_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.