"This commission to continue in force until revoked by the President of the Confederate States for the time being.

"Schedule of description of the vessel :--Name, Schooner Savannah ; tonnage, 53 tons; armament, one large pivot gun and small arms; number of crew, thirty.

"Given under my hand and the seal of the Confederate States, at Montgomery, this 18th day of May, 1861,

"JEFFERSON DAVIS.

"By the President-R. TOOMBS, Secretary of State."

GARIBALDI'S Letter, referRED TO BY MR. brady

AND MR. EVARTS.

[See text, pp. 358, 419.]

"CAPRERA, Sept. 10.

"Dear Sir: I saw Mr. Sandford, and regret to be obliged to announce to you that I shall not be able to go to the United States at present. I do not doubt of the triumph of the cause of the Union, and that shortly; but, if the war should unfortunately continue in your beautiful country, I shall overcome the obstacles which detain me and hasten to the defense of a people who are dear to me. G. GARIBALDI."

CITATIONS, FROM VATTEL'S LAW OF NATURE AND NATIONS, BY MR. JAMES T. BRADY. [See text, p. 365.]

"Sec. 287. It is a question very much debated whether a sovereign is bound to observe the common laws of war towards rebellious subjects who have openly taken up arms against him. A flatterer, or a Prince of cruel and arbitrary disposition, will immediately pronounce that the laws of war were not made for rebels, for whom no punishment can be too severe. Let us proceed more soberly, and reason from the incontestible principles above laid down."

"Sec. 292. When a party is formed in a State who no longer obey the sovereign, and are possessed of sufficient strength to oppose him; or when, in a Republic, the nation is divided into two opposite factions, and both sides take up arms, this is called a civil war. Some writers confine this term to a just insurrection of the subjects against their sovereign to distinguish that lawful resistance from rebellion, which is an open and unjust resistance. But what application will they give to a war which arises in a Republic, torn by two factions, or, in a Monarchy, between two competitors for the Crown? Custom appropriates the term of civil war to every war between the members of one and the same political society. If it be between part of the citizens on the one side, and the sovereign with those who continue in obedience to him on the other, provided the malcontents

have any reason for taking up arms, nothing further is required to entitle such disturbance to the name of civil war, and not that of rebellion. This latter term is applied only to such an insurrection against lawful authority as is void of all appearance of justice. The sovereign, indeed, never fails to bestow the application of rebels on all such of his subjects as openly resist him; but when the latter have acquired sufficient strength to give him effectual opposition, and to oblige him to carry on the war against them according to the established rules, he must necessarily submit to the use of the term civil war.

"Sec. 293. It is foreign to our purpose, in this place, to weigh the reasons which may authorize and justify a civil war; we have elsewhere treated of the cases wherein subjects may resist the sovereign. (Book 1, cap. 4.) Setting, therefore, the justice of the cause wholly out of the question, it only remains for us to consider the maxims which ought to be observed in a civil war, and to examine whether the sovereign, in particuar, is on such an occasion bound to conform to the established laws of

war.

"A civil war breaks the bonds of society and Government, or at least suspends their force and effect; it produces in the nation two independent parties, who consider each other as enemies, and acknowledge no common judge. Those two parties, therefore, must necessarily be considered as thenceforward constituting, at least for a time, two separate bodies-two distinct societies. Though one of the parties may have been to blame in breaking the unity of the State, and resisting the lawful authority, they are not the less divided in fact. Besides, who shall judge them? Who should pronounce on which side the right or the wrong lies? On each they have no common superior. They stand, therefore, in precisely the same predicament as two nations who engage in a contest, and, being unable to come to an agreement, have recourse to arms.

"This being the case, it is very evident that the common laws of war -those maxims of humanity, moderation and honor, which we have already detailed in the course of this work-ought to be observed by both parties in every civil war. For the same reasons which render the observ ance of those maxims a matter of obligation between State and State, it becomes equally and even more necessary in the unhappy circumstances of two incensed parties lacerating their common country. Should the sovereign conceive he has a right to hang up his prisoners as rebels, the opposite party will make reprisals; if he does not religiously observe the capitulations, and all other conventions made with his enemies, they will no longer rely on his word; should he burn and ravage, they will follow his example; the war will become cruel, horrible, and every day more destructive to the nation."

After noticing the cases of the Duc de Montpensier and Baron des Adrets, he continues:

"At length it became necessary to relinquish those pretensions to

judicial authority over men who proved themselves capable of supporting their cause by force of arms, and to treat them not as criminals, but as enemies. Even the troops have often refused to serve in a war wherein the Prince exposed them to cruel reprisals. Officers who had the highest sense of honor, though ready to shed their blood on the field of battle for his service, have not thought it any part of their duty to run the hazard or an ignominious death. Whenever, therefore, a numerous body of men think they have a right to resist the sovereign, and feel themselves in a condition to appeal to the sword, the war ought to be carried on by the contending parties in the same manner as by two different nations, and they ought to leave open the same means for preventing its being carried into outrageous extremities and for the restoration of peace."

ABSTRACT OF DOCUMENTARY EVIDENCE OFFERED BY DEFENDANTS IN THE CASE OF THE SAVANNAH PRIVATEERS."

[See text, p. 367.]

MR. BRADY, for the defense, put in evidence the following documents: 1. Preliminary Chart of Part of the sea-coast of Virginia, and Entrance to Chesapeake Bay.-Coast Survey Work, dated 1855.

2. The Constitution of Virginia, adopted June 29, 1776. It refers only to the western and northern boundaries of Virginia—Art. 21—but recognizes the Charter of 1609. That charter (Hemmings' Statutes, 1st vol. p. 88) gives to Virginia jurisdiction over all havens and ports, and all islands lying within 100 miles of the shores.

3. The Act to Ratify the Compact between Maryland and Virginia, passed January 3, 1786--to be found in the Revised Code of Virginia, page 53. It makes Chesapeake Bay, from the capes, entirely in Virginia.

MR. SULLIVAN also put in evidence, from Putnam's Rebellion Record, the following documents:

1. Proclamation of the President of the United States, of 15th April, 1861.

2. Proclamation of the President, of 19th April, 1861, declaring a blockade.

3. Proclamation of 27th April, 1861, extending the blockade to the coasts of Virginia and North Carolina.

4. Proclamation of May 3d, for an additional military force of 42,034 men, and the increase of the regular army and navy.

5. The Secession Ordinance of South Carolina, dated Dec. 20, 1860.

MR. SULLIVAN read in evidence from page 10 of Putnam's Rebellion Record:

Letter from Secretary of War, John B. Floyd, to President Buchanan, dated December 29, 1860.

President Buchanan's reply, dated December 29, 1860.

Also, from page 11 of Rebellion Record:

The Correspondence between the South Carolina Commissioners and the President of the United States.

Also referred to page 19 of Rebellion Record, for the Correspondence between Major Anderson and Governor Pickens, with reference to firing on the Star of the West.

Read Major Anderson's first letter (without date), copied from Charleston Courier, of Jan. 10, 1861.

Governor Pickens' reply, and second communication from Major Anderson.

Also, from page 29 of Rebellion Record, containing the sections of the Constitution of the Confederate States which differ from the Constitution of the United States.

Also, from page 31 of Rebellion Record: Inaugural of Jefferson Davis, as President of the Confederate States.

Also, page 36 of Rebellion Record: Inaugural of Abraham Lincoln, President of the United States.

Also, page 61 of Rebellion Record: The President's Speech to the Virginia Commissioners.

Also, page 71 of Rebellion Record: Proclamation of Jefferson Davis, with reference to the letters of marque, dated 17th April, 1861.

Also, page 195 of Rebellion Record: An Act recognizing a state of war, by the Confederate Congress,-published May 6, 1861.

MR. LORD read from pages 17, 19, and 20 of Diary of Rebellion Record, to give the date of certain events:

1861, February 8.

44

18.

21.

21.

The Constitution of the Confederate States adopted.
Jefferson Davis inaugurated President.

The President of the Southern Confederacy nominates mem-
bers of his Cabinet.

Congress at Montgomery passed an Act declaring the establishment of free navigation of the Mississippi.

March 19. Confederates passed an Act for organizing the Confederate

States.

April 8. South Carolina Convention ratified the Constitution of the
Confederate States by a vote of 119 to 16.

CITATIONS ON MILITARY LAW BY MR. WILLIAM A.

BEACH.

[See text, p. 455.]

A MILITARY CRIME MUST BE IMPUTED IN THE CHARGES AND SPECIFICATIONS.

"The jurisdiction of court-martial is special and limited, arising from the cognizance of crimes as committed by individuals, that is, by individuals subject to military law; and the crimes or acts are such as are

repugnant to military discipline, and are pointed out by law, by the general regulations for the army, and by the custom of war.

"Those acts defined by law are sufficiently distinct for the observation of members of military courts, whereby they may regulate their proceedings, and no embarrassment can arise in regard to making them the subject of military investigation.

"The general regulations for the army are a permanent body of rules for the better ordering and methodical arrangement of subjects of military concernment, and have a view to establish uniformity of the affairs of the army by determining, to a greater or less degree, the requisite minutiæ and detail. Their character, while mandatory, is also ministerial, and, proceeding from the President of the United States, the highest military authority, claims the utmost respect, observance and obedience. It is true, they are not in the nature of a subordinate legislation to determine or to define offenses and affix penalties, for that belongs to Congress only, and such as are set forth in the rules and articles of war; but they are of the nature and character of orders, pertaining to the executive and administrative branches of the service; and although they denounce no punishment in terms, yet the neglect or positive breaches of their requirements are immediately referable to the established laws for the enforcement of discipline, to which they appeal for an appropriate sanction.

"The custom of war is the unwritten or common law of the army. In order to apply it to any particular case, it must be certain and well defined, and clearly not opposed to any law or regulation. The custom of war is rather sought for as explanatory of some doubtful question in which, without its aid, a decision might become certain, then as a source of authority by itself. It must be understood, too, that a custom to have any validity, besides having the quotations above mentioned, must also be a custom of the army for the government of which it is intended to be applied. To resort to a foreign military service, and draw thence customs of war which are genuine and acknowledged in such service, might be very illegal when introduced into our own, as the circumstances or conditions which called them into existence, and continued them in being, in the one might be entirely wanting in the other. It is an authority which ought to be well scrutinized before allowed to have a determining influence. The customs and usages of an army are, when considered in contradistinction to the positive laws and regulations for the same, generally pretty well understood, and when adduced, as illustrative of the forms adhered to, or the interpretation of acts, should have the certainty of established fact.

'In concluding this chapter, it is proper to observe, that it is a principle by which the power and jurisdiction of courts-martial are restrained, that they cannot take cognizance of any acts or offenses which are not conceded by statute, or the custom of war, as specific crimes against the military State, or as disorders and neglects tending to the prejudice of discipline and good order."-De Hart on Courts-martial, pp. 298, 299.