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
by A. F. Warburton · English · Gutenberg #36306 · 1,152,893 chars · public domain (US)
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Title: 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
Author: A. F. Warburton
Release date: June 3, 2011 [eBook #36306]
Language: English
Other information and formats: www.gutenberg.org/ebooks/36306
Credits: Produced by Robert Cicconetti and the Online Distributed
Proofreading Team at http://www.pgdp.net (This file was
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*** START OF THE PROJECT GUTENBERG EBOOK 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 ***
Produced by Robert Cicconetti and the Online Distributed
Proofreading Team at http://www.pgdp.net (This file was
produced from images generously made available by The
Internet Archive/American Libraries.)
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.
HON. JUDGES NELSON AND SHIPMAN, PRESIDING.
REPORTED BY A. F. WARBURTON, STENOGRAPHER,
AND CORRECTED BY THE COUNSEL.
NEW YORK:
BAKER & GODWIN, PRINTERS,
PRINTING-HOUSE SQUARE, OPPOSITE CITY HALL.
1862.
CONTENTS.
Page
PRELIMINARY PROCEEDINGS:
Capture of the Savannah; the removal of the prisoners to
New York, and their committal for trial, v
The Indictment, vi
The Arraignment, xiii
TRIAL OF THE PRISONERS. FIRST DAY:
Organization of the Court, 1
Impaneling of the Jury, 2
Opening of Mr. E. Delafield Smith, United States
District Attorney, 14
Testimony for the Prosecution:
Albert G. Ferris, 20
William Habeson, 41
George Thomas, 41
George H. Cables, 41
Thies N. Meyer, 42
Horace W. Bridges, 46
Silas H. Stringham, 48
Argument on the Jurisdiction:
Mr. Larocque, 49
Mr. Brady, 50
Mr. Evarts, 50
Mr. Larocque, 51
TRIAL. SECOND DAY:
Decision on the Jurisdiction, 54
Testimony for the Prosecution, resumed:
Silas H. Stringham, 55
David C. Constable, 60
Daniel D. Tompkins, 62
J. Buchanan Henry, 63
Ethan Allen, 64
Mr. Larocque's Opening for the Defence, 66
Documentary Testimony, 108
TRIAL. THIRD DAY:
Documentary Testimony, 110
Testimony for the Defence:
Daniel D. Tompkins, 112
Presentation of Authorities by Counsel for the Prosecution, 113
Arguments of Counsel on the Points of Law:
Mr. Lord, 117
Mr. Larocque, 133
TRIAL. FOURTH DAY:
Arguments of Counsel on the Points of Law:
Mr. Larocque, continued, 144
Mr. Mayer, 164
Mr. Brady, 169
Mr. Evarts, 170
TRIAL. FIFTH DAY:
Summings up of Counsel to the Jury:
Mr. Dukes, 204
Mr. Sullivan, 218
Mr. Davega, 231
Mr. Brady, 236
TRIAL. SIXTH DAY:
Summings up of Counsel to the Jury:
Mr. Brady, continued, 270
Mr. Evarts, 283
TRIAL. SEVENTH DAY:
Summings up of Counsel to the Jury:
Mr. Evarts, continued, 334
Charge to the Jury, by Judge Nelson, 368
Return of the Jury and further instructions, 373
TRIAL. EIGHTH DAY:
Discharge of the Jury, 375
APPENDIX:
President's Proclamation, April 15, 1861, 377
Proclamation of the President, declaring a Blockade, 378
Correspondence between Gov. Pickens and Major Anderson, 379
Extracts from President Lincoln's Inaugural, 380
The President's Speech to the Virginia Commissioners, 381
Extracts from President Lincoln's Message to Congress,
July 4, 1861, 382
Extracts from President Buchanan's Message to Congress,
December 4, 1860, 383
Proclamation of August 16, 1861, 384
PRELIMINARY PROCEEDINGS
During the month of May, 1861, the schooner Savannah, of Charleston, of
about fifty-three tons burden, and mounting one pivot gun, was fitted
out as a privateer, in the City of Charleston; and on the second of
June, under the authority of "a paper, purporting to be a letter of
marque, signed by Jefferson Davis," she sailed from that port for the
purpose of making captures among the commercial marine of the United
States.
On the following day (Monday, June 3), after having captured the brig
Joseph, laden with sugar, she was, in turn, herself taken by the United
States brig-of-war Perry, Captain Parrott, and carried to the
blockading squadron, off Charleston, to the commander of which
(Commodore Stringham) she was surrendered by her captors.
On the fifth of June the officers and crew of the Savannah were
transferred from the Perry to the United States steam-frigate
Minnesota, while the prize was taken in charge by a prize crew from the
Perry and sent to New York.
The Minnesota, with the prisoners on board, proceeded, on her way to
New York, to Hampton Roads, where the prisoners were transferred to the
steam-cutter Harriet Lane; and thence, on board that vessel, they were
conveyed to New York, at which port they arrived in the course of the
month of June.
On the arrival of the Harriet Lane at New York, the prisoners were
given in charge to the United States Marshal; and, on application of
the District Attorney of the United States, a warrant was issued, under
which the prisoners were committed for trial.
On the 16th of July following, the Grand Jury of the Federal Court,
then sitting in this city, came into court and presented a true bill
against the prisoners, a copy of which Indictment is as follows:--
CIRCUIT COURT OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN
DISTRICT OF NEW YORK, IN THE SECOND CIRCUIT.[1]
At a stated Term of the Circuit Court of the United States of
America for the Southern District of New York, in the Second
Circuit, begun and held at the City of New York, within and for the
District and Circuit aforesaid, on the first Monday of April, in
the year of our Lord 1861, and continued by adjournments to the
26th day of June in the year last aforesaid:
[1] At the request of the United States District Attorney,
the publishers state that the Indictment was mainly the work
of Mr. JOHN SEDGWICK, of the New York bar.
Southern District of New York, ss.:--The Jurors of the United
States of America, within and for the District and Circuit
aforesaid, on their oath, present:
That Thomas Harrison Baker, late of the City and County of New
York, in the District and Circuit aforesaid, mariner; and John
Harleston, late of the same place, mariner; Charles Sidney
Passalaigue, late of the same place, mariner; Henry Cashman Howard,
late of the same place, mariner; Joseph Cruz del Carno, late of the
same place, mariner; Henry Oman, late of the same place, mariner;
Patrick Daly, late of the same place, mariner; William Charles
Clark, late of the same place, mariner; Albert Gallatin Ferris,
late of the same place, mariner; Richard Palmer, late of the same
place, mariner; John Murphy, late of the same place, mariner;
Alexander Carter Coid, late of the same place, mariner; and Martin
Galvin, late of the same place, mariner, on the 3d day of June,
A.D. 1861, upon the high seas, out of the jurisdiction of any
particular State, and within the admiralty and maritime
jurisdiction of the said United States of America, and within the
jurisdiction of this Court, did, with force and arms, piratically,
feloniously, and violently set upon, board, break, and enter a
certain vessel, to wit, a brig called the Joseph, the same being
then and there owned in whole or in part, by a citizen or citizens
of the United States of America, whose name or names are to the
Jurors aforesaid unknown, and did then and there in and on board of
the said brig, the Joseph, in and upon one Thies N. Meyer, then and
there being a mariner, and then and there one of the ship's company
of the said brig, the Joseph, and then and there master and
commander thereof, and in and upon Horace W. Bridges, Albert Nash,
William H. Clanning, John J. Merritt, John Quin, and Joseph H.
Golden, each then and there being a mariner and one of the ship's
company of the said brig, the Joseph, piratically, feloniously, and
violently make an assault, and them did then and there piratically,
feloniously, and violently, put in personal fear and danger of
their lives, and did then and there, the brig, the said Joseph, of
the value of $3,000, and the tackle, apparel, and furniture
thereof, of the value of $500, and 250 hogsheads of sugar, of the
value of $100 each hogshead, of the goods, chattels, and personal
property of certain persons whose names are to the jurors aforesaid
unknown, the said 250 hogsheads of sugar being then and there in
and on board of the said brig, and being then and there the lading
thereof, and the said brig, the tackle, apparel, and furniture
thereof, and the said 250 hogsheads of sugar, being then and there
in the care, custody, and possession of the said Thies N. Meyer,
Horace W. Bridges, Albert Nash, William H. Clanning, John J.
Merritt, John Quin, and Joseph H. Golden, from the said Thies N.
Meyer, Horace W. Bridges, Albert Nash, William H. Clanning, John J.
Merritt, John Quin, and Joseph H. Golden, and from their said
possession, care, and custody, and in their presence and against
their will, violently, piratically, and feloniously seize, rob,
steal, take, and carry away against the form of the statute of the
said United States of America in such case made and provided, and
against the peace of the said United States and their dignity.
_Second Count_: And the jurors aforesaid, upon their oath
aforesaid, do further present: That Thomas Harrison Baker, late of
the City and County of New York, in the District and Circuit
aforesaid, mariner; and John Harleston, late of the same place,
mariner; Charles Sidney Passalaigue, late of the same place,
mariner; Henry Cashman Howard, late of the same place, mariner;
Joseph Cruz del Carno, late of the same place, mariner; Henry Oman,
late of the same place, mariner; Patrick Daly, late of the same
place, mariner; William Charles Clark, late of the same place,
mariner; Albert Gallatin Ferris, late of the same place, mariner;
Richard Palmer, late of the same place, mariner; John Murphy, late
of the same place, mariner; Alexander Carter Coid, late of the same
place, mariner; and Martin Galvin, late of the same place, mariner,
on the third day of June, in the year of our Lord 1861, upon the
high seas, out of the jurisdiction of any particular State, and
within the admiralty and maritime jurisdiction of the said United
States of America, and within the jurisdiction of this Court, did,
with force and arms, piratically, feloniously, and violently set
upon, board, break, and enter a certain American vessel, to wit, a
brig called the Joseph, the same then and there being owned, in
part, by George H. Cables, John Cables, and Stephen Hatch, then
citizens of the United State of America, and did then and there, in
and on board of the said brig, the Joseph, in and upon one Thies N.
Meyer, then and there being a mariner and one of the ship's company
of the said brig, the Joseph, and master and commander thereof, and
in and upon divers other persons, each then and there being a
mariner and one of the ship's company of the said brig, the Joseph,
whose names are to the jurors aforesaid unknown, piratically,
feloniously, and violently make an assault, and them did then and
there piratically, feloniously, and violently put in bodily fear
and danger of their lives, and did then and there, the said brig,
the said Joseph, of the value of three thousand dollars, and the
tackle, apparel, and furniture of the same, of the value of five
hundred dollars, of the goods, chattels, and personal property of
George H. Cables, John Cables, and Stephen Hatch, citizens of the
United States of America, and two hundred and fifty hogsheads of
sugar, of the value of one hundred dollars each hogshead, of the
goods, chattels, and personal property of one Morales, whose
Christian name is to the jurors aforesaid unknown, the said sugar
being then and there in and on board of the said brig, the Joseph,
and being then and there the lading thereof, and the said brig and
the tackle, apparel, and furniture thereof, and the said two
hundred and fifty hogsheads of sugar then and there being in the
care, custody, and possession of the said Thies N. Meyer, and the
said divers other persons, mariners, as aforesaid, and of the
ship's company of the said brig, the Joseph, and whose names are to
the jurors aforesaid unknown, from the said Thies N. Meyer and the
said divers other persons, mariners, aforesaid, and of the ship's
company of the said brig, the Joseph, whose names are, as
aforesaid, to the jurors aforesaid, unknown, and from their care,
custody, and possession, and in their presence and against their
will, piratically, feloniously, and violently, rob, seize, steal,
take and carry away, against the form of the statute of the said
United States of America in such case made and provided, and
against the peace of the said United States and their dignity.
_Third Count_: And the jurors aforesaid, upon their oath aforesaid,
do further present: That Thomas Harrison Baker, late of the City
and County of New York, in the District and Circuit aforesaid,
mariner; and John Harleston, late of the same place, mariner;
Charles Sidney Passalaigue, late of the same place, mariner; Henry
Cashman Howard, late of the same place, mariner; Joseph Cruz del
Carno, late of the same place, mariner; Henry Oman, late of the
same place, mariner; Patrick Daly, late of the same place, mariner;
William Charles Clark, late of the same place, mariner; Albert
Gallatin Ferris, late of the same place, mariner; Richard Palmer,
late of the same place, mariner; John Murphy, late of the same
place, mariner; Alexander Carter Coid, late of the same place,
mariner; and Martin Galvin, late of the same place, mariner, on the
3d day of June, A.D. 1861, upon the high seas, out of the
jurisdiction of any particular State, and within the admiralty and
maritime jurisdiction of the said United States of America, and
within the jurisdiction of this Court, did, with force and arms,
piratically, feloniously, and violently set upon, board, break, and
enter a certain vessel, to wit: a brig called the Joseph, then and
there being owned by certain persons, citizens of the United States
of America, to wit: George H. Cables, John Cables, and Stephen
Hatch, of Rockland, in the State of Maine, and in and upon certain
divers persons whose names are to the jurors aforesaid unknown, the
said last-mentioned persons each being then and there a mariner,
and of the ship's company of the said brig called the Joseph, and
then and there being in and on board of the said brig the Joseph,
did then and there, piratically, feloniously, and violently make an
assault, and them did then and there piratically, feloniously, and
violently put in bodily fear, and the said brig, the Joseph, of the
value of $3,000; the apparel, tackle, and furniture thereof, of the
value of $500; of the goods, chattels, and personal property of the
said George H. Cables, John Cables, and Stephen Hatch, and 250
hogsheads of sugar of the value of $100 each hogshead, of the
goods, chattels, and personal property of one Thies N. Meyer, from
the said divers persons, mariners, as aforesaid, whose names are to
the jurors aforesaid unknown, in their presence, then and there,
and against their will, did then and there piratically,
feloniously, and violently seize, rob, steal, take, and carry away,
against the form of the statute of the said United States of
America in such case made and provided, and against the peace of
the said United States and their dignity.
_Fourth Count_: And the jurors aforesaid, upon their oath
aforesaid, do further present: That Thomas Harrison Baker, late of
the City and County of New York, in the District and Circuit
aforesaid, mariner; and John Harleston, late of the same place,
mariner; Charles Sidney Passalaigue, late of the same place,
mariner; Henry Cashman Howard, late of the same place, mariner;
Joseph Cruz del Carno, late of the same place, mariner; Henry Oman,
late of the same place, mariner; Patrick Daly, late of the same
place, mariner; William Charles Clark, late of the same place,
mariner; Albert Gallatin Ferris, late of the same place, mariner;
Richard Palmer, late of the same place, mariner; John Murphy, late
of the same place, mariner; Alexander Carter Coid, late of the same
place, mariner; and Martin Galvin, late of the same place, mariner,
on the third day of June, in the year of our Lord one thousand
eight hundred and sixty one, upon the high seas, out of the
jurisdiction of any particular State, and within the admiralty and
maritime jurisdiction of the said United States of America, and
within the jurisdiction of this Court, did, with force and arms,
piratically, feloniously, and violently set upon, board, break, and
enter a certain vessel then and there being, to wit, a brig called
the Joseph, and in and upon one Thies N. Meyer, then and there
being in and on board of the said brig, and being a mariner and
master and commander of the said brig, and the said Thies N. Meyer
then and there being a citizen of the United States of America, did
then and there piratically, feloniously, and violently make an
assault, and him, the said Thies N. Meyer, did then and there
piratically, feloniously, and violently put in great bodily fear,
and the said brig, the Joseph, of the value of $3,000, and the
tackle, apparel, and furniture thereof, of the value of $500, and
250 hogsheads of sugar, of the value of $100 each hogshead, the
same then and there being of the lading of the said brig, of the
goods, chattels, and personal property of the said Thies N. Meyer,
in his presence and against his will, did violently, feloniously,
and piratically rob, steal, seize, take, and carry away, against
the form of the statute of the said United States of America in
such case made and provided, and against the peace of the said
United States and their dignity.
_Fifth Count_: And the jurors aforesaid, upon their oath aforesaid,
do further present: That Thomas Harrison Baker, late of the City
and County of Nev York, in the District and Circuit aforesaid,
mariner; and John Harleston, late of the same place, mariner;
Charles Sidney Passalaigue, late of the same place, mariner; Henry
Cashman Howard, late of the same place, mariner; Joseph Cruz del
Carno, late of the same place, mariner; Henry Oman, late of the
same place, mariner; Patrick Daly, late of the same place, mariner;
William Charles Clark, late of the same place, mariner; Albert
Gallatin Ferris, late of the same place, mariner; Richard Palmer,
late of the same place, mariner; John Murphy, late of the same
place, mariner; Alexander Carter Coid, late of the same place,
mariner; and Martin Galvin, late of the same place, mariner, each
being a citizen of the United States of America, on the 3d day of
June, in the year of our Lord 1861, upon the high seas, out of the
jurisdiction of any particular State, and within the admiralty and
maritime jurisdiction of the United States of America, and within
the jurisdiction of this Court, in and upon one Thies N. Meyer,
then and there being, the said Thies N. Meyer then and there being
a citizen of the said United States, and he, the said Thies N.
Meyer, then and there being in and on board of a certain American
vessel of the United States of America, to wit, a brig called the
Joseph, and the said brig then and there being on the high seas as
aforesaid, did, piratically, feloniously and violently, make an
assault, and him, the said Thies N. Meyer, did, piratically,
feloniously and violently, then and there put in bodily fear, and
the said brig, the Joseph, of the value of $3,000, the tackle,
apparel and furniture of the same, of the value of $500, and 250
hogsheads of sugar, of the value of $100 each hogshead, of the
goods, chattels and personal property of the said Thies N. Meyer,
from the said Thies N. Meyer, and in his presence, and against his
will, did, piratically, feloniously and violently, seize, rob,
steal, take and carry away, against the form of the statute of the
said United States of America in such case made and provided, and
against the peace of the said United States and their dignity.
_Sixth Count_: And the Jurors aforesaid, upon their oath aforesaid,
do further present: That Thomas Harrison Baker, late of the City
and County of New York, in the District and Circuit aforesaid,
mariner; and John Harleston, late of the same place, mariner;
Charles Sidney Passalaigue, late of the same place, mariner; Henry
Cashman Howard, late of the same place, mariner; Joseph Cruz del
Carno, late of the same place, mariner; Henry Oman, late-of the
same place, mariner; Patrick Daly, late of the same place, mariner;
William Charles Clark, late of the same place, mariner; Albert
Gallatin Ferris, late of the same place, mariner; Richard Palmer,
late of the same place, mariner; John Murphy, late of the same
place, mariner; Alexander Carter Coid, late of the same place,
mariner; and Martin Galvin, late of the same place, mariner, on the
3d day of June, in the year of our Lord 1861, upon the high seas,
out of the jurisdiction of any particular State, and within the
admiralty and maritime jurisdiction of the said United States of
America, and within the jurisdiction of this Court, each then and
there being a citizen of the said United States of America, did, on
pretense of authority from a person, to wit, one Jefferson Davis,
with force and arms, piratically, feloniously and violently set
upon, board, break and enter, a certain vessel, to wit, a brig
called the Joseph, the same being then and there owned, in whole or
in part, by a citizen or citizens of the United States of America,
whose name or names are to the Jurors aforesaid unknown, and did,
on pretense of authority from a person, to wit, one Jefferson
Davis, then and there in and on board of the said brig, the Joseph,
in and upon one Thies N. Meyer, then and there being a mariner, and
then and there one of the ship's company of the said brig, the
Joseph, and then and there master and commander thereof, and in and
upon Horace W. Bridges, Albert Nash, William H. Clanning, John J.
Merritt, John Quin, and Joseph H. Golden, each then and there being
a mariner and one of the ship's company of the said brig, the
Joseph, piratically, feloniously and violently make an assault, and
them did, on pretense of authority from a person, to wit, one
Jefferson Davis, then and there piratically, feloniously and
violently, put in personal fear and danger of their lives, and did,
on pretense of authority from a person, to wit, one Jefferson
Davis, then and there, the brig, the said Joseph, of the value of
$3,000, and the tackle, apparel and furniture thereof, of the value
of $500, and two hundred and fifty hogsheads of sugar, of the value
of $100 each hogshead, of the goods, chattels and personal property
of certain persons whose names are to the Jurors aforesaid unknown,
the said two hundred and fifty hogsheads of sugar being then and
there in and on board of the said brig, and being then and there
the lading thereof, and the said brig, the tackle, apparel and
furniture thereof and the said two hundred and fifty hogsheads of
sugar, being then and there in the care, custody and possession of
the said Thies N. Meyer, Horace W. Bridges, Albert Nash, William H.
Clanning, John J. Merritt, John Quin and Joseph H. Golden, from the
said Thies N. Meyer, Horace W. Bridges, Albert Nash, William H.
Clanning, John J. Merritt, John Quin and Joseph H. Golden, and from
their said possession, care and custody, and in their presence and
against their will, violently, piratically and feloniously, seize,
rob, steal, take and carry away, against the form of the statute of
the said United States of America in such case made and provided,
and against the peace of the said United States and their dignity.
_Seventh Count_: And the Jurors aforesaid upon their oath
aforesaid, do further present: That Thomas Harrison Baker, late of
the City and County of New York, in the District and Circuit
aforesaid, mariner; and John Harleston, late of the same place,
mariner; Charles Sidney Passalaigue, late of the same place,
mariner; Henry Cashman Howard, late of the same place, mariner;
Joseph Cruz del Carno, late of the same place, mariner; Henry Oman,
late of the same place, mariner; Patrick Daly, late of the same
place, mariner; William Charles Clark, late of the same place,
mariner; Albert Gallatin Ferris, late of the same place, mariner;
Richard Palmer, late of the same place, mariner; John Murphy, late
of the same place, mariner; Alexander Carter Coid, late of the same
place, mariner; and Martin Galvin, late of the same place, mariner,
on the third day of June, in the year of our Lord one thousand
eight hundred and sixty-one, upon the high seas, out of the
jurisdiction of any particular State, and within the admiralty and
maritime jurisdiction of the said United States of America, and
within the jurisdiction of this Court, each then and there being a
citizen of the said United States of America, did, on pretense of
authority from a person, to wit, one Jefferson Davis, with force
and arms, piratically, feloniously and violently set upon, board,
break and enter a certain American vessel, to wit, a brig called
the Joseph, the same then and there being owned in part by George
H. Cables, John Cables and Stephen Hatch, then citizens of the
United States of America, and did, on pretense of authority from a
person, to wit, one Jefferson Davis, then and there in and on board
of the said brig, the Joseph, in and upon one Thies N. Meyer, then
and there being a mariner and one of the ship's company of the said
brig, the Joseph, and master and commander thereof, and in and upon
divers other persons, each then and there being a mariner, and one
of the ship's company of the said brig, the Joseph, whose names are
to the Jurors aforesaid unknown, piratically, feloniously and
violently make an assault, and them did, on pretense of authority
from a person, to wit, one Jefferson Davis, then and there,
piratically, feloniously and violently, put in bodily fear and
danger of their lives, and did, on pretense of authority from a
person, to wit, one Jefferson Davis, then and there, the said brig,
the said Joseph, of the value of $3,000, and the tackle, apparel
and furniture of the same, of the value of $500, of the goods,
chattels and personal property of George H. Cables, John Cables and
Stephen Hatch, citizens of the United States of America, and two
hundred and fifty hogsheads of sugar, of the value of $100 each
hogshead, of the goods, chattels and personal property of one
Morales, whose Christian name is to the Jurors aforesaid unknown,
the said sugar being then and there in and on board the said brig,
the Joseph, and being then and there the lading thereof, and the
said brig, and the tackle, apparel and furniture thereof, and the
said two hundred and fifty hogsheads of sugar, then and there being
in the care, custody and possession of the said Thies N. Meyer and
the said divers other persons, mariners as aforesaid, and of the
ship's company of the said brig, the Joseph, and whose names are to
the Jurors aforesaid unknown, from the said Thies N. Meyer and the
said divers other persons, mariners as aforesaid, and of the ship's
company of the said brig, the Joseph, whose names are as aforesaid
to the Jurors aforesaid unknown, and from their care, custody and
possession, and in their presence and against their will,
piratically, feloniously, and violently, rob, seize, steal, take
and carry away, against the form of the statute of the said United
States of America in such case made and provided, and against the
peace of the said United States and their dignity.
_Eighth Count_: And the Jurors aforesaid, upon their oath
aforesaid, do further present: That Thomas Harrison Baker, late of
the City and County of New York, in the District and Circuit
aforesaid, mariner; and John Harleston, late of the same place,
mariner; Charles Sidney Passalaigue, late of the same place,
mariner; Henry Cashman Howard, late of the same place, mariner;
Joseph Cruz del Carno, late of the same place, mariner; Henry Oman,
late of the same place, mariner; Patrick Daly, late of the same
place, mariner; William Charles Clark, late of the same place,
mariner; Albert Gallatin Ferris, late of the same place, mariner;
Richard Palmer, late of the same place, mariner; John Murphy, late
of the same place, mariner; Alexander Carter Coid, late of the same
place, mariner; and Martin Galvin, late of the same place, mariner,
on the 3d day of June, in the year of our Lord, 1861, upon the high
seas, out of the jurisdiction of any particular State and within
the admiralty and maritime jurisdiction of the said United States
of America and within the jurisdiction of this Court, each then and
there being a citizen of the said United States of America, did, on
pretense of authority from a person, to wit, one Jefferson Davis,
with force and arms, piratically, feloniously, and violently, set
upon, board, break, and enter a certain vessel, to wit, a brig,
called the Joseph, then and there being owned by certain persons,
citizens of the United States of America, to wit, George H. Cables,
John Cables, and Stephen Hatch, of Rockland, in the State of Maine,
and in and upon certain divers persons whose names are to the
Jurors aforesaid unknown, the said last-mentioned persons each
being then and there a mariner, and of the ship's company of the
said brig called the Joseph, and then and there being in and on
board of the said brig, the Joseph, did, on pretense of authority
from a person, to wit, one Jefferson Davis, then and there,
piratically, feloniously, and violently, make an assault, and them
did, on pretense of authority from a person, to wit, one Jefferson
Davis, then and there, piratically, feloniously, and violently, put
in bodily fear, and the said brig, the Joseph, of the value of
$3,000, and the apparel, tackle, and furniture thereof, of the
value of $500, of the goods, chattels, and personal property of the
said George H. Cables, John Cables, and Stephen Hatch, and 250
hogsheads of sugar, of the value of $100 each hogshead, of the
goods, chattels, and personal property of one Thies N. Meyer, from
the said divers persons, mariners as aforesaid, whose names are to
the Jurors aforesaid unknown, in their presence, then and there,
and against their will, did, on pretense of authority from a
person, to wit, one Jefferson Davis, then and there, piratically,
feloniously, and violently, seize, rob, steal, take and carry away,
against the form of the statute of the said United States of
America in such case made and provided, and against the peace of
the said United States and their dignity.
_Ninth Count_: And the Jurors aforesaid, upon their oath aforesaid,
do further present: That Thomas Harrison Baker, late of the City
and County of New York, in the District and Circuit aforesaid,
mariner; and John Harleston, late of the same place, mariner;
Charles Sidney Passalaigue, late of the same place, mariner; Henry
Cashman Howard, late of the same place, mariner; Joseph Cruz del
Carno, late of the same place, mariner; Henry Oman, late of the
same place, mariner; Patrick Daly, late of the same place, mariner;
William Charles Clark, late of the same place, mariner; Albert
Gallatin Ferris, late of the same place, mariner; Richard Palmer,
late of the same place, mariner; John Murphy, late of the same
place, mariner; Alexander Carter Coid, late of the same place,
mariner; and Martin Galvin, late of the same place, mariner, on the
3d day of June, in the year of our Lord 1861, upon the high seas,
out of the jurisdiction of any particular State, and within the
admiralty and maritime jurisdiction of the said United States of
America, and within the jurisdiction of this Court, each then and
there being a citizen of the said United States of America, did, on
pretense of authority from a person, to wit, one Jefferson Davis,
with force and arms, piratically, feloniously, and violently set
upon, board, break, and enter a certain vessel then and there
being, to wit, a brig called the Joseph, and in and upon one Thies
N. Meyer, then and there being in and on board of the said brig,
and being a mariner and master and commander of the said brig, and
the said Thies N. Meyer then and there being a citizen of the
United States of America, did, on pretense of authority from a
person, to wit, one Jefferson Davis, then and there, piratically,
feloniously, and violently, make an assault, and him, the said
Thies N. Meyer, did, on pretense of authority from a person, to
wit, one Jefferson Davis, then and there, piratically, feloniously,
and violently, put in great bodily fear, and the said brig, the
Joseph, of the value of $3,000, and the tackle, apparel, and
furniture thereof, of the value of $500, and 250 hogsheads of
sugar, of the value of $100 each hogshead, the same then and there
being of the lading of the said brig, of the goods, chattels, and
personal property of the said Thies N. Meyer, in his presence and
against his will, did, on pretense of authority from a person, to
wit, one Jefferson Davis, violently, feloniously, and piratically,
rob, steal, seize, take, and carry away, against the form of the
statute of the said United States of America in such case made and
provided, and against the peace of the said United States and their
dignity.
_Tenth Count_: And the Jurors aforesaid, upon their oath aforesaid,
do further present: That Thomas Harrison Baker, late of the City
and County of New York, in the District and Circuit aforesaid,
mariner; and John Harleston, late of the same place, mariner;
Charles Sidney Passalaigue, late of the same place, mariner; Henry
Cashman Howard, late of the same place, mariner; Joseph Cruz del
Carno, late of the same place, mariner; Henry Oman, late of the
same place, mariner; Patrick Daly, late of the same place, mariner;
William Charles Clark, late of the same place, mariner; Albert
Gallatin Ferris, late of the same place, mariner; Richard Palmer,
late of the same place, mariner; John Murphy, late of the same
place, mariner; Alexander Carter Coid, late of the same place,
mariner; and Martin Galvin, late of the same place, mariner, each
being a citizen of the United States of America, on the 3d day of
June, in the year of our Lord 1861, upon the high seas, out of the
jurisdiction of any particular State, and within the admiralty and
maritime jurisdiction of the United States of America, and within
the jurisdiction of this Court, in and upon one Thies N. Meyer,
then and there being, the said Thies N. Meyer, then and there being
a citizen of the said United States, and he, the said Thies N.
Meyer, then and there being in and on board of a certain American
vessel, of the United States of America, to wit, a brig called the
Joseph, and the said brig then and there being on the high seas as
aforesaid, did, on pretense of authority from a person, to wit, one
Jefferson Davis, piratically, feloniously and violently, make an
assault, and him, the said Thies N. Meyer, did, on pretense of
authority from a person, to wit, one Jefferson Davis, piratically,
feloniously and violently, then and there put in bodily fear, and
the said brig, the Joseph, of the value of $3,000, the tackle,
apparel and furniture of the same, of the value of $500, and 250
hogsheads of sugar, of the value of $100 each hogshead, of the
goods, chattels and personal property of the said Thies N. Meyer,
from the said Thies N. Meyer, and in his presence, and against his
will, did, on pretense of authority from a person, to wit, one
Jefferson Davis, piratically, feloniously and violently seize, rob,
steal, take and carry away, against the form of the statute of the
said United States of America in such case made and provided, and
against the peace of the said United States and their dignity.
And the Jurors aforesaid, on their oath aforesaid, do further
present: That the Southern District of New York, in the Second
Circuit, is the district and circuit in which the said Thomas
Harrison Baker, John Harleston, Charles Sidney Passalaigue, Henry
Cashman Howard, Joseph Cruz del Carno, Henry Oman, Patrick Daly,
William Charles Clark, Albert Gallatin Ferris, Richard Palmer, John
Murphy, Alexander Carter Coid, and Martin Galvin, were brought and
in which they were found, and is the district and circuit where
they were apprehended, and into which they were first brought, for
the said offense.
E. DELAFIELD SMITH,
Attorney of the United States for the Southern District of New
York.
On Wednesday, the seventeenth of July, the prisoners were brought into
Court to plead to the Indictment, when MR. E. DELAFIELD SMITH, United
States District Attorney, said:
_If the Court please_,--In the case of Baker and others, the prisoners
now at the bar, indicted for robbery on the high seas, I move that they
be arraigned. I may here remark, that I have caused the service of a
notice of this motion upon all the counsel known to me as engaged in
the case; and if any gentleman has not received a notification, the
omission proceeds from the fact that his name has not been given to the
District Attorney. I understand that Mr. Larocque is counsel for one or
two of the prisoners, and that he is in the building.
_Mr. Larocque_ here entered the Court.
_The District Attorney_: I would now renew my motion that the prisoners
at the bar be arraigned under the indictment presented yesterday.
_Mr. Larocque_: If your honor please, I represent but one of the
prisoners. There are other counsel, I believe, who represent them
generally. I appear for Mr. Harleston (the mate), and I will now state
what I have to say with respect to the motion made by the District
Attorney. Mr. Daniel Lord is associated with me, and I believe he is
now engaged in the adjoining Court, but will soon be here. The Court
will perceive that the learned District Attorney has very properly
taken a considerable period of time for the framing of this indictment.
It is some weeks now since the warrant of arrest was issued, and the
course which he has taken certainly deserves great commendation; for
the indictment in this case, more than any other that has ever been
found in this Court, required greater care in its preparation, and it
is one which will certainly present more important questions than
probably any that has ever been tried in this Court. The indictment was
only presented yesterday, and, as far as I am concerned, I was only
informed of its presentation late yesterday afternoon. Of course, I had
no opportunity to examine it. I believe it is quite a voluminous
document, and contains a great many counts; and before the prisoners at
the bar would be prepared to plead to the indictment, it will certainly
be necessary that their counsel should examine it with care, and
determine what course to take with regard to it; and then, probably,
there may be some application that it will be necessary to make to the
Court before the prisoners will be prepared to plead. I therefore
desire a postponement for that purpose, until we can have time to
examine this indictment.
_The District Attorney_: I doubt not it is proper that time should be
given to examine this indictment, and to adopt such course with respect
to it as gentlemen standing in the sacred relation of counsel may deem
it their duty to take. I should be very glad, however, if that time
could be, with due regard to the convenience of counsel, so near as
that the pleas may be recorded and the trial set down for some day
before the Court adjourns. I shall be ready, if your honor please, on
behalf of the Government, to try the prisoners on any day. I shall be
prepared to try them within two or three days; but, certainly, it is
right that counsel should have time to examine the indictment, as
suggested. I hope only that such examination may be made speedily, as I
understand your honor will adjourn the Court at an early day.
_Mr. Larocque_: It would be utterly impossible for this case to be
tried this term. In conversation with the counsel for the Government, a
few days ago, the gentleman himself declared that the case could not be
tried this term of the Court, and it would be impossible, your honor,
for us to be ready for trial during this term. It will be necessary for
us to obtain testimony from abroad, out of the limits of this State,
and that cannot be procured in time to try the case this term.
Certainly, no interest of public justice can suffer by a delay of the
trial of this case; and I think it is eminently proper, and I am sure
the Court will agree with me, that a proceeding of this importance
should be conducted with deliberation, and that ample time should be
given to the prisoners to prepare their defence. I had understood,
moreover, that some intimation had been made by your honor's associate
on the bench (Judge Nelson) that he would attend upon the trial of this
case. I am told that Judge Nelson met with an accident shortly after
his return home from his attendance upon his judicial duties, by being
run away with by a horse, and that he is so lame that he is unable to
move at present; and I am very credibly assured that Judge Nelson has
expressed his conviction that it was his duty to attend and to sit on
the trial of this case. Very important questions of law will be
presented, and your honor is aware that in a criminal case in this
Court there is no writ of error. The prisoner has the right to a review
of any decision that might be made in this Court, in case a difference
of opinion should arise between the Judges who preside. And certainly,
in a case of such great importance as this is, where the lives of so
many prisoners are at stake, it is of the utmost consequence that there
should be a full Court present when the prisoners are tried. So far
with respect to the trial of the case. Now, your honor is also aware
that, by the statutes of the United States, the prisoners have a right
to a certain period of time before any movement can be made with a view
to trial. We certainly cannot be ready to plead to this indictment in
less than a week.
_The District Attorney_: The Court will permit a single remark
concerning the conversation to which my learned friend has alluded. I
never intended to say decidedly that the trial could not take place
during the present term. I did, however, at one time, express an
opinion that, as the term was nearly ended, and as the summer was upon
us, probably I should not succeed in bringing the case on for trial
until the autumn. As, however, the indictment has been promptly found,
delay till fall is, I trust, unnecessary. Events continually taking
place upon the ocean seem to render it important that the trial should
take place at an early day. With these suggestions, I leave the matter
entirely with the Court, where, of course, it ultimately belongs.
_Mr. Sullivan_: May it please the Court, I appear for Captain Baker,
the first prisoner named in the indictment.
_Judge Shipman_ asked who appeared for the other prisoners. He wished
to know if all the prisoners were supplied with counsel; if not, he
would assign them counsel.
_Mr. Sullivan_ said he did not desire a week's postponement, as he
understood his honor had intimated that the Court would adjourn on
Wednesday. As to the time of trial, he was authorized and instructed
specially to say for Captain Baker that he would ask for no delay other
than what was absolutely necessary for his counsel to prepare. He (Mr.
Sullivan) hoped that the Court would continue its session specially to
hear the case, or at least to try some portion of the defendants. He
made that remark on the presumption that the defendants would ask to be
tried separately.
_Mr. Mayer_ said he appeared for one of the seamen, Wm. C. Clark; and
he concurred in Mr. Larocque's remarks.
_Judge Shipman_: It is hardly necessary now to discuss when the case
will be set down for trial. The motion now before the Court is for the
arraignment of the prisoners, and counsel asks for time to plead. I
should like to know the names of the counsel who appear for the
prisoners.
_Mr. Larocque_ said he appeared, in conjunction with Mr. Lord, for Mr.
Harleston.
_Mr. Ridgway_ appeared for the sailors Carno, Oman, Daly, Palmer,
Murphy, Galvin, and Coid; and he, also, concurred in the motion for
time to plead.
_Mr. Sandford_ appeared for Albert G. Ferris, and desired that the
trial should be brought on as speedily as possible.
_The District Attorney_: I have a suggestion to make as to the time of
pleading. With regard to the indictment, when counsel come to examine
it, I think they will find, that although the counts are numerous, yet,
after all, the indictment is simple. I would suggest that counsel
should examine the record between this and to-morrow morning, and then
the prisoners could undoubtedly be arraigned without objection.
_Mr. Daniel Lord_: I perceive that the prisoners are brought here to
plead in chains. If that is to be repeated each time they are brought
here, I would wish to have the time named when they are to plead.
_Mr. James T. Brady_ said that he believed the engagement under which
he acted, in connection with some other gentlemen, covered the cases of
all the accused who had not already been represented before his honor
by distinct counsel.
_Judge Shipman_: There is no necessity, then, for the Court to assign
counsel?
_Mr. Brady_: In response to your honor, allow me to say that I
represent Captain Baker more particularly. From the very necessity of
this case a number of counsel have been employed, and more, probably,
than will take part, as your honor is well aware, in the trial. I have
had the pleasure of conferring with Mr. Lord only once since this case
arose; and as he is in every respect the senior of the gentlemen who
are employed in the case, we should like an opportunity for conference.
It is highly important to determine what species of plea should be put
into the indictment; and while, as I remarked, all the counsel may not
take a prominent part in the argument or the trial, yet their judgments
ought to be considered by each other, and some decisive course
concluded upon. There certainly can be no great occasion for hurry, as
these men are closely confined, and certainly are under the closest
kind of restraint, from what I see around me (glancing at the
prisoners, handcuffed). I don't suppose there is any apprehension, even
if the prison doors were opened, that they would be likely to escape,
from the state of feeling which at present exists in this city and this
section of the country. We only wish for time that is necessary to
determine what kind of an answer to make to this indictment; and after
that we will proceed, I venture to say, with the utmost diligence, to
have this case prepared for trial, or it may probably turn out that
there will be no necessity for any trial. That may occur to a legal
mind, or it may not.
_Judge Shipman_: Well, let the prisoners be remanded until Tuesday
morning next.
The Court then adjourned.
On Tuesday, the twenty-third of July, the prisoners were again brought
into Court, and were placed within the bar, at the south end of the
room.
_E. Delafield Smith, Esq._, District Attorney, moved that the prisoners
be arraigned.
_Algernon S. Sullivan, Esq._, of counsel for the prisoners, stated that
all the prisoners were represented by counsel, and that they were
acquainted with the charges contained in the indictment.
The prisoners were ordered to stand up; and the Clerk of the Court
called T. Harrison Baker, saying: "You have been indicted for robbery
on the high seas; how do you plead--guilty, or not guilty?" To which
Mr. Baker replied, "Not guilty."
_The District Attorney_ suggested that the indictment be read to the
prisoners, unless each one of them expressly waived the reading. He
would prefer to have it read, however.
The prisoners' counsel respectively submitted that it was of no
consequence. The accused knew the contents of it.
_Judge Shipman_ remarked that the reading of the indictment would
consume some time; but the District Attorney said that questions had
been raised on this point, and, to insure regularity, he desired to
have the indictment read; whereupon the Court ordered the Clerk to read
the instrument.
At the conclusion of the reading, the prisoners severally pleaded, each
for himself, "not guilty."
_District Attorney Smith_: If the Court please, the facts in this case
are exceedingly simple. The evidence in reference to them--as well such
as is required by the prosecution, as that which we may suppose to be
desired by the defendants--is within a narrow range and easily
attainable. I have examined the testimony with care. There can be no
doubt, upon the evidence in the case, that the prisoners are guilty,
and that as a matter of law, as well as a matter of fact, they ought to
be convicted. It is impossible to close our eyes to the facts relating
to this case, as they bear upon what is daily taking place upon the
high seas. The merchant marine of the country is subjected to piratical
seizure from day to day. Murder is the natural child of robbery, and we
may daily expect to hear of bloodshed on the ocean, in attempting the
execution of the purpose conceived by so many of our countrymen, to
deal a death-blow to American commerce.
It seems to me, that the ends of public justice require that I should
urge upon your Honor the propriety and necessity of an early trial of
this issue. If, peradventure, the prisoners are innocent, it can work
no injury to them; if guilty, they ought to be convicted, and in my
judgment, the law ought to take its course to the end, in order that an
example may be set to those who are pursuing the species of marauding,
of which I think the testimony will show the prisoners to have been
guilty.
I respectfully urge, that the trial be set down for Wednesday, July
31st, a week from to-morrow. I may add that I shall be happy to render
to the counsel for the prisoners every facility within my power for the
presentation of all the facts. The plea of authority, which we can
anticipate, is set forth in the indictment, and a copy of the letter of
marque has been furnished to counsel for the defence. I can see no
valid reason for postponing the trial; none, certainly, in the present
state of the country.
_Mr. Larocque_ said, it seemed to him the idea might have occurred to
the District Attorney, that these men had not yet been convicted. The
law presumed every man to be innocent until he was proved guilty. The
counsel should not presume these men to be guilty until they were
tried. There were questions of international law involved in this case
which would be entitled to consideration. The counsel for the United
States would learn that he had misunderstood the meaning of the statute
under which these men were indicted. The prisoners' counsel were not
ready. They required documentary evidence and witnesses to be procured
from a distance. They could not be ready to go on at this term of the
Court. He submitted that a cause of this magnitude should not be
disposed of so hurriedly. What had the prisoners to do with others on
the ocean? Did the counsel for the Government desire to hurry them to
trial unprepared for the purpose of striking terror to those on the
ocean? He could not believe it to be so.
_Mr. Sullivan_ said the prisoners would not ask any further delay after
procuring their testimony. Some of the evidence could not be obtained
this side of Charleston, and it would be impossible to procure it under
three or four weeks. The case involved the legal status between the
United States and the seceded States. He opposed setting down the case
for trial on next Wednesday.
_Mr. Davega_, of counsel for the prisoners, also opposed the motion,
reiterating the statements in relation to the testimony to be procured.
_Mr. Mayer_ called the attention of the District Attorney to the fifth
count of the indictment, describing the prisoners as citizens of the
United States. His client was a citizen of Hamburg, and he would not be
ready to try the case in several weeks.
_Mr. Daniel Lord_, in behalf of Mr. Harleston, said this case involved
the lives of thirteen men. If the District Attorney supposed the law of
the case was simple, he took a very different view of it from what that
gentleman did.
_The District Attorney_, in reply, said that in respect to the
intimation of a necessity to refer to Charleston, it was a matter of
notoriety that the prisoners were in constant communication with that
city. Counsel were bound to disclose the nature of testimony required,
that the Court might judge of the sufficiency of the reasons for a
postponement. Much of it might be to facts which the prosecution would
admit; as, in reference to the question of citizenship, there would be
no difficulty in conceding the fact that certain of the prisoners were
not citizens of the United States. He was not tenacious as to the very
day named. Without throwing the case over to the fall term, the trial
could be so fixed as to afford counsel ample opportunity to collect
their proofs and examine the questions of law involved. All the
difficulties suggested to impede the trial were obstructions created by
these defendants themselves and their confederates, and it was in the
nature of taking advantage of their own wrong to seek a postponement
because of the existence of a state of things for which they were
responsible. It had been said, thirteen lives are at issue. He would
say that many more lives were at stake--lives, in his judgment, of far
greater value--the lives of innocent officers and sailors in the
merchant marine. The facts are simple. The law appears to be certain.
There can be no defence here, the nature of which is not visible. The
only justification for the piracy would seem to be the treason. If the
prisoners ought justly to be convicted, such conviction should be
speedy, in order to deter their confederates from expeditions partaking
of the character of both treason and piracy.
_Judge Shipman_ said, that he had no doubt in relation to the
disposition to be made of this motion. The Court could not have several
sets of rules to apply at will to the same class of cases; and even if
the Court had power to adopt a different rule in some criminal cases
from that fixed in others of the same grade, it would be very
questionable whether such power ought to be exercised. The law had made
no distinction in regard to this class of criminal offences. Upon the
statute book of the United States are various acts of Congress defining
atrocious crimes punishable capitally; and among these, is the crime of
piracy, or robbery upon the high seas, for which the defendants are
indicted. In all cases where parties are charged with criminal
offences, and especially with capital crimes, it is customary to give
the defendants a reasonable time for the preparation of their defence;
and the Court must always assume and act, so far as the technical
proceedings are concerned, upon the presumption of innocence which the
law always interposes. The Court cannot take into consideration many of
the suggestions made by counsel for the Government or for the defence;
and in disposing of this motion, I wish it to be distinctly understood
that I do so just as I should in any other case of alleged robbery or
piracy upon the high seas, where, if the defendants be convicted, they
must suffer, according to the statute, the penalty of death. I cannot
look at other considerations. I cannot anticipate other defences. In
the administration of the criminal law, although the principles are
usually very simple, and although, for aught I know, they may be as
simple when applied to this case as to any other, yet in the
application of those principles, there is often ground for difference
of opinion. Courts that have been long regarded as entitled to very
great respect for learning, discrimination, and experience, frequently
differ as to the application of principles of law to particular cases.
In view of this fact, in capital cases, it has been a rule usually
adhered to in the United States Circuit Courts (which are so
constituted by the Act of Congress that two Judges are authorized to
sit) to have, if applied for, a full Court, so that the defendant might
have the benefit, if I may so speak, of the chance of a division of
opinion. For such division of opinion constitutes the only ground upon
which the case can be removed to a higher Court for revision. In this
view of the case, and upon the strenuous application of the defendants
for the presence of a full Court, I certainly cannot deny the
application consistently with my judgment of what is right and proper;
and I say this with a full recognition of the importance of this trial.
I might add, it may be desirable for the Government, in the event of a
certain determination of this case, that in the preliminary
proceedings--the time fixed for trial and the constitution of the
Court--there should be nothing to weaken the full and appropriate
effect of such determination.
After some observations in regard to two exceptional cases--that of
Gordon, on his first trial for engaging in the slave trade,[2] and the
case of the parties convicted of murder on board the ship "Gen.
Parkhill," both cases having been tried before a District Judge sitting
alone, the counsel for the defendant in each case making no request to
have a full Court--Judge Shipman went on to say, that in consequence of
Judge Nelson's engagements in another District, in September, and in
view of his confinement with the effects of a fall from his carriage,
which would prevent his sitting in August, he (Judge Nelson) could not
probably hear this case until the October term. He therefore ordered
the trial to be set down for the third Monday of October, at eleven
o'clock.
[2] The second trial of Gordon, resulting in a conviction,
took place before a full Court, Mr. Justice NELSON sitting
with Judge SHIPMAN.
The prisoners were remanded to the custody of the Marshal, and their
manacles, which had been removed while they were in Court, being
replaced, they were taken to the Tombs.
TRIAL OF THE OFFICERS AND CREW OF THE SCHOONER SAVANNAH, ON THE
CHARGE OF PIRACY.
UNITED STATES CIRCUIT COURT, SOUTHERN DISTRICT OF NEW YORK.
Wednesday, Oct. 23, 1861.
THE UNITED STATES
_against_
THOMAS HARRISON BAKER,
CHARLES SYDNEY PASSALAIGUE,
JOHN HARLESTON,
JOSEPH CRUSE DEL CARNO,
PATRICK DALY,
JOHN MURPHY,
MARTIN GALVIN,
HENRY CASHMAN HOWARD,
HENRY OMAN,
WILLIAM CHARLES CLARKE,
RICHARD PALMER,
ALEXANDER CARTER COID,
ALBERT G. FERRIS.
HON. JUDGES NELSON AND SHIPMAN PRESIDING.
_Counsel for the United States_:
E. DELAFIELD SMITH, WM. M. EVARTS, SAML. BLATCHFORD, ETHAN ALLEN.
_Counsel for the Defendants_:
BOWDOIN, LAROCQUES & BARLOW, DANIEL LORD, JAMES T. BRADY, ALGERNON S.
SULLIVAN, JOSEPH H. DUKES, ISAAC DAVEGA, MAURICE MAYER.
_E. Delafield Smith, Esq._, United States District Attorney, stated
that he desired to use Albert Gallatin Ferris, one of the prisoners
indicted, as a witness, and would therefore enter a _nolle prosequi_ in
regard to him.
_The Court_: Are the prisoners to be tried jointly?
_Mr. Lord_: I believe so, sir.
_The Clerk_ called over the names of the prisoners, directing them to
challenge the Jurors as called.
_Judge Nelson_: Those of the prisoners who desire to do so may take
seats by the side of their counsel.
_The Clerk_ proceeded to call the panel.
_Edward Werner_ called, and challenged for principal cause by Mr.
Smith:
_Q._ Have you any conscientious scruples that would prevent your
finding a verdict of guilty, in a capital case, where the evidence was
sufficient to convince you that the prisoner was guilty?
_A._ No, sir.
_By Mr. Larocque_, for the prisoners:
_Q._ Have you read the account in the newspapers of the capture of the
Savannah privateers?
_A._ Yes, sir.
_Q._ Have you ever formed or expressed any opinion as to the guilt or
innocence of these prisoners?
_A._ No, sir.
_Q._ Have you ever formed or expressed any opinion as to whether they
were guilty of piracy, if the facts were as alleged?
_A._ No, sir.
Challenge withdrawn. _Juror sworn._
_William H. Marshall_ called, and challenged for principal cause:
_Q._ Have you any conscientious scruples that would prevent your
finding a verdict of guilty in a capital case, where the evidence was
sufficient to convince you that the prisoner was guilty?
_A._ No, sir.
_By Mr. Larocque_, for the prisoners:
_Q._ You read the account of the privateer Savannah?
_A._ I believe I have.
_Q._ Have you formed or expressed any opinion as to the guilt or
innocence of the prisoners?
_A._ No, sir.
_Q._ Have you ever formed or expressed any opinion as to whether they
were guilty of piracy, if the facts were as alleged?
_A._ I have not formed any opinion as to these men.
_Q._ As to the general question, whether cruising under a commission
from the Confederate States is piracy?
_A._ I do not think I have formed any opinion, or expressed one.
Challenge withdrawn. _Juror sworn._
_William Powell_ called, and challenged for principal cause by Mr.
Smith:
_Q._ Have you any conscientious scruples that would prevent your
finding a verdict of guilty, in a capital case, where the evidence was
sufficient to convince you that the prisoner was guilty?
_A._ No, sir.
_By Mr. Larocque_, for the prisoners:
_Q._ Have you formed or expressed any opinion as to the guilt or
innocence of these prisoners?
_A._ I have not formed any opinion that would prevent me from giving a
verdict according to the facts of the case. I have read the account,
and I presume have formed such an opinion as most men do from reading
an account, if the facts be so and so.
_Q._ Have you formed any opinion as to whether cruising, under a
commission from the Confederate States, is piracy?
_A._ Yes, sir, I have.
_Mr. Evarts_ objected that this was purely a question of law, and one
jurors should not be inquired of.
_The Court_ sustained the objection.
_Q._ Did you believe the accounts which you read of this transaction?
_A._ Well, it is difficult to say. There is so much published in the
papers now-a-days that is not correct, that I am hardly prepared to say
I believe anything I see, without palpable evidence. I believe the fact
of the capture of the Savannah.
_Q._ Did you read what had been done by the Savannah before she was
captured?
_A._ Well, I formed no opinion with regard to that.
_Q._ Did you form an opinion of the character of the act with which the
defendants were charged?
_A._ No, sir.
_Q._ Do you entertain the settled opinion that acting under a
commission from President Davis, or the Confederate Government,
constitutes piracy?
_Mr. Evarts_ objected that this was a question of law.
_The Court_: I doubt whether that is a question that would be proper.
_Mr. Larocque_: This is a very peculiar case, as your honor is well
aware. It is a case of first impression in the courts of the United
States. It is a case in which, probably, there will be very little
difference between the prosecution and the defendants as to the mere
facts which are charged in this indictment, and it is a case in which
jurors who present themselves to be sworn, if they have any bias or
prejudice whatever, have it rather in reference to the character of the
acts than as to the acts themselves having been committed or not having
been committed. Now, we all know, if your honor please, that in all
criminal trials a great deal of discussion has always taken place with
reference to the jurisdiction of the jury over questions of law. The
Courts have held that they are bound to receive their instructions on
the law from the Court; but, at the same time, if they do not act in
pursuance of the instructions which they receive, it is a matter
between them and their own consciences, and it is a matter which no
form of review in these Courts will reach. Now, one of my associates
has handed to me an authority upon this subject from 1st Baldwin's
Reports--that on the trial of Handy, in 1832, for treason, Judge Grier
held that a juror who had formed an opinion that the riots in question
did not amount to treason, was incompetent; and, in the case of the
United States _v._ Wilson, it was held that a juror was incompetent who
stated, on being challenged, that he had read the newspaper account of
the facts at the time, and had come to his own conclusion, and had made
up his mind that the offence was treason, although he had not expressed
that opinion, nor formed or expressed an opinion that the defendant was
or was not engaged in the offence. It seems to me that these
authorities cover precisely the case before the Court, the only
difference being that this is a charge of piracy, and the other a
charge of treason.
_Judge Nelson_: The only difference is that there the question was put
to the juror as to the crime, after it appeared he had read the account
of the transaction, which involved both the law and the facts--involved
the whole case; but as we understand your question, you put a pure
question of law, which we do not think belongs to the juror.
_Mr. Larocque_: I understand your honor to rule the question is not
admissible.
_Judge Nelson_: Yes.
Defendants' Counsel took exception.
_Mr. Larocque_: Permit me to put the question in two forms.
_Q._ Have you formed or expressed the opinion that the acts charged, if
proved, constitute the offence of piracy?
_The Court_: That question is admissible.
_A._ I have not expressed the opinion, and I can hardly say I have
formed an opinion, because I am not sufficiently informed on the law to
do so.
Challenge withdrawn. _Juror sworn._
_The Court_: Then the other form of the question is withdrawn?
_Mr. Larocque_: Yes, sir; we are satisfied with the form of the
question the Court allows us to put.
_James Cassidy_ called. Challenged for principal cause, by Mr.
Larocque, for the defendants.
_Q._ Did you read the account of the capture of the Savannah privateer?
_A._ I believe I did.
_Q._ Have you formed or expressed any opinion upon the guilt or
innocence of these prisoners?
_A._ I believe not, sir. I may have made some mention of it at the time
of reading the transaction, but not to express any opinion.
_Q._ Have you formed or expressed an opinion whether the facts, if
proved, constitute the offence of piracy?
_A._ No, sir.
_By Mr. Smith_:
_Q._ Have you any conscientious scruples on the subject of capital
punishment that would interfere with your rendering a verdict of
guilty, if the evidence proved the prisoners to be guilty?
_A._ No, sir.
Challenge withdrawn. _Juror sworn._
_Joel W. Poor_ called. Challenged for principal cause by Mr. Smith:
_Q._ Have you any opinion on the subject of capital punishment which
would prevent your rendering a verdict of guilty, if the evidence was
such as to satisfy you?
_A._ No, sir.
_By Mr. Larocque_, for the prisoners:
_Q._ Have you read the account of the capture of the Savannah
privateers?
_A._ I have.
_Q._ Have you formed or expressed any opinion as to the guilt or
innocence of the prisoners?
_A._ I think not, sir.
_Q._ Have you formed or expressed any opinion whether the facts
charged, if proved, constitute the offence of piracy?
_A._ I have not.
_Q._ Have you never conversed on this subject?
_A._ I do not think I have.
_Q._ Have you no recollection of having conversed upon it at all?
_A._ I may have talked about it something at the time, but I do not
recollect.
_Q._ Are you a stockholder, or connected with any marine insurance
company?
_A._ No, sir.
_Q._ Have you been engaged in Northern trade?
_A._ No, sir.
_Challenged peremptorily_, by prisoners.
_Thomas Dugan_ called. Challenged for principal cause, by Mr. Smith:
_Q._ Have you any conscientious scruples that would interfere with your
rendering a verdict of guilty, if you deemed the prisoners guilty upon
the evidence?
_A._ I have strong conscientious scruples.
_Mr. Smith_ asked that the juror stand aside.
Defendants' Counsel objected to the question, as not proper in form.
Objection sustained.
_Q._ In a capital case, where the evidence is sufficient to satisfy
your mind of the prisoner's guilt, have you any conscientious scruples
that would prevent your finding a verdict of guilty?
_A._ If I may explain, I would endeavor to find a verdict; but I
believe my sympathy would control my judgment to that extent that I
would not be able to do my duty between the people and the prisoner. I
have been on a jury before, and I doubt that my judgment would be
controlled by my sympathy.
_Mr. Larocque_: The witness has not said his sympathies would be of
that strength that would prevent his finding a verdict of guilty, if
the evidence was satisfactory. A juror that has doubts of himself is
the most honest and reliable, according to all experience in criminal
trials.
_The Court_: Examine him on that point.
_By Mr. Larocque_:
_Q._ Suppose that upon this trial the facts charged in this indictment
were proved by clear and satisfactory evidence, and the Court should
instruct you, upon that evidence, that those facts constitute the
offence of piracy, would your conscientious scruples be so strong as to
prevent your finding a verdict of guilty in such a case as that?
_A._ There must be not a shadow of doubt. It must be strong and
conclusive in my mind before a verdict is rendered.
_Q._ But where there was strong, conclusive evidence, you would render
a verdict of guilty?
_A._ Yes, sir.
_Mr. Evarts_: It is pretty apparent that the juror does not regard
himself as in a position to deal impartially with this question, which
involves human life. The intention of this cause of challenge is, that
the juror should be in a position to yield to the evidence that just
assent which its character is entitled to call for, unimpeded by his
repugnance to the result when fatal to human life. Still, if your honor
should not think that upon this ground he ought to be excluded
absolutely, certainly it would be consistent with the course of
practice, and with the just feeling of the juror, that he should stand
aside until the panel be made up.
_Mr. Brady_: That practice I understand not to prevail any longer,
since it has been provided that the empanneling of jurors in the United
States Courts shall be the same as in the State Courts, and we do not
consent to any such principle as the gentleman proposes. Your honor has
decided that a juror, to disqualify him from serving in a capital case,
must say that his conscientious scruples are of such a character that,
though the evidence be clear and conclusive under the law, as stated by
the Court, they would prevent his doing his duty and giving a verdict
of guilty. To my mind, nothing can be more clear and satisfactory than
the statement of the juror himself, which exhibits a state of mind that
should be possessed by every juror; that is, that he must be satisfied
beyond all reasonable doubt of the guilt of the accused before
rendering a verdict of guilty; and when be speaks of his sympathy on
behalf of human life, it is only that sympathy which the law recognizes
where it gives the prisoner the benefit of every doubt. It is true he
does use the expression that there must not be the shadow of a doubt;
but when the Court comes to expound the law, he will be instructed that
it must be a reasonable doubt. I do not see anything against the juror
on the ground of conscientious scruples. Your honor knows that the
prosecution have no peremptory challenge in cases of piracy or treason,
and the old practice of setting aside jurors until the panel is
exhausted, and then, if not able to make up twelve without the rejected
jurors, requiring their acceptance, has passed. That is decided in the
case of Shackleford, in 18 Howard's Reports.
_The Court_ (to the Juror): We do not exactly comprehend the views you
entertain upon this question; therefore we desire, for our own
satisfaction, to put some questions to you, to ascertain, if we can,
the state of your mind and opinions upon these questions, and see
whether you are a competent juryman or not in a capital case. It is a
very high duty, and a common duty, devolving upon every respectable
citizen. The question is this--and we desire that there may be no
delusion or misapprehension on your mind in respect to it--in a capital
case, if the proof on behalf of the Government should be such as to
satisfy your mind that the prisoner was guilty of the capital offence,
whether or not you have any conscientious scruples as respects capital
punishment, that would prevent your rendering a verdict of guilty?
_A._ In answer to that I would say that this is what troubles me: I
want to do my duty; I want to render a verdict fairly and squarely as
between the prisoner and the people; but I have this to contend with--I
have read that people have been convicted upon the clearest testimony,
and afterwards found to be innocent; and before I would have such
feelings I would as soon go to the scaffold as send a person there who
was not guilty. Therefore my sympathy is so strong that I am afraid to
trust myself. I did serve on a former occasion, and I do not know that
even then I did my duty.
_Q._ What do you mean by being afraid to trust yourself? Is it a
conscientious feeling and opinion against the penalty of capital
punishment?
_A._ Yes, sir, it is. I have a great abhorrence of it, if I may so
express myself. Yet I should like to render a verdict, and do what is
right; but I believe my feelings are too great to trust myself.
_The Court_: We think we are bound to set the juror aside.
_Mr. Larocque_: Permit me to put one question.
_Q._ It strikes me that you are a little at fault as to what the
purport of this question is. It is not whether you have an abhorrence
of convicting a prisoner of a capital offence. The question is, whether
you have such conscientious scruples against capital punishment as
would prevent your finding the prisoner guilty, if the facts were
proved, and the Court instructed you that those facts constituted the
offence?
_A._ I answered before. It places me in rather a peculiar position. As
I said, I want it understood distinctly, I desire to do my duty; but
there is a struggle between that and my sympathy, and I am afraid to
trust myself.
_Q._ But you can draw a distinction between your sympathy and any
conscientious scruples against the punishment of death, can you not?
_A._ Well, sir, where it comes to the point----
_Q._ Allow me to put the question in another way: If you are entirely
satisfied, upon the evidence and instructions of the Court, that the
prisoner was guilty, your conscience would not trouble you in finding
him guilty?
_A._ Well, sir, there would be this: I would feel that persons, under
the strongest kind of testimony, have been found guilty, wrongfully,
and it would operate on me--the fear that I had judged wrong on the
facts, and committed murder. That feeling is very strong.
_Q._ If the evidence satisfied you that the prisoner was guilty, would
your conscience prevent your saying so?
_A._ It would not now. It might in the jury-room. When it comes to the
point, and I feel that I hold the life of a human being, it is pretty
hard to know what I would do then.
_Q._ Your conscience would only trouble you if you doubted that your
judgment was right?
_A._ Yes, sir.
_Mr. Larocque_: I submit that the juror is competent.
_Juror_: You must take your chances if you take me. I still think I am
not fit to sit on a jury to represent the people.
_The Court_: I think we must take the opinion of the juror as against
himself.
Set aside. [Defendants took exception.]
_John Fife_ called, and challenged for principal cause:
_Q._ In a capital case, where the evidence is sufficient to convince
you of the guilt of the prisoner, have you any conscientious scruples
that would prevent your finding a verdict of guilty?
_A._ No, sir.
_By Mr. Larocque_, for the prisoners:
_Q._ Did you read the account of the capture of the privateer Savannah?
_A._ I did.
_Q._ Have you formed or expressed an opinion as to the guilt or
innocence of the prisoners?
_A._ I believe not, sir.
_Q._ Have you formed or expressed an opinion whether the facts charged,
if proved, constitute the offence of piracy?
_A._ I have not, sir.
_Q._ You think you have no bias or prejudice in this case?
_A._ No, sir.
Challenge withdrawn. _Juror sworn._
_Thomas Costello_ called. Challenged for principal cause.
_By Mr. Smith_:
_Q._ In a capital case, where the evidence is sufficient to convince
you of the guilt of the prisoner, have you any conscientious scruples
that would prevent your finding a verdict of guilty?
_A._ No, sir.
_By Mr. Larocque_, for the prisoners:
_Q._ You know that this case is an indictment for piracy against the
prisoners. Have you formed or expressed any opinion upon their guilt or
innocence?
_A._ No, sir.
_Q._ Have you formed or expressed any opinion whether the facts charged
against them, if proved, constitute the offence of piracy?
_A._ I have not, sir.
Challenge withdrawn. _Juror sworn._
_Tuganhold Kron_ called. Challenged for principal cause.
_By Mr. Smith_:
_Q._ In a capital case, where the evidence was sufficient to convince
you of the guilt of the prisoner, have you any conscientious scruples
that would prevent your finding a verdict of guilty?
_A._ Yes, sir. (Question repeated.)
_A._ No, sir.
_Q._ Do you readily understand English?
_A._ Pretty well.
_Q._ You did not understand me when I asked the question the first
time?
_A._ No, sir.
_Q._ Do you understand English well?
_A._ Yes, pretty well. There may be some words I do not understand.
_Q._ Did you ever sit as a juror on a trial?
_A._ Yes, sir.
_Q._ Did you understand all the witnesses said?
_A._ No, because I did not hear, sometimes.
_Q._ Do you think you understand English well enough, so that you can
hear a trial intelligently?
_A._ I cannot say, sir.
_Q._ You are not sure?
_A._ No, sir.
_By Mr. Larocque_:
_Q._ What is your occupation?
_A._ A bookbinder.
_Q._ Have you an establishment of your own?
_A._ Yes, sir.
_Q._ The men you employ--do they speak English or German?
_A._ Some English--the most of them German.
_Q._ And you transact your business with gentlemen who speak English?
_A._ Yes, sir.
_Q._ How long have you done so?
_A._ Eight years.
_By the Court_:
_Q._ How long have you been in this country?
_A._ Seventeen years.
_Q._ Have you been in business all that time?
_A._ I worked as journeyman ten years, and have been seven years in
business of my own.
_By Mr. Smith_:
_Q._ Do you think you can understand English well enough so that you
can, from the evidence, form an opinion of your own?
_A._ I think I will.
_By Mr. Larocque_:
_Q._ You read the account of the capture of the privateer Savannah in
the newspapers?
_A._ Yes, sir; in some German paper.
_Q._ Did you form or express any opinion as to the guilt or innocence
of these prisoners?
_A._ No, sir.
_Q._ Did you form or express an opinion whether the facts charged
against them, if proved, constitute the offence of piracy?
_A._ No, sir.
_Mr. Evarts_: We think the juror's knowledge of the language is shown,
by his own examination, to be such as should at least entitle the
Government to ask that he should stand aside until it is seen if the
panel shall be filled from other jurors--if that right exists. Your
honor held, in the case of the United States _v._ Douglass--a piracy
case tried some ten years ago--that that right did exist.
_The Court_: I think we have since qualified that in the case of
Shackleford. It was intended to settle that debatable question, and it
was held that the Act of Congress, requiring the empanneling of jurors
to be according to the practice in State Courts, did not necessarily
draw after it this right of setting aside. We think the objection taken
is not sustained.
_Juror sworn._
_Matthew P. Bogart_ called. Challenged for principal cause by Mr.
Smith:
_Q._ In a capital case, where the evidence is sufficient to convince
you of the guilt of the prisoner, have you any conscientious scruples
that would prevent your rendering a verdict of guilty?
_A._ No, sir.
_By Mr. Larocque_, for the prisoners:
_Q._ Have you read the account of the capture of the privateer Savannah
in the newspapers?
_A._ I recollect reading it at the time--not since.
_Q._ Have you ever formed or expressed an opinion upon the guilt or
innocence of these prisoners?
_A._ Not to my recollection.
_Q._ Have you ever formed or expressed an opinion whether the facts
charged against them, if proved, constitute the offence of piracy?
_A._ I have not.
Challenge withdrawn. _Juror sworn._
_George Moeller_ called. Challenged for principal cause by Mr. Smith:
_Q._ In a capital case, where the evidence is sufficient to convince
you of the guilt of the prisoner, have you any conscientious scruples
that would prevent your finding a verdict of guilty?
_A._ No, sir.
_By Mr. Larocque_, for the prisoners:
_Q._ Have you read the account of the capture of the Savannah? _A._
Yes, sir.
_Q._ Have you formed or expressed any opinion as to the guilt or
innocence of these prisoners?
_A._ No, sir.
_Q._ Have you formed or expressed any opinion as to whether, if the
facts were proved, as alleged, it was piracy?
_A._ I do not know what the facts are, sir. I have only read an account
of the capture.
Challenge withdrawn. _Juror sworn._
_Robert Taylor_ called. Challenged for principal cause, by Mr. Smith:
_Q._ In a capital case, where the evidence is sufficient to convince
you of the guilt of the prisoner, have you any conscientious scruples
that would prevent your finding a verdict of guilty?
_A._ No, sir.
_By Mr. Larocque_, for the prisoners:
_Q._ You read of the capture of the privateer Savannah?
_A._ I think I have.
_Q._ Did you form or express any opinion as to the guilt or innocence
of the prisoners?
_A._ Not that I know of, sir.
_Q._ Have you formed or expressed any opinion whether the facts, if
proved, constitute the offence of piracy?
_A._ No, sir, not any.
Challenge withdrawn. _Juror sworn._
_Daniel Bixby_ called. Challenged for principal cause, by Mr. Smith:
_Q._ In a capital case, where the evidence is sufficient to convince
you of the guilt of the prisoner, have you any conscientious scruples
that would prevent your finding a verdict of guilty?
_A._ I have not.
_By Mr. Larocque_:
_Q._ Have you ever formed or expressed any opinion as to the guilt or
innocence of the prisoners?
_A._ I have not.
_Q._ Or whether the facts, if proved, constitute the offence of piracy?
_A._ No, sir.
Challenge withdrawn. _Juror sworn._
_Ira L. Cady_ called. Challenged for principal cause, by Mr. Smith:
_Q._ In a capital case, where the evidence is sufficient to convince
you of the guilt of the prisoner, have you any conscientious scruples
that would prevent your finding a verdict of guilty?
_A._ No, sir.
_By Mr. Larocque_:
_Q._ You know what this case is for?
_A._ I believe I understand it.
_Q._ An indictment of piracy against the privateersmen captured on the
Savannah?
_A._ Yes, sir.
_Q._ Have you formed or expressed any opinion upon the guilt or
innocence of the prisoners?
_A._ I do not recollect that I have.
_Q._ Have you formed or expressed any opinion whether the facts, if
proved, constitute piracy?
_A._ I do not think I have.
_Q._ Have you any opinion now upon either of these subjects?
_A._ I cannot say that I am entirely indifferent of opinion on the
subject, but still I have not formed any definite opinion.
_Q._ Your mind, however, is not entirely unbiased upon the question?
_A._ Well, no, sir--not if I understand the question; that is, the
question whether the facts, if proved, constitute the offence of
piracy?
_Mr. Larocque_ submitted that the juror was not indifferent.
_Mr. Evarts_: All that has been said by the juror is that, on the
question of whether the facts charged constitute the offence of piracy,
he has no fixed opinion; but he cannot say he has no opinion on the
subject. He is ready to receive instruction from the Court.
_Mr. Larocque_ contended that, as the question of whether the facts
alleged constituted piracy, or not, was a most important one to be
discussed, they were entitled to have the mind of the juror entirely
blank and unbiased on that subject.
_The Court_: Let us see what the state of mind of the juror is.
_Q._ You mentioned, in response to a question put to you, that you had
read an account in the newspapers of the capture of this vessel.
_A._ I was not asked that question. I have no mind made up in respect
to the subject that would prevent my finding a verdict in accordance
with the evidence; but I said I was not entirely devoid of an opinion
in regard to the case--that is, the offence.
_Q._ Have you read an account of the capture of this vessel?
_A._ Yes, sir; I read it at the time.
_Q._ Is it from the account, thus read, of the transaction of the
capture, that you found this opinion upon?
_A._ No, sir; it is not that. It is upon the general subject that I
mean to be understood--not in reference to this case particularly.
_Q._ Do you say, upon the general question, that you have an opinion?
_A._ Well, not fully made up. I have the shadow of an opinion about it.
_Q._ Not a fixed opinion?
_A._ No, sir; I would be governed by the law and instructions of the
Court.
_Q._ You are open to the control of your opinion upon the facts and law
as developed in the course of the trial?
_A._ Certainly, sir.
_The Court_: We do not think the objection sustained.
Challenged peremptorily by the prisoners.
_Samuel Mudget_ called. Challenged for principal cause.
_By Mr. Smith_:
_Q._ In a capital case, where the evidence is sufficient, in your
opinion, to convict the prisoner, have you any conscientious scruples
that would prevent your finding a verdict of guilty?
_A._ I have not.
_By Mr. Larocque_:
_Q._ You have read the account of the capture of the privateer
Savannah?
_A._ Yes, sir; at the time.
_Q._ Have you formed or expressed any opinion upon the guilt or
innocence of these privateersmen?
_A._ I have not.
_Q._ Have you formed or expressed an opinion whether the acts charged
upon them, if proved, constitute piracy?
_A._ No, sir; I have not formed any opinion with regard to the question
whether it was piracy or not.
Challenged peremptorily by the prisoners.
_George H. Hansell_ challenged for principal cause.
_Q._ In a capital case, where the evidence is sufficient to convince
you that the prisoner was guilty, have you any conscientious scruples
that would prevent your finding a verdict of guilty?
_A._ No, sir.
_By Mr. Larocque_:
_Q._ Have you read the account of the capture of the Savannah
privateer?
_A._ I believe I read the account at the time. I have a very indistinct
recollection of it.
_Q._ Have you formed or expressed an opinion as to the guilt or
innocence of the prisoners?
_A._ I do not remember that I have, sir. I certainly do not have any
opinion now; and certainly would not have until I have heard the
evidence.
_Q._ Do you say you do not recollect whether you have formed or
expressed any opinion?
_A._ I do not remember that I have, sir. I may, on reading the article,
have expressed an opinion on it; but I am not positive of that.
_Q._ Have you formed or expressed an opinion whether the facts charged,
if proved, amount to piracy?
_A._ I should not consider myself competent to form an opinion upon
that until I have heard the law on the subject.
Challenge withdrawn. _Juror sworn._
Panel completed.
DISTRICT ATTORNEY'S OPENING.
MR. E. DELAFIELD SMITH opened the case for the prosecution. He said:
_May it please the Court, and you, Gentlemen of the Jury_:
The Constitution of the United States, in the eighth section of the
first article, authorized the Congress, among other things, to define
and punish piracies and felonies committed on the high seas, and
offences against the law of nations.
In pursuance of that authority, the Congress, on the 30th of April,
1790, made provisions contained in an act entitled "An Act for the
punishment of certain crimes against the United States." I refer to the
8th and 9th sections of that act, which is to be found in the first
volume of the U.S. Statutes at Large, page 112.
In the State Courts, gentlemen, it is common to say that the jury is
judge both of the law and the fact; but such is not the case in the
United States Courts. The Court will state to you the law, which you
are morally bound to follow. But in opening this case, I refer to the
statutes for the purpose of showing you precisely what the law is
supposed to be under which this indictment is found, and under which we
shall ask you for a verdict.
The 8th section of the act of 1790, commonly called "The Crimes Act,"
and to which I have just referred, declares, 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 merchandize to the value of fifty dollars, or yield up such
ship or vessel voluntarily to any pirate; or if any seaman shall lay
violent hands upon his commander, thereby to hinder and prevent his
fighting in defence of his ship or goods committed to his trust, or
shall make a revolt in the ship; every such offender shall be deemed,
taken, and adjudged to be a pirate and felon, and, being thereof
convicted, shall suffer death; and the trial of crimes committed on the
high seas, or in any place out of the jurisdiction of any particular
State, shall be in the district where the offender is apprehended, or
into which he may first be brought.
The 9th section of the same act provides, 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
color 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.
A statute, on this subject, enacted in 1819, expired by its own
limitation; but on the 15th of May, 1820, an act was passed making
further provisions for punishing the crime of piracy. This law is
printed in the third volume of the U.S. Statutes at Large, page 600.
The 3d section provides, that if any person shall, upon the high seas,
or in any open roadstead, or in any haven, basin, or bay, or in any
river where the sea ebbs and flows, commit the crime of robbery in or
upon any ship or vessel, or upon any of the ship's company of any ship
or vessel, or the lading thereof, such person shall be adjudged to be a
pirate; and, being thereof convicted before the Circuit Court of the
United States for the district into which he shall be brought, or in
which he shall be found, shall suffer death.
I now refer to the act of March 3d, 1825, to be found in the 4th volume
of the Statutes at Large, page 115. It is entitled, "An act more
effectually to provide for the punishment of certain crimes against the
United States, and for other purposes." I cite it simply on the
question of jurisdiction. The 14th section provides, that the trial of
all offences which shall be committed upon the high seas or elsewhere,
out of the limits of any State or district, shall be in the district
where the offender is apprehended, or into which he may be first
brought. The twenty-fifth section of this act repeals all acts, or
parts of acts, inconsistent therewith.
Under the act of 1790 a question of construction arose, in the Supreme
Court of the United States, as to whether robbery on the high seas was
punishable with death. It was settled (3 Wheaton, 610) that the statute
did punish robbery with death if committed on the high seas, even
though robbery on land might not incur that extreme penalty. I refer to
the United States _v._ Palmer, 3 Wheaton, 610; the United States _v._
Jones, 3 Washington's Circuit Court Reports, 209; United States _v._
Howard, Id., 340; 2 Whar. Crim. Law, fifth ed., p. 543.
I have been thus particular in referring to the laws under which this
indictment is framed, in order that you may perceive precisely the
inquiry which we now have to make. It is, whether the statutory law of
the United States has or has not been violated? You have all,
undoubtedly, heard more or less of the crime of piracy as generally and
popularly understood. A pirate is deemed by the law of nations, and has
always been regarded as the enemy of the human race,--as a man who
depredates generally and indiscriminately on the commerce of all
nations. Whether or not the crime alleged here is piracy under the law
of nations, is not material to the issue. It might well be a question
whether, in regard to depredations committed on the high seas, by
persons in a foreign vessel, under the acknowledged authority of a
foreign country, Congress could effectively declare that to be piracy
which is not piracy under the law of nations; but it is not material in
this case. Congress is unquestionably empowered to pass laws for the
protection of our national commerce and for the punishment of those who
prey upon it. Congress has done so in the statutes to which I have
referred. If the words "pirate and felon" were stricken out from the
act of 1790, and if the statutes simply read that any person committing
robbery on the high seas should suffer death, the law would be
complete, and could be administered without reference to what
constitutes piracy by the law of nations.
Having thus referred to the statutory law under which this indictment
was found, I will state as succinctly as possible, with due regard to
fullness, fairness, and completeness, the facts in this case. In the
middle or latter part of May, 1861, a number of persons in the city of
Charleston, South Carolina, conceived the purpose of purchasing or
employing a vessel to cruise on the Atlantic with the object of
depredating on the commerce of the United States. They proceeded to the
fulfillment of that design by procuring persons willing to act as
captain, officers, and crew of such piratical vessel. This there was at
first considerable difficulty in effecting, and it was not until many
men were thrown out of employment in Charleston, by the acts of South
Carolina and of what is called the Confederate Government, and by the
action of the United States Government in blockading the port of
Charleston and other Southern ports, that a crew could be found to man
this vessel. There were no shipping articles or agreement as to wages;
but it was understood that all were to share in the plunder or proceeds
arising from the capture of American vessels on the high seas. We shall
show to you that the prisoners at the bar were finally induced to
embark on this enterprise; that Captain Baker was one of the first to
engage in it; that he used exertions to obtain a crew, and succeeded,
after considerable difficulty. On Saturday, the first of June, 1861,
the crew were embarked on a small pilot boat and proceeded down to
opposite Fort Sumter, where they were transferred, in small boats, to
the schooner Savannah. We shall show, by the declarations of the
parties who stand charged here to-day, and also by the facts and
circumstances of the equipment of the vessel, the intent and purpose of
this voyage. The Savannah, a schooner of fifty-three or fifty-four
tons, was armed with cannon and small arms. Pistols and cutlasses were
provided for her men. On Sunday afternoon, the 2d of June, she sailed
from opposite Fort Sumter, her crew numbering about twenty men, all of
whom are here with the exception of six, who were detached to form a
prize crew of the brig Joseph. On the morning of Monday, the 3d of
June, a sail was descried; it was remarked among the crew that the
vessel, from her appearance, was undoubtedly a Yankee vessel, as they
termed it--a vessel owned in one of the Northern States of the Union.
She proved to be the brig Joseph, laden with sugar, and bound from
Cardenas, in Cuba, to Philadelphia. The Savannah, displaying the
American flag, gave chase. When within hailing distance, Captain Baker
spoke the Joseph, ordered her captain on board his schooner, and ran up
the rebel standard. Captain Meyer, of the Joseph, perceiving that the
Savannah was armed, and that her men were ready for assault, fearing
for his safety and that of his crew, obeyed the summons. A prize crew
was placed on board the Joseph--the captain of the Savannah declaring
that he "was sailing under the flag of the Confederate Government." The
Savannah proceeded on her cruise. In a few hours afterward, she
descried the United States brig-of-war Perry. Supposing her to be a
merchant vessel, she started in pursuit, fired a gun, and finally fired
several guns. On discovering, however, that the brig was a United
States vessel-of-war, she attempted resistance, Captain Baker saying to
his men, "Now, boys, prepare for action!" When within speaking
distance, the commander of the Perry asked Captain Baker whether he
surrendered, and he replied that he did. The prisoners were transferred
from the Savannah to the Perry; thence to the United States steam
ship-of-war, Minnesota. The Savannah was then taken in charge by a
prize crew from on board the Perry and brought to New York. The
Minnesota, with the prisoners on board, proceeded--on her way to New
York--to Hampton Roads, where, after two days, she transferred the
prisoners to the Harriet Lane, which delivered them at New York. Here
they were given in charge to the United States Marshal. On my official
application, a warrant was issued by a United States Commissioner, and
under it the Marshal, as directed, took formal possession of and held
the prisoners. They were committed for trial and were, within a few
weeks afterwards, indicted by the United States Grand Jury. Although
the guilt and mischief of both piracy and treason may be embraced in
the crime and its consequences, the charge is not one of treason, nor
necessarily of piracy, as commonly understood, but the simple one of
violating the statutes to which I have referred.
The learned District Attorney here stated the evidence which he was
prepared to submit, with the decisions upon which he would rest the
case, and he proceeded to cite and comment upon the following, among
other authorities:--U.S. _v._ Furlong, 5 Wheaton, 184; U.S. _v._
Klintock, 5 _Id._, 144; Nueva Anna and Liebre, 6 _Id._, 193; U.S. _v._
Holmes, 5 _Id._, 412; U.S. _v._ Palmer, 3 _Id._, 610; U.S. _v._ Tully,
1 Gallison, first ed., 247; U.S. _v._ Jones, 3 Wash. Circuit Court
Rep., 209; U.S. _v._ Howard, 3 _Id._, 340; U.S. _v._ Gibert, 2 Sumner,
19; U.S. _v._ Smith, 5 Wheaton, 153; 3 Chitty's Criminal Law, 1128; 1
Kent's Com., 25, note _c_, and cases cited; 1 _Id._, 99, 100, and cases
cited; 1 _Id._, 184, 185, 186, 187, 188, 191, and cases cited.
Decisions as to jurisdiction: U.S. _v._ Hicks, MS. Judge Nelson; Irvine
_v._ Lowry, 14 Peters, 293, 299; Sheppard _v._ Graves, 14 Howard, 505;
D'Wolf _v._ Rabaud, 1 Peters, 476, 498. Mr. SMITH then continued as
follows:
The atrocity of the authors and leaders of this rebellion against a
government whose authority has never been felt, with the weight of a
feather, upon the humblest citizen, except for crime, has been
portrayed so much more eloquently than I could present it, that I
should not indulge in extended remarks on that subject, even if
relevant to the case. Ignominy and death will be their just portion.
The crime of those who have acted as the agents and servants of these
leaders is also a grave one--a very grave one--mitigated, no doubt, by
ignorance, softened by a credulous belief of misrepresentations, and
modified by the very air and atmosphere of the place from which these
prisoners embarked. It is, undoubtedly, a case where the sympathies of
the jury and of counsel--whether for the prosecution or the
defence--may be well excited in reference to many, if not all, of the
prisoners at the bar, misguided and misdirected as they have been. But
it will be your duty, gentlemen, while allowing these considerations to
induce caution in rendering your verdict, to disregard them so far as
to give an honest and truthful return on the evidence, and on the law
as it will be stated to you by the Court. This is all the prosecution
asks. As to the policy of ultimately allowing the law to take its
course in this case, it is not necessary for us to express any opinion
whatever. That is a question which the President of the United States
must determine if this trial should result in a conviction. It is for
him, not for us. You must leave it wholly to those who are charged with
high duties, after you shall have performed yours.
The case is of magnitude; but the issue for you to determine is simple.
Leaving out of view the alleged authority under which the prisoners
claim to have acted, you will inquire, in the first instance, whether
the seizure of the Joseph and her lading was robbery. You will be
unable to discover that any element of the crime was wanting. If no
actual force was employed in compelling the surrender, it is enough
that the captain and crew were put in bodily fear. So the traveler
delivers his purse in obedience to a request, and the crime is
complete, although violence proves unnecessary. That the humble owners
of the brig were despoiled of their property--how hardly earned we know
not--will not be disputed. Nor is it material that the proceeds were to
be shared between the prisoners and absent confederates. As to the
question of intent, it cannot be denied that the prisoners designed to
do, and to profit by, what they did. They are without excuse, unless
possessed of a valid commission. This brings us to the plea of
authority.
A paper, purporting to be a letter of marque, signed by Jefferson
Davis, was found on the Savannah. Such a commission is of no effect, in
our courts of law, unless emanating from some government recognized by
the Government of the United States. The political authority of the
nation, at Washington, has never recognized the so-called Confederate
States as one of the family of nations. On the contrary, it resists
their pretensions, and proclaims them in rebellion. In this position of
affairs, a court of justice will not, nor can you as its officers,
regard the letter as any answer to the case which the prosecution will
establish. Such is the law. It is so determined in decisions of the
Supreme Court of the United States, which I have just cited.
I will now proceed with the examination of the witnesses.
_Albert G. Ferris_ called and sworn. Examined by District Attorney
Smith:
_Q._ Where were you born?
_A._ In Barnstable, Massachusetts.
_Q._ How old are you?
_A._ Fifty on the 10th of September last.
_Q._ Have you a family?
_A._ Yes, sir.
_Q._ Does your family reside at Charleston?
_A._ Yes, sir, at Charleston, South Carolina.
_Q._ How long have you resided at Charleston?
_A._ Since 1837.
_Q._ What has been your business there?
_A._ Sea-faring man.
_Q._ In what capacity have you acted as a sea-faring man?
_A._ As master and mate.
_Q._ In what crafts?
_A._ In various crafts, small and large, and steamers.
_Q._ Sailing out of the port of Charleston?
_A._ Yes, and from ports of New York, and Virginia, and other places.
_Q._ In what capacity were you acting just prior to the time you
embarked on board the Savannah?
_A._ I was acting as master of a vessel sailing from Charleston on the
Southern rivers, in the rice and cotton trade.
_Q._ What was the name of the vessel?
_A._ The James H. Ladson, a schooner of about seventy-five tons.
_Q._ Was the business in which you were engaged stopped?
_A._ Yes, sir.
_Q._ At what time?
_A._ In December, 1860.
_Q._ What was your employment after that?
_A._ I had no employment after that. The blockade prevented vessels
from going out, although some did get out after the blockade was
established.
_Q._ State the facts and circumstances which preceded your connection
with the Savannah?
_A._ I joined the Savannah as a privateer, through the influence of
acquaintances of mine, with whom I had sailed, and from the necessity
of having something to do, and under the idea of legal rights from the
Confederate Government.
_Q._ What did you first do in reference to shipping on the Savannah?
_A._ I was on the bay with an acquaintance of mine, named James Evans,
who is now, I believe, at Charleston, and who spoke to me about it.
_Q._ Was Evans one of the crew of the Savannah?
_A._ Yes, he was one of the prize crew that went off with the Joseph.
He solicited me to join him, and said that he knew Captain Baker, and
that he and others were going in the Savannah.
_Q._ Where did you see him?
_A._ I saw him on the bay at Charleston.
_Q._ Did you go anywhere with him in reference to enlisting?
_A._ Yes, we went to the house of Bancroft & Son, and I was there
introduced to Captain Baker.
_Q._ Did you recognize Captain Baker on the cruise?
_A._ Yes, I recognized him then and since.
_Q._ State the conversation?
_A._ Mr. Evans recommended me to Captain Baker as a man who was
acquainted with the coast, and who was likely to be just the man to
answer his purpose. I partly made arrangements with Captain Baker
to--that is, he was to send for me when he wanted me. He further
proposed, as nothing was doing, that he would give me a job to go to
work on board the Savannah and fit her out; but I had some little
business to attend to at the time and declined.
_Q._ State the conversation at Bancroft & Son's when you and Evans and
Captain Baker were there?
_A._ These were the items, as near as my memory serves me: that we were
going on a cruise of privateering. I considered it was no secret. It
was well known, and posted through the city. Previous to that I had met
some of the party, who talked about going, and who asked me whether I
had an idea of going, and I said I had talked about it. They said that
Captain Baker was the officer. I then declined to go, and did not mean
to go in her until Saturday morning.
_Q._ Did you have a further interview with Captain Baker, or any others
of these men?
_A._ I had no other interview with Captain Baker at that time. I had no
acquaintance with Captain Baker, or any on board, except these men who
came from shore with me.
_Q._ Did you see any one else in reference to shipping on this vessel,
except those you mentioned?
_A._ I believe there was a man by the name of Mills who talked of it.
He did not proceed in the vessel. I believe he fitted her out, but did
not go in her.
_Q._ Did you talk to any one else in regard to going?
_A._ No; he only told me he was going to get a crew.
_Q._ What articles did you see drawn up?
_A._ There were no articles whatever drawn up, and I do not know what
arrangements were made. I understood since I have been here that
arrangements were made, but they were not proposed to me. It was a mere
short cruise to be undertaken.
_Q._ Was the purpose or object of the cruise stated?
_A._ It was the object of going out on a cruise of privateering.
_Q._ When did you embark on the vessel?
_A._ On Saturday night, the 1st of June, 1861.
_Q._ Do you recollect who embarked with you that night?
_A._ Some five or six of us.
_Q._ Give their names?
_A._ Alexander Coid was one (witness identified him in Court), Charles
Clarke was another, and Livingston or Knickerbocker was another. I do
not recollect any more names. There was a soldier, whose name I do not
know, who went on the prize vessel.
_Q._ How did you get from the dock at Charleston?
_A._ In a small boat to a pilot-boat, and in the pilot-boat to the
Savannah in the stream. She was lying about three miles from the city,
and about three-quarters of a mile from Fort Sumter.
_Q._ How did you get from the pilot-boat to the Savannah?
_A._ In a small boat.
_Q._ And from the dock at Charleston to the pilot-boat?
_A._ In a small boat.
_Q._ Did any one have any direction in the embarkation?
_A._ No one, particular. There were some agents employed to carry us
down. There was no authority used whatever.
_Q._ When did you sail from Charleston in the Savannah?
_A._ On Sunday afternoon from the outer roads.
_Q._ When did you weigh anchor and sail from Fort Sumter?
_A._ On Sunday morning, about 9 or 10 o'clock.
_Q._ Do you know the men you saw on board?
_A._ Yes, sir.
_Q._ Do you know the names of all the prisoners?
_A._ I believe I do, pretty nearly. I do not know that I could
pronounce the name of the steward or cook, but I know that they were
with us.
(The prisoner, Passalaigue, was asked to stand up, and the witness
identified him.)
_Q._ What was his position on board?
_A._ I do not know what his position was. I never learned that. He was
on board as if superintending the provisions, or something of that
kind.
(The prisoner, John Harleston, was asked to stand up, and witness
identified him.)
_Q._ What position had he on board?
_A._ I do not know what he did on board, anything more than that he
arranged the big gun, and asked assistance to lend him a hand in
managing the gun.
_Q._ Was he an officer, or seaman?
_A._ I believe he is no seaman.
_Q._ In what capacity did he act on board?
_A._ Nothing further than that, so far as I learned.
_Q._ Did you hear him give any directions?
_A._ No, sir; I was at the helm most of the time, when anything was
done at the gun.
(The prisoner, Henry Howard, was asked to stand up, and witness
identified him.)
_Q._ In what capacity was he?
_A._ That was more than I learned. They were all on board when I joined
her.
_Q._ Was he a seaman or officer?
_A._ He stood aft with the rest of us, and assisted in working the
vessel.
(The prisoner, Del Carno, was directed to stand up, and witness
identified him as being the steward. He also identified Henry Oman as
attending to the cooking department. The prisoner was directed to stand
up, and was identified by the witness.)
_Q._ In what capacity was he?
_A._ The same as the rest--a seaman.
(Witness also identified William Charles Clarke, Richard Palmer, and
John Murphy, as seamen, and Alexander C. Coid, as seaman. Martin
Galvin, the prisoner, was directed to stand up, and was identified by
the witness.)
_Q._ Was he a seaman?
_A._ I do not think he was either seaman or officer.
_Q._ What did he do on board?
_A._ Little of anything. There was very little done any way.
_Q._ Did he take part in working the vessel?
_A._ Very little, if anything at all. I believe he took part in
weighing anchor.
_Q._ You identify Captain Baker as captain of the vessel?
_A._ Yes, I could not well avoid that.
_Q._ How many more were there besides those you have identified?
_A._ Some six. I think about eighteen all told, not including
Knickerbocker and myself.
_Q._ How many went off on the Joseph?
_A._ There were six of them.
_Q._ Did any of those that are now here go off on the Joseph?
_A._ No, I believe not. I know all here. We have been long enough in
shackles together to know one another.
_Q._ Do you remember the names of those that went on the Joseph?
_A._ I know two of them--one named Hayes, and Evans, the Charleston
pilot.
_Q._ The same Evans who went on board with you?
_A._ Yes, sir; he was a Charleston pilot.
_Q._ What did Hayes and Evans do on board?
_A._ They did the same as the rest--all that was to be done.
_Q._ Were either of them officers?
_A._ Mr. Evans was the Charleston pilot. He gave the orders when to
raise anchor and go out. He acted as mate and pilot when he was there.
I presume he had as much authority, and a little more, than any one
else; he was pilot.
_Q._ What did Hayes do?
_A._ He was an old, experienced man--did the same as the rest--lived
aft with the rest. He was a seaman.
_Q._ The other four, whose names you do not recollect, did they act as
seamen?
_A._ Exactly, sir.
_Q._ Any of them as officers?
_A._ No, sir; if they were, they were not inaugurated in any position
while I was there.
_Q._ What did you do?
_A._ I did as I was told by the captain's orders--steered and made
sail.
_Q._ What time did you get off from the bar in Charleston?
_A._ We got off Sunday afternoon and made sail east, outside of the
bar, and proceeded to sea.
_Q._ Do you remember any conversation on board when any of the
prisoners were present?
_A._ Yes; we talked as a party of men would talk on an expedition of
that kind.
_Q._ What was said about the expedition?
_A._ That we were going out privateering. The object was to follow some
vessels, and that was the talk among ourselves.
_Q._ Did anything happen that night, particularly?
_A._ No, sir; nothing happened, except losing a little main-top mast.
_Q._ What course did you take?
_A._ We steered off to the eastward.
_Q._ Did you steer to any port?
_A._ No, sir; we were not bound to any port, exactly.
_Q._ What directions were given in respect to steering the vessel?
_A._ To steer off to the eastward, or east by south, just as the wind
was; that was near the course that was ordered.
_Q._ When did you fall in with the Joseph?
_A._ On Monday morning, the 3d.
_Q._ Do you remember who discovered the Joseph?
_A._ I think it was Evans, at the masthead.
_Q._ What did he cry out?
_A._ He sung out there was a sail on the starboard bow, running down,
which proved afterwards to be the brig Joseph.
_Q._ State all that was said by or in the presence of the prisoners
when and after the vessel was descried?
_A._ We continued on that course for two or three hours. We saw her
early in the morning, and did not get up to her until 9 or 10 o'clock.
_Q._ How early did you see her?
_A._ About 6 o'clock. There were other vessels in sight. We stood off
on the same course, when we saw this brig,--I think steering northeast
by east. We made an angle to cut her off, and proceeded on that course
until we fell in with her.
_Q._ What was said while running her down?
_A._ When near enough to be seen visibly to the eye, our men, Mr.
Hayes, and the others, said she was a Yankee vessel; she was from the
West Indies, laden with sugar and molasses. The general language was
very little among the men; in fact, sailor-like, being on a flare-up
before we left port, not much was said.
_Q._ State what was said?
_A._ Well, first the proposition was made that it was a Yankee prize;
to run her down and take her. That was repeated several times. Nothing
further, so far as I know of.
_Q._ During the conversation were all hands on deck?
_A._ Yes, sir, all hands on deck. In fact, they had been on deck. It
was very warm; our place was very small for men below. In fact, we
slept on deck. No one slept below, while there, much. It was a very
short time we were on board of her--from Saturday to Monday night--when
we were taken off.
_Q._ What was said was said loud, so as to be heard?
_A._ Yes; it was heard all about deck. That was the principal of our
concern in going out; it was our object and our conversation.
_Q._ When you ran along down towards the Joseph, state what was said.
_A._ That was about the whole of what occurred--the men talking among
themselves.
_Q._ When you got to the Joseph what occurred?
_A._ She was hailed by Captain Baker, and requested to send a boat on
board.
_Q._ Who answered the hail?
_A._ I believe Captain Meyer, of the brig.
_Q._ Would you recognize Captain Meyer now?
_A._ Yes, sir.
_Q._ State what Captain Baker said?
_A._ Captain Baker, as near as I can bear in mind, hailed him, and told
him to come on board and fetch his papers.
_Q._ Did Captain Meyer come on board?
_A._ He lowered his boat, and came on board with his own boat and crew.
Captain Baker said to him that he was under the Confederate flag, and
he considered him a prisoner, and his vessel a prize to the Confederate
Government.
_Q._ Repeat that?
_A._ If I bear in mind, Captain Meyer asked what authority he had to
hail his vessel, or to that effect. The reply of Captain Baker, I
think, was that he was under a letter of marque of the Confederate
Government, and he would take him as a prisoner, and his vessel as a
prize to the Southern Confederacy. I do not know the very words, but
that was the purport of the statement, as near as I understood.
_Q._ When Captain Baker hailed the Joseph, do you remember the language
in which he hailed her?
_A._ I think, "Brig, ahoy! Where are you from?" He answered him where
from--I think, from Cardenas; I think, bound to Philadelphia or New
York.
_Q._ Did he inquire about the cargo?
_A._ No, sir, I think not, until Captain Meyer came on board. We were
but a short distance from the brig. The brig was hove to.
_Q._ Do you remember anything further said by Captain Baker, or any of
the prisoners?
_A._ He had some further conversation with Captain Meyer, on the deck,
with respect to the vessel, where from, the cargo, and the like of
that. She had in sugars, as near as my memory serves me.
_Q._ What flag had the Savannah, or how many?
_A._ She had the Confederate flag.
_Q._ What other flags, if any?
_A._ She had the United States flag.
_Q._ Any other?
_A._ No, sir, I do not know that she had any other.
_Q._ Did you notice what flag the Joseph had?
_A._ I did not see her flag, or did not notice it. I saw her name, and
where she hailed from. I knew where she belonged.
_Q._ What was on her stern?
_A._ I think "The Joseph, of Rockland." I knew where it was. I had been
there several times.
_Q._ When the sail was first descried was there any flag flying on the
Savannah?
_A._ No, sir.
_Q._ When you ran down towards the Joseph was there any flying?
_A._ Yes, sir, we had the Confederate flag flying, and, I believe, the
American flag.
_Q._ Which was it?
_A._ I believe both flying--first one, and then the other.
_Q._ Which first?
_A._ I think the Stars and Stripes first. I am pretty certain that Mr.
Evans then hauled that down.
_Q._ When running down toward the Joseph you had the American flag
flying?
_A._ Yes, sir; I think so; and Mr. Evans hauled down that, and put up
the Confederate flag, when we got close to her.
_Q._ She ran with the American flag until close to her, and then ran up
the Confederate flag?
_A._ Yes, when some mile or so of her--in that neighborhood.
_Q._ Do you remember who gave the order to the prize crew to leave the
Savannah and go on board the Joseph?
_A._ Issued the orders? Well, Captain Baker, I believe, told the pilot,
Mr. Evans, to select his men, and go with the boat.
_Q._ And they went on board?
_A._ Yes, they went on board.
_Q._ Do you remember anything said among the men, after the prize crew
went off, in respect to the Joseph, or her cargo, or her capture?
_A._ Captain Meyer was there, and stated what he had in her, and where
he was from, and so forth. We were merely talking about that from one
to the other.
_Q._ Do you remember any directions given to the prize crew, as to the
Joseph--where to go to?
_A._ I do not recollect Captain Baker directing where to get her in, or
where to proceed with her. Evans was better authority, I presume, than
Captain Baker, where to get her in.
_Q._ Any directions as to where the vessel was to be taken?
_A._ No, sir; either to Charleston or Georgetown--the nearest place
where they could get in, and evade the blockade. That was the reason of
having the pilot there.
_Q._ Did Captain Meyer remain on board the Savannah?
_A._ Yes, sir, until we were captured, and then he was transferred to
the brig Perry, with the rest of us.
_Q._ What direction did the Joseph take after she parted from you?
_A._ Stood in northward and westward. Made her course about northwest,
or in that neighborhood.
_Q._ In what direction from Charleston and how far from Charleston was
the Joseph?
_A._ I think Charleston Bar was west of us about 50 or 55 miles.
_Q._ Out in the open ocean?
_A._ Yes, sir. I calculated that Georgetown light bore up about 35
miles in the west; but whether that is correct or not I cannot say.
_Q._ Where was the nearest land, as nearly as you can state?
_A._ I think the nearest land was Ball's Island, somewhere in the
neighborhood of north and west, 35 or 40 miles.
_Q._ What sail did you next fall in with?
_A._ We fell in with a British bark called the Berkshire.
_Q._ What did you do when you fell in with her?
_A._ We passed closely across her stern. She was steering to the
northward and eastward--I suppose bound to some Northern port.
_Q._ That was a British brig?
_A._ Yes, sir.
_Q._ What was the next sail you fell in with?
_A._ The next sail we fell in with was the brig-of-war Perry.
_Q._ At what time did you descry her?
_A._ I suppose about 3 o'clock in the afternoon of the same day.
_Q._ Where were you when you fell in with her?
_A._ We were somewhere in the same parallel. We saw the brig Perry from
the masthead, and stood towards her.
_Q._ What was said when she was seen?
_A._ We took her to be a merchant vessel. That was our idea, and we
stood to the westward.
_Q._ Did you make chase?
_A._ Yes, sir, we stood to the westward when we saw her; and the brig
Joseph, that we took, saw her. The Perry, I presume, saw us before we
saw her, and was steering for us at the time we were in company with
the Joseph.
_Q._ How far off was the Joseph at the time?
_A._ Not more than three or four miles. When we made her out to be the
brig-of-war Perry, we then tacked ship and proceeded to sea, to clear
her.
_Q._ How near was the brig Perry when you first discovered she was a
man-of-war?
_A._ I should think she was all of 10 or 11 miles off.
_Q._ The brig Perry made chase for you?
_A._ Yes, sir.
_Mr. Larocque_: If the Court please, from the opening of counsel I
suppose he is now proceeding to that part of the case that he laid
before the jury in his opening, that consists in an exchange of shots
between the brig Perry and the Savannah. We object to that. There is no
charge in the indictment of resisting a United States cruiser, or of
any assault whatever.
_Mr. Smith_: What the vessel did on the same day, before and after the
main charge, goes to show the purpose of the voyage--the general object
of the Savannah and her crew. It may be relevant in that respect.
_Mr. Larocque_: We are not going to dispute the facts testified to by
this witness. There will be no dispute on this trial that this was a
privateer--that her object was privateering under the flag of the
Confederate Government, and by authority of that Government, and, under
these circumstances, the gentleman has no need to trouble himself to
characterize these acts by showing anything that occurred between the
Savannah and the Perry. Your honor perceives at once that this
indictment might have been framed in a different way, under the 8th
section of the Act of 1790, with a view of proving acts of treason, if
you please, which are made piracy, as a capital offence, by that act.
The counsel has elected his charge, and he has strictly confined the
charge in the indictment to the allegation of what occurred between the
Savannah and the Joseph. There is not one word in the indictment of any
hostilities between the Perry and the Savannah, and therefore it must
be utterly irrelevant and immaterial under this indictment. Evidence on
that subject would go to introduce a new and substantial charge that we
have not been warned to appear here and defend against, and have not
come prepared to defend against, for that reason. So far as
characterizing the acts we are charged with in the indictment, there
can be no difficulty whatever.
_The Court_: I take it there is no necessity for this inquiry after the
admission made.
_Mr. Evarts_: We propose to show the arrest and bringing of the vessel
in, with her crew.
_The Court_: Of course.
_Mr. Evarts_: That cannot very well be done without showing the way in
which it was done.
_The Court_: But it is not worth while to take up much time with it.
_Mr. Brady_: The witness has stated that this vessel was captured, and
he has stated the place of her capture; and of course it is not only
proper, but, in our view, absolutely necessary, that the prosecution
should show that, being captured, she was taken into some place out of
which arose jurisdiction to take cognizance of the alleged crime. But
the cannonading is no part of that.
_Q._ _By Mr. Smith_: State the facts in regard to the capture of the
Savannah by the Perry.
_A._ Well, the brig Perry ran down after dark and overtook us; came
within hail.
_Q._ At what time?
_A._ Near 8 o'clock at night. Without any firing at all, she hailed the
captain to heave to, and he said yes; she told him to send his boat on
board. He said that he had no boat sufficient to go with. They then
resolved to send a boat for us, and did so, and took us off. That was
the result.
_Q._ The Perry sent her boat to the Savannah?
_A._ Yes, sir; we had no boat sufficient to take our crew aboard of
her. We had a small boat, considerably warped, and it would not float.
_Q._ Where at sea was the capture made of the Savannah by the Perry?
_A._ It was in the Atlantic Ocean.
_Q._ About how far from Charleston?
_A._ Well, about 50 miles from Charleston light-house, in about 45
fathoms of water.
_Q._ How far from land?
_A._ I suppose the nearest land was Georgetown light, about 35 or 40
miles; I should judge that from my experience and the course we were
running.
_Q._ Were you all transferred to the Perry?
_A._ Yes, sir.
_Q._ When was that?
_A._ Monday night; it was later than 8 o'clock.
_Q._ Transferred by boats?
_A._ Yes, sir; the Perry's boats. She sent her boat, with arms and men,
and took us on board. There we were all arrested and put in irons that
night, except the captain and Mr. Harleston, I believe. I do not know
whether they were, or not.
_Q._ Was Mr. Knickerbocker put on board the Perry, with the rest?
_A._ Yes, sir, and on board the Minnesota, with us.
_Q._ Who were put in charge of the Savannah? Were there any men of the
Perry?
_A._ Yes, sir; I believe they sent a naval officer on board to take
charge of her, and a crew; and I think they took Mr. Knickerbocker and
Capt. Meyer, too, on board the Savannah.
_Q._ Did you hear the direction as to the port the Savannah should sail
to after the prize crew were put on board?
_A._ To New York I understood it was ordered. I was told that she was
ordered to New York.
(Objected to as incompetent.)
_Q._ In respect to the Perry, what course did she take after you were
taken on board?
_A._ As informed by the captain, next day, she was bound to Florida, to
Fernandina, to blockade.
_Q._ When did she fall in with the Minnesota?
_A._ About the third day after our capture, I think; lying 8 or 10
miles off Charleston.
_Q._ In the open ocean?
_A._ Yes, sir.
_Q._ You were all transferred to the Minnesota?
_A._ Yes, sir.
_Q._ What did the Minnesota do?
_A._ We were confined on board the Minnesota.
_Q._ When was it you went on board the Minnesota?
_A._ I think on Wednesday or Thursday; I forget which.
_Q._ You were captured on Monday night?
_A._ Yes, sir, the 3d of June, and I think it was on Wednesday or
Thursday (I do not know which) we went on board the Minnesota.
_Q._ How long did you lie off Charleston?
_A._ Several days.
_Q._ At anchor?
_A._ The ship was under way sometimes, steering off and on the coast.
_Q._ How far from Charleston?
_A._ I think in 8 or 9 fathoms of water, 8 or 10 miles from the land.
_Q._ Where did the Minnesota proceed from there?
_A._ To Hampton Roads.
_Q._ Were all the persons you have identified here on board the
Minnesota?
_A._ Yes, sir.
_Q._ State the facts as to transfer from ship to ship?
_A._ We were transferred from the Savannah to the Perry; from the Perry
to the Minnesota; from the Minnesota to the Harriet Lane.
_Q._ All of you?
_A._ Yes, sir; all.
_Q._ State, as near as you can, where, at Hampton Roads, the Minnesota
came?
_A._ She came a little to the westward of the Rip Raps; I suppose
Sewall's Point was bearing a little to the west of us, 3/4 or 1/2 a
mile to the west of us; I should judge west by south. I am well
acquainted there. We call it 24 miles from Old Point Comfort.
_Q._ What was the nearest port of entry to where you were anchored?
_A._ Norfolk, Va.
_Q._ How far from Fortress Monroe?
_A._ A mile, or 1-1/8 or 1-1/4--not a great distance.
_Q._ How long did you lie there before you were transferred to the
Harriet Lane?
_A._ Several days. I did not keep any account. Some two or three days.
_Q._ And you were brought to this port in the Harriet Lane?
_A._ Yes, sir.
_Q._ And all the prisoners you identified to-day were brought here?
_A._ Yes, sir, to the Navy Yard, Brooklyn; there transferred to a
ferry-boat and brought to the Marshal's office here.
_Mr. Evarts_: If the Court please, we deem it a regular and necessary
part of our proof to show the manner of the seizure of this vessel by
the U.S. ship Perry; to show that it was a forcible seizure, by main
force, and against armed forcible resistance of this vessel. Besides
being almost a necessary part of the circumstances of the seizure, it
is material as characterizing the purpose of this cruise, and the depth
and force of the sentiment which led to it, and the concurrence and
cohesion of the whole ship's crew in it.
_The Court_: What necessity for that after what has been conceded on
the other side?
_Mr. Evarts_: They concede that she was seized; but do they concede
that, as against all those accused, the crime of piracy is proved--the
concurrence of the whole--and that the only question is, whether the
protection claimed from what is called the privateering character of
the vessel shields them?
_The Court_: I understand the admission to be broad.
_Mr. Evarts_: If as broad as that, that there is no distinction taken
between the concurrence of these men, it is sufficient.
_Mr. Brady_: We have said nothing about that?
_The Court_: So far as the capture is concerned, that does not enter
into any part of the crime, and has no materiality to the elements of
this case at all. The force that may enter into the crime is in the
capture by the privateer of the Joseph. I do not want to confound this
case by getting off on collateral issues; and so far as concerns the
animus, or intent, I understand it to be admitted.
_Mr. Evarts_: My learned friends say that on this point they have not
said anything as to the jointness or complicity of the parties in this
crime. Now I think your honor would understand that a concurrence in
resistance, by force, of an armed vessel of the United States, bearing
the flag of the United States, and undertaking to exercise authority
over it, would show their design.
_The Court_: Have you any question as to the facts?
_Mr. Evarts_: The Government have all the facts. Stripped of all the
circumstances that attended the actual transaction, it would appear as
if, when the brig Perry came along, these people at once surrendered,
gave up, and submitted quietly and peacefully. As against that, we
submit the Government should protect itself by proving the actual
transaction.
_Mr. Brady_: One thing is certain, that if these men committed any
offence whatever, it was committed before they saw the Perry; it was an
act consummated and perfect, whatever may have been its legal
character, and whatever may have been the consequences which the law
would attach to it. The proof of the capture of the Savannah by the
Perry is in no way relevant, except in proving jurisdiction, for which
purpose alone is it of any importance that it should be mentioned here.
And whether the capture was effected after a chase, or without one,
against resistance, or by the consent of the persons to that from which
they could not escape, is of no possible consequence in any aspect of
the case. Whether there was firing or armed resistance can make no
difference. It cannot bear on the question whether all the defendants
are responsible for the acts of each other, like conspirators. It may
be, as the counsel for the prosecution holds, that when you show they
did set out on a common venture each became the agent of the other.
That may be, and they must take the responsibility of trying the case
on such a theory of the law as they think proper. We would not feel any
hesitation in saying they all acted with a common design, only that
there are some of the prisoners that we have had no communication with,
and it may be that some of them went on board without knowing what the
true character of the enterprise was. It is sufficient now to object
that the question, whether there was resistance or not, after the Perry
came up, is of no consequence in deciding the question of whether the
men are responsible.
_Mr. Evarts_: My learned friend is certainly right in saying that the
crime was completed when the Joseph was seized; but it does not follow
that the proof of what the crime was, and what the nature of the act
was, is completed by the termination of that particular transaction.
You might as well say that the fact of a robbery or theft has been
completed by a pickpocket or highwayman when his victim has been
despoiled of his property; and that proof of the crime prohibits the
Government from showing the conduct of the alleged culprit after the
transaction--such as evading the officer, running away from or
resisting the officer.
_The Court_: You do not take into account the admission of the counsel.
I believe the subsequent conduct of the privateers, if the intent with
which they seized and captured the Joseph was in question, would be
admissible; but when this is admitted broadly by the counsel for the
defendants, I do not see why it is necessary to go into proof with a
view to make out that fact, except to occupy the time of the Court.
_Mr. Evarts_: I am sure your honor will not impute to us any such
motive. The point of difficulty is: my learned friends do not admit the
completeness of the crime by all the prisoners, subject only to the
answer whether the privateering character of the enterprise protects
them. The moment that is admitted, I have no occasion to dwell upon the
facts.
_The Court_: I understand the admission as covering all the prisoners,
as to the intent.
_Mr. Brady_: That she was fitted out as a privateer--the enterprise,
and capture of the Joseph.
_Mr. Smith_: Is the admission that all were engaged in a common
enterprise, and all participators in the fact?
_The Court_: So I understand the admission, without any qualification.
_Mr. Smith_: Do we understand the counsel as assenting to the Court's
interpretation as to the breadth of the admission?
_Mr. Brady_: There is no misunderstanding between the Court and the
counsel; but the learned gentlemen seem not to be satisfied with the
admission we made. The intent is, of course, an element in the crime of
piracy. There must be an _animus furandi_ established, in making out
the crime; and that is, of course, a question about which we have a
great deal to say, both as to the law and the fact, at a subsequent
stage of the case. When the counsel proposed to prove the firing of
cannon, and armed resistance, we said--what we say now--that we do not
intend to dispute the facts proved by the witness on the stand: that
the Savannah was, at the port of Charleston, openly and publicly,
without any secresy (to use the witness's language, it was "posted"),
fitted out as a privateer, in the service of the Confederate States,
under their flag, and by their authority; that it was so announced, and
that these men were shipped on board of her as a privateer. All that,
there is no intention to dispute at all; and, of course, that all the
men who shipped for that purpose were equally responsible for the
consequences, we admit.
_Mr. Evarts_: Do you admit that all shipped for the purpose? If we can
prove their conduct, concurring in this armed resistance, then I show
that they were not there under any deception about its being a
peaceable mercantile transaction. I may be met by the suggestion that,
so far as the transaction disclosed about the Joseph is concerned,
there was not any such depth of purpose in this enterprise as would
have opposed force and military power in case of overhauling the
vessel. It would seem to me, with great respect to the learned Court,
that when the facts of the transaction can be brought within very
narrow compass, as regards time, it is safer that we should disclose
the facts than that admissions should be accepted by the Court and
counsel when there is so much room for difference of opinion as to the
breadth of the admission. We may run into some misunderstanding or
difference of view as to how far the actual complicity of these men, or
the strength of their purpose and concurrence in this piratical (as we
call it) enterprise, was carried.
_Mr. Lord_: If your honor will permit, it appears to me that this is
exceedingly plain. The notoriety and equipment of the vessel--all the
character of the equipment--the sailing together--all that is covered
by the admission of my friend, Mr. Brady. So far as to there being a
joint enterprise up to the time of the capture of the Joseph, it seems
to me there is nothing left. Now, what do they wish? They wish to show,
what is in reality another, additional, and greater crime, after this
capture of the Joseph, for which we alone are indicted, as they say,
for the purpose of showing that we assented to this, which we went out
to do.
Your honor knows that, if we have any fact to go to the jury, they are
getting into this case a crime of a very different character and of a
deeper dye, for which they have made no charge, and which does not bear
upon that which, if a crime at all, was consummated in the capture of
the Joseph--the only crime alleged in the indictment. I submit that
they cannot, with a view of showing complicity in a crime completed,
show that the next day the men committed another crime of a deeper
character. I think it is not only irrelevant, but highly objectionable.
_The Court_: We are of opinion that this testimony is superfluous, and
superseded by the admission of the counsel. I understand the admission
of the counsel to be, that the vessel was fitted out and manned by
common understanding on the part of all the persons on board, as a
privateer; and that in pursuance of that design and intent, and the
completion of it, the Joseph was captured. That is all the counsel can
ask. That shows the intent--all that can be proved by this subsequent
testimony; and unless there is some legitimate purpose for introducing
this testimony, which might, of itself, go to show another crime, we
are bound to exclude it.
_Mr. Evarts_: We consider the decision of your honor rests upon that
view of the admission, and we shall proceed upon that as being the
admission.
_The Court_: Certainly; if anything should occur hereafter that makes
it necessary, or makes it a serious point, the Court will look into it.
_Examination resumed by District Attorney Smith._
_Q._ You stated, I believe, that it was after 8 o'clock in the evening
when the boat of the Perry came to the Savannah?
_A._ Yes, sir.
_Q._ Who was in that boat?
_A._ There was a gentleman from the Perry; I do not know that I ever
saw him before; an officer and boat's crew,--I suppose 15 or 20 men.
_Q._ One of the United States officers?
_A._ Yes, sir; some officer from the brig Perry boarded us, and
demanded us to go on board the Perry.
_Q._ Where were the crew of the Savannah at the time the boat came from
the Perry?
_A._ All on deck, sir.
_Q._ At the time the Savannah was running down the Joseph, what time
was it?
_A._ We got up to the Joseph somewhere late in the forenoon, as near as
my memory serves me.
_Q._ I want to know whether all the officers and crew of the Savannah
were on duty, or not, at the time you were running down?
_A._ Yes, sir; there were some walking the deck, and some lying down,
right out of port; the men, after taking a drink, did not feel much
like moving about; they were all on deck.
_Q._ Was there any refusal to perform duty on the part of any one?
_A._ No, sir; all did just as they were told.
_Q._ How was the Savannah armed, if armed at all?
_A._ I never saw all her arms, sir.
_Q._ What was there on deck?
_A._ A big gun on deck.
_Q._ What sort of a gun?
_A._ They said an eighteen-pounder; I am no judge; I never saw one
loaded before.
_Q._ A pivot gun?
_A._ No, sir, not much of a pivot. They had to take two or three
handspikes to round it about.
_Q._ It was mounted on a carriage, the same as other guns?
_A._ Yes, sir.
_Q._ With wheels?
_A._ I believe so; I took no notice of the gun.
_Q._ Reflect, and tell us how the gun was mounted?
_A._ It was mounted so that it could be altered in its position by the
aid of handspikes; it could be swung by the use of handspikes.
_Q._ The gun could be swung on the carriage without moving the
carriage?
_A._ I do not know that part of it; I know the men complained that
moving the gun was hard work.
_Q._ What other arms had you on board?
_A._ I saw other arms on board,--pistols, I believe, and cutlasses.
_Q._ How many pistols did you see?
_A._ I saw several; I do not know how many.
_Q._ About how many cutlasses?
_A._ I cannot say how many; I saw several, such as they were--cutlasses
or knives, such as they were.
_Q._ Where were the cutlasses?
_A._ Those were in the lockers that I saw; I never saw them until
Monday noon, when we ran down the Joseph; I saw them then.
_Q._ Where were they then?
_A._ I saw them in the lockers that lay in the cabin.
_Q._ When the Perry's boat came to you where were they?
_A._ Some out on the table, and some in the lockers.
_Q._ When you captured the Joseph where were they?
_A._ I think there were some out on the table, and about the cabin; the
pistols, too; but there were none used.
_Q._ Were any of the men armed?
_A._ No, sir; I saw none of our men armed, except in their belt they
might have a sheath knife.
_Q._ Where were all hands when you captured the Joseph, in the forenoon
of Monday?
_A._ All on deck, sir; there might be one or two in the forecastle, but
most on deck, some lying down, and some asleep.
_Q._ What size is the Savannah?
_A._ I think in the neighborhood of 50 to 60 tons.
_Q._ What is the usual crew for sailing such a vessel, for mercantile
purposes?
_A._ I have been out in such a boat with four men and a boy, besides
myself; that was all-sufficient.
_Q._ Where did you run to?
_A._ I ran to Havana, and to Key West, with the mails, and returned
again in a pilot boat of that size, with four men and a boy, some years
ago.
_Q._ Was the Savannah in use as a pilot boat before that expedition?
_A._ Yes; that is what she was used for.
_Q._ Do you know where the Savannah was owned?
_A._ I believe she was owned in Charleston.
_Q._ How long have you known her?
_A._ Two or three years, as a pilot boat.
_Q._ Do you know her owners?
_A._ I know one of them.
_Q._ What was his name?
_A._ Mr. Lawson.
_Q._ Is he a citizen of the United States?
_A._ Yes, I believe so.
_Cross-examined by Mr. Larocque._
_Q._ In speaking of your meeting with the Joseph, you spoke of a
conversation that took place between Captain Baker and Captain Meyer,
after Captain Meyer came on board the Savannah. Do you not recollect
that before that, when Captain Meyer was still on the deck of the
Joseph, Captain Baker having called him to come on board the Savannah,
and bring his papers, he asked Captain Baker by what authority he
called on him to do that?
_A._ I think this conversation occurred on board the Savannah.
_Q._ The way you stated was this: that Captain Baker, on board the
Savannah, stated to Captain Meyer that he must consider himself and
crew prisoners, and his vessel a prize to the Confederate States?
_A._ Yes, sir.
_Q._ That was on board the Savannah?
_A._ It was.
_Q._ But do you not recollect that before that, when Captain Baker
called on the Captain of the Joseph to come on board the Savannah, and
bring his papers, Captain Meyer asked by what authority Captain Baker
called on him to do that?
_A._ I do not bear that in mind. I cannot vouch for that. I do not
exactly recollect those words, I think the proposition was only made
when he was on board the Savannah, but probably it might have been made
before.
_Q._ Did Captain Meyer bring his papers with him?
_A._ I do not know. I did not see them.
_Q._ You spoke of having met another vessel after that, and before you
fell in with the Perry--I mean the Berkshire--you spoke of her as a
British vessel?
_A._ Yes. We did not speak her.
_Q._ How did you ascertain the fact that she was a British vessel?
_A._ We could tell a British vessel by the cut of her sails.
_Q._ Was the Berkshire, so far as you observed, an armed or an unarmed
vessel?
_A._ I think she was an unarmed vessel. I considered she had been at
some of the Southern ports, and had been ordered off.
_Q._ She was a merchant vessel?
_A._ Yes.
_Q._ Which you, from your seamanlike knowledge, thought to be a British
vessel?
_A._ Yes; and I think that the words, "Berkshire, of Liverpool," were
on her stern.
_Q._ Did you read the name on the stern?
_A._ I think I did.
_Q._ You had fallen in with the Joseph, one unarmed vessel, and had
made her a prize, and her crew prisoners?
_A._ Yes.
_Q._ You fell in with the Berkshire, another unarmed vessel, and passed
under her stern and did not interfere with her. What was the reason of
that difference?
_A._ We had no right to interfere with her.
_Q._ Why not?
_A._ She was not an enemy of the Confederate Government. The policy we
were going on, as I understood it, was to take Northern vessels.
_Q._ Then you were not to seize all the vessels you met with?
_A._ No; we were not to trouble any others but those that were enemies
to the Confederate Government. That was the orders from headquarters.
The Captain showed no disposition to trouble any other vessels.
_Q._ When you were taken on board the Perry were you put in irons?
_A._ Yes.
_Q._ Where were those irons put on. Was it on board the Savannah, or
after you were put on board the Perry?
_A._ When we got on board the Perry.
_Q._ How soon after you went on board the Perry were those irons put
on?
_A._ As soon as our baggage was searched. We were put in the
between-decks on board the Perry and irons put on us immediately after
we were searched.
_Q._ Were you in irons when you were transferred from the Perry to the
Minnesota?
_A._ No, sir.
_Q._ When were the irons taken off?
_A._ On board the Perry, when we were going into the boat to go on
board the Minnesota.
_Q._ When you were on board the Minnesota were your irons put on again?
_A._ They were, at night.
_Q._ Was that the practice--taking them off in the day, and putting
them on at night?
_A._ Yes; we were not ironed at all on that day on board the Minnesota.
_Q._ When you arrived in Hampton Roads,--you have described the place
where the Minnesota lay, about half a mile from the Rip Raps?
_A._ Yes. (A chart was here handed to witness, and he marked on it the
position of the Minnesota off Fortress Monroe.)
_Q._ As I understand it, you have marked the position of the anchorage
of the Minnesota a little further up into the land than on a direct
line between the Rip Raps and Fortress Monroe? _A._ Yes, sir.
_Q._ You were then taken on board the Harriet Lane, from the Minnesota?
_A._ Yes.
_Q._ Where did the Harriet Lane lie when you were taken on board of
her?
_A._ She was further up into the Roads, about half a mile from the
Minnesota, westward. (Witness marked the position of the Harriet Lane
on the chart.)
_Q._ You are familiar with these Roads?
_A._ Yes, sir; for years.
_Q._ You know the town of Hampton?
_A._ Yes.
_Q._ And the college there?
_A._ Yes.
_Q._ How, with reference to the college at Hampton, did the Harriet
Lane lie?
_A._ The college at Hampton appeared N.N.W., and at a distance of a
mile and a quarter, or a mile and a half.
_Q._ How were you taken from the Minnesota on board the Harriet Lane?
_A._ The ship's crew took us in a boat.
_Q._ In one trip, or more trips?
_A._ We all went in one of the ship's boats.
_Q._ On what day was that?
_A._ I do not bear in mind exactly.
_Q._ Was the Harriet Lane ready to sail when you were taken on board of
her?
_A._ Yes; she sailed in a few hours afterwards.
_Q._ She had already had steam up?
_A._ Yes; they were waiting for the commander, who was on shore.
_Q._ How long were you lying on board the Minnesota after your arrival
there?
_A._ I think we were transferred from the Minnesota on Saturday, the
20th of June.
_Q._ How long had you been lying on board the Minnesota, in Hampton
Roads?
_A._ Two or three days; I do not recollect exactly.
_Q._ You have been a seafaring man a good many years?
_A._ I have been about 34 years at it.
_Q._ In the capacity of master and mate?
_A._ Yes, sir.
_Q._ As pilot, also?
_A._ I have run pilot on all the coasts of America.
_Q._ How often had you been in Hampton Roads?
_A._ Many a time. I sailed a vessel in and out in the West India trade.
_Q._ How familiar are you with the localities about there?
_A._ I am so familiar that I could go in, either night or day, or into
Norfolk.
_Q._ Do you know the ranges, bearings, distances, depth of water, and
all about it?
_A._ Yes; and could always find my way along there.
_Q._ (_By a Juror._) I understood you to say that the Savannah carried
both the American flag and the Confederate flag?
_A._ Yes.
_Q._ And that the American flag was flying when you were bearing on the
Joseph?
_A._ Yes.
_Q._ What was the object of sailing under that flag?
_A._ I presume our object was to let her know that we were coming; and,
no doubt, the vessel heaved to for us. Suddenly enough we raised the
Confederate flag.
_Q._ Then it was deception?
_A._ Of course; that was our business--that was as near as I understood
it.
_William Habeson_ called, and sworn. Examined by District Attorney
Smith.
_Q._ You are the Deputy Collector of the port of Philadelphia? _A._
Yes, sir.
_Q._ Have you charge of the register of vessels there?
_A._ Yes.
_Q._ Did you take this certified copy of the register of the Joseph
from the original book?
_A._ It is copied from the original book.
_Mr. Evarts_: It is a temporary register, dated 26th January, 1861,
showing the building of the vessel, and the fact of her owners being
citizens of the United States.
_Q._ Who was the master of the vessel then?
_A._ George H. Cables.
_Q._ Do you know who was the master afterwards?
_A._ Yes; I saw him afterwards. That man (pointing to Captain Meyer) is
the man. He was endorsed as master after the issuing of this register.
_Q._ And you recollect this person being master of the vessel mentioned
in that register?
_A._ I do, sir.
_George Thomas_ called, and sworn. Examined by District Attorney Smith.
_Q._ Where do you reside?
_A._ Quincy, Massachusetts.
_Q._ What is your business?
_A._ Shipbuilder.
_Q._ Do you know the brig Joseph?
_A._ I have known her; I built her.
_Q._ Where did you build her?
_A._ At Rockland, Maine.
_Q._ Who did you build her for?
_A._ For Messrs. Crocket, Shaller, Ingraham, and Stephen N. Hatch--all
of Rockland.
_Q._ Were they American citizens?
_A._ They were all American citizens.
_Q._ What was the tonnage of the vessel?
_A._ About 177 tons. She was a hermaphrodite brig.
_Q._ Look at this description in the register and say whether it was
the vessel you built.
_A._ I have no doubt that this is the vessel.
_George H. Cables_ called, and sworn. Examined by District Attorney
Smith.
_Q._ Where do you reside?
_A._ Rockland, Maine.
_Q._ Look at the description of the brig Joseph, in this register, and
see if you know her?
_A._ Yes, sir.
_Q._ You were formerly master of the vessel?
_A._ Yes, sir.
_Q._ Who was the master that succeeded you?
_A._ I put Captain Meyer in charge of her.
_Q._ You recognize Mr. Meyer here?
_A._ Yes, sir.
_Q._ Did you own any part of that vessel?
_A._ I bought a part of it, and gave it to my wife.
_Q._ Is your wife an American-born woman?
_A._ She is.
_Q._ Where does she reside?
_A._ In Rockland.
_Q._ Do you know any others of the part-owners of her?
_A._ Yes; my brother and myself bought a three-eighth interest.
_Q._ Where does your brother reside?
_A._ In Rockland.
_Q._ Is he an American-born citizen?
_A._ Yes.
_Q._ Are you an American citizen?
_A._ Yes.
_Q._ You spoke of some other owner?
_A._ Yes; Messrs. Hatch and Shaler.
_Q._ Are they American citizens?
_A._ Yes.
_Q._ Did you know all the owners?
_A._ Yes.
_Q._ Were they all American citizens?
_A._ Yes.
_Q._ When did you put Meyer in charge of the vessel?
_A._ On the 26th or 27th of April last.
_Q._ Where?
_A._ In Philadelphia.
_Q._ Where did you sail from?
_A._ From Cardenas, in Cuba, on a round charter which I made at
Cardenas myself with J. L. Morales & Co., consigned to S. H. Walsh &
Co.
_Q._ The ownership remained the same?
_A._ Just the same.
_Q._ Was there any change up to the time of her capture?
_A._ No, sir.
_Thies N. Meyer_, examined by District Attorney Smith.
_Q._ You were Captain of the brig Joseph at the time of her capture?
_A._ I was.
_Q._ What American port had you sailed from?
_A._ Philadelphia.
_Q._ Where did you go to?
_A._ Cardenas, in Cuba.
_Q._ What port did you sail for from Cardenas?
_A._ Back to Philadelphia.
_Q._ What cargo had you?
_A._ Sugar.
_Q._ By whom was it owned?
_A._ By J. M. Morales & Co., of Cardenas.
_Q._ When did you leave the port of Cardenas?
_A._ 28th May, 1861.
_Q._ And you were captured by the Savannah on the 3d June?
_A._ Yes.
_Q._ State the particulars of the capture by the Savannah of the brig
Joseph from the time she first hove in sight?
_A._ Mr. Bridges, my mate, called me some time between 6 and 7 o'clock
in the morning, and told me there was a suspicious looking vessel in
sight, and he wished me to look at her. I went on deck and asked him
how long he had seen her, he told me he had seen her ever since
day-light. When I took the spy-glass and looked at her I found that she
was a style of vessel that we do not generally see so far off as that.
I hauled my vessel to E.N.E., and when I found that she was gaining on
me I hauled her E. by N. and so until she ran E. About 8 o'clock she
came near enough for me to see a rather nasty looking thing amid-ships,
so that I mistrusted something; but when I saw the American flag
hanging on her main rigging, on her port side, I felt a little
easier--still, I rather mistrusted something, and kept on till I found
I could not get away at all. When she got within half a gun shot of me
I heaved my vessel to, hoping the other might be an American vessel.
_Q._ Had she any gun on board?
_A._ I saw a big gun amid-ships, on a pivot.
_Q._ How far on was she when you saw the gun?
_A._ About a mile and a half or two miles; I could see it with the
spy-glass very plainly.
_Q._ Can you give us the size of the gun?
_A._ Not exactly; I believe it was an old eighteen pound cannonade.
_Q._ How was it mounted?
_A._ On a kind of sliding gutter, which goes on an iron pivot: it was
on a round platform on deck, so that it could be hauled round and
round.
_Q._ So that it could be pointed in any direction?
_A._ Yes, in any direction. After she came up alongside of me, Captain
Baker asked me where I was from, and where bound, and ordered me with
my boat and papers on board his vessel. I asked him by what authority
he ordered me on board, and he said, by authority of the Confederate
States. I lowered my boat and went on board with two of my men. When I
got alongside, Captain Baker helped me over the bulwarks, or fence, and
said he was sorry to take my vessel, but he had to retaliate, because
the North had been making war upon them. I told him that that was all
right, but that he ought to do it under his own flag. He then hoisted
his own flag, and ordered a boat's crew to go on board the brig. Some
of them afterwards returned, leaving six on board the brig.
_Q._ Did Captain Baker take your papers?
_A._ Yes.
_Q._ Do you recognize Captain Baker in court?
_A._ Yes. As soon as they secured my crew they hauled the brig on the
other tack, and stood into the westward, with the privateer in company.
Captain Baker desired me to ask my mate to take the sun, as he had a
chronometer on board, and the privateer had not. At 3 o'clock the
privateer stood back to find out the longitude; while so doing she got
astern of the brig, and about that time the brig Perry hove in sight,
steering southward and eastward. When they saw the brig Perry they
hauled the privateer more on the wind, because she would go a point or
two nearer to the wind than the brig Joseph, so as to cut off the Perry
if they could. They went aloft a good deal with opera glasses, to find
out what she was, and they made her out to be a merchant vessel, as
they thought. Then they saw the Perry's quarter boats, and rather
mistrusted her. They backed ship and stood the same as the Perry. The
Perry then set gallant stern-sail, and kept her more free, because she
got the weather-gauge of the privateer.
_Q._ At the time of the capture of the Joseph by the Savannah did you
observe all the crew, and in what attitude they were on deck?
_A._ I saw them working around the gun and hauling at it. Whether it
was loaded or not, I could not say.
_Q._ Were any of the men armed?
_A._ None at that time that I know of; but after I went on board I saw
them armed with a kind of cutlass, and old-fashioned boarding-pistols;
and they had muskets with bayonets on.
_Q._ At the time you left your vessel for the Savannah, in what
attitude were the men on board the Savannah?
_A._ They were all around on deck. Perhaps half of them were armed.
_Q._ How was the gun pointed?
_A._ The gun was pointing toward the brig.
_Q._ Who were about the gun?
_A._ Before I went on board I saw that a man was stationed beside the
gun; I could not say which of them it was.
_Q._ What crew had you?
_A._ I had four men, a cook, and mate.
_Q._ Were they armed?
_A._ No, sir.
_Q._ Were you armed?
_A._ I had one old musket that would go off at half-cock.
_Q._ Was there any gun on board your vessel?
_A._ None except that.
_Q._ How many men did you see on the deck of the Savannah? _A._ Some
16, or 18, or 20.
_Q._ Were you transferred to the Perry from the Savannah?
_A._ Yes.
_Q._ And from the Perry to the Minnesota?
_A._ Yes.
_Q._ And from the Minnesota to the Harriet Lane?
_A._ No; to the Savannah. I came to New York in the Savannah.
_Q._ Then the Savannah sailed to New York before the Harriet Lane did?
_A._ Yes, sir.
_Q._ Where were you born?
_A._ In the Duchy of Holstein, under the flag of Denmark.
_Q._ You have been naturalized?
_A._ Yes.
_Q._ In what Court?
_A._ In the Court of Common Pleas, New York.
_Q._ When did you come to this country?
_A._ In the winter of '47.
_Q._ Did you hail from here ever since?
_A._ I hailed from almost all over the States. I never had a home until
lately. I have hailed from here about a year. Before that, wherever my
chest was was my home.
_Q._ You have resided in the United States ever since you were
naturalized?
_A._ Yes, sir; I have never been out of it except on voyages.
_Q._ You have continued to be a citizen of the United States since you
were naturalized?
_A._ Yes.
_Q._ And to reside in the United States?
_A._ Yes.
_Q._ Do you recollect the names of your crew?
_A._ No, sir; none except the mate; his name was Bridges.
_Q._ Is he here?
_A._ Yes.
_Q._ When the Joseph was seized by the Savannah, what was done with the
Joseph?
_A._ She was taken a prize, a crew of six was put on board of her, and
they started with her to westward.
_Q._ What became of the rest of the men of the Joseph besides yourself?
_A._ They were carried on with the Joseph; I continued on the Savannah.
_Q._ When did you first observe, on board the Savannah, that the
American flag was flying?
_A._ When she was within about a mile and a half off.
_Q._ At what time, in reference to her distance from you, did she run
up the Confederate flag?
_A._ The Confederate flag was not run up until after I had asked
Captain Baker by what authority he ordered me to go on board; then the
Confederate flag was run up; that was just before I went on board.
_Cross-examined by Mr. Larocque._
_Q._ Be good enough to spell your name.
_A._ Thies N. Meyer.
_Q._ Was there any flag hoisted on board the Savannah at the time she
was captured by the Perry, or immediately preceding that?
_A._ They were trying to hoist the Stars and Stripes up, but it got
foul and they could not get it up, and they had to haul it down again.
_Q._ Then she had no flag flying at the time?
_A._ No, sir.
The District Attorney here put in evidence the certified copy of the
record of naturalization of Thies N. Meyer, captain of the Joseph,
dated 28th January, 1856.
_Horace W. Bridges_, examined by District Attorney Smith.
_Q._ You were mate of the Joseph when she was captured by the Savannah?
_A._ Yes.
_Q._ Do you know the names of the others of the crew beside yourself
and the captain?
_A._ I do not know all of them.
_Q._ State those you know?
_A._ The cook's name is Nash, and there was another man named Harry
Quincy; that is all I know.
_Q._ Were they citizens of the United States?
_A._ I think they were both.
_Q._ Are you a citizen of the United States?
_A._ Yes; I was born in the State of Maine.
_Q._ You have heard the statement of Captain Meyer as to the seizure of
the vessel?
_A._ Yes.
_Q._ You were on board the Joseph after she parted company with the
Savannah and sailed for South Carolina?
_A._ Yes, sir.
_Q._ Under whose direction did she sail?
_A._ By the direction of the prize-master.
_Q._ With a prize crew from the Savannah?
_A._ Yes.
_Q._ Do you recollect the name of the prize-master?
_A._ Evans.
_Q._ How many men did the crew consist of?
_A._ Six, with the prize-master.
_Q._ What did they do with the vessel?
_A._ Took her into Georgetown.
_Q._ What was done with you and the others of the crew?
_A._ We were taken to jail at Georgetown.
_Q._ What was done with the vessel?
_A._ I believe she was sold, from what I saw in the papers and what I
was told.
_Q._ Where were you taken from Georgetown?
_A._ To Charleston.
_Q._ What was done with you there?
_A._ We were put in jail again.
_Q._ How long were you kept in jail in Georgetown?
_A._ About 2 months and 20 days.
_Q._ How long were you kept in jail in Charleston?
_A._ Three days.
_Cross-examined by Mr. Larocque._
_Q._ You said that, while you were held as a prisoner at Georgetown,
you saw something in reference to the sale of the Joseph in the papers?
_A._ Yes.
_Q._ What was the purport of it?
_A._ She was advertised for sale.
_Q._ Under legal process?
_A._ I do not know about that. I was also told of it by one of the
prize crew that took us in.
_Q._ You saw in the newspapers an advertisement of the sale?
_A._ Yes.
_Q._ Was that of a sale by order of a Court?
_A._ It was a sale by order of the Sheriff or Marshal.
_Q._ As a prize?
Objected to by District Attorney Smith, for two reasons:
_First_--That it was a mere newspaper account; and,
_Secondly_--That the newspaper was not produced.
After argument, the Court decided that there was no foundation laid for
this hearsay evidence.
_Q._ Did the advertisement state by whose authority the sale was to
take place?
_A._ I do not recollect anything about that.
_Q._ Do you recollect the name of a judge as connected with it?
_A._ No, sir. There was no judge connected with the sale.
_Q._ Do you recollect the name of Judge Magrath in connection with it?
_A._ No, sir; I recollect his name in connection with some prize cases,
but not in connection with the sale of the Joseph.
_Q._ Since your arrival at New York, you have been examined partially
by the District Attorney, and have made a statement to him?
_A._ Yes.
_Q._ Did you not state on that examination that while you were in
confinement the vessel was confiscated by Judge Magrath, and sold at
Georgetown?
_A._ No, sir; I do not think I did.
_Q._ You were released at Charleston, after a confinement of three
days?
_A._ Yes.
_Q._ How did you get out?
_A._ The Marshal let us out.
_Q._ While you were in confinement at Georgetown or Charleston was your
examination taken in any proceeding against the bark Joseph, or in
relation to her?
_A._ Yes, sir. In Georgetown.
_Q._ By whom was that examination taken?
_Mr. Evarts_ suggested that there was a certain method of proving a
judicial inquiry.
_Judge Nelson_: They may prove the fact of the examination.
_Q._ Before whom were you examined?
_A._ Before a man who came from Charleston.
_Q._ Did he take your examination in writing?
_A._ Yes, sir.
_Q._ Did you learn what his name was?
_A._ I think his name was Gilchrist.
_Q._ Were you sworn, as a witness?
_A._ Yes.
_Q._ What proceeding was that, as you were given to understand, and
what was the object of the examination?
_A._ The object of it was to find out what vessel she was, what was her
nationality, and who owned the cargo belonging to her.
_Q._ And you gave your testimony on these subjects.
_A._ Yes.
_Q._ Was it in written questions put to you?
_A._ I think so.
_Q._ And you signed your examination?
_A._ Yes.
_Q._ And what came of it afterwards?
_A._ I do not know.
_Q._ Was it taken away by Mr. Gilchrist?
_A._ I expect so.
_Q._ Was there any other of the crew besides yourself examined? _A._
Yes; all of them.
_Q._ On the same subject?
_A._ I expect so.
_Q._ Were you present during the examination of them all?
_A._ No; only at my own.
_Q._ What newspaper was it that you saw that advertisement in?
_A._ I think in the Charleston Courier.
_Q._ Do you recollect its date?
_A._ No, sir.
_Q._ What had become of the vessel when you went to Charleston?
_A._ She was lying in Georgetown.
_Q._ Do you know in whose possession, or under whose charge, she was?
_A._ I do not.
_Q._ Was she in Georgetown, in the hands of the Marshal, to your
knowledge?
_A._ No, sir; not to my knowledge. I was in prison at the time.
_Commodore Silas H. Stringham_, examined by District Attorney Smith.
_Q._ You are in the United States Navy?
_A._ I am.
_Q._ The Minnesota was the flag ship of the Atlantic Blockading
Squadron, off Charleston?
_A._ Yes, sir. I was the commanding officer.
_Q._ The Minnesota took the prisoners off the Perry?
_A._ Yes; on the 5th of June, in the afternoon.
_Q._ State precisely where the transfer from the Perry to the Minnesota
was made?
_A._ I discovered, about mid-day, a vessel close in to Charleston. I
stood off to make out what she was. A short time afterwards we
discovered it was the Perry, and were surprised to find her there, as
she had been ordered, some time previously, to Fernandina, Fla. She
hailed us, and informed us she had captured a piratical vessel. The
vessel was half a mile astern. Captain Parrott, of the Perry, came and
made to me a report of what had taken place. I ordered him to send the
prisoners on board, and sent a few men on board the Savannah to take
charge of her during the night. The vessels were then anchored. The
next morning I made arrangements to put a prize crew on board the
Savannah, and send her to New York, and I directed the Captain of the
Joseph to take passage in her. I took the prisoners from the Perry, and
directed the Perry to proceed on her cruise, according to her previous
orders. I then got the Minnesota under weigh, and took the privateer in
tow, and brought her close in to Charleston harbor, within 3 miles, so
as to let them see that their vessel was captured. Some slaves in a
boat told me next day that they had seen and recognized the vessel.
_Mr. Brady_: The question you were called upon to answer is, as to the
place where the prisoners were transferred from the Perry to the
Minnesota.
_A._ The transfer was made about 10 miles from Charleston Harbor, out
at sea. It was fully 10 miles off.
_Q._ State the design of transferring the prisoners to the Minnesota?
Objected to by Mr. Larocque.
ARGUMENT ON THE JURISDICTION.
The District Attorney, Mr. Smith, stated that he would prove that every
thing done from that time onward was done in pursuance of a design then
conceived of sending the prisoners, to the port of New York.
_Mr. Larocque_ contended that the naked question of jurisdiction, or
want of jurisdiction, could not be affected by showing that the
prisoners were taken on board a particular vessel, with or without a
particular design. All that affected that question was, the place where
the prisoners were first taken to after they were captured. The only
question their honors could consider was, whether, after their
apprehension, the prisoners were or were not brought within the
District of Virginia, so as to give the Court of Virginia jurisdiction,
before they were brought to New York. The fact that Commodore Stringham
did, or did not, entertain in his own mind a design to bring the
prisoners to New York, was of no relevancy whatever. Their objection
was based on the broad ground, that the statute had fixed the only
District that was to have jurisdiction of these criminals, namely, the
District within which they are first brought. If they were first
brought within the District of Virginia, the design which the Commodore
might have entertained made no manner of difference, and the fact could
not be got rid of by any evidence to show that the design was not to
put themselves in that dilemma.
_Mr. James T. Brady_ submitted an argument on the same side. He said
that the true test of the correctness of the objection could be
ascertained thus: If a man were arrested anywhere on the high seas,
supposed to be amenable to the Act of 1790, and was brought into a port
of the United States, within a Judicial District of the United States,
could he not demand, under the Act of Congress, to be tried in that
District? Could the commander of the vessel supersede that Act of
Congress, and say he would take the prisoner into the port of New York,
or any other port? What answer would that be to a writ of _habeas
corpus_ sued out by either of these men confined on that ship, within
that Judicial District? If any such rule as that could prevail, the Act
of Congress would become perfectly nugatory and subservient to the will
of the individual who apprehended prisoners on the high seas. If he had
started on a cruise round the world, he could carry them with him, and,
after returning to the United States, could take them into every
District till he came to the one that suited him. Mr. Brady, therefore,
claimed that it was wholly immaterial what might have been the design
of Commodore Stringham; and that the question of jurisdiction was
determined by the physical fact, as to what was the first Judicial
District into which these men were brought after being apprehended on
the high seas.
_Mr. Evarts_ considered that this was a question rather of regularity
of discussion, than a question to be now absolutely determined by the
Court. He supposed that they were entitled to lay before the Court all
the attendant facts governing the question of, whether the introduction
of these criminals from the point of seizure on the high seas was,
within the legal sense, made into the District of New York, or into
that of Virginia--whether the physical introduction of prisoners, in
the course of a voyage toward the port of New York, into the roads at
Hampton, is, within the meaning of the law, a bringing them into the
District of Virginia. If the substantial qualification of the course of
the voyage from the point of seizure to the place of actual debarcation
was to affect the act, this was the time for the prosecution to produce
that piece of evidence; and he supposed that that important inquiry
should be reserved till the termination of the case, when the proof
would be all before the Court. He suggested that no large ship could
enter the port of New York without physically passing through what
might be called the District of New Jersey; and argued that, in no
sense of the act, and in no just sense, should these prisoners be tried
in New Jersey, because the ship carrying them had passed through her
waters.
_Mr. Larocque_, for the defendants, contended that the arrest of the
parties as criminals was at the moment when they were taken from on
board the Savannah, placed on board the Perry, and put in irons. The
learned gentleman (Mr. Evarts) had said that it would be impossible to
bring them within the District of New York without first bringing them
within the District of New Jersey; but that objection was met by the
fact that, over the waters of the bay of New York, the States of New
Jersey and New York exercised concurrent jurisdiction, and therefore
they came within the District of New York, to all intents and purposes.
He proposed to refer to the authorities on which the point rested.
In this case, the place where the arrest was made was the Perry, a
United States cruiser, which, in one sense, was equivalent to a part of
the national soil; and he held that the idea under this statute was,
that their apprehension and confinement from the moment they were
arrested as criminals was complete, without being required to be under
legal process, it being sufficient that they were arrested by the
constituted authorities of the United States. The moment they were
brought within a Judicial District of the United States, that moment
the jurisdiction attached; and no jurisdiction could attach anywhere
else. This was an offence committed on the high seas. All the Districts
of the country could not have concurrent jurisdiction over it; and this
very case was an exemplification of the injustice that would result
from permitting an officer, in times of high political excitement, to
have the privilege, at his mere pleasure or caprice, of selecting the
place of jurisdiction, and the place of trial. Suppose these prisoners,
instead of being landed at the first place where the vessel touched,
could have been taken up the Mississippi river in a boat, and up the
Ohio river in another boat, and landed within the District of Ohio, for
the purpose of being tried there,--would not their honors' sense of
justice and propriety revolt at that? The same injustice would result
in a different degree, and under different circumstances, if, after
taking these prisoners to Virginia and ascertaining the difficulties in
the way of their being tried there, the officer could change their
course and bring them into the port of New York. The prisoners were
entitled to the benefit of being tried in the District where they were
first taken, in preference to any other District; and justice would be
more surely done by holding a strict rule on that subject, by requiring
that the facts should control, and that no mere intention on the part
of the captors should be allowed to govern.
One of the cases on this subject which had produced a misapprehension
of the question was that of the United States _vs._ Thompson, 1st
Sumner's Reports, which was an indictment for endeavoring to create a
revolt, under the Act of 1790. It was in the Massachusetts District.
The facts in the case were these:--"The vessel arrived at Stonington,
Connecticut, and from thence sailed to New Bedford, Massachusetts,
where the defendant was arrested, and committed for trial. It did not
appear that he had been in confinement before. Judge Story ruled on the
question of jurisdiction. He said: 'The language of the Crimes Act of
1790 (Cap. 36, sec. 8) is, that the trial of crimes committed on the
high seas, or in any place out of the jurisdiction of any particular
State, shall be in the District in which the offender is apprehended,
or into which he shall first be brought. The provision is in the
alternative, and therefore the crime is cognizable in either District.
And there is wisdom in the provision; for otherwise, if a ship should,
by stress of weather, be driven to take shelter temporarily in any port
of the Union, however distant from her home port, the master and all
the crew, as well as the ship, might be detained, and the trial had far
from the port to which she belonged, or to which she was destined. And
if the offender should escape into another District, or voluntarily
depart from that into which he was first brought, he would, upon an
arrest, be necessarily required to be sent back for trial to the
latter. And now there is no particular propriety, as to crimes
committed on the high seas, in assigning one District rather than
another for the place of trial, except what arises from general
convenience; and the present alternative provision is well adapted to
this purpose.'"
This was noticed, in the first place, in the case of the United States
_vs._ Edward C. Townsend, of which he (Mr. Larocque) held in his hand a
copy of the exemplication of the record. Townsend was charged, in the
District Court of Massachusetts, with piracy, in having been engaged in
the slave trade, in 1858. He was captured on board the brig Echo, by a
United States cruiser. That vessel first made the port of Key West,
putting in there for water; and thence proceeded to Massachusetts,
where the prisoner was landed, taken into custody under a warrant of
the Commissioner, and the matter brought before the Grand Jury, for the
purpose of having an indictment found against him. In that case Judge
Sprague charged the Grand Jury that, under the law, the prisoner could
only be tried in Key West, because that was the first port which the
vessel had made after he had been captured and confined as a prisoner.
Under that instruction the Grand Jury refused to find a bill of
indictment; and thereupon the District Attorney (Mr. Woodbury) applied
to the court for a warrant of removal, to remove him to Key West, for
trial; and also to have the witnesses recognized to appear at Key West,
to testify on the trial. The counsel read a note from Mr. Woodbury on
the subject, showing that Mr. Justice Clifford, of the Supreme Court of
the United States, sat and concurred with Judge Sprague in granting the
warrant of removal. He referred also to another case, decided by Judge
Sprague--the United States _vs._ Bird--volume of Judge Sprague's
Decisions, page 299: "This indictment alleged an offence to have been
committed on the high seas, and that the prisoner was first brought
into the District of Massachusetts. Questions of jurisdiction arose
upon the evidence. The counsel for the prisoner contended that the
offence, if any, was committed on the Mississippi river, and within the
State of Louisiana; and, further, that if committed beyond the limits
of that State, the prisoner was not first brought into this District.
Sprague, J., said that, if an offence be committed within the United
States, it must be tried in the State and District within which it was
committed. Constitution Amendment 6, If the offence be committed
without the limits of the United States, on the high seas, or in a
foreign port, the trial must be had in the District 'where the offender
is apprehended, or into which he may be first brought.'--Stat. 1790,
cap. 9, sec. 8; Stat. 1825, cap. 65, sec. 14. By being brought within a
District, is not meant merely being conveyed thither by the ship on
which the offender may first arrive; but the statute contemplates two
classes of cases: one, in which the offender shall have been
apprehended without the limits of the United States, and brought in
custody into some Judicial District; the other, in which he shall not
have been so apprehended and brought, but shall have been first taken
into legal custody, after his arrival within some District of the
United States, and provides in what District each of these classes
shall be tried. It does not contemplate that the Government shall have
the election in which of two Districts to proceed to trial. It is true
that, in United States _vs._ Thompson, 1 Sumner, 168, Judge Story seems
to think that a prisoner might be tried either in the District where he
is apprehended, or in the District into which he is first brought. But
the objection in that case did not call for any careful consideration
of the meaning of the word 'brought,' as used in the statute; nor does
he discuss the question, whether the accused, having come in his own
ship, satisfies that requisition. In that case the party had not been
apprehended abroad; and the decision was clearly right, as the first
arrest was in the District of Massachusetts. The statute of 1819, cap.
101, sec. 1 (3 U.S. Statutes at Large, 532), for the suppression of the
slave trade, is an example of a case in which an offender may be
apprehended without the limits of the United States, and sent to the
United States for trial. Ex parte Bollman _vs._ Swartwout, 4 Cranch,
136."
Their honors would observe that in both the cases cited, correcting the
manifest misapprehension of Judge Story, the point was distinctly held
that the question of jurisdiction was controlled exclusively by the
fact as to what District the prisoner was first brought into after his
arrest on the high seas, out of the United States, for a crime
committed on the high seas.
Judge Nelson stated that, as it was now late (half-past 5 P. M.), the
question might go over till morning.
The counsel on each side assenting, the Jury were allowed to separate,
with a caution from the Court against conversing in respect to the
case.
Adjourned to Thursday, at 11 A.M.
SECOND DAY.
_Thursday, Oct. 24, 1861._
The Court met at 11 o'clock A.M.
_Judge Nelson_, in deciding the question raised yesterday, said:
So far as regards the question heretofore under consideration of Judge
Sprague, we do not think that at present involved in the case. We will
confine ourselves to the decision of the admissibility of the question
as it was put by the District Attorney and objected to, as respects the
purpose with which the Minnesota, with the prisoners, was sent to
Hampton Roads. We think that the fact of their being sent by the
commanding officer of that place, with the prisoners, to Hampton Roads,
is material and necessary; and, in order to appreciate fully the fact
itself, the purpose is a part of the _res gestae_ that characterizes the
fact. What effect it may have upon the more general question, involving
the jurisdiction of the Court, is not material or necessary now to
consider. We think the question is proper.
Counsel for defendants took exception to the ruling of the Court.
_Commodore Stringham_ recalled. Direct examination resumed by Mr.
Smith.
_Q._ What was your object in transferring the prisoners from the Perry
to the Minnesota?
_A._ Sending them to a Northern port. The port of New York was the port
I had in my mind. To send them by the first ship from the station, as
soon as possible, to a Northern port, for trial. I could not send them
to a Southern port for trial. The only way I could do so would be by
guns. I could get no landing in those places otherwise; and I could get
no judge or jury to give them a trial.
_Mr. Larocque_ asked if, conceding the propriety of the inquiry, the
statement of the witness was competent, viz.: that he had a port in his
mind.
_The Court_: No; the question was not put in the shape I supposed. The
question should have been--for what purpose or object did he send the
prisoners in the Minnesota to Hampton Roads? That is the point in the
case--the intent with which the vessel was sent to Hampton Roads?
_A._ I sent them there with the intention of sending them to a Northern
port, for trial. The Harriet Lane being the first vessel that left,
after my arrival there, they were sent in the Harriet Lane to the
Northern port of New York.
_Q._ Why did you not take them in the Minnesota directly to New York,
instead of taking them to Hampton Roads?
_A._ My station was at Hampton Roads, and I went there to arrange the
squadron that might be there, and to get a supply of fuel for the ship.
I do not think we had enough to go to New York, if we wished to go
there. I had supplied vessels on the coast below, and had exhausted
pretty nearly all the coal from the Minnesota when we arrived at
Hampton Roads.
_Q._ What directions did you give to the officers of the Harriet Lane?
_A._ I gave no directions to the officers of the Harriet Lane. I gave
directions to the commander of the Minnesota. I left on the day
previous, I think, to their being transferred to the Harriet
Lane,--giving directions that, as soon as she came down from Newport
News, to send her to New York, with the prisoners. I had been called to
Washington, by the Secretary of the Navy, the day before she sailed.
_Q._ Are you aware of any facts which rendered it impossible to land
the prisoners in the Virginia District, or on the Virginia shore?
_A._ It was impossible to land without force of arms, and taking
possession of any port. We _could_ land them there, but not for trial,
certainly. The Harriet Lane had been fired into but a short time
previous; and that was one cause of sending her to New York.
_Q._ Fired into from the Virginia shore?
_A._ Yes, sir; from Field Point; I should judge, about 8 miles from
Norfolk port, on the southern shore, nearly opposite Newport News. I
was not there, but it was reported to me. She was fired into, and she
was ordered to New York to change her armament.
_Q._ Was that fort in the way, proceeding to Norfolk?
_A._ Not on the direct way to Hampton Roads, but a little point on the
left.
_Q._ Would a vessel, going the usual way to Norfolk, be in range of the
guns that were fired at the Harriet Lane?
_A._ Not of these; but she would be in the range of four or five forts
that it would be necessary to pass in order to land the prisoners at
Norfolk.
_Q._ What was the nearest port to where the Minnesota went with the
prisoners?
_A._ The nearest port of entry was Norfolk. Hampton Roads was a little
higher up. We were not anchored exactly at the Roads, but off Old
Point, which is not considered Hampton Roads.
[_Map produced._] I have marked the position of the Minnesota on this
map, in blue ink. [Exhibits the position to the Court.]
_Q._ State the position of the Minnesota?
_A._ That is as near as I can put it--between the Rip Raps and Fortress
Monroe--a little outside of the Rip Raps.
_Q._ In what jurisdiction is the Fort?
_A._ In the United States.
(Objected to, as matter of law.)
_Q._ At what distance were you from Fortress Monroe?
_A._ About three-quarters of a mile, and nearly the same from the Rip
Raps.
_Q._ What distance from Norfolk?
_A._ I think 14 miles, as near as I can judge; 12 or 14.
_Q._ Had you any instructions from the Government, in respect to any
prisoners that might be arrested on the high seas, as to the place they
were to be taken to?
_A._ Not previous to my arriving at Hampton Roads. After that, I had.
Those instructions were in writing.
_Q._ You had no particular or general instructions previous to that?
_A._ No, sir; it was discretionary with me, previous to that, where to
send the prisoners I had.
_Q._ When vessels are sent from one place to another, state whether it
is not frequently the case that they take shelter in roadsteads?
(Objected to. Excluded.)
_Q._ Where did your duties, as flag-officer of the squadron, require
you to be with your ship, the Minnesota?
(Objected to. Excluded.)
_Q._ Where do Hampton Roads commence on this map, and where end?
_A._ In my experience, I have always considered it higher up than where
we were anchored. This is anchoring off Fortress Monroe, when anchoring
there. When they go a little higher up, they go to Hampton Roads; and,
before the war, small vessels anchored up in Newport News, in a gale of
wind.
_Q._ Where did the Minnesota anchor, in respect to Hampton Roads?
_A._ We anchored outside, sir. I can only say this from the pilot. When
commanding the Ohio, he asked me whether I wished to anchor inside the
Roads. Baltimore pilots have permission to go into Hampton Roads, and
no farther. That is considered as neutral ground for all vessels.
_By the Court_:
_Q._ What is the width of the entrance to the Hampton Roads?
_A._ I should judge about 3-1/2 miles, or 3-1/4, from Old Point over to
Sewall's Point. I have not measured it accurately. It is from 3 to 4
miles.
_By Mr. Smith_:
_Q._ Was the Minnesota brought inside or outside of a line drawn from
Old Point to the Rip Raps?
_A._ A little outside of the line, sir.
_By a Juror_:
_Q._ Would a person be subject to any port-charges where the Minnesota
lay?
_A._ No, sir.
Defendants' counsel objected to the question and answer.
_The Court_:
_Q._ What do you mean by port dues?
_A._ I mean they do not have to enter into the custom-house to pay
port-charges. It is not a port of entry, that compels them to carry
their papers. The only port-charges I know of are the pilot-charges, in
and out.
(The Court ruled it out as immaterial.)
_Cross-examined by Mr. Brady._
_Q._ I want, for the purpose of preventing any misapprehension, to ask
if there is any line that you know of, which you could draw upon that
map, distinguishing the place at which Hampton Roads begins?
_A._ Nothing only among sea-faring men;--just as the lower bay of New
York, which is considered to be down below the Southwest Spit. When
anchored between this and that, it is called off a particular place, as
Coney Island, &c. So, there, after you pass up from Fortress Monroe, it
is called Hampton Roads.
_Q._ Is there any specific point you can draw a line from on the map
that distinctly indicates where Hampton Roads begin? _A._ I cannot,
sir.
_Q._ Designate where the Harriet Lane was?
_A._ I cannot say, sir. She was at Newport News when I left, and came
down the next day, I believe, and took the prisoners on board and
proceeded to New York.
_Q._ The Minnesota was anchored?
_A._ Yes, sir, but not moored; with a single anchor.
_Q._ How much cable was out?
_A._ From 65 to 70 fathoms, I think. I generally order 65 fathoms; but
the captain gave her 5 fathoms more.
_Q._ Would she swing far enough to affect the question whether she was
in or outside of Hampton Roads, as you understood it?
_A._ No, sir.
_Q._ Had you often been there before?
_A._ I had, sir, often. I was there 51 years ago. I started there.
_Q._ Did you ever have occasion, for any practical purposes, to locate
where Hampton Roads began?
_A._ Yes, sir; several times I have anchored there with ships under my
command, and the pilots have said, "Will you go up into the Roads?" and
I said, "Yes;" and we never anchored within two or three miles of where
we lay with the Minnesota.
_Q._ But it was not your object to get at any particular line which
separated Hampton Roads?
_A._ No; we considered it a better anchorage. The only importance was a
better anchorage.
_Q._ You had no instructions of any kind in regard to the prisoners
before you left for Washington?
_A._ I would say I had not, before I arrived at Hampton Roads, or at
Old Point.
_Q._ Did you receive any between the time of your arrival and your
departure for Washington?
_A._ I cannot say, but I think not.
_Q._ The only instructions you gave were that, when the Harriet Lane
came up, the prisoners should be removed, and sent to New York?
_A._ I gave orders that they should be sent to New York and delivered
to the Marshal.
_Q._ There would be no difficulty to transfer prisoners to Fortress
Monroe?
_A._ No, sir, no difficulty.
_Q._ Could they not have been taken to Hampton?
_A._ I think not. Our troops had abandoned Hampton and moved in, I
think. There was nothing there to land at Hampton. We may have had
possession at that time.
_Q._ Do you know of any obstacle whatever to these men having been
taken ashore at Old Point Comfort and carried to Hampton?
_A._ I went up twice to Washington, with Colonel Baker, when he
abandoned Hampton; but I think at the time the prisoners were on board
we had the occupation of Hampton by our troops. My impression is, we
occupied it partly with our troops at that time. I went to Washington
at another time, when the troops had abandoned Hampton, and Colonel
Baker took his soldiers up in the same boat.
_Q._ A college has been described on shore, and the locality described.
Was it not occupied as an hospital?
_A._ Yes, sir, at the time the Minnesota arrived. It is not in Hampton.
_Q._ When the Minnesota arrived with the prisoners was not that
building in possession of our Government?
_A._ It was, sir, I believe. I was not in it.
_By Mr. Evarts_: Is not the hospital at Old Point?
_A._ Near Old Point.
_By Mr. Brady_: Designate on the chart where it is?
_A._ I have done so,--the square mark, on the shore, in the rear of the
fort, on the Virginia shore.
_By the Court_: How much of a town is Hampton?
_A._ There is none of it left now. I suppose it was a town of 4,000 or
5,000 inhabitants.
_Q._ Was it not formerly a port of entry?
_A._ No, sir, I believe not; not that I know of. That was 4 or 5 miles
off from the vessel.
_By Mr. Brady_: How far was Hampton from Fortress Monroe?
_A._ I should judge 3 miles.
_Q._ I ask again, before you left the Minnesota, after the arrival of
the prisoners, had you any instructions from Washington in regard to
these prisoners?
_A._ I cannot bring to my mind whether I had any or not. I had
instructions, subsequent to my arrival, about all prisoners, and that
was the reason why I came here. There was some question as to why I
came with 700 prisoners; but I had instructions to bring all prisoners
taken, and turn them over to Colonel Burke, of New York.
_Q._ After you arrived at Washington did you receive any instructions
in regard to these prisoners?
_A._ I do not know that I did. I had some discussion in Washington.
_Q._ Did you communicate from Washington, in any way, to Fortress
Monroe, or the Minnesota, in regard to the prisoners? _A._ No, sir.
_Q._ They went forward under the directions you gave before leaving to
go to Washington?
_A._ They did, sir; I gave the instructions. I did not know whether the
Harriet Lane would be ready. She was waiting until
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