarks, I must, in justice to my
immediate client, William Charles Clarke, add another observation. I
have, by submitting to your honors the proposition, separated, as it
were, his case and that of the other foreigners from the rest of the
prisoners. I did so on my own responsibility; for he let me understand
that he did not wish to see his case separated from the others. He
expressed that sentiment to me in a very forcible German proverb. It
was, "_Mitgegangen, mitgefangen, mitgehangen_!"[3] Yet I thought it
incumbent on me, as his counsel, to urge all those circumstances that
might be beneficial to him and to those in the same position,--trusting
that the unity and identity of the fate of all thus severed by me may
be restored in this wise: that the case of these foreigners may be made
also the case of the four citizens, both by the ruling of your honors
and the verdict of general acquittal of the Jury.
[3] "Gone along, caught along, hanged along."
_Mr. Brady_--Before Mr. Evarts proceeds to close the legal
considerations involved in the case I feel it proper to advise him of a
point for which I will contend, and on the discussion of which I do not
now intend to enter. I will not admit that Congress had the power,
under the Constitution of the United States, to pass the ninth section
of the Act of 1790, which, upon my construction of it, would punish as
piracy the act of an American citizen who should take a commission from
England or France and then commit an act of hostility on an American
ship or on an American citizen on the high seas. The argument is in a
nutshell; though, of course, I shall give some illustrations at the
proper time. It is this--that there is no common-law jurisdiction of
offences in this Government; that it can take cognizance of no crimes
except those which are created by Act of Congress, including piracy;
and that the authority of the Constitution conferred upon Congress, to
pass laws defining piracy and to punish offences against the law of
nations, relates only to such offences as were then known, and does not
invest the Legislature of the Federal Government with authority, under
pretence of defining well-known offences, to create other and new
offences, as is attempted to be done in the Act of 1790.