PRIVATEERING. 



591 



stitutod government as having the rights of a 

 belligerent in a war between them and their 

 former rulers, and the United States hold a 

 neutral position in such war, then the judiciary, 

 following other departments, will to the same 

 extent recognize the new nation. 



" But if the legislative and the executive de- 

 partments of the Government utterly refuse to 

 recognize such new government, or to acknowl- 

 edge it as having any belligerent or national 

 rights, and instead of taking a neutral attitude, 

 endeavor by force to suppress depredations on 

 commerce by such assumed government as 

 violating the rights and infringing the laws of 

 the United States, then the judiciary will hold 

 that sucli depredations are not to be considered 

 as belligerent and entitled to the immunities of 

 lawful war, but as robbery or other lawless 

 depredations, subject to the penalties denounced 

 by our laws against such offences. The judi- 

 ciary certainly cannot adopt a more indulgent 

 rule towards those who are in open rebellion 

 against the authority of the United States, or 

 towards aliens cooperating with and acting 

 under the assumed authority of such rebels. 

 While the other departments of the Government 

 and the nation refuse to regard any State or as- 

 sociations of States as having the rights of a 

 belligerent, or as carrying on legitimate war, and 

 are exerting not only moral but physical force 

 against them as rebels and lawless aggressors 

 upon the United States and its citizens, the 

 courts also must so regard them, and cannot ad- 

 mit that any legislation or assumption of power 

 by such State or States can authorize acts in 

 violation of the laws of the United States, or 

 change the character of offences under them. 



' There is another view. Mere rebellion ab- 

 solves no man from his allegiance. Citizens of 

 the United States, therefore, may not only be 

 subject to the penalties of treason, but if they 

 commit hostilities upon the commerce of the 

 United States, under a commission from any 

 foreign nation, even the oldest and best estab- 

 lished, such as England or France, for example, 

 they may be dealt with as pirates by the express 

 enactments in the 9th section of the statute of 

 1790, which has already been referred to. And 

 aliens, who are subjects or citizens of any for- 

 eign State with whom we have a treaty, such 

 as is described in the statute of 1847, chapter 

 51, and who, in violation of such treaty, make 

 war upon the United States, or cruise against 

 our vessels or property, under a commission 

 from any foreign government, however long 

 acknowledged, may, by the clear provisions of 

 that statute, be dealt with as pirates. 



" If aliens, subjects of a nation with whom 

 we have no such treaty, commit acts of hostility 

 upon our commerce under the alleged authority 

 or commission of a new and self-created gov- 

 ernment claiming to be independent, it may be 

 material to inquire whether such government is 

 to be regarded as having the immunities of a bel- 

 ligerent, or whether such aliens may be treated 

 as robbers on the seas, and this inquiry will be 



governed by the principles which I have already 

 stated." 



The trial of Capt. Baker and 14 of the crew 

 of the Savannah, of whom 8 were foreigners, 

 was had before Judges Nelson and Shipman. 

 The judge instructed the jury that "by the 

 general law of nations a pirate was one who 

 roved the sea in an armed vessel without a 

 commission fr6m any sovereign State, on his own 

 authority, and for the purpose of seizing by force, 

 and appropriating to himself whatever vessels he 

 might meet. But the evidence in this case show- 

 ed that the design of the prisoners was to depre- 

 date upon the vessels of only one nation, the 

 United States an offence that fell short of 

 piracy under the laws of nations. But there 

 were special laws of the United States, estab- 

 lishing and defining piracy. The particular law 

 applying to this case was that of 1820, which 

 says, 'If any person shall upon the high seas 

 commit the crime of robbery in or upon any 

 ship or vessel, or upon 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 com- 

 mission issued by Mr. Davis could not be admit- 

 ted as a defence, for the courts of the United 

 States could not recognize such an authority 

 until the Government had done so. The felo- 

 nious intent, which is an essential element in the 

 crime of robbery, consists in the taking of the 

 property of another for the sake of gain. If 

 this was wanting in this case, the offence, 

 whatever it might be, was not that of piracy 

 under the statute." The jury could not agree, 

 and a new trial was ordered. The views of all 

 the judges seemed to centre upon the one point, 

 that these men were taken in arms against the 

 Federal Government, and that inasmuch as the 

 Federal laws did not recognize the authority 

 under which the men acted, there was no 

 recourse but to condemn them. The same rule 

 applies, however, to all those who make war 

 against the Federal Government upon land, 

 and who, so far from being condemned as trai- 

 tors and robbers, are daily exchanged, according 

 to the rules of war, for other prisoners. "When, 

 however, the Federal Government pursued this 

 course in relation to its maritime enemies, the 

 Confederate Government, in accordance with 

 the letter of Jefferson Davis to Mr. Lincoln, July 

 6, ordered the selection of a number of men from 

 the Richmond prisons, by lot. The choice fell 

 upon Col. Corcoran of the !N"ew York Sixty- 

 ninth, and others, to be executed in the same 

 manner that the privateersmen should be dealt 

 with. These proceedings attracted much at- 

 tention abroad, where belligerent rights had 

 been accorded to the Confederates, and one of 

 those rights was the use of privateers under 

 the law of nations. The Federal Government 

 under these circumstances relinquished its pur- 

 pose of proceeding against the prisoners as 

 pirates. 



On the 21st of August, the Captain-General 

 of Cuba issued a proclamation to the effect 



