ARGUMENT ON THE JURISDICTION.

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.

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 · 第 29 / 77 题