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

In a spasm of deathly pain."

I wish now, gentlemen, to ask you to go with me a moment to the deck of the Perry, when she captured the Savannah and her crew. Let us recall the historical incidents of the capture, and the preparations for the trial, that we may introduce this case as justice requires.

The Savannah was captured on the Atlantic Ocean, about fifty-five miles from Charleston. The Commander of the Perry, who at that moment represented the United States Government, virtually said to the defendants herein, "We propose to try you as citizens of the United States, who, by acting under a commission of letter of marque from the Confederate States, have become liable to the penalties of the United States law against piracy." The prisoners at once reply, "If that is true, take us into the nearest ports for trial. They are in South Carolina. You claim that she is a part of the United States, and that her citizens (i.e., ourselves) are amenable to your laws, and that the United States are sovereign there. Take us before one of your Courts in that State and try our case." "Oh! no, (say the United States) we cannot, with all our guns, land upon the shores of South Carolina." "Well, take us into the adjoining State, Georgia." "No; there is not an officer of the United States in Georgia. We cannot protect or sustain a single law in Georgia." "Well, take us to Florida, Alabama, Mississippi, Louisiana or Texas—any place along that extended coast of over two thousand miles." "No, (say the United States) throughout all that coast, we confess to you, Capt. Baker, that we have not a Court, not an officer, we cannot execute a single law." "Well, take us north, into North Carolina, or into Virginia." The reply of the United States is still, "We have no place there. But, notwithstanding we admit that throughout that territory we have no practical existence; we have no Court; we have no civil functionaries; we have no protection for allegiance to us; we have not a citizen who acknowledges his allegiance to us; we admit that the people in those States have excluded our government and established another, which is in active and exclusive control—notwithstanding all this, you are still our citizens; and none, nor all of these facts, relieve you from the guilt and liability to punishment."

The defendants are accordingly put in chains and brought to the District of New York for trial. The witnesses for the prosecution prove all the facts that are in the case, and we stand willing to be tried by them. They prove that the defendants did capture a brig on the high seas, which brig belonged to citizens of the United States. They prove, further, that the defendants at the time of the capture, and in the act, alleged that they did so, in the name and on behalf of the "Confederate States of America," and by authority derived from them, as an act of war between the two Governments.

The authority and intent thus alleged for the capture, were they honestly, or only colorably alleged? Were they a justification of the act, so far as this prosecution is concerned, or not?

First: Was it true that the capture of the Joseph was in the name of the Confederate States? The fact is, that when the Savannah approached and summoned the Joseph to surrender, the captain of the Savannah stated his purpose to be as I have repeated; he hoisted the Confederate flag; he wore the uniform and insignia of an officer of the Confederate States; he had, as the paper upon which his vessel was documented, a paper which has been produced before us, and which bears the broad seal of the "Confederate States of America," which authorizes him to take the Savannah as a private armed vessel, and, in the name and authority of the Confederate States, to "make war" against the United States and her vessels. The facts preclude any possible suggestion, that the defendants made any false pretence on the subject. The defendants had every adequate and sufficient warrant for what they did, if the "Confederate States of America" could give any authority which would constitute a defence, or if there was anything in the state of the contest between the United States and the Confederate States which constitutes war. But, the question will present itself, even if the defendants had this warrant from the Confederate States—Did they intend to, and did they in fact comply with its requirements, or were they abusing and transgressing its license, and engaged in freebooting? Did they intend to infract the regulations prescribed for their control by the Government of the Confederate States and imposed imperatively by the law of nations upon legitimate privateers, or did they intend to rob and steal? I think I may safely assert that the law officers of the United States will admit that the defendants intended in good faith to comply strictly and literally with all the conditions of their authority, prescribed by their own Government for their conduct, and also with the code of war in the law of nations. And not only was this their general intention, but as a fact, their conduct furnishes not a single deviation from these requirements. I read to the Court and Jury the Regulations published by the Confederates, for the privateers, and which were found to be on board of the Savannah at the time of her capture. They are similar, in all of their provisions, to those usually prescribed by civilized nations at war. In substance, they permitted the privateers to capture the vessels and cargoes belonging to the United States and her citizens, the capture to be made in the name of the Confederate States; they forbade, after capture, any disturbance or removal of the furniture, tackle, or cargoes of the captured prizes, and required immediate transmission, to a proper Court, of the prize, for adjudication. Did the defendants comply with these terms? The evidence is too plain that they did, to admit the slightest doubt.

As soon as the Joseph was captured, a prize crew was put on board of her and she was sent to the care of an Admiralty Court in a home port, and her papers, books and crew were sent along, that the Court might have the fullest evidence of the ownership and character of the captured vessel, and be able to decide properly, whether or not she was liable to capture. If the defendants had any corrupt or furtive motives, or if they had been indifferent to their assumed obligations, would they have been so scrupulous in furnishing all the evidence to the Court? Did they destroy, alter or erase any evidence, or offer to do so? Did they evince the least desire to have any other than the full facts appear with regard to all their acts? Your answer, with mine, is No! And when the vessel arrived in port, observe what proceedings were instituted by the agent of the captors. He did not offer to sell the vessel and cargo at private sale; he did not offer to submit her disposition to the adjudication of any merely State Court; but caused her to be libeled in a Prize Court, constituted on precisely the same basis, and enforcing the identical rules of law with the United States Prize and Admiralty Court, which convenes in the room adjoining to that in which we now are. In fact, I am safe in saying that the decisions of our Courts here are controlling precedents in the Court wherein the brig Joseph was tried and condemned as a prize of war. The trial was in a Court known to and recognized by the law of nations. Now, gentlemen, I certainly need do no more than thus re-advert to the facts in evidence to remove from your minds the slightest suspicion that the defendants ever intended to violate the laws of war or the instructions received from their Government when they received their letter of marque.

Perhaps, however, the question may arise,—whether the defendants did regard the commission under which they sailed as competent and adequate authority to justify their acts; or were they distrustful of its sufficiency? I do not admit, gentlemen, that that is a consideration to which in this trial we should recur, for your decision must rest on other grounds. But, I will not hesitate to say, that it is morally impossible for any man who has heard the evidence, and who is familiar with the course of events in the South, to believe that the defendants did not act in the fullest confidence that the authority of the Confederate States was ample and just authority for their undertaking. Even that one of the Savannah's crew who has become a witness for the prosecution, under a nolle prosequi, asserted on the stand, that at the time the Savannah was being fitted out for her cruise as a privateer, no one in the community of the South seemed to have any other idea but that the Government of the Confederate States was completely and legally established, and that every citizen of those States owed to it supreme allegiance. They believed that a letter of marque from the Confederate States constituted as good authority for privateering as the letters which were issued by our revolutionary fathers in '76, or as if they were issued by the United States. But, gentlemen, we are to proceed one step further, for under the theory presented by attorneys for the prosecution, they virtually admit that there was good faith on the part of the prisoners, and that they intended to comply with the restrictions imposed by the authority which they carried out of port with them. But they say that, inasmuch as the Confederate States were not a recognized Government, they could not confer any right upon the defendants to act as privateers, which could justify them in a plea to the pending charge. That is a proposition which enfolds the real issue in this trial. The difficulties in respect to its solution do not appear to me to be great, and I am satisfied that the more they are examined the less they will appear to candid minds.

Had the Government of the Confederate States a right to issue letters of marque; or, in other words, to declare and wage war? The denial of that right, by the attorneys for the United States, involves them in inextricable embarrassments, and must expose the fallacies which lie at the bottom of the erroneous reasonings of the prosecution.

In the first place, it is substantially an assertion, on the part of the United States, of the doctrine, "Once a sovereign always a sovereign,"—that the United States Government cannot—by revolution accomplished—by the Act of the States repealing their ordinances of union—by any act of the people establishing and sustaining a different Government—be divested of their former sovereignty. Or, in the language of Mr. Evarts, until there has been some formal acquiescence, some assent, some acknowledegment by the executive authority of the United States of the independence of the Confederate States, there can be no other plea, and no progress in any line of investigation, with a view to a defence of these defendants in a Court of justice of the United States. Upon that point, I beg to be understood as taking an issue as wide as it is possible for human minds to differ; and I am bold to assert that the doctrine cannot be maintained successfully in a capital case of this kind. It is not true that a recognition of the Confederate States by the United States executive, in a formal and distinct manner, is requisite to entitle them and their citizens to the rights belonging to a nation, in the eye of this Court. An acknowledgment of independence would be one way of proving the fact, but is far from being the only way. Proof of such an acknowledgment by a formal State paper would, of course, terminate this prosecution; but, in the absence of that fact, there may be a recurrence to others, which will suffice as well, and satisfy the Court and Jury that the Confederate States must, at least, to a certain extent, be regarded as a nation, entitled to the usual consideration belonging to a nation at war. To show how unreasonable the proposition is, and to illustrate how impossible it is to accept it, let me submit a supposition: