Their honors would observe that in both the cases cited, correcting the manifest misapprehension of Judge Story, the point was distinctly held that the question of jurisdiction was controlled exclusively by the fact as to what District the prisoner was first brought into after his arrest on the high seas, out of the United States, for a crime committed on the high seas.
Judge Nelson stated that, as it was now late (half-past 5 P. M.), the question might go over till morning.
The counsel on each side a.s.senting, the Jury were allowed to separate, with a caution from the Court against conversing in respect to the case.
Adjourned to Thursday, at 11 A.M.
SECOND DAY.
_Thursday, Oct. 24, 1861._
The Court met at 11 o"clock A.M.
_Judge Nelson_, in deciding the question raised yesterday, said:
So far as regards the question heretofore under consideration of Judge Sprague, we do not think that at present involved in the case. We will confine ourselves to the decision of the admissibility of the question as it was put by the District Attorney and objected to, as respects the purpose with which the Minnesota, with the prisoners, was sent to Hampton Roads. We think that the fact of their being sent by the commanding officer of that place, with the prisoners, to Hampton Roads, is material and necessary; and, in order to appreciate fully the fact itself, the purpose is a part of the _res gestae_ that characterizes the fact. What effect it may have upon the more general question, involving the jurisdiction of the Court, is not material or necessary now to consider. We think the question is proper.
Counsel for defendants took exception to the ruling of the Court.
_Commodore Stringham_ recalled. Direct examination resumed by Mr.
Smith.
_Q._ What was your object in transferring the prisoners from the Perry to the Minnesota?
_A._ Sending them to a Northern port. The port of New York was the port I had in my mind. To send them by the first ship from the station, as soon as possible, to a Northern port, for trial. I could not send them to a Southern port for trial. The only way I could do so would be by guns. I could get no landing in those places otherwise; and I could get no judge or jury to give them a trial.
_Mr. Larocque_ asked if, conceding the propriety of the inquiry, the statement of the witness was competent, viz.: that he had a port in his mind.
_The Court_: No; the question was not put in the shape I supposed. The question should have been--for what purpose or object did he send the prisoners in the Minnesota to Hampton Roads? That is the point in the case--the intent with which the vessel was sent to Hampton Roads?
_A._ I sent them there with the intention of sending them to a Northern port, for trial. The Harriet Lane being the first vessel that left, after my arrival there, they were sent in the Harriet Lane to the Northern port of New York.
_Q._ Why did you not take them in the Minnesota directly to New York, instead of taking them to Hampton Roads?
_A._ My station was at Hampton Roads, and I went there to arrange the squadron that might be there, and to get a supply of fuel for the ship.
I do not think we had enough to go to New York, if we wished to go there. I had supplied vessels on the coast below, and had exhausted pretty nearly all the coal from the Minnesota when we arrived at Hampton Roads.
_Q._ What directions did you give to the officers of the Harriet Lane?
_A._ I gave no directions to the officers of the Harriet Lane. I gave directions to the commander of the Minnesota. I left on the day previous, I think, to their being transferred to the Harriet Lane,--giving directions that, as soon as she came down from Newport News, to send her to New York, with the prisoners. I had been called to Washington, by the Secretary of the Navy, the day before she sailed.
_Q._ Are you aware of any facts which rendered it impossible to land the prisoners in the Virginia District, or on the Virginia sh.o.r.e?
_A._ It was impossible to land without force of arms, and taking possession of any port. We _could_ land them there, but not for trial, certainly. The Harriet Lane had been fired into but a short time previous; and that was one cause of sending her to New York.
_Q._ Fired into from the Virginia sh.o.r.e?
_A._ Yes, sir; from Field Point; I should judge, about 8 miles from Norfolk port, on the southern sh.o.r.e, nearly opposite Newport News. I was not there, but it was reported to me. She was fired into, and she was ordered to New York to change her armament.
_Q._ Was that fort in the way, proceeding to Norfolk?
_A._ Not on the direct way to Hampton Roads, but a little point on the left.
_Q._ Would a vessel, going the usual way to Norfolk, be in range of the guns that were fired at the Harriet Lane?
_A._ Not of these; but she would be in the range of four or five forts that it would be necessary to pa.s.s in order to land the prisoners at Norfolk.
_Q._ What was the nearest port to where the Minnesota went with the prisoners?
_A._ The nearest port of entry was Norfolk. Hampton Roads was a little higher up. We were not anch.o.r.ed exactly at the Roads, but off Old Point, which is not considered Hampton Roads.
[_Map produced._] I have marked the position of the Minnesota on this map, in blue ink. [Exhibits the position to the Court.]
_Q._ State the position of the Minnesota?
_A._ That is as near as I can put it--between the Rip Raps and Fortress Monroe--a little outside of the Rip Raps.
_Q._ In what jurisdiction is the Fort?
_A._ In the United States.
(Objected to, as matter of law.)
_Q._ At what distance were you from Fortress Monroe?
_A._ About three-quarters of a mile, and nearly the same from the Rip Raps.
_Q._ What distance from Norfolk?
_A._ I think 14 miles, as near as I can judge; 12 or 14.
_Q._ Had you any instructions from the Government, in respect to any prisoners that might be arrested on the high seas, as to the place they were to be taken to?
_A._ Not previous to my arriving at Hampton Roads. After that, I had.
Those instructions were in writing.
_Q._ You had no particular or general instructions previous to that?
_A._ No, sir; it was discretionary with me, previous to that, where to send the prisoners I had.
_Q._ When vessels are sent from one place to another, state whether it is not frequently the case that they take shelter in roadsteads?
(Objected to. Excluded.)