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Att^o Gen^ls Office 29 Sep./61
Governor,

I cannot have examined the Bill "to prohibit and prevent rebellion" &c

The first section proposes to punish persons who, being citizens of this state, as a soldier or officer of the Army of the so called confederate states, and as a part of an armed force; shall invade this state, to make war upon it.

The conduct or acts here described and proposed to be punished do not amount to treason against the U. States. The intent and purpose alone must be directed alone against the government of Kentucky. The act says "to make war upon it."

According to the decision in Dorr's case, who was tried for treason against the State of Rhode Island (see Whartons Amer. Crim. Law Sections 2772-3-4-5-6 &^c) and many other decisions and authorities

(2)
a state may punish treason against it. And whilst it is admitted a state cannot punish treason against the U. States, either by calling the obnoxious acts or conduct "treason" or by calling ^them^ at ^by^ any other name — if the acts punished amount to treason against the U. States a state cannot punish ithem because that power has been granted to congress by the Federal Constitution, and congress has prescribed the punishment, which ousts the state jurisdiction over the matter yet a state may punish treason against itself own government.

The second section proposed to punish persons who shall, within this state persuade, or induce any person to enlist or take service in the Army of the so called Confederate States, and the persons so persuaded or induced does enlist or take service in the same.

If the conduct here described is treason against the U. States, then

(3)
the state has transcended, or undertaken to transcend her legitimate powers over the subject. If it is not treason against the U. States — then the state has power to punish the forbidden conduct.

In treason agasint the U. States there must be the intent and the overt act of levying war against the government or adhering to its enemies giving them aid and comfort.

To persuade another or induce another — to join the confederate army, and that other shall afterwards join the confederate army is not a levying of war — If it was carried so far as to enlist or enroll the person persuaded &^c it might then be said to be a levying or making of war and the overt act of enrolling and swearing in the recruit might amount to treason, but the simple act of using

(4)
some argument addressed to the recruit, that might persuade him or induce him afterwards to join the Army of the Confederate states is not in my judgment such an 'overt act' as is contemplated by the Constitution. Is not such a levying of war or giving aid &^c as to make it treason.

It may be said that it would make the party an accessory before the fact in other crimes, and that is treason all accessories before the fact are princip^a^les. This would be true under the English law of treason, but ours is a constitutional provision and places the subject on a slightly different ground.

Mr Wharton says, (§2735.) "While in treason all parties concerned are principals, it has been considered an open question, whether those, who before the act, counsel and advise it who in ordinary felonies would be accessories before the fact, are here principals. In Burr's case the point was not ruled by Marshall C. J.

(5)
who considered the case not to require it; and in fact our Judicial history presents no case of a prosectuion against a party who, while advising the overt act is absent at its commission — perhaps ignorant that it was to be committed."

He says the weight of authorities is, that the advising &^c before the act would make the party a principal, and guilty of treason, but this authority is English, and not made with reference to the peculiar language of our constitution.

He furthermore says (§2736.) "But while it would thus appear that a party concerting a treasonable act would be a principal in its commission even though absent, it is submitted with due deference to the weight of authority to the contrary that it is just as absurd to make a party who publishes seditious writings

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or participates in seditious meetings a principal in any particular treasonable conspiracy to which they lead, but with the intended execution of which he is ignorant, as it would be to make the publisher of an obscene book the principal in any act of laciviousness it might excite."

Upon the point in question, no aAmerican case has been decided. The Supreme Court in Burr's case shyed round it — The weight of authority being eEnglish, and not made with reference to our constitutional definition of treason — The best American Crim. Law writer condemns the principle; and therefore I cannot believe that a person who merely persuades or induces another to join the enemys army, ^and such other does so join^ in treason against the U. States. And this not being treason against the U. States the State has power to punish it.

I feel clear and satisfied that the first section is constitutional. The

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some argument addressed to the
recruit, that might persuade him
or induce him afterwards to join
the Army of the Confederate States
is not in my judgment such an
'over act' as in contemplated by
the constitution. Is not such a levying of
war or giving aid & as to make it treason.

It may be said that it would
make the party an accessory before
the fact in other crimes, and
that in treason all accessories before
the fact are principles. This would
be true under the English law of
treason, but ours is a constitution
provision and places the subject
on a slightly different ground.

M^r Wharton says (¶ 2735.) "While in
treason all parties concerned are
principals, it has been considered
an open question, whether those, who
before the act, counsel and advise it
who in ordinary felonies would be
accessories before the fact, are here
principals. In Burr's case the
point was not ruled by Marshall C. J.

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who considered the case not to require
it; and in fact our Judicial
history presents no case of a prosecution
against a party who, while advising
the overt act is about at its
commission— perhaps ignorant that
it was to be committed."

He says the weight of authorities
is, that the advising &c before
the act would make the party a
principal, and guilty of treason,
but this authority is English,
and not made with reference
to the peculear language of
our constitution.

He further says (¶ 2736.) "But
while it would thus appear that
a party concerting a treasonable act
would be a principal in its
commission even though absent, it is
submitted with due deference to the
weight of authority to the contrary
that it is just as absurd to make
a party who publishes seditious writings

[MG1 - 285]

6

or participates in seditious meetings
a principal in any particular
treasonable conspiracy to which they
lead, but with the intended execution
of which he is ignorant, as it would
be to make the publisher of an
obscene book the principal in any
act of laciviousness it might excite."

Upon the point in question, no
American case has been decided.
The Supreme Court in Burr's case
shyed rount it. The weight of authority
being English, and not made
with reference to our constitutional
definition of treason. The best
American Cim. Law writer condemns
the principle; and therefore I cannot
believe that a person who
merely persuades or induces another
to join the enemys army and such other does
so join is treason against the U. States. And this
not being treason against the U. States
the State has power to punish it.

I feel clear and satisfied that
the first Section is consitutional. The

[MG1 - 286]

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second section presents what M^r Wharton calls an open question— a question which presented some embarrassment to the Suppreme Court of the U. S. in Burr's case and therefore they did not decide it. A question upon which there has been diversity of opinion even among the English courts but the weight of their decisions are one way and our favorite American Crim. Law writer the other— I side with M^r Wharton on the question—

Truly

A J James
att^o Gen^l