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

Mr. Brady: That an American citizen cannot take a commission from a foreign Government without being a pirate?

Mr. Evarts: To serve against the United States, he certainly could not; and, if the law of nations and the rights of citizens require that a Government which demands allegiance and repays it by protection cannot make penal the taking of service from a foreign power against itself, I do not know what a Government can do. So much for the general right or power of a Government. If the particular and clipped interpretation of our Constitution has shorn our Government of that first, clearest, and most necessary power, why, very well. Such a result follows, not from that power or its exercise being at variance with the general principles or powers of Government, but because, as I have said, in the arrangement of the Government, there has fallen out of the general fund of sovereignty this plain, and clear, and necessary right.

But, on the second instance which my learned friend has put, I am equally clear in saying, that the case he there suggests is not within the statute of 1790, simply because, although by a forced and literal construction, if you please, about which I will not here quarrel, my learned friend thinks he places it within the general terms of the ninth section, yet I imagine your honors will at once come to the conclusion, which seems to my poor judgment a sensible one, that the case he puts has nothing to do with the subject matter of the statute, within its intent or purpose—and that, simply, because the statute has not chosen to cover the case proposed, by applying to it so extravagant a penalty. It is not from any defect in the power of Congress. Congress does punish just such an offence as the one suggested, whenever the weapon and the assault make it of the gravity of offences to which Congress has chosen to apply its penal legislation. The statute covering such an offence is enforced every day in this Court. And, certainly, I do not need to argue that, if Congress had the right to pass a statute prohibiting an assault with a belaying-pin, it had the right to call the offence piracy, if it pleased, and might punish it by hanging, if it saw fit; and, for that, it is not amenable to the law of nations, nor is its power exercised with reference to piracy under the law of nations when it deals with that class of offences.

I certainly do not need to fortify my answer to the case first put by my learned friend, in regard to the right of a nation to punish its citizens for taking service against its own country and commerce, by the practice or the legislation of other nations. But your honors will find, in the statutes of Great Britain—the statutes of 11 and 12 William III., and 2 George II.—precisely the same exercise of power and authority, and to the same extent, as respects the gravity of the crime and the punishment prescribed for it. And it would seem to me to be one of the plainest rights and most necessary duties of the Government, if its attention is called to any proclivity of its citizens to take service against itself, to punish them not as prisoners of war, and not under the laws affecting privateers.

Mr. Brady: I will only mention to you that, when I argue the question hereafter, and answer your suggestions, I will refer to the case of The United States v. Smith, (5 Wheaton, 153,) where Mr. Webster conceded, in the Federal Court, that this original Act defining piracy was, as respects the language I have referred to, not a constitutional exercise of the power conferred on Congress. He took the ground that the statute made a general reference to the law of nations as defining piracy, whereas, in his view, Congress should have proceeded to state what were the elements of the offence. I want to use that, in my argument, as an illustration of how strictly the Courts have held that it was never intended that even the case of taking a commission in a foreign service and making war against the United States, which might be treason, should be converted into piracy by any necromancy or alchemy of the law, such as the gentleman seems to have in view.

Mr. Evarts: Whenever a statute declares an offence to be a certain offence, that offence the Courts must hold it to be. The nomenclature of the Legislature is not to be quarreled with by the Courts which sit under its authority. They are to see that the crime is proved. What the crime is called is immaterial.

Mr. Brady: Then the Legislature might say that speaking offensive words on the high seas by our citizens is piracy.

Mr. Evarts: They can call it piracy, and punish it.

Mr. Brady: Yes, by death!

Mr. Evarts: It does not come under the law of nations as piracy, but under the general control of Congress over our citizens at sea. In other words, no nation depends, in the least, on the law of nations and its principles for the extent of its control over its own citizens on the high seas, or for the extent of the penalties by which it protects its own commerce against the acts of its own citizens on the high seas. It takes cognizance of such offences by the same plenary power by which it takes cognizance of offences on land. The difference with us would be, that the State government would have the control of these offences when committed on the land, as a general rule, and they would come within the Federal jurisprudence and the Federal legislation only by their being committed on the high seas. Now, what was said by Mr. Webster in the case of The United States v. Smith, a case arising under the Act of 1819? Mr. Webster argued that the special verdict did not contain sufficient facts to enable the Court to pronounce the prisoner guilty of the offence charged—that his guilt could not be necessarily inferred from the facts found, but that they were, on the contrary, consistent with his innocence—but that, even supposing the offence to have been well found by the special verdict, it could not be punished under the Act of 1819, because that Act was not a constitutional exercise of the power of Congress to define and punish piracy,—that Congress was bound to define it in terms, and was not at liberty to leave it to be settled by judicial interpretation. That was Mr. Webster's criticism upon the statute—that while the Constitution had said that the law must define what was piracy, Congress had left it to the Courts to define. Mr. Justice Story delivered the opinion of the Supreme Court in that case, to the effect, that the crime of piracy was constitutionally defined by the Act of Congress, and the point was so certified to the Circuit Court.