Mr. WHARTON. Will you state if you please what was done with Smith when he was first taken by the Albartoss?
Answer. We were taken on board and put in double irons and put down below alongside the boilers. They call it the engine room, the passage that goes by the boilers, where the men put their hammocks in the day time.
Question. Is that a warm place?
Answer. Yes, sir; pretty warm.
Mr. EARLE. What is the relevancy of this?
Mr. WHARTON. It rather expands the evidence in regard to the arrest which was made a point by the Government.
Judge GRIEG. I see nothing in it. What has it to do with the
Mr. WHARTON. Perhaps I can indicate some connection.
Judge GRIEG. Very well.
Mr. WHARTON. The indictment contains an averment that this defendant was first brought into this district and was apprehended here. In order to prove that averment in the indictment the Governmeent brought up the deputy marshal to show that he took a warrant to the namy - yard and arrested him there. Our purpose is to show that he had been arrested and put in irons long theretofore. We propose to show that he was not first brought into this district but into another district.
Judge GRIEG. What have the handcuffs to do with it? If he had been taken to baltimore and landed or to any other place and landeed there might be something in your point, but it is not affected by the fact that a naval officer put irons on a man charged with piracy.
Mr. WHARTON. The word is "apprehended," not "arrested. "
Judge CADWALADER. That is the alternative, but the jurisdiction is not vested by the United States in this case on the place where the person was apprehended but on thie district into which he was brought. He was on board the Albatross I suppose as a prisoner of war, and from that custody as I understand the tendency of the testimony he was handred over to the civil autherities. The question then is whether the court has jurisdiction. There are two alternatives as to the jurisdiction; one depending on the place where the man is apprehended, which we will not prejudge the point by saying does not apply to a capture of this sort but may not apply to it, and the other depending on the district into which he is first brought. Now how is either of those points affected by the manner in which he was treated while in custody?
Mr. WHARTON. The particular mode of treatment is perhaps not so important upon the legal question, but as there was some testimony from the witnesses of the Government with respect to the condition of the party this was intended to show the point of time from which that condition should date. I shall not press it.
Mr. HARRISON. I do not know how far we shall be at liberty to avail ourselves of any objection to the rulings of your honors on any point in this case, but still I respectfully ask that your honors will note our objections to the points which have been raised and overruled.
Judge GRIEG and CADWALADER. Certainly.
Mr. WHARTON (to the witness). Mr. Rochford, at the time and before the period of Smith's shipping on board the Jeff. Davis were the U. S. courts open in Savannah and Charleston?
The WIRNESS. No, sir.
Mr. KELLEY. Stop. We object to that.
Judge GRIEG. It is a fact every one knows. The proclamations of the President show it.