Part 3

_Judge Shipman_ asked who appeared for the other prisoners. He wished to know if all the prisoners were supplied with counsel; if not, he would assign them counsel.

_Mr. Sullivan_ said he did not desire a week's postponement, as he understood his honor had intimated that the Court would adjourn on Wednesday. As to the time of trial, he was authorized and instructed specially to say for Captain Baker that he would ask for no delay other than what was absolutely necessary for his counsel to prepare. He (Mr. Sullivan) hoped that the Court would continue its session specially to hear the case, or at least to try some portion of the defendants. He made that remark on the presumption that the defendants would ask to be tried separately.

_Mr. Mayer_ said he appeared for one of the seamen, Wm. C. Clark; and he concurred in Mr. Larocque's remarks.

_Judge Shipman_: It is hardly necessary now to discuss when the case will be set down for trial. The motion now before the Court is for the arraignment of the prisoners, and counsel asks for time to plead. I should like to know the names of the counsel who appear for the prisoners.

_Mr. Larocque_ said he appeared, in conjunction with Mr. Lord, for Mr. Harleston.

_Mr. Ridgway_ appeared for the sailors Carno, Oman, Daly, Palmer, Murphy, Galvin, and Coid; and he, also, concurred in the motion for time to plead.

_Mr. Sandford_ appeared for Albert G. Ferris, and desired that the trial should be brought on as speedily as possible.

_The District Attorney_: I have a suggestion to make as to the time of pleading. With regard to the indictment, when counsel come to examine it, I think they will find, that although the counts are numerous, yet, after all, the indictment is simple. I would suggest that counsel should examine the record between this and to-morrow morning, and then the prisoners could undoubtedly be arraigned without objection.

_Mr. Daniel Lord_: I perceive that the prisoners are brought here to plead in chains. If that is to be repeated each time they are brought here, I would wish to have the time named when they are to plead.

_Mr. James T. Brady_ said that he believed the engagement under which he acted, in connection with some other gentlemen, covered the cases of all the accused who had not already been represented before his honor by distinct counsel.

_Judge Shipman_: There is no necessity, then, for the Court to assign counsel?

_Mr. Brady_: In response to your honor, allow me to say that I represent Captain Baker more particularly. From the very necessity of this case a number of counsel have been employed, and more, probably, than will take part, as your honor is well aware, in the trial. I have had the pleasure of conferring with Mr. Lord only once since this case arose; and as he is in every respect the senior of the gentlemen who are employed in the case, we should like an opportunity for conference. It is highly important to determine what species of plea should be put into the indictment; and while, as I remarked, all the counsel may not take a prominent part in the argument or the trial, yet their judgments ought to be considered by each other, and some decisive course concluded upon. There certainly can be no great occasion for hurry, as these men are closely confined, and certainly are under the closest kind of restraint, from what I see around me (glancing at the prisoners, handcuffed). I don't suppose there is any apprehension, even if the prison doors were opened, that they would be likely to escape, from the state of feeling which at present exists in this city and this section of the country. We only wish for time that is necessary to determine what kind of an answer to make to this indictment; and after that we will proceed, I venture to say, with the utmost diligence, to have this case prepared for trial, or it may probably turn out that there will be no necessity for any trial. That may occur to a legal mind, or it may not.

_Judge Shipman_: Well, let the prisoners be remanded until Tuesday morning next.

The Court then adjourned.

On Tuesday, the twenty-third of July, the prisoners were again brought into Court, and were placed within the bar, at the south end of the room.

_E. Delafield Smith, Esq._, District Attorney, moved that the prisoners be arraigned.

_Algernon S. Sullivan, Esq._, of counsel for the prisoners, stated that all the prisoners were represented by counsel, and that they were acquainted with the charges contained in the indictment.

The prisoners were ordered to stand up; and the Clerk of the Court called T. Harrison Baker, saying: "You have been indicted for robbery on the high seas; how do you plead--guilty, or not guilty?" To which Mr. Baker replied, "Not guilty."

_The District Attorney_ suggested that the indictment be read to the prisoners, unless each one of them expressly waived the reading. He would prefer to have it read, however.

The prisoners' counsel respectively submitted that it was of no consequence. The accused knew the contents of it.

_Judge Shipman_ remarked that the reading of the indictment would consume some time; but the District Attorney said that questions had been raised on this point, and, to insure regularity, he desired to have the indictment read; whereupon the Court ordered the Clerk to read the instrument.

At the conclusion of the reading, the prisoners severally pleaded, each for himself, "not guilty."

_District Attorney Smith_: If the Court please, the facts in this case are exceedingly simple. The evidence in reference to them--as well such as is required by the prosecution, as that which we may suppose to be desired by the defendants--is within a narrow range and easily attainable. I have examined the testimony with care. There can be no doubt, upon the evidence in the case, that the prisoners are guilty, and that as a matter of law, as well as a matter of fact, they ought to be convicted. It is impossible to close our eyes to the facts relating to this case, as they bear upon what is daily taking place upon the high seas. The merchant marine of the country is subjected to piratical seizure from day to day. Murder is the natural child of robbery, and we may daily expect to hear of bloodshed on the ocean, in attempting the execution of the purpose conceived by so many of our countrymen, to deal a death-blow to American commerce.

It seems to me, that the ends of public justice require that I should urge upon your Honor the propriety and necessity of an early trial of this issue. If, peradventure, the prisoners are innocent, it can work no injury to them; if guilty, they ought to be convicted, and in my judgment, the law ought to take its course to the end, in order that an example may be set to those who are pursuing the species of marauding, of which I think the testimony will show the prisoners to have been guilty.

I respectfully urge, that the trial be set down for Wednesday, July 31st, a week from to-morrow. I may add that I shall be happy to render to the counsel for the prisoners every facility within my power for the presentation of all the facts. The plea of authority, which we can anticipate, is set forth in the indictment, and a copy of the letter of marque has been furnished to counsel for the defence. I can see no valid reason for postponing the trial; none, certainly, in the present state of the country.

_Mr. Larocque_ said, it seemed to him the idea might have occurred to the District Attorney, that these men had not yet been convicted. The law presumed every man to be innocent until he was proved guilty. The counsel should not presume these men to be guilty until they were tried. There were questions of international law involved in this case which would be entitled to consideration. The counsel for the United States would learn that he had misunderstood the meaning of the statute under which these men were indicted. The prisoners' counsel were not ready. They required documentary evidence and witnesses to be procured from a distance. They could not be ready to go on at this term of the Court. He submitted that a cause of this magnitude should not be disposed of so hurriedly. What had the prisoners to do with others on the ocean? Did the counsel for the Government desire to hurry them to trial unprepared for the purpose of striking terror to those on the ocean? He could not believe it to be so.

_Mr. Sullivan_ said the prisoners would not ask any further delay after procuring their testimony. Some of the evidence could not be obtained this side of Charleston, and it would be impossible to procure it under three or four weeks. The case involved the legal status between the United States and the seceded States. He opposed setting down the case for trial on next Wednesday.

_Mr. Davega_, of counsel for the prisoners, also opposed the motion, reiterating the statements in relation to the testimony to be procured.

_Mr. Mayer_ called the attention of the District Attorney to the fifth count of the indictment, describing the prisoners as citizens of the United States. His client was a citizen of Hamburg, and he would not be ready to try the case in several weeks.

_Mr. Daniel Lord_, in behalf of Mr. Harleston, said this case involved the lives of thirteen men. If the District Attorney supposed the law of the case was simple, he took a very different view of it from what that gentleman did.

_The District Attorney_, in reply, said that in respect to the intimation of a necessity to refer to Charleston, it was a matter of notoriety that the prisoners were in constant communication with that city. Counsel were bound to disclose the nature of testimony required, that the Court might judge of the sufficiency of the reasons for a postponement. Much of it might be to facts which the prosecution would admit; as, in reference to the question of citizenship, there would be no difficulty in conceding the fact that certain of the prisoners were not citizens of the United States. He was not tenacious as to the very day named. Without throwing the case over to the fall term, the trial could be so fixed as to afford counsel ample opportunity to collect their proofs and examine the questions of law involved. All the difficulties suggested to impede the trial were obstructions created by these defendants themselves and their confederates, and it was in the nature of taking advantage of their own wrong to seek a postponement because of the existence of a state of things for which they were responsible. It had been said, thirteen lives are at issue. He would say that many more lives were at stake--lives, in his judgment, of far greater value--the lives of innocent officers and sailors in the merchant marine. The facts are simple. The law appears to be certain. There can be no defence here, the nature of which is not visible. The only justification for the piracy would seem to be the treason. If the prisoners ought justly to be convicted, such conviction should be speedy, in order to deter their confederates from expeditions partaking of the character of both treason and piracy.

_Judge Shipman_ said, that he had no doubt in relation to the disposition to be made of this motion. The Court could not have several sets of rules to apply at will to the same class of cases; and even if the Court had power to adopt a different rule in some criminal cases from that fixed in others of the same grade, it would be very questionable whether such power ought to be exercised. The law had made no distinction in regard to this class of criminal offences. Upon the statute book of the United States are various acts of Congress defining atrocious crimes punishable capitally; and among these, is the crime of piracy, or robbery upon the high seas, for which the defendants are indicted. In all cases where parties are charged with criminal offences, and especially with capital crimes, it is customary to give the defendants a reasonable time for the preparation of their defence; and the Court must always assume and act, so far as the technical proceedings are concerned, upon the presumption of innocence which the law always interposes. The Court cannot take into consideration many of the suggestions made by counsel for the Government or for the defence; and in disposing of this motion, I wish it to be distinctly understood that I do so just as I should in any other case of alleged robbery or piracy upon the high seas, where, if the defendants be convicted, they must suffer, according to the statute, the penalty of death. I cannot look at other considerations. I cannot anticipate other defences. In the administration of the criminal law, although the principles are usually very simple, and although, for aught I know, they may be as simple when applied to this case as to any other, yet in the application of those principles, there is often ground for difference of opinion. Courts that have been long regarded as entitled to very great respect for learning, discrimination, and experience, frequently differ as to the application of principles of law to particular cases. In view of this fact, in capital cases, it has been a rule usually adhered to in the United States Circuit Courts (which are so constituted by the Act of Congress that two Judges are authorized to sit) to have, if applied for, a full Court, so that the defendant might have the benefit, if I may so speak, of the chance of a division of opinion. For such division of opinion constitutes the only ground upon which the case can be removed to a higher Court for revision. In this view of the case, and upon the strenuous application of the defendants for the presence of a full Court, I certainly cannot deny the application consistently with my judgment of what is right and proper; and I say this with a full recognition of the importance of this trial. I might add, it may be desirable for the Government, in the event of a certain determination of this case, that in the preliminary proceedings--the time fixed for trial and the constitution of the Court--there should be nothing to weaken the full and appropriate effect of such determination.

After some observations in regard to two exceptional cases--that of Gordon, on his first trial for engaging in the slave trade,[2] and the case of the parties convicted of murder on board the ship "Gen. Parkhill," both cases having been tried before a District Judge sitting alone, the counsel for the defendant in each case making no request to have a full Court--Judge Shipman went on to say, that in consequence of Judge Nelson's engagements in another District, in September, and in view of his confinement with the effects of a fall from his carriage, which would prevent his sitting in August, he (Judge Nelson) could not probably hear this case until the October term. He therefore ordered the trial to be set down for the third Monday of October, at eleven o'clock.

[2] The second trial of Gordon, resulting in a conviction, took place before a full Court, Mr. Justice NELSON sitting with Judge SHIPMAN.

The prisoners were remanded to the custody of the Marshal, and their manacles, which had been removed while they were in Court, being replaced, they were taken to the Tombs.

TRIAL OF THE OFFICERS AND CREW OF THE SCHOONER SAVANNAH, ON THE CHARGE OF PIRACY.

UNITED STATES CIRCUIT COURT, SOUTHERN DISTRICT OF NEW YORK.

Wednesday, Oct. 23, 1861.

THE UNITED STATES

_against_

THOMAS HARRISON BAKER, CHARLES SYDNEY PASSALAIGUE, JOHN HARLESTON, JOSEPH CRUSE DEL CARNO, PATRICK DALY, JOHN MURPHY, MARTIN GALVIN, HENRY CASHMAN HOWARD, HENRY OMAN, WILLIAM CHARLES CLARKE, RICHARD PALMER, ALEXANDER CARTER COID, ALBERT G. FERRIS.

HON. JUDGES NELSON AND SHIPMAN PRESIDING.

_Counsel for the United States_:

E. DELAFIELD SMITH, WM. M. EVARTS, SAML. BLATCHFORD, ETHAN ALLEN.

_Counsel for the Defendants_:

BOWDOIN, LAROCQUES & BARLOW, DANIEL LORD, JAMES T. BRADY, ALGERNON S. SULLIVAN, JOSEPH H. DUKES, ISAAC DAVEGA, MAURICE MAYER.

_E. Delafield Smith, Esq._, United States District Attorney, stated that he desired to use Albert Gallatin Ferris, one of the prisoners indicted, as a witness, and would therefore enter a _nolle prosequi_ in regard to him.

_The Court_: Are the prisoners to be tried jointly?

_Mr. Lord_: I believe so, sir.

_The Clerk_ called over the names of the prisoners, directing them to challenge the Jurors as called.

_Judge Nelson_: Those of the prisoners who desire to do so may take seats by the side of their counsel.

_The Clerk_ proceeded to call the panel.

_Edward Werner_ called, and challenged for principal cause by Mr. Smith:

_Q._ Have you any conscientious scruples that would prevent your finding a verdict of guilty, in a capital case, where the evidence was sufficient to convince you that the prisoner was guilty?

_A._ No, sir.

_By Mr. Larocque_, for the prisoners:

_Q._ Have you read the account in the newspapers of the capture of the Savannah privateers?

_A._ Yes, sir.

_Q._ Have you ever formed or expressed any opinion as to the guilt or innocence of these prisoners?

_A._ No, sir.

_Q._ Have you ever formed or expressed any opinion as to whether they were guilty of piracy, if the facts were as alleged?

_A._ No, sir.

Challenge withdrawn. _Juror sworn._

_William H. Marshall_ called, and challenged for principal cause:

_Q._ Have you any conscientious scruples that would prevent your finding a verdict of guilty in a capital case, where the evidence was sufficient to convince you that the prisoner was guilty?

_A._ No, sir.

_By Mr. Larocque_, for the prisoners:

_Q._ You read the account of the privateer Savannah?

_A._ I believe I have.

_Q._ Have you formed or expressed any opinion as to the guilt or innocence of the prisoners?

_A._ No, sir.

_Q._ Have you ever formed or expressed any opinion as to whether they were guilty of piracy, if the facts were as alleged?

_A._ I have not formed any opinion as to these men.

_Q._ As to the general question, whether cruising under a commission from the Confederate States is piracy?

_A._ I do not think I have formed any opinion, or expressed one.

Challenge withdrawn. _Juror sworn._

_William Powell_ called, and challenged for principal cause by Mr. Smith:

_Q._ Have you any conscientious scruples that would prevent your finding a verdict of guilty, in a capital case, where the evidence was sufficient to convince you that the prisoner was guilty?

_A._ No, sir.

_By Mr. Larocque_, for the prisoners:

_Q._ Have you formed or expressed any opinion as to the guilt or innocence of these prisoners?

_A._ I have not formed any opinion that would prevent me from giving a verdict according to the facts of the case. I have read the account, and I presume have formed such an opinion as most men do from reading an account, if the facts be so and so.

_Q._ Have you formed any opinion as to whether cruising, under a commission from the Confederate States, is piracy?

_A._ Yes, sir, I have.

_Mr. Evarts_ objected that this was purely a question of law, and one jurors should not be inquired of.

_The Court_ sustained the objection.

_Q._ Did you believe the accounts which you read of this transaction?

_A._ Well, it is difficult to say. There is so much published in the papers now-a-days that is not correct, that I am hardly prepared to say I believe anything I see, without palpable evidence. I believe the fact of the capture of the Savannah.

_Q._ Did you read what had been done by the Savannah before she was captured?

_A._ Well, I formed no opinion with regard to that.

_Q._ Did you form an opinion of the character of the act with which the defendants were charged?

_A._ No, sir.

_Q._ Do you entertain the settled opinion that acting under a commission from President Davis, or the Confederate Government, constitutes piracy?

_Mr. Evarts_ objected that this was a question of law.

_The Court_: I doubt whether that is a question that would be proper.

_Mr. Larocque_: This is a very peculiar case, as your honor is well aware. It is a case of first impression in the courts of the United States. It is a case in which, probably, there will be very little difference between the prosecution and the defendants as to the mere facts which are charged in this indictment, and it is a case in which jurors who present themselves to be sworn, if they have any bias or prejudice whatever, have it rather in reference to the character of the acts than as to the acts themselves having been committed or not having been committed. Now, we all know, if your honor please, that in all criminal trials a great deal of discussion has always taken place with reference to the jurisdiction of the jury over questions of law. The Courts have held that they are bound to receive their instructions on the law from the Court; but, at the same time, if they do not act in pursuance of the instructions which they receive, it is a matter between them and their own consciences, and it is a matter which no form of review in these Courts will reach. Now, one of my associates has handed to me an authority upon this subject from 1st Baldwin's Reports--that on the trial of Handy, in 1832, for treason, Judge Grier held that a juror who had formed an opinion that the riots in question did not amount to treason, was incompetent; and, in the case of the United States _v._ Wilson, it was held that a juror was incompetent who stated, on being challenged, that he had read the newspaper account of the facts at the time, and had come to his own conclusion, and had made up his mind that the offence was treason, although he had not expressed that opinion, nor formed or expressed an opinion that the defendant was or was not engaged in the offence. It seems to me that these authorities cover precisely the case before the Court, the only difference being that this is a charge of piracy, and the other a charge of treason.

_Judge Nelson_: The only difference is that there the question was put to the juror as to the crime, after it appeared he had read the account of the transaction, which involved both the law and the facts--involved the whole case; but as we understand your question, you put a pure question of law, which we do not think belongs to the juror.

_Mr. Larocque_: I understand your honor to rule the question is not admissible.

_Judge Nelson_: Yes.

Defendants' Counsel took exception.

_Mr. Larocque_: Permit me to put the question in two forms.

_Q._ Have you formed or expressed the opinion that the acts charged, if proved, constitute the offence of piracy?

_The Court_: That question is admissible.

_A._ I have not expressed the opinion, and I can hardly say I have formed an opinion, because I am not sufficiently informed on the law to do so.

Challenge withdrawn. _Juror sworn._

_The Court_: Then the other form of the question is withdrawn?

_Mr. Larocque_: Yes, sir; we are satisfied with the form of the question the Court allows us to put.

_James Cassidy_ called. Challenged for principal cause, by Mr. Larocque, for the defendants.

_Q._ Did you read the account of the capture of the Savannah privateer?

_A._ I believe I did.

_Q._ Have you formed or expressed any opinion upon the guilt or innocence of these prisoners?

_A._ I believe not, sir. I may have made some mention of it at the time of reading the transaction, but not to express any opinion.

_Q._ Have you formed or expressed an opinion whether the facts, if proved, constitute the offence of piracy?

_A._ No, sir.

_By Mr. Smith_:

_Q._ Have you any conscientious scruples on the subject of capital punishment that would interfere with your rendering a verdict of guilty, if the evidence proved the prisoners to be guilty?

_A._ No, sir.

Challenge withdrawn. _Juror sworn._

_Joel W. Poor_ called. Challenged for principal cause by Mr. Smith: