United States v. Greathouse et al

The citation for this case is 26 Fed. Cas. 18, Case No. 15,254. This case is from October 17, 1863 and was in the Circuit Court for the Northern District of California.

The background is, “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.” [26 Fed. Cas. 18, 19] The trial was held in October, 1863. Law and Libby turned state’s evidence and testified against the others. In return, they were nolle prosequed.

“The testimony showed that Harpending, a native of Kentucky, and Rubery, a native of England, had for some time contemplated the fitting out of a privateer at San Francisco, for the purpose of taking several of the mail steamships plying between that port and Panama, and other vessels. With this object in view, Harpending had gone across the country to Richmond, Virginia, and procured from Jefferson Davis, the president of the Confederate States, a letter of marque, authorizing him to prey upon the commerce of the United States, and to burn, bond, or take any vessels of its citizens; and also a letter of instructions directing him how to act and containing the form of the bond, in case any prize taken should be bonded. Upon his return to San Francisco, he and Rubery made arrangements for the purchase of such a vessel as would suit their purpose: but these arrangements afterward failed, on account of the dishonor of the drafts drawn for the purchase-money by Rubery, and the consequent want of funds.” [Ibid.] Harpending then met Law, a ship’s captain, and brought him into the conspiracy. Law found the schooner J. M. Chapman. Greathouse, brought in by Harpending, bought the ship and provided money for the weapons, ammunition, food, and other items required for the voyage. Law brought in Libby to serve as a mate on the ship, and brought in four seamen and a cook. They attracted the attention of officers in San Francisco, and while sailing out they were captured. “The defense offered no testimony, but claimed, among other things, that a state of war existed between the United States and the Confederate States; that the latter were entitled to, and had in fact received from the former, belligerent rights; that privateering on the part of either side was a legitimate ode of warfare, and made those engaged amenable only to the laws of war; that at least, the defendants could not then be held to have committed any offense of which the court could take jurisdiction. They also claimed that the schooner had not started on her voyage, but had left the wharf with the-intention of anchoring in the stream and waiting there for the captain and papers; that whatever the ultimate intention might have been, there had, in fact, been no commencement of the cruise, and that”, at any rate, no offense could have been committed until the schooner had reached Manzanillo, and been ready to commence hostilities. They finally insisted that there could be no treason and no conviction under the indictment, for the reason that ‘aid and comfort’ had not been actually given.” [26 Fed. Cas. 18, 20-21]

The case was argued before Justice Stephen J. Field and District Judge Ogden Hoffman. In his charge to the jury, Justice Field said, “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.’ ” [26 Fed. Cas. 18, 21] He continues with his charge to the jury, “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 offense 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.” [26 Fed. Cas. 18, 21-22] He continued, “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.” [26 Fed. Cas. 18, 22]

In referring to the indictment in the case, Justice Field said, “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.” [26 Fed. Cas. 18, 22-23] In applying the act of July 17, 1862 to the constitutional provision on treason and the indictment, Justice Field said, “The defendants are therefore in fact on trial for treason, and they have had all the protection and privileges allowed to parties accused of treason, without being liable, in case of conviction, to the penalty which all other civilized nations have awarded to this, the highest of crimes known to the law.” [26 Fed. Cas. 18, 23]

Judge Hoffman also charged the jury, and in his charge he said, “The defendants in this case are indicted under the second section of the act of July, 1862. The indictment in substance charges them with having engaged in, and given aid and comfort to the existing rebellion, by fitting out, arming and equipping a vessel, with intent that she should cruise in the service of the so-called Confederate States, under a letter of marque issued by the pretended authorities of those states, against the vessels and commerce of the United States. And that she did in fact sail from this port in such service, and under a letter of marque, on the alleged cruise.” [26 Fed. Cas. 18, 25] He continues, “In the constitution of the United States it is declared that the crime of treason shall consist only in levying war against the United States, and in adhering to their enemies, giving them aid and comfort. The last branch of this definition has always been admitted to apply only to cases of adhering, and giving aid and comfort to, foreign public enemies. It was therefore held that an indictment charging the defendant with having given aid and comfort to domestic rebels was bad, and that the acts should be charged as ‘a levying of war against the United States.’ It appears, however, to have been considered by congress that some acts might be committed which would constitute an ‘engaging in the present rebellion, and giving it aid and comfort,’ which would not amount to a levying of war, or to the crime of treason, within the meaning of the constitution. Under this idea, the act of 1862, in its first section, re-enacts the former statute against treason eo nomine, but modifies, in some respects, the penalty, while the second section denounces, as if it were a different offense, the ‘engaging in, and giving aid and comfort to, the existing, rebellion.’ We have not been able to concur in the view which congress seems to have taken of the offenses created by these sections.” [Ibid.] He further states, “Every act which, if performed with regard to a public and foreign enemy, would amount to ‘an adhering to him, giving him aid and comfort,’ will, with regard to a domestic rebellion, constitute a levying of war. And, conversely, every act which, with regard to a domestic rebellion, will constitute ‘a levying of war,’ will, with regard to a foreign enemy, constitute ‘an adhering to him, giving him aid and comfort.’ ‘Every species of aid or comfort,’ says East, ‘which, when given to a rebel within the realm, would make the subject guilty of levying war, will, if given to an enemy, whether within or without the realm, make the party guilty of adhering to the king’s enemies;’ and for this he cites numerous authorities. 1 East, Crown Law, 78. That this must be so is evident on grounds of reason alone. As the framers of the constitution restricted the crime of treason to two classes of cases only, the one ‘adhering to the public enemy, giving him aid and comfort;’ the other ‘levying war against the United States,’ what motive can be suggested for attaching any less guilt to him who aids and comforts a rebellion, than to him who aids and comforts a public enemy? A moment’s consideration of the magnitude and power of the present rebellion, its aim not merely to change the form of government, or to resist the laws, but to dismember the country, and to destroy forever our integrity as a nation, and to inflict a fatal blow on the cause of human progress and civilization, will convince us that the dangers to be apprehended are as great, and the guilt of the actors as deep, when aid and comfort are given to a domestic rebellion, as when given to a public enemy. If, then, every species of aid and comfort given to the present rebellion constitutes a levying of war, it follows that in the two sections of the act referred to, congress has denounced the same crime; and that a party amenable to the second section for having ‘engaged in the rebellion and given it aid and comfort,’ must also be guilty of treason by levying war against the United States.” [Ibid.] Judge Hoffman tells the jury, “In determining, therefore, whether the defendants can be convicted under this indictment, it will be proper to consider whether their acts constitute in law ‘a levying of war;’ for ‘an engaging in a rebellion and giving it aid and comfort,’ amounts to a levying of war; while at the same time we may also inquire whether their acts are such as would, if done with regard to a public enemy, constitute an adherence to him, ‘giving him aid and comfort.’ With regard to levying of war, it is said by Mr. Chief Justice Marshall, that ‘when war is 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 a 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.’ That war has actually been levied, and is now desolating a large portion of our country, is not disputed. The question then is, have the defendants leagued themselves with the rebellion, and in furtherance of the common design, performed a part, however minute, toward its accomplishment?” [26 Fed. Cas. 18, 26]

Judge Hoffman goes on for another four pages, including defining when a vessel can be said to have begun its voyage. Regarding the letter of marque, Judge Hoffman said, “It is unnecessary to repeat what has already been said in regard to the letter of marque. The question is not whether the commission, or letter of marque, was in all respects regular or formally executed. Emanating from the rebel government, it could, of course, confer no authority to levy war on the United States, or to destroy or rob the vessels of her citizens. The question is, was the vessel sailing under the letter and in the service of the rebel government? Whatever remained to be done, if indeed anything remained, could be done as well at sea as on land. Harpending or Greathouse could at any moment, and when about to capture some rich prize, or on the point of being themselves captured by an American cruiser, have filled up the blanks, with all that was required; and the fact that a copy of the document had not been dispatched to the rebel authorities, would neither impair any protection to which the letter of marque, it was supposed, would have entitled them, or relieve them from the guilt of cruising under a letter of marque to commit hostilities against the United States. If these views be correct, it follows that the defendants were engaged on a cruise under a letter of marque from the rebel government against the vessels and property of the United States, and have thus (supposing such a cruising to have been necessary to constitute the offense charged, which it is not,) given aid and comfort to the rebellion within the meaning of those terms as usually applied to the public enemy, but in this act applied to the existing rebellion. If, therefore, you find that the facts, on the assumed truth of which these observations are based, are proved beyond a reasonable doubt by the evidence, our opinion is that they constitute a levying of war against the United States, and ‘an engaging in giving aid and comfort to the rebellion,’ within the meaning: of the second section of the act of 1862, and as charged in the indictment.” [26 Fed. Cas. 18, 29]

The jury convicted the defendants. Eventually, Lincoln pardoned Rubery. Later, the others were freed after taking the oath of allegiance and giving a bond for their good behavior.

This case is an important case regarding the charge of treason. Justice Field and Judge Hoffman clearly laid out how the treason clause applies in the case of the Civil War. When someone asks if anyone was ever convicted of treason during the Civil War, you can point to this case as one example. It’s also important because the two charges to the jury could not have been worded that way if unilateral secession was a legal act. They implicitly declared unilateral secession to be an illegal act.

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