DISTRICT ATTORNEY'S OPENING.

MR. E. DELAFIELD SMITH opened the case for the prosecution. He said:

_May it please the Court, and you, Gentlemen of the Jury_:

The Constitution of the United States, in the eighth section of the

first article, authorized the Congress, among other things, to define

and punish piracies and felonies committed on the high seas, and

offences against the law of nations.

In pursuance of that authority, the Congress, on the 30th of April,

1790, made provisions contained in an act entitled "An Act for the

punishment of certain crimes against the United States." I refer to the

8th and 9th sections of that act, which is to be found in the first

volume of the U.S. Statutes at Large, page 112.

In the State Courts, gentlemen, it is common to say that the jury is

judge both of the law and the fact; but such is not the case in the

United States Courts. The Court will state to you the law, which you

are morally bound to follow. But in opening this case, I refer to the

statutes for the purpose of showing you precisely what the law is

supposed to be under which this indictment is found, and under which we

shall ask you for a verdict.

The 8th section of the act of 1790, commonly called "The Crimes Act,"

and to which I have just referred, declares, that if any person or

persons shall commit, upon the high seas, or in any river, haven,

basin, or bay, out of the jurisdiction of any particular State, murder

or robbery, or any other offence which, if committed within the body of

a county, would, by the laws of the United States, be punishable with

death; or if any captain or mariner of any ship or other vessel shall

piratically and feloniously run away with such ship or vessel, or any

goods or merchandize to the value of fifty dollars, or yield up such

ship or vessel voluntarily to any pirate; or if any seaman shall lay

violent hands upon his commander, thereby to hinder and prevent his

fighting in defence of his ship or goods committed to his trust, or

shall make a revolt in the ship; every such offender shall be deemed,

taken, and adjudged to be a pirate and felon, and, being thereof

convicted, shall suffer death; and the trial of crimes committed on the

high seas, or in any place out of the jurisdiction of any particular

State, shall be in the district where the offender is apprehended, or

into which he may first be brought.

The 9th section of the same act provides, that if any citizen shall

commit any piracy or robbery aforesaid, or any act of hostility against

the United States, or any citizen thereof, upon the high sea, under

color of any commission from any foreign prince or state, or on

pretence of authority from any person, such offender shall,

notwithstanding the pretence of any such authority, be deemed,

adjudged, and taken to be a pirate, felon, and robber, and, on being

thereof convicted, shall suffer death.

A statute, on this subject, enacted in 1819, expired by its own

limitation; but on the 15th of May, 1820, an act was passed making

further provisions for punishing the crime of piracy. This law is

printed in the third volume of the U.S. Statutes at Large, page 600.

The 3d section provides, that if any person shall, upon the high seas,

or in any open roadstead, or in any haven, basin, or bay, or in any

river where the sea ebbs and flows, commit the crime of robbery in or

upon any ship or vessel, or upon any of the ship's company of any ship

or vessel, or the lading thereof, such person shall be adjudged to be a

pirate; and, being thereof convicted before the Circuit Court of the

United States for the district into which he shall be brought, or in

which he shall be found, shall suffer death.

I now refer to the act of March 3d, 1825, to be found in the 4th volume

of the Statutes at Large, page 115. It is entitled, "An act more

effectually to provide for the punishment of certain crimes against the

United States, and for other purposes." I cite it simply on the

question of jurisdiction. The 14th section provides, that the trial of

all offences which shall be committed upon the high seas or elsewhere,

out of the limits of any State or district, shall be in the district

where the offender is apprehended, or into which he may be first

brought. The twenty-fifth section of this act repeals all acts, or

parts of acts, inconsistent therewith.

Under the act of 1790 a question of construction arose, in the Supreme

Court of the United States, as to whether robbery on the high seas was

punishable with death. It was settled (3 Wheaton, 610) that the statute

did punish robbery with death if committed on the high seas, even

though robbery on land might not incur that extreme penalty. I refer to

the United States _v._ Palmer, 3 Wheaton, 610; the United States _v._

Jones, 3 Washington's Circuit Court Reports, 209; United States _v._

Howard, Id., 340; 2 Whar. Crim. Law, fifth ed., p. 543.

I have been thus particular in referring to the laws under which this

indictment is framed, in order that you may perceive precisely the

inquiry which we now have to make. It is, whether the statutory law of

the United States has or has not been violated? You have all,

undoubtedly, heard more or less of the crime of piracy as generally and

popularly understood. A pirate is deemed by the law of nations, and has

always been regarded as the enemy of the human race,--as a man who

depredates generally and indiscriminately on the commerce of all

nations. Whether or not the crime alleged here is piracy under the law

of nations, is not material to the issue. It might well be a question

whether, in regard to depredations committed on the high seas, by

persons in a foreign vessel, under the acknowledged authority of a

foreign country, Congress could effectively declare that to be piracy

which is not piracy under the law of nations; but it is not material in

this case. Congress is unquestionably empowered to pass laws for the

protection of our national commerce and for the punishment of those who

prey upon it. Congress has done so in the statutes to which I have

referred. If the words "pirate and felon" were stricken out from the

act of 1790, and if the statutes simply read that any person committing

robbery on the high seas should suffer death, the law would be

complete, and could be administered without reference to what

constitutes piracy by the law of nations.

Having thus referred to the statutory law under which this indictment

was found, I will state as succinctly as possible, with due regard to

fullness, fairness, and completeness, the facts in this case. In the

middle or latter part of May, 1861, a number of persons in the city of

Charleston, South Carolina, conceived the purpose of purchasing or

employing a vessel to cruise on the Atlantic with the object of

depredating on the commerce of the United States. They proceeded to the

fulfillment of that design by procuring persons willing to act as

captain, officers, and crew of such piratical vessel. This there was at

first considerable difficulty in effecting, and it was not until many

men were thrown out of employment in Charleston, by the acts of South

Carolina and of what is called the Confederate Government, and by the

action of the United States Government in blockading the port of

Charleston and other Southern ports, that a crew could be found to man

this vessel. There were no shipping articles or agreement as to wages;

but it was understood that all were to share in the plunder or proceeds

arising from the capture of American vessels on the high seas. We shall

show to you that the prisoners at the bar were finally induced to

embark on this enterprise; that Captain Baker was one of the first to

engage in it; that he used exertions to obtain a crew, and succeeded,

after considerable difficulty. On Saturday, the first of June, 1861,

the crew were embarked on a small pilot boat and proceeded down to

opposite Fort Sumter, where they were transferred, in small boats, to

the schooner Savannah. We shall show, by the declarations of the

parties who stand charged here to-day, and also by the facts and

circumstances of the equipment of the vessel, the intent and purpose of

this voyage. The Savannah, a schooner of fifty-three or fifty-four

tons, was armed with cannon and small arms. Pistols and cutlasses were

provided for her men. On Sunday afternoon, the 2d of June, she sailed

from opposite Fort Sumter, her crew numbering about twenty men, all of

whom are here with the exception of six, who were detached to form a

prize crew of the brig Joseph. On the morning of Monday, the 3d of

June, a sail was descried; it was remarked among the crew that the

vessel, from her appearance, was undoubtedly a Yankee vessel, as they

termed it--a vessel owned in one of the Northern States of the Union.

She proved to be the brig Joseph, laden with sugar, and bound from

Cardenas, in Cuba, to Philadelphia. The Savannah, displaying the

American flag, gave chase. When within hailing distance, Captain Baker

spoke the Joseph, ordered her captain on board his schooner, and ran up

the rebel standard. Captain Meyer, of the Joseph, perceiving that the

Savannah was armed, and that her men were ready for assault, fearing

for his safety and that of his crew, obeyed the summons. A prize crew

was placed on board the Joseph--the captain of the Savannah declaring

that he "was sailing under the flag of the Confederate Government." The

Savannah proceeded on her cruise. In a few hours afterward, she

descried the United States brig-of-war Perry. Supposing her to be a

merchant vessel, she started in pursuit, fired a gun, and finally fired

several guns. On discovering, however, that the brig was a United

States vessel-of-war, she attempted resistance, Captain Baker saying to

his men, "Now, boys, prepare for action!" When within speaking

distance, the commander of the Perry asked Captain Baker whether he

surrendered, and he replied that he did. The prisoners were transferred

from the Savannah to the Perry; thence to the United States steam

ship-of-war, Minnesota. The Savannah was then taken in charge by a

prize crew from on board the Perry and brought to New York. The

Minnesota, with the prisoners on board, proceeded--on her way to New

York--to Hampton Roads, where, after two days, she transferred the

prisoners to the Harriet Lane, which delivered them at New York. Here

they were given in charge to the United States Marshal. On my official

application, a warrant was issued by a United States Commissioner, and

under it the Marshal, as directed, took formal possession of and held

the prisoners. They were committed for trial and were, within a few

weeks afterwards, indicted by the United States Grand Jury. Although

the guilt and mischief of both piracy and treason may be embraced in

the crime and its consequences, the charge is not one of treason, nor

necessarily of piracy, as commonly understood, but the simple one of

violating the statutes to which I have referred.

The learned District Attorney here stated the evidence which he was

prepared to submit, with the decisions upon which he would rest the

case, and he proceeded to cite and comment upon the following, among

other authorities:--U.S. _v._ Furlong, 5 Wheaton, 184; U.S. _v._

Klintock, 5 _Id._, 144; Nueva Anna and Liebre, 6 _Id._, 193; U.S. _v._

Holmes, 5 _Id._, 412; U.S. _v._ Palmer, 3 _Id._, 610; U.S. _v._ Tully,

1 Gallison, first ed., 247; U.S. _v._ Jones, 3 Wash. Circuit Court

Rep., 209; U.S. _v._ Howard, 3 _Id._, 340; U.S. _v._ Gibert, 2 Sumner,

19; U.S. _v._ Smith, 5 Wheaton, 153; 3 Chitty's Criminal Law, 1128; 1

Kent's Com., 25, note _c_, and cases cited; 1 _Id._, 99, 100, and cases

cited; 1 _Id._, 184, 185, 186, 187, 188, 191, and cases cited.

Decisions as to jurisdiction: U.S. _v._ Hicks, MS. Judge Nelson; Irvine

_v._ Lowry, 14 Peters, 293, 299; Sheppard _v._ Graves, 14 Howard, 505;

D'Wolf _v._ Rabaud, 1 Peters, 476, 498. Mr. SMITH then continued as

follows:

The atrocity of the authors and leaders of this rebellion against a

government whose authority has never been felt, with the weight of a

feather, upon the humblest citizen, except for crime, has been

portrayed so much more eloquently than I could present it, that I

should not indulge in extended remarks on that subject, even if

relevant to the case. Ignominy and death will be their just portion.

The crime of those who have acted as the agents and servants of these

leaders is also a grave one--a very grave one--mitigated, no doubt, by

ignorance, softened by a credulous belief of misrepresentations, and

modified by the very air and atmosphere of the place from which these

prisoners embarked. It is, undoubtedly, a case where the sympathies of

the jury and of counsel--whether for the prosecution or the

defence--may be well excited in reference to many, if not all, of the

prisoners at the bar, misguided and misdirected as they have been. But

it will be your duty, gentlemen, while allowing these considerations to

induce caution in rendering your verdict, to disregard them so far as

to give an honest and truthful return on the evidence, and on the law

as it will be stated to you by the Court. This is all the prosecution

asks. As to the policy of ultimately allowing the law to take its

course in this case, it is not necessary for us to express any opinion

whatever. That is a question which the President of the United States

must determine if this trial should result in a conviction. It is for

him, not for us. You must leave it wholly to those who are charged with

high duties, after you shall have performed yours.

The case is of magnitude; but the issue for you to determine is simple.

Leaving out of view the alleged authority under which the prisoners

claim to have acted, you will inquire, in the first instance, whether

the seizure of the Joseph and her lading was robbery. You will be

unable to discover that any element of the crime was wanting. If no

actual force was employed in compelling the surrender, it is enough

that the captain and crew were put in bodily fear. So the traveler

delivers his purse in obedience to a request, and the crime is

complete, although violence proves unnecessary. That the humble owners

of the brig were despoiled of their property--how hardly earned we know

not--will not be disputed. Nor is it material that the proceeds were to

be shared between the prisoners and absent confederates. As to the

question of intent, it cannot be denied that the prisoners designed to

do, and to profit by, what they did. They are without excuse, unless

possessed of a valid commission. This brings us to the plea of

authority.

A paper, purporting to be a letter of marque, signed by Jefferson

Davis, was found on the Savannah. Such a commission is of no effect, in

our courts of law, unless emanating from some government recognized by

the Government of the United States. The political authority of the

nation, at Washington, has never recognized the so-called Confederate

States as one of the family of nations. On the contrary, it resists

their pretensions, and proclaims them in rebellion. In this position of

affairs, a court of justice will not, nor can you as its officers,

regard the letter as any answer to the case which the prosecution will

establish. Such is the law. It is so determined in decisions of the

Supreme Court of the United States, which I have just cited.

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