489 ~ Hi-x-^ SPEECH DELOS LAKE, ESQ., U. S. District Attorney, TRIAL OF HOGG AND OTHERS BEFORE A MILITARY COMMISSION AT SAN FRANCISCO, June, 1865. SAN FRANCISCO: PRINTED BY TOWNE AND BACON. 1865. x. v -.'-' ' SPEECH OF DELOS LAKE, ESQ. MR. PRESIDENT AND GENTLEMEN OF THE COMMISSION : The charge and specifications against the prisoners, which you are convened to try, are as follows : "CHARGE. " Violation of the laws and usages of civilized war. " SPECIFICATION. " In this that they, the said T. E. Hogg, E. A. Swain, J. S. Hiddle, W. L. Black, T. J. Grady, R. B. Lyon, and Joseph Higgins, being commissioned, en- listed, enrolled, or engaged by the Government of the so-called Confederate States, did, on or about the tenth day of November, 1864, come on board the United States' merchant-ship Salvador, then lying in the friendly port of Panama, New Granada, in the guise of peaceful passengers, without any visible mark or insignia, indicating their true character as enemies ; and did so enter on board of said steamer, secretly armed and provided with manacles, with the intention, purpose, and object of treacherously rising on the master, crew, and unsuspecting passen- gers of said steamer, when she had reached the high seas, and of capturing her and the property aboard, and of converting her into a cruiser to prey on the commerce of the citizens of the United States." The evidence establishes, and the prisoners do not in their de- fense seriously controvert the truth of, the matters detailed in the specification ; but, it is claimed that, conceding the facts to be fully proven as set forth in the specification, the principal charge of a " violation of the laws and usages of civilized war," is not sustained. In other words, the proposition contended for, is this : That, in the existing rebellion, a person not attached to any mili- tary or naval command, may go abroad, far from the theater of hostilities, into a foreign country, and at a foreign seaport, may, treacherously, in the guise of a peaceful passenger, traveling on pretense of a legitimate, peaceful mission, introduce himself on board a merchant-ship of the United States ; and while maintain- ing this false character of such peaceful passenger, may suddenly rise upon and slay the master, crew, and passengers, and destroy the ship ; and that such acts, if done in the name and by direction of the so-called Confederate Government, are acts of honorable warfare, and in accordance with the laws and usages of civilized war. That there were in this enterprise more than one person ; that their purpose was, after the capture of the Salvador ', to convert her into a privateer, and, under a rebel flag, to prey on American commerce ; and that their purpose was defeated are matters that in no way afiect the proposition. In testing the soundness of the prisoners' argument, we may as- sume the enterprise to capture the Salvador to have been success- fully carried out, in accordance with the instructions of Mr. Mallory, styling himself the Secretary of the Confederate Navy ; and in the mode and manner of accomplishing the capture, we may suppose what in the ordinary course of events would have occurred. The master, crew, and passengers of the Salvador would have made a manful and courageous resistance, meeting force with force. Victory and the capture of the vessel would be accomplished only by the slaughter of the master, crew, and passengers, if necessary since the instructions of Mr. Mallory are to " effect a capture without fail." The proposition contended for is a bold and startling one, and coming from these prisoners through respectable counsel, is well calculated to arrest attention. Because, if it be maintainable, then it is lawful for the rebel commanders to send individuals, in numbers, great or small, away from the field of rebel military operations throughout our peaceful sea-ports and towns, with directions to rob banks, burn towns, and steal ships ; and, in fine, to commit any act of atrocity conceivable, and a compliance with such instructions may be defended as hon- orable warfare. Hence, Beale, recently executed in New York for practices sim- ilar to those charged on these prisoners, had but to exhibit his in- structions from the rebel Government to justify himself; and Ken- nedy, the emissary sent to apply the torch to the City of New York, had but to unfurl jthe rebel flag amidst the flames, to secure the treatment due to a prisoner of war, captured in honorable warfare. Happily such doctrine finds no sanction in the laws of war. The military code is subject to no such reproach. But, preliminary to discussing the nature and character of the acts of the prisoners as acts of war, it is proper to dispose of the objections made in their argument. First, that no overt acts of hos- tility were committed, and hence no offense was committed ; and, second, that if any offense was committed, it was against the munic- ipal laws of New Grenada. 1. Under the first objection the question is, were the prisoners engaged in levying war against the United States ? This question is readily answered indeed, in one part of their defense the prisoners expressly admit it. They say, " we are sailors of the navy of the Confederate States. We are commissioned offi- cers of a Government at war against yours. We acted under in- structions of our chief in command." And the leader, Hogg, says : " For his comrades who have stood by him in fealty, during seven months of imprisonment, he pleads for them the same acts of extenuation which he asks for himself. He acted under the commission and instructions of the Confederate Secretary of the Navy, and they have acted under him." Irrespective, however, of the prisoners' admissions, the acts proved are clearly acts of war. In ex parte Collman and Startwout, (4 Cranch, 76) the whole subject of what constitutes a levying of war, was thoroughly exam- ined and expounded, and it was held, that to constitute a levying of war, there must be an assemblage of persons for the effecting, by- force, a treasonable purpose. And that, when a war is levied, all those who perform any part, however minute or however remote from the scene of action, and who are actually leagued in the gen- eral conspiracy, are traitors. On the trial of the case known as the " Chapman case," tried before the Circuit Court of the United States for this Circuit, their Honors, Judges Field and Hoffman, decided, that holding a letter of marque from the rebels, and under it taking any steps to fit out a vessel, though the vessel had not attempted to sail, was a leagu- ing with the rebellion, and constituted treason. To apply the law thus stated to the present case, the rebels are levying war against the Government. The prisoners are leagued 6 and acting with these rebels in arms, and receive and obey instruc- tions from the leaders, as to the mode and manner of committing hostilities and inflicting injury on the enemy. They, hence, though remote from the general scene of action, were engaged in levying war, and are traitors. These acts, as before remarked, are clearly set forth in the spec- ification, and are not controverted ; and they are unquestionably acts of war, and perpetrated, against the citizens and against the commerce of the United States. 2. As to the objection, that if any offense was committed, it was against the municipal laws of New Granada, it is a sufficient answer to say, that no municipal law of New Granada was violated. The prisoners were not enemies to or leaguered with enemies of, nor perpetrating any act of hostility against that Government. That the acts constitute an offense at all, is owing to the preexisting fact of war, and that the perpetrators were engaged in that war, and that, in the prosecution of that war, they have committed acts in violation of the usages of civilized war. The offense, therefore, is against the United States, or no offense has been committed. The prisoners further contend that, the acts constituting the of- fense were committed within the territorial jurisdiction of New Granada, -and hence, cannot constitute a crime against the United States. They urge, that the bay of Panama " is an inlet from the Pacific Ocean, more than one hundred miles in length, and that the port of Panama, where the Salvador rode at her anchor, is more than one hundred miles from the high seas." In this the accused are as badly advised in their geography as in their law. The Bay of Panama is not an inlet from the Pacific Ocean. It is more properly a gulf. It is the open seas ; and the anchorage ground for vessels at the port of Panama is an open roadstead. It is no more within the exclusive jurisdiction of the State whose shores are washed by its waters, than are the gulfs of Mexico, Nic- aragua, or of the Bay of Biscay, within the jurisdiction of the States to which they are adjacent. It is said by writers on international law, that maritime territory 7 of a State extends to bays and adjacent parts of seas inclosed by headlands belonging to the same State ; but, in order to constitute such bodies of water a portion of the adjacent territory, they must be so narrow, or so nearly inclosed by headlands, as to admit of being defended from shore to shore, or to be commanded by cannon shot from the opposite headlands. (Wheaton's International Law, p. 342.) The distance from Point Mala, the western headland of the Gulf of Panama, to the eastern shore, is one hundred miles and upward ; and on the eastern coast there is no well-defined point of land to mark the entrance to the gulf. No cannon has yet been invented of sufficient caliber to maintain jurisdiction over the ocean within these points, and no canon of in- ternational law has heretofore been invoked on which to rest a claim to such a jurisdiction. But conceding that the Bay of Panama is within the jurisdiction of the Central American States ; and conceding, also (which is not however admitted), that the accused were arrested within the waters of the bay, no such consequences would result as is claimed for the defense. These waters are nevertheless the higji seas. The term " high seas " ds defined to be waters where the tide ebbs and flows, without the boundaries of low-water mark, and any ship or vessel navigating the high seas carries with it the political and even territorial jurisdiction of the nation to whom it belongs. This is familiar law, to be found in all elementary works which treat of the subject, and is illustrated and applied in a vast number of adjudged cases. In United States vs. William Ross, 1 Gallison, p. 624, the pris- oner was indicted for being present, aiding, and abetting in the murder of a man on board the American schooner Pocahontas on the high seas near the Cape de Verde Islands. It appeared on the trial that the schooner lay at anchor in an open roadsted or bay near the Island of St. Jago, one of the Cape de Verde Islands, and about half a mile from the shore and about a mile from the town of Pragal. About midnight the prisoner and nine other Portuguese convicts, came on board armed with muskets, cutlasses, etc., took possession 8 forcibly of the vessel, wounded two persons on deck, knocked down the master and stabbed a colored man so that he died within half an hour. The ruffians then cut the cables, hoisted the sails, and put out for sea, intending to proceed to South America. It did not appear precisely where the vessel was when the death took place ; but she was adrift, and the sails hoisted, and from two to six miles from the land. The seizing of the vessel was proved to have been by a pre-concert, and with a determination to acconr plish the enterprise be the consequences ever so fatal or to use the equally expressive language of Mr. Mallory, " to effect the capture without fail." It was objected that the Court had no jurisdiction over the offense, because it was committed in a roadstead or bay within the jurisdic- tion of a foreign country and not on the high seas. Judge Story in his charge to the jury, says : " The first question to be decided is, whether the Court has jurisdiction over the offense, as proved in the evidence ; or in other words, was the offense committed on the high seas, within the true intent and meaning of the Act of 30th of April, 1790, Ch. 9, Sec. 8 ? From the language of the Act, I am of opinion that the words ' high seas,' mean any waters on the sea-coast which are without the boundaries of low-water mark ; although such waters may be in a roadstead or bay within the jurisdictional limits of a foreign gov- ernment. Such is the meaning attached to the phrase by the com- mon law, and supported by the authority of the admiralty, perhaps to a more enlarged extent. * If, therefore, the jury believe the evidence, that the prisoner with his associates, did conspire to seize the schooner and run away with her against the will of her master and crew, and meant in the pros- ecution of such conspiracy, if necessary, to kill whoever should oppose them in executing their project ; that the prisoner was the chieftain and actually present on board, aiding and assisting in accomplishing the project by all the means in his power, and one of the associates did on that occasion, kill the unhappy passenger in aid of the general design, I hold, that the homicide so perpetrated was murder, and that the prisoner and all his associates then pres- ent were principals in guilt." 9 Halleck (p. 162) says : " That beyond its territorial limits, a State may exercise jurisdiction for special purposes as over its own public and private vessels on the high seas, and its public, and to a certain extent, its private vessels in foreign ports." And at page 172, the same author says : " The rule of law and the comity and practice of nations allow a merchant vessel of one State coming into an open port of another, to bring with her and to keep over her, to a very considerable extent, the jurisdiction and authority of the laws of her own country ; excluding to this extent, by consequence, the jurisdiction of the local law. The jurisdiction of a nation over its vessels while lying in the port of another, is wholly exclusive. * Such vessel is for the general purposes of government and regulat- ing the rights, duties, and obligations of those on board, to be considered as a part of the territory of the nation to which she belongs." But we insist still further, that it is wholly immaterial whether the offense was committed on the open sea or while the vessel was at anchor in the port of Panama, or even on shore. The offenders are in either case answerable before the tribunals of their own country. "A State may punish offenses committed by its own citizens or subjects, wherever committed." Halleck, p. 173. In pursuance of this right, Congress has provided for the punish- ment of various offenses committed by American citizens abroad among others, that of corresponding with a foreign government without being duly authorized by the United States. The accused are citizens of the United States in rebellion against the United States, and no matter where they commit acts of hos- tility as rebels, against the citizens or commerce of the United States, they are answerable to the United States. In discussing this case, the defense have confounded two ques- tions, which have not necessarily any connection, namely : the place where the offense was committed, and that where the arrest was made. The term " arrest," as employed by Captain Davenport and the Admiral, applies to the act of taking the prisoners from the Salvador and placing them on board the war steamer Lan- caster ; that they had previously been restrained of their liberty to 10 an extent constituting a technical arrest may be conceded, but that was a matter affecting the internal police on board the Salvador. The precaution of delaying the transfer of the prisoners to the ship of war till well out at sea, was out of deference to the sensi- bilities of the New Grenadian Government, a matter with which the prisoners have no concern. The vital question with them is, are they guilty of the offense charged against them ; not how or where they were arrested for its commission. The question recurs, was the enterprise to capture the Salvador one sanctioned by the usages of civilized war ? In the prisoners' defense, importance is given to the fact that the purpose of capturing the Salvador was to transform and con- vert her into a privateer, to cruise against the commerce of the United States ; and it is from this argued, that inasmuch as the United States have recognized and treated rebels taken on board privateers, as prisoners of war, thus recognizing the depredations of rebel privateers as acts of lawful war, that it is an act of lawful war, by treachery and murder, to steal in a neutral port a mer- chant vessel suited for the purpose of a privateer. It is a mistake to suppose that the use to which the vessel pirat- ically captured was to be devoted, lessens the odium of the crime. Whether the Salvador was to be used to commit piracy against the commerce of the world, or only against that of the United States is in no aspect of the case, material, and may be left out of view. We may suppose then, that the enterprise was to end with the destruction of the American merchant-ship Salvador. The prisoners' argument suggests that they intended to unfurl the rebel flag before they rose in revolt on the captain and crew and commenced slaying, and that such were the instructions of Mallory. This is a mistake. The rebel Secretary's language is : '" You will proceed with the men under your command from Wil- mington to Panama. At that port you will take passage on board either the Guatemala or the San Salvador ', the two Federal screw steamers, trading between Panama and Realejo." "After reaching the high seas you will consider upon and devise a means to capture the vessel in the name of the Confederate States, and effect the capture without fail. 19 11 " Having secured the steamer, organized your crew, and hoisted the flag of the Confederate States, you will adopt prompt measures to arm your vessel," etc. The rebel flag was not to be taken from its secret hiding place till after the vessel was captured, which was to be accomplished without fail. Without a flag, therefore, this leader of the band, Hogg, and his six companions and followers, all in the treacherous and perfidious guise of peaceful travelers, were at a given signal, when the master, crew, and passengers were enjoying a sense of the most perfect security, to commence the slaughter for the rebel Secretary says the capture must be effected ivithout fail. It is not clearly stated by the prisoners' counsel whether they claim to have been engaged in a naval or military enterprise. Their ultimate intention, they say, was to prey upon the- com- merce of the United States, and that the Salvador was to be trans- formed into a privateer for that purpose. It is probable, therefore, that their claim accurately stated, is, that they are to be regarded as master and crew of a privateer, because it was their purpose and intention to become such, if they had succeeded in piratically stealing the vessel, for attempting which, they are now on trial. And as the spoliations committed by rebel privateers are recog- nized as within the rules of civilized warfare, and rebels captured composing the force of such privateers are regarded as prisoners of war, so the capture of a vessel with intent to convert her into a privateer, is an act recognized by the laws of war, and persons cap- tured in the enterprise are to be treated as prisoners of war. Such ,a proposition cannot for a moment be maintained. It is unfortunately triie that the leaders and chiefs of this rebel- lion have both justified and directed acts of murder and robbery, for the commission of which, the perpetrators have, in many in- stances atoned with their lives ; and in many other cases, the mes- sengers of justice are close on the track of the criminals. The leader of the band of marauders which plundered the St. Alban's Bank, stole horses, and fired upon and murdered peaceful citizens, justified his acts under a rebel commission, as giving those acts the character of a legitimate operation of war. The mutineers on board the Chesapeake (a case in principle, on all fours, with the present) put forth the same claim, that the mutiny was a legitimate belligerent operation. 12 The rebel Beale, already referred to, recently executed, set up the same claim. But our Government does not recognize such a doctrine. The contest is a public war, and can only be carried on under the recognized rules of warfare, by military or naval organization. It cannot be carried on at all times and at all places as a personal strife between individuals, even though each individual may have secreted on his person the commission or the flag of the belligerent whom he professes to serve. Persons cannot be commissioned to carry on war individually. They are commissioned as portions of certain organized forces either land or sea forces. There can be no such force on the sea if there is no vessel in which it may float ; nor on land which belongs to a neutral, nor even on land which belongs to the other belligerent, unless a force sufficient has invaded the country to enforce for the time being a belligerent jurisdiction over the invaded country. The very idea of a naval force involves a ship or vessel. Hence a belligerent may commission a vessel as a privateer, but it cannot commission a certain person, or number of persons, to piratically steal a vessel for the purpose of converting her into a privateer. It is submitted, therefore, that the prisoners, confessedly engaged in the rebellion, and claiming to belong to the hostile forces of the enemy, in leaving the theater of the war, and congregating clan- destinely and secretly in the neutral port of Panama ; and there conspiring to capture the United States ship Salvador, and in pur- suance of such conspiracy in taking passage on the vessel as ordinary travelers, engaged on peaceful enterprises, in smuggling on board arms and manacles, under pretense of their being trav- elers' ordinary luggage ; in actually going on board as such pre- tended peaceful passengers and travelers ; in using false names and false passports, and actually sailing on the voyage, with the intention, when fairly at sea, to use their arms and manacles on the master, crew, and passengers, and to capture the steamer without fail " in the name of the Confederate Government" are guilty of acts of treachery and perfidy so odious and revolting as to exclude them from the pale of honorable belligerents. That such acts are not in accordance with the usages of civilized war, and hence, that the charge of " violation of the law and usages of civilized war," is fully made out. 13 The claim that their acts were a stratagem allowed by the laws of war, remains to be noticed. The authority cited by the prisoners (Halleck, p. 402) so far from supporting this claim, is in direct condemnation of it. The author says : " Stratagems in war are snares laid for an enemy, or deceptions practised on him, without perfidy, and consistent with good faith." In any case, in order to justify stratagem, the end to be attained must be one that might be lawfully accomplished without stratagem. There is no question of stratagem in this case. The enterprise was one not recognized as a lawful belligerent act. It cannot, hence, be rendered lawful by being attempted in a clandestine manner. The offense may be, and doubtless is, more odious by reason of the peculiar perfidy and treachery used, but the cap- turing the vessel by these seven irresponsible persons, far away from the theater of hostilities, if done ever so boldly, would not have been a legitimate belligerent act. But it is not stratagem for a passenger to rise upon the unsuspecting master of a merchant- ship, blow his brains out, manacle his crew, and take possession of the vessel. It is mutiny, robbery, murder. " To* sail and chase under false colors," says Sir William Scott, "may be an allowable stratagem in war, but firing under false " colors is what the maritime law does not permit." What flag was Hogg to exhibit to the master of the Salvador, before planting a dagger in his back, or a revolver behind his head ? The boastful claim of the prisoners that they " are commissioned and enrolled officers and sailors of a navy at war with the United States, can scarcely be admitted even if we accord to them the positions conferred by the rebel Secretary. They were commis- sioned to destroy property, not to fight the enemy, and if by the assertion that " so long as he had a government to serve, he served it well, Mr. Hogg means that he has been engaged during this war in the infamous business of cruising for, capturing, and burning merchant-ships of the United States," it was a most unwise and unfortunate declaration. We have thus noticed such parts of the matters set up in de- fense, as are material to a proper disposition of the case. It is not deemed proper to enter into a discussion as to the propriety 14 of the appointment of this commission to try this offense. Of its necessity, the authority ordering it, is the sole judge, until the case is submitted for review to still higher authority. The demand for a jury trial by these persons, and in the same breath claiming to be treated as prisoners of war, captured in honorable warfare, will doubtless receive all the consideration it merits. It would 'be a satisfaction to have submitted this case with a bare statement of the facts on which the Judge Advocate asks, a con- viction, without saying anything to w r ound the feelings of these un- fortunate men. But the bold and defiant attitude they have assumed before this Court ; the sneers, and scorn, and affected contempt with which they have treated the gallant officers of our navy, who, in the discharge of their duty, arrested them and de- feated their scheme ; their flaunting the rebel flag in the faces of this Commission, with the false boast that, " The Navy of the Confederate States, though small, has done its share of the work of war ;" that " its cruisers have swept the ocean ;" that " they have lit the battle-fires in many a sea ;" the sneering taunt toward the commander of the Lancaster, that the only place where his ship would be likely to capture the rebel flag, was in the trunk of a betrayed prisoner : all these things have excited feelings of in- dignation which we have not been able entirely to repress. Nor ought this indignity upon Captain Davenport, so wantonly perpetrated by the prisoners, through their counsel, Mr. Pixley, to be passed without further notice. Wickedly and foolishly, the counsel has permitted himself to be used, by the accused, as a channel for a most malicious, wanton, deliberate, open, and unprovoked insult to a gallant officer, who has written his name in his country's history, during this rebellion, in characters too deeply engraven for the hand of malice to erase, or an advocate or eulogist of rebellion and treason to dim. " Perhaps, although we are prisoners," says Mr. Pixley, " we may congratulate Henry Kellock Davenport, Esq., of Georgia, Commander of the ship of war Lancaster, carrying forty-four guns, that he met that flag in the trunk of a betrayed prisoner, rather than flying at the masthead of a Confederate man-of-war." Not even the ordinary gentlemanly courtesy is accorded of 15 naming Commander Davenport by his rank as an officer in the navy. But let that pass. It is due, however, to this Commission, and also to this commu- nity, (since Mr. Pixley has seen fit to furnish his speech for publi- cation) that it should be known Captain Davenport has, during this rebellion, encountered that flag which the counsel has snatched from his chivalrous client's trunk to flaunt in the face of this Court. "Henry Kellock Davenport, Esq.," as the prisoner's counsel discourteously designates Commander Davenport, w r as executive officer of the frigate Cumberland, at the bombardment and capture of forts Hatteras and Clark, in the first year of the war. At the battle of Roanoke he commanded a column of five gunboats under Admiral Goldsborough. Two days after this latter battle, he com- manded the same number of gunboats under Commodore Rowan, and fought in the battle of Elizabeth City, where the flag which the counsel has seen fit to eulogize and defend floated from the masthead of the flag-ship of Admiral Lynch, commander-in-chief of the rebel naval forces. It would have been much safer in the trunk of even a betrayed prisoner. In that fight, fifteen minutes after the signal for attack was given, our fleet had captured, burnt, or destroyed the entire rebel force in the Sounds of North Carolina ; and the gallant Lynch, whom I commend to the counsel as a fit subject for his next eulogy of rebel heroes and exploits, running away from his shore batteries, left his cloak in the hands of the enemy. On that occa- sion, " Henry Kellock Davenport, Esq., of Georgia," had the honor, also, of extending the hospitalities of his ship to Admiral Lynch's flag Captain, as a prisoner of war, but the flag Captain did not bring the flag, which he came to surrender, in his trunk. Commander Davenport subsequently participated in the battle and capture of Newbern, North Carolina, and, for two years after- ward, was senior officer in the Sounds of North Carolina, where he relieved Commodore Rowan, taking part in the battles of Newbern, when the enemy's fleet, in conjunction with a land force, several times attempted to retake the town. The following letter from the Commander of the brave little band of soldiers to Commander Davenport, is somewhat in contrast with the language in which Mr. Pixley has seen fit to indulge : 16 HEADQ. IST BRIGADE, WESSEL'S DIVISION, Newbern, N. C., March 15th, 1863. Commodore: When, on the 14th of March, 1863, General Pettigrew, with eighteen pieces of artillery, and more than three thousand men, made his furious assault upon Fort Anderson, an unfinished earthwork, garrisoned by three hundred men of my command, (the Ninety-Second New York Volunteers) the capture or destruction of the brave little band seemed inevitable. But the gunboats under your command, the pride of loyal men, and the terror of traitors, came promptly to the rescue Your well-directed fire drove the enemy from the field, covered the landing of the Eighty-Fifth New York, sent to the relief of the garrison, and the repulse^f the rebel army was complete. Allow me, Commodore, in the name of the officers and members of my com- mand, to express my admiration of the promptitude and skill -displayed by your command on the occasion. The army is proud of the navy. I remain your most obedient servant, J. C. BELKNAP, Colonel 85th Yew York Vol's Com'g 1st Brigade. Commander DAVENPORT, Newbern, N. C. And here is also an extract from the report of a gentleman whom Mr. Pixley would probably designate as S. P. Lee, Esq., known to history and fame, however, as Admiral Lee, on the conduct of the Commander of the gunboat Hetzel, Henry Kellock Davenport: " Commander Murray states that the fire of the Hetzel, Commander Davenport, was very accurate, and that after three discharges from her 9-inch gun, the enemy's battery was silenced, and that one of the Hetzel's shells dismounted and broke a rifle Parrott gun and killed and wounded a number of the enemy. Commander Mur- ray thinks that one of the 9-inch shells from the Hetzel, was probably one of the mos* destructive projectiles thrown during this war from either side. Two hundred and fifty-seven projectiles were expended, of which fifty-four were 9-inch shells, fired from the Hetzel." But Commander Davenport is not on trial, nor does he even ap- pear as a prosecutor, though the counsel seems determined to make him a party to the proceedings, and drag him into the same pillory where he has placed himself. He comes in obedience to orders from the Government he serves, simply to testify as to the manner in which he carried out the instructions he received. It may have been a crime to capture a rebel flag in a betrayed prisoner's trunk, but I imagine that, in this instance, sympathy will scarcely side with that betrayed prisoner. Public opinion will probably exhonorate him of any very grave ofiense in not patiently waiting for that flag to fly above the corpses of the officers, crew, 17 and passengers of a peaceful merchant-vessel, captured by mutiny and stealth, and suddenly baptized, in loyal blood, into a " Confed- erate man-of-war." I hope the Commission will pardon this brief notice of Com- mander Davenport. It has seemed to me due to the case and to the occasion. I now return to the prisoners' argument. That rebel freebooters have swept the ocean is true; but that they have " lit the battle fires in many a sea,." we first learn from these prisoners. It is also true that they " have illumined the darkness of night and storm, with many a burning wreck ;" but the illumination has been caused by incendiary torch, applied by traitor hands, to defenceless merchant-ships. If it be true, as alleged by the prisoners, that in this boasted naval warfare of the rebel cruisers, avoiding the enemy and burning merchant-ships " no one has walked the plank, or swung at the yard-arm," it is indeed a just subject of congratula- tion for it is believed there are no other acts of infamy pertain- ing to the character of pirates, from which they are exempt. For the prisoners to bring these matters prominently and defiantly be- fore this Commission and this community, at this time, is not calculated either to establish their innocence, or mitigate their punishment.