Ira L. Cadycalled. 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. Larocquesubmitted 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. Larocquecontended 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 Mudgetcalled. 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. Hansellchallenged 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 Smithopened 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 Statesv.Palmer, 3 Wheaton, 610; the United Statesv.Jones, 3 Washington's Circuit Court Reports, 209; United Statesv.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, 5Id., 144; Nueva Anna and Liebre, 6Id., 193; U.S.v.Holmes, 5Id., 412; U.S.v.Palmer, 3Id., 610; U.S.v.Tully, 1 Gallison, first ed., 247; U.S.v.Jones, 3 Wash. Circuit Court Rep., 209; U.S.v.Howard, 3Id., 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, notec, and cases cited; 1Id., 99, 100, and cases cited; 1Id., 184, 185, 186, 187, 188, 191, and cases cited. Decisions as to jurisdiction: U.S.v.Hicks, MS. Judge Nelson; Irvinev.Lowry, 14 Peters, 293, 299; Sheppardv.Graves, 14 Howard, 505; D'Wolfv.Rabaud, 1 Peters, 476, 498. Mr.Smiththen 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. Ferriscalled and sworn. Examined by District Attorney Smith:
Q.Where were you born?
A.In Barnstable, Massachusetts.
Q.How old are you?
A.Fifty on the 10th of September last.
Q.Have you a family?
A.Yes, sir.
Q.Does your family reside at Charleston?
A.Yes, sir, at Charleston, South Carolina.
Q.How long have you resided at Charleston?
A.Since 1837.
Q.What has been your business there?
A.Sea-faring man.
Q.In what capacity have you acted as a sea-faring man?
A.As master and mate.
Q.In what crafts?
A.In various crafts, small and large, and steamers.
Q.Sailing out of the port of Charleston?
A.Yes, and from ports of New York, and Virginia, and other places.
Q.In what capacity were you acting just prior to the time you embarked on board the Savannah?
A.I was acting as master of a vessel sailing from Charleston on the Southern rivers, in the rice and cotton trade.
Q.What was the name of the vessel?
A.The James H. Ladson, a schooner of about seventy-five tons.
Q.Was the business in which you were engaged stopped?
A.Yes, sir.
Q.At what time?
A.In December, 1860.
Q.What was your employment after that?
A.I had no employment after that. The blockade prevented vessels from going out, although some did get out after the blockade was established.
Q.State the facts and circumstances which preceded your connection with the Savannah?
A.I joined the Savannah as a privateer, through the influence of acquaintances of mine, with whom I had sailed, and from the necessity of having something to do, and under the idea of legal rights from the Confederate Government.
Q.What did you first do in reference to shipping on the Savannah?
A.I was on the bay with an acquaintance of mine, named James Evans, who is now, I believe, at Charleston, and who spoke to me about it.
Q.Was Evans one of the crew of the Savannah?
A.Yes, he was one of the prize crew that went off with the Joseph. He solicited me to join him, and said that he knew Captain Baker, and that he and others were going in the Savannah.
Q.Where did you see him?
A.I saw him on the bay at Charleston.
Q.Did you go anywhere with him in reference to enlisting?
A.Yes, we went to the house of Bancroft & Son, and I was there introduced to Captain Baker.
Q.Did you recognize Captain Baker on the cruise?
A.Yes, I recognized him then and since.
Q.State the conversation?
A.Mr. Evans recommended me to Captain Baker as a man who was acquainted with the coast, and who was likely to be just the man to answer his purpose. I partly made arrangements with Captain Baker to—that is, he was to send for me when he wanted me. He further proposed, as nothing was doing, that he would give me a job to go to work on board the Savannah and fit her out; but I had some little business to attend to at the time and declined.
Q.State the conversation at Bancroft & Son's when you and Evans and Captain Baker were there?
A.These were the items, as near as my memory serves me: that we were going on a cruise of privateering. I considered it was no secret. It was well known, and posted through the city. Previous to that I had met some of the party, who talked about going, and who asked me whether I had an idea of going, and I said I had talked about it. They said that Captain Baker was the officer. I then declined to go, and did not mean to go in her until Saturday morning.
Q.Did you have a further interview with Captain Baker, or any others of these men?
A.I had no other interview with Captain Baker at that time. I had no acquaintance with Captain Baker, or any on board, except these men who came from shore with me.
Q.Did you see any one else in reference to shipping on this vessel, except those you mentioned?
A.I believe there was a man by the name of Mills who talked of it. He did not proceed in the vessel. I believe he fitted her out, but did not go in her.
Q.Did you talk to any one else in regard to going?
A.No; he only told me he was going to get a crew.
Q.What articles did you see drawn up?
A.There were no articles whatever drawn up, and I do not know what arrangements were made. I understood since I have been here that arrangements were made, but they were not proposed to me. It was a mere short cruise to be undertaken.
Q.Was the purpose or object of the cruise stated?
A.It was the object of going out on a cruise of privateering.
Q.When did you embark on the vessel?
A.On Saturday night, the 1st of June, 1861.
Q.Do you recollect who embarked with you that night?
A.Some five or six of us.
Q.Give their names?
A.Alexander Coid was one (witness identified him in Court), Charles Clarke was another, and Livingston or Knickerbocker was another. I do not recollect any more names. There was a soldier, whose name I do not know, who went on the prize vessel.
Q.How did you get from the dock at Charleston?
A.In a small boat to a pilot-boat, and in the pilot-boat to the Savannah in the stream. She was lying about three miles from the city, and about three-quarters of a mile from Fort Sumter.
Q.How did you get from the pilot-boat to the Savannah?
A.In a small boat.
Q.And from the dock at Charleston to the pilot-boat?
A.In a small boat.
Q.Did any one have any direction in the embarkation?
A.No one, particular. There were some agents employed to carry us down. There was no authority used whatever.
Q.When did you sail from Charleston in the Savannah?
A.On Sunday afternoon from the outer roads.
Q.When did you weigh anchor and sail from Fort Sumter?
A.On Sunday morning, about 9 or 10 o'clock.
Q.Do you know the men you saw on board?
A.Yes, sir.
Q.Do you know the names of all the prisoners?
A.I believe I do, pretty nearly. I do not know that I could pronounce the name of the steward or cook, but I know that they were with us.
(The prisoner, Passalaigue, was asked to stand up, and the witness identified him.)
Q.What was his position on board?
A.I do not know what his position was. I never learned that. He was on board as if superintending the provisions, or something of that kind.
(The prisoner, John Harleston, was asked to stand up, and witness identified him.)
Q.What position had he on board?
A.I do not know what he did on board, anything more than that he arranged the big gun, and asked assistance to lend him a hand in managing the gun.
Q.Was he an officer, or seaman?
A.I believe he is no seaman.
Q.In what capacity did he act on board?
A.Nothing further than that, so far as I learned.
Q.Did you hear him give any directions?
A.No, sir; I was at the helm most of the time, when anything was done at the gun.
(The prisoner, Henry Howard, was asked to stand up, and witness identified him.)
Q.In what capacity was he?
A.That was more than I learned. They were all on board when I joined her.
Q.Was he a seaman or officer?
A.He stood aft with the rest of us, and assisted in working the vessel.
(The prisoner, Del Carno, was directed to stand up, and witness identified him as being the steward. He also identified Henry Oman as attending to the cooking department. The prisoner was directed to stand up, and was identified by the witness.)
Q.In what capacity was he?
A.The same as the rest—a seaman.
(Witness also identified William Charles Clarke, Richard Palmer, and John Murphy, as seamen, and Alexander C. Coid, as seaman. Martin Galvin, the prisoner, was directed to stand up, and was identified by the witness.)
Q.Was he a seaman?
A.I do not think he was either seaman or officer.
Q.What did he do on board?
A.Little of anything. There was very little done any way.
Q.Did he take part in working the vessel?
A.Very little, if anything at all. I believe he took part in weighing anchor.
Q.You identify Captain Baker as captain of the vessel?
A.Yes, I could not well avoid that.
Q.How many more were there besides those you have identified?
A.Some six. I think about eighteen all told, not including Knickerbocker and myself.
Q.How many went off on the Joseph?
A.There were six of them.
Q.Did any of those that are now here go off on the Joseph?
A.No, I believe not. I know all here. We have been long enough in shackles together to know one another.
Q.Do you remember the names of those that went on the Joseph?
A.I know two of them—one named Hayes, and Evans, the Charleston pilot.
Q.The same Evans who went on board with you?
A.Yes, sir; he was a Charleston pilot.
Q.What did Hayes and Evans do on board?
A.They did the same as the rest—all that was to be done.
Q.Were either of them officers?
A.Mr. Evans was the Charleston pilot. He gave the orders when to raise anchor and go out. He acted as mate and pilot when he was there. I presume he had as much authority, and a little more, than any one else; he was pilot.
Q.What did Hayes do?
A.He was an old, experienced man—did the same as the rest—lived aft with the rest. He was a seaman.
Q.The other four, whose names you do not recollect, did they act as seamen?
A.Exactly, sir.
Q.Any of them as officers?
A.No, sir; if they were, they were not inaugurated in any position while I was there.
Q.What did you do?
A.I did as I was told by the captain's orders—steered and made sail.
Q.What time did you get off from the bar in Charleston?
A.We got off Sunday afternoon and made sail east, outside of the bar, and proceeded to sea.
Q.Do you remember any conversation on board when any of the prisoners were present?
A.Yes; we talked as a party of men would talk on an expedition of that kind.
Q.What was said about the expedition?
A.That we were going out privateering. The object was to follow some vessels, and that was the talk among ourselves.
Q.Did anything happen that night, particularly?
A.No, sir; nothing happened, except losing a little main-top mast.
Q.What course did you take?
A.We steered off to the eastward.
Q.Did you steer to any port?
A.No, sir; we were not bound to any port, exactly.
Q.What directions were given in respect to steering the vessel?
A.To steer off to the eastward, or east by south, just as the wind was; that was near the course that was ordered.
Q.When did you fall in with the Joseph?
A.On Monday morning, the 3d.
Q.Do you remember who discovered the Joseph?
A.I think it was Evans, at the masthead.
Q.What did he cry out?
A.He sung out there was a sail on the starboard bow, running down, which proved afterwards to be the brig Joseph.
Q.State all that was said by or in the presence of the prisoners when and after the vessel was descried?
A.We continued on that course for two or three hours. We saw her early in the morning, and did not get up to her until 9 or 10 o'clock.
Q.How early did you see her?
A.About 6 o'clock. There were other vessels in sight. We stood off on the same course, when we saw this brig,—I think steering northeast by east. We made an angle to cut her off, and proceeded on that course until we fell in with her.
Q.What was said while running her down?
A.When near enough to be seen visibly to the eye, our men, Mr. Hayes, and the others, said she was a Yankee vessel; she was from the West Indies, laden with sugar and molasses. The general language was very little among the men; in fact, sailor-like, being on a flare-up before we left port, not much was said.
Q.State what was said?
A.Well, first the proposition was made that it was a Yankee prize; to run her down and take her. That was repeated several times. Nothing further, so far as I know of.
Q.During the conversation were all hands on deck?
A.Yes, sir, all hands on deck. In fact, they had been on deck. It was very warm; our place was very small for men below. In fact, we slept on deck. No one slept below, while there, much. It was a very short time we were on board of her—from Saturday to Monday night—when we were taken off.
Q.What was said was said loud, so as to be heard?
A.Yes; it was heard all about deck. That was the principal of our concern in going out; it was our object and our conversation.
Q.When you ran along down towards the Joseph, state what was said.
A.That was about the whole of what occurred—the men talking among themselves.
Q.When you got to the Joseph what occurred?
A.She was hailed by Captain Baker, and requested to send a boat on board.
Q.Who answered the hail?
A.I believe Captain Meyer, of the brig.
Q.Would you recognize Captain Meyer now?
A.Yes, sir.
Q.State what Captain Baker said?
A.Captain Baker, as near as I can bear in mind, hailed him, and told him to come on board and fetch his papers.
Q.Did Captain Meyer come on board?
A.He lowered his boat, and came on board with his own boat and crew. Captain Baker said to him that he was under the Confederate flag, and he considered him a prisoner, and his vessel a prize to the Confederate Government.
Q.Repeat that?
A.If I bear in mind, Captain Meyer asked what authority he had to hail his vessel, or to that effect. The reply of Captain Baker, I think, was that he was under a letter of marque of the Confederate Government, and he would take him as a prisoner, and his vessel as a prize to the Southern Confederacy. I do not know the very words, but that was the purport of the statement, as near as I understood.
Q.When Captain Baker hailed the Joseph, do you remember the language in which he hailed her?
A.I think, "Brig, ahoy! Where are you from?" He answered him where from—I think, from Cardenas; I think, bound to Philadelphia or New York.
Q.Did he inquire about the cargo?
A.No, sir, I think not, until Captain Meyer came on board. We were but a short distance from the brig. The brig was hove to.
Q.Do you remember anything further said by Captain Baker, or any of the prisoners?
A.He had some further conversation with Captain Meyer, on the deck, with respect to the vessel, where from, the cargo, and the like of that. She had in sugars, as near as my memory serves me.
Q.What flag had the Savannah, or how many?
A.She had the Confederate flag.
Q.What other flags, if any?
A.She had the United States flag.
Q.Any other?
A.No, sir, I do not know that she had any other.
Q.Did you notice what flag the Joseph had?
A.I did not see her flag, or did not notice it. I saw her name, and where she hailed from. I knew where she belonged.
Q.What was on her stern?
A.I think "The Joseph, of Rockland." I knew where it was. I had been there several times.
Q.When the sail was first descried was there any flag flying on the Savannah?
A.No, sir.
Q.When you ran down towards the Joseph was there any flying?
A.Yes, sir, we had the Confederate flag flying, and, I believe, the American flag.
Q.Which was it?
A.I believe both flying—first one, and then the other.
Q.Which first?
A.I think the Stars and Stripes first. I am pretty certain that Mr. Evans then hauled that down.
Q.When running down toward the Joseph you had the American flag flying?
A.Yes, sir; I think so; and Mr. Evans hauled down that, and put up the Confederate flag, when we got close to her.
Q.She ran with the American flag until close to her, and then ran up the Confederate flag?
A.Yes, when some mile or so of her—in that neighborhood.
Q.Do you remember who gave the order to the prize crew to leave the Savannah and go on board the Joseph?
A.Issued the orders? Well, Captain Baker, I believe, told the pilot, Mr. Evans, to select his men, and go with the boat.
Q.And they went on board?
A.Yes, they went on board.
Q.Do you remember anything said among the men, after the prize crew went off, in respect to the Joseph, or her cargo, or her capture?
A.Captain Meyer was there, and stated what he had in her, and where he was from, and so forth. We were merely talking about that from one to the other.
Q.Do you remember any directions given to the prize crew, as to the Joseph—where to go to?
A.I do not recollect Captain Baker directing where to get her in, or where to proceed with her. Evans was better authority, I presume, than Captain Baker, where to get her in.
Q.Any directions as to where the vessel was to be taken?
A.No, sir; either to Charleston or Georgetown—the nearest place where they could get in, and evade the blockade. That was the reason of having the pilot there.
Q.Did Captain Meyer remain on board the Savannah?
A.Yes, sir, until we were captured, and then he was transferred to the brig Perry, with the rest of us.
Q.What direction did the Joseph take after she parted from you?
A.Stood in northward and westward. Made her course about northwest, or in that neighborhood.
Q.In what direction from Charleston and how far from Charleston was the Joseph?
A.I think Charleston Bar was west of us about 50 or 55 miles.
Q.Out in the open ocean?
A.Yes, sir. I calculated that Georgetown light bore up about 35 miles in the west; but whether that is correct or not I cannot say.
Q.Where was the nearest land, as nearly as you can state?
A.I think the nearest land was Ball's Island, somewhere in the neighborhood of north and west, 35 or 40 miles.
Q.What sail did you next fall in with?
A.We fell in with a British bark called the Berkshire.
Q.What did you do when you fell in with her?
A.We passed closely across her stern. She was steering to the northward and eastward—I suppose bound to some Northern port.
Q.That was a British brig?
A.Yes, sir.
Q.What was the next sail you fell in with?
A.The next sail we fell in with was the brig-of-war Perry.
Q.At what time did you descry her?
A.I suppose about 3 o'clock in the afternoon of the same day.
Q.Where were you when you fell in with her?
A.We were somewhere in the same parallel. We saw the brig Perry from the masthead, and stood towards her.
Q.What was said when she was seen?
A.We took her to be a merchant vessel. That was our idea, and we stood to the westward.
Q.Did you make chase?
A.Yes, sir, we stood to the westward when we saw her; and the brig Joseph, that we took, saw her. The Perry, I presume, saw us before we saw her, and was steering for us at the time we were in company with the Joseph.
Q.How far off was the Joseph at the time?
A.Not more than three or four miles. When we made her out to be the brig-of-war Perry, we then tacked ship and proceeded to sea, to clear her.
Q.How near was the brig Perry when you first discovered she was a man-of-war?
A.I should think she was all of 10 or 11 miles off.
Q.The brig Perry made chase for you?
A.Yes, sir.
Mr. Larocque: If the Court please, from the opening of counsel I suppose he is now proceeding to that part of the case that he laid before the jury in his opening, that consists in an exchange of shots between the brig Perry and the Savannah. We object to that. There is no charge in the indictment of resisting a United States cruiser, or of any assault whatever.
Mr. Smith: What the vessel did on the same day, before and after the main charge, goes to show the purpose of the voyage—the general object of the Savannah and her crew. It may be relevant in that respect.
Mr. Larocque: We are not going to dispute the facts testified to by this witness. There will be no dispute on this trial that this was a privateer—that her object was privateering under the flag of the Confederate Government, and by authority of that Government, and, under these circumstances, the gentleman has no need to trouble himself to characterize these acts by showing anything that occurred between the Savannah and the Perry. Your honor perceives at once that this indictment might have been framed in a different way, under the 8th section of the Act of 1790, with a view of proving acts of treason, if you please, which are made piracy, as a capital offence, by that act. The counsel has elected his charge, and he has strictly confined the charge in the indictment to the allegation of what occurred between the Savannah and the Joseph. There is not one word in the indictment of any hostilities between the Perry and the Savannah, and therefore it must be utterly irrelevant and immaterial under this indictment. Evidence on that subject would go to introduce a new and substantial charge that we have not been warned to appear here and defend against, and have not come prepared to defend against, for that reason. So far as characterizing the acts we are charged with in the indictment, there can be no difficulty whatever.
The Court: I take it there is no necessity for this inquiry after the admission made.
Mr. Evarts: We propose to show the arrest and bringing of the vessel in, with her crew.
The Court: Of course.
Mr. Evarts: That cannot very well be done without showing the way in which it was done.
The Court: But it is not worth while to take up much time with it.
Mr. Brady: The witness has stated that this vessel was captured, and he has stated the place of her capture; and of course it is not only proper, but, in our view, absolutely necessary, that the prosecution should show that, being captured, she was taken into some place out of which arose jurisdiction to take cognizance of the alleged crime. But the cannonading is no part of that.
Q.By Mr. Smith: State the facts in regard to the capture of the Savannah by the Perry.
A.Well, the brig Perry ran down after dark and overtook us; came within hail.
Q.At what time?
A.Near 8 o'clock at night. Without any firing at all, she hailed the captain to heave to, and he said yes; she told him to send his boat on board. He said that he had no boat sufficient to go with. They then resolved to send a boat for us, and did so, and took us off. That was the result.
Q.The Perry sent her boat to the Savannah?
A.Yes, sir; we had no boat sufficient to take our crew aboard of her. We had a small boat, considerably warped, and it would not float.
Q.Where at sea was the capture made of the Savannah by the Perry?
A.It was in the Atlantic Ocean.
Q.About how far from Charleston?
A.Well, about 50 miles from Charleston light-house, in about 45 fathoms of water.
Q.How far from land?
A.I suppose the nearest land was Georgetown light, about 35 or 40 miles; I should judge that from my experience and the course we were running.
Q.Were you all transferred to the Perry?
A.Yes, sir.
Q.When was that?
A.Monday night; it was later than 8 o'clock.
Q.Transferred by boats?
A.Yes, sir; the Perry's boats. She sent her boat, with arms and men, and took us on board. There we were all arrested and put in irons that night, except the captain and Mr. Harleston, I believe. I do not know whether they were, or not.
Q.Was Mr. Knickerbocker put on board the Perry, with the rest?
A.Yes, sir, and on board the Minnesota, with us.
Q.Who were put in charge of the Savannah? Were there any men of the Perry?
A.Yes, sir; I believe they sent a naval officer on board to take charge of her, and a crew; and I think they took Mr. Knickerbocker and Capt. Meyer, too, on board the Savannah.
Q.Did you hear the direction as to the port the Savannah should sail to after the prize crew were put on board?
A.To New York I understood it was ordered. I was told that she was ordered to New York.
(Objected to as incompetent.)
Q.In respect to the Perry, what course did she take after you were taken on board?
A.As informed by the captain, next day, she was bound to Florida, to Fernandina, to blockade.
Q.When did she fall in with the Minnesota?
A.About the third day after our capture, I think; lying 8 or 10 miles off Charleston.
Q.In the open ocean?
A.Yes, sir.
Q.You were all transferred to the Minnesota?
A.Yes, sir.
Q.What did the Minnesota do?
A.We were confined on board the Minnesota.
Q.When was it you went on board the Minnesota?
A.I think on Wednesday or Thursday; I forget which.
Q.You were captured on Monday night?
A.Yes, sir, the 3d of June, and I think it was on Wednesday or Thursday (I do not know which) we went on board the Minnesota.
Q.How long did you lie off Charleston?
A.Several days.
Q.At anchor?
A.The ship was under way sometimes, steering off and on the coast.
Q.How far from Charleston?
A.I think in 8 or 9 fathoms of water, 8 or 10 miles from the land.
Q.Where did the Minnesota proceed from there?
A.To Hampton Roads.
Q.Were all the persons you have identified here on board the Minnesota?
A.Yes, sir.
Q.State the facts as to transfer from ship to ship?
A.We were transferred from the Savannah to the Perry; from the Perry to the Minnesota; from the Minnesota to the Harriet Lane.
Q.All of you?
A.Yes, sir; all.
Q.State, as near as you can, where, at Hampton Roads, the Minnesota came?
A.She came a little to the westward of the Rip Raps; I suppose Sewall's Point was bearing a little to the west of us, 3/4 or 1/2 a mile to the west of us; I should judge west by south. I am well acquainted there. We call it 24 miles from Old Point Comfort.
Q.What was the nearest port of entry to where you were anchored?
A.Norfolk, Va.
Q.How far from Fortress Monroe?
A.A mile, or 1-1/8 or 1-1/4—not a great distance.
Q.How long did you lie there before you were transferred to the Harriet Lane?
A.Several days. I did not keep any account. Some two or three days.
Q.And you were brought to this port in the Harriet Lane?
A.Yes, sir.
Q.And all the prisoners you identified to-day were brought here?
A.Yes, sir, to the Navy Yard, Brooklyn; there transferred to a ferry-boat and brought to the Marshal's office here.