Daily union and American. [volume] (Nashville, Tenn.) 1865-1866, 1866-09-20

The argument and Decision.
The state Courts IIave:no .Ilrisdietsou
STATE OF TkxxEssrr
ERASMUS L.. GARDESHRE Treason.
and srErHEs II. CoLNs- III rIr-
ARGUMENT OF TIIOs. B. MURREY, OF COIN
Sell FOR DEFENDANTS.
This cause comes here upon a writ Of ha
6eds corpus 70 relieve the defendants from al
illegal arrest, under cqpias issued from the
Office OF the Circuit Court, by the Clerk o.
Cumberland county. The foundation fol
the issue Of the capids is an indictment fol
treason, against the State Of Tennessee.
This Court will not underrate the impor
lance Of the question involved in this prose-
cution, when it reflects upon the heinous
character ascribed 20 the crime by the laws
OF all nations. While our own legislation
has shown great humanity in afiixing the
punishment 10 the crime, yet at no very
ancient date, by the laws Of England, as we
learn from Mr.. BLACKSTONE, the most cruel
punishment was inflicted on persons convict
ell Of this crime. LIST. The offender be
drawn TO the gallows, and not permitted TO
walk. ID. That he be hanged by the neck
and cut down alive. Sd. That his entrails
be taken out and burned while he is vet
alive. 4th. That his head be cut of. 5th
That his body be divided into four quarters.
and be at the Kings disposal. We fear
now, may i please the Court, that there are
refined crueltics Of the common law on the
subject Of treason revived, and made appli-
cable 10 treason in our days nav, who
would revel with delight in there-enactment
OF the bloody assizes Of J EFFRIEs in our own
country. We do learn that there are Judges
ia our own time who have added 10 the re.
fined cruelties Of the common law, by pro-
posing 10 cruelty rebels with their heads
down.
We ask the discharge Of the defendants
from further answering the charges preferred
against them, upon two grounds.
lst. The crime charged in the Indictment.
II true, would be treason against the United
States, and therefore not punishable by
State Court
ID. The facts do not make out case o
guilt on the part Of the defendants. The in
<
We, however, waive any objection 20 IL. for
the sake Of trial upon the merits.
The first count in the indictment charges
the defendant, in connection with thirty
Others, Of levying war against the State Of
Tennessee. The other counts in the indict-
ment charge him with aiding and assisting
in leVying war against the State by furnish
ing men, arms, provisions. etc. Therefore
the argument that applies 10 the question Of
law, arising under the first count, is equally
applicable 10 all the other counts. In the
case Of the people of the State Of New
York "a. LYNCH, the Court says We think
the jurisdiction Of the State Courts does not
extend 10 treason against the United States.
The Judicial power Of the United States ex-
tends 20 all cases arising under the Consti-
tuition and laws Of the United States.--lI
JoHNsos's Reports, 553
Suppose we admit, for the sake Of argu-
ment, the reverse Of this proposition, and
that the Courts OF the States and the United
States have concurrent jurisdiction over the
crime Of treason against the United States.
Whenever a citizen committed an act that
amounted 10 treason against the States,
or the United States, then the Courts Of both
powers would have power 10 punish him, in
violation Of that salutary principle in our
Constitution, which provides that no citizen
shall be put twice in jeopardy for the same
oliense. Where the ofiense amounts 10
treason, both against the State and the
United States, IL the State Court takes cog
nizance Of the oflense and brings the offender
90 punishment can he plead that conviction
in bar Of the prosecution OF the United
States2 Certainly not Both Courts may
desire 10 try the offender, on the same day;
who is 10 decide which has the right? 1t is
manifest that this doctrine is in conflict with
the harmonious working Of our system Of
and cannot be maintained either
upon principle or by authority. When
once admitted, a thousand conflicts spring up
al once between these Jurisdictions, between |
which there is no common arbiter. The |
language Of the Constitution comforting up |
IN Congress power 10 establish uniform
rule of naturalization, is the same as that |
used in comforting upon Congress the power
to declare the punishment of treason.
Congress shall have power 10 establish
uniform rule Of naturalization"
Congress shall have power TO declare the
punishment Of treason"
Mr.. Justice SToRY says, in reference 10
the power conferred upon the subject Of
at follows, from the very
nature of the power, 10 be useful, il must be
exclusive; for n concurrent power in the
States would bring back all the evils and
which the uniform rule Of
the Constitution was intended 20 remedy. |
And accordingly, though there was mo-
mentary hesitation, when the Constitution
first went into operation, whether the power
might not stiB be exercised by States, sHbiec: |
only 10 the control Of Congress, so Car rs the |
legislation of the latter extended, as the SUI |
preme law; yet the power is now firmly |
20 be exclusive. - STORY on |
Con-, sec ll0I.
This text is supported by numerous de-
risions Of the Supreme Court Of the United /
WHEATON, 80, 269. WHEATON, |
As, "a. ~ WHEATON, 277.
We are not left to support our position,
on this point by the analogies Of the two
powers conferred by the Constitution. The
at Of Congress establishing the Judicial
Courts Of the United States, gives 30 the
Circuit Courts cognizauce exclusive Of the
Courts of the several States, Of all crimes
and ofenses cognizable under the authority
Of the United States, except when the laws
Df the United States shall otherwise pro-
vide. See Act I, Session l, LIST Congress,
Chapter 20 Section 1.
Mr.. STORY says, that 'The power TO pun
sh the crime OF treason, against the United
States, is exclusively in Congress; and the
rial Of the oilense belongs exclusively 90
he tribunals appointed by them. A State
cannot take cognizance, or punish the Of
tense, whatever il may do in relation 10 the
ollense Of treason committed exclusively
against itself il indeed any case can, under
the Constitution, exist which is not at the
same time treason againstthe United States"
We are then sustained both by reason and
authority, in the assumption that when the
act charged is treason against the State, aud
the United States, the Courts OF the United
States have exclusive jurisdiction of the
oilense.
Is levying war against State treason 20
the United States This inquiry may be
solved hy answering the question, is levying
war against a single State Of the Union--as
Massachusetts, or New Nork-levying war
against the United States? IL England or
France should declare and prosecute a war
against the State of New York, by invading
her territories, blockading her ports, and
hosieging her cities, wouldthis bewar against
the United States, or against the State Of
New York only IL against New York
only. then the Government Of the United
States, and the Government Of al the other
States would, under the laws of nations be
bound to respect the laws Of neutrality e.
iahlised for the government OF nations II
this be true, foreign nations might subiugate
State by State. while the hands Of the Uni