Front matter (continued 6)

I shall not spend the time of your honors by reading the Virginia and Kentucky resolutions—the one the production of James Madison, and the other of Thomas Jefferson—with which you are so familiar. They fully bear out the doctrine for which I contend, and much more than I contend for. I wish, however, to read, from the American State Papers, vol. 21, p. 6, a series of resolutions adopted by the Legislature of Pennsylvania, on the 3d April, 1809. They are as follows:

"Resolved, by the Senate and House of Representatives of the Commonwealth of Pennsylvania:

"That, as a member of the Federal Union, the Legislature of Pennsylvania acknowledges the supremacy, and will cheerfully submit to the authority, of the General Government, as far as that authority is delegated by the Constitution of the United States. But while they yield to this authority, when exerted within constitutional limits, they trust they will not be considered as acting hostile to the General Government when, as the guardians of the State rights, they cannot permit an infringement of those rights by an unconstitutional exercise of power in the United States Courts.

"Resolved, That in a Government like that of the United States, where there are powers granted to the General Government and rights reserved to the States, it is impossible, from the imperfection of language, so to define the limits of each that difficulties should not sometimes arise from a collision of powers; and it is to be lamented that no provision is made in the Constitution for determining disputes between the General and State Governments by an impartial tribunal, when such cases occur.

"Resolved, That, from the construction which the United States Courts give to their powers, the harmony of the States, if they resist the encroachments on their rights, will frequently be interrupted; and if, to prevent this evil, they should on all occasions yield to stretches of power, the reserved rights of the States will depend on the arbitrary powers of the Courts.

"Resolved, That should the independence of the States, as secured by the Constitution, be destroyed, the liberties of the people in so extensive a country cannot long survive. To suffer the United States Courts to decide on State rights, will, from a bias in favor of power, necessarily destroy the federal part of our Government; and, whenever the Government of the United States becomes consolidated we may learn from the history of nations what will be the event."

To prevent the balance between the General and State Governments from being destroyed, and the harmony of the States from being interrupted—

"Resolved, That our Senators in Congress be instructed, and our Representatives be requested, to use their influence to procure amendment to the Constitution of the United States, that an impartial tribunal may be established to determine disputes between the General and State Governments; and that they be further instructed to use their endeavors that, in the meantime, such engagements may be made between the Governments of the Union and of the State as will put an end to existing difficulties."

Those resolutions were transmitted to Congress by President Madison. They were never acted upon.

My next reference is to the Remonstrance of the State of Massachusetts against the War of 1812, adopted June 18th, 1813—from the American State Papers, vol. 21, page 210:

"The Legislature of Massachusetts, deeply impressed with the sufferings of their constituents, and excited by the apprehension of still greater evils in prospect, feel impelled by a solemn sense of duty to lay before the National Government their views of the public interests, and to express, with the plainness of freemen, the sentiments of the people of this ancient and extensive Commonwealth.

"Although the precise limits of the powers reserved to the several State sovereignties have not been defined by the Constitution, yet we fully concur in the correctness of the opinions advanced by our venerable Chief Magistrate, that our Constitution secures to us the freedom of speech, and that, at this momentous period, it is our right and duty to inquire into the grounds and origin of the present war, to reflect upon the state of public affairs, and to express our sentiments concerning them with decency and frankness, and to endeavor, so far as our limited influence extends, to promote, by temperate and constitutional means, an honorable reconciliation. * * * The States, as well as the individuals composing them, are parties to the National Compact; and it is their peculiar duty, especially in times of peril, to watch over the rights and guard the privileges solemnly guaranteed by that instrument."

There were also a set of resolutions, which I will not take time to read, passed by the Legislature of New Jersey, November 27th, 1827, which will be found in the American State Papers, vol. 21, page 797. They were based upon the then prevalent opinion that the Constitution had not conferred upon the Supreme Court of the United States the power to decide disputed questions of boundary, or similar questions, between States of the Union, and proposed an amendment to remedy that difficulty, expressly recognizing that the right to resort to force in such cases necessarily resulted from the omission. The decision of the Supreme Court, in the case of Rhode Island vs. Massachusetts, that it possessed that jurisdiction, conjured that danger. The greater one, however, of there being no tribunal to administer justice between the federal and State sovereignties, remains.

I will also refer to one other resolution, passed by the Legislature of the State of New York, on the 29th January, 1833, upon the Nullification Ordinances, as they were called:

"Resolved, That we regard the right of a single State to make void within its limits the laws of the United States, as set forth in the Ordinance of South Carolina, as wholly unauthorized by the Constitution of the United States, and, in its tendency, subversive to the Union and the Government thereof."

I do not know that any sane man will now dispute that truth; but this follows. The present Secretary of State of the United States, at that time a member of the Senate of this State, then moved:

"That this Legislature do adhere, in their construction of the Constitution, to the principle that the reserved rights of the States, not conceded to the General Government, ought to be maintained and defended."

This latter resolution was indefinitely postponed.

I will not now stop to read what was said by President Buchanan, in his Message to Congress, on December 4th, 1860, as to the consequences of a refusal by the States to repeal the obnoxious laws which had been enacted. You will recollect that he said that, if that was not done, the injured States would be justified, standing on the basis of the Constitution, in revolutionary resistance to the Government of the Union. I do not need to claim that, for I have nothing to do, on this trial, with the justice of these mighty questions, debated between the General Government and the governments and people of these States. The question of their justice or injustice does not arise upon this trial. I was simply making these citations to show that, by the ablest writers cotemporaneous with the Constitution, and who performed the work of framing it—by the proceedings of legislative bodies and the decisions of the Supreme Court—the principle has been recognized that, in all cases in which jurisdiction has not been given to the judiciary over questions between the General Government and the State, they are equal, co-ordinate, each possessed of the right to decide for itself as to the excess by the other, if it is claimed that there is an excess of constitutional power, and to assert its own right or repel the encroachments of the other by force.

I say, in further confirmation of this, that the offence of treason against the United States, under the 3d section of the 3d article of the Constitution of the United States, must be a levying of war against them all. The words, "United States," in that section, mean the States, and not merely the Government of the Union. This is evident from the fact that the section, as originally reported (being sec. 2 of art. 7), read: "Treason against the United States shall consist only in levying war against the United States, or any of them; and in adhering to the enemies of the United States, or any of them," &c. (Journal of the Convention, page 221). It was amended so as to read collectively only, and not disjunctively. When, however, the act done is not under authority of a State, I concede that levying war against the General Government is levying war against all the States.

And, in this connection, I wish to refer to the proceedings, which I have hastily adverted to in opening to the Jury, upon the adoption of the section of the Constitution relating to treason. I refer to the Madison Papers, vol. 3, page 1370:

"Art. 7, sec. 2, concerning treason, was then taken up.

"Mr. Gouverneur Morris was for giving to the Union an exclusive right to declare what should be treason. In case of a contest between the United States and a particular State, the people of the latter must, under the disjunctive terms of the clause, be traitors to one or other authority.

"Dr. Johnson contended that treason could not be both against the United States and individual States, being an offence against the sovereignty, which can be but one in the same community.

"Mr. Madison remarked that as the definition here was of treason against the United States, it would seem that the individual States would be left in possession of a concurrent power, so far as to define and punish treason particularly against themselves, which might involve double punishment."

The words, "or any of them," were here stricken out by a vote.

"Mr. Madison: This has not removed the difficulty. The same act might be treason against the United States, as here defined, and against a particular State, according to its laws.

"Dr. Johnson was still of opinion there could be no treason against a particular State. It could not, even at present, as the Confederation now stands—the sovereignty being in the Union; much less can it be under the proposed system.

"Colonel Mason: The United States will have a qualified sovereignty only. The individual States will retain a part of the sovereignty. An act may be treason against a particular State, which is not so against the United States. He cited the rebellion of Bacon, in Virginia, as an illustration of the doctrine.

"Mr. King: No line can be drawn between levying war and adhering to the enemy, against the United States, and against an individual State. Treason against the latter must be so against the former.

"Mr. Sherman: Resistance against the laws of the United States, as distinguished from resistance against the laws of a particular State, forms the line."

Mr. Ellsworth, afterwards Chief Justice of the Supreme Court of the United States, closed the debate in these memorable words:

"The United States are sovereign on one side of the line dividing the jurisdictions; the States, on the other. Each ought to have power to defend their respective sovereignties."

Now, if your honors please, it will probably be attempted to be answered to the argument, that by section 10 of article 1 of the Constitution of the Union, the States are forbidden to enter into any treaty, alliance, or confederation, or to grant letters of marque and reprisal; or, without the consent of Congress, to enter into any agreement or compact with another State; or to engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. This does not conflict with, but, on the contrary, confirms, the views I have presented, for the following reasons:

The prohibition against entering into any treaty, alliance, or confederation, and against granting letters of marque and reprisal, has clearly no reference whatever to the relations which the States of the Union sustain to each other. It refers solely to their relations towards foreign powers.

I beg to cite, upon that subject, from Grotius, Lib. 1, chap. 4, sec. 13. He says:

"In the sixth place, when a King has only a part of the sovereignty, the rest being reserved to the people, or to a Senate, if he encroaches upon the jurisdiction which does not belong to him he may lawfully be opposed by force, since in that regard he is not at all sovereign. This is the case, in my opinion, even when in the distribution of the sovereign power the power of making war is assigned to the King. For the grant of such a power must in that case be understood only in its relation to wars with foreign powers, those who possess a part of the sovereignty necessarily having at the same time the right of defending it; and when a necessity arises of having recourse to forcible resistance against the King, he may, by right of war, lose even the part of the sovereignty which incontestibly belonged to him."

I say, then, in the next place, that if any of the States, having come into collision with any of their sister States, or with the General Government, and being threatened with invasion or overthrow in the contest, resort to letters of marque as a means of weakening their adversary, and thereby preventing or retarding the threatened invasion, their right to do so is not at all affected or impaired by that provision of the Federal Constitution. The right of resistance includes it as well as every other means of rendering resistance effectual.

So also with regard to the prohibition against entering into any treaty, alliance, or confederation, which is coupled with the prohibition against granting letters of marque in the first paragraph of the tenth section. That that prohibition is restricted to compacts or agreements with foreign powers, is manifest from the whole structure of the section.

The second paragraph of the section provides that no State shall, without the consent of Congress, enter into any agreement or compact with another State. It follows that, conceding the invalidity of the State acts of separation from the Union, which the whole of the preceding argument admits, the Confederation of the States claiming to have separated is not valid against the authority of the Union; but the individual States, in ratifying the Constitution of the so-called Confederate States, have done more than to make an agreement or compact with each other. Each one of them, separately, has conferred upon the same agent the authority to issue the commission in question, as its act.

Moreover, this second paragraph of the tenth section strongly confirms the doctrine of the right of forcible resistance of the States in the Union. It permits a State, without the consent of Congress, to engage in war when actually invaded, or in such imminent danger as will not admit of delay. This, it will be remembered, is in the paragraph of the section imposing restrictions upon the States, and clearly justifies forcible resistance, rising even to the dignity of war, by one State, to aggressive invasion, from another or others, when the danger is so imminent that it will not admit of delay.

The same paragraph also permits individual States to keep troops and ships of war, in time of war. The word "troops" here is evidently used in the sense of regular troops, forming an army, in contradistinction to the ordinary State militia.

To apply, then, these principles to the facts of this case: The President of the United States had, by proclamation, on the 15th April last, called for military contingents from the various States of the Union, to put down resistance to the exercise of federal authority in the State of South Carolina and other Southern States.

Those States had, by their Legislatures and Conventions of their people, decided that a proper case for resistance to the federal authority claimed to be exercised within their borders had arisen, and had authorized and commanded such resistance.

The 5th section of the Act of July 13th, 1861, and the President's Proclamation of August 16th, under that Act, concede that the resistance was claimed to be under authority of the State governments; that that claim was not disavowed by the State governments; and Congress thereupon legislated, and the President exercised the authority vested in him by the Act, on the assumption that such was the fact,—prohibiting commercial intercourse with those States, authorizing captures and confiscations of the property of their citizens without regard to their political affinities, and placing them, as we contend, in all respects, upon the footing of public enemies.

They were, moreover, threatened with immediate invasion. The Proclamation of the President assigned, as their first probable duty, to the military contingents called for from other States, to repossess the Federal Government of property which it could not repossess without an actual invasion of the discontented States.

The Congress of the Union was not then in session. It had adjourned, after having omitted to confer upon the Federal Executive the power to resort to measures of coercion, which had been under discussion during its sitting.

The commission in question was issued as one of the measures of forcible resistance to this exercise of federal power, claimed—whether rightfully or wrongfully, is not the question here—to be unlawful by the governments of all the States against which it was directed, and to which those governments enjoined forcible resistance upon, and authorized it by, their citizens.

I contend, therefore, that whether the action of the Federal Government or of the State government was justifiable or unjustifiable, no citizen of any of the States which authorized and enjoined such resistance is criminally responsible, whether he espoused one side or the other in the unhappy controversy, either to the General Government or to the government of the State of which he is a citizen, so long as he acted in good faith, and in the honest belief that the government to which he adhered was acting within the legitimate scope of its constitutional powers. We contend that every sovereign has necessarily power to defend its sovereignty, and to decide the mixed question of law and fact as to whether it has been infringed; that there can be no sovereign, or defence of sovereignty, without subjects to whom the sovereign's mandate and authority are a protection; and that as one sovereign cannot lawfully punish another, who is his equal, by personal pains and penalties, for resistance, after he is subdued, so neither can punish the subject of both who, in good faith and under honest convictions of duty, adhered to either in the struggle.

Now, if your honors please, I pass to the next proposition, which is:

That the defendants, who are citizens of the States calling themselves Confederate States, cannot be convicted under this indictment, if they in good faith believed, at the time of the capture of the Joseph, that the political status of those States, as members of the Federal Union, had been legally terminated, and that they had thereby ceased to be citizens of the United States, and made the capture in good faith, under the commission in evidence, as a belligerent act,—such States being, as they supposed, at war with the United States.

It is not necessary for me, if your honors please, to enlarge upon that. I rely, for that proposition, on the same authorities that I have already cited to the point, that robbery or piracy cannot be committed, unless it is committed with felonious or piratical intent. But I say, with reference to the validity or invalidity of those acts of separation from the Union, that the counsel for the prisoners, whatever their private convictions may be, are not at liberty to concede their invalidity, so long as that concession may affect the lives of their clients. Their validity has been maintained by some of the ablest lawyers of the country, and in the Senate of the United States itself, and by all the authorities, legislative, executive and judicial, of the States which have adopted them. If, as they undoubtedly did, the prisoners bona fide believed in their validity, the argument in favor of the protection afforded by the commission, or, by what comes to the same thing, the absence of criminal intent, becomes so much the more irresistible. And even though wholly invalid, such illegal action could not deprive the citizen of the State of the shield and protection afforded him by the action of the State government authorizing resistance, and regarded as still continuing a member of the federal Union.

The next proposition is:

That under the state of facts existing in South Carolina, as established by the public documents and other evidence in the cause, those administering the Government of the so-called Confederate States constituted the de facto Government which replaced the Government of the United States in those States before and at the time of the commission of the acts charged in the indictment; and the defendants who are citizens of those States were justified by overpowering necessity in submitting to that Government, in yielding their allegiance to it, and thenceforth in actively aiding and supporting it; and that the capture of the Joseph, having been a belligerent act in a war between such de facto Government, and the people of the States which had submitted to its authority on the one side, and the United States on the other, such defendants cannot be convicted under this indictment.

Now, with reference to that, allow me to call your honors' attention to but a single authority, in addition to those which I cited in my opening remarks to the Jury. It is the case of The United States vs. The General Parkhill, decided by Judge Cadwalader, in the United States District Court, in Philadelphia, in July, 1861. He says:

"The foregoing remarks do not suffice to define the legal character of the contest in question. It is a civil war, as distinguished from such unorganized intestine war as occurs in the case of a mere insurrectionary rebellion.

"Civil war may occur where a nation without an established Government is divided into opposing hostile factions, each contending for the acquisition of an exclusive administration of her Government. If a simple case of this kind should occur at this day, the Governments of the nations not parties to the contest might regard it as peculiarly one of civil war. As between the contending factions themselves, however, neither could easily regard their hostile opponents in the contest otherwise than as mere insurgents engaged in unorganized rebellion. Thus, in the language of Sir M. Hale, every success of either party would subject all hostile opponents of the conqueror to the penalties of treason. A desire to prevent the frequency of such a result was the origin of the rule of law, that allegiance is due to any peaceably established Government, though it may have originated in usurpation. The statute of 11 H. 7, c. 1 (A.D. 1494), excusing an English subject who has yielded obedience, or who has even rendered military service to a Ruler who was King in fact, though not in law, was declaratory of a previous principle of judicial decision."

After referring to Bracton, Coke, Hawkins, and Foster, the learned Judge proceeds:

"It has already been stated that a King in whose name justice was administered in the Courts of law was usually regarded as in actual possession of the Government.

"Civil war of another kind occurs where an organized hostile faction is contending against an established Government, whose laws are still administered in all parts of its territory except places in the actual military or naval occupation of insurgents or their adherents.

"In such a case the question has been, whether a place in the actual military occupation of the revolutionary faction, or of its adherents, may, under the law of war, be treated by that Government as if the contest was a foreign war and the place occupied by public enemies. In the case of a maritime blockade of such a place, the affirmative of this question was decided in England, in the year 1836. It had previously been so decided by the Supreme Tribunal of Marine, at Lisbon (3 Scott, 201; 2 Bingh., N.C., 781)."

Judge Cadwalader then refers to Grotius (Proleg., sec. 23), citing with approval the statement by Demosthenes of the rule of public law in the case of the invasion by Deiopeithes, the Athenian commander in the Chersonese, of the dominions of Philip of Macedon, who had sent a military force to the relief of Cardia, when sought to be reduced to submission by Deiopeithes—that wherever judicial remedies are not enforceable by a Government against its opponents, the proper mode of restoring its authority is war,—and continues:

"This doctrine is of obvious applicability to civil war of a third kind, which occurs where the exercise of an established Government's jurisdiction has been revolutionarily suspended in one or more territorial Districts, whose willing or unwilling submission to the revolutionary rule prevents the execution of the suspended Government's laws in them, except at points occupied by its military or naval forces. The present contest exemplifies a civil war of this kind. It was also, with specific differences, exemplified in the respective contests which resulted in the independence of the United Netherlands and of the United States."

He then proceeds:

"Within the limits of two of the States in which so-called ordinances of secession have been proclaimed the execution of the laws of the United States has not been wholly suppressed. They are enforceable in the Western Judicial District of Virginia, and perhaps in the adjacent Eastern Division of Tennessee. In the other nine States which profess to have seceded, including South Carolina, those laws are not enforceable anywhere.

"The Constitution of the United States prohibits the enactment by Congress of a bill of attainder, and secures, in all criminal prosecutions, to the accused, the right to a speedy public trial, by Jury of the State and District wherein the crime shall have been committed, which District must have been previously ascertained by law. Therefore if a treasonable or other breach of allegiance is committed within the limits of one of these nine States, it is not at present punishable in any Court of the United States. This was practically shown in a recent case (Greiner's case, Legal Intelligencer, May 10, 1861). War is consequently the only means of self-redress to which the United States can, in such a case, resort, for the restoration of the constitutional authority of their Government.

"The rule of the common law is, that when the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the Courts of justice cannot be kept open, civil war exists, and hostilities may be prosecuted on the same footing as if those opposing the Government were foreign enemies invading the land. The converse is also regularly true, that when the Courts of a Government are open, it is ordinarily a time of peace. But though the Courts be open, if they are so obstructed and overawed that the laws cannot be peaceably enforced, there might perhaps be cases in which this converse application of the rule would not be admitted. (1 Knapp, 346, 360, 361; 1 Hale, P.C. 347; Co. Litt. 249 b.)"

Now, if your honors please, the last proposition with which I am compelled to trouble you is:

That the Acts of Congress and the Proclamations of the President since the outbreak of the present struggle evidence the existence of a state of war between the Federal Government and the States calling themselves the Confederate States from a time anterior to the performance of the acts charged in the indictment, in which all the citizens of those States are involved and treated as public enemies of the Federal Government, whether they had any agency in initiating the conflict or not; and that the natural law of self-preservation, under these circumstances, justified the defendants, who are citizens of those States, in the commission of the acts charged in the indictment, as a means of weakening the power of destruction possessed by the Federal Government.

Now the counsel on the other side, from the intimation which he gave when he addressed the Court, intended to treat that subject of a de facto Government, or whatever it was, on the footing of men under duress, not in danger of their lives, joining with rebels and aiding them in a treasonable enterprise. Your honors will perceive that was not the footing on which we put it at all. It was the footing on which it stood at one time, when rebellion first broke out, when forts were seized—acts which it is no part of the duty of counsel on this trial to justify or say anything about, because there is no act connected with that part of the struggle which is in evidence on this trial. But on that I wish to refer to what Judge Cadwalader said in another case—that of Greiner—which undoubtedly the learned counsel for the Government had in his mind when he drew that distinction. Shortly before the late so-called secession of Georgia, a volunteer military company, of which Greiner was a member, by order of the Governor, took possession of a fort within her limits, over which jurisdiction had been ceded by her to the United States, and garrisoned it until her ordinance of secession was promulgated, when, without having encountered any hostile resistance, they left it in the possession of her Government. A member of this company, Charles A. Greiner, who had participated in the capture and detention of the fort, afterwards visited Pennsylvania, at a period of threatened if not actual hostilities between the Confederate States and the United States. He was arrested in Philadelphia, under a charge of treason. Your honors will very readily perceive what a difference there was between that case and this. Judge Cadwalader applies the rule in reference to that; and, speaking of this doctrine of allegiance due to a Government in fact, he says:

"This doctrine is applicable wherever and so long as the duty of allegiance to an existing Government remains unimpaired. When this fort was captured, the accused, in the language of the Supreme Court, owed allegiance to two Sovereigns, the United States and the State of Georgia (see 14 How. 20). The duty of allegiance to the United States was co-extensive with the constitutional jurisdiction of their Government, and was, to this extent, independent of, and paramount to, any duty of allegiance to the State (6 Wheaton, 381, and 21 Howard, 517). His duty of allegiance to the United States continued to be thus paramount so long at least as their Government was able to maintain its peace through its own Courts of Justice in Georgia, and thus extend there to the citizen that protection which affords him security in his allegiance, and is the foundation of his duty of allegiance. Though the subsequent occurrences which have closed these Courts in Georgia may have rendered the continuance of such protection within her limits impossible at this time, we know that a different state of things existed at the time of the hostile occupation of the fort. The revolutionary secession of the State, though threatened, had not then been consummated. This party's duty of allegiance to the United States, therefore, could not then be affected by any conflicting enforced allegiance of the State. He could not then, as a citizen of Georgia, pretend to be an enemy of the United States, in any sense of the word 'enemy' which distinguishes its legal meaning from that of traitor. Future cases may perhaps require the definition of more precise distinctions and possible differences under this head. The present case is, in my opinion, one of no difficulty, so far as the question of probable cause for the prosecution is concerned."

Having decided that, in the present state of things, he could not commit the prisoner for trial, to be conveyed to Georgia, because there were no Courts of the United States there, and because it would be a violation of the Constitution of the United States—that he could not have a speedy trial—he decided that, under a subsequent act of Congress, he had a right to require the prisoner to find sureties to be of good behavior towards the United States.

I have thus ended what I had to say upon this subject, with but one single exception.

A great deal will be said, undoubtedly, on the part of the prosecution, here, with reference to this being a revolutionary overthrow of the Government of the United States in the States which have taken these steps. I have only to ask, in reference to that—conceding it, for the sake of argument, in its fullest extent—what was the adoption of the Constitution of the United States but a revolutionary overthrow of the previously existing Confederation? It was done by nine States, without the consent of four, whose consent was necessary, and the Government of the United States went into operation; and it was a long time before at least two of them came in under the new Government.

Mr. Evarts: Will my learned friend allow me to ask him, in that part of his argument which proceeds upon the right of a State, yet being a State, to justify the acts of its citizens, to explain the proposition that a State can oppose the United States, within and under the Constitution, in regard to any law of the United States about which this essential right of judgment, whether the aggression of the United States has carried it beyond the powers of the Constitution, or not, is claimed to exist?

Mr. Larocque: I thought I had been very explicit on that. I said, in the first place, that I had nothing to do with the question of right or wrong. I said this: That a collision had occurred between the government of the State and the Federal Government; that each being sovereign, within the limitation of its powers, had a right to judge for itself whether the occasion for such a collision had occurred, or not; that these prisoners, citizens of the States which had decided that such a case had occurred, as subjects owing allegiance to two equal and co-ordinate sovereigns, which had come into hostile collision with each other, must exercise, upon their consciences, their election to which Sovereign they would adhere; and that, whatever may be the unfortunate consequences, they are not responsible before the tribunal of the other sovereignty because they adhered to one of them; that they would be no more responsible before the criminal tribunals of South Carolina if, in this contest, they had adhered to the General Government and borne arms against their native State, than they are responsible in the tribunals of the Federal Government because, exercising their own consciences, they had adhered to the State and not to the Federal Government. I say it is like the case of a child whose parents disagree, and who is obliged to adhere either to his father or his mother; and that he violates no law of God or of man in adhering to either.

Mr. Smith: If the Court please, I rise for a purpose different from the remark that I wish to make in reply to the last illustration of my learned friend. I might say that the instance of a child is one very parallel to that we might have given—that the father is the superior authority, where there is a difference between two parents.

I rise, however, to present to the Court, as one of the authorities, or rather a citation which will receive its respectful consideration, the Charge of Mr. Justice Grier, in the case tried in Philadelphia; and also the opinion of Judge Cadwalader, in the same case.

Mr. Brady: Who reported this?

Mr. Smith: I received it, by telegraph, from the District Attorney of Philadelphia; and it is also printed in a newspaper published last evening in Philadelphia. I have compared them, and the two accounts perfectly agree. I do not cite them as authority, but as entitled to the respectful consideration of the Court.

Mr. Brady: As, now-a-days, what the newspapers publish one day they generally contradict the next, I think any report should be taken with some grains of allowance, at least. I suppose I would recognize the style of Judge Grier.

Mr. Blatchford: I think you will, on examining it. It is evidently printed from the manuscript.

Mr. Smith read the charge of Judge Grier in the case of the privateers tried in Philadelphia.

Mr. Brady: Tell me what question of fact was there left to the Jury?

Mr. Smith: I refer you to Judge Cadwalader's opinion, which is much longer.

Mr. Brady: I do not see that there was anything left for the Jury. Judge Grier decided that case,—which undoubtedly he could do, for he is a very able man.

Mr. Sullivan put in evidence the log-book of the Savannah.

ARGUMENT OF MR. MAYER, OF COUNSEL FOR THE DEFENCE.

Mr. Mayer said:—May it please your honors,—A foreign-born citizen now rises, on behalf of eight of the defendants, who, as it has been conceded by the prosecution, are subjects of foreign States. It might appear almost superfluous, after the full and eloquent argument of our venerable brother—I was almost tempted to say father (Mr. Lord)—for one of the junior counsel for the defence to say anything. Still, I thought it incumbent on me to anticipate a construction or interpretation which the prosecution may attempt to make, by offering, myself, a proposition. But before reading it, I will, as briefly as my proposition is brief, state my comment thereon.

Let us, in the first place, look at the aspect of the relations in which these foreigners stood at the time of their committing this alleged offence. They are all sea-faring men. Their various crafts had been locked up in the port of Charleston by the blockade there. Business, as we have heard here in evidence, was prostrated. Nothing was left for them but to enlist in the army of the Confederacy, or to become privateers. It is certainly a pity that they did not choose the first alternative; for, even if they had been caught with arms in their hands, their fate would now be far better than it is. They would not now be in jeopardy of their lives, threatened with the pains and penalties of a law that is not applicable to them. But being, as I said before, inured to the life of seafarers, they chose to become privateers.

We must, however, in judging of their act, place ourselves in their position. They were foreigners. As foreigners, they brought to this country views and notions as regards their act which are widely different from those sought to be enforced here. They knew the practice and theories of Europe in regard to their act. What are those views and theories? I can state them in a very few words, and am sorry that the authorities to which I shall refer are in a language which may not be familiar to your honors. I will, however, state their effect. It is this: Whenever a rebellion in any country has assumed such extensive magnitude as no longer to be a simple insurrection, which may be put down by police measures or regulations, but has come to such a degree that mighty armies are opposed to each other, although the revolted portion may not have been acknowledged by any nation, yet belligerent rights must be granted to it. This is the notion, or theory, which has entered into the mind of every European, to whatever State or nation he may belong. I may be permitted to quote a few historical facts to show why this is so. When the Netherland Colonies revolted against Spain the privateers of the Prince of Orange, even before he was elected Admiral General by those Colonies, were by most nations recognized. They were only not recognized by some of those nations against which they committed depredations; and it is a historical fact that a great many of those privateers commissioned by the Prince of Orange became pirates.

Another case is furnished by our own Revolution. It is known to all Europeans that, although in the beginning of the American Revolution England did not recognize the belligerent rights of America, yet, after some time, she did recognize those rights, even by a Parliamentary Act. I refer to 16 George the Third, ch. 5. The same was the case in the French Revolution; and there I may refer to a very curious fact. England recognized the privateers of the revolutionary Government of France, so far as those privateers went against other nations; but when they cruised against her own commerce she did not recognize them. She remonstrated with Denmark because Denmark had recognized them, and Denmark simply pointed to her (England's) own course.

All these facts are very well known to every European, and it is with a knowledge of these facts that every European looks upon a revolution. To express it in a very short sentence, it is the theory of "Let us have fair play."

If your honors please, I may say that this notion of belligerent rights in revolution has entered into the flesh and blood of every European to such an extent, that the only nation which does not allow, in revolution, that fair play, is despised and hated, except by these United States. I mean Russia. Russia is now very friendly towards this Union; not, however, I may be permitted to state—reversing an oft-quoted passage of Shakspeare—not because she loves Rome more, but that she loves Cæsar less. It is not out of love for this country, but because the diplomatists of Russia—the farthest-seeing diplomatists of Europe—hope that England and France will interfere in the contest between these States, and that she may get an opportunity to return the compliment to these two powers which she received from them at Sebastopol. With a knowledge of these facts, and with these European theories, these foreigners, now indicted under the Act of 1790, entered into this privateering business.

They saw, as I said before, Charleston blockaded. To them a blockade is an act of belligerent rights. They saw a constitutional government adopted in the Confederate States. They never dreamed that, if they wished to embark in this privateering business, they should be treated as pirates. They knew well, as every European knows who has any knowledge of international law, that there are two kinds of piracy—piracy by international law, and piracy under municipal law—municipal piracy, or, as Mr. Lord called it yesterday, statutory piracy.

And now I refer, as to the right of one nation making anything piracy that is not piracy by the law of nations, to Wheaton, volume 6, page 85; 1st Phillimore, 381; and to 1st Kent, 195. I will not take up the time of your honors in reading all these passages, but I hold here the last work on international law. It is, however, written in the German language. It is of unbounded authority on the Continent, and has been translated into French and Greek. It is very frequently referred to by all those authors whom I have just quoted. It states this theory in two lines, which I will read to your honors in a translation:

"Laws of individual nations (as, for instance, the French law of the 10th April, 1825) may, so far as their own subjects are concerned, either alter the meaning of piracy, or extend its operation; but they are not allowed to do that to the prejudice of other States."

I refer to Hefter on Modern International Law, 4th ed., page 191.

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.

ARGUMENT OF MR. EVARTS.

Mr. Evarts said: If the Court please, I shall hardly find it necessary, in stating the propositions of law for the Government, to consume as much time as has been, very usefully and very properly, employed by the various counsel for the prisoners in asking your attention to the views which they deem important and applicable in defence of their clients. The affirmative propositions to which the Government has occasion to ask the assent of the Court, in submitting this case to the Jury, are very few and simple. Your honors cannot have failed to notice that all the manifold, and more or less vague and uncertain, views of ethics, of government, of politics, of moral qualifications, and of prohibited crimes, which have entered into the discussion of the particular transaction whose actual proportions and lineaments have been displayed before the Court and Jury, are, in their nature, affirmative propositions, meeting what is an apparently clear and simple case on the part of the Government, and requiring to be encountered on our part more by criticism than by any new and positive representation of what the law is which is to govern this case under the jurisprudence of the United States.

I shall first ask your honors' attention to the question of jurisdiction, which, of course, separates itself from all the features and circumstances of the particular crime. Your honors will notice that this question of jurisdiction does not, in the least, connect itself with the subject or circumstances of the crime, as going to make up its completeness, under the general principles which give the locality of the crime as the locality of the trial. With these principles, whether of right and justice, or of convenience for the adequate and complete ascertainment of the facts of an alleged crime, we have no concern here. The crime complained of is one which has no locality within the territorial jurisdiction of the United States, and assigns for itself, in its own circumstances, no place of trial. From the fact that the crime was completed on the high seas, equally remote, perhaps, from any District the Courts of which might have cognizance of the transaction, there are no indications whatever, in its own circumstances, pointing out the jurisdiction for its trial. It is, therefore, wholly with the Government, finding a crime which gives, of itself, no indication of where, on any principle, it should be tried, to determine which of all the Districts of the United States in which its Courts of Judicature are open,—all having an equal judicial authority, and all being equally suitable in the arrangement of the judicial establishment of the Union,—it is entirely competent, I say, for the Government to determine, on reasons of its own convenience, which District, out of the many, shall gain the jurisdiction, and upon what circumstances the completeness of that jurisdiction shall depend.

It is not at all a right of the defendant to claim a trial before a particular tribunal, nor are there any considerations which should prevent the selection of the place of jurisdiction through whatever casual agency may be employed in that selection. In the eye of the law, the Judges are alike, and the Districts are alike. Congress, considering the matter thus wholly open, in order that there might be no contest open for all the Districts, and assuming that there would be some natural circumstance likely to attend the bringing of the offender within the reach of civil process, when a crime had been committed outside of the civil process of every nation, determined, by the 14th section of the Crimes Act of March 3d, 1825, which gives the law of jurisdiction in this case, that the trial should be "had in the District where the offender is apprehended, or into which he may be first brought." Nor is it a true construction of this statute to say that the law intends that the cognizance of the crime—all of the Districts being equally competent to try it, and there being nothing in the crime itself assigning its locality as the place of trial—shall belong exclusively to that Court which shall first happen to get jurisdiction by the actual bringing of the offender within its operation. If that be true, it is apparent that neither one of the Districts thus differently described has jurisdiction exclusively of the other. Now, the language of the statute certainly gives this double place of trial in the alternative; and it is very difficult to say what principle either of right, of convenience, or of judicial regularity, is offended by such a construction and application of the statute. Accordingly, I understand it to have been held by Mr. Justice Story, in the case of The United States vs. Thompson (1 Sumner, 168), that there were these alternative places of trial; and, as a matter of reasoning, he finds that such arrangement is suitable to the general principles of jurisprudence, and to the general purposes of the statute. Now, if this be so, then, as we come, in this District, within one of the alternatives of the statute, and as this District is confessedly the one in which the apprehension of the offenders took place, we are clear of any difficulty about jurisdiction.

The case of Hicks, decided here, was, perhaps, not entirely parallel to the one now under consideration. But, let us see how far the views and principles there adopted go to determine this case, in the construction of the statute in any of its parts. Hicks had committed a crime on the high seas—in the immediate vicinity, I believe, of our own waters. Making his way to the land, he proceeded unmolested to Providence, in Rhode Island. The officers of justice of the United States, getting on his track, pursued him to Rhode Island, and there he was found, unquestionably within the District of Rhode Island. They did not obtain his apprehension by legal process there, and thus bring him within the actual exercise of the power of a Court of the District of Rhode Island; but they persuaded him, or in some way brought about his concurrence, to come with them into the District of New York, and here the process of this Court was fastened upon him, and he was brought to trial on the capital charge of piracy. On a preliminary plea to the jurisdiction of the Court, and on an agreed state of facts, to the effect, I believe, of what I have stated, the matter was considerably argued before your honor, Judge Nelson, on behalf of the prisoner; but your honor, as I find by the report, relieved the District Attorney from the necessity of replying, considering the matter as settled, under the facts of the case, in the practice of the Court. Now, the argument there was, that the District of Rhode Island was the District where the offender was apprehended; and it could not be contended that the Southern District of New York was the one into which he was first brought by means other than those of legal process. And the argument was, that the crime for which he was to be tried here, being a felony, any control of his person by private individuals was a lawful apprehension, and one which might be carried out by force, if necessary; and that, therefore, there was, in entire compliance with the requisition of the statute, an apprehension within the District of Rhode Island. If, under the circumstances of that case, that view had been sustained by the Court, it could not have been, I think, pretended that the Courts of this District had concurrent jurisdiction, because of Hicks having been first brought into this District. The whole inquiry turned on the question whether he was apprehended in the District of Rhode Island.

In considering the case, your honor, Judge Nelson, recognized, as I suppose, the view of the alternative jurisdiction which I have stated. You said to the District Attorney: "We will not trouble you, Mr. Hunt. The question in this case is not a new one. It is one that has been considered and decided by several members of the Supreme Court, in the course of the discharge of their official duties. It has repeatedly arisen in cases of offences upon the high seas, and the settled practice and construction of the Act of Congress is, that in such cases the Court has jurisdiction of the case, in the one alternative, in the District into which the offender is first brought from the high seas—meaning, into which he is first brought by authority of law and by authority of the Government. In cases where the offender has been sent home under the authority of the Government, the Courts of the District into which he is first brought, under that authority, are vested with jurisdiction to try the case. The other alternative is, the District in which the prisoner is first apprehended—meaning an apprehension under the authority of law—under the authority of legal process. This interpretation of the Statute rejects the idea of a private arrest, and refers only to an arrest under the authority of law and under legal process. It is quite clear, in this case, that no District except the Southern District of New York possesses jurisdiction of the offence; for here the prisoner was first apprehended by process of law. We do not inquire into anything antecedent to the arrest under the warrant in this District, because it has no bearing whatever upon the question of the jurisdiction of the Court. We have no doubt, therefore, that the Court has jurisdiction of the case, and that this is the only District in which the prisoner can be tried."

Now I owe the Court and my learned friend, Mr. Lord, an apology for having supposed and stated that the provisions of the Act of March 3d, 1819, giving certain powers to the naval officers of the United States "to protect the commerce of the United States," as is the title of the Act, were not now in force. I was misled. The Act itself was but temporary in its character, being but of a year's duration. By the Act of May 15th, 1820, the first four sections of the Act of March 3d, 1819, were temporarily renewed. But afterwards, by the Act of January 30th, 1823, those four sections were made a part of the permanent statutes of the country. The substantial part of the Act of March 3d, 1819, namely, the fifth section, which defined and punished the crime of piracy, was repealed, and replaced by the Act of May 15th, 1820, and has never reappeared in our statutes.

Judge Nelson: It is the fifth section of the Act of 1819 that is repealed.

Mr. Evarts: Yes; that Act is found at page 510 of the 3d volume of the Statutes at Large.

Mr. Lord: All that relates to the apprehension of offenders is in force.

Mr. Evarts: Yes; that is all in force. The Act is entitled, "An Act to protect the Commerce of the United States, and punish the Crime of Piracy." The first section provides, that "the President of the United States be, and hereby is, authorized and requested to employ so many of the public armed vessels as, in his judgment, the service may require, with suitable instructions to the commanders thereof, in protecting the merchant vessels of the United States and their crews from piratical aggressions and depredations." There is nothing in that section which is pertinent to this case. The second section provides, "that the President of the United States be, and hereby is, authorized to instruct the commanders of the public armed vessels of the United States to subdue, seize, take, and send into any port of the United States, any armed vessel or boat, or any vessel or boat, the crew whereof shall be armed, and which shall have attempted or committed any piratical aggression, search, restraint, depredation, or seizure, upon any vessel of the United States or of citizens thereof, or upon any other vessel, and also to retake any vessel of the United States or its citizens which may have been unlawfully captured upon the high seas."

This, your honors will notice, is entirely confined to authority to subdue the vessel and take possession of it, and send it in for the adjudication and forfeiture which are provided in the fourth section.

The third section gives the right to merchant vessels to defend themselves against pirates.

There is nothing in the Act which gives to the officers of the Government the power, or enjoins on them the duty, of apprehending the pirates. I will now ask your honors' attention to the distinction between this Act and the powers conferred by the slave-trading Act.

Judge Nelson: The Act of 1819 gives to the commanders authority to bring home prisoners,—does it not?

Mr. Evarts: It does not, in terms, say anything about them. That is the point to which I ask your honors' attention. The Act instructs the commanders of public armed vessels to subdue, seize, take, and send into any port of the United States, any armed vessel or boat, or any vessel or boat, the crew whereof is armed, and that may have attempted or committed any piratical aggression, &c. There is nothing said as to the arrest of the criminals. It is a question of construction.

Judge Nelson: It is not specific in that respect.

Mr. Evarts: No, sir, it is not specific. Now, in the Act of March 3d, 1819, entitled, "An Act in addition to the Acts prohibiting the slave trade," which will be found at page 532 of the 3d volume of the Statutes at Large, a general authority is given to the President, "whenever he shall deem it expedient, to cause any of the armed vessels of the United States to be employed to cruise on any of the coasts of the United States or Territories thereof, or on the coast of Africa, or elsewhere," "and to instruct and direct the commanders of all armed vessels of the United States to seize, take, and bring into any port of the United States, all ships or vessels of the United States, wheresoever found," engaged in the slave trade. And then comes this distinct provision in reference to the apprehension and the bringing in for adjudication of persons found on board of such vessels. It is the last clause of the first section: "And provided further, that the commanders of such commissioned vessels do cause to be apprehended and taken into custody every person found on board of such vessel so seized and taken, being of the officers or crew thereof, and him or them convey, as soon as conveniently may be, to the civil authority of the United States, to be proceeded against in due course of law, in some of the Districts thereof."

This Act is the one referred to by Judge Sprague in the case of The United States vs. Bird (Sprague's Decisions, 299)

Judge Nelson: There is limitation to that Act, is there?

Mr. Evarts: No, sir; it is unlimited in duration, and a part of the law now administered. Now, I need not ask your honors' attention to the familiar act which gives to Consuls of the United States direct authority to take offenders into custody and detain them, and send them by the first convenient vessel to the United States, to be delivered to the civil authorities to be proceeded against.

Now, my proposition is this,—that neither under the slave-trading Act, nor under the Act for the prevention and punishment of piracy passed in 1819, does the extra-territorial seizure, control and transmission of offenders, exclude the plain terms of the alternative of the statute, which makes jurisdiction dependent, not on apprehension merely, but on apprehension within a District; and that, even though there is a governmental introduction of the offender into a District, making that District, in a proper sense, the one into which he is first brought, yet that does not in the least displace the alternative of jurisdiction of an apprehension within a District, there having been no prior apprehension, by process, within any other District, as the consummation and completion of the delivery of the offender to the civil authorities for the purpose of a trial, the transaction having been instituted on the high seas or in a foreign port.

Now, on the facts in this case, there is no room for disputing that the first apprehension was within this District. Nor can I deny that the seizure of these persons on the high seas was made by an armed vessel of the United States, either under the general right which the law of nations gives both to public and private vessels to seize pirates, or under the implied right and power to do so, certainly so far as to make it justifiable on the part of commanders of cruisers, by virtue of the provision of the Act of 1819 which authorizes them to send in a piratical vessel. These men were sent in, in the course of such active intervention, by an armed vessel of the United States. But I submit to your honors, that the provisions of that Act, which thus incidentally include, as it were, the transmission of the ship's company of a pirate, because they are to be subdued, and the ship is to be sent in, cannot be turned, by any process of reasoning, into anything that can be called a legal apprehension. I am satisfied that your honor, Judge Nelson's view, that the term "apprehension" is only meant to apply to the service of judicial process within a District, is entirely sound.

The principal argument and the principal authority relied on to displace the jurisdiction thus plainly acquired under one alternative of the statute, denies, really, that there is any alternative, or that there can possibly be two Districts, either one of which may rightfully have jurisdiction. That, I take it, is the substance of the proposition. It is, that the alternative gives to one of the two exclusive jurisdiction; and that, whenever facts have occurred—whether jurisdiction has been exercised or not—which give to the one District jurisdiction and an opportunity to exercise it, then, by the prior concurrence of all the circumstances which fix the statutory jurisdiction on that District, the possibility of the occurrence of any new circumstances to give jurisdiction in the other and alternative District is displaced.

The case of The United States vs. Townsend has been brought to your honors' attention in the manuscript record of the preliminary proceedings. The prisoner, who had been taken and brought into Key West, where the vessel stopped, as we are told, for the temporary purpose of supplies, was thence brought into Massachusetts. It is the record of a proceeding wherein Judge Sprague, with the concurrence of his associate, Mr. Justice Clifford, of the Supreme Court, sent the prisoner, in that predicament, back to Key West for trial, and would not permit an indictment to be found against him in the District of Massachusetts. We have no knowledge of the facts of that case, except what are contained in this record. Now, your honors will notice, in the first place, that this is not a judicial determination as to the right of jurisdiction of the Massachusetts Court, necessarily; but that, on the theory which I present, that there are two alternative jurisdictions, it may have been only a prudent and cautious exercise of the discretion of that Court, preliminary to indictment, that this man should be sent, on his own application, to the District of Florida for trial. In other words, he interposed an objection that he was entitled to a trial in Key West; and the Court, affirming the opinion that that District had jurisdiction of the crime, determined that it would send him there for trial, and that it would not exercise its own jurisdiction, which might be made subject to some question. And yet it is not to be denied that Judge Sprague is apparently of the opinion that there are not two alternative places of jurisdiction, neither one exclusive of the other; but that they are only alternative as respects the one or the other which is the first to gain jurisdiction. It is a little difficult to see, on this view, how there can be any two places, rightfully described as separate places, one of which is the place into which the prisoner is first brought, and the other of which is the place where he is first apprehended; because, in the very nature of the case, the moment you raise the point that the offender has been in two Districts, and that in the latter of them he is apprehended, then it follows that he has passed through the former; and the statute is really reduced to this—that the offender must be indicted in the District into which he is first brought. There cannot then be two different Districts, into one of which he is brought, within the meaning of the law, and in the other of which he is apprehended; because, that into which he is first brought must necessarily precede, in time, that in which he is first apprehended, and he could not have been apprehended before, in a District other than that into which he is first brought. So that you necessarily reduce the statute to a fixing of the place of trial in the District into which the offender is first brought.

The case of Smith—the trial just terminated in Philadelphia, in which the prisoner was tried and convicted before the Circuit Court of the United States—is an authority of the two Judges of that Court on this very point, the circumstances of a prior introduction of the prisoner within the Eastern District of Virginia being much more distinct than in this case. The capturing vessel was a steamer, which took the prize into Hampton Roads. The defendant and the others of the prize crew were kept as prisoners on board this war steamer, which, after anchoring in Hampton Roads, near Fortress Monroe, went a short distance up the Potomac, returned, and again anchored in Hampton Roads, after which she brought the prisoners, including the defendant, into Philadelphia, where they were taken into the custody of the Marshal. Now, unquestionably, geographically, that prisoner was within the State of Virginia, and within the Eastern District of Virginia, rather more distinctly than in the case now on trial. In that case, the Court said—"One of the points of law on which counsel for the defence requests instruction to the Jury is, that the Court has no jurisdiction of the case; because, after his apprehension on the high seas, he was first brought into another District, meaning the Eastern District of Virginia, and ought to be there tried. This instruction cannot be given. When he was taken prisoner, and was detained in the capturing vessel, he was not apprehended for trial, within the meaning of the Act of Congress. His first apprehension for that purpose, of which there is any evidence, was at Philadelphia, after his arrival in this District. Whether he had been previously brought into another District, within the meaning of the Act, is immaterial"—recognizing the doctrine of two alternative jurisdictions, neither exclusive of the other. "It has been decided that, under this law, a person, first brought into one District, and afterwards apprehended in another, may be tried in the latter District. Therefore, if you believe the testimony on the subject, this Court has jurisdiction of the case."

Now, your honors very easily understand, that without any election or purpose on the part of any authority, civil or naval, representing the Government, a prisoner may be brought into a District, yet never come, in any sense, under the judicial cognizance of that District. In this case, these prisoners might have escaped from the Harriet Lane, and have fled to Massachusetts, or Pennsylvania, or wherever else their fortune should have carried them, and might there have been first apprehended. Now, what is there in the nature of the jurisprudence of the United States, in respect of a crime committed outside of both Districts, which should prevent the jurisdiction of Massachusetts being just as effective as the jurisdiction of New York? If such be the law, I have no occasion to argue any further. But the decision of Judge Sprague is, in my judgment, quite opposed to that view of the law; and I, must, therefore, present to your honors some considerations which, in my judgment, make this the District, in the intendment of the statute, into which these offenders were first brought, as well as the District in which they were first apprehended.

The alleged prior introduction of these persons within any other Judicial District of the United States, within the meaning of the statute, is shown by the evidence of what occurred in reference to the transit of the Minnesota, after she had taken them on board from the capturing vessel, the Perry, off the coast of South Carolina. She anchored off Fortress Monroe, just opposite Hampton Roads, and there transferred these prisoners to the Harriet Lane, which brought them into this District.

Now, it is said that that incident of the anchorage of the Minnesota in or near Hampton Roads, and the transhipment of the prisoners to another vessel, which the exigencies of the naval service sent to New York, did fulfill the terms of the law in reference to the introduction of those offenders within a District of the United States, and that they were, therefore, first brought into the Eastern District of Virginia; and, if that circumstance displaces the alternative jurisdiction, and thereby Virginia became the exclusive District of jurisdiction, this trial cannot be valid, and must result in some other disposition of these prisoners than a verdict of guilty, if, on the merits of the case, such a verdict should be warranted.

What are the traits and circumstances of that transmission? I understood my learned friend, Mr. Lord, to concede that he would not argue that the mere transit of the keel of the vessel transporting the prisoners, in the course of its voyage to a port of destination, through the waters of another District, was an importation or introduction of the offenders into that District, so as to make it the place of trial. Take, for instance, the case of a vessel making a voyage from Charleston to New York. For aught I know, certainly, within the practicability of navigation, her course may be within a marine league of the shore of North Carolina, of the shore of Virginia, of the shore of Maryland, and of the shore of New Jersey, before making the port which is the termination of her transit. Well, my learned friends say that they do not claim that this local position of a vessel within a marine league while she is sailing along, is, within any sensible view of the statute, an introduction into the District, so as to found a jurisdiction.

Let us see, if your honors please, whether the transit of these prisoners from the capturing vessel to the Marshal's office in New York was not simply part of the continuous voyage of the vessel from one point to the other. Where was the Minnesota, and on what employment and duty, at the time she received these prisoners on board? She was the flag ship, as the Commodore has told us, of the Atlantic Blockading Squadron, and her whole duty was as a cruiser or blockading ship, at sea, in discharge of the duty assigned to her.

I take it for granted that my learned friends will not contend that a vessel, pursuing her voyage continuously along the coast of North Carolina and the coast of Virginia, introduces an offender within a District by stopping, either under any stress of navigation, or for any object unconnected with any purpose to terminate her voyage, or that the fact of her being becalmed, or of her having anchored off the coast to get water or supplies, and having then pursued her voyage continuously to New York, would alter the character of the transit, in any legal construction that it should receive.

Now, what did the Minnesota do? The Commodore took the prisoners on board that vessel, as he tells you, for the purpose of sending them to New York by the first naval vessel that he should be able to detach from the service. Did he, in the interval between the capture and the complete transmission and reception of the prisoners here, ever make a port or a landing from his vessel, or ever depart from the design of the voyage on which he was engaged? No. He was on his cruise, bound to no port, always at sea, and only in such relations to the land as the performance of his duty to blockade at such points as he saw fit, whether at Charleston or the Capes of Virginia, required him to be in. And there is no difference, in the quality of the act, arising from his having stopped at Hampton Roads, and thence sent forward the prisoners by the Harriet Lane, because she was the first vessel that was going to New York—going, as has been stated, for a change of her armament and for repairs.

Now, I submit to your honors, that there is nothing, either in the design or the act of this blockading vessel, the Minnesota, or of the Harriet Lane, that causes the course of transmission of these prisoners to the point of their arrest in this District to differ from what it would have been if, with an even keel, and without any interruption, the capturing vessel, the Perry, had started for New York, and had, in the course of her navigation, come within the line of a marine league from the shore of some District of the United States, and had, perchance, anchored there, for the purpose of replenishing her supplies for the voyage. In other words, in order to make out, within the terms of the statute, a bringing into a District of the United States, so as to make it a District of jurisdiction, within the sense of the statute, it is impossible for the Court to fail to require the ingredient of a voyage into a port, at least as a place of rest and a termination of the passage of the vessel, temporary or otherwise. That is requisite, in order to make an introduction within a District. And I cannot imagine how his honor, Judge Sprague, or his honor, Judge Clifford, could, in the case before them, have given any such significance to the prior arrival of the vessel of the United States at Key West; for, it was but a stopping at an open roadstead for the purpose, not of a port, but of continuing at sea or in the sea service of the country.

Your honors will notice that, by such a construction of the Act, instead of making the place where jurisdiction shall be acquired dependent on some intelligent purpose, in the discretion of the officers who control the person of the prisoner, as to where he shall be landed, you make the question of jurisdiction dependent upon the purest accident in the navigation of the vessel. Thus, in this particular case, the Captain of the Minnesota tells us he had not coal enough to come directly to New York, if he had designed to do so, and that he stopped at his blockading station and sent the prisoners on by another vessel, which the exigencies of the service required to make the voyage.

There is another proposition upon this question of jurisdiction which I deem it my duty to make to your honors, although I suppose the whole matter will be disposed of on considerations which have been presented on one side or the other, and, as I suppose, in favor of the jurisdiction. Yet I cannot but think that the rules of jurisprudence and the regular and effective administration of criminal justice will suffer if these questions are to be interposed and to be passed upon by the Court at the same time as the indictment itself. Where the question of the locality of the trial forms no part of the body of the crime, and has nothing to do with the place where the crime was committed, but is wholly a question of the local position of the prisoner, then the exception to the jurisdiction can only be taken as a preliminary plea, or in the shape of a plea in abatement. That was the construction in the Hicks case, and is the general rule in reference to jurisdiction in civil cases which are dependent upon the proper cognizance of the person of the defendant. I refer to the cases of Irvine vs. Lowry, (14 Peters, 293;) Sheppard vs. Graves, (14 Howard, 505;) and D'Wolf vs. Rabaud, (1 Peters, 476.)

Mr. Larocque: I ask what particular point is decided by those cases?

Mr. Evarts: They are wholly on the point that where the jurisdiction of a Court of the United States depends, not on the subject matter of the suit, but on the District where the defendant is found, or on the citizenship of the parties, an objection to the jurisdiction must be taken by a plea in abatement.

Mr. Larocque: But suppose it depends upon the place where the crime was committed, whether in New York or Ohio, whether on land or at sea?

Mr. Evarts: It is not necessary to ask that question, for I have expressly excluded that consideration by the preliminary observation, that the locality of the trial forms no part of the body of the crime. In this case, the crime having been committed outside of any locality, it is wholly a question of the regularity and legality of the means whereby the criminal has been brought into the jurisdiction—nothing else.

Mr. Larocque: Does the counsel cite these cases to show that want of jurisdiction must be pleaded in abatement?

Mr. Evarts: It is the rule in civil cases. Now, your honors will see that the question forms no part of the issue of guilty or not guilty.

Mr. Larocque: Will you look at the last averment in your indictment?

Mr. Evarts: I repeat, that it forms no part of the body of the crime, and no part of the issue of guilty or not guilty, that is to be determined by the Jury. If the Jury, upon the issue of guilty or not guilty, should pass upon the question as to what District the defendant had been first brought into, or as to what District he was apprehended in, and should find that this Court had no jurisdiction, he would be entitled to an acquittal on that ground, and that acquittal would be pleadable in bar if he were put on trial in the proper District; for, there is no mode, that I know of, of extricating this part of the issue from the issue on the merits of the case, when it is decided by a verdict. There is no possibility of discriminating in the verdict. There is no special verdict and no question reserved. It is a verdict of not guilty. And, therefore, on the question of regularity of process, the crime itself is disposed of—the whole result of the judicial investigation being that the trial should have been in another District.

But, where the locality of the crime forms a part of its body, of course, the Government, undertaking to prove a crime to have been committed within a District, rightly fails if the crime is shown not to have been committed within that District.

Mr. Larocque: And then can they not try it where it was committed?

Mr. Evarts: I should not like to be the District Attorney who would try it.

Now, if the Court please, upon the matters connected with the merits of this trial, the first proposition to which I ask your honors' attention is—that the Act of April 30th, 1790, in the sections relating to piracy, is constitutional, and that the evidence proves the crime as to all the prisoners under the eighth section, and as to the four citizens under the ninth section. The crime is also charged and proved against all the prisoners under the third section of the Act of May 15th, 1820.

I do not know that your honors' attention has been drawn to the distinction between the eighth section of the Act of 1790 and the third section of the Act of 1820. The counts in the indictment cover both statutes, and both statutes are in force. The words of the eighth section of the Act of 1790 are these:

"If any person or persons shall commit, upon the high seas," "murder or robbery," "every such offender shall be deemed, taken and adjudged to be a pirate and felon, and, being thereof convicted, shall suffer death."

The whole description of the crime is "murder or robbery" "upon the high seas."

The third section of the Act of 1820 adds to that simple description of criminality certain words not at all tautological, but making other acts equivalent to the same crime. The section provides that, "if any person shall, upon the high seas, or in any haven, &c., commit the crime of robbery in or upon any ship or vessel, or upon any of the ship's company of any ship or vessel, or the lading thereof, such person shall be adjudged to be a pirate, and, being thereof convicted," "shall suffer death." Beyond the simple word, "robbery," is added, "in or upon any ship or vessel, or upon any of the ship's company of any ship or vessel, or the lading thereof."

Judge Nelson: The fifth section of the Act of March 3d, 1819, provides for piracy on the high seas according to the law of nations. The previous Act of 1790, and the third section of the Act of 1820, prescribe the punishment of the crimes of murder and robbery on the high seas.

The District Attorney: The Act of 1820 does not refer to murder, only to robbery on the high seas.

Judge Nelson: It denominates as a pirate a person guilty of robbery on the high seas.

Mr. Evarts: But the body of the crime is the robbery, and not the epithet.

Mr. Brady: That is the question.

Mr. Evarts: But, in the fifth section of the Act of 1819, the provision is, that "if any person shall, on the high seas, commit the crime of piracy as defined by the law of nations."

Judge Nelson: That is a different offence.

Mr. Evarts: Yes, and is open always to the inquiry, what the law of nations is.

Now, that Act of 1790 is, we say, constitutional. And here I may as well say what seems to be necessary in reference to the point made by Mr. Brady on behalf of the prisoners. He will contend, he says, that the ninth section of the Act of 1790 is beyond the constitutional power of Congress—its constitutional power in the premises being limited, as he supposes, to the right to define and punish the crime of piracy.

Mr. Brady: "And offences against the law of nations."

Mr. Evarts: To that explicit clause in the Constitution.

Now, your honors will notice what the crime in the ninth section of the Act of 1790 is. It is not piracy so described, nor robbery so described merely, but it is a statutory definition of the crime, which includes a particular description and predicament of the offender (the eighth section having included all persons), and also defines the subject of the robbery, or the object of the piratical aggression. It is this: "If any citizen shall commit any piracy or robbery aforesaid, or any act of hostility against the United States, or any citizen thereof," &c. "Piracy or robbery aforesaid" would, of course, include the definition of the crime as embraced in the eighth section. But, the ninth section proceeds to add a new and substantive completeness of crime, not described either as piracy or robbery, to wit: "Or any act of hostility against the United States, or any citizen thereof, upon the high seas, under color of any commission from any foreign Prince or State, or on pretence of authority from any person, such offender shall, notwithstanding the pretence of any such authority, be deemed, adjudged, and taken to be a pirate, felon, and robber, and, on being thereof convicted, shall suffer death."

Now, it is quite immaterial whether this statute is accurate in declaring the offender to be "a pirate, felon, and robber." It has made the offence a crime. Under what restrictions has it made it a crime? Has it undertaken to extend the jurisdiction of the Federal Government, as supported by the law of nations respecting piracy, which is a right on the part of every nation to legislate not only for its own citizens—not only in protection of its own property—but in punishment of all pirates, of whatever origin, and in protection of all property on sea, and wherever owned? Now that, undoubtedly, is the jurisdiction under the law of nations, and neither by the Constitution has Congress received any greater power under the law of nations than that, nor, I respectfully submit, can it receive any greater power under the law of nations; that is, Congress cannot receive any power greater than that which other nations, not bound by our municipal statutes, would be bound to respect, as sustained by the law of nations. Now I agree that "any act of hostility against the United States, or any citizen thereof," would not necessarily be up to the grade and of the quality of piracy under the law of nations; and that the Congress of the United States, in undertaking to make laws which would create an offence, and punish it as piracy, which was not piracy by the law of nations, and in seeking to enforce its jurisdiction and inflict its sanctions on a people who owed it no municipal obedience, and in protection of property over which it had no municipal control, and no duty to perform, could not control foreign nations; and that foreign nations would not be bound to respect convictions obtained under such a municipal extension of our law over persons never subject to us, and in respect to property never under our dominion.