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[The following charge was delivered to the Grand Jury, on the 4th of November, 1861, in the Circuit Court of the United States for the Southern District of New York, by Mr. Justice NELSON.]
THE LAW OF TREASON.
To constitute the crime of treason, in levying war against the United States, as defined in Article 3, section 3, of the Constitution, there must be an actual levying of war. A consultation or conspiracy to do so is not an overt act, within the constitutional definition.
What acts constitute adhering to the enemies of the United States, giving them aid and comfort, within Article 3, section 3, of the Constitution, considered.
Words, oral, written or printed, however treasonable, seditious or criminal of themselves, do not constitute an overt act of treason.
The extent to which the fact of the use of such words may be used, in finding an indictment, or on the trial of it, considered.
There is no law of the United States making the use of treasonable words an offence.
In a civil war, persons who adhere to their allegiance, are not, although they reside in an insurrectionary district, regarded as enemies; and trade with such persons, in good faith and without collusion with the enemy, is lawful, unless interdicted by the Government.
The provisions of the Act of July 13th, 1861, (12 U. S. Stat. at Large, 255,) in regard to trade with territory in insurrection, explained, as bearing on the subject of treason.
Mr. Justice NELSON, in charging the Grand Jury, after instructing them in regard to several cases to be brought before them, proceeded as follows:
The unhappy condition of our country, arising out of the unnatural struggle of the people of a portion of the Union to overthrow their Government, has created new relations among, and imposed new duties upon, the citizens, which have brought into operation crimes and guilt that, to the great credit of the country, have heretofore been rare; indeed, I may say, almost unknown to her laws and judicial tribunals. I refer to the crime of treason against the United States. Although no case of this description has been presented by the District-Attorney to be specially submitted to you, it may not be out of place to call your attention, in a general way, to the elements constituting this offence. It is the highest crime known to society, and was deemed by the founders of our Government of such importance, both in respect to the Government and the citizen, that they specially defined it in the Constitution; thus taking it out of the power of legislative regulation. The definition is found in the 3d section of the 3d Article, as follows: "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open Court." The
power to annex the punishment was left to Congress, which annexed the penalty of death. This definition of the crime was taken from the statute of 25 Edward III, of England, and which has been several times reaffirmed, for the purpose of correcting abuses that had grown up in that kingdom in respect to the law. both by acts of Parliament and the decisions of Courts, under the tyrannical reigns of the Tudors and the Stuarts. Those abuses were well known to the founders of our Government, and doubtless led to the peculiar phraseology observable in the definition of the crime, namely, that it shall consist only in levying war against the United States, or in adhering to their enemies, giving them aid and comfort; and to the other equally stringent feature, that no person shall be convicted of the offence except on the testimony of two witnesses to the same overt act. The first prohibits Congress from making any other act of the citizen than those specified, treason; and the second prevents the introduction of constructive treasons, which had been engrafted upon this statute of Edward III, by judicial decisions.
Under the first clause of the provision-levying war against the United States-there can be no great difficulty in determining the facts and circumstances which establish the crime. There must be an actual levying of war. A consultation or conspiracy to do so, is not an overt act, within the constitutional 'definition.
There is more difficulty in determining what constitutes the overt act under the second clause-namely, adhering to the enemy, giving him aid and comfort. Questions arising under this clause must depend very much upon the facts and circumstances of each particular case. There are some acts of the citizen, in his relations with the enemy, which leave no room for doubt--such as, giving intelligence, with intent to aid him in his acts of hostility-sending him provisions or money-furnishing arms, or troops, or munitions of war-surrendering a military post, &c., all with a like intent. These and kindred acts are overt acts of treason, by adhering to the enemy.
Words oral, written or printed, however treasonable, seditious or criminal of themselves, do not constitute an overt act of treason, within the definition of the crime. When spoken, written or printed in relation to an act or acts which, if committed with a treasonable design, might constitute such overt act, they are admissible as evidence tending to characterize it, and to show the intent with which the act was committed. They may also furnish some evidence of the act itself, against the accused. This is the extent to which such publications may be used, either in finding a bill of indictment or on the trial of it. An attempt was made, in the Parliament of England, during the reign of James II, to make treasonable words the subject of this crime; but it was resisted by the friends of constitutional liberty and defeated, and since that time it has not been renewed.
Such publications are misdemeanors at common law, indictable, and punishable by fine and imprisonment. But, as there are no common law offences cognizable in the Federal Courts, unless made so by Act of Congress, and as Congress has passed no Act on the subject, this Court has no jurisdiction over them. The only Act passed by Congress on the subject was the Act of July 14th, 1798, (1 U. S. Stat. at Large, 596.) The 2d section of that Act provided, that if any
person should write, print, utter, or publish any false, scandalous and malicious writing, or writings, against the Goverument, or either House of Congress, or the President, with intent to defame the Government, or either House of Congress, or the President, or to bring them or either of them into contempt or disrepute, or to excite against them or either of them the hatred of the people of the United States, or to stir up sedition within the same, or to excite unlawful combinations therein for opposing or resisting any law, or any act of the President done in pursuance thereof, &c., such person, on conviction, should be punished by a fine not exceeding $2,000, and by imprisonment not exceeding two years. The Act was a temporary one, and expired on the 3d of March, 1801, by its own limitation, and no similar Act has since been passed.
On the breaking out of a war between two nations, the citizens or subjects of the respective belligerents are deemed, by the law of nations, to be the enemies of each other. The same is true, in a qualified sense, in the case of a civil war arising out of an insurrection or rebellion against the mother Government. In the latter case, the citizens or subjects residing within the insurrectionary district, not implicated in the rebellion, but adhering to their allegiance, are not enemies, nor to be regarded as such. This distinction was constantly observed by the English Government in the disturbances in Scotland, under the Pretender and his son, in the years 1715 and 1745. It modifies the law, as it respects the condition of the citizens or subjects residing within the limits of the revolted district, who remain loyal to the Government.
As it respects those
of two sovereign nations in a state of war, all commercial intercourse between them is forbidden by the law of nations, all contracts are unlawful, and any goods or property, the subjects of the illicit trade, are liable to seizure and confiscation. This is true, also, as it respects the citizens or subjects in revolt and making war upon the mother Government. But trade with the loyal portion of the people in the disaffected district, in good faith and without collusion with the enemy, is lawful, unless interdicted by the Government. The principle is recognized by the recent Act of Congress, passed July 13th, 1861, (12 U. S. Stat. at Large, 255.) The 5th section provides, that the President, by proclamation, may declare that the inhabitants of a State, or of any part of it, are in a state of insurrection, and, thereupon, all commercial intercourse shall cease between the citizens thereof and the citizens of the rest of the United States, and the goods and merchandise, &c., the subject of the illicit trade, shall be liable to seizure and confiscation. Here, the trade and intercourse are interdicted by the proper authority, and the interdiction applies to the loyal as well as the disloyal citizens or inhabitants. The 6th section goes further, and forfeits any ship or vessel belonging, in whole or in part, to a citizen or inhabitant of the interdicted State or district, found at sea or in any port of the rest of the United States. The forfeiture applies to the loyal as well as the disloyal citizens in the disaffected district, probably from the difficulty of making the forfeiture practical and complete against the latter without making it general. The Government, however, having a general control over the subject, can remedy any injustice as respects the loyal citizen, by releasing the forfeiture. This section, in terms, forfeits the whole of the vessel if part belongs to the citizens of the disaffected district, and would seem to carry with it any interest in the vessel belonging to citizens of the loyal States. This, however, can hardly have been the intention
of Congress. Trade with the enemy, as I have already said, according to the law of nations, is forbidden, and, the property engaged in it is liable to forfeiture, as is the trade in the particular cases specified in the Act of Congress referred to. But, this is all. The act is not made criminal; and, until it is made so by Congress, no punishment is annexed to it, except the forfeiture of the goods. But, this interdicted trade may be carried on in such a way as tc expose the parties concerned to the crime of treason. If carried on for the purpose and with the intent of giving aid and assistance to the enemy in their hostility against the Government, the act would furnish an overt act of adhering to the enemy, giving him aid and comfort. Every citizen, therefore, engaged
in carrying on this illicit trade, will find a much greater peril accompanying the enterprise than the mere forfeiture of his goods.
[The following proceedings took place in the Circuit Court of the United States for the Northern District of New York, at the city of Albany, before Mr. Justice NELSON and Judge HALL, on the 14th of October, 1864.]
THE DEATH OF CHIEF JUSTICE TANEY.
Mr. John V. L. Pruyn addressed the Court as follows:
I am sure that the duty I am about to perform is one which will meet the cordial approval of your Honors. I wish to announce in form, in order that a proper record of the event may be made, by your direction, on the minutes of the Court, the sad news which we all heard yesterday, of the death of the Chief Justice of the Supreme Court of the United States. His feeble health for several years past, had, at his great age, rendered this event one to which his friends and the country had looked forward as likely, in the course of nature, soon to occur, and the weight of the blow has thus been somewhat lessened by the premonitions of its occurrence. Looking at the large powers vested in the Supreme Court of the United States-much greater under our form of government than those lodged with tribunals occupying relatively the same position in other countries-the extent and character of its jurisdiction, and the high respect in which its judgments have been held, the loss of its presiding Judge is an event of very great importance in the constitutional and judicial history of our country. In this case that importance is unusually marked. The deceased Chief Justice had held his high office for the long space of twenty-eight years and upwards, discharging its duties with an ability and integrity which was admitted by the whole country. During this extended period many constitutional questions of great importance were passed upon by the Court, after their discussion by. the most distinguished counsel in the land, and most of the vexed points which disturbed our early judicial history were disposed of. In their decision the clear and luminous mind of the Chief Justice appears in every page, and his opinions will hereafter be referred to, as worthy of the reputation of a Court which has numbered among its judges so many illustrious names.
In the few hours which have passed (and those interrupted by other cares) since I was requested to discharge the duty I am so imperfectly attempting to perform, I have only had time to bring together a few of the events in the life of the late Chief Justice, which may be of interest to us who survive.
ROGER BROOKE TANEY was born in Calvert County, Maryland, on the 17th of March, 1777, and thus was, at the time of his death, in the 88th year of his age. He graduated at Dickinson College, Pennsylvania, in the year 1795, studied law at Annapolis, was admitted to the Bar in 1799, and in the same year was elected to the House of Delegates in Maryland, being the youngest member of that body. He declined a re-election to this office, preferring to give his whole time and energies to his profession. In the year 1800 he removed from his native county, where he had commenced practice, to Fredericktown, where he pursued his profession most laboriously for twenty-two years, when he changed his residence to Baltimore. During this period he attained a high position at the Bar; and the Maryland Reports of that time show that he was engaged in many of the important cases which were brought before the Courts of that State, meeting in argument such men as Pinkney, Williams, Martin, and others of the eminent lawyers of that Commonwealth. In some of these cases, with that firmness of purpose for which he was so distinguished, Mr. TANEY stood up manfully for what he believed the right, without regard to public opinion. In no instance was this more conspicuous than in that of the Reverend Mr. Gruber, a Methodist clergyman, who had been indicted for an attempt, by his preaching at a camp-meeting, to stir up an insurrection among the slaves. By the cleverness and ability displayed by Mr. TANEY on the trial, the prisoner was acquitted. For a long period (I quote from one of his biographers) "the Methodists of that section entertained the kindest feelings for the Roman Catholic advocate, who had successfully defended their pastor against popular excitement and judicial power."
Mr. TANEY served one term in the Senate of his native State-from 1816 to 1821. In 1823 he removed to Baltimore, where he almost immediately entered upon a large practice in the Federal Courts. The then recent death of Mr. Pinkney, Mr. Martin, Mr. Harper, and others of the leading members of the Bar, had left the space to be filled, which Mr. Taney entered upon with all that zeal, industry and ability which had already secured him a wide reputation. In 1827 he was appointed, by the Governor and Council, Attorney-General of Maryland. The estimation in which he was then held, may be inferred from the fact that he was politically opposed to the appointing power. It was during his professional career, while residing in Baltimore, that Mr. TANEY and Mr. Wirt often met in professional struggles, and to the honor of the latter it should be said, that he never hesitated to speak in the highest terms of the great ability of his adversary.
In June, 1831, Mr.TANEY was appointed by General Jackson Attorney-General of the United States. Most exciting questions arose during this Administration, especially those of nullification, and the recharter of the United States Bank. The Attorney-General stood firmly by the President in all these controversies, and, on the resignation of Mr. Duane, as Secretary of the Treasury, growing out of the question as to the removal of the Government deposits from the Bank of the