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Chief Justice of the United States, with the pen hardly dry with which the great cotemporaneous commentary on the constitution was partly written, hurrying to Richmond to declare to the first Federal grand jury that ever sat there, the doctrine, afterwards abandoned,” that, by the common law, the Federal courts have power to punish offences against the Federal sovereignty. The Case of Breach of Neutrality (p. 600). We see Genet, to check whose depredations this prerogative was invoked, supplying an American skipper with the French flag; we see an English merchant
2 The people were right and the Government wrong. When a few years later (1812) the proprietors of the Connecticut Current were indicted for a libel on the President of the United States and the Congress, in charging them with having in secret voted two million dollars to Bonaparte for leave to make a treaty with Spain, the Judges of the Circuit were divided in opinion as to whether the Federal Court had a common law jurisdiction in cases of libel, Congress not having made libel a crime. So the case was certified to the Supreme Court where the Judges said No, adding: "Although this question is brought up now for the first time to be decided by this court, we consider it as having been long ago settled in public opinion. In no other case for many years has the jurisdiction been asserted and the general acquiescence of legal men shows the prev. alence of opinion in favor of the negative of the proposition.” U. S. v. Hudson, 7 Cranch 32; U. S. v. Coolidge, 1 Wheat 465; U. S. v. Britton, 108 U. S. 199. The course of reasoning which leads to this conclusion is simple and obvious. The powers of the general government are made up of concessions from the several states; whatever is not expressly given to the former, the latter expressly reserve. The judicial power of the United States is a constituent part of those concessions; that power is to be exercised by courts organized for the purpose, and brought into existence by an effort of the legislative power of the Union. Of all the courts which the United States may, under their general powers, constitute, one only -the Supreme Court-possesses jurisdiction derived immediately from the constitution, and of which the legislative power cannot deprive it. All other courts created by the general government possess no jurisdiction but what is given them by the power that creates them.
man seized in the river Delaware by the vessel thus equipped; and we find a Connecticut day laborer magnified into a cause of war by the fact that, without casting off his American allegiance, he undertook to serve in the Gallicised privateer. The English minister demanded his arrest; the French minister insisted on his discharge; and all the Judges of the Supreme Court were summoned to give dignity and effect to his trial. By the court he was pronounced an offender against the Constitution and laws of the United States; by the jury he was decided to be an offender against neither (Gideon Henfield, p. 615); and, while Mr. Jefferson directed Mr. Morris to tender to the English ministry the charge of the court, as demonstrating that the Federal government had power to punish offenders against the laws of nations, Mr. Genet issued cards to a dinner in which many American dignitaries were invited to meet “citizen Henfield,” and, where the position was boastingly taken, that by the verdict of a jury it was settled that the American people were hereafter to make war upon Great Britain, under the French flag. But when Congress, having been called in session, passed a neutrality law giving the Federal Courts jurisdiction of persecutions for breach of neutrality, the government had easy sailing (John Etienne Guinet, p. 637).
The modern American policeman has altered not at all since the New York Judge remarked (James Williamson, p. 649) upon the effect which the possession of a little power and brief authority will produce in the minds of some people. He still imagines himself to be not the servant of the people but its master.
We in this day and generation can hardly imagine how extensively piracy prevailed two centuries ago,
and the fear it inspired in those who either traveled by sea or dwelt in cities and towns on the coast. There was no part of the high seas that was free from the depredation of roving robbers. At times they threatened towns on the coast, and at others they at
lowed their lawless pursuits at will. Hence it became
nation. Thus it is laid down by the old authorities:
Piracy is a robbery committed upon the sea, and a pirate is a sea thief. Indeed, the word "pirata” as it is derived from “transire, a transeundo mare," was anciently taken in a good and honourable sense, and signified a maritime knight, and an admiral or commander at sea, as appears by the several testimonies and records cited to that purpose, by that learned antiquary Sir Henry Spelman in his Glossarium. And out of him the same sense of the word is remarked by Dr. Cowel, in his Interpreter; and by Blount in his Law Dictionary. But afterwards the word was taken in an ill sense, and signified a sea rover or robber; either from the Greek word deceptio, dolus, deceipt; or from the word transire, of their wandering up and down, and resting in no place, but coasting hither and thither to do mischief; and from this sense, sea-malfactors were called pirates. Therefore a pirate is thus defined by my Lord Coke: “This word pirate," saith he, “in Latin pirata, is derived from the Greek word, which again is fetched from a transeundo mare, of roving upon the sea: and therefore in English a pirate is called a rover and robber upon the sea.” As to the heinousness or wickedness of the offense, it needs no aggravation, it being evident to the reason of all men. Therefore a pirate is called hostis humani generis, with whom neither faith nor oath is to be kept. And in our law and by the civil law any one may take from them their ships or vessels, so that excellent civilian Dr. Zouch, in his book
ishments, it is enacted, that it may be lawful for any one to take their ships.”
The trials of Major Stede Bonnet and his thirtythree followers (p. 652) show that when caught, there was little delay in bringing them to trial and securing
? Proceeding Mass. Hist. Soc., Feb., 1911.
a conviction, and technicality in forms played no part in reaching results. At times there were multiple executions, and in the community there was no morbid sentimentality shown for the miserable wretches. Not the least of their torture was listening to a long sermon by the Judge on delivering sentence (p. 703, 717), and afterwards sitting in the meeting-house on the Sunday before execution and listening to their own funeral sermons, when the minister told them what they might expect in the next world if they got their just dues.
A striking view of what a southern gentleman had to put up with if he ventured into a New England town with that particular kind of property which both the constitution and the laws of the United States protected, but which a large portion of the population of New England did not approve of, is furnished in the Trial of John and Sarah Robinson (p. 723). They were good and estimable people, these abolitionists, but for such laws as did not agree with their opinions they had no more regard than the modern anarchist has.
The trial of John R. Kelly (p. 735) shows the demoralization which always follows a great war. A little dispute over a ticket at a circus develops in a few minutes into an impromptu battle and discovers that nearly every man in the great crowd is armed to the teeth as though an enemy army were advancing.
A common incident in a great city was that in Ward's case (p. 853). A crowded street corner, teamsters and pedestrians struggling for the right of way; a quarrel and a fight with a fatal ending!
TABLE OF TRIALS.
PAGE The Trial of FRANCIS BURKE for the Manslaughter of BEN
JAMIN M. HAZELIP, Baltimore, Maryland, 1832 .. . 1
The Trial of CHARLES SPRAGUE for Robbery, Brooklyn, New
York, 1849 . . . . . . . . . . . . . . . . . . 88
The Trial of PROFESSOR JOHN W. WEBSTER for the Murder
of DR. GEORGE PARKMAN, Boston, Massachusetts, 1850 . 93
The Trial of THOMAS HOAG for Bigamy, New York City, 1804. 456 The Trial of HENRY B. ALLISON, and others, for Larceny,
Richmond, Virginia, 1851 ............. 464 The Trial of THOMAS LAFON, JR., for the Killing of JOSEPH
HEBRING, Newark, New Jersey, 1869 . . . . . . . . 473 The Trial of JAMES W. LENT for Assault and Battery, New
York City, 1819 ................. 545 The Action of JOHN TREVETT against JOHN WHEEDEN for
Refusing Paper Money, Rhode Island, 1786 . . . . . . 548 The Proceedings of the GENERAL ASSEMBLY OF RHODE
ISLAND against the JUDGES OF THE SUPREME COURT for their Judgment in the Case of Trevett against Wheeden,
Newport, Rhode Island, 1786 . . . . . . . . . . . . 584 The Case of BREACH OF NEUTRALITY by Citizens of the
United States, Richmond, Virginia, 1793 ....... 600 The Trial of GIDEON HENFIELD for Enlisting in a French
Privateer, Philadelphia, 1793 . . . . i . . . . . . 615 The Trial of JOHN ETIENNE GUINET for Fitting out and
Arming a Warship for a Belligerent, Philadelphia, 1795 · 637 The Trial of JAMES WILLIAMSON for Assault and Battery,
New York City, 1819 . . . . . . . . . . . . . . . 649 The Trials of MAJOR STEDE BONNET and Thirty-three Others
for Piracy, Charleston, South Carolina, 1718 . . . . . . 652