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

"Schedule of description of the vessel:—Name, Schooner Savannah; tonnage, 53-41/95 tons; armament, one large pivot gun and small arms; number of crew, thirty.

"Given under my hand and the seal of the Confederate States, at Montgomery, this 18th day of May, A.D. 1861.

"JEFFERSON DAVIS.

"By the President—R. Toombs, Secretary of State."

Now I submit that, if they had framed an indictment for taking a commission under the King of England, and it had been under the Government of England as a foreign State, without naming the individual, such a commission as this would sustain it. If they had indicted as taking a commission out under any foreign State or nation, a commission in this way would have sustained that indictment; because the officer is merely the authenticator of the instrument; the authority is not his,—it is not under his authority; he is the mere ministerial officer, in fact, of the Government.

Now I submit, that this taking cannot be held piratical, under the ninth section, on this indictment; because it was a taking, not on pretence of authority from Jefferson Davis, but under authority of the Confederate States, exercised by Jefferson Davis. And, in a case of this kind, I must say that I consider it will prove the greatest Godsend to the Government, and to the prisoners on both sides who now anxiously await the result, if, without touching the other questions, this indictment shall fall to the ground on a mere technical point.

That is one reason. Another reason is this: The Act is for taking vessels under a commission from any foreign Prince or State, or on pretence of authority from any person. Now what is a foreign Prince or a foreign State? If your honors please, at the time this Act was enacted, within some three years of the United States coming together, is it conceivable that the thought entered into the heart of any man who had anything to do with it that it was to take effect against any man acting under the authority of any of the States of this Union? The States all were authorized, under certain circumstances, to have ships-of-war and to have armies. There was no telling what collision there might be; and the idea that this Act, almost a literal transcript from the English statute of 11 and 12 William III., contemplated that punishment for acting under the authority of domestic persons, is inconceivable.

In construing an Act so highly penal as this we must be very sure that we are not only within the letter, but within the very spirit and contemplation, of the Act; and can you think that the framers of this Government gravely provided for the offence of taking a commission under some of the persons acting as Governor, or in connection with the domestic institutions of this country? I submit that the Act was intended to operate against foreign States and nations, and a foreign person; and it is inconceivable that the Act should have been contemplated to embrace any such thing as is now brought up. I submit, therefore, as the third of my specifications under this point, that Jefferson Davis was not a foreign person, nor assuming the authority of a foreign Prince or Ruler. The statute was one against commissions under foreign authority of some kind or other, either Prince, or State, or person.

But I now draw your attention to another feature of the statute, which seems to me equally decisive. This statute is transmitted to us from England, and that which was the design and exigency of its adoption there is to bear with great, if not decisive, force, upon its construction here. We took it because they had it, and we took it, therefore, for reasons similar to theirs. Now what was the real difficulty there? It was this: that a Prince without dominion, a Prince having no Government de facto, a mere nominal Prince, undertook to issue commissions throughout the world against British commerce. Evils that are very manifest and plain, in regard to the law of prizes, apply to that case. The prizes could not be adjudicated in his Courts; he had none. This was an enactment against Princes who had abdicated and were without dominion. Such things were common, as well in the time of William III. as since. Abdicated Princes very soon turn to be robbers, whose only object is to get re-established, and they are not scrupulous as to means. They stand as mere fictions, undertaking to exercise authority, with none of the responsibilities which belong to Rulers. How different it is with this Jefferson Davis! I speak now in no degree of his merits, or as lessening that feeling which my fellow-citizens and I share alike upon the subject of this rebellion. But here is a man, not a nominal Prince or Ruler, but he is (if you please without right) Ruler of ten millions of people. Is this Act, which is intended to meet the case of a man without people, or dominion, or force—without any thing but the name and claim of Ruler—to be applied to a man who represents (rightfully or wrongfully) a large fraction of a great nation? To say that every man who takes a commission (applying as well to civil as to military commissions), that any man who takes a commission, from him, is either a robber or a pirate—if on land, a robber, if on sea, a pirate—is unjust and unreasonable—contrary to every principle that governs the laws of nations. Patriotic vituperation may go far—patriotic spirit and feeling may go far—but there is a limit to every thing that is real. The human mind, as it seems to me, and the human heart, cannot go to the extent of the doctrine that they can be treated as robbers who act under a Government extending de facto so far and doing de facto so many things throughout upon the principles of civilized warfare, and having a vast territory, and vast numbers of people acting as it dictates. It is perverting the law of piracy to apply it to a case so entirely different.

Now it comes back to the fact that this "pretence of authority" was the authority of all those States. Those States, when they come back to the Union, if they ever do, will come back with all their powers as original States. The Confederation you may call illegal and improper, but it is a Confederation de facto; its right may be questioned, but it is a de facto Government, with this gentleman presiding over it, and performing the duties which, as the Ruler of a great nation, devolve upon him—bringing out armies by hundreds of thousands, bringing out treasures by the million,—and yet you are to say it has no color of authority. It is idle, it seems to me, to say that a man situated as Jefferson Davis is was intended by a law against a mere nominal Prince. I submit that because Jefferson Davis was actually the Chief of a Confederation of States, not foreign, exercising actual power and government over large territories, with a large population, under an organized Government, having Courts within its territories for the adjudication of captures,—that upon each of these grounds Harleston, as well as the others who are citizens, should be acquitted under the 9th section.

That is all the argument which I address particularly; and I beg leave to read two or three general propositions on the construction of the law in this matter:

 I.—The recognition, by the great commercial nations of the world, of the Confederate States as belligerents, and not pirates and robbers, prevents the captures under authority from being held piratical under the law of nations.

II.—1. The ninth section of the Act of 1790 has not in view any application to the States then recently united as the United States of America, or to the persons having authority de facto in them.

2. That section had in view foreign Princes and States, and foreign authority only.

3. The authority from any person in that section has reference to persons without the possession, in fact, of territory.

If your honors please, I have endeavored, so far as it was possible, to abbreviate what I have had to say on this subject. It is a very interesting one, undoubtedly, not only to the legal student, but to all persons in the country. This war is a war to reclaim those States. To attempt to reclaim them by prosecutions for piracy, or by acts of hostility which disregard them as having any form of society,—it seems to me that no national evil could be greater. The idea that in a commercial city it is very offensive that there should be privateers, is a trifle. The navy can regulate that. Let them look more to the privateers that want to get out than to the prizes that want to come in, and that will be provided for. We need not violate principles of law, or of humanity, or the common sense of the world, to produce an effect of that kind. We need to show that, in the midst of all this excitement and outcry against piracy—in the midst of a press that never names any of these people without calling them "pirates"—the men brought in always in chains, for the purpose of exciting public indignation against them and preventing their being treated as men of common rights and common interests with us—all which is very humiliating, it seems to me—in a Court of Justice no such feelings will be succumbed to.

Certain I am that, where I stand, no such principles will be put in use. Justice will come—severe and stern, it may be—but it will be justice, with truth, and reason, and humanity, and political tenderness accompanying all its acts and all its judgments.

Mr. Larocque: If the Court please, I had hoped to be saved the necessity of addressing your honors upon these propositions of law; but, in the distribution that has been made among the counsel, it has fallen to my lot to present the propositions in reference to which my opening was made, yesterday, to the Jury, and which will be adverted to by the counsel who, on our side, will close the case; and, simply, without detaining your honors, at this late hour, with any remarks upon them further than the reading of some extracts from authorities I have collected, I will present the propositions, leaving them to the action of your honors, and to the remarks of my associate, who will close this case, after we have ascertained the direction it will take before the Jury.

The first proposition I had stated, with reference to jurisdiction: "That the defendants, after their capture and confinement as criminals, for the acts charged in this indictment, having been taken within the District of Virginia, on board the vessel on which they were so confined before being brought within the Southern District of New York, cannot be convicted under this indictment."

In reference to that, there are a number of additional authorities that I will furnish to your honors. In the case of the United States vs. Charles A. Greiner, tried before Judge Cadwalader, in the Philadelphia District, the defendant had been arrested under a charge of treason committed in Georgia. It seems to have been understood, by the learned counsel on the other side, that the question of jurisdiction may be influenced by the fact of whether there was any possibility of these prisoners being tried in Virginia or not; and it is in reference to that point that I cite this case. Judge Cadwalader says:

"The questions in this case are more important than difficult. On the 2d of January last an artillery company of the State of Georgia, mustered in military array, took Fort Pulaski, in that State, from the possession of the United States, without encountering any forcible resistance. They garrisoned the post for some time, and left it in the possession of the government of the State. The accused, a native of Philadelphia, where he has many connections, resides in Georgia. He was a member of this artillery company when it occupied the fort, and, for aught that appears, may still be one of its members. He was not its commander. Whether he had any rank in it, or was only a private soldier, does not appear, and is, I think, unimportant. He is charged with treason in levying war against the United States. The overt act alleged is, that he participated, as one of this military company, in the capture of the fort, and in its detention until it was handed over to the permanent occupation of the authorities of the State.

"The primary question is whether, if his guilt has been sufficiently proved, I can commit him for trial, detain him in custody, or hold him to bail to answer the charge. The objection to my doing so is, that the offence was committed in the State of Georgia, where a Court of the United States cannot, at present, be held, and where, as the District Attorney admits, a speedy trial cannot be had. The truth of this admission is of public notoriety.

"The Constitution of the United States provides that in all criminal prosecutions the accused shall enjoy the right to a speedy trial by a Jury of the State and District wherein the crime shall have been committed. The only statute which, if the Courts of the United States for the State of Georgia were open, would authorize me to do more than hold this party to security of the peace, and for good behavior, is the 33d section of the Judiciary Act of the 24th September, 1789. That section, after authorizing commitments, &c., for trial, before any Court of the United States having cognizance of the offence, provides that if the commitment is in a District other than that in which the offence is to be tried, it shall be the duty of the Judge of the District where the delinquent is imprisoned seasonably to issue, and of the Marshal of the same District to execute, a warrant for the removal of the offender to the District in which the trial is to be had. The District Attorney of the United States does not ask me to issue such a warrant for this party's removal to Georgia for trial. Therefore I can do nothing under this Act of Congress. It does not authorize me to detain him in custody to abide the ultimate result of possible future hostilities in Georgia, or to hold him to bail for trial in a Court there, of which the sessions have been interrupted, and are indefinitely postponed."

In reference to the counts of the indictment founded upon the 8th section of the Act of 1790 and the Act of 1820, the propositions I have are these:

"Second, That to convict the defendants, under either of the first five counts of the indictment, the Jury must have such evidence as would warrant a conviction for robbery if the acts proved had been performed on land.

"Third, That the defendants cannot be convicted of robbery, in the capture of the Joseph, unless she was taken with a piratical and felonious intent.

"Fourth, That if the defendants, at the time of her capture, were acting under the commission in evidence, and, in good faith, believed that such commission authorized her capture, they did not act with a piratical or felonious intent, and cannot be convicted under either of the first five counts in the indictment."

There are one or two authorities I did not state yesterday, which I beg now to furnish, as some additional authorities have been handed up on the other side:

The Josefa Segunda, 5 Wheaton, 357. In this case Judge Livingston says:

"Was the General Arismendi a piratical cruiser? The Court thinks not. Among the exhibits is a copy of a commission, which is all that in such a case can be expected, which appears to have been issued under the authority of the Government of Venezuela. This Republic is composed of the inhabitants of a portion of the dominions of Spain, in South America, which have been for some time, and still are, maintaining a contest for independence with the mother country. Although not acknowledged by our Government as an independent nation, it is well known that open war exists between them and His Catholic Majesty, in which the United States maintain strict neutrality. In this state of things, this Court cannot but respect the belligerent rights of both parties, and does not treat as pirates the cruisers of either so long as they act under and within the scope of their respective commissions."

In the United States vs. The Brig Malek Adhel (2 Howard's U.S. Rep. 211), as to the Act of 1819, Judge Story (page 232) says:

"Where the Act uses the word piratical, it does so in a general sense,—importing that the aggression is unauthorized by the law of nations, hostile in its character, wanton and cruel in its commission, and utterly without any sanction from any public authority or sovereign power. In short, it means that the act belongs to the class of offences which pirates are in the habit of perpetrating, whether they do it for purposes of plunder, or purposes of hatred, revenge, or wanton abuse of power. A pirate is deemed—and properly deemed—hostis humani generis. But why is he so deemed? Because he commits hostilities upon the subjects and property of any or all nations, without any regard to right or duty, or any pretence of public authority. If he willfully sinks or destroys an innocent merchant ship, without any other object than to gratify his lawless appetite for mischief, it is just as much piratical aggression, in the sense of the law of nations, and of the Act of Congress, as if he did it solely and exclusively for the sake of plunder, lucri causâ. The law looks to it as an act of hostility; and, being committed by a vessel not commissioned and engaged in lawful warfare, it treats it as the act of a pirate, and one who is emphatically hostis humani generis."

Then upon the question that this commission is only by color of authority from an unrecognized power, and that the authority to grant such a commission is disputed, I refer to the case of Davison vs. Certain Seal Skins (2 Paine's C.C.R. 332), which was a case of salvage of property after a piracy alleged to have been committed by Louis Vernet, at Port St. Louis, in the Eastern Falkland Islands, by taking them from a vessel,—he wrongfully and unlawfully claiming and pretending to be Governor of the Islands, under Buenos Ayres. The Court says:

"Robbery on the high seas is understood to be piracy by our law. The taking must be felonious. A commissioned cruiser, by exceeding his authority, is not thereby to be considered a pirate. It may be a marine trespass, but not an act of piracy, if the vessel is taken as a prize, unless taken feloniously, and with intent to commit a robbery: the quo animo may be inquired into. A pirate is one who acts solely on his own authority, without any commission or authority from a sovereign State, seizing by force and appropriating to himself, without discrimination, every vessel he meets with; and hence pirates have always been compared to robbers. The only difference between them is that the sea is the theatre of action for the one, and the land for the other."

By referring to this case, pp. 334, 335, your honors will find that Buenos Ayres had no lawful jurisdiction over the islands, and that our Executive Government had so decided; but Buenos Ayres avowed the acts of those claiming to act under her authority, and our Government discharged the prisoners who had been captured as pirates, disclaiming, under those circumstances, to hold them personally criminally responsible.

The next proposition which I state is this: "That, by the public law of the world, the law of nations, and the laws of war, the commission in evidence, supported by the proof in the case as to the color of authority under which it was issued, would afford adequate protection to the defendants against a conviction for piracy; and being an authority emanating neither from a foreign Prince nor foreign State, nor from a person merely, the offence charged in the last five counts of the indictment, is not within the purview of the 9th section of the Act of 1790, and the defendants cannot be convicted under either of those counts, if they acted in good faith under that commission."

I refer your honors to the case of the Santissima Trinidad, 7 Wheaton, 283, to the opinion of Judge Story, in which he says:

"There is another objection urged against the admission of this vessel to the privileges and immunities of a public ship, which may as well be disposed of in connection with the question already considered. It is, that Buenos Ayres has not yet been acknowledged as a sovereign independent Government, by the Executive or Legislature of the United States, and therefore is not entitled to have her ships-of-war recognized by our Courts as national ships. We have, in former cases, had occasion to express our opinion on this point. The Government of the United States has recognized the existence of a civil war between Spain and her Colonies, and has avowed a determination to remain neutral between the parties, and to allow to each the same rights of asylum, and hospitality, and intercourse. Each party is, therefore, deemed by us a belligerent nation, having, so far as concerns us, the sovereign rights of war, and entitled to be respected in the exercise of those rights. We cannot interfere to the prejudice of either belligerent, without making ourselves a party to the contest and departing from the posture of neutrality. All captures made by each must be considered as having the same validity; and all the immunities which may be claimed by public ships in our ports, under the laws of nations, must be considered as equally the right of each, and as such must be recognized by our Courts of Justice, until Congress shall prescribe a different rule. This is the doctrine heretofore asserted by this Court, and we see no reason to depart from it."

Your honors, by referring to the case of The Bello Corunnes, 6 Wheaton, 152, will see the doctrine laid down distinctly, that acts may be piratical for all civil purposes which would not authorize the conviction of the perpetrators criminally as pirates; e.g., a citizen of the United States, taking from a State at war with Spain a commission to cruise against that power, contrary to the 14th art. of the Spanish Treaty;—and the Court held, in that case, that that would involve the consequences of a piracy, for the purpose of condemnation of property; but it would not be criminal piracy, under either the law of nations or of the United States.

On the general subject of privateers I had a reference to Vattel, but I do not think it necessary to read it, because the authorities on that subject cover it so fully.

I come now, if your honors please, to what my learned friend, when he addressed the Court on the part of the Government, has been pleased to call the political part of this case; and I have distinctly stated in my propositions what I contended for on that subject. In the first place, that the Federal Executive Government, and the executive governments of the States, under the Constitution of the United States, each possess the jurisdiction to decide whether their respective acts are within or exceed the limits of their respective constitutional powers, in cases of collision between them in their administrative acts, operating upon the public domain, or upon the State, or its citizens as a body politic.

I shall, without stopping for any discussion, simply state the subordinate propositions by which I think that is established, and give a reference to the authorities. I say, in the first place, as I said to the Jury, that citizens of the United States owe a divided allegiance, partly to the United States and partly to their respective States. They can commit treason against either; for the State constitutions and laws define and punish treason against the States, as the Constitution of the United States does treason against them.

The Federal and State Governments are each supreme and sovereign within the limits of their respective jurisdictions under the Federal and State Constitutions; each operates directly upon the citizen, and each also operates as a check and restriction upon the other, and upon the encroachments of the other, in seeking to extend beyond legitimate limits its jurisdiction over the citizen, or over the public domain common to both. Now, if your honors please, in regard to that, I will very briefly refer you to what I rely upon. I refer, in the first place, to sections 2 and 3, of Article 6th, of the Constitution of the United States.

"Sec. 2. This Constitution, and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the Judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.