SPEECH OF JAMES T. BRADY, IN DEFENSE OF THE "SAVANNAH PRIVATEERS," INDICTED FOR PIRACY. AT A CIRCUIT COURT OF THE UNITED STATES, HELD AT THE CITY OF NEW YORK, OCTOBER TERM, 1861. The trial of the officers and crew of the Confederate privateer Savannah forms an interesting episode in the history of the late war of the rebellion, involving, as it did, a discussion of the legal aspects of that memorable conflict; the right of revolution within the law of nations, and the rights of revolutionists under the laws of war. The Savannah, a schooner of about fifty-three tons burden, armed with cannon and small arms, and manned by a crew of twenty persons, including her officers, sailed from under the shadows of Fort Sumter, on the morning of Sunday, the 2d day of June, 1861, and pushed out into the Atlantic, bound for no port, and without any particular point of destination in view. Her commander, Thomas Harrison Baker, carried a letter of marque bearing date the 18th of May, 1861, issued by Jefferson Davis, signing himself "President of the Confederate States of America," whereby the Savannah was commissioned and authorized "to act as a private armed vessel of the Confederate States, on the high seas, against the United States of America, their ships, vessels, goods and effects, and those of her citizens, during the pendency of the war now existing between the said Confederate States and the said United States." On Monday, the 3d of June, the Savannah descried a sail and gave chase, flying the American colors. The vessel proved to be the American brig Joseph, laden with sugar, from Cardenas, in Cuba, bound for Philadelphia. When within hailing distance, Captain Baker ran up the confederate flag, and ordered the master of the Joseph on board his vessel, with his papers, by authority of the Confederate States, saying, in response to an inquiry from the Joseph, “I am sorry for it, but you make war upon us, and we have, in retaliation, to make war upon you." A prize crew was put on board the Joseph, and she was run into a confederate port and sold as a prize. Upon the same day, however, the Savannah was captured by the United States brig-of-war Perry. The prisoners were afterwards transferred to the Minnesota, which ran into Hampton Roads, and were there placed on board the Harriet Lane, which carried them to New York, where they were indicted by the United States grand jury, and tried upon a charge of piracy. Twelve prisoners were arraigned: Thomas Harrison Baker, Charles Sydney Passalaigue, John Harleston, Henry Cashman Howard, Joseph Cruse del Carno, Patrick Daly, John Murphy, Martin Galvin, Henry Oman, William Charles Clarke, Richard Palmer, Alexander Carter Coid, and Albert G. Ferris. The first four named were citizens of the United States; the others were foreigners, and had never been naturalized. Piracy is of two kinds : national and municipal. The former is a crime under the common law of nations; the latter is an offense under the statutes of a particular State or nation. Under the former, the element of intent must be broad enough to cover property of every nation; under the latter, the offense is made out by showing an intent to depredate upon the property of the particular State, to the exclusion of all others. A pirate, according to the general definition, offends against the universal laws of society; he is deemed an enemy of the human race, making war indiscriminately upon all mankind, and the vessels of every nation have a right to seize and punish him. National piracy is defined to be "the offense of depredating on the seas, without being authorized by any sovereign State, or with commissions from different sovereigns at war with each other." It is a rule of international law, that in a state of war existing between two nations, either may commission "privateers," or private armed vessels to carry on war against the enemy on the high seas; and such commission will afford protection, even in the courts of the enemy's country, against a charge of robbery or piracy. Congress, under the power given by the Constitution, to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations, passed an act, on the 30th of April, 1790, entitled "An Act for the punishment of certain crimes against the United States," commonly known as "The Crimes Act." On the 15th of May, 1820, an additional law was passed making further provision for punishing the crime of piracy. The third section of the act of 1820 declares, 'that, if any person shall, upon the high seas, commit the crime of robbery, in or upon any ship or vessel, or upon any ship's company of any ship or vessel, or the lading thereof, such person shall be adjudged to be a pirate." Under this statute, a commission from a State or nation at war with another, would, according to the law of nations, constitute a defense. The ninth section of the act of 1790 declares, “that if any citizen shall com? Article I, sec. 8. Wheaton's Int. Law, p. 184. mit any piracy or robbery aforesaid, or any act of hostility against the United States, or any citizen thereof, upon the high seas, under color of any commission from any foreign prince or State, or on pretense of authority from any person, such offender shall, notwithstanding the pretense of any such authority, be deemed, adjudged, and taken to be a pirate, felon and robber." It was claimed by the prisoners, that this statute could only apply to acts done under authority of a foreign power or person; that, if Jefferson Davis represented that power or person, then the defendants were subjects of that power, not citizens of the United States, and not within the act; if he did not represent a foreign power, the act had no application. The indictment charged the prisoners with the robbery of an American vessel upon the high seas, and contained ten counts: the first five were framed under the act of 1820; the other five under the ninth section of the act of 1790, charging all the prisoners with being citizens, and with having committed the acts set forth on pretense of authority from one Jefferson Davis. On behalf of the foreign defendants, it was claimed, that it was a settled principle of international law that one nation could not make that piracy which was not piracy under the law of nations, except so far as their own subjects were concerned,' and hence there could be no conviction under the act of 1820, since there was no intent to seize any but American vessels. It was further claimed, in behalf of all the defendants, that the commission from Jefferson Davis was a defense, because the right of revolution for cause was a legal right, and the position occupied by the Confederacy towards the United States was such that they were justified in adopting the means of retaliation or aggression recognized in a state of war, and entitled to all the privileges and immunities existing under the laws of war. The questions presented upon this trial, it will be seen, were of the first magnitude and importance, and required for their solution a familiarity with the most profound legal principles and the highest professional knowledge. The case was conducted by distinguished counsel, among whom were some of the ablest lawyers in the land. E. Delafield Smith, United States District Attorney, was assisted by William M. Evarts, Samuel Blatchford (now U.S. Circuit Judge), and Ethan Allen; for the defense appeared Jeremiah Larocque, Daniel Lord, James T. Brady, Algernon S. Sullivan, Joseph H. Dukes, Isaac Davega, and Maurice Mayer. Hon. Judges Nelson and Shipman presided. The character and genius of James T. Brady made him the most popular advocate of his time, for in him were combined the most superb qualities of the head and heart. The following remark illustrates his genuine manhood: “I honor greatness, genius and achievements," he said, "but I honor more those qualities in a man's nature which show that, while he holds a proper relation to the Deity, he has also a just estimate of his fellow-men, and a kindly feeling towards them. I would rather have it said of me, after death, by my brethren of the bar, that they were sorry I had left their companionship, than to be spoken of in the highest strains of gifted panegyric." He was esteemed by all, but 'to those who were so fortunate as to share his acquaintance, he was endeared by the warmest ties of friendship and affection. That man will always be loved 1 Wheaton's Int. Law, vol. 6, p. 85; 1 Kent's Com. p. 195; I Phillemore, 381; Hefter on Modern Int. Law (4th ed.), p. 191. who believed, as did Mr. Brady, that the highest, purest, and most unselfish of all earthly affections is man's love for man. He was a successful and accomplished lawyer. His intellectual power will appear upon a perusal of his very able and interesting address for the defense of this case. After all the other counsel for the prisoners had spoken, Mr. Brady summed up as follows: MAY IT PLEASE THE COURT,-Gentlemen of the Jury:-I feel quite certain that all of you are much satisfied to find that this important trial is rapidly drawing to a close; and I think it would be unbecoming in me, as one of the counsel for the accused, to proceed a step farther in my address to you without acknowledging to the court the gratitude which we feel for their kindness in hearing so largely discussed the grave legal questions involved in this controversy; to the jury, for their unvarying patience throughout the investigation; and to our learned opponents, for the frank and open manner in which the prosecution has been conducted. Our fellow-citizens at the South-certainly that portion of them who cherish affection for this part of the Union-will find in the course of this trial most satisfactory evidence that respect for law, freedom of speech, freedom of discussion, liberty of opinion, and the rights of all our countrymen, here exist to the fullest extent. All of us have heretofore been connected with interesting and exciting trials. I am warranted in saying that, considering the period at which this trial has occurred, and all the facts and circumstances attending it, the citizens of New York have reason to be proud that such a trial could proceed without one word of acerbity, without one expression of angry feeling, or one improper exhibition of popular sentiments. I. PIRACY.-NATURE AND CHARACTER OF THE CRIME. The great question for this jury, absorbing all others, is: Have the twelve men named in the indictment, or has either of them, committed piracy, and thus incurred the penalty of death? It is a very interesting inquiry, gentlemen-interesting in its historical, national, judicial and political aspects; interesting, too, because of the character and description of the accused. We discover that eight of them are foreigners, who have never been naturalized, and do not judicially come under the designation of citizens of the United States. Four of them are what we call natural-born citizens: two from the State of South Carolina, one from North Carolina, and one from Philadelphia. Two of them are in very feeble health; and I am sorry to say, some are not yet of middle age, some quite young, including Passalaigue, who has not yet attained his eighteenth year. I know my fellow-citizens of New York quite well enough to be quite sure that, even if there had been any exhibition of popular prejudice, or feeling, or fury, with a view to disturb their judgments in the jury-box, the sympathy that arises properly in every well-constituted heart and mind, in favor of the accused, their relatives and friends, would overcome any such wrong impulse as might be directed to deprive them of that fair trial which, up to this point, they have had, and which, to the end, I know they will have. Are they pirates and robbers? Have they incurred the penalty of death? Gentlemen, it is a little curious that, during the present reign of Victoria, a statute has been passed in England softening the rigor of the punishment for piracy, and subjecting the person found guilty to transportation, instead of execution, unless arms have been used in the spoliation, or some act done aggravating the offense. I have used the term "pirate," and the term "robber." There is another which, strangely enough, was employed by a judge of the Vice-Admiralty Court in South Carolina, in 1718, who calls these pirates and robbers, as we designate them, "sea thieves ;" and I am very glad to find that phrase, because the words robber and pirate have fallen into mere terms of opprobrium; while the word "thief" has a significance and force understood by every You know what you thought a "thief" to be when a boy, and how you despised him; and you are to look at each prisoner mentioned in this indictment, and say, on your consciences as men, in view of the facts and of the law, as expounded by the learned court, do you consider that the word "thief" can be applied to any one of the men whom I have to assist in defending? That is the great practical question which you are to decide. man. Here Mr. Brady briefly adverted to the question of jurisdiction, as having been already very fully discussed. After some observations on the case of Hicks, the pirate, he continued : 2. PIRACY UNDER THE LAW OF NATIONS, AND UNDER THE ACTS OF CONGRESS. THE "ENCHANTRESS' CASE. This indictment charges two kinds of offense: Piracy, as that crime existed by the law of nations, which law may be said to have been incorporated into the jurisprudence of the United States; and piracy under the ninth section of the act of 1790. Piracy by the law of nations is defined by Wheaton, the great American com |