This leads me to remark upon certain judicial proceedings in Philadelphia against men found on board the Southern privateer "Jefferson Davis," and who were convicted of piracy for having seized and sent away as a prize the "Enchantress." Now my way of dealing with juries is to act with them while in the jury box as if they were out of it. I never imitate that bird referred to by the gentleman who preceded me—the ostrich, which supposes that when he conceals his head his whole person is hidden from view. I know, and every gentleman present knows, that a jury in the city of Philadelphia has convicted the men arrested on the "Jefferson Davis," of piracy. We are a nation certainly distinguished for three things—for newspapers, politics, and tobacco. I do not know that the Americans could present their social individualities by any better signs. Everybody reads the papers, and everybody has a paper given him to read. The hackman waiting for his fare consumes his leisure time perusing the paper. The apple-woman at her stall reads the paper. At the breakfast table, the dinner table, and the supper table, the paper is daily read. I sometimes take my meals at Delmonico's, and have there observed a gentleman who, while refreshing himself with a hasty meal, takes up the newspaper, places it against the castor, and eats, drinks and reads all at the same time. Gentlemen, I say that a people so addicted to newspapers must have ascertained that the men in Philadelphia were convicted; and how the jury could have done otherwise upon the charge of Justices Grier and Cadwalader I am incapable of perceiving. I have the pleasure of knowing both those eminent Judges. My acquaintance with Judge Cadwalader is slight, it is true, but of sufficient standing to ensure him the greatest respect for his learning and character. With Judge Grier the acquaintance is of longer duration; and as he has always extended to me in professional occupations before him courtesies which men never forget, I cannot but speak of him with affection. I have nevertheless something to say about the law laid down by those Judges on that case. No question on the merits was left to the jury, as I understand the instructions. The jurymen were told that if they believed the testimony, then the defendants were guilty of piracy. Now, as to the aspect of this case in view of piracy by the law of nations, the question for the jury is, in the first place, Did these defendants, in the act of capturing the "Joseph," take her by force, or by putting the captain of her in fear, with the intent to steal her? That is the question as presented by the indictment, and in order to convict under either of the first five counts, the jury must be satisfied, beyond all reasonable doubt, that in attacking the "Joseph" the defendants were actuated as described in the indictment, from which I read the allegation that they, "with force and arms, piratically, feloniously, and violently, put the persons on board in personal fear and danger of their lives, and in seizing the vessel did, as aforesaid, seize, rob, steal and carry her away." In this the indictment follows the law. Another question of fact, in the other aspect of the case, under the ninth section of the act of 1790, will be, substantially, whether the existence of a civil war is shown. That involves inquiry into the existence of the Confederate States as a de facto Government or as a de jure Government.
The animus furandi, so often mentioned in this case, means nothing but the intent to steal. The existence of that intent must be found in the evidence, before these men can be called pirates, robbers, or thieves; and whether such intent did or did not exist, is a question entirely for you.
To convict under the ninth section of the Act of 1790, the prosecution must prove that the defendants, being at the time of such offence citizens of the United States of America, did something which by that Act is prohibited. You will bear in mind that the Act of 1790, in its ninth section, has no relation except to American-born citizens, and as to that part of the indictment the eight foreigners charged are entirely relieved from responsibility.
Well, on page 104, 5 Wheaton, in the case of The United States vs. Smith, the Jury found a special verdict, which I will read to illustrate what is piracy and what is not piracy.
[Here Mr. Brady commented on the case referred to, saying, amongst other things,—]
According to the evidence in the case of Smith, the defendants were clearly pirates. They had no commission from any Government or Governor, and were mere mutineers, who had seized a vessel illegally, and then proceeded to seize others without any pretence or show of authority, but with felonious intent. For these acts they were justly convicted.
Now, we say, that this felonious intent as charged against these defendants, must be proved. But what say my learned friends opposed? Why (in effect), that it need not be proved to a Jury by any evidence, but must be inferred, as a matter of law, or by the Jury first, from the presumption that every man knows the law; and these men, in this view, are pirates—though they honestly believed that there was a valid Government called the Confederate States, and that they had a right to act under it—because they ought to have known the law; ought to have known that, although the Confederate States had associated for the purpose of forming, yet they had not completed a Government; ought to have known that, though Baker had a commission signed by Jefferson Davis, the so-called President of the Confederate States, under which he was authorized to act as a privateer, yet the law did not recognize the commission.
There is, indeed, a rule of law, said to be essential to the existence of society, that all men must be taken to know the law, except, I might add, lawyers and judges, who seldom agree upon any proposition until they must.
The whole judicial system is founded upon the theory that judges will err about the law, and thus we have the Courts of review to correct judicial mistakes and to establish permanent principles. Yet it is true that every man is presumed to know the law; and the native of Manilla (one of the parties here charged), Loo Foo, or whatever his name may be, who does not, probably, understand what he is here for, is presumed to know the law as well as one of us. If he did not know it better, considering the differences between us, he might not be entitled to rate high as a jurist. One of my brethren read to you an extract from a recent German work, which presents a different view of this subject as relates to foreign subjects in particular cases. I was happy to hear Mr. Mayer on the law of this case, more particularly as he declared himself to be a foreign-born citizen; for it is one of the characteristics of this Government—a characteristic of our free institutions—that no distinction of birth or creed is permitted to stand in the way of merit, come from what clime it may.
There is another presumption. Every man is presumed to intend the natural consequences of his own acts. Now, what are the natural consequences of the acts done by these defendants? The law on this point is illustrated and applied with much effect in homicide cases. Suppose a man has a slight contention with another, and one of the combatants, drawing a dagger, aims to inflict a slight wound, say upon the hand of the other; but, in the struggle, the weapon enters the heart, and the injured party dies. The man is arrested with the bloody dagger in his hand, the weapon by which death was unquestionably occasioned; and the fact being established that he killed the deceased, the law will presume the act to be murder, and cast upon the accused the burthen of showing that it was something other than murder. I hope, gentlemen, to see the day when this doctrine of law will no longer exist. I never could understand how the presumption of murder could be drawn from an act equally consistent with murder, manslaughter, justifiable or excusable homicide, or accident, but such is the law, and it must be respected.