Mr. ASHTON. It is one of the enormities.
Mr. WHARTON. It may be one of the enormities of the conduct of others under whose enormity of conduct this defendant may be now suffering. I suggest that if a state of things existed at that time in the Southern countryconduct compained of on the part of this defendant he cannot be tainted with the imputation of that general spirit plundering all mankind which is an essential composition in the character of a pirate or sea robber. It is all as bearing on that that this testimony is offered and I respectfully submit that in that shape that question may be properly put.
Mr. HARRISON. There is, if the court please, another point of view in which this testimony it seems to me may be properly admitted. This is clearly a case where the party having shown the impossibility of obtaining that primary evidence which would alone be admissible if the cicrumstances of the case had allowed it, lis justified in law in introducing that secodary of which the case is susceptible. Have we not strictly ourselves within that rule of law which entitles us here to introduce before your honors and the jury as secondary evidence the only possible proof in our power of the existence and character of the stature of Georgia? We are unable to obtain a certified copy from the State of Georgia. Every effort has been made to obtain it. More than twice have I written for the purpose of getting a full and authentic copy of all these documents, and I have been disappointed in obtaining them in consequence of the impossibility of holding any postal communication with the Southern authorities or any portion of the Southern Confederacy. I submit to your honors whether upon that principle which authorized the introduction of secondary evidence where primary evidence is unattainable we are not entitled to ask this witness whether there is not in the State of Georgia a law of the description I have indicated and whether it s character is not of the porport which is embodied in the question before your
Judge CADWALADER. In view of the statement of the opening counsel for the defense (Mr. O'Neil) and of the argument on the question of evidence already decided I think this question be put unless it is proposed to prove some fmpulsion exercised as to the defendant in particular or as to the crew of which he was one.
Judge GRIEG. My colleague has correctly stated the law.
Judge CADWALADER. I desire in this stage of the couse to avoid as fas as possible discussing the legal effect of these question. I would merely reming the counsel of the decisions as to what shall constitute compulsion under such circumstances, particularly the cases of the Scotch Highlanders which were very strong cases.
Mr. HARRISON. Will your honors excuse me for putting the question in another shape?
Judge CADWALADER. That is what I rather meant to invite.
Mr. HARRISON. I will put it in this form: At the time the prisoner entered into the service of the privateer Jeff. Davis what was the law of Georgia in regard to military and naval duty to the Southern Confederacy?
Judge GRIEG. That is more objectionable.
Mr. KELLEY. Allow me to suggest a question of fact that may obviate all this difficulty and that is to learn whether this man joined the ship in the State of Georgia. That has not been shown yet.
Mr. WHARTON. (to the witness). Mr. Rochford, where did Smith join the Jeff. Davis?
The WIRNESS. In Savannah.