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

Your honors will notice that, by such a construction of the Act, instead of making the place where jurisdiction shall be acquired dependent on some intelligent purpose, in the discretion of the officers who control the person of the prisoner, as to where he shall be landed, you make the question of jurisdiction dependent upon the purest accident in the navigation of the vessel. Thus, in this particular case, the Captain of the Minnesota tells us he had not coal enough to come directly to New York, if he had designed to do so, and that he stopped at his blockading station and sent the prisoners on by another vessel, which the exigencies of the service required to make the voyage.

There is another proposition upon this question of jurisdiction which I deem it my duty to make to your honors, although I suppose the whole matter will be disposed of on considerations which have been presented on one side or the other, and, as I suppose, in favor of the jurisdiction. Yet I cannot but think that the rules of jurisprudence and the regular and effective administration of criminal justice will suffer if these questions are to be interposed and to be passed upon by the Court at the same time as the indictment itself. Where the question of the locality of the trial forms no part of the body of the crime, and has nothing to do with the place where the crime was committed, but is wholly a question of the local position of the prisoner, then the exception to the jurisdiction can only be taken as a preliminary plea, or in the shape of a plea in abatement. That was the construction in the Hicks case, and is the general rule in reference to jurisdiction in civil cases which are dependent upon the proper cognizance of the person of the defendant. I refer to the cases of Irvine vs. Lowry, (14 Peters, 293;) Sheppard vs. Graves, (14 Howard, 505;) and D'Wolf vs. Rabaud, (1 Peters, 476.)

Mr. Larocque: I ask what particular point is decided by those cases?

Mr. Evarts: They are wholly on the point that where the jurisdiction of a Court of the United States depends, not on the subject matter of the suit, but on the District where the defendant is found, or on the citizenship of the parties, an objection to the jurisdiction must be taken by a plea in abatement.

Mr. Larocque: But suppose it depends upon the place where the crime was committed, whether in New York or Ohio, whether on land or at sea?

Mr. Evarts: It is not necessary to ask that question, for I have expressly excluded that consideration by the preliminary observation, that the locality of the trial forms no part of the body of the crime. In this case, the crime having been committed outside of any locality, it is wholly a question of the regularity and legality of the means whereby the criminal has been brought into the jurisdiction—nothing else.

Mr. Larocque: Does the counsel cite these cases to show that want of jurisdiction must be pleaded in abatement?

Mr. Evarts: It is the rule in civil cases. Now, your honors will see that the question forms no part of the issue of guilty or not guilty.

Mr. Larocque: Will you look at the last averment in your indictment?

Mr. Evarts: I repeat, that it forms no part of the body of the crime, and no part of the issue of guilty or not guilty, that is to be determined by the Jury. If the Jury, upon the issue of guilty or not guilty, should pass upon the question as to what District the defendant had been first brought into, or as to what District he was apprehended in, and should find that this Court had no jurisdiction, he would be entitled to an acquittal on that ground, and that acquittal would be pleadable in bar if he were put on trial in the proper District; for, there is no mode, that I know of, of extricating this part of the issue from the issue on the merits of the case, when it is decided by a verdict. There is no possibility of discriminating in the verdict. There is no special verdict and no question reserved. It is a verdict of not guilty. And, therefore, on the question of regularity of process, the crime itself is disposed of—the whole result of the judicial investigation being that the trial should have been in another District.

But, where the locality of the crime forms a part of its body, of course, the Government, undertaking to prove a crime to have been committed within a District, rightly fails if the crime is shown not to have been committed within that District.

Mr. Larocque: And then can they not try it where it was committed?

Mr. Evarts: I should not like to be the District Attorney who would try it.

Now, if the Court please, upon the matters connected with the merits of this trial, the first proposition to which I ask your honors' attention is—that the Act of April 30th, 1790, in the sections relating to piracy, is constitutional, and that the evidence proves the crime as to all the prisoners under the eighth section, and as to the four citizens under the ninth section. The crime is also charged and proved against all the prisoners under the third section of the Act of May 15th, 1820.

I do not know that your honors' attention has been drawn to the distinction between the eighth section of the Act of 1790 and the third section of the Act of 1820. The counts in the indictment cover both statutes, and both statutes are in force. The words of the eighth section of the Act of 1790 are these:

"If any person or persons shall commit, upon the high seas," "murder or robbery," "every such offender shall be deemed, taken and adjudged to be a pirate and felon, and, being thereof convicted, shall suffer death."

The whole description of the crime is "murder or robbery" "upon the high seas."

The third section of the Act of 1820 adds to that simple description of criminality certain words not at all tautological, but making other acts equivalent to the same crime. The section provides that, "if any person shall, upon the high seas, or in any haven, &c., commit the crime of robbery in or upon any ship or vessel, or upon any of the ship's company of any ship or vessel, or the lading thereof, such person shall be adjudged to be a pirate, and, being thereof convicted," "shall suffer death." Beyond the simple word, "robbery," is added, "in or upon any ship or vessel, or upon any of the ship's company of any ship or vessel, or the lading thereof."

Judge Nelson: The fifth section of the Act of March 3d, 1819, provides for piracy on the high seas according to the law of nations. The previous Act of 1790, and the third section of the Act of 1820, prescribe the punishment of the crimes of murder and robbery on the high seas.

The District Attorney: The Act of 1820 does not refer to murder, only to robbery on the high seas.

Judge Nelson: It denominates as a pirate a person guilty of robbery on the high seas.

Mr. Evarts: But the body of the crime is the robbery, and not the epithet.

Mr. Brady: That is the question.

Mr. Evarts: But, in the fifth section of the Act of 1819, the provision is, that "if any person shall, on the high seas, commit the crime of piracy as defined by the law of nations."

Judge Nelson: That is a different offence.

Mr. Evarts: Yes, and is open always to the inquiry, what the law of nations is.

Now, that Act of 1790 is, we say, constitutional. And here I may as well say what seems to be necessary in reference to the point made by Mr. Brady on behalf of the prisoners. He will contend, he says, that the ninth section of the Act of 1790 is beyond the constitutional power of Congress—its constitutional power in the premises being limited, as he supposes, to the right to define and punish the crime of piracy.

Mr. Brady: "And offences against the law of nations."

Mr. Evarts: To that explicit clause in the Constitution.

Now, your honors will notice what the crime in the ninth section of the Act of 1790 is. It is not piracy so described, nor robbery so described merely, but it is a statutory definition of the crime, which includes a particular description and predicament of the offender (the eighth section having included all persons), and also defines the subject of the robbery, or the object of the piratical aggression. It is this: "If any citizen shall commit any piracy or robbery aforesaid, or any act of hostility against the United States, or any citizen thereof," &c. "Piracy or robbery aforesaid" would, of course, include the definition of the crime as embraced in the eighth section. But, the ninth section proceeds to add a new and substantive completeness of crime, not described either as piracy or robbery, to wit: "Or any act of hostility against the United States, or any citizen thereof, upon the high seas, under color of any commission from any foreign Prince or State, or on pretence of authority from any person, such offender shall, notwithstanding the pretence of any such authority, be deemed, adjudged, and taken to be a pirate, felon, and robber, and, on being thereof convicted, shall suffer death."

Now, it is quite immaterial whether this statute is accurate in declaring the offender to be "a pirate, felon, and robber." It has made the offence a crime. Under what restrictions has it made it a crime? Has it undertaken to extend the jurisdiction of the Federal Government, as supported by the law of nations respecting piracy, which is a right on the part of every nation to legislate not only for its own citizens—not only in protection of its own property—but in punishment of all pirates, of whatever origin, and in protection of all property on sea, and wherever owned? Now that, undoubtedly, is the jurisdiction under the law of nations, and neither by the Constitution has Congress received any greater power under the law of nations than that, nor, I respectfully submit, can it receive any greater power under the law of nations; that is, Congress cannot receive any power greater than that which other nations, not bound by our municipal statutes, would be bound to respect, as sustained by the law of nations. Now I agree that "any act of hostility against the United States, or any citizen thereof," would not necessarily be up to the grade and of the quality of piracy under the law of nations; and that the Congress of the United States, in undertaking to make laws which would create an offence, and punish it as piracy, which was not piracy by the law of nations, and in seeking to enforce its jurisdiction and inflict its sanctions on a people who owed it no municipal obedience, and in protection of property over which it had no municipal control, and no duty to perform, could not control foreign nations; and that foreign nations would not be bound to respect convictions obtained under such a municipal extension of our law over persons never subject to us, and in respect to property never under our dominion.

And thus your honors see that, just in proportion as the ninth section has extended the crime, it has limited both the persons to whom the statute is applied, and the property in respect of which the crime is defined. It is wholly limited to our own citizens, subject to whatever laws we choose to make for our own government, and in respect of the marine property of the United States, and of its citizens when at sea, which, by every rule of the extension or limit of municipal authority, is always regarded, on general principles of public jurisprudence, as a part of the property and of the territory of the nation to which the ship and cargo belong, wherever it may be on the high seas.

Now, this ninth section, I suppose, if your honors please,—and such I understand to be the views of Judge Sprague, as expressed by him to the Grand Jury, at Boston,—proceeds and is supported on the general control given by the Constitution to Congress over all external commerce, which, I need not say, must, to be effective, extend to the criminal jurisprudence which protects against wrong, and the criminal control which punishes crime perpetrated by our citizens on our own commerce on the high seas. My learned friend would certainly not contend that the different States had this authority in reference to crimes on the high seas. And, if they have not that authority, then, between these jurisdictions, we should have omitted one of the most necessary, one of the most ordinary, one of the wisest and plainest duties of Governments in regard to the protection of their commerce. For, it is idle to say that there are no crimes which may be committed at sea which are not piracy, and that there is no protection needed for our own commerce against our own citizens which does not fall within the international law of piracy.

Mr. Brady: I ask Mr. Evarts' permission to make a suggestion upon this point, which it is due to him, and to myself, also, that I should present, that I may hear his views in respect to it. I would ask the learned gentleman, and the Court, to suppose the case of an American citizen who, on the breaking out of a war between the United States and England, should be residing in England as a denizen, and who had resided there for many years, and who should take a commission for privateering from the British Government, regularly issued, having about it all the sanctions belonging to such an authority, and who, in the prosecution of a war, should take an American prize,—would he be liable to be convicted in the Courts of the United States of piracy or robbery, under the act of 1790? He clearly would, on its language. And then the question occurs—Had Congress any authority to pass such a law?

Now, I will put a case which is stronger, and which comes equally within the plain terms, purview, and spirit of that Act, upon a literal construction. Suppose that two American vessels should come into collision on the Pacific Ocean, each manned and officered exclusively by American citizens, and, an angry feeling being engendered, the Captain of one of them should direct a sailor to throw a belaying-pin at the Captain of the other, and the sailor should do it. That would clearly be an act of hostility against one citizen of the United States perpetrated by another, and would be perpetrated under pretence of authority from a person, to wit, the Captain of the ship who gave the violent order. Would the sailor be liable to a conviction for that offence, as a pirate or robber? and would Congress have the authority to pass such a law? I doubt it very much.

Mr. Evarts: I agree with my learned friend that the case which he first stated is not only within the words, but within the intent, of the ninth section.

Mr. Brady: That an American citizen cannot take a commission from a foreign Government without being a pirate?

Mr. Evarts: To serve against the United States, he certainly could not; and, if the law of nations and the rights of citizens require that a Government which demands allegiance and repays it by protection cannot make penal the taking of service from a foreign power against itself, I do not know what a Government can do. So much for the general right or power of a Government. If the particular and clipped interpretation of our Constitution has shorn our Government of that first, clearest, and most necessary power, why, very well. Such a result follows, not from that power or its exercise being at variance with the general principles or powers of Government, but because, as I have said, in the arrangement of the Government, there has fallen out of the general fund of sovereignty this plain, and clear, and necessary right.

But, on the second instance which my learned friend has put, I am equally clear in saying, that the case he there suggests is not within the statute of 1790, simply because, although by a forced and literal construction, if you please, about which I will not here quarrel, my learned friend thinks he places it within the general terms of the ninth section, yet I imagine your honors will at once come to the conclusion, which seems to my poor judgment a sensible one, that the case he puts has nothing to do with the subject matter of the statute, within its intent or purpose—and that, simply, because the statute has not chosen to cover the case proposed, by applying to it so extravagant a penalty. It is not from any defect in the power of Congress. Congress does punish just such an offence as the one suggested, whenever the weapon and the assault make it of the gravity of offences to which Congress has chosen to apply its penal legislation. The statute covering such an offence is enforced every day in this Court. And, certainly, I do not need to argue that, if Congress had the right to pass a statute prohibiting an assault with a belaying-pin, it had the right to call the offence piracy, if it pleased, and might punish it by hanging, if it saw fit; and, for that, it is not amenable to the law of nations, nor is its power exercised with reference to piracy under the law of nations when it deals with that class of offences.

I certainly do not need to fortify my answer to the case first put by my learned friend, in regard to the right of a nation to punish its citizens for taking service against its own country and commerce, by the practice or the legislation of other nations. But your honors will find, in the statutes of Great Britain—the statutes of 11 and 12 William III., and 2 George II.—precisely the same exercise of power and authority, and to the same extent, as respects the gravity of the crime and the punishment prescribed for it. And it would seem to me to be one of the plainest rights and most necessary duties of the Government, if its attention is called to any proclivity of its citizens to take service against itself, to punish them not as prisoners of war, and not under the laws affecting privateers.

Mr. Brady: I will only mention to you that, when I argue the question hereafter, and answer your suggestions, I will refer to the case of The United States v. Smith, (5 Wheaton, 153,) where Mr. Webster conceded, in the Federal Court, that this original Act defining piracy was, as respects the language I have referred to, not a constitutional exercise of the power conferred on Congress. He took the ground that the statute made a general reference to the law of nations as defining piracy, whereas, in his view, Congress should have proceeded to state what were the elements of the offence. I want to use that, in my argument, as an illustration of how strictly the Courts have held that it was never intended that even the case of taking a commission in a foreign service and making war against the United States, which might be treason, should be converted into piracy by any necromancy or alchemy of the law, such as the gentleman seems to have in view.

Mr. Evarts: Whenever a statute declares an offence to be a certain offence, that offence the Courts must hold it to be. The nomenclature of the Legislature is not to be quarreled with by the Courts which sit under its authority. They are to see that the crime is proved. What the crime is called is immaterial.

Mr. Brady: Then the Legislature might say that speaking offensive words on the high seas by our citizens is piracy.

Mr. Evarts: They can call it piracy, and punish it.

Mr. Brady: Yes, by death!

Mr. Evarts: It does not come under the law of nations as piracy, but under the general control of Congress over our citizens at sea. In other words, no nation depends, in the least, on the law of nations and its principles for the extent of its control over its own citizens on the high seas, or for the extent of the penalties by which it protects its own commerce against the acts of its own citizens on the high seas. It takes cognizance of such offences by the same plenary power by which it takes cognizance of offences on land. The difference with us would be, that the State government would have the control of these offences when committed on the land, as a general rule, and they would come within the Federal jurisprudence and the Federal legislation only by their being committed on the high seas. Now, what was said by Mr. Webster in the case of The United States v. Smith, a case arising under the Act of 1819? Mr. Webster argued that the special verdict did not contain sufficient facts to enable the Court to pronounce the prisoner guilty of the offence charged—that his guilt could not be necessarily inferred from the facts found, but that they were, on the contrary, consistent with his innocence—but that, even supposing the offence to have been well found by the special verdict, it could not be punished under the Act of 1819, because that Act was not a constitutional exercise of the power of Congress to define and punish piracy,—that Congress was bound to define it in terms, and was not at liberty to leave it to be settled by judicial interpretation. That was Mr. Webster's criticism upon the statute—that while the Constitution had said that the law must define what was piracy, Congress had left it to the Courts to define. Mr. Justice Story delivered the opinion of the Supreme Court in that case, to the effect, that the crime of piracy was constitutionally defined by the Act of Congress, and the point was so certified to the Circuit Court.

The authority which this Court has for punishing the crime which has come under consideration in this case is the law of the United States, supported by the Constitution of the United States, in respect to both branches of the statute under inquiry. As the indictment follows the law, and the law follows the Constitution, the subject for your cognizance is rightfully here, and the proofs and the evidence in the case show that the crime has been committed, and that the acts of the prisoners which resulted in the seizure of the Joseph on the high seas include all the ingredients that enter into the completeness of the crime of robbery on the high seas, as named in the eighth section of the Act of 1790, and in the third section of the Act of 1820. I am confining myself, in these observations, to the crime of the whole twelve, not affected by the question of citizenship, and not falling under the ninth section of the Act of 1790.

It is certainly not necessary for me here to insist, with much of detail, on the question of the completeness or effect of the evidence as showing that the seizure of the Joseph was attended by all the circumstances of force, and was stimulated by all the purposes of robbery, which the law makes an ingredient of this offence. So far as the sufficiency of the evidence is to pass under the judgment of the Jury, it is entirely out of place for me to comment on it here. And, so far as any purpose of instruction to the Jury by your honors requires any consideration now, it is sufficient for me to say, that there is no trait of violence, and threat, and danger which, within the law of robbery,—and the law of piracy, if there be any difference,—makes up the necessary application of force, that is not present here. And I understand my learned friend, Mr. Lord, to concede, that there was force enough to make up the crime, if the element of intent, the vicious purpose of robbery, was present, as part of the body of the crime.

My learned friends have treated this latin phrase, animo furandi, as if it meant animo fruendi—as if the point was, not the intent to despoil another, but the intent to enjoy the fruits of the crime themselves. Now, I need not say that a man who robs his neighbor to give the money to charity, despoils him, animo furandi, just as much as if he did it with the intention of using the money for his own purposes of pleasure or profit. That is the point, and all the cases cited only touch the question of whether, in the violent taking, or the fraudulent taking, imputed as a crime, there could be supposed by the Jury to be, on any evidence introduced, any honest thought, even the baseless notion, on the part of the offender, that the property was not that of the man from whom he took it, but was his own. I have not seen anything in this evidence which should lead us to suppose that Mr. Baker and his crew thought that this vessel, the Joseph, belonged to them, and that they took her under a claim of right, as property of their own. The right under which they acted was a supposed right to make it their own, it then and there being the property of somebody else—to wit, of the United States of America, or of some of its citizens. So, your honors will find, that except so far as the considerations of the moral quality of this crime, in regard to its not being furtive and stealthy, are raised and supported by the general considerations which are to change this transaction from its private quality and description into a certain public dignity, as part of a wider contest, and which considerations are to be disposed of by the views which your honors may take of the affirmative proposition of the defence, which would make this privateering at least an act of hostility in flagrant war—except so far, I say, as these considerations are concerned, I need not say anything more as to the completeness of the ingredients, both of force, and of robbery or despoiling another, necessary to make up the crime.