_May it please your Honors, and Gentlemen of the Jury_:
A trial in a Court of Justice is a trial of many things besides the
prisoners at the bar. It is a trial of the strength of the laws, of the
power of the Government, of the duty of the citizen, of the fidelity to
conscience and the intelligence of the Jury. It is a trial of those
great principles of faith, of duty, of law, of civil society, that
distinguish the condition of civilization from that of barbarism. I
know no better instance of the distinction between a civilized,
instructed, Christian people, and a rude and barbarous nation, than
that which is shown in the assertions of right where might and violence
and the rage of passion in physical contest determine everything, and
this last sober, discreet, patient, intelligent, authorized, faithful,
scrupulous, conscientious investigation, under the lights of all that
intelligence with which God has favored any of us; under that
instruction which belongs to the learned and accredited expounders of
the law of an established free Government; under the aid of, and yet
not misled by, the genius or eloquence of advocates on either side.
But, after all, the controlling dominion of duty to the men before you
in the persons of the prisoners, to the whole community around you, and
to the great nation for which you now discharge here a vital function
for its permanence and its safety,--your duty to the laws and the
Government of your country (which, giving its protection, requires your
allegiance, and finds its last and final resting-place, both here and in
England, in the verdicts of Juries),--your duty to yourselves,--requires
you to recognize yourselves not only as members of civil society, but as
children of the "Father of an Infinite Majesty," and amenable to His
last judgment for your acts. Can any of us, then, fail to feel, even
more fully than we can express, that sympathies, affections, passions,
sentiments, prejudices, hopes, fears, feelings and responsibilities of
others than ourselves are banished at once and forever, as we enter the
threshold of such an inquiry as this, and never return to us until we
have passed from this sacred precinct, and, with our hands on our
breasts and our eyes on the ground, can humbly hope that we have done
our duty and our whole duty?
Something was said to you, gentlemen of the Jury, of the unwonted
circumstances of the prosecution, by the learned counsel who, many days
ago, and with an impressiveness that has not yet passed away from your
memory, opened on behalf of the prisoners the course of this defence.
He has said to you that the number of those whose fate, for life or for
death, hangs on your verdict, is equal to your own--hinting a ready
suggestion that that divided responsibility by which twelve men may
sometimes shelter themselves, in weighing in the balance the life of a
single man, is not yours. Gentlemen, let us understand how much of
force and effect there is in the suggestion, and how truly and to what
extent the responsibility of a Jury may be said to include this issue
of life and death. In the first place, as Jurymen, you have no share or
responsibility in the wisdom or the justice of those laws which you are
called upon to administer. If there be defects in them--if they have
something of that force and severity which is necessary for the
maintenance of Government and the protection of peace and property, and
of life on the high seas--you have had no share in their enactment, and
have no charge, at your hands, of their enforcement. In the next place,
you have no responsibility of any kind in regard to the discretion of
the representatives of this Government in the course which they choose
to take, as to whether they will prosecute or leave unprosecuted. You
do not, within the limits of the inquiry presented to you, dispose of
the question, why others have not been presented to you; nor may that
which has been done in a case not before you, serve as a guide for the
subject submitted to your consideration. So, too, you have no
responsibility of any kind concerning the course or views of the law
which this tribunal may give for your guidance. The Court does not make
the law, but Congress does. The Court declares the law as enacted by
the Government, and the Jury find the facts--giving every scrutiny,
every patient investigation, every favor for life, and every reasonable
doubt as to the facts, to the prisoners. Having disposed of that duty,
as sober, intelligent and faithful men, graduating your attention only
by the gravity of the inquiry, you have no further responsibility. But
I need not say to you, gentlemen, that if any civilized Government is
to have control of the subject of piracy--if pirates are to be brought
within the jurisdiction of the criminal law--the very nature of the
crime involves the fact that its successful prosecution necessarily
requires that considerable numbers shall be engaged in it. I am quite
certain that, if my learned friends had found in the circumstances of
this case nothing which removed it out of the category of the heinous
crime of private plunder at sea, exposing property and life, and
breaking up commerce, they would have found nothing in the fact that a
ship's crew was brought in for trial, and that the number of that crew
amounted to twelve men, that should be pressed to the disturbance of
your serene judgment, in any disposition of the case. Now, gentlemen,
let us look a little into the nature of the crime, and into the
condition of the law.
The penalty of the crime of piracy or robbery at sea stands on our
statute books heavier than the penalty assigned for a similar crime
committed on land--which is, in fact, similar, so far as concerns its
being an act of depredation. It may be said, and it is often argued,
that, when the guilt of two offences is equal, society transcends its
right and duty when it draws a distinction in its punishments; and it
may be said, as has been fully argued to you--at least, by implication,
in the course of this case--that the whole duty and the whole
responsibility of civil Governments, in the administration of criminal
law and the punishment of crime, has to do with retributive vengeance,
as it were, on the moral guilt of the prisoner. Now, gentlemen, I need
not say to you, who are experienced at least in the common inquiries
concerning Governments and their duties, that, as a mere naked and
separate consideration for punishing moral guilt, Government leaves, or
should leave, vengeance where it belongs--to Him who searches the heart
and punishes according to its secret intents--drawing no distinction
between the wicked purpose which fully plans, and the final act which
executes that purpose. The great, the main duty--the great, the main
right--of civil society, in the exercise of its dominion over the
liberties, lives, and property of its subjects, is the good of the
public, in the prevention, the check, the discouragement, the
suppression of crime. And I am sure that there is scarcely one of us
who, if guilt, if fault, if vice could be left to the punishment of
conscience and the responsibility of the last and great assize, without
prejudice to society, without injury to the good of others, without,
indeed, being a danger and a destruction to all the peace, the
happiness, and the safety of communities, would not readily lay aside
all his share in the vindictive punishments of guilty men. But society,
framed in the form and for the purposes of Government, finds, alas!
that this tribunal of conscience, and this last and future
accountability of another world, is inadequate to its protection
against wickedness and crime in this.
You will find, therefore, in all, even the most enlightened and most
humane codes of laws, that some necessary attention is paid to the
predominant interest which society has in preventing crime. The very
great difficulty of detecting it, the circumstances of secrecy, and the
chances of escape on the part of the criminal, are considerations which
enter into the distribution of its penalties. You will find, in a
highly commercial community, like that of England, and to some
extent--although, I am glad to say, with much less severity--in our
own, which is also a highly commercial community, that frauds against
property, frauds against trade, frauds in the nature of counterfeiting
and forgery, and all those peaceful and not violent but yet pernicious
interferences with the health and necessary activity of our every-day
life, require the infliction of severe penalties for what, when you
take up the particular elements of the crime, seems to have but little
of the force, and but little of the depth of a serious moral
delinquency.
The severity of the penalties for passing counterfeit money are
inflicted upon the poor and ignorant who, in so small a matter as a
coin of slight value, knowingly and intelligently, under even the
strongest impulses of poverty, are engaged in the offence. Now,
therefore, when commercial nations have been brought to the
consideration of what their enactments on the subject of piracy shall
be, they have taken into account that the very offence itself requires
that its commission should be outside of the active and efficient
protection of civil society--that the commission of the crime involves,
on the part of the criminals, a fixed, deliberate determination and
preparation--and that the circumstances under which the victims, either
in respect of their property or of their lives, are exposed to these
aggressions, are such as to make it a part of the probable course of
the crime, that the most serious evils and the deepest wounds may be
inflicted. Now, when a crime, not condemned in ethics or humanity, and
which the positive enactments of the law have made highly penal, yet
contains within itself circumstances that appeal very strongly to
whatever authority or magistrate has rightful control of the subject
for a special exemption, and special remission, and special concession
from the penalty of the law, where and upon what principles does a wise
and just, a humane and benignant Government, dispose of that question?
I agree that, if crimes which the good of society requires to be
subjected to harsh penalties, must stand, always and irrevocably; upon
the mere behest of judicial sentence, there would be found an
oppression and a cruelty in some respects, that a community having a
conscientious adherence to right and humanity would scarcely tolerate.
Where, then, does it wisely bestow all the responsibility, and give all
the power that belongs to this adjustment, according to the particular
circumstances of the moral and personal guilt, which must be necessary,
and is always conceded? Why, confessedly, to the pardoning power,
alluded to on one side or the other--though chiefly on the part of the
prisoners' counsel--in the course of this trial. Now, you will
perceive, at once, what the difference is between a Court, or a Jury,
or a public prosecuting officer, yielding to particular circumstances
of actual or of general qualification of a crime charged,--so that the
law shall be thwarted, and the certainty and directness of judicial
trial and sentence be made the sport of sympathy, or of casual or
personal influences,--and placing the pardoning power where it shall be
governed by the particular circumstances of each case, so that its
exercise shall have no influence in breaking down the authority of law,
or in disturbing the certainty, directness, and completeness of
judicial rules. For, it is the very nature of a pardon,--committed to
the Chief Magistrate of the Federal Union in cases of which this Court
has jurisdiction, and to the Chief Magistrate of every State in the
Union in cases of which the State tribunals take cognizance,--that it
is a recognition of the law, and of the sentence of the law, and leaves
the laws undisturbed, the rules for the guidance of men unaffected, the
power and strength of the Government unweakened, the force of the
judiciary unparalyzed, and yet disposes of each case in a way that is
just, or, if not just, is humane and clement, where the pardon is
exercised.
Now, gentlemen, I shall say nothing more on the subject of pardon. It
is a thing with which I have nothing to do--with which this learned
Court has nothing to do--with which you, as Jurymen, have nothing to
do--beyond the fact that this beneficent Government of ours has not
omitted from its arrangement, in the administration of its penal laws,
this divine attribute of mercy.
Now, there being the crime of piracy or robbery on the high seas, which
the interests of society, the protection of property and of life, the
maintenance of commerce, oblige every State and every nation, like
ours, to condemn--what are the circumstances, what are the acts, that,
in view of the law, amount to piracy? You will understand me that, for
the present, I entirely exclude from your consideration any of the
particular circumstances which are supposed to give to the actual crime
perpetrated a public character, lifting it out of the penal law that
you administer, and out of the region of private crime, into a field of
quite different considerations. They are, undoubtedly, that the act
done shall be with intent of depriving the person who is in possession
of property, as its owner, or as the representative of that owner, of
that property. That is what is meant by the Latin phrase, with which
you are quite as familiar now, at least, as I, _animo furandi_--with
the intention of despoiling the owner of that which belongs to him.
And, to make up the crime of robbery on land, in distinction from
larceny or theft, as we generally call it, (though theft, perhaps,
includes all the variety of crime by which the property of another is
taken against his will,) robbery includes, and _piracy_, being robbery
at sea, includes, the idea that it is done with the application, or the
threat, or the presence of force. There must be actual violence, or the
presence and exhibition of power and intent to use violence, which
produces the surrender and delivery of the property. Such are the
ingredients of robbery and piracy. And, gentlemen, these two
ingredients are all; and you must rob one or the other of them of this,
their poison, or the crime is completely proved, when the fact of the
spoliation, with these ingredients, shall have been proved. The use
that the robber or the pirate intends to make of the property, or the
justification which he thinks he has by way of retaliation, by way of
injury, by way of provocation, by way of any other occasion or motive
that seems justifiable to his own conscience and his own obedience to
any form whatever of the higher law, has nothing to do with the
completeness of the crime, unless it come to what has been adverted to
by the learned counsel, and displayed before you in citations from the
law-books--to an honest, however much it may be a mistaken and
baseless, idea that the property is really the property of the accused
robber, of which he is repossessing himself from the party against whom
he makes the aggression.
Now, unless, in the case proved of piracy, or robbery on land, there be
some foundation for the suggestion that the willful and intentional act
of depriving a party of his property rests upon a claim of the robber,
or the pirate, that it is his own property (however baseless may be the
claim), you cannot avoid, you cannot defeat, the criminality of the act
of robbery, within the intention of the law, by showing that the robber
or the pirate had, in the protection of his own conscience, and in the
government of his own conduct, certain opinions or views that made it
right for him to execute that purpose. Thus, for instance, take a case
of morals: A certain sect of political philosophers have this
proposition as a basis of all their reasoning on the subject of
property,--that is, that property, the notion of separate property in
anything, as belonging to anybody, is theft; that the very notion that
I can own anything, whatever it may be, and exclude other people from
the enjoyment of it, is a theft made by me, a wrongful appropriation,
when all the good things in this world, in the intention of Providence,
were designed for the equal enjoyment of all the human race. Well, now,
a person possessed of that notion of political economy and of the moral
rights and duties of men, might seek to avail himself of property owned
and enjoyed by another, on the theory that the person in possession of
it was the original thief, and that he was entitled to share it. I need
not say to you that all these ideas and considerations have nothing
whatever to do with the consideration of the moral intent with which a
person is despoiled of his property.
Now, with regard to force, I do not understand that my learned friends
really make any question, seriously, upon the general principle of what
force is, or upon the facts of this case, that this seizure of the
Joseph by the Savannah had enough of force,--the threat, the presence,
and exhibition of power,--and of the intent to use it, to make the
capture one of force, if the other considerations which are relied upon
do not lift it out of that catalogue of crime.
It is true that the learned counsel who last addressed you seemed to
intimate, in some of his remarks, near the close of his very able and
eloquent and interesting address, that there was not any force about
it, that the master of the Joseph was not threatened, that there was no
evidence that the cannon was even loaded, and that it never had been
fired off. Well, gentlemen, the very illustration which he used of what
would be a complete robbery on land,--the aggressor possessing a
pistol, and asking, in the politest manner, for your money,--relieves
me from arguing that you must fire either a cannon or a pistol, before
you have evidence of force. If our rights stand on that proposition,
that when a pistol is presented at our breast, and we surrender our
money, we must wait for the pistol to be fired before the crime is
completed, you will see that the terrors of the crime of robbery do not
go very far towards protecting property or person, which is the object
of it.
When, gentlemen, the Government, within a statute which, in the
judgment of the Court, shall be pronounced as being lawfully enacted
under the Constitution of the United States, has completed the proof of
the circumstances of the crime charged, it is entitled at your hands to
a conviction of the accused, unless, by proof adduced on his part, he
shall so shake the consistency and completeness of the proof on the
part of the Government, or shall introduce such questions of
uncertainty and doubt, that the facts shall be disturbed in your mind,
or unless he shall show himself in some predicament of protection or
right under the law,--(and, by "under the law," I mean, under the law
of the land where the crime is punishable, and where the trial and the
sentence are lawfully attributed to be,)--or unless he shall introduce
some new facts which, conceding the truthfulness and the sufficiency of
the case made by the Government, shall still interpose a protection, in
some form, against the application of the penalty of the law. I take it
that I need not say to you that this protection or qualification of the
character of the crime must be by the law of the land; and, whether it
comes to be the law of the land by its enactment in the statutes of the
United States, or by the adoption and incorporation into the law of the
land of the principles of the law of nations, is a point quite
immaterial to you. You are not judges of what the statutes of the
United States are, except so far as their interpretation may rightfully
become a subject of inquiry by the Jury, in the sense of whether the
crime is within the intent of the Act, in the circumstances proved. You
are not judges of what the law of nations is, in the first place; nor
are you judges of how much of the law of nations has been adopted or
incorporated into the system of our Government and our laws, by the
authority of its Congress or of its Courts.
Whether, as I say to you, there is a defence, or protection, or
qualification of the acts and transactions which, in their naked
nature, and in their natural construction, are violent interferences
with the rights of property, against the statute, and the protection of
property intended by the statute,--whether the circumstances do change
the liability or responsibility of the criminal, by the introduction of
a legal defence under the law of nations, or under the law of the land
in any other form, is a question undoubtedly for the Court,--leaving to
you always complete control over the questions of fact that enter into
the subject. So that the suggestion, also dropped by my learned friend,
at the close of his remarks, that any such arrangement would make the
Jury mere puppets, and give them nothing to do, finds no place. It
would not exclude from your consideration any matters of fact which go
to make up the particular condition of public affairs or of the public
relations of the community towards each other, in these collisions
which disturb the land, provided the Court shall hold and say that, on
such a state of facts existing, or being believed by you, there is
introduced a legal qualification or protection against the crime
charged. But, if it should be held that all these facts and
circumstances, to the extent and with the effect that is claimed for
them by the learned counsel as matter of fact, yet, as matter of law,
leave the crime where it originally stood, being of their own nature
such as the principles of law do not permit to be interposed as a
protection and a shield, why, then you take your law on the subject in
the same way as you do on every other subject, from the instructions of
the learned and responsible Bench, whose errors, if committed, can be
corrected; while your confusion between your province and the province
of the Court would, both in this case, and in other cases, and
sometimes to the prejudice of the prisoner, and against his life and
safety, when prejudices ran that way, confound all distinctions; and,
in deserting your duty, to usurp that of another portion of the Court,
you would have done what you could, not to uphold, but to overthrow the
laws of your country and the administration of justice according to
law, upon which the safety of all of us, at all times, in all
circumstances, depends.
Now, gentlemen, let me ask your attention, very briefly, to the
condition of the proof in this case, from the immediate consideration
of which we have been very much withdrawn by the larger and looser
considerations, as I must think them, which have occupied most of the
attention of the counsel, and been made most interesting, undoubtedly,
and attractive to you. These twelve men now on trial--four of them
citizens of the United States, and eight of them foreigners by birth
and not naturalized--formed part of the crew of a vessel, originally a
pilot-boat, called the Savannah. That crew consisted of twenty men, and
one of them has given the circumstances of the preparation for the
voyage, of the embarkation upon the vessel, of her weighing anchor from
the port of Charleston and making her course out to sea without any
port of destination, and without any other purpose than to make
seizures of vessels belonging to the loyal States of the Union and its
citizens. He has shown you that all who went on board, all who are here
on trial, had a complete knowledge of, and gave their ready and
voluntary assent to and enlistment in this service; and that the
service had no trait of compulsion, or of organized employment under
the authority of Government, in any act or signature of any one of the
crew, as far as he knew, leaving out, of course, what I do not intend
to dispute, and what you will not understand me as disregarding--the
effect that may be gained from the notorious facts and the documents
that attended the enterprise. He has shown you that, going to sea with
that purpose, without any crew list, without any contract of wages,
they descried, early in the morning after they adventured from the
port, and at a point about sixty miles to sea, this bark, and ran down
to her; and that, while running down to her, they sailed under the flag
of the United States, and, hailing the brig, when within hailing
distance, required the master of it to come on board with his papers.
Upon the inquiry of the master, by what authority they made that demand
on him, the stars and stripes being then floating at the masthead of
the Savannah, Captain Baker informed him that it was in the name and by
the authority of the Confederate States of America, at the same time
hauling down the American flag and running up the flag of the
Confederacy. Whatever followed after this, gentlemen, except so far as
to complete the possession of the captured vessel, by putting a prize
crew on board of it, (so called,) sending it into Charleston, and there
lodging in jail the seamen or ship's company of the Joseph that
accompanied it, and procuring a sale of the vessel--anything beyond
that (and this only to show the completeness of the capture, and the
maintenance of the design to absolutely deprive the owners of the
vessel and cargo of their property) seems to be quite immaterial. Now,
when we add to this the testimony of Mr. Meyer, the master of the
captured vessel, who gives the same general view of the circumstances
under which his vessel was overhauled and seized by the Savannah, as
well as the observations and the influences which operated upon his
mind while the chase was going on, we have the completeness of the
crime,--not forgetting the important yet undisputed circumstances of
the ownership of the vessel, and of the nature of the voyage in which
she was engaged. You will observe that this vessel, owned by, and, we
may suppose, judging from the position of the witnesses examined before
you, constituting a good part of the property of, our fellow-countrymen
in the State of Maine, sailed on the 28th day of April, from
Philadelphia, bound on a voyage to Cardenas, in Cuba, with a charter
party out and back, under which she was to bring in a cargo of sugar
and molasses. You will have noticed, comparing this date with some of
the public transactions given in evidence, that it was after both the
proclamation of Mr. Davis, inviting hostile aggressions against the
commerce of the United States, on the part of whosoever should come to
take commissions from him; and after the proclamation of the President
of the United States, made to the people of the United States and all
under its peace and protection, that if, under this invitation of Mr.
Davis, anybody should assume authority to make aggressions, on the high
seas, upon the private property of American citizens, they should be
punished as pirates. This vessel, therefore, sailed on her voyage under
the protection of the laws of the United States, and under this
statement of its Government, that the general laws which protected
property and seamen on the high seas against the crime of piracy were
in force, and would be enforced by the Government of the United States,
wherever it held power, against any aggressions that should assume to
be made under the protection of the proclamation of Mr. Davis. While
returning, under the protection of this flag and of this Government,
she meets with hostile aggression at the hands of an armed vessel,
which has nothing to distinguish it from the ordinary condition of
piracy, except this very predicament provided against by the
proclamation of the President, and under the protection of which the
vessel had sailed, to wit, the supposed authority of Jefferson Davis;
which should not, and cannot, and will not, as I suppose, protect that
act from the guilt and the punishment of piracy.
Now, you will have observed, gentlemen, in all this, that whatever may
be the circumstances or the propositions of law connected with this
case, that may change or qualify the acts and conduct of Mr. Baker, so
far as the owners of this vessel and the owners of this cargo are
concerned, there has been as absolute, as complete, as final and as
perfect a deprivation of their property, as if there had been no
commission--no public or other considerations that should expose them
to having the act done with impunity. You will discover, then, that, so
far as the duty of protection from this Government to its citizens and
their property--so far as the duty of maintaining its laws and
enforcing them upon the high seas--is concerned, there is nothing
pretended--there is nothing, certainly, proved--that has excused or can
excuse this Government, in its Executive Departments, in its Judicial
Departments, in the declaration of law from the Court, or in the
finding of facts by the Jury, from its duty towards its citizens and
their property. And, while you have been led to look at all the
qualifying circumstances that should attend your judgment concerning
the act and the fact on the part of these prisoners, I ask your ready
assent to the proposition, that you should look at the case of these
sufferers, the victims of those men, whose property has been ventured
upon the high seas in reliance on its safety against aggression, from
whatever source, under the exercise of the authority of the Government
to repel and to punish such crimes.
Before I go into any of the considerations which are to affect the
relations of these prisoners to this alleged crime, and to this trial
for such alleged crime, let us see what there are in the private
circumstances particular to themselves, and their engagement in this
course of proceeding, that is particularly suited to attract your favor
or indulgence. Now, these men had not, any of them, been under the
least compulsion, or the least personal or particular duty of any kind,
to engage in this enterprise. Who are they? Four of them are citizens
of the United States. Mr. Baker is, by birth, a citizen of the State of
Pennsylvania; two are citizens, by birth, of the State of South
Carolina, and one of North Carolina. The eight men, foreigners, are,
three of Irish origin, two of Scotch, one a German, one a native of
Manilla, in the East Indies, and one of Canton, in China. Now, you will
observe that no conscription, no enlistment, no inducement, no
authority of any public kind has been shown, or is suggested, as having
influenced any of them in this enterprise. My learned friend has
thought it was quite absurd to impute to this Chinaman and this
Manillaman a knowledge of our laws. Is it not quite as absurd to throw
over them the protection of patriotism--the protection of
indoctrination in the counsels and ethics of Calhoun--to give them the
benefit of a departure from moral and natural obligations to respect
the property of others, on the theory that they must surrender their
own rectitude--their own sense of right--to an overwhelming duty to
assist a suffering people in gaining their liberty? What I have said of
them applies equally to these Irishmen, this German, and these
Scotchmen--as good men, if you please, in every respect, as the same
kind of men born in this country. I draw no such national distinctions;
but I ask what there is, in the sober, sensible, practical
consideration of the motives and purposes with which these men entered
into this enterprise to despoil the commerce of the United States, and
make poor men of the owners of that vessel, that should give them
immunity from the laws of property and the laws of the land, or form
any part in the struggles of a brave and oppressed people, (as we will
consider them, for the purpose of the argument), against a tyrannical
and bloodthirsty Government?
No! no! Let their own language indicate the degree and the dignity of
the superior motives that entered into their adoption of this
enterprise: "We thought we had a right to do it, and we did it." Was
there the glow of patriotism--was there the self-sacrificing devotion to
work in the cause of an oppressed people, in this? No! And the only
determination that these men knew or looked at, was the lawfulness of
the enterprise, in respect of the sanctions and punishments of the law.
They, undoubtedly, had not any purpose or any thought of running into a
collision with the comprehensive power and the all-punishing
condemnation of the statutes of the United States, whether they knew
what the statutes were or not; but they did take advantage of the
occasion and opportunity to share the profits of a privateering
enterprise against the commerce of the United States; and they were
unquestionably acquainted, either by original inspection or by having a
favorable report made to them with the fundamental provision in regard
to this system of privateering, so called. They knew that the entire
profits of the transaction would be distributed among those who were
engaged in it. Now, I am not making any particular or special
condemnation of these men, (in thus readily, without compulsion, and
without the influence of any superior motives, however mistaken, of
patriotism,) beyond what the general principles of public law, and
general opinion, founded on the experience of privateering, have shown
to be the reckless and greedy character of those who enter upon private
war, under the protection of any, however recent, flag. Every body knows
it--every body understands it--every body recognizes the fact that, if
privateers, who go in under the hope of gain, and for the purposes of
spoliation, are not corrupt and depraved at the outset, they expose
themselves to influences, and are ready to expose themselves to
influences, which will make them as dangerous, almost, to commerce, and
as dangerous to life, as if the purpose and the principle of
privateering did not distinguish them from pirates. And, to show that,
in this law of ours, there is nothing that is forced in its application
to privateers--that there is nothing against the principles of humanity
or common sense in the nation's undertaking to say, We will not
recognize any of those high moral motives, any of this superior dignity,
about privateers; we understand the whole subject, and we know them to
be, in substance and effect, dangerous to the rights of peaceful
citizens, in their lives and their property,--reference need only be had
to the action of civilized Governments, and to that of our Government as
much as any, in undertaking to brush away these distinctions, wherever
it had the power--that is my proposition--wherever it had the power to
do so. And I ask your Honors' attention to the provision on this
subject, in the first treaties which our Government--then scarcely
having a place among the nations of the earth--introduced upon this very
question of piracy and privateers. I refer to the twenty-first article
of the Treaty of Commerce with France, concluded on the 6th of February,
1778, on page 24 of the eighth volume of the Statutes at Large. This is
a commercial arrangement, entered into by this infant Government, before
its recognition by the Throne of Great Britain, with its ally, the most
Christian Monarch of France:
"No subjects of the Most Christian King shall apply for or take any
commission or letters of marque, for arming any ship or ships to
act as privateers against the said United States, or any of them,
or against the subjects, people or inhabitants of the said United
States, or any of them, or against the property of any of the
inhabitants of any of them, from any Prince or State with which the
said United States shall be at war; nor shall any citizen, subject
or inhabitant of the said United States, or any of them, apply for
or take any commission or letters of marque for arming any ship or
ships, to act as privateers against the subjects of the Most
Christian King, or any of them, or the property of any of them,
from any Prince or State with which the said King shall be at war;
and if any person of either nation shall take such commissions or
letters of marque, he shall be punished as a pirate."
Now, we have had a great deal of argument here to show that, under the
law of nations,--under the law that must control and regulate the
international relations of independent powers--it is a gross and
violent subversion of the natural, inherent principles of justice, and
a confusion between crime and innocence, to say to men who, under the
license of war, take commissions from other powers, that they shall be
hanged as pirates. And yet, in the first convention which we, as an
infant nation, formed with any civilized power, attending in date the
Treaty of Alliance which made France our friend, our advocate, our
helper, in the war of the Revolution, his Most Christian Majesty, the
King of France, standing second to no nation in civilization,
signalized this holy alliance of friendship in behalf of justice, and
humanity, and liberty, by engaging that, whatever the law of nations
might be, whatever the speciousness of publicists might be, his
subjects, amenable to the law, should never set up the pretence of a
commission of privateering against the penalties of piracy. Nor had
this treaty of commerce which I have referred to, anything of the
nature of a temporary or warlike arrangement between the parties,
pending the contest with Great Britain. It was a treaty independent of
the Treaty of Alliance which engaged them as allies, offensive and
defensive, in the prosecution of that war. Nor is this an isolated case
of the morality and policy of this Government on the subject of piracy.
By reference to the 19th Article of the Treaty between the Netherlands
and the United States, concluded in 1782, at p. 44 of the same volume,
your honors will find the same provision. After the same stipulation,
excluding the acceptance of commissions from any power, to the citizens
or subjects of the contracting parties, there is the same provision:
"And if any person of either nation shall take such commissions or
letters of marque, he shall be punished as a pirate."
Now, our Government has never departed from its purpose and its policy,
to meliorate the law of nations, so as to extirpate this business of
private war on the ocean. It is entirely true that, in its subsequent
negotiations with the great powers of Christendom, it has directed its
purpose to the more thorough and complete subversion and annihilation
of the whole abominable exception, which is allowed on the high seas,
from the general melioration of the laws of war, that does not tolerate
aggressions of violence, and murder, and rapine, and plunder, except by
the recognized forces contending in the field. It has attempted to
secure not only the exclusion of private armed vessels from
privateering, but the exclusion of aggressions on the part of public
armed vessels of belligerents on private property of all kinds upon the
ocean. And no trace of any repugnance or resistance on the part of our
Government to aid and co-operate in that general melioration in the
laws of war, in respect to property on the ocean, can be charged or
proved. In pursuance of that purpose, as well as in conformity with a
rightful maintenance of its particular predicament in naval war,--to
wit., a larger commerce than most other nations, and a smaller
navy,--it has taken logically, and diplomatically, and honestly, the
position: I will not yield to these false pretences of humanity and
melioration which will only deprive us of privateers, and leave our
commerce exposed to your immense navies. If you are honest about it, as
we are, and opposed to private war, why, condemn and repress private
war in respect to the private character of the property attacked, as
well as private war in respect to the vessels that make the
aggressions.
Nor, gentlemen, do I hesitate to say that, whatever we may readily
concede to an honest difference of opinion and feeling, in respect to
great national contests, where men, with patriotic purposes, raise the
standard of war against the Government, and, on the other hand, uphold
the old standard to suppress the violence of war lifted against it, we
do not, we cannot, as honest and sensible men, look with favor upon an
indiscriminate collection from the looser portions of society, that
rush on board a marauding vessel, the whole proceeds and results of
whose aggressions are to fill their own pockets. And, when my learned
friends seek to go down into the interior conscience and the secret
motives of conduct, I ask you whether, if this had been a service in
which life was to be risked, and all the energies of the man were to be
devoted to the public service, for the glory and the interests of the
country, and the poor food, poor clothing and poor pay of enlisted
troops, you would have found precisely such a rush to that service?
Now, I am not seeking, by these considerations, to disturb in the least
the legal protections, if there be any, in any form, which it is urged
have sprung out of the character of privateering which this vessel had
assumed, and these men, as part of its crew, had been incorporated in.
If legal, let it be so; but do not confound patriotism, which
sacrifices fortune and life for the love of country, with the motives
of these men, who seek privateering because they are out of employment.
Far be it from me to deny that the feeling of lawful right, the feeling
that statutory law is not violated, if it draw the line between doing
and not doing a thing, is on the whole a meritorious consideration and
a trait that should be approved. But I do object to having the range of
these men's characters and motives exalted, from the low position in
which their acts and conduct place them, into the high purity of the
patriot and the martyr. We are trying, not the system of
privateering--we are trying the privateers, as they are called; and,
when they fail of legal protection, they cannot cover themselves with
this robe of righteousness in motive and purpose.
Now, how much was there of violence in the meditated course, or in the
actual aggression? Why, the vessel is named in the commission as having
a crew of thirty. In fact, she had twenty. Four men was a sufficient
crew for a mercantile voyage. She had an eighteen pounder, a great gun
that must have reached half way across the deck, resting on a pivot in
the middle, capable of being brought around to any quarter, for attack.
At the time this honest master and trader of the Joseph descried the
condition of the vessel, he was struck with this ugly thing amidships,
as he called it--to wit, this eighteen pound cannon, and was afraid it
was a customer probably aggressive--a robber. But he was encouraged by
what? Although he saw this was a pilot boat, and not likely, with good
intent, to be out so far at sea, what was this honest sailor encouraged
by? The flag of the United States was flying at her mast! But, when
hailed--still under that view as to the aspect presented by the
marauding vessel--he is told to come on board, and asks by what
authority--instead of what would have been the glad and reassuring
announcement--the power of the American flag--the Confederate States
were announced as the marauding authority, and the flag of his country
is hauled down, and its ensign replaced by this threat to commerce.
Now, when this gun, as he says, was pointed at him, and this hostile
power was asserted, my learned friends, I submit to you, cannot,
consistently with the general fairness with which they have pursued
this argument, put the matter before you as failing in any of the
completeness of proof concerning force. For, when we were proposing to
show that these prisoners all the while, in their plans, had the
purpose of force, if force was necessary, and that, in the act of
collision with the capturing vessel, that force occurred, we were
stopped, upon the ground that it was unnecessary to occupy the
attention of the Court and the Jury with anything that was to qualify
this vessel's violent character, by reason of the admission that, if it
was not protected by the commission, or the circumstances of a public
character of whatever kind and degree--about which I admit there was no
restriction of any kind,--if it stood upon the mere fact that the
vessel was taken from its owners by the Savannah, in the way that was
testified,--it would not be claimed to be wanting in any of the quality
of complete spoliation, or in any of the quality of force. Now, that
defence, we may say, must not be recurred to, to protect, in your
minds, these men from the penalty which the law has imposed upon the
commission of piracy. It cannot be pretended that there was any defect
in the purpose of despoiling the original owners, nor that there is any
deficiency in the exhibition of force, to make it piracy; and you will
perceive, gentlemen, that although my learned friends successively, Mr.
Dukes, Mr. Sullivan, and Mr. Brady, have, with the skill and the
purpose of advocates, taken occasion, at frequent recurring points, to
get you back to the want of a motive and intent or purpose of the
guiltiness of robbing, yet, after all, it comes to this--that the
inconsistency of the motive and intent, or the guiltiness of robbing,
with the lawfulness, under the law of nations, of privateering, is the
only ground or reason why the crime is deficiently proved.
I do not know that I need say anything to you about privateering,
further than to present somewhat distinctly what the qualifications,
what the conditions, and what the purposes, of privateering are. In the
first place, privateering is a part of war, or is a part of the
preliminary hostile aggressions which are in the nature of a forcible
collision between sovereign powers. Now what is the law of nations on
this subject--and how does there come to be a law of nations--and what
is its character, what are its sanctions, and who are parties to it? We
all know what laws are when they proceed from a Government, and operate
upon its citizens and its subjects. Law then comes with authority, by
right, and so as to compel obedience; and laws are always framed with
the intent that there shall be no opportunity of violent or forcible
resistance to them, or of violent or forcible settlement of
controversies under them, but that the power shall be submitted to, and
the inquiry as to right proceed regularly and soberly, under the civil
and criminal tribunals. But, when we come to nations, although they
have relations towards each other, although they have duties towards
each other, although they have rights towards each other, and although,
in becoming nations, they nevertheless are all made up of human beings,
under the general laws of human duty, as given by the common lawgiver,
God, yet there is no real superior that can impose law over them, or
enforce it against them. And it is only because of that, that war, the
scourge of the human race--and it is the great vice and defect of our
social condition, that it cannot be avoided--comes in, as the only
arbiter between powers that have no common superior. I am sure that the
little time I shall spend upon this topic will be serviceable; as,
also, in some more particular considerations, as to what is called a
state of war, and as to the conditions which give and create a war
between the different portions of our unhappy country and its divided
population. So, then, nations have no common superior whom they
recognize under this law, which they have made for themselves in the
interest of civilization and humanity, and which is a law of natural
right and natural duty, so far as it can be applied to the relations
which nations hold to one another. They recognize the fact that one
nation is just as good, as matter of right, of another; that whether it
be the great Powers of Russia, as England, of France, of the United
States of America, or of Brazil, or whether it be one of the feeble and
inferior Powers, in the lowest grade,--as, one of the separate Italian
Kingdoms, or the little Republic of San Marino, whose territories are
embraced within the circuit of a few leagues, or one of the South
American States, scarcely known as a Power in the affairs of men,--yet,
under the proposition that the States are equal in the family of
nations, they have a right to judge of their quarrels, and, finding
occasions for quarrel, have a right to assert them, as matter of force,
in the form of war. And all the other nations, however much their
commerce may be disturbed and injured, are obliged to concede certain
rights that are called the rights of war. We all understand what the
rights of war are on the part of two people fighting against each
other. A general right is to do each other as much injury as they can;
and they are very apt to avail themselves of that right. There are
certain meliorations against cruelty, which, if a nation should
transgress, probably other nations might feel called upon to suppress.
But, as a general thing, while two nations are fighting, other nations
stand by, and do not intervene. But the way other nations come to have
any interest, and to have anything to say whether there is war between
sovereign powers, grows out of certain rights of war which the law of
nations gives to the contending parties, against neutrals. For
instance: Suppose Spain and Mexico were at war. Well, you would say,
what is that to us? It is this to us. On the high seas, a naval vessel
of either power has a right, in pursuit of its designs against the
enemy, to interrupt the commerce of other nations to a certain extent.
It has a right of visitation and of search of vessels that apparently
carry our flag. Why? In order to see whether the vessel be really our
vessel, or whether our flag covers the vessel of its enemy, or the
property of its enemy. It has also a right to push its inquiries
farther, and if it finds it to be a vessel of the United States of
America, to see whether we are carrying what are called contraband of
war into the ports of its enemy; and, if so, to confiscate it and her.
Each of the powers has a right to blockade the ports of the other, and
thus to break up the trade and pursuits of the people of other
nations--and that without any quarrel with the other people. And so you
see, by the law of nations, this state of war, which might, at first,
seem to be only a quarrel between the two contending parties, really
becomes, collaterally, and, in some cases, to a most important extent,
a matter of interest to other nations of the globe. But however much we
suffer--however much we are embarrassed (as, for example, in the
extreme injury to British commerce and British interests now inflicted
in this country--the blockade keeping out their shipping, and
preventing shipments of cotton to carry on their industry)--we must
submit, as the English people submit, in the view their Government has
chosen to take of these transactions.
Now, gentlemen, this being the law of nations, you will perceive that,
as there is no human earthly superior, so there are no Courts that can
lay down the law, as our Courts do for our people, or as the Courts of
England do for their people. There are no Courts that can lay down the
law of nations, so as to bind the people of another country, except so
far as the Courts of that country, recognizing the sound principles of
morality, humanity and justice obtaining in the government and conduct
of nations towards each other, adopt them in their own Courts. So, when
my learned friends speak of the law of nations as being the law that is
in force here, and that may protect these prisoners in this case
against the laws of the United States of America, why, they speak in
the sense of lawyers, or else in a sense that will confuse your minds,
that is to say, that the law of nations, as the Court will expound and
explain it, has or has not a certain effect upon what would be
otherwise the plain behests of the statute law.
Now, it is a part of the law of nations, except so far as between
themselves they shall modify it by treaty--(two instances of which I
have read in the diplomacy of our own country, and a most extensive
instance of which is to be found in the recent treaty of Paris, whereby
the law of nations, in respect to privateering, has been so far
modified as to exclude privateering as one of the means of
war)--outside of particular arrangements made by civilized nations, it
was a part of the original law of war prevailing among nations, that
any nation engaged in war might fit out privateers in aid of its
belligerent or warlike purposes or movements. No difficulty arose about
this when war sprang up between two nations that stood before the world
in their accredited and acknowledged independence. If England and
France went to war, or if England and the United States, as in 1812,
went to war, this right of fitting out privateers would obtain and be
recognized. But, there arises, in the affairs of nations, a condition
much more obscure and uncertain than this open war between established
powers, and that is, when dissension arises in the same original
nation--when it proceeds from discontent, sedition, private or local
rebellion, into the inflammation of great military aggression; and when
the parties assume, at least, (assume, I say), to be rightfully
entitled to the position of Powers, under the law of nations, warring
against one another. The South American States, in their controversy
which separated them from the parent country, and these States, when
they were Colonies of Great Britain, presented instances of these
domestic dissensions between the different parts of the same
Government, and the rights of war were claimed. Now, what is the duty
of other nations in respect to that? Why, their duty and right is
this--that they may either accord to these struggling, rebellious,
revolted populations the rights of war, so far as to recognize them as
belligerents, or not; but, whether they will do so, or not, is a
question for their Governments, and not for their Courts, sitting under
and by authority of their Governments. For instance, you can readily
see that the great nations of the earth, under the influences upon
their commerce and their peace which I have mentioned, may very well
refuse to tolerate the quarrel as being entitled to the dignity of war.
They may say--No, no; we do not see any occasion for this war, or any
justice or benefit that is to be promoted by it; we do not see the
strength or power that is likely to make it successful; and we will not
allow a mere attempt or effort to throw us into the condition of
submitting to the disturbance of the peace, or the disturbance of the
commerce of the world. Or, they may say--We recognize this right of
incipient war to raise itself and fairly contend against its previous
sovereign--not necessarily from any sympathy, or taking sides in it,
but it is none of our affair; and the principles of the controversy do
not prevent us from giving to them this recognition of their supposed
rights. Now, when they have done that, they may carry their recognition
of right and power as far as they please, and stop where they please.
They may say--We will tolerate the aggression by public armed vessels
on the seas, and our vessels shall yield the right of visitation and
search to them. They may say--We will extend it so far as to include
the right of private armed vessels, and the rights of war may attend
them; or they may refuse to take this last step, and say--We will not
tolerate the business of privateering in this quarrel. And, whatever
they do or say on that subject, their Courts of all kinds will follow.
Apply this to the particular trouble in our national affairs that is
now progressing to settle the fate of this country. France and England
have taken a certain position on this subject. I do not know whether I
accurately state it (and I state it only for the purpose of
illustration, and it is not material), but, as I understand it, they
give a certain degree of belligerent right, so that they would not
regard the privateers on the part of the Southern rebellion as being
pirates, but they do not accord succor or hospitality in their ports to
such privateers. Well, now, suppose that one of these privateers
intrudes into their ports and their hospitalities, and claims certain
rights. Why, the question, if it comes up before a Court in Liverpool
or London, will be--Is the right within the credit and recognition
which our Government has given? And only that. So, too, our Government
took the position in regard to the revolting States of South America,
that it would recognize them as belligerents, and that it would not
hang, as pirates, privateers holding commissions from their authority.
But, when other questions came up, as to whether a particular authority
from this or that self-styled power should be recognized, our
Government frowned upon it, and would not recognize it. With regard to
Captain Aury, who styled himself Generalissimo of the Floridas, or
something of that kind, when Florida was a Spanish province, our Courts
said--We do not know anything about this--his commissions are good for
nothing here--our Government has not recognized any such contest or
incipient nationality as this. So, too, in another case, where there
was an apparent commission from one struggling power, the Court
say--Our Government does not recognize that power, and we do not, in
giving any rights of war to it; but, the Court say, it appears in the
proof that this vessel claims to have had a commission from Buenos
Ayres, another contending power; if so, that is a power which our
Government recognizes; and the case must go down for further proof on
that point.
I confess that, if the views of my learned friends are to prevail, in
determining questions of crime and responsibility under the laws and
before the Court, and are to be accepted and administered, I do not see
that there is any Government at all. For you have every stage of
Government: first, Government of right; next, a Government in fact;
next, a Government trying to make itself a fact; and, next, a
Government which the culprit thinks ought to be a fact. Well, if there
are all these stages of Government, and all these authorities and
protections, which may attend the acts of people all over the world, I
do not see but every Court and every Jury must, finally, resolve itself
into the great duty of searching the hearts of men, and putting its
sanctions upon pure or guilty secret motives, or notions, or
interpretations of right and wrong--a task to which you, gentlemen of
the Jury, I take it, feel scarcely adequate.
Now, gentlemen, I have perhaps wearied you a little upon this subject;
because it is from some confusion in these ideas,--first, of what the
law of nations permits a Government to do, and how it intrudes upon and
qualifies the laws of that Government; and, second, upon what the
rights are that grow out of civil dissensions, as towards neutral
powers,--that some difficulty and obscurity are introduced into this
case.
If the Court please, I maintain these propositions, in conformity with
the views I have heretofore presented--first, that the law of the land
is to determine whether this crime of piracy has been committed,
subject only to the province of the Jury in passing upon the facts
attending the actual perpetration of the offence; and, second, upon all
the questions invoked to qualify, from the public relations of the
hostile or contending parties in this controversy, the attitude that
this Government holds towards these contending parties, is the attitude
that this Court, deriving its authority from this Government, must
necessarily hold towards them.
I have argued this matter of the choice and freedom of a Government to
say how it will regard these civil dissensions going on in a foreign
nation, as if it had some application to this controversy, in which we
are the nation, and this Court is the Court of this nation.
But, gentlemen, the moment I have stated that, you will see that there
is not the least pretence that there is any dispensing power in the
Court, or that there has been any dispensing power exercised by our
Government, or that there has been any pardon, or any amnesty, or any
proclamation, saving from the results of crime against our laws, any
person engaged in these hostilities, who at any time has owed
allegiance and obedience to the Government of the United States.
Therefore, here we stand, really extricated from all the confusion, and
from all the wideness of controversy and of comment that attends these
remote considerations of this case, that have been pressed upon your
attention as if they were the case itself, on the part of our learned
friend.
Now, if the Court please, I shall bestow some particular consideration
upon the statute, but I shall think it necessary to add very little to
the remarks I have heretofore made to the Court. The 8th section of the
statute has been characterized by the learned counsel, and, certainly,
with sufficient accuracy, for any purposes of this trial, as limited to
the offence of piracy as governed by the law of nations. I do not know
that any harm comes from that description, if we do not confuse it with
the suggestion that the authority of this Government over the crime is
limited to the construction of the law of nations which is expressed in
that section of the statute. At all events, as they concede, I believe,
that the 8th section is within the constitutional right and power of
Congress, under the special clause giving them authority to define and
punish piracy, under the law of nations, there is no room for
controversy here on the point. When we come to the 9th section, we have
two different and quite inconsistent views presented by the different
counsel. One of the counsel (I think, Mr. Dukes) insists that the 9th
section does not create any additional crime beyond that of piracy as
defined in the 8th section, but only robs that crime of piracy of any
apparent protection from a commission or authority from any State. But,
my friend Mr. Brady contends (and, I confess, according to my notion of
the law, with more soundness) that there is an additional crime, which
would not be embraced, necessarily, in the crime of piracy or robbery
on the high seas--which is the whole purview of the 8th section, and
which is in terms repeated in the 9th--and that the additional words,
"or any act of hostility against the United States, or any citizens
thereof," create a punishable offence, although it may fall short of
the completed crime of piracy and robbery, as defined. Now, I concede
to my learned friend that the particular case he put of a quarrel
between two ships' crews on the high seas, and of an attack by one of
the crew of one upon one of the crew of the other with a belaying pin,
would not, in my judgment, as an indictable, punishable offence, fall
within the 9th section. But, whether I am right or wrong about it, it
does not impede the argument of the Government, that there are crimes
which are in the nature of and up to the completeness of hostile
attacks upon vessels or citizens of the United States which would not
be piracy, but yet are punishable under the 9th section.
Now, agreeing, thus far, that there is an added offence to the crime of
piracy in the 9th section, I am obliged to meet his next proposition,
that such additional offence is beyond the constitutional power of
Congress, because it is an offence which does not come up to the crime
of piracy, and, therefore, exceeds the grant of authority under the
particular section of the Constitution which gives to Congress power
over the definition and punishment of piracy under the law of nations.
Now, if the Court please, the argument is a very simple one. This 9th
section does not profess to carry the power of this Government where
alone the principles of the law of nations would justify; that is, to
operate upon all the world, so far as the subjects of it--that is, the
persons included in its sanctions--are concerned, or so far as the
property protected by it is concerned. It is limited to citizens, and
limited to hostilities against citizens of the United States, or their
property at sea. Now, the authority in respect to this comes to
Congress under the provision of the Constitution which gives the
regulation of commerce and its control, in regard to which I need not
be more particular to your Honors, because there are statutes of
every-day enforcement, and under the highest penalty, too, of the law,
such as revolt, mutiny, &c., which have nothing to do with the national
considerations of the law of piracy, and nothing to do with the clause
of the Constitution which gives to Congress power over the crime of
piracy, but rest in the power reposed in Congress to protect the
commerce of the United States. So, this is wholly within the general
competency of Congress to govern citizens of the United States on the
high seas, and to protect the property of citizens on the high seas,
although there is no common law of general jurisdiction of Congress on
the subject of crimes.
Now, upon this subject there is but one other criticism, and that
is--that although the statute is framed with the intent, and its
language covers the purpose, of prohibiting any defence or protection
being set up under an assumed or supposed authority from any foreign
Government, State, or Prince, or from any person, yet the particular
authority which is averred in the indictment and produced in proof, if
you take it in the sense that we give to it, is not within the purview
of the statute, and, if you take it in any other sense, is not proved;
and that thus a variance arises between the indictment and the proof,
because the proof goes so far as to remove from under the statute the
four defendants who would otherwise be amenable as citizens, by making
the Government foreign, and making them foreign citizens. Now, to take
up one branch of this at a time, I do not care at all whether the
Government of the United States, when they passed this law, anticipated
that there ever would be an occurrence which would give shape to such a
commission as this, from either a person or an authority that emanated
from what was or ever had been a part or a citizen of the United
States. If these new occurrences here have produced new relations--(and
that is the entire argument of my learned friends, for, if they have
produced no new relations, what have we to do with any of these
discussions?)--if they have produced new relations, perfect or
imperfect, effectual or ineffectual, to this or that extent, why then,
if these new relations and attitude have brought this matter within the
purview of a statute of the United States which was framed to meet all
relations that might arise at any time, they come within its
predicament, and the argument seems to me to amount to nothing. It will
not be pretended that the 9th section of this statute can only be
enforced as to Powers in existence at the time it was passed. Whenever
a new Power or new authority is set forth as a protection to the crime
of piracy, the 9th section of the statute says: "Well, we do not know
or care anything about what the law of nations says about your
protection, or your authority--we say that no citizen of the United
States, depredating against our commerce, shall set up any authority to
meet the justice of our criminal law." Well, now, that the statute has
said; and we have averred and proved the commission such as it is. It
is either the commission of a foreign Prince, or State, or it is an
authority from some person. We do not recognize it as from a foreign
State or Prince. Indeed, Mr. Davis does not call himself a Prince, and
we do not recognize the Confederate States as a nation or State, in any
relation. Therefore, if we would prove this authority under our law, we
must aver it as it is, coming from an individual who was once a citizen
of the United States, and still is, as the law decides, a citizen of
the United States. Whatever port or pretension of authority he assumes,
and whatever real fact and substance there may be to his power, it is,
in the eye of the law, nothing. It is not provable, and it is not
proved.
Now, as to the right of Congress to include the additional crime, under
the authority given to it to punish piracy according to the law of
nations, my learned friend contends that this statute is limited by
that authority, and is, as respects anybody within its purview,
unconstitutional, and that, although a particular act may be within the
description of the statute, so far as regards hostility, it is not
piracy. On that subject I refer your Honors to a very brief proposition
contained in the case of _The United States_ v. _Pirates (5 Wheaton,
202)_:
"And if the laws of the United States declare those acts of piracy
in a citizen, when committed on a citizen, which would be only
belligerent acts when committed on others, there can be no reason
why such laws should not be enforced. For this purpose the 9th
section of the Act of 1790 appears to have been passed. And it
would be difficult to induce this Court to render null the
provisions of that clause, by deciding either that one who takes a
commission under a foreign power, can no longer be deemed a
citizen, or that all acts committed under such a commission, must
be adjudged belligerent, and not piratical acts."
I would also refer to the case of _The Invincible_, to which my learned
friend called the attention of the Court, in the opinion of the late
Attorney-General, Mr. Butler. It is to be found in the 3d volume of the
_Opinions of the Attorney-Generals_, page 120. My learned friend cited
this case in reference to the proposition that persons holding a
commission (as I understood him) should not be treated as pirates,
under the law of nations, by reason of any particular views or opinions
of our Government. I refer to that part of the opinion where he says:
"A Texan armed schooner cannot be treated as a pirate under the Act of
April 30th, 1790, for capturing an American merchantman, on the alleged
ground that she was laden with provisions, stores, and munitions of war
for the use of the army of Mexico, with the Government of which Texas,
at the time, was in a state of revolt and civil war."
Now, undoubtedly, Mr. Butler does here hold that, by the law of
nations, in a controversy between revolting Colonies and the parent
State, where our Government recognizes a state of war as existing, a
privateer cannot be treated as a pirate. But we will come to the
opinion of the Attorney-General on the other proposition we contend
for--that is, in support of the 9th section of the statute, as far as
it would have exposed citizens of the United States to the penalty of
piracy: