Trial of the Officers and Crew of the Privateer Savannah on the Charge of Piracy Part 24

_A._ Yes.

_Q._ Was it in written questions put to you?

_A._ I think so.

_Q._ And you signed your examination?

_A._ Yes.

_Q._ And what came of it afterwards?

_A._ I do not know.

_Q._ Was it taken away by Mr. Gilchrist?

_A._ I expect so.

_Q._ Was there any other of the crew besides yourself examined? _A._ Yes; all of them.

_Q._ On the same subject?

_A._ I expect so.

_Q._ Were you present during the examination of them all?

_A._ No; only at my own.

_Q._ What newspaper was it that you saw that advertis.e.m.e.nt in?

_A._ I think in the Charleston Courier.

_Q._ Do you recollect its date?

_A._ No, sir.

_Q._ What had become of the vessel when you went to Charleston?

_A._ She was lying in Georgetown.

_Q._ Do you know in whose possession, or under whose charge, she was?

_A._ I do not.

_Q._ Was she in Georgetown, in the hands of the Marshal, to your knowledge?

_A._ No, sir; not to my knowledge. I was in prison at the time.

_Commodore Silas H. Stringham_, examined by District Attorney Smith.

_Q._ You are in the United States Navy?

_A._ I am.

_Q._ The Minnesota was the flag s.h.i.+p of the Atlantic Blockading Squadron, off Charleston?

_A._ Yes, sir. I was the commanding officer.

_Q._ The Minnesota took the prisoners off the Perry?

_A._ Yes; on the 5th of June, in the afternoon.

_Q._ State precisely where the transfer from the Perry to the Minnesota was made?

_A._ I discovered, about mid-day, a vessel close in to Charleston. I stood off to make out what she was. A short time afterwards we discovered it was the Perry, and were surprised to find her there, as she had been ordered, some time previously, to Fernandina, Fla. She hailed us, and informed us she had captured a piratical vessel. The vessel was half a mile astern. Captain Parrott, of the Perry, came and made to me a report of what had taken place. I ordered him to send the prisoners on board, and sent a few men on board the Savannah to take charge of her during the night. The vessels were then anch.o.r.ed. The next morning I made arrangements to put a prize crew on board the Savannah, and send her to New York, and I directed the Captain of the Joseph to take pa.s.sage in her. I took the prisoners from the Perry, and directed the Perry to proceed on her cruise, according to her previous orders. I then got the Minnesota under weigh, and took the privateer in tow, and brought her close in to Charleston harbor, within 3 miles, so as to let them see that their vessel was captured. Some slaves in a boat told me next day that they had seen and recognized the vessel.

_Mr. Brady_: The question you were called upon to answer is, as to the place where the prisoners were transferred from the Perry to the Minnesota.

_A._ The transfer was made about 10 miles from Charleston Harbor, out at sea. It was fully 10 miles off.

_Q._ State the design of transferring the prisoners to the Minnesota?

Objected to by Mr. Larocque.

ARGUMENT ON THE JURISDICTION.

The District Attorney, Mr. Smith, stated that he would prove that every thing done from that time onward was done in pursuance of a design then conceived of sending the prisoners, to the port of New York.

_Mr. Larocque_ contended that the naked question of jurisdiction, or want of jurisdiction, could not be affected by showing that the prisoners were taken on board a particular vessel, with or without a particular design. All that affected that question was, the place where the prisoners were first taken to after they were captured. The only question their honors could consider was, whether, after their apprehension, the prisoners were or were not brought within the District of Virginia, so as to give the Court of Virginia jurisdiction, before they were brought to New York. The fact that Commodore Stringham did, or did not, entertain in his own mind a design to bring the prisoners to New York, was of no relevancy whatever. Their objection was based on the broad ground, that the statute had fixed the only District that was to have jurisdiction of these criminals, namely, the District within which they are first brought. If they were first brought within the District of Virginia, the design which the Commodore might have entertained made no manner of difference, and the fact could not be got rid of by any evidence to show that the design was not to put themselves in that dilemma.

_Mr. James T. Brady_ submitted an argument on the same side. He said that the true test of the correctness of the objection could be ascertained thus: If a man were arrested anywhere on the high seas, supposed to be amenable to the Act of 1790, and was brought into a port of the United States, within a Judicial District of the United States, could he not demand, under the Act of Congress, to be tried in that District? Could the commander of the vessel supersede that Act of Congress, and say he would take the prisoner into the port of New York, or any other port? What answer would that be to a writ of _habeas corpus_ sued out by either of these men confined on that s.h.i.+p, within that Judicial District? If any such rule as that could prevail, the Act of Congress would become perfectly nugatory and subservient to the will of the individual who apprehended prisoners on the high seas. If he had started on a cruise round the world, he could carry them with him, and, after returning to the United States, could take them into every District till he came to the one that suited him. Mr. Brady, therefore, claimed that it was wholly immaterial what might have been the design of Commodore Stringham; and that the question of jurisdiction was determined by the physical fact, as to what was the first Judicial District into which these men were brought after being apprehended on the high seas.

_Mr. Evarts_ considered that this was a question rather of regularity of discussion, than a question to be now absolutely determined by the Court. He supposed that they were ent.i.tled to lay before the Court all the attendant facts governing the question of, whether the introduction of these criminals from the point of seizure on the high seas was, within the legal sense, made into the District of New York, or into that of Virginia--whether the physical introduction of prisoners, in the course of a voyage toward the port of New York, into the roads at Hampton, is, within the meaning of the law, a bringing them into the District of Virginia. If the substantial qualification of the course of the voyage from the point of seizure to the place of actual debarcation was to affect the act, this was the time for the prosecution to produce that piece of evidence; and he supposed that that important inquiry should be reserved till the termination of the case, when the proof would be all before the Court. He suggested that no large s.h.i.+p could enter the port of New York without physically pa.s.sing through what might be called the District of New Jersey; and argued that, in no sense of the act, and in no just sense, should these prisoners be tried in New Jersey, because the s.h.i.+p carrying them had pa.s.sed through her waters.

_Mr. Larocque_, for the defendants, contended that the arrest of the parties as criminals was at the moment when they were taken from on board the Savannah, placed on board the Perry, and put in irons. The learned gentleman (Mr. Evarts) had said that it would be impossible to bring them within the District of New York without first bringing them within the District of New Jersey; but that objection was met by the fact that, over the waters of the bay of New York, the States of New Jersey and New York exercised concurrent jurisdiction, and therefore they came within the District of New York, to all intents and purposes.

He proposed to refer to the authorities on which the point rested.

In this case, the place where the arrest was made was the Perry, a United States cruiser, which, in one sense, was equivalent to a part of the national soil; and he held that the idea under this statute was, that their apprehension and confinement from the moment they were arrested as criminals was complete, without being required to be under legal process, it being sufficient that they were arrested by the const.i.tuted authorities of the United States. The moment they were brought within a Judicial District of the United States, that moment the jurisdiction attached; and no jurisdiction could attach anywhere else. This was an offence committed on the high seas. All the Districts of the country could not have concurrent jurisdiction over it; and this very case was an exemplification of the injustice that would result from permitting an officer, in times of high political excitement, to have the privilege, at his mere pleasure or caprice, of selecting the place of jurisdiction, and the place of trial. Suppose these prisoners, instead of being landed at the first place where the vessel touched, could have been taken up the Mississippi river in a boat, and up the Ohio river in another boat, and landed within the District of Ohio, for the purpose of being tried there,--would not their honors' sense of justice and propriety revolt at that? The same injustice would result in a different degree, and under different circ.u.mstances, if, after taking these prisoners to Virginia and ascertaining the difficulties in the way of their being tried there, the officer could change their course and bring them into the port of New York. The prisoners were ent.i.tled to the benefit of being tried in the District where they were first taken, in preference to any other District; and justice would be more surely done by holding a strict rule on that subject, by requiring that the facts should control, and that no mere intention on the part of the captors should be allowed to govern.

One of the cases on this subject which had produced a misapprehension of the question was that of the United States _vs._ Thompson, 1st Sumner's Reports, which was an indictment for endeavoring to create a revolt, under the Act of 1790. It was in the Ma.s.sachusetts District.

The facts in the case were these:--"The vessel arrived at Stonington, Connecticut, and from thence sailed to New Bedford, Ma.s.sachusetts, where the defendant was arrested, and committed for trial. It did not appear that he had been in confinement before. Judge Story ruled on the question of jurisdiction. He said: 'The language of the Crimes Act of 1790 (Cap. 36, sec. 8) is, that the trial of crimes committed on the high seas, or in any place out of the jurisdiction of any particular State, shall be in the District in which the offender is apprehended, or into which he shall first be brought. The provision is in the alternative, and therefore the crime is cognizable in either District.

And there is wisdom in the provision; for otherwise, if a s.h.i.+p should, by stress of weather, be driven to take shelter temporarily in any port of the Union, however distant from her home port, the master and all the crew, as well as the s.h.i.+p, might be detained, and the trial had far from the port to which she belonged, or to which she was destined. And if the offender should escape into another District, or voluntarily depart from that into which he was first brought, he would, upon an arrest, be necessarily required to be sent back for trial to the latter. And now there is no particular propriety, as to crimes committed on the high seas, in a.s.signing one District rather than another for the place of trial, except what arises from general convenience; and the present alternative provision is well adapted to this purpose.'"

This was noticed, in the first place, in the case of the United States _vs._ Edward C. Townsend, of which he (Mr. Larocque) held in his hand a copy of the exemplication of the record. Townsend was charged, in the District Court of Ma.s.sachusetts, with piracy, in having been engaged in the slave trade, in 1858. He was captured on board the brig Echo, by a United States cruiser. That vessel first made the port of Key West, putting in there for water; and thence proceeded to Ma.s.sachusetts, where the prisoner was landed, taken into custody under a warrant of the Commissioner, and the matter brought before the Grand Jury, for the purpose of having an indictment found against him. In that case Judge Sprague charged the Grand Jury that, under the law, the prisoner could only be tried in Key West, because that was the first port which the vessel had made after he had been captured and confined as a prisoner.

Under that instruction the Grand Jury refused to find a bill of indictment; and thereupon the District Attorney (Mr. Woodbury) applied to the court for a warrant of removal, to remove him to Key West, for trial; and also to have the witnesses recognized to appear at Key West, to testify on the trial. The counsel read a note from Mr. Woodbury on the subject, showing that Mr. Justice Clifford, of the Supreme Court of the United States, sat and concurred with Judge Sprague in granting the warrant of removal. He referred also to another case, decided by Judge Sprague--the United States _vs._ Bird--volume of Judge Sprague's Decisions, page 299: "This indictment alleged an offence to have been committed on the high seas, and that the prisoner was first brought into the District of Ma.s.sachusetts. Questions of jurisdiction arose upon the evidence. The counsel for the prisoner contended that the offence, if any, was committed on the Mississippi river, and within the State of Louisiana; and, further, that if committed beyond the limits of that State, the prisoner was not first brought into this District.

Sprague, J., said that, if an offence be committed within the United States, it must be tried in the State and District within which it was committed. Const.i.tution Amendment 6, If the offence be committed without the limits of the United States, on the high seas, or in a foreign port, the trial must be had in the District 'where the offender is apprehended, or into which he may be first brought.'--Stat. 1790, cap. 9, sec. 8; Stat. 1825, cap. 65, sec. 14. By being brought within a District, is not meant merely being conveyed thither by the s.h.i.+p on which the offender may first arrive; but the statute contemplates two cla.s.ses of cases: one, in which the offender shall have been apprehended without the limits of the United States, and brought in custody into some Judicial District; the other, in which he shall not have been so apprehended and brought, but shall have been first taken into legal custody, after his arrival within some District of the United States, and provides in what District each of these cla.s.ses shall be tried. It does not contemplate that the Government shall have the election in which of two Districts to proceed to trial. It is true that, in United States _vs._ Thompson, 1 Sumner, 168, Judge Story seems to think that a prisoner might be tried either in the District where he is apprehended, or in the District into which he is first brought. But the objection in that case did not call for any careful consideration of the meaning of the word 'brought,' as used in the statute; nor does he discuss the question, whether the accused, having come in his own s.h.i.+p, satisfies that requisition. In that case the party had not been apprehended abroad; and the decision was clearly right, as the first arrest was in the District of Ma.s.sachusetts. The statute of 1819, cap.

101, sec. 1 (3 U.S. Statutes at Large, 532), for the suppression of the slave trade, is an example of a case in which an offender may be apprehended without the limits of the United States, and sent to the United States for trial. Ex parte Bollman _vs._ Swartwout, 4 Cranch, 136."