_Mr. Evarts_ said: If the Court please, I shall hardly find it
necessary, in stating the propositions of law for the Government, to
consume as much time as has been, very usefully and very properly,
employed by the various counsel for the prisoners in asking your
attention to the views which they deem important and applicable in
defence of their clients. The affirmative propositions to which the
Government has occasion to ask the assent of the Court, in submitting
this case to the Jury, are very few and simple. Your honors cannot have
failed to notice that all the manifold, and more or less vague and
uncertain, views of ethics, of government, of politics, of moral
qualifications, and of prohibited crimes, which have entered into the
discussion of the particular transaction whose actual proportions and
lineaments have been displayed before the Court and Jury, are, in their
nature, affirmative propositions, meeting what is an apparently clear
and simple case on the part of the Government, and requiring to be
encountered on our part more by criticism than by any new and positive
representation of what the law is which is to govern this case under
the jurisprudence of the United States.
I shall first ask your honors' attention to the question of
jurisdiction, which, of course, separates itself from all the features
and circumstances of the particular crime. Your honors will notice that
this question of jurisdiction does not, in the least, connect itself
with the subject or circumstances of the crime, as going to make up its
completeness, under the general principles which give the _locality_ of
the crime as the _locality_ of the trial. With these principles,
whether of right and justice, or of convenience for the adequate and
complete ascertainment of the facts of an alleged crime, we have no
concern here. The crime complained of is one which has no locality
within the territorial jurisdiction of the United States, and assigns
for itself, in its own circumstances, no place of trial. From the fact
that the crime was completed on the high seas, equally remote, perhaps,
from any District the Courts of which might have cognizance of the
transaction, there are no indications whatever, in its own
circumstances, pointing out the jurisdiction for its trial. It is,
therefore, wholly with the Government, finding a crime which gives, of
itself, no indication of where, on any principle, it should be tried,
to determine which of all the Districts of the United States in which
its Courts of Judicature are open,--all having an equal judicial
authority, and all being equally suitable in the arrangement of the
judicial establishment of the Union,--it is entirely competent, I say,
for the Government to determine, on reasons of its own convenience,
which District, out of the many, shall gain the jurisdiction, and upon
what circumstances the completeness of that jurisdiction shall depend.
It is not at all a right of the defendant to claim a trial before a
particular tribunal, nor are there any considerations which should
prevent the selection of the place of jurisdiction through whatever
casual agency may be employed in that selection. In the eye of the law,
the Judges are alike, and the Districts are alike. Congress,
considering the matter thus wholly open, in order that there might be
no contest open for all the Districts, and assuming that there would be
some natural circumstance likely to attend the bringing of the offender
within the reach of civil process, when a crime had been committed
outside of the civil process of every nation, determined, by the 14th
section of the Crimes Act of March 3d, 1825, which gives the law of
jurisdiction in this case, that the trial should be "had in the
District where the offender is apprehended, or into which he may be
first brought." Nor is it a true construction of this statute to say
that the law intends that the cognizance of the crime--all of the
Districts being equally competent to try it, and there being nothing in
the crime itself assigning its locality as the place of trial--shall
belong exclusively to that Court which shall first happen to get
jurisdiction by the actual bringing of the offender within its
operation. If that be true, it is apparent that neither one of the
Districts thus differently described has jurisdiction exclusively of
the other. Now, the language of the statute certainly gives this double
place of trial in the alternative; and it is very difficult to say what
principle either of right, of convenience, or of judicial regularity,
is offended by such a construction and application of the statute.
Accordingly, I understand it to have been held by Mr. Justice Story, in
the case of _The United States_ vs. _Thompson_ (1 _Sumner_, 168), that
there were these alternative places of trial; and, as a matter of
reasoning, he finds that such arrangement is suitable to the general
principles of jurisprudence, and to the general purposes of the
statute. Now, if this be so, then, as we come, in this District, within
one of the alternatives of the statute, and as this District is
confessedly the one in which the apprehension of the offenders took
place, we are clear of any difficulty about jurisdiction.
The case of Hicks, decided here, was, perhaps, not entirely parallel to
the one now under consideration. But, let us see how far the views and
principles there adopted go to determine this case, in the construction
of the statute in any of its parts. Hicks had committed a crime on the
high seas--in the immediate vicinity, I believe, of our own waters.
Making his way to the land, he proceeded unmolested to Providence, in
Rhode Island. The officers of justice of the United States, getting on
his track, pursued him to Rhode Island, and there he was found,
unquestionably within the District of Rhode Island. They did not obtain
his apprehension by legal process there, and thus bring him within the
actual exercise of the power of a Court of the District of Rhode
Island; but they persuaded him, or in some way brought about his
concurrence, to come with them into the District of New York, and here
the process of this Court was fastened upon him, and he was brought to
trial on the capital charge of piracy. On a preliminary plea to the
jurisdiction of the Court, and on an agreed state of facts, to the
effect, I believe, of what I have stated, the matter was considerably
argued before your honor, Judge Nelson, on behalf of the prisoner; but
your honor, as I find by the report, relieved the District Attorney
from the necessity of replying, considering the matter as settled,
under the facts of the case, in the practice of the Court. Now, the
argument there was, that the District of Rhode Island was the District
where the offender was apprehended; and it could not be contended that
the Southern District of New York was the one into which he was first
brought by means other than those of legal process. And the argument
was, that the crime for which he was to be tried here, being a felony,
any control of his person by private individuals was a lawful
apprehension, and one which might be carried out by force, if
necessary; and that, therefore, there was, in entire compliance with
the requisition of the statute, an apprehension within the District of
Rhode Island. If, under the circumstances of that case, that view had
been sustained by the Court, it could not have been, I think, pretended
that the Courts of this District had concurrent jurisdiction, because
of Hicks having been first brought into this District. The whole
inquiry turned on the question whether he was apprehended in the
District of Rhode Island.
In considering the case, your honor, Judge Nelson, recognized, as I
suppose, the view of the alternative jurisdiction which I have stated.
You said to the District Attorney: "We will not trouble you, Mr. Hunt.
The question in this case is not a new one. It is one that has been
considered and decided by several members of the Supreme Court, in the
course of the discharge of their official duties. It has repeatedly
arisen in cases of offences upon the high seas, and the settled
practice and construction of the Act of Congress is, that in such cases
the Court has jurisdiction of the case, in the one alternative, in the
District into which the offender is first brought from the high
seas--meaning, into which he is first brought by authority of law and
by authority of the Government. In cases where the offender has been
sent home under the authority of the Government, the Courts of the
District into which he is first brought, under that authority, are
vested with jurisdiction to try the case. The other alternative is, the
District in which the prisoner is first apprehended--meaning an
apprehension under the authority of law--under the authority of legal
process. This interpretation of the Statute rejects the idea of a
private arrest, and refers only to an arrest under the authority of law
and under legal process. It is quite clear, in this case, that no
District except the Southern District of New York possesses
jurisdiction of the offence; for here the prisoner was first
apprehended by process of law. We do not inquire into anything
antecedent to the arrest under the warrant in this District, because it
has no bearing whatever upon the question of the jurisdiction of the
Court. We have no doubt, therefore, that the Court has jurisdiction of
the case, and that this is the only District in which the prisoner can
be tried."
Now I owe the Court and my learned friend, Mr. Lord, an apology for
having supposed and stated that the provisions of the Act of March 3d,
1819, giving certain powers to the naval officers of the United States
"to protect the commerce of the United States," as is the title of the
Act, were not now in force. I was misled. The Act itself was but
temporary in its character, being but of a year's duration. By the Act
of May 15th, 1820, the first four sections of the Act of March 3d,
1819, were temporarily renewed. But afterwards, by the Act of January
30th, 1823, those four sections were made a part of the permanent
statutes of the country. The substantial part of the Act of March 3d,
1819, namely, the fifth section, which defined and punished the crime
of piracy, was repealed, and replaced by the Act of May 15th, 1820, and
has never reappeared in our statutes.
_Judge Nelson_: It is the fifth section of the Act of 1819 that is
repealed.
_Mr. Evarts_: Yes; that Act is found at page 510 of the 3d volume of
the Statutes at Large.
_Mr. Lord_: All that relates to the apprehension of offenders is in
force.
_Mr. Evarts_: Yes; that is all in force. The Act is entitled, "An Act
to protect the Commerce of the United States, and punish the Crime of
Piracy." The first section provides, that "the President of the United
States be, and hereby is, authorized and requested to employ so many of
the public armed vessels as, in his judgment, the service may require,
with suitable instructions to the commanders thereof, in protecting the
merchant vessels of the United States and their crews from piratical
aggressions and depredations." There is nothing in that section which
is pertinent to this case. The second section provides, "that the
President of the United States be, and hereby is, authorized to
instruct the commanders of the public armed vessels of the United
States to subdue, seize, take, and send into any port of the United
States, any armed vessel or boat, or any vessel or boat, the crew
whereof shall be armed, and which shall have attempted or committed any
piratical aggression, search, restraint, depredation, or seizure, upon
any vessel of the United States or of citizens thereof, or upon any
other vessel, and also to retake any vessel of the United States or its
citizens which may have been unlawfully captured upon the high seas."
This, your honors will notice, is entirely confined to authority to
subdue the vessel and take possession of it, and send it in for the
adjudication and forfeiture which are provided in the fourth section.
The third section gives the right to merchant vessels to defend
themselves against pirates.
There is nothing in the Act which gives to the officers of the
Government the power, or enjoins on them the duty, of apprehending the
pirates. I will now ask your honors' attention to the distinction
between this Act and the powers conferred by the slave-trading Act.
_Judge Nelson_: The Act of 1819 gives to the commanders authority to
bring home prisoners,--does it not?
_Mr. Evarts_: It does not, in terms, say anything about them. That is
the point to which I ask your honors' attention. The Act instructs the
commanders of public armed vessels to subdue, seize, take, and send
into any port of the United States, any armed vessel or boat, or any
vessel or boat, the crew whereof is armed, and that may have attempted
or committed any piratical aggression, &c. There is nothing said as to
the arrest of the criminals. It is a question of construction.
_Judge Nelson_: It is not specific in that respect.
_Mr. Evarts_: No, sir, it is not specific. Now, in the Act of March 3d,
1819, entitled, "An Act in addition to the Acts prohibiting the slave
trade," which will be found at page 532 of the 3d volume of the
Statutes at Large, a general authority is given to the President,
"whenever he shall deem it expedient, to cause any of the armed vessels
of the United States to be employed to cruise on any of the coasts of
the United States or Territories thereof, or on the coast of Africa, or
elsewhere," "and to instruct and direct the commanders of all armed
vessels of the United States to seize, take, and bring into any port of
the United States, all ships or vessels of the United States,
wheresoever found," engaged in the slave trade. And then comes this
distinct provision in reference to the apprehension and the bringing in
for adjudication of persons found on board of such vessels. It is the
last clause of the first section: "And provided further, that the
commanders of such commissioned vessels do cause to be apprehended and
taken into custody every person found on board of such vessel so seized
and taken, being of the officers or crew thereof, and him or them
convey, as soon as conveniently may be, to the civil authority of the
United States, to be proceeded against in due course of law, in some of
the Districts thereof."
This Act is the one referred to by Judge Sprague in the case of _The
United States_ vs. _Bird_ (_Sprague's Decisions_, 299)
_Judge Nelson_: There is limitation to that Act, is there?
_Mr. Evarts_: No, sir; it is unlimited in duration, and a part of the
law now administered. Now, I need not ask your honors' attention to the
familiar act which gives to Consuls of the United States direct
authority to take offenders into custody and detain them, and send them
by the first convenient vessel to the United States, to be delivered to
the civil authorities to be proceeded against.
Now, my proposition is this,--that neither under the slave-trading Act,
nor under the Act for the prevention and punishment of piracy passed in
1819, does the extra-territorial seizure, control and transmission of
offenders, exclude the plain terms of the alternative of the statute,
which makes jurisdiction dependent, not on apprehension merely, but on
apprehension within a District; and that, even though there is a
governmental introduction of the offender into a District, making that
District, in a proper sense, the one into which he is first brought,
yet that does not in the least displace the alternative of jurisdiction
of an apprehension within a District, there having been no prior
apprehension, by process, within any other District, as the
consummation and completion of the delivery of the offender to the
civil authorities for the purpose of a trial, the transaction having
been instituted on the high seas or in a foreign port.
Now, on the facts in this case, there is no room for disputing that the
first apprehension was within this District. Nor can I deny that the
seizure of these persons on the high seas was made by an armed vessel
of the United States, either under the general right which the law of
nations gives both to public and private vessels to seize pirates, or
under the implied right and power to do so, certainly so far as to make
it justifiable on the part of commanders of cruisers, by virtue of the
provision of the Act of 1819 which authorizes them to send in a
piratical vessel. These men were sent in, in the course of such active
intervention, by an armed vessel of the United States. But I submit to
your honors, that the provisions of that Act, which thus incidentally
include, as it were, the transmission of the ship's company of a
pirate, because they are to be subdued, and the ship is to be sent in,
cannot be turned, by any process of reasoning, into anything that can
be called a legal apprehension. I am satisfied that your honor, Judge
Nelson's view, that the term "apprehension" is only meant to apply to
the service of judicial process within a District, is entirely sound.
The principal argument and the principal authority relied on to
displace the jurisdiction thus plainly acquired under one alternative
of the statute, denies, really, that there is any alternative, or that
there can possibly be two Districts, either one of which may rightfully
have jurisdiction. That, I take it, is the substance of the
proposition. It is, that the alternative gives to one of the two
exclusive jurisdiction; and that, whenever facts have occurred--whether
jurisdiction has been exercised or not--which give to the one District
jurisdiction and an opportunity to exercise it, then, by the prior
concurrence of all the circumstances which fix the statutory
jurisdiction on that District, the possibility of the occurrence of any
new circumstances to give jurisdiction in the other and alternative
District is displaced.
The case of _The United States_ vs. _Townsend_ has been brought to your
honors' attention in the manuscript record of the preliminary
proceedings. The prisoner, who had been taken and brought into Key
West, where the vessel stopped, as we are told, for the temporary
purpose of supplies, was thence brought into Massachusetts. It is the
record of a proceeding wherein Judge Sprague, with the concurrence of
his associate, Mr. Justice Clifford, of the Supreme Court, sent the
prisoner, in that predicament, back to Key West for trial, and would
not permit an indictment to be found against him in the District of
Massachusetts. We have no knowledge of the facts of that case, except
what are contained in this record. Now, your honors will notice, in the
first place, that this is not a judicial determination as to the right
of jurisdiction of the Massachusetts Court, necessarily; but that, on
the theory which I present, that there are two alternative
jurisdictions, it may have been only a prudent and cautious exercise of
the discretion of that Court, preliminary to indictment, that this man
should be sent, on his own application, to the District of Florida for
trial. In other words, he interposed an objection that he was entitled
to a trial in Key West; and the Court, affirming the opinion that that
District had jurisdiction of the crime, determined that it would send
him there for trial, and that it would not exercise its own
jurisdiction, which might be made subject to some question. And yet it
is not to be denied that Judge Sprague is apparently of the opinion
that there are not two alternative places of jurisdiction, neither one
exclusive of the other; but that they are only alternative as respects
the one or the other which is the first to gain jurisdiction. It is a
little difficult to see, on this view, how there can be any two places,
rightfully described as separate places, one of which is the place into
which the prisoner is first brought, and the other of which is the
place where he is first apprehended; because, in the very nature of the
case, the moment you raise the point that the offender has been in two
Districts, and that in the latter of them he is apprehended, then it
follows that he has passed through the former; and the statute is
really reduced to this--that the offender must be indicted in the
District into which he is first brought. There cannot then be two
different Districts, into one of which he is brought, within the
meaning of the law, and in the other of which he is apprehended;
because, that into which he is first brought must necessarily precede,
in time, that in which he is first apprehended, and he could not have
been apprehended before, in a District other than that into which he is
first brought. So that you necessarily reduce the statute to a fixing
of the place of trial in the District into which the offender is first
brought.
The case of Smith--the trial just terminated in Philadelphia, in which
the prisoner was tried and convicted before the Circuit Court of the
United States--is an authority of the two Judges of that Court on this
very point, the circumstances of a prior introduction of the prisoner
within the Eastern District of Virginia being much more distinct than
in this case. The capturing vessel was a steamer, which took the prize
into Hampton Roads. The defendant and the others of the prize crew were
kept as prisoners on board this war steamer, which, after anchoring in
Hampton Roads, near Fortress Monroe, went a short distance up the
Potomac, returned, and again anchored in Hampton Roads, after which she
brought the prisoners, including the defendant, into Philadelphia,
where they were taken into the custody of the Marshal. Now,
unquestionably, geographically, that prisoner was within the State of
Virginia, and within the Eastern District of Virginia, rather more
distinctly than in the case now on trial. In that case, the Court
said--"One of the points of law on which counsel for the defence
requests instruction to the Jury is, that the Court has no jurisdiction
of the case; because, after his apprehension on the high seas, he was
first brought into another District, meaning the Eastern District of
Virginia, and ought to be there tried. This instruction cannot be
given. When he was taken prisoner, and was detained in the capturing
vessel, he was not apprehended for trial, within the meaning of the Act
of Congress. His first apprehension for that purpose, of which there is
any evidence, was at Philadelphia, after his arrival in this District.
Whether he had been previously brought into another District, within
the meaning of the Act, is immaterial"--recognizing the doctrine of two
alternative jurisdictions, neither exclusive of the other. "It has been
decided that, under this law, a person, first brought into one
District, and afterwards apprehended in another, may be tried in the
latter District. Therefore, if you believe the testimony on the
subject, this Court has jurisdiction of the case."
Now, your honors very easily understand, that without any election or
purpose on the part of any authority, civil or naval, representing the
Government, a prisoner may be brought into a District, yet never come,
in any sense, under the judicial cognizance of that District. In this
case, these prisoners might have escaped from the Harriet Lane, and
have fled to Massachusetts, or Pennsylvania, or wherever else their
fortune should have carried them, and might there have been first
apprehended. Now, what is there in the nature of the jurisprudence of
the United States, in respect of a crime committed outside of both
Districts, which should prevent the jurisdiction of Massachusetts being
just as effective as the jurisdiction of New York? If such be the law,
I have no occasion to argue any further. But the decision of Judge
Sprague is, in my judgment, quite opposed to that view of the law; and
I, must, therefore, present to your honors some considerations which,
in my judgment, make this the District, in the intendment of the
statute, into which these offenders were first brought, as well as the
District in which they were first apprehended.
The alleged prior introduction of these persons within any other
Judicial District of the United States, within the meaning of the
statute, is shown by the evidence of what occurred in reference to the
transit of the Minnesota, after she had taken them on board from the
capturing vessel, the Perry, off the coast of South Carolina. She
anchored off Fortress Monroe, just opposite Hampton Roads, and there
transferred these prisoners to the Harriet Lane, which brought them
into this District.
Now, it is said that that incident of the anchorage of the Minnesota in
or near Hampton Roads, and the transhipment of the prisoners to another
vessel, which the exigencies of the naval service sent to New York, did
fulfill the terms of the law in reference to the introduction of those
offenders within a District of the United States, and that they were,
therefore, first brought into the Eastern District of Virginia; and, if
that circumstance displaces the alternative jurisdiction, and thereby
Virginia became the exclusive District of jurisdiction, this trial
cannot be valid, and must result in some other disposition of these
prisoners than a verdict of guilty, if, on the merits of the case, such
a verdict should be warranted.
What are the traits and circumstances of that transmission? I
understood my learned friend, Mr. Lord, to concede that he would not
argue that the mere transit of the keel of the vessel transporting the
prisoners, in the course of its voyage to a port of destination,
through the waters of another District, was an importation or
introduction of the offenders into that District, so as to make it the
place of trial. Take, for instance, the case of a vessel making a
voyage from Charleston to New York. For aught I know, certainly, within
the practicability of navigation, her course may be within a marine
league of the shore of North Carolina, of the shore of Virginia, of the
shore of Maryland, and of the shore of New Jersey, before making the
port which is the termination of her transit. Well, my learned friends
say that they do not claim that this local position of a vessel within
a marine league while she is sailing along, is, within any sensible
view of the statute, an introduction into the District, so as to found
a jurisdiction.
Let us see, if your honors please, whether the transit of these
prisoners from the capturing vessel to the Marshal's office in New York
was not simply part of the continuous voyage of the vessel from one
point to the other. Where was the Minnesota, and on what employment and
duty, at the time she received these prisoners on board? She was the
flag ship, as the Commodore has told us, of the Atlantic Blockading
Squadron, and her whole duty was as a cruiser or blockading ship, at
sea, in discharge of the duty assigned to her.
I take it for granted that my learned friends will not contend that a
vessel, pursuing her voyage continuously along the coast of North
Carolina and the coast of Virginia, introduces an offender within a
District by stopping, either under any stress of navigation, or for any
object unconnected with any purpose to terminate her voyage, or that
the fact of her being becalmed, or of her having anchored off the coast
to get water or supplies, and having then pursued her voyage
continuously to New York, would alter the character of the transit, in
any legal construction that it should receive.
Now, what did the Minnesota do? The Commodore took the prisoners on
board that vessel, as he tells you, for the purpose of sending them to
New York by the first naval vessel that he should be able to detach
from the service. Did he, in the interval between the capture and the
complete transmission and reception of the prisoners here, ever make a
port or a landing from his vessel, or ever depart from the design of
the voyage on which he was engaged? No. He was on his cruise, bound to
no port, always at sea, and only in such relations to the land as the
performance of his duty to blockade at such points as he saw fit,
whether at Charleston or the Capes of Virginia, required him to be in.
And there is no difference, in the quality of the act, arising from his
having stopped at Hampton Roads, and thence sent forward the prisoners
by the Harriet Lane, because she was the first vessel that was going to
New York--going, as has been stated, for a change of her armament and
for repairs.
Now, I submit to your honors, that there is nothing, either in the
design or the act of this blockading vessel, the Minnesota, or of the
Harriet Lane, that causes the course of transmission of these prisoners
to the point of their arrest in this District to differ from what it
would have been if, with an even keel, and without any interruption,
the capturing vessel, the Perry, had started for New York, and had, in
the course of her navigation, come within the line of a marine league
from the shore of some District of the United States, and had,
perchance, anchored there, for the purpose of replenishing her supplies
for the voyage. In other words, in order to make out, within the terms
of the statute, a bringing into a District of the United States, so as
to make it a District of jurisdiction, within the sense of the statute,
it is impossible for the Court to fail to require the ingredient of a
voyage into a port, at least as a place of rest and a termination of
the passage of the vessel, temporary or otherwise. That is requisite,
in order to make an introduction within a District. And I cannot
imagine how his honor, Judge Sprague, or his honor, Judge Clifford,
could, in the case before them, have given any such significance to the
prior arrival of the vessel of the United States at Key West; for, it
was but a stopping at an open roadstead for the purpose, not of a port,
but of continuing at sea or in the sea service of the country.
Your honors will notice that, by such a construction of the Act,
instead of making the place where jurisdiction shall be acquired
dependent on some intelligent purpose, in the discretion of the
officers who control the person of the prisoner, as to where he shall
be landed, you make the question of jurisdiction dependent upon the
purest accident in the navigation of the vessel. Thus, in this
particular case, the Captain of the Minnesota tells us he had not coal
enough to come directly to New York, if he had designed to do so, and
that he stopped at his blockading station and sent the prisoners on by
another vessel, which the exigencies of the service required to make
the voyage.
There is another proposition upon this question of jurisdiction which I
deem it my duty to make to your honors, although I suppose the whole
matter will be disposed of on considerations which have been presented
on one side or the other, and, as I suppose, in favor of the
jurisdiction. Yet I cannot but think that the rules of jurisprudence
and the regular and effective administration of criminal justice will
suffer if these questions are to be interposed and to be passed upon by
the Court at the same time as the indictment itself. Where the question
of the locality of the trial forms no part of the body of the crime,
and has nothing to do with the place where the crime was committed, but
is wholly a question of the local position of the prisoner, then the
exception to the jurisdiction can only be taken as a preliminary plea,
or in the shape of a plea in abatement. That was the construction in
the Hicks case, and is the general rule in reference to jurisdiction in
civil cases which are dependent upon the proper cognizance of the
person of the defendant. I refer to the cases of _Irvine_ vs. _Lowry_,
(14 _Peters_, 293;) _Sheppard_ vs. _Graves_, (14 _Howard_, 505;) and
_D'Wolf_ vs. _Rabaud_, (1 _Peters_, 476.)
_Mr. Larocque_: I ask what particular point is decided by those cases?
_Mr. Evarts_: They are wholly on the point that where the jurisdiction
of a Court of the United States depends, not on the subject matter of
the suit, but on the District where the defendant is found, or on the
citizenship of the parties, an objection to the jurisdiction must be
taken by a plea in abatement.
_Mr. Larocque_: But suppose it depends upon the place where the crime
was committed, whether in New York or Ohio, whether on land or at sea?
_Mr. Evarts_: It is not necessary to ask that question, for I have
expressly excluded that consideration by the preliminary observation,
that the locality of the trial forms no part of the body of the crime.
In this case, the crime having been committed outside of any locality,
it is wholly a question of the regularity and legality of the means
whereby the criminal has been brought into the jurisdiction--nothing
else.
_Mr. Larocque_: Does the counsel cite these cases to show that want of
jurisdiction must be pleaded in abatement?
_Mr. Evarts_: It is the rule in civil cases. Now, your honors will see
that the question forms no part of the issue of guilty or not guilty.
_Mr. Larocque_: Will you look at the last averment in your indictment?
_Mr. Evarts_: I repeat, that it forms no part of the body of the crime,
and no part of the issue of guilty or not guilty, that is to be
determined by the Jury. If the Jury, upon the issue of guilty or not
guilty, should pass upon the question as to what District the defendant
had been first brought into, or as to what District he was apprehended
in, and should find that this Court had no jurisdiction, he would be
entitled to an acquittal on that ground, and that acquittal would be
pleadable in bar if he were put on trial in the proper District; for,
there is no mode, that I know of, of extricating this part of the issue
from the issue on the merits of the case, when it is decided by a
verdict. There is no possibility of discriminating in the verdict.
There is no special verdict and no question reserved. It is a verdict
of not guilty. And, therefore, on the question of regularity of
process, the crime itself is disposed of--the whole result of the
judicial investigation being that the trial should have been in another
District.
But, where the locality of the crime forms a part of its body, of
course, the Government, undertaking to prove a crime to have been
committed within a District, rightly fails if the crime is shown not to
have been committed within that District.
_Mr. Larocque_: And then can they not try it where it was committed?
_Mr. Evarts_: I should not like to be the District Attorney who would
try it.
Now, if the Court please, upon the matters connected with the merits of
this trial, the first proposition to which I ask your honors' attention
is--that the Act of April 30th, 1790, in the sections relating to
piracy, is constitutional, and that the evidence proves the crime as to
all the prisoners under the eighth section, and as to the four citizens
under the ninth section. The crime is also charged and proved against
all the prisoners under the third section of the Act of May 15th, 1820.
I do not know that your honors' attention has been drawn to the
distinction between the eighth section of the Act of 1790 and the third
section of the Act of 1820. The counts in the indictment cover both
statutes, and both statutes are in force. The words of the eighth
section of the Act of 1790 are these:
"If any person or persons shall commit, upon the high seas,"
"murder or robbery," "every such offender shall be deemed, taken
and adjudged to be a pirate and felon, and, being thereof
convicted, shall suffer death."
The whole description of the crime is "murder or robbery" "upon the
high seas."
The third section of the Act of 1820 adds to that simple description of
criminality certain words not at all tautological, but making other
acts equivalent to the same crime. The section provides that, "if any
person shall, upon the high seas, or in any haven, &c., commit the
crime of robbery in or upon any ship or vessel, or upon any of the
ship's company of any ship or vessel, or the lading thereof, such
person shall be adjudged to be a pirate, and, being thereof convicted,"
"shall suffer death." Beyond the simple word, "robbery," is added, "in
or upon any ship or vessel, or upon any of the ship's company of any
ship or vessel, or the lading thereof."
_Judge Nelson_: The fifth section of the Act of March 3d, 1819,
provides for piracy on the high seas according to the law of nations.
The previous Act of 1790, and the third section of the Act of 1820,
prescribe the punishment of the crimes of murder and robbery on the
high seas.
_The District Attorney_: The Act of 1820 does not refer to murder, only
to robbery on the high seas.
_Judge Nelson_: It denominates as a pirate a person guilty of robbery
on the high seas.
_Mr. Evarts_: But the body of the crime is the robbery, and not the
epithet.
_Mr. Brady_: That is the question.
_Mr. Evarts_: But, in the fifth section of the Act of 1819, the
provision is, that "if any person shall, on the high seas, commit the
crime of piracy as defined by the law of nations."
_Judge Nelson_: That is a different offence.
_Mr. Evarts_: Yes, and is open always to the inquiry, what the law of
nations is.
Now, that Act of 1790 is, we say, constitutional. And here I may as
well say what seems to be necessary in reference to the point made by
Mr. Brady on behalf of the prisoners. He will contend, he says, that
the ninth section of the Act of 1790 is beyond the constitutional power
of Congress--its constitutional power in the premises being limited, as
he supposes, to the right to define and punish the crime of piracy.
_Mr. Brady_: "And offences against the law of nations."
_Mr. Evarts_: To that explicit clause in the Constitution.
Now, your honors will notice what the crime in the ninth section of the
Act of 1790 is. It is not piracy so described, nor robbery so described
merely, but it is a statutory definition of the crime, which includes a
particular description and predicament of the offender (the eighth
section having included all persons), and also defines the subject of
the robbery, or the object of the piratical aggression. It is this: "If
any citizen shall commit any piracy or robbery aforesaid, or any act of
hostility against the United States, or any citizen thereof," &c.
"Piracy or robbery aforesaid" would, of course, include the definition
of the crime as embraced in the eighth section. But, the ninth section
proceeds to add a new and substantive completeness of crime, not
described either as piracy or robbery, to wit: "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."
Now, it is quite immaterial whether this statute is accurate in
declaring the offender to be "a pirate, felon, and robber." It has made
the offence a crime. Under what restrictions has it made it a crime?
Has it undertaken to extend the jurisdiction of the Federal Government,
as supported by the law of nations respecting piracy, which is a right
on the part of every nation to legislate not only for its own
citizens--not only in protection of its own property--but in punishment
of all pirates, of whatever origin, and in protection of all property
on sea, and wherever owned? Now that, undoubtedly, is the jurisdiction
under the law of nations, and neither by the Constitution has Congress
received any greater power under the law of nations than that, nor, I
respectfully submit, can it receive any greater power under the law of
nations; that is, Congress cannot receive any power greater than that
which other nations, not bound by our municipal statutes, would be
bound to respect, as sustained by the law of nations. Now I agree that
"any act of hostility against the United States, or any citizen
thereof," would not necessarily be up to the grade and of the quality
of piracy under the law of nations; and that the Congress of the United
States, in undertaking to make laws which would create an offence, and
punish it as piracy, which was not piracy by the law of nations, and in
seeking to enforce its jurisdiction and inflict its sanctions on a
people who owed it no municipal obedience, and in protection of
property over which it had no municipal control, and no duty to
perform, could not control foreign nations; and that foreign nations
would not be bound to respect convictions obtained under such a
municipal extension of our law over persons never subject to us, and in
respect to property never under our dominion.
And thus your honors see that, just in proportion as the ninth section
has extended the crime, it has limited both the persons to whom the
statute is applied, and the property in respect of which the crime is
defined. It is wholly limited to our own citizens, subject to whatever
laws we choose to make for our own government, and in respect of the
marine property of the United States, and of its citizens when at sea,
which, by every rule of the extension or limit of municipal authority,
is always regarded, on general principles of public jurisprudence, as a
part of the property and of the territory of the nation to which the
ship and cargo belong, wherever it may be on the high seas.
Now, this ninth section, I suppose, if your honors please,--and such I
understand to be the views of Judge Sprague, as expressed by him to the
Grand Jury, at Boston,--proceeds and is supported on the general
control given by the Constitution to Congress over all external
commerce, which, I need not say, must, to be effective, extend to the
criminal jurisprudence which protects against wrong, and the criminal
control which punishes crime perpetrated by our citizens on our own
commerce on the high seas. My learned friend would certainly not
contend that the different States had this authority in reference to
crimes on the high seas. And, if they have not that authority, then,
between these jurisdictions, we should have omitted one of the most
necessary, one of the most ordinary, one of the wisest and plainest
duties of Governments in regard to the protection of their commerce.
For, it is idle to say that there are no crimes which may be committed
at sea which are not piracy, and that there is no protection needed for
our own commerce against our own citizens which does not fall within
the international law of piracy.
_Mr. Brady_: I ask Mr. Evarts' permission to make a suggestion upon
this point, which it is due to him, and to myself, also, that I should
present, that I may hear his views in respect to it. I would ask the
learned gentleman, and the Court, to suppose the case of an American
citizen who, on the breaking out of a war between the United States and
England, should be residing in England as a denizen, and who had
resided there for many years, and who should take a commission for
privateering from the British Government, regularly issued, having
about it all the sanctions belonging to such an authority, and who, in
the prosecution of a war, should take an American prize,--would he be
liable to be convicted in the Courts of the United States of piracy or
robbery, under the act of 1790? He clearly would, on its language. And
then the question occurs--Had Congress any authority to pass such a
law?
Now, I will put a case which is stronger, and which comes equally
within the plain terms, purview, and spirit of that Act, upon a literal
construction. Suppose that two American vessels should come into
collision on the Pacific Ocean, each manned and officered exclusively
by American citizens, and, an angry feeling being engendered, the
Captain of one of them should direct a sailor to throw a belaying-pin
at the Captain of the other, and the sailor should do it. That would
clearly be an act of hostility against one citizen of the United States
perpetrated by another, and would be perpetrated under pretence of
authority from a person, to wit, the Captain of the ship who gave the
violent order. Would the sailor be liable to a conviction for that
offence, as a pirate or robber? and would Congress have the authority
to pass such a law? I doubt it very much.
_Mr. Evarts_: I agree with my learned friend that the case which he
first stated is not only within the words, but within the intent, of
the ninth section.
_Mr. Brady_: That an American citizen cannot take a commission from a
foreign Government without being a pirate?
_Mr. Evarts_: To serve against the United States, he certainly could
not; and, if the law of nations and the rights of citizens require that
a Government which demands allegiance and repays it by protection
cannot make penal the taking of service from a foreign power against
itself, I do not know what a Government can do. So much for the general
right or power of a Government. If the particular and clipped
interpretation of our Constitution has shorn our Government of that
first, clearest, and most necessary power, why, very well. Such a
result follows, not from that power or its exercise being at variance
with the general principles or powers of Government, but because, as I
have said, in the arrangement of the Government, there has fallen out
of the general fund of sovereignty this plain, and clear, and necessary
right.
But, on the second instance which my learned friend has put, I am
equally clear in saying, that the case he there suggests is not within
the statute of 1790, simply because, although by a forced and literal
construction, if you please, about which I will not here quarrel, my
learned friend thinks he places it within the general terms of the
ninth section, yet I imagine your honors will at once come to the
conclusion, which seems to my poor judgment a sensible one, that the
case he puts has nothing to do with the subject matter of the statute,
within its intent or purpose--and that, simply, because the statute has
not chosen to cover the case proposed, by applying to it so extravagant
a penalty. It is not from any defect in the power of Congress. Congress
does punish just such an offence as the one suggested, whenever the
weapon and the assault make it of the gravity of offences to which
Congress has chosen to apply its penal legislation. The statute
covering such an offence is enforced every day in this Court. And,
certainly, I do not need to argue that, if Congress had the right to
pass a statute prohibiting an assault with a belaying-pin, it had the
right to call the offence piracy, if it pleased, and might punish it by
hanging, if it saw fit; and, for that, it is not amenable to the law of
nations, nor is its power exercised with reference to piracy under the
law of nations when it deals with that class of offences.
I certainly do not need to fortify my answer to the case first put by
my learned friend, in regard to the right of a nation to punish its
citizens for taking service against its own country and commerce, by
the practice or the legislation of other nations. But your honors will
find, in the statutes of Great Britain--the statutes of 11 and 12
William III., and 2 George II.--precisely the same exercise of power
and authority, and to the same extent, as respects the gravity of the
crime and the punishment prescribed for it. And it would seem to me to
be one of the plainest rights and most necessary duties of the
Government, if its attention is called to any proclivity of its
citizens to take service against itself, to punish them not as
prisoners of war, and not under the laws affecting privateers.
_Mr. Brady_: I will only mention to you that, when I argue the question
hereafter, and answer your suggestions, I will refer to the case of
_The United States_ v. _Smith_, (5 _Wheaton_, 153,) where Mr. Webster
conceded, in the Federal Court, that this original Act defining piracy
was, as respects the language I have referred to, not a constitutional
exercise of the power conferred on Congress. He took the ground that
the statute made a general reference to the law of nations as defining
piracy, whereas, in his view, Congress should have proceeded to state
what were the elements of the offence. I want to use that, in my
argument, as an illustration of how strictly the Courts have held that
it was never intended that even the case of taking a commission in a
foreign service and making war against the United States, which might
be treason, should be converted into piracy by any necromancy or
alchemy of the law, such as the gentleman seems to have in view.
_Mr. Evarts_: Whenever a statute declares an offence to be a certain
offence, that offence the Courts must hold it to be. The nomenclature
of the Legislature is not to be quarreled with by the Courts which sit
under its authority. They are to see that the crime is proved. What the
crime is called is immaterial.
_Mr. Brady_: Then the Legislature might say that speaking offensive
words on the high seas by our citizens is piracy.
_Mr. Evarts_: They can call it piracy, and punish it.
_Mr. Brady_: Yes, by death!
_Mr. Evarts_: It does not come under the law of nations as piracy, but
under the general control of Congress over our citizens at sea. In
other words, no nation depends, in the least, on the law of nations and
its principles for the extent of its control over its own citizens on
the high seas, or for the extent of the penalties by which it protects
its own commerce against the acts of its own citizens on the high seas.
It takes cognizance of such offences by the same plenary power by which
it takes cognizance of offences on land. The difference with us would
be, that the State government would have the control of these offences
when committed on the land, as a general rule, and they would come
within the Federal jurisprudence and the Federal legislation only by
their being committed on the high seas. Now, what was said by Mr.
Webster in the case of _The United States_ v. _Smith_, a case arising
under the Act of 1819? Mr. Webster argued that the special verdict did
not contain sufficient facts to enable the Court to pronounce the
prisoner guilty of the offence charged--that his guilt could not be
necessarily inferred from the facts found, but that they were, on the
contrary, consistent with his innocence--but that, even supposing the
offence to have been well found by the special verdict, it could not be
punished under the Act of 1819, because that Act was not a
constitutional exercise of the power of Congress to define and punish
piracy,--that Congress was bound to define it in terms, and was not at
liberty to leave it to be settled by judicial interpretation. That was
Mr. Webster's criticism upon the statute--that while the Constitution
had said that the law must define what was piracy, Congress had left it
to the Courts to define. Mr. Justice Story delivered the opinion of the
Supreme Court in that case, to the effect, that the crime of piracy was
constitutionally defined by the Act of Congress, and the point was so
certified to the Circuit Court.
The authority which this Court has for punishing the crime which has
come under consideration in this case is the law of the United States,
supported by the Constitution of the United States, in respect to both
branches of the statute under inquiry. As the indictment follows the
law, and the law follows the Constitution, the subject for your
cognizance is rightfully here, and the proofs and the evidence in the
case show that the crime has been committed, and that the acts of the
prisoners which resulted in the seizure of the Joseph on the high seas
include all the ingredients that enter into the completeness of the
crime of robbery on the high seas, as named in the eighth section of
the Act of 1790, and in the third section of the Act of 1820. I am
confining myself, in these observations, to the crime of the whole
twelve, not affected by the question of citizenship, and not falling
under the ninth section of the Act of 1790.
It is certainly not necessary for me here to insist, with much of
detail, on the question of the completeness or effect of the evidence
as showing that the seizure of the Joseph was attended by all the
circumstances of force, and was stimulated by all the purposes of
robbery, which the law makes an ingredient of this offence. So far as
the sufficiency of the evidence is to pass under the judgment of the
Jury, it is entirely out of place for me to comment on it here. And, so
far as any purpose of instruction to the Jury by your honors requires
any consideration now, it is sufficient for me to say, that there is no
trait of violence, and threat, and danger which, within the law of
robbery,--and the law of piracy, if there be any difference,--makes up
the necessary application of force, that is not present here. And I
understand my learned friend, Mr. Lord, to concede, that there was
force enough to make up the crime, if the element of intent, the
vicious purpose of robbery, was present, as part of the body of the
crime.
My learned friends have treated this latin phrase, _animo furandi_, as
if it meant _animo fruendi_--as if the point was, not the intent to
despoil another, but the intent to enjoy the fruits of the crime
themselves. Now, I need not say that a man who robs his neighbor to
give the money to charity, despoils him, _animo furandi_, just as much
as if he did it with the intention of using the money for his own
purposes of pleasure or profit. That is the point, and all the cases
cited only touch the question of whether, in the violent taking, or the
fraudulent taking, imputed as a crime, there could be supposed by the
Jury to be, on any evidence introduced, any honest thought, even the
baseless notion, on the part of the offender, that the property was not
that of the man from whom he took it, but was his own. I have not seen
anything in this evidence which should lead us to suppose that Mr.
Baker and his crew thought that this vessel, the Joseph, belonged to
them, and that they took her under a claim of right, as property of
their own. The right under which they acted was a supposed right to
make it their own, it then and there being the property of somebody
else--to wit, of the United States of America, or of some of its
citizens. So, your honors will find, that except so far as the
considerations of the moral quality of this crime, in regard to its not
being furtive and stealthy, are raised and supported by the general
considerations which are to change this transaction from its private
quality and description into a certain public dignity, as part of a
wider contest, and which considerations are to be disposed of by the
views which your honors may take of the affirmative proposition of the
defence, which would make this privateering at least an act of
hostility in flagrant war--except so far, I say, as these
considerations are concerned, I need not say anything more as to the
completeness of the ingredients, both of force, and of robbery or
despoiling another, necessary to make up the crime.
We come, now, if the Court please, to a variety of considerations, many
of them, I think, not at all pertinent to a judicial inquiry; many of
them ethical; many of them political; many of them addressed to the
consciences of men; and many of them addressed to the policy of
Governments--and which, in the forum where they are debatable, and
which for the most part is a forum which can never make a decision, may
be useful and interesting. Some of them do approach, doubtless, the
substance and shape of legal propositions; and I am sure I do no
injustice either to the nature, or purpose, or character of these
manifold views, when I say that they all centre on the proposition,
that this transaction, which, in its own traits and features as a
private act of these parties, is a crime of piracy, is transferred into
the larger range of a conflict of force, authorized by the laws of war,
and with no arbiter and no avenger, but in the conscience, and before
the common Judge of all. Now, if the Court please, the legal notion to
which we must bring this down, is this--that the acts here complained
of are, within the law and jurisprudence which this Court administers,
acts of privateering, not falling within the law of piracy.
Now, what is privateering? My learned friends have spoken of
privateering as if it were one of the recognized, regular, suitable
public methods of carrying on hostilities between nations, and as if it
fell within the general protection which makes combatants in the field,
fighting as public enemies, and against public enemies, amenable only
to the laws of war. And my learned friend, Mr. Lord, has read, with
much satisfaction, the very pointed observations made by Mr. Marcy in
his letter to the French Minister, which were very just and very
appropriate as a home argument against France; that is, the encomiums
of certain French commanders on the dignity and nobility of the conduct
of privateers who rushed to the aid of their country when at war. Now,
my view, and I believe the view of the law books and of the publicists
of the present day, is this--that privateering is the last relic of the
early and barbarous notions of war, that a trial of force between
nations involved a rightful exercise of personal hostility by every
individual of one nation against every individual of the other, and
against every portion of the property of the other. That law of war
which authorizes the attack on peaceful persons by armed bands on land,
and the robbery, devastation, and destruction of private property
wherever it may be found, has been long since displaced by those
principles of humanity, of necessity, and of common sense, which make
war an appeal, when there is no other arbiter, to the strength of the
parties, to be determined with as little injury to property and life as
possible. Now, privateers have never been looked upon as being
themselves entitled to the least comparison with the regularly enrolled
military power, or with the regular naval service, in respect to their
motives, or the general rules of their conduct, or the general effect
which their depredations are expected to produce. And the tendency of
all movements in the public laws of nations, as affecting the
maintenance of war, has been at least to discourage and to extirpate,
if possible, this private war on sea, in both of its forms--to wit, in
the form of public armed vessels taking private and peaceable property
on sea, and in the still more aggravated form of private armed vessels,
with crews collected for the purposes of gain and plunder, under the
license which war may give. So far from this Government having, on the
general principles, moral and social, which should govern such a
discussion, desired to maintain or extend privateering, it was among
the first and the earliest to concede in its treaties, and to gain from
the other contracting parties the concession, that if war should arise
between the parties to the treaty, privateers should not be
commissioned or tolerated on either side. And, if this Government has
failed to yield to the attempt made on the part of certain European
powers to crush this single branch of private war on the ocean, to wit,
war by private parties on the ocean, it has only been because it saw
that that design, not including the destruction of that other branch of
private war at sea--the war of public vessels against private
property--was not a design clearly stimulated by the purposes and
interests of humanity. While the European Governments chose to destroy
that branch which was least important to them--the use of private armed
vessels--they claimed to continue in full force the right of public
armed vessels to make aggressions on private property on every sea. The
one point was quite as important to have ameliorated as the other,
which permits us to recruit the small navy which our republican
institutions justify us in maintaining, by the vigor of our mercantile
marine in the time of naval war. Therefore, there is nothing in the
history of the country which can, in the least, support the idea that
we look with favor on the notion of privateering.
Some sensible observations upon the subject are to be found on marginal
page 97, in the first volume of Kent's Commentaries, to which I ask
your honors' attention:
"Privateering, under all the restrictions which have been adopted,
is very liable to abuse. The object is not fame or chivalric
warfare, but plunder and profit. The discipline of the crews is not
apt to be of the highest order, and privateers are often guilty of
enormous excesses, and become the scourge of neutral commerce. They
are sometimes manned and officered by foreigners, having no
permanent connection with the country or interest in its cause."
I agree that there is still left, under the license and protection of
the law of nations, the prosecution of hostilities on the high seas by
privateers and private armed vessels. And I agree that, although the
crime proved in this case does come within the description and
punishment of robbery and piracy, in its own actual traits and
features, yet if it be shown that what is thus made piracy and robbery
by the statute was actually perpetrated by a privateer, under the
protection of the law of nations, with a commission from a sovereign
nation, within the scope of the authority of that commission, it is an
answer to an indictment, the terms of which had been otherwise proved.
And that is undoubtedly what is claimed here. You have proved piracy
and robbery under the eighth section, say these defendants, if we
cannot impart to the circumstances and features of this crime some
public quality and authority which saves the transaction from
condemnation and punishment.
_Mr. Brady_: We say no such thing. We say that, if they acted in good
faith, however mistaken, and though the commission may be void, they
have not committed any offence whatever.
_Mr. Evarts_: This is the extent of my concession, as matter of
law,--that it is an answer to a charge of piracy which is otherwise
complete, that the crime was committed under conditions which, by the
law of nations, relieve it from punishment. Now, what are the
conditions that the law of nations requires?
First, there must be a war. We do not allow private armed vessels to
prosecute general marauding hostilities in support of the views of
their Governments. We do not allow the interruption of the freedom of
the seas by such marauding vessels, except in cases of flagrant war,
which neutral nations are compelled to recognize.
Secondly. The privateer must have received its commission from a
public, national, sovereign power. You cannot make a privateer, and
turn private acts that, by the law of nations and by municipal law, are
piratical, into acts of war, which are of the same intrinsic quality
and have the force of national acts, unless by this _sine qua non_ of
public authority and adoption.
Now, if the Court please, when it comes up for judicial inquiry,
whether a case of privateering, under the law of nations, is fairly
made out, and where the case arises during flagrant war between two
separate, independent, established nations, whose nationality is a part
of the order of things in the world, the Court has only really to
inquire, judicially, into two subjects--whether the vessel had a lawful
privateer's commission from one of the contending parties--and whether
the acts committed by her were within its scope, either actually or in
the sense of a fair construction of the authority, and of good faith in
the exercise of the power. But, even in these cases, where the only
points are, whether there be war, and whether there be nationalities on
each side which can convey this public authority, the Court is all the
while governed by, dependent upon, and subordinate to, the views of the
Government from which the Court derives its authority. No judicial
tribunal has a right to recognize a nation, of its own motion. No
judicial tribunal has authority to recognize a Government which the
Government from which it derives its authority does not recognize. I
have never heard it proposed, as a view either of public or of domestic
law, that when a Government has declined to recognize a nation, it was
within the jurisdiction of a Court of that Government to determine
differently, and reverse the decision of the political power. In the
cases of France and England, which are recognized Governments that have
placed themselves as firmly among the nations of the world as private
individuals are planted in the rights of man, our Courts intermit this
inquiry. A privateer of England which confines itself within the scope
of its commission, can not be proceeded against as a pirate, although
it commits acts which would of themselves be piracy. But, there do
arise questions which come under the jurisdiction of the Courts, under
circumstances of doubt and obscurity as to the course or view which our
Government has taken in relation to the alleged nationalities of
alleged belligerents; and I need not say to your honors, that by an
unbroken series of the decisions of the Supreme Court, as well as by
the necessary subordination of the judicial authority to the political
power of the Government, our Courts always take the view which their
Government takes in respect to struggles and hostilities which arise
between uncertain, indefinite and unascertained powers. Thus, whenever
there occur, between Colonies and the parent Government,--between
disaffected regions or populations and the sovereign to which they have
been subject--dissensions which, arising from the region of discontent,
sedition and turbulent disorder, reach the proportion of military
conflict and appeal to arms, then, when acts in the nature of war are
assumed to be performed, under circumstances that bring them within
judicial cognizance in our Courts, and in the Courts of any other
civilized nation, as to whether they still retain their quality and
character of private acts, attended by the private responsibility of
the criminals, or whether they are transferred to the wider theatre and
looser responsibility of warlike engagement, our Courts, as do the
Courts of other civilized nations, look to the Government to see what
is its policy and its purpose. The instances in which these unhappy
contests and these obscure questions have been presented before the
Courts, have been almost entirely connected with the separation of the
South American Colonies from the mother country of Spain. In all these
cases, the new Governments of the revolted Colonies gave commissions to
privateers, and undertook to put themselves before the nations of the
world as belligerents, claiming from neutral nations, not a recognition
of their independence, or of their completed nationality, but of their
right to struggle, through the forms of force and war, to establish
that nationality. They presented to the discretion and the policy of
every other civilized Government precisely this question--Is there
enough of substance, of good faith, of power, to justify us, as equal
expounders and equal defenders and protectors of the laws of nations,
although there be now no present nationality that can support, under
the rules of the law of nations, by mere right, the exercise of warlike
powers--is there enough, in the transaction, to justify us in
considering it to be so substantial and _bona fide_ an effort for the
assertion of independence and the creation of a new nation, that we
shall give to it the opportunity, and turn what would be piracy and
marauding into an act of belligerents, so far as we neutrals are
concerned?
When a nation is an independent nation, all other nations of the earth
are, by public law, bound to recognize it, and bound to recognize its
right to make war. The most powerful nation in the world has no more
right to make war than the smallest nation in the world; and, each
being judge of its own conduct, when a state of war exists, such war
must, by the public law of the world, be recognized. But when new,
unformed, inchoate, tentative consolidations or efforts of
nationalities present themselves, every nation has, by the public law,
a right to exercise its own wisdom, its own policy and its own sense of
justice, to determine whether or not it will recognize them; and, in
every one of the cases I have referred to that came before our Courts,
arising for their consideration as between two parts of a foreign
country, our Courts said--Our Government has done so and so; it has
recognized them as belligerents, and we follow our Government. In other
cases, as in that of the Commander Aury, the Court said--We do not
understand that there is any such power known in the world; our
Government has never in any way recognized, not its independence, for
that is not necessary, but its position as a war-making power, or as a
struggling power, fighting for nationality, and we cannot recognize
that condition of things.
Now, unhappily, there arises a conflict in our own country, which
presents the case of an armed military rebellion--a revolt of certain
portions of population, maintaining, if you please, to a certain
extent, the mastery over a certain portion of our soil, using against
us the actual means and processes of war, and compelling from our
Government, in maintaining dominion against their aggressive assaults,
the means of military power, naval and land forces, and all the
authority and violence of war. Foreign nations have had, in regard to
us and to this conflict, the same kind of questions presented that have
been presented to us in the contests between the dismembered parts of
other countries. And every nation was free to determine, upon this
exact question of the right of private war, as belonging to those
rebellious portions of this country--to determine whether it would
tolerate privateering as a warlike proceeding, or would regard
privateers as marauders or pirates without just right or cause, and
without the pretence of sufficient force and dignity, in a movement to
disturb the peace of the world.
My learned friends have said, using the force of the argument in aid of
their cause, that France and England have recognized the insurgents as
belligerents, and have precluded themselves from treating as pirates
private armed vessels that shall derive authority from these rebellious
powers. Well, by the same law of nations that gave to France and
England this right thus to elect, they had the right to determine, and
to announce by proclamation, that the peace of the world upon the ocean
should not be disturbed, under pretence of war, by these insurgents,
and that, if they should resort to private armed vessels to inflict
aggressions and disturb the commerce of the world, they would be
treated as pirates. And if, under the law of nations, the political
authorities of France and England had thus announced their policy that
these insurgents should be treated as pirates, I would like to know if
advocates would be heard, in the Court of Queen's Bench or in the
Courts of France, to urge that the Court, wiser than its Government,
should, in the exercise of sovereign discretion under the law of
nations, tolerate, as an act of war, what is piracy by municipal
statute or the law of nations, unless accredited as part of a warlike
movement. Would those Courts permit the defence to be made, that what
were declared to be acts of piracy were acts of war,--the Government
having so elected and so announced, that it would regard them as acts
of piracy and not as acts of war?
Now, I am arguing this case altogether on this point, as if the
Government from which this Court derives its authority--whose laws we
are administering--whose authority is vested in your honors on this
trial--stood as a stranger to and spectator of this contest, and it was
really a controversy between parts of another nation. And all I have
claimed is, that our Government, in common with the other nations of
the world, has, by the law of nations, the right, in its discretion, to
determine how this proceeding shall be treated, and what consequences
shall follow from it. Now, I need not say that, treating our Government
as if it stood _ab extra_, and as if, passing its judgment on what was
going on, it had determined that these privateers should be regarded as
pirates, they should not be recognized as having the right of war, or
the right, as an inchoate nationality, to perfect their independence.
The Proclamation of the President of the United States, of the 19th of
April, 1861, is a complete and perfect denunciation of this threatened
crime of piracy, the purpose to recur to which had been manifested by a
public declaration of Jefferson Davis, which had invited, from all
quarters of the globe, privateers to prey upon the commerce of the
United States. I need not say to your honors that when our Government
has pronounced this to be piracy, and to be not within the law of
nations, under its discretion to determine whether it will recognize an
inchoate nationality, this Court has not, any more than has a Court of
England or France, the power to say that what its Government does not
choose to recognize, even in the quality of belligerents, it will
recognize. What our Government has said shall remain in the quality of
criminality, must so remain, notwithstanding this proclamation of
Jefferson Davis, or any commission that may issue in pursuance of it.
I apprehend that even if we were to bring ourselves into the
paradoxical condition of passing judgment on this question as a
disinterested, yet sovereign nation, your honors would find in the acts
of the Government a complete denunciation against this proceeding as a
crime of piracy, and a complete policy, which the Court must follow,
leaving any diplomatic considerations of the results which may follow
its mistaken, if you please, construction of its duty, to be disposed
of by the authorities that are responsible for it.
_Mr. Brady:_ I believe there is no proof of any such action by the
legislative branch of this Government.
_Mr. Evarts:_ I apprehend that the whole course of the legislation of
this country shows that we do not recognize or tolerate this contest as
a thing that is rightfully to go on. That is all that is necessary.
I say, if the Court please, that the course of an external sovereignty,
in these intestine quarrels, turns upon the point whether it will give
its sanction to an intrusion upon the peace of the world by an inchoate
nation, and I am trying to consider that question as if our Government
had passed judgment upon it _ab extra_; and I say that the action of
our Government shows that we do not intend to recognize it as something
that should be allowed to go on. These considerations, as to any
recognition by this Court of rights derivable from _quasi_, pretended,
nascent, public powers, would induce this Court to follow the decision
of the Government, in case we were judging of the question as a
controversy between parts of another nation.
I am now brought to the consideration of who are the parties to this
controversy, and what are the relations of this Court and of the laws
we are administering to the subject and the inquiry. The Government of
the United States still stands. The old Constitution, the whole system
of its statutes, the whole power of its army and of its navy, stand. It
has its Courts of judicature; it has its commerce still on the seas;
its laws are still operative, and still to be administered. And when
this Court considers this case, it finds it brought before it as every
other criminal case is, and limited to the considerations that belong
to every criminal case. The Government of the United States, by the
ordinary exercise of the process of judicature,--by seizure under
public authority,--by arrest within this District, through the criminal
process of this Court,--by the indictment of a Grand Jury,--by the
prosecution of the District Attorney,--has proposed to this Court the
naked and narrow inquiry of whether these men have committed a crime
against the statutes of the United States. Now, I would like to know
whether there is anything in these occurrences, that have secured, if
you please, for the present, (and the future may be uncertain,) in
large portions of our territory, a practical control over great
portions of our population,--I would like to know if there is anything
in these transactions that has displaced the constitutional legislation
of the United States of America over crimes on the high seas, and over
its citizens committing crimes on the high seas, or over subjects or
citizens, of whatever country, committing crimes on the high seas
against our property? I take it, not. Therefore, if your honors please,
whatever may be said, in one form or another, of the political right,
as respects these States, either constitutionally or by the right of
force, to be independent, or to attempt to be independent of the United
States, or to engage in this struggle for the settlement of some
question of dispute under the Constitution,--whatever may be said of
that, your honors cannot fail to discover that nothing which has
occurred has destroyed the organism of our Government, or altered for a
moment the judicial authority or the force and supremacy of the
Constitution and the laws, within the territory where the Courts are
open, over the subjects of our Government, and the subjects of whatever
Government, in respect to whatever property, upon the high seas.
I understand that my learned friend, Mr. Larocque, supposes that the
ordinance of repeal of South Carolina, constitutionally or
unconstitutionally supported by the strength to maintain its
independence, has changed these four men who are indicted here and are
proved to be citizens of the United States, from their condition of
citizens of the United States; and he holds, and asks as legal
proposition from your honors, that, at the time of the commission of
this crime, these men were not citizens of the United States, by reason
of the constitutional right of South Carolina to carry itself out of
the Union, by force of ordinances, or supported by military power that
had maintained itself up to the first of June in the possession of
independent power. Your honors will charge, or refuse to charge,
accordingly as you may find that the old Government has sovereignty and
has attempted to exercise it, and that there has been no severance of
our territory to the extent of a permanent division,--whether these men
are citizens of the United States, or of a foreign country. If they are
held to be citizens of a foreign country, to wit, of South Carolina, or
of the Confederate States, then they fall back under the eighth section
of the Act, as having committed piracy under that section.
But, to come back to the attitude of our Government, which this Court
must follow, towards these rebels,--towards these malcontents,--towards
these combinations, which are exercising the processes of war,
undoubtedly,--what is the attitude of our Government? Does it recognize
their right--does it recognize their independence--does it recognize
their authority, so that you find that our Government has adopted the
policy of not punishing them under the laws of the United States?
And this brings me to the consideration of another general subject,
which Mr. Lord adverted to, and upon which he cited the authority of
Vattel--that it would be monstrous, and would expose this Government to
the execration of the world, if the criminal laws against murder and
robbery on land, and the civil laws against trespass, were to be
executed to the letter, and to the full extent of the vengeance of the
law against the multitudinous enemies that are arrayed against this
Government. Now, I must decline to be led out of a Court of Justice, by
this argument, to considerations that appeal to the wisdom, or
humanity, or policy of the Government. I would like to know whether my
learned friend would contend that, if a private soldier, found in arms,
and part of a military force, against the Government of this country,
is arrested by that Government, and is indicted, and put upon his trial
for treason, which the Constitution of the United States limits to the
overt act of levying war against the Government, and if, under the
indictment, he pleads in bar that he was levying war against the United
States of America,--that would relieve him? For that is the whole
nature of the proposition put forward in a Court of Justice,--that,
because there are armies, there is no treason! Why, if your honors
please, how absurd to present for the recognition of a Government, in
its Courts of Judicature, the proposition that there is no treason,
from the number of the confederates in the treachery! Your honors see
at once that, the idea of setting up such a defence, on a trial for
treason, against a private soldier, found in arms against the
Government, is absurd. And yet, your honors recognize what is laid down
by the publicists, that when the dimensions of a rebellion have been
aggravated into the proportions of flagrant war, for a Government to
insist upon the decimation or extermination of the population by the
gallows or the axe, would be inconsistent with those general principles
of humanity and justice that actuate, by necessity, the affairs of men.
It is not necessary for me to discuss these questions. It belongs to
the Government, after it has procured a conviction, either for piracy
or for treason, to decide, in its own discretion, whether the penalty
of the law shall be inflicted. Let us confine ourselves to our duties.
Let us not be asked here, as a learned Bench, or as honest Jurymen, to
recognize a Government or a state of belligerency that our nation does
not recognize. And let us not be asked to repeal statutes of treason
because the number of the traitors is so great that we cannot carry out
the penalties of the law against the whole. I would like to know if in
the face of any Court of Justice,--if in the face of the public opinion
of the world,--if in the face of the principles of eternal justice,--it
is to be set forward as a shield over the heads of the rebel leaders
and traitors, that they have inflamed and misled so large a body of the
common people, that they, the leaders, cannot be punished. I would like
to know if, when in advance, immediately upon the rebel proclamation
inviting privateers, our Government, through every newspaper in the
land, proclaimed that whoever should voluntarily take up this form of
piracy would be treated as a pirate, and you find the first privateer,
with the first commission taken out under this proclamation of
sovereignty, and the first band that volunteer--Mr. Baker and his crew,
collected from all the quarters of the globe,--the first engaged in
this new and flagrant form of outrage, against which they had been
warned,--I would like to know if these bold outlaws, stretching forward
a ready hand to grasp the license of war for plunder, the whole
proceeds of which are to fill their pockets, are to be presented in
this Court as being special objects of protection, under the principles
of humanity, and as being shielded against public justice in enforcing
the laws of piracy.
Now, if your honors please, treating, as I do, this question as one to
be passed upon, not with the coolness of a neutral power looking upon
these contending parties as independent nations, but by this Court as
the Government's own judicial organ for administering the public
justice, I would like to know what pretence there is that, under the
laws of the United States, the crime of piracy having been proved,
there is anything in this notion of a commission from a nationality
recognized by our Government, or of a belligerent right recognized by
our Government, that this Court can adopt as a merger of the private
crime in the public conflict. We contend, therefore, that in the
conflict now raging, the Constitution and the laws of the United States
make every person levying war against the Government a rebel and
traitor, and, if the war thus levied take the form of piratical
aggression, a pirate, within the statute.
Now, let me consider the ninth section of the statute. I will readily
concede to my learned friends whatever advantage they can gain from the
proposition that, when the ninth section was drawn, in the year 1790,
one year after the adoption of the Constitution, it was never supposed
that a pretended commission or authority to prey upon the commerce of
the United States and violate its laws would come from any part of the
people or of the territory of the United States. And I claim that there
is nothing in this commission which, if there had been no statute
recognizing a possible protection from a commission--there is nothing
in this commission from a citizen of the United States, Jefferson
Davis, to another citizen of the United States, Thomas Harrison Baker,
to prey upon the commerce of the United States, that can be regarded
for a moment as a license which makes him a privateer, instead of a
pirate. My learned friends have even sought to find occasion for a
variance between the proof and the indictment because we have alleged,
under the ninth section, that the pretended authority comes from "one
Jefferson Davis," and have proved a commission which says, "I,
Jefferson Davis, in the name of the Confederate States," have given
such authority. Why, if your honors please, this indictment was drawn
by an officer of the United States Government, to be tried in a Court
of the United States; and, having a fear of the law and a sense of his
duty to his country, he describes things as they are. And I would like
to have my learned friends point out to me any place, any office, any
title, any description, any addition, any qualification, that, under
the laws of the United States of America and its Constitution,
describes Jefferson Davis, except "one Jefferson Davis." He has
precisely that port and dignity before the law and the Constitution
that every other individual in the United States has, not filling an
office and post of authority under our Government and under our laws.
He does fill the place of citizen of the United States, and no measures
of separate State action, or of Confederate authority, have relieved
him from that full and complete description of him, under the
Constitution of the United States, as the measure of his allegiance and
of the penalties for its forfeiture. How could we have found a legal
phrase or term, if we regard the Government of the United States and
its Constitution, by which we could designate any such thing as
"Confederate States," or a foreign state, within the accredited
territory of the United States? The terms and intent of this ninth
section were framed so as to cover every imaginable authority, in the
nature of a commission from a State, from a nation, from a power, or
from any person, under the law of nations, for the conversion of
private marauders into public enemies with the rights of war; and,
although it never entered into the imagination of the framers of this
statute that it would ever have to be applied to exclude protection
under a commission from a citizen of the United States, its terms are
absolutely fitting. I contend that the statute is complete, and that
this commission is not a pretence of authority, even under the law of
nations establishing and recognizing privateers for struggling
communities. It is nothing but an authority from one citizen of the
United States to another citizen of the United States to prey upon the
property of the United States.
There are, if the Court please, some political considerations which
were, it appears to me, more appropriately urged by my learned friend,
Mr. Larocque, in his first address to the Jury, than in his argument to
the Court. The point made by him was this--that, under the Constitution
of the United States, every citizen of every State held what was called
the position of divided allegiance, having two sovereign masters over
him; that they were equal and co-ordinate sovereigns; and that it was
his duty to obey both of them. Now, with the necessary limitation that
each one is sovereign over him in some respects, and has not the least
power over him in others, and that the other is sovereign over him in
other respects, and does not include the first topic or line of duty,
there is a speculative support for this general notion. And, whenever
it is not urged into any absurd consequences, it serves, in the
language of the Courts and of public men, to describe the complex
Government under which we live. But, if my learned friend means to
assert that there are, under the Government of the United States,
according to its form and method of organic operation, two equal
sovereigns over every citizen on the same subjects, why then he has
flown in the face of a fundamental proposition, coming from higher
authority than the Convention of 1790--that no man can serve two
masters. It is not in the nature of things that there can be two
sovereigns having equal rights and authority over one subject; and my
learned friend illustrates the absurdity of the proposition when he
comes to consider what would be the result if the two sovereigns should
disagree. He says it is the duty of the subject to adhere to one side
or the other; that, it being his complete duty to adhere to one side,
the other side cannot complain of it as a breach of duty that he does
not adhere to him, but to the other; and that, therefore, the general
rule, that when you have a sovereign and are unfaithful to him you may
be hanged, cannot apply to the case, because you would, in either case,
be hanged. And his wise, and suitable, and certainly humane solution of
this difficulty is, that when one of the sovereigns indicts you for
treason, it is a good bar to say you elected in good faith to serve the
other sovereign. Thus, so far from there being two sovereigns, the
nature of the term sovereign including the right to hang you for
unfaithfulness, there is not one that has the right to hang you, and
you are master of both; for, whatever you do in good faith is a supreme
answer to both.
Now, if the Court please, this is the point of the whole thing--that,
under this peculiar Constitution of ours, and under this division of
the subjects of Government, each sovereign is judge of when the other
has passed the limits of his authority, and that the States possess the
right to compel the obedience of their citizens, and the United States
possess the right to compel the obedience of their citizens. It is
sufficient for us to say that we represent, as Federal citizens, the
Government of the United States in its interpretation of its own
position towards those its citizens, or those persons not its citizens,
who are alleged to have perpetrated crimes against its commerce; and,
whether there be, or not, speculations of political and theoretical and
ethical and conscientious right, in good faith, to put yourself at
variance with the Government of the United States because other people
do so, or because the State authority does so, it follows that the
United States, its authorities, its Courts, and its population, have
the right to think, and feel, and act, as if its Government were in the
right and you were in the wrong; and you, being brought within the
criminal justice of their law, can find no support and no protection
upon the good faith or upon the speculative political theories upon
which you have rested for your protection and for your authority.
It is said, that outside of this question of the political and legal
qualifications of this act which we say is criminal, the circumstances,
actual and moral, which surround these actors, and are shown by their
actions, have deprived their acts of the criminal quality which the
statute affixes to them; and that if, in good faith, they thought there
was a commission, and in good faith thought there was a rightful
Government, that good faith, which has despoiled the American merchant
of his property, is a plea in bar to the criminal jurisdiction of the
United States of America, whose laws they have violated, although all
this pretence, all this show, all this form of political and legal
support qualifying their acts, comes from men whom the Constitution
pronounces to be in the category of rebels and traitors, every one of
them amenable to the final jurisdiction of our laws. This is but
another form of saying that criminals joining hand in hand shall go
unpunished. Make the number of them what you will, if in the eye of the
law they assume authority which is on its face criminal and illegal,
and even though it is a part of a general scheme and organization for
violent military resistance to the authority of the country, no Court
can dispense from the punishment, but must inflict it through the
general and ordinary criminal authority in respect to the crime in
question, leaving the question of dispensation to the clemency, the
humanity, and the policy of the Government.
I believe that all the cases have been cited, either on the one side or
the other, from the Reports of the Supreme Court of the United States,
that have had to do with the question as to the political character of
the revolted South American States. Those which were cited by my
learned friend, Mr. Larocque, _The Josefa Segunda_ (5 _Wheaton_, 338),
_The Bello Corunnes_ (6 _Wheaton_, 152), and _The Santissima Trinidad_
(7 _Wheaton_, 283), are all authorities, as we suppose, for the view
which the Courts adopt, even when they are Courts of a neutral
nation--that they follow the decisions of their Government as to the
public quality and character of belligerents.
Adjourned to Monday, 28 Oct., at 11 o'clock, A.M.