The Jury retired at twenty minutes after three o'clock.
At six o'clock they came into Court. Their names were called, and the inquiry made by the Clerk whether they had agreed upon their verdict. Their Foreman said they had not. One of the prisoners having felt unwell, had been removed from the close air of the Court-room, and some little delay occurred until he was brought in. Judge Nelson then said: "We have had a communication from one of the officers in charge of the Jury, from the Jury, as we understood, though it had no name signed to it. I would inquire whether the note was from the Jury?"
The Foreman: It was.
Judge Nelson: We would prefer that the Jurymen, or any of them who may be embarrassed with the difficulties referred to, should himself state the inquiry which he desires to make of the Court.
Mr. Powell, one of the Jurors, said that the question was, "whether, if the Jury believed that civil war existed, and had been so recognized by the act of our Government, or if the Jury believe that the intent to commit a robbery did not exist in the minds of the prisoners at the time, it may influence their verdict."
After consultation with Judge Shipman, Judge Nelson said: As it respects the first inquiry of the Juror—whether the Government has recognized a state of civil war between the Confederate States and itself—the instruction which the Court gave the Jury was, that this Court could not recognize a state of civil war, or a Government of the Confederate States, unless the legislative and executive Departments of the Government had recognized such a state of things, or the President had, or both; and that the act of recognition was a national act, and that we must look to the acts of these Departments of the Government as the evidence and for the evidence of the recognition of this state of things, and the only evidence. As it respects the other question—whether or not, if the Jury were of opinion, on the evidence, that these prisoners did not intend to commit a robbery on the high seas against the property of the United States, they were guilty of the offence charged—that is a mixed question of law and fact. The Court explained to you what constitutes the crime of robbery on the high seas, which was the felonious taking of the property of another upon the high seas by force, by violence, or putting them in fear of bodily injury, which, according to the law, is equivalent to actual force; and that the term felonious, as interpreted by the law and the Courts, was the taking with a wrongful intent to despoil the others of their property. These elements constitute the crime of robbery. Now, it is for you to take up the facts and decide whether the evidence in the case brings the prisoners within that definition. The Court will not encroach upon your province in these respects, but will confine itself to the definition of the law.
Another of the Jury—George H. Hansell—rose and said: One of the Jury—not myself—understood your honor to charge that there must be an intent to take the property of another for your own use.
Judge Nelson: No, I did not give that instruction. The Jury may withdraw.
The Jury again retired, and, as there was no probability of an agreement at half-past seven o'clock, the Court adjourned to eleven o'clock Thursday morning.