HABEAS CORPUS. 



359 



Earl Russell. Other information bore that he was a 

 bearer of despatches from the same authorities to their 

 agents in London. Information from various sources 

 agreed in the fact that he was travelling under a pass- 

 port from the British Consul at Charleston. 



Upon this information I directed the police at New 

 York to detain Mr. Muir and any papers which might 

 be found in his possession until' I should give further 

 directions. He was so detained, and is now in custody 

 at Fort Lafayette, awaiting full disclosures. In his 

 possession were found seventy letters, four of which 

 were unsealed, and sixty-six sealed There was also 

 found in his possession a' sealed bag, marked " Foreign 

 Office, 3," with two labels, as follows ; "On Her Brit. 

 Maj. service. The Right Honorable the Lord John 

 Russell, M. P., Ac., Ac., Ac. Despatches in charge of 

 Robert Mure, Esq.," signed Robert Bunch. " On Her 

 Brit. Maj. service. The Right Honorable the Lord 

 John Russell, M. P., H. B. M/s Principal Secretary of 

 State for Foreign Affairs, Foreign Office, London, R. 

 Bunch." The bag bears two impressions of the seal 

 of office of the British consul at Charleston, and seems 

 to contain voluminous papers. 



There were also found upon Mr. Muir's person, m 

 an open envelope, what pretends to be a passport. 



Also a letter of introduction. 



There were also found several unsealed copies of a 

 printed pamphlet, entitled " A narrative of the battles 

 of Bull Run and Manassas Junction, July 13th and 

 21st. Accounts of the advance of both armies, the 

 battles and rout of the enemy, compiled chiefly from 

 the detailed reports of the Virginia and South Carolina 

 press ; Charleston, Steam Power Presses of Evan & 

 Coggswell, No. 3 Broad, and 103 East Bay streets, 1861." 



This pamphlet is manifestly an argument for the 

 disunion of the United States. Several copies of it 

 were found addressed to persons in England. 



The marks and outward appearance of the bag in - 

 dicate that its contents are exclusively legitimate com- 

 munications from the British consul at Charleston to 

 H. B. M.'s Government Nevertheless, I have what 

 seem to be good reasons for supposing that they may 

 be treasonable papers, designed and gotten up to aid 

 parties engaged in arms for the overthrow of this 

 Government, and the dissolution of the Union. These 

 reasons are : 1st. That I can hardly conceive that 

 there can be any occasion for such very voluminous 

 communications of a legitimate nature being made 

 by the consul at Charleston to his Government at the 

 present time. 2d. Consuls have no authority to issue 

 passports, the granting of them being, as I understand, 

 not a consular but a diplomatic function. Passports, 

 however, have, in other times, been habitually granted 

 by foreign consuls residing in the United States. But 

 soon after the insurrection broke out in the Southern 

 States a regulation was made by this department, 

 which I have excellent means of knowing was com- 

 municated to the British consul at Charleston, to the 

 effect that, until further orders, no diplomatic or con- 

 sular passports would be recognized by this Govern- 

 ment, so far as to permit the bearer to pass through 

 the lines of the national forces or out of the country, 

 unless it should be countersigned" by the Secretary of 

 State, and the commanding general of the army of the 

 United States. Mr. Muir had passed the lines of the 

 army, and was in the act of leaving the United States 

 in open violation of this regulation. Moreover, the 

 bearer of the papers, Robert Muir, is a naturalized 

 citizen of the United States, has resided here thirty 

 years, and is a colonel in the insurgent military forces 

 of South Carolina. 3d. If the papers contained in the 

 bag are not illegal in their nature or purpose, it is 

 not seen why their safe transmission was not secured, 

 as it might have been by exposing them in some way 

 to Lord Lyons, British Minister residing at this capital, 

 whose voucher for their propriety, as Mr. Bunch must 

 well know, would exempt them from all scrutiny or 

 suspicion. 4th. The consul's letter to the bearer of 

 despatches attaches an unusual importance to the 

 papers in question, while it expresses great impatience 

 for their immediate conveyance to their destination, 



and an undue anxiety lest they might, by some acci- 

 dent, come under the notice of this Government. 5tb. 

 The bearer is proved to be disloyal to the United Status 

 by the pamphlet, and the letters found in his possession. 

 I have examined manv of the papers found upon the 

 person of Mr. Muir, and'l find them full of treasonable 

 information, and clearly written for treasonable pur- 

 poses. These, I think, will be deemed sufficient 

 grounds for desiring the scrutiny of the papers, and 

 surveillance of the bearer on my part. 



The remainder of the letter contains instruc- 

 tions to Mr. Adams, and is not important in 

 reference to this subject. The opinion of the 

 Courts of the United States has been often and 

 very clearly expressed. On the 27th of April 

 Judge Belts, of the U. S. District Court at New- 

 York, in a charge to the Grand Jury, thus stated 

 acts which were treasonable : 



Giving aid or comfort to the enemies of the country 

 consists in furnishing the military supplies, food, cloth- 

 ing, harbor or concealment, or communicating infor- 

 mation to them, helping their hostilities against the 

 country and its Government. 



It is most probable that complaints will be laid be- 

 fore you under this branch and definition of the crime. 

 Within it will be included acts of building, manning, 

 or in any way fitting out or victualling vessels to aid 

 the hostilities of our enemies ; sending provisions, arms, 

 or other supplies to them ; raising funds or obtaining 

 credit for their service ; indeed, every traitorous pur- 

 pose manifested by acts, committed in this district by 

 persons owing allegiance to the country, will be acts 

 of treason. It is not necessary that the accused should 

 have raised or created war by his own acts ; he levies 

 war by acting with those who have set it on foot, or 

 by seizing or holding ports, or like acts of hostile ag- 

 gression. The kindred crime of misprision of treason 

 is this : If any person owing allegiance to the Govern- 

 ment has knowledge of acts of treason committed by 

 others within the jurisdiction of the Court, and does 

 not make it known to the President of the United 

 States, or one of the Judges of the United States, or 

 the Governor of the State, or a judge or magistrate 

 thereof, he becomes guilty of misprision of treason, and 

 subject to seven years' imprisonment and a fine of one 

 thousand dollars for the offence ; and it is the duty of 

 the Grand Jury to present for trial therefor such of- 

 fender, whatever may be his individual connection or 

 relationship with the offender. 



In the Circuit Court of the United States for 

 Ne\v York, Judge Nelson at a later day thus 

 defined the overt act of treason : 



There is more difficulty in determining what consti- 

 tutes the overt act under the second clause of the Con- 

 stitution namely, adhering to the enemy, giving him 

 aid and comfort." Questions arising under this clause 

 must depend very much upon the facts and circum- 

 stances of each particular case. There are some acts 

 of the citizen in his relations with the enemy which 

 leave no room for doubt such as giving intelligence, 

 with intent to aid him in his act of hostility ; sending 

 him provisions or money ; furnishing arms, or troops, 

 or munitions of war ; surrendering a military post, Ac., 

 all with a like intent. These and kindred facts are 

 overt acts of treason, by adhering to the enemy. 

 Words, oral, written, or printed, however treasonable, 

 seditious or criminal of themselves, do not constitute 

 an overt act of treason within the definition of the, 

 crime. When spoken, written, or printed in relation 

 to an act or acts which, if committed with a treasonable 

 design, might constitute such overt act, they are ad- 

 missible as evidence, tending to characterize it, and 

 show the intent with which the act was committed. 

 They may also furnish some evidence of the act itself 

 against the accused. This is the extent to which such 

 publications may be used, either in finding a bill of in- 

 dictment or on the trial of it. 



