Trial of the Officers and Crew of the Privateer Savannah, on the Charge of Piracy, in the United States Circuit Court for the Southern District of New York

I have thus ended what I had to say upon this subject, with but one single exception.

A great deal will be said, undoubtedly, on the part of the prosecution, here, with reference to this being a revolutionary overthrow of the Government of the United States in the States which have taken these steps. I have only to ask, in reference to that—conceding it, for the sake of argument, in its fullest extent—what was the adoption of the Constitution of the United States but a revolutionary overthrow of the previously existing Confederation? It was done by nine States, without the consent of four, whose consent was necessary, and the Government of the United States went into operation; and it was a long time before at least two of them came in under the new Government.

Mr. Evarts: Will my learned friend allow me to ask him, in that part of his argument which proceeds upon the right of a State, yet being a State, to justify the acts of its citizens, to explain the proposition that a State can oppose the United States, within and under the Constitution, in regard to any law of the United States about which this essential right of judgment, whether the aggression of the United States has carried it beyond the powers of the Constitution, or not, is claimed to exist?

Mr. Larocque: I thought I had been very explicit on that. I said, in the first place, that I had nothing to do with the question of right or wrong. I said this: That a collision had occurred between the government of the State and the Federal Government; that each being sovereign, within the limitation of its powers, had a right to judge for itself whether the occasion for such a collision had occurred, or not; that these prisoners, citizens of the States which had decided that such a case had occurred, as subjects owing allegiance to two equal and co-ordinate sovereigns, which had come into hostile collision with each other, must exercise, upon their consciences, their election to which Sovereign they would adhere; and that, whatever may be the unfortunate consequences, they are not responsible before the tribunal of the other sovereignty because they adhered to one of them; that they would be no more responsible before the criminal tribunals of South Carolina if, in this contest, they had adhered to the General Government and borne arms against their native State, than they are responsible in the tribunals of the Federal Government because, exercising their own consciences, they had adhered to the State and not to the Federal Government. I say it is like the case of a child whose parents disagree, and who is obliged to adhere either to his father or his mother; and that he violates no law of God or of man in adhering to either.

Mr. Smith: If the Court please, I rise for a purpose different from the remark that I wish to make in reply to the last illustration of my learned friend. I might say that the instance of a child is one very parallel to that we might have given—that the father is the superior authority, where there is a difference between two parents.

I rise, however, to present to the Court, as one of the authorities, or rather a citation which will receive its respectful consideration, the Charge of Mr. Justice Grier, in the case tried in Philadelphia; and also the opinion of Judge Cadwalader, in the same case.

Mr. Brady: Who reported this?

Mr. Smith: I received it, by telegraph, from the District Attorney of Philadelphia; and it is also printed in a newspaper published last evening in Philadelphia. I have compared them, and the two accounts perfectly agree. I do not cite them as authority, but as entitled to the respectful consideration of the Court.

Mr. Brady: As, now-a-days, what the newspapers publish one day they generally contradict the next, I think any report should be taken with some grains of allowance, at least. I suppose I would recognize the style of Judge Grier.

Mr. Blatchford: I think you will, on examining it. It is evidently printed from the manuscript.

Mr. Smith read the charge of Judge Grier in the case of the privateers tried in Philadelphia.

Mr. Brady: Tell me what question of fact was there left to the Jury?

Mr. Smith: I refer you to Judge Cadwalader's opinion, which is much longer.

Mr. Brady: I do not see that there was anything left for the Jury. Judge Grier decided that case,—which undoubtedly he could do, for he is a very able man.

Mr. Sullivan put in evidence the log-book of the Savannah.

ARGUMENT OF MR. MAYER, OF COUNSEL FOR THE DEFENCE

Mr. Mayer said:—May it please your honors,—A foreign-born citizen now rises, on behalf of eight of the defendants, who, as it has been conceded by the prosecution, are subjects of foreign States. It might appear almost superfluous, after the full and eloquent argument of our venerable brother—I was almost tempted to say father (Mr. Lord)—for one of the junior counsel for the defence to say anything. Still, I thought it incumbent on me to anticipate a construction or interpretation which the prosecution may attempt to make, by offering, myself, a proposition. But before reading it, I will, as briefly as my proposition is brief, state my comment thereon.

Let us, in the first place, look at the aspect of the relations in which these foreigners stood at the time of their committing this alleged offence. They are all sea-faring men. Their various crafts had been locked up in the port of Charleston by the blockade there. Business, as we have heard here in evidence, was prostrated. Nothing was left for them but to enlist in the army of the Confederacy, or to become privateers. It is certainly a pity that they did not choose the first alternative; for, even if they had been caught with arms in their hands, their fate would now be far better than it is. They would not now be in jeopardy of their lives, threatened with the pains and penalties of a law that is not applicable to them. But being, as I said before, inured to the life of seafarers, they chose to become privateers.

We must, however, in judging of their act, place ourselves in their position. They were foreigners. As foreigners, they brought to this country views and notions as regards their act which are widely different from those sought to be enforced here. They knew the practice and theories of Europe in regard to their act. What are those views and theories? I can state them in a very few words, and am sorry that the authorities to which I shall refer are in a language which may not be familiar to your honors. I will, however, state their effect. It is this: Whenever a rebellion in any country has assumed such extensive magnitude as no longer to be a simple insurrection, which may be put down by police measures or regulations, but has come to such a degree that mighty armies are opposed to each other, although the revolted portion may not have been acknowledged by any nation, yet belligerent rights must be granted to it. This is the notion, or theory, which has entered into the mind of every European, to whatever State or nation he may belong. I may be permitted to quote a few historical facts to show why this is so. When the Netherland Colonies revolted against Spain the privateers of the Prince of Orange, even before he was elected Admiral General by those Colonies, were by most nations recognized. They were only not recognized by some of those nations against which they committed depredations; and it is a historical fact that a great many of those privateers commissioned by the Prince of Orange became pirates.

Another case is furnished by our own Revolution. It is known to all Europeans that, although in the beginning of the American Revolution England did not recognize the belligerent rights of America, yet, after some time, she did recognize those rights, even by a Parliamentary Act. I refer to 16 George the Third, ch. 5. The same was the case in the French Revolution; and there I may refer to a very curious fact. England recognized the privateers of the revolutionary Government of France, so far as those privateers went against other nations; but when they cruised against her own commerce she did not recognize them. She remonstrated with Denmark because Denmark had recognized them, and Denmark simply pointed to her (England's) own course.

All these facts are very well known to every European, and it is with a knowledge of these facts that every European looks upon a revolution. To express it in a very short sentence, it is the theory of "Let us have fair play."

If your honors please, I may say that this notion of belligerent rights in revolution has entered into the flesh and blood of every European to such an extent, that the only nation which does not allow, in revolution, that fair play, is despised and hated, except by these United States. I mean Russia. Russia is now very friendly towards this Union; not, however, I may be permitted to state—reversing an oft-quoted passage of Shakspeare—not because she loves Rome more, but that she loves Cæsar less. It is not out of love for this country, but because the diplomatists of Russia—the farthest-seeing diplomatists of Europe—hope that England and France will interfere in the contest between these States, and that she may get an opportunity to return the compliment to these two powers which she received from them at Sebastopol. With a knowledge of these facts, and with these European theories, these foreigners, now indicted under the Act of 1790, entered into this privateering business.

They saw, as I said before, Charleston blockaded. To them a blockade is an act of belligerent rights. They saw a constitutional government adopted in the Confederate States. They never dreamed that, if they wished to embark in this privateering business, they should be treated as pirates. They knew well, as every European knows who has any knowledge of international law, that there are two kinds of piracy—piracy by international law, and piracy under municipal law—municipal piracy, or, as Mr. Lord called it yesterday, statutory piracy.

And now I refer, as to the right of one nation making anything piracy that is not piracy by the law of nations, to Wheaton, volume 6, page 85; 1st Phillimore, 381; and to 1st Kent, 195. I will not take up the time of your honors in reading all these passages, but I hold here the last work on international law. It is, however, written in the German language. It is of unbounded authority on the Continent, and has been translated into French and Greek. It is very frequently referred to by all those authors whom I have just quoted. It states this theory in two lines, which I will read to your honors in a translation:

"Laws of individual nations (as, for instance, the French law of the 10th April, 1825) may, so far as their own subjects are concerned, either alter the meaning of piracy, or extend its operation; but they are not allowed to do that to the prejudice of other States."

I refer to Hefter on Modern International Law, 4th ed., page 191.

From this we can see that there are two kinds of piracy—national piracy and municipal piracy. No State can be prevented by any law of nations from making anything piracy which that State pleases. For instance, there is a law of piracy in Spain that any person committing frauds in matters of insurance is a pirate; or that any one even cutting the nets of a simple fisherman is a pirate. I might quote other instances. In our own country the slave-trade is a piracy; but that does not make it piracy everywhere. In some of the States of Germany slave-trade is kidnapping, and is punished as such.

What, now, is the relation of these foreigners to this municipal piracy, under the indictment with which they stand charged? That it is municipal piracy, I need not say anything further, after the full argument of our friend and father, Mr. Lord. The law is very distinct. It is, "if any citizen shall do so and so." But how do these men come in? Here I come to the point why I thought it fit and incumbent on me to offer my propositions. The prosecution will certainly stretch, as I said before, the construction and interpretation of the law in this way: It will say, "These men were apprehended on an American bottom, and, being on an American bottom, they were on American soil, and as, according to criminal law, they are protected by our law, so they are bound by our law." This, I apprehend, is the theory on which the prosecution will urge that these foreigners—notwithstanding the distinct expression of the law, "if any citizen"—shall be found guilty under this indictment. But as they are foreigners to this law, so is this law foreign to them. And there is a principle in criminal law which says—I read from section 238 of Bishop's Criminal Law, vol. I.—

"It is a general principle that every man is presumed to know the laws of the country in which he dwells, or, if resident abroad, transacts business. And within certain limits, not clearly defined, this presumption is conclusive. Its conclusive character rests on considerations of public policy, and, of course, it cannot extend beyond this foundation, though we may not easily say, on the authorities, precisely how far the foundation of policy extends. We may safely, however, lay down the doctrine that in no case may one enter a Court of Justice to which he has been summoned, in either a civil or criminal proceeding, with the sole and naked defence that when he did the thing complained of he did not know of the existence of the law he violated. Ignorantia juris non excusat is, therefore, a principle of our jurisprudence, as it is of the Roman, from which it is derived."

This rule, so essential to the ordinary administration of justice, cannot be deemed strange in criminal cases generally, because most indictable wrongs are mala in se, and, therefore, offenders are still conscious of violating the law "written in every man's heart."

But—and now I refer to the note to this section, which says—"ignorance of the law of foreign countries is, with the exception noticed in the text, ignorance of fact which persons are not held to know." The author cites the following authorities: Story's Equity Jurisprudence, sections 110, 23; American Jurisprudence, sections 146 and 347; to which I would add 8 Barbour's Supreme Court Reports, 838 and 839, and the case of Rex versus Lynn, 2d Term Report, 233.

Now, I contend that, as this law under which the indictment is drawn is a law creating municipal piracy, so it is a law foreign to these foreigners; that, therefore, as to them, it is a matter of fact, and, according to the criminal theory, ignorantia facti excusat, these foreigners cannot be found guilty under this law. Municipal piracy, to carry out the doctrine of this theory, is not malum in se; for, as I said before, international law does not acknowledge it as such, but is opposed to it as to foreigners; and if I understand well the decision of the Supreme Court, it is even acknowledged, in the case of the United States versus Palmer, 3d Wheaton, 610, that the Congress of the United States cannot make that piracy which is not piracy by the law of nations, in order to give jurisdiction to its Courts over such offences.

Besides, this knowledge of facts enters a good deal into the theory of intent. So much has been said about the piratical intent, that I can pass this by in silence. But, with reference to the theory that foreigners are to be taken as ignorant of facts, I will give an illustration that was suggested to me this morning by an incident which occurred on my way to the Court. A little boy in the street handed to me a card of advertisement which had all the appearance of a bank note. Now, I remembered at the moment that about three years ago the Legislature of South Carolina passed a law making the issuing and publication of such advertisements—such business cards—an offence, punishable, if I am not mistaken, both by fine and imprisonment. Now suppose that the great American showman at the corner of Ann and Broadway should carry his "What is it" or Hippopotamus down to Charleston, and issue such an advertisement, and he should be brought before the Court of South Carolina; would it not be unjust, as the offence is not malum in se, to find him guilty? Certainly it would be; and, according to the same theory, I cannot imagine, by any possible process of reasoning, that these prisoners should be deemed guilty under an indictment, when the law was entirely foreign to them. They may justly say, as they might have known, and did perhaps know, that our country, too, holds to this simple doctrine: "Let us have fair play." So when certain provinces rose up in revolt against the parent or original Government, to conquer, as it were, their independence, this country maintained a state of neutrality, and granted to both parties belligerent rights. Many such cases have been cited; but the most striking one, I am astonished, has not been cited. I will refer to it now. It is the case of the United States against the Miramon and the Havana, tried before the District Court of New Orleans. These two steamers were commissioned vessels, belonging to an authority not only not recognized by the Government of the United States, but opposed to the Government which had been recognized by ours. They were commissioned ships of General Miramon, and were seized and libeled; yet they were released. Perhaps it would have been better for us if they had not been released, because they have since given us some trouble—one of them (the Havana) having been converted into the ubiquitous Sumter, which is rather a terror to our mercantile marine.

I will not further trespass upon your honors' time, but will immediately read my proposition. That proposition is, that, "As to the defendants who are shown to have been citizens of foreign States at the date of the alleged offence, the law is, that they cannot be found guilty of piracy under the present indictment, which includes only piracy by municipal law—the ignorance of which, as to foreigners, is not ignorantia legis, but ignorantia facti. Therefore the defendant Clarke, and the other foreigners, should be acquitted."

Before, however, I close my few remarks, I must, in justice to my immediate client, William Charles Clarke, add another observation. I have, by submitting to your honors the proposition, separated, as it were, his case and that of the other foreigners from the rest of the prisoners. I did so on my own responsibility; for he let me understand that he did not wish to see his case separated from the others. He expressed that sentiment to me in a very forcible German proverb. It was, "Mitgegangen, mitgefangen, mitgehangen!"3 Yet I thought it incumbent on me, as his counsel, to urge all those circumstances that might be beneficial to him and to those in the same position,—trusting that the unity and identity of the fate of all thus severed by me may be restored in this wise: that the case of these foreigners may be made also the case of the four citizens, both by the ruling of your honors and the verdict of general acquittal of the Jury.

Mr. Brady—Before Mr. Evarts proceeds to close the legal considerations involved in the case I feel it proper to advise him of a point for which I will contend, and on the discussion of which I do not now intend to enter. I will not admit that Congress had the power, under the Constitution of the United States, to pass the ninth section of the Act of 1790, which, upon my construction of it, would punish as piracy the act of an American citizen who should take a commission from England or France and then commit an act of hostility on an American ship or on an American citizen on the high seas. The argument is in a nutshell; though, of course, I shall give some illustrations at the proper time. It is this—that there is no common-law jurisdiction of offences in this Government; that it can take cognizance of no crimes except those which are created by Act of Congress, including piracy; and that the authority of the Constitution conferred upon Congress, to pass laws defining piracy and to punish offences against the law of nations, relates only to such offences as were then known, and does not invest the Legislature of the Federal Government with authority, under pretence of defining well-known offences, to create other and new offences, as is attempted to be done in the Act of 1790.

ARGUMENT OF MR. EVARTS

Mr. Evarts said: If the Court please, I shall hardly find it necessary, in stating the propositions of law for the Government, to consume as much time as has been, very usefully and very properly, employed by the various counsel for the prisoners in asking your attention to the views which they deem important and applicable in defence of their clients. The affirmative propositions to which the Government has occasion to ask the assent of the Court, in submitting this case to the Jury, are very few and simple. Your honors cannot have failed to notice that all the manifold, and more or less vague and uncertain, views of ethics, of government, of politics, of moral qualifications, and of prohibited crimes, which have entered into the discussion of the particular transaction whose actual proportions and lineaments have been displayed before the Court and Jury, are, in their nature, affirmative propositions, meeting what is an apparently clear and simple case on the part of the Government, and requiring to be encountered on our part more by criticism than by any new and positive representation of what the law is which is to govern this case under the jurisprudence of the United States.

I shall first ask your honors' attention to the question of jurisdiction, which, of course, separates itself from all the features and circumstances of the particular crime. Your honors will notice that this question of jurisdiction does not, in the least, connect itself with the subject or circumstances of the crime, as going to make up its completeness, under the general principles which give the locality of the crime as the locality of the trial. With these principles, whether of right and justice, or of convenience for the adequate and complete ascertainment of the facts of an alleged crime, we have no concern here. The crime complained of is one which has no locality within the territorial jurisdiction of the United States, and assigns for itself, in its own circumstances, no place of trial. From the fact that the crime was completed on the high seas, equally remote, perhaps, from any District the Courts of which might have cognizance of the transaction, there are no indications whatever, in its own circumstances, pointing out the jurisdiction for its trial. It is, therefore, wholly with the Government, finding a crime which gives, of itself, no indication of where, on any principle, it should be tried, to determine which of all the Districts of the United States in which its Courts of Judicature are open,—all having an equal judicial authority, and all being equally suitable in the arrangement of the judicial establishment of the Union,—it is entirely competent, I say, for the Government to determine, on reasons of its own convenience, which District, out of the many, shall gain the jurisdiction, and upon what circumstances the completeness of that jurisdiction shall depend.

It is not at all a right of the defendant to claim a trial before a particular tribunal, nor are there any considerations which should prevent the selection of the place of jurisdiction through whatever casual agency may be employed in that selection. In the eye of the law, the Judges are alike, and the Districts are alike. Congress, considering the matter thus wholly open, in order that there might be no contest open for all the Districts, and assuming that there would be some natural circumstance likely to attend the bringing of the offender within the reach of civil process, when a crime had been committed outside of the civil process of every nation, determined, by the 14th section of the Crimes Act of March 3d, 1825, which gives the law of jurisdiction in this case, that the trial should be "had in the District where the offender is apprehended, or into which he may be first brought." Nor is it a true construction of this statute to say that the law intends that the cognizance of the crime—all of the Districts being equally competent to try it, and there being nothing in the crime itself assigning its locality as the place of trial—shall belong exclusively to that Court which shall first happen to get jurisdiction by the actual bringing of the offender within its operation. If that be true, it is apparent that neither one of the Districts thus differently described has jurisdiction exclusively of the other. Now, the language of the statute certainly gives this double place of trial in the alternative; and it is very difficult to say what principle either of right, of convenience, or of judicial regularity, is offended by such a construction and application of the statute. Accordingly, I understand it to have been held by Mr. Justice Story, in the case of The United States vs. Thompson (1 Sumner, 168), that there were these alternative places of trial; and, as a matter of reasoning, he finds that such arrangement is suitable to the general principles of jurisprudence, and to the general purposes of the statute. Now, if this be so, then, as we come, in this District, within one of the alternatives of the statute, and as this District is confessedly the one in which the apprehension of the offenders took place, we are clear of any difficulty about jurisdiction.