Part 31 (1/2)

It now becomes my duty, gentlemen, to call your attention, very briefly, to the grounds on which the prosecution rests this case. There are two grounds, and I will notice them in their order. The first is, that this was robbery. Well, I have had occasion, already, in what I have said to you, to call your attention to some of the points that distinguish this case from robbery. I say it was not robbery, because, in the first place, one of the requisites of robbery on the sea, which is called piracy, is, that it shall be done with a piratical and felonious intent. The intent is what gives character to the crime; and the point that we shall make on that part of the case is this, that if these men, in the capture of the Joseph (leaving out of view for the present the circ.u.mstance of their having acted under a commission from the Confederate States), acted under the belief that they had a right to take her, there was not the piratical and felonious intent, and the crime of robbery was not committed. I will very briefly call your attention to a few authorities on that subject. One of the most standard English works, and the most universally referred to on this subject of robberies, is _Hale's Pleas of the Crown_. Hale says:

”As it is _cepit_ and _asportavit_ so it must be _felonice_ or _animo furandi_, otherwise it is not felony, for it is the mind that makes the taking of another's goods to be a felony, or a bare trespa.s.s only; but because the intention and mind are secret, they must be judged by the circ.u.mstances of the fact, and though these circ.u.mstances are various and may sometimes deceive, yet regularly and ordinarily these circ.u.mstances following direct in this case.

”If _A_, thinking he hath a t.i.tle to the horse of _B_, seizeth it as his own, or supposing that _B_ holds of him, distrains the horse of _B_ without cause, this regularly makes it no felony, but a trespa.s.s, because there is a pretence of t.i.tle; but yet this may be but a trick to color a felony, and the ordinary discovery of a felonious intent is, if the party does it secretly, or being charged with the goods, denies it. * * * * *

”But in cases of larceny, the variety of circ.u.mstances is so great, and the complications thereof so weighty, that it is impossible to prescribe all the circ.u.mstances evidencing a felonious intent; on the contrary, the same must be left to the due and attentive consideration of the Judge and Jury, wherein the best rule is, _in dubiis_, rather to incline to acquittal than conviction.”

The next authority on that subject to which I will refer you is 2_d East's Pleas of the Crown, p._ 649. The pa.s.sage is:

”And here it may be proper to remark, that in any case, if there be _any fair pretence_ of property or _right_ in the prisoner, _or if it be brought into doubt at all, the court will direct an acquittal; for it is not fit that such disputes should be settled in a manner to bring men's lives into jeopardy_.

”The owner of ground takes a horse _damage feasant_, or a lord seizes it as an estray, though perhaps without t.i.tle; yet these circ.u.mstances explain the intent, and show that it was not felonious, unless some act be done which manifests the contrary: as giving the horse new marks to disguise him, or altering the old ones; for these are presumptive circ.u.mstances of a thievish intent.”

I call attention also to the case of _Rex_ vs. _Hall_, _3d Carrington & Payne_, 409, which was a case before one of the Barons of the Exchequer in England. It was an indictment for robbing John Green, a gamekeeper of Lord Ducie, of three hare-wires and a pheasant. It appeared that the prisoner had set three hare-wires in a field belonging to Lord Ducie, in one of which this pheasant was caught; and that Green, the gamekeeper, seeing this, took up the wires and pheasant, and put them into his pocket; and it further appeared that the prisoner, soon after this, came up and said, ”Have you got my wires?” The gamekeeper replied that he had, and a pheasant that was caught in one of them. The prisoner asked the gamekeeper to give the pheasant and wires up to him, which the gamekeeper refused; whereupon the prisoner lifted up a large stick, and threatened to beat the gamekeeper's brains out if he did not give them up. The gamekeeper, fearing violence, did so.

Maclean, for the prosecution, contended--

”That, by law, the prisoner could have no property in either the wires or the pheasant; and as the gamekeeper had seized them for the use of the Lord of the Manor, under the statute 5 Ann, c. 14, s. 4, it was a robbery to take them from him by violence.”

Vaughan, B., said:

”I shall leave it to the Jury to say whether the prisoner acted on an impression that the wires and pheasant were his property, for, however he might be liable to penalties for having them in his possession, yet, if the Jury think that he took them under a _bona fide_ impression that he was only getting back the possession of his own property, there is no _animus furandi_, and I am of opinion that the prosecution must fail.

”Verdict--Not guilty.”

Without detaining the Court and Jury to read other cases, I will simply give your honors a reference to them. I refer to the _King_ vs.

_Knight_, cited in 2_d East's Pleas of the Crown_, p. 510, decided by Justices _Gould_ and _Buller_; the case of the _Queen_ vs. _Boden_, 1_st Carrington and Kirwan_, p. 395; and for the purpose of showing that this is the same rule which has been applied by the Courts of the United States, in these very cases of piracy, I need do nothing more than read a few lines from a case cited by the counsel for the prosecution in opening the case of the _United States_ vs. _Tully_, 1_st Gallison's Circuit Court Reports_, 247, where Justices Story and Davis say, that to const.i.tute the offence of piracy, within the Act of 30th April, 1790, by ”piratically and feloniously” running away with a vessel, ”the act must have been done with the wrongful and fraudulent intent thereby to convert the same to the taker's own use, and to make the same his own property, against the will of the owner. The intent must be _animo furandi_.”

Now, gentlemen, I think that when you come to consider this case in your jury-box, whatever other difficulties you may have, you will very speedily come to the conclusion that the taking of the Joseph was with no intent of stealing on the part of these prisoners.

But, gentlemen, there is another requisite to the crime of robbery, which, I contend, and shall respectfully attempt to show to you, is absent from this case. I mean, it must be by violence, or putting him in fear that the property is taken from the owner, and that the crime of robbery is committed. I beg to refer the Court to the definition of robbery in _1st Blackstone's Commentaries_, p. 242, and _1st Hawkins'

Pleas of the Crown_, p. 233, where robbery at common law is defined to be ”open and violent _larceny_, the rapina of the civil law, the _felonious_ and _forcible_ taking from the person of another of goods or money to any value by violence, or putting him in fear.”

Now, gentlemen, I say there was nothing of that kind in this case. What are the circ.u.mstances as testified to by the witnesses for the prosecution? The circ.u.mstances are, that the Joseph and the Savannah, having approached within hailing distance, the Captain of the Savannah hailed the Captain of the Joseph, standing on the deck of his own vessel, and requested him to come on board and bring his papers. The answer of the Captain of the Joseph was an inquiry by what authority that direction was given; and the Captain of the Savannah replied, ”by the authority of the Confederate States.” Whereupon the Captain of the Joseph, in his own boat, with two of his crew, went alongside the Savannah, was helped over the side by the Captain of the Savannah, and was informed by him that he was under the disagreeable necessity of taking his vessel and taking them prisoners; and without the slightest force or violence being used by the Captain, or by a single member of the crew of the Savannah--without a gun being fired, or even loaded, so far as anything appears--the Captain of the Joseph voluntarily submitted, yielded up his vessel, and there was not the slightest violence or putting any body in fear.

Therefore, gentlemen, I say, that so far as the crime charged here is the crime of robbery, there is no evidence in the case under which, on either of these grounds, by reason of the secrecy of the act, or the violence or putting in fear, or the showing a felonious intent, by the evidence for the prosecution, these prisoners can be convicted under the indictment before you. To show that the definition of robbery at common law is the one that applies to these statutes of the United States, I beg to refer your honors to cases in the Supreme Court of the United States. I refer to the case of the _United States_ vs. _Palmer, 3 Wheaton, 610_; the _United States_ vs. _Wood, 3d Was.h.i.+ngton, 440_; and the _United States_ vs. _Wilson, 1 Baldwin,_ p. 78.

But, gentlemen, there is another set of counts in this indictment on which, probably, as to those who are citizens, a conviction will be pressed for by counsel on the part of the Government. That is a set of counts to which I am about to call your attention in reference to the acts under which they were framed. You will recollect this, gentlemen, that under the counts charging the offence of robbery, the majority of these prisoners must be convicted, or none of them can be convicted at all, for reasons which I will immediately give you. The only statute under which it is claimed on the part of the prosecution that a conviction can be had, if not for robbery on the high seas, imperatively requires that the prisoners to be convicted must be citizens of the United States. There are twelve prisoners here, and by the statement of the last witness produced on the part of the prosecution, only four of them appear to be citizens of the United States, or ever to have been citizens of the United States. The others were all born in different countries in Europe and Asia, and had never been naturalized; and the Court, whenever this case comes before you, so far as that point is concerned, will give you the evidence on the subject, by which you will see exactly which of these prisoners had ever been citizens of the United States, and which of them had not been. I therefore proceed to examine as to what the statute is, and what the requisites are for a conviction of those who were citizens of the United States at any time. I will read to you the section of the statute to which I have reference. It is the 9th section of the Act of 1790. It reads, ”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 seas, 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 being thereof convicted, shall suffer death.”

Now, it will be interesting and necessary to understand the circ.u.mstances under which that statute was pa.s.sed, and the application which it was intended to have. I will briefly read to you the explanation of that subject, which your honors will find in _Hawkins'

Pleas of the Crown, 1st Vol., p. _268. Hawkins says:

”It being also doubted by many eminent civilians whether, during the Revolution, the persons who had captured English vessels by virtue of commissions granted by James 2nd, at his court at St.

Germain, after his abdication of the throne of England, could be deemed pirates, the grantor still having, as it was contended, the right of war in him; it is enacted by 11 and 12 Will. III., chap.

7, sec. 8, 'That if any of his Majesty's natural born subjects or denizens of this Kingdom shall commit any piracy or robbery, or any act of hostility against others of his Majesty's subjects upon the sea, under color of any commission from any foreign Prince or State, or pretence of authority from any person whatsoever, such offender or offenders, and every of them, shall be deemed, adjudged, and taken to be pirates, felons, and robbers; and they and every of them, being duly convicted thereof according to this Act or the aforesaid statute of King Henry the Eighth, shall have and suffer such pains of death, loss of land and chattels, as pirates, felons, and robbers upon the sea ought to have and suffer.'”

Your honors will find that further referred to in the case of the _United States_ vs. _Jones_, _3d Wash. Cir. Court Reps. p._ 219, in these terms:

”The 9th sec. of this law (the Act of 1790) is in fact copied from the statute of the 11th and 12th Wm. 3d, ch. 7, the history of which statute is explained by Hawkins. It was aimed at Commissions granted to Cruisers by James II., after his abdication, which, by many, were considered as conferring a legal authority to cruise, so as to protect those acting under them against a charge of piracy.