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

"When, therefore, an usurper is in possession, the subject is excused and justified in obeying and giving him assistance; otherwise, under an usurpation, no man could be safe, if the lawful Prince had a right to hang him for obedience to the power in being, as the usurper would certainly do for disobedience."

3d Inst. (Coke) 7, is to the same point:

"The stat. 11 Henry VII., ch. 1, is declaratory of the law on this subject; and the year books, 4 Edw. IV., 1, 9 Edw. IV., 1, 2, show that it was always the English law."

Our statute, or rather constitutional definition, of treason, is a transcript of the English statute of treason; and it is hardly necessary to cite 2 Story on the Constitution, sec. 1799, to the point that our Courts will construe the Constitution as the English law is construed by the English Courts. And here we observe a marked difference between a revolt by the subjects of a single consolidated Government which is a unit, and the action of one or more States in a Confederacy, or of the people dwelling within them, when such States resolve, as States, to recognize no sovereignty or Government within their territory except that established under their own Constitution.

But I insist upon it that Congress had no power to pass this 9th section of the Act of 1790; that the construction put upon it by our opponents is entirely unwarranted; and that it cannot be applied to a case like this. Your honors are aware that in The case of Smith, 5 Wheaton, Mr. Webster took the ground that the law was not constitutional, because it did not define piracy otherwise than by referring to the law of nations. The authority given to Congress on that subject is to define and punish piracy and other offences against the law of nations. "To define and punish piracy" is all of the phrase with which I have to deal. Now, you understand, gentlemen, that there is no common-law jurisdiction of offences residing in the United States Courts. They can punish no crime except by statute. Congress had fully defined piracy and robbery in the eighth section of the Act of 1790; and, having done so, what power or authority was there in Congress to go on and say that something else should be called piracy, when the definition of it was complete? Let me refer your honors again to the language of the law, which furnishes a strong argument on this subject: "If any citizen shall commit any piracy or robbery aforesaid, or any act of hostility against the United States," &c. Does not that clearly recognize and admit that piracy has been defined? and can it be pretended that Congress, under pretence of defining piracy, can provide that a common assault and battery on the high sea shall be piracy? Is there no limitation to that grant? We claim that its terms are just as much a restriction as a delegation of power. It defines as clearly the limits which the Government shall not transcend, as it does the area which Congress may occupy. You may "define piracy and punish it:" does this mean that you can call anything piracy, whether it be so or not? Suppose Congress passed an Act providing that, if any man on land should, during a state of war, attempt to make reprisals on another, it should be piracy, punishable with death: would that be a legitimate exercise of the authority vested in Congress? We claim that it would not, and that it would be a manifest usurpation against the true meaning, spirit, and proper effect of the Constitution.

Again, it has been argued to your honors, and we insist, that this statute, if it be operative, only relates to the case of a person taking a commission from a foreign Government or State. To say that an act of hostility committed by authority of any person whatever—using the word "person" to mean a human being—against another, on the high seas, would be piracy, and punishable by death, is a monstrous construction of this Act; and if I understood brother Evarts, in the course of the discussion that took place between him and myself, he conceded that the case which I suggested, of throwing a belaying-pin, by order of the Captain of one vessel, at the Captain of another, on the high seas, although an act of hostility by one citizen against another, under pretence of authority from a person, would not come within the law; yet this assault would be within the very letter of the Act. Read that law just as it is, and say, after the words "Prince" and "State" have been used, what other term is necessary or apposite. Why, no other, except as in the case of Aurey, an individual fitting out an expedition against a foreign Government, and undertaking to grant commissions; or as in the case of James II., who, as shown by Mr. Lord, was an exile in a foreign land, having no territory, no Government, and no subjects; and he was treated in the English Act—from which ours is taken—as a mere person, not to be denominated King. I do not mean to concede that the case of Miranda, who fitted out the expedition against Spain, assisted by some of our citizens, and granted commissions to privateers, would be a case within the statute of 1790; but if it would, it will not subserve the purposes of the prosecution at all, or be injurious to us. The word "person," in this connection, means a person standing in the same relation to another as a Prince or a State. Gentlemen, that this was never intended to apply between so many States as remained in the Union and those that went out, is a proposition about which Mr. Lord has been heard, and I see no answer to his argument.

Now, there is a dilemma here. If the gentlemen insist that, in the construction I have given, we are right, and that Mr. Jefferson Davis or the Confederate States, in the giving of this commission or authority, are to be regarded as a power or person within my definition, then it is as a foreign power; in which case Capt. Baker is the subject or citizen of that power, and not a citizen of the United States, and not within the Act of 1790. And if the Confederate States is not a foreign power, within the construction and meaning of the Act of 1790, then there is no violation of that statute by Capt. Baker, or any one associated with him, if it be true, as I contend, that the pretence of authority must be of one from a foreign source. If they make out that the Confederate States is a foreign power, it is because it is a Government in existence; and if it be a Government in existence, then its commission must be recognized by the law of nations.

Now, I certainly understood, from the opening by the learned District Attorney, that the prosecution did not rely much on the piracy branch of this case; they did not abandon it; they have never said they would not press a conviction upon it. But the strong effort is made to convict under the ninth section of the Act of 1790, saying to you of the Jury, "All you have to find is, that Baker and three of his associates were citizens of the United States; that they were on the high seas; and that, being there, they committed an act of hostility against another citizen of the United States, under pretence of authority from Jefferson Davis; and, then, they are pirates." I think it would have been a little more magnanimous in the Government not to attempt any scheme of this kind. I think, if it be possible to drag these men, manacled, within the construction of a statute which exposes their lives to danger, it is yet not the right way to deal with them. When they were captured they were entitled to be treated either as prisoners of war, or as traitors to the Government. Why were they not indicted for treason?

Now, my learned friend said that this indictment was drawn with the utmost possible care and circumspection, when he spoke of the averment that this act of the defendants was done under pretence of the authority of "one Jefferson Davis." The pleader did not wish to admit, by the language of the indictment, that it was under pretence of any authority from any Government or Confederate States. He wanted to regard it as the act of a mere individual, who, although he claimed to represent so-called States, was, after all, merely a person signing a paper on his own account, and for which he was to take the exclusive responsibility.

I will refer your honors to Blackstone, 4 vol., p. 72, where he interprets this statute of 11 and 12 William III., chap. 4, to relate to acts done under color of a commission from a foreign power; and it was never supposed to have meant anything else. In 1819, Great Britain passed a law making it a crime for British subjects to be connected in any way with the sending out of vessels to cruise against a power at peace with England. By the 18th George II., chap. 30, it is made piracy, in time of war, for English subjects to commit hostilities of any kind against fellow subjects. How did that act become necessary in the legislation of England, if the previous law had already provided for the same thing? That, certainly, is a question of some importance in this case. We have statutes that punish citizens of the United States, under certain circumstances when they are engaged in privateering; and there have been trials and convictions under these statutes, as your honors will find by referring to Wharton's State Trials.