Part 23

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.

[3] "Gone along, caught along, hanged along."

_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.