Part 6

_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.

_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. ship 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 circumstances 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 ship'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 shields 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 circumstances 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 participators in the fact?

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

_Mr. Smith_: Do we understand the counsel as assenting 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 shipped 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 shipped for that purpose were equally responsible for the consequences, we admit.

_Mr. Evarts_: Do you admit that all shipped 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 compass, 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 assented to this, which we went out to do.