If it tends to prove the defense (whether that defense be good or bad) we think the testimony should be received. We should prefer to have authentic copies of these documents properly certified; but that being impossible and the facts being historically true there ought to be some way of getting at them. I do not know what effect they may have. We shall have to consider that after the documents are before us. But as the case now stands I think this offer ought to be admitted.
Mr. ASHTON. My objection did not apply to the form in which the documents are but to the documents themselves. I think if those documents themselves were here properly certified they would not be evidence to justify the crime.
Judge GRIEG. That question. is not decided. A man's defense ought to be the best he can make. If the testimony tends to prove it it ought to be received, and then whether that can be a justification or not is afterwards the question of the case to be decided but you must have the case before you before you can decide it.
Mr. ASHTON. It was decided in Hutching's case, tried in the circuit court of the United States before Chief Justice Marshall at Richmond in 1817 (1 Wheeler's Criminal Cases, 542) that on trial for piracy a commission as a privateer from a government not recognized by the United States cannot be received in evidence as a valid commission but only as a paper found on board the vessel and cannot ustify piratical acts.
Judge GRIEG. You can find hundreds of cases both civil and criminal where the assence of the case has been decided on the admission of testimony. I only say as a matter personal to myself that I never do it. It the testimony offered is proof of the defense urgen I always admit it and decide on it when the whole case is presented. I know you will find hundreds of cases to the contrary. I do not act on authority when I so decide but on my own particular method of doing business which I think is just and right.
Mr. ASHTON. My impression was that the authorities were in a different direction; that it was first to be seen whether the defense would be a good defense before testimony would be admitted.
Mr. WHARTON. I will give your honors some documents by the and specific reference that we offer: First, the proclamation of President Lincoln of April 15, 1861, to be found on page 301 of Upton's Maritime Warfare and Prize.
Judge CADWALADER. Excuse me for suggesting that you have that in a more authentic form.
Mr. WHARTON. I know the district attorney has offered it. I merely allude to it now in connection with other documents in the same book. We next offer the proclamation of Jefferson Davis dated April 17, 1861, which is the proclamation under which these letters of marque and reprisal were issued. That it to be found on page 302 of Upton's work. That was followed two days afterwards by a second proclamation of the President of the United States dated April 19, 1861. Then followed the proclamation of President Lincoln of April 27 and then the proclamation of Commodore Pendergrast of April 30.
Judge CADWALADER. Notification you had better call that.
Mr. WHARTON. It is a notice of the blockade by Commodore Pendergrast on the 30th of April, referring to the President's proclamation of the 27th, and therefore properly a notification undoubtedly. Then next in order is the proclamation of President Lincoln of the 3rd of May. Next is the proclamation of Queen Victoria. We give that in evidence