New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1861-05-07


"the words 'leying war include not only the
"act of leyying war for the purpose OF en-
"tirely Overturning the Government. but also
I" any combination forcibly to oppose the execu-
+" ton of any public law Of the United States, II
accompanied or followed by an act of forcible
" opposition to such law, in pursuance Of such
combination" There must be an overt or open
act to constitute treason for treason cannot rest in
mere criminal intention But manifestation of that
Intention is treason, even though the act contem.
plated be not consummated. And so whoever
advises, orders, or procures On overt act to be
committed by Others which is committed, is
guilty of treason as a principal, there being no
such thing as an accessory in treason.
The clause of the Constitution which relates
to "adhering to enemies, giving them aid and
comfort" is not so well understood as that
relating to levying war. We see, however, no
candid way Of avoiding the Interpretation given
to these words in the English books. Blackstone
says: "by enemies are here understood the SUBJ
Elects of foreign powers with whom we are at
open war" And again: " for the statute is
taken strictly and rebel is not On enemy, an
enemy being always the subject of some foreign
"priuce, and one who owes no allegiance to the
"Crown of England" In the present great re-
belllon therefore, the only clause of the Consti-
tuition having reference to treason lie that relating
to the levyiDg of war, and if traitors cannot be
reached under that description they cannot be
reached at all, as such. AS, however the En-
gsh law governs in forcing upon US this construc-
tion it equally governs in giving force and effect
to the words "leyying wal" and traitors herea-
bout if such there be, will do well to consult
the English authorities before they imagine they
can give the enemy aid and comfort with impu-
nifty. If Blackstone gets them out Of the frying
pan, he helps them completely into the fire when
he says that "most indisputaby the same acts
"of adherence and aid which (when applied to
" foreign enemies) will constitute treason under
I" this head of the statute will, when applied to
" our own felloS-subects in actual rebellion at
" home, amount to high treason under the de-
e" scription of lcvying war against the King"
Now, We have only to inquire what acts con-
stitute adhering to foreign enemies, giving them
aid and comfort, and we shall know what acts
make constructive levying of war BY domestic
traitors TIE publishing Of seditious writings
is mentioned by Bishop and Wharton as an overt
act of treason, giving aid and comfort Sending
letter containing intelligence TO the enemy,
even if intercepted; attempting, even unsuccess-
fully, to carry HIM provisions, arms, money or
other material aid are acts Of treason. In short,
giving aid and comfort to an enemy includes a.
most every act which is beneficial TO him, or 10
intended to be so; aud all those acts which, with
respect to a foreign enemy, are punishable under
the 4" aid.and comfort" clause, are in the case Of
aid given TO q rebel, so many acts Of "leyyng
"war." And the probable reason Of this dis-
tnciOn by the English law is. that the term levy.
Z" ing war" when the act Of Edward Ill. was
passed. had reference to war between the King
and his vassals, aud consequently ali kind. Of
domestic treason were embraced under that de-
scrption.
How far bare words can be punished as treason
able is not entirely settled 1t may, however, be
assumed that words not followed by an overt act
or melting thereto are not punishable as treason
but that, when leading to such an act, they are
so punishable. In times OF war the Court of
Judge Lynch, like the Temple Of Janus, is
Away open and that eminent magistrate gener-
ally Furnishes in summary manner any undue
indulgence ia seditous talk. Distance from the
scene Of action is no bar to an indictment for
treason. Plotting, planning, melting, command
ing and procuring acts Of treason can as readily
be done at a distance as in the place where the
overt act is committed and man in New York,
who foments and abets treason in Louisiana, will
find the cord as sure here as if he were arrested
there.
The Constitution provides that Congress
Z" shall have power to declare the punishment of
treason, but 10 attander Of treason shall
" work corruption of blood or forfeiture, except
L" during the life of the person attainted." This
provision is Of no practical Importance as the
law Row stands. The Crimes act of 1890 pro-
vides that conviction Of treason " shall not
"work corruption of blood, or any forfeiture of
I" estate" 1t seems to us, however, that Con-
gress has power to pass law con6scsting absO-
lutely the estates Of rebels. The Constitution in
express words leaves the punishment Of treason
to Congress- aud the punishment provided for all
kinds Of treason by the act of 1890 is DEATH
There can be no doubt that fines and cOnfsca
ton might be Constitutionaly added. 1t is the
opinion Of some that the fee of land cannot be
conf seated for treason, but only the life estate
Our own opinion is that while the attainder Of
itself cannot work a paramount forfeiture, al
act Of Congress can effect it.