Charge to Grand Jury May 15, 1861

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.



  1. “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.”

    This statement is a hugely problematic. American Independence Day is recognized as July 4th specifically because that is the date the American Continental Congress adopted the Declaration of Independence and the colonies announced that the political connection between themselves and the British Empire had been dissolved. The colonies did not wait for approval from any source whatsoever, and they did not submit their case to be adjudicated by any tribunal. Additionally, we do not, for example, recognize October 19th as Independence Day (Cornwallis surrender at Yorktown), nor do we recognize September 3rd (Treaty of Paris). Again, only July 4th, and purely on the strength of the colonies declaring themselves to be independent, is recognized as Independence Day.

    With these historical facts looking us in the eye and establishing precedent, and standing on the unassailable principle that it is the right of the people to alter and abolish their form of government, that would mean each Southern state that declared its own independence from the United States would have achieved its independence on the date it declared. For example South Carolina would have achieved political independence on December 20, Mississippi on January 9, Florida January 10, and so forth. Unless, of course, one invokes the argument “might makes right”. But I think we all agree that that is utterly uncivilized and substitutes violence instead for reason.

    1. It would shock me if you ever showed any understanding of past events at all. Tell you what. Think about what is the most important fact to know about the American Revolution. Then read the Declaration of Independence and try to figure out when the natural right to revolution is warranted. Here’s a hint: not if you lose an election. You people really are dim.

    2. Shoshana Bee · · Reply

      It was bad enough that I suffered through this nonsensical interpretation of the Declaration of Independence (part of the whole of what I have been studying lately) but than you have the audacity to end your post with “But I think we all agree…” No, sir, we don’t all agree.

      1. Abraham Lincoln had it right: “Right makes might.”

  2. You miss the point entirely. The natural right of rebellion is warranted, quite obviously, whenever the people of the rebellious political entity say it is. Surely you must know that the British treated the DoI with scorn and derision, and that as a matter of official policy they flatly rejected it as traitorous and lawless propaganda. And surely you know that that the Southern states which dissolved their respective political bands which connected them to the United States were as convinced of the justness of their cause as the colonies were of theirs. So once again, American Independence was ultimately won not, for heaven’s sake, because of anything the DoI said, but because, and only because, Americans, with considerable help from the French, defeated the British on the battlefield.

    PS- You’re attempt to characterize Southern Independence as having its motivation in “losing an election” fools no one. It is like characterizing the American revolution having its motivation in the petty complaint that their taxes were too high. Two can play at that game, but it’s just noise.

    1. As usual, you don’t know what you’re talking about. Reading comprehension is key. Learn to comprehend what Jefferson wrote in the Declaration of Independence. And learn how to comprehend history. You people really have no clue at all.

      1. Are you saying Al, that the British Crown acquiesced to the claims made by the DoI and immediately granted independence to the colonists? Or did the Crown directly reject the claims and wage war to maintain control of their colonies?

        1. I’m saying you’re confusing the result of a war with being a moral judgment.

          International law allows that successful rebels, as a result of their victory, get to determine their date of independence as being the date they declared it. That’s not a moral determination of what is “right.” It’s just the fact. If you want to use trite sayings, “might makes right” doesn’t apply, “to the victor belongs the spoils” would apply better. But even that trite saying is unsatisfactory.

  3. If I have reduced the opposition to hiding behind the claim that “might makes right”, I have won. In other words, anyone, for example, who overpowers an 85 year woman and steals her life savings, and doesn’t get caught by the authorities, is right in doing so. After all might makes right. The list of atrocities that can be perpetrated under this foul principle is endless.

    1. Once again, you have no idea what you’re talking about because you have poor reading comprehension.

      1. Jimmy Dick · · Reply

        It appears that tybalt is none other than Caldwell/Austin/etc. We just had the usual encounter over on Crossroads where he made the usual idiotic claims, got proven wrong, and then then kept repeating himself over and over again. Now he is here with the same modus operandi. He wants the interpretations of historical documents to reflect his beliefs. You know the drill.

        1. Knew that from the first moment I saw him, Jimmy. At least this time he’s picked an appropriate name. One troll taking the name of another troll.

    2. Shoshana Bee · · Reply

      Mr. Tybalt, I am really confused, here, because the only one who has brought up “might makes right” is you — twice. The example of vicitimizing an old lady to make your point is just plain disturbing.

  4. Ms. Shoshana, please spare me your faux “confusion” and your equally faux righteous indignation. And did you truly not see this comment by Al Mackey:

    “Abraham Lincoln had it right: “Right makes might.”

    I repeat, did you really not see it when you made your demonstrably false claim that it was only I who addressed the question of “might makes right”? And if Al is sincere in this belief, and if you too believe it, THAT is what is truly disturbing. Because the argument “might makes right” can be used to justify the most cruel inhumanities ever perpetrated in the history of guilty man. It is the perfect argument in order to vindicate, for example, the slave-trade, slavery, the Holocaust, the Rape of Nanking, Native American Genocide, the Cultural Revolution, and the Spanish Inquisition. And that scarcely scratches the surface.

    Lastly, the reason the discussion on “might makes right” is relevant here, is because the American colonist earned independence by virtue of the military might they exhibited (aided by the French), not because of any inherent virtue in their cause. In like manner, the Confederates did not earn independence only because their arms were unable to sustain their claim to independence, not because of the inherent rectitude in the Union cause, for chrissakes.

    1. Are you really so dim you don’t know the difference between “might makes right” and “right makes might?” I knew you were dim, but I didn’t realize you were that dim.

      In some ways it’s kind of entertaining to watch the intellectual fumbling over the Revolution’s results. In other ways it’s kind of sad.

      1. The point Al, is that both arguments, are equally absurd, meaningless, childless, ludicrous, and demonstrably false.

        1. The point is you don’t know what you’re talking about. I realize it’s probably too much to expect you to actually do some history research, but if you don’t, you’ll never understand.

        2. [edit]

          1. Once a dumb troll, always a dumb troll. Read some history books for a change.

    2. Shoshana Bee · · Reply

      Mr Tybalt, yes, indeed, I did see Mr. Mackey’s comment, which is the antithesis of might makes right. He obviously knows the difference.

      I Also saw Mr. Dick’s comment regarding your status as Troll. After reading the comments over at Crossroads, I have come to a few of conclusions:

      1. I have avoided posting on these blogs, because as a new student of the Civil War, I felt that being uninformed placed me at risk of looking like the Village Idiot.:

      2. I have since realized that worse than being uninformed is to be informed, but refuse to learn.

      3. I no longer fear being the Village Idiot because I see the position is filled.



  5. So if “right makes might”, then the rightness of the cause of the victims of the Holocaust enabled them to defeat their Nazi captors and escape form the dreadful death camps? No Jews were murdered? They were all protected by the rightness of their cause Who knew? And the rightness of the cause of the slaves being transported aboard during the Middle Passage enabled the slaves from ever becoming slaves? Again, who knew?

    1. A completely incompetent attempt at an analogy.

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