After noticing the cases of the Duc de Montpensier and Baron des Adrets, he continues:

"At length it became necessary to relinquish those pretensions to judicial authority over men who proved themselves capable of supporting their cause by force of arms, and to treat them not as criminals, but as enemies. Even the troops have often refused to serve in a war wherein the Prince exposed them to cruel reprisals.

Officers who had the highest sense of honor, though ready to shed their blood on the field of battle for his service, have not thought it any part of their duty to run the hazard of an ignominious death. Whenever, therefore, a numerous body of men think they have a right to resist the sovereign, and feel themselves in a condition to appeal to the sword, the war ought to be carried on by the contending parties in the same manner as by two different nations, and they ought to leave open the same means for preventing its being carried into outrageous extremities and for the restoration of peace."

Now, gentlemen, can anything be more explicit on this subject, leaving out of view all questions of the authority of the States or of the Confederate Government to issue this commission? Can anything be more pointed or more direct on the question? Treat this as a mere civil war--treat it as though all State lines of the Union were obliterated, and as though this was a common people, actuated by some religious or political fanaticism, who had set themselves to cutting each others'

throats--treat it as a purely civil strife, without any question of State sovereignty or State jurisdiction connected with it,--and still you have the authority of Vattel, an authority than which none can be higher, as the Court will tell you--and I could multiply authorities on that point from now until the shadows of night set in--that even in that case it is obligatory to observe the laws of war just the same as if it was a combat between two nations, instead of between two sections of the same people. Even if there was no commission whatever here, by any one having a color or pretence of right to issue it, but if those belonging to one set of combatants, in a civil strife which had reached the magnitude and proportions of which Vattel speaks, had set out to cruise, and had captured this vessel, I submit to you that it could not be treated as a case of piracy.

I have closed, gentlemen, the argument which, on opening the case, I have thought it necessary to advance in order that you may be able to apply the evidence. Every word that Vattel says there endorses the entreaty which I have made to you, as you love your country and as you love her prosperity, to view this case without pa.s.sion and without prejudice created by the section in which you live, as I know and trust by your looks and indications that you will. And I say to you, gentlemen, that a greater stab could not be inflicted on our Government--not a greater wound could be given to the cause in which we all, in this section of the country, are enlisted--than to proclaim the doctrine that these cases are to be treated as cases for the halter, instead of as cases of prisoners of war between civilized people and nations. The very course of enlistment of troops for the war has been stopped in this city by that threat. As I said before, the officers and soldiers on the banks of the Potomac, if they could be appealed to on that question, would say, "For G.o.d's sake, leave this to the clash of arms, and to regular and legitimate warfare, and do not expose us to the double hazard of meeting death on the field, or meeting an ignominious death if we are captured." And as history has recorded what I have called your attention to as having occurred in the days of the Revolution, so history will record the events of the year and of the hour in which we are now enacting our little part in this mighty drama.

The history of this day will be preserved. The history of your verdict will be preserved. You will carry the remembrance of your verdict when you go to your homes. It will come to you in the solemn and still hours of the night. It will come to you clothed in all the solemn importance which attaches to it, with the lives of twelve men hanging upon it, with the honor of your country at stake, with events which no one can foresee to spring from it. And I have only to reiterate the prayer, for our own sake and for the sake of the country, that G.o.d may inspire you to render a verdict which will redound to the honor of the country, and that will bring repose to your own consciences when you think of it, long after this present fitful fever of excitement shall have pa.s.sed away.

DOc.u.mENTARY TESTIMONY.

_Mr. Brady_, for the defence, put in evidence the following doc.u.ments:

1. Preliminary Chart of Part of the sea-coast of Virginia, and Entrance to Chesapeake Bay.--Coast Survey Work, dated 1855.

2. The Const.i.tution of Virginia, adopted June 29, 1776. It refers only to the western and northern boundaries of Virginia--Art. 21--but recognizes the Charter of 1609. That charter (Hemmings' Statutes, 1st vol., p. 88) gives to Virginia jurisdiction over all havens and ports, and all islands lying within 100 miles of the sh.o.r.es.

3. The Act to Ratify the Compact between Maryland and Virginia, pa.s.sed January 3, 1786--to be found in the Revised Code of Virginia, page 53.

It makes Chesapeake Bay, from the capes, entirely in Virginia.

_Mr. Sullivan_ also put in evidence, from _Putnam's Rebellion Record_, the following doc.u.ments:

1. Proclamation of the President of the United States, of 15th April, 1861. (_See Appendix._)

2. Proclamation of the President, of 19th April, 1861, declaring a blockade. (_See Appendix._)

3. Proclamation of 27th April, 1861, extending the blockade to the coasts of Virginia and North Carolina.

4. Proclamation of May 3d, for an additional military force of 42,034 men, and the increase of the regular army and navy.

5. The Secession Ordinance of South Carolina, dated Dec. 20, 1860.

_Mr. Smith_ stated that, in regard to several of the doc.u.ments, the prosecution objected to them,--not, however, as to any informality of proof. He supposed that the argument as to their relevancy might be reserved till the whole body of the testimony was in.

_Judge Nelson_: That is the view we take of it.

_Mr. Brady_ suggested that the defence would furnish, to-morrow, a list of the doc.u.ments which they desired to put in evidence.

The Court then, at half-past 4 P.M., adjourned to Friday, at 11 A.M.

THIRD DAY.

_Friday, Oct. 25, 1861._

The Court met at 11 o'clock A.M.

_Mr. Brady_ stated to the Court that two of the prisoners--Richard Palmer and Alexander Coid--were exceedingly ill, suffering from pulmonary consumption, and requested that they might be permitted to leave the court-room when they wished. It was not necessary that they should be present during all the proceedings.

_Mr. Smith_: It would be proper that the prisoners make the application.

_Mr. Brady_: They will remain in Court as long as they can; and will, of course, be present when the Court charges the Jury.

_The Court_ directed the Marshal to provide a room for the prisoners to retire to, when they desired.

_Mr. Sullivan_: Before adjourning yesterday it was stated that the different ordinances of the seceded States were all considered in evidence without being read.

_Mr. Smith_: Are any of them later in date than the commission to the Savannah?

_Mr. Sullivan_: No, sir. Some States have seceded since the date of the commission, and have been received into the Confederacy.

_Mr. Evarts_: We will a.s.sume, until the contrary appears, that there are no doc.u.ments of date later than the supposed authorization of the privateer.

_Mr. Larocque_: With this qualification,--that there are a great many doc.u.ments from our own Government which recognize a state of facts existing anterior to those doc.u.ments.

_Mr. Sullivan_ read in evidence from page 10 of _Putnam's Rebellion Record_:

Letter from Secretary of War, John B. Floyd, to President James Buchanan, dated December 29, 1860.

President Buchanan's reply, dated December 31, 1860.

Also, from page 11 of _Rebellion Record_:

The Correspondence between the South Carolina Commissioners and the President of the United States.

[Considered as read.]

Also, referred to page 19 of _Rebellion Record_, for the Correspondence between Major Anderson and Governor Pickens, with reference to firing on the _Star of the West_.

Read Major Anderson's first letter (without date), copied from _Charleston Courier_, of Jan. 10, 1861. (_See Appendix._)

Governor Pickens' reply, and second communication from Major Anderson.

(_See Appendix._)

Also, from page 29 of _Rebellion Record_, containing the sections of the Const.i.tution of the Confederate States which differ from the Const.i.tution of the United States.

Also, from page 31 of _Rebellion Record_: Inaugural of Jefferson Davis, as President of the Confederate States.

Also, page 36 of _Rebellion Record_: Inaugural of Abraham Lincoln, President of the United States, (for the pa.s.sages, _see Appendix_.)

Also, page 61 of _Rebellion Record_: The President's Speech to the Virginia Commissioners. (_See Appendix._)

Also, page 71 of _Rebellion Record_: Proclamation of Jefferson Davis, with reference to the letters of marque, dated 17th April, 1861.