We submit, therefore, that there was a civil war. Then what was the taking of the Joseph? I now pass by the Savannah's commission for a moment. The capture of the Joseph was in this way: The Joseph was approached by the Savannah, and her Captain ordered on board. I make no question about its being a taking by force; I make no question but that, if it was done piratically, there was force enough to make it piratical. But when asked, Why do you do it? Captain Baker replied, "I take this by authority of the Confederated States. I am sorry for it; but you make war upon us, and we have, in retaliation, to make war upon you." The vessel is taken; nothing is removed from her; and she is sent in as a prize, and reaches Georgetown. Nothing is then taken from her, but she is proceeded against in Court, and men are examined there as to the vessel, just as fairly, and probably just as good men, as have been examined in the other room. The question is tried. It is an undeniable case that, if this is a civil war, they having declared war, the vessel belongs to a belligerent, and she is taken, condemned and sold, according to the laws which have dominion over that country—a proceeding (erroneous as it may be in the ultimate object of it) according to all the course of every civilized country. And yet, we are told, that is piratical! I submit that this cannot be so. We cannot, with any approach to consistency, hold that we can treat them both as enemies and rebels at the same time. Not so. Treat them as rebels, and confiscate the property by due course of law, and you can get nothing; because it is a singular thing that in this country there is no such thing as forfeiture for treason. You cannot forfeit the chattels, but only the land, and that for life; and as the penalty of treason is death, leaving no life estate for the forfeiture to act on, there is, practically, no forfeiture for treason. When these men come and say, we have taken this property as an enemy, you treat them as rebels. It seems to me this is indulging a private animosity; it is indulging a fanatical principle, an unworthy principle, that cannot be carried out without disregarding the great rules that belong to civilized nations with regard to war.
Again, if your honors please, piracy and robbery always have secrecy about them. The open robber, who meets you in noonday, yet secretes the plunder. He does not go into a Court of Justice and say, "Behold what I have taken! here are the jewels, and here the gold; adjudge if they are lawful prize!" The robber never does that. Here there is nothing secret or furtive. The vessel and cargo are taken before a Court and adjudicated to be a prize. Let us take a case which, although unlikely to happen, might occur. A man goes from seceding Virginia with an execution to levy upon a man in loyal Virginia. The man there says, "You are superseded; you have no authority;" and it is tried there. The Court hold that the execution and levy from the seceded State does not pass the property; but would it be possible to say, there was anything furtive in the taking on the part of the officer? There is nothing more plain, in criminal law, than that, if you act under color of authority, although you may be ruined by suits in trespass, yet you are not to be subjected to punishment as having done what was felonious.
But there is one other consideration which I would present on the subject of piracy: it is robbery upon the high seas,—an act hostis humani generis. It is made an offence in this country, because it is an offence against the law of nations; for this is a question on which civilized nations do not differ. All the nations of Europe look on at this controversy. Here comes a man that the District Attorney of New York says is hostis humani generis. What says the great commercial nation of Great Britain? We do not treat you as pirates, but as belligerents. We do not recognize your independence, because you have not achieved it; but when the question arises, whether we shall consider you as pirates, whom we, in common with all other nations, have a right to take up, we say it is no such thing. Judge Sprague says, that they say it is no such thing. So, too, with France. Here is the authority of a great Empire that this is not a piratical but a belligerent act. And again, Spain reiterates the same decision. Suppose I could bring the authority of the highest Court in Great Britain that, just in such a case as this, the Court acquitted a man of piracy; and suppose I could add to that a similar judgment under the law of France; and bring a case from the Courts in Spain, deciding the question in the same way; and so, too, from Holland,—and when I come down to New York, the District Attorney says the man is hostis humani generis! Is it not absurd? If piracy be a crime against public law, it is so. The recognition and the application of the doctrines of common humanity to this great struggle,—that they should be regarded as the determining point upon this great question—it seems to me your honors will never hesitate in admitting. I, therefore, present this point, and if your honors will permit me, after this discursive argumentation, I will read it as I think it ought to be decided in law:
"There is evidence that at the time of the crew of the Savannah shipping for the cruise, and at the time of the capture of the Joseph, the authorities of the State of South Carolina had become parties to a confederation of others of the United States of America, named in the President's proclamation. That under such confederation a Government, in fact, existed; and exercised, in fact, the powers of civil and military Government over the territories and people of those States, or the principal part thereof. That the said Confederate States had, in fact, declared war against the United States of America, and were openly prosecuting the same, with large military forces, and the military and civil organization of a Government; and had assumed, and were in the exercise of, the power of issuing commissions to private armed ships, to make captures of the property of the United States, and the citizens thereof, as prize of war, and to send them into port for adjudication as such. And that a civil war thus, in fact, existed. That the taking of the Joseph was under such authority of the Confederate States, and in the name of prize of war, and with the purpose of having the same adjudged by a Prize Court in South Carolina, or some other of the said Confederate States. And, if the facts are so found, then the taking of the Joseph was not piratical, under the eighth section of the Act of 1790, and the prisoners must be acquitted from the charge under this count."
Now I approach the case of the commission. I suppose that the District Attorney, by not proving the commission as a part of the charge, is not entitled to convict any of these prisoners under the commission which is shown. He does not prove his case; and it is no matter what we have proved,—he is not entitled to a conviction under evidence which he does not bring.
But now I take up the matter of the commission, and the consideration of piracy by statute, under the 9th section. If your honors please, it is right that I should give some history of that 9th section's coming into the law of piracy. The 8th section you will find to be the law of piracy, by the law of nations. All nations hold that to be piracy which is there described. But, in the 11th and 12th of William III., this state of things existed: King James had abdicated the Crown of England twelve years before; William and Mary reigned together six years; William survived her. Here, then, was a Government in England, with a pretender, whom the English Government had declared was an alien from the Throne; they had banished him. But he was at the Court of St. Germain, in France; and there, through his instrumentality, privateers were fitted out against English commerce. Then this Act was enacted which I will now mention. You find it in Hawkins' Pleas of the Crown, under the title Piracy, book I., chap. 37, sec. 7:
"It being also doubted by many eminent civilians whether, during the Revolution, the persons who had captured English vessels, by virtue of commissions granted by James II., at his Court at St. Germain, after his abdication of the Throne of England, could be deemed pirates, the grantor still having, as it was contended, the right of war in him, it is enacted—11 & 12 Wm. III., c. 7, s. 8—'That if any of His Majesty's natural-born subjects, or denizens of this Kingdom, shall commit any piracy or robbery, or any act of hostility against others, His Majesty's subjects, upon the sea, under color of any commission from any foreign Prince or State, or pretence of authority from any person whatsoever, such offender or offenders, and every of them, shall be deemed, adjudged, and taken to be pirates, felons, and robbers; and they, and every of them, being duly convicted thereof, according to this Act, or the aforesaid statute of King Henry VIII., shall have and suffer such pains of death, loss of lands, goods, and chattels, as pirates, felons, and robbers upon the seas ought to have and suffer.'"
When an Act of Congress, declaring the crime of piracy, was enacted, in 1790, it is perfectly apparent that those who drew up the Act were acquainted with Hawkins' Pleas, containing the 8th section, which is the recognized law of piracy by all nations, and from that book, then, took in this 9th section; because there was no exigency in our Government to call for it, and no reason for its introduction, except that it was found in a book familiar to those who were legislating for this country. In regard to the Act, there are some peculiarities which are very striking, and which bear strongly on this subject. The first is the fact that a commission, although from a foreign State, taken by a British subject or denizen of England, and committed against British commerce, protected the party against the charge of piracy,—because the thing was taken as prize, and for adjudication according to the principles of the laws of nations, for which national action the nation which took it was responsible. But, in the case and condition of James II., the English declared that he was no longer of England,—they declared him fallen from the Crown, and a foreigner. He had no dominions, and no place where the poor man could hold a Prize Court; and, if he could authorize a capture, there was no Court to adjudicate upon it; there was no sovereign to be responsible for the action of the Prize Court. He was a King without responsibility, and without the power of having Courts of Adjudication; and it was a necessity arising in the history of English law that that kind of action should be treated as piratical. The English adopted that, therefore, as the statute piracy. I refer your honors to Phillimore's International Law (vol. III., page 398), where all the discussion and reasons are contained; and they all are reasons applicable to a Prince without dominions, without Courts, without a country; and to a foreign Prince, in regard to English property and English subjects.
Now, then, let us see how these men stand. Under the 8th section, those men who were not citizens of the United States, are, of course, protected by a commission from a Government de facto. Their taking was not animo furandi, because there was a commission. The very enactment of the statute of William III. was upon the basis that it was not piracy where there was a commission, even of this questionable sort.
I say, then, in my third point, that if the facts are found as supposed in the preceding point, and if it also appears that the commission from the Confederated States, or the President thereof, had been issued for the Savannah, and that the capture was made under color thereof, then, as to the prisoners shown not to be citizens of the United States, the taking of the Joseph was not piratical under the eighth section of the Act of 1790,—first, because it was under color of authority; nor, second, was it piratical under the ninth section, because that only applies to citizens of the United States; and the prisoners, Del Carno, &c., must be acquitted under the ninth as well as under the eighth section.