DEBATE IN THE U. S. SENATE

UPON THE SECOND SECTION OF THE ACT OF JULY 17TH, 1862.

Mr. CLARK. The offense described in the second section is a new offense-the offense of inciting and setting on foot rebcllion.

Mr. TRUMBULL. Or assisting it.

Mr. CLARK. Or assisting it in any way. It might amount to treason, or it might not.

Mr. CLARK. There may be a rebellion which may not amount to a levying of war. It may not be an armed rebellion. It may be an insurrection that does not amount to levying war. I do not say that it would be so in the case of the present rebellion. If a man is indicted for treason, I want the Court to have some discretion in regard to it, because it may turn out on the trial that there are circumstances mitigating it which the attorney who indicted him for treason did not know of. If there are none, let the Court inflict such punishment as they think he deserves. It certainly can do no harm, and may do a great deal of good.

Mr. TEN EYCK. It is of vast importance, as I understand the purport and effect of a recent decision of the Circuit Court of the United States for the Southern District of Ohio, where Judge Swayne has recently pronounced judgment quashing an indictment against certain persons who were indicted for aiding and assisting in this rebellion. The Court, in quashing the indictment, held that those words in the Constitution are solely applicable to aiding and assisting a foreign enemy, and do not apply to aid and assistance rendered now to persons in rebellion within the limits of the Union. Therefore these words in the second section, which give this new punishment for aiding and giving comfort to the existing rebellion, are of vast importance, and will cover all that class of cases which could not be reached under the decision of the Circuit Court in Ohio, as recently pronounced.

Mr. WADE. I do not understand that decision as the Senator from New Jersey does, although I have not seen more than a brief synopsis of it. Upon the first statement of it which I saw published, I understood it just as the Senator does; but I saw afterwards a little more detailed account of it, and I then perceived that the decision turned upon an entirely different point. In the first instance, I thought that the Judge intended to say that, in a civil war like the present, to aid, abet, or assist the enemy would not be treason under the Constitution; but on looking at the more detailed statement, I came to the conclusion that the decision

turned entirely on the form of the indictment, and that the pleader, instead of having charged the man with having assisted and abetted the rebellion, ought to have charged him directly with levying war against the United States. The decision, as I understand it is, that in the case of a foreign war you may indict a man for giving aid and comfort to the enemy, but that in a domestic war your indictments must be under the other clause of the Constitution, and you must charge the man with levying war. It turns out that the decision was founded upon the mere technical form of pleading. The judgment of the Court was founded on a great number of English decisions, and it was that the indictment was vicious in not directly charging the defendant with having levied war, when the proof would have been that he aided and assisted the enemy that was levying war. That, I believe, is the amount of the decision.

Mr. TEN EYCK. It may be aside from the present discussion, but I certainly saw published in the National Intelligencer what purported to be a verbatim account of the opinion delivered by Justice Swayne; and the Court held that those words in our Constitution which make it treason to give aid and comfort to the enemy, were an exact copy of the old Norman-French, incorporated into an English statute, and cited several cases that had been decided in England under that very statute, holding that the treason therein spoken of consisted in giving aid and comfort to a foreign enemy, and could not and did not apply to giving aid and comfort to a rebellion within the realm. Although the Court may have said that the indictment was not sufficient, because it did not charge the actual levying of war, they held it so because of necessity it must have been so charged to hold the party indicted guilty of treason against the United States, for he could not be guilty of treason against the United States except under the first branch of the clause of the Constitution, which declares that "treason shall consist only in levying war against the United States, or adhering to their enemies, giving them aid and comfort." The Court held that treason consisted in levying war against the United States, but could not consist in giving aid and comfort to the citizens of the United States in rebellion against the Government. That is the decision upon which the Court quashed the indictment against a person whose name I do not remember: and under that decision Thomas B. Lincoln, who was the man that Bright was guilty of giving aid and comfort to, and others, go free.

Mr. WADE. I think the reason of that decision is this: in treason there are no accessories. If a man does anything to aid, abet, or assist, so that he would be an accessory before the fact in a felony, he becomes a principal traitor, and must be so treated in the indictment. It must, therefore, charge him directly with levying war, because that is the only treason in the case of a domestic war. The Court took a distinction between a domestic and a foreign war. Under these circumstances, the Judge said he was a principal traitor, and must be charged as such, because in treason there are no accessories. If a man is a traitor, if he assists at all, he is a principal traitor, and must be treated as such in an indictment, and that is all there was in the decision, as I understand it.

Mr. DAVIS. The same question that has been referred to in this debate was made before the District Court of the United States for Kentucky, and the District Judge there decided the law, as I understand it, in conformity to the decision of Chief Justice Marshall, and of the English Courts also. The clause in the Constitution which defines treason adopts, nearly literally, the language of the statute of 25 Edward III, and it gives two definitions of treason; one is levying

war against the United States, and the other is adhering to the enemies of the United States, giving them aid and comfort. In the opinion rendered in the case of the United States v. Chenowith, decided by Judge Swayne, which has been referred to, it was ruled that the objection which was made to the indictment, and upon which it was quashed, might be obviated by the charge that the treasonable act was a levying of war; but here is the difficulty, as the Senator from Ohio well observed; there may be an adherence to the enemies of the United States and giving them aid and comfort, which is not an act of making war, and where that was the character of the aid and comfort given, of course it would be idle to charge against a party that he had levied war, for the proof being not that he had levied war, but that he had adhered to an enemy of the United States, giving him aid and comfort, and the act of adherence, and the aid and comfort given by him, not amounting to a levying of war, he could not be convicted. To my mind, two definitions of treason by the Constitution of the United States are palpable; and the distinction between an act of levying war and an act of adhering to the enemy of the United States, giving him aid and comfort, which might not be an act of making war, is plain and palpable. The English Courts in interpreting the Statute of 25 Edward III, and Chief Justice Marshall and the District Court of Kentucky, sustain this distinction, that where the proof amounted to the offense of adhering to an enemy, giving the enemy aid and comfort, and not the act of making war, that enemy must be a foreign State with which the United States was at war; and that an adherence to a domestic enemy was not an adherence to an enemy within the meaning of the Constitution, although aid and comfort were given that enemy, as would bring the party under the definition of the second branch of treason as defined by that instrument. In the case of the United States v. Bollman, the Court entered into a definition of what is an act of levying war, and decided some acts to be acts of levying war, and other acts not to be acts of levying war. These latter classes of acts might, and often would, be giving aid and comfort to the enemy, but they were not acts of the character that amounted to a levying of war. The principle decided by the English Courts and by the American Courts is, that where the act does not amount to a levying of war, but is an adherence to the enemy, giving the enemy aid and comfort, that act, to come within the last definition of treason by the Constitution, must be an adherence to a foreign enemy with which the United States are at war, giving that foreign enemy aid and comfort.

Mr. WADE. I desire to ask the Senator a question. If I understand him now correctly, it is no offense under any law of ours for a man to aid and assist the enemy, the rebels.

Mr. DAVIS. It is not treason.

Mr. WADE. Is it a punishable offense under our law?

Mr. DAVIS. I am not prepared to say whether it is or not.

Mr. WADE. I think the Senator is mistaken in supposing it is not treason. I do not think Judge Swayne so decided, but his decision referred to the form of the indictment.

Mr. DAVIS. I know that our District Judge so decided, and discharged men on that ground, very much against my inclination, but I thought his decision was right.

Mr. WADE. If that is so, it is a great defect which should be remedied.

Mr. DAVIS. I know that is the construction which the English Courts have

given of the Statute of 25 Edward III, and my recollection is, that Chief Justice Marshall gave the same interpretation and construction to the clause of the Constitution of the United States in relation to treason.

Mr. WADE. It is impossible to a legal mind that there should be any difference between the crimes that are sought to be punished in the first and in the second sections of this bill. You ought not to punish the same offense differently in the same bill. I hardly know what the Judge may do under this bill. Under the first section he may take the life of a man, or he may fine and imprison him; and in the next section there is a different punishment altogether for the same offense. Now, let us see if it is not so. It will not be denied that the first section aims at the punishment of treason by name. Now, let us see if the offense described in the second section is not treason, whether it is so named or not. Let us see whether you can make anything else out of it:

"That if any person shall hereafter incite, set on foot, assist, or engage in any rebellion or insurrection against the authority of the United States, or the laws thereof, or shall give aid or comfort thereto, or shall engage in or give aid and comfort to any such existing rebellion or insurrection, and be convicted thereof-"

Convicted of what?

Mr. CLARK. Of aiding and inciting.

Mr. WADE. Very well. If you were a pleader, charging him with the offense, you would have to say he was guilty of treason, or else you could not make him guilty of anything. These facts amount to treason. Is it so that a man who incites, puts on foot, engages in an insurrection, is not a traitor?

Mr. CLARK. It may be.

Mr. WADE. No, sir, it cannot be so. He is a principal traitor. The man who aids, incites, abets, stirs up, or in any manner assists a rebellion is as much a principal traitor as he who goes to battle with arms in his hands. There is no difference between the first section and the second section as to the crime which each attempts to define. Both these sections aim to punish precisely the same thing, but with different punishments; and it would be an anomaly in law to have such an absurdity upon our statute book.

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* The absurdity is that you undertake to make two different offenses out of one and precisely the same thing, and to affix different punishments for that which is the same. I do not think that a bill so vague, so indefinite, and with such a confusion of ideas running through it, ought to be permitted to go upon the statute book.

Mr. CLARK. I think that when the Senator considers the bill a little further, he will come to a different conclusion in regard to it. The first section imposes a punishment for the crime of treason. The crime is well defined. The section

itself does not attempt to define it; but leaves it as it has been defined in the Constitution. The crime of treason is to be punished, according to the first section of this bill, by death, or by fine and imprisonment, and it requires two witnesses to the same overt act to convict a man. The second section prescribes a new offense; it is inciting, setting on foot, or engaging in rebellion or insurrection against the United States

Mr. WADE. That is treason.

Mr. CLARK. It may be treason or it may not be treason. If the rebellion amounted to levying war, it would then become treason; but if not, it would not,

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Now, the same distinction is preserved in the law in regard to murder and to manslaughter. You may indict a man for murder, and if the facts brought out warrant a conviction you may punish him for murder. You may indict him for manslaughter, and if the facts show that the crime was murder you cannot convict him of murder, because he is not charged with it. So here, if the attorney thinks the offense does not amount to more than inciting or setting on foot rebellion, he would charge him in the indictment with doing that thing, but not charge him with treason, and then, if the facts should come up to the charge, he would only be punished under this section. If the Senator desires that there should be some corporeal punishment under this section, as imprisonment, I have no objection to such an amendment; but the Senator, I think, will see on consideration that there is a clear distinction. You may convict the offender under the second section by one witness, because it does not amount to death. There may be cases where you cannot find more than one witness to the same overt act, where the man was clearly engaged in rebellion. You may convict him of the offense under the second section when you could not convict him of treason. Does not the Senator see that there is a clear distinction? For instance, in a case of burglary, breaking, and entering, and stealing; you can convict of the stealing and charge the stealing when you abandon the burglarious intention. So here, we design that you may convict a man of being engaged in the rebellion when you abandon the charge of treason, if the facts do not amount to that in your opinion, so that the man shall be fined. The committee adopted this section for the purpose of bringing these men to trial, not simply for avoiding the distinction suggested by the Senator from New Jersey in regard to the decision of Judge Swayne, because on looking at that I am inclined to agree with the Senator from Ohio in regard to it. But there may be an insurrection and rebellion that does not amount to levying war, and there may be aiding it which does not amount to levying war.

Mr. HOWARD. I beg to make a single inquiry of my friend from New Hampshire, if he has no objection.

Mr. CLARK. Not the least.

Mr. HOWARD. I desire, now that he has the floor, that he will give us his ideas upon this point arising under the second section of the bill, whether, in his apprehension, it creates more than one offense; and I wish him to have the goodness to explain the distinction between the various offenses therein created, if there are various offenses. It may have some importance in the course of the discussion. Mr. CLARK. I do not apprehend that it creates more than one offense. Mr. HOWARD. Very well.

Mr. CLARK. We did not intend that it should create more than one offense, and all to be punished alike.

Mr. HOWARD. Then I understand the Senator from New Hampshire sets up no distinction between inciting a rebellion or insurrection, setting on foot a rebellion or insurrection, assisting in a rebellion or insurrection, or engaging in a rebellion or insurrection. He regards all these acts as constituting one and the same offense. Do I understand him correctly?

Mr. CLARK. Certainly. We did not mean to multiply the offenses; but to give a description broad enough to bring the offender to trial. That was the design of the committee, that we should have a way of punishing this offense, and the committee only designed to make the bill effective in that particular.

Mr. HARRIS. Mr. President, I am little surprised at, and it is with some regret