Adolphus Warburton - 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

Q. In the open ocean?

A. Yes, sir.

Q. You were all transferred to the Minnesota?

A. Yes, sir.

Q. What did the Minnesota do?

A. We were confined on board the Minnesota.

Q. When was it you went on board the Minnesota?

A. I think on Wednesday or Thursday; I forget which.

Q. You were captured on Monday night?

A. Yes, sir, the 3d of June, and I think it was on Wednesday or Thursday (I do not know which) we went on board the Minnesota.

Q. How long did you lie off Charleston?

A. Several days.

Q. At anchor?

A. The ship was under way sometimes, steering off and on the coast.

Q. How far from Charleston?

A. I think in 8 or 9 fathoms of water, 8 or 10 miles from the land.

Q. Where did the Minnesota proceed from there?

A. To Hampton Roads.

Q. Were all the persons you have identified here on board the Minnesota?

A. Yes, sir.

Q. State the facts as to transfer from ship to ship?

A. We were transferred from the Savannah to the Perry; from the Perry to the Minnesota; from the Minnesota to the Harriet Lane.

Q. All of you?

A. Yes, sir; all.

Q. State, as near as you can, where, at Hampton Roads, the Minnesota came?

A. She came a little to the westward of the Rip Raps; I suppose Sewall's Point was bearing a little to the west of us, 3/4 or 1/2 a mile to the west of us; I should judge west by south. I am well acquainted there. We call it 24 miles from Old Point Comfort.

Q. What was the nearest port of entry to where you were anchored?

A. Norfolk, Va.

Q. How far from Fortress Monroe?

A. A mile, or 1-1/8 or 1-1/4—not a great distance.

Q. How long did you lie there before you were transferred to the Harriet Lane?

A. Several days. I did not keep any account. Some two or three days.

Q. And you were brought to this port in the Harriet Lane?

A. Yes, sir.

Q. And all the prisoners you identified to-day were brought here?

A. Yes, sir, to the Navy Yard, Brooklyn; there transferred to a ferry-boat and brought to the Marshal's office here.

Mr. Evarts : If the Court please, we deem it a regular and necessary part of our proof to show the manner of the seizure of this vessel by the U.S. ship Perry; to show that it was a forcible seizure, by main force, and against armed forcible resistance of this vessel. Besides being almost a necessary part of the circumstances of the seizure, it is material as characterizing the purpose of this cruise, and the depth and force of the sentiment which led to it, and the concurrence and cohesion of the whole ship's crew in it.

The Court : What necessity for that after what has been conceded on the other side?

Mr. Evarts : They concede that she was seized; but do they concede that, as against all those accused, the crime of piracy is proved—the concurrence of the whole—and that the only question is, whether the protection claimed from what is called the privateering character of the vessel shields them?

The Court : I understand the admission to be broad.

Mr. Evarts : If as broad as that, that there is no distinction taken between the concurrence of these men, it is sufficient.

Mr. Brady : We have said nothing about that?

The Court : So far as the capture is concerned, that does not enter into any part of the crime, and has no materiality to the elements of this case at all. The force that may enter into the crime is in the capture by the privateer of the Joseph. I do not want to confound this case by getting off on collateral issues; and so far as concerns the animus, or intent, I understand it to be admitted.

Mr. Evarts : My learned friends say that on this point they have not said anything as to the jointness or complicity of the parties in this crime. Now I think your honor would understand that a concurrence in resistance, by force, of an armed vessel of the United States, bearing the flag of the United States, and undertaking to exercise authority over it, would show their design.

The Court : Have you any question as to the facts?

Mr. Evarts : The Government have all the facts. Stripped of all the circumstances that attended the actual transaction, it would appear as if, when the brig Perry came along, these people at once surrendered, gave up, and submitted quietly and peacefully. As against that, we submit the Government should protect itself by proving the actual transaction.

Mr. Brady : One thing is certain, that if these men committed any offence whatever, it was committed before they saw the Perry; it was an act consummated and perfect, whatever may have been its legal character, and whatever may have been the consequences which the law would attach to it. The proof of the capture of the Savannah by the Perry is in no way relevant, except in proving jurisdiction, for which purpose alone is it of any importance that it should be mentioned here. And whether the capture was effected after a chase, or without one, against resistance, or by the consent of the persons to that from which they could not escape, is of no possible consequence in any aspect of the case. Whether there was firing or armed resistance can make no difference. It cannot bear on the question whether all the defendants are responsible for the acts of each other, like conspirators. It may be, as the counsel for the prosecution holds, that when you show they did set out on a common venture each became the agent of the other. That may be, and they must take the responsibility of trying the case on such a theory of the law as they think proper. We would not feel any hesitation in saying they all acted with a common design, only that there are some of the prisoners that we have had no communication with, and it may be that some of them went on board without knowing what the true character of the enterprise was. It is sufficient now to object that the question, whether there was resistance or not, after the Perry came up, is of no consequence in deciding the question of whether the men are responsible.

Mr. Evarts : My learned friend is certainly right in saying that the crime was completed when the Joseph was seized; but it does not follow that the proof of what the crime was, and what the nature of the act was, is completed by the termination of that particular transaction. You might as well say that the fact of a robbery or theft has been completed by a pickpocket or highwayman when his victim has been despoiled of his property; and that proof of the crime prohibits the Government from showing the conduct of the alleged culprit after the transaction—such as evading the officer, running away from or resisting the officer.

The Court : You do not take into account the admission of the counsel. I believe the subsequent conduct of the privateers, if the intent with which they seized and captured the Joseph was in question, would be admissible; but when this is admitted broadly by the counsel for the defendants, I do not see why it is necessary to go into proof with a view to make out that fact, except to occupy the time of the Court.

Mr. Evarts : I am sure your honor will not impute to us any such motive. The point of difficulty is: my learned friends do not admit the completeness of the crime by all the prisoners, subject only to the answer whether the privateering character of the enterprise protects them. The moment that is admitted, I have no occasion to dwell upon the facts.