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

I say, that neither of the defendants intended, as the ordinary and natural consequence of his act, to commit piracy or robbery, though what he did might, in law, amount to such an offence. He intended to take legal prizes, and no more to rob than the man in the case I supposed designed to kill.

The natural consequences of his acts were, to take the vessel and send her to a port to be adjudicated upon as a prize. Now, I state to my learned friends and the Court this proposition—that though a legal presumption as to intent might have existed in this case if the prosecution had proved merely the forcible taking, yet if, in making out a case for the Government, any fact be elicited which shows that the actual intent was different from what the law in the absence of such fact would imply, the presumption is gone. And when the prosecution made their witness detail a conversation which took place between Captain Baker and the Captain of the Joseph, with reference to the authority of the former to seize the vessel, and when you find that Captain Baker asserted a claim of right, that overcomes the presumption that he despoiled the Captain of the Joseph with an intent to steal. The animus furandi must, in this case, depend on something else than presumption. I will refer you for more particulars of the law on this point, to 1 Greenleaf on Evidence, sections 13 and 14, and I make this citation for another purpose. When an act is in itself illegal, sometimes, if not in the majority of cases, the law affixes to the party the intent to perpetrate a legal offence. But this is not the universal rule. In cases of procuring money or goods under false pretences, where the intent is the essence of the crime, the prosecution must establish the offence, not by proving alone the act of receiving, but by showing the act and intent; so both must be proved here. Now, I ask, has the prosecution entitled itself to the benefit of any presumption as to intent? What are the facts—the conceded facts? Baker, and a number of persons in Charleston, did openly and notoriously select a vessel called the "Savannah," then lying in the stream, and fitted her out as a privateer. Baker, in all of these proceedings, acted under the authority of a commission signed by Jefferson Davis, styling and signing himself President of the Confederate States of America. Baker and his companions then went forth as privateersmen, and in no other capacity, for the purpose of despoiling the commerce of the United States, and with the strictest injunction not to meddle with the property of any other country. The instructions were clear and distinct on this head, as you know from having heard them read. They went to sea, and overhauled the Joseph; gave chase with the American flag flying—one of the ordinary devices or cheats practiced in naval warfare; a device frequently adopted by American naval commanders to whose fame no American dare affix the slightest stigma. On nearing the Joseph, the Savannah showed the secession flag, and Baker requested Captain Meyer to come on board with his papers. The Captain asked by what authority, and received for answer: "The authority of the Confederate States." The Captain then went on board with his papers, when Baker, helping him over the side, said: "I am very sorry to take your vessel, but I do so in retaliation against the United States, with whom we are at war." Baker put a prize crew on board the Joseph, and sent her to Georgetown; the Captain he detained there as a prisoner. She was then duly submitted for judgment as a prize. These are the facts upon which they claim that piracy at common law is established.

My learned associate, Mr. Larocque, cited a number of cases to show that though a man might take property of another, and appropriate it to his own use, yet if he did so under color of right, under a bona fide impression that he had authority to take the property, he would only be a trespasser; he would have to restore it or pay the value of it, but he could not be convicted of a crime for its conversion.

Let me state a case. You own a number of bees. They leave your land, where they hived, and come upon mine, and take refuge in the hollow of a tree, where they deposit their honey. They are your bees, but you cannot come upon my land to take them away; and though they are in my tree, I cannot take the honey. Such a case is reported in our State adjudications. But, suppose that I did take the bees and appropriate the honey to my own use: I might be unjustly indicted for larceny, because I took the property of another, but I am not, consequently, a thief in the eye of the law; the absence of intent to steal would ensure my acquittal.

That is one illustration. I will mention one other, decided in the South, relating to a subject on which the South is very strict and very jealous. A slave announced to a man his intention to escape. The man secreted the slave for the purpose of aiding his escape and effecting his freedom. He was indicted for larceny, on the ground that he exercised a control over the property of the owner against his will. The Court held that the object was not to steal, and he could not be convicted. In Wheaton's Criminal Proceedings, page 397, this language will be found, and it is satisfactory on the point under discussion.

"There are cases where taking is no more than a trespass: Where a man takes another's goods openly before him, or where, having otherwise than by apparent robbery, possessed himself of them, he avows the fact before he is questioned. This is only a trespass."

Now all these principles are familiar and simple, and do not require lawyers to expound them, for they appeal to the practical sense of mankind. It is certainly a most lamentable result of the wisdom of centuries, to place twelve men together and ask them, from fictions or theories to say, on oath, that a man is a thief, when every one of them knows that he is not. If any man on this Jury thinks the word pirate, robber or thief can be truly applied to either of these defendants, I am very sorry, for I think neither of them at all liable to any such epithet.

But, suppose that the intent is to be inferred from the act of seizing the Joseph, and the defendants must be convicted, unless justified by the commission issued for Captain Baker; let us then inquire as to the effect of that commission. We say that it protects the defendants against being treated as pirates. Whether it does, or not, depends upon the question whether the Confederate States have occupied such a relation to the United States of America that they might adopt the means of retaliation or aggression recognized in a state of war.

It is our right and duty, as advocates, to maintain that the Confederate Government was so situated; and to support the proposition by reference to the political and judicial history and precedents of the past, stating for these men the principles and views which they and their neighbors of the revolting States insist upon; our personal opinions being in no wise called for, nor important, nor even proper, to be stated at this time and in this place.

If it can be shown that the Confederate States occupy the same position towards the Government of the United States that the thirteen revolted Colonies did to Great Britain in the war of the Revolution, then these men cannot be convicted of piracy.