V.

Perez.

a grasp at him, when the prize master called out, "No, N'W YORK, Sept. 1823. no!" and then he desisted. They ordered witness, the passenger, and all the crew, except Debau, into the boat: The U. States there were five in the boat; Capt. Fernandez said they must not stand in shore, or the pirates would kill them all. They accordingly continued to stand out, till they ran down the hull of the piratical schooner; they soon after saw the Bee in a blaze. They then made for the land, (as the boat leaked exceedingly, and had to be bailed constantly by two men,) and got into the mouth of a creek near Matanzas, after being about four days at sea, and landed at Matanzas on the 27th, in the evening.

These facts being proved to the court and jury, no doubt existed that they amounted to piracy. Witnesses, however, were introduced who testified to facts that left some doubt whether the prisoner was the same person who committed the piracy upon Captain Johnson.

The case was summed up to the jury by Messrs. Nevins and Hoffman for the prisoner, and by Messrs. Haines and Tillotson for the United States.*

The court charged the jury about eight o'clock in the evening they retired to consider upon their verdict, and returned into court before ten the same evening, when some points of law were explained to them, and they were again sent out, and about twelve o'clock they were discharged; they having previously informed the

* It is impossible in a work of this kind to insert the very able and eloquent addresses of the counsel; it would swell the work far beyond the limits laid down by the proprietors.

N'W YORK, court that they were equally divided, and that there was Sept. 1823. no prospect of their ever agreeing upon their verdict.

The U. States

V.

Perez.

A motion was made to discharge the prisoner, by his counsel, on the ground that the court had no authority to discharge the jury but in extreme cases, and that this was not such a case.

The court were divided. Van Ness was of opinion the jury were discharged too soon. Justice Thompson decided upon the motion, that there need not be a physical impossibility to a unity of opinion. He decided, the court had power to discharge the jury in criminal cases, and that it rested in the sound discretion of the court, unThe authori- der all the circumstances of the case; that it was not lected inCrim. necessary the jury should be so far exhausted as to be inL. C. vol. 1, p. capable of further discussion and deliberation, nor was it

ties are all col

475, 476.

necessary that they should be disabled by sickness, intoxication, or mental derangement; it was enough that they could not agree-that there was a moral disability. In this case, the jury had been out near four hours; a length of time amply sufficient to agree upon their verdict, if they could. This was a plain question of fact for them to decide. There were no intricate questions of law in the case; a longer time ought to be afforded to the jury, where a case involved a great number of facts and points of law. It depended more upon the nature of the case, than upon any settled rule that could be laid down, for the discharge of the jury. If the jury could not make up their minds and agree upon their verdict in four hours, where the identity of the prisoner was the only question before them, it was probable they never could agree.

As the court were divided, no judgment was given.

The case will be argued at Washington, and the point N'W YORK, settled by the Supreme Court."

Circuit Court of the U. States.

Philadelphia, October, 1823. Joseph Haskill and Charles Franshaw were indicted for a piracy committed on board the schooner Tattler, on the 15th of September, 1823. The evidence, both on the part of the United States and for the prisoners, having been heard, the counsel summed up, and the jury were charged.

At eight o'clock the same evening the jury returned a verdict of guilty on the first count. Before the verdict was recorded, the counsel for the prisoners expressed an apprehension that one point in the charge of the court had been misunderstood by the jury; and entered into an explanation, which was objected to by the district attorney, but allowed by the court. One of the jurors then expressed his dissent from the verdict which had been given, believing, as he said, that the prisoners' conduct had arisen from fear. The court remanded the jury, and adjourned until the following morning. At 11 o'clock the next morning the jury again came in, and again delivered a verdict of guilty.

The counsel for the prisoner, having heard that one of the jurors had become insane since the last adjournment, required that the jury be polled; upon which the individual alluded to exhibited, by his answer, such decided proof of mental derangement, that the court refused to record the verdict. The district attorney now suggested that the insanity of the juror had probably arisen from want of food, and that if refreshment were allowed he might recover sufficiently to perform his duty. But the counsel for the prisoners did not feel themselves at liberty to agree to this proposal, declaring their determination to leave the responsibility of whatever might be done entirely with the court. The district

attorney then offered to discharge the jury by agreement; but this also was declined. The jury was then remanded until the court should determine on the most advisable course.

It would seem, also, that the juror who dissented on the evening before, had not altered his opinion, but had been induced to agree to the verdict of guilty, under the impression that a written statement of his views, which he had prepared, might be permitted to accompany it.

Sept. 1823.

The U. States

V.

Perez.

Present-Honorable Smith Thompson.

Honorable William P. Van Ness.

Messrs. Tillotson and Haines, Counsel for the U. States. Messrs. Van Wick, Baldwin, Scott, and Blunt, Counsel for the Prisoner.

On Friday, the 10th of September, at 9 o'clock in the morning, commenced the trial upon an indictment found

At two o'clock they again came to the bar, when the court discharged the jury, it being expressly understood that such discharge was without the consent of the prisoners' counsel, and directed the cause to be tried anew.

On Wednesday, the 22d, the prisoners, being called to the bar, offered by their counsel a special plea, setting forth the particulars of the former trial, and praying a discharge on the constitutional provision that no man shall be twice put in jeopardy for the same cause, and alleging the discharge of the former jury as equivalent to an acquittal. To this plea the attorney of the United States demurred, and the court directed an argument on its validity, which consumed the remainder of the day. On the following morning the court delivered a learned and elaborate opinion, overruling the plea of the prisoners, and directing the trial to proceed. This opinion was principally directed to two points: 1. That the lives of the prisoners had never been in jeopardy, as the words are applied in the constitution, and by the common law. 2. That the insanity of a juror is one of those cases of necessity in which the court may exercise a sound discretion to discharge a jury, it being essential for the due administration of justice.

V.

Gourlay.

at the present term of the court against William Gourlay, N'W YORK, Sept. 1823. for murder. The following jurors were examined and sworn, viz. Calvin W. Howe, William Finch, Daniel The U. States Oakley, John S. Bradford, Nathaniel Rathbone, Smith Lane, Daniel Banvard, Samuel Maverick, Samuel Dixon, Dennison Wood, Lyman Fitch, and John Reid. The indictment was read, consisting of three counts, of which the first charged the offence to have been committed in a bay, the second in a haven, and the third on the high seas, near Cadiz, in the kingdom of Spain.

Mr. Tillotson opened the case for the United States, and observed, that he deemed it proper to state explicitly, not only the facts and circumstances attending the offence which was charged, but also the law by which those facts were to be governed. In civil cases, questions of law were referred to the court; but in criminal trials, the jury were made the judges as well of the law as of the facts. In this case, the grand jury had charged the prisoner with wilful murder; and if the fact of the killing be proved by the United States upon the prisoner, the law would presume it to have been done with malice. It would then rest upon the accused to produce such circumstances of mitigation as would reduce the crime from the highest grade of homicide. He should expect, in order to substantiate the charge, to show: 1st. The killing; 2d. That it was done by the prisoner; and 3dly. That it was done within the jurisdiction of this court. The facts, as he understood, were briefly these :

That on the 14th of June last, the ship Canton was lying in the bay of Cadiz, in an open road-stead, where the sea was flowing in, on board of which the offence