Mr. WHARTON. Then I will put the question in the modified shape I suggested, whether at the time in question the defendant was not in point of fact compelled to render military service to the existing Government of the place where he was under pain of being turned out of the country if he did not.
Judge GRIEG. It seems to me that that is only the previous question generalized a little so as to get clear of the particular facts on which it was rejected. It is only asking his opinion of a fact. I observe theat it was very nicely put.
Mr. WHARTON. May it please your honors, lit is very difficult to view broad facts such as national facts without incorporating matters of opinion into the view of those facts. It is not like the question put by my colleague which your honors overruled as to the existence of particular facts in certain figures written as a statute law. You prove the existence of a certain public stature; there is no matter of opinion or conjecture about it. But when you deal with great political facts it is different. Take for example the fact of an insurrection in the Southern country. That necessarily involves matter of opinion. Upon that state of facts we have in evidence the opinion of the President of the United States as shown in his proclamations. He has stated that a rebellion and insurrection existed within certain territorial limits. That is partly a matter of opinion; perhaps on the part of the President altogether so, because derived from the information of others. He was not there; he did not see the assembling of armed men and the commencement of belligerent operations. Those great national facts which areshown in that way are of themselves necessarily in a great measure matters of opinion or judgment. That is in the case already, and all that I propose to ask of this witness now is whether the state of things was not such that in point of fact the prisoner at the bar was compelled to render military service to the existing Governmentus exactly what he knows on that subject, and what the state of public opinion and of action there was in reference to this sort of conduct. I agree that it is partly compounded of the opinion of the witness, but I respectfully submit that that does not exclude it from the character of legal testimony in the case.
Judge GRIEG. It strikes me that this is only inserving the words " in point of fact " in the previous question in order to get the opinion of the witness. If there is a great insurrection on this theory may not every fellow say," I had to go with them; there was so much violence and excitement that I was forced to act with them," and thus may not the whole hundred or hundred thousand escape?
Mr. WHARTON. I submit that that is the only way you can deal with communities, and it is just that concentrated action which gives character to the act; gives it publicity in fact. To refer to an analogy which was suggested by one of the judges on the bench in the case of insanity it is very easy for a man to counterfeit or feign insanity so as to impress his neighbors and those who are conversant with him with the conviction that he is insane; but when you call a witness to testify as to the state of mind of another it is not an objection to his testifying to the fact that it is possible the whole of it may be feigned. I respectfully submit therefore that although these question do involve to a certain extent matter of opinion that does not deprive them of the character of legal evidence. We cannot get at the fact of an existing law in Georgia I presume by any mode known to the laws of the United States. That is one of the fact in the case which we cannot get over.