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

Now, there being the crime of piracy or robbery on the high seas, which the interests of society, the protection of property and of life, the maintenance of commerce, oblige every State and every nation, like ours, to condemn—what are the circumstances, what are the acts, that, in view of the law, amount to piracy? You will understand me that, for the present, I entirely exclude from your consideration any of the particular circumstances which are supposed to give to the actual crime perpetrated a public character, lifting it out of the penal law that you administer, and out of the region of private crime, into a field of quite different considerations. They are, undoubtedly, that the act done shall be with intent of depriving the person who is in possession of property, as its owner, or as the representative of that owner, of that property. That is what is meant by the Latin phrase, with which you are quite as familiar now, at least, as I, animo furandi—with the intention of despoiling the owner of that which belongs to him. And, to make up the crime of robbery on land, in distinction from larceny or theft, as we generally call it, (though theft, perhaps, includes all the variety of crime by which the property of another is taken against his will,) robbery includes, and piracy, being robbery at sea, includes, the idea that it is done with the application, or the threat, or the presence of force. There must be actual violence, or the presence and exhibition of power and intent to use violence, which produces the surrender and delivery of the property. Such are the ingredients of robbery and piracy. And, gentlemen, these two ingredients are all; and you must rob one or the other of them of this, their poison, or the crime is completely proved, when the fact of the spoliation, with these ingredients, shall have been proved. The use that the robber or the pirate intends to make of the property, or the justification which he thinks he has by way of retaliation, by way of injury, by way of provocation, by way of any other occasion or motive that seems justifiable to his own conscience and his own obedience to any form whatever of the higher law, has nothing to do with the completeness of the crime, unless it come to what has been adverted to by the learned counsel, and displayed before you in citations from the law-books—to an honest, however much it may be a mistaken and baseless, idea that the property is really the property of the accused robber, of which he is repossessing himself from the party against whom he makes the aggression.

Now, unless, in the case proved of piracy, or robbery on land, there be some foundation for the suggestion that the willful and intentional act of depriving a party of his property rests upon a claim of the robber, or the pirate, that it is his own property (however baseless may be the claim), you cannot avoid, you cannot defeat, the criminality of the act of robbery, within the intention of the law, by showing that the robber or the pirate had, in the protection of his own conscience, and in the government of his own conduct, certain opinions or views that made it right for him to execute that purpose. Thus, for instance, take a case of morals: A certain sect of political philosophers have this proposition as a basis of all their reasoning on the subject of property,—that is, that property, the notion of separate property in anything, as belonging to anybody, is theft; that the very notion that I can own anything, whatever it may be, and exclude other people from the enjoyment of it, is a theft made by me, a wrongful appropriation, when all the good things in this world, in the intention of Providence, were designed for the equal enjoyment of all the human race. Well, now, a person possessed of that notion of political economy and of the moral rights and duties of men, might seek to avail himself of property owned and enjoyed by another, on the theory that the person in possession of it was the original thief, and that he was entitled to share it. I need not say to you that all these ideas and considerations have nothing whatever to do with the consideration of the moral intent with which a person is despoiled of his property.

Now, with regard to force, I do not understand that my learned friends really make any question, seriously, upon the general principle of what force is, or upon the facts of this case, that this seizure of the Joseph by the Savannah had enough of force,—the threat, the presence, and exhibition of power,—and of the intent to use it, to make the capture one of force, if the other considerations which are relied upon do not lift it out of that catalogue of crime.

It is true that the learned counsel who last addressed you seemed to intimate, in some of his remarks, near the close of his very able and eloquent and interesting address, that there was not any force about it, that the master of the Joseph was not threatened, that there was no evidence that the cannon was even loaded, and that it never had been fired off. Well, gentlemen, the very illustration which he used of what would be a complete robbery on land,—the aggressor possessing a pistol, and asking, in the politest manner, for your money,—relieves me from arguing that you must fire either a cannon or a pistol, before you have evidence of force. If our rights stand on that proposition, that when a pistol is presented at our breast, and we surrender our money, we must wait for the pistol to be fired before the crime is completed, you will see that the terrors of the crime of robbery do not go very far towards protecting property or person, which is the object of it.

When, gentlemen, the Government, within a statute which, in the judgment of the Court, shall be pronounced as being lawfully enacted under the Constitution of the United States, has completed the proof of the circumstances of the crime charged, it is entitled at your hands to a conviction of the accused, unless, by proof adduced on his part, he shall so shake the consistency and completeness of the proof on the part of the Government, or shall introduce such questions of uncertainty and doubt, that the facts shall be disturbed in your mind, or unless he shall show himself in some predicament of protection or right under the law,—(and, by "under the law," I mean, under the law of the land where the crime is punishable, and where the trial and the sentence are lawfully attributed to be,)—or unless he shall introduce some new facts which, conceding the truthfulness and the sufficiency of the case made by the Government, shall still interpose a protection, in some form, against the application of the penalty of the law. I take it that I need not say to you that this protection or qualification of the character of the crime must be by the law of the land; and, whether it comes to be the law of the land by its enactment in the statutes of the United States, or by the adoption and incorporation into the law of the land of the principles of the law of nations, is a point quite immaterial to you. You are not judges of what the statutes of the United States are, except so far as their interpretation may rightfully become a subject of inquiry by the Jury, in the sense of whether the crime is within the intent of the Act, in the circumstances proved. You are not judges of what the law of nations is, in the first place; nor are you judges of how much of the law of nations has been adopted or incorporated into the system of our Government and our laws, by the authority of its Congress or of its Courts.

Whether, as I say to you, there is a defence, or protection, or qualification of the acts and transactions which, in their naked nature, and in their natural construction, are violent interferences with the rights of property, against the statute, and the protection of property intended by the statute,—whether the circumstances do change the liability or responsibility of the criminal, by the introduction of a legal defence under the law of nations, or under the law of the land in any other form, is a question undoubtedly for the Court,—leaving to you always complete control over the questions of fact that enter into the subject. So that the suggestion, also dropped by my learned friend, at the close of his remarks, that any such arrangement would make the Jury mere puppets, and give them nothing to do, finds no place. It would not exclude from your consideration any matters of fact which go to make up the particular condition of public affairs or of the public relations of the community towards each other, in these collisions which disturb the land, provided the Court shall hold and say that, on such a state of facts existing, or being believed by you, there is introduced a legal qualification or protection against the crime charged. But, if it should be held that all these facts and circumstances, to the extent and with the effect that is claimed for them by the learned counsel as matter of fact, yet, as matter of law, leave the crime where it originally stood, being of their own nature such as the principles of law do not permit to be interposed as a protection and a shield, why, then you take your law on the subject in the same way as you do on every other subject, from the instructions of the learned and responsible Bench, whose errors, if committed, can be corrected; while your confusion between your province and the province of the Court would, both in this case, and in other cases, and sometimes to the prejudice of the prisoner, and against his life and safety, when prejudices ran that way, confound all distinctions; and, in deserting your duty, to usurp that of another portion of the Court, you would have done what you could, not to uphold, but to overthrow the laws of your country and the administration of justice according to law, upon which the safety of all of us, at all times, in all circumstances, depends.

Now, gentlemen, let me ask your attention, very briefly, to the condition of the proof in this case, from the immediate consideration of which we have been very much withdrawn by the larger and looser considerations, as I must think them, which have occupied most of the attention of the counsel, and been made most interesting, undoubtedly, and attractive to you. These twelve men now on trial—four of them citizens of the United States, and eight of them foreigners by birth and not naturalized—formed part of the crew of a vessel, originally a pilot-boat, called the Savannah. That crew consisted of twenty men, and one of them has given the circumstances of the preparation for the voyage, of the embarkation upon the vessel, of her weighing anchor from the port of Charleston and making her course out to sea without any port of destination, and without any other purpose than to make seizures of vessels belonging to the loyal States of the Union and its citizens. He has shown you that all who went on board, all who are here on trial, had a complete knowledge of, and gave their ready and voluntary assent to and enlistment in this service; and that the service had no trait of compulsion, or of organized employment under the authority of Government, in any act or signature of any one of the crew, as far as he knew, leaving out, of course, what I do not intend to dispute, and what you will not understand me as disregarding—the effect that may be gained from the notorious facts and the documents that attended the enterprise. He has shown you that, going to sea with that purpose, without any crew list, without any contract of wages, they descried, early in the morning after they adventured from the port, and at a point about sixty miles to sea, this bark, and ran down to her; and that, while running down to her, they sailed under the flag of the United States, and, hailing the brig, when within hailing distance, required the master of it to come on board with his papers. Upon the inquiry of the master, by what authority they made that demand on him, the stars and stripes being then floating at the masthead of the Savannah, Captain Baker informed him that it was in the name and by the authority of the Confederate States of America, at the same time hauling down the American flag and running up the flag of the Confederacy. Whatever followed after this, gentlemen, except so far as to complete the possession of the captured vessel, by putting a prize crew on board of it, (so called,) sending it into Charleston, and there lodging in jail the seamen or ship's company of the Joseph that accompanied it, and procuring a sale of the vessel—anything beyond that (and this only to show the completeness of the capture, and the maintenance of the design to absolutely deprive the owners of the vessel and cargo of their property) seems to be quite immaterial. Now, when we add to this the testimony of Mr. Meyer, the master of the captured vessel, who gives the same general view of the circumstances under which his vessel was overhauled and seized by the Savannah, as well as the observations and the influences which operated upon his mind while the chase was going on, we have the completeness of the crime,—not forgetting the important yet undisputed circumstances of the ownership of the vessel, and of the nature of the voyage in which she was engaged. You will observe that this vessel, owned by, and, we may suppose, judging from the position of the witnesses examined before you, constituting a good part of the property of, our fellow-countrymen in the State of Maine, sailed on the 28th day of April, from Philadelphia, bound on a voyage to Cardenas, in Cuba, with a charter party out and back, under which she was to bring in a cargo of sugar and molasses. You will have noticed, comparing this date with some of the public transactions given in evidence, that it was after both the proclamation of Mr. Davis, inviting hostile aggressions against the commerce of the United States, on the part of whosoever should come to take commissions from him; and after the proclamation of the President of the United States, made to the people of the United States and all under its peace and protection, that if, under this invitation of Mr. Davis, anybody should assume authority to make aggressions, on the high seas, upon the private property of American citizens, they should be punished as pirates. This vessel, therefore, sailed on her voyage under the protection of the laws of the United States, and under this statement of its Government, that the general laws which protected property and seamen on the high seas against the crime of piracy were in force, and would be enforced by the Government of the United States, wherever it held power, against any aggressions that should assume to be made under the protection of the proclamation of Mr. Davis. While returning, under the protection of this flag and of this Government, she meets with hostile aggression at the hands of an armed vessel, which has nothing to distinguish it from the ordinary condition of piracy, except this very predicament provided against by the proclamation of the President, and under the protection of which the vessel had sailed, to wit, the supposed authority of Jefferson Davis; which should not, and cannot, and will not, as I suppose, protect that act from the guilt and the punishment of piracy.

Now, you will have observed, gentlemen, in all this, that whatever may be the circumstances or the propositions of law connected with this case, that may change or qualify the acts and conduct of Mr. Baker, so far as the owners of this vessel and the owners of this cargo are concerned, there has been as absolute, as complete, as final and as perfect a deprivation of their property, as if there had been no commission—no public or other considerations that should expose them to having the act done with impunity. You will discover, then, that, so far as the duty of protection from this Government to its citizens and their property—so far as the duty of maintaining its laws and enforcing them upon the high seas—is concerned, there is nothing pretended—there is nothing, certainly, proved—that has excused or can excuse this Government, in its Executive Departments, in its Judicial Departments, in the declaration of law from the Court, or in the finding of facts by the Jury, from its duty towards its citizens and their property. And, while you have been led to look at all the qualifying circumstances that should attend your judgment concerning the act and the fact on the part of these prisoners, I ask your ready assent to the proposition, that you should look at the case of these sufferers, the victims of those men, whose property has been ventured upon the high seas in reliance on its safety against aggression, from whatever source, under the exercise of the authority of the Government to repel and to punish such crimes.

Before I go into any of the considerations which are to affect the relations of these prisoners to this alleged crime, and to this trial for such alleged crime, let us see what there are in the private circumstances particular to themselves, and their engagement in this course of proceeding, that is particularly suited to attract your favor or indulgence. Now, these men had not, any of them, been under the least compulsion, or the least personal or particular duty of any kind, to engage in this enterprise. Who are they? Four of them are citizens of the United States. Mr. Baker is, by birth, a citizen of the State of Pennsylvania; two are citizens, by birth, of the State of South Carolina, and one of North Carolina. The eight men, foreigners, are, three of Irish origin, two of Scotch, one a German, one a native of Manilla, in the East Indies, and one of Canton, in China. Now, you will observe that no conscription, no enlistment, no inducement, no authority of any public kind has been shown, or is suggested, as having influenced any of them in this enterprise. My learned friend has thought it was quite absurd to impute to this Chinaman and this Manillaman a knowledge of our laws. Is it not quite as absurd to throw over them the protection of patriotism—the protection of indoctrination in the counsels and ethics of Calhoun—to give them the benefit of a departure from moral and natural obligations to respect the property of others, on the theory that they must surrender their own rectitude—their own sense of right—to an overwhelming duty to assist a suffering people in gaining their liberty? What I have said of them applies equally to these Irishmen, this German, and these Scotchmen—as good men, if you please, in every respect, as the same kind of men born in this country. I draw no such national distinctions; but I ask what there is, in the sober, sensible, practical consideration of the motives and purposes with which these men entered into this enterprise to despoil the commerce of the United States, and make poor men of the owners of that vessel, that should give them immunity from the laws of property and the laws of the land, or form any part in the struggles of a brave and oppressed people, (as we will consider them, for the purpose of the argument), against a tyrannical and bloodthirsty Government?

No! no! Let their own language indicate the degree and the dignity of the superior motives that entered into their adoption of this enterprise: "We thought we had a right to do it, and we did it." Was there the glow of patriotism—was there the self-sacrificing devotion to work in the cause of an oppressed people, in this? No! And the only determination that these men knew or looked at, was the lawfulness of the enterprise, in respect of the sanctions and punishments of the law. They, undoubtedly, had not any purpose or any thought of running into a collision with the comprehensive power and the all-punishing condemnation of the statutes of the United States, whether they knew what the statutes were or not; but they did take advantage of the occasion and opportunity to share the profits of a privateering enterprise against the commerce of the United States; and they were unquestionably acquainted, either by original inspection or by having a favorable report made to them with the fundamental provision in regard to this system of privateering, so called. They knew that the entire profits of the transaction would be distributed among those who were engaged in it. Now, I am not making any particular or special condemnation of these men, (in thus readily, without compulsion, and without the influence of any superior motives, however mistaken, of patriotism,) beyond what the general principles of public law, and general opinion, founded on the experience of privateering, have shown to be the reckless and greedy character of those who enter upon private war, under the protection of any, however recent, flag. Every body knows it—every body understands it—every body recognizes the fact that, if privateers, who go in under the hope of gain, and for the purposes of spoliation, are not corrupt and depraved at the outset, they expose themselves to influences, and are ready to expose themselves to influences, which will make them as dangerous, almost, to commerce, and as dangerous to life, as if the purpose and the principle of privateering did not distinguish them from pirates. And, to show that, in this law of ours, there is nothing that is forced in its application to privateers—that there is nothing against the principles of humanity or common sense in the nation's undertaking to say, We will not recognize any of those high moral motives, any of this superior dignity, about privateers; we understand the whole subject, and we know them to be, in substance and effect, dangerous to the rights of peaceful citizens, in their lives and their property,—reference need only be had to the action of civilized Governments, and to that of our Government as much as any, in undertaking to brush away these distinctions, wherever it had the power—that is my proposition—wherever it had the power to do so. And I ask your Honors' attention to the provision on this subject, in the first treaties which our Government—then scarcely having a place among the nations of the earth—introduced upon this very question of piracy and privateers. I refer to the twenty-first article of the Treaty of Commerce with France, concluded on the 6th of February, 1778, on page 24 of the eighth volume of the Statutes at Large. This is a commercial arrangement, entered into by this infant Government, before its recognition by the Throne of Great Britain, with its ally, the most Christian Monarch of France: