We have distinctly said, and shown by the books, that that which he says is not the characteristic of the crime, is really its characteristic, and that intent in this, as in every other offence, peculiarly constitutes the crime.
It is just because the taking is not for the party himself—is not an appropriation for his own purpose, and for his own ends, and for his own object, that there is a difference between piracy and privateering. And why is this so? Because the party who goes forth on a privateering expedition, goes forth under the sanction of a nation. It may be a nation only de facto, but still it is a nation. He goes by the authority of that nation, armed with a commission under its sanction, after having given the most ample security to be responsible to the nation itself for any act of misconduct on his part; that nation holding itself out to the civilized world as responsible for every excess on the part of the citizen to whom it grants letters of marque. Well, gentlemen, the taking of property on the part of the privateer is not for himself. The taking is in the name of the State. The title which the privateer has in the captured property is no title at all, nor does he pretend to claim it. The title is in the State, and up to the very moment of condemnation, although the property may have been acquired by his blood, and by his treasure, the State has the right to release it. So important is this fact of intention, as entering into the transaction, that it has been held that no excess on the part of a person carrying letters of marque from a regular Government could be punished as piracy—the Government being liable, and he himself being referred to his own Government for punishment.
It has been even held in England, that where the act of taking a commission from a foreign prince was so unlawful in its character as to amount under the law to a felony, yet still the party having letters of marque, should not be charged with piracy.
Now, gentlemen, there was an attempt made by the learned counsel to cast odium upon privateering and upon this transaction, by speaking of these men as going out for their own plunder. Well, I have nothing to say about that; but there is one thing to be remarked: that in times of hostility the plunder does not belong to one side, nor does it belong to the privateersman alone, but the regularly armed vessels of every nation in the world, as well as privateersmen, are enriched by the capture of prizes at sea; and I suspect that the members of the bar now present can tell you how extensively our own navy has been enriched within the last few weeks by the condemnation of prizes. If the spoils derived from enemies' property be plunder, and if it be disgraceful to take it, then the highest names in England have been associated with such plunder, for you have but to look into the English books to find the name of the great and distinguished Arthur, Duke of Wellington, as connected with such cases.
But, gentlemen, there is another thing which would prevent the parties from being convicted of piracy, that is, the state of enmity existing between the two nations. It is a general rule that enemies can never commit piracy against each other, their depredations being deemed mere acts of hostility. This is as far back as the days of Lord Coke; and the rule has been carried so far as to protect the citizen of one of the belligerents, who, without any letter of marque at all, goes on the ocean and seizes the property of the enemy. It is true, it has been said that in such cases citizens act at their peril, and are liable to be punished by their own sovereign; but the enemy is not warranted in considering them as criminals.
That the people of the Confederate States, under whose commission these men have acted, stand in the light of enemies, the learned decisions of Judges Cadwalader and Betts; the blockade of the Southern ports, which is a hostile measure; the confiscation of the property of their citizens—not only of the property of the men who have arms in their hands, but of the citizens at large; the captures at sea; the vessels condemned here; the virtual dissolution of partnerships; the admission of the plea of alien enemy; the President's proclamation of non-intercourse; the arrest of citizens of those States returning from Europe; and the opinion of my learned friend, the District Attorney himself, showing that it is treason for the banks here to pay over the bank balances to Southern customers,—all these things go to establish, thoroughly and sufficiently, the condition of enmity or hostility, which forms a protection to these parties. They fix the status of war; they decide that the two powers are enemies, and that, too, without any declaration of war, for no declaration of war is needed. It seems to me that it is all useless to attempt to evade the admission that there is war. We cannot by legal enactments—we cannot by judicial decisions—we cannot by Presidential Proclamations—establish the condition of war and all the consequences of war, and yet shrink from its open avowal. And yet that is precisely what is attempted here. It may do with those that are strong to oppress their own subjects, but it will not do when you come to deal with foreign nations. When you come to deal with these eight men who are here, the subjects of foreign powers, those powers have a right to put in a word. Gentlemen, it is impossible for this Government to do less than acknowledge that, in fact, there is a state of hostility; and you may as well call it by its proper name—we are in the midst of war.
It will not do for the Government, like the ostrich, to put its head under its wing, and fancy that because it sees nobody, nobody sees it. The Government has enacted all the consequences of war without making an open or decided declaration of it. Under such circumstances, however, the status of enmity is sufficiently fixed to protect the prisoners.
But there is another test of piracy, gentlemen, and it is this—Is the privateer a universal enemy? Is he a universal plunderer? Is his hand against every man? Has he not a nation?
Now a pirate has no nation. He is an outlaw, and is justiciable everywhere. His is the law of might—
"For why? Because the good old rule