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

ARGUMENT OF MR. EVARTS.

Mr. Evarts said: If the Court please, I shall hardly find it necessary, in stating the propositions of law for the Government, to consume as much time as has been, very usefully and very properly, employed by the various counsel for the prisoners in asking your attention to the views which they deem important and applicable in defence of their clients. The affirmative propositions to which the Government has occasion to ask the assent of the Court, in submitting this case to the Jury, are very few and simple. Your honors cannot have failed to notice that all the manifold, and more or less vague and uncertain, views of ethics, of government, of politics, of moral qualifications, and of prohibited crimes, which have entered into the discussion of the particular transaction whose actual proportions and lineaments have been displayed before the Court and Jury, are, in their nature, affirmative propositions, meeting what is an apparently clear and simple case on the part of the Government, and requiring to be encountered on our part more by criticism than by any new and positive representation of what the law is which is to govern this case under the jurisprudence of the United States.

I shall first ask your honors' attention to the question of jurisdiction, which, of course, separates itself from all the features and circumstances of the particular crime. Your honors will notice that this question of jurisdiction does not, in the least, connect itself with the subject or circumstances of the crime, as going to make up its completeness, under the general principles which give the locality of the crime as the locality of the trial. With these principles, whether of right and justice, or of convenience for the adequate and complete ascertainment of the facts of an alleged crime, we have no concern here. The crime complained of is one which has no locality within the territorial jurisdiction of the United States, and assigns for itself, in its own circumstances, no place of trial. From the fact that the crime was completed on the high seas, equally remote, perhaps, from any District the Courts of which might have cognizance of the transaction, there are no indications whatever, in its own circumstances, pointing out the jurisdiction for its trial. It is, therefore, wholly with the Government, finding a crime which gives, of itself, no indication of where, on any principle, it should be tried, to determine which of all the Districts of the United States in which its Courts of Judicature are open,—all having an equal judicial authority, and all being equally suitable in the arrangement of the judicial establishment of the Union,—it is entirely competent, I say, for the Government to determine, on reasons of its own convenience, which District, out of the many, shall gain the jurisdiction, and upon what circumstances the completeness of that jurisdiction shall depend.

It is not at all a right of the defendant to claim a trial before a particular tribunal, nor are there any considerations which should prevent the selection of the place of jurisdiction through whatever casual agency may be employed in that selection. In the eye of the law, the Judges are alike, and the Districts are alike. Congress, considering the matter thus wholly open, in order that there might be no contest open for all the Districts, and assuming that there would be some natural circumstance likely to attend the bringing of the offender within the reach of civil process, when a crime had been committed outside of the civil process of every nation, determined, by the 14th section of the Crimes Act of March 3d, 1825, which gives the law of jurisdiction in this case, that the trial should be "had in the District where the offender is apprehended, or into which he may be first brought." Nor is it a true construction of this statute to say that the law intends that the cognizance of the crime—all of the Districts being equally competent to try it, and there being nothing in the crime itself assigning its locality as the place of trial—shall belong exclusively to that Court which shall first happen to get jurisdiction by the actual bringing of the offender within its operation. If that be true, it is apparent that neither one of the Districts thus differently described has jurisdiction exclusively of the other. Now, the language of the statute certainly gives this double place of trial in the alternative; and it is very difficult to say what principle either of right, of convenience, or of judicial regularity, is offended by such a construction and application of the statute. Accordingly, I understand it to have been held by Mr. Justice Story, in the case of The United States vs. Thompson (1 Sumner, 168), that there were these alternative places of trial; and, as a matter of reasoning, he finds that such arrangement is suitable to the general principles of jurisprudence, and to the general purposes of the statute. Now, if this be so, then, as we come, in this District, within one of the alternatives of the statute, and as this District is confessedly the one in which the apprehension of the offenders took place, we are clear of any difficulty about jurisdiction.

The case of Hicks, decided here, was, perhaps, not entirely parallel to the one now under consideration. But, let us see how far the views and principles there adopted go to determine this case, in the construction of the statute in any of its parts. Hicks had committed a crime on the high seas—in the immediate vicinity, I believe, of our own waters. Making his way to the land, he proceeded unmolested to Providence, in Rhode Island. The officers of justice of the United States, getting on his track, pursued him to Rhode Island, and there he was found, unquestionably within the District of Rhode Island. They did not obtain his apprehension by legal process there, and thus bring him within the actual exercise of the power of a Court of the District of Rhode Island; but they persuaded him, or in some way brought about his concurrence, to come with them into the District of New York, and here the process of this Court was fastened upon him, and he was brought to trial on the capital charge of piracy. On a preliminary plea to the jurisdiction of the Court, and on an agreed state of facts, to the effect, I believe, of what I have stated, the matter was considerably argued before your honor, Judge Nelson, on behalf of the prisoner; but your honor, as I find by the report, relieved the District Attorney from the necessity of replying, considering the matter as settled, under the facts of the case, in the practice of the Court. Now, the argument there was, that the District of Rhode Island was the District where the offender was apprehended; and it could not be contended that the Southern District of New York was the one into which he was first brought by means other than those of legal process. And the argument was, that the crime for which he was to be tried here, being a felony, any control of his person by private individuals was a lawful apprehension, and one which might be carried out by force, if necessary; and that, therefore, there was, in entire compliance with the requisition of the statute, an apprehension within the District of Rhode Island. If, under the circumstances of that case, that view had been sustained by the Court, it could not have been, I think, pretended that the Courts of this District had concurrent jurisdiction, because of Hicks having been first brought into this District. The whole inquiry turned on the question whether he was apprehended in the District of Rhode Island.

In considering the case, your honor, Judge Nelson, recognized, as I suppose, the view of the alternative jurisdiction which I have stated. You said to the District Attorney: "We will not trouble you, Mr. Hunt. The question in this case is not a new one. It is one that has been considered and decided by several members of the Supreme Court, in the course of the discharge of their official duties. It has repeatedly arisen in cases of offences upon the high seas, and the settled practice and construction of the Act of Congress is, that in such cases the Court has jurisdiction of the case, in the one alternative, in the District into which the offender is first brought from the high seas—meaning, into which he is first brought by authority of law and by authority of the Government. In cases where the offender has been sent home under the authority of the Government, the Courts of the District into which he is first brought, under that authority, are vested with jurisdiction to try the case. The other alternative is, the District in which the prisoner is first apprehended—meaning an apprehension under the authority of law—under the authority of legal process. This interpretation of the Statute rejects the idea of a private arrest, and refers only to an arrest under the authority of law and under legal process. It is quite clear, in this case, that no District except the Southern District of New York possesses jurisdiction of the offence; for here the prisoner was first apprehended by process of law. We do not inquire into anything antecedent to the arrest under the warrant in this District, because it has no bearing whatever upon the question of the jurisdiction of the Court. We have no doubt, therefore, that the Court has jurisdiction of the case, and that this is the only District in which the prisoner can be tried."

Now I owe the Court and my learned friend, Mr. Lord, an apology for having supposed and stated that the provisions of the Act of March 3d, 1819, giving certain powers to the naval officers of the United States "to protect the commerce of the United States," as is the title of the Act, were not now in force. I was misled. The Act itself was but temporary in its character, being but of a year's duration. By the Act of May 15th, 1820, the first four sections of the Act of March 3d, 1819, were temporarily renewed. But afterwards, by the Act of January 30th, 1823, those four sections were made a part of the permanent statutes of the country. The substantial part of the Act of March 3d, 1819, namely, the fifth section, which defined and punished the crime of piracy, was repealed, and replaced by the Act of May 15th, 1820, and has never reappeared in our statutes.

Judge Nelson: It is the fifth section of the Act of 1819 that is repealed.

Mr. Evarts: Yes; that Act is found at page 510 of the 3d volume of the Statutes at Large.

Mr. Lord: All that relates to the apprehension of offenders is in force.