Would the North recognize Confederate privateers as agents of a sovereign state, or hang them from the yardarm as pirates?
AMONG THE PRESSING PROBLEMS federate States of America faced in 1861 was its lack of a naval force. Although the U.S. Navy had only 42 warships in commission when the war began in April, the federal government could at least refurbish others that had been “laid up in ordinary” (mothballed), and also had the resources to build and buy more vessels. That process took time, however, and the nascent Con-Southerners initially scoffed at the naval blockade of the U.S. coastlines—the so-called Anaconda Plan—that Abraham Lincoln ordered implemented. But the growth of Union naval power was inevitable, while the fledgling Confederacy could offer no real opposition in those early days of the war.
In response, the South turned to private industry. Two days after President Abraham Lincoln’s April 15, 1861, proclamation calling for 75,000 volunteers to put down the Southern rebellion, Confederate President Jefferson Davis issued his own proclamation, “inviting all those who may desire, by service in private armed vessels on the high seas, to aid this government in resisting so wanton and wicked an aggression, to make application for commissions or letters of marque and reprisal, to be issued under the seal of these Confederate States.”
Nations at war had long authorized private vessels to prey on the vessels of other countries. Letters of marque, as they generally were called, usually required privateers to be bonded, placed time limits on the commissions and stipulated decent treatment of captives and their personal property— requirements that actual pirates generally ignored. A letter of marque was an official legal document, a license giving its holders a privileged and at least semi-official status in the event of capture. Privateers who were caught were to be treated as POWs; pirates were simply to be hanged.
Privateering commissions, however, were supposed to originate with a re cognized national authority, and the Confederacy had no such status. Therefore, since Southern letters of marque were without legal force, Confederate privateers were technically deemed pirates. That led to a curious standoff between the North and the South that would eventually affect how the conflict was fought.
On May 6, 1861, the Confederate Congress formally authorized the practice of privateering, as called for in the Confederate Constitution. Requests for letters of marque began pouring in. One of the first was issued on May 18 to Captain Thomas Harrison Baker of Charleston, S.C., for his Savannah. Baker’s vessel—a 68-foot-long schooner that displaced 54 tons— had originally been a Charleston pilot boat simply referred to as “Number 7” (it should not be confused with CSS Savannah, an ironclad built later in the war). Like most privateers, Baker’s vessel was lightly armed, mounting one “short 18-pdr gun” on a pivoting carriage amidships. Such ships were meant to overawe unarmed merchant vessels rather than actually do battle with them. If a privateer came across an enemy warship, its crew’s duty was to fee as fast as possible. Speed was much more important than armament. Savannah’s crew included 37-year-old Captain Baker, who had been born in Philadelphia but spent much of his life in Charleston. The first mate was John Harleston, 28, a former Texas rancher. Navigator or sailing master Henry Cashman Howard, 28, was from Beaufort, N.C. The purser, in charge of provisioning the ship, was 19-year-old Charles Sidney Passalaigue, a former Charleston newspaper reporter.
The privateer also shipped Charleston harbor pilot James Evans, who would serve as a “prize master” to command the prize crew that would be placed aboard any captured ships, to bring them back to a Confederate port for legal sale and disposition. Savannah’s 20-man crew was larger than needed to work its sails, but privateers always carried extra men, so they could furnish prize crews for any captures.
On June 1, Savannah was moored in the Ashley River, provisioned and ready to sail. That evening the vessel was moved to a protected mooring near Fort Sumter, and then into the “outer roads” the next morning, so its crew could watch for their best chance to dash out to sea, avoiding Federal blockaders.
At that point the Federal blockade of Charleston was being conducted by USS Minnesota, a powerful steam frigate mounting 47 guns, and USS Perry, a seven-gun sailing brig commanded by Commander Enoch G. Parrott (a first cousin of Robert Parker Parrott, inventor of the artillery pieces that bore his name).
Savannah’s crew waited all day on June 2, believing that Union ships were probably lurking just over the horizon. The schooner finally made a break for it late in the afternoon. That night there was a mishap the Rebel sailors likely took as a bad omen: The wind kicked up, damaging Savannah’s main topmast. It was not enough to force the schooner back into port, though it did slow her down— which would turn out to be fatal.
Early on June 3, Savannah’s crew sighted a brig and gave chase for nearly four hours. When their quarry finally heaved to in midmorning, it proved to be Joseph, captained by Thies N. Meyer, out of Rockland, Maine, sailing from Cardenas, Cuba, to Philadelphia with a cargo of sugar. Savannah had taken its first—and last—prize.
Some of the brig’s stores were transferred to Savannah, and Joseph’s crew was taken prisoner. The captive vessel, with a six-man prize crew, parted company with its captor about 3 p.m., successfully avoiding the Union blockade and arriving in Georgetown, S.C., a few days later.
Not long after Joseph departed, Savannah’s crew went after a second vessel. As the two ships closed, however, the Southerners realized that this brig was not prey but predator: the seven-gun USS Perry. When Savannah tried to fee, the damage earlier done by the winds became a factor. Perry steadily gained on the Rebel schooner, coming within range by dusk. Both ships opened fire, but Savannah’s rounds fell short, while the Union vessel’s longer-range guns twice put shot through the schooner’s sails. Captain Baker wanted to continue fighting, but most of his crew took cover in the hold, hoping that staying below the waterline would offer some protection when Perry’s guns began holing the schooner’s hull. With not enough men on deck to man his gun, Baker lowered his sails and surrendered around 8:30 p.m. Savannah’s privateering career had lasted little more than 24 hours.
A prize crew took the captured privateer to New York, where it was renamed USS Chotank. The schooner would be used as a shallow-water patrol boat along the Atlantic Coast for about a year before being laid up and decommissioned in 1862.
Savannah’s crew was transferred to USS Minnesota and taken to Hampton Roads, Va., then placed aboard the revenue cutter Harriet Lane for transport to New York. Arriving to the jeers of a large crowd on June 17, the men were marched in chains through the streets to the Tombs, New York City’s jail, and held for trial as pirates.
On June 28, 1861, 11 days later, the brig Jefferson Davis, formerly known as Putnam, slipped out of Charleston Harbor and began operating as a Confederate privateer, commanded by Captain Louis Coxetter. Painted black, the vessel no doubt looked forbidding. Its crew numbered 70-80 men, and in addition—unusual for a privateer—the brig carried a contingent of up to 12 individuals identified as “marines,” though these likely weren’t actual Confederate Marines but rather men who had signed on to provide some of the same shipboard functions.
Jefferson Davis’ initial documentation specified it was to carry four 12-pounders, mounted two to a side, and a 32-pounder amidships on a pivot. But a report by Captain J.C. Fifield of the brig John Welsh, one of the privateer’s prizes, observed that the Rebel brig mounted a broadside of two 24-pounders and two 32-pounders, with a long 18-pounder as a pivot. In any case, the privateer captured nine prizes during the next seven weeks.
On the afternoon of July 6, 1861, Jefferson Davis’ crew spotted a schooner, which was soon forced to heave to some 300 miles off Delaware. It proved to be Enchantress, out of Newburyport, Mass., commanded by Captain John Deveraux and bound for Santiago, Cuba, with a cargo of “provisions, grindstones, glassware, and pine boards.” Enchantress’ crew became prisoners aboard Jefferson Davis, while five of the privateer’s crewmen moved to Enchantress with orders to take the prize ship into Charleston. Jacob Garrick, a free black man who had been serving as cook on the schooner, was ordered by Captain Coxetter to remain aboard so he could be sold when the ship reached port. William W. Smith, Enchantress’ prize master, reportedly remarked that Garrick would “bring $1500 when we get him into Charleston.”
Jefferson Davis continued its privateering until mid-August, when it ran aground while attempting to enter the harbor at St. Augustine, Fla., during a storm. Its crew was saved, but the vessel was destroyed on the shoals.
Garrick cooked for the prize crew from July 6 until July 22, when Enchantress, having made a remarkably slow voyage, encountered USS Albatross off Cape Hatteras. The cook would play an important role in the ship’s capture, which also secured his own freedom.
Albatross, a 378-ton screw steamer built in 1858 and commanded by Captain George Prentiss, carried five guns and was 150 feet long and 30 feet in beam, but drew only 9 feet of water. Partly for that reason, it would later become part of the Union Navy’s Mississippi River feet. When first hailed by Albatross’ crew shortly before 2 p.m., “Captain” Smith responded that the vessel was on its way to Cuba. At that point, however, Garrick ran up onto the deck and shouted that the vessel was a prize being taken to Charleston, before jumping overboard. Picked up by a boat from Albatross, Garrick told his story. Since Enchantress was sitting right under the guns of Albatross, the prize crew could neither resist nor fee. The Confederate tars aboard were placed in irons on the Union gunboat.
Albatross towed the recaptured schooner into Hampton Roads, arriving on July 24, and then continued on to the Philadelphia Navy Yard with the prisoners.
Though events surrounding the capture of Savannah and Enchantress were typical of privateer operations, the drama attending their crews’ prosecution would be followed by the entire Western world. Savannah’s crew was indicted in the U.S. Circuit Court for the Southern District of New York on July 17. But because there were 13 defendants represented by eight different attorneys, none of whom had had time to prepare their defenses, the trial was held over to the next court term. Proceedings would not actually begin until October 23. On trial for piracy were Captain Thomas H. Baker, William C. Clarke, Alexander C. Coid, Patrick Daly, Joseph C. Del Carno, Albert G. Ferris, Martin Galvin, First Mate John Harleston, Navigator Henry C. Howard, John Murphy, Henry Oman, Richard Palmer and Purser Charles S. Passalaigue. Ferris, who turned state’s evidence against the others, was let off.
On Saturday, July 6, the same day that Jefferson Davis captured Enchantress, President Davis had penned a letter to President Lincoln urging the Union leader to treat privateersmen as POWs rather than pirates and threatened that “painful as will be the necessity, this Government will deal out to the prisoners held by it the same treatment and the same fate as shall be experienced by those captured on the Savannah.” In other words, he would execute Union prisoners should Savannah’s crew be executed.
Davis sent his letter via Colonel Thomas H. Taylor, who traveled by train to Manassas, Va., and then, with a cavalry escort, rode to the Union lines near Arlington, Va.. On July 10, under a fag of truce, Taylor approached the Union pickets—dragoons under Colonel Andrew Porter—and was admitted through the lines. He was taken first to the headquarters of Brig. Gen. Irvin McDowell, who sent word to Lt. Gen. Winfield Scott at U.S. Army headquarters. Scott sent a carriage to convey Taylor to Washington.
After reading the letter, Scott forwarded it to the White House and offered Colonel Taylor a glass of champagne while they awaited a reply. About 30 minutes later the messenger returned with word that Lincoln had already retired for the evening and couldn’t be disturbed. While Lincoln had surely read the letter, he couldn’t officially receive or acknowledge any such communication from the head of an unrecognized government.
Scott promised Taylor he would get a response, then asked him to return to McDowell’s head quarters for the evening, which he did. When there was still no response the next morning, however, the Confederate officer returned to Richmond. While the federal government never officially replied to Davis’ letter, its subsequent actions would reflect an understanding of its contents and significance.
When the trial of United States v. Baker et. al. began on October 23, the potential ramifications were enormous. Defense attorneys based their arguments on the citizenship status of the defendants, and therefore the whole idea of secession’s validity. The jury listened as the arguments were repeated, with minor modifications, for each defendant. Going into deliberation on October 30, the jurors returned some 20 hours later to say that they were hopelessly deadlocked and could not reach a verdict. Eight members favored conviction, and four favored acquittal. The judge declared a mistrial and announced a new trial would be held during the next court term.
That same week of the New York trial, the Jefferson Davis prisoners were being tried in Philadelphia. Actually two trials had begun on October 22, the first only for prize master William W. Smith. Four days of testimony resulted in a unanimous guilty verdict for Smith. The following day, three of the remaining four members of the prize crew— Daniel Mullins, Thomas Quigley and Edward Rochfort— were tried and likewise convicted.
The final member of that crew, Eben Lane, was acquitted because he said he had never been in sympathy with the privateering operation and also because he claimed to have slowed Enchantress’ progress after its capture. Lane claimed that he had turned the schooner northward each night while the others were asleep, sailing away from Charleston before turning southward again each morning. Somehow the jury credited his preposterous story, and Lane eventually went free.
There are several problems with Lane’s tale. First, he wouldn’t have been the only man to stand night watch, and others would have been up at times anyway. It also seems unlikely no one would ever have noticed the change in course. What’s more, one man could hardly have brought the schooner about alone. Lane would have to have worked all the sails by himself while simultaneously steering. And at least some of the others would likely have noticed the change in the ship’s speed and attitude as it came about, as well as the creak of the rigging and luffing of the sails.
Though Lane’s claims seem incredible, the jurors believed him. One suspects that, like Ferris, he must have turned state’s evidence or otherwise provided useful information to the court and was duly rewarded.
Following the trials, Jefferson Davis took steps to retaliate. On November 10, 14 captive Union officers were selected as hostages, to be held in common jails and treated as criminals rather than POWs. If the U.S. government executed the Confederate seamen, CSA officials promised to kill those officers in retribution.
First chosen were the six colonels in Confederate captivity: Michael Corcoran, 69th New York; William R. Lee, 20th Massachusetts; Milton Cogswell, 42nd New York; Orlando Wilcox, 1st Michigan; William Woodruff, 2nd Kentucky; and Alfred Wood, 14th New York. Then there were Lt. Cols. Samuel Bowman, 8th Pennsylvania, and George Neff, 2nd Kentucky; Majors Paul J. Revere (grandson of the hero of the American Revolution), 20th Massachusetts, Israel Vogdes, 1st U.S. Artillery, and James Potter, 38th New York; and Captains Francis Keffer, 1st California (71st Pennsylvania), Henry Bowman, 15th Massachusetts, and George Rockwood, 15th Massachusetts. Most of them had been captured either at First Bull Run in July or Ball’s Bluff in October. Each man was designated as a hostage for a specified privateersman, and the federal government was notified of their identities.
Eighteen Southern seamen were imprisoned and charged with piracy, but for some reason—probably confusion about the numbers involved—the Confederate government had chosen only 14 hostages in retaliation: one officer for each of Savannah’s 13 crew members and apparently one more for Enchantress’ prize master.
What was the outcome of this legal standoff between North and South? The U.S. government quietly gave in, altering the status of the Rebel sailors from pirates to POWs. There was no formal announcement of that change, but when the Confederates learned of it they returned the Federal officers to their previous status as POWs. The question of whether privateers should be prosecuted as pirates never came up again.
Aside from Lincoln’s desire not to see the officers executed, Union authorities must also have considered that another “pirates” trial might well have resulted in a verdict lending legal weight to the Con federates’ assertion that secession was both legal and constitutional. Conceding that the captives should not be considered pirates was a small price to pay. In return, the Union was able to avoid the public scrutiny inherent in a trial while conducting a fight for its life—based on the principle that secession was merely insurrection by another name.
James A. Morgan III is the author of A Little Short of Boats: The Civil War Battles of Ball’s Bluff and Edwards Ferry, October 21-22, 1861. He writes from Loudoun County, Va.
Originally published in the June 2014 issue of Civil War Times. To subscribe, click here.