Trial of the Officers and Crew of the Privateer Savannah on the Charge of Piracy Part 44

_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, const.i.tutional. 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 const.i.tutional power of Congress--its const.i.tutional 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 Const.i.tution.

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 Const.i.tution 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 munic.i.p.al 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 munic.i.p.al obedience, and in protection of property over which it had no munic.i.p.al 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 munic.i.p.al extension of our law over persons never subject to us, and in respect to property never under our dominion.

And thus your honors see that, just in proportion as the ninth section has extended the crime, it has limited both the persons to whom the statute is applied, and the property in respect of which the crime is defined. It is wholly limited to our own citizens, subject to whatever laws we choose to make for our own government, and in respect of the marine property of the United States, and of its citizens when at sea, which, by every rule of the extension or limit of munic.i.p.al authority, is always regarded, on general principles of public jurisprudence, as a part of the property and of the territory of the nation to which the ship and cargo belong, wherever it may be on the high seas.

Now, this ninth section, I suppose, if your honors please,--and such I understand to be the views of Judge Sprague, as expressed by him to the Grand Jury, at Boston,--proceeds and is supported on the general control given by the Const.i.tution to Congress over all external commerce, which, I need not say, must, to be effective, extend to the criminal jurisprudence which protects against wrong, and the criminal control which punishes crime perpetrated by our citizens on our own commerce on the high seas. My learned friend would certainly not contend that the different States had this authority in reference to crimes on the high seas. And, if they have not that authority, then, between these jurisdictions, we should have omitted one of the most necessary, one of the most ordinary, one of the wisest and plainest duties of Governments in regard to the protection of their commerce.

For, it is idle to say that there are no crimes which may be committed at sea which are not piracy, and that there is no protection needed for our own commerce against our own citizens which does not fall within the international law of piracy.

_Mr. Brady_: I ask Mr. Evarts' permission to make a suggestion upon this point, which it is due to him, and to myself, also, that I should present, that I may hear his views in respect to it. I would ask the learned gentleman, and the Court, to suppose the case of an American citizen who, on the breaking out of a war between the United States and England, should be residing in England as a denizen, and who had resided there for many years, and who should take a commission for privateering from the British Government, regularly issued, having about it all the sanctions belonging to such an authority, and who, in the prosecution of a war, should take an American prize,--would he be liable to be convicted in the Courts of the United States of piracy or robbery, under the act of 1790? He clearly would, on its language. And then the question occurs--Had Congress any authority to pa.s.s such a law?

Now, I will put a case which is stronger, and which comes equally within the plain terms, purview, and spirit of that Act, upon a literal construction. Suppose that two American vessels should come into collision on the Pacific Ocean, each manned and officered exclusively by American citizens, and, an angry feeling being engendered, the Captain of one of them should direct a sailor to throw a belaying-pin at the Captain of the other, and the sailor should do it. That would clearly be an act of hostility against one citizen of the United States perpetrated by another, and would be perpetrated under pretence of authority from a person, to wit, the Captain of the ship who gave the violent order. Would the sailor be liable to a conviction for that offence, as a pirate or robber? and would Congress have the authority to pa.s.s such a law? I doubt it very much.

_Mr. Evarts_: I agree with my learned friend that the case which he first stated is not only within the words, but within the intent, of the ninth section.

_Mr. Brady_: That an American citizen cannot take a commission from a foreign Government without being a pirate?

_Mr. Evarts_: To serve against the United States, he certainly could not; and, if the law of nations and the rights of citizens require that a Government which demands allegiance and repays it by protection cannot make penal the taking of service from a foreign power against itself, I do not know what a Government can do. So much for the general right or power of a Government. If the particular and clipped interpretation of our Const.i.tution has shorn our Government of that first, clearest, and most necessary power, why, very well. Such a result follows, not from that power or its exercise being at variance with the general principles or powers of Government, but because, as I have said, in the arrangement of the Government, there has fallen out of the general fund of sovereignty this plain, and clear, and necessary right.

But, on the second instance which my learned friend has put, I am equally clear in saying, that the case he there suggests is not within the statute of 1790, simply because, although by a forced and literal construction, if you please, about which I will not here quarrel, my learned friend thinks he places it within the general terms of the ninth section, yet I imagine your honors will at once come to the conclusion, which seems to my poor judgment a sensible one, that the case he puts has nothing to do with the subject matter of the statute, within its intent or purpose--and that, simply, because the statute has not chosen to cover the case proposed, by applying to it so extravagant a penalty. It is not from any defect in the power of Congress. Congress does punish just such an offence as the one suggested, whenever the weapon and the a.s.sault make it of the gravity of offences to which Congress has chosen to apply its penal legislation. The statute covering such an offence is enforced every day in this Court. And, certainly, I do not need to argue that, if Congress had the right to pa.s.s a statute prohibiting an a.s.sault with a belaying-pin, it had the right to call the offence piracy, if it pleased, and might punish it by hanging, if it saw fit; and, for that, it is not amenable to the law of nations, nor is its power exercised with reference to piracy under the law of nations when it deals with that cla.s.s of offences.

I certainly do not need to fortify my answer to the case first put by my learned friend, in regard to the right of a nation to punish its citizens for taking service against its own country and commerce, by the practice or the legislation of other nations. But your honors will find, in the statutes of Great Britain--the statutes of 11 and 12 William III., and 2 George II.--precisely the same exercise of power and authority, and to the same extent, as respects the gravity of the crime and the punishment prescribed for it. And it would seem to me to be one of the plainest rights and most necessary duties of the Government, if its attention is called to any proclivity of its citizens to take service against itself, to punish them not as prisoners of war, and not under the laws affecting privateers.

_Mr. Brady_: I will only mention to you that, when I argue the question hereafter, and answer your suggestions, I will refer to the case of _The United States_ v. _Smith_, (5 _Wheaton_, 153,) where Mr. Webster conceded, in the Federal Court, that this original Act defining piracy was, as respects the language I have referred to, not a const.i.tutional exercise of the power conferred on Congress. He took the ground that the statute made a general reference to the law of nations as defining piracy, whereas, in his view, Congress should have proceeded to state what were the elements of the offence. I want to use that, in my argument, as an ill.u.s.tration of how strictly the Courts have held that it was never intended that even the case of taking a commission in a foreign service and making war against the United States, which might be treason, should be converted into piracy by any necromancy or alchemy of the law, such as the gentleman seems to have in view.

_Mr. Evarts_: Whenever a statute declares an offence to be a certain offence, that offence the Courts must hold it to be. The nomenclature of the Legislature is not to be quarreled with by the Courts which sit under its authority. They are to see that the crime is proved. What the crime is called is immaterial.

_Mr. Brady_: Then the Legislature might say that speaking offensive words on the high seas by our citizens is piracy.

_Mr. Evarts_: They can call it piracy, and punish it.

_Mr. Brady_: Yes, by death!

_Mr. Evarts_: It does not come under the law of nations as piracy, but under the general control of Congress over our citizens at sea. In other words, no nation depends, in the least, on the law of nations and its principles for the extent of its control over its own citizens on the high seas, or for the extent of the penalties by which it protects its own commerce against the acts of its own citizens on the high seas.

It takes cognizance of such offences by the same plenary power by which it takes cognizance of offences on land. The difference with us would be, that the State government would have the control of these offences when committed on the land, as a general rule, and they would come within the Federal jurisprudence and the Federal legislation only by their being committed on the high seas. Now, what was said by Mr.

Webster in the case of _The United States_ v. _Smith_, a case arising under the Act of 1819? Mr. Webster argued that the special verdict did not contain sufficient facts to enable the Court to p.r.o.nounce the prisoner guilty of the offence charged--that his guilt could not be necessarily inferred from the facts found, but that they were, on the contrary, consistent with his innocence--but that, even supposing the offence to have been well found by the special verdict, it could not be punished under the Act of 1819, because that Act was not a const.i.tutional exercise of the power of Congress to define and punish piracy,--that Congress was bound to define it in terms, and was not at liberty to leave it to be settled by judicial interpretation. That was Mr. Webster's criticism upon the statute--that while the Const.i.tution had said that the law must define what was piracy, Congress had left it to the Courts to define. Mr. Justice Story delivered the opinion of the Supreme Court in that case, to the effect, that the crime of piracy was const.i.tutionally defined by the Act of Congress, and the point was so certified to the Circuit Court.

The authority which this Court has for punishing the crime which has come under consideration in this case is the law of the United States, supported by the Const.i.tution of the United States, in respect to both branches of the statute under inquiry. As the indictment follows the law, and the law follows the Const.i.tution, the subject for your cognizance is rightfully here, and the proofs and the evidence in the case show that the crime has been committed, and that the acts of the prisoners which resulted in the seizure of the Joseph on the high seas include all the ingredients that enter into the completeness of the crime of robbery on the high seas, as named in the eighth section of the Act of 1790, and in the third section of the Act of 1820. I am confining myself, in these observations, to the crime of the whole twelve, not affected by the question of citizenship, and not falling under the ninth section of the Act of 1790.

It is certainly not necessary for me here to insist, with much of detail, on the question of the completeness or effect of the evidence as showing that the seizure of the Joseph was attended by all the circ.u.mstances of force, and was stimulated by all the purposes of robbery, which the law makes an ingredient of this offence. So far as the sufficiency of the evidence is to pa.s.s under the judgment of the Jury, it is entirely out of place for me to comment on it here. And, so far as any purpose of instruction to the Jury by your honors requires any consideration now, it is sufficient for me to say, that there is no trait of violence, and threat, and danger which, within the law of robbery,--and the law of piracy, if there be any difference,--makes up the necessary application of force, that is not present here. And I understand my learned friend, Mr. Lord, to concede, that there was force enough to make up the crime, if the element of intent, the vicious purpose of robbery, was present, as part of the body of the crime.

My learned friends have treated this latin phrase, _animo furandi_, as if it meant _animo fruendi_--as if the point was, not the intent to despoil another, but the intent to enjoy the fruits of the crime themselves. Now, I need not say that a man who robs his neighbor to give the money to charity, despoils him, _animo furandi_, just as much as if he did it with the intention of using the money for his own purposes of pleasure or profit. That is the point, and all the cases cited only touch the question of whether, in the violent taking, or the fraudulent taking, imputed as a crime, there could be supposed by the Jury to be, on any evidence introduced, any honest thought, even the baseless notion, on the part of the offender, that the property was not that of the man from whom he took it, but was his own. I have not seen anything in this evidence which should lead us to suppose that Mr.

Baker and his crew thought that this vessel, the Joseph, belonged to them, and that they took her under a claim of right, as property of their own. The right under which they acted was a supposed right to make it their own, it then and there being the property of somebody else--to wit, of the United States of America, or of some of its citizens. So, your honors will find, that except so far as the considerations of the moral quality of this crime, in regard to its not being furtive and stealthy, are raised and supported by the general considerations which are to change this transaction from its private quality and description into a certain public dignity, as part of a wider contest, and which considerations are to be disposed of by the views which your honors may take of the affirmative proposition of the defence, which would make this privateering at least an act of hostility in flagrant war--except so far, I say, as these considerations are concerned, I need not say anything more as to the completeness of the ingredients, both of force, and of robbery or despoiling another, necessary to make up the crime.

We come, now, if the Court please, to a variety of considerations, many of them, I think, not at all pertinent to a judicial inquiry; many of them ethical; many of them political; many of them addressed to the consciences of men; and many of them addressed to the policy of Governments--and which, in the forum where they are debatable, and which for the most part is a forum which can never make a decision, may be useful and interesting. Some of them do approach, doubtless, the substance and shape of legal propositions; and I am sure I do no injustice either to the nature, or purpose, or character of these manifold views, when I say that they all centre on the proposition, that this transaction, which, in its own traits and features as a private act of these parties, is a crime of piracy, is transferred into the larger range of a conflict of force, authorized by the laws of war, and with no arbiter and no avenger, but in the conscience, and before the common Judge of all. Now, if the Court please, the legal notion to which we must bring this down, is this--that the acts here complained of are, within the law and jurisprudence which this Court administers, acts of privateering, not falling within the law of piracy.

Now, what is privateering? My learned friends have spoken of privateering as if it were one of the recognized, regular, suitable public methods of carrying on hostilities between nations, and as if it fell within the general protection which makes combatants in the field, fighting as public enemies, and against public enemies, amenable only to the laws of war. And my learned friend, Mr. Lord, has read, with much satisfaction, the very pointed observations made by Mr. Marcy in his letter to the French Minister, which were very just and very appropriate as a home argument against France; that is, the encomiums of certain French commanders on the dignity and n.o.bility of the conduct of privateers who rushed to the aid of their country when at war. Now, my view, and I believe the view of the law books and of the publicists of the present day, is this--that privateering is the last relic of the early and barbarous notions of war, that a trial of force between nations involved a rightful exercise of personal hostility by every individual of one nation against every individual of the other, and against every portion of the property of the other. That law of war which authorizes the attack on peaceful persons by armed bands on land, and the robbery, devastation, and destruction of private property wherever it may be found, has been long since displaced by those principles of humanity, of necessity, and of common sense, which make war an appeal, when there is no other arbiter, to the strength of the parties, to be determined with as little injury to property and life as possible. Now, privateers have never been looked upon as being themselves ent.i.tled to the least comparison with the regularly enrolled military power, or with the regular naval service, in respect to their motives, or the general rules of their conduct, or the general effect which their depredations are expected to produce. And the tendency of all movements in the public laws of nations, as affecting the maintenance of war, has been at least to discourage and to extirpate, if possible, this private war on sea, in both of its forms--to wit, in the form of public armed vessels taking private and peaceable property on sea, and in the still more aggravated form of private armed vessels, with crews collected for the purposes of gain and plunder, under the license which war may give. So far from this Government having, on the general principles, moral and social, which should govern such a discussion, desired to maintain or extend privateering, it was among the first and the earliest to concede in its treaties, and to gain from the other contracting parties the concession, that if war should arise between the parties to the treaty, privateers should not be commissioned or tolerated on either side. And, if this Government has failed to yield to the attempt made on the part of certain European powers to crush this single branch of private war on the ocean, to wit, war by private parties on the ocean, it has only been because it saw that that design, not including the destruction of that other branch of private war at sea--the war of public vessels against private property--was not a design clearly stimulated by the purposes and interests of humanity. While the European Governments chose to destroy that branch which was least important to them--the use of private armed vessels--they claimed to continue in full force the right of public armed vessels to make aggressions on private property on every sea. The one point was quite as important to have ameliorated as the other, which permits us to recruit the small navy which our republican inst.i.tutions justify us in maintaining, by the vigor of our mercantile marine in the time of naval war. Therefore, there is nothing in the history of the country which can, in the least, support the idea that we look with favor on the notion of privateering.

Some sensible observations upon the subject are to be found on marginal page 97, in the first volume of Kent's Commentaries, to which I ask your honors' attention:

"Privateering, under all the restrictions which have been adopted, is very liable to abuse. The object is not fame or chivalric warfare, but plunder and profit. The discipline of the crews is not apt to be of the highest order, and privateers are often guilty of enormous excesses, and become the scourge of neutral commerce. They are sometimes manned and officered by foreigners, having no permanent connection with the country or interest in its cause."

I agree that there is still left, under the license and protection of the law of nations, the prosecution of hostilities on the high seas by privateers and private armed vessels. And I agree that, although the crime proved in this case does come within the description and punishment of robbery and piracy, in its own actual traits and features, yet if it be shown that what is thus made piracy and robbery by the statute was actually perpetrated by a privateer, under the protection of the law of nations, with a commission from a sovereign nation, within the scope of the authority of that commission, it is an answer to an indictment, the terms of which had been otherwise proved.

And that is undoubtedly what is claimed here. You have proved piracy and robbery under the eighth section, say these defendants, if we cannot impart to the circ.u.mstances and features of this crime some public quality and authority which saves the transaction from condemnation and punishment.

_Mr. Brady_: We say no such thing. We say that, if they acted in good faith, however mistaken, and though the commission may be void, they have not committed any offence whatever.

_Mr. Evarts_: This is the extent of my concession, as matter of law,--that it is an answer to a charge of piracy which is otherwise complete, that the crime was committed under conditions which, by the law of nations, relieve it from punishment. Now, what are the conditions that the law of nations requires?

First, there must be a war. We do not allow private armed vessels to prosecute general marauding hostilities in support of the views of their Governments. We do not allow the interruption of the freedom of the seas by such marauding vessels, except in cases of flagrant war, which neutral nations are compelled to recognize.

Secondly. The privateer must have received its commission from a public, national, sovereign power. You cannot make a privateer, and turn private acts that, by the law of nations and by munic.i.p.al law, are piratical, into acts of war, which are of the same intrinsic quality and have the force of national acts, unless by this _sine qua non_ of public authority and adoption.

Now, if the Court please, when it comes up for judicial inquiry, whether a case of privateering, under the law of nations, is fairly made out, and where the case arises during flagrant war between two separate, independent, established nations, whose nationality is a part of the order of things in the world, the Court has only really to inquire, judicially, into two subjects--whether the vessel had a lawful privateer's commission from one of the contending parties--and whether the acts committed by her were within its scope, either actually or in the sense of a fair construction of the authority, and of good faith in the exercise of the power. But, even in these cases, where the only points are, whether there be war, and whether there be nationalities on each side which can convey this public authority, the Court is all the while governed by, dependent upon, and subordinate to, the views of the Government from which the Court derives its authority. No judicial tribunal has a right to recognize a nation, of its own motion. No judicial tribunal has authority to recognize a Government which the Government from which it derives its authority does not recognize. I have never heard it proposed, as a view either of public or of domestic law, that when a Government has declined to recognize a nation, it was within the jurisdiction of a Court of that Government to determine differently, and reverse the decision of the political power. In the cases of France and England, which are recognized Governments that have placed themselves as firmly among the nations of the world as private individuals are planted in the rights of man, our Courts intermit this inquiry. A privateer of England which confines itself within the scope of its commission, can not be proceeded against as a pirate, although it commits acts which would of themselves be piracy. But, there do arise questions which come under the jurisdiction of the Courts, under circ.u.mstances of doubt and obscurity as to the course or view which our Government has taken in relation to the alleged nationalities of alleged belligerents; and I need not say to your honors, that by an unbroken series of the decisions of the Supreme Court, as well as by the necessary subordination of the judicial authority to the political power of the Government, our Courts always take the view which their Government takes in respect to struggles and hostilities which arise between uncertain, indefinite and unascertained powers. Thus, whenever there occur, between Colonies and the parent Government,--between disaffected regions or populations and the sovereign to which they have been subject--dissensions which, arising from the region of discontent, sedition and turbulent disorder, reach the proportion of military conflict and appeal to arms, then, when acts in the nature of war are a.s.sumed to be performed, under circ.u.mstances that bring them within judicial cognizance in our Courts, and in the Courts of any other civilized nation, as to whether they still retain their quality and character of private acts, attended by the private responsibility of the criminals, or whether they are transferred to the wider theatre and looser responsibility of warlike engagement, our Courts, as do the Courts of other civilized nations, look to the Government to see what is its policy and its purpose. The instances in which these unhappy contests and these obscure questions have been presented before the Courts, have been almost entirely connected with the separation of the South American Colonies from the mother country of Spain. In all these cases, the new Governments of the revolted Colonies gave commissions to privateers, and undertook to put themselves before the nations of the world as belligerents, claiming from neutral nations, not a recognition of their independence, or of their completed nationality, but of their right to struggle, through the forms of force and war, to establish that nationality. They presented to the discretion and the policy of every other civilized Government precisely this question--Is there enough of substance, of good faith, of power, to justify us, as equal expounders and equal defenders and protectors of the laws of nations, although there be now no present nationality that can support, under the rules of the law of nations, by mere right, the exercise of warlike powers--is there enough, in the transaction, to justify us in considering it to be so substantial and _bona fide_ an effort for the a.s.sertion of independence and the creation of a new nation, that we shall give to it the opportunity, and turn what would be piracy and marauding into an act of belligerents, so far as we neutrals are concerned?

When a nation is an independent nation, all other nations of the earth are, by public law, bound to recognize it, and bound to recognize its right to make war. The most powerful nation in the world has no more right to make war than the smallest nation in the world; and, each being judge of its own conduct, when a state of war exists, such war must, by the public law of the world, be recognized. But when new, unformed, inchoate, tentative consolidations or efforts of nationalities present themselves, every nation has, by the public law, a right to exercise its own wisdom, its own policy and its own sense of justice, to determine whether or not it will recognize them; and, in every one of the cases I have referred to that came before our Courts, arising for their consideration as between two parts of a foreign country, our Courts said--Our Government has done so and so; it has recognized them as belligerents, and we follow our Government. In other cases, as in that of the Commander Aury, the Court said--We do not understand that there is any such power known in the world; our Government has never in any way recognized, not its independence, for that is not necessary, but its position as a war-making power, or as a struggling power, fighting for nationality, and we cannot recognize that condition of things.

Now, unhappily, there arises a conflict in our own country, which presents the case of an armed military rebellion--a revolt of certain portions of population, maintaining, if you please, to a certain extent, the mastery over a certain portion of our soil, using against us the actual means and processes of war, and compelling from our Government, in maintaining dominion against their aggressive a.s.saults, the means of military power, naval and land forces, and all the authority and violence of war. Foreign nations have had, in regard to us and to this conflict, the same kind of questions presented that have been presented to us in the contests between the dismembered parts of other countries. And every nation was free to determine, upon this exact question of the right of private war, as belonging to those rebellious portions of this country--to determine whether it would tolerate privateering as a warlike proceeding, or would regard privateers as marauders or pirates without just right or cause, and without the pretence of sufficient force and dignity, in a movement to disturb the peace of the world.

My learned friends have said, using the force of the argument in aid of their cause, that France and England have recognized the insurgents as belligerents, and have precluded themselves from treating as pirates private armed vessels that shall derive authority from these rebellious powers. Well, by the same law of nations that gave to France and England this right thus to elect, they had the right to determine, and to announce by proclamation, that the peace of the world upon the ocean should not be disturbed, under pretence of war, by these insurgents, and that, if they should resort to private armed vessels to inflict aggressions and disturb the commerce of the world, they would be treated as pirates. And if, under the law of nations, the political authorities of France and England had thus announced their policy that these insurgents should be treated as pirates, I would like to know if advocates would be heard, in the Court of Queen's Bench or in the Courts of France, to urge that the Court, wiser than its Government, should, in the exercise of sovereign discretion under the law of nations, tolerate, as an act of war, what is piracy by munic.i.p.al statute or the law of nations, unless accredited as part of a warlike movement. Would those Courts permit the defence to be made, that what were declared to be acts of piracy were acts of war,--the Government having so elected and so announced, that it would regard them as acts of piracy and not as acts of war?

Now, I am arguing this case altogether on this point, as if the Government from which this Court derives its authority--whose laws we are administering--whose authority is vested in your honors on this trial--stood as a stranger to and spectator of this contest, and it was really a controversy between parts of another nation. And all I have claimed is, that our Government, in common with the other nations of the world, has, by the law of nations, the right, in its discretion, to determine how this proceeding shall be treated, and what consequences shall follow from it. Now, I need not say that, treating our Government as if it stood _ab extra_, and as if, pa.s.sing its judgment on what was going on, it had determined that these privateers should be regarded as pirates, they should not be recognized as having the right of war, or the right, as an inchoate nationality, to perfect their independence.

The Proclamation of the President of the United States, of the 19th of April, 1861, is a complete and perfect denunciation of this threatened crime of piracy, the purpose to recur to which had been manifested by a public declaration of Jefferson Davis, which had invited, from all quarters of the globe, privateers to prey upon the commerce of the United States. I need not say to your honors that when our Government has p.r.o.nounced this to be piracy, and to be not within the law of nations, under its discretion to determine whether it will recognize an inchoate nationality, this Court has not, any more than has a Court of England or France, the power to say that what its Government does not choose to recognize, even in the quality of belligerents, it will recognize. What our Government has said shall remain in the quality of criminality, must so remain, notwithstanding this proclamation of Jefferson Davis, or any commission that may issue in pursuance of it.

I apprehend that even if we were to bring ourselves into the paradoxical condition of pa.s.sing judgment on this question as a disinterested, yet sovereign nation, your honors would find in the acts of the Government a complete denunciation against this proceeding as a crime of piracy, and a complete policy, which the Court must follow, leaving any diplomatic considerations of the results which may follow its mistaken, if you please, construction of its duty, to be disposed of by the authorities that are responsible for it.

_Mr. Brady:_ I believe there is no proof of any such action by the legislative branch of this Government.

_Mr. Evarts:_ I apprehend that the whole course of the legislation of this country shows that we do not recognize or tolerate this contest as a thing that is rightfully to go on. That is all that is necessary.

I say, if the Court please, that the course of an external sovereignty, in these intestine quarrels, turns upon the point whether it will give its sanction to an intrusion upon the peace of the world by an inchoate nation, and I am trying to consider that question as if our Government had pa.s.sed judgment upon it _ab extra_; and I say that the action of our Government shows that we do not intend to recognize it as something that should be allowed to go on. These considerations, as to any recognition by this Court of rights derivable from _quasi_, pretended, nascent, public powers, would induce this Court to follow the decision of the Government, in case we were judging of the question as a controversy between parts of another nation.