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

Mr. Larocque: Does the counsel cite these cases to show that want of jurisdiction must be pleaded in abatement?

Mr. Evarts: It is the rule in civil cases. Now, your honors will see that the question forms no part of the issue of guilty or not guilty.

Mr. Larocque: Will you look at the last averment in your indictment?

Mr. Evarts: I repeat, that it forms no part of the body of the crime, and no part of the issue of guilty or not guilty, that is to be determined by the Jury. If the Jury, upon the issue of guilty or not guilty, should pass upon the question as to what District the defendant had been first brought into, or as to what District he was apprehended in, and should find that this Court had no jurisdiction, he would be entitled to an acquittal on that ground, and that acquittal would be pleadable in bar if he were put on trial in the proper District; for, there is no mode, that I know of, of extricating this part of the issue from the issue on the merits of the case, when it is decided by a verdict. There is no possibility of discriminating in the verdict. There is no special verdict and no question reserved. It is a verdict of not guilty. And, therefore, on the question of regularity of process, the crime itself is disposed of—the whole result of the judicial investigation being that the trial should have been in another District.

But, where the locality of the crime forms a part of its body, of course, the Government, undertaking to prove a crime to have been committed within a District, rightly fails if the crime is shown not to have been committed within that District.

Mr. Larocque: And then can they not try it where it was committed?

Mr. Evarts: I should not like to be the District Attorney who would try it.

Now, if the Court please, upon the matters connected with the merits of this trial, the first proposition to which I ask your honors' attention is—that the Act of April 30th, 1790, in the sections relating to piracy, is constitutional, and that the evidence proves the crime as to all the prisoners under the eighth section, and as to the four citizens under the ninth section. The crime is also charged and proved against all the prisoners under the third section of the Act of May 15th, 1820.

I do not know that your honors' attention has been drawn to the distinction between the eighth section of the Act of 1790 and the third section of the Act of 1820. The counts in the indictment cover both statutes, and both statutes are in force. The words of the eighth section of the Act of 1790 are these:

"If any person or persons shall commit, upon the high seas," "murder or robbery," "every such offender shall be deemed, taken and adjudged to be a pirate and felon, and, being thereof convicted, shall suffer death."