From this we can see that there are two kinds of piracy—national piracy and municipal piracy. No State can be prevented by any law of nations from making anything piracy which that State pleases. For instance, there is a law of piracy in Spain that any person committing frauds in matters of insurance is a pirate; or that any one even cutting the nets of a simple fisherman is a pirate. I might quote other instances. In our own country the slave-trade is a piracy; but that does not make it piracy everywhere. In some of the States of Germany slave-trade is kidnapping, and is punished as such.
What, now, is the relation of these foreigners to this municipal piracy, under the indictment with which they stand charged? That it is municipal piracy, I need not say anything further, after the full argument of our friend and father, Mr. Lord. The law is very distinct. It is, "if any citizen shall do so and so." But how do these men come in? Here I come to the point why I thought it fit and incumbent on me to offer my propositions. The prosecution will certainly stretch, as I said before, the construction and interpretation of the law in this way: It will say, "These men were apprehended on an American bottom, and, being on an American bottom, they were on American soil, and as, according to criminal law, they are protected by our law, so they are bound by our law." This, I apprehend, is the theory on which the prosecution will urge that these foreigners—notwithstanding the distinct expression of the law, "if any citizen"—shall be found guilty under this indictment. But as they are foreigners to this law, so is this law foreign to them. And there is a principle in criminal law which says—I read from section 238 of Bishop's Criminal Law, vol. I.—
"It is a general principle that every man is presumed to know the laws of the country in which he dwells, or, if resident abroad, transacts business. And within certain limits, not clearly defined, this presumption is conclusive. Its conclusive character rests on considerations of public policy, and, of course, it cannot extend beyond this foundation, though we may not easily say, on the authorities, precisely how far the foundation of policy extends. We may safely, however, lay down the doctrine that in no case may one enter a Court of Justice to which he has been summoned, in either a civil or criminal proceeding, with the sole and naked defence that when he did the thing complained of he did not know of the existence of the law he violated. Ignorantia juris non excusat is, therefore, a principle of our jurisprudence, as it is of the Roman, from which it is derived."
This rule, so essential to the ordinary administration of justice, cannot be deemed strange in criminal cases generally, because most indictable wrongs are mala in se, and, therefore, offenders are still conscious of violating the law "written in every man's heart."
But—and now I refer to the note to this section, which says—"ignorance of the law of foreign countries is, with the exception noticed in the text, ignorance of fact which persons are not held to know." The author cites the following authorities: Story's Equity Jurisprudence, sections 110, 23; American Jurisprudence, sections 146 and 347; to which I would add 8 Barbour's Supreme Court Reports, 838 and 839, and the case of Rex versus Lynn, 2d Term Report, 233.
Now, I contend that, as this law under which the indictment is drawn is a law creating municipal piracy, so it is a law foreign to these foreigners; that, therefore, as to them, it is a matter of fact, and, according to the criminal theory, ignorantia facti excusat, these foreigners cannot be found guilty under this law. Municipal piracy, to carry out the doctrine of this theory, is not malum in se; for, as I said before, international law does not acknowledge it as such, but is opposed to it as to foreigners; and if I understand well the decision of the Supreme Court, it is even acknowledged, in the case of the United States versus Palmer, 3d Wheaton, 610, that the Congress of the United States cannot make that piracy which is not piracy by the law of nations, in order to give jurisdiction to its Courts over such offences.
Besides, this knowledge of facts enters a good deal into the theory of intent. So much has been said about the piratical intent, that I can pass this by in silence. But, with reference to the theory that foreigners are to be taken as ignorant of facts, I will give an illustration that was suggested to me this morning by an incident which occurred on my way to the Court. A little boy in the street handed to me a card of advertisement which had all the appearance of a bank note. Now, I remembered at the moment that about three years ago the Legislature of South Carolina passed a law making the issuing and publication of such advertisements—such business cards—an offence, punishable, if I am not mistaken, both by fine and imprisonment. Now suppose that the great American showman at the corner of Ann and Broadway should carry his "What is it" or Hippopotamus down to Charleston, and issue such an advertisement, and he should be brought before the Court of South Carolina; would it not be unjust, as the offence is not malum in se, to find him guilty? Certainly it would be; and, according to the same theory, I cannot imagine, by any possible process of reasoning, that these prisoners should be deemed guilty under an indictment, when the law was entirely foreign to them. They may justly say, as they might have known, and did perhaps know, that our country, too, holds to this simple doctrine: "Let us have fair play." So when certain provinces rose up in revolt against the parent or original Government, to conquer, as it were, their independence, this country maintained a state of neutrality, and granted to both parties belligerent rights. Many such cases have been cited; but the most striking one, I am astonished, has not been cited. I will refer to it now. It is the case of the United States against the Miramon and the Havana, tried before the District Court of New Orleans. These two steamers were commissioned vessels, belonging to an authority not only not recognized by the Government of the United States, but opposed to the Government which had been recognized by ours. They were commissioned ships of General Miramon, and were seized and libeled; yet they were released. Perhaps it would have been better for us if they had not been released, because they have since given us some trouble—one of them (the Havana) having been converted into the ubiquitous Sumter, which is rather a terror to our mercantile marine.
I will not further trespass upon your honors' time, but will immediately read my proposition. That proposition is, that, "As to the defendants who are shown to have been citizens of foreign States at the date of the alleged offence, the law is, that they cannot be found guilty of piracy under the present indictment, which includes only piracy by municipal law—the ignorance of which, as to foreigners, is not ignorantia legis, but ignorantia facti. Therefore the defendant Clarke, and the other foreigners, should be acquitted."
Before, however, I close my few remarks, I must, in justice to my immediate client, William Charles Clarke, add another observation. I have, by submitting to your honors the proposition, separated, as it were, his case and that of the other foreigners from the rest of the prisoners. I did so on my own responsibility; for he let me understand that he did not wish to see his case separated from the others. He expressed that sentiment to me in a very forcible German proverb. It was, "Mitgegangen, mitgefangen, mitgehangen!" [ [3] ] Yet I thought it incumbent on me, as his counsel, to urge all those circumstances that might be beneficial to him and to those in the same position,—trusting that the unity and identity of the fate of all thus severed by me may be restored in this wise: that the case of these foreigners may be made also the case of the four citizens, both by the ruling of your honors and the verdict of general acquittal of the Jury.
Mr. Brady—Before Mr. Evarts proceeds to close the legal considerations involved in the case I feel it proper to advise him of a point for which I will contend, and on the discussion of which I do not now intend to enter. I will not admit that Congress had the power, under the Constitution of the United States, to pass the ninth section of the Act of 1790, which, upon my construction of it, would punish as piracy the act of an American citizen who should take a commission from England or France and then commit an act of hostility on an American ship or on an American citizen on the high seas. The argument is in a nutshell; though, of course, I shall give some illustrations at the proper time. It is this—that there is no common-law jurisdiction of offences in this Government; that it can take cognizance of no crimes except those which are created by Act of Congress, including piracy; and that the authority of the Constitution conferred upon Congress, to pass laws defining piracy and to punish offences against the law of nations, relates only to such offences as were then known, and does not invest the Legislature of the Federal Government with authority, under pretence of defining well-known offences, to create other and new offences, as is attempted to be done in the Act of 1790.