Trial of the Officers and Crew of the Privateer Savannah on the Charge of Piracy Part 15

_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. s.h.i.+p 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 circ.u.mstances 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 s.h.i.+p'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 s.h.i.+elds 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 circ.u.mstances 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 partic.i.p.ators in the fact?

_The Court_: So I understand the admission, without any qualification.

_Mr. Smith_: Do we understand the counsel as a.s.senting 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 s.h.i.+pped 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 s.h.i.+pped for that purpose were equally responsible for the consequences, we admit.

_Mr. Evarts_: Do you admit that all s.h.i.+pped 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 compa.s.s, 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 a.s.sented 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.