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

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:

We have now reached that stage in this interesting trial where the duty has been assigned to me, by my associates in this defence, of presenting to you the state of facts and the rules of law on which we expect to ask from you an acquittal of these prisoners. I could wish that it had been assigned to some one more able to present it to you than myself, for I feel the weight of this case pressing upon me, from various considerations connected with it, in a manner almost overpowering. I think that we have proceeded far enough in this case for you to have perceived that it is one of the most interesting trials that ever took place on the continent of America, if not in the civilized world. For the first time, certainly in this controversy, twelve men are put on trial for their lives, before twelve other men, as pirates and—as has been well expressed to you by the learned District Attorney who opened this case on behalf of the prosecution—as enemies of the human race. If you have had time, in the exciting progress of this trial, to reflect in your own minds as to what the import of these words was, it must certainly, ere this, have occurred to you that, in regard to these prisoners, whatever may be the legal consequences of the acts charged upon them, it was a misapplication of the term. Look for a moment, gentlemen, first, at the position of things in our country under which this trial takes place. All these prisoners come before you from a far distant section of the country. Some of them were not born there—some of them were. At the time when these events occurred all of the prisoners lived there, and were identified with that country, with its welfare, with its Government, whatever it was. They had there their homes, their families, everything which attaches a man to the spot in which he lives. Those of them who had not been born in America had sought it as an asylum. They had come from distant regions of the earth—some from the Chinese Sea and the remote East—because they had been taught there that America was the freest land on the globe. They had lived there for years. Suddenly they had seen the country convulsed from one end to the other. They had seen hostile armies arrayed against each other, the combatants being for the most part divided by geographical lines as to the place where they were born or as to the State in which they lived. This very morning a newspaper in the city of New York estimates the numbers thus arrayed in hostility against each other at no less than seven hundred thousand souls. These prisoners have the misfortune, as I say, of being placed on their trial far from their homes. They have been now in confinement and under arrest on this charge for some four or five months. During that whole period they have had no opportunity whatever of communicating with their friends or relatives. Intercourse has been cut off. They have had no opportunity of procuring means to meet their necessary expenses, or even to fee counsel in their defence. Without the solace of the company of their families, immured in a prison among those who, unfortunately, from friends and fellow-countrymen have become enemies, they are now placed in this Court on trial for their lives. You will certainly reflect, gentlemen, that it was not for a case of this kind that any statute punishing the crime of piracy was ever intended to be enacted. You will reflect, when you come to consider this case, after the evidence shall have been laid before you, and after you have received instructions from the Court, that however by technical construction our ingenious friends on the other side may endeavor to force on your minds the conviction that this was a case intended to be provided for by statutes passed in the year 1790, and by statutes passed in the year 1820,—it is a monstrous stretch of the provisions of those statutes to ask for a conviction in a case of this kind. And I may be permitted, with very great respect for the constitutional authorities of our Government, to which we all owe our allegiance and respect, to wonder that this case has been brought for trial before you. I cannot help, under the circumstances surrounding these trials—for while you are sitting here, another jury is passing on a similar case in the neighboring City of Philadelphia—attributing the determination of the Government to submit these cases to the judicial tribunals at this time to a desire to satisfy the mind of the community itself, which has been naturally excited on this subject, that these men are not pirates within the meaning of the law. And I do most sincerely hope, for the credit of our Government, that that is the object which it has in view, and that the heart of every officer of the Government, at Washington or elsewhere, will be most rejoiced at the verdict of acquittal, which, I trust, on every consideration, you will pronounce. We all know that in a time of civil commotion and civil war like this, the minds of the people, particularly at the incipient stages of the controversy, become terribly excited and aroused. We could not listen, at the outbreak of these commotions, to any other name but that of pirate or traitor, as connected with those arrayed against our Government and countrymen. One of the misfortunes of a time of popular excitement like this is, that it pervades not only the minds of the community, but reaches the public halls of legislation, and the executive and administrative departments of the Government. And it is no disrespect, even to the Chief Magistrate of the country to say, that he might, in a time like this, put forward proclamations and announce a determination to do what his more sober judgment would tell him it was imprudent to announce his intention of doing. You will all probably recollect that when this outbreak occurred the Government at Washington announced the determination of treating those who might be captured on board of privateers fitted out in the Confederate States as pirates. Such an announcement once made, it is difficult to depart from. And therefore I do most sincerely hope that the administration in Washington, as my heart tells me must be the case, are looking at these trials in progress here and in Philadelphia, with an earnest desire that the voice of the Juries shall be the voice of acquittal,—thus disembarrassing the Government of the trammels of a proclamation which it were better, perhaps, had never been issued. This civil war had at that time reached no such proportions as those which it has since acquired. It was then a mere beginning of a revolution. The cry was, that Washington was in danger. There were no hostile forces arrayed on the opposite sides of the Potomac. There was a fear that they would soon make their appearance; and there was also an earnest hope—which I lament most deeply has not been realized—that that outbreak would be stopped in its commencement, and that no armies approaching to the proportions of those which have since been in hostile conflict would be arrayed on the field of battle. Look at the state of things now. Scarcely a day elapses on which battles are not taking place, from one end to the other of this broad continent—in Virginia, Kentucky, Missouri, and other States—and where the opposing forces are not larger than those that met in any battle of the Revolution which gave this country its independence. Does humanity, which rules war as well as peace, permit that while whole States, forming almost one half of the Confederacy; have arrayed themselves as one man—for aught we know to the contrary—while they think, no matter how mistakenly, that they have grievances to be redressed, and that they have a right to exercise that privilege of electing their own Government, which we claimed for ourselves in the day of our own Revolution—does humanity, I say, permit, in such a state of things, one side or the other to treat its opponents as pirates and robbers, as enemies of the human race? Gentlemen, our brave men who are fighting our battles on land and sea have a deep interest in this question; and if the votes of our whole army could be taken on the question of whether, as a matter of State policy, these men should be treated as pirates and robbers, I believe, in my heart, that an almost unanimous vote would go up from its ranks not to permit such a state of things to take place.

I wish to say a word here, gentlemen, preliminarily, on another subject, and that is, what the duty and right of counsel is on a trial of this kind. I hold the doctrine that counsel, when he appears in Court to defend the life of one man, much less the lives of twelve men, is the alter ego of his clients—that he has no trammels on his lips, and that his conscience, and his duty to God, and to his profession, must direct him in his best efforts to save the lives of his clients,—and that it becomes his duty; regardless of all other considerations, except adherence to truth and the laws of rectitude, to present every argument for his clients which influenced their minds when they embarked in the enterprise for which they are placed before the Jury on trial for their lives. It is not the fault of counsel, in a case of this kind, if he is obliged to call the attention of the Jury to the past history of his own country, to the cotemporaneous expositions of its Constitution, to the decisions of its Courts of Judicature, and of the highest Court of the Union, which have laid down doctrines with reference to the Constitution of the Government, which are accepted at the present day, entirely incompatible with the success of this prosecution. In doing so, you will certainly perceive that, however much these men on trial for their lives may have been deceived and deluded, as I sincerely think they have been to a very great extent, and, as was frankly admitted by the learned counsel who opened the case for the prosecution, that at least, there was the strongest excuse for that deception and delusion among those of them who had read the Constitution of their Government, who had read its Declaration of Independence, who had read the cotemporaneous exposition of its Constitution, put forward by the wisest of the men who framed it, and on the honeyed accents of whose lips the plain citizens of the States reposed when they adopted the Constitution. If it had been their good fortune to be familiar with the decisions of its Courts, they had learned what the Supreme Court had said with reference to the sovereign rights of the States, and with reference to the strict limit and measure of power which they had conceded to the General Government, and there was, at least, a very strong excuse for their following those doctrines, however unpopular they may have become in a later day of the Republic.