Part 5

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 States _v._ Palmer, 3 Wheaton, 610; the United States _v._ Jones, 3 Washington's Circuit Court Reports, 209; United States _v._ Howard, Id., 340; 2 Whar. Crim. Law, fifth ed., p. 543.

I have been thus particular in referring to the laws under which this indictment is framed, in order that you may perceive precisely the inquiry which we now have to make. It is, whether the statutory law of the United States has or has not been violated? You have all, undoubtedly, heard more or less of the crime of piracy as generally and popularly understood. A pirate is deemed by the law of nations, and has always been regarded as the enemy of the human race,--as a man who depredates generally and indiscriminately on the commerce of all nations. Whether or not the crime alleged here is piracy under the law of nations, is not material to the issue. It might well be a question whether, in regard to depredations committed on the high seas, by persons in a foreign vessel, under the acknowledged authority of a foreign country, Congress could effectively declare that to be piracy which is not piracy under the law of nations; but it is not material in this case. Congress is unquestionably empowered to 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, 5 _Id._, 144; Nueva Anna and Liebre, 6 _Id._, 193; U.S. _v._ Holmes, 5 _Id._, 412; U.S. _v._ Palmer, 3 _Id._, 610; U.S. _v._ Tully, 1 Gallison, first ed., 247; U.S. _v._ Jones, 3 Wash. Circuit Court Rep., 209; U.S. _v._ Howard, 3 _Id._, 340; U.S. _v._ Gibert, 2 Sumner, 19; U.S. _v._ Smith, 5 Wheaton, 153; 3 Chitty's Criminal Law, 1128; 1 Kent's Com., 25, note _c_, and cases cited; 1 _Id._, 99, 100, and cases cited; 1 _Id._, 184, 185, 186, 187, 188, 191, and cases cited. Decisions as to jurisdiction: U.S. _v._ Hicks, MS. Judge Nelson; Irvine _v._ Lowry, 14 Peters, 293, 299; Sheppard _v._ Graves, 14 Howard, 505; D'Wolf _v._ Rabaud, 1 Peters, 476, 498. Mr. SMITH then continued as follows:

The atrocity of the authors and leaders of this rebellion against a government whose authority has never been felt, with the weight of a feather, upon the humblest citizen, except for crime, has been portrayed so much more eloquently than I could present it, that I should not indulge in extended remarks on that subject, even if relevant to the case. Ignominy and death will be their just portion. The crime of those who have acted as the agents and servants of these leaders is also a grave one--a very grave one--mitigated, no doubt, by ignorance, softened by a credulous belief of misrepresentations, and modified by the very air and atmosphere of the place from which these prisoners embarked. It is, undoubtedly, a case where the sympathies of the jury and of counsel--whether for the prosecution or the defence--may be well excited in reference to many, if not all, of the prisoners at the bar, misguided and misdirected as they have been. But it will be your duty, gentlemen, while allowing these considerations to induce caution in rendering your verdict, to disregard them so far as to give an honest and truthful return on the evidence, and on the law as it will be stated to you by the Court. This is all the prosecution asks. As to the policy of ultimately allowing the law to take its course in this case, it is not necessary for us to express any opinion whatever. That is a question which the President of the United States must determine if this trial should result in a conviction. It is for him, not for us. You must leave it wholly to those who are charged with high duties, after you shall have performed yours.

The case is of magnitude; but the issue for you to determine is simple. Leaving out of view the alleged authority under which the prisoners claim to have acted, you will inquire, in the first instance, whether the seizure of the Joseph and her lading was robbery. You will be unable to discover that any element of the crime was wanting. If no actual force was employed in compelling the surrender, it is enough that the captain and crew were put in bodily fear. So the traveler delivers his purse in obedience to a request, and the crime is complete, although violence proves unnecessary. That the humble owners of the brig were despoiled of their property--how hardly earned we know not--will not be disputed. Nor is it material that the proceeds were to be shared between the prisoners and absent confederates. As to the question of intent, it cannot be denied that the prisoners designed to do, and to profit by, what they did. They are without excuse, unless possessed of a valid commission. This brings us to the plea of authority.

A paper, purporting to be a letter of marque, signed by Jefferson Davis, was found on the Savannah. Such a commission is of no effect, in our courts of law, unless emanating from some government recognized by the Government of the United States. The political authority of the nation, at 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. Ferris_ called 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?