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

The voice of Sophocles in the chorus of the Electra, and those glorious memories of the early union, were produced to bring back into the circle of the old confederation the erring and rebellious Attica. So, too, what shall we find in the memories of the Revolution, or in the eloquence with which we have been taught to revere them, that will not urge us all, by every duty to the past, to the present, and to the future, to do what we can, whenever a duty is reposed in us, to sustain the Government in its rightful assertion of authority and in the maintenance of its power? Let me ask your attention to what has been said by the genius of Webster on so great a theme as the memory of Washington, bearing directly on all these questions of union, of glory, of hope, and of duty, which are involved in this inquiry. See whether, from the views thus invoked, there will not follow the same influence as from the chorus of the Electra, for the preservation, the protection, the restoration of every portion of what once was, and now is, and, let us hope, ever shall be, our common country.

On the occasion of the centennial anniversary of the birthday of Washington, at the national Capital, in 1832, Mr. Webster, by the invitation of men in public station as well as of the citizens of the place, delivered an oration, about which I believe the common judgment of his countrymen does not differ from what is known to have been his own idea, that it was the best presentation of his views and feelings which, in the long career of his rhetorical triumphs, he had had the opportunity to make.

No man ever thought or spoke of the character of Washington, and of the great part in human affairs which he played, without knowing and feeling that the crowning glory of all his labors in the field and in the council, and the perpetual monument to his fame, if his fame shall be perpetual, would be found in the establishment of the American Union under the American Constitution. All the prowess of the war, all the spirit of the Revolution, all the fortitude of the effort, all the self-denial of the sacrifice of that period, were for nothing, and worse than nothing, if the result and consummation of the whole were to be but a Government that contained within itself the seeds of its own destruction, and existed only at the caprice and whim of whatever part of the people should choose to deny its rightfulness or seek to overthrow its authority. In pressing that view, Mr. Webster thus attracts the attention of his countrymen to the great achievement in human affairs which the establishment of this Government has proved to be, and thus illustrates the character of Washington:

"It was the extraordinary fortune of Washington that, having been intrusted, in revolutionary times, with the supreme military command, and having fulfilled that trust with equal renown for wisdom and for valor, he should be placed at the head of the first Government in which an attempt was to be made, on a large scale, to rear the fabric of social order on the basis of a written Constitution and of a pure representative principle. A Government was to be established, without a throne, without an aristocracy, without castes, orders, or privileges; and this Government, instead of being a democracy, existing and acting within the walls of a single city, was to be extended over a vast country, of different climates, interests and habits, and of various communions of our common Christian faith. The experiment certainly was entirely new. A popular Government of this extent, it was evident, could be framed only by carrying into full effect the principle of representation or of delegated power; and the world was to see whether society could, by the strength of this principle, maintain its own peace and good government, carry forward its own great interests, and conduct itself to political renown and glory. * * * * *

"* * * * I remarked, gentlemen, that the whole world was and is interested in the result of this experiment. And is it not so? Do we deceive ourselves, or is it true that at this moment the career which this Government is running is among the most attractive objects to the civilized world? Do we deceive ourselves, or is it true that at this moment that love of liberty and that understanding of its true principles, which are flying over the whole earth, as on the wings of all the winds, are really and truly of American origin? * * * * *

"* * * * Gentlemen, the spirit of human liberty and of free Government, nurtured and grown into strength and beauty in America, has stretched its course into the midst of the nations. Like an emanation from Heaven, it has gone forth, and it will not return void. It must change, it is fast changing, the face of the earth. Our great, our high duty, is to show, in our own example, that this spirit is a spirit of health as well as a spirit of power; that its longevity is as great as its strength; that its efficiency to secure individual rights, social relations, and moral order, is equal to the irresistible force with which it prostrates principalities and powers. The world at this moment is regarding us with a willing, but something of a fearful, admiration. Its deep and awful anxiety is to learn whether free States may be stable as well as free; whether popular power may be trusted, as well as feared; in short, whether wise, regular, and virtuous self-government is a vision for the contemplation of theorists, or a truth established, illustrated, and brought into practice in the country of Washington.

"Gentlemen, for the earth which we inhabit, and the whole circle of the sun, for all the unborn races of mankind, we seem to hold in our hands, for their weal or woe, the fate of this experiment. If we fail, who shall venture the repetition? If our example shall prove to be one, not of encouragement, but of terror, not fit to be imitated, but fit only to be shunned, where else shall the world look for free models? If this great Western Sun be struck out of the firmament, at what other fountain shall the lamp of liberty hereafter be lighted? What other orb shall emit a ray to glimmer, even, on the darkness of the world?* * * * *

"* * * * The political prosperity which this country has attained and which it now enjoys, has been acquired mainly through the instrumentality of the present Government. While this agent continues, the capacity of attaining to still higher degrees of prosperity exists also. We have, while this lasts, a political life capable of beneficial exertion, with power to resist or overcome misfortunes, to sustain us against the ordinary accidents of human affairs, and to promote, by active efforts, every public interest. But dismemberment strikes at the very being which preserves these faculties. It would lay its rude and ruthless hand on this great agent itself. It would sweep away, not only what we possess, but all power of regaining lost, or acquiring new, possessions. It would leave the country, not only bereft of its prosperity and happiness, but without limbs, or organs, or faculties, by which to exert itself hereafter in the pursuit of that prosperity and happiness.

"Other misfortunes may be borne, or their effects overcome. If disastrous war should sweep our commerce from the ocean, another generation may renew it; if it exhaust our treasury, future industry may replenish it; if it desolate and lay waste our fields, still, under a new cultivation, they will grow green again, and ripen to future harvests. It were but a trifle even if the walls of yonder Capitol were to crumble, if its lofty pillars should fall, and its gorgeous decorations be all covered by the dust of the valley. All these might be rebuilt. But who shall reconstruct the fabric of demolished Government? Who shall rear again the well-proportioned columns of constitutional liberty? Who shall frame together the skilful architecture which unites national sovereignty with State rights, individual security, and public prosperity? No, if these columns fall, they will be raised not again. Like the Coliseum and the Parthenon, they will be destined to a mournful, a melancholy immortality. Bitterer tears, however, will flow over them, than were ever shed over the monuments of Roman or Grecian art; for they will be the remnants of a more glorious edifice than Greece or Rome ever saw—the edifice of constitutional American Liberty.* * * * *

"* * * * A hundred years hence other disciples of Washington will celebrate his birth, with no less of sincere admiration than we now commemorate it. When they shall meet, as we now meet, to do themselves and him that honor, so surely as they shall see the blue summits of his native mountains rise in the horizon, so surely as they shall behold the river on whose banks he lived, and on whose banks he rests, still flowing on toward the sea, so surely may they see, as we now see, the flag of the Union floating on the top of the Capitol; and then, as now, may the sun in his course visit no land more free, more happy, more lovely, than this our own country!"

If, gentlemen, the eloquence of Mr. Webster, which thus enshrines the memory and the great life of Washington, calls us back to the glorious recollections of the Revolution and the establishment of our Government, does it not urge every man everywhere that his share in this great trust is to be performed now or never, and wherever his fidelity and his devotion to his country, its Government and its spirit, shall place the responsibility upon him? It is not the fault of the Government, of the learned District Attorney, or of me, his humble associate, that this, your verdict, has been removed, by the course of this argument and by the course of this eloquence on the part of the prisoners, from the simple issue of the guilt or innocence of these men under the statute. It is not the action or the choice of the Government, or of its counsel, that you have been drawn into higher considerations. It is not our fault that you have been invoked to give, on the undisputed facts of the case, a verdict which shall be a recognition of the power, the authority, and the right of the rebel Government to infringe our laws, or partake in the infringement of them, to some form and extent. And now, here is your duty, here your post of fidelity—not against law, not against the least right under the law, but to sustain, by whatever sacrifice there may be of sentiment or of feeling, the law and the Constitution. I need not say to you, gentlemen, that if, on a state of facts which admits no diversity of opinion, with these opposite forces arrayed, as they now are, before you—the Constitution of the United States, the laws of the United States, the commission of this learned Court, derived from the Government of the United States, the venire and the empanneling of this Jury, made under the laws and by the authority of the United States, on our side—met, on their side, by nothing, on behalf of the prisoners, but the commission, the power, the right, the authority of the rebel Government, proceeding from Jefferson Davis—you are asked, by the law, or under the law, or against the law, in some form, to recognize this power, and thus to say that the folly and the weakness of a free Government find here their last extravagant demonstration, then you are asked to say that the vigor, the judgment, the sense, and the duty of a Jury, to confine themselves to their responsibility on the facts of the case, are worthless and yielding before impressions of a discursive and loose and general nature. Be sure of it, gentlemen, that, on what I suppose to be the facts concerning this particular transaction, a verdict of acquittal is nothing but a determination that our Government and its authority, in the premises of this trial, for the purposes of your verdict, are met and overthrown by the protection thrown around the prisoners by the Government of the Confederate States of America, actual or incipient. Let us hope that you will do what falls to your share in the post of protection in which you are placed, for the liberties of this nation and the hopes of mankind; for, in surrendering them, you will be forming a part of the record on the common grave of the fabric of this Government, and of the hopes of the human race, where our flag shall droop, with every stripe polluted and every star erased, and the glorious legend of "Liberty and Union, now and forever, one and inseparable," replaced by this mournful confession, "Unworthy of freedom, our baseness has surrendered the liberties which we had neither the courage nor the virtue to love or defend."

CHARGE OF JUDGE NELSON

Judge Nelson then proceeded to deliver the Charge of the Court, in which Judge Shipman, his associate, concurred:

The first question presented in this case is, whether or not the Court has jurisdiction of the offence? This depends upon a clause of the 14th section of the Act of Congress of 1825, as follows: "And the trial of all offences which shall be committed upon the high seas or elsewhere, out of the limits of any State or District, shall be in the District where the offender is apprehended, or into which he may be first brought." The prisoners, who were captured by an armed vessel of the United States, off Charleston, South Carolina, were ordered by the commander of the fleet to New York for trial; but the Minnesota, on board of which they were placed, was destined for Hampton Roads, and it became necessary, therefore, that they should be there transferred to another vessel. They were thus transferred to the Harriet Lane, and, after some two days' delay, consumed in the preparation, they were sent on to this port, where they were soon after arrested by the civil authorities. It is insisted, on behalf of the prisoners, that inasmuch as Hampton Roads, to which place the prisoners were taken and transferred to the Harriet Lane, was within the Eastern District of the State of Virginia, the jurisdiction attached in that District, as that was the first District into which the prisoners were brought. The Court is inclined to think that the circumstances under which the Minnesota was taken to Hampton Roads, in connection with the original order by the commander that the prisoners should be sent to this District for trial, do not make out a bringing into that District within the meaning of the statute. But we are not disposed to place the decision on this ground. The Court is of opinion that the clause conferring jurisdiction is in the alternative, and that jurisdiction may be exercised either in the District in which the prisoners were first brought, or in that in which they were apprehended under lawful authority for the trial of the offence. This brings us to the merits of the case.

The indictment under which the prisoners are tried contains ten counts. The first five are framed upon the third section of the Act of Congress of 1820, which is as follows: "That, if any person shall, upon the high seas, commit the crime of robbery, in or upon any ship or vessel, or upon any of the ship's company of any ship or vessel, or the lading thereof, such person shall be adjudged to be a pirate," and, upon conviction, shall suffer death. The five several counts charge, in substance, that the prisoners did, upon the high seas, enter in and upon the brig Joseph, the same being an American vessel, and upon the ship's company, naming them; and did, then and there, piratically, feloniously, and violently make an assault upon them, and put them in personal fear and danger of their lives; and did, then and there, the brig Joseph, her tackle and apparel, her lading (describing it), which were in the custody and possession of the master and crew, from the said master and crew and from their possession, and in their presence, and against their will, violently, piratically and feloniously seize, rob, steal, take and carry away, against the form of the statute, &c. There are some variances in the different counts, but it will not be material to notice them. It will be observed that this provision of the Act of Congress prescribing the offence applies to all persons, whether citizens or foreigners, making no distinction between them, and is equally applicable, therefore, to all the prisoners at the bar. The remaining five counts are framed under the 9th section of the Act of Congress of 1790, which is as follows: "That if any citizen shall commit any piracy or robbery aforesaid, or any act of hostility against the United States, or any citizen thereof, upon the high sea, 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 conviction, shall suffer death. These five counts charge that the prisoners are all citizens of the United States, and that they committed the acts set forth in the previous five counts, on pretence of authority from one Jefferson Davis.

As the provision of the Act of Congress upon which these counts are framed is applicable only to citizens and not to foreigners, but four of the prisoners can be brought within it, as the other eight are admitted to be foreigners. The four are Baker, Howard, Passalaigue, and Harleston. The distinction between the provisions of the third section of the Act of 1820 and the ninth section of 1790, and the counts in the indictment founded upon them, arises out of a familiar principle of international law, and which is, that in a state of war existing between two nations, either may commission private armed vessels to carry on war against the enemy on the high seas, and the commission will afford protection, even in the judicial tribunals of the enemy, against a charge of the crime of robbery or piracy. Such a commission would be a good defence against an indictment under the third section of 1820, by force of the above rule of international law. The ninth section of the Act of 1790 changes the rule as it respects citizens of the United States who may take service under the commission of the private armed vessels of the enemy of their country. It declares, as it respects them, the commission shall not be admitted as a defence; and, as this legislation relates only to our own citizens, and prescribes a rule of action for them, and not as it respects the citizens or subjects of other countries, we do not perceive that any exception can be taken to the Act as unconstitutional or otherwise. But, upon the view the Court has taken of the case, it will not be necessary to trouble you with any remarks as it respects this ninth section, nor in respect to the several counts framed under it, but we shall confine our observations to a consideration of the third section of the Act of 1820. There can be no injustice to the prisoners in thus restricting the examination, as any authority for the perpetration of the acts charged in the indictment, founded upon the Act of 1820, will be equally available to them. Nor can there be any injustice to the prosecution, for unless the crime of robbery, as prescribed in the Act of 1820, is established against the four prisoners, none could be under the ninth section of the Act of 1790. The crime in the two Acts is the same for all the purposes of this trial. The only difference is the exclusion of a particular defence under the latter. Now, the crime charged is robbery upon an American vessel on the high seas, and hence it is necessary that we should turn our attention to the inquiry, what constitutes this offence? It has already been determined by the highest authority—the Supreme Court of the United States—that we must look to the common law for a definition of the term robbery, as it is to be presumed it was used by Congress in the Act in that sense, and, taking this rule as our guide, it will be found the crime consists in this: the felonious taking of goods or property of any value from the person of another, or in his presence, against his will, by violence, or putting him in fear. The taking must be felonious—that is, taking with a wrongful intent to appropriate the goods of another. It need not be a taking which, if upon the high seas, would amount to piracy, according to the law of nations, or what, in some of the books, is called general piracy or robbery. This is defined to be a forcible depredation upon property upon the high seas without lawful authority, done animo furandi—that is, as defined in this connection, in a spirit and intention of universal hostility.

A pirate is said to be one who roves the sea in an armed vessel, without any commission from any sovereign State, on his own authority, and for the purpose of seizing by force and appropriating to himself, without discrimination, every vessel he may meet. For this reason, pirates, according to the law of nations, have always been compared to robbers—the only difference being that the sea is the theatre of the operations of one and the land of the other. And, as general robbers and pirates upon the high seas are deemed enemies of the human race—making war upon all mankind indiscriminately—the crime being one against the universal laws of society—the vessels of every nation have a right to pursue, seize, and punish them. Now, if it were necessary, on the part of the Government, to bring the crime charged in the present case against the prisoners within this definition of robbery and piracy, as known to the common law of nations, there would be great difficulty in so doing either upon the evidence, or perhaps upon the counts, as charged in the indictment—certainly upon the evidence. For that shows, if anything, an intent to depredate upon the vessels and property of one nation only—the United States—which falls far short of the spirit and intent, as we have seen, that are said to constitute essential elements of the crime. But the robbery charged in this case is that which the Act of Congress prescribes as a crime, and may be denominated a statute offence as contra-distinguished from that known to the law of nations. The Act, as you have seen, declares the person a pirate, punishable by death, who commits the crime of robbery upon the high seas against any ship or vessel, or upon any ship's company of any ship or vessel, &c.; and the interpretation given to these words applies the crime to the case of depredation upon an American vessel or property on the high seas, under circumstances that would constitute robbery, if the offence was committed on land, and which is, according to the language of Blackstone, the felonious and forcible taking from the person of another of goods or money, to any value, by violence or putting him in fear. The felonious intent which describes the state of mind as an element of the offence, is what is called in technical language animo furandi, which means an intent of gaining by another's loss, or to despoil another of his goods lucri causa, for the sake of gain. Now, if you are satisfied, upon the evidence, that the prisoners have been guilty of this statute offence of robbery upon the high seas, it is your duty to convict them, though it may fall short of the offence as known to the law of nations. We have stated what constitute the elements of the crime, and it is your province to apply the facts to them, and thus determine, whether or not the crime has been committed. That duty belongs to you, and not to the Court. We have said that, in a state of war between two nations, the commission to private armed vessels from either of the belligerents affords a defence, according to the law of nations, in the Courts of the enemy, against a charge of robbery or piracy on the high seas, of which they might be guilty in the absence of such authority; and under this principle it has been insisted, by the learned counsel for the prisoners, that the commission of the Confederate States, by its President, Davis, to the master and crew of the Savannah, which has been given in evidence, affords such defence.

In support of this position, it is claimed that the Confederate States have thrown off the power and authority of the General Government; have erected a new and independent Government in its place, and have maintained it against the whole military and naval power of the former; that it is a Government, at least de facto, and entitled to the rights and privileges that belong to a sovereign and independent nation. The right, also, constitutional or otherwise, has been strongly urged, and the law of nations and the commentaries of eminent publicists have been referred to as justifying the secession or revolt of these Confederate States. Great ability and research have been displayed by the learned counsel for the defence on this branch of the case. But the Court do not deem it pertinent, or material, to enter into this wide field of inquiry. This branch of the defence involves considerations that do not belong to the Courts of the country. It involves the determination of great public, political questions, which belong to departments of our Government that have charge of our foreign relations—the legislative and executive departments; and, when decided by them, the Court follows the decision; and, until these departments have recognized the existence of the new Government, the Courts of the nation cannot. Until this recognition of the new Government, the Courts are obliged to regard the ancient state of things remaining as unchanged. This has been the uniform course of decision and practice of the Courts of the United States. The revolt of the Spanish Colonies of South America, and the new Government erected on separating from the mother country, were acknowledged by an Act of Congress, on the recommendation of the President, in 1822. Prior to this recognition, and during the existence of the civil war between Spain and her Colonies, it was the declared policy of our Government to treat both parties as belligerents, entitled equally to the rights of asylum and hospitality; and to consider them, in respect to the neutral relation and duties of our Government, as equally entitled to the sovereign rights of war as against each other. This was, also, the doctrine of the Courts, which they derived from the policy of the Government, following the political departments of the Government as it respects our relations with new Governments erected on the overthrow of the old. And if this is the rule of the Federal Courts, in the case of a revolt and erection of a new Government, as it respects foreign nations, much more is the rule applicable when the question arises in respect to a revolt and the erection of a new Government within the limits and against the authority of the Government under which we are engaged in administering her laws. And, in this connection, it is proper to say that, as the Confederate States must first be recognized by the political departments of the mother Government, in order to be recognized by the Courts of the country, namely, the legislative and executive departments, we must look to the acts of these departments as evidence of the fact. The act is the act of the nation through her constitutional public authorities. These, gentlemen, are all the observations we deem necessary to submit to you. The case is an interesting one, not only in the principles involved, but to the Government and the prisoners at the bar. It has been argued with a research and ability in proportion to its magnitude, both in behalf of the prisoners and the Government; and we do not doubt, with the aid of these arguments, and the instructions of the Court, you will be enabled to render an intelligent and just verdict in the case.