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

by A. F. Warburton

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.