A Case of Piracy: Part 2-Trial of the Pirates
A Case of Piracy
Historical Trial Series by Eric Fryar
Part 2: Trial of the Pirates
Two sailors are charged with piracy and murder in 1812 Boston. The most talked-about trial of its day. A surprise ending.
The Trial
The two sailors charged with piracy, Samuel Tully and John Dalton, sat apprehensively in the crowded Boston courtroom on the morning of Tuesday, October 28, 1812. From their places in the prisoners' dock, they could see their two lawyers, James Austin and Peter Thacher, immediately in front of them. Also in front of them was the prosecutor, United States Attorney George Blake. At the front of the courtroom were the two judges, United States Supreme Court Justice Joseph Story and United States District Judge John Davis.
.jpeg "Supreme Court Justice Joseph Story") |
| Justice Joseph Story |
The twelve jurors were seated to their left. The gallery behind them was full to overflowing with curious spectators waiting to see the legal heavy-weights slug it out in this capital case. This morning they had heard the indictment read, an indictment for piracy which carried the death penalty. They had pleaded not guilty and demanded a jury trial. A jury had been seated to judge them. They waited.
Opening Statement for the United States
The U.S. Attorney then rose to give the government’s opening statement. The area in the courtroom between the counsel tables and the bench, and bordered on one side by the jury box, is called the well. It is sacred space. No lawyer can enter the well to approach a witness or the bench without the permission of the court. The only exception is when a lawyer is making an opening statement or a closing argument. Then the lawyer stands in the well, in front of the jury, and addresses the jury directly. George Blake stepped from behind the table where he was sitting, entered the well, faced the jury, and began his opening statement. Attorneys were not permitted to argue their case in opening or to go into great detail about the facts. The purpose of the opening was to give the jury a short roadmap of what was expected to be proven and what evidence would be presented.
“May it please the court. Gentlemen of the jury, it is my painful duty to lay before you the law on which the indictment is founded and the evidence which would support the charge against the prisoners and to give you a general outline of what the government expects to prove. The law on which the indictment is based is a statute passed by Congress, which provides as follows.” Blake picked up a book that was laying open on counsel table and began to read: “’If any person or persons shall commit upon the high seas, or in any river, haven, basin or bay out of the jurisdiction of any particular state, murder or robbery, or any other offense, which, if committed within the body of a country, would be punishable with death; or if 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, or yield up sup ship or vessel voluntarily to any pirate, or if any seaman shall lay violent hands upon his commander, thereby to hinder and prevent his fighting in defense of his ship or goods committed to his trust, or shall make a revolt in the ship, every such offender shall be deemed, taken, and adjudged to be a pirate and felon, and being thereof convicted, shall suffer death.’ Furthermore,” stated Blake, “the trial of crimes committed on the high seas, or in any place out of the jurisdiction of any particular state, shall be in the district where the offender is apprehended, or where he may first be brought.”
Blake then outlined the case he intended to lay before the jury. They would hear from Captain Uriah Levy, the master of the schooner George Washington. He will testify that the George Washington was a new ship on her maiden voyage, that he sailed her from Philadelphia across the Atlantic Ocean to Tenerife where he sold a cargo of corn and acquired 2500 Spanish silver dollars and fourteen quarter casks of wine, that he then sailed to the Isle of May in the Cape Verde Islands and anchored in the harbor on January 4, 1812. Captain Levy went to pay a social call on another captain on January 9, 1812. While he was away, the evidence will show that the prisoners at the bar, Samuel Tully, the first mate of the schooner, and John Dalton, a sailor aboard the vessel, cut the anchor cables. Tully ordered the crew to hoist the sails and then sent two of the sailors to pick up the captain. The two sailors reached the captain, but when they looked, the ship was gone. The captain will testify that on the following day, he was able to retrieve the anchors and that he examined the cables and determined that they had been cut with a sharp instrument. Tully and Dalton sailed her out to sea and then back across the ocean to the Island of St. Lucie. There were only two other crew members on board, neither of which had anything to do with the theft of the ship, George Cummings, a sailor, and John Owens, a negro cook. Blake explained that the jury would hear from John Owens. He would testify that he witnessed Tully and Dalton run away with the vessel. He would testify that he examined the cable and saw that it was cut. He would testify further that on the day before they came in sight of land, there was a scuffle between the prisoners and Mr. Cummings and that the prisoners threw Mr. Cummings overboard and left him to drown. Of course, the defendants were not being charged with Cummings’s murder, but this fact was highly damaging to the defendants, and Blake was not going to leave it out. Blake further assured the jury that Owens would testify that the two prisoners at the bar scuttled the George Washington by boring holes in her bottom and then made for land in the ship’s boat. The took the $2500, gave some of it to Owen, and instructed him to lie about what had happened. After a few days, Owen’s conscience got the better of him, and he confessed to an American captain. Owen, Tully, and Dalton were apprehended and sent back to the United State, being first brought to this judicial district. Blake stepped back behind counsel table and addressed the bench:
Government Witnesses
James Holmes
“Your Honors, the United States calls James Holmes to the stand.” A tall gentleman stepped forward from the gallery. The clerk swore him to tell the truth, the whole truth, and nothing but the truth. He then stepped into the witness stand. The questioning of witnesses in an 1812 court would not seem unfamiliar today. Legal historian Lawrence Friedman wrote that “the rhythm of witnesses and cross-examination—these have remained fundamentally unaltered. … [However, w]itnesses apparently had a good deal of leeway to tell their stories uninterrupted; there was less fussing over minor points of evidence than would be true today, less shadowboxing over rules of procedure.” One minor difference: Witnesses actually stood to testify in the witness “stand,” a waist-high, three-sided wooden structure facing the lawyers between the jury box and the judge’s bench.
Blake remained standing and began: “State your name for the Court.”
“James Holmes”
“Mr. Holmes, what is your profession.”
“I am a ship’s captain.”
“Explain your relationship to the prisoners at the bar.”
“I brought the prisoners at the bar, together with John Owen, a black man, from the Island of St. Lucie to the United States, by the authority of the Island.”
“Where in the United States were the prisoners first brought.”
“The first port we made was Martha's Vineyard. The three men were delivered to the civil authority, committed to prison in New Bedford, and afterwards brought to Boston.”
This was an odd choice for the lead off witness, but George Blake's approach to prosecution was entirely businesslike. He did not have a flare for the dramatic. The first thing he did was to establish that the venue of the trial was proper. There was no cross-examination. The witness was dismissed.
Uriah Phillips Levy -- Direct Examination
“Your Honors, the United States call Captain Uriah Levy.” The captain came forward, was sworn, and took his place in the witness stand. Captain Levy was just nineteen years old, but he had been a sailor ever since he ran away from home at the age of ten. He owned a one-third interest in the schooner George Washington, which had been his first command as a captain. After Tully and Dalton had stolen his ship, he had tracked them down, paid for their transportation back to the United States, and saw to their prosecution. While waiting for the trial to commence, he had volunteered for service in the United States Navy in the War of 1812. His commission was granted a week before the trial began. He would become a war hero, a career naval officer, and one of the most colorful and respected officers in the early navy.
“State your name for the Court.”
“Captain Uriah Phillips Levy.”
“Captain Levy are you familiar with the schooner George Washington?”
“I am.”
“Explain to the jury your relationship to that vessel.”
“I was the master and joint owner with two other American citizens of the schooner George Washington.”
“Describe the schooner George Washington.”
“She was a new vessel, American registered, built in the State of Delaware, and had not been to sea till the voyage in question.”
“Describe the maiden voyage of the schooner George Washington.”
“On October 17, 1811, we sailed from the Delaware River on a voyage to Tenerife. My crew consisted of Samuel Tully the mate, John Dalton a foremast hand-the prisoners, a sailor called Neal, Daniel Hopkins, George Cummings, and John Owen, cook. On December 13, we arrived at Tenerife, landed the cargo, and took on board fourteen quarter casks of wine and $2,500 in specie. On December 23, we sailed from Tenerife to the Isle of May, one of the Cape de Verde Islands, and arrived on January 4th. The place for anchorage was pointed out to me by an American captain who lay there, and the schooner was moored in about ten fathoms [60 feet] of water, by two cables, one 9 ½ inches, the other 8 ½ inches, and each 75 and 60 fathoms in length. On January 9th at three o'clock, P. M., I went on shore and left all hands on board, directing the Mate to send the boat on board the brig Lambert, Captain Levi Joy, then laying there, at sun down. Joseph Neal and Daniel Hopkins came with the boat at that time. I ordered them to return and come again in an hour or two. At eight o'clock Joseph and Daniel came again; they stated to me a conversation between themselves and the mate on board the schooner….”
“Objection.” James Austin was on his feet. “This is hearsay.” Hearsay is the statement of a third-party (not the defendant) made out of court and without the possibility of cross-examination. Hearsay statements, if introduced for their truth, are inadmissible. Justice Story sustained the objection and instructed the witness not to repeat the words of the two sailors.
Blake continued, “What happened next?”
“I immediately looked for the vessel, but saw she was gone from the place she was moored, and I have never seen her since.”
“Was the vessel securely anchored?”
“Yes.”
"Who had charge of this securely-anchored vessel?"
"The mate, Samuel Tully."
“Were you able to ascertain how a securely-anchored vessel might have sailed away?”
“Yes.”
“Explain that to the jury.”
“The next day I caused search to be made for the anchors, which were found and weighed. The cables were fastened to them, but both cables had been cut with some sharp instrument. From an examination of the length, I had not the least doubt they had been cut at the windlass.”
From Blake's perspective, this witness essentially established his case. All Blake had to prove was that Tully and Dalton had "run away" with the ship. Captain Levy was an unimpeachable eye witness who testified that Tully had charge of the ship and that the ship sailed away with Tully in possession. That the anchor cable was cut negated the possibility of an accident. The only thing that was missing was Dalton's participation, but Blake had another witness who would supply that fact and much more.
“Pass the witness.” George Blake sat down.
Cross-examination of Uriah Phillips Levy
Justice Story looked at James Austin. James stood up, cleared his throat, looked at his notes, then nodded to Captain Levy. “Good morning, Captain. I have just a few questions for you."
Austin's objectives in cross-examination with this witness were limited. Levy had seen his clients run away with the ship, and Levy had no reason to lie. Austin's theory of defense was, first, that the sailing away had been an accident and that, second, the theft of the ship was not piracy. Austin decided to start with his first theory, to get as much as the captain would concede about the bad conditions of the anchorage, and to suggest to.jury the possibility of an accidental sailing.
"The anchorage at the Isle of May is in an open road, is it not?”
“It is.”
"Meaning that there is no protection from wind and waves?"
"That is correct."
“And there is a strong current which is felt immediately on leaving the bay?”
“Yes, sir.”
“The George Washington was a difficult ship, wasn’t she?”
“No sir. She was a good sailer.”
“Was she not leaky and required constant pumping?”
“She required some pumping.”
“How often did she require pumping?”
“On her outward passage with a cargo of corn, we used to pump every half hour.”
“And when you left the ship, she still had her sails up, didn’t she?”
“The last time I saw the vessel, they had been swaying up the foresail; the topsail was in the cabin; the foreyards, gib-boom and foresail were on deck. The forerigging had been set up and rattled down.”
“But she could have been made ready to sail very easily, isn’t that true?”
“The vessel might have been got ready for sea in five minutes.”
“And it was windy, was it not?”
“At the time there was only a moderate breeze.”
That was about as much as Austin could hope for from this witness. He did not have to prove an accidental sailing--indeed, there was no way he could do so. He only had to create a reasonable doubt. Austin shifted his attack to challenge Levy as an eyewitness.
“At the time the ship departed from her anchorage, you were visiting with Captain Joy, isn’t that right?”
“Yes”
“You weren’t looking at your ship when it departed?”
“No.”
“So all the sails could have been set, couldn’t they?”
“All sail could have been set.”
“The sailors first came to get you at sundown, but you sent them way for another hour or two, isn’t that what you testified?”
“Yes.”
“So, at the point in time that you testified the ship was already gone, it was quite dark, was it not?”
“When I first saw the schooner had gone, it was dark, yet light enough to have discovered her if she had been in the bay.”
“Why didn’t you go after her?”
“No vessel was there capable of pursuing her with any hope of overtaking her.”
That tack wasn't really working. Austin shifted to the most damaging testimony, the cut anchor cable.
“Now that evening, the sea was particularly heavy in the bay, wasn’t it sir?”
“There was generally a heavy sea and swells running into the bay.”
“Now you testified that the cable was severed at the windlass, correct?”
“Yes.”
“And at exactly that point on the cable, you had four pieces of board in contact with the cable?”
“The windlass had been whelped with four pieces of board at each end.”
“And this was true while the vessel was being pitched on a heavy sea?”
“Yes.”
"And the anchor cables would have been rubbing against the pieces of board in the heavy swells?"
"Yes."
"The anchor cables are made of rope, are they not?"
"Yes, sir."
"You testified that the anchor cables were severed at the windlass, did you not?"
"Yes, sir."
"So the anchor cables were severed at exactly the place where the boards were rubbing on the cables?"
"Yes, but the cables were cut."
"You can only testify that they appeared to be cut to you. Isn't that the case, sir?"
"Yes, sir."
"We do not have those cables to examine in court, do we, sir?"
"No, sir."
“Now these two sailors who came to get you, who would have been in a position to know if the cable had been cut? Why aren’t they here to testify?”
“Joseph and Daniel left the Isle of May with my consent for the United States. I have made careful inquiries for them, but have not found where they are.”
That had gone rather well. Perhaps, this witness might help bolster the character of the defendants.
“Why, sir, with the wind and swells and the leaks did you choose to leave your ship?”
“I often left the schooner in care of the mate before this time.”
“And the mate, Mr. Tully, had always proved trustworthy?”
“Yes, before this time.”
“And Mr. Dalton, was he not also a dutiful sailor?”
“Dalton complained of being sick on the voyage, but always did his duty.”
Austin now finished with some clean up questions on matters that the prosecution had neglected.
“What became of the vessel?”
“I don’t know. I sent circular letters respecting my loss to the United States and the West Indies, but have never obtained any information respecting the schooner.”
“Did you recover the greater part of the missing money?”
“The American consul gave such intelligence respecting men detained at St. Lucie as induced me to go there, where I received from the commanding officer $1350 and my clothes, the balance being detained for expenses.”
“So you actually went to St. Lucie?”
“Yes”
“Why did you not speak with the defendants there so as to ascertain what had really happened?”
"The prisoners had left the Island before my arrival.”
“No further questions.” James sat down. He hadn’t done much damage, but the captain really had not been able to testify to any criminal acts. He hoped that he had planted the seed in the jury’s mind of a cable, rubbing up against the boards nailed to the windlass, in a heavy, rolling sea, that might have been severed on its own when the wind hit the sails.
Blake rose to his feet. He didn't think Austin had accomplished much. “I have nothing further for this witness.” Captain Levy left the stand and retook his seat in the gallery.
John Owen -- Direct Examination
Blake addressed the court: “The government calls John Owen.”
Owen walked forward and was sworn.
“State your name, please.”
“John Owen.”
“State your connection to the schooner George Washington”
“I belonged to the crew of the American schooner George Washington, commanded by captain Levy. I was the cook.”
“Tell us what you remember about the voyage of the George Washington.”
“A few months since, we sailed from Philadelphia in the schooner to the Island of Tenerife and from thence to the Isle of May. Whilst lying at the Isle of May, one day after dinner, the captain went aboard an American vessel lying there, and desired the mate to send the boat for him at sunset, which was done, but the captain did not return, and desired the boat again to be sent for him, at eight o'clock. Being cook of the vessel I prepared supper at about eight in the evening, of which the mate, Samuel Tully, partook. The captain not being arrived, the provisions were left waiting for him on the table, and I went to sleep. Some time afterwards I was called by Samuel Tully to hold a lantern to the pigeonhole, through the cabin, on deck, in order for him to see by the compass how the vessel was lying, it being then still at anchor. I was called up again by the mate, as were all hands, and ordered to make sail, the mate declaring that she was drifted. Sail was made until one of the sailors, named Neal, said he would not hoist the sail for both cables were cut. The mate insisted….”
Austin leapt to his feet, but not fast enough to keep the jury from hearing that the rope had been cut. “Objection, Your Honor. Hearsay.”
This time Blake fought back. “Your Honor. The statements of the sailors are res gestae. They are necessary to understand Mr. Tully’s statements.” The statements of the defendant are never hearsay but always admissible as a confession. The statements of other persons, however, are usually inadmissible hearsay. Res gestae (Latin for “things done.”) is a common law exception to the hearsay rule where hearsay statements are part of an event that is otherwise admissible. For example, if a person makes an assertion and the defendant says, “That’s true.” Then it is necessary to know the statement of the other person for the statement of the defendant to make sense. Justice Story overruled the objection but instructed the jury that they were not to consider the statements of the other sailors for their truth but only as the context for the statements of the prisoners.
Blake thanked the court and turned to the witness, “Continue, Mr. Owen. Tell us what happened that night.”
“Neal and a man named Dan refused to raise the sails, unless Tully would satisfy them as to what he was going to do with the vessel. The mate refused, saying it did not signify, still insisting that the sails be hoisted, adding, ‘After the sails are up I will give you the boat.’ The sails were accordingly hoisted by all hands and the mate gave Neal and Dan the boat, in which, having put their clothes, they departed. I asked to go in the boat but the mate refused, declaring that no other person should quit the vessel. The mate then sailed the schooner right out of the harbor and continued at the helm nearly all night."
“Who was on the vessel?”
“The men remaining on the vessel were the Mate, Samuel Tully; Jack, who is now here and calls himself John Dalton; George, and myself.”
“Then what happened?”
“About two weeks were spent at sea. During the last part George became uneasy in his mind, fell from his appetite, and used to go and kiss the Mate's and Jack's hands or feet. One evening when land was expected soon George went to Jack and asked him when the land would be seen. Jack replied 'tomorrow,' and George replied, 'good-bye, you will not see me any more.' Jack, who was steering, treated what George said lightly, asked him what was the matter, and said he was foolish; but George repeated the same things. I went below to sleep, leaving George sitting on one side of the deck and the Mate sitting opposite on the other side, on the hen coops. About eleven or twelve I heard a noise upon the deck and myself called for; came upon the deck, when Jack said that George was killing the Mate. The Mate and Jack together had George on the gunwale of the vessel, throwing him overboard. I was much confused and did not know what to do. I said it could not be and ran to the helm. The Mate and Jack threw George overboard, the Mate saying "Overboard he shall go at the risk of my life."
“What happened next?”
“The next evening land was seen and we lay to until morning. The Mate then had the long boat hoisted out, put into it the Captain's large chest and several other things with the trunks of Jack and myself. He made me get into the boat which was fastened to a line and let the line run out to a great length (I was still in the boat), then the line being made fast, the boat was towed by the vessel. Afterwards the boat was then hauled up alongside the vessel, and the Mate and Jack came into it. I know by what was said by the Mate and Jack, that during the time I was in the boat the two men bored holes in the bottom of the vessel in order to occasion her to sink her but she did not sink so long as I saw her.”
“How did you come to be in St. Lucie?”
“When the boat had quitted the vessel, the Mate distributed to Jack and me dollars which belonged to the Captain; the Mate saying we must keep secret everything that had happened, and keep the money for ourselves. That evening the boat came near to the land, but being afraid of the reefs, we stood out to sea again and next day again approached and coming ashore, we found the land which we did not know before to be the Island of St. Lucie, West Indies. We went to the first house, it was inhabited by persons who spoke only French, and could not make themselves understood. The Mate and Dalton repeatedly enjoined me not to tell what had happened, but to say they had run afoul of a wreck and were cast away, that the Captain had taken one boat and we another. The Mate went to town. Dalton and I stayed till he returned with the harbor master, who took us all in a boat, and rowed us round to the town. Dalton then went to one place to live and myself and the Mate to another.”
“How did the truth come out?”
“I continued to repeat the story I had been instructed in, but grew uneasy in mind at being obliged to lie to everybody and resolved to disclose the affair. I went one evening to Captain Taylor's, an American captain, and told the truth as I now relate it. Thereupon we were all arrested, and brought here as prisoners.”
“No further questions.”
Cross-examination of John Owen
James Austin rose and quickly reflected. That was not so bad. Owens had not seen the cable cut. The mate had checked the compass to determine if the ship was drifting. The cable might has snapped when repositioning the vessel. This witness did not seem to know. Throwing George Cummings overboard was bad, but he could deal with that.
“Mr. Owen, the mate, Mr. Tully, told you that he thought the vessel was drifting?
“Yes.”
“He asked you to hold the candle so he could check the ship’s position on the compass?”
“Yes.”
“It must have been quite dark?”
“When the vessel was said to be adrift it was candle light, but the land could be seen from the deck.”
“Now you say that you wanted to get into the boat sent for the captain, correct?”
“Yes.”
“Mr. Dalton also wanted to get into that boat, didn’t he?”
“Dalton assisted in lowering down the boat. I cannot say whether he asked for leave to go ashore or not.”
“Then when Mr. Tully was attempting to reposition the ship, she broke loose from her moorings.”
“Yes.”
“It was dark.”
“The night was dark.”
“You don’t know what course was steered, do you?”
“I cannot say what course they steered.”
“And that night, it was Mr. Tully steering the vessel, was it not?” Austin had a duty to represent each of his clients. He had long since concluded that the whole theft was Tully’s doing. Dalton had only gone along. Austin hoped to make clear that Dalton was less culpable. Even if Tully was convicted, perhaps there was hope for Dalton.
“During most of the night the Mate kept the helm, but when he left Jack stood at the helm.”
“You don’t know what attempts Mr. Tully and Mr. Dalton made to return the vessel to the harbor?”
“I do not know if any attempts were made to put it back, but the next morning there was no land in sight.”
Austin switched topics. “And you don’t know that the anchor cable was cut, do you?”
“Oh, yes sir. It was cut.”
“You didn’t see anybody cut the cables, did you sir?”
“No sir.”
“Then you don’t know that it was cut?”
“Yes, sir. I do.” Then Austin broke the cardinal rule of cross-examination: Never ask a question that you don’t know the answer to. “How do you say it was cut?”
“From the remains of the cables. The cables must have been cut with an axe or knife.”
Austin quickly switched subjects. “This George Cummings, was he an American?”
“George, the deceased, was a foreigner.”
“And he told you that he knew he would die?”
“The morning before he died he gave me his earrings and breast pin and said he should not live to see land.”
“He attacked Mr. Tully.”
“When I came up on deck and saw George struggling, he had in one hand a knife and in the other a hammer”
“Was Mr. Tully wounded in this attack?”
“Oh yes sir, the Mate was wounded badly in the cheek and back of his ear with the knife, and on the back of his head with the hammer; he also received a wound across the hand which left a scar.”
A juror spoke up and asked: “Did Mr. Tully or Mr. Dalton ever express regret over what happened to Mr. Cummings?”
Owen turned his attention to the jury: “I never heard the Mate or Dalton express regret.”
Austin did not think this was going particularly well. He decided to end it with what he thought was a fairly safe question.
“You did take the money, didn’t you?”
“Yes, sir. I took it.”
“And your feelings about this matter didn’t keep you from spending that money on yourself?”
“No, Sir. I never expended the money that I received from the Mate. I did not go into any company or place of amusement in St. Lucie. The money was taken from me by the officers of the government.”
Enough. “No further questions.” James sat down.
George Blake stood. “Your Honors. The government rests.”
Defense Witnesses
Benjamin Harris
“Mr. Austin,” intoned Justice Story, “Call your first witness.”
Peter Thacher stood up. “If it please the court, Your Honors, the defense calls Captain Benjamin Harris”
A stocky middle-aged man stepped forward and was sworn. “State your name for the court.”
“Benjamin Harris”
“What is your profession?”
“I am a ship’s captain.”
“Describe your experience as a seaman.”
“I am an experienced seaman having been many years conversant with the sea."
“Are you familiar with the Isle of May?”
“Yes, I have been at the Isle of May and other Cape de Verde Islands.”
“How would you describe the winds and seas at the Isle of May?”
“There is a pretty regular trade wind prevailing there which blows off the coast, and sometimes there are what is called heavy rollers, which are great billows or waves driven in by the force of the winds or other causes, and very heavy rollers are frequent during the hurricane months, but not usual in the month of January.”
“How would you describe the anchorage at the Isle of May?”
“The anchorage in the Isle of May is very bad. Many anchors have been lost there which are apt to cut off the cables of vessels riding there. Vessels are apt to part their cables and drift out. My own vessel was driven out in that manner at Bona Vista.”
“And what would an experience seaman do if his vessel broke loose from its moorings?”
“When a vessel is found to be drifting an experienced seaman would in the first place make sail and endeavor to beat to the windward, and in moderate weather should not think it difficult to get back or to make the Island of Jago where the vessels usually touch.”
“Pass the witness”
“No questions,” said Blake.
Michael Hopkins
“The defense now calls Captain Michael Hopkins.”
Another swarthy man made he was from the gallery to the witness stand and was sworn by the District Clerk. Thacher asked him, “Please state your name and profession.”
“I am Captain Michael Hopkins, a ship’s captain”
“Captain Hopkins, have you heard the testimony of Captain Benjamin Harris?"
“Yes.”
“Do you, based on your experience as a sea captain, corroborate the evidence of Captain Harris?”
“I do.”
“How would you describe the anchorage at the Isle of May?”
“The anchorage ground is bad, there are many foul anchors in the bay, vessels frequently part their cables and drift out. In the month of August, September, and November it is very rough with heavy swells and rollers.”
“Have you been made aware of the condition of the schooner George Washington at the Isle of May in January of this year?”
“Yes, I have”
“Based on your years of experience as a sea captain, what is your opinion of the performance of the crew of the George Washington on the night of January 9, 1812?”
“It is not incredible that a vessel like the George Washington situated as it was and short manned might be driven off and find it difficult to return. When the vessel was found to have parted her cables it was seamanlike to make sail.”
"No further questions."
Blake rose: "Your honors, I have no questions for this witness."
Thacher said, “Thank you, Captain Hopkins, you are dismissed. Your honors, the defense rests.”
At this point, it was about 2:00 p.m. Everyone was hungry, tired, and eager for a break. The Court adjourned for one hour. Justice Story directed the jury to continue together and not to converse on the case before them, but to keep their minds perfectly unbiassed until the whole cause was finished. “I take it the prisoners have no objection to the jury’s taking some moderate refreshment?”
“No, Your Honor,” replied Thacher. Justice Story ordered that the Marshal escort the jurors to the tavern and provide them with lunch and to return in one hour.
At 3:00 p.m., court resumed. Justice Story asked, “Is there any rebuttal from the government?”
Blake responded, “No, Your Honor.”
“Then let us proceed with closing arguments.”
Closing Arguments
Defense Arguments
Ordinarily, the prosecution has the right to open and close the summations. Blake, however, was supremely confident. He didn’t see the need to plow the same ground twice and extend the trial late into the evening. Therefore, Blake waived his opening argument and allowed the defense lawyers to begin. The court reporter noted that both James Austin and Peter Thacher “severally addressed the Jury at great length, on behalf of the prisoners.” The reporter expressed regret that he was unable to review the defense lawyers’ notes to give a more complete statement of the arguments, but he summarized the points and took down their words as best he could.
Peter Thacher
Peter Thacher rose and entered the well, “May it please the Court.” Thacher thanked the jury for their earnest attention and reminded them of the awesome responsibility on their shoulders. Samuel Tulley and John Dalton are on trial for their very lives. They cannot be convicted if there is any reasonable doubt as to their guilt. Proof beyond a reasonable doubt is a very high standard. This means that the evidence submitted by the government must leave no reason whatsoever to doubt the guilt of the accused. And in this case, much doubt remains. “The whole evidence proffered in this case, if the witnesses for the government are to be credited, is not inconsistent with the accidental departure of the schooner, or at least without any criminal agency on the part of the Mate or Dalton.” Blake insisted that no witness had seen the anchor cables being cut, much less the defendants doing the cutting. Captain Levy had admitted that the cables were rubbing up against boards nailed to the windlass, at the exact spot where the cables were severed. There were swells rubbing the cables against the boards necessarily leaving them in a weakened state. The testimony of Captains Harris and Hopkins was critical, unimpeached, and unrefuted. Ships did sometimes part their cables and lose their anchors. They were aware of it having happened in the Cape Verde Islands. If a ship was set adrift, a good seaman should set sail—exactly what Tulley did. John Owen testified that Tully had stated that the ship was adrift, that he had ordered the sails be hoisted for that reason, that Owen had held the candle for Tully to check the compass. Owen could not testify that Tulley did not attempt to return to the harbor, but with the current and wind and having an insufficient crew, he was unable to do so. He found himself far out to sea with no choice but to sail with the wind until land should be sighted again.
But Thacher also had to deal with the conduct of the defendants at St. Lucie: By Owen’s own testimony, during the voyage, the sailor Cummings lost his mind, became convinced that he would die. He armed himself and viciously attacked Tully with the intent of murder. Tully and Dalton heaved him overboard—a clear case of self-defense. You will take note that the government has not charged the prisoners at the bar with the death of George Cummings. Whatever events might have occurred at sea, were extremely distressing to my clients, “rendering a concealment necessary when they arrived at St. Lucie, but the fact of feloniously and piratically running away was not made out in evidence."
This was all plausible, but it could not be squared with the testimony of John Owens. That testimony, Thacher argued, should be disregarded by the jury. “The principal witness in the case, and the witness from whom alone the facts came, by which the defendants could be charged, was John Owen, the cook.” Thacher exclaimed that this was a very thin thread indeed on which to hang a man’s life. “He is a single witness. He is suspicious in his character. From his own testimony, although he does not confess himself guilty, he must be deemed to be an accomplice in whatever crimes may have been committed. Gentlemen, you are, therefore, not only warranted in laying his evidence out of the case, but it would be your duty to do so. To convict one man of a capital offense, on the credibility of a single witness, even of honest character, is risking too much and incurring a far greater responsibility and hazard than a Jury is warranted in assuming; but to condemn two men on the testimony of a single witness of very suspicious character, a perfect stranger, of a class of society not usually well instructed in moral principles and the obligation of an oath, swearing for his own liberty and deeply interested in the event of the prosecution, is an event which no Jury would venture to produce. Even though his testimony might by possibility be true, it is the safest and most rational judgment to pronounce, not indeed that the defendants were innocent men, but that they were not proved, by satisfactory and unimpeachable evidence, to be guilty."
Finally, Thacher said, he must say a few words separately about the defendant John Dalton, a young lad, barely more than a boy. “A distinction must be attempted to be made in the operation of the evidence on the defendants separately.” No one had testified as to any criminal conduct on the part of Dalton himself. No one testified that Dalton cut the cable. No one testified that Dalton ordered the sails to be hoisted. No one testified that Dalton sailed the ship out of the harbor. At most, Dalton merely followed the orders of the first mate. “In whatever light the conduct of Tully might be viewed, Dalton was not a principal, but only an accessary.” Thacher thanked the jury and took his seat.
James Austin
Austin rose. He walked around the counsel table. He looked at the jury and placed his hand on a tall stack of books laying at the edge of the table. Each of these thick books had slips of paper sticking out marked places to which Austin intended to turn. He began slowly. “Gentlemen, what we must not forget is that the defendants are charged with the crime of piracy. The facts proven by the government, even if credited, do not amount to the crime of piracy. The defendants, it was said, were indicted on the statute for piratically, as well as feloniously, running away with the schooner George Washington, from the care, custody and possession of Uriah P. Levy, the master. The word ‘feloniously’ refers to the disposition and temper of mind, what in law is called ‘animus furandi’ [the intent to steal]; and the word ‘piratically,’ to the manner in which this disposition was exercised.” Austin explained that the defendants were not merely charged with the running away of a ship—this would be the theft of property, an act of larceny—but with “feloniously and piratically” running away with a ship. What is it that elevates a simply act of larceny to manifest the crime of piracy? What is piracy? Here we turn to the legal authorities for an answer. Austin took the first book off his stack, opened it to the place marked, and began to read to the jury. At this time in American law, it was the norm for lawyers to argue purely legal points to the jury and to read from cases and legal treatises to bolster those arguments. The lawyers would frequently tell juries that they decided both the law and the facts. Technically, this was not true. The court ruled on disputed points of law and instructed the jury on the law. The jury was supposed to follow the court’s instructions. But the jury had absolute power to acquit and could disregard the instructions of the court if they were persuaded by the arguments of counsel. Of course, a lawyer could not argue that the jury should ignore the court, but a lawyer was free to place his interpretation of the law before the jury for their consideration.
Austin read to the jury legal discussions of piracy, definitions of piracy, the facts of cases in which defendants were convicted of piracy. He insisted that nowhere in the law is a simple theft of property considered piracy. There is always something more: force or the threat of force. If these acts had been committed on land, there would be no question that simply stealing Captain Levy’s property would be larceny, a crime but not a capital crime. However, if the theft is accompanied by force or the threat of force, then it is a robbery, which is a capital crime. The same distinction holds on the high seas. Here was the crux of the argument. Austin turned to his legal authorities. "At the common law, the offence of piracy consisted in committing those acts of robbery and depredation upon the high seas, which, if committed on land, would have amounted to felony there. 2 East, P. C. 796; 4 Bl. Comm. 72. That robbery could be committed only by force and violence to the person, or by putting in fear. 2 East, P. C. 708." If piracy was "robbery on the high seas," and robbery required the use or threat of force, then Tully and Dalton could not have committed piracy.
“Nothing could amount to the crime of piratically running away with the vessel, but a larceny of property, together with such personal violence or putting in fear, as would change the crime of larceny into the more aggravated crime of robbery, if it had been committed on shore. The distinction was illustrated by the following case. If a gentleman left his horse in the care of his servant while he alighted, and the servant went off with the horse and sold him, or converted him to his own use in any other way, it would be larceny in the servant, but not robbery; but if the servant or any other person, while the master was riding the horse, had with force and violence, or by threats compelled the master to dismount, and the servant had then rode off with the horse, this would be robbery. This addition of force changes the nature of the crime and increases the punishment—and by the law of the U.S. the robber is punished with death, while the thief is subjected to a limited imprisonment.” Austin insisted that piracy on the water is like robbery on the land. “If the mate or seamen, who were the servants of capt. Levy, had exercised any personal violence upon him and threatened him, and then run away with the schooner, it would be piratical; but if they had watched an opportunity in the absence of the captain, when they could get possession without such force or threats, and had run away with he, it was not piracy, but larceny; and the prisoners although amenable to justice on another Indictment for an offense less heinous and not capital, could not be found guilty of the crime charged upon them in this Indictment.” Austin then went through the arguments that Thacher had urged. There was significant doubt if a crime had occurred at all. Only the testimony of a single, unreliable witness pointed to the guilt of the defendants. Even if his testimony was to be believed, it is simply not sufficient proof on which to take the lives of two men.
“The defendants, gentlemen, are in your hands. If there exists a reasonable doubt as to the law or the evidence, that doubt will save them. Fortunately for our country, a scene like the present rarely presents itself in our courts of justice. I persuade myself, the times in which we live have not destroyed the sensibility which such a scene should excite. We hear, indeed, almost on every gale, the dreadful deeds of war and battle, and grow more and more familiar with death. Among the many who are falling around us, two lives like those of the unhappy men at the bar, may not be thought much addition to the melancholy catalogue. Yet, gentlemen, when the law, which is made for the protection of human life, deems it necessary, to put that life in jeopardy, not for any injury to the lives of other members of the community, but for a mere injury to personal property, there is much, very much, for a jury to consider. If by your verdict, the defendants should be caused to pass through the dark valley of the shadow of death, they will at least have the consolation of knowing, that their fate has been sealed by an impartial and honorable jury. But if the reverse of this should be the case; if your verdict opens their prison doors, and restores to them a new existence, chastened by the dangers they have incurred, and bound to honesty by the perils they have passed, the reflection of having returned to them their lives, which the law this day puts into your hands, will be to you a source of the sweetest consolation at that awful hour when your lives shall be required by the great Judge of nature. Gentlemen, the defendants are in your power: I can only repeat for them the humane wish of the law:-‘God send them a good deliverance.’” Austin stared earnestly at the jury, hoping to make a personal connection, to recognize any sense of agreement. Then he took his seat.
George Blake's Closing Argument for the Government
Blake now rose to conclude the argument. He was perhaps a little surprised by the strength of the defendants’ appeals, but he could not get over the fact that their arguments flew in the face of the simple, irrefutable facts and the plain language of the statute. “Gentlemen,” he began, “It is· utterly impossible, under the circumstances which have been stated, that the schooner could have drifted by accident from her moorings, and equally so, that any other persons than the prisoners could have been instrumental in the perpetration of the crime. I call to your attention the strong and violent presumptions of guilt which the testimony of Captain Levy alone furnishes against the prisoners. From his testimony it is beyond contradiction, that the vessel had been at the Isle of May and that suddenly she departed, and had never since been heard of; that the mate and Dalton were on board, the mate having her in charge. It is also beyond dispute the captain's chest of clothes, and some of his money had been carried by the prisoners to St. Lucie, where they were found by Captain Levy, who received them from the bands of the legal authority. That the vessel was feloniously taken is also apparent from his testimony, because the fact to which he swears positively, that on examination the cables were found to have been cut, is irreconcilable with any other supposition.
The testimony of Owen, the cook, is therefore not necessary, although in a case of this kind it is satisfactory to obtain all the information which the nature of the case admits. His statement is in affirmance of Captain Levy's, and is corroborated by it so far as both witnesses were capable of knowing the same facts. It is only an enlarged and more circumstantial story to which he testifies. The captain gave the outline of the horrible picture, Owen filled up the dark particulars of the scene. “In law, even an accomplice was admissible as a witness, and by every principle of common sense, his evidence would be credited if it was probable, consistent, and corroborated by facts independent of it, and known to exist. His statement of the departure from the Isle of May and arrival at St. Lucie was not only probably but certainly true; his story is consistent, clear, and uncontradicted in any of its parts; after an able and most ingenious cross-examination, nothing appears to make his statement in the least degree ambiguous or uncertain. He tells a plain, unvarnished tale of his whole course of life. The great advantage of a trial by jury is, that jurors have an opportunity of seeing the witnesses, and judging of the credit due them by the manner in which they testify. In this instance I leave it to you to determine whether you ever heard a more unembarrassed, and intelligent, and cautious witness; and whether he was an accomplice or not. It is impossible to resist the force of his testimony. “But was he an accomplice? His own statement, and the circumstances he has related shew that he was not. He had, probably, no will of his own. In the most menial capacity, a mere drudge, necessary to the new masters of the vessel, but too insignificant to be for a moment consulted, he had no choice but to obey their commands. He was a man more sinned against than sinning; and as soon as he had an opportunity, evinced his regard for the laws of God and man, which he had seen so flagrantly violated, by voluntarily giving evidence to the first American captain whom he was able to meet, by means of which the defendants were arrested and brought to the bar of their country.
“In answer to the arguments urged by the counsel for the prisoners on the law, the government contends that every felonious running away with a vessel on the high seas, is a piratical act within the statute.” Blake reminded the jury that it was only that morning that he had read to the jury the very words of the statute: that any captain or mariner running away with a vessel “shall be deemed, taken, and adjudged to be, a pirate and felon, and being thereof convicted, shall suffer death.” Regardless of what statements Mr. Austin may find in his dusty tomes or what analogies his genius can conceive, in this country, and particularly with regard to the high seas, it is the Congress of the United States that declares what the law is. The Congress has defined the running away with a ship as the crime of piracy; and “if the jury believes the testimony which has been adduced, the crime contemplated by law and charged in the indictment has been perpetrated by the defendants, and the jury should not hesitate to give a verdict of Guilty.” Blake took his seat.
Court's Instructions to the Jury
Justice Story then turned to the jury. “Gentlemen of the jury, the evidence and arguments of counsel are now concluded, and the Court will give you instructions to guide your deliberations.” Justice Story explained that the government must prove the guilt of the defendants beyond a reasonable doubt. This is a very high standard. The finding of a man guilty of a crime, particularly a capital crime is no light matter. If you are satisfied of the defendants’ guilt beyond a reasonable doubt, you must convict. If after consideration of all the evidence and arguments, any doubt remains, then you must acquit. Justice Story went back through all the evidence and gave his opinions as to which weighed in favor of the prosecution and which in favor of the defense. It was the established practice of the courts for the judge to restate the relevant evidence and make comments on the evidence. Legal historian Lawrence Friedman characterized the “instruction” that judges of this period gave to juries as “looser, freer, more colloquial, more tailored to the particular case” than the “jury charge” typically given today. Modern lawyers would be shocked and horrified by such a practice in the modern courtroom, where the dictates of a fair trial preclude the court from commenting on the evidence or otherwise seeking to influence the jury. But in the late eighteenth and early nineteenth centuries, this was the practice. Trial judges were free to influence the jury, almost to the point of directing their verdict.
Justice Story would have made clear that there was no question that the defendants had sailed the schooner George Washington from the Isle of May across the ocean to the Island of St. Lucie without any lawful authority to do so. The disputed issue is how the vessel left the harbor in the first place. The government contends that the anchor cable was cut and the schooner deliberately sailed out to sea. The defense contends that the cables may well have been severed accidentally from the motion of the ship, and the defense witnesses testify that this is a possibility. No one witnessed the cutting of the cable, but both Captain Levy and John Owen testified to having examined either end of the severed cables, which appeared to have been cut by a sharp instrument. The defense further contends that when the vessel was found to be adrift, defendant Tully acted properly in hoisting sail and putting her to sea, which again Captains Harris and Hopkins corroborate. The defense contends that attempts were made to return, but that the conditions and insufficient crew made it impossible. The testimony of the defense witnesses make that claim improbable. Finally, the conduct of the defendants on St. Lucie is certainly consistent with their guilty. The defense contends that they were motivated by fear and not guilt. Their motivations is the exclusive province of the jury. You gentlemen will have to decide. The defense attorneys argue that conviction is not possible except based on the testimony of John Owen, which they claim is not credible, or in any event, is insufficient. The government’s attorney contends that Mr. Owen’s testimony is not necessary but is credible, consistent, and corroborated. Again, the credibility of witnesses is solely entrusted to the jury. You will have to decide.
“Finally, on the question of law, which has been very properly raised by the Counsel for the defendants, on which we have bestowed as much attention as was possible during the course of the trial; and it is my opinion that a felonious running away with the vessel, is a piratical act within the meaning of the act of Congress, and subjects the perpetrators to capital punishment.” Justice Story concluded by thanking the jurors for their attention and reminding them of their awesome responsibility in deciding this case.
Judge Davis then addressed the jury. He stated that he concurred in Justice Story’s opinion that the running away with a vessel was in itself an act of piracy within the meaning of the statute. He also concurred in Justice Story’s recapitulation of the evidence, adding only a few minor observations of his own. “The prisoners,” he concluded, “have had a fair and patient hearing; the jury has paid close attention to the evidence, and the arguments which had been addressed to them. It is a question of evidence, and you are the sole and exclusive arbitrators. It is also a question to be settled by the judgment, and not by the feelings. The appeal that has been made to your sensibility might cause you to regret the obligations imposed upon you; but as jurors, the oath of God is upon you. You have a duty to do, which would be criminal in you to omit. You are bound as well by your allegiance to your country, as by your tenderness for the prisoners. This duty might be painful, but it is, nevertheless, imperious. If in your consciences you believe the defendants are guilty, then you are bound to say so, and leave the consequences to Providence. Yours is duty prescribed by Justice; the more delightful attribute of mercy is, by the law, placed in other hands; in hands which never failed to exercise it, where the circumstances of the case warranted the interposition of executive favor. A reasonable doubt would operate in favor of life-but the doubt must be reasonable; not the mere suggestions of fancy, and the airy creations of mere possibility, but a reasonable and conscientious doubt. To such, a juror is bound to listen; with such a doubt, he never ought to condemn. If such a doubt remains, the prisoners are entitled to an acquittal.”
Justice Story then said, “Gentlemen of the jury, this case is now closed. You will retire and agree on your verdict.”
U.S. Marshal Prince escorted the jurors out of the courtroom and up the stairs to the third-floor jury room. It was now eleven o’clock at night. It had been a long day. Justice Story discussed with counsel how to proceed, and it was agreed that the case would be recessed until the morning. Justice Story ordered Marshal Prince to take the jurors to a nearby inn and arrange for them to spend the night and “not to suffer any person to speak to them unless by order of Court." The Court adjourned until the next day at nine o’clock A.M.
The Verdict
The next morning, Wednesday, October 29, 1812, the Marshal brought the jurors from the inn directly to the jury room where they began their deliberations. The judges were on the bench at nine a.m. sharp and began attending to other matters. Blake, Austin, and Thacher sat in the gallery, chit-chatting with other attorneys, and pensively waiting on some word from the jury. About eleven a.m., a note was carried down to the judges from the jury stating that they were deadlocked, could not reach a decision, and wanted to come back into court. The prisoners were brought in, and the jury came into the box. The clerk called each of their names to which they answered. The clerk asked, “Have you agreed upon a verdict?”
Dr. William Stearns, the foreman rose. “No. we have not.”
Justice Story asked, “Does the jury require any further explanation of the law?”
“The jury does not agree that the facts in the case amounted to piracy,” replied Dr. Stearns. Austin’s pulse quickened. Some of the jury agreed with his legal argument. Perhaps there was a real chance for acquittal. His hopes were quickly dashed by the court. Justice Story repeated his prior ruling. "The felonious running away with the vessel constitutes the crime of piracy under the language of the statute on which the indictment is based. If you find that the defendants did, in fact, feloniously run away with the vessel—in other words, if they did steal the vessel acting with the intent to do so—then they did commit piracy, even if no force or threat of force against the captain was used. You will consider these instructions and retire to continue your deliberations until all of you agree on a verdict.”
The jury withdrew, and the prisoners were taken back to their cell. The next three hours were particularly tense ones for Austin and Thacher. About 2:00 p.m., the Marshal brought down a note for Justice Story. The judge nodded at the Marshal. The prisoners were brought back into the courtroom, and then the jury was brought downstairs and into the box. The clerk called roll. “Gentlemen of the jury,” asked the Clerk, “have you agreed upon a verdict?”
The foreman rose to his feet. “Yes.”
“Who shall speak for you?”
The jury unanimously said, “The foreman.”
“Mr. Foreman, look upon the prisoners. Prisoners, rise and look upon the foreman. Mr. Foreman, what say you? Is Samuel Tully, one of the prisoners at the Bar, Guilty or Not Guilty?”
“Guilty.”
“Mr. Foreman, what say you? Is John Dalton, one of the prisoners at the Bar, Guilty or Not Guilty?”
“Guilty.”
Read Part 3: Sentence of Death (Coming Next Week).
Read Part 1: Appointment to Represent Pirates.
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