_Judge Nelson_ then proceeded to deliver the Charge of the Court,
in which _Judge Shipman_, his associate, concurred:
The first question presented in this case is, whether or not the Court
has jurisdiction of the offence? This depends upon a clause of the 14th
section of the Act of Congress of 1825, as follows: "And the trial of
all offences which shall be committed upon the high seas or elsewhere,
out of the limits of any State or District, shall be in the District
where the offender is apprehended, or into which he may be first
brought." The prisoners, who were captured by an armed vessel of the
United States, off Charleston, South Carolina, were ordered by the
commander of the fleet to New York for trial; but the Minnesota, on
board of which they were placed, was destined for Hampton Roads, and it
became necessary, therefore, that they should be there transferred to
another vessel. They were thus transferred to the Harriet Lane, and,
after some two days' delay, consumed in the preparation, they were sent
on to this port, where they were soon after arrested by the civil
authorities. It is insisted, on behalf of the prisoners, that inasmuch
as Hampton Roads, to which place the prisoners were taken and
transferred to the Harriet Lane, was within the Eastern District of the
State of Virginia, the jurisdiction attached in that District, as that
was the first District into which the prisoners were brought. The Court
is inclined to think that the circumstances under which the Minnesota
was taken to Hampton Roads, in connection with the original order by
the commander that the prisoners should be sent to this District for
trial, do not make out a bringing into that District within the meaning
of the statute. But we are not disposed to place the decision on this
ground. The Court is of opinion that the clause conferring jurisdiction
is in the alternative, and that jurisdiction may be exercised either in
the District in which the prisoners were first brought, or in that in
which they were apprehended under lawful authority for the trial of the
offence. This brings us to the merits of the case.
The indictment under which the prisoners are tried contains ten counts.
The first five are framed upon the third section of the Act of Congress
of 1820, which is as follows: "That, if any person shall, upon the high
seas, 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, upon
conviction, shall suffer death. The five several counts charge, in
substance, that the prisoners did, upon the high seas, enter in and
upon the brig Joseph, the same being an American vessel, and upon the
ship's company, naming them; and did, then and there, piratically,
feloniously, and violently make an assault upon them, and put them in
personal fear and danger of their lives; and did, then and there, the
brig Joseph, her tackle and apparel, her lading (describing it), which
were in the custody and possession of the master and crew, from the
said master and crew and from their possession, and in their presence,
and against their will, violently, piratically and feloniously seize,
rob, steal, take and carry away, against the form of the statute, &c.
There are some variances in the different counts, but it will not be
material to notice them. It will be observed that this provision of the
Act of Congress prescribing the offence applies to all persons, whether
citizens or foreigners, making no distinction between them, and is
equally applicable, therefore, to all the prisoners at the bar. The
remaining five counts are framed under the 9th section of the Act of
Congress of 1790, which is as follows: "That if any citizen shall
commit any piracy or robbery aforesaid, or any act of hostility against
the United States, or any citizen thereof, upon the high sea, 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
conviction, shall suffer death. These five counts charge that the
prisoners are all citizens of the United States, and that they
committed the acts set forth in the previous five counts, on pretence
of authority from one Jefferson Davis.
As the provision of the Act of Congress upon which these counts are
framed is applicable only to citizens and not to foreigners, but four
of the prisoners can be brought within it, as the other eight are
admitted to be foreigners. The four are Baker, Howard, Passalaigue, and
Harleston. The distinction between the provisions of the third section
of the Act of 1820 and the ninth section of 1790, and the counts in the
indictment founded upon them, arises out of a familiar principle of
international law, and which is, that in a state of war existing
between two nations, either may commission private armed vessels to
carry on war against the enemy on the high seas, and the commission
will afford protection, even in the judicial tribunals of the enemy,
against a charge of the crime of robbery or piracy. Such a commission
would be a good defence against an indictment under the third section
of 1820, by force of the above rule of international law. The ninth
section of the Act of 1790 changes the rule as it respects citizens of
the United States who may take service under the commission of the
private armed vessels of the enemy of their country. It declares, as it
respects them, the commission shall not be admitted as a defence; and,
as this legislation relates only to our own citizens, and prescribes a
rule of action for them, and not as it respects the citizens or
subjects of other countries, we do not perceive that any exception can
be taken to the Act as unconstitutional or otherwise. But, upon the
view the Court has taken of the case, it will not be necessary to
trouble you with any remarks as it respects this ninth section, nor in
respect to the several counts framed under it, but we shall confine our
observations to a consideration of the third section of the Act of
1820. There can be no injustice to the prisoners in thus restricting
the examination, as any authority for the perpetration of the acts
charged in the indictment, founded upon the Act of 1820, will be
equally available to them. Nor can there be any injustice to the
prosecution, for unless the crime of robbery, as prescribed in the Act
of 1820, is established against the four prisoners, none could be under
the ninth section of the Act of 1790. The crime in the two Acts is the
same for all the purposes of this trial. The only difference is the
exclusion of a particular defence under the latter. Now, the crime
charged is robbery upon an American vessel on the high seas, and hence
it is necessary that we should turn our attention to the inquiry, what
constitutes this offence? It has already been determined by the highest
authority--the Supreme Court of the United States--that we must look to
the common law for a definition of the term robbery, as it is to be
presumed it was used by Congress in the Act in that sense, and, taking
this rule as our guide, it will be found the crime consists in this:
the felonious taking of goods or property of any value from the person
of another, or in his presence, against his will, by violence, or
putting him in fear. The taking must be felonious--that is, taking with
a wrongful intent to appropriate the goods of another. It need not be a
taking which, if upon the high seas, would amount to piracy, according
to the law of nations, or what, in some of the books, is called general
piracy or robbery. This is defined to be a forcible depredation upon
property upon the high seas without lawful authority, done _animo
furandi_--that is, as defined in this connection, in a spirit and
intention of universal hostility.
A pirate is said to be one who roves the sea in an armed vessel,
without any commission from any sovereign State, on his own authority,
and for the purpose of seizing by force and appropriating to himself,
without discrimination, every vessel he may meet. For this reason,
pirates, according to the law of nations, have always been compared to
robbers--the only difference being that the sea is the theatre of the
operations of one and the land of the other. And, as general robbers
and pirates upon the high seas are deemed enemies of the human
race--making war upon all mankind indiscriminately--the crime being one
against the universal laws of society--the vessels of every nation have
a right to pursue, seize, and punish them. Now, if it were necessary,
on the part of the Government, to bring the crime charged in the
present case against the prisoners within this definition of robbery
and piracy, as known to the common law of nations, there would be great
difficulty in so doing either upon the evidence, or perhaps upon the
counts, as charged in the indictment--certainly upon the evidence. For
that shows, if anything, an intent to depredate upon the vessels and
property of one nation only--the United States--which falls far short
of the spirit and intent, as we have seen, that are said to constitute
essential elements of the crime. But the robbery charged in this case
is that which the Act of Congress prescribes as a crime, and may be
denominated a statute offence as contra-distinguished from that known
to the law of nations. The Act, as you have seen, declares the person a
pirate, punishable by death, who commits the crime of robbery upon the
high seas against any ship or vessel, or upon any ship's company of any
ship or vessel, &c.; and the interpretation given to these words
applies the crime to the case of depredation upon an American vessel or
property on the high seas, under circumstances that would constitute
robbery, if the offence was committed on land, and which is, according
to the language of Blackstone, the felonious and forcible taking from
the person of another of goods or money, to any value, by violence or
putting him in fear. The felonious intent which describes the state of
mind as an element of the offence, is what is called in technical
language _animo furandi_, which means an intent of gaining by
another's loss, or to despoil another of his goods _lucri causa_,
for the sake of gain. Now, if you are satisfied, upon the evidence,
that the prisoners have been guilty of this statute offence of robbery
upon the high seas, it is your duty to convict them, though it may fall
short of the offence as known to the law of nations. We have stated
what constitute the elements of the crime, and it is your province to
apply the facts to them, and thus determine, whether or not the crime
has been committed. That duty belongs to you, and not to the Court. We
have said that, in a state of war between two nations, the commission
to private armed vessels from either of the belligerents affords a
defence, according to the law of nations, in the Courts of the enemy,
against a charge of robbery or piracy on the high seas, of which they
might be guilty in the absence of such authority; and under this
principle it has been insisted, by the learned counsel for the
prisoners, that the commission of the Confederate States, by its
President, Davis, to the master and crew of the Savannah, which has
been given in evidence, affords such defence.
In support of this position, it is claimed that the Confederate States
have thrown off the power and authority of the General Government; have
erected a new and independent Government in its place, and have
maintained it against the whole military and naval power of the former;
that it is a Government, at least _de facto_, and entitled to the
rights and privileges that belong to a sovereign and independent
nation. The right, also, constitutional or otherwise, has been strongly
urged, and the law of nations and the commentaries of eminent
publicists have been referred to as justifying the secession or revolt
of these Confederate States. Great ability and research have been
displayed by the learned counsel for the defence on this branch of the
case. But the Court do not deem it pertinent, or material, to enter
into this wide field of inquiry. This branch of the defence involves
considerations that do not belong to the Courts of the country. It
involves the determination of great public, political questions, which
belong to departments of our Government that have charge of our foreign
relations--the legislative and executive departments; and, when decided
by them, the Court follows the decision; and, until these departments
have recognized the existence of the new Government, the Courts of the
nation cannot. Until this recognition of the new Government, the Courts
are obliged to regard the ancient state of things remaining as
unchanged. This has been the uniform course of decision and practice of
the Courts of the United States. The revolt of the Spanish Colonies of
South America, and the new Government erected on separating from the
mother country, were acknowledged by an Act of Congress, on the
recommendation of the President, in 1822. Prior to this recognition,
and during the existence of the civil war between Spain and her
Colonies, it was the declared policy of our Government to treat both
parties as belligerents, entitled equally to the rights of asylum and
hospitality; and to consider them, in respect to the neutral relation
and duties of our Government, as equally entitled to the sovereign
rights of war as against each other. This was, also, the doctrine of
the Courts, which they derived from the policy of the Government,
following the political departments of the Government as it respects
our relations with new Governments erected on the overthrow of the old.
And if this is the rule of the Federal Courts, in the case of a revolt
and erection of a new Government, as it respects foreign nations, much
more is the rule applicable when the question arises in respect to a
revolt and the erection of a new Government within the limits and
against the authority of the Government under which we are engaged in
administering her laws. And, in this connection, it is proper to say
that, as the Confederate States must first be recognized by the
political departments of the mother Government, in order to be
recognized by the Courts of the country, namely, the legislative and
executive departments, we must look to the acts of these departments as
evidence of the fact. The act is the act of the nation through her
constitutional public authorities. These, gentlemen, are all the
observations we deem necessary to submit to you. The case is an
interesting one, not only in the principles involved, but to the
Government and the prisoners at the bar. It has been argued with a
research and ability in proportion to its magnitude, both in behalf of
the prisoners and the Government; and we do not doubt, with the aid of
these arguments, and the instructions of the Court, you will be enabled
to render an intelligent and just verdict in the case.
The Jury retired at twenty minutes after three o'clock.
At six o'clock they came into Court. Their names were called, and the
inquiry made by the Clerk whether they had agreed upon their verdict.
Their Foreman said they had not. One of the prisoners having felt
unwell, had been removed from the close air of the Court-room, and some
little delay occurred until he was brought in. Judge Nelson then said:
"We have had a communication from one of the officers in charge of the
Jury, from the Jury, as we understood, though it had no name signed to
it. I would inquire whether the note was from the Jury?"
_The Foreman_: It was.
_Judge Nelson_: We would prefer that the Jurymen, or any of them who
may be embarrassed with the difficulties referred to, should himself
state the inquiry which he desires to make of the Court.
_Mr. Powell_, one of the Jurors, said that the question was, "whether,
if the Jury believed that civil war existed, and had been so recognized
by the act of our Government, or if the Jury believe that the intent to
commit a robbery did not exist in the minds of the prisoners at the
time, it may influence their verdict."
After consultation with Judge Shipman, Judge Nelson said: As it
respects the first inquiry of the Juror--whether the Government has
recognized a state of civil war between the Confederate States and
itself--the instruction which the Court gave the Jury was, that this
Court could not recognize a state of civil war, or a Government of the
Confederate States, unless the legislative and executive Departments
of the Government had recognized such a state of things, or the
President had, or both; and that the act of recognition was a national
act, and that we must look to the acts of these Departments of the
Government as the evidence and for the evidence of the recognition of
this state of things, and the only evidence. As it respects the other
question--whether or not, if the Jury were of opinion, on the
evidence, that these prisoners did not intend to commit a robbery on
the high seas against the property of the United States, they were
guilty of the offence charged--that is a mixed question of law and
fact. The Court explained to you what constitutes the crime of robbery
on the high seas, which was the felonious taking of the property of
another upon the high seas by force, by violence, or putting them in
fear of bodily injury, which, according to the law, is equivalent to
actual force; and that the term felonious, as interpreted by the law
and the Courts, was the taking with a wrongful intent to despoil the
others of their property. These elements constitute the crime of
robbery. Now, it is for you to take up the facts and decide whether
the evidence in the case brings the prisoners within that definition.
The Court will not encroach upon your province in these respects, but
will confine itself to the definition of the law.
Another of the Jury--_George H. Hansell_--rose and said: One of the
Jury--not myself--understood your honor to charge that there must be
an intent to take the property of another for your own use.
_Judge Nelson_: No, I did not give that instruction. The Jury may
withdraw.
The Jury again retired, and, as there was no probability of an
agreement at half-past seven o'clock, the Court adjourned to eleven
o'clock Thursday morning.