"Second, That to convict the defendants, under either of the first five counts of the indictment, the Jury must have such evidence as would warrant a conviction for robbery if the acts proved had been performed on land.
"Third, That the defendants cannot be convicted of robbery, in the capture of the Joseph, unless she was taken with a piratical and felonious intent.
"Fourth, That if the defendants, at the time of her capture, were acting under the commission in evidence, and, in good faith, believed that such commission authorized her capture, they did not act with a piratical or felonious intent, and cannot be convicted under either of the first five counts in the indictment."
There are one or two authorities I did not state yesterday, which I beg now to furnish, as some additional authorities have been handed up on the other side:
The Josefa Segunda, 5 Wheaton, 357. In this case Judge Livingston says:
"Was the General Arismendi a piratical cruiser? The Court thinks not. Among the exhibits is a copy of a commission, which is all that in such a case can be expected, which appears to have been issued under the authority of the Government of Venezuela. This Republic is composed of the inhabitants of a portion of the dominions of Spain, in South America, which have been for some time, and still are, maintaining a contest for independence with the mother country. Although not acknowledged by our Government as an independent nation, it is well known that open war exists between them and His Catholic Majesty, in which the United States maintain strict neutrality. In this state of things, this Court cannot but respect the belligerent rights of both parties, and does not treat as pirates the cruisers of either so long as they act under and within the scope of their respective commissions."
In the United States vs. The Brig Malek Adhel (2 Howard's U.S. Rep. 211), as to the Act of 1819, Judge Story (page 232) says:
"Where the Act uses the word piratical, it does so in a general sense,—importing that the aggression is unauthorized by the law of nations, hostile in its character, wanton and cruel in its commission, and utterly without any sanction from any public authority or sovereign power. In short, it means that the act belongs to the class of offences which pirates are in the habit of perpetrating, whether they do it for purposes of plunder, or purposes of hatred, revenge, or wanton abuse of power. A pirate is deemed—and properly deemed—hostis humani generis. But why is he so deemed? Because he commits hostilities upon the subjects and property of any or all nations, without any regard to right or duty, or any pretence of public authority. If he willfully sinks or destroys an innocent merchant ship, without any other object than to gratify his lawless appetite for mischief, it is just as much piratical aggression, in the sense of the law of nations, and of the Act of Congress, as if he did it solely and exclusively for the sake of plunder, lucri causâ. The law looks to it as an act of hostility; and, being committed by a vessel not commissioned and engaged in lawful warfare, it treats it as the act of a pirate, and one who is emphatically hostis humani generis."
Then upon the question that this commission is only by color of authority from an unrecognized power, and that the authority to grant such a commission is disputed, I refer to the case of Davison vs. Certain Seal Skins (2 Paine's C.C.R. 332), which was a case of salvage of property after a piracy alleged to have been committed by Louis Vernet, at Port St. Louis, in the Eastern Falkland Islands, by taking them from a vessel,—he wrongfully and unlawfully claiming and pretending to be Governor of the Islands, under Buenos Ayres. The Court says:
"Robbery on the high seas is understood to be piracy by our law. The taking must be felonious. A commissioned cruiser, by exceeding his authority, is not thereby to be considered a pirate. It may be a marine trespass, but not an act of piracy, if the vessel is taken as a prize, unless taken feloniously, and with intent to commit a robbery: the quo animo may be inquired into. A pirate is one who acts solely on his own authority, without any commission or authority from a sovereign State, seizing by force and appropriating to himself, without discrimination, every vessel he meets with; and hence pirates have always been compared to robbers. The only difference between them is that the sea is the theatre of action for the one, and the land for the other."