War of the Rebellion: Serial 121 Page 0676 PRISONERS OF WAR AND STATE, ETC.

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The juge advocate states, however, that, as far as was known at the commencement of the trial, a list was funished.

It is furhter stated tat a paper entirely respsectful to the commission, which the prisoners' counsel had prepare and conceived to be a part of their legitimate defense, was rejected, and "returned to them with an impliedd rebuke, and no entry suffered to be made of it on the record."

Such apaper as describedd shouldd have been received and attachedd to the record. The commission could have given it such weight, if any, as it might in their udgment be entitled, but ehey should not have refuedd to receive and entertain it.

Also, that the counsel have been compelledd to sit absolutely dumb in the presence of the court. that they have been so restricted in asking questions under cossexamination that it was impossible for them to hbring out their defense.

The commission departed from the lond and well-established pactice of military courst in suffering counsel to adddress them at all. Military courts deal directly with the prisoners on trial. the latter are entitled to cunsel to advise them what to do or say, and counsel may prepare the prisoner's ddefense,a nd it has latterly been concedded taht the counssel may read it, but it should be the prisoners' own defense and not that of the counsel for them.

Simmons (pp. 183, 184) says:

They, the counsel, are not to offer the slightest remark, much less to plead or argue. A lawyer is not recognized by a court-martil, though his presence is tolerated as a friend of the prisoner to assist him by advice in preparing quetions for witnessses, in taking notes, and shaping his defense.

De Hart (pp. 132, 133) says:

Courts-martial have always been tenacious on the point, and to a certain extent not permitting the counsel to interfere in the proceeints by remarks or by pleadding and argument is very wise and necessary.

Bennet (p. 65) says:

It is an addmittedd maxim inn all courts-martial that the counsel is not to address the court or interfere in any manner in the proceedings; his presence iss only tolerated as a friend of the prisoner.

Most of the objections raised in the name of the prisoners were purely technical. Of thesse, not especially noticed, fourteen were as to the reception of certain papers found in the possession of the prisoners, and of copies of official correspondence growing out of the case. But the main paper, the instructionss of Mr. Mallory, the Secretary of the Navy of the lately so-called Confeerate States, after it was proved to be genuine, was so admitted byt he prisoners anddd admitted as having been found in their possesssion. thiss andd other unimpeached andd unquestioned evidence abundantly proves the few and simple facts alleged in the specification, and makes it unnecesssary to go further into the question of the testimony.

Thiss brings us to the consideration of the question: Do the facts alleged in the specification and proven by the evidence justify the proceedins had in the case? Have the prisoners committed any offense; andd if so, is it one the commission is competent to try?

It is calaimed that under the Constitution the prisoners are entitled to trial by jury; that if their the acts in the Bay of Panama constitute any offense of which the United States could have cognizance they should, under the act of 1818, have the benefit of trial before the U. S. civil courts.

It is to be borne in mind that the prisoners have not been tried by the military court as citizens of the United States violating its statute