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Doc. 153. the law of treason.

Charge of Judge Haliburton to the grand jury of the Confederate District Court, at Richmond, on the 12TH Nov., 1861.

gentlemen of the grand jury: The thirteenth clause of the seventh section of the first article of the Provisional Constitution of the Confederate States, in pursuance of which you are now assembled, declared, in the exact words of the Constitution of the United States, that “no person shall be held to answer for a capital or otherwise infamous crime, unless on the presentment of the Grand Jury, except in cases arising in the land or naval forces, or in the militia when in service in time of war or public danger.” The only authority possessed by the courts of the Confederate States to take cognizance of any offence is bestowed by the Constitution of the Confederate States, and acts of Congress made in pursuance of powers therein granted. You have, therefore, no such general authority to inquire into offences against the laws of the State, or against good morals or good order, as is possessed by Grand Juries in the State Courts. You have, in general, to deal only with those crimes and misdemeanors which are declared to be such by the Constitution or laws of the Confederate States, or by the statutes or laws of a State of the United States, which were adopted by the Congress of the Confederate States. The thirty-seventh section of the act passed by the Congress of the Confederate States, and approved on the 16th of March, 1861, provides that “the laws of the United States in regard to certain crimes and offences” shall “be in force until otherwise provided by law of Congress.” Thus, the criminal laws of the United States, having been expressly adopted by Congress, became laws of the Confederate States--that is to say, those laws of the United States which were passed before the act aforesaid. Under these laws of the United States and the criminal laws of the Confederate States, you may inquire into and present a great number of different offences, a few of which I will mention — murder, manslaughter on the high seas, or in the bays or rivers where the tide ebbs and flows, committed on board of ships or other vessels belonging to the Confederacy; mutiny or revolt committed on board of such vessels; cruelty to seamen; stealing or taking letters from the mails or post-office; and counterfeiting and forgery of various kinds, fall under your cognizance. To forge the treasury notes of the Confederate States has been deemed by Congress a crime so high in its character and so extremely mischievous in its consequences, that it was thought necessary to make it punishable with death. Even to pass, utter, or publish as true, any forged Treasury note, knowing it to be forged, is punishable in the same way. Treason is another offence to which I will call your attention. By the third section of the third article of the Constitution of the Confederate States--which is copied, with the substitution of the word “Confederate” for the word “United,” from the Constitution of the United States--“Treason against the Confederate States shall consist only in levying war against them or in adhering to their enemies, giving them aid and comfort,” and “no person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.” To adhere to the enemies of the Confederate States, giving them aid and comfort in any way in carrying on war against us, is therefore, as you see, as much treason as to be actually engaged in the war. The Constitution declares [365] that “Congress shall make no law abridging the freedom of speech or of the press,” and mere words, whether written or spoken, can never amount to treason, unless they are intended to give, or do give in some way, aid to the enemy in carrying on the war. To give to the enemy information as to the number of our troops, or the position or movements of our army, or any other information which would be of service to him in the conduct of the war, would be treason. To trade with the enemy, too, may be treasonable. Such traffic, if not always treason, is generally a high misdemeanor, at least it subjects the party engaged in it to a forfeiture of the vessel and cargo, or other property that may be employed in it, unless it is carried on with the consent of the Government. This seems to be a principle of universal law, and not peculiar to the jurisprudence of any one country. So inflexible is the rule that in a case where a citizen of the United States has purchased a quantity of British goods within the British territory a long time previous to the declaration of hostilities, and had deposited them in an island near the frontier, a vessel hired by him to bring away the goods was captured, with the cargo, and condemned as a prize of war by the United States Courts. To send to the enemy munitions of war or provisions, or supplies of any kind, which would enable him to carry on the war more effectually, would be an act of treason. “All contracts with the enemy,” says Phillimon, are null and void; even the insurance of an enemy's property is illegal, upon the ground of its being a species of intercourse with the enemy; for the same reason bills of exchange made by the subject of one belligerent upon the subject of the other belligerent are illegal and void. The remission of funds in money or bills to subjects of the enemy, the purchase of bills or the deposit of funds in the enemy's country, are unlawful, because they tend to improve the resources and strengthen the hands of the enemy. In fine, every communication with the State, however circuitous, is prohibited, unless it be sanctioned by the special authority of the Government.

As to the persons who may be guilty of treason, they are not merely the native inhabitants, nor even the citizens of a country. Strangers and foreigners who have their domicile there may incur the guilt of treason against the country in which they dwell, by committing such acts as would be treason in a citizen or subject of this country. “An alien,” says Foster, “whose sovereignty is in amity with the Crown of England, residing here, and receiving the protection of the law, oweth a large allegiance to the Crown during the time of his residence; and if during the time he committeth an offence which in the case of a natural born subject would amount to treason, he may be dealt with as a traitor. For his person and personal estate are as much under the protection of the law as the natural born subject's; and if he is injured in either he bath the same remedy by law for such injury.” “Any one,” continues the same author, “whose sovereign is at enmity with us, living here under the King's protection, and committing offences amounting to treason, may likewise be dealt with as a traitor; for he oweth a temporary local allegiance, founded on that share of protection he receiveth.” These observations of Foster are sound law, and supported by sound reasoning. A foreigner who resides here, and who seeks to receive the benefit and protection of our Government and laws, ought to be punished as a traitor, if he betrays the Government which confides and protects him. An act was passed by the Congress of the Confederate States, in August last, and approved by the President on the 30th of that month, which I am required to give you specially in charge. It is entitled--(here the Judge read the preamble and first four sections of the sequestration act, in the third volume of Acts of Congress, page 57.) The sections of the act which I have thought it proper to read to you require very little comment. It is only proper to say a word or two to you in reference to alien enemies. The very learned and highly distinguished gentleman who is at the head of the Department of Justice here, the Attorney-General of the Confederate States, has given a very accurate definition of the phrase alien enemies, as used in the act, in these words: The following persons are subject to the operation of the law as alien enemies:

1. All citizens of the United States except citizens of Delaware, Maryland, Kentucky or Missouri, or the District of Columbia, or the Territories of New Mexico, Arizona, or the Indian Territory south of Kansas.

2. All persons who have a domicile within the States with which this Government is at war, no matter whether they be citizens or not. Thus, the subjects of Great Britain, France, or other neutral nations, who have a domicil or are carrying on business or traffic within the States at war with the Confederacy, are alien enemies under the law.

3. All such citizens or residents of the States of Delaware, Maryland, Kentucky or Missouri, and the Territories of New Mexico, Arizona, and the Indian Territory south of Kansas, and of the District of Columbia, as shall commit actual hostilities against the Confederate States, or aid or abet the United states in the existing war against the Confederate States. Having explained to you the meaning of the term alien enemies, I do not deem it necessary to add anything more in relation to the act. As to time testimony upon which a presentment may be made or an indictment formed, you should be satisfied by it, so far as it goes, that the charges contained in the indictment are true — that is to say, the evidence should be sufficient to create a belief that the statements in presentment of indictment are true, upon the supposition that there is no further evidence behind to contradict or rebut it. You should decide the case upon [366] the evidence before you, as if that were all the testimony on either side; and when we remember that evidence is sent to you on the part of the prosecution alone, it is not going too far to say that the evidence ought to be such as would, if standing alone, be sufficient to warrant a belief that the party accused is guilty. The third section of the constitution provides, as you have already heard, that “no person shall be convicted of treason unless on the testimony of two witnesses to the same overt act; or on confession in open court.” But although two witnesses are necessary in such a case to justify a conviction, only one is necessary to the finding of an indimetent. In all cases of treason, however, as in every other case, the evidence before you must be legal evidence, and such as would be allowed to go to a petty or traverse jury. A grand jury can no more listen to hearsay, or other illegal or unimportant testimony, than a petty jury can. If you should desire further information, gentlemen, on any point of law, the Court will give it to you with pleasure. I thank you for attending punctually. You will now retire, if you please, to consider of such matters as may be brought before you.

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