The District Attorney, Mr. Smith, stated that he would prove that every
thing done from that time onward was done in pursuance of a design then
conceived of sending the prisoners, to the port of New York.
_Mr. Larocque_ contended that the naked question of jurisdiction, or
want of jurisdiction, could not be affected by showing that the
prisoners were taken on board a particular vessel, with or without a
particular design. All that affected that question was, the place where
the prisoners were first taken to after they were captured. The only
question their honors could consider was, whether, after their
apprehension, the prisoners were or were not brought within the
District of Virginia, so as to give the Court of Virginia jurisdiction,
before they were brought to New York. The fact that Commodore Stringham
did, or did not, entertain in his own mind a design to bring the
prisoners to New York, was of no relevancy whatever. Their objection
was based on the broad ground, that the statute had fixed the only
District that was to have jurisdiction of these criminals, namely, the
District within which they are first brought. If they were first
brought within the District of Virginia, the design which the Commodore
might have entertained made no manner of difference, and the fact could
not be got rid of by any evidence to show that the design was not to
put themselves in that dilemma.
_Mr. James T. Brady_ submitted an argument on the same side. He said
that the true test of the correctness of the objection could be
ascertained thus: If a man were arrested anywhere on the high seas,
supposed to be amenable to the Act of 1790, and was brought into a port
of the United States, within a Judicial District of the United States,
could he not demand, under the Act of Congress, to be tried in that
District? Could the commander of the vessel supersede that Act of
Congress, and say he would take the prisoner into the port of New York,
or any other port? What answer would that be to a writ of _habeas
corpus_ sued out by either of these men confined on that ship, within
that Judicial District? If any such rule as that could prevail, the Act
of Congress would become perfectly nugatory and subservient to the will
of the individual who apprehended prisoners on the high seas. If he had
started on a cruise round the world, he could carry them with him, and,
after returning to the United States, could take them into every
District till he came to the one that suited him. Mr. Brady, therefore,
claimed that it was wholly immaterial what might have been the design
of Commodore Stringham; and that the question of jurisdiction was
determined by the physical fact, as to what was the first Judicial
District into which these men were brought after being apprehended on
the high seas.
_Mr. Evarts_ considered that this was a question rather of regularity
of discussion, than a question to be now absolutely determined by the
Court. He supposed that they were entitled to lay before the Court all
the attendant facts governing the question of, whether the introduction
of these criminals from the point of seizure on the high seas was,
within the legal sense, made into the District of New York, or into
that of Virginia--whether the physical introduction of prisoners, in
the course of a voyage toward the port of New York, into the roads at
Hampton, is, within the meaning of the law, a bringing them into the
District of Virginia. If the substantial qualification of the course of
the voyage from the point of seizure to the place of actual debarcation
was to affect the act, this was the time for the prosecution to produce
that piece of evidence; and he supposed that that important inquiry
should be reserved till the termination of the case, when the proof
would be all before the Court. He suggested that no large ship could
enter the port of New York without physically passing through what
might be called the District of New Jersey; and argued that, in no
sense of the act, and in no just sense, should these prisoners be tried
in New Jersey, because the ship carrying them had passed through her
waters.
_Mr. Larocque_, for the defendants, contended that the arrest of the
parties as criminals was at the moment when they were taken from on
board the Savannah, placed on board the Perry, and put in irons. The
learned gentleman (Mr. Evarts) had said that it would be impossible to
bring them within the District of New York without first bringing them
within the District of New Jersey; but that objection was met by the
fact that, over the waters of the bay of New York, the States of New
Jersey and New York exercised concurrent jurisdiction, and therefore
they came within the District of New York, to all intents and purposes.
He proposed to refer to the authorities on which the point rested.
In this case, the place where the arrest was made was the Perry, a
United States cruiser, which, in one sense, was equivalent to a part of
the national soil; and he held that the idea under this statute was,
that their apprehension and confinement from the moment they were
arrested as criminals was complete, without being required to be under
legal process, it being sufficient that they were arrested by the
constituted authorities of the United States. The moment they were
brought within a Judicial District of the United States, that moment
the jurisdiction attached; and no jurisdiction could attach anywhere
else. This was an offence committed on the high seas. All the Districts
of the country could not have concurrent jurisdiction over it; and this
very case was an exemplification of the injustice that would result
from permitting an officer, in times of high political excitement, to
have the privilege, at his mere pleasure or caprice, of selecting the
place of jurisdiction, and the place of trial. Suppose these prisoners,
instead of being landed at the first place where the vessel touched,
could have been taken up the Mississippi river in a boat, and up the
Ohio river in another boat, and landed within the District of Ohio, for
the purpose of being tried there,--would not their honors' sense of
justice and propriety revolt at that? The same injustice would result
in a different degree, and under different circumstances, if, after
taking these prisoners to Virginia and ascertaining the difficulties in
the way of their being tried there, the officer could change their
course and bring them into the port of New York. The prisoners were
entitled to the benefit of being tried in the District where they were
first taken, in preference to any other District; and justice would be
more surely done by holding a strict rule on that subject, by requiring
that the facts should control, and that no mere intention on the part
of the captors should be allowed to govern.
One of the cases on this subject which had produced a misapprehension
of the question was that of the United States _vs._ Thompson, 1st
Sumner's Reports, which was an indictment for endeavoring to create a
revolt, under the Act of 1790. It was in the Massachusetts District.
The facts in the case were these:--"The vessel arrived at Stonington,
Connecticut, and from thence sailed to New Bedford, Massachusetts,
where the defendant was arrested, and committed for trial. It did not
appear that he had been in confinement before. Judge Story ruled on the
question of jurisdiction. He said: 'The language of the Crimes Act of
1790 (Cap. 36, sec. 8) is, that 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 in which the offender is apprehended,
or into which he shall first be brought. The provision is in the
alternative, and therefore the crime is cognizable in either District.
And there is wisdom in the provision; for otherwise, if a ship should,
by stress of weather, be driven to take shelter temporarily in any port
of the Union, however distant from her home port, the master and all
the crew, as well as the ship, might be detained, and the trial had far
from the port to which she belonged, or to which she was destined. And
if the offender should escape into another District, or voluntarily
depart from that into which he was first brought, he would, upon an
arrest, be necessarily required to be sent back for trial to the
latter. And now there is no particular propriety, as to crimes
committed on the high seas, in assigning one District rather than
another for the place of trial, except what arises from general
convenience; and the present alternative provision is well adapted to
this purpose.'"
This was noticed, in the first place, in the case of the United States
_vs._ Edward C. Townsend, of which he (Mr. Larocque) held in his hand a
copy of the exemplication of the record. Townsend was charged, in the
District Court of Massachusetts, with piracy, in having been engaged in
the slave trade, in 1858. He was captured on board the brig Echo, by a
United States cruiser. That vessel first made the port of Key West,
putting in there for water; and thence proceeded to Massachusetts,
where the prisoner was landed, taken into custody under a warrant of
the Commissioner, and the matter brought before the Grand Jury, for the
purpose of having an indictment found against him. In that case Judge
Sprague charged the Grand Jury that, under the law, the prisoner could
only be tried in Key West, because that was the first port which the
vessel had made after he had been captured and confined as a prisoner.
Under that instruction the Grand Jury refused to find a bill of
indictment; and thereupon the District Attorney (Mr. Woodbury) applied
to the court for a warrant of removal, to remove him to Key West, for
trial; and also to have the witnesses recognized to appear at Key West,
to testify on the trial. The counsel read a note from Mr. Woodbury on
the subject, showing that Mr. Justice Clifford, of the Supreme Court of
the United States, sat and concurred with Judge Sprague in granting the
warrant of removal. He referred also to another case, decided by Judge
Sprague--the United States _vs._ Bird--volume of Judge Sprague's
Decisions, page 299: "This indictment alleged an offence to have been
committed on the high seas, and that the prisoner was first brought
into the District of Massachusetts. Questions of jurisdiction arose
upon the evidence. The counsel for the prisoner contended that the
offence, if any, was committed on the Mississippi river, and within the
State of Louisiana; and, further, that if committed beyond the limits
of that State, the prisoner was not first brought into this District.
Sprague, J., said that, if an offence be committed within the United
States, it must be tried in the State and District within which it was
committed. Constitution Amendment 6, If the offence be committed
without the limits of the United States, on the high seas, or in a
foreign port, the trial must be had in the District 'where the offender
is apprehended, or into which he may be first brought.'--Stat. 1790,
cap. 9, sec. 8; Stat. 1825, cap. 65, sec. 14. By being brought within a
District, is not meant merely being conveyed thither by the ship on
which the offender may first arrive; but the statute contemplates two
classes of cases: one, in which the offender shall have been
apprehended without the limits of the United States, and brought in
custody into some Judicial District; the other, in which he shall not
have been so apprehended and brought, but shall have been first taken
into legal custody, after his arrival within some District of the
United States, and provides in what District each of these classes
shall be tried. It does not contemplate that the Government shall have
the election in which of two Districts to proceed to trial. It is true
that, in United States _vs._ Thompson, 1 Sumner, 168, Judge Story seems
to think that a prisoner might be tried either in the District where he
is apprehended, or in the District into which he is first brought. But
the objection in that case did not call for any careful consideration
of the meaning of the word 'brought,' as used in the statute; nor does
he discuss the question, whether the accused, having come in his own
ship, satisfies that requisition. In that case the party had not been
apprehended abroad; and the decision was clearly right, as the first
arrest was in the District of Massachusetts. The statute of 1819, cap.
101, sec. 1 (3 U.S. Statutes at Large, 532), for the suppression of the
slave trade, is an example of a case in which an offender may be
apprehended without the limits of the United States, and sent to the
United States for trial. Ex parte Bollman _vs._ Swartwout, 4 Cranch,
136."
Their honors would observe that in both the cases cited, correcting the
manifest misapprehension of Judge Story, the point was distinctly held
that the question of jurisdiction was controlled exclusively by the
fact as to what District the prisoner was first brought into after his
arrest on the high seas, out of the United States, for a crime
committed on the high seas.
Judge Nelson stated that, as it was now late (half-past 5 P. M.), the
question might go over till morning.
The counsel on each side assenting, the Jury were allowed to separate,
with a caution from the Court against conversing in respect to the
case.
Adjourned to Thursday, at 11 A.M.