The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1861-11-18
TIE SLAVE TRADE.
United States Circuit Court.

GORDON.
Nov l6--Tas Uniea Stresses G rdon.--A motion for
new trial was made by Judge Dean this morning on the
following points,
On motion in arrest of Judgment any defect which
would have been fatal demurrer is equally so on such
motion wharf. A. 9. L., S.olSi People v. Taylor
l. question: which. on motion TO quash would be
overrued on motion in arrest may DO held fatal (Cur-
tbs G. G. X 267 aud cases there citcd.)
H. The United States IS, III criminal cases. have no
common law jurisdiction. They Il, st. therefore DEPEND
upon the statutes and cannotgo beyond them. e Nc
H. Where some counts Of the indictment are bad and
others good motion IN arrest the practice in criminal
cases has been To presume that the verdict the
good counts. This after full Argument has deter
mined 9th rwise, and decided th on genera verdict
&c lily whore there good and others
bad, no ndgmen. coul be pronounced. (Rex oicon-
nell, Ii Clarke ~ Fin, 1855; 9Jurist. 30l.)
!. Where some counts are bad and others good, the
Judge nsuc,s the Jury that they may convict either
count either is bad and there is % general YER
diet, without specifying the count the Judgment will be
arrested because the Court cannot that the bal
| dfettve counts had been Withdrawn tho jury tho
| Others W. ud have convicted.
q The Court charged the jury that they might convict
on The first or thira counts. Tho difficulty OF convic
tcn on the first count A that the vessel proved
To have been owned wholly or in part, nav oaed for
or in behalf of citizen oil the United States"
g. The title was transferred by the sale proved by Post
and having been done IN itlyana, there presump
ton Of American ownership; and in this respect tho
Charge Of the Court was erroneous. Is Pick, SO; 16
| Moss, 1886; III Pick, ADJ John, $685.
~. Every count il tbs indictment Is fatally defective
ard no Judgment can DO pronounced on general verdict
| OF guilty.
The fourth and 9th counts omit the essential reuui.
site q force" in other words, there is charge that
The offence committed sforciby which is an essen.
| tial requisite Of the offence OF tpiraoy.o
q Tho first, SECOND and third counts omit to state or
aver that the negroes AT the time Of the alleged conne-
ment or detention were hot slaves by any laws amy
/ State or Territory OF the United Il atcs.
a. Under this, the prisoner had proved that tho
negroes had been slaves and nlanumttod and sent to
Monrovia or LIBERIA and then seized by him by force he
haNl haAn trnnf from, a..
| contained in the indictment
b. Tho District Attorney has admitted this by the in
dictments he has himself drawn ie has put the fact of
/ the state oil slavery in The present tense
The statute requires that the intent should be pre-
SENT aad that tho Subject of tho intent should that
time lie free man. This is not charged and it is mate
! rial and necessary ayetmcnt.
V. In order To conviction the offence be brought
within all tho material words Of the statute and nothing
can be taken by the ntendment. q McCord Az; 2
| Paine Sal; . Mctocd, 3T7.}
VI The charge Of the Court in rcferenco the laws Of
case Of the prisoner q kents Com, l; Sand. CHI T.
| $685. 10 stat at L.. col, 2 Am. l.. Reg, 1882
l. II the act Of 1865 could make man citizen against
ms wi yet there was no proof 10 the citizenship Of
| the father.
The Naturalization Act of April "A, 1912 q Stat: at L.,
1856 A., does apply Ter there was no evidence
that the parents Of the prisoner born prior to its
| passage. G. kents Com, 80
is impossible that the act could force czenshipnpou
man without an acceptance on his part and there
by render him ancnabe TO the criminal legislation tho
United States for his acts ON beard of foreign vessel be-
| ytHfu tfc WTrNoTlai lUiilS Oh the l0llcu states
Tho slave trade not being per piracy criminal by
the law of nations the legislation of Congress- canno
reach it only within the territory Of tho United States
except when the actor an American citizen Is
board an American ship. (The Antelope, 10 Wheaton, 60;
! lie Louis, Dodsoa, 2l0 Wharf. CIR. L., S26)
The Court charged the jury that II the prisoner was
born in foreign country, of parents who American
citizens, then being temporarily absent from the United
States he was an American citizen This erroneous
BY the common law Of Great Britain person not born
within the territorial possession OF the was not
subject even though his parents subjects and
! only temporal lily absent.
The children Of ambassadors, and perhaps other
Officials born while the parents abroad In the actual
public ssrv OF the Crown, exceptions to this rule.
Cee an article by Mr. Binpcy in I'd Am Law, Reg Phil.
1873, Feb, 1854 90 Barb, 400; Sandf Oh. r. 4s4)
VII If the Eric WIS foreign vessel, even admitting
the citizenship Of Gordon this Court has not the urisdc
ton to try him for act committed the river Congo
in the Portuguese doninions, and not On tide
claw of 1920; story on the Con-, 1859, 1854; Sumner
| 4s2; Const. u s., art /, sec. 8; tho Antelope, 10
| wheaton,
VII The Of Congress declaring the offence with which
tho prisoner Is charsed--pracy-conte a
ccssary ngreient the ri physical force its eluiva-
lent by the party who Is made subject to It's penalties.
The charge OF the court in this respect
(Rep Com 80 Reps 1920 prior legislation OF Con.
$50; se.gwick stat sas, E3S.) 100
" The questions arising this trial being Some Of
hon not settled by authority, and least OF
them having been ruled otherwise by Judge Story this
court If II docs not arrest the judgment grant
trial. will in capital case, IN tdooem rite give certi.
icate which will enable the prisoner be taken to
! the Supreme Court Of the United States
The United States District Attorney, Mr. T.. Deiancfd
Smith opposed the motion and presented the following
| points
]. In respect to The third point made by the defence,
the settled principle is. that general verdict, where
some counts OF the indictment cool and others bad
will be held to have been rendered under the good counts
The authorities are collected under 047 page GEO.
| 2Whaton's American CfiminalI Law.
II. The indictment, which drawn before my ac-
1 sson to Office, will be found, on examination, not
contain single count fatally detective. Though may
BE- inatifcal, each is good CAS- the last omiis the
! except that coilht from tho above s,atenent)
III. The offence Is brought by all the counts (f
cept the fifth, which is the as) within all the material
words OF the statute. IN the fourth coant the words
'witi force and arms supply The omission O tho word
'forcbly' Equivalent words answer Tor the very words
Of statute. u Whar an. Grim Law. soc. SO D. 1866 J
". The charge Of the Court in relation tho law OF
citizenship was strictly correct Besides, if no, so, it is
material only the burthcn Of proof upon
! the prisoner to show airmatively that b, born
abroad He was bound to prove that he born abroad
as the evidence established ri'aa Jacae, that lie
| V. The venue is laid in these terms:-In the river
Congo the coast Of Africa, out Of the jurisdiction OF
any particular State Of the United States OF America
within the admiralty and maritime jurisdiction of
the said United States and within the jurisdiction Of this
court,
l. The place not material SO that It be within the
Jurisdiction Of the Court and the prisoner Is misled
(scc arch Grim. Pr and Pl, p. 800 Whar Am. Grim.
| Law. sec. GOl).
2. The whole description OF the place must be taken
together. The words " the const Of Africa be
construed with the words III the Congo river ~ and also
with tbe words " within the admiralty and maritime
jurisdiction OF tbs United States" The offence Of forci-
bly, combining aud detainng on the stb day Of August,
1850 (being the day laid in the Indictment and proved
also to be the day Of the capurc) IL shown by Lieutenant
Todd TO have been committed not the Of Africa
near the Congo river but the This is not
material variance from the place alleged in the Indictment
Then take the evidence of all tho witnesses together
prove that the negroes "fcrciby confined and de-
ained, not only at Shark Point but all along the river
to the mouth and at the mouth, and outside Of il the
open We thus fix place which at once satisfies
every clause Of the indictment laying the venue and
place unquestonaby within the admiralty and maritime
jursdicion OF the United States. For the crime was
committed at every point both OF time and place at
which the vessel was from the hour when, at Sharks
Point the negroes were taken board until on the
open the mouth OF tho Congo river capture
took place. Constitution, art. 3, sec. ~
W. As to tho meaning of the word "forcibly ,, 1t
would be monsrous pervcrson to say tina. man who
commits crime against the person by moral sway
his victim, is not guilty because he has proved
physical force unnecessary to the complete preparation
Of the outrage Congress intended extirpae the vii
lazy whatever artce or skill might be perfected in its
practice. (Sec. 2 Story on the Cons. sec. / 1867
VII. a new trial should be denied, and judgment be
pronounced.
The Court reserved their decision