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

You will see presently, gentlemen, why I have deemed it necessary, at the very outset, to speak thus of what I call a state of civil war,—a condition which, if the learned Judges on the bench, in their charge to you, shall, as matter of law, declare to have existed, then this commission, under which the acts charged in the indictment were perpetrated, forms an absolute legal protection to the accused. Whether such a war exists, is one of the great questions with which the Jury have to deal; and I understand that the Jury have to deal with this case—that they are not mere automata—that we have not had twelve men sitting in the jury-box for several days as puppets.

The great question for this Jury, absorbing all others, is, Have the twelve men named in the indictment, or has either of them, committed piracy, and thus incurred the penalty of death? It is a very interesting inquiry, gentlemen,—interesting in its historical, national, judicial, and political aspects,—interesting, too, because of the character and description of the accused. We discover that eight of them are foreigners, who have never been naturalized, and do not judicially come under the designation of citizens of the United States. Four of them are what we call natural-born citizens—two from the State of South Carolina, one from North Carolina, and one from Philadelphia. Two of them are in very feeble health; and I am sorry to say, some are not yet of middle age—some quite young, including Passalaigue, who has not yet attained his eighteenth year. I know my fellow-citizens of New York quite well enough to be quite sure that even if there had been any exhibition of popular prejudice, or feeling, or fury, with a view to disturb their judgments in the jury-box, the sympathy that arises properly in every well-constituted heart and mind, in favor of the accused, their relatives and friends, would overcome any such wrong impulse as might be directed to deprive them of that fair trial which, up to this point, they have had, and which, to the end, I know they will have.

Are they pirates and robbers? Have they incurred the penalty of death? Gentlemen, it is a little curious, that during the present reign of Victoria, a statute has been passed in England softening the rigor of the punishment for piracy, and subjecting the person found guilty to transportation, instead of execution, unless arms have been used in the spoliation, or some act done aggravating the offence. I have used the term "pirate," and the term "robber." There is another which, strangely enough, was employed by a Judge of the Vice Admiralty Court in South Carolina, in 1718, who calls these pirates and robbers, as we designate them, "sea thieves;" and I am very glad to find that phrase, because the words robber and pirate have fallen into mere terms of opprobrium; while the word "thief" has a significance and force understood by every man. You know what you thought a "thief" to be, when a boy, and how you despised him; and you are to look at each prisoner mentioned in this indictment, and say, on your consciences as men, in view of the facts and of the law, as expounded by the learned Court, do you consider that the word "thief" can be applied to any one of the men whom I have the honor to assist in defending? That is the great practical question which you are to decide.

[Here Mr. Brady briefly alluded to the question of jurisdiction as already discussed fully enough, and made some observations on the Hicks case, which had been referred to. He then continued as follows:]

This indictment charges two kinds of offence: Piracy, as that crime existed by the law of nations,—which law may be said to have been incorporated into the jurisprudence of the United States,—and Piracy under the ninth section of the Act of 1790. Piracy by the law of nations is defined by Wheaton, the great American commentator on international law, on page 184 of his treatise on that subject. "Piracy" says that eminent gentleman, who was an ornament to the country which gave him birth, and an honor to my profession, "Piracy is defined by the text writers, to be the offence of depredating on the seas without being authorized by any sovereign state, or with commissions from different sovereigns at war with each other." The last part of the definition you need not trouble yourselves about as I only read it so as not to quibble the text. I will read the passage without the latter part. "Piracy is defined to be the offence of depredating on the seas without being authorized by any sovereign state." Other definitions will hereafter be suggested.

This leads me to remark upon certain judicial proceedings in Philadelphia against men found on board the Southern privateer "Jefferson Davis," and who were convicted of piracy for having seized and sent away as a prize the "Enchantress." Now my way of dealing with juries is to act with them while in the jury box as if they were out of it. I never imitate that bird referred to by the gentleman who preceded me—the ostrich, which supposes that when he conceals his head his whole person is hidden from view. I know, and every gentleman present knows, that a jury in the city of Philadelphia has convicted the men arrested on the "Jefferson Davis," of piracy. We are a nation certainly distinguished for three things—for newspapers, politics, and tobacco. I do not know that the Americans could present their social individualities by any better signs. Everybody reads the papers, and everybody has a paper given him to read. The hackman waiting for his fare consumes his leisure time perusing the paper. The apple-woman at her stall reads the paper. At the breakfast table, the dinner table, and the supper table, the paper is daily read. I sometimes take my meals at Delmonico's, and have there observed a gentleman who, while refreshing himself with a hasty meal, takes up the newspaper, places it against the castor, and eats, drinks and reads all at the same time. Gentlemen, I say that a people so addicted to newspapers must have ascertained that the men in Philadelphia were convicted; and how the jury could have done otherwise upon the charge of Justices Grier and Cadwalader I am incapable of perceiving. I have the pleasure of knowing both those eminent Judges. My acquaintance with Judge Cadwalader is slight, it is true, but of sufficient standing to ensure him the greatest respect for his learning and character. With Judge Grier the acquaintance is of longer duration; and as he has always extended to me in professional occupations before him courtesies which men never forget, I cannot but speak of him with affection. I have nevertheless something to say about the law laid down by those Judges on that case. No question on the merits was left to the jury, as I understand the instructions. The jurymen were told that if they believed the testimony, then the defendants were guilty of piracy. Now, as to the aspect of this case in view of piracy by the law of nations, the question for the jury is, in the first place, Did these defendants, in the act of capturing the "Joseph," take her by force, or by putting the captain of her in fear, with the intent to steal her? That is the question as presented by the indictment, and in order to convict under either of the first five counts, the jury must be satisfied, beyond all reasonable doubt, that in attacking the "Joseph" the defendants were actuated as described in the indictment, from which I read the allegation that they, "with force and arms, piratically, feloniously, and violently, put the persons on board in personal fear and danger of their lives, and in seizing the vessel did, as aforesaid, seize, rob, steal and carry her away." In this the indictment follows the law. Another question of fact, in the other aspect of the case, under the ninth section of the act of 1790, will be, substantially, whether the existence of a civil war is shown. That involves inquiry into the existence of the Confederate States as a de facto Government or as a de jure Government.

The animus furandi, so often mentioned in this case, means nothing but the intent to steal. The existence of that intent must be found in the evidence, before these men can be called pirates, robbers, or thieves; and whether such intent did or did not exist, is a question entirely for you.

To convict under the ninth section of the Act of 1790, the prosecution must prove that the defendants, being at the time of such offence citizens of the United States of America, did something which by that Act is prohibited. You will bear in mind that the Act of 1790, in its ninth section, has no relation except to American-born citizens, and as to that part of the indictment the eight foreigners charged are entirely relieved from responsibility.

Well, on page 104, 5 Wheaton, in the case of The United States vs. Smith, the Jury found a special verdict, which I will read to illustrate what is piracy and what is not piracy.

[Here Mr. Brady commented on the case referred to, saying, amongst other things,—]

According to the evidence in the case of Smith, the defendants were clearly pirates. They had no commission from any Government or Governor, and were mere mutineers, who had seized a vessel illegally, and then proceeded to seize others without any pretence or show of authority, but with felonious intent. For these acts they were justly convicted.

Now, we say, that this felonious intent as charged against these defendants, must be proved. But what say my learned friends opposed? Why (in effect), that it need not be proved to a Jury by any evidence, but must be inferred, as a matter of law, or by the Jury first, from the presumption that every man knows the law; and these men, in this view, are pirates—though they honestly believed that there was a valid Government called the Confederate States, and that they had a right to act under it—because they ought to have known the law; ought to have known that, although the Confederate States had associated for the purpose of forming, yet they had not completed a Government; ought to have known that, though Baker had a commission signed by Jefferson Davis, the so-called President of the Confederate States, under which he was authorized to act as a privateer, yet the law did not recognize the commission.

There is, indeed, a rule of law, said to be essential to the existence of society, that all men must be taken to know the law, except, I might add, lawyers and judges, who seldom agree upon any proposition until they must.

The whole judicial system is founded upon the theory that judges will err about the law, and thus we have the Courts of review to correct judicial mistakes and to establish permanent principles. Yet it is true that every man is presumed to know the law; and the native of Manilla (one of the parties here charged), Loo Foo, or whatever his name may be, who does not, probably, understand what he is here for, is presumed to know the law as well as one of us. If he did not know it better, considering the differences between us, he might not be entitled to rate high as a jurist. One of my brethren read to you an extract from a recent German work, which presents a different view of this subject as relates to foreign subjects in particular cases. I was happy to hear Mr. Mayer on the law of this case, more particularly as he declared himself to be a foreign-born citizen; for it is one of the characteristics of this Government—a characteristic of our free institutions—that no distinction of birth or creed is permitted to stand in the way of merit, come from what clime it may.

There is another presumption. Every man is presumed to intend the natural consequences of his own acts. Now, what are the natural consequences of the acts done by these defendants? The law on this point is illustrated and applied with much effect in homicide cases. Suppose a man has a slight contention with another, and one of the combatants, drawing a dagger, aims to inflict a slight wound, say upon the hand of the other; but, in the struggle, the weapon enters the heart, and the injured party dies. The man is arrested with the bloody dagger in his hand, the weapon by which death was unquestionably occasioned; and the fact being established that he killed the deceased, the law will presume the act to be murder, and cast upon the accused the burthen of showing that it was something other than murder. I hope, gentlemen, to see the day when this doctrine of law will no longer exist. I never could understand how the presumption of murder could be drawn from an act equally consistent with murder, manslaughter, justifiable or excusable homicide, or accident, but such is the law, and it must be respected.

I say, that neither of the defendants intended, as the ordinary and natural consequence of his act, to commit piracy or robbery, though what he did might, in law, amount to such an offence. He intended to take legal prizes, and no more to rob than the man in the case I supposed designed to kill.

The natural consequences of his acts were, to take the vessel and send her to a port to be adjudicated upon as a prize. Now, I state to my learned friends and the Court this proposition—that though a legal presumption as to intent might have existed in this case if the prosecution had proved merely the forcible taking, yet if, in making out a case for the Government, any fact be elicited which shows that the actual intent was different from what the law in the absence of such fact would imply, the presumption is gone. And when the prosecution made their witness detail a conversation which took place between Captain Baker and the Captain of the Joseph, with reference to the authority of the former to seize the vessel, and when you find that Captain Baker asserted a claim of right, that overcomes the presumption that he despoiled the Captain of the Joseph with an intent to steal. The animus furandi must, in this case, depend on something else than presumption. I will refer you for more particulars of the law on this point, to 1 Greenleaf on Evidence, sections 13 and 14, and I make this citation for another purpose. When an act is in itself illegal, sometimes, if not in the majority of cases, the law affixes to the party the intent to perpetrate a legal offence. But this is not the universal rule. In cases of procuring money or goods under false pretences, where the intent is the essence of the crime, the prosecution must establish the offence, not by proving alone the act of receiving, but by showing the act and intent; so both must be proved here. Now, I ask, has the prosecution entitled itself to the benefit of any presumption as to intent? What are the facts—the conceded facts? Baker, and a number of persons in Charleston, did openly and notoriously select a vessel called the "Savannah," then lying in the stream, and fitted her out as a privateer. Baker, in all of these proceedings, acted under the authority of a commission signed by Jefferson Davis, styling and signing himself President of the Confederate States of America. Baker and his companions then went forth as privateersmen, and in no other capacity, for the purpose of despoiling the commerce of the United States, and with the strictest injunction not to meddle with the property of any other country. The instructions were clear and distinct on this head, as you know from having heard them read. They went to sea, and overhauled the Joseph; gave chase with the American flag flying—one of the ordinary devices or cheats practiced in naval warfare; a device frequently adopted by American naval commanders to whose fame no American dare affix the slightest stigma. On nearing the Joseph, the Savannah showed the secession flag, and Baker requested Captain Meyer to come on board with his papers. The Captain asked by what authority, and received for answer: "The authority of the Confederate States." The Captain then went on board with his papers, when Baker, helping him over the side, said: "I am very sorry to take your vessel, but I do so in retaliation against the United States, with whom we are at war." Baker put a prize crew on board the Joseph, and sent her to Georgetown; the Captain he detained there as a prisoner. She was then duly submitted for judgment as a prize. These are the facts upon which they claim that piracy at common law is established.

My learned associate, Mr. Larocque, cited a number of cases to show that though a man might take property of another, and appropriate it to his own use, yet if he did so under color of right, under a bona fide impression that he had authority to take the property, he would only be a trespasser; he would have to restore it or pay the value of it, but he could not be convicted of a crime for its conversion.

Let me state a case. You own a number of bees. They leave your land, where they hived, and come upon mine, and take refuge in the hollow of a tree, where they deposit their honey. They are your bees, but you cannot come upon my land to take them away; and though they are in my tree, I cannot take the honey. Such a case is reported in our State adjudications. But, suppose that I did take the bees and appropriate the honey to my own use: I might be unjustly indicted for larceny, because I took the property of another, but I am not, consequently, a thief in the eye of the law; the absence of intent to steal would ensure my acquittal.

That is one illustration. I will mention one other, decided in the South, relating to a subject on which the South is very strict and very jealous. A slave announced to a man his intention to escape. The man secreted the slave for the purpose of aiding his escape and effecting his freedom. He was indicted for larceny, on the ground that he exercised a control over the property of the owner against his will. The Court held that the object was not to steal, and he could not be convicted. In Wheaton's Criminal Proceedings, page 397, this language will be found, and it is satisfactory on the point under discussion.

"There are cases where taking is no more than a trespass: Where a man takes another's goods openly before him, or where, having otherwise than by apparent robbery, possessed himself of them, he avows the fact before he is questioned. This is only a trespass."

Now all these principles are familiar and simple, and do not require lawyers to expound them, for they appeal to the practical sense of mankind. It is certainly a most lamentable result of the wisdom of centuries, to place twelve men together and ask them, from fictions or theories to say, on oath, that a man is a thief, when every one of them knows that he is not. If any man on this Jury thinks the word pirate, robber or thief can be truly applied to either of these defendants, I am very sorry, for I think neither of them at all liable to any such epithet.

But, suppose that the intent is to be inferred from the act of seizing the Joseph, and the defendants must be convicted, unless justified by the commission issued for Captain Baker; let us then inquire as to the effect of that commission. We say that it protects the defendants against being treated as pirates. Whether it does, or not, depends upon the question whether the Confederate States have occupied such a relation to the United States of America that they might adopt the means of retaliation or aggression recognized in a state of war.

It is our right and duty, as advocates, to maintain that the Confederate Government was so situated; and to support the proposition by reference to the political and judicial history and precedents of the past, stating for these men the principles and views which they and their neighbors of the revolting States insist upon; our personal opinions being in no wise called for, nor important, nor even proper, to be stated at this time and in this place.

If it can be shown that the Confederate States occupy the same position towards the Government of the United States that the thirteen revolted Colonies did to Great Britain in the war of the Revolution, then these men cannot be convicted of piracy.

I do not ask you to decide that the Southern States had the right to leave the Union, or secede, or to revolt—to set on foot an insurrection, or to perfect a rebellion. That is not the question here. I will place before the Jury such views of law and of history as bear upon the case—endeavoring not to go over the ground occupied by my associates. I will refer you to a small book published here in 1859, entitled, "The History of New York from the Earliest Time," a very reliable and authentic work. In this book I find a few facts to which I will call your attention, one of which may be unpleasant to some of our friends from the New England States, for we find that New York, so far as her people were concerned—exclusive of the authorities—was in physical revolt against the parent Government long before our friends in New England, some of whom often feel disposed to do just what they please, but are not quite willing to allow others the same privilege. I will refer to it to show you what was the condition of things long before the 4th of July, 1776, and to show that, though we now hurl our charges against these men as pirates,—who never killed anybody, never tried to kill anybody,—who never stole and never tried to steal,—yet the men of New York city who committed, under the name of "Liberty Boys," what England thought terrible atrocities, in New York, were never touched by justice—not even so heavily as if a feather from the pinion of the humming bird had fallen upon their heads. I find that, about the year 1765, our people here began to grumble about the taxes and imposts which Great Britain levied upon us. And you know, though the causes of the Revolutionary war are set forth with much dignity in the Declaration of Independence, the contest originated about taxes. That was the great source of disaffection, directing itself more particularly to the matter of tea, and which led to the miscellaneous party in Boston, at which there were no women present, however, and where salt water was used in the decoction. I find that the governor of the city had fists, arms, and all the means of aggression at his command; but at length, happily for us, the Government sent over a young gentleman to rule us (Lord Monckford), who, when he did come, appears to have been similar in habits to one of the accused, who is described as being always idle. The witness for the prosecution explained that separate posts and duties were assigned to each of the crew of the Savannah; one fellow, he said, would do nothing. But he will be convicted of having done a good deal, if the prosecution prevail. A state of rebellion all this time and afterwards existed in this particular part of the world, until the British came and made themselves masters of the city. In the course of the acts then committed by the citizens, and which the British Government called an insurrection, a tumultuous rebellion and revolution, they offered, or it was said they offered, an indignity to an equestrian statue of George III. The British troops, in retaliation, and being grossly offended at the conduct of Pitt, who had been a devoted friend of the Colonists, mutilated the statue of him which stood on Wall street. The remains of the statue are still with us, and can be seen at the corner of West Broadway and Franklin street, where it is preserved as a relic of the past—a grim memento of the perfect absurdity of charging millions of people with being all pirates, robbers, thieves, and marauders.

When the British took possession of this city, they had at one time in custody five thousand persons. That was before any formal declaration of independence—before the formation of a Government de jure or de facto—and yet did they ever charge any of the prisoners with being robbers? Not at all. Was this from any kindness or humane spirit? Not at all: for they adopted all means in their power to overcome our ancestors. The eldest son of the Earl of Chatham resigned his commission, because he would not consent to fight against the colonies. The Government did not hesitate to send to Germany for troops. They could not get sufficient at home. The Irish would not aid them in the fight. The British did not even hesitate to employ Indians; and when, in Parliament, the Secretary of State justified himself, saying that they had a perfect right to employ "all the means God and nature" gave them, he was eloquently rebuked. Even, with all this hostility, such a thing was never thought of as to condemn men, when taken prisoners, and hold them outside that protection which, according to the law of nations, should be extended to men under such circumstances, even though in revolt against the Government.