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

by A. F. Warburton

But, gentlemen, let us pass from that, and let us suppose it was not a war carried on by authority of the States. It is, then, a civil war, and a civil war of immense and vast proportions; and the authorities are equally clear in that case, that, from the moment that a war of that kind exists, captures on land and at sea are to be treated as prizes of war, and prisoners treated as prisoners of war, and that the vocation of the ax and the halter are gone. I refer you to but a single authority on this subject, because I have already occupied more of your time than I had intended doing, and I have reason to be very grateful to you for the patience and attention with which you have listened to me in the extended remarks that I was obliged to make. I refer to Vattel, Book 3, cap. 18, secs. 287, 292 and 293:

"Sec. 287. It is a question very much debated whether a sovereign is bound to observe the common laws of war towards rebellious subjects who have openly taken up arms against him. A flatterer, or a Prince of cruel and arbitrary disposition, will immediately pronounce that the laws of war were not made for rebels, for whom no punishment can be too severe. Let us proceed more soberly, and reason from the incontestible principles above laid down."

The author then proceeds to enforce the duty of moderation towards mere rebels, and proceeds:

"Sec. 292. When a party is formed in a State who no longer obey the sovereign, and are possessed of sufficient strength to oppose him; or when, in a Republic, the nation is divided into two opposite factions, and both sides take up arms, this is called a civil war. Some writers confine this term to a just insurrection of the subjects against their sovereign to distinguish that lawful resistance from rebellion, which is an open and unjust resistance. But what appellation will they give to a war which arises in a Republic, torn by two factions, or, in a Monarchy, between two competitors for the Crown? Custom appropriates the term of civil war to every war between the members of one and the same political society. If it be between part of the citizens on the one side, and the sovereign with those who continue in obedience to him on the other, provided the malcontents have any reason for taking up arms, nothing further is required to entitle such disturbance to the name of civil war, and not that of rebellion. This latter 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 bestow the appellation of rebels on all such of his subjects as openly resist him; but when the latter have acquired sufficient strength to give him effectual opposition, and to oblige him to carry on the war against them according to the established rules, he must necessarily submit to the use of the term civil war.

"Sec. 293. It is foreign to our purpose, in this place, to weigh the reasons which may authorize and justify a civil war; we have elsewhere treated of the cases wherein subjects may resist the sovereign. (Book 1, cap. 4.) Setting, therefore, the justice of the cause wholly out of the question, it only remains for us to consider the maxims which ought to be observed in a civil war, and to examine whether the sovereign, in particular, is on such an occasion bound to conform to the established laws of war.

"A civil war breaks the bonds of society and Government, or at least suspends their force and effect; it produces in the nation two independent parties, who consider each other as enemies, and acknowledge no common judge. Those two parties, therefore, must necessarily be considered as thenceforward constituting, at least for a time, two separate bodies—two distinct societies. Though one of the parties may have been to blame in breaking the unity of the State, and resisting the lawful authority, they are not the less divided in fact. Besides, who shall judge them? Who should pronounce on which side the right or the wrong lies? On each they have no common superior. They stand, therefore, in precisely the same predicament as two nations who engage in a contest, and, being unable to come to an agreement, have recourse to arms.

"This being the case, it is very evident that the common laws of war—those maxims of humanity, moderation and honor, which we have already detailed in the course of this work—ought to be observed by both parties in every civil war. For the same reasons which render the observance of those maxims a matter of obligation between State and State, it becomes equally and even more necessary in the unhappy circumstances of two incensed parties lacerating 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 other conventions made with his enemies, they will no longer rely on his word; should he burn and ravage, they will follow his example; the war will become cruel, horrible, and every day more destructive to the nation."

After noticing the cases of the Duc de Montpensier and Baron des Adrets, he continues:

"At length it became necessary to relinquish those pretensions to judicial authority over men who proved themselves capable of supporting their cause by force of arms, and to treat them not as criminals, but as enemies. Even the troops have often refused to serve in a war wherein the Prince exposed them to cruel reprisals. Officers who had the highest sense of honor, though ready to shed their blood on the field of battle for his service, have not thought it any part of their duty to run the hazard of an ignominious death. Whenever, therefore, a numerous body of men think they have a right to resist the sovereign, and feel themselves in a condition to appeal to the sword, the war ought to be carried on by the contending parties in the same manner as by two different nations, and they ought to leave open the same means for preventing its being carried into outrageous extremities and for the restoration of peace."

Now, gentlemen, can anything be more explicit on this subject, leaving out of view all questions of the authority of the States or of the Confederate Government to issue this commission? Can anything be more pointed or more direct on the question? Treat this as a mere civil war—treat it as though all State lines of the Union were obliterated, and as though this was a common people, actuated by some religious or political fanaticism, who had set themselves to cutting each others' throats—treat it as a purely civil strife, without any question of State sovereignty or State jurisdiction connected with it,—and still you have the authority of Vattel, an authority than which none can be higher, as the Court will tell you—and I could multiply authorities on that point from now until the shadows of night set in—that even in that case it is obligatory to observe the laws of war just the same as if it was a combat between two nations, instead of between two sections of the same people. Even if there was no commission whatever here, by any one having a color or pretence of right to issue it, but if those belonging to one set of combatants, in a civil strife which had reached the magnitude and proportions of which Vattel speaks, had set out to cruise, and had captured this vessel, I submit to you that it could not be treated as a case of piracy.