Part 11
"As it is _cepit_ and _asportavit_ so it must be _felonice_ or _animo furandi_, otherwise it is not felony, for it is the mind that makes the taking of another's goods to be a felony, or a bare trespass only; but because the intention and mind are secret, they must be judged by the circumstances of the fact, and though these circumstances are various and may sometimes deceive, yet regularly and ordinarily these circumstances following direct in this case.
"If _A_, thinking he hath a title to the horse of _B_, seizeth it as his own, or supposing that _B_ holds of him, distrains the horse of _B_ without cause, this regularly makes it no felony, but a trespass, because there is a pretence of title; but yet this may be but a trick to color a felony, and the ordinary discovery of a felonious intent is, if the party does it secretly, or being charged with the goods, denies it. * * * * *
"But in cases of larceny, the variety of circumstances is so great, and the complications thereof so weighty, that it is impossible to prescribe all the circumstances evidencing a felonious intent; on the contrary, the same must be left to the due and attentive consideration of the Judge and Jury, wherein the best rule is, _in dubiis_, rather to incline to acquittal than conviction."
The next authority on that subject to which I will refer you is 2_d East's Pleas of the Crown, p._ 649. The passage is:
"And here it may be proper to remark, that in any case, if there be _any fair pretence_ of property or _right_ in the prisoner, _or if it be brought into doubt at all, the court will direct an acquittal; for it is not fit that such disputes should be settled in a manner to bring men's lives into jeopardy_.
"The owner of ground takes a horse _damage feasant_, or a lord seizes it as an estray, though perhaps without title; yet these circumstances explain the intent, and show that it was not felonious, unless some act be done which manifests the contrary: as giving the horse new marks to disguise him, or altering the old ones; for these are presumptive circumstances of a thievish intent."
I call attention also to the case of _Rex_ vs. _Hall_, _3d Carrington & Payne_, 409, which was a case before one of the Barons of the Exchequer in England. It was an indictment for robbing John Green, a gamekeeper of Lord Ducie, of three hare-wires and a pheasant. It appeared that the prisoner had set three hare-wires in a field belonging to Lord Ducie, in one of which this pheasant was caught; and that Green, the gamekeeper, seeing this, took up the wires and pheasant, and put them into his pocket; and it further appeared that the prisoner, soon after this, came up and said, "Have you got my wires?" The gamekeeper replied that he had, and a pheasant that was caught in one of them. The prisoner asked the gamekeeper to give the pheasant and wires up to him, which the gamekeeper refused; whereupon the prisoner lifted up a large stick, and threatened to beat the gamekeeper's brains out if he did not give them up. The gamekeeper, fearing violence, did so.
Maclean, for the prosecution, contended--
"That, by law, the prisoner could have no property in either the wires or the pheasant; and as the gamekeeper had seized them for the use of the Lord of the Manor, under the statute 5 Ann, c. 14, s. 4, it was a robbery to take them from him by violence."
Vaughan, B., said:
"I shall leave it to the Jury to say whether the prisoner acted on an impression that the wires and pheasant were his property, for, however he might be liable to penalties for having them in his possession, yet, if the Jury think that he took them under a _bona fide_ impression that he was only getting back the possession of his own property, there is no _animus furandi_, and I am of opinion that the prosecution must fail.
"Verdict--Not guilty."
Without detaining the Court and Jury to read other cases, I will simply give your honors a reference to them. I refer to the _King_ vs. _Knight_, cited in 2_d East's Pleas of the Crown_, p. 510, decided by Justices _Gould_ and _Buller_; the case of the _Queen_ vs. _Boden_, 1_st Carrington and Kirwan_, p. 395; and for the purpose of showing that this is the same rule which has been applied by the Courts of the United States, in these very cases of piracy, I need do nothing more than read a few lines from a case cited by the counsel for the prosecution in opening the case of the _United States_ vs. _Tully_, 1_st Gallison's Circuit Court Reports_, 247, where Justices Story and Davis say, that to constitute the offence of piracy, within the Act of 30th April, 1790, by "piratically and feloniously" running away with a vessel, "the act must have been done with the wrongful and fraudulent intent thereby to convert the same to the taker's own use, and to make the same his own property, against the will of the owner. The intent must be _animo furandi_."
Now, gentlemen, I think that when you come to consider this case in your jury-box, whatever other difficulties you may have, you will very speedily come to the conclusion that the taking of the Joseph was with no intent of stealing on the part of these prisoners.
But, gentlemen, there is another requisite to the crime of robbery, which, I contend, and shall respectfully attempt to show to you, is absent from this case. I mean, it must be by violence, or putting him in fear that the property is taken from the owner, and that the crime of robbery is committed. I beg to refer the Court to the definition of robbery in _1st Blackstone's Commentaries_, p. 242, and _1st Hawkins' Pleas of the Crown_, p. 233, where robbery at common law is defined to be "open and violent _larceny_, the rapina of the civil law, the _felonious_ and _forcible_ taking from the person of another of goods or money to any value by violence, or putting him in fear."
Now, gentlemen, I say there was nothing of that kind in this case. What are the circumstances as testified to by the witnesses for the prosecution? The circumstances are, that the Joseph and the Savannah, having approached within hailing distance, the Captain of the Savannah hailed the Captain of the Joseph, standing on the deck of his own vessel, and requested him to come on board and bring his papers. The answer of the Captain of the Joseph was an inquiry by what authority that direction was given; and the Captain of the Savannah replied, "by the authority of the Confederate States." Whereupon the Captain of the Joseph, in his own boat, with two of his crew, went alongside the Savannah, was helped over the side by the Captain of the Savannah, and was informed by him that he was under the disagreeable necessity of taking his vessel and taking them prisoners; and without the slightest force or violence being used by the Captain, or by a single member of the crew of the Savannah--without a gun being fired, or even loaded, so far as anything appears--the Captain of the Joseph voluntarily submitted, yielded up his vessel, and there was not the slightest violence or putting any body in fear.
Therefore, gentlemen, I say, that so far as the crime charged here is the crime of robbery, there is no evidence in the case under which, on either of these grounds, by reason of the secrecy of the act, or the violence or putting in fear, or the showing a felonious intent, by the evidence for the prosecution, these prisoners can be convicted under the indictment before you. To show that the definition of robbery at common law is the one that applies to these statutes of the United States, I beg to refer your honors to cases in the Supreme Court of the United States. I refer to the case of the _United States_ vs. _Palmer, 3 Wheaton, 610_; the _United States_ vs. _Wood, 3d Washington, 440_; and the _United States_ vs. _Wilson, 1 Baldwin,_ p. 78.
But, gentlemen, there is another set of counts in this indictment on which, probably, as to those who are citizens, a conviction will be pressed for by counsel on the part of the Government. That is a set of counts to which I am about to call your attention in reference to the acts under which they were framed. You will recollect this, gentlemen, that under the counts charging the offence of robbery, the majority of these prisoners must be convicted, or none of them can be convicted at all, for reasons which I will immediately give you. The only statute under which it is claimed on the part of the prosecution that a conviction can be had, if not for robbery on the high seas, imperatively requires that the prisoners to be convicted must be citizens of the United States. There are twelve prisoners here, and by the statement of the last witness produced on the part of the prosecution, only four of them appear to be citizens of the United States, or ever to have been citizens of the United States. The others were all born in different countries in Europe and Asia, and had never been naturalized; and the Court, whenever this case comes before you, so far as that point is concerned, will give you the evidence on the subject, by which you will see exactly which of these prisoners had ever been citizens of the United States, and which of them had not been. I therefore proceed to examine as to what the statute is, and what the requisites are for a conviction of those who were citizens of the United States at any time. I will read to you the section of the statute to which I have reference. It is the 9th section of the Act of 1790. It reads, "That if any _citizen_ shall commit any piracy or robbery aforesaid, 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 will be interesting and necessary to understand the circumstances under which that statute was passed, and the application which it was intended to have. I will briefly read to you the explanation of that subject, which your honors will find in _Hawkins' Pleas of the Crown, 1st Vol., p. _268. Hawkins says:
"It being also doubted by many eminent civilians whether, during the Revolution, the persons who had captured English vessels by virtue of commissions granted by James 2nd, at his court at St. Germain, after his abdication of the throne of England, could be deemed pirates, the grantor still having, as it was contended, the right of war in him; it is enacted by 11 and 12 Will. III., chap. 7, sec. 8, 'That if any of his Majesty's natural born subjects or denizens of this Kingdom shall commit any piracy or robbery, or any act of hostility against others of his Majesty's subjects upon the sea, under color of any commission from any foreign Prince or State, or pretence of authority from any person whatsoever, such offender or offenders, and every of them, shall be deemed, adjudged, and taken to be pirates, felons, and robbers; and they and every of them, being duly convicted thereof according to this Act or the aforesaid statute of King Henry the Eighth, shall have and suffer such pains of death, loss of land and chattels, as pirates, felons, and robbers upon the sea ought to have and suffer.'"
Your honors will find that further referred to in the case of the _United States_ vs. _Jones_, _3d Wash. Cir. Court Reps. p._ 219, in these terms:
"The 9th sec. of this law (the Act of 1790) is in fact copied from the statute of the 11th and 12th Wm. 3d, ch. 7, the history of which statute is explained by Hawkins. It was aimed at Commissions granted to Cruisers by James II., after his abdication, which, by many, were considered as conferring a legal authority to cruise, so as to protect those acting under them against a charge of piracy. Still, we admit that unless some other reason can be assigned for the introduction of a similar provision in our law, the argument which has been founded on it would deserve serious consideration. We do not think it difficult to assign a very satisfactory reason for the adoption of this section without viewing it in the light of a legislative construction of the 8th sec, or of the general law.
"If a citizen of the United States should commit acts of depredation against any of the citizens of the United States, it might at least have been a question whether he could be guilty of piracy if he acted under a foreign commission and within the scope of his authority. He might say that he acted under a commission; and not having transgressed the authority derived under it, he could not be charged criminally. But the 9th sec. declares that this shall be no plea, because the authority under which he acted is not allowed to be legitimate. It declares to the person contemplated by this section, that in cases where a commission from his own Government would protect him from the charge of piracy, that is, where he acted within the scope of it or even where he acted fairly but under a mistake in transgressing it, yet that a _foreign_ commission should afford him no protection, even although he had not exceeded the authority which it professed to give him. But it by no means follows from this that a citizen committing depredations upon foreigners or citizens, not authorized by the commission granted by his own Government, _and with a felonious intention_, should be protected by that commission against a charge of piracy. Another object of this section appears to have been to declare that acts of hostility committed by a citizen against the United States upon the high seas, _under pretence of a commission issued by a foreign Government, though they might amount to treason, were nevertheless piracy and to be tried as such_."
Your honors will find another very interesting history in reference to this statute in _Phillimore's International Law, 1st vol., sec. 398_. Phillimore says:
"Soon after the abdication of James II., an international question of very great importance arose, namely, what character should be ascribed to privateers commissioned by the monarch, who had abdicated, to make war against the adherents of William III., or rather against the English, while under his rule. The question, in fact, involved a discussion of the general principle, whether a deposed sovereign, claiming to be sovereign _de jure_, might lawfully commission privateers against the subjects and adherents of the sovereign _de facto_ on the throne; or whether such privateers were not to be considered as pirates, inasmuch as they were sailing _animo furandi et depraedundi_, without any _national_ character. The question, it should be observed, did not arise in its full breadth and importance _until James II. had been expelled from Ireland as well as England, until, in fact, he was a sovereign, claiming to be such de jure_, BUT CONFESSEDLY WITHOUT TERRITORY. It appears that James, after he was in this condition, continued to issue letters of marque to his followers. The Privy Council of William III. desired to hear civilians upon the point of the piratical character of such privateers. The arguments on both sides are contained in a curious and rather rare pamphlet, published by one of the counsel (Dr. Tindal) for King William, in the years 1693-4. The principal arguments for the piratical character of the privateers appear to have been--
"That they who acted under such commission may be dealt with as if they had acted under their own authority or the authority of any private person, and therefore might be treated as pirates. That if such a titular Prince might grant commissions to seize the ships and goods of all or most trading nations, he might derive a considerable revenue as a chief of such freebooters, and that it would be madness in nations not to use the utmost rigor of the law against such vessels.
"That the reason of the thing which pronounced that robbers and pirates, when they formed themselves into a civil society, became just enemies, pronounced also that A KING WITHOUT TERRITORY, without power of protecting the innocent or punishing the guilty, or in any way of administering justice, dwindled into a pirate if he issued commissions to seize the goods and ships of nations; and that they who took commissions from him must be held by legal inference to have associated _sceleris causa_, and could not be considered as members of a civil society."
I will not occupy the time of the Court and Jury by recapitulating the rest of the arguments which were urged with very great ability by the learned and distinguished civilians arrayed against each other in that interesting debate. But the points which arise, and which the Court will have, in due time, to instruct you upon, we respectfully claim and insist are these: That this English statute, after which our own statute was precisely copied, was intended only to apply to the case of pirates cruising under a commission pretended to have been given, in the first place, by a Prince deposed, abdicated, not having a foot of territory yielding him obedience in any corner of the world; and, in the next place, that it was intended to be aimed against those cruising under a commission issued under the pretence of authority from a foreigner, and not from the authorities over them _de jure_ or _de facto_, or from any authorities of the land in which they lived, and where the real object was depredation; because, where it was issued by a monarch without territory--by a foreigner, having no rule, and no country in subjection to him--there could be no prize-court, and none of the ordinary machinery for disposing of prizes captured, according to the rules of international law; and, lastly, it was intended to apply to the case of a citizen, taking a privateer's commission from a foreign Government as a pretence to enable him to cruise against the commerce of his own countrymen. But it was never intended to apply to a case of this kind, where the commission was issued by the authorities of the land in which the parties receiving it live, exercising sway and dominion over them, whether _de jure_ or _de facto_.
Now, gentlemen, so far I have thought it necessary to go in explanation of what the statutes were, of the circumstances bearing on them, and of the requisites which the prosecution had to make out, in order to ask a conviction at your hands. I come now, for the purpose of this opening, to lay before you what we shall rely upon in our defence. The first defence, as has already appeared to you from the course of the examination of the prosecution's witnesses, has reference to the question of the jurisdiction of this Court to hear and determine this controversy. The statute has been already read to you, on which that question of jurisdiction rests; but, for fear that you do not recollect it, I will beg once more to call your attention to it. The concluding paragraph of sec. 14 of the Act of 1825, 4th vol. of the Statutes at Large, p. 118, is as follows:
"And the trial of all offences which shall be committed on the high seas or elsewhere out of the limits of any State or District, shall be in the District where the offender is apprehended, or into which he may first be brought."
Now, you observe that the language of the statute is imperative--the reasons which led to its adoption were also imperative and controlling. It is necessary that the law shall make provision for the place where a man shall be put on trial under an indictment against him; and the law wisely provides that in cases of offences committed on the land, the trial shall only take place where the offence was committed. It was thought even necessary to provide for that by an amendment to the Constitution of the United States, in order that there might be no misunderstanding of, and no departure from, the rule.
The Constitution, by one of its amendments, in the same paragraph which provides for the right of every accused to a speedy and impartial trial, provides also that that trial shall take place in the District, which District shall first have been ascertained by law; and as I said to you, in cases of crimes committed on the land, that District must be the District where the offence was committed, and no other.
Now look at the state of things here, gentlemen. These men are all citizens or residents of the State of South Carolina, and have been so for years. This vessel was fitted out in South Carolina. The authority under which she professed to act was given there. The evidence for the defence, if it could be got, must come from there. All the circumstances bearing on the transaction occurred in that section of the country, and not elsewhere,--occurred in a country which is now under the same Government and domination as Virginia, because Virginia is included at present under the domination and Government of the Confederate States.