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United States v. Baker.

ious 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, animus furandi, which means an intent to gain 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 a commission to a private armed vessel 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; and that it is, at least, a Government de facto, and entitled to the rights and privileges that belong to a sovereign and independent nation. The right to establish such a Government, constitutional or otherwise, has been strongly urged, and the laws of nations and the commentaries of eminent publicists have been referred to, as justifying the secession or revolt of the 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 ma

United States v. Baker.

terial, 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 and political questions, which belong to the departments of our Government that have charge of our foreign relations-the Legislative and Executive departments. When those questions are decided by those departments, the Courts follow the decision; and, until those 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 as remaining unchanged. This has been the uniform course of decision and practice, in the Courts of the United States. The revolt of the Spanish Colonies of South America, and the new Government erected on their separation 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 relations 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 old ones. If this is the rule of the Federal Courts, in the case of a revolt and the erection of a new Government, as it respects foreign nations, much more is the same 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 whose laws we are engaged in administering. 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, namely, the Legislative and the Executive departments,

The Wings of the Morning.

in order to be recognized by the Courts of the country, we must look to the acts of those departments as evidence of 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 an ability in proportion to its magnitude, in behalf of both the prisoners and the Government; and we do not doubt that, 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 were discharged, without being able to agree on a verdict.

William M. Evarts, E. Delafield Smith, (District Attorney), and Samuel Blatchford, for the United States.

Daniel Lord, James T. Brady, Jeremiah Larocque, Algernon S. Sullivan, Joseph H. Dukes, Isaac Davega, and Maurice Mayer, for the prisoners.

THE WINGS OF THE MORNING.

Where a sailing vessel, coming into the Hudson river, at New York, off the Battery, in the night time, put her head to the wind and her sails aback, with a view to anchoring, before the hands on board of her discovered a steam ves. sel in motion coming towards her, but it appeared that she had no competent lookout, and that, if she had had one, the steam vessel might have been seen in time to prevent the placing of the sailing vessel on her track: Held, a collision having taken place between the two vessels, that the sailing vessel was in fault.

Held, also, that the steam vessel was in fault for descending the river in the night too near to the shore, and at too great a rate of speed, at a locality where

The Wings of the Morning.

her lights were mistaken for the lights of vessels at anchor, and where she was liable to meet vessels coming in to anchor.

As both vessels were in fault, the damages were divided; and, as both parties had appealed, and the decree below was affirmed, no costs were given to either party, on appeal.

(Before NELSON J., Southern District of New York, November 6th, 1861.)

THIS was a libel in rem, filed in the District Court, against the ship Wings of the Morning, to recover for damage caused to the barge Stephen Warren, by a collision which occurred between the two vessels, in the Hudson river, at New York, off pier number 4, on the night of November 22, 1852. The barge was lashed to the steam tug General Wool, on her starboard side. The tug was descending the river with her tow, a quarter or a third of the way from the New York side, intending to pass around the Battery into the East river, for the purpose of discharging her cargo. The Wings of the Morning was coming up the river, having taken in all her sails except the spanker, preparatory to dropping anchor in the stream. The wind was southeast or south-southeast, and the tide was ebb. The Wings of the Morning had come up the river near the middle of it, and had ported her helm to luff into the wind and check her headway, to enable her to drop anchor, and was in the act of dropping it, or about to drop it, as the mate discovered the tug and tow coming down upon him. The District Court held, that both vessels were in fault, and divided the damages. Both parties appealed to this Court.

Edward H. Owen and Cornelius Van Santvoord, for the libellants.

Charles Donohue and Washington Q. Morton, for the claimants.

NELSON, J. The main point of dispute is, whether or not the order to port was given, and the change of the direction of the ship had taken place in pursuance thereof, after the tug

The Wings of. the Morning.

and tow were seen by the hands on board of the ship. If the order was given afterwards, or even after the tug and tow might have been seen with a proper lookout, then the ship was in fault in giving the order. On this point there is much conflict in the proofs. The result of my examination is, that the order to port was given, and the change of the direction of the ship, which placed her on the track of the tug and tow, took place, before her hands had discovered them in motion; and that, with her sails aback and her head to the wind, she was disabled from avoiding the collision. But, at the same time, I agree with the Court below, that, with a competent lookout properly attending to his duty, the descending vessels might have been seen in time to prevent the manœuvre and the heading of the vessel in shore across their track. The night was not very dark, and the chief difficulty in discovering the tug and tow arose from the great number of vessels at anchor, with lights, in that locality. The hands on the ship saw the lights of the descending vessels in time to have avoided them, but mistook them for the lights of vessels at anchor.

I also agree with the Court below, that the tug was in fault for descending the river in the night so near the shore in that locality, and at a rate of speed of five miles an hour, with the tide: and, according to the testimony of the captain of the barge, probably at a greater rate of speed. These vessels were on their way around the Battery to the East river, and should have kept further out into the river, outside of vessels at anchor with lights, and clear of vessels coming in to anchor in the night on the New York side.

The decree must be affirmed, but without costs to either party, as both parties have appealed.

VOL. V-2

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