have been expressed as to the power of the President, as Commander-in-Chief of the army and navy, to suspend the writ without the previous authorization of Congress, there have been none as to the power of Congress to confer the authority in this respect.

But in order that the suspension of the writ may not be prolonged to the oppression of the citizen arrested, the second section of the act requires the Secretary of War and the Secretary of State to furnish, so soon as possible, a list of the persons held as state or political prisoners by order of the President or either of the Secretaries, to the Judges of the Circuit and District Courts of the United States and of the District of Columbia; the list to contain the names of all persons thus held, who reside in the respective jurisdictions of the Judges, and the date of their arrest; and it declares that, in all cases where a Grand Jury has attended any of these Courts, having jurisdiction of the premises, after the passage of the act and the furnishing of the list, and has terminated its session without finding an indictment or presentment, or other proceeding against them, it shall be the duty of the Judges of said Courts, forthwith to make an order that any such persons, claiming a discharge from imprisonment, be brought before them to be discharged.

And lest the officer having such prisoners in his custody, holding them under the order of his superior, might refuse to obey the Judges in this respect, he is directed by the act to render immediate obedience to their orders, and in case of his delay or refusal to do so he is made liable to an indictment for a misdemeanor and may be punished by fine and imprisonment.

The only conditions which the Judges can impose, upon the discharge of a prisoner thus held, against whom no indictment is found, are that he shall take the oath of allegiance, and, if required, enter into a recognizance to keep the peace.

And lest the Secretaries of State and War may not furnish the list required by the previous provision, the third section declares that in case of their refusal or omission, for any reason, to furnish such list within twenty days after the passage of the act, as to prisoners then in custody, and within twenty days after their arrest as to prisoners thereafter arrested, any citizen may, after the Grand Jury has terminated its session without finding an indictment, by a

petition alleging the facts, obtain an order for the discharge of the prisoners on the terms and conditions already mentioned.

It is hardly possible to conceive of greater checks against the abuse of the power which Congress has thus placed in the hands of the President. Even when the writ is suspended, in these times of war and insurrection, the detention of the prisoner can only extend to the meeting of the first Grand Jury of the Court having jurisdiction of the place where he is confined.

In the face of this statute, how unfounded, gentlemen, is the apprehension which is sometimes expressed, that the exercise by the President of the power vested in him is tending to the subversion of our liberties. Whilst the Government is making extraordinary efforts to crush and destroy a gigantic rebellion, it would be far more loyal and patriotic if parties, instead of endeavoring to weaken and embarrass its efforts, by unfounded and calumnious accusations, would labor to strengthen its hands in every way possible.

The Act of Congress of 1790, to which reference has already been made, in its second section defines the crime of misprision of treason. The section is as follows:

"If any person or persons, having knowledge of the commission of any of the treasons aforesaid, shall conceal and not as soon as may be disclose and make known the same to the President of the United States, or some one of the Judges thereof, or to the President or Governor of a particular State, or some one of the Judges or Justices thereof, such person or persons, on conviction, shall be adjudged guilty of misprision of treason, and shall be imprisoned not exceeding seven years and fined not exceeding one thousand dollars."

If, therefore, any persons have knowledge that acts of treason have been committed within this district, it is their duty to disclose the same to the proper authorities, and where such acts have been concealed the matter will be a suitable subject for your investigation.

The other cases which may be brought before you do not require any special instructions from the Court. The District Attorney of the United States will always be ready to furnish you such information as may be necessary to aid you in your inquiries.

The jury then retired to deliberate.

APPENDIX.

[NOTE A.]

The clause in the Constitution was taken from the Statute of the 25 Edw. III, St. 5. C. 2, called the Statute of Treasons. By that statute it is declared to be high treason "when a man doth compass or imagine the death of our Lord the King, or of our Lady his Queen, or of their eldest son and heir; or if a man do violate the King's companion, or the King's eldest daughter unmarried, or the wife of the King's eldest son and heir; or if a man do levy war against our Lord the King in his realm, or be adherent to the King's enemies in his realm, giving to them aid and comfort in the realm or elsewhere; and thereof be provably attainted of open deed by the people of their condition; and if a man counterfeit the King's great or privy seal, or his money; and if a man bring false money into this realm, counterfeit to the money of England, as the money called Lushburgh, or other like to the said money of England, knowing the money to be false, to merchandize or make payment, in deceit of our Lord the King and his people; and if a man slay the Chancellor, Treasurer, or the King's justices of the one bench or the other, Justices in Eyre, or Justices of Assize, and all other justices assigned to hear and determine, being in their places doing their offices."

"The levying war says East, in commenting upon the above statute, "is either express and direct, or constructive. Of the first sort are all insurrections against the person of the King, whether they be to dethrone, imprison, or force him to alter his measures of Government, or to remove evil counsellors from about him. In Essex's Case, though the indictment was upon the clause of compassing the Queen's death, yet, says Lord Hale, his riding armed into London, and soliciting the citizens to go with him to court to remove the Queen's ministers, and his fortifying his house against the Queen's officers, were in truth overt acts of levying war. So the attacking the King's forces, in opposition to his authority, upon a march or in quarters, is levying war against the King. But if, upon a sudden quarrel, from some affront given or taken, and not as a cover for any traitorous design, the neighborhood should rise and drive the King's forces out of their quarters; though it would be a great misdemeanor, and, if death ensued, might be felony in the assailants; yet, it will not be a treason; there being no intention against the King's person or Government." (1 Pleas of the Crown, 66.) * It must in general be difficult in the inception of intestine troubles to fix the period when opposition to the established Government shall be

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said to wear the formidable appearance of insurrection, and to constitute what in the terms of the act is called a levying of war against the King. It is strictly, therefore, a question of fact to be tried by the jury under all the circumstances. Any assembly of persons, met for a treasonable purpose, armed and arrayed in a warlike manner, is bellum levatum, though not percussum. Enlisting and marching are sufficient overt acts, without coming to an actual engagement; in the same manner as cruising under an enemy's commission, though no act of express hostility be proved, is an adherence to the King's enemies. (Id. 67.) * * * * "Holding a castle or fort against the King or his troops, if actual force be used in order to keep possession, is levying war." (Id. 68.) * 'Joining with rebels, freely and voluntarily, in any act of rebellion, is levying war against the King." (Id. 70.) * * * "So sending money, arms, ammunition, or other necessaries to rebels, will prima facie make a man a traitor, though they should be intercepted. (Id. 72.) * * * *

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"Constructive levying of war is in truth more directed against the Government than the person of the King; though, in legal construction, it is a levying of war against the King himself. This is when an insurrection is raised to reform some national grievance, to alter the established law or religion, to punish magistrates, to introduce innovation of a public concern, to obstruct the execution of some general law by an armed force, or for any other purpose, which usurps the Government in matters of a public and general nature. On the trial of Lord George Gordon, the Court of King's Bench declared their unanimous opinion, that an attempt by intimidation and violence to force the repeal of a law, was a levying war against the King." (Id. 72.) * "But where the object of the insurrection is a matter of a private or local nature, affecting, or supposed to affect, only the parties assembled, or confined to particular persons or districts, it will not amouut to high treason, although attended with the circumstances of military parade, usually alleged in the indictments on this branch of treason. As if the rising be only against a particular market, or to destroy particular inclosures, to remove a local nuisance, to release a particular prisoner, unless imprisoned for high treason, or even to oppose the execution of an Act of Parliament, if it only affect the district of the insurgents; as in the case of the Turnpike Act." (Id. 75.) * * "By the term enemy, is always to be understood a foreign power owing no allegiance to the Crown, and in a state of open hostility with us, though, perhaps, war may not have been regularly declared between the respective countries; and therefore, in an indictment on this clause, it is sufficient to aver, that the Prince or State adhered to, was an enemy. And the question, whether there be war or not between such power and our King, is purely a question of fact, triable by the jury; and public notoriety is sufficient evidence of it." (Id. 77.) * * * * "In considering what shall be deemed an adherence to the King's enemies, much of what has been already said under the head of levying war, is equally applicable. Thus, every species of aid or comfort, in the words of the statute, which, when given to a rebel within the realm, would make the subject guilty of levying war; if given to an enemy, whether within or without the realm, will make the party guilty of adhering to the King's enemies; though the case of giving aid to enemies within the realm, a subject might in some instances be brought within both branches of the act." (Id. 78.)

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Mr. Chief Justice Marshall, in an opinion delivered in the progress of the trial of Aaron Burr, in considering the import of the words "levying war," said: "Had their first application to treason been made by our Constitution, they would certainly have admitted of some latitude of construction. Taken most literally, they are perhaps of the same import with the words raising or creating war; but as those who join after the commencement are equally the objects of punishment, there would probably be a general admission that the term also comprehended making war or carrying on war. In the construction which Courts would be required to give these words, it is not improbable that those who should raise, create, make, or carry on war, might be comprehended."

"The various acts, which would be considered as coming within the term, would be settled by a course of decisions; and it would be affirming boldly to say that those only who actually constituted a portion of the military force appearing in arms could be considered as levying war. There is no difficulty in affirming that there must be a war or the crime of levying it cannot exist; but there would often be considerable difficulty in affirming that a particular act did or did not involve the person committing it in the guilt and in the fact of levying war. If, for example, an army should be actually raised for the avowed purpose of carrying on open war against the United States and subverting their Government, the point must be weighed very deliberately before a Judge would venture to decide that an overt act of levying war had not been committed by a commissary of purchases, who never saw the army, but who, knowing its object and leaguing himself with the rebels, supplied that army with provisions; or by a recruiting officer holding a commission in the rebel service, who, though never in camp, executed the particular duty assigned to him." (2 Burr's Trial, 402.)

Judge Iredell, of the Supreme Court, in his charge to the Grand Jury in the Circuit Court, held in the City of Philadelphia in April, 1799, referring particularly to the resistance by the Northampton insurgents to the enforcement of the Land Tax Act, said: “The only species of treason likely to come before you is that of levying war against the United States. There have been various opinions, and different determinations, on the import of those words. But I think I am warranted in saying, that if, in the case of the insurgents who may come under your consideration, the intention was to prevent by force of arms the execution of any Act of the Congress of the United States altogether (as, for instance, the Land Tax Act, the object of their opposition), any forcible opposition calculated to carry that intention into effect, was a levying of war against the United States, and of course an act of treason. But if the intention was merely to defeat its operation in a particular instance, or through the agency of a particular officer, from some private or personal motive, though a higher offense may have been committed, it did not amount to the crime of treason. The particular motive must, however, be the sole ingredient in the case, for if combined with a general view to obstruct the execution of the Act, the offense must be deemed treason." (Wharton's State Trials, 480.)

Judge Chase, of the Supreme Court, in his charge to the jury on the second trial of John Fries for treason, in April, 1800, said: "The Court are of opinion, that if a body of people conspire and meditate an insurrection to resist or oppose