are perfectly justifiable in leading him into error either by words or actions. Feints and deceptions of this kind are always allowable in war. It is sthe breach of good faith, express or implied, which constitutes the perfidy and gives to such acts the character of lies.
The only and the simple question to determine is: Was there, by the act of the prisoners, any breach of good faith expressed or implied?
In offering themselves to the master of the Salvador as peaceful passengers, paying him money as a consideration of being carried tdo a neighboring port, was there not an implied promise on their part they were to conduct themselves as passengers and not as enemies, and that they were not to rise on him and seize him and his property? Can it be presumed themaster did not receive them under the implied pledge that if they came on his ship they were not to take it?
In so doing they were clearly guily of perfidy and "breach of implied faith."
It is argued taht the prisoners are quilty of no offense, because no overt act was committed; that their design was frustrated whilst yet in "bare intention;" that the law allows them a locus penitentioe.
To this it is said the bare intention of the prisoners and their locus penitentioe ended when, secretly armed and provided with manacles, they set foot on the Salvsador with the intent ot seize her.
Their project had been planned a great ways off, and after its conceptin the prisoners had to undertake long voyages between different foreign countries, make extensive preparations at various places, resort to many strategems to avoid discovery,a nd encounter many delays in the fulfillment of thier designs. More than six months intervened between the instructions given and received at Richmond, Va., and the going on board of the Salvador in disguise in the Bay of Panama-a locus penitentioe ample enough for the development of any qualms of conscience, if any there were, to be forth coming.
With the foregoing qualifications and exceptions the proceedings and findings in the cases of T. E. Hogg, E. A. Swain, J. S. Hiddle, W. L. Black, T. J. Grady, R. B. Lyon, and Joseph Higgin are approved and confirmed.
In view of the fact that, both by statute and common law, punishment is measured toa great extent by the cnsequences that have flown, rather than by those which might have flown, from the crime committed, that a man who maliciously shoots another is punished more or less as his victim dies or recovers; that an attempt to commit a crime, accompanied by failure, is not punished with the same severity as an attempt that succeeds, and that the prisoners utterly failed; and in view, further, that punishment for violation of the laws of war has especial reference to the future conduct of the belligerent party to which the violators belong, and, as under present circumstances, such partyis unable to do further harm, the sentence of death awarded by the commission is mitigated as follows:
To confinement in the State penitentiary, at San Quentin, Cal., T. E. Hogg, the leader, for the term of his natural life, and E. A. Swain, John S. Hiddle, W. L. Black, T. J. Grady, R. B. Lyon, and Joseph Higgin, each for the term of ten years.
III. the military commission of which Colonel Edward McGarry, Second Cavalry California Volunteers, is president is dissolved.
By command of Major-General McDowell:
R. C. DRUM,