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"A Look at Piracy Law," New York Journal of Commerce, 5 September,
1839, p.2.
FOR THE JOURNAL OF COMMERCE
MESSRS. EDITORS--I have no special right to regard myself as appealed to by your
article of this morning. Yet as every man is likely to esteem himself “clear-headed,”
and as modesty is not in the peculiar keeping of the legal profession, I will so
far regard myself as one of your “clear-headed legal friends” as to offer you a word--And
I the more readily do it, as my opinion upon the law of the case was made up, satisfactorily
to myself, before any announcement in the papers of the city, that the vessel had
been brought in; and because I have probably given to the subject as much of consideration
as any of my professional brethren. Yet I should esteem it indelicate, on the eve
of a trial, to make the laws, as it applies to the supposed facts, a matter of newspaper
discussion.
It is true that there is a question whether the Circuit Court of the District of
Connecticut, or of that of the Southern District of New York, has jurisdiction of
the matter. The words of the Act of 30th April, 1790 “For the punishment of certain
crimes again the United States,” sec.8, are, --And the trial of crimes committed
on the high seas, or in any place out of the jurisdiction of any particular State,
shall be in the District where the offender is apprehended, or into which he may
[first] be brought.” [I think it has been decided that the wordState as here
used, does not mean a State of this Union, but a State or Nation as designating a
political body generally.]
By the 5th sec. of an act passed March 3, 1819, making piracy, “as defined by the
law of Nations” a capital offence, it is provided that the offenders “upon conviction
thereof, before the Circuit Court of the United States for the District into which
he or they (the offenders,) may be brought, or in which he or they shall be found,
shall be punished with death.”
It is not a matter of importance whether the trial takes place in New York or Hartford.
Each one can fix his own construction upon the statutes.
But as to the nature of the offence committed, a more important question is suggested.
As the facts are probably substantially given, (with the exception that it may turn
out, and probably will that the negroes have never been on Spanish ground,) we cannot
make, with proper respect to the Court, a hypothetical case for discussion. The gist
of the case to be decided by the Court is whether the homicide committed constitutes
the crime of murder; or whether the acts of the defendants otherwise constitute the
crime of piracy. The question will really, be, whether men, for the sake of recovering
their liberty, and of returning to their native country, from which they have been
forcibly brought for the purpose of being reduced to perpetual slavery, may, if necessary,
take the lives of those who restrain them. It will not be without its bearing upon
this question that the laws of the United States hold the slave trade as in its nature
piracy, and punish its own citizens guilty of it with death; and that even while
Congress had not the power of prohibiting the slave trade between Africa and this
country, it yet held the transportation of slaves from one foreign place to another
so far criminal in its nature, that it denounced punishment against our own citizens,
when engaged in it.
If by the common law a homicide committed under such circumstances is murder, the
defendants are guilty. It is the common law definition of murder to which the Court
must look,Congress not having defined the term. If the homicide was a justifiable
act of self defence, so far as that is concerned, there can be no legal offence;
and if no legal offence in that, the taking possession of the vessel for the mere
purpose of escape from an unjust detention, and with no piratical intention manifested
or to be presumed, will probably not be urged as an act of piracy. As the alleged
offence was committed on the highway of nations, the common property of all men,
where all have equal rights, Spain has no peculiar jurisdiction over the matter;
and our courts cannot, upon any principles of jurisprudence or international law,
take any notice of the municipal laws.
The prisoners have been committed for trial by the judicial authority, and the executive
power has nothing to do with them until they shall be discharged by the Court, or
by some judge of competent jurisdiction. If discharged, they are at large, having
the same personal rights of locomotion as any other foreigners thrown upon our shores,
so far as the general government is concerned. There is no executive power or authority
or right to send them to a foreign country for trial, for the simple reason that
they are charged with the commission of no crime committed within any foreign jurisdiction.
There are other reasons why they could not be so sent. The slave trade is contrary
to the laws of Spain. Even under treaty stipulations no nation ever gives up on an
offender escaping into it who is charged only with a breach of the municipal laws
of the State from which he escaped, and not with what, by natural law, is regarded
as crimen per se, or a violation, of natural law or obligation. It is presumed
that no fugitive offender is given up except for the commission of such a crime within
the jurisdiction of a state, as, if committed on the high seas, would make him punishable
by the courts of any nation, within which he might be brought. If this is such an
offence, the individuals will be punished here--if not, we cannot act the part of
police officers of a foreign country for their arrest and removal.
Lastly, the President has no legal power to send them out of the country, and when
discharged by the judiciary, they would have the same right to resist any warrant
or mandate issued by him, authorized by no law, as yourselves, or your friend. E.
W. C.
