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 confess that, if the views of my learned friends are to prevail, in determining questions of crime and responsibility under the laws and before the Court, and are to be accepted and administered, I do not see that there is any Government at all. For you have every stage of Government: first, Government of right; next, a Government in fact; next, a Government trying to make itself a fact; and, next, a Government which the culprit thinks ought to be a fact. Well, if there are all these stages of Government, and all these authorities and protections, which may attend the acts of people all over the world, I do not see but every Court and every Jury must, finally, resolve itself into the great duty of searching the hearts of men, and putting its sanctions upon pure or guilty secret motives, or notions, or interpretations of right and wrong—a task to which you, gentlemen of the Jury, I take it, feel scarcely adequate.

Now, gentlemen, I have perhaps wearied you a little upon this subject; because it is from some confusion in these ideas,—first, of what the law of nations permits a Government to do, and how it intrudes upon and qualifies the laws of that Government; and, second, upon what the rights are that grow out of civil dissensions, as towards neutral powers,—that some difficulty and obscurity are introduced into this case.

If the Court please, I maintain these propositions, in conformity with the views I have heretofore presented—first, that the law of the land is to determine whether this crime of piracy has been committed, subject only to the province of the Jury in passing upon the facts attending the actual perpetration of the offence; and, second, upon all the questions invoked to qualify, from the public relations of the hostile or contending parties in this controversy, the attitude that this Government holds towards these contending parties, is the attitude that this Court, deriving its authority from this Government, must necessarily hold towards them.

I have argued this matter of the choice and freedom of a Government to say how it will regard these civil dissensions going on in a foreign nation, as if it had some application to this controversy, in which we are the nation, and this Court is the Court of this nation.

But, gentlemen, the moment I have stated that, you will see that there is not the least pretence that there is any dispensing power in the Court, or that there has been any dispensing power exercised by our Government, or that there has been any pardon, or any amnesty, or any proclamation, saving from the results of crime against our laws, any person engaged in these hostilities, who at any time has owed allegiance and obedience to the Government of the United States. Therefore, here we stand, really extricated from all the confusion, and from all the wideness of controversy and of comment that attends these remote considerations of this case, that have been pressed upon your attention as if they were the case itself, on the part of our learned friend.

Now, if the Court please, I shall bestow some particular consideration upon the statute, but I shall think it necessary to add very little to the remarks I have heretofore made to the Court. The 8th section of the statute has been characterized by the learned counsel, and, certainly, with sufficient accuracy, for any purposes of this trial, as limited to the offence of piracy as governed by the law of nations. I do not know that any harm comes from that description, if we do not confuse it with the suggestion that the authority of this Government over the crime is limited to the construction of the law of nations which is expressed in that section of the statute. At all events, as they concede, I believe, that the 8th section is within the constitutional right and power of Congress, under the special clause giving them authority to define and punish piracy, under the law of nations, there is no room for controversy here on the point. When we come to the 9th section, we have two different and quite inconsistent views presented by the different counsel. One of the counsel (I think, Mr. Dukes) insists that the 9th section does not create any additional crime beyond that of piracy as defined in the 8th section, but only robs that crime of piracy of any apparent protection from a commission or authority from any State. But, my friend Mr. Brady contends (and, I confess, according to my notion of the law, with more soundness) that there is an additional crime, which would not be embraced, necessarily, in the crime of piracy or robbery on the high seas—which is the whole purview of the 8th section, and which is in terms repeated in the 9th—and that the additional words, "or any act of hostility against the United States, or any citizens thereof," create a punishable offence, although it may fall short of the completed crime of piracy and robbery, as defined. Now, I concede to my learned friend that the particular case he put of a quarrel between two ships' crews on the high seas, and of an attack by one of the crew of one upon one of the crew of the other with a belaying pin, would not, in my judgment, as an indictable, punishable offence, fall within the 9th section. But, whether I am right or wrong about it, it does not impede the argument of the Government, that there are crimes which are in the nature of and up to the completeness of hostile attacks upon vessels or citizens of the United States which would not be piracy, but yet are punishable under the 9th section.

Now, agreeing, thus far, that there is an added offence to the crime of piracy in the 9th section, I am obliged to meet his next proposition, that such additional offence is beyond the constitutional power of Congress, because it is an offence which does not come up to the crime of piracy, and, therefore, exceeds the grant of authority under the particular section of the Constitution which gives to Congress power over the definition and punishment of piracy under the law of nations.

Now, if the Court please, the argument is a very simple one. This 9th section does not profess to carry the power of this Government where alone the principles of the law of nations would justify; that is, to operate upon all the world, so far as the subjects of it—that is, the persons included in its sanctions—are concerned, or so far as the property protected by it is concerned. It is limited to citizens, and limited to hostilities against citizens of the United States, or their property at sea. Now, the authority in respect to this comes to Congress under the provision of the Constitution which gives the regulation of commerce and its control, in regard to which I need not be more particular to your Honors, because there are statutes of every-day enforcement, and under the highest penalty, too, of the law, such as revolt, mutiny, &c., which have nothing to do with the national considerations of the law of piracy, and nothing to do with the clause of the Constitution which gives to Congress power over the crime of piracy, but rest in the power reposed in Congress to protect the commerce of the United States. So, this is wholly within the general competency of Congress to govern citizens of the United States on the high seas, and to protect the property of citizens on the high seas, although there is no common law of general jurisdiction of Congress on the subject of crimes.

Now, upon this subject there is but one other criticism, and that is—that although the statute is framed with the intent, and its language covers the purpose, of prohibiting any defence or protection being set up under an assumed or supposed authority from any foreign Government, State, or Prince, or from any person, yet the particular authority which is averred in the indictment and produced in proof, if you take it in the sense that we give to it, is not within the purview of the statute, and, if you take it in any other sense, is not proved; and that thus a variance arises between the indictment and the proof, because the proof goes so far as to remove from under the statute the four defendants who would otherwise be amenable as citizens, by making the Government foreign, and making them foreign citizens. Now, to take up one branch of this at a time, I do not care at all whether the Government of the United States, when they passed this law, anticipated that there ever would be an occurrence which would give shape to such a commission as this, from either a person or an authority that emanated from what was or ever had been a part or a citizen of the United States. If these new occurrences here have produced new relations—(and that is the entire argument of my learned friends, for, if they have produced no new relations, what have we to do with any of these discussions?)—if they have produced new relations, perfect or imperfect, effectual or ineffectual, to this or that extent, why then, if these new relations and attitude have brought this matter within the purview of a statute of the United States which was framed to meet all relations that might arise at any time, they come within its predicament, and the argument seems to me to amount to nothing. It will not be pretended that the 9th section of this statute can only be enforced as to Powers in existence at the time it was passed. Whenever a new Power or new authority is set forth as a protection to the crime of piracy, the 9th section of the statute says: "Well, we do not know or care anything about what the law of nations says about your protection, or your authority—we say that no citizen of the United States, depredating against our commerce, shall set up any authority to meet the justice of our criminal law." Well, now, that the statute has said; and we have averred and proved the commission such as it is. It is either the commission of a foreign Prince, or State, or it is an authority from some person. We do not recognize it as from a foreign State or Prince. Indeed, Mr. Davis does not call himself a Prince, and we do not recognize the Confederate States as a nation or State, in any relation. Therefore, if we would prove this authority under our law, we must aver it as it is, coming from an individual who was once a citizen of the United States, and still is, as the law decides, a citizen of the United States. Whatever port or pretension of authority he assumes, and whatever real fact and substance there may be to his power, it is, in the eye of the law, nothing. It is not provable, and it is not proved.

Now, as to the right of Congress to include the additional crime, under the authority given to it to punish piracy according to the law of nations, my learned friend contends that this statute is limited by that authority, and is, as respects anybody within its purview, unconstitutional, and that, although a particular act may be within the description of the statute, so far as regards hostility, it is not piracy. On that subject I refer your Honors to a very brief proposition contained in the case of The United States v. Pirates (5 Wheaton, 202):