The citation for this charge is 30 Fed. Cas. 997, Case No. 18,256. The charge comes to us from the Circuit Court of the District of Massachusetts, with Federal Judge Peleg Sprague presiding.
In this charge, Judge Sprague instructs the grand jury in the law regarding piracy. For example, he tells the grand jury, “By St. 1790, c. 9. para. 8 (1 Stat. 113), it is enacted ‘that if any person or persons shall commit upon the high seas, or in any river, haven, basin, or bay, out of the jurisdiction of any particular state, murder or robbery, or any other offence which if committed within the body of a county, would by the laws of the United States be punishable with death; or if any captain or mariner of any ship or other vessel, shall piratically and feloniously run away with such ship or vessel, or any goods or merchandise to the value of fifty dollars, or yield up such ship or vessel voluntarily to any pirate: every such offender shall be deemed, taken, and adjudged to be a pirate and felon and, being thereof convicted, shall suffer death.” [30 Fed. Cas. 997] The charge goes on to delineate several additional laws dealing with piracy.
He then connects those statutes to the rebellion. “These statutes being enacted pursuant to the constitution are of paramount authority, and cannot be invalidated or impaired by the action of any state or states; and every law, ordinance, and constitution made by them for that purpose, whatever its name or form, is wholly nugatory, and can afford no legal protection to those who may act under it. But suppose that a number of states undertake by revolution to throw off the government of the United States and erect themselves into an independent nation, and assume in that character to issue commissions authorizing the capture of vessels of the United States, will such commissions afford any protection to those acting under them against any penal laws of the United States? Cases have heretofore arisen where a portion of a foreign empire–a colony–has undertaken to throw off the dominion of the mother country, and assumed the attitude and claimed the rights of an independent nation; and in such cases it has been held that the relation which the United States should hold to those who thus attempt and claim to institute a new government is a political rather than a legal question; that, if those departments of our government which have a right to give the law, and which regulate our foreign intercourse and determine the relation in which we shall stand to other nations, recognize such new and self-constituted government as having the rights of a belligerent in a war between them and their former rulers, and the United States hold a neutral position in such war, then the judiciary, following the other departments, will to the same extent recognize the new nation. But if the legislative and executive departments of the government utterly refuse to recognize such new government or to acknowledge it as having any belligerent or national rights, and, instead of taking a neutral attitude, endeavor by force to suppress depredations on commerce by such assumed government, as violating the rights and infringing the laws of the United States, then the judiciary will hold that such depredations are not to be considered as belligerent, and entitled to the immunities of lawful war, but as robbery or other lawless depredations, subject to the penalties denounced by our laws against such offences.” [30 Fed. Cas, 997, 998] So the laws are still in effect during the rebellion, though he does seem to be saying, by way of example with a foreign power, that if the rebels are granted belligerent rights any rebels engaged in some activities that would normally be considered piracy are not subject to the legal penalties attached to the crime.
Judge Sprague continues, “The judiciary certainly cannot adopt a more indulgent rule toward those who are in open rebellion against the authority of the Untied States, or to aliens co-operating with and acting under the assumed authority of such rebels. While the other departments of the government and the nation refuse to regard any state, or association of states, as having the rights of a belligerent, or as carrying on legitimate war, and are exerting not only moral but physical force against them as rebels, and lawless aggressors upon the United States and its citizens, the courts also must so regard them, and cannot admit that any legislation or assumption of power by such state or states can authorize acts in violation of the laws of the United States, or change the character of offences under them.” [30 Fed. Cas. 997, 998] So as of that point the rebels had not been granted belligerent rights, and up to that point rebels taken in acts of piracy are still subject to legal penalties.
Judge Sprague also says, “There is another view. Mere rebellion absolves no man from his allegiance. Citizens of the United States, therefore, may not only be subject to the penalties of treason; but if they commit hostilities upon the commerce of the United States, under a commission from any foreign nation, even the oldest and best established,–such as England or France, for example.–they may be dealt with as pirates by the express enactments in the ninth section of the statute of 1790, which has already been referred to. And aliens who are subjects or citizens of any foreign state, with whom we have a treaty,–such as is described in the statute of 1847 (chapter 51), which has already been quoted.–if, in violation of such treaty, they make war upon the United States or cruise against our vessels or property under a commission from any foreign government, however long acknowledged, may, by the clear provisions of that statute, be dealt with as pirates.” [30 Fed. Cas. 997, 998] “Mere rebellion absolves no man from his allegiance” is, I think, key here. The rebels declaring themselves to be independent doesn’t make them independent. It doesn’t release them from their obligation of allegiance to the United States.
The later granting of belligerent rights to the rebels will eventually abrogate this charge, but at this point in the war rebels taken on the high seas can be considered pirates.