submit to and receive whatever the said Court shall determine upon concerning you on their behalf, according to law, and have you then and there this writ. Witness the Hon. Roger B. Taney, Chief-Justice of the Supreme Court, the fourth Monday in May, in the year of our Lord 1861. THOMAS SPICER, Clerk Circuit Court. Issued 26th May, 1861. On Monday Colonel Lee appeared in Court, and stated that he was instructed by General Cadwalader to present to the Chief-Justice the annexed response to the writ, expressing, at the same time, the regret of General Cadwalader that pressing duties in connection with his command prevented him appearing before the Court in person. Colonel Lee then read as follows: HEAD-QUARTERS DEPARTMENT OF ANNAPOLIS, To the Hon. Roger B. Taney, Chief-Justice of the Supreme Court of the United States, Baltimore, Md.: SIR: The undersigned, to whom the annexed writ of this date, signed by Thomas Spicer, Clerk of the Supreme Court of the United States, is directed, most respectfully states That the arrest of Mr. John Merryman, in the said writ named, was not made with the knowledge or by his order or direction, but was made by Col. Samuel Yohe, acting under the orders of Major-General Wm. H. Keim, both of said officers being in the military service of the United States, but not within the limits of his command. The prisoner was brought to this post on the 20th instant by Adjutant James Wittimore and Lieut. Wm. H. Abel, by order of Colonel Yohe, and is charged with various acts of treason, and with being publicly associated with and holding a commission as lieutenant in a company having in their possession arms belonging to the United States, and avowing his purpose of armed hostility against the Government. He is also informed that it can be clearly established that the prisoner has made often and unreserved declarations of his association with this organized force, as being in avowed hostility to the Government, and in readiness to cooperate with those engaged in the present rebellion against the Government of the United States. He has further to inform you that he is duly authorized by the President of the United States in such cases to suspend the writ of habeas corpus for the public safety. This is a high and delicate trust, and it has been enjoined upon him that it should be executed with judgment and discretion, but he is nevertheless also instructed that in times of civil strife, errors, if any, should be on the side of safety to the country. He most respectfully submits to your consideration that those who should cooperate in the present trying and painful position in which our country is placed, should not, by reasons of any unnecessary want of confidence in each other, increase our embarrassments. He therefore respectfully requests that you. will post pone further action upon the case until he can receive instructions from the President of the United States, when you shall hear further from him. I have the honor to be, with high respect, your obedient servant, GEO. CADWALADER, Brevet Major-General U. S. Army, commanding. On finishing the reading of the reply of General Cadwalader, Colonel Lee was preparing to leave the Court, when the following interrogatories were put to him by the Chief-Justice: Chief-Justice-Have you brought with you the body of John Merryman? Colonel Lee-I have no instructions except to deliver this response to the Court. Chief-Justice-The commanding officer declines to obey the writ? Colonel Lee-After making that communication my duty is ended and my power is ended. [Rising and retiring.] Chief-Justice-The Court orders an attachment to issue against George Cadwalader for disobedience to the high writ of the Court. Subsequently, the Chief-Justice wrote and delivered to the clerk the following order: General George Cadwalader for a contempt in refusing Ordered, That an attachment forthwith issue against to produce the body of John Merryman according to the command of the writ of habeas corpus returnable and returned before me to-day, and that said attachment be returned before me at twelve o'clock to-mor row, at the room of the Circuit Court. MONDAY, May 27, 1861. ROGER B. TANEY. The Court then adjourned until Tuesday morning. At 12 M. on Tuesday the Chief-Justice entered the Court, and took his seat upon the bench. The special proceedings of the day were then entered upon, and the following colloquy ensued: Chief-Justice Taney-Marshal, have you the return, sir? the Chief-Justice a folded paper, which the latter, United States Marshal Bonifant, rising, handed to after opening, transferred to Mr. Spicer, the Clerk of the Court. Chief-Justice-Mr. Spicer, read this; read it aloud. The Clerk then read the writ of attachment, and the Marshal's return thereto, as follows: THE UNITED STATES OF AMERICA, To the Marshal of the Maryland District, Greeting: We command you that you attach the body of General George Cadwalader and him have before the Hon. Roger B. Taney, Chief-Justice of the Supreme Court of the United States, on Tuesday, the 28th of May, 1861, at 12 o'clock M., at the Circuit Court rooms of the United States, in the City of Baltimore, to answer for his contempt by him committed, in refusing to produce the body of John Merryman, of Baltimore County, according to the command of the writ of habeas corpus returnable, and returned before the said Chief-Justice, this 27th day of May, 1861. Hereof you are not to fail, and have you then and there this writ. Witness, the Hon. Roger B. Taney, Chief-Justice of the Supreme Court, the first Monday in December, in the year of our Lord, 1861. Issued 27th May, 1861. THOMAS SPICER, Clerk. Chief-Justice of the Supreme Court of the United I hereby certify to the Honorable Roger B. Taney, States, that by virtue of the within writ of attachment, to me directed on the 27th day of May, 1861, I profor the purpose of serving the said writ. I sent in my ceeded on the 28th day of May, 1861, to Fort McHenry, name at the outer gate; the messenger returned with the reply "that there was no answer to my card," and therefore could not serve the writ as I was commanded. I was not permitted to enter the gate. So answers WASHINGTON BONIFANT, U. S. Marshal for the District of Maryland. Chief-Justice Taney-Then no answer has been made to the writ? Deputy Marshal Vance-There was no reply, sir, except that "there was no reply to my card." I was not permitted to enter the outer gate. Chief-Justice Taney-Well, you should state that. The fact does not appear in your return. The Deputy Marshal amended the return in compliance with the suggestion, and, handing the paper to the Chief Justice, the latter proceeded to read from the manuscript the subjoined remarks, previously say ing, It is a plain case, gentlemen, and I shall feel it my duty to enforce the process of the Court. I ordered the attachment yesterday, because upon the face of the return the detention of the prisoner was unlawful upon two grounds. 1. The President, under the Constitution and laws of the United States, cannot suspend the privilege of the writ of habeas corpus, nor authorize any military officer to do so. 2. A military officer has no right to arrest and detain a person, not subject to the rules and articles of war, for an offence against the laws of the United States, except in aid of the judicial authority and subject to its control; and if the party is arrested by the military, it is the duty of the officer to deliver him over immediately to the civil authority, to be dealt with according to law. I forbore yesterday to state orally the provisions of the Constitution of the United States which make these principles the fundamental law of the Union, because an oral statement might be misunderstood in some portions of it, and I shall therefore put my opinion in writing, and file it in the office of the Clerk of the Circuit Court, in the course of this week. After reading the above, the Chief-Justice orally remarked: arrested by a military authority without legal process. He cited precedents that the Court had no jurisdiction in the matter, as the military authority in time of war, or "rebellion," had the power and might arrest persons in array against the Federal Government for treason, or alleged treason. The Court gave an elaborate opinion, deciding that it had jurisdiction in the case. Meanwhile General Harney, who had returned to the command of the department from Washington, refused to obey the writ, but on a subsequent day applied to the Court for permission to amend his return by saying that the prisoner never had been under his control; but by orders from Washington he had been removed from that military department. This answer was deemed by the Court to be sufficient. The Circuit Court of the United States, at Washington, at its opening on the second day of the term, Judge Dunlop presiding, received a communication from one of the Assistant Judges, which was read in Court as follows: In relation to the present return, I propose to say that the Marshal has legally the power to summon out the posse comitatus to seize and bring into Court the On Saturday, the 19th of October, 1861, Mr. Foley, party named in the attachment; but it is apparent he supported by affidavit in proper form, praying for a a lawyer of this city, called upon me with a petition, will be resisted in the discharge of that duty by a force notoriously superior to the posse comitatus, and, writ of habeas corpus to the Provost-Marsbal requiring such being the case, the Court has no power under the him to produce before the undersigned one John Murlaw to order the necessary force to compel the appear-phy, who it alleged was a minor under the age of ance of the party. If, however, he was before the Court, it would then impose the only punishment it is empowered to inflict-that by fine and imprisonment. Under these circumstances the Court can barely say, to-day, I shall reduce to writing the reasons under which I have acted, and which have led me to the conclusions expressed in my opinion, and shall report them with these proceedings to the President of the United States, and call upon him to perform his constitutional duty to enforce the laws; in other words, to enforce the process of this Court. That is all this Court has now the power to do. About the 20th of May, Emmett McDonald was arrested by orders of the military commandant at St. Louis, Captain Lyon, and imprisoned. A writ of habeas corpus was issued returnable before Judge Trent of the United States District Court. The question raised by the counsel of the respondent was as follows: Has this Court jurisdiction in a case of habeas corpus where the petitioner is in custody under authority of the United States, but not by virtue of any warrant, order, or process of Court, or under a technical "commitment"-in other words, has a United States District Court or Judge, under the acts of 1789 and of 1833, the power to issue a writ of habeas corpus, and examine into the cause of the alleged illegal restraint, unless it appears on the face of the petition that there is such a technical or formal commitment? In his argument the U. S. District Attorney for the respondent took the position that the petition set forth that the petitioner had been eighteen years, and illegally detained by said ProvostMarshal as an enlisted soldier of the United States. The order was given by me to the clerk, who issued the writ in the usual form. I was informed by Mr. Foley, on the afternoon of Saturday, that, by reason of the many engagements of the Deputy Marshal of the served it, as by law he rightfully might do, upon the District of Columbia, he himself took the writ and Provost-Marshal, General A. Porter; that when he delivered the writ to the Provost-Marshal he was told by him that he would consult the Secretary, (I think he said the Secretary of State,) whether he should respect the writ or not, and that he (Mr. Foley) must consider himself under arrest, but for the present might go at large as upon his parole. house, with one or two other persons-one, I think, Later in the afternoon Mr. Foley again called at my was represented as the elder brother or some near resative of the boy Murphy-and desired to know whether he were now to consider the boy as finally discharged and at liberty to return home to his friends, inastuch as he had then been dismissed from the guard-house, I declined to make any suggestions to him in the prem ises, and told him that whatsoever I did in the matter must be done judicially, and after facts had been spread if any, made thereon; and that, as the Court would before me upon affidavit, and the appropriate motion, meet on Monday morning, October 21st, in regular term, I should adjourn all proceedings under the writ into Court for the advice and action of the whole Ceurs He stated that he would reduce all the facts to writ make affidavit, and file them, for that he expected ta be arrested. He then withdrew. On Monday morning, just before the meeting of Court, I went into the Clerk's office and asked Charles McNamee, the Deputy Clerk, if Mr. Foley had filed any affidavits in the case. He examined the papers and reported there was none. I then directed him to en dorse upon the papers that they were by my order ad journed into the Court for its further action. After the adjournment of the Court I was informed by a member of the bar that about eleven o'clock that morning Mr. Foley had been arrested and placed in the announced his purpose to apply for his release. I told guard-house by order of the Provost-Marshal, and be him that whatever applation he had to make must be in writing, upon proper affidavit, and that, as the whole Court was in regular session, he must make it to the Court in full sitting, and he withdrew to confer with some of his brother lawyers on his course. After dinner I visited my brother Judges in Georgetown, and returning home between half-past seven and eight o'clock, found an armed sentinel stationed at my door by order of the Provost-Marshal. I learned that this guard had been placed at my door as early as five o'clock. Armed sentries from that time continuously until now have been stationed in front of my house. Thus it appears that a military officer, against whom a writ in the appointed form of law has issued, first threatened with and afterwards arrested and imprisoned the attorney who rightfully served the writ upon him. He continued and still continues in contempt and disregard of the mandate of the law, and has ignominiously placed an armed guard to insult and intimidate by its presence the Judge who ordered the writ to issue, and still keeps up this armed array at his door, in defiance and contempt of the justice of the land. Under these circumstances, respectfully request the Chief-Justice of the Circuit Court to cause this memorandum to be read in open Court, to show the reasons for my absence from my place upon the bench, and that he will cause this paper to be entered at length on the minutes of the Court alongside the record of my absence, to show through all time the reasons why I do not, this 22d of October, 1861, appear in my WILLIAM M. MERRICK. accustomed place. Assistant Judge Circuit Court, D. C. The reading of the communication having been concluded Judge Dunlop announced that the two remaining Judges had, after consultation, decided that the letter should be filed as requested by Judge Merrick, and it was so ordered. They also thought it right, as the writ (of habeas corpus) had been regularly issued, to state that the matter was now before the Court to be tried. The statement of their brother Judge (he said) presented a case where the progress of law is obstructed. It was the duty of the Court to afford the remedy, and, if the facts are as stated, to cause the law to be respected. As the Provost-Marshal had obstructed a process of this Court, it would order a rule to be served on Gen. Andrew Porter to appear before the Court, and show cause why an attachment for contempt of Court should not issue against him. Judge Morsell said that this was a palpable and gross obstruction to the administration of justice, to prevent a judge of this Court from taking his seat, because he issued a writ just such as the law requires. The placing of a sentinel before Judge Merrick's house was evidently for the purpose of embarrassing him in this particular subject, and to prevent his appearance in Court. He (Judge Morsell) would make the rule broader, so as to have Mr. Provost satisfy the Court as to both matters. The Court had its duty to do, a duty the judges are sworn to do, and that duty is the administration of justice according to law. What is the real state of things? If martial law is to be our guide, we look to the President of the United States to say so. He (Judge Morsell) did not pretend to controvert the right of the President to proclaim martial law, but let him issue his proclamation. The Judges have their duty to do under the law, and they are liable to be punished if they do not do it. The Judge then spoke of the rule which would be served on the Provost-Marshal, and in conclusion said: "I intend to do my duty, and vindicate the character of this Court as long as I sit here." A notice was accordingly made out to be served on Gen. Porter, requiring him to appear before the Court on a subsequent day, to show cause why a writ of attachment for a contempt of Court should not issue against him. On the day appointed, the Court being in session, the Deputy Marshal, Geo. W. Phillips, appeared and presented through the District Attorney the following paper: To the Honorable the Judges of the Circuit Court of the District of Columbia: George W. Phillips, in whose hands the rule herein. after mentioned was placed as Deputy Marshal, respectfully represents to your Honors that he did not serve the rule issued by your honorable Court on the 22d day of October, 1861, to be served on Gen. Andrew Porter, Provost-Marshal of said district, because he was ordered by the President of the United States not to serve the same, and to report to your honorable Court that the privilege of the writ of habeas corpus has been suspended for the present, by the order of the President of the United States, in regard to soldiers in the army of the United States within said district; and that he respectfully disclaims all intention to disobey or treat with disrespect the orders of this honorGEO. W. PHILLIPS. able Court. District of Columbia, Washington County, to wit: made oath in due form of law that the matters and things stated in the foregoing and annexed answer are true. Test-JNO. A. SMITH, Clerk. GEO. W. PHILLIPS. This return was held under advisement until the 30th of October, when Judge Dunlap announced his decision in the case as follows: The return made by Deputy Marshal Phillips the 26th of October, 1861, we will order to be filed, though we do not doubt our power to regard it as insufficient in law, and to proceed against the officer who has made it. The existing condition of the country makes it plain that that officer is powerless against the vast military force of the Executive, subject to his will and order as commander-in-chief of the army and navy of the United States. Assuming the verity of the return, which has been made on oath, the case presented is without a parallel in the judicial history of the United States, and involves the free action and efficiency of the Judges of this Court. The President, charged by the Constitution to take care that the laws be executed, has seen fit to arrest the process of this Court, and to forbid the Deputy Marshal to execute it. It does not involve merely the question of the power of the Executive, in civil war, to suspend the great writ of freedom-the habeas corpus. When this rule was ordered to give efficiency to that writ, no notice had been given by the President to the courts or the country of such suspension here, now first announced to us, and it will hardly be maintained that the suspension could be retrospective. The rule in this case, therefore, whatever may be the President's power over the writ of habeas corpus, was lawfully ordered, as well as the writ on which it was founded. The facts on which the rule was ordered by the Court are assumed to be true as respects the President, because the President had them before him, and has not denied them, but forbade the Deputy Marshal to serve the rule on Gen. Andrew Porter. The President, we think, assumes the responsibility of the acts of Gen. Porter set forth in the rule, and sanctions them by his orders to Deputy Marshal Phillips not to serve the process on the Provost Marshal. The issue ought to be and is with the President, and we have no physical power to enforce the lawful process of this Court on his military subordinates against the President's prohibition. We have exhausted every practical remedy to uphold the lawful authority of this Court. It is ordered, this 30th day of October, 1861, that this opinion of the Court be filed by the Clerk, and made part of the record, as explaining the grounds on which we now decline to order any further process in this case. Judge Morsell, the Associate Judge then on the bench, submitted the following: As a member of this Court, and on its behalf, I wish it understood that, notwithstanding the blow levelled at this Court, I do distinctly assert the following principles: 1st. That the law in this country knows no superior. 2d. That the supremacy of the civil authority over the military cannot be denied; that it has been estab. lished by the ablest jurists, and, I believe, recognized and respected by the great Father of the Country during the Revolutionary War. 8d. That this Court ought to be respected by every one as the guardian of the personal liberty of the cit izen, in giving ready and effectual aid by that most valuable means, the writ of habeas corpus. 4th. I therefore respectfully protest against the right claimed to interrupt the proceedings in this case. This opinion of Judge Morsell was also ordered to be placed on the record. A writ of habeas corpus was also issued by Judge Garrison of Brooklyn, N. Y., and served upon the officer in charge of the prisoners at Fort Lafayette, commanding that one of them should be brought before him, but with out any success. The declarations of the Government coincide with the evidence of these facts. On the 5th of July, Attorney-General Bates prepared an opinion, at the request of the President, on the suspension of the privilege of the writ of habeas corpus. He commences his opinion with these words: SIR: You have required my opinion in writing upon the following questions: I. In the present time of a great and dangerous insurrection, has the President the discretionary power to cause to be arrested and held in custody persons known to have criminal intercourse with the insurgents, or persons against whom there is probable cause for suspicion of such criminal complicity? II. In such cases of arrest, is the President justified in refusing to obey a writ of habeas corpus issued by a court or a judge, requiring him or his agent to produce the body of the prisoner, and show the cause of his caption and detention, to be adjudged and disposed of by such court or judge? Both questions were answered in the affirmative by the Attorney-General. The basis of his argument is in these words: To make my answer to these questions at once consistent and plain, I find it convenient to advert to the great principle of government as recognized and acted upon in most, if not all, the countries in Europe, and to mark the difference between that principle and the great principle which lies at the bottom of our National Government, Unity of power is the great principle recognized in Europe; but a plan of "checks and balances" forming separate departments of government, and giving to each department separate and limited powers, has been adopted here. These departments are coordinate and co-equal; that is, neither being sovereign, each is independent in its sphere, and not subordinate to the others, either of them or both of them together. If one of the three is allowed to determine the extent of its own powers, and that of the other two, that one can in fact control the whole government, and has become sovereign. The same identical question may come up legitimately before each one of the three departments, and be determined in three different ways, and each decision stand irrevocable, binding upon the parties to each case, for the simple reason that the departments are coordinate, and there is no ordained legal superior with power to revise and reverse their decision. To say that the departments of our Government are coordinate, is to say that the judgment of one of them is not binding upon the other two, as to the arguments and principles involved in the judgment. This independence of the departments being proved, and the Executive being the active one, bound by oath to perform certain duties, he must be, therefore, of neces sity, the sole judge both of the exigency which requires him to act, and of the manner in which it is most prudent for him to employ the powers intrusted to him, to enable him to discharge his constitutional and legal duty. Such is the outline of the prelimina ries upon which this opinion rests. When it first became evident that the Government would arrest citizens, and refuse the privilege of the writ of habeas corpus, consternation seized the public. What constitutes treason, and what rules will control the action of the Government in ordering the arrest of any individuals, became at once most important questions. The clause of the Constitution of the United States relating to treason is in these words: "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them of treason, unless on the testimony of two witaid and comfort. No person shall be convicted nesses to the same overt act, or confession in open court." The following letter from the Secretary of State, Mr. Seward, to the agent of the New York and Virginia steamship company, G. Heineken, furnishes an official statement of the views of the Government relative to the particular act to which it refers: DEPARTMENT of State, { WASHINGTON, May 16, 1961. SIR: I have received your letter of yesterday's date, asking me to give you in writing my reasons for considering an acceptance on your part of Governor Letcher's proposition to purchase the steamships Yorktown and Jamestown, recently seized by his orders, and now in his possession, an act of treason. With this request I readily comply. An insurrection has broken out in several of the States of this Union, including Virginia, designed to overthrow the Government of the United States. The insurrection, and, so, are public enemies. Their action executive authorities of that State are parties to that in seizing or buying vessels to be employed in executing that design is not merely without authority of law, but is treason. It is treason for any person to give aid and comfort to public enemies. To sell vessels to them which it is their purpose to use as ships-of-war, is to give them aid and comfort. To receive money from them in payment for vessels which they have seized for those purposes, would be to attempt to con vert the unlawful seizure into a sale, and would subject the party so offending to the pains and penalties of treason, and the Government would not hesitate to bring the offender to punishment. 1 am, sir, your obedient servant, To G. HEINEKEN, Esq. WILLIAM H. SEWARD, On the 17th of August Mr. Seward writes to Mr. Adams, the American Minister at London, as follows: On the 5th instant I was advised by a telegram from Cincinnati that Robert Muir, of Charleston, was on his way to New York to embark at that port for Eng land, and that he was a bearer of despatches from the usurping insurrectionary authorities of Richmond ta Earl Russell. Other information bore that he was a bearer of despatches from the same authorities to their agents in London. Information from various sources agreed in the fact that he was travelling under a passport from the British Consul at Charleston. Upon this information I directed the police at New York to detain Mr. Muir and any papers which might be found in his possession until I should give further directions. He was so detained, and is now in custody at Fort Lafayette, awaiting full disclosures. In his possession were found seventy letters, four of which were unsealed, and sixty-six sealed. There was also found in his possession a sealed bag, marked "Foreign Office, 3," with two labels, as follows: "On Her Brit. Maj. service. The Right Honorable the Lord John Russell, M. P., &c., &c., &c. Despatches in charge of Robert Mure, Esq.," signed Robert Bunch. "On Her Brit. Maj. service. The Right Honorable the Lord John Russell, M. P., H. B. M.'s Principal Secretary of State for Foreign Affairs, Foreign Office, London, R. Bunch." The bag bears two impressions of the seal of office of the British consul at Charleston, and seems to contain voluminous papers. There were also found upon Mr. Muir's person, in an open envelope, what pretends to be a passport. Also a letter of introduction. There were also found several unsealed copies of a printed pamphlet, entitled "A narrative of the battles of Bull Run and Manassas Junction, July 18th and 21st. Accounts of the advance of both armies, the battles and rout of the enemy, compiled chiefly from the detailed reports of the Virginia and South Carolina press; Charleston, Steam Power Presses of Evan & Coggswell, No. 3 Broad, and 103 East Bay streets, 1861." This pamphlet is manifestly an argument for the disunion of the United States. Several copies of it were found addressed to persons in England. The marks and outward appearance of the bag indicate that its contents are exclusively legitimate communications from the British consul at Charleston to H. B. M.'s Government. Nevertheless, I have what seem to be good. reasons for supposing that they may be treasonable papers, designed and gotten up to aid parties engaged in arms for the overthrow of this Government, and the dissolution of the Union. These reasons are: 1st. That I can hardly conceive that there can be any occasion for such very voluminous communications of a legitimate nature being made by the consul at Charleston to his Government at the present time. 2d. Consuls have no authority to issue passports, the granting of them being, as I understand, not a consular but a diplomatic function. Passports, however, have, in other times, been habitually granted by foreign consuls residing in the United States. But soon after the insurrection broke out in the Southern States a regulation was made by this department, which I have excellent means of knowing was communicated to the British consul at Charleston, to the effect that, until further orders, no diplomatic or consular passports would be recognized by this Government, so far as to permit the bearer to pass through the lines of the national forces or out of the country, unless it should be countersigned by the Secretary of State, and the commanding general of the army of the United States. Mr. Muir had passed the lines of the army, and was in the act of leaving the United States in open violation of this regulation. Moreover, the bearer of the papers, Robert Muir, is a naturalized citizen of the United States, has resided here thirty years, and is a colonel in the insurgent military forces of South Carolina. 3d. If the papers contained in the bag are not illegal in their nature or purpose, it is not seen why their safe transmission was not secured, as it might have been by exposing them in some way to Lord Lyons, British Minister residing at this capital, whose voucher for their propriety, as Mr. Bunch must well know, would exempt them from all scrutiny or suspicion. 4th. The consul's letter to the bearer of despatches attaches an unusual importance to the papers in question, while it expresses great impatience for their immediate conveyance to their destination, and an undue anxiety lest they might, by some accident, come under the notice of this Government. 5th. The bearer is proved to be disloyal to the United States by the pamphlet, and the letters found in his possession. I have examined many of the papers found upon the person of Mr. Muir, and I find them full of treasonable information, and clearly written for treasonable purposes. These, I think, will be deemed sufficient grounds for desiring the scrutiny of the papers, and surveillance of the bearer on my part. The remainder of the letter contains instructions to Mr. Adams, and is not important in reference to this subject. The opinion of the Courts of the United States has been often and very clearly expressed. On the 27th of April Judge Betts, of the U. S. District Court at New York, in a charge to the Grand Jury, thus stated acts which were treasonable: Giving aid or comfort to the enemies of the country consists in furnishing the military supplies, food, cloth ing, harbor or concealment, or communicating information to them, helping their hostilities against the country and its Government. It is most probable that complaints will be laid before you under this branch and definition of the crime. Within it will be included acts of building, manning, or in any way fitting out or victualling vessels to aid the hostilities of our enemies; sending provisions, arms, or other supplies to them; raising funds or obtaining credit for their service; indeed, every traitorous purpose manifested by acts, committed in this district by persons owing allegiance to the country, will be acts of treason. It is not necessary that the accused should have raised or created war by his own acts; he levies war by acting with those who have set it on foot, or by seizing or holding ports, or like acts of hostile aggression. The kindred crime of misprision of treason Is this: If any person owing allegiance to the Government has knowledge of acts of treason committed by others within the jurisdiction of the Court, and does not make it known to the President of the United States, or one of the Judges of the United States, or the Governor of the State, or a judge or magistrate thereof, he becomes guilty of misprision of treason, and subject to seven years' imprisonment and a fine of one thousand dollars for the offence; and it is the duty of the Grand Jury to present for trial therefor such offender, whatever may be his individual connection or relationship with the offender. In the Circuit Court of the United States for New York, Judge Nelson at a later day thus defined the overt act of treason: There is more difficulty in determining what constitutes the overt act under the second clause of the Constitution-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 act 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 facts 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 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. |