United States v. Greathouse. anything to you upon the much disputed questions, whether or not the vessel ever did, in fact, sail from the port of San Francisco, or whether, if she did sail, she started on the hostile expedition. In the judgment of the court they are immaterial, if you find the facts to be what I have said the evidence tends to establish. When Harpending received the letter of marque, with the intention of using it, if such be the case (and it is stated by one of the witnesses that he represented that he went on horseback over the plains expressly to obtain it), he became leagued with the insurgents—the conspiracy between him and the chiefs of the rebellion was complete; it was a conspiracy to commit hostilities on the high seas against the United States, their authority and laws. If the other defendants united with him to carry out the hostile expedition, they too, became leagued with him and the insurgent chiefs in Virginia, in the general conspiracy. The subsequent purchasing of the vessel and the guns and the ammunition, and the employment of the men to manage the vessel, if these acts were done in furtherance of the common design, were overt acts of treason. Together, these acts complete the essential charge of the indictment. In doing them, the defendants were performing a part in aid of the great rebellion. They were giving it aid and comfort.. It is not essential, to constitute the giving of aid and comfort, that the enterprise commenced should be successful, and actually render assistance. If, for example, a vessel fully equipped and armed in the service of the rebellion should fail in its attack upon one of our vessels, and be itself captured, no assistance would,. in truth, be rendered to the rebellion; but yet, in judgment of law-in legal intent—the aid and comfort would be given. So if a letter containing important intelligence for the insurgents, be forwarded, the aid and comfort are given, though the letter be intercepted on United States v. Greathouse. its way. Thus, FOSTER, in his Treatise on Crown Law, says: And the bare sending money or provisions, or sending intelligence to rebels or enemies, which in most cases is the most effectual aid that can be given them, will make a man a traitor, though the money or intelligence should happen to be intercepted; for the party in sending it did all he could; the treason was complete on his part, though it had not the effect he intended." Wherever overt acts have been committed which, in their natural consequence, if successful, would encourage and advance the interests of the rebellion, in judgment of law, aid and comfort are given. Whether aid and comfort are given-the overt acts of treason being established-is not left to the balancing of probabilities; it is a conclusion of law. If the defendants obtained a letter of marque from the president of the so-called Confederate States, the fact does not exempt them from prosecution in the tribunals of the country for the acts charged in the indictment. The existence of civil war, and the application of the rules of war to particular cases, under special circumstances, do not imply the renunciation or waiver by the Federal government of any of its rights as sovereign towards the citizens of the seceded States. As matter of policy and humanity, the government of the United States has treated the citizens of the so-called Confederate States taken in open hostilities as prisoners of war, and has thus exempted them from trial for violation of its municipal laws. But the courts have no such dispensing power; they can only enforce the laws as they find them upon the statute-book. They cannot treat any new government as having authority to issue commissions or letters of marque which will afford protection to its citizens, until the legislative and executive departments have recognized its existence. The judiciary follows the political department United States v. Greathouse. of the government in these particulars. By that department, the rules of war have been applied only in special cases; and notwithstanding the application, Congress has legislated, in numerous instances, for the punishment of all parties engaged in, or rendering assistance in any way to the existing rebellion. The law under which the defendants are indicted, was passed after captives in war had been treated and exchanged as prisoners of war, in numerous instances. But even if full belligerent rights had been conceded to the Confederate States, such rights could not be invoked for the protection of persons entering within the limits of States which have never seceded, and secretly getting up hostile expeditions against our government and its authority and laws. The local and temporary allegiance, which every one-citizen or alien-owes to the government under which he at the time lives, is sufficient to subject him to the penalties of treason. These, gentlemen, constitute all the instructions I have to give. My associate, Judge HOFFMAN, will submit some further observations to you. The case is one of much interest-not because it is the only case for treason tried in the State, but because of the great importance of the principles involved. A's you will weigh carefully the evidence, and be guided by the instructions of the court, you will have no difficulty in reaching an intelligent and just verdict. HOFFMAN, J., then gave additional instructions to the jury, substantially consistent with those above stated. The jury found a verdict of: GUILTY. NOTE.-Sentence imposing both fine and imprisonment was in due form pronounced upon the prisoners by Mr. Justice FIELD. Rubery, the Englishman, was subsequently pardoned by President Lincoln, at the request of" our good friend," John Bright, of England. Greathouse's Case. The other prisoners were subsequently, during the attendance of Justice FIELD upon the supreme court at Washington, brought before District Judge HOFFMAN, upon habeas corpus; and were released from custody, upon taking the oath prescribed in a general amnesty proclamation, issued by the president, after their sentence, and upon giving bonds for future good behavior. See the following case. GREATHOUSE'S CASE. Circuit Court, Tenth Circuit; Northern District of California, 1864. CRIMINAL JURISDICTION.-PARDONS. The authority given to judges of the United States courts, by section 14 of the act of September 24, 1789, 1 Stat. ut L. 81, to grant writs of habeas corpus, extends to cases where a prisoner is in custody under a valid conviction and sentence, but claims release upon the ground of a pardon. The amnesty proclamation of the president, of December 8, 1863,offering pardon to those persons who had participated in the then existing rebellion, upon the condition of their subscribing to an oath to support the United States Constitution, &c.,-extends to persons who, prior to the date of the proclamation, had been convicted and sentenced for the offenses described in such proclamation. That proclamation included within its benefits, not only those who joined the rebellion in arms, but also those who were in any way implicated therein. In the case of a general pardon by proclamation or act of the legislature, of which the court takes judicial notice, the court must dismiss all knowledge of the intentions of the pardoning power, except such as is to be derived from the terms of the act of grace itself. Where a pardon is granted, with a condition annexed, the fact that the person pardoned is in prison, and must accept the condition before receiving the benefit of the pardon, does not constitute such duress as will make his acceptance of the condition of no effect. Greathouse's Case. Application for a writ of habeas corpus. The trial and conviction of Ridgley Greathouse, for treasonable acts, is reported ante, p. 364. Applicacation was now made, on his behalf, for a writ of habeas corpus, to procure his discharge. HOFFMAN, J.-A writ of habeas corpus is applied for on the part of Ridgley Greathouse, a prisoner now in execution under the judgment and sentence of this court, for the crime of engaging in and giving aid and comfort to the existing rebellion. The legality of the conviction and sentence is not denied; but it is claimed that the prisoner is entitled to his discharge under the proclamation of the president, of December 8, 1863. The application is resisted by the district-attorney on two grounds: 1st. That the court has no jurisdiction to award the writ or discharge the prisoner, even though it be clear that he is within the terms of the proclamation; and, 2nd. That the proclamation does not apply to his and similar cases. 1. As to the jurisdiction of the court. The authority of the courts of the United States, and of the judges thereof, to issue writs of habeas corpus, is derived from section 14 of the act of September 24, 1789. That section provides that "either of the justices of the supreme court, as well as the judges of the district courts, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment. Provided, that writs of habeas corpus shall in no case extend to prisoners in jail, unless where they are in custody under or by color of the authority of the United States, or committed for trial before some |