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

Have not the Courts of the United States sanctioned that proceeding? Suppose that Hungary, or Venice, or Ireland shall separate from their present empires and establish Governments for themselves, what will be our position? Let your verdict in this case determine.

It is, perhaps, well, now, to recur to the law of nations. That is a part of the common law of England and of this country. We may claim in this Court the benefit of its enlightened and humane provisions, as if they were embodied in our statutes. There are circumstances in the history of every nation, when the law of nations supervenes upon the statutes and controls their literal interpretation.

If the case becomes one to which the law of nations is applicable, it thereby is removed from the pale of the statute. Such is the present case. In the seceded States a Government has been established. It has been hitherto maintained by force, it is true, as against the United States, but by consent of the people at home; and both sides have taken up arms, and large armies now stand arrayed against each other, in support of their respective Governments. It is all-important to the cause of justice, and to the honor of the United States, to see that in their official acts, in their treatment of prisoners, either of the army or captured privateers, they conform to the rules recognized as binding, under similar circumstances, by civilized and Christian nations, and sanctioned by the authoritative publicists of the world. I will recall your attention to extracts from Vattel, and with the firmest confidence that they will vindicate my views, that the defendants are entitled to be held as prisoners of war, and not as criminals awaiting trial:

Vattel, Book III., chapter 18, sec. 292:

"When a party is formed in a State, which no longer obeys the sovereign, and is of strength sufficient to make a head against him, or when, in a Republic, the nation is divided into two opposite factions, and both sides take arms, this is called a civil war. Some confine this term only to a just insurrection of subjects against an unjust sovereign, to distinguish this lawful resistance from rebellion, which is an open and unjust resistance; but what appellation will they give to a war in a Republic torn by two factions, or, in a Monarchy, between two competitors for a crown? Use appropriates the term of civil war to every war between the members of one and the same political society."

Subsequent clause in same section:

"Therefore, whenever a numerous party thinks it has a right to resist the sovereign, and finds itself able to declare that opinion, sword in hand, the war is to be carried on between them in the same manner as between two different nations; and they are to leave open the same means for preventing enormous violences and restoring peace."

Last clause in section 295:

"But when a nation becomes divided into two parties absolutely independent and no longer acknowledging a common superior, the State is dissolved, and the war betwixt the two parties, in every respect, is the same with that in a public war between two different nations. Whether a Republic be torn into two factious parties, each pretending to form the body of the State, or a Kingdom be divided betwixt two competitors to the Crown, the nation is thus severed into two parties, who will mutually term each other rebels. Thus there are two bodies pretending to be absolutely independent, and who having no judge, they decide the quarrel by arms, like two different nations. The obligation of observing the common laws is therefore absolute, indispensable to both parties, and the same which the law of nature obliges all nations to observe between State and State."

"If it be between part of the citizens, on one side, and the sovereign, with those who continue in obedience to him, on the other, it is sufficient that the malcontents have some reasons for taking arms, to give this disturbance the name of civil war, and not that of rebellion. This last 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 term all subjects rebels openly resisting him; but when these become of strength sufficient to oppose him, so that he finds himself compelled to make war regularly on them, he must be contented with the term of civil war."

Clause of section 293:

"A civil war breaks the bands of society and government, or at least it suspends their force and effect. It produces in the nation two independent parties, considering each other as enemies, and acknowledging no common judge. Therefore, of necessity, these two parties must, at least for a time, be considered as forming two separate bodies—two distinct people. Though one of them may be in the wrong in breaking up the continuity of the State—to rise against lawful authority—they are not the less divided in fact. Besides, who shall judge them? On earth they have no common superior. Thus they are in the case of two nations who, having dispute which they cannot adjust, are compelled to decide it by force of arms."

First clause in sec. 294:

"Things being thus situated, it is evident that the common laws of war, those maxims of humanity, moderation and probity which we have before enumerated and recommended, are, in civil wars, to be observed on both sides. The same reasons on which the obligation between State and State is founded, render them even more necessary in the unhappy circumstance when two incensed parties are destroying their common country. Should the sovereign conceive he has a right to hang up his prisoners as rebels, the opposite party will make reprisals; if he does not religiously observe the capitulations and all the conventions made with his enemies, they will no longer rely on his word; should he burn and destroy, they will follow his example; the war will become cruel and horrid; its calamities will increase on the nation."

Remember you are an American Jury; that your fathers were revolutionists; that they judged for themselves what Government they would have, and they did not hesitate to break off from their mother Government, even though there were penalties of statutes with which they were threatened. And remember, also, that from the beginning of your fathers' revolution, they claimed that they were not liable to the treatment of offenders against British statutes, but that the Colonies were a nation, and entitled to belligerent rights—one of which was, that if any of their army or navy fell into the hands of the British army, they should be held as prisoners of war.

Your fathers never admitted that the continental army were liable to punishment with the halter, if taken prisoners.

To be sure, the statute of Great Britain, literally construed, so provided, but the law of nations had supervened, and rendered that statute no longer applicable. Vindicate your respect for your fathers' claims, by extending the same immunities to the prisoners at the bar, whose situation is analogous to that of our fathers.

At the commencement of the Revolution, preceding the Declaration of Independence in 1776, the Colonies became each a separate sovereignty. That became the status, with some, without documentary declaration to that effect; but most of them have left on record positive enunciations of their assumption of independence and sovereignty as States, unconnected with the proceedings of any other State.4 They entered into a Confederation as independent States, declaring, however, distinctly, in a separate article, that each State retained its own sovereignty, freedom, and independence, and every power of jurisdiction and right not expressly delegated to the United States in Congress assembled. And at the close of the war, when the treaty of peace was made, recognizing the independence of the Colonies, each State was named individually. I have never been able to discover when and where, since that period, any State has surrendered its sovereignty, or deprived itself of its right to act as a sovereign. The Constitution suspends the exercise of some of the functions of sovereignty by the States, but it does not deprive them of their power to maintain their rights as sovereigns, when and how they shall think best, if that Constitution shall, in their judgment, be broken or perverted as a delegated trust of power.

Listen, therefore, to the better voices whispering to each heart. Remember, the honor and consistency of the United States are involved in this case. By a conviction of the defendants, you condemn the Revolution of your ancestors; you sustain the theories of the worst courtiers who surrounded George III. in his war to put down the rebellion; you will appear to the world as stigmatizing revolutionists with the names of outlaws and pirates, which is the phraseology applied to them by Austria and Russia; you will violate the law of nations; you will appear to be merely wreaking vengeance, and not making legitimate war; you will henceforth preclude your nation from offering a word of sympathy to people abroad who may be struggling for their independence, and who have heretofore always turned their hearts to you. You can never—having punished your revolutionists on the gallows—send an invitation to the unfortunate champions of independent Government in the old world. Kossuth will reply: The American maxim is that of Francis Joseph, and of Marshal Haynau. You cannot say "Godspeed!" to Ireland, if she shall secede. No! as you love the honor of your country, and her place among nations, refuse to pronounce these men pirates.

Tell your Government to wage manly, open, chivalric war on the field and ocean, and thus or not at all; that dishonor is worse even than disunion. Stain not your country's hand with blood. If I were your enemy, I would wish no worse for your names, than to record your verdict against these prisoners. Leave no such record against your country in her annals; and when the passions of the hour shall have subsided, your verdict of acquittal of Thomas H. Baker and the other defendants herein, will be recalled by you with satisfaction, and will receive the approval of your countrymen.

ARGUMENT OF MR. DAVEGA

May it please your Honors: Gentlemen of the Jury:

On the 25th of June last, when the startling intelligence was announced in our daily papers of the capture of the so-called Pirates of the Savannah, our community was thrown into a furore of excitement. Every one was anxious to get a glimpse of the "monsters of the deep," as they were carried manacled through our streets. Some expected to see in Captain Baker a "counterfeit presentment" of the notorious Captain Kidd; others expected to trace resemblances in Harleston and Passalaigue to Hicks and Jackalow; but what was their surprise when they discovered, instead of fiends in human shape, gentlemen of character, intelligence, refinement, and education! Captain Baker is a native of the Quaker City, Harleston and Passalaigue of the State of South Carolina,—all occupying the best positions in society, and respectably connected. The father of Harleston was educated in one of our Northern universities, and, by a strange coincidence, one of his classmates was no less a person than the venerable and distinguished counsel who now appears in behalf of his unfortunate son. (The counsel directed his eyes to Mr. Lord.) Another strange coincidence in the case is, that twelve men are sitting in judgment upon the lives of twelve men, and these men "enemies of the country, enemies of war," and as such are entitled to the rights of prisoners of war.

They do not belong to your jurisdiction; their custody belongs exclusively to the military and not the civil power. Instead of being incarcerated as felons, in the Tombs, they should have been imprisoned in Fort Lafayette, as prisoners of war. They are your enemies to-day; they were your friends yesterday. It is no uncommon occurrence that when two men engage in a quarrel, ending in a fierce combat, they are afterwards better friends than they were before; the vanquished magnanimously acknowledging the superiority of the victor, and the victor in return receiving him kindly. And so, gentlemen, I hope the day is not far distant when the Stars and Stripes will float in the breeze upon every house-top and every hill-top throughout the length and breadth of our glorious Republic: then shall we establish the great principle, for which our forefathers laid down "their lives, their fortunes, and their sacred honor," that this is a Government of consent, and not of force; and "that free governments derive their just powers from the consent of the governed."

In this case some of the gravest and most complicated questions of political and international jurisprudence are involved.

The learned counsel who have preceded me have so fully and ably argued the political questions involved, that it would be the work of supererogation for me to go over them; but in this connection it is not inappropriate to refer to the fact that political opinions instilled into the minds of the prisoners may have influenced their conduct. They were indoctrinated with the principles of political leaders who advocated States' Rights, Nullification, and Secession; and without undertaking to justify or approve the soundness or correctness of their views, it is enough for me to show that the prisoners at the bar were actuated by these principles. The name of John C. Calhoun was once dear to every American; his fame is now sectional. Every Southerner believes implicitly in his doctrines; his very name causes their bosoms to swell with emotions of pride; his works are political text books in the schools. It has been facetiously said that when Mr. Calhoun took a pinch of snuff, the whole State of South Carolina sneezed. I do not mean to treat this case with levity, but merely intend to show the sympathy that existed between Mr. Calhoun and his constituents. Then what is the "head and front of their offending"? They conscientiously believed that allegiance was due to their State, and she in return owed them protection; and under such convictions enlisted in her behalf. If they have erred, it was from mistaken or false notions of patriotism, and not from criminality. It is the intent that constitutes the crime. And this is the only just rule that should obtain in human as well as divine tribunals.

The prisoners at the bar stand charged with the offence of piracy. I contend that they do not come within the intention and purview of the statute against piracy. To understand and properly interpret a law, we must look to the intention of the legislator, and the motives and causes which give rise to the enactment of the law. In the construction of a will, the intention of the testator is to be ascertained; and the same rules apply in the just interpretation of every law. These laws were enacted at a period when peace and prosperity smiled upon this country. If they had been passed during Nullification in 1832, when the disruption of the Union was threatened, then we might reasonably infer that they were intended to apply to the existing state of affairs; so that the irresistible conclusion is, that they were applicable only to a state of peace, and not to a state of war.

The question then arises, Does a state of war exist? The learned counsel for the prosecution (Mr. Evarts), in an able and elaborate argument for the Government, when this question arose in the trial of prize causes, in the other part of this Court (when it was the interest of the Government to assume that position), demonstrated clearly, to my mind, that a state of war did exist, and confirmed his views by citations from the best authorities on international law.

Vattel, who ranks among the first of authors, and whose work on the law of nations is recognized by every enlightened jurist throughout the civilized world, defines "war to be that state, where a nation prosecutes its rights by force." That this is a nation no one will doubt; that it is prosecuting its rights can not be denied; and no one will doubt that it is using force upon a stupendous scale—requiring four hundred millions of dollars, and 500,000 men, with the probability of additional requisitions of men and treasure for a successful termination of this fratricidal war.

It may be said that this is a civil war. Admitting it to be so, the only distinction between this and an international war is, that the former is an intestinal war between the people, where the Republic is divided into two factions, and the latter is where two nations are opposed to each other. All the rules of civilized war, therefore, should govern equally, and it is to soften and mitigate the horrors of civil war that an exchange of prisoners is recognized.

I have endeavored to show that the prisoners at the bar are not guilty of piracy, as defined by the Acts of Congress; and if they are not guilty of municipal piracy, they are certainly not guilty of piracy by the law of nations. What is a pirate? He is defined to be an enemy of the human race—a common sea rover, without any fixed place of residence, who acknowledges no sovereign, no law, and supports himself by pillage and depredation. Do the prisoners come within the meaning of this definition? Did they not encounter a British vessel upon the high seas? Could they not have captured her? But, no, gentlemen of the Jury, as soon as they ascertained that she belonged to a nation in amity with theirs, they allowed her to depart in peace. With the permission of the Court, I would beg leave to refer to an authority entitled to high respect—the works of Sir Leoline Jenkins, 4th Institutes, p. 154, where this principle is laid down: "If the subjects of different States commit robbery upon each other upon the high seas, if their respective States be in amity, it is piracy; if at enmity, it is not, for it is a general rule that enemies never can commit piracy on each other, their depredations being deemed mere acts of hostility."

The prisoners were acting in good faith, by virtue of a commission under the seal of the Confederate States. It is said, by the learned counsel for the prosecution, that the prisoners were acting under the authority of a person named Jefferson Davis. This does so appear nominally, but it is virtually and actually a commission issuing from eight millions of people, who recognize and sanction it under the hand of their President and the seal of their Government—each one being particeps criminis, and each one being amenable to the laws of the country, and liable to the penalties of treason and piracy, if evenhanded justice is to be meted out.

I have not yet been able to perceive the distinction between this offence as committed upon sea or land, except that it is attended with more danger. Why, then, have not the prisoners captured by our armies, who are now in Fortress Monroe and Fort Lafayette, been brought to the bar of justice? Because the Government has come to the conclusion that it would be unwise, impolitic, and impracticable; our tribunals would be inadequate in the administration of the laws. But justice should be equal.

One of the learned Judges who charged the Jury in the case of the privateers who were tried in Philadelphia, has undertaken to establish the doctrine that rebellion is wrong, and that it is only justifiable when it acquires the form of a successful revolution. To analyze this doctrine, it means no more nor less than this: that that which was originally wrong, success makes right. To carry out the metaphor, a certain insect in its chrysalis state is the loathsome and detestable caterpillar, but when it assumes the form and variegated hues of the butterfly, it is glorious and beautiful to behold. With equal force of reason it might be said, that if the Father of his country had been unsuccessful in consummating our independence, his name, instead of going down to posterity in glory and honor, would have descended in infamy and disgrace to all succeeding generations. Such notions are unworthy of refined and enlightened civilization.

It was intimated by the learned District Attorney, in his opening remarks, that in the event of a conviction, the President would exercise the pardoning prerogative. Gentlemen, this is a delusion. I do not mean to insinuate that the learned counsel would willfully mislead you; for I am bound to admit, in all becoming candor, that the prosecution have acted with fairness and magnanimity highly creditable, and not in any manner inconsistent with the performance of their arduous and responsible duties; but I do say that it should not have the slightest weight in your deliberations upon the important questions involved in this case. Is this a mere form—a farce? is your time, and the valuable time of the Court, to be consumed in the investigation of a long and tedious case like the present as a mere pastime? It is a reflection upon the good sense and intelligence of a Jury, for the Executive to exercise the pardoning power, except in special cases, where new evidence is discovered after conviction which may go to establish the innocence of the party so convicted.

Gentlemen of the Jury, you have a duty to perform that requires almost superhuman nerve and moral courage—requiring more prowess than to face the cannon's mouth. You have it in your power to prove to the nation, and to the whole civilized world, that in the administration of the criminal laws of the country, in a case involving the rights and interests of this Republic, before a Jury of New York citizens, that "justice can triumph over passion, and reason prevail over prejudice." If there is no other feeling which can influence your judgment, if you have no sympathy in common with these men, there is a sympathy you should have—a sympathy for those brave and valiant spirits who fought so nobly for the Union, the Constitution, and the enforcement of the laws, and who are now prisoners of war in the power of the enemy; and it would be expecting too much clemency from the hands of the enemy to suppose that they would allow the sacrifice of these men to go unavenged.

I repeat, you have a solemn duty to perform, and public opinion should not have the slightest influence upon your mind. You are to be governed by a "higher law;" a law based upon the sacred precepts of Holy Writ—its teachings emanating from God himself; and therein you are commanded to observe that golden rule, "Do unto others as you would that they should do unto you."

ARGUMENT OF JAMES T. BRADY, ESQ

Mr. Brady inquired of Mr. Evarts for what purpose he intended to refer to the statute against treason.

Mr. Evarts: Not in any other light than I have already referred to the doctrine of treason, to wit, that a party cannot be shielded from indictment for the crime of piracy by showing a warrant or assumed authority for acts which made out that his crime was treason; that showing a treasonable combination did not make out a warrant or authority for that which was piracy or murder.

Mr. Brady then proceeded to address the Jury on behalf of the accused:

May it please the Court: Gentlemen of the Jury:

I feel quite certain that all of you are much satisfied to find that this important trial is rapidly drawing to a close; and I think it would be unbecoming in me, as one of the counsel for the accused, to proceed a step farther in my address to you without acknowledging to the Court the gratitude which we feel for their kindness in hearing so largely discussed the grave legal questions involved in this controversy; to the Jury, for their unvarying patience throughout the investigation; and to our learned opponents, for the frank and open manner in which the prosecution has been conducted. Our fellow-citizens at the South—certainly that portion of them who cherish affection for this part of the Union—will find in the course of this trial most satisfactory evidence that respect for law, freedom of speech, freedom of discussion, liberty of opinion, and the rights of all our countrymen, here exist to the fullest extent. All of us have heretofore been connected with interesting and exciting trials. I am warranted in saying that, considering the period at which this trial has occured, and all the facts and circumstances attending it, the citizens of New York have reason to be proud that such a trial could proceed without one word of acerbity, without one expression of angry feeling, or one improper exhibition of popular sentiment. At the same time, as an American citizen, loyal to the Union,—one who has never recognized as his country any other than the United States of America; who has known and loved his country by that name, and will so continue to know and love it to the end of his existence,—I deeply regret that, for any purpose of public policy, it has been deemed judicious to try any of these "piratical" cases, as they are denominated, at this particular juncture. I am not to assume that good reasons for such a proceeding have not in some quarters been supposed to exist; and I certainly have no right to complain of the officers of the law, charged with a high duty, who bring to trial, in the usual course, persons charged with crime. I have not a word to say against my friend the District Attorney, for whom I feel a respect I am happy to express; nor against his learned associate, Mr. Evarts, for whom I have high regard; nor our brother Blatchford, who always performs the largest amount of labor with the smallest amount of ostentation. Still I regret the occurrence of this trial at a time when war agitates our country; for, apart from all theories of publicists, all opinions of lawyers, for you or me to say that there is not a war raging between two contending forces within our territory, is to insult the common sense of mankind. A war carried on for what? What is to be its end, gentlemen of the Jury? This war to which you, like myself, and all classes and all denominations of the North have given a cheerful and vigorous support—pouring out treasure and blood as freely as water—what is it for? Not to look at the result which must come out of it is folly; and it is the folly that pervades the whole American people. Suppose it were now announced that the entire Southern forces had fled in precipitate retreat before our advancing hosts, and that the American flag waved over every inch of American soil—what then? Are we fighting to subjugate the South in the sense in which an emperor would make war upon a rebellious province? Is that the theory? Are we fighting to compel the seceded States to remain in the Union against their will? And do we suppose such a thing practicable? Are we fighting simply to regain the property of the Federal Government of which we have been despoiled in the Southern States? Or are we fighting with a covert and secret intention, such as I understand to have been suggested by an eloquent and popular divine, in a recent address to a large public audience, some of them, like himself, from the Bay State, "that Massachusetts understands very well what she is fighting for"? Is it to effect the abolition of slavery all over the territory of the United States? I will do the Administration the justice to say that, so far as it has given the country any statement of its design in prosecuting the war, it has repelled any such object as negro emancipation. Who can justify the absurd aspect presented by us before the enlightened nations of the Old World, when they find one commander in our army treating slaves as contraband of war; another declaring that they belong to their masters, to whom he returns them; and another treating them all as free. I am an American, and feel the strongest attachment to my country, growing out of affection and duty; but I cannot see that we present before the world, in carrying on this war, anything like a distinct and palpable theory. But I tell you, and I stand upon that prophecy, as embodying all the little intelligence I possess, that if it be a war for any purposes of mere subjugation—that if it be for the purpose of establishing a dictatorship, or designedly waged for the emancipation of all the slaves, our people never will sustain it at the North. (Applause, which was checked by the Court.)