"Though piracy may be, in the eye of the law, a less offence than treason, yet, as both are, in effect, punished with the same death, the same forfeiture, and the same corruption of the blood, I never would take from any fellow-creature whatever any sort of advantage which he may derive to his safety from the pity of mankind, or to his reputation from their general feelings by degrading his offence, when I cannot soften his punishment.
"The general sense of mankind tells me, that those offences which may possibly arise from mistaken virtue are not in the class of infamous actions.
"Lord Coke, the oracle of the English law, conforms to that general sense, where he says, 'That those things which are of the highest criminality may be of the least disgrace.' * * * * *
"If Lord Balmerine, in the last rebellion, had driven off the cattle of twenty clans, I should have thought it would have been a scandalous and low juggle, utterly unworthy of the manliness of an English judicature, to have tried him for felony as a stealer of cows.
"Besides, I must honestly tell you that I could not vote, or countenance in any way, a statute which stigmatizes with the crime of piracy these men, whom an Act of Parliament had previously put out of the protection of the law.
"When the legislature of this Kingdom had ordered all their ships and goods, for the mere new-created offence of exercising trade, to be divided as a spoil among the seamen of the navy—to consider the necessary reprisal of an unhappy, proscribed, interdicted people as the crime of piracy, would have appeared, in any other legislature than ours, a strain of the most insulting and unnatural cruelty and injustice. I assure you, I never remember to have heard any thing like it, in any time or country."
Gentlemen, I read this extract because it is the testimony of an eminently wise man, and an eminently just one. Such were his views at that day, and I am inclined to believe that those words spoken by him then have a better application to the state of things at present than any remarks I can make, or that can be made by any one of us who are in the midst of this whirl of excitement.
But, gentlemen, the Government has chosen to make the issue. It was at liberty to do so; and that issue is piracy.
Piracy, gentlemen of the Jury, you have heard defined by the eminent counsel who preceded me. The parties here occupy, as it were, a two-fold capacity. The eighth section of the Act of 1790 applies to piracy under the common law; the ninth section of that Act creates what we have called statutory piracy. The eighth section of the Act only alludes to piracy as it is acknowledged under the law of nations, and as known to the common law. The ninth section, however, differs from the eighth, because it applies peculiarly to citizens of the United States, and is supposed to be more enlarged in its character than the eighth section. Now, with reference to a portion of the prisoners here,—to those who are not citizens,—eight of them come entirely under the eighth section; and we shall contend that, under that section, they cannot be convicted. As regards the other four, it will be contended, that not only are they embraced by the first, but likewise by the second of these sections—that of statutory piracy, which applies peculiarly to them.
Well now, gentlemen, in regard to the eighth section, the learned counsel who very ably addressed the Court on last Saturday, stated that intent had little or nothing to do with the offence; that he did not choose to be held to the animus fruendi, but that the charge was the animus furandi, and that when a person committed robbery it was but of very little consequence to what purpose he applied the proceeds of the robbery, or for whom he committed it. Now, with all due deference to the learned counsel, I think this is putting the case rather unfairly, because he is quietly assuming the very point we are discussing; for it is the fact of the animus furandi—the fact whether or not this is robbery—that we are discussing.