Wednesday.] DELONG-FITCH. [July 6. the person accused of such an odious crime. of the same overt act. And this has been the From the very circumstance of the crime of stumbling-block in the courts of the United treason being so regarded, it has been deemed necessary to require extraordinary proofs, to secure a conviction of that crime. That has been the rule in all civilized nations, and it is in order that we may not be looked upon as adventurers and innovators in making such a change in regard to the rights and privileges of persons accused of so grave a crime, that I propose we should follow the beaten path which has been marked out, and recognized as proper and sufficient, by the wise men of every civilized nation. As my colleague, (Mr. Fitch,) has said, the laws have been found insufficient to punish the crime in the United States; but the reason is that it requires two witnesses to the same overt act, before a conviction can be had. It is very seldom that a man can be convicted, where the evidence of more than one person is required to the same act, and that has been the great stumbling block in the way of convictions of treason. But had the clause read a little differently, I think there would have been no diffi culty in convicting many of those villains and traitors, who. since this rebellion began, have been arrested. and released, for want of evi dence. Now if we provide that they may be convicted by two witnesses, one of whom may have seen the party in one place committing an overt act, and the other in another place com mitting another overt act, there would be no difficulty in securing convictions. But from the fact that this is a crime which works not merely the attainder of blood, but works also the ruin of all concerned, pecuniarily and socially, as must be its effect if the crime is stamped upon them, as it will be, by public condemna tion, after this war is passed, I think we should provide the additional safeguard of requiring two w.taesses to convict of treason. Mr. FITCH. Will the gentleman allow me to ask him a question? What does he mean by an overt act? Mr. DELONG. Well, sir, I will give the gentleman my understanding of it. It is an act committed in furtherance of the crime of trea son. Mr. FITCH. Does my colleague hold that a man can be tried and convicted of treason un der this provision requiring two or more wit nesses, unless each and every act, or the act constituting the crime of treason is proved? Mr. DELONG. I do not understand the question, but I hold this: The Constitution says that no person shall be convicted of the crime of treason except upon the testimony of two or more witnessses to the same overt act, and 1 say that under an indictment framed in the courts of the United States for treason, you could not convict a man by proving by one witness that he committed an overt act of treason here, and by another witness that he committed an overt act of treason there. You would have to prove by two witnesses the commission States, which has prevented convictions of treason. That is my answer. I say, if you adopt the amendment which I propose, a man may be indicted for treason before the State Courts, and tried, and if two witnesses come forward and testify, one that he has committed treason in one place, and the other that he has committed treason in another, he may be convicted. That is all I am laboring for; to remove this stumbling block. Mr. FITCH. That is not my idea of an overt act: I understand that it is the crime charged itself; the act of treason. Mr. DELONG. I will endeavor to define more clearly my idea of what constitutes an overt act; it may be that I have too much of the Fourth of July left in me to make myself clearly understood. [Laughter.] It has been said by some that perhaps the South would have been justified in their rebellion if they had waited for Mr. Lincoln to commit some "overt act" against the rights of the South. Now, what does that mean? It means some act violative of a right. In that sense, and in that sense only, is it used in the Constitution. Inasmuch as treason consists in levying war against the United States, or giving aid and comfort to its enemies, if you give aid and comfort, or levy war, or proceed to do either, you commit an overt act of treason. That is what I understand to be the meaning of the term overt act." Now, a person may do both. A person may give aid and comfort to the enemies of the Republic, and he may, besides aiding and comforting them, himself rise in arms against the Government. And you may not be able to prove by but one person that he rose in arms, and by one person that he gave aid and comfort. And what I propose is, that upon the evidence of those two facts, established by two witnesses, he may be convicted of treason. That is what I am laboring for. Does my colleague understand me? Mr. FITCH. Yes; but I think, though, that the gentleman is wrong. Mr. DELONG. If the gentleman has got so that he understands me, I do not care what his opinions are. Mr. FITCH. I may, perhaps, have a little of the Fourth of July left in me, too, inasmuch as I was not able readily to understand my colleague; but it seems to me that his conclusion bears about the same relation to his premises as did the wagon to the horse, in an illustration of a faulty argument, made. I think, by Tom Hood-when the horse ran away and went down the hill, getting detached from the wagon-it don't follow. If a man is indicted for treason, for murder, or for any other offense. he can only be tried at one time for one offense charged. For instance, John Smith is indicted for the murder of Peter Jones and William Hopkins, but he can only be tried for the murder of one of them. So in cases of treason, the party can Wednesday,] DELONG-FITCH-WARWICK-TCZER-NOURSE. only be tried for the overt act which is charged in the indictment, and that overt act is, there fore, the offense with which he is charged at that time. Mr. DELONG. Is not treason, like any other offense, a compound proceeding, made up of various acts, which may be alleged in an indict ment? You may allege a felony, for example but you may prove more than one act consti tuting that felony. So you charge treason, and then you go on to prove the various acts, which taken together, constitute the crime of treason Mr. FITCH. No; for you cannot charge grand larceny and then go on to prove tha the defendant stole one thing in one place and another thing in another place. So in case of indictment for treason. you must allege when and where the treasonable act was committed and the prisoner cannot be tried for more than one act. Mr. WARWICK. On a trial for treason, would not the prosecution be allowed to prove circumstances other than those laid in the indict ment? For instance, hurrahing for Jeff. Davis at another time? Would not the prosecution be allowed to prove any single fact which would go to show or to substantiate the main charge? Mr. FITCH. The prosecution might be allowed to prove that, for the sake of proving the animus, or as a part of the res gesta; but they could not be permitted to produce testimony to prove that the defendant hurrahed for Jeff. Davis in Virginia, when in the indictment it is alleged that he did it in Carson. Mr. DELONG. Nobody pretends that. Mr. FITCH. Well, my colleague is in favor of altering this section so as to read: "No person shall be convicted of treason, unless on the testimony of two witnesses, or on confession in open Court." Now, if he be convicted on the testimony of two witnesses of the overt act. then that overt act must be the crime with which he is charged, for you cannot try him on more than one charge at a time. [July 6. dictment would hold water. I believe the indictment would have to be particular in stating that at such a time, and at such a place, the defendant committed an act which constituted the crime of treason, and it would be necessary to prove that particular act. Mr. TOZER. I wish to call these gentlemen to order. I do not think that any long winded speeches in regard to the meaning of the term overt act" will add one scintilla to the information of the Convention on the subject. I would like to see these long discussions brought to an end. Let us take a vote, and not spend our time listening to long harangues from those who seek to enlighten us, without effect. Mr. NOURSE. At the risk of displeasing the gentleman from Storey who last spoke, I wish to say that the reason I think two witnesses are desirable in a case of treason is, that it is purely a political crime. It is more easy, perhaps, to indict a person and convict him of a conspiracy for treason in times of high political excitement than it should be. I know that now, as the saying is. the boot is on the other leg; but I have seen the time when the Administration flunkies talked lustily about us, who would not acknowledge the Dred Scott decision, and turn in to catch runaway darkeys, and threatened us with indictments for treason and all that sort of thing. Those times have changed now, but they may come again. I do not think we should be carried away by our desire to convict those who have been guilty of treason, and I do think that in a case of treason there is more necessity for two witnesses than there is in a case of murder, where, of course, men's minds are not so likely to be influenced by political or any undue excitement. Now, in regard to this amendment, why should those words be left out here" to the same overt act?" It seems to me there is no good reason for it whatever. I am very sure, as a matter of law, that the gentleman from Storey farthest from me, (Mr. Fitch,) is correct. Certainly, I think that an indictment charging Mr. DELONG. The difference between us is, that a man is guilty of treason, without specifythat I understand that a man is to be indicted ing the act which constitutes the treason, would for treason, and not for any overt act, as levy- not, as the gentleman says, "hold water." and, ing war or aiding and assisting the enemy who to use a rather common expression. you could are levying war. If the indictment charges drive a six-horse coach through it. I think that that, it must be alleged by a separate count-- an indictment for treason must charge, as an inthat in the Territory of Nevada. in 1864, or dictment for perjury or any other felony must, at some other given date, the act of treason was the time, place and circumstance. It must charge committed, by levying war against the Federal some "overt act," in contradistinction from the Government, or giving aid and comfort, etc.. old doctrine of constructive treason. That is by which overt act the accused committed the what it goes upon. The word "overt" comes crime of treason. When you charge that in from "ouvert." which simply means "open." your indictment, then you will be allowed to And in old times, those familiar with the hisprove either one of the charges, which are overt tory of the law will recollect the case wherein a acts in themselves-either that the prisoner man was indicted for treason for wishing that levied war, that he conspired with others to do the horns of a stag were in the belly of the it, or that he gave aid and comfort to those who king. Now, it is in contradistinction from that did do it. Those overt acts, or as many of kind of doctrine, which was the doctrine of them as are proved, are compounded in the Great Britain at that time, that this doctrine one term of treason when they are proved. was settled upon, that there should be no con Mr. FITCH. I do not think that such an in-structive treason, so that one man could no Wednesday.] DELONG-FITCH-BANKS. [July 6. The motion was agreed to, and the article was read a second time by title and referred accordingly. readily charge another with a crime which was title and referred to the Committee of the regarded as so infamous, at a time when there Whole. was so much disposition to pander to the ruling power-that is, to the king. It was provided in England, therefore, that there should be two witnesses to the same "overt act," which act must be alleged in the indictment to constitute treason, or else there could be no conviction. If we are to have any change at all, I should prefer that the section should be made to correspond with the provision on the same subject matter in the Constitution of the United States and the Constitution of the State of California. Mr. DELONG. Will the gentleman allow me to ask a question? Because, as I understand him, he must have misunderstood me. He says that my understanding was that an indictment for treason, drawn without specifying where and when the offense was committed, would be valid. I did not state that. I stated only that such indictment might contain a statement of more than one thing constituting the crime of treason, as, for instance, both that the party had levied war, and that he had aided and abetted others in doing the same thing, and that the proof might establish the crime of treason, if consistent with the indictment, on either count. Then, I say, that there might be a witness to prove that the party aided others, and also another witness to prove that he himself waged war. The question was taken on the amendment proposed by Mr. DeLong, and on a division it was not agreed to-ayes, 10; noes, 16. No further amendment being offered, the section was adopted. Mr. DELONG. I give notice that I shall insist on my amendment in the Convention. Section 21 was read, as follows: SEC. 21. This enumeration of rights shall not be construed to impair or deny others retained by the people. No amendment being offered, the section was adopted. Mr. FITCH. As we have now passed through the article, I move that the Committee now rise and report it back to the Convention, with a recommendation that it be passed. The question was taken and the motion was agreed to. IN CONVENTION. The PRESIDENT baving resumed the chair. The CHAIRMAN reported that the Committee of the Whole had had under consideration Article I, entitled Declaration of Rights; had made some amendments thereto, and had in structed him to report the same back to the Convention, with a recommendation that the article be passed, with the amendments. The report was accepted, and the article was placed on the general file for a third reading. RIGHT OF SUFFRAGE. Mr. BANKS. I move that Article II, entitled Right of Suffrage, be read a second time by IN COMMITTEE OF THE WHOLE. On motion of Mr. BANKS. the Convention re solved itself into a Committee of the Whole, SECTION 1. Every white male citizen of the United Constitution,) of the age of twenty-one years and upStates, (not laboring under the disabilities named in this wards, who shall have resided in the State six months, and in the district or county thirty days next preceding any election, shall be entitled to vote for all officers and upon all questions submitted to the electors at such that now are or hereafter may be elected by the people, election. RESIDENCE OF VOTERS. this article by adding the following: Mr. BANKS. I move to amend Section 1 of the exercise of the right of suffrage on the ground that the person proposing to vote started to come to this State six months or more from the time at which he proposes to cast his vote." "This section shall not be so construed as to permit The members of the Convention are aware that there has been a construction put upon this constitutional provision, as it exists in the Constitution of California, by which persons are admitted to the right to vote who started to come to that State, or to go somewhere, six months previous to the election, notwithstanding that they may not have been in the State more than three days. The practice of allowing such men to exercise the privilege of voting, I believe, grew out of a decision or construction placed upon this clause by the Attorney General of the State of California. I ceived any judicial sanction, but I do know do not know that that construction has ever re Wednesday,] BANKS-DELONG-NOURSE-COLLINS-FRIZELL. dence somewhere, I suppose, and it has been held, in all the States, that a person loses his residence immediately upon leaving the State. In the language of Chief Justice Marshall, a man cannot be made a human balloon, but he must be in some place all the time. Now, after a man leaves New York, he has not a right to exercise the right of franchise there, and I do not know where he should be permitted to exercise it, unless it is in the land to which he has emigrated. It strikes me that a person should not be disfranchised just for travelling from one place to another. Mr. BANKS. Many persons leave a State, to go to some place or other, without having settled upon any place, in particular, to go to; and yet, because they happen to come here, and are landed on our shores, should we give them credit for residence for all the time since they left the State they came from? Mr. DELONG. You must recollect that the party has to be sworn to the fact that he started at such a time with the bona fide intention of making this State his residence. If he is a man who would perjure himself, you cannot prevent him from doing so by a constitutional provision. He has to swear that he started within six months previous to the election, from the place of his former residence, with the bona fide intention of becoming a citizen here. Mr. NOURSE. I cannot give my adhesion to such a mysterious doctrine as that. I think a man may lose his residence. If he chooses to make a caravan of himself, he does cease to be a citizen of the State he leaves, or of any State, though still a citizen of the United States. Here he is obliged to be thirty days in the district, and ten days, I suppose, before the election, in the precinct where he is to vote. Now he moves from Carson to Virginia within that time, and he has no right to vote in Virginia, although he has gone, bag and baggage, from Carson, and has no right to vote there. Should he be allowed to vote in Virginia, on the ground that he must vote somewhere? It seems to me it is very clear that a man may lose his right to vote, and that is one of the privations which a man must suffer, upon coming here, or upon travelling from any one place to any other. He must endure the deprivation of being denied the privilege of voting anywhere, until he gains a residence; and how a man can be said to have a right of residence, except by living in the State, passes my understanding. Mr. COLLINS. I think the views taken by my friend and colleague, (Mr. DeLong,) certainly carry on their face a very great absurdity. Mr. DELONG. Thank you. Mr. COLLINS. I am glad the gentleman feels grateful. The idea that a man cannot lose his vote, is a monstrous absurdity, because men do lose their votes. Men, when they commit crime, lose their votes. In States where they have registry laws, if a man fails to "come to time" in getting his name registered, he will lose his vote. I might name a hundred cases, where [July 6. a man may lose his right to vote, and it is the most absurd doctrine ever presented, that because a man starts from New York six months previously, though he may have spent all the intervening time on the passage, yet, on his arrival, he may claim six months residence here. What is the object of requiring this residence? Why, that the man may become acquainted with the usages, customs, and wants of the people. That is the reason; and unless he resides here long enough to fulfil that requirement, it is the purest absurdity to exact any residence, in any case. A man might come into the Territory and know nothing about its people, its condition, its resources, or its wants, and yet, under this doctrine, he would be entitled to vote. Therefore, the remarks of the gentleman from Humboldt, (Mr. Banks,) are just in place, and some provision should be made here, by which those men, who are less scrupulous than others, coming here from the Eastern States, shall be prevented from claiming, under this sweeping provision, the right to vote, while the better, or more conscientious class, are kept away from the polls, leaving them to be controlled by the less conscientious class of men. I do hope that the amendment proposed by the gentleman from Humboldt, or some modification of it at least, will be adopted. I think, however, that the insertion of those four or five lines may be avoided, by simply amending the clause as it already stands, so as to read something like this :-"who shall actually have resided in the State six months," or, "who shall have personally resided in the State six months." I will move the first as an amendment to the amendment of the gentleman from Humboldt. Mr. FRIZELL. It seems to me that the amendment would operate rather harshly upon a class of persons upon whom, certainly, we do not want to place any additional hardship. If we can readily give the right to vote at once to the overland emigrants who may settle in our State, I would rather be inclined to favor it. I will propose this amendment: to insert the word "actually" before "resided," so as to read, "who shall have actually resided in the State six months." I think the insertion of that one word is all-sufficient. Mr. BANKS. It occurred to me to insert the word "actually" in that connection, and, if any qualifying word is to be inserted there, that is, no doubt, the word which should be selected; but upon reading it, it seems to me that the language is already so clear that there should be no possibility of misconstruction. How can a man reside in a State and not actually reside in it? How, by any possibility, the language could have been construed or understood as it has been construed, I cannot conceive. The language is, "who shall have resided in the State six months." Now, if I had been framing that section in the first instance, those are the very words I should wish to use. They seem to me perfectly plain and clear, and if we use the word “actually," I do not see that it strength Wednesday,] DELONG-FITCH-NOURSE. [July 6. and Marshall may suffice to prove that a man is a citizen, but it seems to me that though a man may be a citizen, still he may not be a voter. A man may be a citizen, and, notwithstanding, lose the right of suffrage; and it is not contemplated by this section to say that he is not a citizen until he has been an actual resident here for six months. ens the meaning at all. It seems to convey the which precludes me from voting anywhere but same idea; and yet, as the language has been here. I think I should have the right, and genmisconstrued, I think it desirable to place at tlemen may insert "actually," or any other qualthe end of the words, language which shall be ifying word, till they are blind, and yet, if we beyond the power of misconstruction. We leave that clause to the examination of the Sumust remember that it is not a question of lit-preme Court, following the line of jurisprudence eral meaning, but a question of construction. marked out by those greater lights which never It is to avoid the difficulty arising from the will be dimmed, they will decide that a man is possibility of misconstruction, and not on ac- an actual resident here from the time he left count of any want of appropriate words, that I home with a bona fide intention of taking up add this proviso, so that the section shall be con- his residence here. They will decide that to strued in a particular way-so that whatever be the construction, unless the provision sugthe words actually mean, or whatever be their gested by the gentleman from Humboldt, (Mr. want of meaning, they must be construed so Banks,) is incorporated. "Actually" makes no and so. I put it in that way in order that there difference, but if you wish to carry out those may be no possible mistake as to our intention. views and say that a man shall have been livMr. DELONG. It seems that I am unsup ing within the limits of the Territory for six ported in my views by any member, and I months previous, then you will have to adopt should probably sink under the sarcasms of my the other words which have been suggested. colleague, (Mr. Collins), were it not that I am Otherwise the courts will say, as it has been desustained by a greater man than either he or cided in California and elsewhere, that the man myself. I refer to the language of Chief has been an actual resident here, because he Justice Story, of the Supreme Bench of the has been a resident nowhere else, and therefore, United States, and to that of the illustrious so far as exercising all the privileges which the Marshall, to which I have often had occasion to laws give him is concerned, he is actually a rerefer, and more especially in the contested elec-sident here. tion case, so well known in California, of Doc- Mr. FITCH. The learned authority of Story tor Duncombe, of Sacramento, where the whole question was fully and fairly considered. Justice Marshall, in the case cited, used that lan guage, so preposterous to the gentleman from Washoe, (Mr. Nourse), that a man could not be a human balloon, but must be a citizen and resident of some place at all times. He is always a subject or citizen of some country. If the gentleman from Washoe thinks his view in that | matter is right, I would ask him what he thinks would be the effect in the case of a draft, if a man had left Iowa six months ago? He is not, surely, a resident of Iowa; and if, in the meantime, a draft had been ordered, would he be subject to enrollment here and not there? If he owes allegiance and duty as a subject, in the sense of the word by which the subject and the alien are distinguished, he should be compelled to be enrolled and drafted in one place or the other; and if he is liable to be enrolled and drafted, why should he be deprived of the right of franchise? I think he should not, and I am surprised to hear my friend from Washoe taking a position which bears so severely upon this immigrant population when he claims himself to be one of that sort. [Laughter.] I am surprised at that. I think I have committed no offense whatever, when I have left California with the intention of becoming a resident of the State of Nevada; and I think most certainly, that I have committed no such offense in so doing as ought to deprive me of the right of the elective franchise. I am deprived of the privilege of voting there; why should I not vote Mr. DELONG. The Supreme Court of Calihere? Certainly I should have the right some-fornia have so decided. where, because I am a native-born freeman, Mr. NOURSE. So much the worse for the and citizen of the United States. I am a citizen over twenty-one years of age, and I am deprived of the privilege of voting by the common law Is Mr. NOURSE. The gentleman from Storey, over the way, [Mr. DeLong] cites authorities with which I do not happen to be familiar. Chief Justice Story I do not know, but Chief Justice Marshall I have heard of. They claim that we must say that the party seeking to vote has actually "lived" in this State six months, in order to keep out this idea of constructive residence. Now, we do say "resided." there a distinction between "resided" and "lived?" If there is, it seems to me a distinction without a difference. I shall oppose the amendment for the simple reason that I do not like to attach to a clause of the Constitution other clauses explanatory of it. It seems to me that when we have put in the words “actually resided in the State six months," that means only one thing, and there can be no two constructions. The doctrine that a person who started from the East to come here has a right to date his residence here from the time he started is a doctrine of constructive residence, in contradistinction from the doctrine of actual residence which the amendment proposes to insert in the Constitution. Supreme Court of California. I thank God we are not in the way of being controlled by the decisions of the Supreme Court of California. |
