Part 22

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 Caesar 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.