Trial of the Officers and Crew of the Privateer Savannah, on the Charge of Piracy, in the United States Circuit Court for the Southern District of New York

Now, under what circumstances was this done? And in the discussion I give to this question I am entirely free from the necessity of considering how the Government of this country shall regard the seceded States,—as having a Government, or not. I am under the law of nations, because this act which I am now discussing, of robbery on the high seas, was evidently a transcript of the law of nations upon the subject of piracy. What are the undeniable facts?—the facts about which, in this case, there is not any dispute, either in this country or in the whole world—about which there is but one opinion—what are they? At the time the crew of the Savannah shipped for this cruise, and at the time of the capture of the Joseph, the authorities of the State of South Carolina (for the State of South Carolina had an organization from its beginning, as a part of this country, and, as a government, was well known to the Government of the United States)—the authorities of the State of South Carolina, where the Savannah was fitted out and the crew resided, had become parties to a confederation of others of the United States. Now it is immaterial to me, in the light in which I view this case, whether that was politically right or not—whether it was legally right or not—whether this country could look at it as a source of title to property or not; the fact is there, that a State—one of the original, recognized States of the Union—united itself, under an assumption of authority, revolutionary if you please, with other similar States, and formed a league and a Government. That fact is undoubtedly so. Under such confederation a Government, in fact, existed, and exercised, in fact, the powers of civil and military Government over the territories and peoples of those States, or a principal part of them. Here we have eleven recognized States, doing, if you please, an illegal thing, when you come to submit it to the just principles of law. They form a league,—against an Act of Congress,—but they do form a league, and do constitute a Government; and this Government takes possession of a territory of some ten millions of people, all of whom submit to it. It maintains the Government in its domestic character of States, and originates a Government for its foreign relations. It assumes to make war, and declares war. The President's proclamation says that the said Confederated States had in fact declared war against the United States of America, and were openly prosecuting the same with large military forces, under the military and civil organization of a Government; and had assumed, and were in the exercise of, the power of issuing commissions to private armed ships to make captures of the property of the United States, and the citizens thereof, as prize of war, and to send them into Court for adjudication as such. Now, all that is beyond any doubt; and is it possible that it can be contended that an act of that vast extent, of that wide publicity and great power, should fail even to justify the killing of a chicken, without charge of petty larceny? Does it not shock the common sense of mankind that, in the case of men dwelling there, and acting in subordination to the existing Government (you cannot say whether voluntarily or not), for every shot fired and man killed you could have a trial for murder; that for every horse shot you could have an action of trover; and for every trespass you could have an action of trespass? This practically shocks us. How is it in view of the doctrine of hostis humani generis? Here are ten millions of people doing acts which, if done only by three or four, would be murders and treasons. But justice must be equal. If required to execute justice upon three or four, you are bound to execute it on tens of millions? Why, that is the very thing which publicists tell us constitutes civil war. A civil war is always a rebellion when it begins. In the first instance it commences with a few individuals,—the Catalines of the country; but when it gets to be formed, so that a large force is collected, and, instead of the Courts of Justice before existing, it substitutes Courts of its own, then comes up the doctrine of humanity which belongs to the laws of war,—that you can no longer speak of it as a rebellion. In the judgments of publicists when a rebellion gets to that head that it represents States, and parts of a nation, humanity stops the idea of private justice, and it goes upon the principle of public and international law. That will be found elaborately stated in Vattel; but I do not intend to trouble you with any lengthened reading of citations. I refer to the 18th chap. on the subject of civil war, page 424:

"When a party is formed in a State, who no longer obey the sovereign, and are possessed of sufficient force to oppose him; or when, in a Republic, the nation is divided into two opposite factions, and both sides take up arms,—this is called a civil war. Some writers confine this term to a just insurrection of the subjects against their sovereign, to distinguish that lawful resistance from rebellion, which is an open and unjust resistance. But what appellation will they give to a war which arises in a Republic torn by two factions, or in a Monarchy, between two competitors for the crown? Custom appropriates the term of 'civil war' to every war between the members of one and the same political society. If it be between the part of the citizens, on the one side, and the sovereign, with those who continue in obedience to him, on the other,—provided the malcontents have any reason for taking up arms, nothing further is required to entitle such disturbance to the name of civil war, and not rebellion. This latter term is applied only to such an insurrection against lawful authority as is void of all appearance of justice. The sovereign, indeed, never fails to bestow the appellation of rebels on all such of his subjects as openly resist him; but, when the latter have acquired sufficient strength to give him effectual opposition, and to oblige him to carry on the war against them according to the established rules, he must necessarily submit to the use of the term 'civil war.'"

The moment the term "civil war" comes up, the idea of punishing, as rebellion or as piracy, the capture of a vessel, is an abuse of justice; and it is not only an abuse of justice, but it is an abuse of the fact, to say that those who are large enough to be a nation are to be considered as the enemies of all nations, because they undertake to make civil war. The point is not founded upon any technical considerations; it is founded upon the great doctrines of humanity and civilization. Because, what is to be the end of it? If we hang twelve men, they hang one hundred and fifty-six. If we treat them as rebels, why they treat our captured forces as these rebels are treated. You bring on a war without any civilizing rules. You bring in a war of worse than Indian barbarity. You bring in a war which can know nothing except bloodshed, in battle or upon the block. This is not a technical notion. It is that, when civil war is found to exist (and that altogether comes from the magnitude of the opposition), then the rules of war apply, as much as in any public war, so far as to protect the individuals acting under them. What would be said if you should take a gentleman who was made prisoner at Fort Hatteras, and try him for treason, and hang him? What would be said in this country, or in Europe,—what would be said anywhere, in the present or in future ages,—as to an act like that? Well, why not? Because justice must be equal. If you do it to one, you must do it to all. If you do it to all, you carry on an extermination of the human race, against all the principles which can animate a Court of Justice, or find a seat in the human bosom. Therefore, if we have the fact of civil war, we have the rules of war introduced.

Now, is this a civil war? I do not ask the question of how this country simply should regard it; but on the question in a Criminal Court, as to whether a civil war exists so as to give protection to those who act on one side of it, I have the concurrent judgments of the Courts. Judge Dunlop, in the case of the Tropic Wind, says there can be no blockade except in a case of war; that this is a civil war, and therefore there is a blockade. Judge Cadwalader says this is a civil war, and in civil war you may make captures; and Judge Betts, in a vastly profitable judgment, delivered in the other room, confiscating millions of property of Union men in the South, says that this is civil war. Now, if the Government of the United States forfeits the property of persons residing in these seceded States, without the formality of a trial for treason, because it is simply enemy's property, with what pretence can they set up the principle that they will not treat them as enemies? They will treat them as enemies, for the purpose of confiscation, and not as enemies, but as traitors and pirates, for the purpose of execution? Why, it is a glaring inconsistency. It strikes us off our feet as a people fit to be looked at by any impartial or rational person, in political jurisprudence.

We submit, therefore, that there was a civil war. Then what was the taking of the Joseph? I now pass by the Savannah's commission for a moment. The capture of the Joseph was in this way: The Joseph was approached by the Savannah, and her Captain ordered on board. I make no question about its being a taking by force; I make no question but that, if it was done piratically, there was force enough to make it piratical. But when asked, Why do you do it? Captain Baker replied, "I take this by authority of the Confederated States. I am sorry for it; but you make war upon us, and we have, in retaliation, to make war upon you." The vessel is taken; nothing is removed from her; and she is sent in as a prize, and reaches Georgetown. Nothing is then taken from her, but she is proceeded against in Court, and men are examined there as to the vessel, just as fairly, and probably just as good men, as have been examined in the other room. The question is tried. It is an undeniable case that, if this is a civil war, they having declared war, the vessel belongs to a belligerent, and she is taken, condemned and sold, according to the laws which have dominion over that country—a proceeding (erroneous as it may be in the ultimate object of it) according to all the course of every civilized country. And yet, we are told, that is piratical! I submit that this cannot be so. We cannot, with any approach to consistency, hold that we can treat them both as enemies and rebels at the same time. Not so. Treat them as rebels, and confiscate the property by due course of law, and you can get nothing; because it is a singular thing that in this country there is no such thing as forfeiture for treason. You cannot forfeit the chattels, but only the land, and that for life; and as the penalty of treason is death, leaving no life estate for the forfeiture to act on, there is, practically, no forfeiture for treason. When these men come and say, we have taken this property as an enemy, you treat them as rebels. It seems to me this is indulging a private animosity; it is indulging a fanatical principle, an unworthy principle, that cannot be carried out without disregarding the great rules that belong to civilized nations with regard to war.

Again, if your honors please, piracy and robbery always have secrecy about them. The open robber, who meets you in noonday, yet secretes the plunder. He does not go into a Court of Justice and say, "Behold what I have taken! here are the jewels, and here the gold; adjudge if they are lawful prize!" The robber never does that. Here there is nothing secret or furtive. The vessel and cargo are taken before a Court and adjudicated to be a prize. Let us take a case which, although unlikely to happen, might occur. A man goes from seceding Virginia with an execution to levy upon a man in loyal Virginia. The man there says, "You are superseded; you have no authority;" and it is tried there. The Court hold that the execution and levy from the seceded State does not pass the property; but would it be possible to say, there was anything furtive in the taking on the part of the officer? There is nothing more plain, in criminal law, than that, if you act under color of authority, although you may be ruined by suits in trespass, yet you are not to be subjected to punishment as having done what was felonious.

But there is one other consideration which I would present on the subject of piracy: it is robbery upon the high seas,—an act hostis humani generis. It is made an offence in this country, because it is an offence against the law of nations; for this is a question on which civilized nations do not differ. All the nations of Europe look on at this controversy. Here comes a man that the District Attorney of New York says is hostis humani generis. What says the great commercial nation of Great Britain? We do not treat you as pirates, but as belligerents. We do not recognize your independence, because you have not achieved it; but when the question arises, whether we shall consider you as pirates, whom we, in common with all other nations, have a right to take up, we say it is no such thing. Judge Sprague says, that they say it is no such thing. So, too, with France. Here is the authority of a great Empire that this is not a piratical but a belligerent act. And again, Spain reiterates the same decision. Suppose I could bring the authority of the highest Court in Great Britain that, just in such a case as this, the Court acquitted a man of piracy; and suppose I could add to that a similar judgment under the law of France; and bring a case from the Courts in Spain, deciding the question in the same way; and so, too, from Holland,—and when I come down to New York, the District Attorney says the man is hostis humani generis! Is it not absurd? If piracy be a crime against public law, it is so. The recognition and the application of the doctrines of common humanity to this great struggle,—that they should be regarded as the determining point upon this great question—it seems to me your honors will never hesitate in admitting. I, therefore, present this point, and if your honors will permit me, after this discursive argumentation, I will read it as I think it ought to be decided in law:

"There is evidence that at the time of the crew of the Savannah shipping for the cruise, and at the time of the capture of the Joseph, the authorities of the State of South Carolina had become parties to a confederation of others of the United States of America, named in the President's proclamation. That under such confederation a Government, in fact, existed; and exercised, in fact, the powers of civil and military Government over the territories and people of those States, or the principal part thereof. That the said Confederate States had, in fact, declared war against the United States of America, and were openly prosecuting the same, with large military forces, and the military and civil organization of a Government; and had assumed, and were in the exercise of, the power of issuing commissions to private armed ships, to make captures of the property of the United States, and the citizens thereof, as prize of war, and to send them into port for adjudication as such. And that a civil war thus, in fact, existed. That the taking of the Joseph was under such authority of the Confederate States, and in the name of prize of war, and with the purpose of having the same adjudged by a Prize Court in South Carolina, or some other of the said Confederate States. And, if the facts are so found, then the taking of the Joseph was not piratical, under the eighth section of the Act of 1790, and the prisoners must be acquitted from the charge under this count."

Now I approach the case of the commission. I suppose that the District Attorney, by not proving the commission as a part of the charge, is not entitled to convict any of these prisoners under the commission which is shown. He does not prove his case; and it is no matter what we have proved,—he is not entitled to a conviction under evidence which he does not bring.

But now I take up the matter of the commission, and the consideration of piracy by statute, under the 9th section. If your honors please, it is right that I should give some history of that 9th section's coming into the law of piracy. The 8th section you will find to be the law of piracy, by the law of nations. All nations hold that to be piracy which is there described. But, in the 11th and 12th of William III., this state of things existed: King James had abdicated the Crown of England twelve years before; William and Mary reigned together six years; William survived her. Here, then, was a Government in England, with a pretender, whom the English Government had declared was an alien from the Throne; they had banished him. But he was at the Court of St. Germain, in France; and there, through his instrumentality, privateers were fitted out against English commerce. Then this Act was enacted which I will now mention. You find it in Hawkins' Pleas of the Crown, under the title Piracy, book I., chap. 37, sec. 7:

"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 II., 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—11 & 12 Wm. III., c. 7, s. 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, 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 VIII., shall have and suffer such pains of death, loss of lands, goods, and chattels, as pirates, felons, and robbers upon the seas ought to have and suffer.'"

When an Act of Congress, declaring the crime of piracy, was enacted, in 1790, it is perfectly apparent that those who drew up the Act were acquainted with Hawkins' Pleas, containing the 8th section, which is the recognized law of piracy by all nations, and from that book, then, took in this 9th section; because there was no exigency in our Government to call for it, and no reason for its introduction, except that it was found in a book familiar to those who were legislating for this country. In regard to the Act, there are some peculiarities which are very striking, and which bear strongly on this subject. The first is the fact that a commission, although from a foreign State, taken by a British subject or denizen of England, and committed against British commerce, protected the party against the charge of piracy,—because the thing was taken as prize, and for adjudication according to the principles of the laws of nations, for which national action the nation which took it was responsible. But, in the case and condition of James II., the English declared that he was no longer of England,—they declared him fallen from the Crown, and a foreigner. He had no dominions, and no place where the poor man could hold a Prize Court; and, if he could authorize a capture, there was no Court to adjudicate upon it; there was no sovereign to be responsible for the action of the Prize Court. He was a King without responsibility, and without the power of having Courts of Adjudication; and it was a necessity arising in the history of English law that that kind of action should be treated as piratical. The English adopted that, therefore, as the statute piracy. I refer your honors to Phillimore's International Law (vol. III., page 398), where all the discussion and reasons are contained; and they all are reasons applicable to a Prince without dominions, without Courts, without a country; and to a foreign Prince, in regard to English property and English subjects.

Now, then, let us see how these men stand. Under the 8th section, those men who were not citizens of the United States, are, of course, protected by a commission from a Government de facto. Their taking was not animo furandi, because there was a commission. The very enactment of the statute of William III. was upon the basis that it was not piracy where there was a commission, even of this questionable sort.

I say, then, in my third point, that if the facts are found as supposed in the preceding point, and if it also appears that the commission from the Confederated States, or the President thereof, had been issued for the Savannah, and that the capture was made under color thereof, then, as to the prisoners shown not to be citizens of the United States, the taking of the Joseph was not piratical under the eighth section of the Act of 1790,—first, because it was under color of authority; nor, second, was it piratical under the ninth section, because that only applies to citizens of the United States; and the prisoners, Del Carno, &c., must be acquitted under the ninth as well as under the eighth section.

But now we come to the American citizens who took that commission, and we are to see with some accuracy how the case stands as to them,—which involves two questions: One is, what kind of "other person" is embraced in that law? And the other is, whether this indictment is supported as under a commission from any person whatever? Let me call your attention to the form of the indictment in this last count of the declaration. They all run in this way: that these persons, "being citizens, did, on pretence of authority from a person, to wit, one Jefferson Davis," &c. That is all that is said as to the pretence. Now there is no lack of skill in this indictment. The pleader under this indictment was surrounded with difficulties very grave indeed. He had the commission. If he had described it as a commission from certain foreign States, namely, South Carolina, Georgia, &c., the Government would have recognized the existence of those States in the most formal manner and by action of the most formal kind. If he said "Jefferson Davis, President of certain Confederate States," that would be simply that the pretence of authority was a pretence of authority from those States, and the same consequence would result. Well, what could he do? The only way in which he could make this stand at all was by saying that it is an authority from Jefferson Davis, as an individual. That is the meaning of this allegation.

Now, then, under the facts already stated, including now the commission and the action under it, the taking of the Joseph was not piratical, under the ninth section, because the commission was from the Confederate States, and not from "a person, to wit, one Jefferson Davis," as described in the indictment. Now that leads me to a consideration of this commission. We had something a little like it here yesterday, when the warrant issued by Mr. Buchanan Henry was given in evidence for the arrest of these men. I suppose I would be charged with ridicule in the last degree if I said they were arrested by the authority of Buchanan Henry, or under pretence of authority from Buchanan Henry; yet the warrant ran in the name of Buchanan Henry. Now let us see whether this commission supports the allegation of its being a commission from a private person. The allegation is, that the capture was made under pretence of authority from one Jefferson Davis. The commission runs just as the President's commission to your honors:

"JEFFERSON DAVIS,"PRESIDENT OF THE CONFEDERATE STATES OF AMERICA

"To all who shall see these presents, greeting:—Know ye, that by virtue of the power vested in me by law, I have commissioned, and do hereby commission, have authorized, and do hereby authorize, the schooner or vessel called the Savannah (more particularly described in the schedule hereunto annexed), whereof T. Harrison Baker is commander, to act as a private armed vessel in the service of the Confederate States, on the high seas, against the United States of America, their ships, vessels, goods, and effects, and those of her citizens, during the pendency of the war now existing between the said Confederate States and the said United States.

"This commission to continue in force until revoked by the President of the Confederate States for the time being.