Judge CADWALADER. What is it proposed to prove?
Mr. HARRISON. I simply desire to prove that according to the state of things existing in Georgia at the time in question all able - bodied men over the age of sixteen and under the age of sixty were required to render military or naval duty or to leave the country. That has a bearing materially on the point of duress, which is one of the points on which we purpose to rely in this case. I think when your honors consider the peculiar condition in which we are placed and the impossibility of our being able to offer these laws in a more authentic form and the material bearing they have on the quo animo of these parties you will conclude that we ought to be permitted to offer this testimony.
Mr. WHARTON. I will merely add to what my colleague has said in order to put it in a slightly different shape without by so doing interfering at all with the form of the question as he has put it, that we propose not so much to prove a foreign law by the testimony of a witness like the one at the stand as to prove the fact that by any law or without any law (and that is unimportant as bearing on the intention of this party), by he compulsion so to speak of those who administered the Government there, he and others were compelled to render military or naval service to the existing Government, whatever it was.
Judge CADWALADER. Mr. Harrison stated it differently. He said " or to leave the country. "
Mr. WHARTON. I include that in the mode of putting it.
Judge GRIEG. If you could prove that the defendant was put on board the vessel by compulsion against his own will and served there as many a man has done on a pirate vessel contrary to his own will that would be directly to the point.
Mr. WHARTON. That is a strong statement of what would be within the same principle as what we propose to prove. I do not mean to put it exactly as a matter of fact in that shape that he was carried on board by compulsion. I do not mean that the offer of evidence goes to that extent; but what I do mean to offer is (not interfering at all with the point of view in which Mr. Harrison put it which stands on its own merits) that in ths existing in Georgia when this man was there he was compelled by those who administered the Government to render to that Government military service, and that as the alternative of not doing it he would be compelled to quit country. How far that would in law amount to the sort of compulsion to which his honor has referred is of course a question for argument hereafter, but the state of facts we desire to put in evidence is that, and it seems to us to bear very strongly on the intention of the party in carrying on the particolar kind of warfare to which he devoted himself.
Mr. KEELLEY. May it please your honors if I unterstand the offer at all it is to prove that there was at some time in the State of Georgia a law which all these men may have participated in making, which they themselves may have brought about, which called upon every man to serve either in a certain army or navy on the painful alternative of leaving that State. I take it that can have no bearing on this case. If the gentlemen proposed to prove that this man Smith was imperessed, forcibly seized in the streets of Savannah or elsew here, carried on board this vessel and there detained against his will that would be perfectly competent. But suppose that there even were proof before the court that there was such a law and that there men had opposed its passage it would not exclude (nor do I understand that there is a purpose to follow it up with the exclusion of) the alternative of leaving the State, it would not show that they were in any wise impressed; that they did not voluntarily choose the position they