[98] *Mr. Wirt, Attorney-General, to Mr. Glenn, district attorney.
Washington, November 6, 1818.
Dear Sir: I have been deliberating as well as I could on the course of prosecution which shall be adopted against the owners, captain, and [Page 486] crew of the Fourth of July, privateer, and according to the request contained in your first letter, will now give you my opinion on that course.
First. I would indict the captain and crew as pirates under the original act of Congress which defines piracy. The prisoners will defend themselves under the commission of Artigas. I would object to that commission going before the jury as evidence, on the ground that it is not the commission of a sovereign recognized by our Government.
In the case of the Roruss, in Richmond, the chief justice decided that a maritime commission signed by the sovereign authority of the province of La Plata furnished no justification to the crew of that vessel, because the court could not take notice of La Plata, as a sovereignty, until recognized by our Government, and, consequently, could not take notice of a commission purporting to be issued under the separate authority of that province. That in view of the court La Plata must be considered as a dependence of the Spanish Crown, until its separate existence as a nation *had been acknowledged by the executive branch of the Government. [99]
In reply to this they will quote the decision of the Supreme Court in the case of Palmer, (2 Wheaton, 634–5,) and they will insist on the correspondence between Mr. Monroe, when Secretary of State, with Don Onis, as well as the President’s message at the opening of the last session of Congress to prove the admission of the Government that the South American colonies are to be considered as in a state of civil war.
On this limited recognition they will claim for Artigas the rights laid down in Palmer’s case qua supra, that is all the rights which war authorizes, and they will insist, under that opinion, “That persons and vessels employed in the service of the self-created governments must be permitted to prove the fact of their being actually employed in such service, by the same testimony; which would be sufficient to prove that such vessel or person was employed in the service of an acknowledged stated That although under that opinion “the seal of such unacknowledged government cannot be admitted to prove itself,” yet that it may be proved by such testimony as the nature of the case admits, and that “the fact that such vessel or person is so employed may be proved without producing the seal.” [100]
To this there are two answers:
1. That the correspondence with Don Onis and the message are not pointed at Artigas. They are to be considered in reference to the subject-matter which alluded to a complaint of the Spanish minister touching the admission of Buenos Ayrean privateers into our ports. The section of country which Artigas holds is claimed by Portugal. His war is with the King of Portugal. The system of colonial government adopted by the two monarchs is alleged to be very different—that of Spain oppressive to the colonists in an extreme degree; that of Portugal comparatively liberal. According to the writers on the laws of nations, the course which a neutral holds in such wars is often directed by its sense of the justice of one side of the cause or the other, and according to this sense it relaxes at pleasure the rigor of its neutrality, still, however, keeping within the neutral pale. According to these writers, a recognition of the independence of a revolted colony by a neutral is no cause of war to the parent nation, provided the revolted colonly be in actual and exclusive possession of its territory and government. According *to these principles our Government might recognize the government of Buenos Ayres without giving just cause of war to Spain; but if the Bande Orientale, as Portugal [Page 487] contends, is a separate territory belonging to a distinct sovereign, such recognition of Buenos Ayres would not extend to that, because the American Government may perceive a justice in the one conflict which it does not in the other. [101]
On the same principle the recognition of a civil war in Buenos Ayres, a Spanish colony, would not by any means carry along with it as a consequence the recognition of a civil war in a Portuguese colony.
You will not understand me as speaking in the name of the Government of the United States as to its seeing any difference in fact between the oases of Puerrydon and Artigas.
I have no authority for making any such declaration. I speak only of the inference of fact which may or may not be fairly deduced from the correspondence and message in question. Those who rely upon them as establishing the admission that civil war exists between Artigas and Portugal must show that admission in the face of those documents, and cannot, for the reasons I have given, infer, argumentatively, by *reasoning from the one case to the other. [102]
If the prisoners fail in showing that our Government had admitted the existence of a civil war between Artigas and Portugal, then the principles laid down in Palmer’s case, qua supra, can have no application to the case at bar, and this case will revert to the principles established by the Chief Justice in the case of the Roruss.
2. But suppose it to be taken as admitted by the Government that a civil war does exist between Artigas and Portugal, does it follow that the citizens of the United States may participate in that war?
The Supreme Court have not so said. Palmer was not expressly indicted as a citizen of the United States, nor is the vessel charged as being United States property, and the principles laid down by the court are to be taken secundum rem judicata, and not to be extended to a different case.
If the Bande Orientale is to be considered as part of the province of La Plata, and, consequently, as belonging to Spain, the fourteenth article of our treaty with Spain makes the case at bar a case of piracy, (see that article;) and whatever rights of war Artigas may have on the ground of his being engaged *in a civil war, the citizens of the United States cannot mingle in that war, on this hypothesis without being guilty of piracy. (See what Vattel says, Book 3, chapter 2, section 15, as to enlisting troops in a foreign nation.) [103]
As a branch of this opinion the owners, &c., ought to be indicted as accessories to the piracy under the ninth and tenth sections of the act of 1790, “An act for the punishment of certain crimes against the United States.”
I would iudict them under the act of 1794, “An act in addition to the act for the punishment of certain crimes against the United States,” laying a separate count under every section where the facts will warrant it. The defense here will be that Artigas is neither a foreign prince, nor his province a state, according to the decision in Gelston vs. Hoyt. But as the previous prosecution for piracy can fail only on the ground that he is a prince and his government that of a state, (under the decision in Palmer’s case and by our Government’s recognition of a civil war,) the prisoners will have taken this ground from under themselves.
[104] Artigas and his province are either a foreign *prince and state, or they are not. If they are, the indictment will be under the act of 1794; if they are not, the indictment for piracy will be under the act of 1790.
[Page 488]There seems to be no probability of escaping this dilemma but by splitting the hair and saying they are so far a foreign prince or state as to excuse the prisoners from the piracy, but yet not so far as to subject them under the act of 1794.
In the case of Gelston and Hoyt the alleged princes and states were Petion and Christophe, and the different parts are St. Domingo.
Our Government had never acknowledged these sovereignties—not even by the recognition of a civil war either between themselves or their parent countries.
So that inference can be drawn from that case to this, if the court shall have previously excused the piracy on the ground of our recognition of a civil war.
This simple recognition in Palmer’s case was considered and decided as placing the belligerent on the same footing for the purposes of war as if they had both been regularly recognized sovereigns, an effect which would certainly bring the act of ’94 to bear directly on *the case. [105]
3. I would indict them under the act of 1817. As to facts under this act you have, I understand, only a single witness; but that there is in expectation a further proof.
The grand jury, I presume, would not hesitate to find a bill on the testimony of this single witness; and if you think it unsafe to go into the trial on the evidence of this single witness, the court would, I presume, indulge you in a continuance until the next term.
I have not as yet received any direction from the President to attend these trials. I will see him to-morrow on the subject and write you again.
District Attorney for the United States, Baltimore.