E. DELAFIELD SMITH,

Attorney of the United States for the Southern District of New

York.

On Wednesday, the seventeenth of July, the prisoners were brought into

Court to plead to the Indictment, when MR. E. DELAFIELD SMITH, United

States District Attorney, said:

_If the Court please_,--In the case of Baker and others, the prisoners

now at the bar, indicted for robbery on the high seas, I move that they

be arraigned. I may here remark, that I have caused the service of a

notice of this motion upon all the counsel known to me as engaged in

the case; and if any gentleman has not received a notification, the

omission proceeds from the fact that his name has not been given to the

District Attorney. I understand that Mr. Larocque is counsel for one or

two of the prisoners, and that he is in the building.

_Mr. Larocque_ here entered the Court.

_The District Attorney_: I would now renew my motion that the prisoners

at the bar be arraigned under the indictment presented yesterday.

_Mr. Larocque_: If your honor please, I represent but one of the

prisoners. There are other counsel, I believe, who represent them

generally. I appear for Mr. Harleston (the mate), and I will now state

what I have to say with respect to the motion made by the District

Attorney. Mr. Daniel Lord is associated with me, and I believe he is

now engaged in the adjoining Court, but will soon be here. The Court

will perceive that the learned District Attorney has very properly

taken a considerable period of time for the framing of this indictment.

It is some weeks now since the warrant of arrest was issued, and the

course which he has taken certainly deserves great commendation; for

the indictment in this case, more than any other that has ever been

found in this Court, required greater care in its preparation, and it

is one which will certainly present more important questions than

probably any that has ever been tried in this Court. The indictment was

only presented yesterday, and, as far as I am concerned, I was only

informed of its presentation late yesterday afternoon. Of course, I had

no opportunity to examine it. I believe it is quite a voluminous

document, and contains a great many counts; and before the prisoners at

the bar would be prepared to plead to the indictment, it will certainly

be necessary that their counsel should examine it with care, and

determine what course to take with regard to it; and then, probably,

there may be some application that it will be necessary to make to the

Court before the prisoners will be prepared to plead. I therefore

desire a postponement for that purpose, until we can have time to

examine this indictment.

_The District Attorney_: I doubt not it is proper that time should be

given to examine this indictment, and to adopt such course with respect

to it as gentlemen standing in the sacred relation of counsel may deem

it their duty to take. I should be very glad, however, if that time

could be, with due regard to the convenience of counsel, so near as

that the pleas may be recorded and the trial set down for some day

before the Court adjourns. I shall be ready, if your honor please, on

behalf of the Government, to try the prisoners on any day. I shall be

prepared to try them within two or three days; but, certainly, it is

right that counsel should have time to examine the indictment, as

suggested. I hope only that such examination may be made speedily, as I

understand your honor will adjourn the Court at an early day.

_Mr. Larocque_: It would be utterly impossible for this case to be

tried this term. In conversation with the counsel for the Government, a

few days ago, the gentleman himself declared that the case could not be

tried this term of the Court, and it would be impossible, your honor,

for us to be ready for trial during this term. It will be necessary for

us to obtain testimony from abroad, out of the limits of this State,

and that cannot be procured in time to try the case this term.

Certainly, no interest of public justice can suffer by a delay of the

trial of this case; and I think it is eminently proper, and I am sure

the Court will agree with me, that a proceeding of this importance

should be conducted with deliberation, and that ample time should be

given to the prisoners to prepare their defence. I had understood,

moreover, that some intimation had been made by your honor's associate

on the bench (Judge Nelson) that he would attend upon the trial of this

case. I am told that Judge Nelson met with an accident shortly after

his return home from his attendance upon his judicial duties, by being

run away with by a horse, and that he is so lame that he is unable to

move at present; and I am very credibly assured that Judge Nelson has

expressed his conviction that it was his duty to attend and to sit on

the trial of this case. Very important questions of law will be

presented, and your honor is aware that in a criminal case in this

Court there is no writ of error. The prisoner has the right to a review

of any decision that might be made in this Court, in case a difference

of opinion should arise between the Judges who preside. And certainly,

in a case of such great importance as this is, where the lives of so

many prisoners are at stake, it is of the utmost consequence that there

should be a full Court present when the prisoners are tried. So far

with respect to the trial of the case. Now, your honor is also aware

that, by the statutes of the United States, the prisoners have a right

to a certain period of time before any movement can be made with a view

to trial. We certainly cannot be ready to plead to this indictment in

less than a week.

_The District Attorney_: The Court will permit a single remark

concerning the conversation to which my learned friend has alluded. I

never intended to say decidedly that the trial could not take place

during the present term. I did, however, at one time, express an

opinion that, as the term was nearly ended, and as the summer was upon

us, probably I should not succeed in bringing the case on for trial

until the autumn. As, however, the indictment has been promptly found,

delay till fall is, I trust, unnecessary. Events continually taking

place upon the ocean seem to render it important that the trial should

take place at an early day. With these suggestions, I leave the matter

entirely with the Court, where, of course, it ultimately belongs.

_Mr. Sullivan_: May it please the Court, I appear for Captain Baker,

the first prisoner named in the indictment.

_Judge Shipman_ asked who appeared for the other prisoners. He wished

to know if all the prisoners were supplied with counsel; if not, he

would assign them counsel.

_Mr. Sullivan_ said he did not desire a week's postponement, as he

understood his honor had intimated that the Court would adjourn on

Wednesday. As to the time of trial, he was authorized and instructed

specially to say for Captain Baker that he would ask for no delay other

than what was absolutely necessary for his counsel to prepare. He (Mr.

Sullivan) hoped that the Court would continue its session specially to

hear the case, or at least to try some portion of the defendants. He

made that remark on the presumption that the defendants would ask to be

tried separately.

_Mr. Mayer_ said he appeared for one of the seamen, Wm. C. Clark; and

he concurred in Mr. Larocque's remarks.

_Judge Shipman_: It is hardly necessary now to discuss when the case

will be set down for trial. The motion now before the Court is for the

arraignment of the prisoners, and counsel asks for time to plead. I

should like to know the names of the counsel who appear for the

prisoners.

_Mr. Larocque_ said he appeared, in conjunction with Mr. Lord, for Mr.

Harleston.

_Mr. Ridgway_ appeared for the sailors Carno, Oman, Daly, Palmer,

Murphy, Galvin, and Coid; and he, also, concurred in the motion for

time to plead.

_Mr. Sandford_ appeared for Albert G. Ferris, and desired that the

trial should be brought on as speedily as possible.

_The District Attorney_: I have a suggestion to make as to the time of

pleading. With regard to the indictment, when counsel come to examine

it, I think they will find, that although the counts are numerous, yet,

after all, the indictment is simple. I would suggest that counsel

should examine the record between this and to-morrow morning, and then

the prisoners could undoubtedly be arraigned without objection.

_Mr. Daniel Lord_: I perceive that the prisoners are brought here to

plead in chains. If that is to be repeated each time they are brought

here, I would wish to have the time named when they are to plead.

_Mr. James T. Brady_ said that he believed the engagement under which

he acted, in connection with some other gentlemen, covered the cases of

all the accused who had not already been represented before his honor

by distinct counsel.

_Judge Shipman_: There is no necessity, then, for the Court to assign

counsel?

_Mr. Brady_: In response to your honor, allow me to say that I

represent Captain Baker more particularly. From the very necessity of

this case a number of counsel have been employed, and more, probably,

than will take part, as your honor is well aware, in the trial. I have

had the pleasure of conferring with Mr. Lord only once since this case

arose; and as he is in every respect the senior of the gentlemen who

are employed in the case, we should like an opportunity for conference.

It is highly important to determine what species of plea should be put

into the indictment; and while, as I remarked, all the counsel may not

take a prominent part in the argument or the trial, yet their judgments

ought to be considered by each other, and some decisive course

concluded upon. There certainly can be no great occasion for hurry, as

these men are closely confined, and certainly are under the closest

kind of restraint, from what I see around me (glancing at the

prisoners, handcuffed). I don't suppose there is any apprehension, even

if the prison doors were opened, that they would be likely to escape,

from the state of feeling which at present exists in this city and this

section of the country. We only wish for time that is necessary to

determine what kind of an answer to make to this indictment; and after

that we will proceed, I venture to say, with the utmost diligence, to

have this case prepared for trial, or it may probably turn out that

there will be no necessity for any trial. That may occur to a legal

mind, or it may not.

_Judge Shipman_: Well, let the prisoners be remanded until Tuesday

morning next.

The Court then adjourned.

On Tuesday, the twenty-third of July, the prisoners were again brought

into Court, and were placed within the bar, at the south end of the

room.

_E. Delafield Smith, Esq._, District Attorney, moved that the prisoners

be arraigned.

_Algernon S. Sullivan, Esq._, of counsel for the prisoners, stated that

all the prisoners were represented by counsel, and that they were

acquainted with the charges contained in the indictment.

The prisoners were ordered to stand up; and the Clerk of the Court

called T. Harrison Baker, saying: "You have been indicted for robbery

on the high seas; how do you plead--guilty, or not guilty?" To which

Mr. Baker replied, "Not guilty."

_The District Attorney_ suggested that the indictment be read to the

prisoners, unless each one of them expressly waived the reading. He

would prefer to have it read, however.

The prisoners' counsel respectively submitted that it was of no

consequence. The accused knew the contents of it.

_Judge Shipman_ remarked that the reading of the indictment would

consume some time; but the District Attorney said that questions had

been raised on this point, and, to insure regularity, he desired to

have the indictment read; whereupon the Court ordered the Clerk to read

the instrument.

At the conclusion of the reading, the prisoners severally pleaded, each

for himself, "not guilty."

_District Attorney Smith_: If the Court please, the facts in this case

are exceedingly simple. The evidence in reference to them--as well such

as is required by the prosecution, as that which we may suppose to be

desired by the defendants--is within a narrow range and easily

attainable. I have examined the testimony with care. There can be no

doubt, upon the evidence in the case, that the prisoners are guilty,

and that as a matter of law, as well as a matter of fact, they ought to

be convicted. It is impossible to close our eyes to the facts relating

to this case, as they bear upon what is daily taking place upon the

high seas. The merchant marine of the country is subjected to piratical

seizure from day to day. Murder is the natural child of robbery, and we

may daily expect to hear of bloodshed on the ocean, in attempting the

execution of the purpose conceived by so many of our countrymen, to

deal a death-blow to American commerce.

It seems to me, that the ends of public justice require that I should

urge upon your Honor the propriety and necessity of an early trial of

this issue. If, peradventure, the prisoners are innocent, it can work

no injury to them; if guilty, they ought to be convicted, and in my

judgment, the law ought to take its course to the end, in order that an

example may be set to those who are pursuing the species of marauding,

of which I think the testimony will show the prisoners to have been

guilty.

I respectfully urge, that the trial be set down for Wednesday, July

31st, a week from to-morrow. I may add that I shall be happy to render

to the counsel for the prisoners every facility within my power for the

presentation of all the facts. The plea of authority, which we can

anticipate, is set forth in the indictment, and a copy of the letter of

marque has been furnished to counsel for the defence. I can see no

valid reason for postponing the trial; none, certainly, in the present

state of the country.

_Mr. Larocque_ said, it seemed to him the idea might have occurred to

the District Attorney, that these men had not yet been convicted. The

law presumed every man to be innocent until he was proved guilty. The

counsel should not presume these men to be guilty until they were

tried. There were questions of international law involved in this case

which would be entitled to consideration. The counsel for the United

States would learn that he had misunderstood the meaning of the statute

under which these men were indicted. The prisoners' counsel were not

ready. They required documentary evidence and witnesses to be procured

from a distance. They could not be ready to go on at this term of the

Court. He submitted that a cause of this magnitude should not be

disposed of so hurriedly. What had the prisoners to do with others on

the ocean? Did the counsel for the Government desire to hurry them to

trial unprepared for the purpose of striking terror to those on the

ocean? He could not believe it to be so.

_Mr. Sullivan_ said the prisoners would not ask any further delay after

procuring their testimony. Some of the evidence could not be obtained

this side of Charleston, and it would be impossible to procure it under

three or four weeks. The case involved the legal status between the

United States and the seceded States. He opposed setting down the case

for trial on next Wednesday.

_Mr. Davega_, of counsel for the prisoners, also opposed the motion,

reiterating the statements in relation to the testimony to be procured.

_Mr. Mayer_ called the attention of the District Attorney to the fifth

count of the indictment, describing the prisoners as citizens of the

United States. His client was a citizen of Hamburg, and he would not be

ready to try the case in several weeks.

_Mr. Daniel Lord_, in behalf of Mr. Harleston, said this case involved

the lives of thirteen men. If the District Attorney supposed the law of

the case was simple, he took a very different view of it from what that

gentleman did.

_The District Attorney_, in reply, said that in respect to the

intimation of a necessity to refer to Charleston, it was a matter of

notoriety that the prisoners were in constant communication with that

city. Counsel were bound to disclose the nature of testimony required,

that the Court might judge of the sufficiency of the reasons for a

postponement. Much of it might be to facts which the prosecution would

admit; as, in reference to the question of citizenship, there would be

no difficulty in conceding the fact that certain of the prisoners were

not citizens of the United States. He was not tenacious as to the very

day named. Without throwing the case over to the fall term, the trial

could be so fixed as to afford counsel ample opportunity to collect

their proofs and examine the questions of law involved. All the

difficulties suggested to impede the trial were obstructions created by

these defendants themselves and their confederates, and it was in the

nature of taking advantage of their own wrong to seek a postponement

because of the existence of a state of things for which they were

responsible. It had been said, thirteen lives are at issue. He would

say that many more lives were at stake--lives, in his judgment, of far

greater value--the lives of innocent officers and sailors in the

merchant marine. The facts are simple. The law appears to be certain.

There can be no defence here, the nature of which is not visible. The

only justification for the piracy would seem to be the treason. If the

prisoners ought justly to be convicted, such conviction should be

speedy, in order to deter their confederates from expeditions partaking

of the character of both treason and piracy.

_Judge Shipman_ said, that he had no doubt in relation to the

disposition to be made of this motion. The Court could not have several

sets of rules to apply at will to the same class of cases; and even if

the Court had power to adopt a different rule in some criminal cases

from that fixed in others of the same grade, it would be very

questionable whether such power ought to be exercised. The law had made

no distinction in regard to this class of criminal offences. Upon the

statute book of the United States are various acts of Congress defining

atrocious crimes punishable capitally; and among these, is the crime of

piracy, or robbery upon the high seas, for which the defendants are

indicted. In all cases where parties are charged with criminal

offences, and especially with capital crimes, it is customary to give

the defendants a reasonable time for the preparation of their defence;

and the Court must always assume and act, so far as the technical

proceedings are concerned, upon the presumption of innocence which the

law always interposes. The Court cannot take into consideration many of

the suggestions made by counsel for the Government or for the defence;

and in disposing of this motion, I wish it to be distinctly understood

that I do so just as I should in any other case of alleged robbery or

piracy upon the high seas, where, if the defendants be convicted, they

must suffer, according to the statute, the penalty of death. I cannot

look at other considerations. I cannot anticipate other defences. In

the administration of the criminal law, although the principles are

usually very simple, and although, for aught I know, they may be as

simple when applied to this case as to any other, yet in the

application of those principles, there is often ground for difference

of opinion. Courts that have been long regarded as entitled to very

great respect for learning, discrimination, and experience, frequently

differ as to the application of principles of law to particular cases.

In view of this fact, in capital cases, it has been a rule usually

adhered to in the United States Circuit Courts (which are so

constituted by the Act of Congress that two Judges are authorized to

sit) to have, if applied for, a full Court, so that the defendant might

have the benefit, if I may so speak, of the chance of a division of

opinion. For such division of opinion constitutes the only ground upon

which the case can be removed to a higher Court for revision. In this

view of the case, and upon the strenuous application of the defendants

for the presence of a full Court, I certainly cannot deny the

application consistently with my judgment of what is right and proper;

and I say this with a full recognition of the importance of this trial.

I might add, it may be desirable for the Government, in the event of a

certain determination of this case, that in the preliminary

proceedings--the time fixed for trial and the constitution of the

Court--there should be nothing to weaken the full and appropriate

effect of such determination.

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.

[2] The second trial of Gordon, resulting in a conviction,

took place before a full Court, Mr. Justice NELSON sitting

with Judge SHIPMAN.

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.

TRIAL OF THE OFFICERS AND CREW OF THE SCHOONER SAVANNAH, ON THE

CHARGE OF PIRACY.