War of the Rebellion: Serial 115 Page 0852 PRISONERS OF WAR, ETC.

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with your reply. If I erred in doing this I beg to apologize and to ask the favor of your prescribing the correct course to be pursued to effect the liberation of my friend whose health is in a precarious state and whose material interests will be seriously injured if not totally ruined by protracted confinement in prison.

Your kind advice will be gratefully and thankfully received by, sincerely, yours,



Philadelphia, February 1, 1862.

Honorable WILLIAM H. SEWARD, Secretary of State.

SIR: I have the honor to inform you that William Gilchrist who is charged with high treason was on yesterday morning remanded for trial after a somewhat prolonged examination of his case upon a writ of habeas corpus. Upon the argument of the cause the learned judge of the district court expressed a very decided opinion that the difficulty of prosecuting him successfully for high treason was very great, the difficulty growing out of the constitutional requirements as to the evidence on a trial for this crime. The overt act must be proved by the testimony of at least two witnesses, and confessions not made in open court cannot be given in evidence against the defendant. The larger portion of the testimony upon which the Government relies in this case consists of the prisoner's own declarations or admissions. And while upon a preliminary hearing such as has just taken place, the rule of law permits the confessions of a party charged with treason to be given in evidence it is more than questionable whether much of that species of testimony which was so potent on the hearing of the habeas corpus will not be entirely rejected when the case comes before a traverse jury.

There is a late act of Congress (that of July 31, 1861) under which a prosecution may well be based against the defendant. The charge would be conspiring to levy war against the United States. That offense is a misdemeanor under the statute. If the Government should elect to send a bill to the grand jury for that crime the difficulties which would be encountered in a prosecution for treason would be avoided. Inasmuch as the case has been before your Department I would like an expression of opinion if it be agreeable to you upon the propriety of electing to prosecute for the lesser offense. I am of opinion that it would beindict the prisoner for treason unless the Government should be confident of meeting fully the requirements of the Constitution and of the act of 1790 as to the testimony upon the trial.

I have the honor to be, with all submission, your obedient servant,


U. S. Attorney.



WASHINGTON, February 1, 1862.


DEAR SIR: The case of William Gilchrist under writ of habeas corpus was decided before Judge Cadwalader last evening. The judge remarked upon giving his decision that the prisoner or counsel for the defendant could expect no favors at the hands of the Government as