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

We come, now, if the Court please, to a variety of considerations, many of them, I think, not at all pertinent to a judicial inquiry; many of them ethical; many of them political; many of them addressed to the consciences of men; and many of them addressed to the policy of Governments—and which, in the forum where they are debatable, and which for the most part is a forum which can never make a decision, may be useful and interesting. Some of them do approach, doubtless, the substance and shape of legal propositions; and I am sure I do no injustice either to the nature, or purpose, or character of these manifold views, when I say that they all centre on the proposition, that this transaction, which, in its own traits and features as a private act of these parties, is a crime of piracy, is transferred into the larger range of a conflict of force, authorized by the laws of war, and with no arbiter and no avenger, but in the conscience, and before the common Judge of all. Now, if the Court please, the legal notion to which we must bring this down, is this—that the acts here complained of are, within the law and jurisprudence which this Court administers, acts of privateering, not falling within the law of piracy.

Now, what is privateering? My learned friends have spoken of privateering as if it were one of the recognized, regular, suitable public methods of carrying on hostilities between nations, and as if it fell within the general protection which makes combatants in the field, fighting as public enemies, and against public enemies, amenable only to the laws of war. And my learned friend, Mr. Lord, has read, with much satisfaction, the very pointed observations made by Mr. Marcy in his letter to the French Minister, which were very just and very appropriate as a home argument against France; that is, the encomiums of certain French commanders on the dignity and nobility of the conduct of privateers who rushed to the aid of their country when at war. Now, my view, and I believe the view of the law books and of the publicists of the present day, is this—that privateering is the last relic of the early and barbarous notions of war, that a trial of force between nations involved a rightful exercise of personal hostility by every individual of one nation against every individual of the other, and against every portion of the property of the other. That law of war which authorizes the attack on peaceful persons by armed bands on land, and the robbery, devastation, and destruction of private property wherever it may be found, has been long since displaced by those principles of humanity, of necessity, and of common sense, which make war an appeal, when there is no other arbiter, to the strength of the parties, to be determined with as little injury to property and life as possible. Now, privateers have never been looked upon as being themselves entitled to the least comparison with the regularly enrolled military power, or with the regular naval service, in respect to their motives, or the general rules of their conduct, or the general effect which their depredations are expected to produce. And the tendency of all movements in the public laws of nations, as affecting the maintenance of war, has been at least to discourage and to extirpate, if possible, this private war on sea, in both of its forms—to wit, in the form of public armed vessels taking private and peaceable property on sea, and in the still more aggravated form of private armed vessels, with crews collected for the purposes of gain and plunder, under the license which war may give. So far from this Government having, on the general principles, moral and social, which should govern such a discussion, desired to maintain or extend privateering, it was among the first and the earliest to concede in its treaties, and to gain from the other contracting parties the concession, that if war should arise between the parties to the treaty, privateers should not be commissioned or tolerated on either side. And, if this Government has failed to yield to the attempt made on the part of certain European powers to crush this single branch of private war on the ocean, to wit, war by private parties on the ocean, it has only been because it saw that that design, not including the destruction of that other branch of private war at sea—the war of public vessels against private property—was not a design clearly stimulated by the purposes and interests of humanity. While the European Governments chose to destroy that branch which was least important to them—the use of private armed vessels—they claimed to continue in full force the right of public armed vessels to make aggressions on private property on every sea. The one point was quite as important to have ameliorated as the other, which permits us to recruit the small navy which our republican institutions justify us in maintaining, by the vigor of our mercantile marine in the time of naval war. Therefore, there is nothing in the history of the country which can, in the least, support the idea that we look with favor on the notion of privateering.

Some sensible observations upon the subject are to be found on marginal page 97, in the first volume of Kent's Commentaries, to which I ask your honors' attention:

"Privateering, under all the restrictions which have been adopted, is very liable to abuse. The object is not fame or chivalric warfare, but plunder and profit. The discipline of the crews is not apt to be of the highest order, and privateers are often guilty of enormous excesses, and become the scourge of neutral commerce. They are sometimes manned and officered by foreigners, having no permanent connection with the country or interest in its cause."

I agree that there is still left, under the license and protection of the law of nations, the prosecution of hostilities on the high seas by privateers and private armed vessels. And I agree that, although the crime proved in this case does come within the description and punishment of robbery and piracy, in its own actual traits and features, yet if it be shown that what is thus made piracy and robbery by the statute was actually perpetrated by a privateer, under the protection of the law of nations, with a commission from a sovereign nation, within the scope of the authority of that commission, it is an answer to an indictment, the terms of which had been otherwise proved. And that is undoubtedly what is claimed here. You have proved piracy and robbery under the eighth section, say these defendants, if we cannot impart to the circumstances and features of this crime some public quality and authority which saves the transaction from condemnation and punishment.

Mr. Brady: We say no such thing. We say that, if they acted in good faith, however mistaken, and though the commission may be void, they have not committed any offence whatever.

Mr. Evarts: This is the extent of my concession, as matter of law,—that it is an answer to a charge of piracy which is otherwise complete, that the crime was committed under conditions which, by the law of nations, relieve it from punishment. Now, what are the conditions that the law of nations requires?

First, there must be a war. We do not allow private armed vessels to prosecute general marauding hostilities in support of the views of their Governments. We do not allow the interruption of the freedom of the seas by such marauding vessels, except in cases of flagrant war, which neutral nations are compelled to recognize.

Secondly. The privateer must have received its commission from a public, national, sovereign power. You cannot make a privateer, and turn private acts that, by the law of nations and by municipal law, are piratical, into acts of war, which are of the same intrinsic quality and have the force of national acts, unless by this sine qua non of public authority and adoption.

Now, if the Court please, when it comes up for judicial inquiry, whether a case of privateering, under the law of nations, is fairly made out, and where the case arises during flagrant war between two separate, independent, established nations, whose nationality is a part of the order of things in the world, the Court has only really to inquire, judicially, into two subjects—whether the vessel had a lawful privateer's commission from one of the contending parties—and whether the acts committed by her were within its scope, either actually or in the sense of a fair construction of the authority, and of good faith in the exercise of the power. But, even in these cases, where the only points are, whether there be war, and whether there be nationalities on each side which can convey this public authority, the Court is all the while governed by, dependent upon, and subordinate to, the views of the Government from which the Court derives its authority. No judicial tribunal has a right to recognize a nation, of its own motion. No judicial tribunal has authority to recognize a Government which the Government from which it derives its authority does not recognize. I have never heard it proposed, as a view either of public or of domestic law, that when a Government has declined to recognize a nation, it was within the jurisdiction of a Court of that Government to determine differently, and reverse the decision of the political power. In the cases of France and England, which are recognized Governments that have placed themselves as firmly among the nations of the world as private individuals are planted in the rights of man, our Courts intermit this inquiry. A privateer of England which confines itself within the scope of its commission, can not be proceeded against as a pirate, although it commits acts which would of themselves be piracy. But, there do arise questions which come under the jurisdiction of the Courts, under circumstances of doubt and obscurity as to the course or view which our Government has taken in relation to the alleged nationalities of alleged belligerents; and I need not say to your honors, that by an unbroken series of the decisions of the Supreme Court, as well as by the necessary subordination of the judicial authority to the political power of the Government, our Courts always take the view which their Government takes in respect to struggles and hostilities which arise between uncertain, indefinite and unascertained powers. Thus, whenever there occur, between Colonies and the parent Government,—between disaffected regions or populations and the sovereign to which they have been subject—dissensions which, arising from the region of discontent, sedition and turbulent disorder, reach the proportion of military conflict and appeal to arms, then, when acts in the nature of war are assumed to be performed, under circumstances that bring them within judicial cognizance in our Courts, and in the Courts of any other civilized nation, as to whether they still retain their quality and character of private acts, attended by the private responsibility of the criminals, or whether they are transferred to the wider theatre and looser responsibility of warlike engagement, our Courts, as do the Courts of other civilized nations, look to the Government to see what is its policy and its purpose. The instances in which these unhappy contests and these obscure questions have been presented before the Courts, have been almost entirely connected with the separation of the South American Colonies from the mother country of Spain. In all these cases, the new Governments of the revolted Colonies gave commissions to privateers, and undertook to put themselves before the nations of the world as belligerents, claiming from neutral nations, not a recognition of their independence, or of their completed nationality, but of their right to struggle, through the forms of force and war, to establish that nationality. They presented to the discretion and the policy of every other civilized Government precisely this question—Is there enough of substance, of good faith, of power, to justify us, as equal expounders and equal defenders and protectors of the laws of nations, although there be now no present nationality that can support, under the rules of the law of nations, by mere right, the exercise of warlike powers—is there enough, in the transaction, to justify us in considering it to be so substantial and bona fide an effort for the assertion of independence and the creation of a new nation, that we shall give to it the opportunity, and turn what would be piracy and marauding into an act of belligerents, so far as we neutrals are concerned?

When a nation is an independent nation, all other nations of the earth are, by public law, bound to recognize it, and bound to recognize its right to make war. The most powerful nation in the world has no more right to make war than the smallest nation in the world; and, each being judge of its own conduct, when a state of war exists, such war must, by the public law of the world, be recognized. But when new, unformed, inchoate, tentative consolidations or efforts of nationalities present themselves, every nation has, by the public law, a right to exercise its own wisdom, its own policy and its own sense of justice, to determine whether or not it will recognize them; and, in every one of the cases I have referred to that came before our Courts, arising for their consideration as between two parts of a foreign country, our Courts said—Our Government has done so and so; it has recognized them as belligerents, and we follow our Government. In other cases, as in that of the Commander Aury, the Court said—We do not understand that there is any such power known in the world; our Government has never in any way recognized, not its independence, for that is not necessary, but its position as a war-making power, or as a struggling power, fighting for nationality, and we cannot recognize that condition of things.

Now, unhappily, there arises a conflict in our own country, which presents the case of an armed military rebellion—a revolt of certain portions of population, maintaining, if you please, to a certain extent, the mastery over a certain portion of our soil, using against us the actual means and processes of war, and compelling from our Government, in maintaining dominion against their aggressive assaults, the means of military power, naval and land forces, and all the authority and violence of war. Foreign nations have had, in regard to us and to this conflict, the same kind of questions presented that have been presented to us in the contests between the dismembered parts of other countries. And every nation was free to determine, upon this exact question of the right of private war, as belonging to those rebellious portions of this country—to determine whether it would tolerate privateering as a warlike proceeding, or would regard privateers as marauders or pirates without just right or cause, and without the pretence of sufficient force and dignity, in a movement to disturb the peace of the world.

My learned friends have said, using the force of the argument in aid of their cause, that France and England have recognized the insurgents as belligerents, and have precluded themselves from treating as pirates private armed vessels that shall derive authority from these rebellious powers. Well, by the same law of nations that gave to France and England this right thus to elect, they had the right to determine, and to announce by proclamation, that the peace of the world upon the ocean should not be disturbed, under pretence of war, by these insurgents, and that, if they should resort to private armed vessels to inflict aggressions and disturb the commerce of the world, they would be treated as pirates. And if, under the law of nations, the political authorities of France and England had thus announced their policy that these insurgents should be treated as pirates, I would like to know if advocates would be heard, in the Court of Queen's Bench or in the Courts of France, to urge that the Court, wiser than its Government, should, in the exercise of sovereign discretion under the law of nations, tolerate, as an act of war, what is piracy by municipal statute or the law of nations, unless accredited as part of a warlike movement. Would those Courts permit the defence to be made, that what were declared to be acts of piracy were acts of war,—the Government having so elected and so announced, that it would regard them as acts of piracy and not as acts of war?

Now, I am arguing this case altogether on this point, as if the Government from which this Court derives its authority—whose laws we are administering—whose authority is vested in your honors on this trial—stood as a stranger to and spectator of this contest, and it was really a controversy between parts of another nation. And all I have claimed is, that our Government, in common with the other nations of the world, has, by the law of nations, the right, in its discretion, to determine how this proceeding shall be treated, and what consequences shall follow from it. Now, I need not say that, treating our Government as if it stood ab extra, and as if, passing its judgment on what was going on, it had determined that these privateers should be regarded as pirates, they should not be recognized as having the right of war, or the right, as an inchoate nationality, to perfect their independence.

The Proclamation of the President of the United States, of the 19th of April, 1861, is a complete and perfect denunciation of this threatened crime of piracy, the purpose to recur to which had been manifested by a public declaration of Jefferson Davis, which had invited, from all quarters of the globe, privateers to prey upon the commerce of the United States. I need not say to your honors that when our Government has pronounced this to be piracy, and to be not within the law of nations, under its discretion to determine whether it will recognize an inchoate nationality, this Court has not, any more than has a Court of England or France, the power to say that what its Government does not choose to recognize, even in the quality of belligerents, it will recognize. What our Government has said shall remain in the quality of criminality, must so remain, notwithstanding this proclamation of Jefferson Davis, or any commission that may issue in pursuance of it.

I apprehend that even if we were to bring ourselves into the paradoxical condition of passing judgment on this question as a disinterested, yet sovereign nation, your honors would find in the acts of the Government a complete denunciation against this proceeding as a crime of piracy, and a complete policy, which the Court must follow, leaving any diplomatic considerations of the results which may follow its mistaken, if you please, construction of its duty, to be disposed of by the authorities that are responsible for it.

Mr. Brady: I believe there is no proof of any such action by the legislative branch of this Government.

Mr. Evarts: I apprehend that the whole course of the legislation of this country shows that we do not recognize or tolerate this contest as a thing that is rightfully to go on. That is all that is necessary.

I say, if the Court please, that the course of an external sovereignty, in these intestine quarrels, turns upon the point whether it will give its sanction to an intrusion upon the peace of the world by an inchoate nation, and I am trying to consider that question as if our Government had passed judgment upon it ab extra; and I say that the action of our Government shows that we do not intend to recognize it as something that should be allowed to go on. These considerations, as to any recognition by this Court of rights derivable from quasi, pretended, nascent, public powers, would induce this Court to follow the decision of the Government, in case we were judging of the question as a controversy between parts of another nation.

I am now brought to the consideration of who are the parties to this controversy, and what are the relations of this Court and of the laws we are administering to the subject and the inquiry. The Government of the United States still stands. The old Constitution, the whole system of its statutes, the whole power of its army and of its navy, stand. It has its Courts of judicature; it has its commerce still on the seas; its laws are still operative, and still to be administered. And when this Court considers this case, it finds it brought before it as every other criminal case is, and limited to the considerations that belong to every criminal case. The Government of the United States, by the ordinary exercise of the process of judicature,—by seizure under public authority,—by arrest within this District, through the criminal process of this Court,—by the indictment of a Grand Jury,—by the prosecution of the District Attorney,—has proposed to this Court the naked and narrow inquiry of whether these men have committed a crime against the statutes of the United States. Now, I would like to know whether there is anything in these occurrences, that have secured, if you please, for the present, (and the future may be uncertain,) in large portions of our territory, a practical control over great portions of our population,—I would like to know if there is anything in these transactions that has displaced the constitutional legislation of the United States of America over crimes on the high seas, and over its citizens committing crimes on the high seas, or over subjects or citizens, of whatever country, committing crimes on the high seas against our property? I take it, not. Therefore, if your honors please, whatever may be said, in one form or another, of the political right, as respects these States, either constitutionally or by the right of force, to be independent, or to attempt to be independent of the United States, or to engage in this struggle for the settlement of some question of dispute under the Constitution,—whatever may be said of that, your honors cannot fail to discover that nothing which has occurred has destroyed the organism of our Government, or altered for a moment the judicial authority or the force and supremacy of the Constitution and the laws, within the territory where the Courts are open, over the subjects of our Government, and the subjects of whatever Government, in respect to whatever property, upon the high seas.

I understand that my learned friend, Mr. Larocque, supposes that the ordinance of repeal of South Carolina, constitutionally or unconstitutionally supported by the strength to maintain its independence, has changed these four men who are indicted here and are proved to be citizens of the United States, from their condition of citizens of the United States; and he holds, and asks as legal proposition from your honors, that, at the time of the commission of this crime, these men were not citizens of the United States, by reason of the constitutional right of South Carolina to carry itself out of the Union, by force of ordinances, or supported by military power that had maintained itself up to the first of June in the possession of independent power. Your honors will charge, or refuse to charge, accordingly as you may find that the old Government has sovereignty and has attempted to exercise it, and that there has been no severance of our territory to the extent of a permanent division,—whether these men are citizens of the United States, or of a foreign country. If they are held to be citizens of a foreign country, to wit, of South Carolina, or of the Confederate States, then they fall back under the eighth section of the Act, as having committed piracy under that section.

But, to come back to the attitude of our Government, which this Court must follow, towards these rebels,—towards these malcontents,—towards these combinations, which are exercising the processes of war, undoubtedly,—what is the attitude of our Government? Does it recognize their right—does it recognize their independence—does it recognize their authority, so that you find that our Government has adopted the policy of not punishing them under the laws of the United States?

And this brings me to the consideration of another general subject, which Mr. Lord adverted to, and upon which he cited the authority of Vattel—that it would be monstrous, and would expose this Government to the execration of the world, if the criminal laws against murder and robbery on land, and the civil laws against trespass, were to be executed to the letter, and to the full extent of the vengeance of the law against the multitudinous enemies that are arrayed against this Government. Now, I must decline to be led out of a Court of Justice, by this argument, to considerations that appeal to the wisdom, or humanity, or policy of the Government. I would like to know whether my learned friend would contend that, if a private soldier, found in arms, and part of a military force, against the Government of this country, is arrested by that Government, and is indicted, and put upon his trial for treason, which the Constitution of the United States limits to the overt act of levying war against the Government, and if, under the indictment, he pleads in bar that he was levying war against the United States of America,—that would relieve him? For that is the whole nature of the proposition put forward in a Court of Justice,—that, because there are armies, there is no treason! Why, if your honors please, how absurd to present for the recognition of a Government, in its Courts of Judicature, the proposition that there is no treason, from the number of the confederates in the treachery! Your honors see at once that, the idea of setting up such a defence, on a trial for treason, against a private soldier, found in arms against the Government, is absurd. And yet, your honors recognize what is laid down by the publicists, that when the dimensions of a rebellion have been aggravated into the proportions of flagrant war, for a Government to insist upon the decimation or extermination of the population by the gallows or the axe, would be inconsistent with those general principles of humanity and justice that actuate, by necessity, the affairs of men.