Year: 1861

of civil and political organization. But as an
abuse of that power may be destructive of liber-
ty. it is essential that it should be determinate
in its character, that no excitement, passion or
popular rage can pervert il to the ends of tyran
nv. faction or frenzy. Properly considered, it is
power of self-protection, lodged in the Govern
ment to enable it 10 preserve its legitimate func-
tions against all lawless violence force, directed
to their subversion or overthrow Legitmately
used, it can never be an instrument of ambition,
malice faction; nor can it strip a citizen or
community of any privilege guaranteed by the
fundamental laws of the land. 1t ought not to
absorb or overthrow rights declared invioable;
nor remain dormant when those rights, as invOly
ed in the existence of the Government, are
threatened with overthrow by the subversion of
the Government itself.


1t would serve to confuse rather than to assist
you, if an elaborate analysis were given of the
nice distinctions upon which the classification of
the different treasons, under different circum-
stances, may depend 1t will suffice to state that
the crime is committed whenever against the
United States by those owing allegiance thereto
is raised, created, made or carried on; or when,
during war, they adhere to the enemy, giving
him aid and comfort.


"The terms 'levying war embrace not merely
the act of formal or declared war, but any com
binaton in military array forcibl to prevent the
execution of a provision either of the United
States Constitution or a United States statute. or
forcibly to subyert the United States Government
or any department thereof; or by force to procure
The repeal alteration of the Constitution or
laws; if such combination be accompanied or fol-
lowed by IN act of forcible opposition in pursu
ance of the reasonable design" The offense is
not to be judged alone by the number assembled.
or even by the hostile appearance of the assem-
blage; there must be conspiracy to resist by
force of arms. or intimidation by numbers. The
conspiracy and the insuuection connected with il
must be to effect something Of public nature con-
cerning the United States-to overthrow the
Government or some department thereof, or "to
nullify and totally hinder the execution of some
United States law or the United States COnsttu-
ton, " or some part thereof, or to compel its alb
rogstion, repeal, modification change, by a re-
sort to violence Inasmuch as the Constitution
provides a peaceable and regular mode whereby
it or the United States laws may be amended,
there can be no other rightful mode of effecting
that end known either to the Constitution or law.


As it is both the right and the duty of every
citizen to become fully informed upon all gov
ernmental affairs TO discharge his many po-
litical obligations inteligenty at the ballot box
and in other legitimate ways, and the freedom of
the press and OF speech are guaranteed to him for
that well as other essential purposes; and as
the right of the people peaceably to assemble and
petition for the redress of grievances, and to keep





infrnged, it is evident that an assembage for the
mere purpose of procuring peaceable redress of
supposed grievances, can not be reasonable; nor
free and full discussion of the acts of public
men or public measures whether such discussion
be in private conversations, public meetings or
the press; nor can a military gathering, when
sembled fer no purpose or design of interfering,
by force intimidation, with the lawful func-
tions of the government or of its constituted au-
thorities, or of preventing the execution of any
law, or of extorting its alteration repeal or of
Overthrowing the lawful supremacy of the United
States in any State or Territory. Hence a con-
spiracy to be reasonable must be for a public or
general, and not a mere private object; it must
contemplate force in the pursuit of its ends; it
must, in order to ripen into treason, be accom-
panied or followed by some warlike act, such as
the assembling of men in military array, and in
the posture of war, or in forcible and threaten
ing attitude, for the furtherance of the treason
able design.


"To constitute an actual levy of war there must
be an assembly of persons met for a reasonable
purpose. and some overt act done, or some at
tempt made by them, with force, to execute, or
toward executing that purpose. There must be
La present intention to proceed in the execution of
the reasonable purpose by force. The assembly
must now be in condition to use it, if necessary,
or to aid, or to accomplish thrir reasonable de-
sign. If the assembly is arrayed in a military
manner for the express purpose of overawing or
intimidating the public and to attempt to carry
into effect the reasonable design, that will OF
itself amount to levy of war; although no actual
blow has been struck, or engagement has taken
T place"


However flagitious may be the crimes of con-


spiracy to subvert by force the Government OF


our country, such conspiracy is not treason. To


conspire to levy war, and actually to levy war


are distinct offenses"



rendezvous would, perhaps, not be sufficient
; This would be an equivocal act and has no war
I like appearance. The meeting of particular
bodies of men and their marching from places oi
partial to place of general rendezvous, wOuldbt
an overt act"


A secret meeting, although that meeting be o
conspirdtors, and although it met with a treason
able intent, is not an actual levying of war.
: The distinctions thus drawn may be more
n briefly stated in these words: A reasonable de
= sign unaccompanied, or not followed by u trea
sonable act, is not treason conspiracy to lew
!. war is not actual levying of war. The as
i sembling of men, an assemblage not in military
array or in an attitude of war, will not be al
= ovort act. The assemblage must be a warlik


acknowledgements be in sufficient forco to hav'
: the appearance or posture of war, or must hav
: resorted 10 forcible opposition, or mist hav
u marched in bodies or detachments towards SOM
:, place OF rendezvous, or done some other opel
- visible of war, before the act has beel
. committed.


- On this point it is apprehended YOU will hav
N very little difficulty; for when actually ex


lists, inquiries into the precise steps, successive
,f taken, from the inception of the reasonable lie
n sign to the first overt act. may be of less impOr
n tince than investigation Of the acts done to
II wards carrying it on. or in giving aid and com


fort to the enemy, in adherence to his cause
If When war exists, all who are eague1 in the gen
"a eral conspiracy and perform any of the vaFiOu
,e and essential military parts of prosecuting it, ar
"a guilty of treason. Thus, commissary who is a
" distance from the scene of active military Oper
Of ations, and who may never have been present a
" any hostile assemblage, even seen the rebel
Ie in camp or in military array, may, by furnshin


supplies to the tratorous force, be rs guilty as
Il taken in battle with arms in his hands So ma
nj il be with an officer commissioned to recruit VIII
r enlsts and forwards to fill the rebel ranks
O. or with any other person who voluntarily ful
ce nishes them with money, arms. ammunition, pre-
Iy visions or supplies, or who otherwise performs


he be leagued in the general scheme "any oft


various essential parts which in carrying on wa


must be assigned to different individuals" 1t


necessary, however, that he should have bee
or leagued in the general conspiracy and have AIS
IN performed some part towards its prosecutions; fc
sc both the intent and act must exist or the Grim
IN has not been perpetrated-is not complete.
'T' Ii the reasonable intent does exist. howevc
- the overt act may consist not only in furnishin


men, money, arms or provisions, but also in gi'
re ing intelligence whereby the enemy may bett,
OF conduct his hostile movements. be saved from II
r. verses or aided in his plans. 1t is obviously
IT. great moment to be accurately informed of ii


numbers and position of an opposing force and
in their plan OF campaign intended movement
" At times, no more important aid can be givel
mt Actual presence in the hostile ranks may be
be far less assistance to the foe than timely con
lis munication from distance concerning the nov
in ments of the opposing force, whether actual (
ry contemplated.


n After war has been raised, then the plain dui


ofsvery one Is to refrain from whatever acts ca