United States or of any public statute of the United States, if accompanied or followed by an act of forcible opposition in pursuance of such combination. There must be a conspiracy to resist by force; there must be an assemblage of men to carry the treasonable purpose into effect; and there must be actual resistance by force, or intimidation by numbers. The conspiracy must be directed against the provision of the Constitution or law generally, and not to its application or enforcement in a particular case, or against a particular individual; in other words, the conspiracy must be to effect something of a public nature, as the overthrow of the Government, or a department thereof, or to nullify some law of the United States. To illustrate: A conspiracy to resist, by force of arms, the Conscription Law, in its application to a particular individual and actual resistance in pursuance of such conspiracy, would not constitute treason, though it would constitute an offense of a grave character. But if the conspiracy were to prevent the execution of the law generally, in all instances, and force were used pursuant to such conspiracy, there would be a case of levying war, and the conspirators would be guilty of treason.

You will have no difficulty in arriving at a correct conclusion, with reference to any particular case which may be brought to your attention, if you bear in mind that to constitute a levying of war there must be first, an assemblage of persons in force-in a condition to make war; second, the assemblage must be for a treasonable purpose; third, there must be an actual use of force, or such display of numbers as to intimidate, in pursuance of such purpose. There must be the assemblage in force, the treasonable purpose, and the act accompanying or following it. A mere conspiracy to overthrow the Government either entirely, or as to one of its laws, or one of its departments, however atrocious, does not constitute the crime of treason. A conspiracy to levy war, and actually levying war, are distinct offenses.*

But when war is actually levied in any part of the country, any person, however far removed from the scene of military operations, who aids in its prosecution, is equally involved in the guilt of treason. "If war be actually levied," says Chief Justice Marshall,

* See Note A, Appendix.

"that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors."* War being levied, those actually engaged in open hostilities and those who adhere to them and supply them with money, arms, or munitions of war, are equally guilty of treason within the meaning of the constitutional provision.†

The Constitution has not only defined the crime of treason-it has prescribed a rule of evidence by which it shall be established. "No person," it declares, "shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open Court." By "overt act" is meant some conduct or movement on the part of the conspirators, in execution of the conspiracy. The terms embrace such acts as are visible—cognizable by the senses-as distinguished from mere dormant intention. And when the overt act is committed, the crime is consummated, even though the act fail to effect the object intended. Thus, where money or munitions of war are forwarded to those engaged in open hostilities, the overt act is committed, even though the money or munitions of war are intercepted before they reach their destination. So, if an expedition, whether by land or by sea, to aid or cooperate with the hostile parties, be fitted out within the jurisdiction of the United States, and it actually starts on its way, the crime is consummated though the expedition be arrested within the hour of its departure.‡

As no conviction can follow unless some overt act is established by the testimony of two witnesses, so no indictment ought to be found except upon like testimony.§

I have thus endeavored, gentlemen, to state to you, in as brief a manner as possible, the law with reference to treason. Until recently, the Courts of the United States have seldom been called upon to give any instructions as to this crime. Except within the

last thirty months, the offense has been almost a stranger to our

* Ex parte Bollman and Ex parte Swartwout (4 Cranch. 126.)

t See Note B, Appendix.

See Note C, Appendix.
See Note D, Appendix.

criminal calendars. But within this period a gigantic rebellion has arisen, aiming at nothing less than the overthrow of the Government, the division of the country, and the subversion of everything that has made the Republic great and honored among the

nations.

In the efforts made to suppress this rebellion, and maintain the just authority of the Government, powers have been exercised which, except in a few instances, have lain dormant in the Constitution from the date of its adoption. Some of the parties against whom the charge of treason will be preferred before you, have been confined for months in one of our public forts, without process or judgment of any of the regular tribunals of the country. It is believed that they have been thus held under orders of the President, issued through the Department of War; and that with reference to them the writ of habeas corpus has been suspended. The Constitution contemplates that this writ may be suspended "when, in cases of rebellion or invasion, the public safety may require it." In times of peace, a party arrested under process from the courts of justice, or a judicial officer, for an alleged public offense, is entitled to an examination without unnecessary delay; and if the charge be not sustained by evidence, he is discharged absolutely; and even if it be sustained, he is discharged, except in capital cases, conditionally—that is, upon giving bail. If after arrest an examination be not had, or if had, bail be not allowed, the accused can obtain his discharge or bail upon a writ of habeas corpus. is plain that, by proceedings of this character, parties may be set at large whose detention, in times of rebellion or invasion, is imperatively demanded by the public safety. In such times arrests must often be made, not only for offenses already committed, but also when there is just apprehension that offenses are about to be committed; and it must sometimes happen, in both cases, that an examination would defeat the very object of the arrest. Take, for example, the case of a party arrested, upon whose person are found documents showing the plans, intended movements, resources, and negotiations of the insurgents, and implicating him in the general conspiracy. The proof of his guilt would be thus abundant; but it might well be that the Government would regard the information as too important for the public interests to be exposed by his exam

It

ination before a judicial officer. In that view the Government would very properly hold him without an examination, by suspending the writ of habeas corpus. So a party might be arrested and an examination refused, because he was possessed of the secrets of our Government, which he was about to communicate to the enemy. The Constitution guards with jealous care the liberty of the citizen. It provides that he shall be free from arrest except upon warrant issued upon probable cause, supported by oath or affirmation. But the Constitution was established not only for times of peace; not only for times when a ready obedience to the laws is yielded by citizens, but also for times of rebellion, of war and invasion, and it contains within itself all the power requisite for the maintenance of the Government against both foreign and domestic foes. The Government must exist, or the citizen cannot enjoy the liberty which the Constitution intends to secure. And that the Government may exist, the liberty of the individual must sometimes yield to the demands of public safety. The very clause of the Constitution which declares that the privilege of the writ of habeas corpus shall not be suspended makes the exception, "unless when, in cases of rebellion or invasion, the public safety may require it." *

*The following extract from the admirable letter of President Lincoln, of June 12th, 1863, to Erastus Corning and others-officers of a public meeting held at Albany-places this subject in a strong light:

"Ours is a case of rebellion-so called by the resolutions before me-in fact, a clear, flagrant, and gigantic case of rebellion; and the provisions of the Constitution that "the privilege of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it," is the provision which specially applies to our present case. This provision plainly attests the understanding of those who made the Constitution, that ordinary Courts of Justice are inadequate to cases of rebellion "-attests their purpose that, in such cases, men may be held in custody whom the Courts, acting on ordinary rules, would discharge. Habeas corpus does not discharge men who are proved to be guilty of defined crime; and its suspension is allowed by the Constitution on purpose that men may be arrested and held who cannot be proved to be guilty of defined crime, "when, in cases of rebellion or invasion, the public safety may require it." This is precisely our present case— a case of rebellion, wherein the public safety does require the suspension. Indeed, arrests by process of Courts, and arrests in cases of rebellion, do not proceed together altogether upon the same basis. The former is directed at the small per centage of ordinary and continuous perpetration of crime, while the latter is directed at sudden and extensive uprisings against the Government, which, at most, will succeed or fail in no great length of time. In the latter case arrests are made, not so much for what has been done, as for what probably would be done. The latter is more for the preventive and less for the vindictive than the former. In such cases the

3

An examination of a recent Act of Congress will exhibit the solicitude of the National Legislature, that the exercise of the power to suspend the writ of habeas corpus, so essential at times for the public safety, should be restrained by all possible guards against abuse. The act to which I refer was passed on the 3d of March, 1863, and is entitled, "An act relating to habeas corpus, and regulating judicial proceedings in certain cases." I will read to you its first three sections: [The Judge here read the sections.*]

By the first section of this act, as you perceive, Congress authorizes the President of the United States, during the present rebellion, whenever in his judgment the public safety may require it, to suspend the privilege of the writ in any case, throughout the United States or any part thereof. Whatever doubts may

purposes of men are much more easily understood than in cases of ordinary crime. The man who stands by and says nothing when the peril of his Government is discussed cannot be misunderstood. If not hindered he is sure to help the enemy; much more if he talks ambiguously-talks for his country with "buts" and "ifs" and "ands." Of how little value the constitutional provisions I have quoted will be rendered if arrests shall never be made until defined crimes shall have been committed, may be illustrated by a few notable examples. General John C. Breckinridge, General Robert E. Lee, General Joseph E. Johnston, General John B. Magruder, General William B. Preston, General Simon B. Buckner, and Commodore Franklin Buchanan, now occupying the very highest places in the rebel war service, were all within the power of the Government since the rebellion began, and were nearly as well known to be traitors then as now. Unquestionably, if we had seized and held them the insurgent cause would be much weaker. But no one of them had then committed any crime defined in the law. In view of these and similar cases, I think the time not unlikely to come when I shall be blamed for having made too few arrests rather than too many.

By the third resolution the people indicate their opinion that military arrests may be constitutional in localities where rebellion actually exists, but that such arrests are unconstitutional in localities where rebellion or insurrection does not actually exist. They insist that such arrests shall not be made "outside of the lines of necessary military occupation and the scenes of insurrection." Inasmuch, however, as the Constitution itself makes no such distinction, I am unable to believe that there is any such constitutional distinction. I concede that the class of arrests complained of can be constitutional only when, in cases of rebellion or invasion, the public safety may require them; and I insist that in such cases they are constitutional wherever the public safety does require them, as well in places to which they may prevent the rebellion extending as in those where it may be already prevailing; as well where they may restrain mischievous interference with the raising and supplying of armies to suppress the rebellion, as where the rebellion may actually be; as well where they may restrain the enticing men out of the army, as where they would prevent mutiny in the army; equally constitutional at all places where they will conduce to the public safety, as against the dangers of rebellion or invasion."

*See Note E, Appendix.