1. This is an offense aiming at the existence of the government; and in all other governments it has ever been customary to punish it with extreme severity. Many things are considered to be of the nature of treason, and, as such, severely punished in most countries. The Constitution defines treason to be “levying war against the United States, or adhering to their enemies, giving them aid and comfort;” so that the highest or capital crime alone may be pursued with its penalties. This is another evidence of the extreme moderation of the founders of the government, which we have had occasion to notice so often in our examination. 2. An act of Congress passed April 30th, 1790, defines it in the same sense and orders that the convicted offender shall be hung.
By another act passed 17th July, 1862, it was made discretionary with the court trying the case to put the offender to[603] death, or to imprison him ............