Kitabı oku: «Trial of the Officers and Crew of the Privateer Savannah, on the Charge of Piracy, in the United States Circuit Court for the Southern District of New York», sayfa 36

CHARGE OF JUDGE NELSON

Judge Nelson then proceeded to deliver the Charge of the Court, in which Judge Shipman, his associate, concurred:

The first question presented in this case is, whether or not the Court has jurisdiction of the offence? This depends upon a clause of the 14th section of the Act of Congress of 1825, as follows: "And the trial of all offences which shall be committed upon 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 be first brought." The prisoners, who were captured by an armed vessel of the United States, off Charleston, South Carolina, were ordered by the commander of the fleet to New York for trial; but the Minnesota, on board of which they were placed, was destined for Hampton Roads, and it became necessary, therefore, that they should be there transferred to another vessel. They were thus transferred to the Harriet Lane, and, after some two days' delay, consumed in the preparation, they were sent on to this port, where they were soon after arrested by the civil authorities. It is insisted, on behalf of the prisoners, that inasmuch as Hampton Roads, to which place the prisoners were taken and transferred to the Harriet Lane, was within the Eastern District of the State of Virginia, the jurisdiction attached in that District, as that was the first District into which the prisoners were brought. The Court is inclined to think that the circumstances under which the Minnesota was taken to Hampton Roads, in connection with the original order by the commander that the prisoners should be sent to this District for trial, do not make out a bringing into that District within the meaning of the statute. But we are not disposed to place the decision on this ground. The Court is of opinion that the clause conferring jurisdiction is in the alternative, and that jurisdiction may be exercised either in the District in which the prisoners were first brought, or in that in which they were apprehended under lawful authority for the trial of the offence. This brings us to the merits of the case.

The indictment under which the prisoners are tried contains ten counts. The first five are framed upon the third section of the Act of Congress of 1820, which is as follows: "That, if any person shall, upon the high seas, commit the crime of robbery, in or upon any ship or vessel, or upon any of the ship's company of any ship or vessel, or the lading thereof, such person shall be adjudged to be a pirate," and, upon conviction, shall suffer death. The five several counts charge, in substance, that the prisoners did, upon the high seas, enter in and upon the brig Joseph, the same being an American vessel, and upon the ship's company, naming them; and did, then and there, piratically, feloniously, and violently make an assault upon them, and put them in personal fear and danger of their lives; and did, then and there, the brig Joseph, her tackle and apparel, her lading (describing it), which were in the custody and possession of the master and crew, from the said master and crew and from their possession, and in their presence, and against their will, violently, piratically and feloniously seize, rob, steal, take and carry away, against the form of the statute, &c. There are some variances in the different counts, but it will not be material to notice them. It will be observed that this provision of the Act of Congress prescribing the offence applies to all persons, whether citizens or foreigners, making no distinction between them, and is equally applicable, therefore, to all the prisoners at the bar. The remaining five counts are framed under the 9th section of the Act of Congress of 1790, which is as follows: "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 sea, 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 conviction, shall suffer death. These five counts charge that the prisoners are all citizens of the United States, and that they committed the acts set forth in the previous five counts, on pretence of authority from one Jefferson Davis.

As the provision of the Act of Congress upon which these counts are framed is applicable only to citizens and not to foreigners, but four of the prisoners can be brought within it, as the other eight are admitted to be foreigners. The four are Baker, Howard, Passalaigue, and Harleston. The distinction between the provisions of the third section of the Act of 1820 and the ninth section of 1790, and the counts in the indictment founded upon them, arises out of a familiar principle of international law, and which is, that in a state of war existing between two nations, either may commission private armed vessels to carry on war against the enemy on the high seas, and the commission will afford protection, even in the judicial tribunals of the enemy, against a charge of the crime of robbery or piracy. Such a commission would be a good defence against an indictment under the third section of 1820, by force of the above rule of international law. The ninth section of the Act of 1790 changes the rule as it respects citizens of the United States who may take service under the commission of the private armed vessels of the enemy of their country. It declares, as it respects them, the commission shall not be admitted as a defence; and, as this legislation relates only to our own citizens, and prescribes a rule of action for them, and not as it respects the citizens or subjects of other countries, we do not perceive that any exception can be taken to the Act as unconstitutional or otherwise. But, upon the view the Court has taken of the case, it will not be necessary to trouble you with any remarks as it respects this ninth section, nor in respect to the several counts framed under it, but we shall confine our observations to a consideration of the third section of the Act of 1820. There can be no injustice to the prisoners in thus restricting the examination, as any authority for the perpetration of the acts charged in the indictment, founded upon the Act of 1820, will be equally available to them. Nor can there be any injustice to the prosecution, for unless the crime of robbery, as prescribed in the Act of 1820, is established against the four prisoners, none could be under the ninth section of the Act of 1790. The crime in the two Acts is the same for all the purposes of this trial. The only difference is the exclusion of a particular defence under the latter. Now, the crime charged is robbery upon an American vessel on the high seas, and hence it is necessary that we should turn our attention to the inquiry, what constitutes this offence? It has already been determined by the highest authority—the Supreme Court of the United States—that we must look to the common law for a definition of the term robbery, as it is to be presumed it was used by Congress in the Act in that sense, and, taking this rule as our guide, it will be found the crime consists in this: the felonious taking of goods or property of any value from the person of another, or in his presence, against his will, by violence, or putting him in fear. The taking must be felonious—that is, taking with a wrongful intent to appropriate the goods of another. It need not be a taking which, if upon the high seas, would amount to piracy, according to the law of nations, or what, in some of the books, is called general piracy or robbery. This is defined to be a forcible depredation upon property upon the high seas without lawful authority, done animo furandi—that is, as defined in this connection, in a spirit and intention of universal hostility.

A pirate is said to be one who roves the sea in an armed vessel, without any commission from any sovereign State, on his own authority, and for the purpose of seizing by force and appropriating to himself, without discrimination, every vessel he may meet. For this reason, pirates, according to the law of nations, have always been compared to robbers—the only difference being that the sea is the theatre of the operations of one and the land of the other. And, as general robbers and pirates upon the high seas are deemed enemies of the human race—making war upon all mankind indiscriminately—the crime being one against the universal laws of society—the vessels of every nation have a right to pursue, seize, and punish them. Now, if it were necessary, on the part of the Government, to bring the crime charged in the present case against the prisoners within this definition of robbery and piracy, as known to the common law of nations, there would be great difficulty in so doing either upon the evidence, or perhaps upon the counts, as charged in the indictment—certainly upon the evidence. For that shows, if anything, an intent to depredate upon the vessels and property of one nation only—the United States—which falls far short of the spirit and intent, as we have seen, that are said to constitute essential elements of the crime. But the robbery charged in this case is that which the Act of Congress prescribes as a crime, and may be denominated a statute offence as contra-distinguished from that known to the law of nations. The Act, as you have seen, declares the person a pirate, punishable by death, who commits the crime of robbery upon the high seas against any ship or vessel, or upon any ship's company of any ship or vessel, &c.; and the interpretation given to these words applies the crime to the case of depredation upon an American vessel or property on the high seas, under circumstances that would constitute robbery, if the offence was committed on land, and which is, according to the language of Blackstone, the felonious and forcible taking from the person of another of goods or money, to any value, by violence or putting him in fear. The felonious intent which describes the state of mind as an element of the offence, is what is called in technical language animo furandi, which means an intent of gaining by another's loss, or to despoil another of his goods lucri causa, for the sake of gain. Now, if you are satisfied, upon the evidence, that the prisoners have been guilty of this statute offence of robbery upon the high seas, it is your duty to convict them, though it may fall short of the offence as known to the law of nations. We have stated what constitute the elements of the crime, and it is your province to apply the facts to them, and thus determine, whether or not the crime has been committed. That duty belongs to you, and not to the Court. We have said that, in a state of war between two nations, the commission to private armed vessels from either of the belligerents affords a defence, according to the law of nations, in the Courts of the enemy, against a charge of robbery or piracy on the high seas, of which they might be guilty in the absence of such authority; and under this principle it has been insisted, by the learned counsel for the prisoners, that the commission of the Confederate States, by its President, Davis, to the master and crew of the Savannah, which has been given in evidence, affords such defence.

In support of this position, it is claimed that the Confederate States have thrown off the power and authority of the General Government; have erected a new and independent Government in its place, and have maintained it against the whole military and naval power of the former; that it is a Government, at least de facto, and entitled to the rights and privileges that belong to a sovereign and independent nation. The right, also, constitutional or otherwise, has been strongly urged, and the law of nations and the commentaries of eminent publicists have been referred to as justifying the secession or revolt of these Confederate States. Great ability and research have been displayed by the learned counsel for the defence on this branch of the case. But the Court do not deem it pertinent, or material, to enter into this wide field of inquiry. This branch of the defence involves considerations that do not belong to the Courts of the country. It involves the determination of great public, political questions, which belong to departments of our Government that have charge of our foreign relations—the legislative and executive departments; and, when decided by them, the Court follows the decision; and, until these departments have recognized the existence of the new Government, the Courts of the nation cannot. Until this recognition of the new Government, the Courts are obliged to regard the ancient state of things remaining as unchanged. This has been the uniform course of decision and practice of the Courts of the United States. The revolt of the Spanish Colonies of South America, and the new Government erected on separating from the mother country, were acknowledged by an Act of Congress, on the recommendation of the President, in 1822. Prior to this recognition, and during the existence of the civil war between Spain and her Colonies, it was the declared policy of our Government to treat both parties as belligerents, entitled equally to the rights of asylum and hospitality; and to consider them, in respect to the neutral relation and duties of our Government, as equally entitled to the sovereign rights of war as against each other. This was, also, the doctrine of the Courts, which they derived from the policy of the Government, following the political departments of the Government as it respects our relations with new Governments erected on the overthrow of the old. And if this is the rule of the Federal Courts, in the case of a revolt and erection of a new Government, as it respects foreign nations, much more is the rule applicable when the question arises in respect to a revolt and the erection of a new Government within the limits and against the authority of the Government under which we are engaged in administering her laws. And, in this connection, it is proper to say that, as the Confederate States must first be recognized by the political departments of the mother Government, in order to be recognized by the Courts of the country, namely, the legislative and executive departments, we must look to the acts of these departments as evidence of the fact. The act is the act of the nation through her constitutional public authorities. These, gentlemen, are all the observations we deem necessary to submit to you. The case is an interesting one, not only in the principles involved, but to the Government and the prisoners at the bar. It has been argued with a research and ability in proportion to its magnitude, both in behalf of the prisoners and the Government; and we do not doubt, with the aid of these arguments, and the instructions of the Court, you will be enabled to render an intelligent and just verdict in the case.

The Jury retired at twenty minutes after three o'clock.

At six o'clock they came into Court. Their names were called, and the inquiry made by the Clerk whether they had agreed upon their verdict. Their Foreman said they had not. One of the prisoners having felt unwell, had been removed from the close air of the Court-room, and some little delay occurred until he was brought in. Judge Nelson then said: "We have had a communication from one of the officers in charge of the Jury, from the Jury, as we understood, though it had no name signed to it. I would inquire whether the note was from the Jury?"

The Foreman: It was.

Judge Nelson: We would prefer that the Jurymen, or any of them who may be embarrassed with the difficulties referred to, should himself state the inquiry which he desires to make of the Court.

Mr. Powell, one of the Jurors, said that the question was, "whether, if the Jury believed that civil war existed, and had been so recognized by the act of our Government, or if the Jury believe that the intent to commit a robbery did not exist in the minds of the prisoners at the time, it may influence their verdict."

After consultation with Judge Shipman, Judge Nelson said: As it respects the first inquiry of the Juror—whether the Government has recognized a state of civil war between the Confederate States and itself—the instruction which the Court gave the Jury was, that this Court could not recognize a state of civil war, or a Government of the Confederate States, unless the legislative and executive Departments of the Government had recognized such a state of things, or the President had, or both; and that the act of recognition was a national act, and that we must look to the acts of these Departments of the Government as the evidence and for the evidence of the recognition of this state of things, and the only evidence. As it respects the other question—whether or not, if the Jury were of opinion, on the evidence, that these prisoners did not intend to commit a robbery on the high seas against the property of the United States, they were guilty of the offence charged—that is a mixed question of law and fact. The Court explained to you what constitutes the crime of robbery on the high seas, which was the felonious taking of the property of another upon the high seas by force, by violence, or putting them in fear of bodily injury, which, according to the law, is equivalent to actual force; and that the term felonious, as interpreted by the law and the Courts, was the taking with a wrongful intent to despoil the others of their property. These elements constitute the crime of robbery. Now, it is for you to take up the facts and decide whether the evidence in the case brings the prisoners within that definition. The Court will not encroach upon your province in these respects, but will confine itself to the definition of the law.

Another of the Jury—George H. Hansell—rose and said: One of the Jury—not myself—understood your honor to charge that there must be an intent to take the property of another for your own use.

Judge Nelson: No, I did not give that instruction. The Jury may withdraw.

The Jury again retired, and, as there was no probability of an agreement at half-past seven o'clock, the Court adjourned to eleven o'clock Thursday morning.

EIGHTH DAY

Oct. 31.

The Jury, who had been in deliberation all night, came into Court at twenty minutes past eleven o'clock. The names of the prisoners were called, and, on the Jury taking their seats—

The Clerk said: Gentlemen of the Jury, have you agreed on your verdict?

Foreman: No, sir.

The Court: Is there any prospect of your agreeing?

Foreman: I am sorry to say there is no prospect at all that we can come to an agreement.

After some consultation with Judge Shipman—

Judge Nelson inquired: Is the opinion expressed by the Foreman that of the other Jurymen?

Mr. Powell and Mr. Cassidy (Jurors) rose and responded in the affirmative.

Mr. Taylor further remarked: The prospect seems to be that way. So far as we have gone, there does not seem to be any idea of coming together at all. The only idea of coming to a judgment would be that some of the Jurors, we think, do not understand the charge. They think they do, and we think they do not. It is for them to say, or not, whether they understand the charge correctly.

To this implied invitation to the Jurymen to express themselves there was no response.

Judge Nelson: If the Court supposed that there would be any fair or reasonable prospect of your coming to an agreement, we would be inclined to direct you to retire and pursue your consultations further. You have now been together about twenty hours, and unless there is some expression from the Jury that there is a possibility or probability that they may agree, we are inclined not to detain you longer.

Mr. Costello (a Juror): With respect to the Court, I think there is no likelihood of our coming to an agreement.

Foreman: If the Court will allow me, after the instructions we got yesterday evening, at the instance of many of the Jury, we stand just in the same position we stood when we left your presence the first time.

Judge Nelson: The Court, then, will discharge you, gentlemen.

The Court entered an order remanding the prisoners, and, as they were about being removed—

Mr. E. Delafield Smith (District Attorney) said: I desire, if the Court please, to move, in the case of the Savannah privateers, their trial at the earliest day consistent with the engagements of the Court, and of the counsel engaged for the defence; and I would name a week from next Monday, as it will, probably, be necessary to issue an order for a new panel of Jurors.

Judge Nelson: So far as I am concerned, I can only remain until the 20th of November, and the business of the Court is such that the trial cannot take place while I am here, as I must devote the rest of my time to other causes.

Mr. Smith: Then the motion for a new panel will be reserved until we see at what time it will be possible to bring the case on.

Mr. Lord: Before that application shall be seriously entertained by the Court, we would like to be heard upon the subject. I will say nothing now, because it is very evident it cannot be discussed at this time.

Judge Nelson: The counsel may assume that I cannot take up the second trial during the present term. They may act upon that view.

The prisoners were then remanded to the custody of the Deputy Marshals.