Daily union and American. [volume] (Nashville, Tenn.) 1865-1866, 1866-05-23
NOVEL VIEWS FROM THE BENCH.

JUDGE SWANS CHARGE TO THE JURY
NOVEE VIEWS FROM THE BENCH.
State Of TENNESSEE Preseutment for treason in
versus the Circuit Court Of Jetier-
DeWitC. WilliamsJ son Co., April term, 1856.
PREsENTMENT.
FIRST Charges the defendant with
levying war against the State of Tennessee.
SECOND COUNT-Charges the defendant
with having enlisted in the army Of the so
called Southern COnfederacy for the pur-
pose Of carrying on said war against the
State.
THIRD CoUNT-Charges that a war was
wrongfully levied against the United States
and TO overthrow the Government thereof,
and the State Of Tennessee.
CHARGE TO THE JURY.
Treason is a crime committed by acts in
attempting TO overthrow or alter the Gov
ernment of the people. 1t is a crime which
strikes at the sovereign power in a State
So far as treason affects the United States, il
j. limited by the Constitution thereof, and
Congress can only declare the punishment
10 be inflicted therefor. The Constitution Of
the United States declares that treason
against the United States shall consist only
IN leyying war against them, or in adhering to
their enemies, giving them aid and comfort"
So far as treason against the United States
j. concerned, the State Courts have nothing
TO do herewith; but this ofense against the
United States Is only punishable in the cir
cults Of the United States, or in such courts
thereof as have the power to punish this Of
fcnse conferred upon them by Congress.
At the formation of the Government Of the
United States the people Of each State gave
up 10 the United States all of the powers in
the Constitution thereof contained; and the
States have no right or power, in any shape
or form. to interfere with any Of the powers,
rights or privileges contained in the great
charter Of our General Government Thus
far, the absolute supreme power rests in the
United States Government, and the States
have no more right or power to control or
interfere with such absolute supreme power
than If such power had never existed
The United States has the implied power
10 carry into effect all the provisions of the
Constitution thereof, although not specific
ally named Hence, with the powers, rights
and privileges conferred by the Constitution
of the United States, and the power implied
% carry into effect all of the provisions Of
the Constitution, the absolute supreme
power of the United States ends, and the
sovereign power Of the States composing the
United States commences; all Of the rights,
powers and privileges not given up TO the
United States in the COnstsiutIOn thereof,
aud which are not necessary 10 carry any
aud all of its provisions into effect, are ex
prcssly reserved 10 the States and thus far,
and no farther, have the States sovereign
power They are 10 this extent sovereign,
but no further Ia the exercise of these
powers, the United States Government has
no right or power TO interfere. Then, as
each State has a sovereign power thus far,
power and q right is reserved in each State
10 punish the crime Of treason against a
State, according 10 the Constitution and
laws of each State.
In pursuance 10 this power, the State Of
Tennessee has bv an act Of the Legislature
declared in what treason against the State
shall consist, and the following is the law
contained in such act Every person in
habiting or residing, or voluntarily coming
10 inhabit or reside within the limits Of
Tennessee owes and shall pay allegiance 10
the Government thereof Treason against
the State consists in the following acts COM
mitted by any person residing within the
State and under the protection OF its laws:
lst. Taking commission from or under
the authority of the enemies of the State, or
Of the United States.
ID Lcvying war against the State or the
Government thereof
Sd. Knowingly and willingly aiding or
assisting any enemies at open war against
the State or the United States, by joining
L.. ..,,lilfipfr nr rnrarpt ptr
others 20 enlist for that purpose by furnish.
ing such enemies with arms, ammunition,
provisions, or any other article for their aid
or comfort.
lth Forming, or being in anywise con-
ccrncd in forming any combination, plot or
conspiracy for bctraying the State or the
United States into The hands of a foreign
enemy.
9TH. Giving or sending any intelligence TO
the enemies of the State for that purpose,
The punishment for this oilense, on convic-
ton by the evidence Of two witnesses, or by
confession in open court, is confinement in
the penitentiary for period Of time not less
than ten years, nor more than twenty years,
In order 10 make out the ofiense, the ac-
cused must owe and bear allegiance 10 the
State of Tennessee and every person IN
habiting or residing, or voluntarily coming
TO inhabit or reside within the limits of the
State Of Tennessee, owes and has TO pay al
legiance To the State of Tennessee by the
laws of said State, and is subjected by the
law 10 the punishment annexed 20 the crime
of treason The defendant by the proof
must be shown 20 have been residing, or that
he had voluntarily come TO reside, within
the limita of the State Of Tennessee, before
and at the time Of the commission Of the
ntlense charged in the prcsentment Ia thi'
cause. before he could be made the subject OF
a conviction for treason.
The first count in this presentment charges
the defendent with having levied war agains
the State Of Tennessee, To make out this
ofensc there must be, lst, n leyying Of war
ID, a leyying of war against the Stale ana
3d. q levying Of war against the state, ano
within her territory, and within the county
Of Jefferson.
To constitute levying of war, there must
he an actual assembling of men for the
reasonable purposes. Whenever men are
assembled armed and arrayed In warllke
manner for reasonable purpose, the otiensC
Of levying war is complete without coming
IA an aDgagcment. There need be no battle
fought. The court and jury can take judi
c;ai notice of the history Of the late war,
and whether the object Of the rebels was {,
change the constitutional attitude of tn,
State of Tennessee in the United States, anc
10 place her. by force of arms, IN the Gov
ernmont attempted 10 be set up, called th'
Confederate States Of America. The 10y
crnment of the United States had Consu
utional right 90 have aud 20 retain the Nlal
of Tennessee in the Federal Union, an'
neither the State Of Tennessee, nor the peo
ple of Tennessee, had any right or power e
saparate the State from the Government @
tbe United States nor 10 attempt TO assum,
placc i'm the Government attempted TO b
set up. called the Confederate States 0
America. Then, if the defendant was en-
raged in levving war in the State of Ten
n,.ssec and in the county of J eilerson, agains
the United States, on behalf the so-calle'
confederate States, and one object of tn
war was 10 change the attitude OF tennessee
be would be guilty by such act of two OF
fenses-the one, treason against the Onlte
States. the other, treason against the State {
Tepncssce-and the State of Tennessee woul
have a right to punish the defendant for tn
ofensc committed against her. The two OF
Cepses are completed by the same treasonahl
act Ry such levying of war the consttu
tiopal attitude of Tennessee would /
changed. not Of right, hut 10y force OF arm
and here bv the law of Tennessee such a
IL, tr.ason although the same n,