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

Judge Nelson: Then the other four, you say, can only be convicted under the ninth section?

Mr. Lord: Yes; that is the statutory process, if I may be permitted to give it that name.

The act is charged as an act of robbery, not as an act of treason. It is not alleged to have been done treasonably. If the prosecution wanted to give it that character, they must have alleged it to be treason. They must have alleged that this act, done on the high seas, was done treasonably, traitorously, and therefore piratically. They have alleged no such thing. I take pleasure in saying that the District Attorney, in opening this case, did it with great fairness, and disavowed any idea of introducing treason into the case. There are many reasons why, if that were pretended, this whole trial should stop. The requisites of a prosecution for treason have not been, in any degree, complied with. The charge is robbery. It may be charged as done piratically, involving animus furandi. Let us see, for an instant, what piratical is. Piracy is, by all definitions, a crime against all nations. It enters into every description of a pirate that he is hostis humani generis. That is the common-law idea of piracy. It is not a political heresy that will make piracy. It is not a political conformity that will always exempt from the charge of piracy. For instance, if the officer of a Government vessel, with the most full and complete commission, such as my friend Commodore Stringham had, should invade a ship at sea, and should, under pretence of capture, take jewels and secrete them, not bringing them in for adjudication, he would be a pirate, because, though he held a commission, he did the act animo furandi,—did it out of the jurisdiction of any particular country,—did it against the great principles of civilization and humanity.

Again, if a commissioned vessel hails a private ship, and, on the idea that she is a subject of prize, captures her, and it turns out that that capture is illegal and unwarranted, that fact does not make the act piracy. Although the act might be ever so irregular—although it might subject the officer to the severest damages for trespass—yet it is not piratical, and the officer is not to be hung at the yard-arm because he mistakes a question of law. Your honors therefore see how utterly it enters into the whole subject that the thing shall be done animo furandi, piratically, as against the general law of nations and the sense of right of the civilized world.

Well, now, we are at once struck with this consideration: Suppose the act is regarded as not piratical by millions of people having civilized institutions, having Courts of Justice, giving every opportunity for a trial of the question of forfeiture or no forfeiture—why, it shocks the moral sense to say that that is done animo furandi, that it is a theft and a robbery, and that the man who does it is an enemy to the human race. Carry the idea a little further, and you find that the commission under which a man acts in seizing a vessel with a view of bringing it in as a prize is regarded by all the great commercial nations of the world as regular, and that the act is regarded not as a piratical, but as a belligerent act. Does it not shock the very elements of justice to have it supposed that in such a case the man acting under the commission, and within its powers, is to be deemed an enemy of the whole human race, while all the human race, except the power which seeks to subject him to punishment, says the act is not piratical?

Now, upon this subject my learned friends have cited many authorities, which all bear on the effect of what should give validity to the transfer of captured property under the circumstances of rebellions in States. Now I beg leave, at the outset of the consideration of this case, to say that the question of passing title to property is a thing entirely different from the question of hanging a man for committing a crime. In the first place, look at the numerous acts of trespass which are committed on the high seas by vessels of every nation. The books are full of cases of marine trespass, and of damages against captors for their irregularities; but are the authorities which bear upon that subject, which is a mere question of property—a question of title—of the mere transfer of title—are they authorities which decide the question that a man should be hanged if he mistakes the law, or if he acts under the impulse of a wrong judgment as to the sovereign which he should serve? I would call your attention to the case of Klintock, reported in the 5th of Wheaton, where the Court say that they will not regard the commission of General Aubrey as sufficient to give title to the property, "although it might be sufficient to defend him from a charge of piracy." I also refer to Phillimore on International Law, vol. 3, p. 319. [Counsel read from the authority.]

Now, under what circumstances was this done? And in the discussion I give to this question I am entirely free from the necessity of considering how the Government of this country shall regard the seceded States,—as having a Government, or not. I am under the law of nations, because this act which I am now discussing, of robbery on the high seas, was evidently a transcript of the law of nations upon the subject of piracy. What are the undeniable facts?—the facts about which, in this case, there is not any dispute, either in this country or in the whole world—about which there is but one opinion—what are they? At the time the crew of the Savannah shipped for this cruise, and at the time of the capture of the Joseph, the authorities of the State of South Carolina (for the State of South Carolina had an organization from its beginning, as a part of this country, and, as a government, was well known to the Government of the United States)—the authorities of the State of South Carolina, where the Savannah was fitted out and the crew resided, had become parties to a confederation of others of the United States. Now it is immaterial to me, in the light in which I view this case, whether that was politically right or not—whether it was legally right or not—whether this country could look at it as a source of title to property or not; the fact is there, that a State—one of the original, recognized States of the Union—united itself, under an assumption of authority, revolutionary if you please, with other similar States, and formed a league and a Government. That fact is undoubtedly so. Under such confederation a Government, in fact, existed, and exercised, in fact, the powers of civil and military Government over the territories and peoples of those States, or a principal part of them. Here we have eleven recognized States, doing, if you please, an illegal thing, when you come to submit it to the just principles of law. They form a league,—against an Act of Congress,—but they do form a league, and do constitute a Government; and this Government takes possession of a territory of some ten millions of people, all of whom submit to it. It maintains the Government in its domestic character of States, and originates a Government for its foreign relations. It assumes to make war, and declares war. The President's proclamation says that the said Confederated States had in fact declared war against the United States of America, and were openly prosecuting the same with large military forces, under the military and civil organization of a Government; and had assumed, and were in the exercise of, the power of issuing commissions to private armed ships to make captures of the property of the United States, and the citizens thereof, as prize of war, and to send them into Court for adjudication as such. Now, all that is beyond any doubt; and is it possible that it can be contended that an act of that vast extent, of that wide publicity and great power, should fail even to justify the killing of a chicken, without charge of petty larceny? Does it not shock the common sense of mankind that, in the case of men dwelling there, and acting in subordination to the existing Government (you cannot say whether voluntarily or not), for every shot fired and man killed you could have a trial for murder; that for every horse shot you could have an action of trover; and for every trespass you could have an action of trespass? This practically shocks us. How is it in view of the doctrine of hostis humani generis? Here are ten millions of people doing acts which, if done only by three or four, would be murders and treasons. But justice must be equal. If required to execute justice upon three or four, you are bound to execute it on tens of millions? Why, that is the very thing which publicists tell us constitutes civil war. A civil war is always a rebellion when it begins. In the first instance it commences with a few individuals,—the Catalines of the country; but when it gets to be formed, so that a large force is collected, and, instead of the Courts of Justice before existing, it substitutes Courts of its own, then comes up the doctrine of humanity which belongs to the laws of war,—that you can no longer speak of it as a rebellion. In the judgments of publicists when a rebellion gets to that head that it represents States, and parts of a nation, humanity stops the idea of private justice, and it goes upon the principle of public and international law. That will be found elaborately stated in Vattel; but I do not intend to trouble you with any lengthened reading of citations. I refer to the 18th chap. on the subject of civil war, page 424:

"When a party is formed in a State, who no longer obey the sovereign, and are possessed of sufficient force 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 the 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 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.'"

The moment the term "civil war" comes up, the idea of punishing, as rebellion or as piracy, the capture of a vessel, is an abuse of justice; and it is not only an abuse of justice, but it is an abuse of the fact, to say that those who are large enough to be a nation are to be considered as the enemies of all nations, because they undertake to make civil war. The point is not founded upon any technical considerations; it is founded upon the great doctrines of humanity and civilization. Because, what is to be the end of it? If we hang twelve men, they hang one hundred and fifty-six. If we treat them as rebels, why they treat our captured forces as these rebels are treated. You bring on a war without any civilizing rules. You bring in a war of worse than Indian barbarity. You bring in a war which can know nothing except bloodshed, in battle or upon the block. This is not a technical notion. It is that, when civil war is found to exist (and that altogether comes from the magnitude of the opposition), then the rules of war apply, as much as in any public war, so far as to protect the individuals acting under them. What would be said if you should take a gentleman who was made prisoner at Fort Hatteras, and try him for treason, and hang him? What would be said in this country, or in Europe,—what would be said anywhere, in the present or in future ages,—as to an act like that? Well, why not? Because justice must be equal. If you do it to one, you must do it to all. If you do it to all, you carry on an extermination of the human race, against all the principles which can animate a Court of Justice, or find a seat in the human bosom. Therefore, if we have the fact of civil war, we have the rules of war introduced.

Now, is this a civil war? I do not ask the question of how this country simply should regard it; but on the question in a Criminal Court, as to whether a civil war exists so as to give protection to those who act on one side of it, I have the concurrent judgments of the Courts. Judge Dunlop, in the case of the Tropic Wind, says there can be no blockade except in a case of war; that this is a civil war, and therefore there is a blockade. Judge Cadwalader says this is a civil war, and in civil war you may make captures; and Judge Betts, in a vastly profitable judgment, delivered in the other room, confiscating millions of property of Union men in the South, says that this is civil war. Now, if the Government of the United States forfeits the property of persons residing in these seceded States, without the formality of a trial for treason, because it is simply enemy's property, with what pretence can they set up the principle that they will not treat them as enemies? They will treat them as enemies, for the purpose of confiscation, and not as enemies, but as traitors and pirates, for the purpose of execution? Why, it is a glaring inconsistency. It strikes us off our feet as a people fit to be looked at by any impartial or rational person, in political jurisprudence.