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

"There is a necessity that the realm should have a King, by whom and in whose name the laws shall be administered; and the King in possession, being the only person who either doth or can administer those laws, must be the only person who has a right to that obedience which is due to him who administers those laws; and since, by virtue thereof, he secures us the safety of our lives, liberties, and properties, and all the advantages of Government, he may justly claim returns of duty, allegiance, and subjection."

And Blackstone is equally explicit (4 Blackstone's Comm., 78):

"When, therefore, an usurper is in possession, the subject is excused and justified in obeying and giving him assistance; otherwise, under an usurpation, no man could be safe, if the lawful Prince had a right to hang him for obedience to the power in being, as the usurper would certainly do for disobedience."

3d Inst. (Coke) 7, is to the same point:

"The stat. 11 Henry VII., ch. 1, is declaratory of the law on this subject; and the year books, 4 Edw. IV., 1, 9 Edw. IV., 1, 2, show that it was always the English law."

Our statute, or rather constitutional definition, of treason, is a transcript of the English statute of treason; and it is hardly necessary to cite 2 Story on the Constitution, sec. 1799, to the point that our Courts will construe the Constitution as the English law is construed by the English Courts. And here we observe a marked difference between a revolt by the subjects of a single consolidated Government which is a unit, and the action of one or more States in a Confederacy, or of the people dwelling within them, when such States resolve, as States, to recognize no sovereignty or Government within their territory except that established under their own Constitution.

But I insist upon it that Congress had no power to pass this 9th section of the Act of 1790; that the construction put upon it by our opponents is entirely unwarranted; and that it cannot be applied to a case like this. Your honors are aware that in The case of Smith, 5 Wheaton, Mr. Webster took the ground that the law was not constitutional, because it did not define piracy otherwise than by referring to the law of nations. The authority given to Congress on that subject is to define and punish piracy and other offences against the law of nations. "To define and punish piracy" is all of the phrase with which I have to deal. Now, you understand, gentlemen, that there is no common-law jurisdiction of offences residing in the United States Courts. They can punish no crime except by statute. Congress had fully defined piracy and robbery in the eighth section of the Act of 1790; and, having done so, what power or authority was there in Congress to go on and say that something else should be called piracy, when the definition of it was complete? Let me refer your honors again to the language of the law, which furnishes a strong argument on this subject: "If any citizen shall commit any piracy or robbery aforesaid, or any act of hostility against the United States," &c. Does not that clearly recognize and admit that piracy has been defined? and can it be pretended that Congress, under pretence of defining piracy, can provide that a common assault and battery on the high sea shall be piracy? Is there no limitation to that grant? We claim that its terms are just as much a restriction as a delegation of power. It defines as clearly the limits which the Government shall not transcend, as it does the area which Congress may occupy. You may "define piracy and punish it:" does this mean that you can call anything piracy, whether it be so or not? Suppose Congress passed an Act providing that, if any man on land should, during a state of war, attempt to make reprisals on another, it should be piracy, punishable with death: would that be a legitimate exercise of the authority vested in Congress? We claim that it would not, and that it would be a manifest usurpation against the true meaning, spirit, and proper effect of the Constitution.

Again, it has been argued to your honors, and we insist, that this statute, if it be operative, only relates to the case of a person taking a commission from a foreign Government or State. To say that an act of hostility committed by authority of any person whatever—using the word "person" to mean a human being—against another, on the high seas, would be piracy, and punishable by death, is a monstrous construction of this Act; and if I understood brother Evarts, in the course of the discussion that took place between him and myself, he conceded that the case which I suggested, of throwing a belaying-pin, by order of the Captain of one vessel, at the Captain of another, on the high seas, although an act of hostility by one citizen against another, under pretence of authority from a person, would not come within the law; yet this assault would be within the very letter of the Act. Read that law just as it is, and say, after the words "Prince" and "State" have been used, what other term is necessary or apposite. Why, no other, except as in the case of Aurey, an individual fitting out an expedition against a foreign Government, and undertaking to grant commissions; or as in the case of James II., who, as shown by Mr. Lord, was an exile in a foreign land, having no territory, no Government, and no subjects; and he was treated in the English Act—from which ours is taken—as a mere person, not to be denominated King. I do not mean to concede that the case of Miranda, who fitted out the expedition against Spain, assisted by some of our citizens, and granted commissions to privateers, would be a case within the statute of 1790; but if it would, it will not subserve the purposes of the prosecution at all, or be injurious to us. The word "person," in this connection, means a person standing in the same relation to another as a Prince or a State. Gentlemen, that this was never intended to apply between so many States as remained in the Union and those that went out, is a proposition about which Mr. Lord has been heard, and I see no answer to his argument.

Now, there is a dilemma here. If the gentlemen insist that, in the construction I have given, we are right, and that Mr. Jefferson Davis or the Confederate States, in the giving of this commission or authority, are to be regarded as a power or person within my definition, then it is as a foreign power; in which case Capt. Baker is the subject or citizen of that power, and not a citizen of the United States, and not within the Act of 1790. And if the Confederate States is not a foreign power, within the construction and meaning of the Act of 1790, then there is no violation of that statute by Capt. Baker, or any one associated with him, if it be true, as I contend, that the pretence of authority must be of one from a foreign source. If they make out that the Confederate States is a foreign power, it is because it is a Government in existence; and if it be a Government in existence, then its commission must be recognized by the law of nations.

Now, I certainly understood, from the opening by the learned District Attorney, that the prosecution did not rely much on the piracy branch of this case; they did not abandon it; they have never said they would not press a conviction upon it. But the strong effort is made to convict under the ninth section of the Act of 1790, saying to you of the Jury, "All you have to find is, that Baker and three of his associates were citizens of the United States; that they were on the high seas; and that, being there, they committed an act of hostility against another citizen of the United States, under pretence of authority from Jefferson Davis; and, then, they are pirates." I think it would have been a little more magnanimous in the Government not to attempt any scheme of this kind. I think, if it be possible to drag these men, manacled, within the construction of a statute which exposes their lives to danger, it is yet not the right way to deal with them. When they were captured they were entitled to be treated either as prisoners of war, or as traitors to the Government. Why were they not indicted for treason?

Now, my learned friend said that this indictment was drawn with the utmost possible care and circumspection, when he spoke of the averment that this act of the defendants was done under pretence of the authority of "one Jefferson Davis." The pleader did not wish to admit, by the language of the indictment, that it was under pretence of any authority from any Government or Confederate States. He wanted to regard it as the act of a mere individual, who, although he claimed to represent so-called States, was, after all, merely a person signing a paper on his own account, and for which he was to take the exclusive responsibility.

I will refer your honors to Blackstone, 4 vol., p. 72, where he interprets this statute of 11 and 12 William III., chap. 4, to relate to acts done under color of a commission from a foreign power; and it was never supposed to have meant anything else. In 1819, Great Britain passed a law making it a crime for British subjects to be connected in any way with the sending out of vessels to cruise against a power at peace with England. By the 18th George II., chap. 30, it is made piracy, in time of war, for English subjects to commit hostilities of any kind against fellow subjects. How did that act become necessary in the legislation of England, if the previous law had already provided for the same thing? That, certainly, is a question of some importance in this case. We have statutes that punish citizens of the United States, under certain circumstances when they are engaged in privateering; and there have been trials and convictions under these statutes, as your honors will find by referring to Wharton's State Trials.

We contend, therefore, that the ninth section of the Act of 1790, as construed by our opponents, would be unconstitutional; that it only applies, if valid, to acts done under authority of a foreign power or person; that if Jefferson Davis was, or represented, such foreign power, then the defendants were subjects of that power, not citizens of the United States, and not within the Act; if he were not or did not represent a foreign power, the Act does not apply to the case; and so, in every view of the subject, there is no right to convict any of these men under this Act.

I will now cite some authorities on the question of variance made by my friend, Mr. Lord, in describing this commission as a pretence of authority from one Jefferson Davis. Certainly, in law, that commission is the act and authority of the Confederate States. There can be no dispute about that.

I refer my learned opponents to Wharton's Criminal Treatise, at pps. 78, 91, 93, 94 and 96, for these two propositions: In the first place, that, where a new offence is created by statute, the utmost particularity is required, when drawing the indictment, to set forth all the statutory elements of the offence; and, in the second place, what is thus averred must be proved strictly as laid. Well, it may seem to you, gentlemen, rather a technical and immaterial question, whether this was set out as a pretence of authority from one Jefferson Davis, or from the Confederate States,—and it is. But, nevertheless, it is a legal technicality; and these prisoners, if it be well founded, have a right to the benefit of it. It is very little that I have to read from this book, for the propositions are pointedly stated:

Page 91. "It is a general rule that, in regard to offences created by statutes, it is necessary that the defendant be brought within all the material words of the statute; and nothing can be taken by intendment."

Page 93. "Defects in the description of a statutory offence will not be aided by a verdict, nor will the conclusion contra formam statutis cure it."

Page 94. "An indictment under the Stat. 5th Elizabeth, which makes it high treason to clip round or file any of the coin of the realm for wicked lucre or gain sake,—it was necessary to charge the offence as being committed for wicked lucre or gain sake, otherwise the indictment was bad. In another case, an indictment on that part of the black act which made it felony willfully or maliciously to shoot at a person in a dwelling-house was held to be bad, because it charged the offence to have been done 'unlawfully and maliciously,' without the word 'willfully.'"

That is technical enough, I admit, but it emanates from high authority.

[Mr. Brady read other passages from Wharton, and said]:

And, now, what relates more particularly to the matter in hand, is the case of The United States vs. Hardiman, 13 Peters, 176. In that case the defendant was indicted for receiving a fifty-dollar treasury note, knowing it to have been stolen out of the mail of the United States. The indictment was under the 45th section of the Post-Office Law. The thing stolen was described as a fifty-dollar treasury note, bearing interest at one per cent.; and it turned out to be a treasury note which, although of fifty-dollars' denomination, bore interest at the rate of one mill per cent.; and the Court held the variance to be fatal. Now, we claim that to describe the commission as emanating from one Jefferson Davis, when in fact it emanated from the Confederate States, is such a variance as is here referred to; and, on that ground, the indictment is not sustained.

The argument is made here, that, no matter what publicists may say,—no matter what Courts of other countries may declare as international law, about the organization of government or the creation of powers de jure or de facto,—this Court has nothing to do with the debate; that your honors have simply to inquire whether Mr. Lincoln, the President, has said, or whether Congress has said, a certain thing, and the matter proceeds no further; that the citizen is not entitled to have a trial, in a Court of Justice, on the question whether, being in a state of revolt, a civil war does in fact exist; and that the right of trial by Jury does not, as to such a question, exist at all.

It is utterly absurd to have you here, gentlemen, if all that is necessary to be shown against these men is the proclamation by the Executive, and an Act of Congress calling them rebels and pirates. Is there any trial by Jury under such circumstances? The form of it may exist, but not the substance. It is a mockery. No, your honors; this question, as to the status of the Confederate States, is a judicial question, when it arises in a Court of Justice. It is a juridical question. It is one of which Courts may take cognizance—must take cognizance—in view of and with the aid of that international law which is part of the common law, part of the birthright of all our citizens, and to the benefit and immunities as well as responsibilities of which they are subject and may make claim.

Otherwise it would lead to this most extraordinary consequence, that, whenever any portion of a State or any State of a Confederacy, either here or elsewhere, revolts, and attempts to withdraw itself from the old Government, the old Government shall be the only judge on earth to determine whether the seceders, or the revolutionists, or the rebels, shall be treated as pirates or robbers.

Would it not be very strange if our nation should extend to those who revolt in any other country, when they have attained a certain formidable position before the world, the rights and humanities of civil war; and that, when any of our own people, under the claim of right and justice, however ill-founded, unfortunate, or otherwise, put themselves in an attitude of hostility to the Government, they are to be treated as outlaws and enemies to the human race, having no rights whatever incident to humanity and growing out of benign jurisprudence?

Then, apart from all that has been said, if the United States made war upon the South, as it certainly did by the act of the President, it is one of the propositions which these men may insist upon, that the States had a right to defend themselves, to make reprisals, to issue letters of marque, and that they had all the other rights of warfare. On this point, Mr. Larocque has given copious and apposite arguments and citations. The Constitution itself, when it comes to prohibit a State from making war and granting letters of marque, distinctly recognizes that privateers are not illegal. It has limited the prohibition against granting letters of marque, &c., by saying that a State may do so in the case of invasion, and when the danger is imminent.

Now, what are the facts before us here which raise this as a question in the case? There was no declaration of war by our Government, and none by the South; but at a certain time there was a firing on an unarmed vessel entering Charleston harbor—the "Star of the West." General Anderson, who was in command of Fort Sumter—whether acting under the authority of the Government, or not, does not very clearly appear in the case—sent a communication to Governor Pickens, to the effect that, if unarmed vessels were to be fired upon, he wished to be informed of the fact, saying, "You have not yet declared war against the United States;" and that, if the offence were repeated, he should open his batteries on Charleston.

That is the substance of it. Mr. Pickens retorted, saying, substantially, that they would maintain their positions. The next thing in order is the proclamation by the President, for the organization of the army, for the purpose, as he said, of retaking our forts. When, therefore, that condition of things had arrived, war was begun by the United States upon the South.

You may say it was not a war. You may say it was the employment of means to put down an insurrection. I care not for the mere use of language. It was, in effect and substance, a war against those States which claimed the authority to hold territory for themselves, under a separate and independent Government; and that would give them the right to oppose force by force, unless, indeed, the whole thing was a tumultuous act—a mere act of treason—and so to be regarded in all aspects of the case.

There is a principle applicable to this whole case, referred to by Mr. Dukes, in his argument—the doctrine of respondeat superior, of which he gave some instances. These men may go wholly free by the law of nations, and yet the State which, in the name of Jefferson Davis or the Confederate States, issued this commission, would be responsible to the General Government for the consequences. We had a memorable instance of this in this State, some years since. You will remember that a man, named McLeod, was charged with coming across the lines from Canada and setting fire to an American steamer. He was tried, and acquitted on the ground—not very complimentary to him—that he did not do any such thing, although he had boasted of it. It was rather humiliating to be absolved of crime on the ground that the accused was a liar; yet still that is the history of the case. Now, there was a diplomatic correspondence in reference to this incident, as some of you well remember. Great Britain insisted that Mr. McLeod must not be tried at all; that the American Government had no authority to take cognizance of the act; and that we must look to Great Britain for redress. Well, gentlemen, I am sorry to say that our Government has very often acted like the Government of England. Each of us has been quite willing, occasionally, to swoop down on an inferior power, as the vulture on its prey; but, whenever there was a possibility of conflict with a power equal to either, a great deal of caution and reserve has been evinced. We have been for years—almost from the foundation of our Government—truckling to British ideas, British principles, British feelings, and British apprehensions, in a manner which has not done us any honor; and we see to-day what reward we are enjoying for it. There has not been a public speaker in England who has ever designated us, for a long period, by any other name than that of the Anglo-Saxon race—a designation which includes but one element of even the race which exists in the British Islands, omitting the gentle, noble, and effective traits imported into it by the Normans, and excluding those countrymen of my ancestors who do not like to be outside when there is anything good going on within. What said our Government to that? I understand that they distinctly admitted that McLeod was not amenable to our jurisdiction; but the State of New York held on, in virtue of its jurisdiction and sovereignty, and Mr. McLeod had to be tried, and was tried and acquitted. There the principle of respondeat superior was acknowledged by our Government; and I believe that is the policy upon which it has acted on every occasion when the case arose.

Gentlemen, I will detain you but a few moments longer. I have endeavored to show, in the first place, that these men cannot be convicted of piracy, because they had not the intent to steal, essential to the commission of that offence, and that you are the judges whether that intent did or did not exist. If it did not, then the accused men are entitled to acquittal on that ground. If the Act of 1790 be constitutional, and if it can be construed to extend to a case like this, then eight of the prisoners are to be discharged—being foreigners, not naturalized; and the other four, also—having acted under a commission issued in good faith by a Government which claimed to have existence, acted upon in good faith by themselves, and with the belief that they were not committing any lawless act of aggression. In this connection I hold it to be immaterial whether the Confederate Government was one of right, established on sufficient authority according to the law of nations, and to be recognized as such, or whether it was merely a Government in fact. We claim, beyond all that, and apart from the question of Government in law or Government in fact, that there exists a state of civil war; which entitles these defendants to be treated in every other manner than as pirates; which may have rendered them amenable to the danger of being regarded as prisoners of war, but which has made it impossible for them to be ever dealt with as felons. I am sorry that it has become necessary in this discussion to open subjects for debate, any inquiry about which, at this particular juncture in our history, is not likely to be attended with any great advantage. But, like my brethren for the defence, I have endeavored to state freely, fearlessly, frankly and correctly, the positions on which the defendants have a right to rely before the Court and before you. It would have been much more acceptable to my feelings, as a citizen, if we had been spared the performance of any such duty. But, gentlemen, it is not our fault. The advocate is of very little use in the days of prosperity and peace, in the periods of repose, in protecting your property, or aiding you to recover your rights of a civil nature. It is only when public opinion, or the strong power of Government, the formidable array of influence, the force of a nation, or the fury of a multitude, is directed against you, that the advocate is of any use. Many years ago, while we were yet Colonies of Great Britain, there occurred on this island what is known as the famous negro insurrection,—the result of an idle story, told by a worthless person, and yet leading to such an inflammation of the public mind that all the lawyers who then practiced at the bar of New York (and it is the greatest stigma on our profession of which the world can furnish an example) refused to defend the accused parties. One of them was a poor priest, of, I believe, foreign origin. The consequence was, that numerous convictions took place, and a great many executions. And yet all mankind is perfectly satisfied that there never was a more unfounded rumor—never a more idle tale—and that judicial murders were never perpetrated on the face of the earth more intolerable, more inexcusable, more without palliation. How different was it in Boston, at the time of what was called the massacre of Massachusetts subjects by British forces! The soldiers, on being indicted, sought for counsel; and they found two men, of great eminence in the profession, to act for them. One of them was Mr. Adams, and the other Mr. Quincy. The father of Mr. Quincy addressed a letter, imploring him, on his allegiance as a son, and from affection and duty toward him, not to undertake the defence of these men. The son wrote back a response, recognizing, as he truly felt, all the filial affection which he owed to that honored parent, but, at the same time, taking the high and appropriate ground that he must discharge his duty as an advocate, according to the rules of his profession and the obligation of his official oath, whatever might be the result of his course.