United States v. Cathcart.

for the time, the deadly poison was not wholly eradicated from the southern mind. After the lapse of thirty years, its baleful effects have appeared in a new and more malignant form. That which was nullification in 1832, is secession in 1860. The political leaders in the Southern States, by means which I do not care to recite, have so far succeeded in their treasonable machinations as to induce those States madly to leap into the fiery vortex of secession. They have gone through the mockery of passing ordinances, in which they declare they are no longer parties of the solemn compact of government, and repudiate all allegiance to it. They have inaugurated war against that government and have been in armed rebellion against it for nearly three years. If successful, the overthrow of the government is the inevitable result, for secession, having no warrant in the constitution, is revolution. The authorities charged with the solemn duty of preserving and perpetuating the government, have found it imperatively necessary to meet force by force, and have adopted measures to repel and subdue the criminal designs of those in rebellion. The country is in a state of war-a war which the adjudications of the Supreme Court have declared to be lawful and constitutional. A struggle is in progress which, at one time, jeopardized the very life of the government. In such a crisis, it is now gravely urged in a court deriving its being and authority from a constitution which the judges are sworn to support, that a citizen of the patriotic and loyal State of Ohio, charged with criminal complicity in the rebellion, can not be guilty of treason, because the revolted States had a right to withdraw from the Union; and, as a logical and legal result, have virtually destroyed the entire fabric of the government, and absolved the people of the United States from all obligation of allegiance to it! As a judge, and as a citizen of the United States, I am constrained to enter my protest against such a dangerous perversion of the principles of the constitution. To sanction such a position, under circumstances now existing in our

United States v. Tierney.

country, implies, in my judgment, a most unenviable condition of intellect, and the possession of a measure of courage, physical and moral, to which I can lay no claim. The character and tendencies of this doctrine are not now to be settled by unmeaning abstractions and metaphysical speculations. The period when these could have been available has gone by, and the bitter fruits of this sad error are now fully developed in its practical results. It has plunged those who have been its deluded victims into one of the deadliest conflicts the world has ever witnessed. Its blighting influences are now frightfully apparent in the wide-spread suffering, desolation, and ruin, which it has brought upon the States which have so madly raised the banner of revolt. The loyal States, too, have laid liberal offerings on the altar of sacrifice. In their patriotic devotion to the government of their fathers, and impelled by a stern, unconquerable purpose of defending, preserving, and perpetuating it, they have cheerfully borne a severe trial of their energies, and profusely lavished their treasures and poured out their blood. The sacrifice, though costly, we may well hope, will be fully repaid by the end to be achieved.

I have now only to say, that upon none of the grounds urged, can the exceptions to this indictment be sustained. The demurrer, as also the motion to quash in the case of Catherine Parmenter, are therefore overruled.

(CIRCUIT COURT.)

THE UNITED STATES v. PATRICK TIERNEY.

Land rented to the United States, to be used temporarily as a camp, is not a place, within the terms of the constitution of the United States, over which the United States have "sole and exclusive jurisdiction."

Within such camp the jurisdiction of the United States would only be such

United States v. Tierney.

as was necessary for military purposes and required for the enforcement of discipline and the execution of the rules and articles of war. The United States possesses exclusive jurisdiction of places that have been purchased by the United States by consent of the legislature of the State, for the purpose of erecting a fort, magazine, arsenal, dock-yard, or other needful building.

The courts of the United States have no jurisdiction of an offense against section 16 of the act of Congress of 1790, committed in a place where the jurisdiction of the United States is concurrent with that of a State.

Flamen Ball, District Attorney, for United States.

John M. Staples, for defendant.

OPINION OF THE COURT:

The indictment against the defendant in this case, is based upon section 16 of crimes act of April 30, 1790, which provides, "that if any person within any of the places under the sole and exclusive jurisdiction of the United States, or upon the high seas, shall take and carry away with intent to steal or purloin the personal goods of another," etc., shall be liable to the punishment prescribed. The charge against the defendant is the stealing of a mule at a place called Camp Hurtt, and the indictment alleges that it is "a military camp of the United States, the site of which said camp is within the sole and exclusive jurisdiction of the United States." The defendant has filed a plea to the jurisdiction. By agreement of counsel, the facts in reference to the right of exclusive jurisdiction in the United States over the said camp have been submitted to the court.

These facts are, in substance, that on March 19, 1863, by a written agreement between Timothy Kirby and Capt. Hurtt, assistant-quartermaster of the United States, Kirby leased to the United States a pasture-field containing about sixty acres of land for one month, with the privilege of using and occupying the same for six months, at the option of the government, at a stipulated rent.

United States v. Tierney.

Was this field, alleged in the indictment to be within the limits of Camp Hurtt, a place within the sole and exclusive jurisdiction of the United States, so as to give this court jurisdiction of the larceny? The constitution of the United States, art. 1, sec. 8, authorizes Congress to exercise exclusive legislation "over all places purchased by consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings." Was the field rented by Kirby to the United States a place, within the terms of the constitution, within or over which the United States had "sole and exclusive jurisdiction?" There are several reasons why this jurisdiction did not exist. The places over which exclusive jurisdiction is granted, are those which have been purchased by the United States for some of the purposes specified in the constitution, and the grant of power does not extend to a place or tract of land rented by the Government for a temporary purpose. An unanswerable objection to the exercise of exclusive jurisdiction in this case is that the tract of land was not purchased of the United States by consent of the legislature of the State of Ohio, for this consent is essential to the exercise of exclusive jurisdiction by the United States.

Again, it is clear, the purpose for which the land was rented is not within any of the specifications of the constitution, or within the scope of any of the terms used. The land was not purchased for the purpose of constructing a fort, magazine, arsenal, dock-yard, or other needful building. The constitution clearly implies the permanent use of the property purchased for the construction or erection of some of the structures designated, or some other needful building. It would be strange, indeed, if such an agreement for renting a piece of land to the United States should deprive the State of Ohio of all jurisdiction over it, and confer sole and exclusive jurisdiction to the United States. It is not in the power of a citizen thus to dispose of the right of a State over any part of her territory. The averment, in

United States v. Hughes

the indictment, that this tract was within the limits of Camp Hurtt, a military camp of the United States, does not withdraw it from the jurisdiction of the State. The jurisdiction of the United States would only be such as was necessary for military purposes, such as were required for the enforcement of discipline and the execution of the rules and articles of war. It seems clear, too, on the authority of the case of the United States v. Davis, 5 Mason, 356, that to sustain an indictment under section 16 of the act of 1790, the jurisdiction of the United States over the places referred to in the statute must be sole and exclusive; if merely concurrent with a State, the courts of the United States have no jurisdiction of the offense. The plea to the jurisdiction is sustained.

(DISTRICT COURT.)

THE UNITED STATES v. EDWARD L. HUGHES.

The proclamation of the President of the United States, of December 8, 1863, extending amnesty to persons who directly or indirectly participated in rebellion, included within its terms a citizen of the State of Ohio, indicted for treason against the United States.

A citizen who has complied with the requirements of such proclamation, is not excluded from its protection by a subsequent explanatory proclamation of the President, issued after such compliance, debarring persons in civil custody from its operation.

Flamen Ball, District Attorney, for United States.

J. H. Thompson, for defendant.

OPINION OF THE COURT:

The indictment against the defendant was returned and filed in this court on March 9, 1863. In this indictment the defendant is charged in two counts with the crime of