ing ten years, or by a fine not exceeding $10,000, and by the liberation of all his slaves, if any he have, or by both said punishments, at the discretion of the court." The fourth section provides that the act shall not be construed in any way to affect or alter the prosecution, conviction, or punishment of any person guilty of treason before its passage, unless convicted under the act.

There would seem, upon a first examination, to be an inconsistency between the first and second sections of this act the first section declaring a particular punishment for treason, and the second declaring, for acts which may constitute treason, a different punishment. It appears from the debate in the Senate of the United States, when the second section was under consideration, that it was the opinion of several senators that the commission of the acts which it designates might, under some circumstances, constitute an offence less than treason. The Constitution, as you have seen, declares that "treason against the United States shall consist only in levying war or in adhering to their enemies, giving them aid and comfort." Rebels not being enemies within its meaning, an indictment alleging the giving of aid and comfort to them had been, as was stated, held defective. But if such ruling had been made, it was made, we may presume, not because the giving of aid and comfort to rebels was not treason, but because the parties giving such aid and comfort were equally involved in guilt with those in open hostilities and should have been indicted for levying war; for every species of aid and comfort which, if given to a foreign enemy, would constitute treason within the second clause of the constitutional provision-adhering to the enemies of the United States - would, if given to the rebels in insurrection against the government, constitute a levying of war under the first clause. The second section of the act, however, relieves the subject from any difficulty so far as the form of the indictment is concerned. It is not necessary now to use specifically the term "levying war;" it will be sufficient if the indictment follows the language of the act, as the indictment does in the present case. But we are unable to conceive of any act designated in the second section which would not constitute treason, except perhaps as suggested by my associate, that of inciting to a rebellion. If we lay aside the discussion in the Senate, and read the several sections of the act together, the apparent inconsistency disappears. Looking at the act alone, we conclude that Congress intended: 1. To preserve the act of 1790, which prescribes the penalty of death, in force for the prosecution and punishment of offences committed previous to July 17, 1862, unless the parties accused are convicted under the act of the latter date for subsequent offences; 2. To punish treason thereafter committed with death, or fine and imprisonment, in the discretion of the court, unless the treason consist in engaging in or assisting a rebellion or insurrection against the authority of the United States, or the laws thereof, in which event the death penalty

is to be abandoned, and a less penalty inflicted. By this construction, the apparent inconsistency in the provisions of the different sections is avoided, and effect given to each clause of the act. The defendants are therefore in fact on trial for treason, and they have had all the protection and privileges allowed to parties accused of treason, without being liable, in case of conviction, to the penalty which all other civilized nations have awarded to this, the highest of crimes known to the law.

The indictment charges that on the sixteenth of March, 1863, and long before and since, an open and public rebellion by certain citizens of the United States, under a pretended government called the Confederate States of America, has existed against the United States and their authority and laws; that the defendants, in disregard of their allegiance to the United States, did on that day, and divers other times before and since, at the city of San Francisco, "maliciously and traitorously " engage in, and give aid and comfort to the said rebellion; that in the prosecution and execution of their "treasonable and traitorous " purposes, they procured, prepared, fitted out, and armed a schooner called the J. M. Chapman, then lying within the port of San Francisco, with the intent that the same should be employed in the service of the rebellion, to cruise on the high seas, and commit hostilities upon the citizens, property and vessels of the United States; and that they entered upon the said schooner and sailed from the port of San Francisco upon such cruise in the service of said rebellion. In other words, the indictment alleges: 1. The existence of a rebellion against the United States, their authority and laws; 2. That the defendants traitorously engaged in and gave aid and comfort to the same; 3. That in the execution of their treasonable and traitorous purposes, they procured, fitted out, and armed a vessel to cruise in the service of the rebellion upon the high seas, and commit hostilities against the citizens, property, and vessels of the United States; 4. That they sailed in their vessel from the port of San Francisco upon such cruise in the service of the rebellion.

The existence of the rebellion is a matter of public notoriety, and like matters of general and public concern to the whole country, may be taken notice of by judges and juries without that particular proof which is required of the other matters charged. The public notoriety, the proclamations of the President, and the acts of Congress are sufficient proof of the allegation of the indictment in this respect. The same notoriety and public documents are also sufficient proof that the rebellion is organized and carried on under a pretended government, called the Confederate States of America.

As to the treasonable purposes of the defendants there is no conflict in the evidence. It is true the principal witnesses of the government are, according to their own statements, co-conspirators with the defendants and equally involved in guilt with them, if guilt

there be in any of them. But their testimony, as you have seen, has been corroborated in many of its essential details. You are, however, the exclusive judges of its credibility. The court will only say to you that there is no rule of law which excludes the testimony of an accomplice, or prevents you from giving credence to it, when it has been corroborated in material particulars. Indeed, gentlemen, I have not been able to perceive from the argument of counsel that the truth of the material portions of their testimony has been seriously controverted.

It is not necessary that I should state in detail the evidence produced. I do not propose to do so. It is sufficient to refer to its general purport. It is not denied, and will not be denied, that the evidence tends to establish that Harpending obtained from the president of the so-called Confederate States a letter of marque a commission to cruise in their service on the high seas, in a private armed vessel, and commit hostilities against the citizens, vessels, and property of the United States; that his co-defendants and others entered into a conspiracy with him to purchase, and fit out, and arm a vessel, and cruise under the said letter of marque, in the service of the rebellion; that in pursuance of the conspiracy they purchased the schooner J. M. Chapman; that they purchased cannon, shells, and ammunition, and the means usually required in enterprises of that kind, and placed them on board the vessel; that they employed men for the management of the vessel; and that, when everything was in readiness, they started with the vessel from the wharf, with the intention to sail from the port of San Francisco on the arrival on board of the captain, who was momentarily expected. Gentlemen, I do not propose to say anything to you upon the much disputed questions whether or not the vessel ever did, in fact, sail from the port of San Francisco, or whether, if she did sail, she started on the hostile expedition. In the judgment of the court they are immaterial, if you find the facts to be what I have said the evidence tends to establish.

When Harpending received the letter of marque, with the intention of using it, if such be the case (and it is stated by one of the witnesses that he represented that he went on horseback over the plains expressly to obtain it), he became leagued with the insurgents - the conspiracy between him and the chiefs of the rebellion was complete; it was a conspiracy to commit hostilities on the high seas against the United States, their authority and laws. If the other defendants united with him to carry out the hostile expedition, they, too, became leagued with him and the insurgent chiefs in Virginia in the general conspiracy. The subsequent purchasing of the vessel, and the guns, and the ammunition, and the employment of the men to manage the vessel, if these acts were done in furtherance of the common design, were overt acts of treason. Together, these acts complete the essential charge of the indictment. In doing them, the defendants were

performing a part in aid of the great rebellion. They were giving it aid and comfort.

It is not essential to constitute the giving of aid and comfort that the enterprise commenced should be successful and actually render assistance. If, for example, a vessel fully equipped and armed in the service of the rebellion should fail in its attack upon one of our vessels and be itself captured, no assistance would in truth be rendered to the rebellion; but yet, in judgment of law, in legal intent, the aid and comfort would be given. So if a letter containing important intelligence for the insurgents be forwarded, the aid and comfort are given, though the letter be intercepted on its way. Thus Foster, in his treatise on Crown Law, says: "And the bare sending money or provisions, 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 it did all he could; the treason was complete on his part, though it had not the effect he intended."

Wherever overt acts have been committed which, in their natural consequence, if successful, would encourage and advance the interests of the rebellion, in judgment of law aid and comfort are given. Whether aid and comfort are given — the overt acts of treason being established is not left to the balancing of probabilities - it is a conclusion of law.

If the defendants obtained a letter of marque from the president of the so-called Confederate States, the fact does not exempt them from prosecution in the tribunals of the country for the acts charged in the indictment. The existence of civil war, and the application of the rules of law to particular cases, under special circumstances, do not imply the renunciation or waiver by the Federal government of any of its municipal rights as sovereign toward the citizens of the seceded States.

As matter of policy and humanity, the government of the United States has treated the citizens of the so-called Confederate States, taken in open hostilities, as prisoners of war, and has thus exempted them from trial for violation of its municipal laws. But the courts have no such dispensing power; they can only enforce the laws as they find them upon the statute-book. They cannot treat any new government as having authority to issue commissions or letters of marque which will afford protection to its citizens until the legislative and executive departments have recognized its existence. The judiciary follows the political department of the government in these particulars. By that department the rules of war have been applied only in special cases; and notwithstanding the application, Congress has legislated in numerous instances for the punishment of all parties engaged in or rendering assistance in any way to the existing rebellion. The law under which the defendants are

indicted was passed after captives in war had been treated and exchanged as prisoners of war, in numerous instances.

But even if full belligerent rights had been conceded to the Confederate States, such rights could not be invoked for the protection of persons entering within the limits of States which have never seceded, and secretly getting up hostile expeditions against our government and its authority and laws. The local and temporary allegiance, which every one- citizen or alien owes to the government under which he at the time lives, is sufficient to subject him to the penalties of treason.1

SECTION XV. - NON-ENUMERATED AND IMPLIED POWERS.

MCCULLOCH v. MARYLAND.

4 Wheaton, 316; 4 Curtis, 415. 1819.
[See page 1, supra.]

GIBBONS v. OGDEN.

9 Wheaton, 1; 6 Curtis, 1. 1824.
[See page 235, supra.]

LEGAL TENDER CASE.

110 United States, 421. 1884.

[See page 442, supra.]

ANDERSON v. DUNN.

6 Wheaton, 204; 5 Curtis, 61. 1821.

ERROR to the Circuit Court of the District of Columbia.

This was an action of trespass, brought in the court below, by the plaintiff in error against the defendant in error, for an assault and

1 The charge of HOFFMAN, District Judge, is omitted. The defendants were found guilty and sentenced.