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 Jury retired at twenty minutes after three o'clock.

At six o'clock they came into Court. Their names were called, and the inquiry made by the Clerk whether they had agreed upon their verdict. Their Foreman said they had not. One of the prisoners having felt unwell, had been removed from the close air of the Court-room, and some little delay occurred until he was brought in. Judge Nelson then said: "We have had a communication from one of the officers in charge of the Jury, from the Jury, as we understood, though it had no name signed to it. I would inquire whether the note was from the Jury?"

The Foreman: It was.

Judge Nelson: We would prefer that the Jurymen, or any of them who may be embarrassed with the difficulties referred to, should himself state the inquiry which he desires to make of the Court.

Mr. Powell, one of the Jurors, said that the question was, "whether, if the Jury believed that civil war existed, and had been so recognized by the act of our Government, or if the Jury believe that the intent to commit a robbery did not exist in the minds of the prisoners at the time, it may influence their verdict."

After consultation with Judge Shipman, Judge Nelson said: As it respects the first inquiry of the Juror—whether the Government has recognized a state of civil war between the Confederate States and itself—the instruction which the Court gave the Jury was, that this Court could not recognize a state of civil war, or a Government of the Confederate States, unless the legislative and executive Departments of the Government had recognized such a state of things, or the President had, or both; and that the act of recognition was a national act, and that we must look to the acts of these Departments of the Government as the evidence and for the evidence of the recognition of this state of things, and the only evidence. As it respects the other question—whether or not, if the Jury were of opinion, on the evidence, that these prisoners did not intend to commit a robbery on the high seas against the property of the United States, they were guilty of the offence charged—that is a mixed question of law and fact. The Court explained to you what constitutes the crime of robbery on the high seas, which was the felonious taking of the property of another upon the high seas by force, by violence, or putting them in fear of bodily injury, which, according to the law, is equivalent to actual force; and that the term felonious, as interpreted by the law and the Courts, was the taking with a wrongful intent to despoil the others of their property. These elements constitute the crime of robbery. Now, it is for you to take up the facts and decide whether the evidence in the case brings the prisoners within that definition. The Court will not encroach upon your province in these respects, but will confine itself to the definition of the law.

Another of the Jury—George H. Hansell—rose and said: One of the Jury—not myself—understood your honor to charge that there must be an intent to take the property of another for your own use.

Judge Nelson: No, I did not give that instruction. The Jury may withdraw.

The Jury again retired, and, as there was no probability of an agreement at half-past seven o'clock, the Court adjourned to eleven o'clock Thursday morning.

EIGHTH DAY

Oct. 31.

The Jury, who had been in deliberation all night, came into Court at twenty minutes past eleven o'clock. The names of the prisoners were called, and, on the Jury taking their seats—

The Clerk said: Gentlemen of the Jury, have you agreed on your verdict?

Foreman: No, sir.

The Court: Is there any prospect of your agreeing?

Foreman: I am sorry to say there is no prospect at all that we can come to an agreement.

After some consultation with Judge Shipman—

Judge Nelson inquired: Is the opinion expressed by the Foreman that of the other Jurymen?

Mr. Powell and Mr. Cassidy (Jurors) rose and responded in the affirmative.

Mr. Taylor further remarked: The prospect seems to be that way. So far as we have gone, there does not seem to be any idea of coming together at all. The only idea of coming to a judgment would be that some of the Jurors, we think, do not understand the charge. They think they do, and we think they do not. It is for them to say, or not, whether they understand the charge correctly.

To this implied invitation to the Jurymen to express themselves there was no response.

Judge Nelson: If the Court supposed that there would be any fair or reasonable prospect of your coming to an agreement, we would be inclined to direct you to retire and pursue your consultations further. You have now been together about twenty hours, and unless there is some expression from the Jury that there is a possibility or probability that they may agree, we are inclined not to detain you longer.

Mr. Costello (a Juror): With respect to the Court, I think there is no likelihood of our coming to an agreement.

Foreman: If the Court will allow me, after the instructions we got yesterday evening, at the instance of many of the Jury, we stand just in the same position we stood when we left your presence the first time.

Judge Nelson: The Court, then, will discharge you, gentlemen.

The Court entered an order remanding the prisoners, and, as they were about being removed—

Mr. E. Delafield Smith (District Attorney) said: I desire, if the Court please, to move, in the case of the Savannah privateers, their trial at the earliest day consistent with the engagements of the Court, and of the counsel engaged for the defence; and I would name a week from next Monday, as it will, probably, be necessary to issue an order for a new panel of Jurors.

Judge Nelson: So far as I am concerned, I can only remain until the 20th of November, and the business of the Court is such that the trial cannot take place while I am here, as I must devote the rest of my time to other causes.

Mr. Smith: Then the motion for a new panel will be reserved until we see at what time it will be possible to bring the case on.

Mr. Lord: Before that application shall be seriously entertained by the Court, we would like to be heard upon the subject. I will say nothing now, because it is very evident it cannot be discussed at this time.

Judge Nelson: The counsel may assume that I cannot take up the second trial during the present term. They may act upon that view.

The prisoners were then remanded to the custody of the Deputy Marshals.

APPENDIX

IPRESIDENT'S PROCLAMATION, APRIL 15, 1861. (Page 109.)By the President of the United States

Whereas, the laws of the United States have been for some time past, and now are, opposed, and the execution thereof obstructed, in the States of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the Marshals by law: Now, therefore, I, Abraham Lincoln, President of the United States, in virtue of the power in me vested by the Constitution and the laws, have thought fit to call forth, and hereby do call forth, the militia of the several States of the Union, to the aggregate number of 75,000, in order to suppress said combinations and to cause the laws to be duly executed.

The details for this object will be immediately communicated to the State authorities through the War Department. I appeal to all loyal citizens to favor, facilitate, and aid this effort to maintain the honor, the integrity, and existence of our national Union, and the perpetuity of popular government, and to redress wrongs already long enough endured. I deem it proper to say that the first service assigned to the forces hereby called forth will probably be to repossess the forts, places, and property which have been seized from the Union; and in every event the utmost care will be observed, consistently with the objects aforesaid, to avoid any devastation, any destruction of, or interference with, property, or any disturbance of peaceful citizens of any part of the country; and I hereby command the persons composing the combinations aforesaid to disperse and retire peaceably to their respective abodes within twenty days from this date.

Deeming that the present condition of public affairs presents an extraordinary occasion, I do hereby, in virtue of the power in me vested by the Constitution, convene both houses of Congress. The Senators and Representatives are, therefore, summoned to assemble at their respective Chambers, at twelve o'clock, noon, on Thursday, the fourth day of July next, then and there to consider and determine such measures as, in their wisdom, the public safety and interest may seem to demand.

In witness whereof, I have hereunto set my hand, and caused the seal of the United States to be affixed.

Done at the City of Washington, this fifteenth day of April, in the year of our Lord one thousand eight hundred and sixty-one, and of the independence of the United States the eighty-fifth.

ABRAHAM LINCOLN.

By the President.

William H. Seward, Secretary of State.

IIPROCLAMATION OF THE PRESIDENT, DECLARING A BLOCKADE. (Page 109.)

By the President of the United States of America.

Whereas, an insurrection against the Government of the United States has broken out in the States of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas, and the laws of the United States for the collection of the revenue cannot be efficiently executed therein conformably to that provision of the Constitution which requires duties to be uniform throughout the United States:

And whereas a combination of persons engaged in such insurrection have threatened to grant pretended letters of marque, to authorize the bearers thereof to commit assaults on the lives, vessels, and property of good citizens of the country lawfully engaged in commerce on the high seas, and in waters of the United States:

And whereas an Executive Proclamation has been already issued, requiring the persons engaged in these disorderly proceedings to desist therefrom, calling out a militia force for the purpose of repressing the same, and convening Congress in extraordinary session to deliberate and determine thereon:

Now, therefore, I, Abraham Lincoln, President of the United States, with a view to the same purposes before mentioned, and to the protection of the public peace and the lives and property of quiet and orderly citizens pursuing their lawful occupations, until Congress shall have assembled and deliberated on the said unlawful proceedings, or until the same shall have ceased, have further deemed it advisable to set on foot a blockade of the ports within the States aforesaid, in pursuance of the laws of the United States and of the laws of nations in such cases provided. For this purpose a competent force will be posted so as to prevent entrance and exit of vessels from the ports aforesaid. If, therefore, with a view to violate such blockade, a vessel shall approach, or shall attempt to leave any of the said ports, she will be duly warned by the Commander of one of the blockading vessels, who will indorse on her register the fact and date of such warning; and if the same vessel shall again attempt to enter or leave the blockaded port, she will be captured, and sent to the nearest convenient port for such proceedings against her and her cargo, as prize, as may be deemed advisable.

And I hereby proclaim and declare, that if any person, under the pretended authority of said States, or under any other pretence, shall molest a vessel of the United States, or the persons or cargo on board of her, such person will be held amenable to the laws of the United States for the prevention and punishment of piracy.

ABRAHAM LINCOLN.

By the President.

William H. Seward, Secretary of State.

Washington, April 19, 1861.

IIICORRESPONDENCE BETWEEN GOV. PICKENS, OF SOUTH CAROLINA, AND MAJOR ANDERSON, COMMANDING AT FORT SUMTER, IN RELATION TO THE FIRING ON THE STAR OF THE WEST. (Page 110.)

To his Excellency the Governor of South Carolina:

Sir: Two of your batteries fired this morning on an unarmed vessel bearing the flag of my Government. As I have not been notified that war has been declared by South Carolina against the United States, I cannot but think this a hostile act, committed without your sanction or authority. Under that hope, I refrain from opening a fire on your batteries. I have the honor, therefore, respectfully to ask whether the above-mentioned act—one which I believe without parallel in the history of our country or any other civilized Government—was committed in obedience to your instructions? and notify you, if it is not disclaimed, that I regard it as an act of war, and I shall not, after reasonable time for the return of my messenger, permit any vessel to pass within the range of the guns of my fort. In order to save, as far as it is in my power, the shedding of blood, I beg you will take due notification of my decision for the good of all concerned. Hoping, however, your answer may justify a further continuance of forbearance on my part,

I remain, respectfully,

ROBERT ANDERSON.GOV. PICKENS' REPLY

Gov. Pickens, after stating the position of South Carolina towards the United States, says that any attempt to send United States troops into Charleston harbor, to reinforce the forts, would be regarded as an act of hostility; and in conclusion adds, that any attempt to reinforce the troops at Fort Sumter, or to retake and resume possession of the forts within the waters of South Carolina, which Major Anderson abandoned, after spiking the cannon and doing other damage, cannot but be regarded by the authorities of the State as indicative of any other purpose than the coercion of the State by the armed force of the Government; special agents, therefore, have been off the bar to warn approaching vessels, armed and unarmed, having troops to reinforce Fort Sumter aboard, not to enter the harbor. Special orders have been given the Commanders at the forts not to fire on such vessels until a shot across their bows should warn them of the prohibition of the State. Under these circumstances the Star of the West, it is understood, this morning attempted to enter the harbor with troops, after having been notified she could not enter, and consequently she was fired into. This act is perfectly justified by me.

In regard to your threat about vessels in the harbor, it is only necessary for me to say, you must be the judge of your responsibility. Your position in the harbor has been tolerated by the authorities of the State, and while the act of which you complain is in perfect consistency with the rights and duties of the State, it is not perceived how far the conduct you propose to adopt can find a parallel in the history of any country, or be reconciled with any other purpose than that of your Government imposing on the State the condition of a conquered province.

F. W. PICKENS.SECOND COMMUNICATION FROM MAJOR ANDERSON

To his Excellency Governor Pickens:

Sir: I have the honor to acknowledge the receipt of your communication, and say that, under the circumstances, I have deemed it proper to refer the whole matter to my Government, and intend deferring the course I indicated in my note this morning until the arrival from Washington of such instructions as I may receive.

I have the honor also to express the hope that no obstructions will be placed in the way, and that you will do me the favor of giving every facility for the departure and return of the bearer, Lieut. T. Talbot, who is directed to make the journey.

ROBERT ANDERSON.IVEXTRACTS FROM PRESIDENT LINCOLN'S INAUGURAL, MARCH 4, 1861. (Page 110.)

The power confided to me will be used to hold, occupy, and possess the property and places belonging to the Government, and collect the duties on imports; but, beyond what may be necessary for these objects, there will be no invasion, no using of force against or among the people anywhere. Where hostility to the United States shall be so great and so universal as to prevent competent resident citizens from holding the federal offices, there will be no attempt to force obnoxious strangers among the people with that object. While the strict legal right may exist of the Government to enforce the exercise of these offices, the attempt to do so would be so irritating, and so nearly impracticable withal, that I deem it better to forego for the time the use of such offices.* * * * *

I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decision must be binding in any case upon the parties to a suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government; and while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chances that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that, if the policy of the Government upon the vital questions affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court, the instant they are made in ordinary litigations between parties in personal actions, the people will have ceased to be their own masters,—having, to that extent, practically resigned their Government into the hands of that eminent tribunal. Nor is there, in this view, any assault upon the Court or the Judges. It is a duty from which they may not shrink, to decide cases properly brought before them; and it is no fault of theirs if others seek to turn their decisions to political purposes.

VTHE PRESIDENT'S SPEECH TO THE VIRGINIA COMMISSIONERS. (Page 110.)

To Honorable Messrs. Preston, Stuart, and Randolph:

Gentlemen: As a Committee of the Virginia Convention, now in session, you present me a preamble and resolution in these words:

"Whereas, in the opinion of this Convention, the uncertainty which prevails in the public mind as to the policy which the Federal Executive intends to pursue towards the seceded States is extremely injurious to the industrious and commercial interests of the country; tends to keep up an excitement which is unfavorable to the adjustment of the pending difficulties; and threatens a disturbance of the public peace; therefore—

"Resolved, That a committee of three delegates be appointed to wait on the President of the United States, present to him this preamble, and respectfully ask him to communicate to this Convention the policy which the Federal Executive intends to pursue in regard to the Confederate States."

In answer, I have to say, that having, at the beginning of my official term, expressed my intended policy as plainly as I was able, it is with deep regret and mortification I now learn there is great and injurious uncertainty in the public mind as to what that policy is, and what course I intend to pursue. Not having as yet seen occasion to change, it is now my purpose to pursue the course marked out in the inaugural address. I commend a careful consideration of the whole document as the best expression I can give to my purposes. As I then and therein said, I now repeat—"The power confided in me will be used to hold, occupy, and possess property and places belonging to the Government, and to collect the duties and imposts; but beyond what is necessary for these objects, there will be no invasion, no using of force against or among the people anywhere." By the words "property and places belonging to the Government," I chiefly allude to the military posts and property which were in possession of the Government when it came into my hands. But if, as now appears to be true, in pursuit of a purpose to drive the United States authority from these places, an unprovoked assault has been made upon Fort Sumter, I shall hold myself at liberty to repossess, if I can, like places which had been seized before the Government was devolved upon me; and in any event I shall, to the best of my ability, repel force by force. In case it proves true that Fort Sumter has been assaulted, as is reported, I shall, perhaps, cause the United States mails to be withdrawn from all the States which claim to have seceded, believing that the commencement of actual war against the Government justifies and possibly demands it. I scarcely need to say, that I consider the military posts and property situated within the States which claim to have seceded as yet belonging to the Government of the United States as much as they did before the supposed secession. Whatever else I may do for the purpose, I shall not attempt to collect the duties and imposts by any armed invasion of any part of the country; not meaning by this, however, that I may not land a force deemed necessary to relieve a fort upon the border of the country. From the fact that I have quoted a part of the inaugural address, it must not be inferred that I repudiate any other part,—the whole of which I re-affirm, except so far as what I now say of the mails may be regarded as a modification.

VIEXTRACTS FROM PRESIDENT LINCOLN'S MESSAGE TO CONGRESS, JULY 4, 1861

At the beginning of the present presidential term, four months ago, the functions of the Federal Government were found to be generally suspended within the several States of South Carolina, Georgia, Alabama, Mississippi, Louisiana, and Florida, excepting only of the post-office department. Within these States all the forts, arsenals, dockyards, custom-houses and the like, including the movable and stationary property in and about them, had been seized and were held in open hostility to this Government, excepting only Forts Pickens, Taylor, and Jefferson, on and near the Florida coast, and Fort Sumter, in Charleston harbor, South Carolina.

In accordance with this purpose, an ordinance had been adopted in each of these States, declaring the States respectively to be separated from the National Union. A formula for instituting a combined Government of those States had been promulgated, and this illegal organization, in the character of the "Confederate States," was already invoking recognition, aid, and intervention from foreign powers.

Finding this condition of things, and believing it to be an imperative duty upon the incoming Executive to prevent, if possible, the consummation of such attempt to destroy the Federal Union, a choice of means to that end became indispensable. This choice was made, and was declared in the inaugural address.

[After reciting the measures previously taken, he continues]:

Other calls were made for volunteers to serve three years, unless sooner discharged, and also for large additions to the regular army and navy. These measures, whether strictly legal or not, were ventured upon under what appeared to be a popular demand and a public necessity,—trusting then, as now, that Congress would readily ratify them.

It is believed that nothing has been done beyond the constitutional competency of Congress. Soon after the first call for militia, it was considered a duty to authorize the Commanding General, in proper cases, according to his discretion, to suspend the privilege of the writ of habeas corpus, or, in other words, to arrest and detain, without resort to the ordinary process and forms of law, such individuals as he might deem dangerous to the public safety.

This authority has purposely been exercised but very sparingly. Nevertheless, the legality and propriety of what has been done under it are questioned, and the attention of the country has been called to the proposition that one who is sworn to take care that the laws are faithfully executed should not himself violate them.

VIIEXTRACTS FROM PRESIDENT BUCHANAN'S MESSAGE TO CONGRESS, DECEMBER 4, 1860

The Fugitive-Slave Law has been carried into execution in every contested case since the commencement of the present administration, though often, it is to be regretted, with great loss and inconvenience to the master, and with considerable expense to the Government. Let us trust that the State Legislatures will repeal their unconstitutional and obnoxious enactments. Unless this shall be done without unnecessary delay, it is impossible for any human power to save the Union.