This is a guest blog by Anna Price, a legal reference librarian at the Law Library of Congress.

As a remote metadata intern with the Law Library last summer, I spent quite a few hours after work reading through the Piracy Trials collection. One item in particular caught my attention: a letter from Charles P. Daly, Chief Justice of the New York Court of Pleas, titled Are the Southern Privateersmen Pirates? Having never investigated this subject previously, this heartfelt and persuasive letter questioning the government’s designation of Confederate privateersmen during the Civil War as pirates sparked my curiosity and led to a lot of digging. Here’s what I learned:

“Privateers” were privately-owned merchant ships that the government, in wartime, permitted to attack the enemy’s trade vessels. To incentivize this dangerous activity, the ship’s crew profited by selling the captured vessel’s bounty through a process dictated by federal statutes. To legitimize their actions, the privateers had to obtain “letters of marque” from the federal government. They also were obligated to participate in a court-administered process, which would determine whether the prizes from their exploits were lawful; if so, the cargo would be sold at auction, with the proceeds going to the privateersmen.

This system was pivotal during the War of 1812. In a letter discussing the British Navy at the start of the war, Thomas Jefferson accurately predicted, “Their fleet will annihilate our public force on the water, but our privateers will eat out the vitals of their commerce.” The practice of privateering was all but eliminated by the 1856 Treaty of Paris, which was signed by 55 nations. The United States, however, did not sign the treaty, meaning that by the time the Civil War broke out, privateering remained an established practice in the United States.

The Confederate States privateer Savannah, letter of marque no. 1, captured off Charleston by the U.S. Brig Perry, Lieut. Parrott. 1861. //hdl.loc.gov/loc.pnp/cph.3g13450

During the Civil War, Jefferson Davis issued letters of marque to Confederate vessels, under a process similar to the one used by the Union. In response, President Lincoln issued “Proclamation 81 – Declaring a Blockade of Ports in Rebellious States.” This proclamation deemed Confederate-issued letters of marque “pretend” because the United States did not recognize the Confederacy as a legitimate nation, and warned that all persons manning such vessels and attacking Union ships would be tried and sentenced as pirates.

Designating these individuals as pirates, not privateersmen, was a distinction with a huge difference. Laws involving piracy had been in place since the First Congress in 1790 and provided:

That if any citizen shall commit any piracy or robbery aforesaid, or any act of hostility against the United States, or any citizen thereof, upon the high sea, under colour of any commission from any foreign prince, or state, or on pretence of authority from any person, such offender shall, notwithstanding the pretence of any such authority, be deemed, adjudged and taken to be a pirate, felon, and robber, and on being thereof convicted shall suffer death. (Emphasis added)

Put another way, Confederate privateersmen who were captured and criminally charged could be convicted of piracy and sentenced to death.

Some jurists opposed this conclusion, including Chief Justice Daly. Visitors to Law.gov can read his brief analysis, but some sections are worth highlighting. Likening the privateersmen to “rebels upon the ocean,” Chief Justice Daly feared that the Union would be setting a regrettable precedent in differentiating Confederate prisoners captured on the sea from those on the battlefield. “As all who have participated in the rebellion are alike guilty of the same political offence, and as there is in point of fact no difference between them, the question then arises – is every seaman or soldier taken in arms against the Government to be hung as a traitor or pirate? If the matter is to be left to the Courts, conviction and the sentence of death must follow in every instance.”

He also feared that escalating punishments like this would exacerbate wartime tactics and hinder attempts to maintain the Union at the war’s end.

In conclusion, we are not to forget that we are carrying on this war for the restoration of the Union, and that every act of aggression not essential to military success, will be separate more widely the two sections from each other, and increase the difficulty of cementing us again in one nationality….

War, when conducted in accordance with the strictest usages of humanity, is, as all who have shared in the recent battles know, a sufficiently bloody business; and if we are to add to its horrors by hanging up all who fall into our hands as traitors or pirates, we leave the South no alternative but resistance to the last extremity; and should we ultimately triumph, we would have entailed upon us, as the consequences of such a policy, the bitter inheritance of maintaining a Government by force, over a people conquered, but not subdued.

While some Confederate privateersmen were tried as pirates, and a few were found guilty, none were executed. Instead, they were treated as prisoners of war and eventually exchanged for Union troops being held by the South.

If you enjoyed learning some of the legal issues surrounding pirates and privateers, be sure to check out more on Piracy Trials and Are the Southern Privateersmen Pirates? Letter to the Hon. Ira Harris, United States Senator, by Charles P. Daly

As a bonus, here are two other good quotations from the letter:

• “Pirates are the general enemies of all mankind — hostes humani generis; but privateersmen act under and are subject to the authority of the nation or power by whom they are commissioned. They enter into certain securities that they will respect the rights of neutrals; their vessel is liable to the seizure and condemnation if they act illegally, and they wage war only against the Power with which the authority that commissioned them is at war.” p. 3
• “It is now, and it will continue to be, carried upon both sides, by a resort to all the means and appliances known to modern warfare; and unless we are to fall back into the barbarism of the middle ages, we must observe in its conduct those humane usages in the treatment and exchange of prisoners, which modern civilization has shown to be equally the dictates of humanity and of policy.” p. 9