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

3. The authority from any person in that section has reference to persons without the possession, in fact, of territory.

If your honors please, I have endeavored, so far as it was possible, to abbreviate what I have had to say on this subject. It is a very interesting one, undoubtedly, not only to the legal student, but to all persons in the country. This war is a war to reclaim those States. To attempt to reclaim them by prosecutions for piracy, or by acts of hostility which disregard them as having any form of society,—it seems to me that no national evil could be greater. The idea that in a commercial city it is very offensive that there should be privateers, is a trifle. The navy can regulate that. Let them look more to the privateers that want to get out than to the prizes that want to come in, and that will be provided for. We need not violate principles of law, or of humanity, or the common sense of the world, to produce an effect of that kind. We need to show that, in the midst of all this excitement and outcry against piracy—in the midst of a press that never names any of these people without calling them "pirates"—the men brought in always in chains, for the purpose of exciting public indignation against them and preventing their being treated as men of common rights and common interests with us—all which is very humiliating, it seems to me—in a Court of Justice no such feelings will be succumbed to.

Certain I am that, where I stand, no such principles will be put in use. Justice will come—severe and stern, it may be—but it will be justice, with truth, and reason, and humanity, and political tenderness accompanying all its acts and all its judgments.

Mr. Larocque: If the Court please, I had hoped to be saved the necessity of addressing your honors upon these propositions of law; but, in the distribution that has been made among the counsel, it has fallen to my lot to present the propositions in reference to which my opening was made, yesterday, to the Jury, and which will be adverted to by the counsel who, on our side, will close the case; and, simply, without detaining your honors, at this late hour, with any remarks upon them further than the reading of some extracts from authorities I have collected, I will present the propositions, leaving them to the action of your honors, and to the remarks of my associate, who will close this case, after we have ascertained the direction it will take before the Jury.

The first proposition I had stated, with reference to jurisdiction: "That the defendants, after their capture and confinement as criminals, for the acts charged in this indictment, having been taken within the District of Virginia, on board the vessel on which they were so confined before being brought within the Southern District of New York, cannot be convicted under this indictment."

In reference to that, there are a number of additional authorities that I will furnish to your honors. In the case of the United States vs. Charles A. Greiner, tried before Judge Cadwalader, in the Philadelphia District, the defendant had been arrested under a charge of treason committed in Georgia. It seems to have been understood, by the learned counsel on the other side, that the question of jurisdiction may be influenced by the fact of whether there was any possibility of these prisoners being tried in Virginia or not; and it is in reference to that point that I cite this case. Judge Cadwalader says:

"The questions in this case are more important than difficult. On the 2d of January last an artillery company of the State of Georgia, mustered in military array, took Fort Pulaski, in that State, from the possession of the United States, without encountering any forcible resistance. They garrisoned the post for some time, and left it in the possession of the government of the State. The accused, a native of Philadelphia, where he has many connections, resides in Georgia. He was a member of this artillery company when it occupied the fort, and, for aught that appears, may still be one of its members. He was not its commander. Whether he had any rank in it, or was only a private soldier, does not appear, and is, I think, unimportant. He is charged with treason in levying war against the United States. The overt act alleged is, that he participated, as one of this military company, in the capture of the fort, and in its detention until it was handed over to the permanent occupation of the authorities of the State.

"The primary question is whether, if his guilt has been sufficiently proved, I can commit him for trial, detain him in custody, or hold him to bail to answer the charge. The objection to my doing so is, that the offence was committed in the State of Georgia, where a Court of the United States cannot, at present, be held, and where, as the District Attorney admits, a speedy trial cannot be had. The truth of this admission is of public notoriety.

"The Constitution of the United States provides that in all criminal prosecutions the accused shall enjoy the right to a speedy trial by a Jury of the State and District wherein the crime shall have been committed. The only statute which, if the Courts of the United States for the State of Georgia were open, would authorize me to do more than hold this party to security of the peace, and for good behavior, is the 33d section of the Judiciary Act of the 24th September, 1789. That section, after authorizing commitments, &c., for trial, before any Court of the United States having cognizance of the offence, provides that if the commitment is in a District other than that in which the offence is to be tried, it shall be the duty of the Judge of the District where the delinquent is imprisoned seasonably to issue, and of the Marshal of the same District to execute, a warrant for the removal of the offender to the District in which the trial is to be had. The District Attorney of the United States does not ask me to issue such a warrant for this party's removal to Georgia for trial. Therefore I can do nothing under this Act of Congress. It does not authorize me to detain him in custody to abide the ultimate result of possible future hostilities in Georgia, or to hold him to bail for trial in a Court there, of which the sessions have been interrupted, and are indefinitely postponed."

In reference to the counts of the indictment founded upon the 8th section of the Act of 1790 and the Act of 1820, the propositions I have are these: