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. Warburton Adolphus Frederick
considered as conferring a legal authority to cruise, so as to protect those acting under them against a charge of piracy. Still, we admit that unless some other reason can be assigned for the introduction of a similar provision in our law, the argument which has been founded on it would deserve serious consideration. We do not think it difficult to assign a very satisfactory reason for the adoption of this section without viewing it in the light of a legislative construction of the 8th sec, or of the general law.
"If a citizen of the United States should commit acts of depredation against any of the citizens of the United States, it might at least have been a question whether he could be guilty of piracy if he acted under a foreign commission and within the scope of his authority. He might say that he acted under a commission; and not having transgressed the authority derived under it, he could not be charged criminally. But the 9th sec. declares that this shall be no plea, because the authority under which he acted is not allowed to be legitimate. It declares to the person contemplated by this section, that in cases where a commission from his own Government would protect him from the charge of piracy, that is, where he acted within the scope of it or even where he acted fairly but under a mistake in transgressing it, yet that a foreign commission should afford him no protection, even although he had not exceeded the authority which it professed to give him. But it by no means follows from this that a citizen committing depredations upon foreigners or citizens, not authorized by the commission granted by his own Government, and with a felonious intention, should be protected by that commission against a charge of piracy. Another object of this section appears to have been to declare that acts of hostility committed by a citizen against the United States upon the high seas, under pretence of a commission issued by a foreign Government, though they might amount to treason, were nevertheless piracy and to be tried as such."
Your honors will find another very interesting history in reference to this statute in Phillimore's International Law, 1st vol., sec. 398. Phillimore says:
"Soon after the abdication of James II., an international question of very great importance arose, namely, what character should be ascribed to privateers commissioned by the monarch, who had abdicated, to make war against the adherents of William III., or rather against the English, while under his rule. The question, in fact, involved a discussion of the general principle, whether a deposed sovereign, claiming to be sovereign de jure, might lawfully commission privateers against the subjects and adherents of the sovereign de facto on the throne; or whether such privateers were not to be considered as pirates, inasmuch as they were sailing animo furandi et depraedundi, without any national character. The question, it should be observed, did not arise in its full breadth and importance until James II. had been expelled from Ireland as well as England, until, in fact, he was a sovereign, claiming to be such de jure, but confessedly without territory. It appears that James, after he was in this condition, continued to issue letters of marque to his followers. The Privy Council of William III. desired to hear civilians upon the point of the piratical character of such privateers. The arguments on both sides are contained in a curious and rather rare pamphlet, published by one of the counsel (Dr. Tindal) for King William, in the years 1693-4. The principal arguments for the piratical character of the privateers appear to have been—
"That they who acted under such commission may be dealt with as if they had acted under their own authority or the authority of any private person, and therefore might be treated as pirates. That if such a titular Prince might grant commissions to seize the ships and goods of all or most trading nations, he might derive a considerable revenue as a chief of such freebooters, and that it would be madness in nations not to use the utmost rigor of the law against such vessels.
"That the reason of the thing which pronounced that robbers and pirates, when they formed themselves into a civil society, became just enemies, pronounced also that a king without territory, without power of protecting the innocent or punishing the guilty, or in any way of administering justice, dwindled into a pirate if he issued commissions to seize the goods and ships of nations; and that they who took commissions from him must be held by legal inference to have associated sceleris causâ, and could not be considered as members of a civil society."
I will not occupy the time of the Court and Jury by recapitulating the rest of the arguments which were urged with very great ability by the learned and distinguished civilians arrayed against each other in that interesting debate. But the points which arise, and which the Court will have, in due time, to instruct you upon, we respectfully claim and insist are these: That this English statute, after which our own statute was precisely copied, was intended only to apply to the case of pirates cruising under a commission pretended to have been given, in the first place, by a Prince deposed, abdicated, not having a foot of territory yielding him obedience in any corner of the world; and, in the next place, that it was intended to be aimed against those cruising under a commission issued under the pretence of authority from a foreigner, and not from the authorities over them de jure or de facto, or from any authorities of the land in which they lived, and where the real object was depredation; because, where it was issued by a monarch without territory—by a foreigner, having no rule, and no country in subjection to him—there could be no prize-court, and none of the ordinary machinery for disposing of prizes captured, according to the rules of international law; and, lastly, it was intended to apply to the case of a citizen, taking a privateer's commission from a foreign Government as a pretence to enable him to cruise against the commerce of his own countrymen. But it was never intended to apply to a case of this kind, where the commission was issued by the authorities of the land in which the parties receiving it live, exercising sway and dominion over them, whether de jure or de facto.
Now, gentlemen, so far I have thought it necessary to go in explanation of what the statutes were, of the circumstances bearing on them, and of the requisites which the prosecution had to make out, in order to ask a conviction at your hands. I come now, for the purpose of this opening, to lay before you what we shall rely upon in our defence. The first defence, as has already appeared to you from the course of the examination of the prosecution's witnesses, has reference to the question of the jurisdiction of this Court to hear and determine this controversy. The statute has been already read to you, on which that question of jurisdiction rests; but, for fear that you do not recollect it, I will beg once more to call your attention to it. The concluding paragraph of sec. 14 of the Act of 1825, 4th vol. of the Statutes at Large, p. 118, is as follows:
"And the trial of all offences which shall be committed on 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 first be brought."
Now, you observe that the language of the statute is imperative—the reasons which led to its adoption were also imperative and controlling. It is necessary that the law shall make provision for the place where a man shall be put on trial under an indictment against him; and the law wisely provides that in cases of offences committed on the land, the trial shall only take place where the offence was committed. It was thought even necessary to provide for that by an amendment to the Constitution of the United States, in order that there might be no misunderstanding of, and no departure from, the rule.
The Constitution, by one of its amendments, in the same paragraph which provides for the right of every accused to a speedy and impartial trial, provides also that that trial shall take place in the District, which District shall first have been ascertained by law; and as I said to you, in cases of crimes committed on the land, that District must be the District where the offence was committed, and no other.
Now look at the state of things here, gentlemen. These men are all citizens or residents of the State of South Carolina, and have been so for years. This vessel was fitted out in South Carolina. The authority under which she professed to act was given there. The evidence for the defence, if it could be got, must come from there. All the circumstances bearing on the transaction occurred in that section of the country, and not elsewhere,—occurred in a country which is now under the same Government and domination as Virginia, because Virginia is included at present under the domination and Government of the Confederate States.
Well, with reference to offences committed at sea, the officers capturing a prize have a right to bring it into any port, it is true, and the port where the prisoners are