Part 31

It was intimated by the learned District Attorney, in his opening remarks, that in the event of a conviction, the President would exercise the pardoning prerogative. Gentlemen, this is a delusion. I do not mean to insinuate that the learned counsel would willfully mislead you; for I am bound to admit, in all becoming candor, that the prosecution have acted with fairness and magnanimity highly creditable, and not in any manner inconsistent with the _performance of their arduous_ and responsible duties; but I do say that it should not have the slightest weight in your deliberations upon the important questions involved in this case. Is this a mere form--a farce? is your time, and the valuable time of the Court, to be consumed in the investigation of a long and tedious case like the present as a mere pastime? It is a reflection upon the good sense and intelligence of a Jury, for the Executive to exercise the pardoning power, except in special cases, where new evidence is discovered after conviction which may go to establish the innocence of the party so convicted.

Gentlemen of the Jury, you have a duty to perform that requires almost superhuman nerve and moral courage--requiring more prowess than to face the cannon's mouth. You have it in your power to prove to the nation, and to the whole civilized world, that in the administration of the criminal laws of the country, in a case involving the rights and interests of this Republic, before a Jury of New York citizens, that "_justice can triumph over passion, and reason prevail over prejudice_." If there is no other feeling which can influence your judgment, if you have no sympathy in common with these men, there is a sympathy you should have--a sympathy for those brave and valiant spirits who fought so nobly for the Union, the Constitution, and the enforcement of the laws, and who are now prisoners of war in the power of the enemy; and it would be expecting too much clemency from the hands of the enemy to suppose that they would allow the sacrifice of these men to go unavenged.

I repeat, you have a solemn duty to perform, and public opinion should not have the slightest influence upon your mind. You are to be governed by a "higher law;" a law based upon the sacred precepts of Holy Writ--its teachings emanating from God himself; and therein you are commanded to observe that golden rule, "Do unto others as you would that they should do unto you."

ARGUMENT OF JAMES T. BRADY, ESQ.

_Mr. Brady_ inquired of Mr. Evarts for what purpose he intended to refer to the statute against treason.

_Mr. Evarts_: Not in any other light than I have already referred to the doctrine of treason, to wit, that a party cannot be shielded from indictment for the crime of piracy by showing a warrant or assumed authority for acts which made out that his crime was treason; that showing a treasonable combination did not make out a warrant or authority for that which was piracy or murder.

_Mr. Brady_ then proceeded to address the Jury on behalf of the accused:

_May it please the Court: Gentlemen of the Jury_:

I feel quite certain that all of you are much satisfied to find that this important trial is rapidly drawing to a close; and I think it would be unbecoming in me, as one of the counsel for the accused, to proceed a step farther in my address to you without acknowledging to the Court the gratitude which we feel for their kindness in hearing so largely discussed the grave legal questions involved in this controversy; to the Jury, for their unvarying patience throughout the investigation; and to our learned opponents, for the frank and open manner in which the prosecution has been conducted. Our fellow-citizens at the South--certainly that portion of them who cherish affection for this part of the Union--will find in the course of this trial most satisfactory evidence that respect for law, freedom of speech, freedom of discussion, liberty of opinion, and the rights of all our countrymen, here exist to the fullest extent. All of us have heretofore been connected with interesting and exciting trials. I am warranted in saying that, considering the period at which this trial has occured, and all the facts and circumstances attending it, the citizens of New York have reason to be proud that such a trial could proceed without one word of acerbity, without one expression of angry feeling, or one improper exhibition of popular sentiment. At the same time, as an American citizen, loyal to the Union,--one who has never recognized as his country any other than the United States of America; who has known and loved his country by that name, and will so continue to know and love it to the end of his existence,--I deeply regret that, for any purpose of public policy, it has been deemed judicious to try any of these "piratical" cases, as they are denominated, at this particular juncture. I am not to assume that good reasons for such a proceeding have not in some quarters been supposed to exist; and I certainly have no right to complain of the officers of the law, charged with a high duty, who bring to trial, in the usual course, persons charged with crime. I have not a word to say against my friend the District Attorney, for whom I feel a respect I am happy to express; nor against his learned associate, Mr. Evarts, for whom I have high regard; nor our brother Blatchford, who always performs the largest amount of labor with the smallest amount of ostentation. Still I regret the occurrence of this trial at a time when war agitates our country; for, apart from all theories of publicists, all opinions of lawyers, for you or me to say that there is not a war raging between two contending forces within our territory, is to insult the common sense of mankind. A war carried on for what? What is to be its end, gentlemen of the Jury? This war to which you, like myself, and all classes and all denominations of the North have given a cheerful and vigorous support--pouring out treasure and blood as freely as water--what is it for? Not to look at the result which must come out of it is folly; and it is the folly that pervades the whole American people. Suppose it were now announced that the entire Southern forces had fled in precipitate retreat before our advancing hosts, and that the American flag waved over every inch of American soil--what then? Are we fighting to subjugate the South in the sense in which an emperor would make war upon a rebellious province? Is that the theory? Are we fighting to compel the seceded States to remain in the Union against their will? And do we suppose such a thing practicable? Are we fighting simply to regain the property of the Federal Government of which we have been despoiled in the Southern States? Or are we fighting with a covert and secret intention, such as I understand to have been suggested by an eloquent and popular divine, in a recent address to a large public audience, some of them, like himself, from the Bay State, "that Massachusetts understands very well what she is fighting for"? Is it to effect the abolition of slavery all over the territory of the United States? I will do the Administration the justice to say that, so far as it has given the country any statement of its design in prosecuting the war, it has repelled any such object as negro emancipation. Who can justify the absurd aspect presented by us before the enlightened nations of the Old World, when they find one commander in our army treating slaves as contraband of war; another declaring that they belong to their masters, to whom he returns them; and another treating them all as free. I am an American, and feel the strongest attachment to my country, growing out of affection and duty; but I cannot see that we present before the world, in carrying on this war, anything like a distinct and palpable theory. But I tell you, and I stand upon that prophecy, as embodying all the little intelligence I possess, that if it be a war for any purposes of mere subjugation--that if it be for the purpose of establishing a dictatorship, or designedly waged for the emancipation of all the slaves, our people never will sustain it at the North. (Applause, which was checked by the Court.)

You will see presently, gentlemen, why I have deemed it necessary, at the very outset, to speak thus of what I call a state of civil war,--a condition which, if the learned Judges on the bench, in their charge to you, shall, as matter of law, declare to have existed, then this commission, under which the acts charged in the indictment were perpetrated, forms an absolute legal protection to the accused. Whether such a war exists, is one of the great questions with which the Jury have to deal; and I understand that the Jury _have_ to deal with this case--that they are not mere _automata_--that we have not had twelve men sitting in the jury-box for several days as puppets.

The great question for this Jury, absorbing all others, is, Have the twelve men named in the indictment, or has either of them, committed piracy, and thus incurred the penalty of death? It is a very interesting inquiry, gentlemen,--interesting in its historical, national, judicial, and political aspects,--interesting, too, because of the character and description of the accused. We discover that eight of them are foreigners, who have never been naturalized, and do not judicially come under the designation of citizens of the United States. Four of them are what we call natural-born citizens--two from the State of South Carolina, one from North Carolina, and one from Philadelphia. Two of them are in very feeble health; and I am sorry to say, some are not yet of middle age--some quite young, including Passalaigue, who has not yet attained his eighteenth year. I know my fellow-citizens of New York quite well enough to be quite sure that even if there had been any exhibition of popular prejudice, or feeling, or fury, with a view to disturb their judgments in the jury-box, the sympathy that arises properly in every well-constituted heart and mind, in favor of the accused, their relatives and friends, would overcome any such wrong impulse as might be directed to deprive them of that fair trial which, up to this point, they have had, and which, to the end, I know they will have.

Are they pirates and robbers? Have they incurred the penalty of death? Gentlemen, it is a little curious, that during the present reign of Victoria, a statute has been passed in England softening the rigor of the punishment for piracy, and subjecting the person found guilty to transportation, instead of execution, unless arms have been used in the spoliation, or some act done aggravating the offence. I have used the term "pirate," and the term "robber." There is another which, strangely enough, was employed by a Judge of the Vice Admiralty Court in South Carolina, in 1718, who calls these pirates and robbers, as we designate them, "sea thieves;" and I am very glad to find that phrase, because the words robber and pirate have fallen into mere terms of opprobrium; while the word "thief" has a significance and force understood by every man. You know what you thought a "thief" to be, when a boy, and how you despised him; and you are to look at each prisoner mentioned in this indictment, and say, on your consciences as men, in view of the facts and of the law, as expounded by the learned Court, do you consider that the word "thief" can be applied to any one of the men whom I have the honor to assist in defending? That is the great practical question which you are to decide.

[Here Mr. Brady briefly alluded to the question of jurisdiction as already discussed fully enough, and made some observations on the Hicks case, which had been referred to. He then continued as follows:]

This indictment charges two kinds of offence: Piracy, as that crime existed by the _law of nations_,--which law may be said to have been incorporated into the jurisprudence of the United States,--and Piracy _under the ninth section of the Act of 1790_. Piracy by the law of nations is defined by Wheaton, the great American commentator on international law, on page 184 of his treatise on that subject. "_Piracy_" says that eminent gentleman, who was an ornament to the country which gave him birth, and an honor to my profession, "_Piracy is defined by the text writers, to be the offence of depredating on the seas_ WITHOUT BEING AUTHORIZED BY ANY SOVEREIGN STATE, _or with commissions from_ DIFFERENT SOVEREIGNS _at war with_ EACH OTHER." The last part of the definition you need not trouble yourselves about as I only read it so as not to quibble the text. I will read the passage without the latter part. "_Piracy is defined to be the offence of depredating on the seas_ WITHOUT BEING AUTHORIZED BY ANY SOVEREIGN STATE." Other definitions will hereafter be suggested.

This leads me to remark upon certain judicial proceedings in Philadelphia against men found on board the Southern privateer "Jefferson Davis," and who were convicted of piracy for having seized and sent away as a prize the "Enchantress." Now my way of dealing with juries is to act with them while in the jury box as if they were out of it. I never imitate that bird referred to by the gentleman who preceded me--the ostrich, which supposes that when he conceals his head his whole person is hidden from view. I know, and every gentleman present knows, that a jury in the city of Philadelphia has convicted the men arrested on the "Jefferson Davis," of piracy. We are a nation certainly distinguished for three things--for newspapers, politics, and tobacco. I do not know that the Americans could present their social individualities by any better signs. Everybody reads the papers, and everybody has a paper given him to read. The hackman waiting for his fare consumes his leisure time perusing the paper. The apple-woman at her stall reads the paper. At the breakfast table, the dinner table, and the supper table, the paper is daily read. I sometimes take my meals at Delmonico's, and have there observed a gentleman who, while refreshing himself with a hasty meal, takes up the newspaper, places it against the castor, and eats, drinks and reads all at the same time. Gentlemen, I say that a people so addicted to newspapers must have ascertained that the men in Philadelphia were convicted; and how the jury could have done otherwise upon the charge of Justices Grier and Cadwalader I am incapable of perceiving. I have the pleasure of knowing both those eminent Judges. My acquaintance with Judge Cadwalader is slight, it is true, but of sufficient standing to ensure him the greatest respect for his learning and character. With Judge Grier the acquaintance is of longer duration; and as he has always extended to me in professional occupations before him courtesies which men never forget, I cannot but speak of him with affection. I have nevertheless something to say about the law laid down by those Judges on that case. No question on the merits was left to the jury, as I understand the instructions. The jurymen were told that _if they believed the testimony, then the defendants were guilty of piracy_. Now, as to the aspect of this case in view of piracy by the law of nations, the question for the jury is, in the first place, _Did these defendants, in the act of capturing the "Joseph," take her by force, or by putting the captain of her in fear_, WITH THE INTENT TO STEAL HER? That is the question as presented by the indictment, and in order to convict under either of the first five counts, the jury must be satisfied, beyond all reasonable doubt, _that in attacking the "Joseph" the defendants were actuated_ as described in the indictment, from which I read the allegation that they, "with _force_ and _arms, piratically, feloniously, and violently_, put the persons on board in _personal fear and danger of their lives_, and in seizing the vessel did, as aforesaid, _seize_, ROB, STEAL and carry her away." In this the indictment follows the law. Another question of fact, in the other aspect of the case, under the ninth section of the act of 1790, will be, substantially, _whether the existence of a civil war is shown_. That involves inquiry into the existence of the Confederate States as a _de facto_ Government or as a _de jure_ Government.

The _animus furandi_, so often mentioned in this case, means nothing but the intent to _steal_. The existence of that intent must be found in the evidence, before these men can be called pirates, robbers, or thieves; and whether such intent did or did not exist, is a question entirely for you.

To convict under the ninth section of the Act of 1790, the prosecution must prove that the defendants, being at the time of such offence _citizens of the United States of America_, did something which by that Act is prohibited. You will bear in mind that the Act of 1790, in its ninth section, has no relation except to American-born citizens, and as to that part of the indictment the eight foreigners charged are entirely relieved from responsibility.

Well, on page 104, 5 Wheaton, in the case of _The United States_ vs. _Smith_, the Jury found a special verdict, which I will read to illustrate what is piracy and what is not piracy.

[Here Mr. Brady commented on the case referred to, saying, amongst other things,--]

According to the evidence in the case of Smith, the defendants were clearly pirates. They had no commission from any Government or Governor, and were mere mutineers, who had seized a vessel illegally, and then proceeded to seize others without any pretence or show of authority, but with felonious intent. For these acts they were justly convicted.

Now, we say, that this felonious intent as charged against these defendants, must be proved. But what say my learned friends opposed? Why (in effect), that it need not be proved to a Jury by any evidence, but must be _inferred_, as a matter of law, or by the Jury first, from the presumption that every man knows the law; and these men, in this view, are pirates--though they _honestly believed that there was a valid Government called the Confederate States_, and that they _had a right to act under it_--because they _ought_ to have known the law; _ought_ to have known that, although the Confederate States had associated for the purpose of forming, yet they had not _completed_ a Government; _ought_ to have known that, though Baker had a commission signed by Jefferson Davis, the so-called President of the Confederate States, under which he was authorized to act as a privateer, yet the law did not recognize the commission.

There is, indeed, a rule of law, said to be essential to the existence of society, that all men must be taken to know the law, except, I might add, lawyers and judges, who seldom agree upon any proposition until they must.

The whole judicial system is founded upon the theory that judges will err about the law, and thus we have the Courts of review to correct judicial mistakes and to establish permanent principles. Yet it is true that every man is presumed to know the law; and the native of Manilla (one of the parties here charged), _Loo Foo_, or whatever his name may be, who does not, probably, understand what he is here for, is presumed to know the law as well as one of us. If he did not know it better, considering the differences between us, he might not be entitled to rate high as a jurist. One of my brethren read to you an extract from a recent German work, which presents a different view of this subject as relates to foreign subjects in particular cases. I was happy to hear MR. MAYER on the law of this case, more particularly as he declared himself to be a foreign-born citizen; for it is one of the characteristics of this Government--a characteristic of our free institutions--that no distinction of birth or creed is permitted to stand in the way of merit, come from what clime it may.

There is another presumption. Every man is presumed to _intend the natural consequences of his own acts_. Now, what are the natural consequences of the acts done by these defendants? The law on this point is illustrated and applied with much effect in homicide cases. Suppose a man has a slight contention with another, and one of the combatants, drawing a dagger, aims to inflict a slight wound, say upon the hand of the other; but, in the struggle, the weapon enters the heart, and the injured party dies. The man is arrested with the bloody dagger in his hand, the weapon by which death was unquestionably occasioned; and the fact being established that he killed the deceased, the law will presume the act to be murder, and cast upon the accused the burthen of showing that it was something other than murder. I hope, gentlemen, to see the day when this doctrine of law will no longer exist. I never could understand how the presumption of murder could be drawn from an act equally consistent with murder, manslaughter, justifiable or excusable homicide, or accident, but such is the law, and it must be respected.

I say, that neither of the defendants intended, as the ordinary and natural consequence of his act, _to commit piracy or robbery_, though what he did might, in law, amount to such an offence. He intended to take legal prizes, and no more to rob than the man in the case I supposed designed to kill.