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

Sufficeth him: the simple plan

That they should take who have the power,

And they should keep who can."

But it is not necessary that the nation under whose commission he acts, shall be one which is already established and acknowledged among the family of nations. It may be a colony struggling for independence, and not yet recognized by the nations of the earth. Our own Courts years ago decided this case with a liberality which has eminently distinguished them, and established the principle in respect to the South American colonies—colonies at that time not acknowledged by our Government as independent nations.

So, gentlemen, it was with regard to the powers of Europe during the days of the American Revolution. Every power in the world respected the letters of marque issued by Congress; and if there is an instance of a single case in which, in any land in the civilized world, there was a criminal trial of an American privateersman, I have not been able to find it. Their letters of marque were recognized because they were the letters of a de facto Government.

Now, gentlemen, what are the tests sufficient to form such a nationality as will cover these commissions? Are the Confederate States, in this instance, competent to maintain the relations of war and of peace? Gentlemen, if the South American provinces were, I think it can hardly be disputed that the people of ten great States like these certainly are. They are very far beyond them in civilization, in information, in wealth, and in all the means by which nations sustain their independence.

So important, however, is the fact of a commission, that even a commission from the Barbary powers—states which subsisted entirely, I may say, by plunder and piracy—was regarded as sufficient, in the Courts of England, to protect an Algerine who was taken with letters of marque. And that opinion comes with the authority of one of the greatest masters of the science of jurisprudence—Sir William Scott—a name that can never be mentioned without feelings of reverence by any man who respects the sentiments of justice and their application to the principles of international law. In the case I allude to, the Barbary subject was taken in an attempt to seize an English vessel. The crew was composed of foreigners, men of different nations, most of them belonging to Spain and France. It was held that as to all the rest of the parties they should be treated as outlaws, but the Algerine was allowed the plea of respondeat superior. In other words, he had but to point to his country, and say she was responsible; that she gave him authority, and assumed the responsibility; and upon that plea he was allowed to go. I mention this to show how far the doctrine has been carried.

But, gentlemen, if the commission from a Government de facto generally is a plea in bar (and that it is, I have no doubt the Court will charge you), it certainly holds good in a case of this kind, where the authority is much less questionable. Now, are the United States bound to recognize the Confederate States as belligerents? Not as an independent nation,—that is an entirely different question. We say, gentlemen, not only that the United States are bound to recognize the Confederate States as belligerents, but we think we have shown that they have done so. The capitulation between Commodore Stringham, General Butler, and Commodore Barron, recognized the existence of a state of war, and recognized the prisoners as prisoners of war; and not one word has been said, and not one act done, by the Government, to disavow their authority in so doing. It is the principle of civilized nations—and we belong to the family of civilized nations—to recognize parties, even in the midst of civil war, as belligerents; and this country is too just, too powerful, and too elevated in sentiment, to shrink from that which civilization, decency and honor compel her to stand to. She must recognize even those who are her children—struggling against her authority though they be—as fair and honest antagonists. From the time of our own struggle, in the days of the Revolution, we professed the principles of international law. They are now a part of the law of the land. There is a moral obligation upon us to occupy our position in the great family of nations; to hold it, as we have always done, with honor and with distinguished consideration. Sorry, indeed, would I be to think that there should be, on this occasion, any eminent departure from it, as there certainly would be if these men were held in any other light than as mere privateersmen, and not pirates.

But if these principles are true, as applying between the people of this country and the people of England during the days of the Revolution,—if the mother country then considered us as belligerents where there could be no subtle political question such as may be raised here, and has already been raised—the doctrine of the two sovereignties,—there is then, at least, a reason which applies in this case, and never could have applied in that case; for the allegiance of the colonies to the mother country was firm, fixed, and undivided: it never was, and never could be, questioned.

I say, then, that these parties are not pirates; and I further say that the municipal laws of a State, or of a number of States, cannot constitute that offence to be piracy which is not so characterized by international law; and for this principle I refer to 1st Phillimore, 381 (International Law).