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

Again he testifies:

"Q. What was your object in transferring the prisoners from the Perry to the Minnesota?

"A. Sending them to a Northern port. The port of New York was the port I had in my mind to send them to, in the first ship from the station."

The prisoners, thus taken from a piratical vessel, he determined to carry to Norfolk, and to send them thence to the North for trial.

Now, if your honors please, my learned friend (Mr. Evarts) seems to say that there is no authority in law for a United States vessel to arrest pirates at sea; but if you will read the President's proclamation of 19th June you will find that he speaks of dealing with the persons who may be taken on board private armed ships as pirates. I will then ask to direct your attention to the Act of 1819 (3d Vol. Statutes, p. 510), where the President is authorized to employ public armed vessels to arrest offenders against that law. Therefore the capture of the prize was not only a part of the general law of nations, but it was particularly a thing which the commanders of ships of the United States were charged by the proclamation of the President, and by Act of Congress, to do.

I now approach the other question, as to where these prisoners were apprehended, or into what District they were first brought. That they were apprehended by a warrant from the United States Commissioner in New York, is not in dispute. The question, however, is, where they were first brought. If an officer having them in charge could anchor his vessel at Baltimore, and then at Philadelphia, and then bring his prisoners to New York, it would be putting the law entirely in his hands and dissipating all its force. In ordinary cases of crime the jurisdiction is local; and that for many reasons. One is, that a man is to be tried by his peers—meaning those of his own neighborhood,—and that it is easier to procure evidence at the place where the crime is committed. The law does not give to any man the power of assigning the place of trial. In the case of offences committed on the high seas, the law declares that the accused shall be tried in the District into which he is first brought.

Now, that tnese men were held by Capt. Stringham for the purpose of being tried as pirates, the evidence is clear. They were transferred from the Perry to the Minnesota, taken to the Norfolk station, and there kept in irons on board the Minnesota till they were transferred to the Harriet Lane. Could they have been detained there for trial? It might be an inconvenience if there was no Court. They might have had to be detained for a long time, or Congress might pass some law varying the jurisdiction. But as the law stood, if these men could have been landed and detained for trial, then that was the District in which they were necessarily to be tried. Can any one say that it was not as easy to have landed these men at Fortress Monroe, or at Hampton, as to transfer them to the Harriet Lane? And could they not have been detained there? You did not need a Court to detain them. They were taken by force, and might have been detained in the fortress till a trial should be had. There was no difficulty in their being landed in Virginia; and, moreover, there were in Western Virginia loyal Courts, where they could be tried.

Now, what is there that takes away the jurisdiction which belongs to that part of the country and not to this? "Why," says Captain Stringham, "I wanted to send them to New York." But had he any right to do so, when he had actually brought them to that station where his ship belonged, and where he was bound to keep her unless he returned her to the cruising ground? Remember that his ship remained there some time before the transfer was made. They were detained as prisoners there, and might as well have been detained on shore. Therefore, it seems to me, that unless the capturing officer, and not Congress, has the right to determine the place where the trial shall be had, these men were to be tried in the District of Virginia.

Now, it is no answer to this to say that, where a vessel is sailing along the shores of a District, a prisoner on board is not brought there in the proper sense of the word. The ship is not bound to stop and break up her voyage in order to have the Court designated where he is to be tried; but where the ship comes into port—where she stops at a port—I submit to your honors that this is the bringing contemplated by the statute.

I now approach, if your honors please, the merits of this case. The indictment is founded on two sections of the Crimes Act, originally two separate and very distinct statutes. It is the eighth section which makes robbery on the high seas piracy. That embraces the first five counts of the indictment, which are varied in mere circumstances. The remaining counts rest on the transcript into the legislation of this country, from the Act of 11 and 12 William III., to the effect, substantially, that if any citizen of the United States shall, under color of a commission from any foreign Prince or State, or under pretence of authority from any other person, commit acts of hostility against the United States, or the citizens thereof, that shall be piracy. In the argument which I shall address to your honors I will beg leave to characterize the first as piracy by the laws of nations, and the second as statutory piracy. But, before I discuss that subject, permit me to say that, as to eight of these prisoners, it is conceded that they do not come under that section, as the evidence for the prosecution shows that they were not citizens of the United States. So that, as to these eight, unless they are adjudged pirates under the eighth section, they must be acquitted, if they can justify themselves under the commission.