person and government, and of the succession to the crown in his present majesty's royal house-a caution formerly used in similar cases, and not unworthy of imitation in framing future acts of the like kind, if any such shall be thought necessary, and which may serve as a faithful monitor in the conduct of prosecutions for words or writings supposed to be treasonable, but not relative to any treasonable measure then on foot, or intended to be taken." (Foster's Discourse of High Treason, ch. 1, sec. 7.)

Sidney was prosecuted upon the clause of the English statute (25 Edw. III) which defines compassing of the king's death; and, as appears from the language of Hale, Coke, and Blackstone, already quoted, it was only in cases arising upon that clause-few as the cases are, and of no authority-that even the worst judges, in the very worst times, pretended to regard the speaking of words as an overt act of treason.

Our Federal Constitution, article third and section third, employs this plain language:

"Treason against the United States shall consist ONLY in levying war against them, or in adhering to their enemies, giving them aid and comfort.

"No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open Court."

Two definitions are intended here, and both taken from the English statute: first, levying war; second, adhering to public enemies, giving them aid and comfort.

As to the latter, it has no reference to any rebellion or insurrection; but only applies in a time of war with some other nation. So it was decided by this Court in Chenoweth's case, at April term, 1862, after examining all the authorities, English and American, and ascertaining them to be unanimous on the subject.

At present, therefore, treason can not be committed against the United States in any other manner than by "LEVYING WAR” against them. (U. S. v. Hoxie, 1 Paine, 269.) I do not allege that each conspirator must have joined the warlike array; but I

do allege that no prisoner can be convicted, or even charged, except by proving, or charging, what the law denominates an "overt" act. And what are such acts, in legal contemplation, Mr. Justice Foster has clearly defined in his Discourse of High Treason, ch. 2, sec. 8:

"The joining with rebels in an act of rebellion, or with enemies in acts of hostility, will make a man a traitor; in the one case, within the clause of levying war; in the other, within that of adhering to the king's enemies."

"Furnishing rebels or enemies with money, arms, ammunition, or other necessaries, will, prima facie, make a man a traitor. But if enemies or rebels come with a superior force, and exact contributions, or live upon the country at free quarter, submission in these cases is not criminal."

"And the bare sending money or provisions, except in the case just excepted, or sending intelligence to rebels or enemies, which, in most cases, is the most effectual aid that can be given them, will make a man a traitor, though the money or intelligence should happen to be intercepted. For the party, in sending, did all he could: the treason was complete on his part, though it had not the effect he intended."

As to this, however, the learned author next intimates some degree of uncertainty; inasmuch as in all the reported cases, before his time, the prisoners had been charged, also, with compassing the queen's death.

Again, same chapter, sections 9, 10, and 11:

"An assembly armed and arrayed in a warlike manner, for any treasonable purpose, is bellum levatum war levied-" though not bellum percussum. Listing and marching are sufficient overt acts, without coming to a battle or action. So, cruising on the king's subjects, under a French commission, France being then at war with us, was holden to be adhering to the king's enemies, though no other act of hostility was laid or proved.

But if,

Attacking the king's forces, in opposition to his authority, upon a march, or in quarters, is levying war against the king. upon a sudden quarrel, from some affront given or taken, the neighborhood should rise and drive the forces out of their quarters, that would be a great misdemeanor, and, if death should ensue, it may be

felony in the assailants; but it will not be treason, because there was no intention against the king's person or government.

"Holding a castle or fort against the king or his forces, if actual force be used in order to keep possession, is levying war. But a bare detainer, as suppose by shutting the gates against the king or his forces, without any other force from within, Lord Hale conceiveth (1 P. C. 146) will not amount to treason. But, if this be done in confederacy with enemies, or rebels, that circumstance will make it treason; in the one case, under the clause of adhering to the king's enemies; in the other, under that of levying war. So, if a person, having the custody of a castle or fort, deliver it up to the rebels, or enemies, by treachery and in combination with them, this is high treason within the act: in the former case, it is levying war; in the latter, it is adhering to the king's enemies."

Once more, in the same chapter, section 13:

"In prosecutions for these treasons, as well as for that of compassing the death of the king, an overt act of the treason must, as I have already observed, be charged in the indictment, and proved.”

No act of less degree than those just enumerated, and no act which does not immediately relate to an assemblage of men, in warlike array, for the purpose of subverting the Government, or, by such means, resisting its authority, can amount to the levying of war. So said the Supreme Court of the United States in the case of Bollman and Swartwout, 4 Cranch, 126:

"However flagitious may be the crime of conspiring to subvert, by force, the Government of our country, such conspiracy is not treason. To conspire to levy war, and actually to levy war, are distinct offenses. The first must be brought into open action by the assemblage of men for a purpose treasonable in itself, or the fact of levying war can not have been committed. So far has this principle been carried that, in a case reported by Ventris, and mentioned in some modern treatises on criminal law, it has been determined that the actual enlistment of men to serve against the Government does not amount to levying war. It is true that, in that case, the soldiers enlisted were to serve without the realm, but they were enlisted within it; and, if the enlistment for a treasonable purpose could amount to levying war, then war had been actually levied.

"It is not the intention of the Court to say that no individual can be guilty of this crime who has not appeared in arms against his country. On the contrary, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors. But there must be an actual assembling of men for the treasonable purpose to constitute a levying of war."

Again:

"To complete the crime of levying war against the United States, there must be an actual assemblage of men for the purpose of executing a treasonable design. In the case now before the Court, a design to overturn the Government of the United States in New Orleans, by force, would have been unquestionably a design which, if carried into execution, would have been treason; and the assemblage. of a body of men for the purpose of carrying it into execution would amount to levying of war against the United States. But no conspiracy for this object, no enlisting of men to effect it, would be an actual levying of war." (4 Cranch, 127.)

Mr. Chief-Justice Marshall, who delivered this opinion, explained it, afterward, upon the trial of Aaron Burr, before the Circuit Court, at Richmond, August 31, 1807:

"Some gentlemen have argued as if the Supreme Court had adopted the whole doctrine of the English books on the subject of accessories to treason. But, certainly, such is not the fact. Those ONLY who perform a part, AND WHO ARE LEAGUED IN THE CONSPIRACY, are declared to be traitors. To complete the definition, both circumstances must concur. They must perform a part, which will furnish the overt act, and they must be leagued in the conspiracy. The person who comes within this description, in the opinion of the Court, levies war." (Burr's Trial, vol. 2, page 406.)

"the

And he proceeded, at length, to demonstrate that even advising or procurement" of treason, unless the party had also joined the warlike array, or done some overt act in pursuance

of the conspiracy, would not amount to levying war. (2 Burr's Trial, 436, 437, 438, 439.)

How superfluous, then, is that portion of General Orders No. 38 which denounces the penalty of death for an overt act of treason! The same penalty has been denounced by the Constitution of the United States, and by the laws of Congress in pursuance of it; only, instead of a military arrest, of charges and specifications, of a trial by captains, lieutenants, or other officers, and upon rules of evidence which are in effect no rules at all, the party accused must be arrested by a warrant in due form, upon probable cause supported by oath or affirmationmust be indicted by a grand jury of the district in which the crime is supposed to have been committed-must be tried in the Circuit Court of the United States for that district, by a petit jury of his countrymen, and according to the rule of evidence which the Constitution itself has prescribed. For so the Constitution, article third, section second, clause third, expressly requires :

"The trial of ALL crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may, by law, have directed.”

As to the residue of General Orders No. 38, including "the habit of declaring sympathies for the enemy," if such a “habit" ever existed in this community or neighborhood, I must say, once for all, that the acts or utterances intended to be embraced, whatever their moral complexion, or how objectionable soever in any respect, do not and can not amount to treason. The Constitution of the United States forbids that as plainly as language can be written.

And the Constitution is full of wisdom in this regard. It does not even intrust to CONGRESS the definition of a crime so perilous, so easily imputed, so apt to be imputed in times of great disorder. It even restrains Congress in prescribing