Crabtree v. Ex'rs of Wm. Neff.

hundred dollars shall not carry costs. And if, at the term at which the judgment was entered, a motion had been made to vacate or amend it, as to the costs, it would have been so ordered.

The question now is, whether, after several terms of the court have intervened since the judgment was entered, it is competent for the court to revise or amend it. There can be no doubt that the judgment, awarding costs to the plaintiff, is a substantial part of the judgment in the case. It has the same legal effect as the judgment on the verdict for the sum returned by the jury.

In the case of the Bank of the United States v. Moss et al., 6 Howard, 31, the Supreme Court decided that a court can not revise or correct a judgment entered at a prior term, even where the court rendering the judgment had not jurisdiction of the case. This doctrine has been recognized and affirmed by repeated decisions of that court, and is the settled law, not only in the courts of the United States, but in the courts of the States, with perhaps one exception.

But there is another ground on which it is insisted the motion for a retaxation of the costs must be sustained. It is objected to the taxation that it does not discriminate between what are properly the costs of the plaintiff and the defendants' costs. While the theory of taxation contended for by counsel, as sanctioned by the common law, is correct, there is no statute, or rule of court, making it imperative on the court. The practice of taxing the entire cost of the case to the losing party, has prevailed in this court from its organization, unless the judgment provides specially for an apportionment of the costs between the parties. This may now be regarded, prescriptively at least, as the law of this court. It would be attended with great inconenience now to change a practice so long and so uniformly adopted. Nothing short of direct legislation on the subject, or some rule obligatory on the court, would justify the change.

The motion for retaxation is overruled.

United States v. Cathcart.

(CIRCUIT COURT.)

THE UNITED STATES v. CHARLES W. H. CATHCART.

SAME V. CATHERINE PARMENTER.

The seceding ordinances of a portion of the States did not abrogate the constitution of the United States, or release the citizens of any State from their obligation of loyalty to the government of the United States, and a citizen or resident of any State may, therefore, be indicted and punished for treasonable acts against that government.

The government of the United States is not a compact between the several States, from which any State may withdraw at pleasure, with or with

out cause.

The constitution of the United States was ordained and established, not by the States in their sovereign capacities, but, as the preamble emphatically declares, by the people of the United States; and the government of the Union emanates from the people, and is a government for the people.

The government of the Union, though limited in its powers, is supreme within its sphere of action, and laws passed pursuant to the constitution, form the supreme law of the land.

Flamen Ball, District Attorney, for United States.

William M. Corry, for defendants.

OPINION OF THE COURT:

In the first of these cases, a special demurrer to the indictment has been filed; and in the second, there is a motion to quash. The indictments in both cases are substantially the same in their structure; and the questions raised on the demurrer, and in the motion to quash, being the same, it will be unnecessary to consider them separately, as the judgment in one case will be decisive of the other. The

United States v. Cathcart.

views now stated by the court have special reference to the grounds of demurrer in Cathcart's case.

The indictment contains two counts. The first count avers that there is now existing an open and public war or rebellion, carried on with force and arms by the so-called Confederate States of America, against the government and laws of the United States; and that the defendant, owing allegiance to the government of the United States, in violation of such allegiance has levied war against the same by banding together with others in military array; and thus has committed treason against the United States.

The second count, after reciting the existence of the rebellion or war, as averred in the first count, charges that the defendant knowingly and willfully conspired with others, and did assist and give aid and comfort to those in rebellion or war against the United States, and in the execution of his traitorous adhesion to the enemies of the United States, committed several overt acts of treason, which are specifically set forth, but which it is unnecessary here to recite.

The first count is based on the first section of the act of Congress of July 17, 1862, to suppress insurrection, punish treason, etc., which provides that every person who shall hereafter commit the crime of treason against the United States, and shall be adjudged guilty thereof, shall suffer death, or fine and imprisonment, as the court may direct.

The second count is based on section 2 of said act, which 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 and comfort thereto, or shall engage in, or give aid and comfort to any such existing rebellion or insurrection, and be convicted thereof, shall be liable to fine or imprisonment, or both, at the discretion of the court." 12 Laws of U. S. 589.

There are several exceptions to the indictment, which are set out in the special demurrer. The first one stated has been abandoned, and need not be noticed. The second

United States v. Cathcart.

exception is for duplicity in the second count in averring a conspiracy of several persons to aid in several distinct offenses. 3. Misjoinder of a count for felony, and for a misdemeanor. 4. No averment that the crimes charged were committed within any county in the Southern District of Ohio. 5. Repugnance in both counts in averring the crimes charged to have been committed against the government of the United States and also the people of the United States. 6. The crimes are charged to have been committed against the allegiance of the defendant, when they can only be against obedience, and because of the agreement of the State of Ohio, and of all the other States, to the constitutional compact binding on the citizens of Ohio and of each State, so long as the compact remained. 7. That treason or conspiracy against the United States after the refusal of some of the States to continue the constitutional compact, are no longer possible.

[It would occupy too much space to insert the views of the court on the mere technical exceptions to the indictment, and they are therefore omitted.-REPORTER.]

The sixth and seventh causes of demurrer, involved also in the motion to quash, are yet to be considered. They have been recited as set out in the demurrer, in a previous part of this opinion, and it is not necessary to restate them here. Both present substantially the same question, and may, therefore, be discussed together. They affirm, that from the facts alleged in the indictment, it is impossible that the crime of treason against the government of the United States can be committed. In a legal sense, the demurrer admits the truth of the facts alleged in the indictment. One of these facts is, that the United States is now engaged in a war for the suppression of a rebellion against the government by the people of certain States, aiming at the overthrow of the constitution and the establishment of another government. It is insisted that the States in rebellion have abrogated the compact by which they were bound to the Union, and that this compact being dissolved, by

United States v. Cathcart.

their ordinances of secession, neither a citizen of one of the States thus seceding, nor of any State not involved in the acts of secession, can commit the crime of treason against the government of the United States.

In support of this position, certainly somewhat startling in its character, it is insisted that the constitution, instead of creating an actual and efficient government for the whole people of the United States, is a mere league or compact, from which any State, or any number of States, may at any time withdraw, with or without cause, and without or against the consent of the people of the other States, as caprice, passion, or interest may dictate; that the States, when they entered into the Union and became parties to this league or compact, were sovereign and independent; that the allegiance of the people of each State was due exclusively to the State in which the citizen had his domicile, and the allegiance being inalienable and indivisible, could not be and has not been transferred, in whole or in part, to the government of the United States, and remains, therefore, with the people of the individual States, whose obligations of allegiance are wholly due to the State in which they live; that when the people of a State, in any way they may see proper to prescribe, ignore, or repudiate such league or compact, they are thereby absolved from all obligation of obedience or allegiance to the government of the United States; and that, if they take the attitude of armed rebellion against it, with the avowed purpose of its overthrow, they can not be punished as rebels or traitors. And as the necessary and logical result of this theory, it is urged that if a citizen or resident of a State, which has not seceded, but which remains faithful and loyal to the government, adheres to those thus in rebellion, and supports and sustains them in their criminal attempts, he is not guilty of treason and can not be held accountable for that crime, under the laws or authority of the United States.

These are in substance the points made by counsel in support of the two last grounds of demurrer. The argu