« AnteriorContinuar »
submit to and receive whatever the said Court shall Colonel Lee-After making that communication my determine upon concerning you on their behalf, ac- duty is ended and my power is ended. (Rising and cording to law, and have you then and there this writ. retiring.)
Witness the Hon. Roger B. Taney, Chief Justice of Chief Justice-The Court orders an attachment to the Supreme Court, the fourth Monday in May, in the issue against George Cadwalader for disobedience to year of our Lord 1861.
the high writ of the Court. THOMAS SPICER, Clerk Circuit Court. Subsequently, the Chief-Justice wrote and delivered Issued 26th May, 1861.
to the clerk
the following order : On Monday Colonel Lee appeared in Court, General George Cadwalader for a contempt in refusing
Ordered, That an attachment forthwith issue against and stated that he was instructed by General to produce the body of John Merryman according to Cadwalader to present to the Chief-Justice the the command of the writ of habeas corpus returnable annexed response to the writ, expressing, at and returned before me to-day,
and that said attach
ment be returned before me at twelve o'clock to-mor the same time, the regret of General Cadwala
at the room of the Circuit Court. der that pressing duties in connection with his
ROGER B. TANEY. command prevented him appearing before the MONDAY, May 27, 1861. Court in person. Colonel Lee then read as
The Court then adjourned until Tuesday follows:
morning. HEAD-QUARTERS DEPARTMENT OF ANNAPOLIS, At 12 m. on Tuesday the Chief-Justice enFORT MCHEXRY, Muy 25, 1661.
tered the Court, and took his seat upon the To the Hon. Roger B. Taney, Chief-Justice of the Su preme Court of the United States, Baltimore, Md. :
bench. The special proceedings of the day Bir: The undersigned, to whom the annexed writ were then entered upon, and the following colof this date, signed by Thomas Spicer, Clerk of the loquy ensued : Supreme Court of the United States, is directed, most
Chief-Justice Taney-Marshal, have you the return, respectfully states
sir ? That the arrest of Mr. John Merryman, in the said writ pamed, was not made with the knowledge or by the Chief-Justice a folded paper, which the latter,
United States Marshal Bonifant, rising, handed to his order or direction, but was made by Col. Samuel after
opening, transferred to Mr. Spicer, the Clerk of Yohe, acting under the orders of Major-General Wm.
the Court. H. Keim, both of said officers being in the military service of the United States, but not within the limits
Chief-Justice-Mr. Spicer, read this; read it aloud. of his command.
The Clerk then read the writ of attachment, The prisoner was brought to this post on the 20th and the Marshal's return thereto, as follows: instant by Adjutant James Wittimore and Lieut. Wm. H. Abel, by order of Colonel Yohe, and is charged
THE UNITED STATES OF AMERICA, with various acts of treason, and with being publicly
DISTRICT OF MARYLAND, TO WIT. I associated with and holding a commission as lieuten- To the Marshal of the Maryland District, Greeting: ant in a company having in their possession arms be- We command you that you attach the body of Gena longing to the United States, and avowing his purpose eral George Cadwalader and him have before the Hon. of armed hostility against the Government.
Roger B. Taney, Chief-Justice of the Supreme Court He is also informed that it can be clearly established of the United States, on Tuesday, the 28th of May, that the prisoner has made often and unreserved dec. 1861, at 12 o'clock ., at the Circuit Court rooms of larations of his association with this organized force, the United States, in the City of Baltimore, to answer as being in avowed hostility to the Government, and in for bis contempt by him committed, in refusing to próreadiness to cooperate with those engaged in the present duce the body of John Merryman, of Baltimore County; rebellion against the Government of the United States. according to the command of the writ of habeas corpus
He has further to inform you that he is duly author- returnable, and returned before the said Chief-Justice, ized by the President of the United States in such this 27th day of May, 1861. Hereof you are not to fail, cases to suspend the writ of habeas corpus for the pub- and have you then and there this writ. lic safety. This is a high and delicate trust, and it has Witness, the Hon. Roger B. Taney, Chief-Justice of been enjoined upon him that it should be executed the Supreme Court, the first Monday in December, in with judgment and discretion, but he is nevertheless the year of our Lord, 1861, also instructed that in times of civil strife, errors, if
THOMAS SPICER, Clerk. any, should be on the side of safety to the country. Issued 27th May, 1861.
He most respectfully submits to your consideration that those who should cooperate in the present trying Chief
Justice of the Supreme Court of the United
I hereby certify to the Honorable Roger B. Taney, and painful position in which our country is placed, States, that by virtue of the within writ of attachment, should not, by reasons of any unnecessary want of confidence in each other, increase our embarrassments.
to me directed on the 27th day of May, 1861, 1 proHe therefore respectfully requests that you will post: ceeded on the 28th day of May, 1861, to Fort
McHenry, pone further action upon the case until he can receive for the purpose of serving
the said writ. I sent in my instructions from the President of the United States, the reply " that there was no answer to my card,” and
name at the outer gate; the messenger returned with when you shall hear further from him. I have the honor to be, with high respect, your obe
therefore could not serve the writ as I was commanded. dient servant, GEO. CADWALADER,
I was not permitted to enter the gate. So answers
WASHINGTON BONIFANT, Brevet Major-General U.S. Army, commanding.
U. S. Marshal for the District of Maryland. On finishing the reading of the reply of Gen
Chief-Justice Taney—Then no answer has been made eral Cadwalader, Colonel Lee was preparing to to the writ? leave the Court, when the following interroga- Deputy Marshal Vance—There was no reply, sir, ex. tories were put to him by the Chief-Justice : cept that "there was no reply to my card." I was not
permitted to enter the outer gate. Chief-Justice-Have you brought with you the body Chief-Justice Taney-Well, you should state that. of John Merryman?
The fact does not appear in your return. Colonel Lee- I have no instructions except to deliver The Deputy Marshal amended the return in com. this response to the Court.
pliance with the suggestion, and, handing the paper Chief Justice-The commanding officer declines to to the Chief-Justice, the latter proceeded to read from obey the writ?
the manuscript the subjoined remarks, previously say
ing, It is a plain case, gentlemen, and I shall feel it arrested by a military authority withont legal my duty to enforce the process of the Court. 1 ordered the attachinent yesterday, because upon had no jurisdiction in the matter, as the military
process. He cited precedents that the Court the face of the return the detention of the prisoner was uplawful upon two grounds.
authority in time of war, or “rebellion," had 1. The President, under the Constitution and laws the power and might arrest persons in array of the United States, cannot suspend the privilege of against the Federal Government for treason, or the writ of habeas corpus, nor authorize any military alleged treason. officer to do so.
2. A military officer has po right to arrest and de- The Court gave an elaborate opinion, decidtain a person, not subject to the rules and articles of ing that it had jurisdiction in the case. 'Meatwar, for an offence against the laws of the United while General Žarney, who had returned to the States, except
in aid of the judicial authority and sub- command of the department from Washington, military, it is the duty of the officer to deliver him refused to obey the writ, but on a subseqnent day over immediately to the civil authority, to be dealt applied to the Court for permission to amend with according to law.
lis return by saying that the prisoner never I forbore yesterday to state orally the provisions of had been under his control; but by orders from the Constitution of the United States which make these Washington he had been removed from that an oral statement might be misunderstood in some military department. This answer was deemed portions of it, and I shall therefore put my opinion in by the Court to be sufficient. writing, and file it in the office of the Clerk of the Cir- The Circuit Court of the United States, at cuit Court, in the course of this week.
Washington, at its opening on the second day After reading the above, the Chief-Justice of the term, Judge Dunlop presiding, received orally remarked :
a communication from one of the Assistant In relation to the present return, I propose to say Judges, which was read in Court as follows: that the Marshal has segally 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 a lawyer
of this city, called upon me with a petition, will be resisted in the discharge of that duty by a supported by affidavit in proper form, praying for a force notoriously superior to the posse comitatus, and, writ of habeas corpus to the Prorost-Marsbal requiring such being the case, the Court has no power under the him to produce before the undersigned one Jobs Mar law 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 eighteen years, and illegally detained by said ProvostCourt, it would then impose the only punishment it is the order
was given by me to the clerk, who issued
Marshal as an enlisted soldier of the United States. Under these circumstances the Court can barely the writ in the usual
form. I was informed by Mr. say, to-day, I shall reduce to writing the reasons under Foley, on the afternoon of Saturday, that, by reason which I have acted, and which have led me to the con. of the many engagements of the Deputy Marshal of the clusions expressed in my opinion, and shall report District of Columbia, he himself took the writ and them with these proceedings to the President of the served it, as by law he rightfully might do, upon the United States, and call upon him to perform his con- Provost-Marshal, General A. Porter ; that when he de stitutional duty to enforce the laws; in other words, livered the writ to the Provost-Marshal he was told by to enforce the process of this
Court.' That is all this him that he would consult the Secretary, (I think he Court has now the power to do.
said the Secretary of State) whether he should respect
the writ or not, and that he (Mr. Foley) must consider After the delivery of this opinion, all further himself under arrest, þat for the present might go at proceedings in the case were suspended, and large as upon his parole. the court-roon was, in a few minutes, vacated house, with one or two other persons—one, I think
Later in the afternoon Mr. Foley again called at my by the throng which had occupied it.
was represented as the elder brother or some near relaThe opinion of the Chief-Justice, which was tive of the boy Murphy--and desired to know whether subsequently filed in the office of the Clerk, is he were now to consider the boy as finally discharged devoted to the elucidation of the two positions and at liberty to return home to his friends, inasmach stated above.
as he had then been dismissed from the guard-boose
I declined to make any suggestions to him in the prem About the 20th of May, Emmett McDonald ises, and told him that whatsoever I did in the matter was arrested by orders of the military com- must be done judicially, and after facts had been spread mandant at St. Louis, Captain Lyon, and im, if any, made thereon; and that, as the Court would
before me upon affidavit, and the appropriate motion, prisoned. A writ of habeas corpus was issued meet on Monday morning, October 21st, in regular returnable before Judge Trent of the United term, I should adjourn all proceedings under the writ States District Court. The question raised by into Court for the advice and action of the whole Court the counsel of the respondent was as follows:
He stated that he would reduce all the facts to writing,
make affidavit, and file them, for that he expected to Has this Court jurisdiction in a case of habeas corpus be arrested. He then withdrew. where the petitioner is in custody under authority of On Monday morning, just before the meeting of the United States, but not by virtue of any warrant, Court, I went into the Clerk's office and asked Charles order, or process of Court, or under a technical com McNamee, the Deputy Clerk, if Mr. Foley had filed any mitment"-in other words, has a United States District affidavits in the case. He examined the
papers and Court or Judge, under the acts of 1789 and of 1838, the reported there was none. I then directed him to power to issue a writ of habeas corpus, and examine dorse upon the papers that they were by my order adinto the cause of the alleged illegal restraint, unless it journed into the Court for its further action. appears on the face of the petition that there is such a After the adjournment of the Court I was informed technical or formal commitment ?
by a member of the bar that about eleven o'clock that In his argument the U. S. District Attorney morning Mr. Foley had been arrested and placed in the for the respondent took the position that the announced his purpose to apply for his release. I told petition set forth that the petitioner had been him that whatever any location he had to make must de
in writing, upon proper affidavit, and that, as the whole
On the day appointed, the Court being in Court was in regular session, he must make it to the session, the Deputy Marshal, Geo. W. Phillips, Court in full sitting, and he withdrew to confer with soine of his brotber lawyers on his course.
appeared and presented tbrough the District After dinner I visited my brother Judges in George Attorney the following paper: town, and returning home between half-past seven and To the Honorable the Judges of the Circuit Court of eight o'clock, found an armed sentinel stationed at my the District of Columbia : door by order of the Provost-Marshal. I learned that
George W. Phillips, in whose hands the rule herein. this guard had been placed at my door as early as five after mentioned was placed as Deputy Marshal, respecto'clock. Armed sentries from that time continuously fully represents to your Honors that he did not serve until now have been stationed in front of my house. the rule issued by your honorable Court on the 22d
Thus it appears that a military officer, against whom day of October, 1861, to be served on Gen. Andrew a writ in the appointed form of law has issued, first Porter, Provost - Marshal of said district, because he threatened with and afterwards arrested and impris- was ordered by the President of the United States pot oned the attorney who rightfully served the writ upon him. He continued and still continues in contempt Court that the privilege of the writ of habeas corpus
to serve the same, and to report to your honorable and disregard of the mandate of the law, and has igno- has been suspended for the present, by the order of the miniously
placed an armed guard to insult and intim: President of the United States, in regard to soldiers in idate by its presence the Judge who ordered the writ the army of the United States within said district; to issue, and still keeps up this armed array at his door, and that he respectfully disclaims all intention to disin defiance and contempt of the justice of the land. Under these circumstances, I respectfully request able Court.
obey or treat with disrespect the orders of this honor.
GEO. W. PHILLIPS. the Chief Justice of the Circuit Court to cause this District of Columbia, Washington County, to wit: memorandum to be read in open Court, to show the reasons for my absence from my place upon the
bench; in open Court George W. Phillips above named, and
On this 26th of October, 1861, personally appeared length on the minutes of the Court alongside the record made oath in due form of law ibat the matters and of my absence, to show through all time the reasons
things stated in the foregoing and annexed answer are
true. why I do not, this 22d of October, 1861, appear in my
GEO. W. PHILLIPS. accustomed place. WILLIAM M. MERRICK.
Test-Jo. A. Smith, Clerk. Assistant Judge Circuit Court, D. C. This return was held under advisement until The reading of the communication having the 30th of October, when Judge Dunlap anbeen concluded
nounced his decision in the case as follows: Judge Duplop announced that the two remaining
The return made by Deputy Marshal Phillips the Judges had, after consultation, decided that the letter 26th of October, 1861, we will order to be filed, though should be filed as requested by Judge Merrick, and it
we do not doubt our power to regard it as insufwas so ordered.
ficient in law, and to proceed against the officer who They also thought it right, as the writ (of habeas has made it. corpus) had been regularly issued, to state that the The existing condition of the country makes it plain matter was now before the Court to be tried.
that that officer is powerless against the vast military The statement of their brother Judge (he said) pre- force of the Executive, subject to his will and order as sented a case where the progress of law is obstructed. commander-in-chief of the army and navy of the United It was the duty of the Court to afford the remedy, States. and, if the facts are as stated, to cause the law to be Assuming the verity of the return, which has been respected.
made on oath, the case presented is without a parallel As the Provost-Marshal had obstructed a process of in the judicial history of the United States, and inthis Court, it would order a rule to be served on Gen. volves the free action and efficiency of the Judges of Andrew Porter to appear before the Court, and show this Court. cause why an attachment for contempt of Court should The President, charged by the Constitution to take Dot issue against him.
care that the laws be executed, has seen fit to arrest Judge Morsell said that this was a palpable and the process of this Court, and to forbid the Deputy gross obstruction to the administration of justice, to
Marshal to execute it. It does not involve merely prevent a judge of this Court from taking his seat, be- the question of the power of the Executive, in civil cause he issued a writ just such as the law requires. The war, to suspend the great writ of freedom-the babeas placing of a sentinel before Judge Merrick's house was corpus. When this rule was ordered to give efficiency to evidently for the purpose of embarrassing him in this that writ, no notice had been given by the President particular subject, and to prevent his appearance in
to the courts or the country of such suspension here, Court. He (Judge Morsell) would make the rule now first announced to us, and it will hardly be mainbroader, 80 as to have Mr. Provost satisfy the Court as tained that the suspension could be retrospective. to both matters. The Court had its duty to do, a duty
The role in this case, therefore, whatever may be the the judges are sworn to do, and that duty is the ad- President's power over the writ of habeas corpus, was ministration of justice according to law.
lawfully ordered, as well as the writ on which it was What is the real state of things? If martial law is founded. The facts on which the rule was ordered by the to be our guide, we look to the President of the United Court are assumed to be true as respects the President, States to say so. He (Judge Morsell) did not pretend because the President had them before him, and has to controvert the right of the President to proclaim not denied them, but forbade the Deputy Marshal to martial law, but let him issue his proclamation. The
serve the rule on Gen. Andrew Porter. Judges have their duty to do under the law, and they of the acts of Gen.
Porter set forth in the rule, and
The President, we think, assumes the responsibility are liable to be punished if they do not do it.
The Judge then spoke of the rule which would be sanctions them by his orders to Deputy Marshal served on tbe Provost-Marshal, and in conclusion Phillips pot to serve the process on the
Provost Marshal. said: "I intend to do my duty, and vindicate the
The issue ought to be and is with the President, and character of this Court as long as I sit here."
we have no physical power to enforce the lawful pro
cess of this Court on his military subordinates against A notice was accordingly made out to be the President's prohibition. served on Gen. Porter, requiring him to appear hold the lawful authority of this Court.
We have exhausted every practical remedy to upbefore the Court on a subsequent day, to show
It is ordered, this 30th day of October, 1861, that caose why a writ of attachment for a contempt this opinion of the Court be filed by the Clerk, and of Court should not issue against him.
made part of the record, as explaining the grounds on
which we now decline to order any further process in coordinate, and there is no ordained legal superice this case.
with power to revise and reverse their decision. To Judge Morsell, the Associate Judge then on say that the departments of our Government are com
ordinate, is to say that the judgment of one of them is the bench, submitted the following:
not binding upon the other two, as to the arguments As a member of this Court, and on its behalf, I wish and principles involved in the judgment. This indeit understood that, potwithstanding the blow levelled at pendence of the departments being proved, and the this Court, I do distinctly assert the following principles: Executive being the active one, bound by oath to per 1st. That the law in this country knows no superior, form certain duties, he must be, therefore, of neces.
2d. That the supremacy of the civil authority over sity, the sole judge both of the exigency which is the military cannot be denied; that it has been estab. quires him to act, and of the manner in which it is lished by the ablest jurists, and, I believe, recognized most prudent for him to employ the powers intrusted and respected by the great Father of the Country dur- to him, to enable him to discharge his constitutional ing the Revolutionary War.
and legal duty. Such is the outline of the prelimina 3d. That this Court ought to be respected by every ries upon which this opinion rests. one as the guardian of the personal liberty of the citizen, in giving ready and effectual aid by that most ernment would arrest citizens, and refuse the
When it first became evident that the Gorvaluable means, the writ of habeas corpus.
4th. I therefore respectfully protest against the right privilege of the writ of habeas corpus, conclaimed to interrupt the proceedings in this case. sternation seized the public. What constitutes
This opinion of Judge Morsell was also or- treason, and what rules will control the action dered to be placed on the record.
of the Government in ordering the arrest of A writ of habeas corpus was also issued by questions. The clause of the Constitution of
any individuals, became at once most important Judge Garrison of Brooklyn, N. Y., and served the United States relating to treason is in these upon the officer in charge of the prisoners words: “Treason against the United States at Fort Lafayette, commanding that one of shall consist only in levying war against them, them should be brought before him, but with- or in adhering to their enemies, giving them out any success. The declarations of the Government coincide of treason, unless on the testimony of two wit
aid and comfort. No person shall be convicted with the evidence of these facts. On the 5th of July, Attorney-General Bates
nesses to the same overt act, or confession in
open court." prepared an opinion, at the request of the Pres. ident, on the suspension of the privilege of the
The following letter from the Secretary of writ of habeas corpus. He commences his State, Mr. Seward, to the agent of the New opinion with these words:
York and Virginia steamship company, G. Sir : You have required my opinion in writing upon views of the Government relative to the par
Heineken, furnishes an official statement of the the following questions :
1. In the present time of a great and dangerous in. ticular act to which it refers: surrection, has the President the discretionary power
DEPARTMENT OF STATE, to cause to be arrested and held in custody persons
WASHINGTON, May 16, 1961. known to have criminal intercourse with the insurgents, Sir: I have received your letter of yesterday's date or persons against whom there is probable cause for asking me to give you in writing my reasons for consuspicion of such criminal complicity?
sidering au acceptance on your part of Governor II. In such cases of arrest, is the President justified Letcher's proposition to purchase the steamships Yorkin refusing to obey a writ of habeas corpus issued by town and Jamestown, recently seized by his orders, a court or a judgé, requiring him or bis agent to pro- and now in his possession, an act of treason. With duce the body of the prisoner, and show the cause of this request I readily comply. bis caption and detention, to be adjudged and disposed An insurrection has broken out in several of the of by such court or judge?
States of this Union, including Virginia, designed to Both questions were answered in the affirma- overthrow the Government of the United States. The tive by the Attorney-General. The basis of his insurrection, and, so, are public enemies. Their action argument is in these words :
in seizing or buying vessels to be employed in execot To make my answer to these questions at once con- ing that design is not merely without autbority of law, sistent and plain, I find it convenient to advert to the but is treason. It is treason for any person to give great principle of government as recognized and acted aid and comfort to public enemies. To sell vessels to upon in most, if not all, the countries in Europe, and them wbich it is their purpose to use as ships-of-war
, to mark the difference between that principle and the is to give them aid and comfort. To receive money great principle which lies at the bottom of our Na- from them in payment for vessels which they have tional Government.
seized for those purposes, would be to attempt to coUnity of power is the great principle recognized in vert the unlawful seizure into a sale, and would sub Europe ; but a plan of "checks and balances" forming ject the party so offending to the pains and penalties separate departments of government, and giving to of treason, and the Government would not hesitate to each department separate and limited powers, has been bring the offender to punishment. adopted here. These departments are coördinate and I am, sir, your obedient servant co-equal; that is, neither being sovereign, each is inde
WILLIAM H. SEWARD. pendent in its sphere, and not subordinate to the others, To G. HEINEKEN, Esq. either of them or both of them together. If one of the On the 17th of August Mr. Seward writes to three is allowed to determine the
extent of its own pow. Mr. Adams, the American Minister at London, ers, and that of the other two, that one can in fact control the whole government, and has become sovereign.
as follows: The same identical question may come up legitimately On the 5th instant I was advised by a telegram from before each one of the three departments, and be de- Cincinnati that Robert Muir, of Charleston, was on termined in three different ways, and each decision his way to New York to embark at that port for Enr stand irrevocable, binding upon the parties to each land, and that he was a bearer of despatches from the euse, for the simple reason that the departments are usurping insurrectionary authorities of Richmond ta Earl Russell. Other information bore that he was a and an undue anxiety lest they might, by some acci. bearer of despatches from the same authorities to their dent, come under the notice of this Government. 5th. agents in London. Information from various sources The bearer is proved to be disloyal to the United States agreed in the fact that he was travelling under a pass. by the pamphlet, and the letters found in his possession. port from the British Consul at Charleston.
I have examined many of the papers found upon the Upon this information I directed the police at New person of Mr. Muir, and
I find them full of treasonable York to detain Mr. Muir and any papers which might information, and clearly written for treasonable purbe found in his possession until I should give further poses. These, I think, will be deemed sufficient directions. He was so detained, and is now in custody grounds for desiring the scrutiny of the papers, and at Fort Lafayette, awaiting full disclosures. In his surveillance of the bearer on my part. possession were found seventy letters, four of which
The remainder of the letter contains instrucwere unsealed, and sixty-six sealed. There was also found in his possession a sealed bag, marked “Foreign tions to Mr. Adams, and is not important in Office, 3," with two labels, as follows: “On Her Brit. reference to this subject. The opinion of the Maj. service. The Right Honorable the Lord John Courts of the United States has been often and Russell, M. P., &c., &c., &c. Despatches in charge of very clearly expressed. On the 27th of April Robert Mare, Esq.,” signed Robert Bunch. Thon
Hef Judge Betts, of the U. S. District Court at New Brit. Maj. service. John Russell, M. P., H. B. M. s Principal Secretary of York, in a charge to the Grand Jury, thus stated State for Foreign Affairs, Foreign Office, London, R. acts which were treasonable : Bunch." The bag bears two impressions of the seal of office of the British consul at Charleston, and seems
Giving aid or comfort to the enemies of the country to contain voluminous papers.
consists in furnishing the military supplies, food, clothThere were also found upon Mr. Muir’s person, in ing, barbor or concealment, or communicating infor:
mation to them, helping their hostilities against the an open envelope, what pretends to be a passport.
country and its Government. Also a letter of introduction.
It is most probable that complaints will be laid beThere were also found several unsealed copies of a
fore you under this branch and definition of the crime. printed pamphlet, entitled " A narrative of the battles Within it will be included acts of building, manning; of Bull Run and Manassas Junction, July 18th and
or in any way fitting out or victualling vessels to aid 21st. Accounts of the advance of both armies, the the hostilities of our enemies; sending provisions, arms, battles and rout of the enemy, compiled chiefly from or other supplies to them; raising funds or obtaining the detailed reports of the Virginia and South Carolina
credit for their service; indeed, every traitorous purpress; Charleston, Steam Power Presses of Evan &
pose manifested by acts, committed in this district by Coggswell, No. 3 Broad, and 103 East Bay streets, 1861."
persons owing allegiance to the country, will be acts This pamphlet is manifestly an argument for the
of treason. It is not necessary that the accused should disunion of the United States. Several copies of it
have raised or created war by his own acts; he levies were found addressed to persons in England.
war by acting with those who have set it on foot, or The marks and outward appearance of the bag in by seizing or holding ports, or like acts of hostile ago dicate that its contents are exclusively legitimate com
gression. The kindred crime of misprision of treason munications from the British consul at Charleston to
is this: If any person owing allegiance to the Govern. H. B. M.'s Government. Nevertheless, I have what
ment has knowledge of acts of treason committed by seem to be good reasons for supposing that they may
others within the jurisdiction of the Court, and does be treasonable papers, designed and gotten up to aid not make it known to the President of the United parties engaged in arms for the overthrow of this
States, or one of the Judges of the United States, or Government, and the dissolution of the Union. These
the Governor of the State, or a judge or magistrate reasons are: 1st. That I can hardly conceive that
thereof, he becomes guilty of misprision of treason, and there can be any occasion for such very voluminous
subject to seven years' imprisonment and a fine of one communications of a legitimate nature being made thousand dollars for the offence; and it is the duty of by the consal at Charleston to his Government at the the Grand Jury to present for trial therefor such ofpresent time. 2d. Consuls have no authority, to issue
fender, whatever may be his individual connection or passports, the granting of them being, as I understand, relationship with the offender. not a consular but a diplomatic function. Passports, however, have, in other times, been
habitually granted In the Circuit Court of the United States for by foreign consuls residing in the United States. But New York, Judge Nelson at a later day thus soon after the insurrection broke out in the Southern defined the overt act of treason: States a regulation was made by this department, which I have excellent means of knowing was com- There is more difficulty in determining what consti. municated to the British consul at Charleston, to the tutes the overt act under the second clause of the Coneffect that, until further orders, no diplomatic or con- stitution-namely, adhering to the enemy, giving him sular passports would be recognized by this Govern. aid and comfort. Questions arising under this clause ment, so far as to permit the
bearer to pass through must depend very much upon the facts and circumthe lines of the national forces or out of the country, stances of each particular case. There are some acts unless it should be countersigned by the Secretary of of the citizen in his relations with the enemy which State, and the commanding, general of the army of the leave no room for doubt-such as giving intelligence, United States. Mr. Muir had passed the lines of the with intent to aid him in his act of hostility; sending army, and was in the act of leaving the United States him provisions or money; furnishing arms, or troops, in open violation of this regulation. Moreover, the or munitions of war; surrendering a military post, &c., bearer of the papers, Robert Muir, is a naturalized all with a like intent. These and kindred facts are citizen of the United States, has resided here thirty overt acts of treason, by adhering to the enemy. years, and is a colonel in the insurgent military forces Words, oral, written, or printed, however treasonable, of South Carolina. 3d. If the papers contained in the seditious or criminal of themselves, do not constitute bag are not illegal in their nature or purpose, it is an overt act of treason within the definition of the not seen why their safe transmission was not secured, crime. When spoken, written, or printed in relation as it might have been by exposing them in some way to an act or acts which, if committed with a treasonable to Lord Lyons, British Minister residing at this capital, design, might constitute such overt act, they are ad. whose voucher for their propriety, as Mr. Bunch must missible as evidence, tending to characterize it, and well know, would exempt them from all scrutiny or show the intent with which the act was committed. suspicion. 4th. The consul's letter the
rer of They may also furnish some evidence of the act itself despatches attaches an unusual importance to the against the accused. This is the extent to which such papers in question, while it expresses great impatience publications may be used, either in finding a bill of infor their immediate conveyance to their destination, dictment or on the trial of it.