Got a call from a reporter: “You know that the U.S. government is bringing one of the Maersk Alabama Somali pirates back for trial. Do you know when the last trial of a pirate took place in the United States?”

My answer was, “I should know that, but I don’t.”

After the call I did a some quick research. And came up with very little. There was the threat of trying some German saboteurs for piracy as the result of their actions during WWI (the Fay case) – see here, but the accused plead guilty so there was no trial.

Before that, in 1861, the crew of a Confederate Sates privateer was tried for piracy – in the Savannah case. This may be the last time anyone was tried for sea piracy in a court in the United States, though I am prepared to be corrected on that point.

The Savannah case turns out to be pretty interesting. The basic facts are simple enough.

Out of the port of Charleston, South Carolina, came forth the sailing vessel Savannah. She attacked and captured a ship at sea and then attacked another. Much to the surprise and regret ofher crew, the second vessel turned out to be U.S. Navy warship, which turned the tables on Savannah, taking the ship and her crew into custody.

The crew of Savannah was not hanged from a yardarm after a trial at sea. Instead, a trial was ordered up and convened in a New York courtroom. The charge was piracy.

The crew of Savannah offered up a defense. “We’re not pirates,” they argued, “we’re privateers.”

What’s the difference? Piracy, as Blackstone opined in his Commentaries on the Laws of England:

…[T]he crime of piracy, or robbery and depredation upon the high seas, is an offence against the universal law of society ; a pirate being, according to Sir Edward Coke, hostis humani generis. As therefore he has renounced all the benefits of society and government, and has reduced himself afresh to the savage state of nature, by declaring war against all mankind, all mankind must declare war against him : so that every community hath a right, by the rule of self-defence, to inflict that punishment upon him, which every individual would in a state of nature have been otherwise entitled to do, any invasion of his person or personal property.

BY the ancient common law, piracy, if committed by a subject, was held to be a species of treason, being contrary to his natural allegiance ; and by an alien to be felony only . . .

On the other hand, a privateer is an entirely different kettle of fish. A privateer is, well, a pirate with authorization to carry out his work from a government:

A privateer was a private warship authorized by a country’s government by letters of marque to attack foreign shipping. Strictly, a privateer was only entitled by its state to attack and rob enemy vessels during wartime. Privateers were part of naval warfare of some nations from the 16th to the 19th century. The costs of commissioning privateers was borne by investors hoping to gain a significant return from prize money earned from enemy merchants.

It has been argued that privateering was a less destructive and wasteful form of warfare, because the goal was to capture ships rather than to sink them. From a 21st century point of view, privateering was a form of state-sanctioned piracy.

Some of you will recall that section of the U.S. Constitution allows for the issuance of “Letters of Marque and Reprisal” – U.S. Constitution, Article I, Sec. 8 cl. 11:

The Congress shall have Power … To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water

So? Letters of marque and reprisal are permission issued to someone to commit what would otherwise be acts of piracy.

Ah. Well, how did the crew of Savannah claim to be privateers? They argued that they had been issued letters of marque and reprisal by their government, the Confederate States of America and were thereby committing acts of war in the fight between the CSA and the USA and were not, therefore, pirates.

The U.S. government, however, had a differing view and put the crew on trial for piracy:

Through much of the first year of the war, the government in Washington continued to regard the conflict as merely an insurrection, and that the Confederate government had no legal standing. According to the view of the Lincoln administration, the letters of marque issued by Jefferson Davis or the seceded states had no legal force, and the privateersmen who relied upon them did not represent a legitimate authority. Taking merchant vessels on the high seas therefore was piracy, which the penalty for upon conviction was death.

The first trial for piracy was of the 13 men, including Captain Thomas H. Baker, captured on privateer Savannah. The trial was held in the United States Circuit Court for the Southern District of New York. It began on 23 October 1861, and from the start attracted wide public notice. The mere fact of the trial drew outrage in the Confederacy, where the government threatened retaliation, life for life. To increase pressure on Washington, the prisoners of war who would have been executed in retaliation were selected and their names made known.

From the New York Times, October 29, 1861:

Mr. Sullivan, for defence, said the issue of the cause was narrowed down to a simple point. It was proved that the defence did capture a brig on the ocean, which brig belonged to citizens residing in the State of Maine, and the cargo belonged to citizens in the United States. That the counsel would admit it had been proved, further, the the persons who captured the brig and cargo alleged they did so in the name of the Confederate States of America, and by authority derived from them. Upon that simple fact . .. rose the sole point of dispute. the intent of the prisoners was to comply with the regulations prescribed by their government, not to steal and rob. He next considered the right of the Confederate States to issue letters-of marque, taking the ground that the United States had recognized their government in all their dealings, and consequently the right to issue letters=-of-marque should also be recognized. Considered by impartial minds, the attitude of the Government towards the prisoners was inconsistent with its position towards the Confederate States.

Apparently some of the minds on the jury were “impartial” for the case resulted in a hung jury.

Soon there may be another trial of an accused pirate in a New York court room. It will be interesting to see.

More on the capture of the Savannah here.

Please let me know if you are aware of any later trials for piracy in an American court. Thank you.

Cross posted at my home site.




Posted by Mark Tempest in Maritime Security


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  • Byron

    It’s gonna be a media circus, Eagle. He’ll be the cause celebre of all the gliteratti. He’ll have a better defense team than OJ.

    I’m going to hell for saying this, but the SEALs should have fired one more round. After all, all pirates know that dead men tell no tales.

  • m.h.

    I was curious about this myself….

    I did find a 1937 case where a defendant was tried for piracy and other crimes, though the defendant was only convicted of some of the other crimes, not the piracy. The Ninth Circuit rejected the defendant’s appeal with respect to the guilty verdicts in Miller v. United States, 88 F.2d 102 (1937).

    The opinion describes the defendant’s indictment as including a count charging “piracy in violation of title 18, section 481.” This is not where piracy is codified today; I don’t know how to check what was codified at 18 USC 481 in 1937.

  • http://www.eaglespeak.us/ Eagle1

    Some of you will find your clever repartee deleted as I deleted some personal attacks and responses.

    If you feel that a person’s point is in error, pointing out the errors is educational and allows all of us to benefit. Name calling and threats have no place here.

  • Michael

    Care to comment on this story? I’d love to see your take on this:

    http://wnd.com/index.php?fa=PAGE.view&pageId=95451

  • Hayball

    Michael:

    No.

  • UltimaRatioReg

    Michael,

    I had heard inklings of that. Growing concern that those calling the shots did not and do not have a realistic understanding of the issues at hand.

    As someone said here recently, such dithering will make piracy and kidnapping a super growth industry.

  • Hayball

    Byron:

    I have found very important when working really hard at bringing lowlifes to justice that you take great care to stay spotless and professionally detached.

    Friends and/or allies of lowlifes (or enemies of you) love to change the focus from the lowlife’s evil deeds to your peccadillos. Then while all eyes are on you, the lowlifes get to slither away unnoticed. Then the friends and allies of lowlifes benefit greatly by your loss of reputation and credibility, enhancing their sales pitch as highminded heroes of high principle.

    Kind of a Sith Mind Trick. But it really does happen.

    On the other hand, more than one bad guy found out “Catch you later” was more the Marshal’s promise to himself than just an expression.

  • UltimaRatioReg

    You gotta admit, Hayball.

    Whacking the survivor notwithstanding, Byron has probably called it when he says the pirate will be a sympathetic media darling and a bleeding-heart anti-US cause du jour if he goes to trial. Residue of the US refusing to play the propaganda game at all, let alone play it well.

  • Byron

    Hayball, I understand about holding the moral high ground, I truly do. But…I suspect you’ll hear many more people in the near future quietely wish that there hadn’t been a trial.

    Just sayin’

  • http://informationdissemination.blogspot.com/ Yankee Sailor

    URR,

    I’ve got a quick question for you. Shoot me an e-mail at sailor(at)yankeesailor(dot)us.

    Yank

  • Jay

    Since this is the most recent topic re: piracy — while not O/T, here is an idea. Many US flag ships get MSP payments ($2M+ annually). MSP is the Maritime Security Program. (You can google the program details — believe it is MARAD’s baby)

    How about — making mandatory private security part of the MSP?

    As far as I recall — the MSP money was to offset the higher cost of keeping a ship US flag (vice being foreign flagged). Mainly, crew costs, but other are probably in there as well.

  • RickWilmes

    The MSP is a subsidy and should be eliminated along with all other government funded subsidies. Statism once again rears it’s ugly head.

  • Sterling Johnson

    http://summerhome.com/shipwreck/dennison.htm

    Above is a URL for a report on a twentieth-century piracy trial.

  • Eagle1

    Thanks, Sterling. Interesting man. But I agree with the guy who said it wasn’t piracy – except perhaps under Massachusetts laws.

    Not on the high seas, etc.

    But you get credit for finding it.

    A couple of other cases of note:

    http://www.eaglespeak.us/2008/04/9th-circuit-upholds-piracy-conviction.html though it was really not about piracy in the end

    and The Ambrose Light case 25 F. 408, 415–16 (D.C.N.Y. 1885) was a “prize” case, not a true piracy trial, as I understand it.

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