War of the Rebellion: Serial 116 Page 0106 PRISONERS OF WAR AND STATE, ETC.

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you ask; but you desire with prudent caution to have the matter on which you rely particularly cited. It is to promote your own wishes, Mr. Harrison, that if you desire that you must make your offer particular.

Mr. KELLEY. I think that the opening of my learned brother

(Mr. Ashton) exhibited just such a desire on our part and I tried to make my friend on the other side understand that such was our desire.

Judge GRIEG. Counsed may refer historically to any book that shows the date when particular acts were done.

Mr. KELLEY. Originally we did not fel disposed to file an afreement that that might be done, and we do not now feel disposed to admit that that which is not legal evidence should be admitted; but we were disposed to take the geat facts before the country from the best sources we could get them. I have myself relied largely upon this very Rebellion Record which is before us. Twiss' book been compiled with great care; I mean as to its facts not as to its thereories of law. As to its facts it seems to have the dated accurately.

Mr. WHARTON. I take it that when you refer in the course of a case historically to historical facts as bearing on the case you can only refer to them properly as matters of evidence bearing on the case; and as there seemed to be a little misapprehension between the other gentlemen in this case (in which I was not a partaker at all) I thought I would put our proposition in a formal shape by the offer of the evidence which has been received; and it seems to me to be enough to fill up the general outline of the case and then the other documents which are subsidiary, the acts of the different States, the warlike proclamation, &c., we may perhaps leave for reference as we go along.

Judge GRIEG. They are matters of very littke importance. You have the great facts.

Mr. WHARTON. We have the great fact of a government de facto in the South and especially the proclamation authorizing these letters of marque and reprisal; and as this was a charge of piracy that proclamation seemed to me to be the great document in the case.

Judge GRIEG. Ceetainly nough to raise your defense.

Mr. WHARTON. Enough to raise the question whether this man is or is not a pirate or robber.

Mr. HARRISON. I am very sorry to be under the necessity of troubling yoiur honors agains, but I want to know and with the permission of your honors I intend to know how I shall stand when I come to sum up for the defense. I desire to know whether under the view announced by your honors now I shall be at libery to comment on the sequestration and confiscation and militia laws of the Southern Confederacy as I shall find them laid down in this Rebellion Record. If I cannot have that permission without specially referring to them now I ask to be allowed a few moments until I can specify such portions of this book as I desire to refer to. I do not intend to be met again et today with objections that I did not anticipate.

Judge CADWALADER. I do not think you have met with any embarrassment.

Mr. HARRISON. Certainly not on the part of your honors

Judge CADWALADER. Nor any from counsel that need cause you any difficulty. Altought it would have been more convenient if these things had been prepared beforehand it is perfectly agreeable to the court that you should sit down and take all the time you want to do what you suggest.

Mr. HARRISON. I will select the documents which I propose to offer.