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

The Court : I understand the admission as covering all the prisoners, as to the intent.

Mr. Brady : That she was fitted out as a privateer—the enterprise, and capture of the Joseph.

Mr. Smith : Is the admission that all were engaged in a common enterprise, and all participators in the fact?

The Court : So I understand the admission, without any qualification.

Mr. Smith : Do we understand the counsel as assenting to the Court's interpretation as to the breadth of the admission?

Mr. Brady : There is no misunderstanding between the Court and the counsel; but the learned gentlemen seem not to be satisfied with the admission we made. The intent is, of course, an element in the crime of piracy. There must be an animus furandi established, in making out the crime; and that is, of course, a question about which we have a great deal to say, both as to the law and the fact, at a subsequent stage of the case. When the counsel proposed to prove the firing of cannon, and armed resistance, we said—what we say now—that we do not intend to dispute the facts proved by the witness on the stand: that the Savannah was, at the port of Charleston, openly and publicly, without any secresy (to use the witness's language, it was "posted"), fitted out as a privateer, in the service of the Confederate States, under their flag, and by their authority; that it was so announced, and that these men were shipped on board of her as a privateer. All that, there is no intention to dispute at all; and, of course, that all the men who shipped for that purpose were equally responsible for the consequences, we admit.

Mr. Evarts : Do you admit that all shipped for the purpose? If we can prove their conduct, concurring in this armed resistance, then I show that they were not there under any deception about its being a peaceable mercantile transaction. I may be met by the suggestion that, so far as the transaction disclosed about the Joseph is concerned, there was not any such depth of purpose in this enterprise as would have opposed force and military power in case of overhauling the vessel. It would seem to me, with great respect to the learned Court, that when the facts of the transaction can be brought within very narrow compass, as regards time, it is safer that we should disclose the facts than that admissions should be accepted by the Court and counsel when there is so much room for difference of opinion as to the breadth of the admission. We may run into some misunderstanding or difference of view as to how far the actual complicity of these men, or the strength of their purpose and concurrence in this piratical (as we call it) enterprise, was carried.

Mr. Lord : If your honor will permit, it appears to me that this is exceedingly plain. The notoriety and equipment of the vessel—all the character of the equipment—the sailing together—all that is covered by the admission of my friend, Mr. Brady. So far as to there being a joint enterprise up to the time of the capture of the Joseph, it seems to me there is nothing left. Now, what do they wish? They wish to show, what is in reality another, additional, and greater crime, after this capture of the Joseph, for which we alone are indicted, as they say, for the purpose of showing that we assented to this, which we went out to do.

Your honor knows that, if we have any fact to go to the jury, they are getting into this case a crime of a very different character and of a deeper dye, for which they have made no charge, and which does not bear upon that which, if a crime at all, was consummated in the capture of the Joseph—the only crime alleged in the indictment. I submit that they cannot, with a view of showing complicity in a crime completed, show that the next day the men committed another crime of a deeper character. I think it is not only irrelevant, but highly objectionable.

The Court : We are of opinion that this testimony is superfluous, and superseded by the admission of the counsel. I understand the admission of the counsel to be, that the vessel was fitted out and manned by common understanding on the part of all the persons on board, as a privateer; and that in pursuance of that design and intent, and the completion of it, the Joseph was captured. That is all the counsel can ask. That shows the intent—all that can be proved by this subsequent testimony; and unless there is some legitimate purpose for introducing this testimony, which might, of itself, go to show another crime, we are bound to exclude it.

Mr. Evarts : We consider the decision of your honor rests upon that view of the admission, and we shall proceed upon that as being the admission.

The Court : Certainly; if anything should occur hereafter that makes it necessary, or makes it a serious point, the Court will look into it.

Examination resumed by District Attorney Smith.

Q. You stated, I believe, that it was after 8 o'clock in the evening when the boat of the Perry came to the Savannah?

A. Yes, sir.

Q. Who was in that boat?

A. There was a gentleman from the Perry; I do not know that I ever saw him before; an officer and boat's crew,—I suppose 15 or 20 men.

Q. One of the United States officers?

A. Yes, sir; some officer from the brig Perry boarded us, and demanded us to go on board the Perry.

Q. Where were the crew of the Savannah at the time the boat came from the Perry?

A. All on deck, sir.

Q. At the time the Savannah was running down the Joseph, what time was it?

A. We got up to the Joseph somewhere late in the forenoon, as near as my memory serves me.

Q. I want to know whether all the officers and crew of the Savannah were on duty, or not, at the time you were running down?

A. Yes, sir; there were some walking the deck, and some lying down, right out of port; the men, after taking a drink, did not feel much like moving about; they were all on deck.

Q. Was there any refusal to perform duty on the part of any one?

A. No, sir; all did just as they were told.

Q. How was the Savannah armed, if armed at all?

A. I never saw all her arms, sir.

Q. What was there on deck?

A. A big gun on deck.

Q. What sort of a gun?

A. They said an eighteen-pounder; I am no judge; I never saw one loaded before.

Q. A pivot gun?

A. No, sir, not much of a pivot. They had to take two or three handspikes to round it about.

Q. It was mounted on a carriage, the same as other guns?

A. Yes, sir.

Q. With wheels?

A. I believe so; I took no notice of the gun.

Q. Reflect, and tell us how the gun was mounted?

A. It was mounted so that it could be altered in its position by the aid of handspikes; it could be swung by the use of handspikes.

Q. The gun could be swung on the carriage without moving the carriage?

A. I do not know that part of it; I know the men complained that moving the gun was hard work.

Q. What other arms had you on board?

A. I saw other arms on board,—pistols, I believe, and cutlasses.

Q. How many pistols did you see?

A. I saw several; I do not know how many.

Q. About how many cutlasses?

A. I cannot say how many; I saw several, such as they were—cutlasses or knives, such as they were.

Q. Where were the cutlasses?

A. Those were in the lockers that I saw; I never saw them until Monday noon, when we ran down the Joseph; I saw them then.