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

The struggles, in the history of the world, to have, in criminal trials, an honest judiciary, a fearless jury, and a faithful advocate, disclose a great deal of wrong and suffering inflicted on advocates silenced by force, trembling at the bar where they ought to be utterly immovable in the discharge of their duty—on juries fined, and imprisoned, and kept lying in dungeons for years, because they dared, in State prosecutions, to find verdicts against the direction of the Court. The provisions of our own Constitution, which secure to men trial by jury and all the rights incident to that sacred and invaluable privilege, are the history of wrong against which those provisions are intended to guard in the future. This trial, gentlemen, furnishes a brilliant illustration of the beneficial results of all this care. Nothing could be fairer than the trial which these prisoners have had; nothing more admirable than the attention which you have given to every proceeding in this case. I know all the gentlemen on that Jury well enough to be perfectly certain that whatever verdict they render will be given without fear or favor, on the law of the land, as they shall be informed it does exist, on a calm and patient review of the testimony, with a due sympathy for the accused, and yet with a proper respect for the Government, so that the law shall be satisfied and individual right protected. But, gentlemen, I do believe most sincerely that, unless we have deceived ourselves in regard to the law of the land, I have a right to invoke your protection for these men. The bodily presence, if it could be secured, of those who have been here in spirit by their language, attending on this debate and hovering about these men to furnish them protection—Lee, and Hamilton, and Adams, and Washington, and Jefferson, all whose spirits enter into the principles for which we contend—would plead in their behalf. I do wish that it were within the power of men, invoking the great Ruler of the Universe, to bid these doors open and to let the Revolutionary Sages to whom I have referred, and a Sumter, a Moultrie, a Marion, a Greene, a Putnam, and the other distinguished men who fought for our privileges and rights in the days of old, march in here and look at this trial. There is not a man of them who would not say to you that you should remember, in regard to each of these prisoners, as if you were his father, the history of Abraham when he went to sacrifice his son Isaac on the mount—the spirit of American liberty, the principles of American jurisprudence, and the dictates of humanity, constituting themselves another Angel of the Lord, and saying to you, when the immolation was threatened, "Lay not your hand upon him." (Manifestations of applause in Court.)

ARGUMENT OF WILLIAM M. EVARTS, ESQ., FOR THE PROSECUTION

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.