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

"No subjects of the Most Christian King shall apply for or take any commission or letters of marque, for arming any ship or ships to act as privateers against the said United States, or any of them, or against the subjects, people or inhabitants of the said United States, or any of them, or against the property of any of the inhabitants of any of them, from any Prince or State with which the said United States shall be at war; nor shall any citizen, subject or inhabitant of the said United States, or any of them, apply for or take any commission or letters of marque for arming any ship or ships, to act as privateers against the subjects of the Most Christian King, or any of them, or the property of any of them, from any Prince or State with which the said King shall be at war; and if any person of either nation shall take such commissions or letters of marque, he shall be punished as a pirate."

Now, we have had a great deal of argument here to show that, under the law of nations,—under the law that must control and regulate the international relations of independent powers—it is a gross and violent subversion of the natural, inherent principles of justice, and a confusion between crime and innocence, to say to men who, under the license of war, take commissions from other powers, that they shall be hanged as pirates. And yet, in the first convention which we, as an infant nation, formed with any civilized power, attending in date the Treaty of Alliance which made France our friend, our advocate, our helper, in the war of the Revolution, his Most Christian Majesty, the King of France, standing second to no nation in civilization, signalized this holy alliance of friendship in behalf of justice, and humanity, and liberty, by engaging that, whatever the law of nations might be, whatever the speciousness of publicists might be, his subjects, amenable to the law, should never set up the pretence of a commission of privateering against the penalties of piracy. Nor had this treaty of commerce which I have referred to, anything of the nature of a temporary or warlike arrangement between the parties, pending the contest with Great Britain. It was a treaty independent of the Treaty of Alliance which engaged them as allies, offensive and defensive, in the prosecution of that war. Nor is this an isolated case of the morality and policy of this Government on the subject of piracy. By reference to the 19th Article of the Treaty between the Netherlands and the United States, concluded in 1782, at p. 44 of the same volume, your honors will find the same provision. After the same stipulation, excluding the acceptance of commissions from any power, to the citizens or subjects of the contracting parties, there is the same provision: "And if any person of either nation shall take such commissions or letters of marque, he shall be punished as a pirate."

Now, our Government has never departed from its purpose and its policy, to meliorate the law of nations, so as to extirpate this business of private war on the ocean. It is entirely true that, in its subsequent negotiations with the great powers of Christendom, it has directed its purpose to the more thorough and complete subversion and annihilation of the whole abominable exception, which is allowed on the high seas, from the general melioration of the laws of war, that does not tolerate aggressions of violence, and murder, and rapine, and plunder, except by the recognized forces contending in the field. It has attempted to secure not only the exclusion of private armed vessels from privateering, but the exclusion of aggressions on the part of public armed vessels of belligerents on private property of all kinds upon the ocean. And no trace of any repugnance or resistance on the part of our Government to aid and co-operate in that general melioration in the laws of war, in respect to property on the ocean, can be charged or proved. In pursuance of that purpose, as well as in conformity with a rightful maintenance of its particular predicament in naval war,—to wit., a larger commerce than most other nations, and a smaller navy,—it has taken logically, and diplomatically, and honestly, the position: I will not yield to these false pretences of humanity and melioration which will only deprive us of privateers, and leave our commerce exposed to your immense navies. If you are honest about it, as we are, and opposed to private war, why, condemn and repress private war in respect to the private character of the property attacked, as well as private war in respect to the vessels that make the aggressions.

Nor, gentlemen, do I hesitate to say that, whatever we may readily concede to an honest difference of opinion and feeling, in respect to great national contests, where men, with patriotic purposes, raise the standard of war against the Government, and, on the other hand, uphold the old standard to suppress the violence of war lifted against it, we do not, we cannot, as honest and sensible men, look with favor upon an indiscriminate collection from the looser portions of society, that rush on board a marauding vessel, the whole proceeds and results of whose aggressions are to fill their own pockets. And, when my learned friends seek to go down into the interior conscience and the secret motives of conduct, I ask you whether, if this had been a service in which life was to be risked, and all the energies of the man were to be devoted to the public service, for the glory and the interests of the country, and the poor food, poor clothing and poor pay of enlisted troops, you would have found precisely such a rush to that service?

Now, I am not seeking, by these considerations, to disturb in the least the legal protections, if there be any, in any form, which it is urged have sprung out of the character of privateering which this vessel had assumed, and these men, as part of its crew, had been incorporated in. If legal, let it be so; but do not confound patriotism, which sacrifices fortune and life for the love of country, with the motives of these men, who seek privateering because they are out of employment. Far be it from me to deny that the feeling of lawful right, the feeling that statutory law is not violated, if it draw the line between doing and not doing a thing, is on the whole a meritorious consideration and a trait that should be approved. But I do object to having the range of these men's characters and motives exalted, from the low position in which their acts and conduct place them, into the high purity of the patriot and the martyr. We are trying, not the system of privateering—we are trying the privateers, as they are called; and, when they fail of legal protection, they cannot cover themselves with this robe of righteousness in motive and purpose.

Now, how much was there of violence in the meditated course, or in the actual aggression? Why, the vessel is named in the commission as having a crew of thirty. In fact, she had twenty. Four men was a sufficient crew for a mercantile voyage. She had an eighteen pounder, a great gun that must have reached half way across the deck, resting on a pivot in the middle, capable of being brought around to any quarter, for attack. At the time this honest master and trader of the Joseph descried the condition of the vessel, he was struck with this ugly thing amidships, as he called it—to wit, this eighteen pound cannon, and was afraid it was a customer probably aggressive—a robber. But he was encouraged by what? Although he saw this was a pilot boat, and not likely, with good intent, to be out so far at sea, what was this honest sailor encouraged by? The flag of the United States was flying at her mast! But, when hailed—still under that view as to the aspect presented by the marauding vessel—he is told to come on board, and asks by what authority—instead of what would have been the glad and reassuring announcement—the power of the American flag—the Confederate States were announced as the marauding authority, and the flag of his country is hauled down, and its ensign replaced by this threat to commerce. Now, when this gun, as he says, was pointed at him, and this hostile power was asserted, my learned friends, I submit to you, cannot, consistently with the general fairness with which they have pursued this argument, put the matter before you as failing in any of the completeness of proof concerning force. For, when we were proposing to show that these prisoners all the while, in their plans, had the purpose of force, if force was necessary, and that, in the act of collision with the capturing vessel, that force occurred, we were stopped, upon the ground that it was unnecessary to occupy the attention of the Court and the Jury with anything that was to qualify this vessel's violent character, by reason of the admission that, if it was not protected by the commission, or the circumstances of a public character of whatever kind and degree—about which I admit there was no restriction of any kind,—if it stood upon the mere fact that the vessel was taken from its owners by the Savannah, in the way that was testified,—it would not be claimed to be wanting in any of the quality of complete spoliation, or in any of the quality of force. Now, that defence, we may say, must not be recurred to, to protect, in your minds, these men from the penalty which the law has imposed upon the commission of piracy. It cannot be pretended that there was any defect in the purpose of despoiling the original owners, nor that there is any deficiency in the exhibition of force, to make it piracy; and you will perceive, gentlemen, that although my learned friends successively, Mr. Dukes, Mr. Sullivan, and Mr. Brady, have, with the skill and the purpose of advocates, taken occasion, at frequent recurring points, to get you back to the want of a motive and intent or purpose of the guiltiness of robbing, yet, after all, it comes to this—that the inconsistency of the motive and intent, or the guiltiness of robbing, with the lawfulness, under the law of nations, of privateering, is the only ground or reason why the crime is deficiently proved.

I do not know that I need say anything to you about privateering, further than to present somewhat distinctly what the qualifications, what the conditions, and what the purposes, of privateering are. In the first place, privateering is a part of war, or is a part of the preliminary hostile aggressions which are in the nature of a forcible collision between sovereign powers. Now what is the law of nations on this subject—and how does there come to be a law of nations—and what is its character, what are its sanctions, and who are parties to it? We all know what laws are when they proceed from a Government, and operate upon its citizens and its subjects. Law then comes with authority, by right, and so as to compel obedience; and laws are always framed with the intent that there shall be no opportunity of violent or forcible resistance to them, or of violent or forcible settlement of controversies under them, but that the power shall be submitted to, and the inquiry as to right proceed regularly and soberly, under the civil and criminal tribunals. But, when we come to nations, although they have relations towards each other, although they have duties towards each other, although they have rights towards each other, and although, in becoming nations, they nevertheless are all made up of human beings, under the general laws of human duty, as given by the common lawgiver, God, yet there is no real superior that can impose law over them, or enforce it against them. And it is only because of that, that war, the scourge of the human race—and it is the great vice and defect of our social condition, that it cannot be avoided—comes in, as the only arbiter between powers that have no common superior. I am sure that the little time I shall spend upon this topic will be serviceable; as, also, in some more particular considerations, as to what is called a state of war, and as to the conditions which give and create a war between the different portions of our unhappy country and its divided population. So, then, nations have no common superior whom they recognize under this law, which they have made for themselves in the interest of civilization and humanity, and which is a law of natural right and natural duty, so far as it can be applied to the relations which nations hold to one another. They recognize the fact that one nation is just as good, as matter of right, of another; that whether it be the great Powers of Russia, as England, of France, of the United States of America, or of Brazil, or whether it be one of the feeble and inferior Powers, in the lowest grade,—as, one of the separate Italian Kingdoms, or the little Republic of San Marino, whose territories are embraced within the circuit of a few leagues, or one of the South American States, scarcely known as a Power in the affairs of men,—yet, under the proposition that the States are equal in the family of nations, they have a right to judge of their quarrels, and, finding occasions for quarrel, have a right to assert them, as matter of force, in the form of war. And all the other nations, however much their commerce may be disturbed and injured, are obliged to concede certain rights that are called the rights of war. We all understand what the rights of war are on the part of two people fighting against each other. A general right is to do each other as much injury as they can; and they are very apt to avail themselves of that right. There are certain meliorations against cruelty, which, if a nation should transgress, probably other nations might feel called upon to suppress. But, as a general thing, while two nations are fighting, other nations stand by, and do not intervene. But the way other nations come to have any interest, and to have anything to say whether there is war between sovereign powers, grows out of certain rights of war which the law of nations gives to the contending parties, against neutrals. For instance: Suppose Spain and Mexico were at war. Well, you would say, what is that to us? It is this to us. On the high seas, a naval vessel of either power has a right, in pursuit of its designs against the enemy, to interrupt the commerce of other nations to a certain extent. It has a right of visitation and of search of vessels that apparently carry our flag. Why? In order to see whether the vessel be really our vessel, or whether our flag covers the vessel of its enemy, or the property of its enemy. It has also a right to push its inquiries farther, and if it finds it to be a vessel of the United States of America, to see whether we are carrying what are called contraband of war into the ports of its enemy; and, if so, to confiscate it and her. Each of the powers has a right to blockade the ports of the other, and thus to break up the trade and pursuits of the people of other nations—and that without any quarrel with the other people. And so you see, by the law of nations, this state of war, which might, at first, seem to be only a quarrel between the two contending parties, really becomes, collaterally, and, in some cases, to a most important extent, a matter of interest to other nations of the globe. But however much we suffer—however much we are embarrassed (as, for example, in the extreme injury to British commerce and British interests now inflicted in this country—the blockade keeping out their shipping, and preventing shipments of cotton to carry on their industry)—we must submit, as the English people submit, in the view their Government has chosen to take of these transactions.

Now, gentlemen, this being the law of nations, you will perceive that, as there is no human earthly superior, so there are no Courts that can lay down the law, as our Courts do for our people, or as the Courts of England do for their people. There are no Courts that can lay down the law of nations, so as to bind the people of another country, except so far as the Courts of that country, recognizing the sound principles of morality, humanity and justice obtaining in the government and conduct of nations towards each other, adopt them in their own Courts. So, when my learned friends speak of the law of nations as being the law that is in force here, and that may protect these prisoners in this case against the laws of the United States of America, why, they speak in the sense of lawyers, or else in a sense that will confuse your minds, that is to say, that the law of nations, as the Court will expound and explain it, has or has not a certain effect upon what would be otherwise the plain behests of the statute law.

Now, it is a part of the law of nations, except so far as between themselves they shall modify it by treaty—(two instances of which I have read in the diplomacy of our own country, and a most extensive instance of which is to be found in the recent treaty of Paris, whereby the law of nations, in respect to privateering, has been so far modified as to exclude privateering as one of the means of war)—outside of particular arrangements made by civilized nations, it was a part of the original law of war prevailing among nations, that any nation engaged in war might fit out privateers in aid of its belligerent or warlike purposes or movements. No difficulty arose about this when war sprang up between two nations that stood before the world in their accredited and acknowledged independence. If England and France went to war, or if England and the United States, as in 1812, went to war, this right of fitting out privateers would obtain and be recognized. But, there arises, in the affairs of nations, a condition much more obscure and uncertain than this open war between established powers, and that is, when dissension arises in the same original nation—when it proceeds from discontent, sedition, private or local rebellion, into the inflammation of great military aggression; and when the parties assume, at least, (assume, I say), to be rightfully entitled to the position of Powers, under the law of nations, warring against one another. The South American States, in their controversy which separated them from the parent country, and these States, when they were Colonies of Great Britain, presented instances of these domestic dissensions between the different parts of the same Government, and the rights of war were claimed. Now, what is the duty of other nations in respect to that? Why, their duty and right is this—that they may either accord to these struggling, rebellious, revolted populations the rights of war, so far as to recognize them as belligerents, or not; but, whether they will do so, or not, is a question for their Governments, and not for their Courts, sitting under and by authority of their Governments. For instance, you can readily see that the great nations of the earth, under the influences upon their commerce and their peace which I have mentioned, may very well refuse to tolerate the quarrel as being entitled to the dignity of war. They may say—No, no; we do not see any occasion for this war, or any justice or benefit that is to be promoted by it; we do not see the strength or power that is likely to make it successful; and we will not allow a mere attempt or effort to throw us into the condition of submitting to the disturbance of the peace, or the disturbance of the commerce of the world. Or, they may say—We recognize this right of incipient war to raise itself and fairly contend against its previous sovereign—not necessarily from any sympathy, or taking sides in it, but it is none of our affair; and the principles of the controversy do not prevent us from giving to them this recognition of their supposed rights. Now, when they have done that, they may carry their recognition of right and power as far as they please, and stop where they please. They may say—We will tolerate the aggression by public armed vessels on the seas, and our vessels shall yield the right of visitation and search to them. They may say—We will extend it so far as to include the right of private armed vessels, and the rights of war may attend them; or they may refuse to take this last step, and say—We will not tolerate the business of privateering in this quarrel. And, whatever they do or say on that subject, their Courts of all kinds will follow.

Apply this to the particular trouble in our national affairs that is now progressing to settle the fate of this country. France and England have taken a certain position on this subject. I do not know whether I accurately state it (and I state it only for the purpose of illustration, and it is not material), but, as I understand it, they give a certain degree of belligerent right, so that they would not regard the privateers on the part of the Southern rebellion as being pirates, but they do not accord succor or hospitality in their ports to such privateers. Well, now, suppose that one of these privateers intrudes into their ports and their hospitalities, and claims certain rights. Why, the question, if it comes up before a Court in Liverpool or London, will be—Is the right within the credit and recognition which our Government has given? And only that. So, too, our Government took the position in regard to the revolting States of South America, that it would recognize them as belligerents, and that it would not hang, as pirates, privateers holding commissions from their authority. But, when other questions came up, as to whether a particular authority from this or that self-styled power should be recognized, our Government frowned upon it, and would not recognize it. With regard to Captain Aury, who styled himself Generalissimo of the Floridas, or something of that kind, when Florida was a Spanish province, our Courts said—We do not know anything about this—his commissions are good for nothing here—our Government has not recognized any such contest or incipient nationality as this. So, too, in another case, where there was an apparent commission from one struggling power, the Court say—Our Government does not recognize that power, and we do not, in giving any rights of war to it; but, the Court say, it appears in the proof that this vessel claims to have had a commission from Buenos Ayres, another contending power; if so, that is a power which our Government recognizes; and the case must go down for further proof on that point.