(Front cover)

United States Circuit Court,

DISTRICT OF MISSOURI,

SPECIAL JULY TERM, 1861.

PRESENT:

• HON. JOHN CATRON,
  An Associate Justice of Supreme Court of United States.

• HON. ROB'T W. WELLS,
  District Judge of United States for Western District of Missouri.

• HON. SAMUEL TREAT,
  District Judge of United States for Eastern District of Missouri.

CHARGE TO THE GRAND JURY
BY THE COURT,
JULY 10, 1861.

ST. LOUIS:

PRINTED AT THE DEMOCRAT BOOK AND JOB OFFICE

1861.

(Page 1)

TO THE GRAND JURY.

Gentlemen: The oath just taken by you indicates with sufficient clearness the spirit of judicial impartiality, patience, and independence, by which your deliberations should be governed. It is your duty to discover and bring to trial all who have been guilty of offences under the United States statutes, committed within this State, and to protect the innocent from unfounded or malicious accusations.

Popular clamor, unjust suspicions, partisan favor or malice, personal prejudices, illegal views of rights and duties--in short, "all fear, favor, or affection," must be carefully excluded--not suffered for a moment to enter the jury-room or intrude upon your counsels. You should find or ignore indictments solely as the law and evidence may demand, and without respect to persons.

You should hear all evidence which can throw any light upon an accusation, whether tending to show the innocence or guilt of the accused; and if convinced thereby of the guilt of the accused, find an indictment; otherwise, ignore the bill. Mere suspicions, vague or remote probabilities, rumors, or illegal testimony, is not a basis for action. In other words, you should, before indicting any one, be satisfied that on the same testimony as presented to you, a petit jury would find a verdict of guilty. The wise prohibition of the United States Constitution against holding any one to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, would be practically disregarded--become a mere nullity--if indictments were found on improper or insufficient evidence, or without careful discrimination and scrutiny, or upon a hasty or inconsiderate view of the facts and circumstances. So, on the other hand, the Constitution and laws would be impotent for protection or good, if offenders against whom a sufficient case is established, were not brought to trial.

The jurisdiction of this Court extends over the whole State, and covers every offence declared to be such by any existing act of Congress. You have no cognizance of crimes or offences at common law, but merely of those pronounced such by United States statutes. If there is no act of Congress upon a subject, it is beyond your jurisdiction.

As your foreman has no power to administer oaths, all witnesses before you will be first sworn in open Court.

A brief reference to some of the offences of which you have cognizance, and a succinct statement of the law concerning them, may aid your investigations, and serve for your guidance:

"The Constitution and laws of the United States "are the supreme law of the land," anything in the Constitution or laws of any State to the contrary, notwithstanding." Their supremacy is thus declared in express terms: "Whatever conflicts therewith has no operative or obligatory force. Allegiance to the United States, and loyalty to the United States Constitution and laws, are the paramount duty of every citizen. Within their legitimate sphere, they command the obedience of all, and no State Coustitution or statute can absolve any one therefrom.

There is one crime of great magnitude in its effects upon society, the power to punish for which is so liable to abuse, that the Constitution has carefully defined and limited it to two distinct species. It involves the peace, safety and happiness of all, by striking at the very foundation of public order. The power to repress and punish it, is essential to every government, whatever its form of civil and political organization; but as an abuse of that power may be destructive of liberty, it is essential that it should be so determinate in its character that no excitement, passion or popular rage can pervert it to ends of tyranny, faction or frenzy; properly considered, it is a power of self-protection, lodged in the government to enable it to preserve its legitimate functions against all lawless violence or force, directed to their subversion or overthrow; legitimately used, it can never be an instrument of ambition, malice or faction, nor can it strip a citizen or community of any privilege guaranteed by the fundamental laws of the land. It ought not to absorb or overthrow rights declared inviolable, nor remain dormant when those rights, as involved in the existence of the government, are threatened with overthrow by the subversion of the government itself.

The provisions of the United States Constitution on this subject, are as follows:

"Treason against the United States shall consist only in levying war against them; or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open Court."

"The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted."

To those provisions the following is also applicable:

"The trial of all crimes, except in cases of impeachment, shall be by jury, and such trial shall be held in the State where the said crimes shall have been committed."

Pursuant to the power thus granted, Congress

(Page 2)

at an early day passed the following act, which is still in force:

"If any person or persons owing allegiance to the United States of America shall levy war against them, or shall adhere to their enemies, giving them aid and comfort, within the United States or elsewhere, and shall be thereof convicted on confession in open Court, or on the testimony of two witnesses to the same overt act of the treason whereof he or they shall stand indicted, such person or persons shall be adjudged guilty of treason against the United States, and shall suffer death."

The term "allegiance," as used in this statute, is not absolute, but qualified. It is not solely dependent upon or confined to citizenship. Every person resident in the United States, living under and enjoying the protection of their laws, owes such a qualified allegiance to the government as to be answerable thereto for any violation of that statute.

Every indictment must charge one or more overt acts committed within this State, and the testimony of two witnesses to the same overt act, or a confession in open court, is essential to conviction. The very nature of an overt act renders it probable that more than one witness can be found whenever such an act has been committed; and hence justice to the Constitution and the laws, to government and society, as well as to accused, is better subserved by causing no one to be put upon trial unless the Grand Jury are satisfied, from ample testimony before them, that conviction will follow. Two witnesses to the same overt act must always be produced or no indictment can be found.

It would serve to confuse rather than assist you, if an elaborate analysis were given of the nice distinctions upon which the classification of the different treasons, under different circumstances, may depend. It will suffice to state that the crime is committed, whenever war against the United States by those owing allegiance thereto, is raised, created, made or carried on; or when, during a 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 combination, in military array, forcibly to prevent or oppose, generally, the execution of a provision either of the United States Constitution, or of a United States statute; or forcibly to subvert the United States government or any department thereof; or by force to procure the repeal or alteration of the Constitution or laws; if such combination be accompanied or followed by an act of forcible opposition in pursuance of the treasonable design." "The offence is not to be judged alone by the number assembled or even by the hostile appearance of the assemblage. There must be a conspiracy to resist by force and an actual resistance by force of arms, or intimidation by numbers. The conspiracy and the insurrection connected with it must be to effect something of a public nature concerning the United States--to overthrow the government," or some department thereof, or "to nullify and totally hinder the execution of some U. S. law or the U. S. Constitution," or some part thereof; or to compel its abrogation, repeal, modification or change, by a resort to violence. Inasmuch as the Constitution provides a peaceable and regular mode whereby it or the U. S. 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 duty of every citizen to become fully informed upon all governmental affairs, so as to discharge his many political obligations intelligently at the ballot-box, and in other legitimate ways; and the freedom of the press and of speech are guaranteed to him for that as 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 and bear arms, cannot be lawfully abridged or infringed, it is evident that an assemblage for the mere purpose of procuring peaceable redress of supposed grievances cannot be treasonable; nor can a 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 assembled for no purpose or design of interfering, by force or intimidation, with the lawful functions of the government or of its constituted authorities, or of preventing the execution of any law, or of extorting its alteration or repeal, or of overthrowing the lawful supremacy of the United States in any State of Territory. Hence a conspiracy to be treasonable 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 accompanied or followed by some warlike act, such as the assembling of men in military array and in the posture of war, or in a forcible and threatening attitude, for the furtherance of the treasonable design.

"To constitute an actual levy of war there must be an assembly of persons met for a treasonable purpose, and some overt act done, or some attempt made by them, with force, to execute, or towards executing, that purpose. There must be a present intention to proceed in the execution of the treasonable purpose by force. The assembly must now be in a condition to use it, if necessary, to further, or to aid, or to accomplish their treasonable design. 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 treasonable design, that will of itself amount to a levy of war, although no actual blow has been struck, or engagement has taken place." "However flagitious may be the crime of conspiracy 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 offences."

"The traveling of individuals to the place of rendezvous, would, perhaps, not be sufficient. This would be an equivocal act and has no warlike appearance. The meeting of particular bodies of men and their marching from places of partial to a place of general rendezvous, would be an overt act." A secret meeting, although that meeting be of conspirators, and although it met with a treasonable intent, is not an actual levying of war.

The distinctions thus drawn may be more briefly stated in these words: A treasonable design, unaccompanied or not followed by a treasonable act, is not treason. A conspiracy to levy war is not an actual levying of war. The assembling of men, or an assemblage not in military array, or in an attitude of war, will not be an overt act. The assemblage must be a warlike assemblage--must be in sufficient force to have the appearance or posture of war, or must have resorted to forcible opposition, or must have marched in bodies or detachments towards some place of rendezvous, or done some other open, visible act of war, before the overt act has been committed.

On this point it is apprehended you will have

(Page 3)

very little difficulty; for when war actually exists, inquiries into the precise steps, successively taken, from the inception of the treasonable design to the first overt act, may be of less importance than an investigation of the acts done towards carrying it on, or in giving aid and comfort to the enemy, in adherence to his cause.

When war exists, all who are leagued in the general conspiracy, and perform any of the various and essential military parts of prosecuting it, are guilty of treason. Thus, a commissary who is at a distance from the scene of active military operations, and who may never have been present at any hostile assemblage, or even seen the rebels in camp or in military array, may, by furnishing supplies to the traitorous force, be as guilty as if taken in battle with arms in his hands. So may it be with an officer commissioned to recruit, who enlists and forwards men to fill the rebel ranks; or with any other person who voluntarily furnishes them with money, arms, ammunition, provisions or supplies, or who otherwise performs, if he be leagued in the general scheme, "any of the various or essential parts which, in carrying on a war, must be assigned to different individuals." It is necessary, however, that he should have been leagued in the general conspiracy and have also performed some part towards its prosecution, for both the intent and act must exist, or the crime has not been perpetrated--is not complete. If the treasonable intent does exist, however, the overt act may consist not only in furnishing men, money, arms or provisions, but also in giving intelligence whereby the enemy may better conduct his hostile movements, be saved from reverses or aided in his plans. It is obviously of great moment to be accurately informed of the numbers and position of an opposing force and of their plan of campaign or intended movements. At times, no more important aid can be given. Actual presence in the hostile ranks, may be of far less assistance to the foe than a timely communication from a distance concerning the movements of the opposing force, whether actual or contemplated.

After war has been raised, then, the plain duty of every one is to refrain from whatever acts can contribute to the enemy's advantage or assistance. In foreign wars all private communications, intercourse and trade between the contending nations are interdicted: but in insurrectionary movements, those not leagued in the general conspiracy or aiding therein, are not necessarily forbidden all private intercourse or trade with peaceful and patriotic citizens resident within the insurrectionary districts. What the policy of war may demand in some of its stages, it is not for the judicial department to determine; for it can only recognize existing facts growing out of the action of the political departments, and apply the established rules of law to those facts as they are presented. Whether the government shall assume a condition of peace of war, foreign or domestic, it is not within the province of the judiciary to decide; for the war-making power is not vested in the judicial department. When a foreign war exists, there can be very little difficulty in ascertaining what acts amount to such an adherence to the enemy, giving him aid and comfort, as falls within that definition of treason; but in domestic conflicts, or rebellions and insurrections, the legal rule is not necessarily the same in all cases, and at all stages of hostile movements.

If a citizen of the United States during a foreign war adheres to the enemy, giving him aid and comfort, he violates his allegiance and is a traitor; and every act done towards carrying on a domestic war, or an insurrection, raised by American citizens against their own government, if done by one owing allegiance to the United States, and with the intent to further the treasonable object, may fall within the definition of "levying war," and therefore the latter species of treason be broad enough to cover every such act during a rebellion or insurrection. Whatever, during a foreign war, would amount to "adhering to the foreign enemy, giving him aid and comfort," would, generally, be treason during an insurrection, if done in aid of the insurrectionists. Hence it is a rule of law, that "the joining with rebels in an-act of rebellion, or with enemies in an act of hostility, will make a man a traitor." "Furnishing rebels or enemies with money, arms, ammunition or other necessaries will prima facie make a man a traitor."

"Surrendering a castle to rebels, being in confederacy with them, is treason under the clause of 'levying war;' and so would be the holding against the government of any of its forts, arsenals or ships of war, or attacking the same, or treacherously delivering them up to the rebels."

In the exercise of constitutional authority and supremacy, the United States government has a legal right to send its troops into any State or Territory of the United States, and to keep them there; and any attempt by a hostile force, through violence, or by assembling in military array, or in the posture of war, to keep such troops out of such State or Territory, or to drive out those thus already there, or to oppose their marching, sojourning or remaining in such State or Territory; or any assembling of armed men in military array, or with a warlike appearance, or in force, for such a treasonable purpose, or aid or assistance given to those engaged in such a treasonable attempt, knowingly and with the intent to further their treasonable design, would be treason against the United States."

It is unnecessary to specify, in detail, each and every act, or combination of acts, which may fall within the general rules already stated; because acts which at one time and under some circumstances do not amount to treason, may at other times and under other circumstances be the most flagrant treasons. Indeed, the many improvements in the ordinary arts of peace, as well as the improvements in the art of war, may cause many things to be now considered military supplies and necessaries which were wholly unknown as such fifty years ago. The language of Chief Justice Marshall on this branch of the subject lays down clear legal rules:

"If war be actually levied, * * * all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors." "This opinion does not touch the case of a person who advises or procures an assemblage, and does nothing further. The advising certainly, and perhaps the procuring, is more in the nature of a conspiracy to levy war than of the actual levying of war. "It is not enough to be leagued in the conspiracy, and that war be levied, but it is also necessary to perform a part; that part is the act of levying war. That part, it is true, may be minute; it may not be the actual appearance in arms, and it may be remote from the scene of action--that is, from the place where the army is assembled; but it must be a part, and that part must be performed by a person who is leagued in the conspiracy. This part, however minute or remote, constitutes the overt

(Page 4)

act, of which alone the person who performs it can be convicted. The opinion does not declare that the person who has performed this remote and minute part may be indicted for a part which was in truth performed by others, and convicted on their overt act. It amounts to this, and nothing more, that when war is actually levied, not only those who bear arms, but those also who are leagued in the conspiracy, and who perform the various distinct parts which are necessary for the prosecution of the war, do, in the sense of the Constitution, levy war."

"To advise or procure a treason, is in the nature of conspiring or plotting treason, which is not treason in itself."

These suggestions will enable you to reach a sound conclusion concerning every case brought before you involving the crime of treason, if you keep constantly in mind that there are two essential elements of the offense--the treasonable intention and the overt act. You should also remember that mere expressions of opinion, or criticisms upon public men and movements, however severe or unjust, or free discussions concerning public measures and policy, or the peaceful advocacy of erroneous doctrines, or the exercise of any other lawful right pertaining to the privileges of citizenship, does not constitute treason in any legal sense of the term, and it is with treason in the legal sense only that courts can deal.

In this connexion your attention is called to the second section of the same act of Congress, the terms of which are sufficiently explicit to need no comment:

"If any person or persons having knowledge of the commission of any of the treasons aforesaid shall conceal, and not as soon as may be, disclose and make known the same to the President of the United States, or some one of the Judges thereof, or to the President or Governor of a particular State, or some one of the Judges or Justices thereof, such person or persons on conviction shall be adjudged guilty of misprison of treason."

Among the other offenses within your jurisdiction, the following may be named without special comment:

Any obstruction or impediment to the due administration of justice in any United States Court, if made corruptly or by threats of force, or if attempted by such means; or any such endeavor to influence, intimidate or impede any juror, witness or officer in the discharge of his duty; or any wilful resistance, obstruction or opposition to a United States officer in serving, or attempting to serve, any judicial writ, process or order.

All perjuries and subordinations of perjury committed in any suit, controversy, matter or cause, depending in any United States Court, or in any matter or proceeding where the United States laws require an oath or affirmation.

The embezzlement by persons in charge thereof, or the purloining or conveying away by them for gain, or wittingly, advisedly, and of purpose to hinder or impede the United States service, of any arms, ordnance, shot or powder, habiliments of war, or victuals belonging to the United States, and provided for the soldiers.

The buying or receiving of any such articles, knowing them to be feloniously taken or stolen.

The unlawful detention, delay, or opening of any letter in the mail, conveyed or intended to be conveyed by post; or the secreting, embezzling or destroying any such letter or its contents; or any newspaper or package of newspapers; or the opening of any letter or packet which shall have been in a post-office, before it shall have been delivered to the person to whom it is directed with a design to obstruct the correspondence, or pry into another's business or secrets; or the desertion of the mail by a mail carrier; or any robbery of a mail, or wilful obstruction of the passage of the mail; or the giving of preference to the letters or pamphlets or packages of papers, or newspapers of one person over those of another, or detaining those of any person, unlawfully, with the view of delaying the same; or counterfeiting post office stamps, or passing or using such counterfeit stamps, knowing them to be counterfeit; or stealing or forging mail locks or keys; counterfeiting the coin of the United States; or passing or attempting to pass the same, knowing it to be counterfeit.

These or any other criminal violations of United States laws, if committed within this State, are proper subjects for your investigation.

Grand Juries constitute an important part of the judicial system; and the nature of the duties devolved upon them makes their office, at all times delicate and responsible. But during periods of general commotion and excitement, the manner in which they fulfil their solemn trust is of especial moment to every person and interest in society. Unaffected by prejudice or passion, and proceeding in their investigations with independence and impartiality, they become the shield of the innocent and the terror of the guilty. Whilst the magnitude of some crimes demands, for the public good, that the offenders should not be permitted to escape punishment, like considerations require that indictments therefor should not be found on insufficient grounds.

When a sufficient cause is made out, there is only one course which duty permits--the Grand Jury should find the indictment a true bill so that the accused may be brought to trial. If the testimony falls short of such a case, the indictment should be just as promptly ignored.

With full confidence in your determination to discharge, faithfully and diligently, all the duties resting upon you, it only remains for the Court to add, that you should so appoint your hours of meeting and adjournment that, whilst consulting your own convenience, you may proceed without unnecessary delay in the dispatch of the business to come before you.