"The scene, on the morning of this day, was very beautiful, and of great interest to the lovers of nautical exhibitions. The weather was mild and lovely, the sea smooth as a pond, and there was quite wind enough to remove the necessity of any of the extraordinary means of getting ahead that had been so freely used during the previous eight and forty hours. All the English vessels had got on the same tack with the Constitution again, and the five frigates were clouds of canvas, from their trucks to the water. Including the American ship, eleven sail were in sight; and shortly after a twelfth appeared to windward; that was soon ascertained to be an American merchantman. But the enemy were too intent on the Constitution to regard anything else, and though it would have been easy to capture the ships to leeward, no attention appears to have been paid to them. With a view, however, to deceive the ship to windward, they hoisted American colors, when the Constitution set an English ensign, by way of warning the stranger to keep aloof."
After that, I hope we will hear no more about the Savannah having hoisted the American flag for the purpose of inducing the Joseph to approach her.
It now becomes my duty, gentlemen, to call your attention, very briefly, to the grounds on which the prosecution rests this case. There are two grounds, and I will notice them in their order. The first is, that this was robbery. Well, I have had occasion, already, in what I have said to you, to call your attention to some of the points that distinguish this case from robbery. I say it was not robbery, because, in the first place, one of the requisites of robbery on the sea, which is called piracy, is, that it shall be done with a piratical and felonious intent. The intent is what gives character to the crime; and the point that we shall make on that part of the case is this, that if these men, in the capture of the Joseph (leaving out of view for the present the circumstance of their having acted under a commission from the Confederate States), acted under the belief that they had a right to take her, there was not the piratical and felonious intent, and the crime of robbery was not committed. I will very briefly call your attention to a few authorities on that subject. One of the most standard English works, and the most universally referred to on this subject of robberies, is Hale's Pleas of the Crown. Hale says:
"As it is cepit and asportavit so it must be felonice or animo furandi, otherwise it is not felony, for it is the mind that makes the taking of another's goods to be a felony, or a bare trespass only; but because the intention and mind are secret, they must be judged by the circumstances of the fact, and though these circumstances are various and may sometimes deceive, yet regularly and ordinarily these circumstances following direct in this case.
"If A, thinking he hath a title to the horse of B, seizeth it as his own, or supposing that B holds of him, distrains the horse of B without cause, this regularly makes it no felony, but a trespass, because there is a pretence of title; but yet this may be but a trick to color a felony, and the ordinary discovery of a felonious intent is, if the party does it secretly, or being charged with the goods, denies it. * * * * *
"But in cases of larceny, the variety of circumstances is so great, and the complications thereof so weighty, that it is impossible to prescribe all the circumstances evidencing a felonious intent; on the contrary, the same must be left to the due and attentive consideration of the Judge and Jury, wherein the best rule is, in dubiis, rather to incline to acquittal than conviction."
The next authority on that subject to which I will refer you is 2d East's Pleas of the Crown, p. 649. The passage is:
"And here it may be proper to remark, that in any case, if there be any fair pretence of property or right in the prisoner, or if it be brought into doubt at all, the court will direct an acquittal; for it is not fit that such disputes should be settled in a manner to bring men's lives into jeopardy.
"The owner of ground takes a horse damage feasant, or a lord seizes it as an estray, though perhaps without title; yet these circumstances explain the intent, and show that it was not felonious, unless some act be done which manifests the contrary: as giving the horse new marks to disguise him, or altering the old ones; for these are presumptive circumstances of a thievish intent."
I call attention also to the case of Rex vs. Hall, 3d Carrington & Payne, 409, which was a case before one of the Barons of the Exchequer in England. It was an indictment for robbing John Green, a gamekeeper of Lord Ducie, of three hare-wires and a pheasant. It appeared that the prisoner had set three hare-wires in a field belonging to Lord Ducie, in one of which this pheasant was caught; and that Green, the gamekeeper, seeing this, took up the wires and pheasant, and put them into his pocket; and it further appeared that the prisoner, soon after this, came up and said, "Have you got my wires?" The gamekeeper replied that he had, and a pheasant that was caught in one of them. The prisoner asked the gamekeeper to give the pheasant and wires up to him, which the gamekeeper refused; whereupon the prisoner lifted up a large stick, and threatened to beat the gamekeeper's brains out if he did not give them up. The gamekeeper, fearing violence, did so.