Research trip, part IV: Civil War-era pirates in Mystic

The final broad category of pirate-related documents I looked at in Mystic, CT (home of the way-cool bascule drawbridge seen above) was Civil War-era accounts of privateering and piracy. These mostly pertained to perceived violations of British neutrality during the American Civil War, and all of them were concerned with the bounds of state authority.

English Neutrality: Is the Alabama a British Pirate? (1863)
This pamphlet deals with the case of two Confederate ships, the Oreto (later the Florida) and the Alabama, both of which were built and anchored in Liverpool after Britain had declared its neutrality. However, the author of the pamphlet categorizes the neutrality declaration as an empty -- and in fact counterproductive -- move in terms of non-involvement in American hostilities:

Upon the breaking out of the rebellion, the British government made haste to concede belligerent rights to the insurgents, and to declare its intention to observe strict neutrality. The state of English law was such that this proclamation was entirely uncalled for, as it could neither increase nor decrease legal obligations or penalties; and its only effect was to guarantee to adventurers, who might wish to enlist with the rebellion, that they should thereby undergo no greater risks than the ordinary chances of regular war. The promulgation of the first proposition was generally taken to be, and perhaps was, intended to relieve such persons from the character and ugly responsibility of pirates and freebooters. It became, in fact, an invitation, as it did not, on the other hand, enjoin vigilance upon officials or threaten punishment to offenders.

The question of whether or not these vessels, sailed as they were by almost exclusively British crews for the Confederate side, were pirates is a secondary one to the author of the pamphlet. He is much more concerned with documenting America's superior observance of the principles of neutrality when compared to Britain's allegedly profligate ways:

Thus stands the record of American neutrality. History may be fairly challenged to show another instance of such magnaminity, consistency, and fairness. Should we examine thoroughly the record of Great Britain upon this matter of maritime neutrality, it would be found entirely consistent on one point -- 'Britannia rules the wave.' To express the probable reasons for whatever inconsistencies on other points history might discover, would necessitate harsh allusions to that national greed and arrogance which the traditions of mankind have ascribed to that insular kingdom.

Towards the end of a rather lengthy rant on American superiority, the author does address the question of piracy, as follows, concluding that the question hinges on the status of the Confederacy -- much as Tindall's 1694 analysis of the legal status of sea robbers holding letters of marque from a deposed king, James II, depended on the monarch's sovereign authority. This pamphlet concludes that the Alabama was a pirate, but with little analysis of the Confederacy's sovereignty, other than to make note of its not being recognized by other states:

The English sea-rovers claim, doubtless, to cruise under some kind of commission from the self-styled and unrecognized 'Confederate States.' I do not propose to discuss, with much seriousness, here, a question, which being in this place of little import, may hereafter, in a different discussion, become of the first magnitude; still, I am compelled to say that, by the law and practice of nations, it appears that no commission from an unknown, unrecognized authority can relieve the persons upon those vessels from the character of pirates ...

The author concludes his essay, perhaps predictably by this point, with the following condemnation:

But, whatever may be the correct judgement on this point, one thing is certain, that all the character these vessels possess is British; and that if they are pirates at all, they are BRITISH PIRATES, roaming the seas, with the implied permission, if not actual connivance, of that government ...

Interestingly, one of the exhibit halls within Mystic Seaport itself had a short display on the CSS Alabama, with a sign explaining that "Rather than pirates, most of the Alabama's officers were southern gentlemen and skilled naval officers..." While this line made me laugh aloud, it is interesting that even today, the utter incompatibility of the identities of "pirate" and "gentlemen" remains commonsensical.

United States vs. William Smith on charges of Piracy, Speech of Hon. William D. Kelley (1861)
If the author of the pamphlet on the Alabama was comfortable sidestepping the question of Confederate legitimacy, William D. Kelley clearly felt differently. In his speech of over 20 pages, Kelley devotes considerable time to berating the unconstitutionality, illegitimacy, and general traitorousness of the Confederacy. The case in question involved an American merchant schooner called the Enchantress which was boarded by a ship falsely flying the French flag in 1861. The defendant, William Smith, allegedly participated in capturing the crew and transporting them to Cuba to be sold as slaves, all the while carrying a letter of marque from the Confederate States. Kelley directly speaks to why such a letter does not make Smith a privateer:

But it is said ... that the Southern Confederacy is an existing government, fostering the arts and sciences, administering law, and having its own system of revenue and finance; that foreign nations long since recognized it as a belligerent power, and that its people have been treated as belligerents in our own civil courts; and can it not, you are asked, grant letters of marque? No, gentlemen, if all this be true -- and for argument's sake I admit it all -- it gives no validity to the letter of Mr. Davis. Letters of marque can only be granted by a member of the family of nations -- by a State whose national existence is recognized, and which as, or may have, diplomatic relations ... [W[hat nation has recognized the Southern Confederacy? None.

But in addition to its head-on tackling of Confederate legitimacy, Kelley's speech is notable for several other reasons. First, it is one of the only legal documents I read (the other being the Savannah trial documents discussed below) which purposively eschewed applying the now-familiar hostis humani generis designation to pirates. Kelley deliberately sought to avoid the legal excesses that this term makes possible (see Jody Greene's "Hostis Humani Generis"):

The sole question for you to decide, I repeat, is, has this defendant been guilty of piracy under the laws of the United States, -- not under the common law, -- not is he the general enemy of the human kind, -- not has he the highwayman's heart and habits; -- but are you as a jury, satisfied that he has violated the laws of the United States for the prevention and punishment of piracy.

Second, Kelley displays an acute awareness of the fuzziness of the "pirate" label, and pre-empts any possible defense that would invoke patriotic pirates like John Paul Jones. While his reasoning here is not particularly strong (it assumes the same jury would have convicted Jones on charges of piracy when the defense rests on the shared understanding that Jones was a Revolutionary War hero and not a pirate), that he rebuts this argument is indicative of the continued existence of acceptable non-fictional forms of piracy even into the mid-nineteenth century:

Is not Smith's case, you are also asked, precisely analogous to that of Paul Jones, and are you prepared to say that he should have been hung as a pirate? Let me answer that question, so adroitly put, by asking another. Is any one of the counsel for the defence prepared as a lawyer to say, that if before the recognition of our independence, Paul Jones had been taken on board a privateer by a British cruiser, the English law would not have condemned him as a pirate? The truth is, gentlemen, that Paul Jones, and all the American privateers of that day knew very well, that if they were taken, they would go into England and be tried for the crime of piracy.

Third, one section of the speech has absolutely nothing to do with our pirate research project at all but is such a striking and beautiful example of American patriotism that, reading it as I did right after the Fourth of July, I felt the need to make it more widely known. Here 'tis, and a very belated Happy Independence Day:

And what defence is set up and how is it received? It is that this defendant was aiding the cause of those who are arrayed in arms against our brethern; that he was aiding the cause of those who thus punish our people for loyalty to their government; that he was aiding the cause of those who have stricken down and dishonored the flag of our country, and made war upon its institutions and people. And that defence is pressed and listened to, and weighed, and strengthened even by presumptions. It is right that it should be so. Such scenes as this, will redeem our generation in history. They prove that it is not our democratic republican institutions, that have begotten a tendency to barbarism among a people once civilized, generous, and humane; that the love of law and order, justice, truth and right, still dwells in the hearts of the American people, and are the sure pledge of the ultimate realization of the best hopes of those who have most faith in man's capacity for self-government.

Trial of the Officers and Crew of the Privateer Savannah, on the Charge of Piracy, in the United States Court for the Southern District of New York. (1862)
The case of the Confederate privateer the Savannah is better known than the trial of William Smith, but much of the argumentation falls along the same lines (it is not surprising to find that Kelley references the Savannah case in at least one place in his speech). The library had the complete records of this trial, and while much of the several hundred pages of argumentation was long-winded and repetitive, the case really was a debate about what it is to be a "pirate" and was therefore absolutely fascinating, not to mention incredibly relevant to our project. On the matter of pirates as "enemies of all mankind," the District Attorney makes clear from the get-go that this is not the issue that the jury is asked to decide:

You have all, undoubtedly, heard more or less of the crime of piracy as generally and popularly understood. A pirate is deemed by the law of nations, and has always been regarded as the enemy of the human race, -- as a man who depredates generally and indiscriminately on the commerce of all nations. Whether or not the crime alleged here is piracy under the law of nations, is not material to the issue.

However, immediately thereafter, the defense blatantly ignores this statement and frames the debate precisely in terms of popular understandings of piracy:

And when the first deed of wickedness has been done which makes pirates and outcasts of the men who perpetrated it, what is their career from that moment to the time when they end their lives, probably on the scaffold? Is it not one of utter disregard to the laws of God and man, and to those of humanity? Is it not a succession of deeds of cruelty, of rapine, of pillage, of wanton destruction? Who ever heard of pirates who, in the first place, commenced the execution of their design by public placards posted in the streets of a populous city like Charleston, approved of by their fellow citizens of a great and populous city, and not only by them, but by the people of ten great and populous States? ... the Jury must certainly have seen how utterly preposterous it is to characterize as piracy acts of this kind.

The defense also evokes the spirit of John Paul Jones and the pirate heroes of the Revolutionary War, equating the crew of the Savannah with other, revered non-state actors:

But it is not necessary that the nation under whose commission he acts, shall be one which is already established and acknowledged among the family of nations. It may be a colony struggling for independence, and not yet recognized by the nations of the earth. Our own Courts years ago decided this case with a liberality which has eminently distinguished them, and established the principle in respect to the South American colonies -- colonies at that time not acknowledged by our Government as independent nations. So, gentlemen, it was with regard to the powers of Europe during the days of the American Revolution ... Their [American] letters of marque were recognized because they were the letters of a de facto Government ...

At this point, the trial turns into an incredibly protracted (though certainly Civil War-defining) debate on the precise legal and sovereign status of the de facto Confederate government and whether or not it could issue letters of marque. That debate, while quite engaging, does not really bear further summary here.

A final observation I took from the Savannah proceedings was the direct use of popular narratives in the lawyers' argumentation. While the defense's allusion to popular understandings of piracy drew upon several of the pirate-related commonplaces discussed on this blog before (pirates as violent agents of destruction; pirates as outside both human and divine law), they also make direct use of narrative when quoting from William Wordsworth's poem "Rob Roy's Grave." As a brief contextualization of the quote, Wordsworth presents the highwayman Rob Roy as a Scottish Robin Hood (interestingly, the pirate-as-Robin-Hood defense is used today in the context of Somali piracy) who lives by no law but that "graven on my heart" (surely an allusion to a Rousseau-ian conception of natural law). The verse cited by the defense in the Savannah case is as follows:

For why? Because the good old rule
Sufficeth him: the simple plan
That they should take who have the power,
And they should keep who can.

But, intriguingly, rather than deploy this verse to equate the accused pirates with heroic Robin Hood figures, the defense uses the verse to show that the Savannah's crew are not pirates at all since they do obey a human law: that of the de facto Confederate government.

A Treatise of the Relative Rights and Duties of Belligerent and Neutral Powers in Maritime Affairs, by Robert Ward, Esq., Barrister at Law (1875)
If the intimate connection between fictional narrative and state policy regarding pirates seems weak in the Rob Roy/Savannah trial example cited above, the introduction to this treatise offers a true "smoking gun" example of the influence that popular culture can have on official policy. According to the author of the introduction, one Lord Stanley of Alderly, popular novels were directly responsible (or at least created the condition of possibility) for the delegitimation of privateering in England by equation privateering with the well-established evil practice of piracy. Here is Lord Stanley at his plummiest. It's a long excerpt, to be sure, but well-worth reading:

The prejudice against privateers arises partly from ignorance of the safeguards provided by the Law for the protection of vessels which are not lawful prize, and partly from the writings of officers of Royal Navies who have been unconsciously biassed by a prejudice similar to that which is felt by regimental officers against militiamen, volunteers, and irregular troops. The following is a passage taken at random, which may serve as a specimen of this kind of writing: 'There is but a slight step from the privateersman to the pirate; both fight for the love of plunder; only that the latter is the bravest, as he dares both the enemy and the gallows.' It was only after such sentences had been written, and the nation prepared by a course of such romance reading, that Lord Aberdeen told the people of Aberdeen that privateering was the last shred of barbaris, and that the only difference between a pirate and a privateer was that the latter bore the Queen's Commission. A similar comparison might be made between brigands and soldiers. If the subject had been studied in law books and not in novels, Lord Clarendon could not have based his attempted defence of the Declaration of Paris on the proposition that England obtained a valuable consideration for the acknowledged loss incurred by the giving up of her right to seize enemies' property in neutral vessels, by the abolition of privateering! The paragraph from a novel above quoted is followed by another, which shows how the false notions generally entertained on the subject of privateers, have been fostered by confounding the deeds done in former times with those done in the days of our grandfathers: 'But in whatever school they had been taught, the Buccaneers who kept about the English colonies were daring fellows and made sad work in times of peace among the Spanish settlements and Spanish merchantment.'" (vi-vii) [Emphasis added. The novel in question is Tales of a Traveller, by Geoffrey Crayon (Washington Irving), vol. ii. pg. 241)]

Lord Stanley is, of course, violently opposed to the provision of the Declaration of Paris that outlawed privateering, calling it "the resignation of the means that had made England great and powerful." Undoubtedly his statement about the influence of novels is mildly hyperbolic but that he draws a direct connection between popular portrayals of piracy and something as undeniably "real-world" as the Declaration of Paris is very good evidence for the interconnectedness of cultural and legal understandings of piracy.