them to give to the commissioners the requisite authority to act effectively for their respective States. 5 Webster's Works, 99; 6 ib. 273. In their relation to the general government, the States of the Union stand in a very different position from that which they hold to foreign governments. Though the jurisdiction and authority of the general government are essentially different from those of the State, they are not those of a different country; and the two, the State and general government, may deal with each other in any way they may deem best to carry out the purposes of the Constitution. It is for the protection and interests of the States, their people and property, as well as for the protection and interests of the people generally of the United States, that forts, arsenals, and other buildings for public uses are constructed within the States. As instrumentalities for the execution of the powers of the general government, they are, as already said, exempt from such control of the States as would defeat or impair their use for those purposes; and if, to their more effective use, a cession of legislative authority and political jurisdiction by the State would be desirable, we do not perceive any objection to its grant by the legislature of the State. Such cession is really as much for the benefit of the State as it is for the benefit of the United States. It is necessarily temporary, to be exercised only so long as the places continue to be used for the public purposes for which the property was acquired or reserved from sale. When they cease to be thus used, the jurisdiction reverts to the State. The Military Reservation of Fort Leavenworth was not, as already said, acquired by purchase with the consent of Kansas. And her cession of jurisdiction is not of exclusive legislative authority over the land, except so far as that may be necessary for its use as a military post; and it is not contended that the saving clause in the act of cession interferes with such use. There is, therefore, no constitutional prohibition against the enforcement of that clause. The right of the State to subject the railroad property to taxation exists as before the cession. The invalidity of the tax levied not being asserted on any other ground than the supposed exclusive jurisdiction of the United States over the reservation notwithstanding the saving clause, the judgment of the court below must be Affirmed. SECTION XIV. TREASON. UNITED STATES v. GREATHOUSE AND OTHERS. 4 Sawyer, 457. 1863. On the fifteenth day of March, 1863, the schooner J. M. Chapman was seized in the harbor of San Francisco, by the United States revenue officers, while sailing, or about to sail, on a cruise in the service of the Confederate States, against the commerce of the United States; and the leaders of the expedition, consisting of Ridgeley Greathouse, Asbury Harpending, Alfred Rubery, William C. Law, Lorenzo L. Libby, with several others, were indicted, under the act of Congress of July 17, 1862, for engaging in, and giving aid and comfort to, the then existing rebellion against the government of the United States. FIELD, Circuit Justice (charging jury). The defendants are indicted for engaging in, and giving aid and comfort to, the existing rebellion against the government of the United States. The indictment is framed under the second section of the act of Congress of July 17, 1862, entitled “An Act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes;" and it charges the commission of acts, which, in the judgment of the court, amount to treason within the meaning of the Constitution. Treason is the only crime defined by the Constitution. That instrument declares that "treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." The clause was borrowed from an ancient English statute, enacted in the year 1352, in the reign of Edward III., commonly known as the statute of treasons. Previous to the passage of that statute there was great uncertainty as to what constituted treason. Numerous offences were raised to its grade by arbitrary constructions of the law. The statute was passed to remove this uncertainty, and to restrain the power of the crown to oppress the subject by constructions of this character. It comprehends all treason under seven distinct branches. The framers of our Constitution selected one of these branches, and declared that treason against the United States should be restricted to the acts which it designates. "Treason against the United States," is the language adopted, "shall consist only in levying war against them, or adhering to their enemies, giving them aid and comfort." No other acts can be declared to constitute the offense. Congress can neither extend, nor restrict, nor define the crime. Its power over the subject is limited to prescribing the punishment. At the time the Constitution was framed, the language incorporated into it, from the English statute, had received judicial construction, and acquired a definite meaning; and that meaning has been generally adopted by the courts of the United States. Thus Chief Justice Marshall, in commenting upon the term "levying war," says: "It is a technical term. It is used in a very old statute of that country whose language is our language, and whose laws form the substratum of our laws. It is scarcely conceivable that the term was not employed by the framers of our Constitution in the sense which had been affixed to it by those from whom we borrowed it. So far as the meaning of any terms, particularly terms of art, is completely ascertained, those by whom they are employed must be considered as employing them in that ascertained meaning, unless the contrary be proved by the context. It is, therefore, reasonable to suppose, unless it be incompatible with other expressions of the Constitution, that the term 'levying war' is used in that instrument in the same sense in which it was understood, in England and in this country, to have been used in statute 25 of Edward III., from which it is borrowed." The constitutional provision, as you perceive, is divided into two clauses, "levying war against the United States," and "adhering to their enemies, giving them aid and comfort." The term "enemies," as used in the second clause, according to its settled meaning, at the time the Constitution was adopted, applies only to the subjects of a foreign power in a state of open hostility with us. It does not embrace rebels in insurrection against their own government. An enemy is always the subject of a foreign power who owes no allegiance to our government or country. We may, therefore, omit all consideration of this second clause in the constitutional definition of treason. To convict the defendants they must be brought within the first clause of the definition. They must be shown to have committed acts which amount to a levying of war against the United States. To constitute a levying of war there must be an assemblage of persons in force, to overthrow the government, or to coerce its conduct. The words embrace not only those acts by which war is brought into existence, but also those acts by which war is prosecuted. They levy war who create or carry on war. The offence is complete, whether the force be directed to the entire overthrow of the government throughout the country, or only in certain portions of the country, or to defeat the execution and compel the repeal of one of its public laws. It is not, however, necessary that I should go into any close definition of the words "levying war," for it is not sought to apply them to any doubtful case. War has been levied against the United States. War of gigantic proportions is now waged against them, and the government is struggling with it for its life. War being levied, all who aid in its prosecution, whether by open hostilities in the field, or by performing any part in the furtherance of the common object, "however minute or however remote from the scene of action," are equally guilty of treason within the constitutional provision. In treason there are no accessories; all who engage in the rebellion at any stage of its existence, or who designedly give to it any species of aid and comfort, in whatever part of the country they may be, stand on the same platform; they are all principals in the commission of the crime; they are all levying war against the United States. In Ex parte Bollman and Ex parte Swartwout, 4 Cranch, 127, Mr. Chief Justice Marshall, in delivering the opinion of the Supreme Court of the United States, said: "It is not the intention of the court to say that no individual can be guilty of this crime who has not appeared in arms against his country. On the contrary, if war be actually levied - that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, 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." And in commenting upon this language, on the trial of Burr, the same distinguished judge said: "According to the opinion, 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 act, of which alone the person who performs it can be convicted." 2 Burr's Trial, 438-9. The indictment in the present case, as I have already stated, is based upon the second section of the act of July 17, 1862. The Constitution, although defining treason, leaves to Congress the authority to prescribe its punishment. In 1790, Congress passed an act fixing to the offence the penalty of death. By the first section of the act of July, 1862, Congress gave a discretionary power to the courts to inflict the penalty of death, or fine and imprisonment, providing that in either case the slaves of the party convicted, if any he have, shall be liberated. The second section of the act declares "that if any person shall hereafter incite, set on foot, assist, or engage in any rebellion or insurrection against the authority of the United States, or the laws thereof, or shall give aid or comfort thereto, or shall engage in or give aid and comfort to any such existing rebellion or insurrection, and be convicted thereof, such person shall be punished by imprisonment for a period not exceed ing ten years, or by a fine not exceeding $10,000, and by the liberation of all his slaves, if any he have, or by both said punishments, at the discretion of the court." The fourth section provides that the act shall not be construed in any way to affect or alter the prosecution, conviction, or punishment of any person guilty of treason before its passage, unless convicted under the act. - There would seem, upon a first examination, to be an inconsistency between the first and second sections of this act the first section declaring a particular punishment for treason, and the second declaring, for acts which may constitute treason, a different punishment. It appears from the debate in the Senate of the United States, when the second section was under consideration, that it was the opinion of several senators that the commission of the acts which it designates might, under some circumstances, constitute an offence less than treason. The Constitution, as you have seen, declares that "treason against the United States shall consist only in levying war or in adhering to their enemies, giving them aid and comfort." Rebels not being enemies within its meaning, an indictment alleging the giving of aid and comfort to them had been, as was stated, held defective. But if such ruling had been made, it was made, we may presume, not because the giving of aid and comfort to rebels was not treason, but because the parties giving such aid and comfort were equally involved in guilt with those in open hostilities and should have been indicted for levying war; for every species of aid and comfort which, if given to a foreign enemy, would constitute treason within the second clause of the constitutional provision — adhering to the enemies of the United States would, if given to the rebels in insurrection against the government, constitute a levying of war under the first clause. The second section of the act, however, relieves the subject from any difficulty so far as the form of the indictment is concerned. It is not necessary now to use specifically the term "levying war;" it will be sufficient if the indictment follows the language of the act, as the indictment does in the present case. But we are unable to conceive of any act designated in the second section which would not constitute treason, except perhaps as suggested by my associate, that of inciting to a rebellion. If we lay aside the discussion in the Senate, and read the several sections of the act together, the apparent inconsistency disappears. Looking at the act alone, we conclude that Congress intended: 1. To preserve the act of 1790, which prescribes the penalty of death, in force for the prosecution and punishment of offences committed previous to July 17, 1862, unless the parties accused are convicted under the act of the latter date for subsequent offences; 2. To punish treason thereafter committed with death, or fine and imprisonment, in the discretion of the court, unless the treason consist in engaging in or assisting a rebellion or insurrection against the authority of the United States, or the laws thereof, in which event the death penalty |