The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1861-07-24

suppOses or TINS case rs simple have
say that he has understood the do say,
from the graves consideration could make Of this case,
that there arc questions Of law which, II not absolutely
certain on behalf Of tho prisoners arragned entirely
novel and Of such difficulty seldom With the
most entire satisfaction that your Honor should sit on tho
| trial. no fail TO SEQ that ia q case involving
| so much Of life 1t would be in the last dc.
| gree desirable, well 10 tho Court to the
parties that tho Court should be fun Your Honor knows
that in Massachusetts, capital cases always tried be-
fore full court Upon this occasion there is this con-
| slaera.ion to bear Oh the subIect--,he only way
OF law Is by certificate Of difference Of
opinion between the two judges, therefore il cannot
| obtain, or your Honor caE1ot obtain tho aid,
which am you value of your associate the bench
In case there difficult question OF law presented we
capnot have it reviewed. and am sure that is consider
a'oh TO Which you are not insahsibe this case be de-
cred to the fall there doubt that Judge Nelson
sit with your Honor; then, upon any reasonable
| question Of law upon which you may not DO
agreed, tae ease can go Immediately to the
supreme Court OF the United States Now, If there
were other consideration than that, submit to
your Honor il is expedient that this should not
be hurried on N this way, and tn the honest dis
charge Of my duty TO the court will say that evil
dcnce Of the most material and important kind,
which am quito tho District Attorney has not any
conception Of II necessary and esseita TO this defence
and until that evidence Is procured mts important qucs
tons law cannot be presented which do arise In this
case Under these circumstances | submit that your
Honor wishing to do justice md with the sense too (and
agree to M that criminal justice, TO be justice at all,
should DO speedy while on tho other hand II should
be merefal and consIdcrate, will not give way
to the motion that tho trial Of the lives Of these thirteen
men how take place In the short period In which II would
DO necessary to try pomssory note made in New York;
and all the transactions 10 which arose here As to the
questions of law am satisfied there very important
questions which very plain on the part Of this de-
fence which also satisfied tie learned counsel for the
government has rot advertcd TO- and which cannot DO
presented until we get the proper evidence.
Mr. smith, in reply, said that in respect to the intima
muuication with Charleston, without any sort
@ OF except sna d .nS Tm'e "a 1 ans
years The expense OF transmission OF letters Refer
encc was made to mysterious volume OF proof to DO
produced but It was not presented in any shape IN which
The Court could act upon IT, fhe counsel bound to
disclose the nature Of the proof tn relied upon in order
that the Court could Judge the propriety Of the
application for postponemept Some OF IL might be
proof wi 1h the would admit as in reference
to the question Of citIzpshp, there would be difficulty
in admitting the fact that certain Of the prisoners
not citizens Of the United States Although he made tho
motion that the trial be set down FOR tho 3st he was not
tenacious for that very day. bat would consent TO
have it deferred for a week longer, in order
to give the counsel ample time to procure their
evidence and examine the questions OF law Ho only de-
sired that the trial should be down for early day.
and not 90 to the fall All the difficulties suggested
to impede the trial. were difficulties created by these de-
PENDANTS themselves and their coniederaes and was in
the nature Of taking advantage OF their own wrong
to sock to postpone because Of state of things existing
i'll the country for which they responsible. 1t had
said that thirteen lives were at issue IN this case
On behalf Of the he would that great
many more lives were at issue, and lives which, in his
Judgment Of far greater vauche lives OF innocent
sailors and officers in the merchant marine, who now
attacked by these When that the facts of
pe but he did say that the facts simple and that the
law was certain II was for COUNSEL by throwing out
fence, to hide tho fact that there could be defence
here the nature OF which was not visibic, and
that the only Justification which could be set up thai
of treason adding u the guilt of the prisoners at the bar
Hc again urged early day for the trial. In order that
tie prisoners If Innocent should be acquitted, or if quit
ty, punished and their confederaes the deter
red from continuing their maraudng expeditions, which
partook both the character Of and piracy.
Judge Shpan said that he had no doubt ia relation to
he lion In he ma of m on
could not have sets Of rules to apply to the
chss of cases. and II the Court had power to fix
different rule In criminal cases It would be very
questionable whether such power ought TO be ex-
elcised. The law had made distinction In regard to
this class Of criminal offences. Upon the statute book OF
the United States and various acts OF Congress there
great many atrocous crimes punishable capitaly, and
m,ns those Is the crime Of PIRACY or robbery upon the
In all cases where parties are indicted for crim
nal offences, aud especially for capital crimes IT is
customary to give the defendant reasonable
the preparation of his defence; and the Court
must always assume and act, far the technical
ceedsngs are concerned upon the presumption OF nno
c<nce which the law always interposes. The
Court cannot take into consideration tho yari-
Gus suggestions made by counsel for the
molten wish to DO distinctly understood thut do SO
just as should IN any ohor case OF robbery or piracy
upon tho high seas whero II the defendant DO convicted
he must suffer according to tho statute, the penaly of
death. canuot look at other considerations. cannot
criminal law although the principles usually very
simple and for aught know may be simple in this
iiS I'D otneF yeb IN tn0sc prtu-
cipes there is often ground for difference Of
opinion Courts that have been long regarded emit
tied to very great respect for learning dscrmna and
experience differ to the application OF principles OF law
to particular cases In view of that fact in capital
has been rule usually adhered to in circuit courts
where there is a set down for trial involving
sttu,ed by tho act Of Congress that TWO Judges
are authorized to siD, to have full court,
that tho defendant might have the benefit IL may
speak, Of the chance Of division of opinion, which
the only ground upon which the be removed
higher court In this view Of the case and upon tho
strenuous application Of the defendants for the presence of
a full court, I certainly cannot deny the appca.
ton consistently with my judgment OF what Ia
right and proper; and say this with full view Of the
importance Of this trial might add it Is Important for
the government in the event Of certain determination
OF this case that in the preliminary procecdngshe tmo
hxed for trial and the constitution Of the Courtthere
should BIO nothing to weaken the full and appro.
PIRATE effect which its final determination may have.
After observations In regard to two exceptional
caSeehat Of Gordon for engaging in the slave trade and
another where the trial had before District Judge
sitting aonehe counsel for the defendant case
making request to have full court Judge Shipman
went TO say that In consequence Of Judge Nelson's
gagements In another district in September, and n-
juries resulting from fall from his carriage,
which would prevent his sitting In August, lie Judge
NelsoD could not probably hear this until the
Der term He therefore ordered the trial to be
for the 80 day Of October, at eleven O'Clock.
The prisoners were remanded to the custody Of the
Marshal, and their manaces which had been removed
while they in court being replaced they taken
to the Tombs.