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 YorkWarburton, A. F. (Adolphus Frederick)
History
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, A. F. (Adolphus Frederick)
Piracy -- United States; Privateering -- United States; United States -- History -- Civil War, 1861-1865
Now, if the Court please, when it comes up for judicial inquiry,
whether a case of privateering, under the law of nations, is fairly
made out, and where the case arises during flagrant war between two
separate, independent, established nations, whose nationality is a part
of the order of things in the world, the Court has only really to
inquire, judicially, into two subjects--whether the vessel had a lawful
privateer's commission from one of the contending parties--and whether
the acts committed by her were within its scope, either actually or in
the sense of a fair construction of the authority, and of good faith in
the exercise of the power. But, even in these cases, where the only
points are, whether there be war, and whether there be nationalities on
each side which can convey this public authority, the Court is all the
while governed by, dependent upon, and subordinate to, the views of the
Government from which the Court derives its authority. No judicial
tribunal has a right to recognize a nation, of its own motion. No
judicial tribunal has authority to recognize a Government which the
Government from which it derives its authority does not recognize. I
have never heard it proposed, as a view either of public or of domestic
law, that when a Government has declined to recognize a nation, it was
within the jurisdiction of a Court of that Government to determine
differently, and reverse the decision of the political power. In the
cases of France and England, which are recognized Governments that have
placed themselves as firmly among the nations of the world as private
individuals are planted in the rights of man, our Courts intermit this
inquiry. A privateer of England which confines itself within the scope
of its commission, can not be proceeded against as a pirate, although
it commits acts which would of themselves be piracy. But, there do
arise questions which come under the jurisdiction of the Courts, under
circumstances of doubt and obscurity as to the course or view which our
Government has taken in relation to the alleged nationalities of
alleged belligerents; and I need not say to your honors, that by an
unbroken series of the decisions of the Supreme Court, as well as by
the necessary subordination of the judicial authority to the political
power of the Government, our Courts always take the view which their
Government takes in respect to struggles and hostilities which arise
between uncertain, indefinite and unascertained powers. Thus, whenever
there occur, between Colonies and the parent Government,--between
disaffected regions or populations and the sovereign to which they have
been subject--dissensions which, arising from the region of discontent,
sedition and turbulent disorder, reach the proportion of military
conflict and appeal to arms, then, when acts in the nature of war are
assumed to be performed, under circumstances that bring them within
judicial cognizance in our Courts, and in the Courts of any other
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