United States v. Greiner

The citation for this case is 26 Fed. Cas. 36, Case No. 15,262. It’s from the July, 1861 term of the District Court of the Eastern District of Pennsylvania, which was located in Philadelphia. District Judge John Cadwalader presided over the trial.

Charles A. Greiner was charged with treason, and the US Attorney, George A. Coffey, argued the defendant should be held for trial at the next session of the United States District Court for Georgia. Even though US Courts didn’t operate in Georgia at that time, he argued the judge had to presume the courts would open within a reasonable amount of time.

Judge Cadwalader first laid out the facts of the case: “On the 2d of Jany. last, an artillery company of the state of Georgia, mustered in military array, took Fort Pulaski, in that state, from the possession of the United States, without encountering any forcible resistance. They garrisoned the post for some time, and left it in the possession of the government of the state. The accused, a native of Philadelphia, where he has many connections, resides in Georgia. He was a member of this artillery company when it occupied the fort, and, for aught that appears, may still be one of its members. He was not its commander. Whether he had any rank in it, or was only a private soldier, does not appear, and is, I think, unimportant He is charged with treason in levying war against the United States. The overt act alleged is that he participated, as one of this military company, in the capture of the fort, and in its detention until it was handed over to the permanent occupation of the authorities of the state.” [26 Fed. Cas. 36, 37] Greiner’s lawyer claimed, “he was acting under the compulsion of military orders from the governor of Georgia, which the law of the state bound him to obey; that the fort, when taken, was not so garrisoned or occupied that an array of military force was required for its capture; that it was taken without actual resistance on the part of the person or persons who had occupied it for the United States; that the period was one at which motives of hostility against the United States are not imputable to the governor of Georgia, or to those who acted under his orders; that the capture and subsequent detention of the fort may have been to prevent its riotous occupation or destruction by a mob; and that the accused party therefore was not guilty of levying war against the United States, or of any other offence against their laws.” [26 Fed. Ca. 36, 38] Judge Cadwalader tells us that if the defense attorney’s argument is wrong, then Greiner’s actions were treasonous. Greiner’s wife and child were in Philadelphia, and Greiner traveled up to visit them, and a few days after his arrival he was arrested. Greiner claimed he wanted to return to Georgia, and Judge Cadwalader said, “That a person who has participated in a treasonable aggression upon a fortress of the United States, should, at such a period as this, pass and repass the frontier of the seceded states without being justly liable to the most vigilant suspicion, cannot be supposed possible.” [26 Fed. Cas. 36, 38]

When Judge Cadwalader considered whether or not there was enough evidence to prosecute Greiner for treason, he wrote, “I have no doubt whatever that sufficient probable cause to support a prosecution for treason has been shown. Any such aggravated breach of the duty of allegiance to an existing government as may tend to its total or partial subversion is, in a general sense, within the political definition of treason. Under the government of the United States, the legal catalogue of specific offences embraced in this definition is, however, limited by the constitutional provision 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.’ Under other governments, including that of England, the catalogue of treasons is more extended. But the two species of treason mentioned in the constitution are described in it in language borrowed from that of the English statute of treasons. The phrase ‘levying war.’ as used in the constitution, is therefore understood and applied in the United States in the same sense in which it had been used in England. Chief Justice Marshall consulted Coke, and Hale, and Foster, in order to ascertain the constitutional meaning of this phrase. 2 Burr Trial, 402, 409; 4 Cranch [8 U. S.] 471, 472, 477, Append. According to these writers, the occupation of a fortress by a body of men in military array, in order to detain it against a government to which allegiance is due, is treason on the part of all concerned, either in the occupation or in the detention of the post. The words of Sir E. Coke are: ‘If any, with strength and weapons invasive and defensive, doth hold and defend a castle or fort against the king and his power, this is levying of war against the king.’ 3 Inst. 10. Sir M. Hale has copied this language almost precisely. 1 P. C. 146. Sir M. Foster says: ‘Holding a castle or fort against the king or his forces, if actual force be used in order to keep possession, is levying war. But a bare detainer, as, suppose, by shutting the gates against the king or his forces, without any other force from within, Lord Hale conceiveth will not amount to treason. But, if this be done in confederacy with enemies or rebels, that circumstance will make it treason, in the one case under the clause of adhering to the king’s enemies—in the other under that of levying war.’ Discourse 1, c. 2, § 11. … In the fort in question there was, in legal strictness, no more division of power, or deduction from the jurisdiction of the United States, than there is in the District of Columbia. [Cohens v. Virginia] 6 Wheat. [19 U. S.] 426, 427; [Kendall v. U. S.] 12 Pet. [37 U. S.] 619. The jurisdiction of the United States was, under the constitution, as exclusive and independent of state control as if the land on which the fort was erected, and which had been ceded by the state of Georgia, had not been within her limits. If indeed the purpose of taking possession of it, as a defenceless post, had been to keep it for the United States, the act, whether excusable or not, would not have been treasonable. But the crisis was one of impending revolution or insurrection. The threat of revolutionary measures had already proceeded from the government of the state. The detention of this post for her government by this hostile force was, therefore, I think, levying war against the United States. If the treason able intent had at first been legally doubtful, the subsequent unqualified surrender of the fortress to the state would, if the doubt were not removed by it, render the case a proper one, at all events, for the consideration of a jury.” [26 Fed. Cas. 36, 38-39]

Some may suggest that because there wasn’t any opposition when they took over the fort, then it didn’t constitute treason. Judge Cadwalader addresses this as well: “That no hostile resistance was opposed by the former occupants of the fort, is, I think, unimportant. When a body, large or small, of armed men, is mustered in military array for a treasonable purpose, every step which any one of them takes in part execution of this purpose, is an overt act of levying war. This is true, though not a warlike blow may have been struck. The marching of such a corps, with such a purpose, in the direction in which such a blow might be struck, is levying war upon land. The mere cruising of an armed vessel with a hostile purpose, is levying maritime war, though the cruiser may not encounter a single vessel. This doctrine, which is conceded throughout the opinion of Chief Justice Marshall in Burr’s Case [Cases Nos. 14,692a–14694a], had been established previously by English authorities. 1 Hale, P. C. 152; Fost. Crown Law, 218; 2 Salk. 635; 13 How. State Tr. 485; 4 Cranch [8 U. S.] 476, Append.” [26 Fed. Cas. 36, 39]

He next discusses the defendant’s claim that he was acting under orders: “The allegation that the accused was, or may have been, acting under the orders of the governor of Georgia, or of some other commanding or superior officer, is likewise unimportant. In the cases of the highlanders of Scotland, whose clans were, without any independent will of their own, mustered by their chiefs into the military service of Charles Edward when he invaded England in 1745, the legal character of such a defence was fully considered. The previous doctrine then recognized, and re-established, was that the fear of having houses burned, or goods spoiled, was no excuse, in the eye of the law, for joining and marching with rebels; that the only force which excuses on the ground of compulsion is force upon the person and present fear of death, which force and fear must continue during all the time of military service with the rebels, and that it is incumbent in such a case on every man who makes force his defence, to show an actual force, and that he quitted the service as soon as he could. Fost. Crown Law, 14, 18 How. State Tr. 391. And see Fost. Crown Law, Discourse 1, c. 2, § 8. If any other excuse were allowable, it would, in the language of Sir M. Foster, ‘be in the power of any leader in a rebellion to indemnify all his followers.’ This doctrine is applicable wherever and so long as the duty of allegiance to an existing government remains unimpaired. When this fort was captured, the accused, in the language of the supreme court, owed ‘allegiance to two sovereigns,’ the United States and the state of Georgia. See [Moore v. State of Illinois] 14 How. [55 U. S.] 20. The duty of allegiance to the United States was co-extensive with the constitutional jurisdiction of their government, and was, to this extent, independent of, and paramount to, any duty of allegiance to the state. [Cohens v. Virginia] 6 Wheat. [19 U. S.] 381, and [Ableman v. Booth] 21 How. [62 U. S.] 517. His duty of allegiance to the United States continued to be thus paramount so long at least as their government was able to maintain its peace through its own courts of justice in Georgia, and thus extend, there, to the citizen that protection which affords him security in his allegiance, and is the foundation of his duty of allegiance. Though the subsequent occurrences which have closed these courts in Georgia may have rendered the continuance of such protection within her limits impossible at this time, we know that a different state of things existed at the time of the hostile occupation of the fort. The revolutionary secession of the state, though threatened, had not then been consummated. This party’s duty of allegiance to the United States, therefore, could not then be affected by any conflicting enforced allegiance to the state. He could not then, as a citizen of Georgia, pretend to be a public enemy of the United States in any sense of the word ‘enemy’ which distinguished its legal meaning from that of ‘traitor.’ Future cases may, perhaps, require the definition of more precise distinctions, and possible differences, under this head. The present case is, in my opinion, one of no difficulty, so far as the question of probable cause for the prosecution is concerned.” [26 Fed. Cas. 36, 39-40]

Having said all that, though, Judge Cadwalader noted that there had only been one witness against Greiner, combined with his confession while being interrogated. The Constitution requires, in order for there to be a conviction of treason, that there be the testimony of two eyewitnesses or a confession in open court. As neither condition was satisfied, Judge Cadwalader said, “A person should not, however, be indicted or imprisoned under a charge of treason when there is no rational probability that the charge, if true, can be proved by two witnesses on the future trial.” [26 Fed. Cas. 36, 40] He therefore let Greiner go, but required a $10,000 security “to keep the peace and obey the Constitution.” [William A. Blair, With Malice Toward Some: Treason and Loyalty in the Civil War Era, p. 52]

While Greiner was released, the judge’s decision did establish in no uncertain terms that Georgia’s taking over Fort Pulaski was treason, that it didn’t matter if the fort offered no resistance, and that it didn’t matter what the claimed reason for doing so was. He also established it didn’t matter that the Governor of Georgia had ordered the action and that while individual citizens had dual allegiance, to the nation and to the state, their allegiance to the nation was paramount over their allegiance to the state. This is contrary to the oft-asserted claim that at that time individuals owed more allegiance to their state than to the United States. Judge Cadwalader shows conclusively such a claim is mere hogwash.

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