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 it is not necessary that the fact of actual fear should either be laid in the indictment or be proved upon the trial; it is sufficient if the offence be charged to be done violenter et contra voluntatem. And if it appear upon the evidence to have been attended with those circumstances of violence or terror which in common experience are likely to induce a man to part with his property against his consent, either for the safety of his person or for the preservation of his character and good name, it will amount to a robbery."

I refer to Hale's Pleas of the Crown, vol. I., p. 68, on the question of double or doubtful allegiance:

"Though there may be due from the same person subordinate allegiances, which, though they are not without an exception of the fidelity due to the superior Prince, yet are in their kind sacramenta ligea fidelitatis, or subordinate allegiances, yet there can not, or at least should not, be two or more co-ordinate allegiances by one person to several independent or absolute Princes; for that lawful Prince that hath the prior obligation of allegiance from his subject can not lose that interest without his own consent, by his subject's resigning himself to the subjection of another."

I refer to the case of the United States against Tully, 1st Gallison's Reports, p. 253-5, to show that the statute does not, in terms, require that there shall be any personal violence or putting in fear to constitute robbery, provided the offence is committed animo furandi.

I also refer to the case of the United States vs. Jones, 3 Washington C.C.R., p. 219, on the point of the justification given by a commission; to the case of United States vs. Hayward, 2 Gallison, 501; to the observations of Chancellor Kent, vol. I., p. 200, marginal page 191; to the United States vs. Palmer, 3 Wheaton, p. 634, as to the manner in which our Courts deal with international questions respecting the recognition of nationalities; to the case of the Santissima Trinidad, Kent's Commentaries, vol. I., p. 27, marginal page 25; to the case of Rose vs. Hinely, 4 Cranch, 241. I refer to the latter case for the general doctrines therein contained on the proposition that although a parent or original Government may find the magnitude and power of the rebellion such as to induce or compel it to resort to warlike means of suppression, so as that toward neutral nations there will grow up such a state of authority as will compel the recognition by neutral nations of the rights of war and belligerents, that is not inconsistent with or in derogation of the general proposition that the parent Government still maintains the sovereignty, and can enforce its municipal laws, by all those sanctions, against its rebellious subjects. In other words, that the flagrancy of civil war, which gives rise to the aspect and draws after it the consequences of war, does not destroy either the duty of allegiance or the power of punishing any infraction of law which the rebels may be guilty of, either in reference to the principal crime of treason, or in reference to any other violation of municipal rights.

I also ask your honors' attention to a recent charge of Judge Sprague, to the Grand Jury in the Massachusetts District, in reference to the crime of piracy.

On the question of jurisdiction, I refer to the case of the United States vs. Hicks, decided in this Court.

I refer to the case of the Mariana Flora, to show that the arrest of a pirate at sea arises under a general principle of the law of nations, which authorizes either a public or a private vessel to make the arrest. It is analogous to the common-law arrest of a felon. The point in the case of the Mariana Flora is, that any public or private vessel has a right to arrest a piratical vessel at sea and bring it in. It differs in that respect from the authority to arrest a slaver.

On the general question of the ingredients of robbery, I refer to Archbold's Criminal Practice and Pleadings, 2 vol., p. 507, marginal pages 417, 510, 526.

In political connections I shall have occasion to refer to the Constitution of the United States and to the Articles of the Confederation, to the Virginia and Kentucky resolutions, and the answers of the other States of the Union, which will be found collected in Ellett's Debates, vol. 4, pages 528 to 545.