Part 32

The natural consequences of his acts were, to take the vessel and send her to a port to be adjudicated upon as a prize. Now, I state to my learned friends and the Court this proposition--that though a _legal presumption_ as to intent might have existed in this case if the prosecution had proved merely the forcible taking, yet if, in making out a case for the Government, any fact be elicited which shows that the actual intent was different from what the law in the absence of such fact would imply, the presumption is gone. And when the prosecution made their witness detail a conversation which took place between Captain Baker and the Captain of the Joseph, with reference to the authority of the former to seize the vessel, and when you find that Captain Baker asserted a claim of right, that overcomes the presumption that he despoiled the Captain of the Joseph with an intent to steal. The _animus furandi_ must, in this case, depend on something else than presumption. I will refer you for more particulars of the law on this point, to _1 Greenleaf on Evidence_, sections 13 and 14, and I make this citation for another purpose. When an act is in itself illegal, sometimes, if not in the majority of cases, the law affixes to the party the intent to perpetrate a legal offence. But this is not the universal rule. In cases of procuring money or goods under false pretences, where the intent is the essence of the crime, the prosecution must establish the offence, not by proving alone the act of receiving, but by showing the act and intent; so both must be proved here. Now, I ask, has the prosecution entitled itself to the benefit of any presumption as to intent? What are the facts--_the conceded facts_? Baker, and a number of persons in Charleston, did openly and notoriously select a vessel called the "Savannah," then lying in the stream, and fitted her out _as a privateer_. Baker, in all of these proceedings, acted under the authority of a commission signed by Jefferson Davis, styling and signing himself President of the Confederate States of America. Baker and his companions then went forth as privateersmen, and in no other capacity, for the purpose of despoiling the commerce of the United States, and _with the strictest injunction not to meddle with the property of any other country_. The instructions were clear and distinct on this head, as you know from having heard them read. They went to sea, and overhauled the Joseph; gave chase with the American flag flying--one of the ordinary devices or cheats practiced in naval warfare; a device frequently adopted by American naval commanders to whose fame no American dare affix the slightest stigma. On nearing the Joseph, the Savannah showed the secession flag, and Baker requested Captain Meyer to come on board with his papers. The Captain asked by what authority, and received for answer: "The authority of the Confederate States." The Captain then went on board with his papers, when Baker, helping him over the side, said: "I am very sorry to take your vessel, but I do so in retaliation against the United States, with whom we are at war." Baker put a prize crew on board the Joseph, and sent her to Georgetown; the Captain he detained there as a prisoner. She was then duly submitted for judgment as a prize. These are the facts upon which they claim that piracy at common law is established.

My learned associate, Mr. Larocque, cited a number of cases to show that though a man might take property of another, and appropriate it to his own use, yet if he did so under color of right, under a _bona fide_ impression that he had authority to take the property, he would only be a trespasser; he would have to restore it or pay the value of it, but he could not be convicted of a crime for its conversion.

Let me state a case. You own a number of bees. They leave your land, where they hived, and come upon mine, and take refuge in the hollow of a tree, where they deposit their honey. They are your bees, but you cannot come upon my land to take them away; and though they are in my tree, I cannot take the honey. Such a case is reported in our State adjudications. But, suppose that I did take the bees and appropriate the honey to my own use: I might be unjustly _indicted_ for larceny, because I took the property of another, but I am not, consequently, a thief in the eye of the law; the absence of intent to steal would ensure my acquittal.

That is one illustration. I will mention one other, decided in the South, relating to a subject on which the South is very strict and very jealous. A slave announced to a man his intention to escape. The man secreted the slave for the purpose of aiding his escape and effecting his freedom. He was indicted for larceny, on the ground that he exercised a control over the property of the owner against his will. The Court held that the object was not to steal, and he could not be convicted. In _Wheaton's Criminal Proceedings_, page 397, this language will be found, and it is satisfactory on the point under discussion.

"There are cases where taking is no more than a trespass: Where a man takes another's goods _openly before him_, or where, having otherwise than by _apparent robbery_, possessed himself of them, he _avows the fact_ before he is questioned. This is _only a trespass_."

Now all these principles are familiar and simple, and do not require lawyers to expound them, for they appeal to the practical sense of mankind. _It is certainly a most lamentable result of the wisdom of centuries, to place twelve men together and ask them, from_ FICTIONS _or_ THEORIES _to say, on oath, that a man is a thief, when every one of them_ KNOWS THAT HE IS NOT. If any man on this Jury thinks the word pirate, robber or thief can be truly applied to either of these defendants, I am very sorry, for I think neither of them at all liable to any such epithet.

But, suppose that the intent is to be inferred from the act of seizing the Joseph, and the defendants must be convicted, unless justified by _the commission issued for Captain Baker_; let us then inquire as to the effect of that commission. We say that it _protects the defendants against being treated as pirates_. Whether it does, or not, depends upon the question whether the Confederate States have occupied such a relation to the United States of America that they might adopt the means of retaliation or aggression recognized in a state of war.

It is our right and duty, as advocates, to maintain that the _Confederate Government was so situated_; and to support the proposition by reference to the political and judicial history and precedents of the past, stating for these men the principles and views which they and their neighbors of the revolting States insist upon; our personal opinions being in no wise called for, nor important, nor even proper, to be stated at this time and in this place.

If it can be shown that the Confederate States occupy the same position towards the Government of the United States that the thirteen revolted Colonies did to Great Britain in the war of the Revolution, then these men cannot be convicted of piracy.

I do not ask you to decide that the Southern States had the _right_ to leave the Union, or secede, or to revolt--to set on foot an insurrection, or to perfect a rebellion. That is not the question here. I will place before the Jury such views of law and of history as bear upon the case--endeavoring not to go over the ground occupied by my associates. I will refer you to a small book published here in 1859, entitled, "The History of New York from the Earliest Time," a very reliable and authentic work. In this book I find a few facts to which I will call your attention, one of which may be unpleasant to some of our friends from the New England States, for we find that New York, so far as her people were concerned--exclusive of the authorities--was in physical revolt against the parent Government long before our friends in New England, some of whom often feel disposed to do just what they please, but are not quite willing to allow others the same privilege. I will refer to it to show you what was the condition of things long before the 4th of July, 1776, and to show that, though we now hurl our charges against these men as pirates,--who never killed anybody, never tried to kill anybody,--who never stole and never tried to steal,--yet the men of New York city who committed, under the name of "Liberty Boys," what England thought terrible atrocities, in New York, were never touched by justice--not even so heavily as if a feather from the pinion of the humming bird had fallen upon their heads. I find that, about the year 1765, our people here began to grumble about the taxes and imposts which Great Britain levied upon us. And you know, though the causes of the Revolutionary war are set forth with much dignity in the Declaration of Independence, the contest originated about taxes. That was the great source of disaffection, directing itself more particularly to the matter of tea, and which led to the miscellaneous party in Boston, at which there were no women present, however, and where salt water was used in the decoction. I find that the governor of the city had fists, arms, and all the means of aggression at his command; but at length, happily for us, the Government sent over a young gentleman to rule us (Lord Monckford), who, when he did come, appears to have been similar in habits to one of the accused, who is described as being always idle. The witness for the prosecution explained that separate posts and duties were assigned to each of the crew of the Savannah; one fellow, he said, would do nothing. But he will be convicted of having done a good deal, if the prosecution prevail. A state of rebellion all this time and afterwards existed in this particular part of the world, until the British came and made themselves masters of the city. In the course of the acts then committed by the citizens, and which the British Government called an insurrection, a tumultuous rebellion and revolution, they offered, or it was said they offered, an indignity to an equestrian statue of George III. The British troops, in retaliation, and being grossly offended at the conduct of Pitt, who had been a devoted friend of the Colonists, mutilated the statue of him which stood on Wall street. The remains of the statue are still with us, and can be seen at the corner of West Broadway and Franklin street, where it is preserved as a relic of the past--a grim memento of the perfect absurdity of charging millions of people with being all pirates, robbers, thieves, and marauders.

When the British took possession of this city, they had at _one time in custody five thousand persons_. That was before any formal declaration of independence--before the formation of a Government _de jure_ or _de facto_--and yet did they ever charge any of the prisoners with being robbers? Not at all. Was this from any kindness or humane spirit? Not at all: for they adopted all means in their power to overcome our ancestors. The eldest son of the Earl of Chatham resigned his commission, because he would not consent to fight against the colonies. The Government did not hesitate to send to Germany for troops. They could not get sufficient at home. The Irish would not aid them in the fight. The British did not even hesitate to employ Indians; and when, in Parliament, the Secretary of State justified himself, saying that they had a perfect right to employ "all the means God and nature" gave them, he was eloquently rebuked. Even, with all this hostility, such a thing was never thought of as to condemn men, when taken prisoners, and hold them outside that protection which, according to the law of nations, should be extended to men under such circumstances, even though in revolt against the Government.

In October, 1774, the King, in his Message to Parliament, said that a most daring spirit of resistance and disobedience to the laws existed in Massachusetts, and was countenanced and encouraged in others of his Colonies.

Now, I want you to keep your minds fairly applied to the point, on which the Court will declare itself, as to whether I am right in saying, that the day when that Message was sent to Parliament the Colonies occupied towards the old Government a position similar to that of the Confederate States in their hour of revolt to the United States. But we will possibly see that the Confederate States occupy a stronger position.

In the course of the discussion which ensued upon the Message, the famous Wilkes remarked: "Rebellion, indeed, appears on the back of a flying enemy, but revolution flames on the breastplate of the victorious warrior."

If an illegal assemblage set itself up in opposition to the municipal Government, it is a mere insurrection, though ordinary officers of the law be incapable of quelling it, and the military power has to be called out. That is one thing. But when a _whole State_ places itself in an attitude of hostility to the other States of a Confederacy, assumes a distinct existence, and has the power to maintain independence, though only for a time, that is quite a different affair.

We remember how beautifully expressed is that passage of the Irish poet, so familiar to all of us, and especially to those who, like myself, coming from Irish ancestry, know so well what is the name and history of rebellion:

"Rebellion--foul, dishonoring word, Whose wrongful blight so oft hath stained The holiest cause that tongue or sword Of mortal ever lost or gained! How many a spirit born to bless Has sunk beneath thy withering bane, Whom but a day's--an hour's success, Had wafted to eternal fame!"

A remarkable instance, illustrating the sentiment of this passage, is found in the history of that brave man, emerging from obscurity, stepping suddenly forth from the common ranks of men, whose name is so generally mentioned with reverence and love, and who so lately freed Naples from the rule of the tyrant. This brave patriot was driven from his native land, after a heroic struggle in Rome. History has recorded how he was followed in this exile by a devoted wife, who perished because she would not desert her husband; and how he came to this country, where he established himself in business until such time as he saw a speck of hope glimmer on the horizon over his lovely and beloved native land. Then he went back almost alone. Red-shirted, like a common toiling man, he gathered round him a few trusty followers who had unlimited confidence in him as a leader, and accomplished the revolution which dethroned the son of Bomba, and placed Victor Emanuel in his stead. You already know that I speak of Garibaldi. And yet, Garibaldi, it seems, should have been denounced as a pirate, had the sea been the theatre of his failure; and a robber, had he been unsuccessful upon land!

What do you think an eminent man said, in the British Parliament, about the outbreak of our Revolution, and the condition of things then existing in America? "_Whenever oppression begins, resistance becomes lawful and right._" Who said that? The great associate of Chatham and Burke--Lord Camden. At that time Franklin was in Europe, seeking to obtain a hearing before a committee of Parliament in respect to the grievances of the American people. It was refused.

The Lords and Commons, in an address to the King, declared in express terms, that a "REBELLION _actually existed in_ MASSACHUSETTS;" and yet, in view of all that, no legal prosecution of any rebel ever followed. So matters continued till the war effectively began, Washington having been appointed Commander-in-chief. Then some Americans were taken by the British and detained as prisoners. Of this Washington complained to General Gage, then in command of the British army. Gage returned answer that he had treated the prisoners only too kindly, seeing that they were rebels, and that "their lives, by the law of the land, were destined for the cord." Yet not one of them so perished.

In view of these things, even so far as I have now advanced; in view of the sacrifices of the Southern Colonies in the Revolution; in view of the great struggle for independence, and the great doctrine laid down, that, whenever oppression begins, resistance becomes lawful and right,--is it possible to forget the history of the past, and the great principles which gleamed through the darkness and the perils of our early history? Are we to assert that the Constitution establishing our Government is perfect in all its parts, and stands upon a corner stone equivalent to what the globe itself might be supposed to rest on, if we did not know it was ever wheeling through space? Is all the history of our past, its triumphs and reverses, and the glorious consummation which crowned the efforts of the people, all alike to be thrown aside now, upon the belief that we have established a Government so perfect, and a Union so complete, that no portion of the States can ever, under any circumstances, secede, or revolt, or dispute the authority of the others, without danger of being treated as pirates and robbers? The Declaration of Independence has never been repudiated, I believe, and I suppose I have a right to refer to it as containing the political creed of the American people. I do not know how many people in the old world agree with it, and a most eminent lawyer of our own country characterized the maxims stated at its commencement as "glittering generalities." But I believe the American people have never withdrawn their approbation from the principles and doctrines it declares. Among those we find the self-evident truth, that man has an inalienable right to life, liberty, and the pursuit of happiness; that it is to secure these rights that Governments are instituted among men, deriving their just powers from the consent of the governed; and that whenever any form of Government becomes destructive of those ends, it is right and patriotic to alter and abolish it, and to institute a new Government, laying its foundations on such principles, and conferring power in such a form, as to them may seem most likely to secure their safety and happiness. Is this a mockery? Is this a falsehood? Have these ideas been just put forward for the first time? There has been a dispute among men as to who should be justly denominated the author of this document. The debate may be interesting to the historian; but these principles, though they are embodied in the Constitution, were not created by it. They have lived in the hearts of man since man first trod the earth. I can imagine the time, too, when Egypt was in her early glory, and in fancy see one of the poor, miserable wretches, deprived of any right of humanity, harnessed, like a brute beast, to the immense stone about being erected in honor of some monarch, whose very name was destined to perish. I can imagine the degraded slave pausing in his loathsome toil to delight over the idea that there might come a time when the meanest of men would enjoy natural rights, under a Government of the multitude formed to secure them.

Now, what says _Blackstone_ (_1st vol., 212_), the great commentator on the law of England, when speaking of the revolution which dethroned James II.: "_Whenever a question arises between the society at large and any magistrate originally vested with powers originally delegated by that society, it must be decided by the voice of the society itself. There is not upon earth any other tribunal to resort to._"