TREASON AND CONFISCATION LAWS IN 1862. THEIR PRACTICAL OPERATION.

To understand the practical operation of the statutes now in force for the punishment of treason and rebellion, and for the seizure and confiscation of rebel property, it is necessary to observe the effect of other statutes which regulate the modes of procedure in the United States courts. Section 1 of the act of 1862, which, as well as the act of 1790, prescribes the punishment of death for treason; section 2, which imposes fines and penalties; section 3, which adds disqualification for office; and, in fact, all the penal sections of this statute, entitle the accused to a judicial trial. Before he can be made liable to suffer any penalty, he must have been "pronounced guilty of the offence charged," and he must have suffered "judgment and sentence on conviction." The accused cannot by law be subjected to a trial unless he has previously been indicted by a grand jury. He cannot be adjudged guilty unless upon a verdict of a petty jury, impanelled according to law, and by courts having jurisdiction of the person and of the alleged offence. A brief examination of the statutes regulating such proceedings will show that treason and confiscation laws will not be likely to prove effectual, unless they shall be amended, or unless other statutes shall be so modified as to adapt them to the present condition of the country.

LEGAL RIGHTS OF PERSONS ACCUSED OF TREASON.

All judicial convictions must be in accordance with the laws establishing the judiciary and regulating its proceedings. Whenever a person accused of crime is held by the government, not as a belligerent or prisoner

of war, but merely as a citizen of the United States, then he is amenable to, and must be tried under and by virtue of, standing laws; and all rights guaranteed to other citizens in his condition must be conceded to him.

WILL SECESSIONISTS INDICT AND CONVICT EACH OTHER?

No person can lawfully be compelled to appear and answer to a charge for committing capital or otherwise infamous crimes, except those arising in the army and navy, when in actual service, in time of war or public danger, until he has been indicted by a grand jury. That grand jury is summoned by the marshal from persons in the district where the crime was committed.

By the statute of September 24, 1789, section 29, "in all cases punishable with death, the trial shall be had in the county where the offence was committed; or where that cannot be done without great inconvenience, twelve petit jurors at least shall be summoned from thence." It has indeed been decided that the judges are not obliged to try these cases in the county where the crime was' committed, but they are bound to try them within the district in which they were perpetrated. †

HOW THE JURIES ARE SELECTED, AND THEIR POWERS.

The juries are to be designated by lot, or according to the mode of forming juries practised in 1789, so far as practicable: the qualifications of jurors must be the same as those required by the laws of the State where

• Constitutional Amendment V.

+ United States v. Wilson, Baldw. 117; United States v. Cornell, 2 Mass. 95-98; United States v. The Insurgents, 3 Dall. 518.

the trial is held, in order to qualify them to serve in the highest court of that State; and jurors shall be returned from such parts of the district, from time to time, as the court shall direct, so as to be most favorable to an impartial trial. And if so many jurors are challenged as to prevent the formation of a full jury, for want of numbers, the panel shall be completed from the bystanders.

STATE RIGHTS AND SECESSION DOCTRINES IN THE JURY ROOM.

The jury are by law judges of the law and the fact, according to the opinion of many eminent lawyers and judges. Whether this be so or not, their verdict, being upon the law and the fact, in a criminal case, they become in effect judges of law and fact. Suppose that the judge presiding at the trial is honest and loyal, and that the jury is composed of men who believe that loyalty to the State is paramount to loyalty to the United States; or that the States had, and have, a lawful right to secede from the Union. Whatever the opinions of the judge presiding in the United States court might be on these questions, he would have no power to root out from the jury their honest belief, that obedience to the laws of their own seceding State is not, and cannot be, treason. The first step towards securing a verdict would be to destroy the belief of the jury in these doctrines of State rights, paramount State sovereignty, and the right of secession. To decide the issue, according to the conscientious judgment of the jurymen upon the facts and the law, would require them to find a verdict against the United States.

SYMPATHY.

But this is not the only difficulty in the operation of this statute. The grand jurors and the petit jury are to be drawn from those who are neighbors, and possibly friends, of the traitors. The accused has the further advantage of knowing, before the time of trial, the names of all the jurors, and of all the witnesses to be produced against him; he has the benefit of counsel, and the process of the United States to compel the attendance of witnesses in his behalf. How improbable is it that any jury of twelve men will be found to take away the lives or estates of their associates, when some of the jurymen themselves, or their friends and relatives or debtors, are involved in the same offence! Could any judge reasonably expect a jury of horse thieves to convict one of their own number, when either of the jurymen might be the next man required to take his turn in the criminal box? Under the present state of the law, it is not probable. that there will ever be a conviction, even if laws against treason, and those which confiscate property, were not unpopular and odious in a community against whom they are enacted. When an association of traitors and conspirators can be found to convict each other, then these statutes will punish treason, but not sooner.

LAWS ARE MOST EFFECTIVE WHICH REQUIRE NO REBEL TO AD

MINISTER THEM.

Those sections of the act of 1862, empowering government to seize rebel property, real, personal, and mixed, and to apply it to the use of the army, to secure the condemnation and sale of seized property, so as to

Statute of April 30, 1790, Sect. 29.

make it available, and to authorize proceedings in rem, conformably to proceedings in admiralty or revenue cases, are of a different and far more effective character. Those clauses in the act which allow of the employment in the service of the United States of colored persons, so far as they may be serviceable, and the freeing of the slaves of rebels, whether captured, seized, fugitive, abandoned, or found within the lines. of the army, may be of practical efficacy, because these measures do not require the aid of any secession jury to carry them into effect.

STATUTES OF LIMITATION WILL PROTECT TRAITORS.

The statutes limiting the time during which rebels and traitors shall be liable to indictment ought also to be considered. By the act of 1790, no person can be punished unless indicted for treason within three years after the treason was committed, if punishable capitally; nor unless indicted within two years from the time of committing any offence punishable with fine or forfeiture. Thus, by the provisions of these laws, if the war should last two years, or if it should require two or three years after the war shall have been ended to reestablish regular proceedings in courts, all the criminals in the seceded States will escape by the operation of the statutes of limitations. It is true, that if traitors flee from justice these limitations will not protect them; but this exception will apply to few individuals, and those who flee will not be likely to be caught. Unless these statutes are modified, those who have caused and maintained the rebellion will escape from punishment.*

Several bills have been introduced during the present session of Congress (1863-64) to remedy the difficulties here pointed out.