590 



PRIVATEERING. 



hoped that it was a mere 'brutum fulmen, and 

 not intended to be carried out. But that being 

 the case with regard to their own country, the 

 case with England was quite different. We had 

 recognized the Southern Confederacy, not as an 

 independent State, but as a belligerent power ; 

 and, therefore, if the Federal Government should 

 act upon the principle they had laid down as 

 against British subjects, he apprehended that 

 this Government might with perfect justice in- 

 terfere, and under some circumstances they 

 might, by the influence of public opinion, be 

 compelled to interfere. Yet, at the same time, 

 the offender could not as a right, having acted 

 in violation of the feeling of his own country, 

 and therefore of his own Government, call upon 

 his Government to interfere." 



On June 1, the English Government published 

 an order, and a despatch was sent to the Gov- 

 ernor-General of Canada to the effect : " In 

 order to give full effect to this principle, (neu- 

 trality,) Her Majesty has been pleased to inter- 

 dict the armed ships, and also the privateers 

 of both parties, from carrying prizes made by 

 them, into the ports, harbors, and roadsteads, 

 or waters of the United Kingdom, or any of 

 Her Majesty's colonies or possessions abroad." 



The French Government decreed : 



" No vessel of war or privateer of either of 

 the belligerent parties will be allowed to enter 

 or stay with prizes in our ports or roadsteads 

 longer than 24 hours, excepting in case of com- 

 pulsory delay. No sale of goods belonging to 

 prizes is allowed in our ports and roadsteads. 

 Every Frenchman is prohibited from taking a 

 commission, or accepting letters of marque, or 

 in any manner assisting in the arming of a pri- 

 vateer." 



The Spanish Government issued a similar 

 decree, forbidding " the building, arming, or 

 equipping of privateers in Spanish ports. No 

 privateer or prize to remain longer than 24 

 hours. No prizes to be sold, no arms or muni- 

 tion of war to be purchased." These regula- 

 tions much circumscribe the Confederate ac- 

 tion ; but at Havana it was notified : " Ves- 

 sels of the Confederate States are allowed to 

 enter Cuban ports under their own flags, to 

 discharge and take cargoes away, and do all 

 other things of business necessity, with the 

 same privileges as favored nations, but without 

 recognition of the new nationality." The Con- 

 federates being recognized as belligerents by all 

 the powers, their right to use privateers was. 

 not questioned under the existing law of na- 

 tions. The United States Government, at this 

 time, notified the English Government that it 

 was now willing to adhere to all the conditions 

 of the Paris Congress of 1856 ; providing the 

 clause abolishing privateers might now apply 

 to the Confederate States. The offer with the 

 proviso was declined by France and England. 

 (See DIPLOMATIC CORRESPONDENCE.) Subse- 

 quently the Confederate Congress adopted the 

 Paris treaty. (See p. 164.) 



The captain and the crew of the Savannah 



were now, Oct. 23, to be tried as pirates under 

 the proclamation of President Lincoln, of April 

 19. There had also been captured one of the 

 crew of the Jeff. Davis, on board the schooner 

 Enchantress, a recaptured prize. This individ- 

 ual was brought to trial in Philadelphia, before 

 Judge Grier, the same day, Oct. 22, on which 

 the Savannah's crew was tried in New York, 

 before Judge Nelson, for piracy. On the cap- 

 ture of the crews, the Confederate President 

 had addressed President Lincoln a letter, (see 

 CONFEDERATE STATES, p. 150,) threatening to 

 deal with Federal prisoners in the same manner 

 in which the privateersmen should be dealt 

 with. The prisoner, William Smith, was convict- 

 ed after both Judges Grier and Cadwallader had 

 charged the jury. The point of both arguments 

 was that " they could not be regarded as pri- 

 vateers, because they acted under a govern- 

 ment that had not been recognized," follow- 

 ing apparently the view held by Judge Sprague, 

 of Boston, on May 16, when in his charge to 

 the grand jury he laid down the state of the 

 laws with reference to the crime of piracy. 

 After citing provisions from the laws of 1790, 

 1820, 1825, 184G, and 1847, as to what consti- 

 tutes the general crime, with the different de- 

 grees of penalty, the judge remarked that these 

 enactments were founded upon the clause in 

 the .Constitution which gives Congress the 

 power to define and punish piracy. But the 

 constitutional power to regulate commerce also 

 afforded a basis for additional penal enactments, 

 covering all possible aggressions and depreda- 

 tions upon our commerce. He then laid down 

 the following principles : 



" These statutes being enacted pursuant to 

 the Constitution, are of paramount authority, 

 and cannot be invalidated or impaired by the 

 action of any State or States, and every law, 

 ordinance, and constitution made by them for 

 that purpose, whatever its name or form, is 

 wholly nugatory, and can afford no legal pro- 

 tection to those who may act under it. But 

 suppose that a number of States undertake by 

 revolution to throw off the Government of the 

 United States and erect themselves into an in- 

 dependent nation, and assume in that character 

 to issue commissions authorizing the capture 

 of vessels of the United States, will such com- 

 missions afford protection to those acting under 

 them against the penal laws of the United 

 States? Cases have heretofore arisen where a 

 portion of a foreign empire, a colony, has under- 

 taken to throw off the dominion of the mother 

 country, and assumed the attitude and claimed 

 the rights of an independent nation, and in such 

 cases it has been held that the relation which 

 the United States should hold to those who 

 thus attempt and claim to institute a new gov- 

 ernment is a political rather than a legal ques- 

 tion ; that, if those departments of our Govern- 

 ment which have a right to give the law, and 

 which regulate our foreign intercourse and de- 

 termine the relation in which we shall stand to 

 other nations, recognize such new and self con- 



