Chapter III: Appendix (2)

_Judge Shipman_ said, that he had no doubt in relation to the disposition to be made of this motion. The Court could not have several sets of rules to apply at will to the same class of cases; and even if the Court had power to adopt a different rule in some criminal cases from that fixed in others of the same grade, it would be very questionable whether such power ought to be exercised. The law had made no distinction in regard to this class of criminal offences. Upon the statute book of the United States are various acts of Congress defining atrocious crimes punishable capitally; and among these, is the crime of piracy, or robbery upon the high seas, for which the defendants are indicted. In all cases where parties are charged with criminal offences, and especially with capital crimes, it is customary to give the defendants a reasonable time for the preparation of their defence; and the Court must always assume and act, so far as the technical proceedings are concerned, upon the presumption of innocence which the law always interposes. The Court cannot take into consideration many of the suggestions made by counsel for the Government or for the defence; and in disposing of this motion, I wish it to be distinctly understood that I do so just as I should in any other case of alleged robbery or piracy upon the high seas, where, if the defendants be convicted, they must suffer, according to the statute, the penalty of death. I cannot look at other considerations. I cannot anticipate other defences. In the administration of the criminal law, although the principles are usually very simple, and although, for aught I know, they may be as simple when applied to this case as to any other, yet in the application of those principles, there is often ground for difference of opinion. Courts that have been long regarded as entitled to very great respect for learning, discrimination, and experience, frequently differ as to the application of principles of law to particular cases. In view of this fact, in capital cases, it has been a rule usually adhered to in the United States Circuit Courts (which are so constituted by the Act of Congress that two Judges are authorized to sit) to have, if applied for, a full Court, so that the defendant might have the benefit, if I may so speak, of the chance of a division of opinion. For such division of opinion constitutes the only ground upon which the case can be removed to a higher Court for revision. In this view of the case, and upon the strenuous application of the defendants for the presence of a full Court, I certainly cannot deny the application consistently with my judgment of what is right and proper; and I say this with a full recognition of the importance of this trial. I might add, it may be desirable for the Government, in the event of a certain determination of this case, that in the preliminary proceedings--the time fixed for trial and the constitution of the Court--there should be nothing to weaken the full and appropriate effect of such determination.

After some observations in regard to two exceptional cases--that of Gordon, on his first trial for engaging in the slave trade,[2] and the case of the parties convicted of murder on board the ship "Gen. Parkhill," both cases having been tried before a District Judge sitting alone, the counsel for the defendant in each case making no request to have a full Court--Judge Shipman went on to say, that in consequence of Judge Nelson's engagements in another District, in September, and in view of his confinement with the effects of a fall from his carriage, which would prevent his sitting in August, he (Judge Nelson) could not probably hear this case until the October term. He therefore ordered the trial to be set down for the third Monday of October, at eleven o'clock.

[2] The second trial of Gordon, resulting in a conviction,
took place before a full Court, Mr. Justice NELSON sitting
with Judge SHIPMAN.

The prisoners were remanded to the custody of the Marshal, and their manacles, which had been removed while they were in Court, being replaced, they were taken to the Tombs.

TRIAL OF THE OFFICERS AND CREW OF THE SCHOONER SAVANNAH, ON THE
CHARGE OF PIRACY.

UNITED STATES CIRCUIT COURT, SOUTHERN DISTRICT OF NEW YORK.

Wednesday, Oct. 23, 1861.

THE UNITED STATES

_against_

THOMAS HARRISON BAKER,
CHARLES SYDNEY PASSALAIGUE,
JOHN HARLESTON,
JOSEPH CRUSE DEL CARNO,
PATRICK DALY,
JOHN MURPHY,
MARTIN GALVIN,
HENRY CASHMAN HOWARD,
HENRY OMAN,
WILLIAM CHARLES CLARKE,
RICHARD PALMER,
ALEXANDER CARTER COID,
ALBERT G. FERRIS.

HON. JUDGES NELSON AND SHIPMAN PRESIDING.

_Counsel for the United States_:

E. DELAFIELD SMITH, WM. M. EVARTS, SAML. BLATCHFORD, ETHAN ALLEN.

_Counsel for the Defendants_:

BOWDOIN, LAROCQUES & BARLOW, DANIEL LORD, JAMES T. BRADY, ALGERNON S.
SULLIVAN, JOSEPH H. DUKES, ISAAC DAVEGA, MAURICE MAYER.

_E. Delafield Smith, Esq._, United States District Attorney, stated that he desired to use Albert Gallatin Ferris, one of the prisoners indicted, as a witness, and would therefore enter a _nolle prosequi_ in regard to him.

_The Court_: Are the prisoners to be tried jointly?

_Mr. Lord_: I believe so, sir.

_The Clerk_ called over the names of the prisoners, directing them to challenge the Jurors as called.

_Judge Nelson_: Those of the prisoners who desire to do so may take seats by the side of their counsel.

_The Clerk_ proceeded to call the panel.

_Edward Werner_ called, and challenged for principal cause by Mr. Smith:

_Q._ Have you any conscientious scruples that would prevent your finding a verdict of guilty, in a capital case, where the evidence was sufficient to convince you that the prisoner was guilty?

_A._ No, sir.

_By Mr. Larocque_, for the prisoners:

_Q._ Have you read the account in the newspapers of the capture of the Savannah privateers?

_A._ Yes, sir.

_Q._ Have you ever formed or expressed any opinion as to the guilt or innocence of these prisoners?

_A._ No, sir.

_Q._ Have you ever formed or expressed any opinion as to whether they were guilty of piracy, if the facts were as alleged?

_A._ No, sir.

Challenge withdrawn. _Juror sworn._

_William H. Marshall_ called, and challenged for principal cause:

_Q._ Have you any conscientious scruples that would prevent your finding a verdict of guilty in a capital case, where the evidence was sufficient to convince you that the prisoner was guilty?

_A._ No, sir.

_By Mr. Larocque_, for the prisoners:

_Q._ You read the account of the privateer Savannah?

_A._ I believe I have.

_Q._ Have you formed or expressed any opinion as to the guilt or innocence of the prisoners?

_A._ No, sir.

_Q._ Have you ever formed or expressed any opinion as to whether they were guilty of piracy, if the facts were as alleged?

_A._ I have not formed any opinion as to these men.

_Q._ As to the general question, whether cruising under a commission from the Confederate States is piracy?

_A._ I do not think I have formed any opinion, or expressed one.

Challenge withdrawn. _Juror sworn._

_William Powell_ called, and challenged for principal cause by Mr. Smith:

_Q._ Have you any conscientious scruples that would prevent your finding a verdict of guilty, in a capital case, where the evidence was sufficient to convince you that the prisoner was guilty?

_A._ No, sir.

_By Mr. Larocque_, for the prisoners:

_Q._ Have you formed or expressed any opinion as to the guilt or innocence of these prisoners?

_A._ I have not formed any opinion that would prevent me from giving a verdict according to the facts of the case. I have read the account, and I presume have formed such an opinion as most men do from reading an account, if the facts be so and so.

_Q._ Have you formed any opinion as to whether cruising, under a commission from the Confederate States, is piracy?

_A._ Yes, sir, I have.

_Mr. Evarts_ objected that this was purely a question of law, and one jurors should not be inquired of.

_The Court_ sustained the objection.

_Q._ Did you believe the accounts which you read of this transaction?

_A._ Well, it is difficult to say. There is so much published in the papers now-a-days that is not correct, that I am hardly prepared to say I believe anything I see, without palpable evidence. I believe the fact of the capture of the Savannah.

_Q._ Did you read what had been done by the Savannah before she was captured?

_A._ Well, I formed no opinion with regard to that.

_Q._ Did you form an opinion of the character of the act with which the defendants were charged?

_A._ No, sir.

_Q._ Do you entertain the settled opinion that acting under a commission from President Davis, or the Confederate Government, constitutes piracy?

_Mr. Evarts_ objected that this was a question of law.

_The Court_: I doubt whether that is a question that would be proper.

_Mr. Larocque_: This is a very peculiar case, as your honor is well aware. It is a case of first impression in the courts of the United States. It is a case in which, probably, there will be very little difference between the prosecution and the defendants as to the mere facts which are charged in this indictment, and it is a case in which jurors who present themselves to be sworn, if they have any bias or prejudice whatever, have it rather in reference to the character of the acts than as to the acts themselves having been committed or not having been committed. Now, we all know, if your honor please, that in all criminal trials a great deal of discussion has always taken place with reference to the jurisdiction of the jury over questions of law. The Courts have held that they are bound to receive their instructions on the law from the Court; but, at the same time, if they do not act in pursuance of the instructions which they receive, it is a matter between them and their own consciences, and it is a matter which no form of review in these Courts will reach. Now, one of my associates has handed to me an authority upon this subject from 1st Baldwin's Reports--that on the trial of Handy, in 1832, for treason, Judge Grier held that a juror who had formed an opinion that the riots in question did not amount to treason, was incompetent; and, in the case of the United States _v._ Wilson, it was held that a juror was incompetent who stated, on being challenged, that he had read the newspaper account of the facts at the time, and had come to his own conclusion, and had made up his mind that the offence was treason, although he had not expressed that opinion, nor formed or expressed an opinion that the defendant was or was not engaged in the offence. It seems to me that these authorities cover precisely the case before the Court, the only difference being that this is a charge of piracy, and the other a charge of treason.

_Judge Nelson_: The only difference is that there the question was put to the juror as to the crime, after it appeared he had read the account of the transaction, which involved both the law and the facts--involved the whole case; but as we understand your question, you put a pure question of law, which we do not think belongs to the juror.

_Mr. Larocque_: I understand your honor to rule the question is not admissible.

_Judge Nelson_: Yes.

Defendants' Counsel took exception.

_Mr. Larocque_: Permit me to put the question in two forms.

_Q._ Have you formed or expressed the opinion that the acts charged, if proved, constitute the offence of piracy?

_The Court_: That question is admissible.

_A._ I have not expressed the opinion, and I can hardly say I have formed an opinion, because I am not sufficiently informed on the law to do so.

Challenge withdrawn. _Juror sworn._

_The Court_: Then the other form of the question is withdrawn?

_Mr. Larocque_: Yes, sir; we are satisfied with the form of the question the Court allows us to put.

_James Cassidy_ called. Challenged for principal cause, by Mr. Larocque, for the defendants.

_Q._ Did you read the account of the capture of the Savannah privateer?

_A._ I believe I did.

_Q._ Have you formed or expressed any opinion upon the guilt or innocence of these prisoners?

_A._ I believe not, sir. I may have made some mention of it at the time of reading the transaction, but not to express any opinion.

_Q._ Have you formed or expressed an opinion whether the facts, if proved, constitute the offence of piracy?

_A._ No, sir.

_By Mr. Smith_:

_Q._ Have you any conscientious scruples on the subject of capital punishment that would interfere with your rendering a verdict of guilty, if the evidence proved the prisoners to be guilty?

_A._ No, sir.

Challenge withdrawn. _Juror sworn._

_Joel W. Poor_ called. Challenged for principal cause by Mr. Smith:

_Q._ Have you any opinion on the subject of capital punishment which would prevent your rendering a verdict of guilty, if the evidence was such as to satisfy you?

_A._ No, sir.

_By Mr. Larocque_, for the prisoners:

_Q._ Have you read the account of the capture of the Savannah privateers?

_A._ I have.

_Q._ Have you formed or expressed any opinion as to the guilt or innocence of the prisoners?

_A._ I think not, sir.

_Q._ Have you formed or expressed any opinion whether the facts charged, if proved, constitute the offence of piracy?

_A._ I have not.

_Q._ Have you never conversed on this subject?

_A._ I do not think I have.

_Q._ Have you no recollection of having conversed upon it at all?

_A._ I may have talked about it something at the time, but I do not recollect.

_Q._ Are you a stockholder, or connected with any marine insurance company?

_A._ No, sir.

_Q._ Have you been engaged in Northern trade?

_A._ No, sir.

_Challenged peremptorily_, by prisoners.

_Thomas Dugan_ called. Challenged for principal cause, by Mr. Smith:

_Q._ Have you any conscientious scruples that would interfere with your rendering a verdict of guilty, if you deemed the prisoners guilty upon the evidence?

_A._ I have strong conscientious scruples.

_Mr. Smith_ asked that the juror stand aside.

Defendants' Counsel objected to the question, as not proper in form. Objection sustained.

_Q._ In a capital case, where the evidence is sufficient to satisfy your mind of the prisoner's guilt, have you any conscientious scruples that would prevent your finding a verdict of guilty?

_A._ If I may explain, I would endeavor to find a verdict; but I believe my sympathy would control my judgment to that extent that I would not be able to do my duty between the people and the prisoner. I have been on a jury before, and I doubt that my judgment would be controlled by my sympathy.

_Mr. Larocque_: The witness has not said his sympathies would be of that strength that would prevent his finding a verdict of guilty, if the evidence was satisfactory. A juror that has doubts of himself is the most honest and reliable, according to all experience in criminal trials.

_The Court_: Examine him on that point.

_By Mr. Larocque_:

_Q._ Suppose that upon this trial the facts charged in this indictment were proved by clear and satisfactory evidence, and the Court should instruct you, upon that evidence, that those facts constitute the offence of piracy, would your conscientious scruples be so strong as to prevent your finding a verdict of guilty in such a case as that?

_A._ There must be not a shadow of doubt. It must be strong and conclusive in my mind before a verdict is rendered.

_Q._ But where there was strong, conclusive evidence, you would render a verdict of guilty?

_A._ Yes, sir.

_Mr. Evarts_: It is pretty apparent that the juror does not regard himself as in a position to deal impartially with this question, which involves human life. The intention of this cause of challenge is, that the juror should be in a position to yield to the evidence that just assent which its character is entitled to call for, unimpeded by his repugnance to the result when fatal to human life. Still, if your honor should not think that upon this ground he ought to be excluded absolutely, certainly it would be consistent with the course of practice, and with the just feeling of the juror, that he should stand aside until the panel be made up.

_Mr. Brady_: That practice I understand not to prevail any longer, since it has been provided that the empanneling of jurors in the United States Courts shall be the same as in the State Courts, and we do not consent to any such principle as the gentleman proposes. Your honor has decided that a juror, to disqualify him from serving in a capital case, must say that his conscientious scruples are of such a character that, though the evidence be clear and conclusive under the law, as stated by the Court, they would prevent his doing his duty and giving a verdict of guilty. To my mind, nothing can be more clear and satisfactory than the statement of the juror himself, which exhibits a state of mind that should be possessed by every juror; that is, that he must be satisfied beyond all reasonable doubt of the guilt of the accused before rendering a verdict of guilty; and when be speaks of his sympathy on behalf of human life, it is only that sympathy which the law recognizes where it gives the prisoner the benefit of every doubt. It is true he does use the expression that there must not be the shadow of a doubt; but when the Court comes to expound the law, he will be instructed that it must be a reasonable doubt. I do not see anything against the juror on the ground of conscientious scruples. Your honor knows that the prosecution have no peremptory challenge in cases of piracy or treason, and the old practice of setting aside jurors until the panel is exhausted, and then, if not able to make up twelve without the rejected jurors, requiring their acceptance, has passed. That is decided in the case of Shackleford, in 18 Howard's Reports.

_The Court_ (to the Juror): We do not exactly comprehend the views you entertain upon this question; therefore we desire, for our own satisfaction, to put some questions to you, to ascertain, if we can, the state of your mind and opinions upon these questions, and see whether you are a competent juryman or not in a capital case. It is a very high duty, and a common duty, devolving upon every respectable citizen. The question is this--and we desire that there may be no delusion or misapprehension on your mind in respect to it--in a capital case, if the proof on behalf of the Government should be such as to satisfy your mind that the prisoner was guilty of the capital offence, whether or not you have any conscientious scruples as respects capital punishment, that would prevent your rendering a verdict of guilty?

_A._ In answer to that I would say that this is what troubles me: I want to do my duty; I want to render a verdict fairly and squarely as between the prisoner and the people; but I have this to contend with--I have read that people have been convicted upon the clearest testimony, and afterwards found to be innocent; and before I would have such feelings I would as soon go to the scaffold as send a person there who was not guilty. Therefore my sympathy is so strong that I am afraid to trust myself. I did serve on a former occasion, and I do not know that even then I did my duty.

_Q._ What do you mean by being afraid to trust yourself? Is it a conscientious feeling and opinion against the penalty of capital punishment?

_A._ Yes, sir, it is. I have a great abhorrence of it, if I may so express myself. Yet I should like to render a verdict, and do what is right; but I believe my feelings are too great to trust myself.

_The Court_: We think we are bound to set the juror aside.

_Mr. Larocque_: Permit me to put one question.

_Q._ It strikes me that you are a little at fault as to what the purport of this question is. It is not whether you have an abhorrence of convicting a prisoner of a capital offence. The question is, whether you have such conscientious scruples against capital punishment as would prevent your finding the prisoner guilty, if the facts were proved, and the Court instructed you that those facts constituted the offence?

_A._ I answered before. It places me in rather a peculiar position. As I said, I want it understood distinctly, I desire to do my duty; but there is a struggle between that and my sympathy, and I am afraid to trust myself.

_Q._ But you can draw a distinction between your sympathy and any conscientious scruples against the punishment of death, can you not?

_A._ Well, sir, where it comes to the point----

_Q._ Allow me to put the question in another way: If you are entirely satisfied, upon the evidence and instructions of the Court, that the prisoner was guilty, your conscience would not trouble you in finding him guilty?

_A._ Well, sir, there would be this: I would feel that persons, under the strongest kind of testimony, have been found guilty, wrongfully, and it would operate on me--the fear that I had judged wrong on the facts, and committed murder. That feeling is very strong.

_Q._ If the evidence satisfied you that the prisoner was guilty, would your conscience prevent your saying so?

_A._ It would not now. It might in the jury-room. When it comes to the point, and I feel that I hold the life of a human being, it is pretty hard to know what I would do then.

_Q._ Your conscience would only trouble you if you doubted that your judgment was right?

_A._ Yes, sir.

_Mr. Larocque_: I submit that the juror is competent.

_Juror_: You must take your chances if you take me. I still think I am not fit to sit on a jury to represent the people.

_The Court_: I think we must take the opinion of the juror as against himself.

Set aside. [Defendants took exception.]

_John Fife_ called, and challenged for principal cause:

_Q._ In a capital case, where the evidence is sufficient to convince you of the guilt of the prisoner, have you any conscientious scruples that would prevent your finding a verdict of guilty?

_A._ No, sir.

_By Mr. Larocque_, for the prisoners:

_Q._ Did you read the account of the capture of the privateer Savannah?

_A._ I did.

_Q._ Have you formed or expressed an opinion as to the guilt or innocence of the prisoners?

_A._ I believe not, sir.

_Q._ Have you formed or expressed an opinion whether the facts charged, if proved, constitute the offence of piracy?

_A._ I have not, sir.

_Q._ You think you have no bias or prejudice in this case?

_A._ No, sir.

Challenge withdrawn. _Juror sworn._

_Thomas Costello_ called. Challenged for principal cause.

_By Mr. Smith_:

_Q._ In a capital case, where the evidence is sufficient to convince you of the guilt of the prisoner, have you any conscientious scruples that would prevent your finding a verdict of guilty?

_A._ No, sir.

_By Mr. Larocque_, for the prisoners:

_Q._ You know that this case is an indictment for piracy against the prisoners. Have you formed or expressed any opinion upon their guilt or innocence?

_A._ No, sir.

_Q._ Have you formed or expressed any opinion whether the facts charged against them, if proved, constitute the offence of piracy?

_A._ I have not, sir.

Challenge withdrawn. _Juror sworn._

_Tuganhold Kron_ called. Challenged for principal cause.

_By Mr. Smith_:

_Q._ In a capital case, where the evidence was sufficient to convince you of the guilt of the prisoner, have you any conscientious scruples that would prevent your finding a verdict of guilty?

_A._ Yes, sir. (Question repeated.)

_A._ No, sir.

_Q._ Do you readily understand English?

_A._ Pretty well.

_Q._ You did not understand me when I asked the question the first time?

_A._ No, sir.

_Q._ Do you understand English well?

_A._ Yes, pretty well. There may be some words I do not understand.

_Q._ Did you ever sit as a juror on a trial?

_A._ Yes, sir.

_Q._ Did you understand all the witnesses said?

_A._ No, because I did not hear, sometimes.

_Q._ Do you think you understand English well enough, so that you can hear a trial intelligently?

_A._ I cannot say, sir.

_Q._ You are not sure?

_A._ No, sir.

_By Mr. Larocque_:

_Q._ What is your occupation?

_A._ A bookbinder.

_Q._ Have you an establishment of your own?

_A._ Yes, sir.

_Q._ The men you employ--do they speak English or German?

_A._ Some English--the most of them German.

_Q._ And you transact your business with gentlemen who speak English?

_A._ Yes, sir.

_Q._ How long have you done so?

_A._ Eight years.

_By the Court_:

_Q._ How long have you been in this country?

_A._ Seventeen years.

_Q._ Have you been in business all that time?

_A._ I worked as journeyman ten years, and have been seven years in business of my own.

_By Mr. Smith_:

_Q._ Do you think you can understand English well enough so that you can, from the evidence, form an opinion of your own?

_A._ I think I will.

_By Mr. Larocque_:

_Q._ You read the account of the capture of the privateer Savannah in the newspapers?

_A._ Yes, sir; in some German paper.

_Q._ Did you form or express any opinion as to the guilt or innocence of these prisoners?

_A._ No, sir.

_Q._ Did you form or express an opinion whether the facts charged against them, if proved, constitute the offence of piracy?

_A._ No, sir.

_Mr. Evarts_: We think the juror's knowledge of the language is shown, by his own examination, to be such as should at least entitle the Government to ask that he should stand aside until it is seen if the panel shall be filled from other jurors--if that right exists. Your honor held, in the case of the United States _v._ Douglass--a piracy case tried some ten years ago--that that right did exist.

_The Court_: I think we have since qualified that in the case of Shackleford. It was intended to settle that debatable question, and it was held that the Act of Congress, requiring the empanneling of jurors to be according to the practice in State Courts, did not necessarily draw after it this right of setting aside. We think the objection taken is not sustained.

_Juror sworn._

_Matthew P. Bogart_ called. Challenged for principal cause by Mr. Smith:

_Q._ In a capital case, where the evidence is sufficient to convince you of the guilt of the prisoner, have you any conscientious scruples that would prevent your rendering a verdict of guilty?

_A._ No, sir.

_By Mr. Larocque_, for the prisoners:

_Q._ Have you read the account of the capture of the privateer Savannah in the newspapers?

_A._ I recollect reading it at the time--not since.

_Q._ Have you ever formed or expressed an opinion upon the guilt or innocence of these prisoners?

_A._ Not to my recollection.

_Q._ Have you ever formed or expressed an opinion whether the facts charged against them, if proved, constitute the offence of piracy?

_A._ I have not.

Challenge withdrawn. _Juror sworn._

_George Moeller_ called. Challenged for principal cause by Mr. Smith:

_Q._ In a capital case, where the evidence is sufficient to convince you of the guilt of the prisoner, have you any conscientious scruples that would prevent your finding a verdict of guilty?

_A._ No, sir.

_By Mr. Larocque_, for the prisoners:

_Q._ Have you read the account of the capture of the Savannah? _A._ Yes, sir.

_Q._ Have you formed or expressed any opinion as to the guilt or innocence of these prisoners?

_A._ No, sir.

_Q._ Have you formed or expressed any opinion as to whether, if the facts were proved, as alleged, it was piracy?

_A._ I do not know what the facts are, sir. I have only read an account of the capture.

Challenge withdrawn. _Juror sworn._

_Robert Taylor_ called. Challenged for principal cause, by Mr. Smith:

_Q._ In a capital case, where the evidence is sufficient to convince you of the guilt of the prisoner, have you any conscientious scruples that would prevent your finding a verdict of guilty?

_A._ No, sir.

_By Mr. Larocque_, for the prisoners:

_Q._ You read of the capture of the privateer Savannah?

_A._ I think I have.

_Q._ Did you form or express any opinion as to the guilt or innocence of the prisoners?

_A._ Not that I know of, sir.

_Q._ Have you formed or expressed any opinion whether the facts, if proved, constitute the offence of piracy?

_A._ No, sir, not any.

Challenge withdrawn. _Juror sworn._

_Daniel Bixby_ called. Challenged for principal cause, by Mr. Smith:

_Q._ In a capital case, where the evidence is sufficient to convince you of the guilt of the prisoner, have you any conscientious scruples that would prevent your finding a verdict of guilty?

_A._ I have not.

_By Mr. Larocque_:

_Q._ Have you ever formed or expressed any opinion as to the guilt or innocence of the prisoners?

_A._ I have not.

_Q._ Or whether the facts, if proved, constitute the offence of piracy?

_A._ No, sir.

Challenge withdrawn. _Juror sworn._

_Ira L. Cady_ called. Challenged for principal cause, by Mr. Smith:

_Q._ In a capital case, where the evidence is sufficient to convince you of the guilt of the prisoner, have you any conscientious scruples that would prevent your finding a verdict of guilty?

_A._ No, sir.

_By Mr. Larocque_:

_Q._ You know what this case is for?

_A._ I believe I understand it.

_Q._ An indictment of piracy against the privateersmen captured on the Savannah?

_A._ Yes, sir.

_Q._ Have you formed or expressed any opinion upon the guilt or innocence of the prisoners?

_A._ I do not recollect that I have.

_Q._ Have you formed or expressed any opinion whether the facts, if proved, constitute piracy?

_A._ I do not think I have.

_Q._ Have you any opinion now upon either of these subjects?

_A._ I cannot say that I am entirely indifferent of opinion on the subject, but still I have not formed any definite opinion.

_Q._ Your mind, however, is not entirely unbiased upon the question?

_A._ Well, no, sir--not if I understand the question; that is, the question whether the facts, if proved, constitute the offence of piracy?

_Mr. Larocque_ submitted that the juror was not indifferent.

_Mr. Evarts_: All that has been said by the juror is that, on the question of whether the facts charged constitute the offence of piracy, he has no fixed opinion; but he cannot say he has no opinion on the subject. He is ready to receive instruction from the Court.

_Mr. Larocque_ contended that, as the question of whether the facts alleged constituted piracy, or not, was a most important one to be discussed, they were entitled to have the mind of the juror entirely blank and unbiased on that subject.

_The Court_: Let us see what the state of mind of the juror is.

_Q._ You mentioned, in response to a question put to you, that you had read an account in the newspapers of the capture of this vessel.

_A._ I was not asked that question. I have no mind made up in respect to the subject that would prevent my finding a verdict in accordance with the evidence; but I said I was not entirely devoid of an opinion in regard to the case--that is, the offence.

_Q._ Have you read an account of the capture of this vessel?

_A._ Yes, sir; I read it at the time.

_Q._ Is it from the account, thus read, of the transaction of the capture, that you found this opinion upon?

_A._ No, sir; it is not that. It is upon the general subject that I mean to be understood--not in reference to this case particularly.

_Q._ Do you say, upon the general question, that you have an opinion?

_A._ Well, not fully made up. I have the shadow of an opinion about it.

_Q._ Not a fixed opinion?

_A._ No, sir; I would be governed by the law and instructions of the Court.

_Q._ You are open to the control of your opinion upon the facts and law as developed in the course of the trial?

_A._ Certainly, sir.

_The Court_: We do not think the objection sustained.

Challenged peremptorily by the prisoners.

_Samuel Mudget_ called. Challenged for principal cause.

_By Mr. Smith_:

_Q._ In a capital case, where the evidence is sufficient, in your opinion, to convict the prisoner, have you any conscientious scruples that would prevent your finding a verdict of guilty?

_A._ I have not.

_By Mr. Larocque_:

_Q._ You have read the account of the capture of the privateer Savannah?

_A._ Yes, sir; at the time.

_Q._ Have you formed or expressed any opinion upon the guilt or innocence of these privateersmen?

_A._ I have not.

_Q._ Have you formed or expressed an opinion whether the acts charged upon them, if proved, constitute piracy?

_A._ No, sir; I have not formed any opinion with regard to the question whether it was piracy or not.

Challenged peremptorily by the prisoners.

_George H. Hansell_ challenged for principal cause.

_Q._ In a capital case, where the evidence is sufficient to convince you that the prisoner was guilty, have you any conscientious scruples that would prevent your finding a verdict of guilty?

_A._ No, sir.

_By Mr. Larocque_:

_Q._ Have you read the account of the capture of the Savannah privateer?

_A._ I believe I read the account at the time. I have a very indistinct recollection of it.

_Q._ Have you formed or expressed an opinion as to the guilt or innocence of the prisoners?

_A._ I do not remember that I have, sir. I certainly do not have any opinion now; and certainly would not have until I have heard the evidence.

_Q._ Do you say you do not recollect whether you have formed or expressed any opinion?

_A._ I do not remember that I have, sir. I may, on reading the article, have expressed an opinion on it; but I am not positive of that.

_Q._ Have you formed or expressed an opinion whether the facts charged, if proved, amount to piracy?

_A._ I should not consider myself competent to form an opinion upon that until I have heard the law on the subject.

Challenge withdrawn. _Juror sworn._

Panel completed.

DISTRICT ATTORNEY'S OPENING.

MR. E. DELAFIELD SMITH opened the case for the prosecution. He said:

_May it please the Court, and you, Gentlemen of the Jury_:

The Constitution of the United States, in the eighth section of the first article, authorized the Congress, among other things, to define and punish piracies and felonies committed on the high seas, and offences against the law of nations.

In pursuance of that authority, the Congress, on the 30th of April, 1790, made provisions contained in an act entitled "An Act for the punishment of certain crimes against the United States." I refer to the 8th and 9th sections of that act, which is to be found in the first volume of the U.S. Statutes at Large, page 112.

In the State Courts, gentlemen, it is common to say that the jury is judge both of the law and the fact; but such is not the case in the United States Courts. The Court will state to you the law, which you are morally bound to follow. But in opening this case, I refer to the statutes for the purpose of showing you precisely what the law is supposed to be under which this indictment is found, and under which we shall ask you for a verdict.

The 8th section of the act of 1790, commonly called "The Crimes Act," and to which I have just referred, declares, that if any person or persons shall commit, upon the high seas, or in any river, haven, basin, or bay, out of the jurisdiction of any particular State, murder or robbery, or any other offence which, if committed within the body of a county, would, by the laws of the United States, be punishable with death; or if any captain or mariner of any ship or other vessel shall piratically and feloniously run away with such ship or vessel, or any goods or merchandize to the value of fifty dollars, or yield up such ship or vessel voluntarily to any pirate; or if any seaman shall lay violent hands upon his commander, thereby to hinder and prevent his fighting in defence of his ship or goods committed to his trust, or shall make a revolt in the ship; every such offender shall be deemed, taken, and adjudged to be a pirate and felon, and, being thereof convicted, shall suffer death; and the trial of crimes committed on the high seas, or in any place out of the jurisdiction of any particular State, shall be in the district where the offender is apprehended, or into which he may first be brought.

The 9th section of the same act provides, that if any citizen shall commit any piracy or robbery aforesaid, or any act of hostility against the United States, or any citizen thereof, upon the high sea, under color of any commission from any foreign prince or state, or on pretence of authority from any person, such offender shall, notwithstanding the pretence of any such authority, be deemed, adjudged, and taken to be a pirate, felon, and robber, and, on being thereof convicted, shall suffer death.

A statute, on this subject, enacted in 1819, expired by its own limitation; but on the 15th of May, 1820, an act was passed making further provisions for punishing the crime of piracy. This law is printed in the third volume of the U.S. Statutes at Large, page 600. The 3d section provides, that if any person shall, upon the high seas, or in any open roadstead, or in any haven, basin, or bay, or in any river where the sea ebbs and flows, commit the crime of robbery in or upon any ship or vessel, or upon any of the ship's company of any ship or vessel, or the lading thereof, such person shall be adjudged to be a pirate; and, being thereof convicted before the Circuit Court of the United States for the district into which he shall be brought, or in which he shall be found, shall suffer death.

I now refer to the act of March 3d, 1825, to be found in the 4th volume of the Statutes at Large, page 115. It is entitled, "An act more effectually to provide for the punishment of certain crimes against the United States, and for other purposes." I cite it simply on the question of jurisdiction. The 14th section provides, that the trial of all offences which shall be committed upon the high seas or elsewhere, out of the limits of any State or district, shall be in the district where the offender is apprehended, or into which he may be first brought. The twenty-fifth section of this act repeals all acts, or parts of acts, inconsistent therewith.

Under the act of 1790 a question of construction arose, in the Supreme Court of the United States, as to whether robbery on the high seas was punishable with death. It was settled (3 Wheaton, 610) that the statute did punish robbery with death if committed on the high seas, even though robbery on land might not incur that extreme penalty. I refer to the United States _v._ Palmer, 3 Wheaton, 610; the United States _v._ Jones, 3 Washington's Circuit Court Reports, 209; United States _v._ Howard, Id., 340; 2 Whar. Crim. Law, fifth ed., p. 543.

I have been thus particular in referring to the laws under which this indictment is framed, in order that you may perceive precisely the inquiry which we now have to make. It is, whether the statutory law of the United States has or has not been violated? You have all, undoubtedly, heard more or less of the crime of piracy as generally and popularly understood. A pirate is deemed by the law of nations, and has always been regarded as the enemy of the human race,--as a man who depredates generally and indiscriminately on the commerce of all nations. Whether or not the crime alleged here is piracy under the law of nations, is not material to the issue. It might well be a question whether, in regard to depredations committed on the high seas, by persons in a foreign vessel, under the acknowledged authority of a foreign country, Congress could effectively declare that to be piracy which is not piracy under the law of nations; but it is not material in this case. Congress is unquestionably empowered to pass laws for the protection of our national commerce and for the punishment of those who prey upon it. Congress has done so in the statutes to which I have referred. If the words "pirate and felon" were stricken out from the act of 1790, and if the statutes simply read that any person committing robbery on the high seas should suffer death, the law would be complete, and could be administered without reference to what constitutes piracy by the law of nations.

Having thus referred to the statutory law under which this indictment was found, I will state as succinctly as possible, with due regard to fullness, fairness, and completeness, the facts in this case. In the middle or latter part of May, 1861, a number of persons in the city of Charleston, South Carolina, conceived the purpose of purchasing or employing a vessel to cruise on the Atlantic with the object of depredating on the commerce of the United States. They proceeded to the fulfillment of that design by procuring persons willing to act as captain, officers, and crew of such piratical vessel. This there was at first considerable difficulty in effecting, and it was not until many men were thrown out of employment in Charleston, by the acts of South Carolina and of what is called the Confederate Government, and by the action of the United States Government in blockading the port of Charleston and other Southern ports, that a crew could be found to man this vessel. There were no shipping articles or agreement as to wages; but it was understood that all were to share in the plunder or proceeds arising from the capture of American vessels on the high seas. We shall show to you that the prisoners at the bar were finally induced to embark on this enterprise; that Captain Baker was one of the first to engage in it; that he used exertions to obtain a crew, and succeeded, after considerable difficulty. On Saturday, the first of June, 1861, the crew were embarked on a small pilot boat and proceeded down to opposite Fort Sumter, where they were transferred, in small boats, to the schooner Savannah. We shall show, by the declarations of the parties who stand charged here to-day, and also by the facts and circumstances of the equipment of the vessel, the intent and purpose of this voyage. The Savannah, a schooner of fifty-three or fifty-four tons, was armed with cannon and small arms. Pistols and cutlasses were provided for her men. On Sunday afternoon, the 2d of June, she sailed from opposite Fort Sumter, her crew numbering about twenty men, all of whom are here with the exception of six, who were detached to form a prize crew of the brig Joseph. On the morning of Monday, the 3d of June, a sail was descried; it was remarked among the crew that the vessel, from her appearance, was undoubtedly a Yankee vessel, as they termed it--a vessel owned in one of the Northern States of the Union. She proved to be the brig Joseph, laden with sugar, and bound from Cardenas, in Cuba, to Philadelphia. The Savannah, displaying the American flag, gave chase. When within hailing distance, Captain Baker spoke the Joseph, ordered her captain on board his schooner, and ran up the rebel standard. Captain Meyer, of the Joseph, perceiving that the Savannah was armed, and that her men were ready for assault, fearing for his safety and that of his crew, obeyed the summons. A prize crew was placed on board the Joseph--the captain of the Savannah declaring that he "was sailing under the flag of the Confederate Government." The Savannah proceeded on her cruise. In a few hours afterward, she descried the United States brig-of-war Perry. Supposing her to be a merchant vessel, she started in pursuit, fired a gun, and finally fired several guns. On discovering, however, that the brig was a United States vessel-of-war, she attempted resistance, Captain Baker saying to his men, "Now, boys, prepare for action!" When within speaking distance, the commander of the Perry asked Captain Baker whether he surrendered, and he replied that he did. The prisoners were transferred from the Savannah to the Perry; thence to the United States steam ship-of-war, Minnesota. The Savannah was then taken in charge by a prize crew from on board the Perry and brought to New York. The Minnesota, with the prisoners on board, proceeded--on her way to New York--to Hampton Roads, where, after two days, she transferred the prisoners to the Harriet Lane, which delivered them at New York. Here they were given in charge to the United States Marshal. On my official application, a warrant was issued by a United States Commissioner, and under it the Marshal, as directed, took formal possession of and held the prisoners. They were committed for trial and were, within a few weeks afterwards, indicted by the United States Grand Jury. Although the guilt and mischief of both piracy and treason may be embraced in the crime and its consequences, the charge is not one of treason, nor necessarily of piracy, as commonly understood, but the simple one of violating the statutes to which I have referred.

The learned District Attorney here stated the evidence which he was prepared to submit, with the decisions upon which he would rest the case, and he proceeded to cite and comment upon the following, among other authorities:--U.S. _v._ Furlong, 5 Wheaton, 184; U.S. _v._ Klintock, 5 _Id._, 144; Nueva Anna and Liebre, 6 _Id._, 193; U.S. _v._ Holmes, 5 _Id._, 412; U.S. _v._ Palmer, 3 _Id._, 610; U.S. _v._ Tully, 1 Gallison, first ed., 247; U.S. _v._ Jones, 3 Wash. Circuit Court Rep., 209; U.S. _v._ Howard, 3 _Id._, 340; U.S. _v._ Gibert, 2 Sumner, 19; U.S. _v._ Smith, 5 Wheaton, 153; 3 Chitty's Criminal Law, 1128; 1 Kent's Com., 25, note _c_, and cases cited; 1 _Id._, 99, 100, and cases cited; 1 _Id._, 184, 185, 186, 187, 188, 191, and cases cited. Decisions as to jurisdiction: U.S. _v._ Hicks, MS. Judge Nelson; Irvine _v._ Lowry, 14 Peters, 293, 299; Sheppard _v._ Graves, 14 Howard, 505; D'Wolf _v._ Rabaud, 1 Peters, 476, 498. Mr. SMITH then continued as follows:

The atrocity of the authors and leaders of this rebellion against a government whose authority has never been felt, with the weight of a feather, upon the humblest citizen, except for crime, has been portrayed so much more eloquently than I could present it, that I should not indulge in extended remarks on that subject, even if relevant to the case. Ignominy and death will be their just portion. The crime of those who have acted as the agents and servants of these leaders is also a grave one--a very grave one--mitigated, no doubt, by ignorance, softened by a credulous belief of misrepresentations, and modified by the very air and atmosphere of the place from which these prisoners embarked. It is, undoubtedly, a case where the sympathies of the jury and of counsel--whether for the prosecution or the defence--may be well excited in reference to many, if not all, of the prisoners at the bar, misguided and misdirected as they have been. But it will be your duty, gentlemen, while allowing these considerations to induce caution in rendering your verdict, to disregard them so far as to give an honest and truthful return on the evidence, and on the law as it will be stated to you by the Court. This is all the prosecution asks. As to the policy of ultimately allowing the law to take its course in this case, it is not necessary for us to express any opinion whatever. That is a question which the President of the United States must determine if this trial should result in a conviction. It is for him, not for us. You must leave it wholly to those who are charged with high duties, after you shall have performed yours.

The case is of magnitude; but the issue for you to determine is simple. Leaving out of view the alleged authority under which the prisoners claim to have acted, you will inquire, in the first instance, whether the seizure of the Joseph and her lading was robbery. You will be unable to discover that any element of the crime was wanting. If no actual force was employed in compelling the surrender, it is enough that the captain and crew were put in bodily fear. So the traveler delivers his purse in obedience to a request, and the crime is complete, although violence proves unnecessary. That the humble owners of the brig were despoiled of their property--how hardly earned we know not--will not be disputed. Nor is it material that the proceeds were to be shared between the prisoners and absent confederates. As to the question of intent, it cannot be denied that the prisoners designed to do, and to profit by, what they did. They are without excuse, unless possessed of a valid commission. This brings us to the plea of authority.

A paper, purporting to be a letter of marque, signed by Jefferson Davis, was found on the Savannah. Such a commission is of no effect, in our courts of law, unless emanating from some government recognized by the Government of the United States. The political authority of the nation, at Washington, has never recognized the so-called Confederate States as one of the family of nations. On the contrary, it resists their pretensions, and proclaims them in rebellion. In this position of affairs, a court of justice will not, nor can you as its officers, regard the letter as any answer to the case which the prosecution will establish. Such is the law. It is so determined in decisions of the Supreme Court of the United States, which I have just cited.

I will now proceed with the examination of the witnesses.

_Albert G. Ferris_ called and sworn. Examined by District Attorney Smith:

_Q._ Where were you born?

_A._ In Barnstable, Massachusetts.

_Q._ How old are you?

_A._ Fifty on the 10th of September last.

_Q._ Have you a family?

_A._ Yes, sir.

_Q._ Does your family reside at Charleston?

_A._ Yes, sir, at Charleston, South Carolina.

_Q._ How long have you resided at Charleston?

_A._ Since 1837.

_Q._ What has been your business there?

_A._ Sea-faring man.

_Q._ In what capacity have you acted as a sea-faring man?

_A._ As master and mate.

_Q._ In what crafts?

_A._ In various crafts, small and large, and steamers.

_Q._ Sailing out of the port of Charleston?

_A._ Yes, and from ports of New York, and Virginia, and other places.

_Q._ In what capacity were you acting just prior to the time you embarked on board the Savannah?

_A._ I was acting as master of a vessel sailing from Charleston on the Southern rivers, in the rice and cotton trade.

_Q._ What was the name of the vessel?

_A._ The James H. Ladson, a schooner of about seventy-five tons.

_Q._ Was the business in which you were engaged stopped?

_A._ Yes, sir.

_Q._ At what time?

_A._ In December, 1860.

_Q._ What was your employment after that?

_A._ I had no employment after that. The blockade prevented vessels from going out, although some did get out after the blockade was established.

_Q._ State the facts and circumstances which preceded your connection with the Savannah?

_A._ I joined the Savannah as a privateer, through the influence of acquaintances of mine, with whom I had sailed, and from the necessity of having something to do, and under the idea of legal rights from the Confederate Government.

_Q._ What did you first do in reference to shipping on the Savannah?

_A._ I was on the bay with an acquaintance of mine, named James Evans, who is now, I believe, at Charleston, and who spoke to me about it.

_Q._ Was Evans one of the crew of the Savannah?

_A._ Yes, he was one of the prize crew that went off with the Joseph. He solicited me to join him, and said that he knew Captain Baker, and that he and others were going in the Savannah.

_Q._ Where did you see him?