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

Now, gentlemen, this being the law of nations, you will perceive that, as there is no human earthly superior, so there are no Courts that can lay down the law, as our Courts do for our people, or as the Courts of England do for their people. There are no Courts that can lay down the law of nations, so as to bind the people of another country, except so far as the Courts of that country, recognizing the sound principles of morality, humanity and justice obtaining in the government and conduct of nations towards each other, adopt them in their own Courts. So, when my learned friends speak of the law of nations as being the law that is in force here, and that may protect these prisoners in this case against the laws of the United States of America, why, they speak in the sense of lawyers, or else in a sense that will confuse your minds, that is to say, that the law of nations, as the Court will expound and explain it, has or has not a certain effect upon what would be otherwise the plain behests of the statute law.

Now, it is a part of the law of nations, except so far as between themselves they shall modify it by treaty—(two instances of which I have read in the diplomacy of our own country, and a most extensive instance of which is to be found in the recent treaty of Paris, whereby the law of nations, in respect to privateering, has been so far modified as to exclude privateering as one of the means of war)—outside of particular arrangements made by civilized nations, it was a part of the original law of war prevailing among nations, that any nation engaged in war might fit out privateers in aid of its belligerent or warlike purposes or movements. No difficulty arose about this when war sprang up between two nations that stood before the world in their accredited and acknowledged independence. If England and France went to war, or if England and the United States, as in 1812, went to war, this right of fitting out privateers would obtain and be recognized. But, there arises, in the affairs of nations, a condition much more obscure and uncertain than this open war between established powers, and that is, when dissension arises in the same original nation—when it proceeds from discontent, sedition, private or local rebellion, into the inflammation of great military aggression; and when the parties assume, at least, (assume, I say), to be rightfully entitled to the position of Powers, under the law of nations, warring against one another. The South American States, in their controversy which separated them from the parent country, and these States, when they were Colonies of Great Britain, presented instances of these domestic dissensions between the different parts of the same Government, and the rights of war were claimed. Now, what is the duty of other nations in respect to that? Why, their duty and right is this—that they may either accord to these struggling, rebellious, revolted populations the rights of war, so far as to recognize them as belligerents, or not; but, whether they will do so, or not, is a question for their Governments, and not for their Courts, sitting under and by authority of their Governments. For instance, you can readily see that the great nations of the earth, under the influences upon their commerce and their peace which I have mentioned, may very well refuse to tolerate the quarrel as being entitled to the dignity of war. They may say—No, no; we do not see any occasion for this war, or any justice or benefit that is to be promoted by it; we do not see the strength or power that is likely to make it successful; and we will not allow a mere attempt or effort to throw us into the condition of submitting to the disturbance of the peace, or the disturbance of the commerce of the world. Or, they may say—We recognize this right of incipient war to raise itself and fairly contend against its previous sovereign—not necessarily from any sympathy, or taking sides in it, but it is none of our affair; and the principles of the controversy do not prevent us from giving to them this recognition of their supposed rights. Now, when they have done that, they may carry their recognition of right and power as far as they please, and stop where they please. They may say—We will tolerate the aggression by public armed vessels on the seas, and our vessels shall yield the right of visitation and search to them. They may say—We will extend it so far as to include the right of private armed vessels, and the rights of war may attend them; or they may refuse to take this last step, and say—We will not tolerate the business of privateering in this quarrel. And, whatever they do or say on that subject, their Courts of all kinds will follow.

Apply this to the particular trouble in our national affairs that is now progressing to settle the fate of this country. France and England have taken a certain position on this subject. I do not know whether I accurately state it (and I state it only for the purpose of illustration, and it is not material), but, as I understand it, they give a certain degree of belligerent right, so that they would not regard the privateers on the part of the Southern rebellion as being pirates, but they do not accord succor or hospitality in their ports to such privateers. Well, now, suppose that one of these privateers intrudes into their ports and their hospitalities, and claims certain rights. Why, the question, if it comes up before a Court in Liverpool or London, will be—Is the right within the credit and recognition which our Government has given? And only that. So, too, our Government took the position in regard to the revolting States of South America, that it would recognize them as belligerents, and that it would not hang, as pirates, privateers holding commissions from their authority. But, when other questions came up, as to whether a particular authority from this or that self-styled power should be recognized, our Government frowned upon it, and would not recognize it. With regard to Captain Aury, who styled himself Generalissimo of the Floridas, or something of that kind, when Florida was a Spanish province, our Courts said—We do not know anything about this—his commissions are good for nothing here—our Government has not recognized any such contest or incipient nationality as this. So, too, in another case, where there was an apparent commission from one struggling power, the Court say—Our Government does not recognize that power, and we do not, in giving any rights of war to it; but, the Court say, it appears in the proof that this vessel claims to have had a commission from Buenos Ayres, another contending power; if so, that is a power which our Government recognizes; and the case must go down for further proof on that point.

I confess that, if the views of my learned friends are to prevail, in determining questions of crime and responsibility under the laws and before the Court, and are to be accepted and administered, I do not see that there is any Government at all. For you have every stage of Government: first, Government of right; next, a Government in fact; next, a Government trying to make itself a fact; and, next, a Government which the culprit thinks ought to be a fact. Well, if there are all these stages of Government, and all these authorities and protections, which may attend the acts of people all over the world, I do not see but every Court and every Jury must, finally, resolve itself into the great duty of searching the hearts of men, and putting its sanctions upon pure or guilty secret motives, or notions, or interpretations of right and wrong—a task to which you, gentlemen of the Jury, I take it, feel scarcely adequate.

Now, gentlemen, I have perhaps wearied you a little upon this subject; because it is from some confusion in these ideas,—first, of what the law of nations permits a Government to do, and how it intrudes upon and qualifies the laws of that Government; and, second, upon what the rights are that grow out of civil dissensions, as towards neutral powers,—that some difficulty and obscurity are introduced into this case.

If the Court please, I maintain these propositions, in conformity with the views I have heretofore presented—first, that the law of the land is to determine whether this crime of piracy has been committed, subject only to the province of the Jury in passing upon the facts attending the actual perpetration of the offence; and, second, upon all the questions invoked to qualify, from the public relations of the hostile or contending parties in this controversy, the attitude that this Government holds towards these contending parties, is the attitude that this Court, deriving its authority from this Government, must necessarily hold towards them.

I have argued this matter of the choice and freedom of a Government to say how it will regard these civil dissensions going on in a foreign nation, as if it had some application to this controversy, in which we are the nation, and this Court is the Court of this nation.

But, gentlemen, the moment I have stated that, you will see that there is not the least pretence that there is any dispensing power in the Court, or that there has been any dispensing power exercised by our Government, or that there has been any pardon, or any amnesty, or any proclamation, saving from the results of crime against our laws, any person engaged in these hostilities, who at any time has owed allegiance and obedience to the Government of the United States. Therefore, here we stand, really extricated from all the confusion, and from all the wideness of controversy and of comment that attends these remote considerations of this case, that have been pressed upon your attention as if they were the case itself, on the part of our learned friend.

Now, if the Court please, I shall bestow some particular consideration upon the statute, but I shall think it necessary to add very little to the remarks I have heretofore made to the Court. The 8th section of the statute has been characterized by the learned counsel, and, certainly, with sufficient accuracy, for any purposes of this trial, as limited to the offence of piracy as governed by the law of nations. I do not know that any harm comes from that description, if we do not confuse it with the suggestion that the authority of this Government over the crime is limited to the construction of the law of nations which is expressed in that section of the statute. At all events, as they concede, I believe, that the 8th section is within the constitutional right and power of Congress, under the special clause giving them authority to define and punish piracy, under the law of nations, there is no room for controversy here on the point. When we come to the 9th section, we have two different and quite inconsistent views presented by the different counsel. One of the counsel (I think, Mr. Dukes) insists that the 9th section does not create any additional crime beyond that of piracy as defined in the 8th section, but only robs that crime of piracy of any apparent protection from a commission or authority from any State. But, my friend Mr. Brady contends (and, I confess, according to my notion of the law, with more soundness) that there is an additional crime, which would not be embraced, necessarily, in the crime of piracy or robbery on the high seas—which is the whole purview of the 8th section, and which is in terms repeated in the 9th—and that the additional words, "or any act of hostility against the United States, or any citizens thereof," create a punishable offence, although it may fall short of the completed crime of piracy and robbery, as defined. Now, I concede to my learned friend that the particular case he put of a quarrel between two ships' crews on the high seas, and of an attack by one of the crew of one upon one of the crew of the other with a belaying pin, would not, in my judgment, as an indictable, punishable offence, fall within the 9th section. But, whether I am right or wrong about it, it does not impede the argument of the Government, that there are crimes which are in the nature of and up to the completeness of hostile attacks upon vessels or citizens of the United States which would not be piracy, but yet are punishable under the 9th section.

Now, agreeing, thus far, that there is an added offence to the crime of piracy in the 9th section, I am obliged to meet his next proposition, that such additional offence is beyond the constitutional power of Congress, because it is an offence which does not come up to the crime of piracy, and, therefore, exceeds the grant of authority under the particular section of the Constitution which gives to Congress power over the definition and punishment of piracy under the law of nations.

Now, if the Court please, the argument is a very simple one. This 9th section does not profess to carry the power of this Government where alone the principles of the law of nations would justify; that is, to operate upon all the world, so far as the subjects of it—that is, the persons included in its sanctions—are concerned, or so far as the property protected by it is concerned. It is limited to citizens, and limited to hostilities against citizens of the United States, or their property at sea. Now, the authority in respect to this comes to Congress under the provision of the Constitution which gives the regulation of commerce and its control, in regard to which I need not be more particular to your Honors, because there are statutes of every-day enforcement, and under the highest penalty, too, of the law, such as revolt, mutiny, &c., which have nothing to do with the national considerations of the law of piracy, and nothing to do with the clause of the Constitution which gives to Congress power over the crime of piracy, but rest in the power reposed in Congress to protect the commerce of the United States. So, this is wholly within the general competency of Congress to govern citizens of the United States on the high seas, and to protect the property of citizens on the high seas, although there is no common law of general jurisdiction of Congress on the subject of crimes.

Now, upon this subject there is but one other criticism, and that is—that although the statute is framed with the intent, and its language covers the purpose, of prohibiting any defence or protection being set up under an assumed or supposed authority from any foreign Government, State, or Prince, or from any person, yet the particular authority which is averred in the indictment and produced in proof, if you take it in the sense that we give to it, is not within the purview of the statute, and, if you take it in any other sense, is not proved; and that thus a variance arises between the indictment and the proof, because the proof goes so far as to remove from under the statute the four defendants who would otherwise be amenable as citizens, by making the Government foreign, and making them foreign citizens. Now, to take up one branch of this at a time, I do not care at all whether the Government of the United States, when they passed this law, anticipated that there ever would be an occurrence which would give shape to such a commission as this, from either a person or an authority that emanated from what was or ever had been a part or a citizen of the United States. If these new occurrences here have produced new relations—(and that is the entire argument of my learned friends, for, if they have produced no new relations, what have we to do with any of these discussions?)—if they have produced new relations, perfect or imperfect, effectual or ineffectual, to this or that extent, why then, if these new relations and attitude have brought this matter within the purview of a statute of the United States which was framed to meet all relations that might arise at any time, they come within its predicament, and the argument seems to me to amount to nothing. It will not be pretended that the 9th section of this statute can only be enforced as to Powers in existence at the time it was passed. Whenever a new Power or new authority is set forth as a protection to the crime of piracy, the 9th section of the statute says: "Well, we do not know or care anything about what the law of nations says about your protection, or your authority—we say that no citizen of the United States, depredating against our commerce, shall set up any authority to meet the justice of our criminal law." Well, now, that the statute has said; and we have averred and proved the commission such as it is. It is either the commission of a foreign Prince, or State, or it is an authority from some person. We do not recognize it as from a foreign State or Prince. Indeed, Mr. Davis does not call himself a Prince, and we do not recognize the Confederate States as a nation or State, in any relation. Therefore, if we would prove this authority under our law, we must aver it as it is, coming from an individual who was once a citizen of the United States, and still is, as the law decides, a citizen of the United States. Whatever port or pretension of authority he assumes, and whatever real fact and substance there may be to his power, it is, in the eye of the law, nothing. It is not provable, and it is not proved.

Now, as to the right of Congress to include the additional crime, under the authority given to it to punish piracy according to the law of nations, my learned friend contends that this statute is limited by that authority, and is, as respects anybody within its purview, unconstitutional, and that, although a particular act may be within the description of the statute, so far as regards hostility, it is not piracy. On that subject I refer your Honors to a very brief proposition contained in the case of The United States v. Pirates (5 Wheaton, 202):

"And if the laws of the United States declare those acts of piracy in a citizen, when committed on a citizen, which would be only belligerent acts when committed on others, there can be no reason why such laws should not be enforced. For this purpose the 9th section of the Act of 1790 appears to have been passed. And it would be difficult to induce this Court to render null the provisions of that clause, by deciding either that one who takes a commission under a foreign power, can no longer be deemed a citizen, or that all acts committed under such a commission, must be adjudged belligerent, and not piratical acts."

I would also refer to the case of The Invincible, to which my learned friend called the attention of the Court, in the opinion of the late Attorney-General, Mr. Butler. It is to be found in the 3d volume of the Opinions of the Attorney-Generals, page 120. My learned friend cited this case in reference to the proposition that persons holding a commission (as I understood him) should not be treated as pirates, under the law of nations, by reason of any particular views or opinions of our Government. I refer to that part of the opinion where he says: "A Texan armed schooner cannot be treated as a pirate under the Act of April 30th, 1790, for capturing an American merchantman, on the alleged ground that she was laden with provisions, stores, and munitions of war for the use of the army of Mexico, with the Government of which Texas, at the time, was in a state of revolt and civil war."

Now, undoubtedly, Mr. Butler does here hold that, by the law of nations, in a controversy between revolting Colonies and the parent State, where our Government recognizes a state of war as existing, a privateer cannot be treated as a pirate. But we will come to the opinion of the Attorney-General on the other proposition we contend for—that is, in support of the 9th section of the statute, as far as it would have exposed citizens of the United States to the penalty of piracy:

"In answer to this question, I have the honor to state that, in my opinion, the capture of the American ship Pocket can in no view of it be deemed an act of piracy, unless it shall appear that the principal actors in the capture were citizens of the United States. The ninth section of the Crimes Act of 30th April, 1790, declares 'that if any citizen shall commit any piracy or robbery, or any act of hostility against the United States, or any citizen thereof, upon the high seas, under color of any commission from any foreign Prince, or State, or on pretence of authority from any person, such offender shall, notwithstanding the pretence of any such authority, be deemed, adjudged and taken to be a pirate, felon and robber, and on being thereof convicted, shall suffer death.' This provision is yet in force, and should it be found that any of those who participated in the capture of the Pocket are American citizens, the flag and commission of the Government of Texas would not protect them from the charge of piracy."

It will be seen here, that the condition of belligerents will not protect our citizens from aggressions against our commerce; and there is no place for my learned friends to put this authority, and this assumed belligerent power and right, on any footing that must not make it, either actually or in pretence, at least, proceed from a separate contending power. And, if they say, (as, in one of their points substantially is said,) that the 9th section cannot apply, because the alleged authority is not from a foreign State, or a foreign personage, but from a personage of our own country,—why, then, we are thrown back at once to the 8th section entirely, and there is either no pretence of authority at all, and it is just like arguing that the pirate accused was authorized by the merchant owner of a vessel in South street, to commit piracy, or we are put in the position, which is unquestionably the true one, that the 9th section was intended to cover all possible although unimagined forms in which the justice of the country could be attempted to be impeded under the claim of authority.

Now, gentlemen, if the Court please, I come to a consideration of the political theories or views on which these prisoners are sought to be protected against the penalties of this law. In that argument, as in my argument, it must be assumed that these penalties, but for those protections, would be visited upon them; for we are not to be drawn hither and thither by this inquiry, and to have it said, at one time, that the crime itself, in its own nature, is not proved, and, at another time, that, if it be proved, these are defences. I have said all I need to say, and all I should say, about the crime itself. The law of the case on that point will be given to you by the Court, and, if it should be, as I suppose it must, in accordance with that laid down by the Court in the Circuit of Pennsylvania, then, as my learned friend Mr. Brady has said of that, that he could not see how the Jury could find any verdict but guilty, it necessarily follows, if that is a sound view of the law, that you cannot find any other verdict but guilty. I proceed, therefore, to consider these other defences which grow out of the particular circumstances of the piracy.

Now, there are, as I suggested, three views in which this subject of the license, or authority, or protection against our criminal laws in favor of these prisoners, is urged, from their connection with particular occurrences disclosed in the evidence. One is, that they are privateers; but I have shown you that, to be privateers, their commission must come from an independent nation, or from an incipient nation, which our Government recognizes as such. Therefore, they fail entirely to occupy that explicit and clear position, under the law of the land, and the law of nations. But, as they say, they are privateers either of a nation or a Power that exists, as the phrase is, de jure,—that has a right, the same as we, or England, or France,—or of a Power that has had sufficient force and strength to establish itself, as matter of fact. Without considering the question of right, as recognized under the system of nations, they contend, and with a great deal of force and earnestness, in the impression of their views upon the Jury, and great skill and discretion in handling the matter,—they contend that there is a state of civil war in this country, and that a state of civil war gives to all nations engaged in it, against the Government with which they are warring, rights of impunity, of protection, of respect, of regard, of courtesy, which belong to the laws of war; and that, without caring to say whether they are a Government, or ever will be a Government, so long as they fight, they cannot be punished.

That is the proposition,—there is nothing else to it. They come down from the region of de jure Government and de facto Government, and have nothing to prove but the rage of war on the part of rebels, in force enough to be called war. Then they say that, by their own act, they are liberated from the laws, and from their duty to the laws, which would otherwise, they admit, have sway over them, and against which they have not as yet prevailed. That is the proposition.