Piracy and Privateering in the Civil War: What’s the Difference?

In looming twilight of June 3, 1861, two ships exchanged shots by the flash of the other’s cannon until the outgunned Confederate privateer Savannah capitulated to the Union man-of-war Perry. Just that morning, Savannah had seized her first prize near the Bahamas and sent her into Charleston. She was the Yankee brig Joseph bound for Philadelphia with a load of sugar.

Savannah’s Captain, Thomas H. Baker, his officers, and a dozen seamen were shackled belowdecks aboard Perry. Three weeks later, the Rebels were chained in irons, flanked by marshals and police, and marched from the New York Navy Yard to the grim Toombs prison. Citizens thronged the streets and crowded windows to see “pirates” paraded to felons’ cells awaiting criminal trial and possibly a noose.

Were they pirates or privateers? Criminals or prisoners of war? Since classical antiquity, pirates had been considered outside the law—hostis humani generis (enemy of the human race)—nautical highwaymen waging private wars of sack and pillage, subject to prosecution by all nations. Ancient custom the sea called for hanging at the yardarm.

Privateering—licensed and regulated piracy—became widespread three millennia later as nascent nation states coalesced from feudal kingdoms. Sixteenth-century Europeans invented tall, ocean-striding galleons and began discovering the “new world,” opening global avenues of trade, conquest, exploitation, and often violent competition.

Professional, and expensive, national navies evolved with big-gun warships engaging in fleet actions and ship-on-ship duals. They also warred upon an enemy’s seaborn commerce as the movement of goods across great waters undergird national wealth, power, and security.

Privateering became a cheap form of commerce warfare especially for underdogs. Armed vessels funded, owned, and officered by private individuals were licensed by the monarch to seize enemy vessels and split proceeds. It was a business; profit was as much or more a motivation as loyalty. Privateers (or corsairs in French terminology) were not commissioned warships officered and manned by naval personnel.

Europeans also strived to constrain endemic warfare of the period on land and sea though a rules-based order, the beginnings of international law. The privateering license became known as a “letter of marque and reprisal.” The term marque derives from old English and German meaning boundary or boundary marker.

The letters reflected a medieval legal concept of just war by which any subject could request the sovereign’s permission to cross into an adjacent kingdom and seek private retribution against a foreign prince or person by seizing property as compensation for wrong suffered. This relieved the king’s obligation to deploy armies and initiate costly war over every cross-border livestock theft.

European conflicts for the next two and a half centuries saw almost continuous commerce destruction at sea on all sides. Americans vigorously warred upon enemy trade in every contest leading up to 1861. Their privateers were much more successful than the navy in the Revolution, Quasi-war with France, and War of 1812.

By then, a considerable body of custom, tradition, and court precedent, primarily British, had developed to regulate privateering from deteriorating into piracy, with however, questionable success. A letter of marque transformed a private merchant vessel into a naval auxiliary with protection of and subject to the laws of war. If captured, the crew was entitled to honorable treatment as prisoners of war; without the license they were pirates.

When President Davis learned that the United States Government intended to prosecute the unlucky Savannah privateers, he sent an aid with a letter of protest addressed personally to President Lincoln: “It is the desire of this Government so to conduct the war now existing as to mitigate its horrors as far as may be possible.”

His administration had treated Union prisoners of war with “the greatest humanity and leniency consistent with public obligations.” Some had been paroled; others remained at large under loose supervision; all had been provided soldiers’ rations. However, he had withdrawn these indulgences and placed all prisoners in strict confinement.

“A just regard to humanity and to the honor of this Government,” continued Davis, required him to hold them to the same treatment and same fate as Savannah’s privateers. This “terrible necessity of retaliation” would be extended until Union authorities abandoned “a practice unknown to the warfare of civilized man, and so barbarous as to disgrace the nation which shall be guilty of inaugurating it.”[1]

After three weeks in jail, Captain Baker and his mariners were again paraded through an excited crowd and herded still manacled into the bar of a packed United States circuit courtroom for arraignment. They pleaded not guilty.

The indictment alleged that they did, “on pretense of authority from a person, to wit, one Jefferson Davis, with force and arms, piratically, feloniously, and violently,” set upon the brig Joseph, assault U.S. citizens, and steal vessel and cargo “against the form of the statute. . .and against the peace of the said United States and their dignity.”[2]

The New York Herald mused that previous indictments for piracy which ran “moved by the instigation of the Devil” now read “on pretense of authority from one Jefferson Davis,” and “certainly he is a good substitute for Satan.”[3]

The principal statute at issue was a 1790 act of Congress: Any citizen committing piracy 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” shall upon conviction suffer death. A similar law was on the English books during the American Revolution, but they chose not to enforce it against undisputed rebels.[4]

Criticism erupted abroad. In the House of Lords, the Earl of Derby proclaimed that “privateering was not piracy,” and no national law could make it so in contradiction to the law of nations. The Lord Chancellor opined that those who treated privateersmen as pirates would be guilty of murder.[5]

With procedural delays, trial began in October 1861. The prosecution contended that the charge was not of piracy “as commonly understood” but simply a violation of United States statute. International law was immaterial. The letter of marque signed by Jefferson Davis had no effect because the so-called Confederate States were not recognized “as one of the family of nations.”[6]

Able lawyers hired by Southern sympathizers did not contend the facts, but presented documentary evidence of the orderly formation of the Confederate Government and the proper condemnation of the Joseph as a lawful prize in admiralty court at Charleston. This was a question of interpretation regarding acts of piracy.

A Mr. Larocque addressed the jury for the defense: the guiding legal principle was animus furandi, intent to steal. But Captain Baker had officially obtained a letter of marque, publicly fitted out and manned his ship, and faithfully observed the laws of war. He and his crew believed they were operating under official sanction, which destroyed presumption of animus furandi. That others considered the Confederate government and therefore the privateer license as illegitimate was irrelevant to their intent.

Furthermore, in addition to the signature of President Davis, the letter of marque bore the seal of ten states. Since the United States government had declined to recognize their separation from the Union, it followed that these were not foreign states as specified in the 1790 statute. The Constitution reserved to the states all powers beyond express and limited power granted to the federal government. Each state had “a right to redress herself with force against the General Government.”

He showed how Americans during the War for Independence had been less entitled to a belligerent status than Confederates. They also claimed for themselves “the right to exercise that privilege of electing their own government.” Even supposing the Confederate States were not a government either de jure or de facto, there was nevertheless a state of war existing. The Savannah was a privateer; the attack on the brig Joseph was a belligerent act and not a piratical one. The jury must acquit.[7]

Notably, this position conformed with international legal opinion led by Great Britain. The United States Supreme Court would confirm the principle, ironically preserving the blockade. Blockaders also had captured northern merchant vessels trading with the South. Owners sued on the grounds that Congress had not declared war as required by the Constitution. Therefore, their commerce with seceded states was legal and the blockade was illegal.

In March 1863, the Supreme Court ruled by one vote margin that the Southern Confederacy was indeed a belligerent; a belligerent did not have to be a recognized nation, and therefore the conflict constituted war, whether declared or not. The blockade and the captures were legal. The opposite conclusion would have been disastrous for the Union war effort as it would have legitimized all trade with the South including European.

The Savannah jury, however, could not come to a verdict; four favored acquittal and the remainder concluded for guilt on one or more charges. The district attorney requested a new trial, which was scheduled for the next term. In the meantime, another crew of Confederate privateers had been captured, tried, quickly convicted of piracy, and sentenced to death.

Davis immediately ordered the selection of an equal number of Union prisoners—colonels, lieutenant colonels, and captains—to be executed man for man. President Lincoln backed down. He removed the privateersmen from jail to military prisons, and accorded them the status of prisoners of war. They eventually would be exchanged.

There would be no more piracy trials, although the term would be emphatically applied to all Confederate commerce raiders through the war and after. There also would be no more privateering. At the 1856 Congress of Paris following the Crimean War, 55 nations agreed to abolish the practice. The growth and centralization of naval dominance in leading powers such as Great Britain and France made it strategically problematic.

Because the United States did not sign the agreement, privateering was still legal in 1861 for both sides. However, it was no longer profitable for Southern ship owners and not useful for the Union. Confederates introduced a revolutionary concept and applied it to great effect: state-commissioned warships under naval command designed not for ship-to-ship combat but solely for commerce destruction. This strategy culminated in 20th Century submarine warfare. Piracy is still with us.

Sources:

[1] Official Records of the Union and Confederate Navies in the War of the Rebellion, 29 vols. (Washington, DC, 1894-1921), Series II, vol. 3, page 104.

[2] 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 (New York, 1862), xiv.

[3] William Morrison Robinson, Jr., The Confederate Privateers (Columbia, SC, 1990), 139.

[4] Robinson, Confederate Privateers, 140.

[5] Jefferson Davis, The Rise and Fall of the Confederate States Government (New York, 1881), II, 12.

[6] Trial, 16, 18, 19.

[7] Robinson, Confederate Privateers, 143-144.