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 inquired of Mr. Evarts for what purpose he intended to refer to the statute against treason.

Mr. Evarts: Not in any other light than I have already referred to the doctrine of treason, to wit, that a party cannot be shielded from indictment for the crime of piracy by showing a warrant or assumed authority for acts which made out that his crime was treason; that showing a treasonable combination did not make out a warrant or authority for that which was piracy or murder.

Mr. Brady then proceeded to address the Jury on behalf of the accused:

May it please the Court: Gentlemen of the Jury:

I feel quite certain that all of you are much satisfied to find that this important trial is rapidly drawing to a close; and I think it would be unbecoming in me, as one of the counsel for the accused, to proceed a step farther in my address to you without acknowledging to the Court the gratitude which we feel for their kindness in hearing so largely discussed the grave legal questions involved in this controversy; to the Jury, for their unvarying patience throughout the investigation; and to our learned opponents, for the frank and open manner in which the prosecution has been conducted. Our fellow-citizens at the South—certainly that portion of them who cherish affection for this part of the Union—will find in the course of this trial most satisfactory evidence that respect for law, freedom of speech, freedom of discussion, liberty of opinion, and the rights of all our countrymen, here exist to the fullest extent. All of us have heretofore been connected with interesting and exciting trials. I am warranted in saying that, considering the period at which this trial has occured, and all the facts and circumstances attending it, the citizens of New York have reason to be proud that such a trial could proceed without one word of acerbity, without one expression of angry feeling, or one improper exhibition of popular sentiment. At the same time, as an American citizen, loyal to the Union,—one who has never recognized as his country any other than the United States of America; who has known and loved his country by that name, and will so continue to know and love it to the end of his existence,—I deeply regret that, for any purpose of public policy, it has been deemed judicious to try any of these "piratical" cases, as they are denominated, at this particular juncture. I am not to assume that good reasons for such a proceeding have not in some quarters been supposed to exist; and I certainly have no right to complain of the officers of the law, charged with a high duty, who bring to trial, in the usual course, persons charged with crime. I have not a word to say against my friend the District Attorney, for whom I feel a respect I am happy to express; nor against his learned associate, Mr. Evarts, for whom I have high regard; nor our brother Blatchford, who always performs the largest amount of labor with the smallest amount of ostentation. Still I regret the occurrence of this trial at a time when war agitates our country; for, apart from all theories of publicists, all opinions of lawyers, for you or me to say that there is not a war raging between two contending forces within our territory, is to insult the common sense of mankind. A war carried on for what? What is to be its end, gentlemen of the Jury? This war to which you, like myself, and all classes and all denominations of the North have given a cheerful and vigorous support—pouring out treasure and blood as freely as water—what is it for? Not to look at the result which must come out of it is folly; and it is the folly that pervades the whole American people. Suppose it were now announced that the entire Southern forces had fled in precipitate retreat before our advancing hosts, and that the American flag waved over every inch of American soil—what then? Are we fighting to subjugate the South in the sense in which an emperor would make war upon a rebellious province? Is that the theory? Are we fighting to compel the seceded States to remain in the Union against their will? And do we suppose such a thing practicable? Are we fighting simply to regain the property of the Federal Government of which we have been despoiled in the Southern States? Or are we fighting with a covert and secret intention, such as I understand to have been suggested by an eloquent and popular divine, in a recent address to a large public audience, some of them, like himself, from the Bay State, "that Massachusetts understands very well what she is fighting for"? Is it to effect the abolition of slavery all over the territory of the United States? I will do the Administration the justice to say that, so far as it has given the country any statement of its design in prosecuting the war, it has repelled any such object as negro emancipation. Who can justify the absurd aspect presented by us before the enlightened nations of the Old World, when they find one commander in our army treating slaves as contraband of war; another declaring that they belong to their masters, to whom he returns them; and another treating them all as free. I am an American, and feel the strongest attachment to my country, growing out of affection and duty; but I cannot see that we present before the world, in carrying on this war, anything like a distinct and palpable theory. But I tell you, and I stand upon that prophecy, as embodying all the little intelligence I possess, that if it be a war for any purposes of mere subjugation—that if it be for the purpose of establishing a dictatorship, or designedly waged for the emancipation of all the slaves, our people never will sustain it at the North. (Applause, which was checked by the Court.)

You will see presently, gentlemen, why I have deemed it necessary, at the very outset, to speak thus of what I call a state of civil war,—a condition which, if the learned Judges on the bench, in their charge to you, shall, as matter of law, declare to have existed, then this commission, under which the acts charged in the indictment were perpetrated, forms an absolute legal protection to the accused. Whether such a war exists, is one of the great questions with which the Jury have to deal; and I understand that the Jury have to deal with this case—that they are not mere automata—that we have not had twelve men sitting in the jury-box for several days as puppets.

The great question for this Jury, absorbing all others, is, Have the twelve men named in the indictment, or has either of them, committed piracy, and thus incurred the penalty of death? It is a very interesting inquiry, gentlemen,—interesting in its historical, national, judicial, and political aspects,—interesting, too, because of the character and description of the accused. We discover that eight of them are foreigners, who have never been naturalized, and do not judicially come under the designation of citizens of the United States. Four of them are what we call natural-born citizens—two from the State of South Carolina, one from North Carolina, and one from Philadelphia. Two of them are in very feeble health; and I am sorry to say, some are not yet of middle age—some quite young, including Passalaigue, who has not yet attained his eighteenth year. I know my fellow-citizens of New York quite well enough to be quite sure that even if there had been any exhibition of popular prejudice, or feeling, or fury, with a view to disturb their judgments in the jury-box, the sympathy that arises properly in every well-constituted heart and mind, in favor of the accused, their relatives and friends, would overcome any such wrong impulse as might be directed to deprive them of that fair trial which, up to this point, they have had, and which, to the end, I know they will have.

Are they pirates and robbers? Have they incurred the penalty of death? Gentlemen, it is a little curious, that during the present reign of Victoria, a statute has been passed in England softening the rigor of the punishment for piracy, and subjecting the person found guilty to transportation, instead of execution, unless arms have been used in the spoliation, or some act done aggravating the offence. I have used the term "pirate," and the term "robber." There is another which, strangely enough, was employed by a Judge of the Vice Admiralty Court in South Carolina, in 1718, who calls these pirates and robbers, as we designate them, "sea thieves;" and I am very glad to find that phrase, because the words robber and pirate have fallen into mere terms of opprobrium; while the word "thief" has a significance and force understood by every man. You know what you thought a "thief" to be, when a boy, and how you despised him; and you are to look at each prisoner mentioned in this indictment, and say, on your consciences as men, in view of the facts and of the law, as expounded by the learned Court, do you consider that the word "thief" can be applied to any one of the men whom I have the honor to assist in defending? That is the great practical question which you are to decide.

[Here Mr. Brady briefly alluded to the question of jurisdiction as already discussed fully enough, and made some observations on the Hicks case, which had been referred to. He then continued as follows:]

This indictment charges two kinds of offence: Piracy, as that crime existed by the law of nations,—which law may be said to have been incorporated into the jurisprudence of the United States,—and Piracy under the ninth section of the Act of 1790. Piracy by the law of nations is defined by Wheaton, the great American commentator on international law, on page 184 of his treatise on that subject. "Piracy" says that eminent gentleman, who was an ornament to the country which gave him birth, and an honor to my profession, "Piracy is defined by the text writers, to be the offence of depredating on the seas without being authorized by any sovereign state, or with commissions from different sovereigns at war with each other." The last part of the definition you need not trouble yourselves about as I only read it so as not to quibble the text. I will read the passage without the latter part. "Piracy is defined to be the offence of depredating on the seas without being authorized by any sovereign state." Other definitions will hereafter be suggested.