_Q._ In what direction from Charleston and how far from Charleston was the Joseph?
_A._ I think Charleston Bar was west of us about 50 or 55 miles.
_Q._ Out in the open ocean?
_A._ Yes, sir. I calculated that Georgetown light bore up about 35 miles in the west; but whether that is correct or not I cannot say.
_Q._ Where was the nearest land, as nearly as you can state?
_A._ I think the nearest land was Ball"s Island, somewhere in the neighborhood of north and west, 35 or 40 miles.
_Q._ What sail did you next fall in with?
_A._ We fell in with a British bark called the Berkshire.
_Q._ What did you do when you fell in with her?
_A._ We pa.s.sed closely across her stern. She was steering to the northward and eastward--I suppose bound to some Northern port.
_Q._ That was a British brig?
_A._ Yes, sir.
_Q._ What was the next sail you fell in with?
_A._ The next sail we fell in with was the brig-of-war Perry.
_Q._ At what time did you descry her?
_A._ I suppose about 3 o"clock in the afternoon of the same day.
_Q._ Where were you when you fell in with her?
_A._ We were somewhere in the same parallel. We saw the brig Perry from the masthead, and stood towards her.
_Q._ What was said when she was seen?
_A._ We took her to be a merchant vessel. That was our idea, and we stood to the westward.
_Q._ Did you make chase?
_A._ Yes, sir, we stood to the westward when we saw her; and the brig Joseph, that we took, saw her. The Perry, I presume, saw us before we saw her, and was steering for us at the time we were in company with the Joseph.
_Q._ How far off was the Joseph at the time?
_A._ Not more than three or four miles. When we made her out to be the brig-of-war Perry, we then tacked ship and proceeded to sea, to clear her.
_Q._ How near was the brig Perry when you first discovered she was a man-of-war?
_A._ I should think she was all of 10 or 11 miles off.
_Q._ The brig Perry made chase for you?
_A._ Yes, sir.
_Mr. Larocque_: If the Court please, from the opening of counsel I suppose he is now proceeding to that part of the case that he laid before the jury in his opening, that consists in an exchange of shots between the brig Perry and the Savannah. We object to that. There is no charge in the indictment of resisting a United States cruiser, or of any a.s.sault whatever.
_Mr. Smith_: What the vessel did on the same day, before and after the main charge, goes to show the purpose of the voyage--the general object of the Savannah and her crew. It may be relevant in that respect.
_Mr. Larocque_: We are not going to dispute the facts testified to by this witness. There will be no dispute on this trial that this was a privateer--that her object was privateering under the flag of the Confederate Government, and by authority of that Government, and, under these circ.u.mstances, the gentleman has no need to trouble himself to characterize these acts by showing anything that occurred between the Savannah and the Perry. Your honor perceives at once that this indictment might have been framed in a different way, under the 8th section of the Act of 1790, with a view of proving acts of treason, if you please, which are made piracy, as a capital offence, by that act.
The counsel has elected his charge, and he has strictly confined the charge in the indictment to the allegation of what occurred between the Savannah and the Joseph. There is not one word in the indictment of any hostilities between the Perry and the Savannah, and therefore it must be utterly irrelevant and immaterial under this indictment. Evidence on that subject would go to introduce a new and substantial charge that we have not been warned to appear here and defend against, and have not come prepared to defend against, for that reason. So far as characterizing the acts we are charged with in the indictment, there can be no difficulty whatever.
_The Court_: I take it there is no necessity for this inquiry after the admission made.
_Mr. Evarts_: We propose to show the arrest and bringing of the vessel in, with her crew.
_The Court_: Of course.
_Mr. Evarts_: That cannot very well be done without showing the way in which it was done.
_The Court_: But it is not worth while to take up much time with it.
_Mr. Brady_: The witness has stated that this vessel was captured, and he has stated the place of her capture; and of course it is not only proper, but, in our view, absolutely necessary, that the prosecution should show that, being captured, she was taken into some place out of which arose jurisdiction to take cognizance of the alleged crime. But the cannonading is no part of that.
_Q._ _By Mr. Smith_: State the facts in regard to the capture of the Savannah by the Perry.
_A._ Well, the brig Perry ran down after dark and overtook us; came within hail.
_Q._ At what time?
_A._ Near 8 o"clock at night. Without any firing at all, she hailed the captain to heave to, and he said yes; she told him to send his boat on board. He said that he had no boat sufficient to go with. They then resolved to send a boat for us, and did so, and took us off. That was the result.
_Q._ The Perry sent her boat to the Savannah?
_A._ Yes, sir; we had no boat sufficient to take our crew aboard of her. We had a small boat, considerably warped, and it would not float.
_Q._ Where at sea was the capture made of the Savannah by the Perry?
_A._ It was in the Atlantic Ocean.
_Q._ About how far from Charleston?
_A._ Well, about 50 miles from Charleston light-house, in about 45 fathoms of water.
_Q._ How far from land?
_A._ I suppose the nearest land was Georgetown light, about 35 or 40 miles; I should judge that from my experience and the course we were running.
_Q._ Were you all transferred to the Perry?