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

And here, gentlemen, let us refer to the matter of blockade, which I take to be the highest evidence of a distinct recognition, by the General Government, of a state of war as between the United and the Confederate States. I see no escape from that conclusion. It is true that a learned Judge in New England, an eminent and pure man, has determined, as we see from the newspapers, that in his judgment it is not a blockade which exists, but merely the exercise by the General Government of its authority over commerce and territory in a state of insurrection—that it is a mere police or municipal regulation. Well, gentlemen, that is not the view taken by the Judges elsewhere. Certainly it is not adopted in this District, where prize cases have arisen, instituted by the Government, which calls this a blockade; and I undertake to say that, in the history of the human race, that word, blockade, never was applied except in a state of war; and the exercise of that power never can occur except in a state of war, because, as the writers inform us, blockade is the right of a belligerent affecting a neutral, and only allowable in a state of war. Why is it that France and England and all the other countries of the world do not attempt to send their vessels to any of the ports in guard of which we place armed vessels?

A word more about piracy: A pirate is an offender against the law of nations. He is called in the Latin, and by the jurists, the enemy of the human race. Any nation can lay hold of him on the high seas, take him to its country, and punish him. Now, if a ship of war—British, French, Russian, or of any other nation—should meet with a piratical craft, she would capture and condemn it in the courts of her country, and the crew would suffer the punishment of pirates. No one will dispute that proposition. But if such a ship of war had met with the privateer Savannah, even in the very act of capturing the Joseph, would she have captured the Savannah, or attempted to arrest her crew as pirates? If not, does it not follow, as a necessary consequence, that the "Savannah" was not engaged in piratical business? and does it not involve a palpable absurdity to say, that a vessel on the high seas, cruising under a privateer's commission, can be treated as a pirate by the power with which it is at war, and yet be declared not a pirate by all the other powers of the earth? This must be so, if there is anything in the idea that piracy is an offence against the law of nations.

There is not a case in our books where any man, under a commission emanating from any authority or person, was ever treated as a pirate, and so condemned, unless the actual intent to steal was proved. In the case of Aurey such was the fact, as in many other cases which have been cited. And so it seems that if the Confederate States were either an actual Government, established in virtue of the principles of right to which I have referred, or if a Government de facto, as distinguished from one having that right, or if these men believed that the commission emanated from either kind of Government was—lawfully issued—we claim that it is impossible in law, and would be wrong in morals, and unjust in all its consequences, to hold them as pirates, or to treat them otherwise than as prisoners of war. And, gentlemen, I am sorry to say, or rather I am glad to say, that if they should be acquitted of the crime of piracy, they would yet remain as prisoners of war. The worst thing to do with them is to hang them. By preserving their lives we have just their number to exchange for prisoners taken by the enemy.

You, gentlemen, will do your duty under the law, whatever be the consequences. If you have no doubt that these men have committed piracy, they should be convicted of piracy. No threat of retaliation from any quarter should or will influence right-minded men in the disposition to be made of cases where they have to give a verdict according to their conscience, the evidence, and the law of the land.

But the fact of retaliation, as a danger that may ensue from treating as pirates men engaged in war, is referred to by Vattel in his treatise on the laws of nations. It is one of the considerations which enjoin on Courts and Governments the duty of seeing that, when people are prosecuting civil war, they shall enjoy the humanities of war.

I will now consider this case under the ninth section of the Act of 1790, which is as follows:

"If any citizen shall commit any piracy or robbery aforesaid, or any act of hostility against the United States, or any of the citizens thereof, on the high seas, under color of any commission from any foreign Prince or State, or on pretence of authority from any person, such offender shall, notwithstanding the pretence of any such authority, be deemed, adjudged, and taken to be a pirate, felon, and robber, and, on being thereof convicted, shall suffer death."

Now, in the first place, we say, as was before urged, that statute has no bearing whatever on the case of the eight foreigners, and you are to disregard them entirely in passing upon all the questions which this Act may raise; and we say that it has no bearing on the four Americans before you, even if it be a valid Act and applicable to a case of this character, because, at the time of the acts charged, they were citizens of another Government, owing it allegiance, receiving its protection, engaged in its service, and bound to perform such service. We have been told that allegiance and protection are reciprocal. The people of the Southern States would be placed in a very extraordinary condition if the arguments of my learned opponent are to prevail. Look at the citizens of Charleston. There are men in that city who love the Union, among whom is Mr. Pettigrew, an able lawyer, a patriot, and a man of great virtue, talents, and distinction. If those loyal people wanted to leave Charleston and come North, they could not do it. If they felt inclined to utter, at this moment, their sentiments in favor of reunion of the States, it would be an act of folly and danger. They are living in a State, under its government and jurisdiction, and bound to perform their duties as citizens. Can they refuse? They may be ordered into the service of the government—sent to sea—enlisted as soldiers. They cannot refuse to fight. If they do, they make themselves amenable to their own Judges. I refer to 1st Hawkins, Pl. Crown, 87, 89, where it is said:

"There is a necessity that the realm should have a King, by whom and in whose name the laws shall be administered; and the King in possession, being the only person who either doth or can administer those laws, must be the only person who has a right to that obedience which is due to him who administers those laws; and since, by virtue thereof, he secures us the safety of our lives, liberties, and properties, and all the advantages of Government, he may justly claim returns of duty, allegiance, and subjection."

And Blackstone is equally explicit (4 Blackstone's Comm., 78):