Western Reserve chronicle. [volume] (Warren, Ohio) 1855-1921, 1867-06-05

BILE under the second section of the act
of 1862.
"It is the duly of courts to give effect
to the legislative intent, and it is con-
ceded that the opinion of Senators
when the second section of the act of
1862 was under consideration was
"That the commission of the acts
which it designates, might under some
circumstances constitute an offence less
than treason"
"I am equally well aware that the
legislative intent, when it is palpably
manifest from the letter, spirit and
general purpose of the statute, cannot
be controlled by evidence aliEHds, either
from the debates or otherwise.
"But inasmuch as every case of trea-
son was made punishable by the act of
1870, and by section one of the act of
July, 1862, without subtraction or dimi
mutton, it would seem to me that it is
unreasonable to suppose that section
two of the latter act covered any case
of treason, and this section should
therefore be construed as applicable
only to Offences less than treason" as
the Senators enacting it declared.
must be permitted to say, with the
most profound respect for and defer
ence to the opinion of justice so dis
tinguIshed, that it seams to me much
more reasonable to hold that whatever
the act of engaging in rebellion"
amounts to "treason" it is punishable
as treason, rather than to hold, as the
distinguished Justice Field has done,
that if admitted treason" consists in
engaging in rebellion" it can only be
held criminal as rebellion.
at is the duty of the court, by q
well, known rule of Interpretation, to
give effect to all parts of statute; but
in doinnsthis there is no reason why
treason" should be merged and lost
in the less crime of rebellion than that
rebellion, when it consists of admitted
treason, should not be held and pun
ished as treason.
'And if the same criminal acts palpa-
bly, constitute both ''treason" and re
bellion" the Government may have an
election of remedies; the right to prose-
cute for either according to the charac-
ter, position and legal and moral crimi-
nality of the offender, and the necessi-
ties of the case. The law making pow
er may prescribe cumulative punish
ments, giving the Government an
election to pursue some one of them.'
The most philosophical and learned
writer on American criminal law asserts
on high authority that
''If new statute creates an offense
with aggravations not embraced in the
old law, and creates higher penalty,
or omits some aggravatIng quality and
provides lower penalty, or if it is ap-
plicable to a particular class only Of
persons who owe particular duties IN
the matter, the new punishment does
not supersede the old. ."-1 Bishop, Grim
iaaL Lat0, SO, 208.
And again he says:
There may be several concurrent
remedies of different nature for one
offense, carrying with them their re.
spective penalties, and each may stand,
penalty and all, without conflicting
with the others."-1 Bishop, Criminal
Lalv, 81.
But the fact that q justice of the Su-
preme Court has made the ruling to
which refer should admonish Us that
it is possible, if not probable, as the
Supreme Court is constituted, that the
greatest of all great criminals now will
be held only subject to fine and impris-
onment. For this reason we should
restore the right of prosecution for
overt acts of treason committed prior
to July II, 1862, SO that adequate pun
ishment may be inflicted on the chief
conspirstors Of the great rebellion
The constitutional power to restore the
right of prosecution after it is barred l
regard as entirely clear.
1t my be proper to remark at the
second section of the act of Congress
of July II, 1852, was inserted not to dis
ps1lSs a0ith the punishment for treason, but
for very different reason.
The Constitution provides that
Treason against the United States
shal consist only in leyying war against
them or in adheFing to their ENEMIES (;
giving them aid and comfort. art. 3,
Sec. 8.
Judge Swayne, one Of the sblest
judges. who ever adorned any bench,
decided, early in 1862, in accordance
with the English precedents, that '.ad-
herring to the REBELS, giving them aid
and comfort, was not treason; that the
word enemy meant foreign enemy"
To meet this decision-that is, to
make it a crime to adhere to the Teb-
els or give them aid or comfort"-the
second Section of the act Of July II,
1862, was inserted. From all this it
NAV seen how ahsuTd Ia the Fulin0 of
Judge Field. One of the ablest law
authors in the country has expressed
his dissent from this ruling of Judge
Field. If the L1l0 shall be faithfully
executed and administered, a few of
the great traitors will yet suffer
the penalty of their crimes. Lex.