_Mr. Evarts_ said: Perhaps it is unnecessary that I should say to the
Court and learned counsel, that I shall refer to the Statute of
treason, as well as to the Constitutional provision as to treason. The
Statute of treason is found in the first section of the Crimes Act of
1790.
_Mr. Dukes_ said:
_May it please your honors and gentlemen of the Jury._
It has been said by one of the most eminent statesmen that ever lived,
that "civil wars strike deepest into the manners of the people,--they
vitiate their politics; they corrupt their morals; they pervert the
natural taste and relish of equity and justice."
If this be so, one would think that this was a singularly unfortunate
time for the Government to bring on the trial of these prisoners at
your bar, who are entitled to that right which the Constitution offers
to the meanest citizen--that of a fair and impartial trial.
Is it to obtain that fair and impartial trial that the case is brought
on now, when the flame of civil war lights the land, and when, in every
stage and condition of society, the bitterest sentiments of hostility
prevail?
Is it in order to afford the prisoners a fair and impartial trial that
the case is brought on now, when tender infancy and gentle woman unite
with stern and selfish man in uttering the deepest imprecations on
their enemies?
Is it in order to obtain a fair and impartial trial that the case is
brought on now, when, on God's holy day, in his holy temple, his chosen
ministers officiating at his holy altar, utterly unmindful of the
injunction of their meek and lowly Master, "to forgive their enemies,
and to pray for those who despitefully use them"--offer up to Heaven
prayers for its severest vengeance upon the heads of their enemies?
If so, gentlemen, I beg at least, (as one of the counsel,) to offer my
dissent.
It does, indeed, seem to me that this is a singularly unfortunate time
to bring on this trial. But yet, gentlemen, I feel buoyed up with hope,
because I know the unbending integrity of the Judges that officiate,
and I know that the Jury, which sits in judgment over the lives of
these men, is chosen from the citizens of New York--a city in which, if
any city in the world possesses large, liberal, and enlightened views,
we may hope to find them. But, still, the officers of the Government
must excuse me for saying that I think it unfortunate, and somewhat
illiberal in them, considering the character of the charge made against
these men, to try them now. It does seem to me that it is, at best, but
trying treason with an odious name.
Gentlemen, this is no new thing. Years ago this very question, as to
the propriety of trying men situated as these men are, was brought
before the mind of that liberal and enlightened statesman, Edmund
Burke--the long-tried and faithful friend of America; and I trust that
I may be pardoned for referring to his words on this occasion, and for
reading to you a passage from his celebrated letter to the Sheriffs of
Bristol, in 1777, which, perhaps, will more fully illustrate my views
than anything I can say. Speaking about American privateersmen, then in
the same position as these men now are, he says:
"The persons who make a naval warfare upon us, in consequence of
the present troubles, may be rebels; but to treat and call them
pirates is confounding, not only the natural distinction of things,
but the order of crimes; which, whether by putting them from a
higher part of the scale to the lower, or from the lower to the
higher, is never done without dangerously disordering the whole
frame of jurisprudence.
"Though piracy may be, in the eye of the law, a less offence than
treason, yet, as both are, in effect, punished with the same death,
the same forfeiture, and the same corruption of the blood, I never
would take from any fellow-creature whatever any sort of advantage
which he may derive to his safety from the pity of mankind, or to
his reputation from their general feelings by degrading his
offence, when I cannot soften his punishment.
"The general sense of mankind tells me, that those offences which
may possibly arise from mistaken virtue are not in the class of
infamous actions.
"Lord Coke, the oracle of the English law, conforms to that general
sense, where he says, 'That those things which are of the highest
criminality may be of the least disgrace.' * * * * *
"If Lord Balmerine, in the last rebellion, had driven off the
cattle of twenty clans, I should have thought it would have been a
scandalous and low juggle, utterly unworthy of the manliness of an
English judicature, to have tried him for felony as a stealer of
cows.
"Besides, I must honestly tell you that I could not vote, or
countenance in any way, a statute which stigmatizes with the crime
of piracy these men, whom an Act of Parliament had previously put
out of the protection of the law.
"When the legislature of this Kingdom had ordered all their ships
and goods, for the mere new-created offence of exercising trade, to
be divided as a spoil among the seamen of the navy--to consider the
necessary reprisal of an unhappy, proscribed, interdicted people as
the crime of piracy, would have appeared, in any other legislature
than ours, a strain of the most insulting and unnatural cruelty and
injustice. I assure you, I never remember to have heard any thing
like it, in any time or country."
Gentlemen, I read this extract because it is the testimony of an
eminently wise man, and an eminently just one. Such were his views at
that day, and I am inclined to believe that those words spoken by him
then have a better application to the state of things at present than
any remarks I can make, or that can be made by any one of us who are in
the midst of this whirl of excitement.
But, gentlemen, the Government has chosen to make the issue. It was at
liberty to do so; and that issue is piracy.
Piracy, gentlemen of the Jury, you have heard defined by the eminent
counsel who preceded me. The parties here occupy, as it were, a
two-fold capacity. The eighth section of the Act of 1790 applies to
piracy under the common law; the ninth section of that Act creates what
we have called statutory piracy. The eighth section of the Act only
alludes to piracy as it is acknowledged under the law of nations, and
as known to the common law. The ninth section, however, differs from
the eighth, because it applies peculiarly to citizens of the United
States, and is supposed to be more enlarged in its character than the
eighth section. Now, with reference to a portion of the prisoners
here,--to those who are not citizens,--eight of them come entirely
under the eighth section; and we shall contend that, under that
section, they cannot be convicted. As regards the other four, it will
be contended, that not only are they embraced by the first, but
likewise by the second of these sections--that of statutory piracy,
which applies peculiarly to them.
Well now, gentlemen, in regard to the eighth section, the learned
counsel who very ably addressed the Court on last Saturday, stated that
intent had little or nothing to do with the offence; that he did not
choose to be held to the _animus fruendi_, but that the charge was the
_animus furandi_, and that when a person committed robbery it was but
of very little consequence to what purpose he applied the proceeds of
the robbery, or for whom he committed it. Now, with all due deference
to the learned counsel, I think this is putting the case rather
unfairly, because he is quietly assuming the very point we are
discussing; for it is the fact of the _animus furandi_--the fact
whether or not this is robbery--that we are discussing.
We have distinctly said, and shown by the books, that that which he
says is not the characteristic of the crime, is really its
characteristic, and that intent in this, as in every other offence,
peculiarly constitutes the crime.
It is just because the taking is not for the party himself--is not an
appropriation for his own purpose, and for his own ends, and for his
own object, that there is a difference between piracy and privateering.
And why is this so? Because the party who goes forth on a privateering
expedition, goes forth under the sanction of a nation. It may be a
nation only _de facto_, but still it is a nation. He goes by the
authority of that nation, armed with a commission under its sanction,
after having given the most ample security to be responsible to the
nation itself for any act of misconduct on his part; that nation
holding itself out to the civilized world as responsible for every
excess on the part of the citizen to whom it grants letters of marque.
Well, gentlemen, the taking of property on the part of the privateer is
not for himself. The taking is in the name of the State. The title
which the privateer has in the captured property is no title at all,
nor does he pretend to claim it. The title is in the State, and up to
the very moment of condemnation, although the property may have been
acquired by his blood, and by his treasure, the State has the right to
release it. So important is this fact of intention, as entering into
the transaction, that it has been held that no excess on the part of a
person carrying letters of marque from a regular Government could be
punished as piracy--the Government being liable, and he himself being
referred to his own Government for punishment.
It has been even held in England, that where the act of taking a
commission from a foreign prince was so unlawful in its character as to
amount under the law to a felony, yet still the party having letters of
marque, should not be charged with piracy.
Now, gentlemen, there was an attempt made by the learned counsel to
cast odium upon privateering and upon this transaction, by speaking of
these men as going out for their own plunder. Well, I have nothing to
say about that; but there is one thing to be remarked: that in times of
hostility the plunder does not belong to one side, nor does it belong
to the privateersman alone, but the regularly armed vessels of every
nation in the world, as well as privateersmen, are enriched by the
capture of prizes at sea; and I suspect that the members of the bar now
present can tell you how extensively our own navy has been enriched
within the last few weeks by the condemnation of prizes. If the spoils
derived from enemies' property be plunder, and if it be disgraceful to
take it, then the highest names in England have been associated with
such plunder, for you have but to look into the English books to find
the name of the great and distinguished Arthur, Duke of Wellington, as
connected with such cases.
But, gentlemen, there is another thing which would prevent the parties
from being convicted of piracy, that is, the state of enmity existing
between the two nations. It is a general rule that enemies can never
commit piracy against each other, their depredations being deemed mere
acts of hostility. This is as far back as the days of Lord Coke; and
the rule has been carried so far as to protect the citizen of one of
the belligerents, who, without any letter of marque at all, goes on the
ocean and seizes the property of the enemy. It is true, it has been
said that in such cases citizens act at their peril, and are liable to
be punished by their own sovereign; but the enemy is not warranted in
considering them as criminals.
That the people of the Confederate States, under whose commission these
men have acted, stand in the light of enemies, the learned decisions of
Judges Cadwalader and Betts; the blockade of the Southern ports, which
is a hostile measure; the confiscation of the property of their
citizens--not only of the property of the men who have arms in their
hands, but of the citizens at large; the captures at sea; the vessels
condemned here; the virtual dissolution of partnerships; the admission
of the plea of alien enemy; the President's proclamation of
non-intercourse; the arrest of citizens of those States returning from
Europe; and the opinion of my learned friend, the District Attorney
himself, showing that it is treason for the banks here to pay over the
bank balances to Southern customers,--all these things go to establish,
thoroughly and sufficiently, the condition of enmity or hostility,
which forms a protection to these parties. They fix the status of war;
they decide that the two powers are enemies, and that, too, without any
declaration of war, for no declaration of war is needed. It seems to me
that it is all useless to attempt to evade the admission that there is
war. We cannot by legal enactments--we cannot by judicial decisions--we
cannot by Presidential Proclamations--establish the condition of war
and all the consequences of war, and yet shrink from its open avowal.
And yet that is precisely what is attempted here. It may do with those
that are strong to oppress their own subjects, but it will not do when
you come to deal with foreign nations. When you come to deal with these
eight men who are here, the subjects of foreign powers, those powers
have a right to put in a word. Gentlemen, it is impossible for this
Government to do less than acknowledge that, in fact, there is a state
of hostility; and you may as well call it by its proper name--we are in
the midst of war.
It will not do for the Government, like the ostrich, to put its head
under its wing, and fancy that because it sees nobody, nobody sees it.
The Government has enacted all the consequences of war without making
an open or decided declaration of it. Under such circumstances,
however, the status of enmity is sufficiently fixed to protect the
prisoners.
But there is another test of piracy, gentlemen, and it is this--Is the
privateer a universal enemy? Is he a universal plunderer? Is his hand
against every man? Has he not a nation?
Now a pirate has no nation. He is an outlaw, and is justiciable
everywhere. His is the law of might--
"For why? Because the good old rule
Sufficeth him: the simple plan
That they should take who have the power,
And they should keep who can."
But it is not necessary that the nation under whose commission he acts,
shall be one which is already established and acknowledged among the
family of nations. It may be a colony struggling for independence, and
not yet recognized by the nations of the earth. Our own Courts years
ago decided this case with a liberality which has eminently
distinguished them, and established the principle in respect to the
South American colonies--colonies at that time not acknowledged by our
Government as independent nations.
So, gentlemen, it was with regard to the powers of Europe during the
days of the American Revolution. Every power in the world respected the
letters of marque issued by Congress; and if there is an instance of a
single case in which, in any land in the civilized world, there was a
criminal trial of an American privateersman, I have not been able to
find it. Their letters of marque were recognized because they were the
letters of a _de facto_ Government.
Now, gentlemen, what are the tests sufficient to form such a
nationality as will cover these commissions? Are the Confederate
States, in this instance, competent to maintain the relations of war
and of peace? Gentlemen, if the South American provinces were, I think
it can hardly be disputed that the people of ten great States like
these certainly are. They are very far beyond them in civilization, in
information, in wealth, and in all the means by which nations sustain
their independence.
So important, however, is the fact of a commission, that even a
commission from the Barbary powers--states which subsisted entirely, I
may say, by plunder and piracy--was regarded as sufficient, in the
Courts of England, to protect an Algerine who was taken with letters of
marque. And that opinion comes with the authority of one of the
greatest masters of the science of jurisprudence--Sir William Scott--a
name that can never be mentioned without feelings of reverence by any
man who respects the sentiments of justice and their application to the
principles of international law. In the case I allude to, the Barbary
subject was taken in an attempt to seize an English vessel. The crew
was composed of foreigners, men of different nations, most of them
belonging to Spain and France. It was held that as to all the rest of
the parties they should be treated as outlaws, but the Algerine was
allowed the plea of _respondeat superior_. In other words, he had but
to point to his country, and say she was responsible; that she gave him
authority, and assumed the responsibility; and upon that plea he was
allowed to go. I mention this to show how far the doctrine has been
carried.
But, gentlemen, if the commission from a Government _de facto_
generally is a plea in bar (and that it is, I have no doubt the Court
will charge you), it certainly holds good in a case of this kind, where
the authority is much less questionable. Now, are the United States
bound to recognize the Confederate States as belligerents? Not as an
independent nation,--that is an entirely different question. We say,
gentlemen, not only that the United States are bound to recognize the
Confederate States as belligerents, but we think we have shown that
they have done so. The capitulation between Commodore Stringham,
General Butler, and Commodore Barron, recognized the existence of a
state of war, and recognized the prisoners as prisoners of war; and not
one word has been said, and not one act done, by the Government, to
disavow their authority in so doing. It is the principle of civilized
nations--and we belong to the family of civilized nations--to recognize
parties, even in the midst of civil war, as belligerents; and this
country is too just, too powerful, and too elevated in sentiment, to
shrink from that which civilization, decency and honor compel her to
stand to. She must recognize even those who are her children--struggling
against her authority though they be--as fair and honest antagonists.
From the time of our own struggle, in the days of the Revolution, we
professed the principles of international law. They are now a part of
the law of the land. There is a moral obligation upon us to occupy our
position in the great family of nations; to hold it, as we have always
done, with honor and with distinguished consideration. Sorry, indeed,
would I be to think that there should be, on this occasion, any eminent
departure from it, as there certainly would be if these men were held
in any other light than as mere privateersmen, and not pirates.
But if these principles are true, as applying between the people of
this country and the people of England during the days of the
Revolution,--if the mother country then considered us as belligerents
where there could be no subtle political question such as may be raised
here, and has already been raised--the doctrine of the two
sovereignties,--there is then, at least, a reason which applies in this
case, and never could have applied in that case; for the allegiance of
the colonies to the mother country was firm, fixed, and undivided: it
never was, and never could be, questioned.
I say, then, that these parties are not pirates; and I further say that
the municipal laws of a State, or of a number of States, cannot
constitute that offence to be piracy which is not so characterized by
international law; and for this principle I refer to 1st Phillimore,
381 (International Law).