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

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.

Your honor knows that, if we have any fact to go to the jury, they are getting into this case a crime of a very different character and of a deeper dye, for which they have made no charge, and which does not bear upon that which, if a crime at all, was consummated in the capture of the Joseph—the only crime alleged in the indictment. I submit that they cannot, with a view of showing complicity in a crime completed, show that the next day the men committed another crime of a deeper character. I think it is not only irrelevant, but highly objectionable.

The Court: We are of opinion that this testimony is superfluous, and superseded by the admission of the counsel. I understand the admission of the counsel to be, that the vessel was fitted out and manned by common understanding on the part of all the persons on board, as a privateer; and that in pursuance of that design and intent, and the completion of it, the Joseph was captured. That is all the counsel can ask. That shows the intent—all that can be proved by this subsequent testimony; and unless there is some legitimate purpose for introducing this testimony, which might, of itself, go to show another crime, we are bound to exclude it.

Mr. Evarts: We consider the decision of your honor rests upon that view of the admission, and we shall proceed upon that as being the admission.

The Court: Certainly; if anything should occur hereafter that makes it necessary, or makes it a serious point, the Court will look into it.

Examination resumed by District Attorney Smith.

Q. You stated, I believe, that it was after 8 o'clock in the evening when the boat of the Perry came to the Savannah?

A. Yes, sir.

Q. Who was in that boat?

A. There was a gentleman from the Perry; I do not know that I ever saw him before; an officer and boat's crew,—I suppose 15 or 20 men.

Q. One of the United States officers?

A. Yes, sir; some officer from the brig Perry boarded us, and demanded us to go on board the Perry.

Q. Where were the crew of the Savannah at the time the boat came from the Perry?

A. All on deck, sir.

Q. At the time the Savannah was running down the Joseph, what time was it?

A. We got up to the Joseph somewhere late in the forenoon, as near as my memory serves me.

Q. I want to know whether all the officers and crew of the Savannah were on duty, or not, at the time you were running down?

A. Yes, sir; there were some walking the deck, and some lying down, right out of port; the men, after taking a drink, did not feel much like moving about; they were all on deck.

Q. Was there any refusal to perform duty on the part of any one?

A. No, sir; all did just as they were told.

Q. How was the Savannah armed, if armed at all?

A. I never saw all her arms, sir.

Q. What was there on deck?

A. A big gun on deck.

Q. What sort of a gun?

A. They said an eighteen-pounder; I am no judge; I never saw one loaded before.

Q. A pivot gun?

A. No, sir, not much of a pivot. They had to take two or three handspikes to round it about.

Q. It was mounted on a carriage, the same as other guns?

A. Yes, sir.

Q. With wheels?

A. I believe so; I took no notice of the gun.

Q. Reflect, and tell us how the gun was mounted?

A. It was mounted so that it could be altered in its position by the aid of handspikes; it could be swung by the use of handspikes.

Q. The gun could be swung on the carriage without moving the carriage?

A. I do not know that part of it; I know the men complained that moving the gun was hard work.

Q. What other arms had you on board?

A. I saw other arms on board,—pistols, I believe, and cutlasses.

Q. How many pistols did you see?

A. I saw several; I do not know how many.

Q. About how many cutlasses?

A. I cannot say how many; I saw several, such as they were—cutlasses or knives, such as they were.

Q. Where were the cutlasses?

A. Those were in the lockers that I saw; I never saw them until Monday noon, when we ran down the Joseph; I saw them then.

Q. Where were they then?

A. I saw them in the lockers that lay in the cabin.

Q. When the Perry's boat came to you where were they?

A. Some out on the table, and some in the lockers.

Q. When you captured the Joseph where were they?

A. I think there were some out on the table, and about the cabin; the pistols, too; but there were none used.

Q. Were any of the men armed?

A. No, sir; I saw none of our men armed, except in their belt they might have a sheath knife.

Q. Where were all hands when you captured the Joseph, in the forenoon of Monday?

A. All on deck, sir; there might be one or two in the forecastle, but most on deck, some lying down, and some asleep.

Q. What size is the Savannah?

A. I think in the neighborhood of 50 to 60 tons.

Q. What is the usual crew for sailing such a vessel, for mercantile purposes?

A. I have been out in such a boat with four men and a boy, besides myself; that was all-sufficient.

Q. Where did you run to?

A. I ran to Havana, and to Key West, with the mails, and returned again in a pilot boat of that size, with four men and a boy, some years ago.

Q. Was the Savannah in use as a pilot boat before that expedition?

A. Yes; that is what she was used for.

Q. Do you know where the Savannah was owned?

A. I believe she was owned in Charleston.

Q. How long have you known her?

A. Two or three years, as a pilot boat.

Q. Do you know her owners?

A. I know one of them.

Q. What was his name?

A. Mr. Lawson.

Q. Is he a citizen of the United States?

A. Yes, I believe so.

Cross-examined by Mr. Larocque.

Q. In speaking of your meeting with the Joseph, you spoke of a conversation that took place between Captain Baker and Captain Meyer, after Captain Meyer came on board the Savannah. Do you not recollect that before that, when Captain Meyer was still on the deck of the Joseph, Captain Baker having called him to come on board the Savannah, and bring his papers, he asked Captain Baker by what authority he called on him to do that?

A. I think this conversation occurred on board the Savannah.

Q. The way you stated was this: that Captain Baker, on board the Savannah, stated to Captain Meyer that he must consider himself and crew prisoners, and his vessel a prize to the Confederate States?

A. Yes, sir.

Q. That was on board the Savannah?

A. It was.

Q. But do you not recollect that before that, when Captain Baker called on the Captain of the Joseph to come on board the Savannah, and bring his papers, Captain Meyer asked by what authority Captain Baker called on him to do that?

A. I do not bear that in mind. I cannot vouch for that. I do not exactly recollect those words, I think the proposition was only made when he was on board the Savannah, but probably it might have been made before.

Q. Did Captain Meyer bring his papers with him?

A. I do not know. I did not see them.

Q. You spoke of having met another vessel after that, and before you fell in with the Perry—I mean the Berkshire—you spoke of her as a British vessel?

A. Yes. We did not speak her.

Q. How did you ascertain the fact that she was a British vessel?

A. We could tell a British vessel by the cut of her sails.

Q. Was the Berkshire, so far as you observed, an armed or an unarmed vessel?

A. I think she was an unarmed vessel. I considered she had been at some of the Southern ports, and had been ordered off.

Q. She was a merchant vessel?

A. Yes.

Q. Which you, from your seamanlike knowledge, thought to be a British vessel?

A. Yes; and I think that the words, "Berkshire, of Liverpool," were on her stern.

Q. Did you read the name on the stern?

A. I think I did.

Q. You had fallen in with the Joseph, one unarmed vessel, and had made her a prize, and her crew prisoners?

A. Yes.

Q. You fell in with the Berkshire, another unarmed vessel, and passed under her stern and did not interfere with her. What was the reason of that difference?

A. We had no right to interfere with her.

Q. Why not?

A. She was not an enemy of the Confederate Government. The policy we were going on, as I understood it, was to take Northern vessels.

Q. Then you were not to seize all the vessels you met with?

A. No; we were not to trouble any others but those that were enemies to the Confederate Government. That was the orders from headquarters. The Captain showed no disposition to trouble any other vessels.

Q. When you were taken on board the Perry were you put in irons?

A. Yes.

Q. Where were those irons put on. Was it on board the Savannah, or after you were put on board the Perry?

A. When we got on board the Perry.

Q. How soon after you went on board the Perry were those irons put on?

A. As soon as our baggage was searched. We were put in the between-decks on board the Perry and irons put on us immediately after we were searched.

Q. Were you in irons when you were transferred from the Perry to the Minnesota?

A. No, sir.

Q. When were the irons taken off?

A. On board the Perry, when we were going into the boat to go on board the Minnesota.

Q. When you were on board the Minnesota were your irons put on again?

A. They were, at night.

Q. Was that the practice—taking them off in the day, and putting them on at night?

A. Yes; we were not ironed at all on that day on board the Minnesota.

Q. When you arrived in Hampton Roads,—you have described the place where the Minnesota lay, about half a mile from the Rip Raps?

A. Yes. (A chart was here handed to witness, and he marked on it the position of the Minnesota off Fortress Monroe.)

Q. As I understand it, you have marked the position of the anchorage of the Minnesota a little further up into the land than on a direct line between the Rip Raps and Fortress Monroe? A. Yes, sir.

Q. You were then taken on board the Harriet Lane, from the Minnesota?

A. Yes.

Q. Where did the Harriet Lane lie when you were taken on board of her?

A. She was further up into the Roads, about half a mile from the Minnesota, westward. (Witness marked the position of the Harriet Lane on the chart.)