[NOTE C.]

'Furnishing rebels or enemies with money, arms, ammunition, or other necessaries, will, prima facie, make a man a traitor. But if enemies or rebels come with a superior force and exact contributions, or live upon the country at free quarter, submission in these cases is not criminal; for flagrante bello the jus belli taketh place it is the only law there subsisting; and submission is a point of the highest prudence to prevent a greater public evil.

And the bare sending money or provisions (except in the case just excepted), or sending intelligence to rebels or enemies, which in most cases is the most effectual aid that can be given them, will make a man a traitor, though the money or intelligence should happen to be intercepted; for the party in sending did all he could; the treason was complete on his part, though it had not the effect he intended." (Foster's Crown Law, 217.)

[NOTE D.]

In his charge to the Grand Jury, in 1797, already referred to, Judge Iredell said : "With regard to the number of witnesses in treason, I am of opinion that two are necessary on the indictment as well as upon the trial in court. The provision in the Constitution, that the two witnesses must be to the same overt act (or actual deed constituting the treasonable offense), was in consequence of a construction which had prevailed in England, that though two witnesses were required to prove an act of treason, yet if one witness proved one act and another witness another act of the same species of treason (as for instance that of levying war), it was sufficient, a decision which has always appeared to me contrary to the true intention of the law which made two witnesses necessary-this provision being, as I conceived, intended to guard against fictitious charges of treason, which an unprincipled government might be tempted to support and encourage, even at the expense of perjury, a thing much more difficult to be effected by two witnesses than one." (Wharton's State Trials, 480.)

Judge Cadwallader, of the District Court of the Eastern District of Pennsylvania, is of a different opinion on this point. In the case of the United States v. Greiner, he said:

"The evidence for the prosecution has consisted of the direct testimony of one witness to the alleged overt act, and of admissions made voluntarily by the accused party since his arrest. The Constitution provides that 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 admissions here proved were not such confessions, and, upon the trial of an indictment, would not in connection with the testimony of the single witness to the overt act suffice to warrant a conviction. But the provision of the Constitution and the language of the first section of the Act of April 30th, 1790 (1790, ch. 9, §1, 1 Stat. at Large, 112), on the subject, apply only to the trial of indictments, and are inapplicable to proceedings before Grand Juries, or to preliminary investigations like the present.

This appears to have been the opinion of Chief Justice Marshall (1 Burr's Tr. 196), and likewise of my judicial predecessor in this district (2 Wall. Jr. 138). Judge Iredell had, indeed, been previously of a different opinion (1 Whart. St. Tr. 480). His impression had probably been derived from the opinions which, under

the statutes, 1 Edward VI, c. 12, s. 22; 5 Edward VI, c. 11, s. 11, and 7 W. 3, c. 3, had prevailed in England. See Fenwick's Case (13 State Trials, 537, and 26 How. 731.) As the point has never been directly decided in the United States, it may not be amiss to mention a difference between the language of the English statutes and the words of the Constitution. Those statutes enacted that no person should be indicted, or convicted of treason, unless, etc. The Constitution, omitting the word "indicted," uses the single word "convicted." This difference in language to which the attention of Chief Justice Marshall was doubtless directed, though he does not mention it, seems to be decisive of the question. The intention of the framers of the Constitution must have been to restrain the application of the prescribed rule of evidence to the trial of the indictment. A person should not, however, be indicted or imprisoned under a charge of treason when there is no rational probability that the charge, if true, can be proved by two witnesses on the future trial." (The Monthly Law Reporter, of May, 1861.)

[NOTE E.]

The first three sections of the Act of Congress, entitled “An Act relating to Habeas Corpus, and regulating Judicial Proceedings in certain cases," approved March 3d, 1863.

Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That during the present rebellion the President of the United States, whenever, in his judgment, the public safety may require it, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United States or any part thereof. And whenever and wherever the said privilege shall be suspended as aforesaid, no military or other officer shall be compelled, in answer to any writ of habeas corpus, to return the body of any person or persons detained by him by authority of the President; but upon the certificate, under oath, of the officer having charge of any one so detained, that such person is detained by him as a prisoner under authority of the President, further proceedings under the writ of habeas corpus shall be suspended by the Judge or Court having issued the said writ, so long as said suspension by the President shall remain in force, and said rebellion continue.

SEC. 2. And be it further enacted, That the Secretary of State and the Secretary of War be and they are hereby directed, as soon as may be practicable, to furnish to the Judges of the Circuit and District Courts of the United States, and of the District of Columbia, a list of the names of all persons, citizens of States, in which the administration of the laws has continued unimpaired in the said Federal Courts, who are now, or may hereafter be, held as prisoners of the United States, by order or authority of the President of the United States or either of said Secretaries, in any fort, arsenal, or other place, as State or political prisoners, or otherwise than as prisoners of war; the said list to contain the names of all those who reside in the respective jurisdictions of said Judges, or who may be deemed by the said Secretaries, or either of them, to have violated any law of the United States in any of said jurisdictions, and also the date of each arrest; the Secretary of State to furnish a list of such persons as are imprisoned by the order or authority of the President, acting through the State Department, and the Secretary of War a list

of such as are imprisoned by the order or authority of the President, acting through the Department of War. And in all cases where a Grand Jury, having attended any of said Courts having jurisdiction in the premises, after the passage of this Act, and after the furnishing of said list, as aforesaid, has terminated its session without finding an indictment or presentment, or other proceeding against any such person, it shall be the duty of the Judge of said Court forthwith to make an order that any such prisoner desiring a discharge from said imprisonment be brought before him to be discharged; and every officer of the United States having custody of such prisoner is hereby directed immediately to obey and execute said Judge's order; and in case he shall delay or refuse so to do, he shall be subject to indictment for a misdemeanor, and be punished by a fine of not less than five hundred dollars and imprisonment in the common jail for a period not less than six months, in the discretion of the Court; provided, however, that no person shall be discharged by virtue of the provisions of this Act until after he or she shall have taken an oath of allegiance to the Government of the United States, and to support the Constitution thereof; and that he or she will not hereafter in any way encourage or give aid and comfort to the present rebellion, or the supporters thereof; and provided, also, that the Judge or Court before whom such person may be brought, before discharging him or her from imprisonment, shall have power, on examination of the case, and, if the public safety shall require it, shall be required to cause him or her to enter into recognizance, with or without surety, in a sum to be fixed by said Judge or Court, to keep the peace and be of good behavior toward the United States and its citizens, and from time to time, and at such times as such Judge or Court may direct, appear before said Judge or Court to be further dealt with according to law, as the circumstances may require. And it shall be the duty of the District Attorney of the United States to attend such examination before the Judge.

SEC. 3. And be it further enacted, That in case any such prisoners shall be under indictment or presentment for any offense against the laws of the United States, and by existing laws, bail or recognizance may be taken for the appearance for trial of such person, it shall be the duty of said Judge at once to discharge such person upon bail or recognizance, for trial as aforesaid. And in case the said Secretaries of State and War shall for any reason refuse or omit to furnish the said list of persons held as prisoners aforesaid at the time of the passage of this Act, within twenty days thereafter, and of such persons as hereafter may be arrested, within twenty days from the time of the arrest, any citizen may, after a Grand Jury shall have terminated its session without finding an indictment or presentment, as provided in the second section of this Act, by a petition alleging the facts aforesaid touching any of the persons so as aforesaid imprisoned, supported by the oath of such petitioner or any other credible person, obtain and be entitled to have the said Judge's order to discharge such prisoner on the same terms and conditions prescribed in the second section of this Act; provided, however, that the said Judge shall be satisfied such allegations are true.