Chapter IV: Appendix (3)

_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.