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II. TREASON AGAINST THE PARTICULAR

STATES.
Such treason is an offence at com-

mon law, $. 1812.
Does not necessarily include trea-

son against the U. S., § 1813.
But does include all treason against

government except such as is
aimed at U. 8., § 1815.

Otherwise when U. 8. interposes,

$ 1816.
Is not absorbed in treason against

U, S., § 1817.
Covers cases of open attacks on

State government, $ 1818.
Analogies from foreign jurispru-

dences, $ 1819.

I. TREASON AGAINST THE UNITED STATES.

CONSTITUTION AND STATUTES.

Definition

§ 1782. “ TREASon against the United States shall consist only

in levying war against them, or in adhering to their Treason.

enemies, giving them aid and comfort. No person shall and proof.

be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court."

“Every person owing allegiances to the United States, who levies war against them, or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason."'4

§ 1783. “Every person guilty of treason shall suffer death ; or, Punish at the discretion of the court, shall be imprisoned at hard

labor for not less than five years, and fined not less than ten thousand dollars, to be levied and collected out of any or all of his property, real and personal, of which he was the owner at the time of committing such treason, any sale or conveyance to the contrary notwithstanding; and every person so convicted of treason shall, moreover, be incapable of holding any office under the United States."5

ment.

"A rebel, being a citizen of the (U. S. Cir. Ct. Cal. 1863; Field and United States, cannot be viewed as an Hoffman, JJ.). See infra, $ 1795. enemy under the Constitution of the 2 Const. U. S. art. 3, § 3, cl. 1. United States ; and hence a convic • As to allegiance, see supra, § 282; tion of treason, in promoting a rebel- Sprague, J., 23 Law Rep. 795; U. S. . lion, cannot, it has been held, be sus- Villato, 2 Dall. 370. tained under that branch of the con • Rev. Stat. § 5331. stitutional definition which includes Members of Congress guilty of trea“adhering to their enemies, giving son are liable to arrest. Const. art. 1, them aid and comfort.” But such a $ 6. rebel may be convicted under the 6 Rev. Stat. § 5332. phrase relating to "levying war.” U. The questions of confiscation, under S. v. Greathouse, 2 Abb. U. S. 364 this statute, are discussed in Miller v.

§ 1784. “Every person owing allegiance to the United States, having knowledge of the commission of any treason

Misprision. against them, who conceals, and does not as soon as may be disclose and make known the same to the President, or to some judge of the United States, or to the governor, or to some judge or justice of a particular State, is guilty of misprision of treason, and shall be imprisioned not more than seven years, and fined not more than one thousand dollars."

§ 1785. “ If two or more persons in any State or territory conspire to overthrow, put down, or to destroy by force, Seditious the government of the United States, or to levy war conspiracy. against them, or to oppose by force the authority thereof; or by force to prevent, hinder, or delay the execution of any law of the United States; or by force to seize, take, or possess any property of the United States, contrary to the authority thereof; each of them shall be punished by a fine not less than five hundred dollars and not more than five thousand dollars, or by imprisonment with or without hard labor, for a period not less than six months nor greater than six years, or by both such fine and imprisonment.”?

$ 1786. “Every person who recruits soldiers or sailors within the United States, to engage in armed hostility against

Enlisting the same, or who opens within the United States a

persons to recruiting station for the enlistment of such soldiers or

against the sailors, to serve in any manner in armed hostility against United the United States, shall be fined a sum not less than two hundred dollars nor more than one thousand dollars, and imprisoned not less than one year nor more than five years."

$ 1787. “Every soldier or sailor enlisted or engaged within the United States, with intent to serve in armed hostility against the same, shall be punished by a fine of one hundred dollars, and by imprisonment not less than one

enlisting. nor more than three years.

serve

States.

Punishment of those so

U. S., 11 Wall. 268 ; Semmes v. U. S., Cases, 1 Woods, 221; U. 8. v. Tract of 91 U. S. 21 ; Wallack v. Van Riswick, Land, Ibid. 475. 92 Ibid. 202; Windsor v. MoVeigh, 93 2 Rev. Stat. § 5336. Ibid. 274.

See Rev. Stat. $$ 5518, 5520 ; Lange, | Rev. Stat. § 5333.

ex parte, 18 Wall. 163. For revenue cases As to misprision, see U. S. v. Wilt- under this statute, see supra, § 1372. berger, 5 Wheat. 76; Confiscation * Rev. Stat. § 5337.

• Rev. Stat. § 5338.

§ 1788. “Every person who incites, sets on foot, assists, or

engages in any rebellion or insurrection against the Aiding in rebellion.

authority of the United States, or the laws thereof, or

gives aid or comfort thereto, shall be punished by innprisonment of not more than ten years, or by a fine of notmore than ten thousand dollars, or by both of said punishments, and shall moreover be incapable of holding any office under the United States.”l $ 1789. The Act of January 30, 1799, § 1, makes it an indict

able offence for a citizen of the United States to corres. Corresponding pond with foreign governments, with intent to influence with for eign gov.

their controversies with the United States, or to defeat ernments.

the measures of the government of the United States, and to aid and abet such correspondence. This, however, is not to prohibit application for redress of injuries. § 1790. By the definition of treason in the Constitution, it is

limited, as will be perceived, in the first place, to the Treason consists in levying of war against the United States, and secondly, levying

to adhering to the enemies of the United States, giving war or in adhering to them aid and comfort.*

enemies.

1. Levying War. $ 1791. “The term,” said Marshall, C. J., in Burr's Case, “is

not the first time applied to treason by the Constitution Term to be

of the United States. It is a technical term. It is used accepted according

in a very old statute of that country whose language is to its prior judicial our language, and whose laws form the substratum of meaning

our laws. It is scarcely conceivable that the term was

2

i Rev. Stat. 1878, § 5334.

highest of crimes known to the State.” This section repeals the prior acts on Field and Hoffman, JJ. Chapman's the same topic, only so far as concerns Case, San Francisco, 1863. the punishment imposed ; and after Bright. Dig. 203, and found in a its passage, the death penalty cannot condensed shape in Rev. Stat. U. S. § be inflicted on those convicted of en. 5335. gaging in rebellion. “The defendants 3 This statute has been discussed in are therefore, in fact, on trial, for trea prior chapter. Supra, $$ 274, son ; and they have had all the pro- 284, n. tection and privileges allowed to par 2 Federalist, No. 43 ; 4 Tucker's ties accused of treason, without being Black. App. 12; Charge of Judge liable, in case of conviction, to the Wilson, 7 Carey's Am. Museum, 40; 3 penalty which all other civilized Story's Const. Law, § 1794; Charge nations have awarded to this, the on Law of Treason, 1 Story R. 614.

a

not employed by the framers of our Constitution in the sense which has been affixed to it by those from whom we borrowed it. So far as the meaning of any terms, particularly terms of art, is completely ascertained, those by whom they are employed must be considered as employing them in their ascertained meaning, unless the contrary is proved by the context. It is said this meaning is to be collected only from adjudged cases. But this position cannot be conceded to the extent in which it is laid down. The superior authority of adjudged cases will never be controverted. But those celebrated elementary writers who have stated the principles of the law, whose statements have received the common approbation of legal men, are not to be disregarded. Principles laid down by such writers as Coke, Hale, Foster, and Blackstone, are not lightly to be rejected. These books are in the hands of every student. Legal opinions are formed upon them, and those opinions are afterwards carried to the bar, the bench, and the legislature. In the exposition of terms, therefore, used in the instruments of the present day the definitions and the dicta of these authors, if not contradicted by adjudications, and if compatible with the words of the statute, are entitled to much respect.'

Yet there is a limitation in these expressions which does not at first sight appear. The old meaning of terms, when used in a new constitution or statute, is to be received when “compatible with the words of the statute." If the statute itself, in its context, make that allowable which by the old terms was penal, then the old judicial definitions are to be accepted only so far as they apply to that portion of the subject which remains penal. Hence, from the old English definition of " levying war," we must strike out all that relates to offences directed against the sovereign individually; and all, as will presently be seen, that relates to the resistance to laws so far as such resistance is not aimed at the overthrow of the government. On the other hand, the old limitations requiring military array are no longer requisite, since it may be as much treason for a few persons to attempt to destroy by dynamite public buildings with their occupants as to bombard such buildings in battle.

1 2 Burr's Trial, 401 ; 4 Cranch, 470. be something which came within the See U. S. v. Fries, C. C., April, 1800— fair construction of the words 'levyPamph.; Whart. St. Tr. 656.

ing war' to make out the indictment . In R. v. Gallagher, London Law against the prisoners. They must be Times, June 16, 1883, p. 133, Lord proved to have been guilty of someColeridge, C. J., said: “There must thing which, without violence of lan

cerned in

$ 1792. To levy war, war is essential; but if there be an overt All con

act of war, then all parties contributing to the common

design, of which such overt act is part execution, are making war are responsible as principals. principals.

“ Taken most literally,” said Marshall, C. J., in the Bnrr trial,“ the words • levying of war' are perhaps of the same import with the words raising or creating war; but as those who join after the commencement are equally the objects of punishment, there would be probably a general admission that the terms also comprehended making war, or carrying on war.

In the construction which courts would be required to give these words, it is not improbable that those who should raise, create, make, or carry on war, might be comprehended. The various acts which would be considered as coming within the term would be settled by a course of decisions ; and it would be affirming boldly to say, that those only who actually constitute a portion of the military force appearing in arms could be considered as levying war. There is no difficulty in affirming that there must be a war, or the crime of levying it cannot exist; but there would often be considerable difficulty in affirming that a particular act did or did not involve the person committing it in the guilt and in the fact of levying war. If, for example, an army should be actually raised for the avowed purpose of carrying on an open war against the United States, and subvert

guage would come within the words one of them should destroy the prop. • levying war.' The levying of war' erty of the Crown, or destroy or enwere words general and descriptive. danger the lives of Her Majesty's subIt was obvious that war might be levied jects by explosive materials such as it in very different ways and by very was suggested had been made use of, different means in different ages of the and if they were further of opinion world. And the judges had never at that such acts had been made out, then tempted to say that there could not be the prisoners were guilty of treasona levying of war in any other way than felony within the meaning of the Act. in the way brought before them in He agreed that they were thrown back earlier times. They had never pro- to the words of the earlier statute, but fessed or attempted to give any ex. they must receive a reasonable interhaustive definition, or say that there pretation. As he had suggested in the were certain modes in which the words course of the argument, if three men of the statute should be interpreted or with these explosive materials did tbe that 'these were the only fashions of same acts with the same objects as it making war.' He was of opinion that required 3000 men to do in an earlier it was enough to say in the present period, when it was a levying of war, case, if the jury should be of opinion it seemed to him that the acts of the that the prisoners or any of them had three men to-day were equally a levyagreed among themselves that some ing of war."

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