_Mr. Lord_: All that relates to the apprehension of offenders is in force.

_Mr. Evarts_: Yes; that is all in force. The Act is ent.i.tled, "An Act to protect the Commerce of the United States, and punish the Crime of Piracy." The first section provides, that "the President of the United States be, and hereby is, authorized and requested to employ so many of the public armed vessels as, in his judgment, the service may require, with suitable instructions to the commanders thereof, in protecting the merchant vessels of the United States and their crews from piratical aggressions and depredations." There is nothing in that section which is pertinent to this case. The second section provides, "that the President of the United States be, and hereby is, authorized to instruct the commanders of the public armed vessels of the United States to subdue, seize, take, and send into any port of the United States, any armed vessel or boat, or any vessel or boat, the crew whereof shall be armed, and which shall have attempted or committed any piratical aggression, search, restraint, depredation, or seizure, upon any vessel of the United States or of citizens thereof, or upon any other vessel, and also to retake any vessel of the United States or its citizens which may have been unlawfully captured upon the high seas."

This, your honors will notice, is entirely confined to authority to subdue the vessel and take possession of it, and send it in for the adjudication and forfeiture which are provided in the fourth section.

The third section gives the right to merchant vessels to defend themselves against pirates.

There is nothing in the Act which gives to the officers of the Government the power, or enjoins on them the duty, of apprehending the pirates. I will now ask your honors' attention to the distinction between this Act and the powers conferred by the slave-trading Act.

_Judge Nelson_: The Act of 1819 gives to the commanders authority to bring home prisoners,--does it not?

_Mr. Evarts_: It does not, in terms, say anything about them. That is the point to which I ask your honors' attention. The Act instructs the commanders of public armed vessels to subdue, seize, take, and send into any port of the United States, any armed vessel or boat, or any vessel or boat, the crew whereof is armed, and that may have attempted or committed any piratical aggression, &c. There is nothing said as to the arrest of the criminals. It is a question of construction.

_Judge Nelson_: It is not specific in that respect.

_Mr. Evarts_: No, sir, it is not specific. Now, in the Act of March 3d, 1819, ent.i.tled, "An Act in addition to the Acts prohibiting the slave trade," which will be found at page 532 of the 3d volume of the Statutes at Large, a general authority is given to the President, "whenever he shall deem it expedient, to cause any of the armed vessels of the United States to be employed to cruise on any of the coasts of the United States or Territories thereof, or on the coast of Africa, or elsewhere," "and to instruct and direct the commanders of all armed vessels of the United States to seize, take, and bring into any port of the United States, all ships or vessels of the United States, wheresoever found," engaged in the slave trade. And then comes this distinct provision in reference to the apprehension and the bringing in for adjudication of persons found on board of such vessels. It is the last clause of the first section: "And provided further, that the commanders of such commissioned vessels do cause to be apprehended and taken into custody every person found on board of such vessel so seized and taken, being of the officers or crew thereof, and him or them convey, as soon as conveniently may be, to the civil authority of the United States, to be proceeded against in due course of law, in some of the Districts thereof."

This Act is the one referred to by Judge Sprague in the case of _The United States_ vs. _Bird_ (_Sprague's Decisions_, 299)

_Judge Nelson_: There is limitation to that Act, is there?

_Mr. Evarts_: No, sir; it is unlimited in duration, and a part of the law now administered. Now, I need not ask your honors' attention to the familiar act which gives to Consuls of the United States direct authority to take offenders into custody and detain them, and send them by the first convenient vessel to the United States, to be delivered to the civil authorities to be proceeded against.

Now, my proposition is this,--that neither under the slave-trading Act, nor under the Act for the prevention and punishment of piracy pa.s.sed in 1819, does the extra-territorial seizure, control and transmission of offenders, exclude the plain terms of the alternative of the statute, which makes jurisdiction dependent, not on apprehension merely, but on apprehension within a District; and that, even though there is a governmental introduction of the offender into a District, making that District, in a proper sense, the one into which he is first brought, yet that does not in the least displace the alternative of jurisdiction of an apprehension within a District, there having been no prior apprehension, by process, within any other District, as the consummation and completion of the delivery of the offender to the civil authorities for the purpose of a trial, the transaction having been inst.i.tuted on the high seas or in a foreign port.

Now, on the facts in this case, there is no room for disputing that the first apprehension was within this District. Nor can I deny that the seizure of these persons on the high seas was made by an armed vessel of the United States, either under the general right which the law of nations gives both to public and private vessels to seize pirates, or under the implied right and power to do so, certainly so far as to make it justifiable on the part of commanders of cruisers, by virtue of the provision of the Act of 1819 which authorizes them to send in a piratical vessel. These men were sent in, in the course of such active intervention, by an armed vessel of the United States. But I submit to your honors, that the provisions of that Act, which thus incidentally include, as it were, the transmission of the ship's company of a pirate, because they are to be subdued, and the ship is to be sent in, cannot be turned, by any process of reasoning, into anything that can be called a legal apprehension. I am satisfied that your honor, Judge Nelson's view, that the term "apprehension" is only meant to apply to the service of judicial process within a District, is entirely sound.

The princ.i.p.al argument and the princ.i.p.al authority relied on to displace the jurisdiction thus plainly acquired under one alternative of the statute, denies, really, that there is any alternative, or that there can possibly be two Districts, either one of which may rightfully have jurisdiction. That, I take it, is the substance of the proposition. It is, that the alternative gives to one of the two exclusive jurisdiction; and that, whenever facts have occurred--whether jurisdiction has been exercised or not--which give to the one District jurisdiction and an opportunity to exercise it, then, by the prior concurrence of all the circ.u.mstances which fix the statutory jurisdiction on that District, the possibility of the occurrence of any new circ.u.mstances to give jurisdiction in the other and alternative District is displaced.

The case of _The United States_ vs. _Townsend_ has been brought to your honors' attention in the ma.n.u.script record of the preliminary proceedings. The prisoner, who had been taken and brought into Key West, where the vessel stopped, as we are told, for the temporary purpose of supplies, was thence brought into Ma.s.sachusetts. It is the record of a proceeding wherein Judge Sprague, with the concurrence of his a.s.sociate, Mr. Justice Clifford, of the Supreme Court, sent the prisoner, in that predicament, back to Key West for trial, and would not permit an indictment to be found against him in the District of Ma.s.sachusetts. We have no knowledge of the facts of that case, except what are contained in this record. Now, your honors will notice, in the first place, that this is not a judicial determination as to the right of jurisdiction of the Ma.s.sachusetts Court, necessarily; but that, on the theory which I present, that there are two alternative jurisdictions, it may have been only a prudent and cautious exercise of the discretion of that Court, preliminary to indictment, that this man should be sent, on his own application, to the District of Florida for trial. In other words, he interposed an objection that he was ent.i.tled to a trial in Key West; and the Court, affirming the opinion that that District had jurisdiction of the crime, determined that it would send him there for trial, and that it would not exercise its own jurisdiction, which might be made subject to some question. And yet it is not to be denied that Judge Sprague is apparently of the opinion that there are not two alternative places of jurisdiction, neither one exclusive of the other; but that they are only alternative as respects the one or the other which is the first to gain jurisdiction. It is a little difficult to see, on this view, how there can be any two places, rightfully described as separate places, one of which is the place into which the prisoner is first brought, and the other of which is the place where he is first apprehended; because, in the very nature of the case, the moment you raise the point that the offender has been in two Districts, and that in the latter of them he is apprehended, then it follows that he has pa.s.sed through the former; and the statute is really reduced to this--that the offender must be indicted in the District into which he is first brought. There cannot then be two different Districts, into one of which he is brought, within the meaning of the law, and in the other of which he is apprehended; because, that into which he is first brought must necessarily precede, in time, that in which he is first apprehended, and he could not have been apprehended before, in a District other than that into which he is first brought. So that you necessarily reduce the statute to a fixing of the place of trial in the District into which the offender is first brought.

The case of Smith--the trial just terminated in Philadelphia, in which the prisoner was tried and convicted before the Circuit Court of the United States--is an authority of the two Judges of that Court on this very point, the circ.u.mstances of a prior introduction of the prisoner within the Eastern District of Virginia being much more distinct than in this case. The capturing vessel was a steamer, which took the prize into Hampton Roads. The defendant and the others of the prize crew were kept as prisoners on board this war steamer, which, after anchoring in Hampton Roads, near Fortress Monroe, went a short distance up the Potomac, returned, and again anch.o.r.ed in Hampton Roads, after which she brought the prisoners, including the defendant, into Philadelphia, where they were taken into the custody of the Marshal. Now, unquestionably, geographically, that prisoner was within the State of Virginia, and within the Eastern District of Virginia, rather more distinctly than in the case now on trial. In that case, the Court said--"One of the points of law on which counsel for the defence requests instruction to the Jury is, that the Court has no jurisdiction of the case; because, after his apprehension on the high seas, he was first brought into another District, meaning the Eastern District of Virginia, and ought to be there tried. This instruction cannot be given. When he was taken prisoner, and was detained in the capturing vessel, he was not apprehended for trial, within the meaning of the Act of Congress. His first apprehension for that purpose, of which there is any evidence, was at Philadelphia, after his arrival in this District.

Whether he had been previously brought into another District, within the meaning of the Act, is immaterial"--recognizing the doctrine of two alternative jurisdictions, neither exclusive of the other. "It has been decided that, under this law, a person, first brought into one District, and afterwards apprehended in another, may be tried in the latter District. Therefore, if you believe the testimony on the subject, this Court has jurisdiction of the case."

Now, your honors very easily understand, that without any election or purpose on the part of any authority, civil or naval, representing the Government, a prisoner may be brought into a District, yet never come, in any sense, under the judicial cognizance of that District. In this case, these prisoners might have escaped from the Harriet Lane, and have fled to Ma.s.sachusetts, or Pennsylvania, or wherever else their fortune should have carried them, and might there have been first apprehended. Now, what is there in the nature of the jurisprudence of the United States, in respect of a crime committed outside of both Districts, which should prevent the jurisdiction of Ma.s.sachusetts being just as effective as the jurisdiction of New York? If such be the law, I have no occasion to argue any further. But the decision of Judge Sprague is, in my judgment, quite opposed to that view of the law; and I, must, therefore, present to your honors some considerations which, in my judgment, make this the District, in the intendment of the statute, into which these offenders were first brought, as well as the District in which they were first apprehended.

The alleged prior introduction of these persons within any other Judicial District of the United States, within the meaning of the statute, is shown by the evidence of what occurred in reference to the transit of the Minnesota, after she had taken them on board from the capturing vessel, the Perry, off the coast of South Carolina. She anch.o.r.ed off Fortress Monroe, just opposite Hampton Roads, and there transferred these prisoners to the Harriet Lane, which brought them into this District.

Now, it is said that that incident of the anchorage of the Minnesota in or near Hampton Roads, and the transhipment of the prisoners to another vessel, which the exigencies of the naval service sent to New York, did fulfill the terms of the law in reference to the introduction of those offenders within a District of the United States, and that they were, therefore, first brought into the Eastern District of Virginia; and, if that circ.u.mstance displaces the alternative jurisdiction, and thereby Virginia became the exclusive District of jurisdiction, this trial cannot be valid, and must result in some other disposition of these prisoners than a verdict of guilty, if, on the merits of the case, such a verdict should be warranted.

What are the traits and circ.u.mstances of that transmission? I understood my learned friend, Mr. Lord, to concede that he would not argue that the mere transit of the keel of the vessel transporting the prisoners, in the course of its voyage to a port of destination, through the waters of another District, was an importation or introduction of the offenders into that District, so as to make it the place of trial. Take, for instance, the case of a vessel making a voyage from Charleston to New York. For aught I know, certainly, within the practicability of navigation, her course may be within a marine league of the sh.o.r.e of North Carolina, of the sh.o.r.e of Virginia, of the sh.o.r.e of Maryland, and of the sh.o.r.e of New Jersey, before making the port which is the termination of her transit. Well, my learned friends say that they do not claim that this local position of a vessel within a marine league while she is sailing along, is, within any sensible view of the statute, an introduction into the District, so as to found a jurisdiction.

Let us see, if your honors please, whether the transit of these prisoners from the capturing vessel to the Marshal's office in New York was not simply part of the continuous voyage of the vessel from one point to the other. Where was the Minnesota, and on what employment and duty, at the time she received these prisoners on board? She was the flag ship, as the Commodore has told us, of the Atlantic Blockading Squadron, and her whole duty was as a cruiser or blockading ship, at sea, in discharge of the duty a.s.signed to her.

I take it for granted that my learned friends will not contend that a vessel, pursuing her voyage continuously along the coast of North Carolina and the coast of Virginia, introduces an offender within a District by stopping, either under any stress of navigation, or for any object unconnected with any purpose to terminate her voyage, or that the fact of her being becalmed, or of her having anch.o.r.ed off the coast to get water or supplies, and having then pursued her voyage continuously to New York, would alter the character of the transit, in any legal construction that it should receive.

Now, what did the Minnesota do? The Commodore took the prisoners on board that vessel, as he tells you, for the purpose of sending them to New York by the first naval vessel that he should be able to detach from the service. Did he, in the interval between the capture and the complete transmission and reception of the prisoners here, ever make a port or a landing from his vessel, or ever depart from the design of the voyage on which he was engaged? No. He was on his cruise, bound to no port, always at sea, and only in such relations to the land as the performance of his duty to blockade at such points as he saw fit, whether at Charleston or the Capes of Virginia, required him to be in.

And there is no difference, in the quality of the act, arising from his having stopped at Hampton Roads, and thence sent forward the prisoners by the Harriet Lane, because she was the first vessel that was going to New York--going, as has been stated, for a change of her armament and for repairs.

Now, I submit to your honors, that there is nothing, either in the design or the act of this blockading vessel, the Minnesota, or of the Harriet Lane, that causes the course of transmission of these prisoners to the point of their arrest in this District to differ from what it would have been if, with an even keel, and without any interruption, the capturing vessel, the Perry, had started for New York, and had, in the course of her navigation, come within the line of a marine league from the sh.o.r.e of some District of the United States, and had, perchance, anch.o.r.ed there, for the purpose of replenishing her supplies for the voyage. In other words, in order to make out, within the terms of the statute, a bringing into a District of the United States, so as to make it a District of jurisdiction, within the sense of the statute, it is impossible for the Court to fail to require the ingredient of a voyage into a port, at least as a place of rest and a termination of the pa.s.sage of the vessel, temporary or otherwise. That is requisite, in order to make an introduction within a District. And I cannot imagine how his honor, Judge Sprague, or his honor, Judge Clifford, could, in the case before them, have given any such significance to the prior arrival of the vessel of the United States at Key West; for, it was but a stopping at an open roadstead for the purpose, not of a port, but of continuing at sea or in the sea service of the country.

Your honors will notice that, by such a construction of the Act, instead of making the place where jurisdiction shall be acquired dependent on some intelligent purpose, in the discretion of the officers who control the person of the prisoner, as to where he shall be landed, you make the question of jurisdiction dependent upon the purest accident in the navigation of the vessel. Thus, in this particular case, the Captain of the Minnesota tells us he had not coal enough to come directly to New York, if he had designed to do so, and that he stopped at his blockading station and sent the prisoners on by another vessel, which the exigencies of the service required to make the voyage.

There is another proposition upon this question of jurisdiction which I deem it my duty to make to your honors, although I suppose the whole matter will be disposed of on considerations which have been presented on one side or the other, and, as I suppose, in favor of the jurisdiction. Yet I cannot but think that the rules of jurisprudence and the regular and effective administration of criminal justice will suffer if these questions are to be interposed and to be pa.s.sed upon by the Court at the same time as the indictment itself. Where the question of the locality of the trial forms no part of the body of the crime, and has nothing to do with the place where the crime was committed, but is wholly a question of the local position of the prisoner, then the exception to the jurisdiction can only be taken as a preliminary plea, or in the shape of a plea in abatement. That was the construction in the Hicks case, and is the general rule in reference to jurisdiction in civil cases which are dependent upon the proper cognizance of the person of the defendant. I refer to the cases of _Irvine_ vs. _Lowry_, (14 _Peters_, 293;) _Sheppard_ vs. _Graves_, (14 _Howard_, 505;) and _D'Wolf_ vs. _Rabaud_, (1 _Peters_, 476.)

_Mr. Larocque_: I ask what particular point is decided by those cases?

_Mr. Evarts_: They are wholly on the point that where the jurisdiction of a Court of the United States depends, not on the subject matter of the suit, but on the District where the defendant is found, or on the citizenship of the parties, an objection to the jurisdiction must be taken by a plea in abatement.

_Mr. Larocque_: But suppose it depends upon the place where the crime was committed, whether in New York or Ohio, whether on land or at sea?

_Mr. Evarts_: It is not necessary to ask that question, for I have expressly excluded that consideration by the preliminary observation, that the locality of the trial forms no part of the body of the crime.

In this case, the crime having been committed outside of any locality, it is wholly a question of the regularity and legality of the means whereby the criminal has been brought into the jurisdiction--nothing else.

_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 pa.s.s 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 ent.i.tled 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 const.i.tutional, 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."

The whole description of the crime is "murder or robbery" "upon the high seas."

The third section of the Act of 1820 adds to that simple description of criminality certain words not at all tautological, but making other acts equivalent to the same crime. The section provides that, "if any person shall, upon the high seas, or in any haven, &c., commit the crime of robbery in or upon any ship or vessel, or upon any of the ship's company of any ship or vessel, or the lading thereof, such person shall be adjudged to be a pirate, and, being thereof convicted,"

"shall suffer death." Beyond the simple word, "robbery," is added, "in or upon any ship or vessel, or upon any of the ship's company of any ship or vessel, or the lading thereof."

_Judge Nelson_: The fifth section of the Act of March 3d, 1819, provides for piracy on the high seas according to the law of nations.

The previous Act of 1790, and the third section of the Act of 1820, prescribe the punishment of the crimes of murder and robbery on the high seas.

_The District Attorney_: The Act of 1820 does not refer to murder, only to robbery on the high seas.

_Judge Nelson_: It denominates as a pirate a person guilty of robbery on the high seas.

_Mr. Evarts_: But the body of the crime is the robbery, and not the epithet.