The Trial of the Officers and Crew of the Schooner "Savannah"

John D. Gordan, III*


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*This article was prepared and published in pamphlet form under the joint auspices of the Second Circuit Historical Committee established by the Judicial Council of the Second Circuit and the Federal Bar Council of New York.

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Introduction

On Sunday, June 2, 1861, the schooner Savannah, Commissioned by Jefferson Davis as "a private armed vessel in the service of the Confederate States," left her anchorage near Fort Sumter in Charleston harbor, slipped past the U.S. frigate Brooklyn, part of the Union blockading fleet, and reached the open sea. The next day, having taken the brig Joseph, bound from Cuba to Philadelphia with a cargo of sugar, and sent her into Beaufort with a prize crew aboard, the Savannah engaged the U. S. brig Perry, and after an exchange of fire, surrendered. On October 23, 1861, twelve of the officers and men of the Savannah went on trial in the United States Circuit Court for the Southern District of New York on charges of piracy arising from the capture of the Joseph.[1]

For the Savannah, Fort Sumter, whose Union garrison had surrendered to General Beauregard some seven weeks earlier, was a point both of departure and of historical reference, The voyage of the Savannah, and the prosecution which followed, were inextricably bound up in the attack on Fort Sumter. The outcome of the trial, it will be suggested, may have resulted from the participation of the Circuit Justice presiding, Samuel Nelson, in the events immediately preceding the Confederate assault on Fort Sumter.


The Fall of Fort Sumter and Its Aftermath

At 4:30 AM. on April 12, 1861, the first shell rose from the Confederate batteries below Charleston and exploded over Fort Sumter, beginning the Civil War. The United States fleet sent by President Lincoln to provision the garrison arrived at the bar of the harbor as the assault began and watched for the next day and a half as the Confederate batteries pounded Fort Sumter into submission. By the evening of the 13th the Fort had surrendered, and on the 14th the fleet carried away its survivors while Beauregard's troops raised the Confederate flag over the ramparts.

The day of the assault, Jefferson Davis called a special session of the Confederate Congress at Montgomery, the provisional capitol, for April 29. On April 15 President Lincoln issued a proclamation, calling into service 75,000 state militiamen and summoning a special session of Congress on July 4. On the 17th of April, Davis invited interested parties to apply for "commissions or letters of marque and reprisal to be issued under the seal of these Confederate States." President Lincoln responded on the 19th, declaring a blockade of the ports of the seceded states and warning that
"If any person, under the pretended authority of said States, or under any other pretence, shall molest a vessel of the United States or the persons or cargo on board of her, such person Will be held amenable to the laws of the United States for the prevention and punishment of piracy"

Lincoln's proclamation would touch off a storm in England, which recognized the belligerent status of the Confederacy. In the House of Lords, the Lord Chancellor expressed the view that no one ought "to be regarded as a pirate for acting under a Commission from a State admitted to be entitled to the exercise of belligerent rights" and that "[a]nybody dealing with a man under those circumstances as a pirate and putting him to death would .,. be guilty of murder." Lord Kingsdown declared that enforcement of the proclamation "would be an act of barbarity which would produce an outcry throughout the civilized world. . . ." The Earl of Derby asserted that the "Northern States . . . must not be allowed to entertain the opinion . . . that they are at liberty so to strain the law as to convert privateering into piracy, and visit it with death,"[2]

Undeterred by Lincoln's proclamation, on April 29 Davis asked the Confederate Congess for a statute authorizing the issuance of letters of marque and reprisal to make up for the Confederacy's lack of any naval vessels. On May 6, Davis signed the Act he had requested, which declared war on the United States and contained detailed provisions for the issuance of letters of marque under the seal of the Confederate States, for the conduct of vessels so commissioned, and for the condemnation of prizes by the district courts of the Confederate States.[3] On May 18, 1861, pursuant to the Act, Davis issued the following commission:

"JEFFERSON DAVIS,
"PRESIDENT OF THE CONFEDERATE STATES OF AMERICA.
"To all who shall see these presents, greeting:
—Know ye, that by Virtue of the power vested in me by law, I have commissioned, and do hereby commission, have authorized, and do hereby authorize, the schooner or vessel called the Savannah (more particularly described in the schedule hereunto annexed), whereof T. Harrison Baker is commander, to act as a private armed vessel in the service 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.

"This commission to continue in force until revoked by the President of the Confederate States for the time being.
"Given under my hand and the seal of the Confederate States, at Montgomery, this 18th day May, A.D. 1861.
"JEFFERSON DAVIS.

"By the President—R. TOOMBS, Secretary of State."

"Schedule of description of the vessel:—Name, Schooner Savannah, tonnage, 53 4 1/95 tons; armament, one large pivot gun and small arms; number of crew, thirty."[4]

"At 5.20 went to quarters"

On June 2, 1861, with twenty men on board and armed with a single 18 pound pivot gun mounted amidships, the Savannah left Charleston harbor after dark. On the morning of the following day, without firing a shot, she captured the brig Joseph "by authority of the Confederate States." A vessel flying English colors was allowed to pass unmolested, since the Savannah's commission extended only to United States vessels.

Later that day, after placing a prize crew aboard the Joseph and standing off from her a little, the Savannah noted an unidentified vessel on the horizon, which soon proved to be the U.S. Navy brig Perry, part of the West India
Blockading Squadron. The log of the Perry records what happened:

"Log of the United States Brig 'Perry' Remarks this 3d day of June 1861.

"From 4 to 6 [PM]: At 4 discovered a brig [Joseph] & schooner [Savannah] forward of lee beam, schooner a mile astern of brig. At 4.40 the movements of the schooner being suspicious, gave chase to her. At 5 saw that the schooner had a gun. At 5.20 went to quarters & cleared the vessel for action. Hoisted our colors.

"From 6 to 8: At 6.10 the schooner hoisted colors & kept them up for only a moment but we could not make them out. At 7.15 fired a shot ahead of the schooner but she showed no colors. At 7.50 it being quite dark & the brig out of sight opened fire on the schooner with Port Battery — which was returned by the schooner. Several of her shot passed over us.

"From 8 to midt.: At 8.10 the schooner ceased firing and we lost sight of her for a moment. It proved that she had lowered her sails to show her submission. . . ."[5]


Journey Northward

The Perry took the men of the Savannah aboard as prisoners and put all but the officers in irons.

With the Savannah following behind with a small crew from the Perry aboard, the two vessels set out on a northwesterly course upon which they rendezvoused with the U.S.S. Minnesota, the flagship of the commander of the Atlantic Blockading Squadron, Flag-Officer Silas Stringham. The Perry transferred the prisoners to the Minnesota and sailed for her assigned blockading station in Florida.[6]

Commodore Stringham towed the Savannah before Charleston harbor to show her capture and then proceeded to Hampton Roads, near Norfolk. The Savannah was sent on to New York as a prize, arriving there on June 15.[7] She was condemned by order of District Judge Samuel Rossiter Betts ten days afterwards and sold for twelve hundred dollars.[8]
On June 23, the prisoners were ordered transferred to the U.S.S. Harriet Lane, a revenue cutter which had been part of the fleet to relieve Fort Sumter and which was returning to New York for repair of her engines and battle damage.[9]
The Savannah privateers arrived in New York on June 25 and were led in chains, amid excited crowds, to the Marshal's Office and then to the City Prison, even then called the Tombs. The first mate of the Savannah, John Harleston, a young man of an old Charleston family, described the accommodations in his prison journal:

"[We] were all thrown into cells 6 feet by 9 and treated as criminals of the worst description. The cell occupied by Capt. Baker and myself was No. 72 on the 2d tier, I never shall forget it, it was filthy beyond description, was filled with vermin. After being in there three days we discovered we were covered with lice and the bedbugs, fleas, etc. nearly drove us crazy . . . The cells were lighted by a narrow slit just under the ceiling... it is dark in here by four o'clock. We could see nothing outside, only a narrow strip of sky. The fare of the prison is very bad, just enough to keep body and soul together: meat and soup (so called) twice a week, bread and coffee two days (coffee made out of beans and sweetened with molasses) and mush and molasses the balance of the time, and often so dirty and disgusting that your stomach refused it."

Harleston continues:

"Within two weeks after our arrival we were taken up four times before the U.S. Commissioner for examination and sent back every time without any examination - Every time we were carried up we were handcuffed together and dragged through the streets, a show for the populace, who heaped abuse on us of every description. . . . I held up my head, looked everyone in the eyes, and marched along as proudly as if it was an honor. I never felt afraid. To say that I did not feel anger when I was manacled and dragged through the streets would be untrue. I felt it, and feel it yet, and hope to live to repay it."[10]


Jefferson Davis' Letter

Two weeks after the prisoners' arrival in New York, Jefferson Davis intervened with a letter personally addressed to Abraham Lincoln.

Richmond, July 6, 1861.

To Abraham Lincoln, President and Commander in Chief of the Army and Navy of the United States.

Sir: Having learned that the schooner Savannah, a private armed vessel in the service, and sailing under a commission issued by authority of the Confederate States of America, had been captured by one of the vessels forming the blockading squadron off Charleston harbor, I directed a proposition to be made to the officer commanding that squadron for an exchange of the officers and crew of the Savannah for prisoners of war held by this Government "according to number and rank." To this proposition, made on the 19th ult., Captain Mercer, the officer in command of the blockading squadron, made answer on the same day that "the prisoners (referred to) are not on board of any of the vessels under my command."

It now appears by statements made without contradiction in newspapers published in New York that the prisoners above mentioned were conveyed to that city, and have there been treated not as prisoners of war, but as criminals; that they have been put in irons, confined in jail, brought before the courts of justice on charges of piracy and treason, and it is even rumored that they have been actually convicted of the offenses charged, for no other reason than that they bore arms in defense of the rights of this Government and under the authority of its commission.

* * *

A just regard to humanity and to the honor of this Government now requires me to State explicitly that, painful as will be the necessity, this Government will deal out to the prisoners held by it the same treatment and the same fate as shall be experienced by those captured on the Savannah, and if driven to the terrible necessity of retaliation by your execution of any of the officers or the crew of the Savannah, that retaliation will be extended so far as shall be requisite to secure the abandonment of a practice unknown to the warfare of civilized man, and so barbarous as to disgrace the nation which shall be guilty of inaugurating it.

With this view, and because it may not have reached you, I now renew the proposition made to the commander of the blockading squadron to exchange for the prisoners taken on the Savannah, an equal number of those now held by us, according to rank. I am yours, etc.,

JEFFERSON DAVIS,

President and Commander in Chief of the Army and Navy of the Confederate States.[11]

Evidently Davis was deadly serious. Mary Chesnut's "diary" records: "The men are picked out—those they mean to hang if a hair of the heads of our men captured in the Savannah is touched."[12]

Davis' letter was sent northwards in the custody of Col. Thomas H. Taylor, C.S.A. Escorted to the Washington headquarters of Lieutenant General Winfield Scott, "old fuss and feathers," in his last days as general-in-chief of the Army, Colonel Taylor was given a full-dress champagne reception by the General, who dispatched the letter on to the White House.[13]


Indictment

President Lincoln never answered Davis' letter. Instead, on July 16, 1861, the Savannah privateers were charged in a nine-count indictment with piracy in the capture of the Joseph; conviction on any count carried a mandatory death penalty The next day the prisoners were brought to the United States Circuit Court for the Southern District of New York before the Honorable William D. Shipman, United States District Judge for the District of Connecticut, sitting by designation.[14] They were there attended by a distinguished array of counsel including:

(1) Daniel Lord, Jr., founder of Lord, Day & Lord, appearing for John Harleston, the first mate, whose father had been Lord's classmate at Yale;

(2) Algernon S. Sullivan, founder of Sullivan & Cromwell, retained by the Confederate government to represent all the defendants and also counsel for other privateers who arrived in New York as prisoners;

(3) James T. Brady, the leading criminal lawyer of the time in New York and former District Attorney and Corporation Counsel, brought into the case by Sullivan to represent T. Harrison Baker, the Captain of the Savannah, and afterwards one of the counsel for Jefferson Davis in his abortive prosecution for treason in 1866 in the United States Circuit Court in Richmond.[15]

The Government was represented by E. Delafield Smith, the United States District Attorney, sometime professor of law at the City University and later Corporation Counsel.[16]

John Harleston's memoir of his trial describes Smith as "a good looking man, about forty [Smith was actually thirty-five], and smart." Of the others, he says, "Mr. Daniel Lord . . . was an old gentleman, of seventy years, I suppose. He was a small, thin man. He ranked as one of the heads of the New York bar, a first-class lawyer, respected by all for his sterling honesty and truthfulness. . . . James T. Brady, at that time New York's most celebrated criminal lawyer . . . was an Irishman... of medium height, square shoulders, a big head and plenty of brains.... Algernon Sullivan ... a native of Ohio... was a tall, thin, distinguished looking man, a fine lawyer and an eloquent speaker."[17]

The proceedings on the 17th were anticlimactic. The arraignment was adjourned to July 23 after some wrangling about when the case would be tried, in light of the injury, "by being run away with by a horse," of the Circuit Justice, Samuel Nelson, whose presence at trial defense counsel strenuously demanded.

On the 23rd, after the prisoners had pleaded not guilty, Smith tried to force the case to trial on July 31, "that an example may be set to those who pursue [this] . . . species of marauding. . . ." Defense counsel insisted that the issues were too complex and that evidence required for the defense had to be obtained in the South. Judge Shipman refused the Government's application, pointing out that:

"In capital cases, it has been a rule usually adhered to in the United States Circuit Courts (which are so constituted by the Act of Congress that two Judges are authorized to sit) to have, if applied for, a full Court, so that the defendant might have the benefit, if I may so speak, of the chance of a division of opinion - For such division of opinion constitutes the only ground upon which the case can be removed to a higher Court for revision,"[18]

Due to the incapacity of Justice Nelson and his commitments in other Districts, the case was set for trial in late October, when the Justice was expected to be present.


Preparing the Defense

The defense to the Government's seemingly airtight case was conceived before the Savannah ever set sail. Under date of May 21, 1861, Daniel Lord, Jr., circulated a six-page printed opinion to his commercial clients, many of them involved in international trade, styled "The Legal Effect of the Secession Troubles on the Commercial Relations of The Country."[19] While questioning the lawfulness of the blockade in the absence of a declaration of war by Congress, he had no doubt that citizens of the seceded states who actively participated in the war against the United States were guilty of treason. This opinion applied as well to privateering:

"VIII.—It is proper next to consider the subject of privateering commissions issued by the Secession States. They not being, in the judgment of the United States, independent States, nor authorized to make war, all such commissions must be held void by them. No captures under them could change the property of the original owners, nor protect it in the hands of purchasers, nor exempt either those who made the capture or who received the prizes from being held accountable, if ever caught. Whether it would be deemed piracy rests on considerations somewhat varying from those commonly supposed. The color of authority and the publicity attendant on a capture with the object of condemnation by a court, acting as such, might relieve the offense from its character of piracy, were it not that such acts are treasons; and every crime which if committed on land is punishable with death, is, when committed at sea, piracy. (Act of 30th April, 1790, §8.) And the naval forces and merchants ships are authorized to capture such pirates, and to have the property condemned to their use, (Act of 3d March, 1819.)"

Faithful to President Lincoln's proclamation, the indictment had missed this theory. Defense counsel would successfully keep from the jury proof that the Savannah had fired on the Perry because, although "this indictment might have been framed in a different way, under the 8th Section of the Act of 1790, with a view to proving acts of treason, if you please, which are made piracy, as a capital offense, by that act," the charges were strictly limited to the piratical seizure of the Joseph; counsel, it was said, were not prepared to meet such "a new and substantial charge."

Thus, with the indictment in hand and Mr. Lord's view evidently in mind, defense counsel set about finding proof of [t]he color of authority and the publicity attendant on a capture with the object of condemnation by a court On July 19, three days after the indictment was returned, Algernon Sullivan wrote to J. R. Tucker, the Attorney General of Virginia, for this purpose:

"As the Confederate States of America is a government not yet acknowledged we must by parol evidence, authenticate the Letter of Masque and the government seal. And also by parol prove the acts of secession, the formation of the Confederate Government, the adherence of South Carolina to the C.S.A. and the enactment of the law for the recognition of the war & authorizing letters of Masque, etc. I will have to obtain this evidence through the aid of yourself, or of some one connected with the Departments at Richmond.

"I think it will be desirable also, in order to prove compliance with the laws of war & Privateering, by the defts, to show that after capture, the 'Joseph' was sent into port as a prize & regularly libeled & condemned by the Admiralty court. It will be well to exclude any idea that the acts of the Privateers were characterized animo furandi.

"We will try the case before Judge Nelson, who has intimated to us that he will hold the next Circuit in person. This is favorable to us."

Sullivan also noted that, insofar as the indictment charged that the privateers were citizens of the United States, he would argue "openly . . . the broad ground that Capt. Baker & his crew, were not 'citizens' of the United States on the 3d of June, 1861. . . ."[20]

Although the mails between the United States and the Confederacy had been cut off, Sullivan's letter was soon in the hands of the Confederate government and more particularly those of its Attorney General, Judah P. Benjamin, an immigrant from St. Croix and former United States Senator, himself a brilliant trial lawyer who, upon the fall of Richmond in 1865, would join and, later, lead the English bar as Queen's Counsel.[21] Benjamin commented:

"I would cheerfully give any aid in my power to the counsel charged with the defense of the Capt. and crew of the Savannah, but I am totally at a loss to see what can be done here. The Counsel desires parol proof of the actions of this Government. We can send no witnesses to New York. We can furnish no such proof in time of war.

"The question appears to me to be much more of a political than of a legal character, If the U. S -refuse to consider this government is even belligerent, I do not see what effect the offer of parol proof could have. If we be recognized as belligerent, the action of the public authorities of a belligerent nation can in no manner be authenticated so conclusively as by its seal. If the signatures of our public men are to be proved, hundreds of persons in New York can prove them.
"However as this may be, I am certain that we have no means that I am aware of, by which we can furnish parol proof as desired by Mr. Sullivan in his letter, which I return."[22]


Arrest of Algernon S. Sullivan

On September 7 Secretary of State William H. Seward telegraphed the Superintendent of Police in New York City to "arrest Algernon S. Sullivan, No. 59 William Street, and deliver him to Colonel Martin Burke, Fort Lafayette."[23] Three days later Seward dispatched a stinging reply to a letter of protest he had received from Daniel Lord, Jr.:

"I have received your letter of yesterday relating to Algernon S. Sullivan, a political prisoner now in custody at Fort Lafayette. This Department is possessed of treasonable correspondence of that person which no rights, or privileges of a lawyer or counsel can justify or excuse. The public safety will not admit of his being discharged."[24]

Mr. Sullivan's dossier in the secret Civil War archives of the State Department shows that his defense of the Savannah privateers was the cause for his arrest:

"Sullivan was counsel for Capt. Baker of the rebel Privateer 'Savannah.' An Intercepted letter from him dated August 23, 1861, and addressed to 'Hon. R.M.T Hunter, Secretary of State, C.S.A.' asks for numerous papers, to be used in said Baker's defense, and he says, 'I desire not to evade the high ground that the Confederate States are sovereign and that her citizens are not citizens of the United States."[25]

While Mr. Sullivan's intercepted letter has not been found, his surviving correspondence contains indiscrete expressions of sympathy with the Confederacy. His earlier quoted letter to the Attorney General of Virginia refers to his "painful suspense" and "hope and anxiety" over the outcome of the battle at Manassas Junction, which was to be won by the Confederacy; it is unlikely that his "hope" was for a Union victory John Harleston's memoir explains Mr. Sullivan's motivation:

"His wife was a Virginia woman who influenced him. She was a genuine Confederate, very pretty and very smart. When we talked together about the South and about the Yankees her eyes just blazed and neither of us could talk fast enough." [26]

Fort Lafayette, Mr. Sullivan's new abode, was a grim fortress standing out in the Narrows in New York harbor on a rocky shoal which now supports a pontoon of the Verrazano bridge. It housed prisoners of war and Mr. Seward's political prisoners, persons arrested without warrant and held at the pleasure of the Secretary of State. Conditions there were little better than at the Tombs; the drinking water was notably foul. Not all of its inmates left for freedom; referring to one such, Col. Burke would say at the trial of the Lincoln conspirators in 1865: "I had charge of him and had him hung."[27]


A Different Approach

Even while making use of his Southern connection, Mr. Sullivan (and the other counsel) pressed the Government of the United States for assistance. On September 7, evidently just prior to his arrest, Mr. Sullivan joined Messrs. Lord and Brady in a letter to U.S. District Attorney Delafield Smith, asking that he support their request that the United States government provide "the necessary facilities" for obtaining authenticated copies of the Constitution and relevant laws of the Confederate States and the acts of the Confederate States Prize Court in Charleston, as well as safe conduct for witnesses.[28] After a further reminder, Smith responded politely on the 20th that counsel should write directly to Washington.[29]

In default of Mr. Smith's reply, defense counsel had on September 18th already written to Attorney General Edward Bates, enclosing their correspondence with Smith and requesting "permission, by proper safe conducts, for some person to be approved by the Government, to proceed to the South to obtain the needed documents. . . ."[30] The Attorney General responded to Mr. Lord alone on October 8th, apologizing for the delay and advising that he did not yet know "'the pleasure of the Government."' Pointing out that the question of the national existence of the Confederacy was not "provable [by] documentary evidence" and that it was—as his counterpart, Judah P. Benjamin had also thought—a "political question," which "both the Congress & the President . . . have determined against the nationality of the C .S .A.," the Attorney General advised he would "again propound the matter to the President and see whether or no he has any directions to give. . . ."[31]

Four days later, Attorney General Bates wrote that he had spoken to Mr. Lincoln and that "[t]he President, concurring, in the main with my views, as briefly indicated in my note to Mr. Lord, authorises me to answer at my discretion The answer was: "[T]he Government declines to take any active part, in aid of the accused from (sic) the procurement of such testimony.”[32]


The Trial

On October 23, 1861, the trial opened in the United States Circuit Court before Justice Samuel Nelson and District Judge Shipman. Judge Shipman, who had conducted the arraignment in July, was then forty-three, for seven years United States District Attorney for Connecticut until his elevation to the bench in 1860. He would later write of his experience:

"It was my misfortune to become a Federal Judge just before the war broke out and to be transferred to the Court in New York where I was confronted with a series of new questions for which there was no precedent."[33]

His senior colleague, Samuel Nelson, three weeks short of his sixty-ninth birthday, was in the fortieth year of a judicial career which spanned half a century After twenty-two years of service in the New York courts, the last eight as Chief Justice of the New York Supreme Court, Justice Nelson had been appointed to the Supreme Court of the United States in 1845, remaining until just before his eightieth birthday in l872.[34] John Harleston speaks briefly of them:

"Judge Nelson was a large, fine-looking old man with a profusion of Grey hair and whiskers. He had a good face, and though against us, was, I think, fair. Judge Shipman was a young man of rather small stature. He was second to Judge Nelson and was only consulted when points in dispute arose."[35]

Algernon S. Sullivan had rejoined Daniel Lord and the others. On October 18, Secretary Seward had ordered Col. Burke to release him "on taking the oath of allegiance, and engaging on oath that he will not do any act hostile or injurious to the United States nor enter any of the States in insurrection . . . nor be engaged in any treasonable correspondence with any person, whomsoever, during the present hostilities. . . ."[36] Sullivan was released, after taking the oath, on October 21, two days before trial.

There was a new face in the courtroom, that of William M. Evarts. U. S. District Attorney Smith already had the assistance of Assistant U.S. District Attorney Ethan Allen, a descendant of the hero of the Revolution, and Samuel Blatchford, compiler of Blatchford's Reports in the days before West Publishing Co.'s National Reporter, in 1867 appointed United States District Judge for the Southern District of New York, in 1878 United States Circuit Judge, and in 1882, raised to an Associate Justice of the Supreme Court of the United States.[37] But Smith was uneasy that the prosecution was overmatched. On October 10, 1861, he wrote to Attorney Bates that:

"In view of the magnitude of the cases of the pirates of the 'Savannah' and of other vessels; in consideration, also, of the extraordinary array of counsel retained for the defence, and the novelty of some of the questions which will be raised therein; I respectfully ask authority to associate Mr. William M. Evarts with me in the trial and argument of those cases."[38]

Permission was granted but Evarts was not in New York to accept the retainer until October22, the day before trial. The foremost trial lawyer of his day, later counsel for President Johnson in the impeachment proceedings, Attorney General of the United States, Secretary of State, and, at the end of his life, United States Senator from New York, even Evarts would write Attorney General Bates that he had been opposed by "the most numerous array of able counsel that I have ever known combined in any cause. . . ."[39]

John Harleston leaves this account of the opening of the trial:

"On our first appearance in the court room we were seated together—all handcuffed. When court had opened Judge Nelson said that if any of our counsel desired their clients to be seated near them they could do so. Mr. Daniel Lord got up and said: 'May it please the court, I did desire and did expect to have my client. John Harleston. sit alongside of me, but I observe he is heavily ironed and must be a desperate, dangerous character, and my life might be endangered by having him near me; or even your Honor might be in danger of your life,' Judge Nelson, who had not noticed that we were in irons, turned quickly and looked at us. His face became red and he said: 'Mr. Marshal, what is the meaning of this? Take the irons off these men at once and never keep them in that condition again in this court. Outside you do as you see fit but not in here.' He then turned and looking at Mr. Lord, said: 'Brother Lord, I think we can risk it.' The irons came off,"[40]

The trial required eight days, but the evidence offered on each side took little time to put in. The Government nolled the indictment as to one of the Savannah's crew and put him on the stand to testify to her fitting out, her capture of the Joseph and her capture by the Perry. There also appeared the builder of the Joseph and a part owner of her—to prove her a United States vessel, her Captain and mate at the time of capture, Commodore Stringham, two officers from the Harriet Lane, the United States Commissioner in New York who had issued the warrants of arrest, and Assistant U. S. District Attorney Allen—to prove admissions of identity and citizenship. The defense recalled one of the Harriet Lane's officers briefly as its only live witness; the main evidence was the long-sought documents proving the establishment of the Confederate government, now published in Putnam's Rebellion Record, the letter of marque found on the Savannah, the Act of May 6, 1861 of the Confederate Congress which authorized its issuance, and an advertisement from the Charleston Daily Courier of the libeling and sale of the Joseph by the Admiralty Court in Charleston.

The entire balance of the trial, in a packed courtroom, was taken up by lengthy arguments to the Court or to the jury, although to John Harleston, "[o]ne day was like another—lawyers wrangling and making speeches." The major summations were by Mr. Brady for the defendants—certainly the most powerful address of the trial—and Mr. Evarts for the Government; both traveled well outside the record and also instructed the jury on the law. In brief, counsel for the defense contended variously that the seceding states had good reason for their conduct—Northern nullification of the Fugitive Slave Law—and had done nothing more than the American colonies had in declaring independence from England; that the Confederacy was a government defacto and perhaps, under the Constitution, de jure; that various bits of evidence—flags of truce, surrenders, exchanges of prisoners, and communications—sufficiently proved that the United States had recognized the Confederacy, and its letter of marque thus constituted a complete defense to a charge of piracy; that the piracy statutes were not intended to, and could not by their terms, apply here, and that, apart from this, piracy required animo furandi—intent to steal—which the defendants' commission and conduct showed they lacked. Evarts ably met each of these points, decrying privateering as barbaric, asserting the right of the United States to protect its citizens and commerce and to enforce its laws in its courts against those in unjustified rebellion against its sovereignty.

After the briefest of instructions from Justice Nelson,[41] the jury retired. The Marshal had already ordered death cells for the prisoners set aside at the Tombs, but, after deliberations over two days and a return for supplemental instructions, the jury could not agree and were discharged.[42] The Government's application for an immediate retrial was refused by Justice Nelson. John Harleston reports the trial's conclusion:

"[T]he crowd rushed for the doors. The judges retired and I saw United States Marshal Murray standing in a doorway twenty or thirty feet away His face was red and his sharp eyes snapping. He had a silk hat in his hand. He shouted to his deputies to take us back, and then throwing his hat on the floor stamped on it in a paroxysm of rage."[43]


Why the Jury Hung

In the midst of a civil war, having caught the defendants red-handed and represented by the ablest advocate of his day, the Government was unable to obtain convictions of the privateers from jurymen who must have been drawn from the mercantile classes privateering threatened. To be sure, the privateers were also represented by great counsel who made able and appealing arguments to the jury (with the exception of Mr. Mayer, who assured the jury that his arguments for his German crew member client were made "on my own responsibility" and that his client's view was "mitgegangen, mitgefangen, mitgehangen [gone along, caught along, hanged along]"). But a fair reading of the transcript brings the apparent causes down to one—the jury instructions of Justice Nelson.

While seemingly a pro-Government charge, its emphasis and ambiguity must have favored the defense. First, Justice Nelson instructed the jury that the evidence established that the privateers were not guilty of piracy as the offense is defined by the "common law of nations," precisely what the defense had argued. While the Justice went on to say that the charge was laid under the Act of 1820, and not the law of nations, the jury must have realized that the Government was asking them for the deaths of men who the Court said in substance were innocent in the eyes of the world. The unpleasantness of the jury's position can only have been enhanced by Justice Nelson's further expression that "if you are satisfied, upon the evidence, that the prisoners have been guilty of this statute offense of robbery on the high seas, it is your duty to convict them, though it may fall short of the offense as known to the law of nations."

Second, the defense had heavily relied on decisions that made it an element of piracy that the accused have "animo furandi," literally, intent to steal, and had followed Daniel Lord's theory that no such intent could be brought home to men, sailing under a letter of marque issued in wartime by a defacto government, who seize an enemy vessel for condemnation in a prize court. On this point Justice Nelson's charge was again favorable to the defense, for he defined animo furandi as "an intent of gaining by another's loss, or to despoil another of his goods, lucri causa, for the sake of gain." While the defendants had intended to, and did, deprive the owners of the Joseph and its cargo of their property permanently, the instructions left open for favorable consideration by the jury the contention that the defendants had acted as combatants, rather than for personal gain.

Finally, on the Confederacy's letter of marque as a complete defense to the charge of piracy, Justice Nelson charged that:
"[A]s the Confederate States must first be recognized by the political departments of the mother Government, namely, the legislative and executive departments, in order to be recognized by the courts of the country, we must look to the acts of those departments as evidence of the fact."

Professor Swisher criticizes Justice Nelson because he did not go on to say that "such recognition had not taken place" or negate the claim of the defense that "in its method of conducting the war as a war, by taking prisoners of war . . . , by its land operations, by the blockade of Southern ports, and by other acts, the government had... in effect given the necessary recognition."[44]

That Justice Nelson acted deliberately must be concluded from the fact that he had before him the charge of Justice Grier given at the trial of a captured member of a prize crew from the privateer Jeff Davis. That trial had opened in the Circuit Court in Philadelphia the day before that of the Savannah privateers did in New York and had resulted in a guilty verdict on October 25, the third day of the Savannah trial.[45] On the 26th, E. Delafield Smith had Justice Grier's instructions in hand by telegraph and read them out in the courtroom.

Justice Grier, Justice Nelson's junior on the Supreme Court by only a year, treated the statutory offense of piracy not as something less than the offense under the law of nations but rather as its "municipal" equivalent. He defined animo furandi merely as the purpose of "appropriating the thing taken." Most significantly, Justice Grier dealt with the status of the Confederacy as Professor Swisher thought Justice Nelson should have—by following the instruction that the courts were bound by the position of the legislative and executive departments with the statement that: "The fact that a civil war exists for the purpose of suppressing a rebellion, is conclusive evidence that the Government of the United States refuses to acknowledge their [the Confederacy's] right to be considered . . . [a State]." (emphasis supplied).[46]
No contemporary document nor historical study has been found to explain why Justice Nelson charged the jury as he did. Perhaps he silently agreed with James Brady's comment when Justice Grier's charge was read:

"I do not see that there was anything left for the Jury. Judge Grier decided that case, which undoubtedly he could do, for he is a very able man."

Perhaps he was influenced by political beliefs, for Justice Nelson had been part of the majority in the Dred Scott decision, had been mentioned as a possible candidate of the Democratic party to oppose Abraham Lincoln in the 1860 election,[47] and would lead a minority which included Chief Justice Taney in dissent from Justice Grier's majority opinion, sustaining the legality of the blockade before Congress declared war on July 13, 1861, in The Prize Cases, 2 Black 635 (1863). Against this may be weighed the fact that the prosecution of the privateers was Seward's brain-child, and that Gideon Welles, Lincoln's Secretary of the Navy and no friend of Seward's, would record in his diary at a later date Seward's repeated claim that he "controlled" Justice Nelson.[48]

While it is by no means certain, undisputed historical facts do suggest another reason why Justice Nelson would not foreclose the issue whether acts of the executive department "or of the president" constituted effective recognition of the Confederacy. The reason was that Justice Nelson knew better.


The Negotiations with the Confederate Commissioners

In 1865 John A. Campbell was in jail in Fort Pulaski, Georgia. Arrested under a warrant issued by General Grant on May 7, 1865, for him and for R.M.T. Hunter, Algernon Sullivan's erstwhile correspondent,[49] Campbell was held as a participant in the conspiracy to assassinate Abraham Lincoln, with whom he had met to negotiate terms of peace in Richmond after its fall in early April, 1865, days before the President was killed.[50]

In March, 1861, however, Campbell was, and since 1853 had been, an Associate Justice of the Supreme Court of the United States. Although Alabama, his native state, had left the Union two months earlier, Campbell had remained on the Court.

Abraham Lincoln had been inaugurated on March 4, 1861, and for forty days thereafter the future of the country hung in the balance. Some, but not all, the states which would make up the Confederacy had seceded. Even in those states, a few military outposts still held on, notably Fort Sumter. What would President Lincoln do, and particularly about Fort Sumter?

Into this uncertainty Jefferson Davis thrust three Commissioners, whose stated purpose in coming to Washington was to negotiate a peaceful resolution of the differences between the United States and the Confederacy, including the evacuation of Fort Sumter by Union forces.

The Commissioners' first overture to meet with Seward, presented on March 11 through the then United States Senator from Virginia, R.M.T. Hunter, was rebuffed the next day The Commissioners delivered a formal note to the State Department on March 13, but no answer had been received when, according to his later account, Justice Campbell ran into one of his colleagues on Pennsylvania Avenue on March 15.

The colleague was Justice Samuel Nelson, who had just come from a meeting with Seward, whom he had endeavored to persuade against a course of violent resistance to the Confederate States. After talking themselves, the two Justices returned to Seward's office and after some conversation became intermediaries between the State Department and the Confederate Commissioners. Justice Campbell apparently would meet alone with the Commissioners, one of whom he knew, but Justice Nelson joined his early meetings with Seward. According to the Commissioners' report to their Secretary of State in late March, Campbell's meetings with Seward were:

"held in the presence of Judge Nelson also of the Supreme Court Bench, who it seems attends in person with Judge Campbell for the latter's protection against the treachery of Secretary Seward & such other members of the Cabinet as he sees."[51]

At their initial meeting on March 15th, Seward told the Justices that if the Commissioners did not immediately press their demand for formal negotiation with the new administration, the evacuation of Fort Sumter could be expected within five days. Campbell immediately reported this to the Commissioners, who agreed to wait. But the Fort was not evacuated, and two further meetings were held by the Justices with Seward, who put the delay off on Lincoln's eccentricities.

By March 30, Fort Sumter had still not been evacuated and Campbell returned to Seward, this time alone, since Justice Nelson had left Washington. Seward promised to answer on April 1 and at another meeting on that date delivered a message which,. according to Campbell's later account, Seward said came from President Lincoln. Seward told Campbell that Lincoln might wish to resupply Sumter, a possibility Seward pooh-poohed, but that this would not be undertaken without notice to the Governor of South Carolina. The Commissioners continued to hold back.

By April 5th, however, President Lincoln had secretly ordered a fleet to Charleston to supply Fort Sumter, with instructions to arrive by the morning of the 11th. Rumors of troop and vessel movements reached the Commissioners, and Campbell wrote to Seward on April 7, expressing his concern. Seward responded, "Faith kept as to Sumter, wait and see." This time, however, the Commissioners decided to press the demands of their March 12 note, and on April 8 were handed Seward's reply, dated March 15, refusing to see them. "Faith kept as to Sumter" proved to mean not that it would be surrendered, but that, as Seward had said on April 1, the Governor of South Carolina would be given prior notice of an attempt to resupply it; that notice was given on April 8 as well.

Three and a half days later, the fighting began. On April 17 Virginia seceded. Having written a lengthy account of his activities to Justice Nelson on April 15,[52] Campbell resigned as an Associate Justice of the Supreme Court on April 25 and headed South. Three weeks later, the Savannah received her commission.


Suppression of Evidence?

The evidence of Seward's negotiation with the Confederate Commissioners through Justices Campbell and Nelson, despite its deliberately unofficial character, was far more powerful proof of effective recognition of the Confederacy by the United States than the scattered recognitions of flags of truce and the form of surrender documents relied on by the defense at trial. Moreover, President Lincoln's involvement in these negotiations, and specifically the statement by Campbell that Seward spoke in President Lincoln's name on April 1, is confirmed in the biography of Lincoln by his long-time private secretary, John G. Nicolay, who quotes the President as saying that he "'told Mr. Seward he might say to Justice Campbell that I should not attempt to provision the fort without giving them notice.'"[53]

It seems at least arguable that Justice Nelson should have tendered himself as a defense witness if defense counsel were unaware of his personal knowledge of the negotiations. But the evidence is strong that defense counsel were aware. First, the whole of the Confederate government certainly knew, since on May 8, 1861 Jefferson Davis had given a full report of the negotiations to the Confederate Congress, including copies of Campbell's correspondence with Seward, which specifically described Justice Nelson's involvement.[54] Given Sullivan's lines of communication with the leaders of the Confederate government, he had every means of knowing what it knew. Secondly, and still more compelling, extracts of Campbell's correspondence with Seward, including portions naming Justice Nelson and describing his activities, were published in the New York Evening Post on May 17, 1861, along with an editorial characterizing Campbell as a "tool of rebels," traitor and spy.

Why did the defense not call Justice Nelson? No record of the reason remains. But it may be suggested that the intention of defense counsel to preserve the possibility of review in the Supreme Court, strongly maintained on July 17 and relied on by Judge Shipman on July 23, precluded their summoning Justice Nelson from the bench to the witness stand and leaving the trial to Judge Shipman alone.


Epilogue

The Savannah privateers were never retried, although their continued imprisonment in the Tombs cost some of their number either sanity or life itself. Jefferson Davis' threats of retaliation has made the conviction of the Jeff. Davis privateers in Philadelphia an embarrassment to the United States government. Attorney General Bates' diary records indignantly that on February 5, 1862, he received a letter from the Assistant U. S. District Attorney in Philadelphia from which he learned for the first time "that the Marshal had recd. a letter from the Secy. of State directing him to transfer all the prisoners held for piracy—several of whom are indicted and one, at least, convicted—to Fort Lafayette!" (emphasis in original).[55] John Harleston's prison journal for February 2, 1862 records:

"Tomorrow we go to Fort Lafayette, and as prisoners of War. Hurrah Pirates no more." (emphasis in original).[56]
Later, they were exchanged and returned home.

Judge Shipman would resign and go into practice with one of the defense lawyers. John Harleston enlisted in the Confederate Army, fought bravely and was thrice wounded. T. Harrison Baker got himself commissioned Captain of another privateering vessel, this time bigger and with more than one gun.

In 1891 William M. Evarts, then a Senator from New York, old and nearly blind, secured the passage of the so-called “Evarts Act,” under which the United States Circuit Courts of Appeals were established. Later that year, his co-counsel from the Savannah trial , Samuel Blatchford, now also an old man and Circuit Justice for the Second Circuit , declared the new Court open, inaugurating the federal court system as we know it today.[57]


Endnotes

1. The indictment and the proceedings at arraignment and trial are reported in Warburton, Trial of the Officers and Crew of the Privateer Savannah, On the Charge of Piracy (1862); much of the discussion infra relies upon this volume without further reference to it. With the exception of one page of docket entries, neither the original court file nor the trial exhibits can be found.
2. House of Lords, May 10 and 16, 1861.
3. 1 J. D. Richardson, Messages and Papers of Jefferson Davis and the Confederacy 104 (A. Nevins ed. 1966) (hereafter "Messages and Papers of the Confederacy").
4. Id. at 102.
5. National Archives, Washington, D.C.
6. Official Records of the Union and Confederate Navies in the War of Rebellion, Series 1--Volume 5, 692 (1897) (hereafter "Official Records").
7. New York Times, June 16, 1861, p. 1.
8. United States v. Schooner Savannah, No. 16-350 (S.D.N.Y. 1861).
9. Official Records at 736.
10. Unpublished; courtesy of the family of John Harleston, Charleston, S.C. Some punctuation has been supplied for clarity.
11. Lincoln Papers, Library of Congress, Washington, D.C.; reprinted in 1 Messages and Papers of the Confederacy 115.
12. C. V. Woodward, Mary Chesnut's Civil War 236 (1981). The text of the order appears in J. T. Sharf, History of the Confederate States Navy, 76 n. 1 (1887).
13. W. M. Robinson, Jr., The Confederate Privateers 134 n. 2 (1928).
14. The United States Circuit Courts were established by the Judiciary Act of 1789 and originally required the presence of two Justices of the Supreme Court and the District Judge for the District in and for which the Circuit Court was held. The required number of Supreme Court Justices was reduced to one in 1802, and by 1861 the District Judge could hold the Circuit Court alone.
The Circuit Court combined the jurisdiction today divided between the United States Court of Appeals and the United States District Court. Although the District Courts were also created in 1789, their jurisdiction was limited to admiralty, bankruptcy and minor crimes. Apart from hearing appeals from the District Court, the Circuit Court served principally as the United States court of general original jurisdiction. There was no United States Court of Appeals.
Nor were there, in 1861, Circuit Judges. The Circuit Court was presided over by one of the Justices of the Supreme Court allotted for that purpose, escorted by the District Judge who was, except when a dispute arose, a supernumerary. But for the brief existence of the federalist "midnight" Circuit Judges in 1801, and an early experiment in California which ended in the appointment of Justice Stephen J. Field as the first (and only) tenth Justice of the Supreme Court, there were no Circuit Judges until the office was created in 1869 and the circuit duties of the Justices of the Supreme Court reduced, through not eliminated.
It was not until 1891 that Congress created the Circuit Court of Appeals, taking away the Circuit Court's appellate jurisdiction and the first loyalty of its judges. Presided over by District Judges, the United States Circuit Courts lingered on until, finally, on January 1, 1912, they adjourned forever, their remaining jurisdiction transferred to the District Courts.
A careful explanation of the evolution of the United States Circuit and District Courts may be found in the unsurpassed monograph of the late United States Circuit Judge Charles Merrill Hough, The United States District Court for the Southern District of New York (1934).
15. 1 History of the Bench and Bar of New York 266 (D. McAdam ed. 1897).
16. Id. at 476.
17. Published in The Sunday News (Charleston, S.C.), February 9, 1919.
18. A judgment of conviction in the Circuit Court could be reviewed in the Supreme Court only upon a certificate of division of the two judges below. If either judge sat alone, there could be no such division and, thus, no appellate review.
19. Lord, Day & Lord Opinion Book, March, 1861--March, 1865.
20. Pickett Papers, Library of Congress, Washington, D.C. (hereafter "Pickett Papers").
21. See generally R. D. Meade, Judah P. Benjamin (1943). For an excellent vignette of Benjamin as a trial lawyer, see E.M. Kahn, "Judah P. Benjamin in California," California Hist. Soc. Quarterly (June 1968), which recounts his appearance as trial counsel in the famous New Almaden mine case in 1860. Benjamin had been commissioned United States District Judge for the Northern District of California in 1850 but had declined to serve.
22. J. P. Benjamin to W. M. Browne, 3 August 1861 (Pickett Papers).
23. National Archives, Washington, D.C.
24. Id.
25. Id.
26. See footnote 17.
27. B. Pitman, The Assassination of President Lincoln and the Trial of the Conspirators 53 (1865; reprinted by the Greenwood Press 1976).
28. National Archives, Washington, D.C.
29. Id.
30. Id.
31. Id.
32. Id.
33. Proceedings December 9, 1929, being on the occasion of the presentation to the United States District Court for the District of Connecticut of a portrait of William Davis Shipman, A Judge of said Court 1860 to 1873, (Library of the Association of the Bar of the City of New York).
34. 1 History of the Bench and Bar of New York 428 (D. McAdam cd. 1897).
35. See footnote 17.
36. National Archives, Washington, D.C.
37. See the Supreme Court Historical Society Quarterly, Vol, IV No. 4 (Summer 1982).
38. National Archives, Washington, D.C.
39. Id.
40. See footnote 17.
41. United States v. Baker, 24 Fed. Cas. 963 (C.C.S.D.N.Y. 1861) (No. 14, 501).
42. Robinson, supra, at 147, reports that the jury stood eight to four for conviction, but no source is shown or has been found for this statement.
43. See footnote 17.
44. C. B. Swisher, The Taney Period 1836-64, in 5 History of the Supreme Court 871 (1974).
45. The Jeff, Davis Piracy Cases--Trial of William Smith for Piracy, as one of the Crew of the Confederate Privateer, The Jeff. Davis (1861).
46. United States v. Smith, 27 Fed. Cas. 1134 (C.C.E.D. Pa. 1861) (No. 16, 318).
47. 3 Diary of George Templeton Strong 33 (1952). In a late entry concerning the 1864 elections, Strong refers to Justice Nelson as "a full-blooded Copperhead." Id. at 475.
48. 3 Diary of Gideon Welles 320 (1911).
49. W. M. Robinson, Jr., Justice In Grey--A History of the Judicial System of the Confederate States of America 593, n. 14 (1941). A copy of Gen. Grant's order of May 7 may be found in the Campbell-Colston Papers, Southern Historical Collection, University of North Carolina Library, Chapel Hill, N.C.
50. Justice Campbell's moving account of his meetings with President Lincoln on April 4 and 5, 1865, may be found in the Campbell-Colston Papers.
51. Report of "Commissioners Crawford, Roman & Forsyth to Secretary of State [Robert Toombs], enclosing notes of Judge Campbell," March 22, 1861 (Pickett Papers).
52. Justice Campbell left several accounts of the negotiations he and Justice Nelson had with Secretary of State Seward. The principal record of the negotiations is Campbell's letter to Seward of April 13, 1861, a copy of which he sent to Justice Nelson with an explanatory cover letter dated April 15, 1861, a copy of which he sent to Justice Nelson with an explanatory cover letter dated April 15, 1861 (New York State Historical Association, Cooperstown, N.Y.). On May 7, 1861, Campbell, by then in Montgomery, transmitted a copy of his April 13 letter to Seward, together with a cover letter containing further information, to Jefferson Davis, who passed them on to the Confederate Congress the next day. 1 Messages and Papers of the Confederacy 82, 93, 97. Prior to leaving Washington, Campbell had also sent a brief and elliptical account of his activities to Justice Clifford under date of April 18, 1861. (Clifford Papers, Maine Historical Society).
After the war Campbell prepared (at least) two additional accounts of the negotiations. One, written in July, 1865 while in captivity at Fort Pulaski, is quoted in H. G. Connor, John Archibald Campbell 122-132 (1920). The second, prepared in 1874, is discussed in 1 Jefferson Davis, The Rise and Fall of the Confederate Government 267-268 (1881). Each of Campbell's post-war statements is remarkably true to his April 13, 1861 letter to Seward. That quoted in Davis's book is notable as containing the first suggestion, ascribed to Justice Nelson by Campbell, that Justice Nelson's opposition to violent resistance to secession was the result of consultations with Chief Justice Taney.
53. 4 J. G. Nicolay and J. Hay, Abraham Lincoln 33 (1890).
54. See footnote 52.
55. The Diary of Edward Bates 23 (1933).
56. See footnote 10.
57. The inspiration for this article, references to some of the original materials cited and a number of insights came from Volume V of History of the Supreme Court of the United States: The Taney Period 1836-64, by the late Carl B. Swisher (1974).