Daily State sentinel. [volume] (Indianapolis, Ind.) 1861-1865, 1862-05-12

trils OF the people.
The Law of Treason Opinion Of Judge
>wayne Of OHIO, upon an Question of
Constitutional Law.
The public has already been apprsed by the
telegraphc dispatches in the Sentinel, that Judge
SwAYSE, recently appointed to fiji Judge Nc
LEASs seat in the United States Circuit Court,
has given opinion of considerable interest just
now in relation to the law OF treason We find
the opinion published at length in the Cincinnati
Enquirer.
james W. Chenoweth was indicted for treason
by the grand jury, in giving aid and comfort to
the enemy. etc. and indictments were also found
against Thomas Is Lincoln aud John a Skiff
charged with similar Oflenses Az the present
term Of the Circuit Court, Justice Swayne aud
Judge Lelvtt the bench. motion was made
by Hon George T.. Pugh. in an able argument
10 quaSh the indictment. upon the ground that
the first clause of section three article three of
the Constitution. which provides that Treason
against the United States shall; consist only in
levyIng against them, refers TO rebellOn
while the second clause ''or in adhereing To their
enemies in giving aid and comfort, relates To
public war with a foreign enemy. The learned
counsel cited numerous authorities in support at
his proposition. The court took the motion
der advisement. and yesterday morning Judge
Swayne delivered the following opinion:
CIRCUIT COURT or THE UNITED STATES, SOUTHERN
DISTRICT OF OHIO.
The United States ". james W. Chenoweth-
Indictment of Treason-Motion to quash the
Indictment.
SwAYNE JUsrIcE-The indictment contains two
counts. As they are Identical regards the
question he decided. the first count only
VII be particularly adverted to.
That count charges. substantially, that there is
in progress instruction aud war against the
Government OF the United States by persons
styling themselves 1.-the Confederate States OF
America" that the defendant. residing within
and owing allegiance TO the Unite States, well
knowing the premises, but not regarding the duty
OF his allegiance and conspring and intending
To aid and assist the persons styling themselves as
aforesaid. during said Instruction and war, to-
wit: on the 10Th day of June, lc6l, and on divers
other days, before and after that dly at the city
of Cincinnati, IN the Southern District Of Ohio.
did traitorously adhere to the persons styling
themselves "a aforesaid, then and vet being enc
mics of the United States; and that. in the pros
ecutiOn OF his traltOrOus adhering aforesaid, he
did procure certain supplies aud munitions of war,
to-wt: 30 Colts navy revolving pistols, 10 five
inch revolving pistols. and 30 pistols, OF one
Samuel Dreyio and from divers other persons
unknown, with intent traitorously TO denver 90
the persons STYLING themselves aforesaid said
supplies and munitions of war; and that, in fur
ther prosecution of his tratorous adhering afore
said. be did, on the days and at the places afure
said. deliver To the said persons styling them
selves aforesaid the said supplies and munitions
OF war, for the aid, comfort, aud use of said per
sons in the prosecution OF their said Instruction
and war against the United Suites
The Constitution of the United States. article
3, section 3. provides that treason against the
United States shall consist only in levyins war
against them, or ~ sdhering to their enemies
giving them aid and comfort"
The act OF Congress of April 30, 1890, section
/, is as follows:
IF any person persons owing allegiance to
the United States OF America shall levy war
against them, or shall adhere to their enemies
giving To them aid ami comfort within the United
States elsewhere. aud shall be thereof convict
Ell. &C. they ''shall suffer death"
This Indictment is framed under the second
provision of this section OF the statute. That
provision relates exclusively to adherIng To the
enemies of the United States. and giving them
aid and comfort. The prior provision relates 10
levying WAR against the United States. IL has no
connection with the question involved in this mo
ton. and need not be further adverted to.
The second provision Is literal translation
mHfafiS mHfa Rdis-from the Norman French. Of
the provision upon the same subject in the Eng
lish statute Of the 25th Edward the Third t. On
soft adherent a. enemies nostre. SEYMOUR lie roy, u
rux a eux donant acid ct comfort en- sou rolalme
ct alors
In support of the motion to qutsh. it is claim
Ell that the prOyi ION ia ihe English statute. cor
responding to the provision in our statute, upon
which this Indictment i founded. has ALWAYS been
held bv the English courts to apply only 10 thoSe
IA
sRernleS and that il has no application % those
who commit the like acts in respect OF domestic
traitors, engaged in in>urrection or rebellion
against their own Government
The following authorities are relied upOn in
support OF this proposition: Coke'S lust. il
] Haes T. c. 35y. Fosters C. l. ch DIS. sec.
-: Chittys Or. L., o.; 4 81 Com, %, Dsue' :
All go
We have carefully examined these authorities
They sustain fully The proposition they have been
cited 10 support.
liz i further claimed by the counsel for the de-
iendant that this provision OF the English statute
having been thus adopted. il must be held that
the construction given toit by the English courts
prior 10 is adoption was adopted with IT,
The principle which underiieS this proposition
j. so veil settled ~ 10 hardly require the support
OF argument or authority
In Hillhouse ". Chester. 3 Day 2ll the Court
say.
1t Is sound rule that whenever our leCsla-
ture Use \ term without defining il which y veil
known in the English law, and there has a de6n-
tie. appropriate meaning attached 20 il. they
must be supposed to use il in the sense in which
il j. understood ia the English law
This j. IN accordance with all the authorities
on the subject.
The authorities which establish the construc
ton eontendei for by the defendants counsel
also lay down the proposition that the same facts
which make a case within the statute Of adhering
and giving aid and comfort 10 foreign enemies.
.rscn done in respect of insurgents and rebels.
make the offender guilty OF the crime OF levying
Aar against the government. AID liable 10 be
punished under the other provision OF the statute
for that oiense. b. Com 81
The question presented by this motion permits
OF no doubt as u It's proper solution.
We cit here u administer the Law. not to
make IL
fsk a., 80 II 81. -. A.