A Case of Piracy: Part 1-Appointment to Represent Pirates
A Case of Piracy
Historical Trial Series by Eric Fryar
Part 1: Appointment to Represent Pirates
Two sailors are charged with piracy and murder in 1812 Boston. The most talked-about trial of its day. A surprise ending.
Appointment to Defend Pirates
On Friday morning, October 16, 1812, twenty-eight-year-old lawyer James Austin was busy at work in his office at No. 5 Court Street in Boston where he served as the Suffolk County Attorney. He received an urgent message to come to the home of federal judge John Davis. James hurried over to 17 South Street to the Judge’s “chambers.” The United States District Court for the District of Massachusetts had no facilities of its own. The United States District Judge kept his chambers in his home. Waiting for James when he reached Judge Davis’s home was Peter Thacher, another well-known Boston lawyer, eight years older and more experienced in the law than James. Judge Davis got straight to the point: They were to be appointed to represent Samuel Tully and John Dalton, two men on trial for their lives. The trial would be in twelve days. Although Austin was the County Attorney, this was not a full-time job. He continued to have a private practice, and as a member of the federal bar, he was liable to be appointed to represent indigent criminal defendants. This was not something he could refuse, and it was serious—a capital case, and only twelve days to prepare. Judge Davis provided Austin and Thacher with copies of three indictments that the Grand Jury had handed down just the day before and a list of thirty-six prospective jurors. The indictments charged Samuel Tully and John Dalton with having piratically run away with the schooner George Washington, from the care, custody, and possession of Uriah Phillips Levy, her master, off the Isle of May on January 4, 1812; with having murdered a fellow crew mate named George Cummings on the high seas, on January 20, 1812; and with the admiralty crime a barratry for having feloniously scuttled and cast away the vessel on the high seas on January 21, 1812. All three charges were federal crimes. All three charges carried the death penalty.
James T. Austin
James Trecothick Austin was born on January 10, 1784 in Boston, Massachusetts, the second son of Jonathan Loring Austin and Hannah Ivers. James’s father, a Harvard graduate and merchant, was a Revolutionary War hero, having been a major in the Continental Army, a diplomatic courier for the Continental Congress, secretary to Benjamin Franklin in France, and an English prisoner of war. After the war, he had served several terms in the Massachusetts state senate, was the Massachusetts Secretary of the Commonwealth from 1806 to 1808, and was currently the Treasurer and Receiver-General of Massachusetts. James himself had been born after the war, had grown up in Boston, graduated from Harvard College in 1802, and was admitted to the bar in 1805. On October 2, 1806, James had married Catherine Gerry, the daughter of Founding Father Elbridge Gerry, currently the Governor of Massachusetts. James and Catherine made their home on Hancock Street in Boston, where they had four children. James was bright and ambitious and had excellent family connections. His practice had grown quickly, and he had served as the County Attorney since 1809. Austin, like his father and father-in-law were Republican, the party of Jefferson and Madison. Although still a minority party in New England, the Republicans were in control of state and federal politics and monopolized political appointments, like County Attorney.
Peter O. Thacher
James’s co-counsel, Peter Oxenbridge Thacher, Jr. was born on December 22, 1776, in Malden, Middlesex County, Massachusetts, about six miles north of Boston. He was the second son of the Rev. Peter Oxenbridge Thacher, Sr. and Elizabeth Hawkes. The senior Thacher, a Harvard graduate, had been a Congregationalist Minister in Malden. He removed his family to Boston in 1784 and was the pastor of the Brattle Street Church. Peter Thacher, Jr.’s grandfather, Oxenbridge Thacher, Esq., was one of the elite members of the Boston bar in the colonial period. Peter graduated from Harvard College in 1796 and started practicing law in 1799. His legal practice prospered, and on March 11, 1808, he married Charlotte MacDonough. Peter and Charlotte were living in a home on Belknap Street in Boston. They had four children.
Hon. John Davis
The United States District Judge, John Davis, was an imposing figure. Not a large man, he intimidated the lawyers in his court. A surviving portrait shows his thinning gray hair, high forehead, angular face, long, narrow nose, thin lips, and deep-set, dark eyes with a piercing gaze. Judge Davis was born on January 25, 1761, in Plymouth, Massachusetts. He graduated from Harvard College in 1781 and was admitted to the bar in 1786. In 1788, Davis was elected as a delegate to the Massachusetts Ratifying Convention for the United States Constitution. In addition to a busy law practice, Davis served in the Massachusetts State House of Representatives in the early 1790s and in the Massachusetts State Senate in 1795. From 1795 until 1796, he was the Comptroller for the United States Department of the Treasury. In 1796, President George Washington appointed Davis to be the United States Attorney for the District of Massachusetts. He built a reputation as an aggressive and effective prosecutor. Twelve years before he had had his own trial against a group of mutinous sailors. On February 18, 1801, President John Adams nominated John Davis to be the United States District Judge for the District of Massachusetts. Davis was confirmed by the Senate on February 20, 1801. Davis was a Federalist, the party of Washington and Adams. He had been among the "Midnight Judges" appointed by Adams after he lost the 1800 election to Jefferson. Although the Federalist Party was quickly fading into history in 1812, Davis had a lifetime appointment.
Meeting with the United States Attorney
Austin and Thacher emerged from Judge Davis’s house and briefly discussed what to do. Their first order of business was to call on George Blake, the United States Attorney for the District of Massachusetts, who would prosecute the case. Blake lived at 7 Franklin Place in Boston. He also maintained his law office in his home. George Blake was born on April 16 1769 in Hardwick, Worcester County, Massachusetts, about 70 miles west of Boston. Blake graduated from Harvard College in 1789 and began his practice in 1792. In 1802, President Thomas Jefferson appointed him to be the United States Attorney for Massachusetts. Blake was a tough prosecutor, but he was a man of integrity and believed in every defendant’s right to a fair and impartial trial. Blake was also a Republican and a political ally of Austin. Austin and Thacher could count of Blake to shoot straight with them.
Blake welcomed them into his office. He had been expecting them. Judge Davis had already mentioned that he had intended to appoint them to the case. They all sat down, and Blake quickly laid out the facts of the case. The two defendants were sailors aboard the schooner George Washington, a new ship sailing on its maiden voyage out of Philadelphia. The captain and part-owner of the vessel was Uriah Phillips Levy. Samuel Tully was the first mate, and John Dalton was a foremast hand, an ordinary sailor. Including the captain, there was a crew of seven. The George Washington sailed from Philadelphia on October 17, 1811 and arrived in Tenerife on December 13. Tenerife, a Spanish possession, is the largest of the Canary Islands, which are located in the Atlantic Ocean 62 miles off the coast of southern Morocco and 3400 miles southwest of Philadelphia. On Tenerife, the Captain Levy unloaded and sold his cargo of corn and took on fourteen quarter casks of Tenerife wine and 2500 Spanish milled silver dollars. On December 23, 1811, the ship then sailed southwest 900 miles to the Cape Verde Islands, 400 miles west of Cape-Vert in Senegal, the westernmost part of Africa.
The schooner reached the Isle of May (today, Maio), a Portuguese colony, on January 4, 1812. On the afternoon of January 9, the captain went to pay a visit on another vessel and instructed his crew to come for him at sundown. Two sailors arrived at the other ship as instructed, but the captain was not ready to go and sent them back, telling them to come again in an hour or two. When the two sailors were ready to go pick up the captain, Tulley, the first mate, ordered them to hoist the sails. They noticed that the anchor cables were cut and refused unless the mate told them what he intended to do with the vessel. He refused to tell them, but he said he would not give them the boat until they hoisted sail. They agreed, got into the boat, and went to get the captain. When they reached the captain, they alerted him to the danger. The captain looked, and the George Washington was gone. The George Washington sailed 2500 miles east to the Island of St. Lucie (today, Saint Lucia), an English colony in the eastern Caribbean. Tully and Dalton alternated at the helm. Also on board was a sailor named George Cummings, who was apparently against the scheme and very distressed, and an African-American cook named John Owen who also claimed to be opposed to the theft. On January 20, 1812, the day before they sighted land, there was a struggle with Cummings, and Tully and Dalton heaved him overboard and left him to drown. The next day, Tully and Dalton put Owen in the boat, and the two of them bored holes in the ship to scuttle her. They retrieved the money from the captain’s cabin along with the captain’s clothing and some of his property, then got in the boat and rowed to shore, leaving the George Washington to sink. When they got to shore Tully and Dalton split up the money and the captain’s property. They gave a large sum of money to Owen and told him that he must say that the ship had wrecked and that the captain and the rest of the crew had gotten into a different boat. Owen stuck to the story for a few days and then confessed to an American captain. All three were arrested and put on board a ship by U.S. authorities for transport back to America. That ship first landed in Martha’s Vineyard, where the defendants were arrested, which is why they are being tried in the District of Massachusetts. The Crimes Act of 1790 provided that crimes on the high seas should be prosecuted in the district where the accused is first brought.
Thacher asked, “Who are the government’s witnesses?”
“We have two witnesses: Captain Levy and the negro cook Owen.”
“How about the two sailors that went for the captain?” asked Austin.
“Yes, I would have preferred to have their testimony, but they have not been found.”
Austin probed a little further: “Did any witness see the defendants cut the anchor cables?”
“No, but it is clear that the cables were cut, and no one else could have done that.”
“What is the evidence that the cables were cut?” [Anchor “cables” were made of thick rope.]
“The captain retrieved the anchors the day after the ship was stolen and confirmed that the cables were cut by a sharp instrument. John Owen will also testify that he saw the other end of the cables on board ship, and they were definitely cut.”
"Was the cable preserved as evidence?”
“Well, no.”
Thacher piped in: “What became of the ship?”
“We don’t know. Presumably, she’s at the bottom of the ocean.”
“Was any of the property recovered?”
“Yes, the majority of the money and the captain’s clothing was recovered by U.S. authorities in St. Lucie and returned to Captain Levy. The cargo, of course, went down with the ship.” Blake then continued, “I need to tell you that I have had second thoughts about prosecuting the murder and barratry indictments. The murder occurred after a struggle in which both your clients were injured, and it appears that the struggle was initiated by Cummings. I am concerned that this may be a case of justifiable self-defense. As for the scuttling of the vessel, I don’t have a witness who actually saw your clients bore the holes, and for that matter, I don’t have a witness who can say what became of the ship. I have decided to try the case only on the first indictment for piracy. Piracy is a capital offense, and the defendants can die but one death.”
Austin smiled weakly and nodded. He and Thacher thanked the U.S. Attorney and took their leave.
Interview With the Pirates
Now that they knew what the case was about, they needed to hear what their clients had to say. This was for purposes of information only. Under the law at the time, criminal defendants were not deemed competent to testify because of their personal interest in the matter. The defendants would not be permitted to tell their side of the story. Any evidence in favor of the defense would have to be offered through other witnesses. Here was a problem. Only four people knew what happed aboard the George Washington: one was dead, two were disqualified from testifying, and the remaining witness was testifying for the government. Any damage to the government’s case would have to be done through cross-examination of the government witnesses. Perhaps Tully and Dalton could provide their lawyers with some ammunition.
Austin and Thacher made their way to Court Street. The Boston Gaol (jail) was located immediately behind the Old Colonial Courthouse. The Constitution required that the prisoners be given the opportunity to be released on bail pending trial. However, neither Tully nor Dalton had a penny, and neither knew a soul in the City of Boston who could stand as their surety; so they remained locked up in the Gaol. The Boston Gaol, which originally opened in 1635 as the prison for the entire Massachusetts Bay Colony, had been located in a succession of buildings. The existing Gaol was in building that had been erected in 1767 based on a design by colonial Governor Sir Francis Bernard. The Gaol was located off Court Street, immediately behind the Courthouse, and in the block bounded by School, Washington, and Tremont Streets. It had thick walls, small cells, and exceedingly small, iron-barred windows. According to contemporary reports, the building appeared as “a plain stone building of considerable strength,” located “in the rear of the court-house.” “The jail [was] a three-story building with corridors on the outside of the upper stories, in which were the prisoners confined for debt.” The Gaol was operated by the City of Boston. The District of Massachusetts had no facilities to incarcerate its prisoners. Federal law provided for federal prisoners to be kept in state prisons. In 1790, the Massachusetts Legislature had passed a law permitting the federal prisoners to be kept in Massachusetts institutions. Ironically, neither the state nor federal governments provided any funds for the expense of keeping these prisoners. In 1795, the jailer of the Boston Gaol had petitioned the United States District Court for funds for its prisoner, complaining that he had been providing for them out of his own pocket.
The jailer showed Austin and Thacher to a cell in which Tully and Dalton were being kept. A copy of the three indictments had been delivered to the defendants that morning. Dalton was holding the papers in his hands. His eyes were red, and his cheeks were stained with tears. Tully was a native of New York and a man of fair education. He did most of the talking. Tully had the thin muscular build and tan, leathery skin of a man who had spent the majority of his life at sea. He was forty-two years old, which was considered very old for a sailor. A sailor’s life was extremely hard, one of ceaseless toil and drudgery. Sailors were on duty so often that they never got more than four hours of sleep. The sailor had no control over where the ship was going or when (or if) it would return. He spent years away from the comforts of home and family. Next to the fisherman, the ordinary seaman earned the lowest wages of any worker in America. Between voyages, sailors were not paid and sometimes spent weeks in faraway ports. They lived in cheap boarding houses and had no alternative but to search for another berth. Going to sea was generally the most dangerous work a man could do. Shipwreck, falling overboard, disease, and injury resulted in many early deaths. Mortality data from the seaport town of Beverly, Massachusetts from the late 1700s show that half the sailors died in their twenties or thirties. Not one in ten farmers died so young. Ships’ records of that time show that sailoring was a young man’s occupation. It was far too strenuous for most by the time they reached forty. Historian Ira Dye calculated that, on average, common seamen spent only seven years at sea before returning to land—“swallowing the anchor” as they would have said. It is little wonder that, as Richard Henry Dana observed from his two-year service as an ordinary seaman on a voyage to the west coast, the sailors in the forecastle were “none but rough and vulgar men.”
Austin and Thacher asked Tully to explain what had happened. Tully explained that he had been the first mate and was primarily responsible for dealing with the crew and steering the ship. "It was a difficult voyage. The ship was leaky and had to be pumped constantly. She was difficult to control. The captain was a cheapskate and had stuck them with a short crew, barely enough to operate the ship. They anchored at the Isle of May. It was a bad anchorage. Ask anyone who has been there. They can tell you. There is a strong current, big waves roll into the harbor. The wind is unpredictable, and strong gusts can seem to come out of nowhere. While we were there, Captain Levy went off to visit and drink with another captain and left me to tend to the schooner. At sundown, I sent two men to fetch the captain. They came back and said that the captain wasn’t ready. About that time, I noticed that the schooner was out of position and drifting. This could be dangerous. We might collide with another vessel. We might drift onto the rocks. I decided to reposition the ship and try to drag the anchors into a more secure hold. I asked the negro cook to hold a candle for me to check the compass. I ordered the crew to hoist the sails. Two of the men didn’t want to do it because they needed to retrieve the captain. I ordered them to hoist sail first, then go get the captain, which they did.
“Now what I intended to do with the vessel is fairly simple, so I proceeded even without a full crew. Then everything went wrong. A gale of wind came out of nowhere. Between the wind, and the current, and the waves, the anchor cables snapped, I swear, and before I could do anything, we were out of the harbor and fairly out to sea. I tried everything I could think of to turn the ship around and make back for the harbor, but I couldn’t. The wind was against me. I only had three men with me. Dalton was green, and the cook knew nothing of sailoring. We could not operate the ship. We could not change the sails. We could not tack. All we could do was to keep her pointed east with the wind at our stern and steer toward land. I figured we could find a harbor, find additional crew, and make the trip back to fetch the captain. It was all an accident. I swear.”
Austin didn’t believe a word of it, but it wasn’t his place to judge. His duty was to provide a zealous defense of his clients and ensure that they received a fair trial. If his client swore that it was an accident, then he must find a way to prove that. “The captain said that the cables were cut with a sharp instrument.” Austin probed.
“Well,” ventured Tully, “I can see why they might think that. You see, we pull the anchors up with a machine called a windlass. We were having problems with the windlass, like everything else on board, so we nailed it into place with four pieces of boards. The edges of those boards were pretty sharp. If they were rubbing against the cables just right before they broke, then they might have looked cut.”
“What about the death of Mr. Cummings?” Austin asked.
“Oh, yes, that. Well, that was purely a case of self-defense.”
“Tell me about that.”
“Well, Cummings was a nervous sort. He was convinced that when we did get the schooner back to land, we’d all be hanged for having stolen her. It didn’t matter that it was an accident, said he. They would never believe us. He started acting kind of crazy. The closer we got to land, the crazier he got. On the day before we first sighted land, out of nowhere, he attacked me with a knife and a hammer. He hit me pretty hard on the head with that hammer and cut me real deep. I called out for help that he was going to murder me. Young Dalton came to my assistance, but he got cut, too. We didn’t have any choice. We grabbed his legs and heaved him overboard with all our strength. He went down still swinging that hammer and stabbing at the air with that knife. No choice. It was either him or me.”
“When you got to land, you abandoned the ship, and stole the money?”
“Yes, sir, I have to admit that we did do that.”
“Why did you do that?”
“Well, sir, the more I thought about it, the more I came to believe that Cummings was right. No one was going to believe us. They would think that we stole that vessel, and we would hang for it. We were just too afraid to sail her into harbor once we were there. We decided to set her adrift and make our way to land on the boat. At the same time, there was all that money that was going to go to waste. Someone was going to find it and get it, why not us? I’ve been at sea for more than twenty-five years, and I don’t have a dollar to my name. It just seemed like maybe I was owed something. So we divvied up the money, Owen, Dalton, and I, took some of the captain’s clothes and things, and made for land. We all agreed to say that the ship had wrecked, and the crew got off in two boats. I figured we could live a while in St. Lucie then get berths on new ships, and no one would ever be the wiser. But that black cook ruined it for everyone.”
“So you admit to the theft.”
“Yes, sir. I may be a thief, but I ain’t no pirate, and I ain’t no murderer.”
All this time Dalton had said nothing. He barely lifted his eyes to look his counsel in the face. Austin, walked over and put his hand on the young man’s shoulder. “Tell me a little about yourself.”
“John Dalton,” Austin was given to understand, was born Rowland Heathcoat on August 23, 1790 in Cheshire, England. He was just twenty-two. This was his second time at sea. He had had some trouble in England and had signed on as a sailor, giving his name as John Dalton. The ship had taken him to Philadelphia, where he quickly ran out of money and signed on as an ordinary sailor aboard the George Washington. He didn’t have anything to add to what Tully had said. Tully had told him that he would never make a dime as a sailor, that Tully had been working hard at it his whole life and had nothing to show for it. This fortune had just fallen in Dalton’s lap. It was too great a temptation to resist. Now he faced the gallows. He was scared, really scared. “Please, sir,” he implored Austin, “I know I done wrong, but I’m not a pirate.”
Defense Argument
Austin and Thacher promised to do their best and left the cell. They walked across the courtyard past the Old Courthouse and went to James’s office. They talked about what to do. It seemed all but hopeless. Even if Tully were telling the truth, which they doubted, who would believe it; and more importantly, how would they prove it? Nevertheless, it was their duty to try. Because of his prominent public position as County Attorney, they agreed that Austin would be lead counsel, but they would divide the work evenly. They began to brainstorm the defense.
“There is one thing I think I can agree on with our clients,” ventured James.
“What’s that?” asked Peter.
“It doesn’t seem like they committed piracy.” Peter agreed. Pirates were people who took vessels by force. They killed. They raped. They fired on unsuspecting and helpless merchant vessels and robbed them of their cargo. When pirates took somebody’s property, there was usually a sword or firearms involved. Our clients quietly sailed out into the night. No one was threatened. No one was hurt. Sure, they were thieves, and larceny is certainly a crime. But it is not a capital crime. The opportunity to take had presented itself to our clients, and they were unable to resist the temptation. They should be punished. But it seemed impossible that they should lose their lives for the unlawful taking of property and nothing more. The defense lawyers would have to argue the charge of “piracy” required proof of something more than mere theft—some force or threat of force.
Their problem, of course, was that the plain language of the federal statute said the exact opposite. The Crimes Act of 1790 provided: “[I]f any captain or mariner of any ship or other vessel, shall piratically and feloniously run away with such ship or vessel, or any goods or merchandize, to the value of fifty dollars, …; every such offender shall be deemed, taken, and adjudged to be, a pirate and felon, and being thereof convicted, shall suffer death.” However, statutes may be interpreted. The statute didn’t say that the crime punishable by death was merely to “run away” with the ship; rather it was to “piratically and feloniously run away” with the ship. The term “piratically” must signify something. It must indicate that the capital offense is to “run away” with the ship plus some additional element, presumably force or threat of force. James and Peter would each tackle this issue. They would each canvas their own law libraries and all the law books they could borrow from friends. They would collect the best statements in cases and treatises defining piracy as an act involving force. Surely that would not be difficult. They would collect all the cases they could find where defendants were convicted of piracy and demonstrate that they all involved force of some kind. Again, that should not be difficult. Finally, they must find some legal authority that stated that an act was not piracy or something closely analogous unless it involved force. This would be a challenge. If such legal authority even existed, it would be like finding a needle in a haystack, but they must try. They would get together in a few days, compare notes, and brief the argument for presentation to the court.
Preparing for Trial
In the meantime, they had to find some witnesses and determine who to strike off the jury panel. They already had list of thirty-six names of prospective jurors who would be called. These were men of substance, voting property owners, who lived all over the county—not only in Boston, but in the outlying communities as well. Who were they? What were their reputations? Were there any sailors in their families? Any ship’s captains? Were any of them shipowners themselves? What were their politics? Were they thought to be open-minded or closed-minded? Peter agreed to take responsibility for the jury. He would not be allowed to contact the prospective jurors themselves, but it was perfectly acceptable for him to inquire of their friends, neighbors, and business associate. Since this was a capital case, the defense would be entitled to exercise a certain number of peremptory challenges—meaning that they could have a person struck off the jury without giving any reason. Shipowners, ship captains were gone. Persons who had a sailor for a family member, those they would keep. James would find a witness. Tully seemed confident that there would be witnesses who could corroborate the poor conditions in the anchorage at the Isle of May—the current, the waves, the wind. Could he find someone who would testify that an anchor cable could snap if the wind picked up and the sails were deployed? James didn’t know anything about sailing, but that seemed plausible. What if an anchor cable was rubbing up against a board? Could it be severed and appear to be cut? What about the inability to return to harbor? On a vessel without enough men to operate the sails, would it be impossible to tack? To return to harbor against a stiff wind? Had anyone ever heard of such a thing? Could he find anyone to say that it was possible? James had a wide social circle that included many merchants and shipowners. They would know ships’ captains, who would know sailors. Surely someone would be willing and able to give helpful testimony.
James immediately began calling on friends and getting introductions. He spent the next several days on the wharves, talking to captains and sailors. The anchorage at the Isle of May was just as Tully described it. James found two captains who agreed with Tully and were willing to testify for the defense. Yes, the anchorage at the Isle of May was bad, the sea was rough in the bay, the current was strong, the wind was sometimes strong. The conditions Tully described, they explained, were common in the summer, during hurricane season, but it was not impossible that something similar should happen in January. Yes, vessels sometimes lost their anchor cables. One captain had even heard of an instance of that happening in the Cape Verde Islands. If a vessel drifted from its moorings, a good seaman would set sail to get the ship away from danger, although it would not be that difficult to return. For the most part, however, James struck out again and again. Most laughed in his face. Yes, anchor cables were made of rope, but they were 8-10 inches thick. They did not give way with a little tug—particularly when they were new, as these were. Even if one cable should snap, it was not likely that two would snap at the same time. No one had ever heard of a similar situation. Tacking wasn’t that difficult. There was no way the ship could not have been sailed back into harbor. No one who heard the story could believe that it was anything other than a deliberate theft of the ship. James would have to go with the witnesses he had. Chances were that the jury did not know any more about sailing than he did. Perhaps he could suggest his client’s version of events in cross-examination and let the jury’s imagination do the rest. Perhaps some of them would think the defense story was plausible, at least plausible enough to raise a reasonable doubt. He prayed that Blake would not talk to any of the people he had talked to and bring them as prosecution witnesses. Hopefully, Blake felt so confident in the case he had that he would not dig any deeper.
Austin made several more trips back to the Gaol. He confronted Tully with what he was learning from his interviews with sailors and sea captains and tried to tease out any additional information that might be useful in locating a witness or in conducting his cross examination. Austin went over the facts with Tully again and again to make sure that he had everything committed to memory perfectly. Mainly, however, he was worried about John Dalton. He told the boy to keep his spirits up and not to lose hope. James assured John that the judges and the prosecuting attorney were honorable men and that he would receive a fair trial. He made sure that both his clients understood that they could not testify and would have to rely on him to tell their story. He advised his clients how to comport themselves in the courtroom: Always be respectful in your attitude. Stand whenever the judges or jury enter or leave the courtroom. Keep a straight face. There will be awful things said about you. Don’t react. Don’t let the jury see that anything bothers you.
Austin also met with Thacher and went over the results of their legal research. As they had predicted, they found definitions of piracy that mentioned the use of force and plenty of cases of piracy that involved the use of force, but neither one of them had found anything in the law books suggesting that stealing a ship (or anything like that) was not piracy unless it involved force or the threat of force. Austin reported that he had been working on an argument based on an analogy. On land, the theft of property is larceny and is not a capital offense, but if larceny is combined with force or the threat of force it becomes robbery and is a capital offense. The same principle must apply on the high seas where larceny, as provided in section 16 of the Crimes Act of 1790 was punishable by a fine and public whipping, but piracy carried the death penalty. What is the difference between larceny and piracy on the high seas? It must be the same as the difference between larceny and robbery on land. Austin had some legal authorities to quote that made the distinction between larceny and robbery clearly and concisely. They would have to use common sense and all their persuasive powers to argue the analogy to the high seas. It wasn’t a particularly strong argument, but they would have to go with it.
Justice Joseph Story
While Austin and Thacher were busy preparing for trial, Supreme Court Justice Joseph Story arrived in Boston to convene the Circuit Court. In the Judiciary Act of 1789, Congress had organized the courts of the United States into three levels: The District Court, the Circuit Court, and the Supreme Court. The District Court was a trial court which primarily had responsibility for admiralty matters and cases involving property. Each District Court was presided over by a single judge, appointed for life by the President and confirmed by the Senate. Initially, there were thirteen federal districts, one for each state. The United States District Court for the District of Massachusetts alternated holding court each year between Boston and Salem. The Circuit Court, the intermediate court, was an appellate court for all decisions by the District Court. The Circuit Court also had original trial jurisdiction over several categories of more significant cases, including crimes against the United States. In 1812, there were seven federal circuit. The District of Massachusetts was in the First Circuit, and Justice Joseph Story was assigned to that circuit. The Supreme Court primarily heard appeals from the Circuit Courts, but also from the state supreme courts, if the case involved an issue of federal law. In 1812, there were six Associate Justices on the Supreme Court, and the Chief Justice was John Marshall. There were no judges appointed to the Circuit Court. Sessions of the Circuit Court were conducted by one Supreme Court Justice plus one district court judge from that circuit. Each of the Supreme Court justices was assigned to one of the circuits and was required to “ride circuit”—to travel to each of the various districts in their circuit twice a year and convene the Circuit Court. The Supreme Court Justices hated this responsibility, which kept them on the road most of the year. Piracy was a crime against the United States and would be tried in the Circuit Court. As the senior judge, Justice Story would preside over the trial, although it would be necessary fo Judge Davis to concur in all his rulings.
Joseph Story was born on September 18, 1779, in Marblehead, Massachusetts. His father, Dr. Elisha Story, was a member of the Sons of Liberty and took part in the Boston Tea Party in 1773. Dr. Story moved from Boston to Marblehead during the Revolutionary War. Dr. Story’s wife, Ruth Ruddock died shortly after the move, and Dr. Story remarried to Mehitable Pendrick in November 1778. Joseph was the first of eleven children born to this second marriage. Joseph Story entered Harvard College in January 1795. After graduation he read law with Samuel Sewall and Samuel Putnam and was admitted to the bar in July 1801. He served in the Massachusetts House of Representatives from 1805-1807. In 1808, he was elected to the United States House of Representatives to a partial term resulting from the death of Jacob Crowninshield. He did not run for reelection, but returned to the practice of law and to state politics where he was selected to be the Speaker of the Massachusetts House of Representatives. At age 32, Story was nominated by President James Madison to become an Associate Justice of the United States Supreme Court. He was (and remains) the youngest person ever to be nominated to that court. Story was confirmed on November 15, 1811 and sworn in on February 3, 1812.
The case of United States v. Tully and Dalton took place during Story’s first year as a Justice and was one of the first times he served as a judge in any capacity. The trial would take place in the second-floor courtroom of Boston’s Old Colonial Courthouse. The Old Courthouse was next to and immediately in front of the Gaol. The United States District Court would not have a courthouse of its own until 1933. The first session of that court in 1790 had been held at the Bunch of Grapes Tavern, from there the use of the Courthouse on Court Street was arranged with the city of Boston. That courthouse had been built in 1769. The Boston municipal courts would continue to hold court in that building until 1822. The United States District Court was permitted to utilize the courthouse when the municipal courts were not in session. Historian Caleb Snow described the building in 1828: “The Old Court House on the south side of Court-street, is a handsome building of brick, three stories high, and has on the roof an octagon cupola. On the lower floor are the offices of the United States District Marshal, and several private offices. In the second story, the floor of which is supported by pillars of the Tuscan order, are held the Circuit and District Courts of the U.S. for the Massachusetts District, and the office of the District Clerk. In the third story are convenient rooms for jurors, etc.” Other contemporary accounts are less flattering: “The County Court-House in Court Street is by no means an ornament to the town; it is small, inconvenient, and exposed to the noise of a very busy street.”
The Trial
On the morning of Tuesday, October 28, 1812, United States Marshall James Prince escorted his prisoners, Samuel Tulley and John Dalton, into the courtroom. They went and stood by their counsel behind a long wooden table. To their left, at another similar table, sat George Blake the United States Attorney. He had several stacks of paper in front of him, and he was busy scribbling some notes to himself. To his left was an empty jury box, twelve empty chairs surrounded by a wooden rail. Directly in front of them was the empty judge’s bench. It appeared as a large wooden wall almost as high as their heads behind which elevated were desks where the two judges would sit. Immediately in front of the bench as a small desk, also unoccupied, for the district clerk. Tulley and Dalton were dressed in the same clothes that they had been wearing when they were arrested in St. Lucie: Simple cotton shirts, loose-fitting woolen pants, and pale woolen jackets. The lawyers were dressed fashionably: Long tan or brown pants—nobody wore breeches and knee socks anymore—a silk vest, a grey cutaway coat, a white linen shirt, and a loosely-tied white silk cravate. All the men wore their hair short. Long hair and wigs had also gone out of style. The prisoners looked around. The courtroom was abuzz with activity. Lawyers were coming in and out and conversing with each other. Everyone spoke in hushed whispers. Dalton glanced behind him. There was a wooden rail—the bar—which separated the part of the courtroom where he was from the long benches in the gallery. In one section of the gallery, were thirty-six well-dressed gentlemen, none of whom looked happy to be there. Dalton saw Captain Levy and John Owen. But there were also a great many people, including many women, who were quizzically looking at him—curious spectators here to see the trial of a capital case. When the clock struck ten, the door in the front of the courtroom swung open, and the clerk loudly announced: “Oyez! Oyez! Oyez! The United States Circuit Court is now in session. God save the United States of America and this honorable court!” Silence fell on the courtroom. Everyone rose to their feet. Justice Story and Judge Davis, both wearing long black robes, quickly proceeded into the courtroom and up the steps to their seats on the bench.
Arraignment
Justice Story smiled broadly. This was all still new to him, and he relished the opportunity to preside over an important trial. Justice Story instructed the courtroom to be seated and then glanced at the U.S. Attorney and said, “We are here for an arraignment this morning, is that right counsel?”
“Yes, Your Honor.”
Justice Story looked over the papers in front of him and said, “The court calls the case of United States vs. Samuel Tully and John Dalton.” Austin, Thacher, Tully, and Dalton all stood and faced the judges. “The clerk will now read the indictment,” said Justice Story.
The clerk rose from his desk with a two-page document in hand. As George Blake had promised only the first indictment was read:
The clerk looked up and addressed the prisoneers.
“Samuel Tully, how do you plead, Guilty or Not Guilty?”
“Not Guilty.”
“And how will you be tried?”
“By God and my country.” This signified a demand for a jury trial.
“Then God send you a good deliverance.”
The clerk repeated this with Dalton who also pled Not Guilty and demanded a jury trial. U.S. Marshall Prince then escorted Tully and Dalton to the prisoners’ dock, a section of the courtroom behind the counsel tables partitioned by a low, wooden wall, and they were seated in the two chairs provided. The court then proceeded directly into the trial.
Jury Selection
Justice Story instructed the clerk to seat twelve jurors. The clerk called twelve names, and twelve men got up and made their way to the jury box. Each of the jurors was then briefly questioned by Justice Story or Judge Davis and by the U.S. Attorney and one of the defense lawyers. The purpose was to discover if any of the jurors must be excused for cause, a personal or financial interest in the case or evident bias. The questions were perfunctory: Do you own an interest in the George Washington? Are you related to any of the parties or witnesses? Do you know either of the prisoners? Do you know Captain Levy? Have you formed an opinion as to the guilt of the defendants? This was also the time when the prisoners’ counsel could also exercise his peremptory challenges and have jurors they deemed unfavorable excused without stating a reason. If any of the jurors answered in a way that disqualified himself from service, or if any of the jurors were challenged by the prisoners, he would be excused and replaced with another juror who would be asked the same questions. Thacher had done his work thoroughly, and the defense lawyers thought they had identified the jurors who would be particularly bad for them. These were excused.
The whole process took only a few minutes, at the end of which twelve men were sworn to render a true verdict according to the evidence: Samuel Harrington and Samuel Gates, of Worcester; John Clark, of Cambridge; Jotham Lincoln and Hawkes Fearing, Jr., of Hingham; Abraham Tuckerman, of Boston; Solomon Richards, Benjamin Seaver, and Josiah Seaverns, of Roxbury; James Lewis and Isaac N. Field, Dorchester; and as the foreman, Justice Story appointed Dr. William Stearns, a 58-year-old physician from Salem. These twelve men would decide the fate of Tully and Dalton
George Blake then rose to deliver his Opening Statement and to begin the government's case that he believed would result in the execution of both Tully and Dalton.
Read Part 2: Trial of the Pirates
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