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

The authority which this Court has for punishing the crime which has come under consideration in this case is the law of the United States, supported by the Constitution of the United States, in respect to both branches of the statute under inquiry. As the indictment follows the law, and the law follows the Constitution, the subject for your cognizance is rightfully here, and the proofs and the evidence in the case show that the crime has been committed, and that the acts of the prisoners which resulted in the seizure of the Joseph on the high seas include all the ingredients that enter into the completeness of the crime of robbery on the high seas, as named in the eighth section of the Act of 1790, and in the third section of the Act of 1820. I am confining myself, in these observations, to the crime of the whole twelve, not affected by the question of citizenship, and not falling under the ninth section of the Act of 1790.

It is certainly not necessary for me here to insist, with much of detail, on the question of the completeness or effect of the evidence as showing that the seizure of the Joseph was attended by all the circumstances of force, and was stimulated by all the purposes of robbery, which the law makes an ingredient of this offence. So far as the sufficiency of the evidence is to pass under the judgment of the Jury, it is entirely out of place for me to comment on it here. And, so far as any purpose of instruction to the Jury by your honors requires any consideration now, it is sufficient for me to say, that there is no trait of violence, and threat, and danger which, within the law of robbery,—and the law of piracy, if there be any difference,—makes up the necessary application of force, that is not present here. And I understand my learned friend, Mr. Lord, to concede, that there was force enough to make up the crime, if the element of intent, the vicious purpose of robbery, was present, as part of the body of the crime.

My learned friends have treated this latin phrase, animo furandi, as if it meant animo fruendi—as if the point was, not the intent to despoil another, but the intent to enjoy the fruits of the crime themselves. Now, I need not say that a man who robs his neighbor to give the money to charity, despoils him, animo furandi, just as much as if he did it with the intention of using the money for his own purposes of pleasure or profit. That is the point, and all the cases cited only touch the question of whether, in the violent taking, or the fraudulent taking, imputed as a crime, there could be supposed by the Jury to be, on any evidence introduced, any honest thought, even the baseless notion, on the part of the offender, that the property was not that of the man from whom he took it, but was his own. I have not seen anything in this evidence which should lead us to suppose that Mr. Baker and his crew thought that this vessel, the Joseph, belonged to them, and that they took her under a claim of right, as property of their own. The right under which they acted was a supposed right to make it their own, it then and there being the property of somebody else—to wit, of the United States of America, or of some of its citizens. So, your honors will find, that except so far as the considerations of the moral quality of this crime, in regard to its not being furtive and stealthy, are raised and supported by the general considerations which are to change this transaction from its private quality and description into a certain public dignity, as part of a wider contest, and which considerations are to be disposed of by the views which your honors may take of the affirmative proposition of the defence, which would make this privateering at least an act of hostility in flagrant war—except so far, I say, as these considerations are concerned, I need not say anything more as to the completeness of the ingredients, both of force, and of robbery or despoiling another, necessary to make up the crime.

We come, now, if the Court please, to a variety of considerations, many of them, I think, not at all pertinent to a judicial inquiry; many of them ethical; many of them political; many of them addressed to the consciences of men; and many of them addressed to the policy of Governments—and which, in the forum where they are debatable, and which for the most part is a forum which can never make a decision, may be useful and interesting. Some of them do approach, doubtless, the substance and shape of legal propositions; and I am sure I do no injustice either to the nature, or purpose, or character of these manifold views, when I say that they all centre on the proposition, that this transaction, which, in its own traits and features as a private act of these parties, is a crime of piracy, is transferred into the larger range of a conflict of force, authorized by the laws of war, and with no arbiter and no avenger, but in the conscience, and before the common Judge of all. Now, if the Court please, the legal notion to which we must bring this down, is this—that the acts here complained of are, within the law and jurisprudence which this Court administers, acts of privateering, not falling within the law of piracy.

Now, what is privateering? My learned friends have spoken of privateering as if it were one of the recognized, regular, suitable public methods of carrying on hostilities between nations, and as if it fell within the general protection which makes combatants in the field, fighting as public enemies, and against public enemies, amenable only to the laws of war. And my learned friend, Mr. Lord, has read, with much satisfaction, the very pointed observations made by Mr. Marcy in his letter to the French Minister, which were very just and very appropriate as a home argument against France; that is, the encomiums of certain French commanders on the dignity and nobility of the conduct of privateers who rushed to the aid of their country when at war. Now, my view, and I believe the view of the law books and of the publicists of the present day, is this—that privateering is the last relic of the early and barbarous notions of war, that a trial of force between nations involved a rightful exercise of personal hostility by every individual of one nation against every individual of the other, and against every portion of the property of the other. That law of war which authorizes the attack on peaceful persons by armed bands on land, and the robbery, devastation, and destruction of private property wherever it may be found, has been long since displaced by those principles of humanity, of necessity, and of common sense, which make war an appeal, when there is no other arbiter, to the strength of the parties, to be determined with as little injury to property and life as possible. Now, privateers have never been looked upon as being themselves entitled to the least comparison with the regularly enrolled military power, or with the regular naval service, in respect to their motives, or the general rules of their conduct, or the general effect which their depredations are expected to produce. And the tendency of all movements in the public laws of nations, as affecting the maintenance of war, has been at least to discourage and to extirpate, if possible, this private war on sea, in both of its forms—to wit, in the form of public armed vessels taking private and peaceable property on sea, and in the still more aggravated form of private armed vessels, with crews collected for the purposes of gain and plunder, under the license which war may give. So far from this Government having, on the general principles, moral and social, which should govern such a discussion, desired to maintain or extend privateering, it was among the first and the earliest to concede in its treaties, and to gain from the other contracting parties the concession, that if war should arise between the parties to the treaty, privateers should not be commissioned or tolerated on either side. And, if this Government has failed to yield to the attempt made on the part of certain European powers to crush this single branch of private war on the ocean, to wit, war by private parties on the ocean, it has only been because it saw that that design, not including the destruction of that other branch of private war at sea—the war of public vessels against private property—was not a design clearly stimulated by the purposes and interests of humanity. While the European Governments chose to destroy that branch which was least important to them—the use of private armed vessels—they claimed to continue in full force the right of public armed vessels to make aggressions on private property on every sea. The one point was quite as important to have ameliorated as the other, which permits us to recruit the small navy which our republican institutions justify us in maintaining, by the vigor of our mercantile marine in the time of naval war. Therefore, there is nothing in the history of the country which can, in the least, support the idea that we look with favor on the notion of privateering.

Some sensible observations upon the subject are to be found on marginal page 97, in the first volume of Kent's Commentaries, to which I ask your honors' attention:

"Privateering, under all the restrictions which have been adopted, is very liable to abuse. The object is not fame or chivalric warfare, but plunder and profit. The discipline of the crews is not apt to be of the highest order, and privateers are often guilty of enormous excesses, and become the scourge of neutral commerce. They are sometimes manned and officered by foreigners, having no permanent connection with the country or interest in its cause."

I agree that there is still left, under the license and protection of the law of nations, the prosecution of hostilities on the high seas by privateers and private armed vessels. And I agree that, although the crime proved in this case does come within the description and punishment of robbery and piracy, in its own actual traits and features, yet if it be shown that what is thus made piracy and robbery by the statute was actually perpetrated by a privateer, under the protection of the law of nations, with a commission from a sovereign nation, within the scope of the authority of that commission, it is an answer to an indictment, the terms of which had been otherwise proved. And that is undoubtedly what is claimed here. You have proved piracy and robbery under the eighth section, say these defendants, if we cannot impart to the circumstances and features of this crime some public quality and authority which saves the transaction from condemnation and punishment.

Mr. Brady: We say no such thing. We say that, if they acted in good faith, however mistaken, and though the commission may be void, they have not committed any offence whatever.

Mr. Evarts: This is the extent of my concession, as matter of law,—that it is an answer to a charge of piracy which is otherwise complete, that the crime was committed under conditions which, by the law of nations, relieve it from punishment. Now, what are the conditions that the law of nations requires?