Trial of the Officers and Crew of the Privateer Savannah, on the Charge of Piracy, in the United States Circuit Court for the Southern District of New York

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.

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.

TRIALOF THEOFFICERS AND CREW OF THE SCHOONER SAVANNAH, ON THE CHARGE OF PIRACY

UNITED STATES CIRCUIT COURT, SOUTHERN DISTRICT OF NEW YORKWednesday, 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 ALLENCounsel 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:

Q. Have you any opinion on the subject of capital punishment which would prevent your rendering a verdict of guilty, if the evidence was such as to satisfy you?

A. No, sir.

By Mr. Larocque, for the prisoners:

Q. Have you read the account of the capture of the Savannah privateers?

A. I have.

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

A. I think not, sir.

Q. Have you formed or expressed any opinion whether the facts charged, if proved, constitute the offence of piracy?

A. I have not.

Q. Have you never conversed on this subject?

A. I do not think I have.

Q. Have you no recollection of having conversed upon it at all?

A. I may have talked about it something at the time, but I do not recollect.

Q. Are you a stockholder, or connected with any marine insurance company?

A. No, sir.

Q. Have you been engaged in Northern trade?

A. No, sir.

Challenged peremptorily, by prisoners.

Thomas Dugan called. Challenged for principal cause, by Mr. Smith:

Q. Have you any conscientious scruples that would interfere with your rendering a verdict of guilty, if you deemed the prisoners guilty upon the evidence?

A. I have strong conscientious scruples.

Mr. Smith asked that the juror stand aside.

Defendants' Counsel objected to the question, as not proper in form. Objection sustained.

Q. In a capital case, where the evidence is sufficient to satisfy your mind of the prisoner's guilt, have you any conscientious scruples that would prevent your finding a verdict of guilty?

A. If I may explain, I would endeavor to find a verdict; but I believe my sympathy would control my judgment to that extent that I would not be able to do my duty between the people and the prisoner. I have been on a jury before, and I doubt that my judgment would be controlled by my sympathy.

Mr. Larocque: The witness has not said his sympathies would be of that strength that would prevent his finding a verdict of guilty, if the evidence was satisfactory. A juror that has doubts of himself is the most honest and reliable, according to all experience in criminal trials.

The Court: Examine him on that point.

By Mr. Larocque:

Q. Suppose that upon this trial the facts charged in this indictment were proved by clear and satisfactory evidence, and the Court should instruct you, upon that evidence, that those facts constitute the offence of piracy, would your conscientious scruples be so strong as to prevent your finding a verdict of guilty in such a case as that?

A. There must be not a shadow of doubt. It must be strong and conclusive in my mind before a verdict is rendered.

Q. But where there was strong, conclusive evidence, you would render a verdict of guilty?

A. Yes, sir.

Mr. Evarts: It is pretty apparent that the juror does not regard himself as in a position to deal impartially with this question, which involves human life. The intention of this cause of challenge is, that the juror should be in a position to yield to the evidence that just assent which its character is entitled to call for, unimpeded by his repugnance to the result when fatal to human life. Still, if your honor should not think that upon this ground he ought to be excluded absolutely, certainly it would be consistent with the course of practice, and with the just feeling of the juror, that he should stand aside until the panel be made up.

Mr. Brady: That practice I understand not to prevail any longer, since it has been provided that the empanneling of jurors in the United States Courts shall be the same as in the State Courts, and we do not consent to any such principle as the gentleman proposes. Your honor has decided that a juror, to disqualify him from serving in a capital case, must say that his conscientious scruples are of such a character that, though the evidence be clear and conclusive under the law, as stated by the Court, they would prevent his doing his duty and giving a verdict of guilty. To my mind, nothing can be more clear and satisfactory than the statement of the juror himself, which exhibits a state of mind that should be possessed by every juror; that is, that he must be satisfied beyond all reasonable doubt of the guilt of the accused before rendering a verdict of guilty; and when be speaks of his sympathy on behalf of human life, it is only that sympathy which the law recognizes where it gives the prisoner the benefit of every doubt. It is true he does use the expression that there must not be the shadow of a doubt; but when the Court comes to expound the law, he will be instructed that it must be a reasonable doubt. I do not see anything against the juror on the ground of conscientious scruples. Your honor knows that the prosecution have no peremptory challenge in cases of piracy or treason, and the old practice of setting aside jurors until the panel is exhausted, and then, if not able to make up twelve without the rejected jurors, requiring their acceptance, has passed. That is decided in the case of Shackleford, in 18 Howard's Reports.

The Court (to the Juror): We do not exactly comprehend the views you entertain upon this question; therefore we desire, for our own satisfaction, to put some questions to you, to ascertain, if we can, the state of your mind and opinions upon these questions, and see whether you are a competent juryman or not in a capital case. It is a very high duty, and a common duty, devolving upon every respectable citizen. The question is this—and we desire that there may be no delusion or misapprehension on your mind in respect to it—in a capital case, if the proof on behalf of the Government should be such as to satisfy your mind that the prisoner was guilty of the capital offence, whether or not you have any conscientious scruples as respects capital punishment, that would prevent your rendering a verdict of guilty?

A. In answer to that I would say that this is what troubles me: I want to do my duty; I want to render a verdict fairly and squarely as between the prisoner and the people; but I have this to contend with—I have read that people have been convicted upon the clearest testimony, and afterwards found to be innocent; and before I would have such feelings I would as soon go to the scaffold as send a person there who was not guilty. Therefore my sympathy is so strong that I am afraid to trust myself. I did serve on a former occasion, and I do not know that even then I did my duty.

Q. What do you mean by being afraid to trust yourself? Is it a conscientious feeling and opinion against the penalty of capital punishment?

A. Yes, sir, it is. I have a great abhorrence of it, if I may so express myself. Yet I should like to render a verdict, and do what is right; but I believe my feelings are too great to trust myself.

The Court: We think we are bound to set the juror aside.

Mr. Larocque: Permit me to put one question.

Q. It strikes me that you are a little at fault as to what the purport of this question is. It is not whether you have an abhorrence of convicting a prisoner of a capital offence. The question is, whether you have such conscientious scruples against capital punishment as would prevent your finding the prisoner guilty, if the facts were proved, and the Court instructed you that those facts constituted the offence?

A. I answered before. It places me in rather a peculiar position. As I said, I want it understood distinctly, I desire to do my duty; but there is a struggle between that and my sympathy, and I am afraid to trust myself.

Q. But you can draw a distinction between your sympathy and any conscientious scruples against the punishment of death, can you not?

A. Well, sir, where it comes to the point–

Q. Allow me to put the question in another way: If you are entirely satisfied, upon the evidence and instructions of the Court, that the prisoner was guilty, your conscience would not trouble you in finding him guilty?

A. Well, sir, there would be this: I would feel that persons, under the strongest kind of testimony, have been found guilty, wrongfully, and it would operate on me—the fear that I had judged wrong on the facts, and committed murder. That feeling is very strong.

Q. If the evidence satisfied you that the prisoner was guilty, would your conscience prevent your saying so?

A. It would not now. It might in the jury-room. When it comes to the point, and I feel that I hold the life of a human being, it is pretty hard to know what I would do then.

Q. Your conscience would only trouble you if you doubted that your judgment was right?

A. Yes, sir.

Mr. Larocque: I submit that the juror is competent.

Juror: You must take your chances if you take me. I still think I am not fit to sit on a jury to represent the people.

The Court: I think we must take the opinion of the juror as against himself.

Set aside. [Defendants took exception.]

John Fife called, and challenged for principal cause:

Q. In a capital case, where the evidence is sufficient to convince you of the guilt of the prisoner, have you any conscientious scruples that would prevent your finding a verdict of guilty?

A. No, sir.

By Mr. Larocque, for the prisoners:

Q. Did you read the account of the capture of the privateer Savannah?

A. I did.

Q. Have you formed or expressed an opinion as to the guilt or innocence of the prisoners?

A. I believe not, sir.

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

A. I have not, sir.

Q. You think you have no bias or prejudice in this case?

A. No, sir.

Challenge withdrawn. Juror sworn.

Thomas Costello called. Challenged for principal cause.

By Mr. Smith:

Q. In a capital case, where the evidence is sufficient to convince you of the guilt of the prisoner, have you any conscientious scruples that would prevent your finding a verdict of guilty?

A. No, sir.

By Mr. Larocque, for the prisoners:

Q. You know that this case is an indictment for piracy against the prisoners. Have you formed or expressed any opinion upon their guilt or innocence?

A. No, sir.

Q. Have you formed or expressed any opinion whether the facts charged against them, if proved, constitute the offence of piracy?

A. I have not, sir.

Challenge withdrawn. Juror sworn.

Tuganhold Kron called. Challenged for principal cause.

By Mr. Smith:

Q. In a capital case, where the evidence was sufficient to convince you of the guilt of the prisoner, have you any conscientious scruples that would prevent your finding a verdict of guilty?

A. Yes, sir. (Question repeated.)

A. No, sir.

Q. Do you readily understand English?

A. Pretty well.

Q. You did not understand me when I asked the question the first time?

A. No, sir.

Q. Do you understand English well?

A. Yes, pretty well. There may be some words I do not understand.

Q. Did you ever sit as a juror on a trial?

A. Yes, sir.

Q. Did you understand all the witnesses said?

A. No, because I did not hear, sometimes.

Q. Do you think you understand English well enough, so that you can hear a trial intelligently?

A. I cannot say, sir.

Q. You are not sure?

A. No, sir.

By Mr. Larocque:

Q. What is your occupation?

A. A bookbinder.

Q. Have you an establishment of your own?

A. Yes, sir.

Q. The men you employ—do they speak English or German?

A. Some English—the most of them German.

Q. And you transact your business with gentlemen who speak English?

A. Yes, sir.

Q. How long have you done so?

A. Eight years.

By the Court:

Q. How long have you been in this country?

A. Seventeen years.

Q. Have you been in business all that time?

A. I worked as journeyman ten years, and have been seven years in business of my own.

By Mr. Smith:

Q. Do you think you can understand English well enough so that you can, from the evidence, form an opinion of your own?

A. I think I will.

By Mr. Larocque:

Q. You read the account of the capture of the privateer Savannah in the newspapers?

A. Yes, sir; in some German paper.

Q. Did you form or express any opinion as to the guilt or innocence of these prisoners?

A. No, sir.

Q. Did you form or express an opinion whether the facts charged against them, if proved, constitute the offence of piracy?

A. No, sir.

Mr. Evarts: We think the juror's knowledge of the language is shown, by his own examination, to be such as should at least entitle the Government to ask that he should stand aside until it is seen if the panel shall be filled from other jurors—if that right exists. Your honor held, in the case of the United States v. Douglass—a piracy case tried some ten years ago—that that right did exist.

The Court: I think we have since qualified that in the case of Shackleford. It was intended to settle that debatable question, and it was held that the Act of Congress, requiring the empanneling of jurors to be according to the practice in State Courts, did not necessarily draw after it this right of setting aside. We think the objection taken is not sustained.