Part 9

_A._ Yes, sir; from Field Point; I should judge, about 8 miles from Norfolk port, on the southern shore, nearly opposite Newport News. I was not there, but it was reported to me. She was fired into, and she was ordered to New York to change her armament.

_Q._ Was that fort in the way, proceeding to Norfolk?

_A._ Not on the direct way to Hampton Roads, but a little point on the left.

_Q._ Would a vessel, going the usual way to Norfolk, be in range of the guns that were fired at the Harriet Lane?

_A._ Not of these; but she would be in the range of four or five forts that it would be necessary to pass in order to land the prisoners at Norfolk.

_Q._ What was the nearest port to where the Minnesota went with the prisoners?

_A._ The nearest port of entry was Norfolk. Hampton Roads was a little higher up. We were not anchored exactly at the Roads, but off Old Point, which is not considered Hampton Roads.

[_Map produced._] I have marked the position of the Minnesota on this map, in blue ink. [Exhibits the position to the Court.]

_Q._ State the position of the Minnesota?

_A._ That is as near as I can put it--between the Rip Raps and Fortress Monroe--a little outside of the Rip Raps.

_Q._ In what jurisdiction is the Fort?

_A._ In the United States.

(Objected to, as matter of law.)

_Q._ At what distance were you from Fortress Monroe?

_A._ About three-quarters of a mile, and nearly the same from the Rip Raps.

_Q._ What distance from Norfolk?

_A._ I think 14 miles, as near as I can judge; 12 or 14.

_Q._ Had you any instructions from the Government, in respect to any prisoners that might be arrested on the high seas, as to the place they were to be taken to?

_A._ Not previous to my arriving at Hampton Roads. After that, I had. Those instructions were in writing.

_Q._ You had no particular or general instructions previous to that?

_A._ No, sir; it was discretionary with me, previous to that, where to send the prisoners I had.

_Q._ When vessels are sent from one place to another, state whether it is not frequently the case that they take shelter in roadsteads?

(Objected to. Excluded.)

_Q._ Where did your duties, as flag-officer of the squadron, require you to be with your ship, the Minnesota?

(Objected to. Excluded.)

_Q._ Where do Hampton Roads commence on this map, and where end?

_A._ In my experience, I have always considered it higher up than where we were anchored. This is anchoring off Fortress Monroe, when anchoring there. When they go a little higher up, they go to Hampton Roads; and, before the war, small vessels anchored up in Newport News, in a gale of wind.

_Q._ Where did the Minnesota anchor, in respect to Hampton Roads?

_A._ We anchored outside, sir. I can only say this from the pilot. When commanding the Ohio, he asked me whether I wished to anchor inside the Roads. Baltimore pilots have permission to go into Hampton Roads, and no farther. That is considered as neutral ground for all vessels.

_By the Court_:

_Q._ What is the width of the entrance to the Hampton Roads?

_A._ I should judge about 3-1/2 miles, or 3-1/4, from Old Point over to Sewall's Point. I have not measured it accurately. It is from 3 to 4 miles.

_By Mr. Smith_:

_Q._ Was the Minnesota brought inside or outside of a line drawn from Old Point to the Rip Raps?

_A._ A little outside of the line, sir.

_By a Juror_:

_Q._ Would a person be subject to any port-charges where the Minnesota lay?

_A._ No, sir.

Defendants' counsel objected to the question and answer.

_The Court_:

_Q._ What do you mean by port dues?

_A._ I mean they do not have to enter into the custom-house to pay port-charges. It is not a port of entry, that compels them to carry their papers. The only port-charges I know of are the pilot-charges, in and out.

(The Court ruled it out as immaterial.)

_Cross-examined by Mr. Brady._

_Q._ I want, for the purpose of preventing any misapprehension, to ask if there is any line that you know of, which you could draw upon that map, distinguishing the place at which Hampton Roads begins?

_A._ Nothing only among sea-faring men;--just as the lower bay of New York, which is considered to be down below the Southwest Spit. When anchored between this and that, it is called off a particular place, as Coney Island, &c. So, there, after you pass up from Fortress Monroe, it is called Hampton Roads.

_Q._ Is there any specific point you can draw a line from on the map that distinctly indicates where Hampton Roads begin? _A._ I cannot, sir.

_Q._ Designate where the Harriet Lane was?

_A._ I cannot say, sir. She was at Newport News when I left, and came down the next day, I believe, and took the prisoners on board and proceeded to New York.

_Q._ The Minnesota was anchored?

_A._ Yes, sir, but not moored; with a single anchor.

_Q._ How much cable was out?

_A._ From 65 to 70 fathoms, I think. I generally order 65 fathoms; but the captain gave her 5 fathoms more.

_Q._ Would she swing far enough to affect the question whether she was in or outside of Hampton Roads, as you understood it?

_A._ No, sir.

_Q._ Had you often been there before?

_A._ I had, sir, often. I was there 51 years ago. I started there.

_Q._ Did you ever have occasion, for any practical purposes, to locate where Hampton Roads began?

_A._ Yes, sir; several times I have anchored there with ships under my command, and the pilots have said, "Will you go up into the Roads?" and I said, "Yes;" and we never anchored within two or three miles of where we lay with the Minnesota.

_Q._ But it was not your object to get at any particular line which separated Hampton Roads?

_A._ No; we considered it a better anchorage. The only importance was a better anchorage.

_Q._ You had no instructions of any kind in regard to the prisoners before you left for Washington?

_A._ I would say I had not, before I arrived at Hampton Roads, or at Old Point.

_Q._ Did you receive any between the time of your arrival and your departure for Washington?

_A._ I cannot say, but I think not.

_Q._ The only instructions you gave were that, when the Harriet Lane came up, the prisoners should be removed, and sent to New York?

_A._ I gave orders that they should be sent to New York and delivered to the Marshal.

_Q._ There would be no difficulty to transfer prisoners to Fortress Monroe?

_A._ No, sir, no difficulty.

_Q._ Could they not have been taken to Hampton?

_A._ I think not. Our troops had abandoned Hampton and moved in, I think. There was nothing there to land at Hampton. We may have had possession at that time.

_Q._ Do you know of any obstacle whatever to these men having been taken ashore at Old Point Comfort and carried to Hampton?

_A._ I went up twice to Washington, with Colonel Baker, when he abandoned Hampton; but I think at the time the prisoners were on board we had the occupation of Hampton by our troops. My impression is, we occupied it partly with our troops at that time. I went to Washington at another time, when the troops had abandoned Hampton, and Colonel Baker took his soldiers up in the same boat.

_Q._ A college has been described on shore, and the locality described. Was it not occupied as an hospital?

_A._ Yes, sir, at the time the Minnesota arrived. It is not in Hampton.

_Q._ When the Minnesota arrived with the prisoners was not that building in possession of our Government?

_A._ It was, sir, I believe. I was not in it.

_By Mr. Evarts_: Is not the hospital at Old Point?

_A._ Near Old Point.

_By Mr. Brady_: Designate on the chart where it is?

_A._ I have done so,--the square mark, on the shore, in the rear of the fort, on the Virginia shore.

_By the Court_: How much of a town is Hampton?

_A._ There is none of it left now. I suppose it was a town of 4,000 or 5,000 inhabitants.

_Q._ Was it not formerly a port of entry?

_A._ No, sir, I believe not; not that I know of. That was 4 or 5 miles off from the vessel.

_By Mr. Brady_: How far was Hampton from Fortress Monroe?

_A._ I should judge 3 miles.

_Q._ I ask again, before you left the Minnesota, after the arrival of the prisoners, had you any instructions from Washington in regard to these prisoners?

_A._ I cannot bring to my mind whether I had any or not. I had instructions, subsequent to my arrival, about all prisoners, and that was the reason why I came here. There was some question as to why I came with 700 prisoners; but I had instructions to bring all prisoners taken, and turn them over to Colonel Burke, of New York.

_Q._ After you arrived at Washington did you receive any instructions in regard to these prisoners?

_A._ I do not know that I did. I had some discussion in Washington.

_Q._ Did you communicate from Washington, in any way, to Fortress Monroe, or the Minnesota, in regard to the prisoners? _A._ No, sir.

_Q._ They went forward under the directions you gave before leaving to go to Washington?

_A._ They did, sir; I gave the instructions. I did not know whether the Harriet Lane would be ready. She was waiting until the vessel arrived to relieve her from the station.

_Q._ Was General Butler at Fortress Monroe at the time of the arrival of the prisoners?

_A._ He was, sir.

_Q._ Did you confer with him about it?

_A._ No, sir.

_Q._ Neither then nor at Washington?

_A._ No, sir.

_Q._ Was there any conversation between you and him in regard to that?

_A._ I do not think there was until after my return and the prisoners had gone to New York.

_Re-direct._

_Q._ How large a space is occupied by the hospital to which you have referred?

_A._ I cannot give the number of feet, but I think about 150 feet square. I never was in it but once, when I passed in for a moment, and right out of the hall.

_David C. Constable_ called by the prosecution and sworn.

Examined by Mr. Smith.

_Q._ You are a Lieutenant in the United States Navy?

_A._ Not now; I am First Lieutenant of the _Harriet Lane_. We were then serving under the Navy; I am now in a revenue cutter.

_Q._ Were you on board the Harriet Lane when she received the prisoners from the Minnesota?

_A._ I was, sir.

_Q._ Who did you receive your orders from on the subject?

_A._ Captain Van Brunt, of the Minnesota.

_Q._ Was that a verbal order?

_A._ No; a written one, sir.

_Q._ Was it an order to bring the prisoners to New York?

_A._ To proceed with the prisoners to New York, and deliver them to the civil authorities, I think.

_Q._ Where was the Harriet Lane, in respect to the Rip Raps and fort at Old Point Comfort, when the prisoners were taken on board from the Minnesota?

_A._ We were about half a mile, I should judge, from the Minnesota; a little nearer in shore.

_Q._ Where had the Harriet Lane come from?

_A._ From Newport News.

_Q._ Did she, or not, come from Newport News in pursuance of the object to go to New York?

_A._ Yes, sir; although at the time we had received no orders in regard to any prisoners. We were coming on for a change of armament and for repairs.

_Q._ The Harriet Lane had been fired into?

_A._ She had, sir.

_Q._ Where was she when fired into?

(Objected to. Offered to show the impossibility of landing. Ruled out as immaterial.)

_Q._ How was the transfer made from the Minnesota to the Harriet Lane?

_A._ By boats.

_Q._ Show on this map where the Harriet Lane was when the transfer was made of the prisoners from the Minnesota, and also where the Minnesota lay?

[Witness marked the place on map.]

_Q._ State the relative position of the vessels as you have marked it?

_A._ I should judge we were about a mile from Old Point, in about eleven fathoms of water, and probably about a mile from the Rip Raps. I do not remember exactly.

_Q._ The Harriet Lane was about half a mile further up?

_A._ Yes, a little west of the Minnesota, but farther in shore.

_Q._ What is your understanding in respect to where Hampton Roads commence, in reference to the position of these vessels?

_A._ I had always supposed it was inside of Old Point and the Rip Raps, after passing through them,--taking Old Point as the Northern extremity, and out to Sewall's Point.

_Q._ How in respect to where the Harriet Lane lay?

_A._ I consider she was off Old Point, and not, properly speaking, in Hampton Roads.

_Q._ The Minnesota was still further out?

_A._ Yes, sir, a very little.

_Q._ You brought the prisoners to New York in the Harriet Lane and delivered them to the United States Marshal at New York?

_A._ Yes, sir.

_Q._ You delivered them from your vessel to the United States Marshal?

_A._ Yes, sir; the United States Marshal came alongside our ship, while in the Navy Yard, in a tug, and they were delivered to him.

_Q._ Do you remember the day they arrived at New York?

_A._ On the 25th of June, in the afternoon.

_Q._ In what service was the Harriet Lane?

_A._ In the naval service of the United States.

_Cross-examined by Mr. Brady._

_Q._ As has already been stated, there was no difficulty about landing the prisoners from the Minnesota at Fortress Monroe, or at the College Hospital, or at Hampton. Was there any difficulty in taking them to Newport News?

_A._ No, sir; I suppose they might have been taken to Newport News.

_Q._ Who was in possession of Newport News at that time?

_A._ The United States troops, sir. Our vessel had been stationed there for six weeks preceding.

_Re-direct._

_Q._ What occupation had the United States of Fortress Monroe, and of this hospital building, and of Newport News? Was it other than a military possession?

(Objected to by defendants' counsel.)

_The Court:_ It is not relevant.

_Mr. Evarts:_ We know there was no physical difficulty in landing them; we want to know whether there was any other.

_The Court:_ We need not go into any other. Practically, they could have been landed there. That is all about it. As to being a military fort, and under military authority, that is not of consequence.

_Mr. Evarts:_ As to military forts receiving prisoners at all times?

_The Court:_ We do not care about that. It is not important to go into that. We know it is a military fort, altogether under military officers. Civil justice is not administered there, I take it.

_Daniel T. Tompkins_ called by the Government; sworn.

Examined by Mr. Smith.

_Q._ You were Second Lieutenant on the Harriet Lane?

_A._ I was, sir.

_Q._ You were present at the transfer of these prisoners from the Minnesota to the Harriet Lane?

_A._ Yes, sir.

_Q._ You were with them to New York?

_A._ Yes; but I was ashore when they were delivered here.

_Q._ You accompanied the prisoners on the voyage?

_A._ Yes, sir.

_Q._ Where did the Harriet Lane lie at Hampton Roads, in relation to the Fort and Rip Raps?

_A._ I should think we were about a mile from the Rip Raps, and probably three-fourths of a mile from the Fort.

_Q._ At the time of the transhipment?

_A._ Yes, sir.

_Q._ The transhipment was made in boats?

_A._ Yes, sir,--in a boat from the Minnesota. I believe all came in one boat.

_Q._ Where do Hampton Roads commence, as you understand, in respect to where the Harriet Lane was?

_A._ I think they commence astern of where we lay; a little to the westward, as we were lying off of Old Point.

_Q._ Look upon that map and indicate, by a pencil, where the vessels lay, without any reference to the marks already made there--in the first place the Minnesota and then the Harriet Lane--when the transhipment was made, taken in relation to the Fort and the Rip Raps?

Witness marks the positions, and adds: We were about half a mile from the Minnesota, I should say.

_J. Buchanan Henry_ called by the prosecution; sworn. Examined by Mr. Smith.

_Q._ In June and July last you were United States Commissioner? _A._ From the 15th of June.

_Q._ [Producing warrant.] Is that your signature?

_A._ It is.

Counsel for prosecution reads warrant, issued by J. Buchanan Henry, in the name of the President, addressed to the Marshal, dated June 26, 1861.

(Objected to as irrelevant. Objection overruled.)

_Q._ This warrant was issued by you?

_A._ It was, sir.

_Q._ On an affidavit filed with you?

_A._ Yes, sir.

_Cross-examined._

_Q._ Against all these prisoners?

_A._ Yes, sir.

Defendants take exception to the admission of the testimony.

The U.S. District Attorney was about to call the Marshal, to prove that he arrested the prisoners.

Defendants' counsel admitted the prisoners were arrested, under this warrant, by the Marshal, in this district.

_Mr. Brady:_ Perhaps you can state, Mr. Smith, where they were when arrested under that warrant?

_Mr. Smith:_ They had been brought to the Marshal's office, I think.

_Mr. Brady:_ They were in the Marshal's office when arrested?

_Mr. Smith:_ They were brought to the Marshal's office before the writ was served.

_Ethan Allen_ called by the prosecution; sworn. Examined by Mr. Smith.

_Q._ You are Assistant District Attorney?

_A._ I am, sir.

_Q._ And were in June last?

_A._ Yes, sir.

_Q._ Do you remember, at my request, calling upon the prisoners now in Court?

_A._ I do, sir.

_Q._ Did you call upon every one?

_A._ I called upon all the prisoners at the Tombs.

_Q._ Upon each one separately?

_A._ I called upon them in the different cells. They were confined two by two.

_Q._ Had you previously attended, as Assistant District Attorney, upon the examination of these prisoners?

_A._ I had, upon one or two occasions.

_Q._ Were the prisoners all present on those occasions?

_A._ They were present once, I distinctly recollect.

_Q._ Did you then talk with them?

_A._ No, sir; I addressed myself to the Commissioner in adjourning the case.

_Q._ Was there any examination proceeded with?

_A._ There was no examination.

_Q._ State what you said to the prisoners, the object of your calling, and what their reply was. I ask, first, did you make a memorandum at the time?

_A._ I did, sir.

_Q._ Was it made at the very time you asked the questions?

_A._ I took paper and pencil in hand, and asked the questions which you requested, and took a note of it.

_Q._ What was the object of your calling upon them?

_A._ To ask them where they were born; and, if born elsewhere, were they naturalized.

_Q._ Did you state for what purpose you made this inquiry?

_A._ I do not recollect that I made any statement to the prisoners for what purpose I wanted the information. I told them I wanted it. They seemed to recognize me as Assistant District Attorney; and as to those that did not recognize me, I told them I was Assistant District Attorney. The memorandum produced is the one I made at the time.

_Q._ Referring to that, give the statements that were made by each of the prisoners in reply to your questions?

_A._ Henry Cashman Howard said he was born in Beaufort, North Carolina.

Charles Sydney Passalaigue said he was born in Charleston, South Carolina.

Joseph Cruse del Carno said he was born in Manilla, in the Chinese Seas, and was never naturalized.

Thomas Harrison Baker said he was born in Philadelphia.

John Harleston said he was born in Anderson District, or County, in South Carolina.

Patrick Daly was born in Belfast, Ireland. Has never been naturalized.

William C. Clarke born in Hamburg, Germany. Never naturalized.

Henry Oman born in Canton. Never was naturalized.

Martin Galvin born in the County Clare, Ireland. Not naturalized.

Richard Palmer born in Edinburgh. Never naturalized.

Alexander C. Coid was born in Galloway, Scotland. Was naturalized in Charleston,--about 1854 or 1855, he thinks.

John Murphy born in Ireland. Never naturalized.

_Mr. Brady_: We will insist, hereafter, that this admission of naturalization cannot be used at all.

_Mr. Evarts_: We will concede that.

_By Mr. Smith_: Do you remember asking the prisoners for their full names?

_A._ I asked them particularly for their full names.

_Q._ Are they correctly stated in the indictment?

_A._ They are stated from the memorandum which I then took; that is my only means of recollection.

_Mr. Smith_: The Assistant District Attorney desires me to state that he did not know that he was to be called as a witness in the case; that if he had had any idea that he would be called as a witness, he would not have made the visit. Yesterday, for the first time, he ascertained that he would be called. I would also state that I did not send him there for the purpose of making him a witness, but with the object of obtaining particulars which might render the allegations in the indictment entirely accurate in respect to every detail.

_Mr. Smith_ added: I now close the case for the prosecution.

OPENING FOR THE DEFENCE.

Mr. LAROCQUE opened the case for the defence. He said:

_May it please the Court, and you, Gentlemen of the Jury_: