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that I observe, the manifest hostility of some of the avowed friends of a strong, efficient confiscation bill, to the provisions of the first section of this bill. It may not contain all that those Senators desire; yet, as it tends to accomplish their object, it seems to me that it would be better for them to allow it to pass, as, if not the best thing they can get, better than nothing.

It does not seem to me that these two sections, the first and second, are obnoxious to the criticisms which have been made upon them. The first section, as has been said by the chairman of the committee that reported the bill, provides for the punishment of treason-a crime defined by the Constitution. I concur entirely in the views expressed by the Senator from Kentucky on this point. As the law now stands, any person convicted of treason must be executed. Look at the case we have before us. Thousands, tens, hundreds of thousands of men, perhaps, have been guilty of that offense. Is it to be contemplated for a moment that all these men are to be indicted for treason and to be executed? No man in his senses can tolerate the idea. Some of them must be; some of them should be; but no man expects that ten thousand or a hundred thousand of these men will be indicted and executed; and yet we are, as the law now stands, shut up to that single punishment. I agree with the Senator from Kentucky, every man that has had much experience in criminal law knows that the great difficulty in punishing crime is, that the punishment is so severe that jurors will not do their duty.

This section, in my judgment, furnishes a judicious latitude for a Court in inflicting the punishment of treason. Let a man be convicted of treason, and it will be then for the Court in its sober judgment to decide what is the grade of his offense; has he been a leader; has he been one that has nourished, that has himself incited and led on this rebellion; is he one of its authors, one of its promoters; has he been for years engaged in preparing the mind of the southern people for it? If he has, let him be executed. Let there be a few signal, emphatic, striking examples of that kind; but who expects that all the traitors of the South shall be executed? This section, very wisely, in my judgment, provides for a class of traitors, those who will be convicted of treason, but will not be executed.

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If the provision of this second section amounts to treason, the person accused will be convicted of treason. Any skillful prosecutor, any prosecutor who is fit to discharge the duties of a prosecutor, will indict under both sections, just as you indict a man for murder, and put a second count in the indictment for manslaughter. The indictment will be under both sections. There will be one count for treason, and there will be another count in the very language of the second section for the offense prescribed by that section, which would not have existed but for the section—a statutory offense. Whoever frames the indictment, and is fit to hold the office of public prosecutor, will frame his indictment in that way. Then, if the individual has been guilty of treason, he will be convicted under the first section; but if the Court should find any difficulty in making out upon the facts of the case, as they shall be proved before the jury, that it was treason, and it shall appear that it was something else, inciting rebellion or insurrection against the Government, the Court, of course, would instruct the jury to convict under the second section of that offense-a grievous offense to be sure, a very grave offense, but not an offense that amounted to treason under the Constitution.

Mr. HOWARD. Will the honorable Senator from New York allow me to ask him a question?

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Mr. HARRIS. Certainly.

Mr. HOWARD. I ask whether the acts made criminal by the second section are not treason nnder the Constitution of the United States?

Mr. HARRIS. I am not prepared to say that they may not be, and I am not prepared to say that they are. I have not examined the decision of Judge Swayne; but if the views suggested by the Senator from New Jersey be correct, they might not amount to treason, At all events, there is no harm in making this provision so that if the Court shall hold that the conduct of a man brought in question upon an indictment for treason does not amount to treason, he shall not therefore be acquitted. You may provide a milder punishment for an offense that the Court do not deem to amount to treason, and thus you may punish the guilty individual, while he is at the same time acquitted of the crime of treason. There is no difficulty in the matter,

THE CHARGE DELIVERED BY JUDGE FIELD TO THE GRAND JURY IMPANNELED FOR THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA AT THE CITY OF SAN FRANCISCO ON THE THIRTEENTH OF AUGUST, 1863.

GENTLEMEN OF THE GRAND JURY:-The oath which has just been administered to you indicates generally the nature of your duties, and the impartial spirit with which those duties should be discharged. You are impanneled to inquire into and true presentment make of all public offenses against the United States, committed or triable within the Northern Judicial District of California. Your inquiries are to be conducted, and your presentments made, without malice, hatred, or ill-will, and you are to leave no one unresented through fear, favor, or affection, or for any reward, or the promise or hope thereof. From the nature of the duties devolved upon you, your office is one of responsibility, dignity, and importance. By the Constitution of the United States no person can "be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger." No steps, therefore, can be taken for the prosecution of any crime of an infamous character— and under that designation the whole series of felonies is classed— beyond the warrant and commitment of the party accused, until the Grand Jury have deliberated and acted upon the accusation. Your functions are therefore not only important, but they are indispensable to the administration of justice.

In your investigations you will receive only legal evidence, to the exclusion of mere reports, suspicions, and hearsay evidence. Subject to this qualification, you will receive all the evidence presented which may throw light upon the matter under consideration,

whether it tend to establish the innocence or the guilt of the accused. And, more: if in the course of your inquiries you have reason to believe that there is other evidence, not presented to you, within your reach which would qualify or explain away the charge under investigation, it will be your duty to order such evidence to be produced. Formerly, it was held that an indictment might be found if probable evidence was produced in support of the charge. But a different and more merciful rule now prevails. To justify the finding of an indictment, you must be convinced, so far as the evidence before you goes, that the accused is guilty; in other words, you ought not to find an indictment unless, in your judgment, the evidence before you, unexplained and uncontradicted, would warrant a conviction by a petit jury.*

The District Attorney has informed the Court that parties will be accused before you of offenses of the highest and gravest character; some of treason against the United States; some of enticing soldiers in the army of the United States to desert, and one of murder on the high seas. Upon the first of these offenses, the Court will proceed to give you some brief instructions.

Treason is defined by the Constitution of the United States. That instrument declares that "treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." The Constitution also provides that "the Congress shall have power to declare the punishment of treason." In 1790, in pursuance of the authority thus conferred, Congress passed an Act, of which the following is the first section: "If any person, or persons, owing allegiance to the United States of America, shall levy war against them, or shall adhere to their enemies, giving them aid and comfort within the United States or elsewhere, and shall be thereof convicted, on confession in open Court, or on the testimony of two witnesses to the same overt act of the treason whereof he or they shall stand indicted, such person or persons shall be adjudged guilty of treason against the United States, and shall suffer death." On the sevteenth of July, 1862, Congress passed another Act declaring that the punishment of treason, subsequently committed, shall be death, or fine and imprisonment, at the discretion of the Court,

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* 1 Chitty's Crim. Law, 318.

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and that the slaves of the party convicted, if any he have, shall be freed.

The Constitution, as you perceive, simply defines the crime of treason. The Act of 1790, in addition to declaring the punishment, also designates the persons by whom the crime may be committed;" by any person or persons," it says, "owing allegiance to the United States." These terms neither enlarge nor restrict the sense of the provision, for treason can only be committed against the United States by those who owe allegiance to them. By allegiance is meant that fidelity and obedience which the individual owes to the Government in return for the protection which he receives. It may be absolute and permanent, or it may be qualified and temporary. The citizen owes allegiance permanently, or at least until, by some open and distinct act, he renounces it, and becomes a citizen or subject of another Government. The alien, whilst a resident within the United States, owes a qualified and temporary allegiance.* Enjoying the protection of the Government, he is bound by its laws during the period of his sojourn in the country. The Acts of Congress include all persons who owe any allegiance, whether it be of an absolute and permanent character, or of a qualified and temporary one. They embrace resident aliens as well as citizens.†

The words "levying war" in the Constitution are not restricted to the act of making war for the entire overthrow of the Government, but embrace any combination to prevent, or oppose by force, the execution of a provision, either of the Constitution of the

* United States v. Wietberger (5 Wheat. 97. )

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+ East divides allegiance into natural and local. "Natural allegiance," he says, "is that which is due from every man who is born a member of the society. His birth in the State entitles him to peculiar privileges, which are with great propriety called his birthright; and this being indefeasible, the allegiance arising out of it is equally unalienable; it is due from him at all times and in all places." "Local allegiance is that which is due from a foreigner during his residence here; and is founded in the protection he enjoys for his own person, his family, and effects, during the time of that residence. This allegiance ceases whenever he withdraws with his family and effects; for his temporary protection being then at an end, the duty arising from it also determines. But if he only go abroad himself, leaving his family and effects here under the same protection, the duty still continues; and if he commit treason, he may be punished as a traitor; and this whether his own sovereign be at enmity or at peace with ours. Therefore, if he aid even his own countrymen in acts or purposes of hostility, while he is resident here, he may be dealt with in the same manner." (1 Pleas of the Crown, 50 and 52.)

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