Читать книгу 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 - Warburton Adolphus Frederick - Страница 2

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Challenge withdrawn.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.