Trial of the Officers and Crew of the Privateer Savannah on the Charge of Piracy Part 8

_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Challenge withdrawn.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 Const.i.tution 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 ent.i.tled "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 s.h.i.+p or other vessel shall piratically and feloniously run away with such s.h.i.+p or vessel, or any goods or merchandize to the value of fifty dollars, or yield up such s.h.i.+p 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 s.h.i.+p or goods committed to his trust, or shall make a revolt in the s.h.i.+p; 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 pa.s.sed making further provisions for punis.h.i.+ng 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 s.h.i.+p or vessel, or upon any of the s.h.i.+p's company of any s.h.i.+p 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 ent.i.tled, "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 Was.h.i.+ngton'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 pa.s.s 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 const.i.tutes 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 s.h.i.+pping 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 Sat.u.r.day, 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 circ.u.mstances 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 cutla.s.ses 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 a.s.sault, 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 s.h.i.+p-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 Was.h.i.+ngton, 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, Ma.s.sachusetts.

_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.