But war to effect private ends

§ 1797. It is in any view now agreed that an armed movement for the purpose of throwing down the inclosures of a particular manor, park, or common; or of carrying on a mere quarrel between private persons, or of delivering not treason. one or more particular persons out of prison; or, by the demonstration of force, of obtaining a mitigation of the punishment of such prisoners; or of holding a house by force against the sheriff and posse comitatus, is not treason. The offence must be a levying war with the intent to overthrow the government as such, not merely to resist a particular statute, or to repel a particular officer."

If in the distinction just taken there be a material modification of the old English common law, this is to be attributed, not merely to a more humane criminal policy, but to a more enlightened conception of sovereignty. In the old law every administrative act was the act of the sovereign himself. He was supposed to issue every law that was uttered, whether it were a law for the .maintenance of his own distinctive authority, or a law for the collection of revenue, or a law for the suppression of vagrants, or a law for the preservation of game. He was regarded as officially present, not merely at the head of his armies, and at the sessions of his courts, where he was spoken of in the old forms as sitting personally, but he was viewed as incarnate in his constables and his revenue officers. Whoever resisted any law, no matter how little it concerned the distinctive maintenance of sovereignty, resisted the sovereign and was guilty of treason. Whoever attacked a constable or a tax collector

overt act was performed, and makes such conspirator responsible for such act when it results naturally from the conspiracy. All that can now be said on this topic is, that when two or more statutes cover the same subject matter, the last in date is to be followed.

1 Fost. 210; 1 Hale, 131, 133, 149. 1 Hale, 134; R. v. Frost, 9 C. & P. 129.

"The expression, to 'levy war against the queen,' does not include any insurrection against any private person for the purpose of inflicting upon him any private wrong, even if such insurrection is conducted in a warlike manner." Steph. Dig. C. L. art. 53.

5 See § 1798. Sir J. F. Stephen's Dig. C. L. App. to art. 53, tends to the

1 Hale, 146; Rawle on Constitu- same conclusion, citing Luder's Contion, 305.

Ibid. See also cases of Philadelphia rioters, Whart. on Hom. App.; infra, § 1815; supra, § 1537.

siderations on the Law of High Trea

son.

1

attacked the sovereign, and was also guilty of treason. But, independently of the fact that offences, widely differing in motive as well as in mischief, were thus arbitrarily grouped and subjected alike to the most agonizing and far-reaching penalties known to the law, it began to be felt that in a constitutional government, in which legislation is directed to a vast number of topics in no way bound up with the existence of sovereignty as such, and in which legislative functions are vested in local subordinate authorities, there are many laws in which the idea of sovereignty as such is in no sense embodied. No one, for instance, would seriously contend that a resistance, however forcible, to laws passed by local subordinate authorities is to be regarded as prompted by a determination to wage war upon the sovereign; or that the action of a party of sportsmen in forcibly resisting a law limiting the shooting of game, or of a party of revellers in assaulting a policeman, is an offence of the same heinousness, and fraught with the same perils to the State, as is an armed attempt to overthrow the common supreme government of the land. And even as to general laws, it cannot but be felt that there is an increasing tendency to such a classification of legislation as will separate statutes distinctively relating to government from statutes relating to matters as to which there may be a wide and even a violent difference of opinion without any breach of loyalty to the government as such. Peculiarly is this the case in those jurisdictions in which the common law has been codified. In such jurisdictions many principles of purely private right, with which the sovereign has nothing to do except as arbiter, have been embodied in statutes; and to attempt a forcible resistance to these statutes would, if the old English rule be carried out, be treason. Yet this is no more treason on principle than it would be treason for a party, without process of law, violently to assert an unfounded claim upon another. To do so may be a riot, but it is not a treasonable act; for an attempt to abate a supposed wrong, or to recover a supposed right, is as consistent with the recognition of a de facto sovereign as is the attempt to abate such wrong or to recover such right by process of law. That parties should intervene forcibly to arrest the building of a railroad which they hold to be a nuisance may be a grave offence, though whether it be so is to be determined by the sovereign acting through his

courts, and this principle they may at the time admit.1 That parties should resist forcibly an oppressive municipal or state ordinance which they claim to be unconstitutional may be also a grave offence; but this, too, may be in submission to the common Constitution of the land. It is here that we strike the definition of loyalty to the United States, and in this way determine what is the disloyalty which is essential treason. Loyalty to the United States is loyalty to the Constitution of the United States. Hence to assault the President or other high officer, while an indictable offence, is not treason, unless it be part of a plan to overthrow the constitutional government of the land; nor, unless this plan be formed, and the offence charged be one of its overt acts, is it treason to resist by force the execution of a revenue law, or of a quarantine law, or, as has been seen, of a law for the surrender of fugitives. But it is treason to attempt by force the overthrow of the Constitution; and, consequently, it is treason to attempt by force the overthrow of the authority of any one of the three great departments in which the functions of sovereignty are by the Constitution vested. Hence it would be treason against the United States to attempt by force to overthrow the federal executive, or the federal legislature, or the federal judiciary. But it would not be treason to commit a personal injury on any particular executive, or legislator, or judge, or to resist a decree of court, or a statute, or an executive mandate, not essential to the preservation of sovereignty.

Not necessary to treason

that battle should be fought.

§ 1798. If the other constituents of treason exist, it is enough if an armed force be put in motion. It is not necessary that a battle should be actually fought. We have seer that mere counselling armed resistance to government is not indictable as treason, though undoubtedly indictable as sedition. It has also been seen that the doctrine of constructive treason, so far as it makes armed resistance to execution of a special statute, without the design of overthrowing the government, treason, is now abandoned in the United States, and is made a specific offence under distinct legislation. Treason by levying war, therefore, is now to be viewed as limited to putting in operation an armed force with the intent to overthrow the government. But while this is the case, it is not necessary to constitute treason that the armed force

1 See supra, §§ 1426, 1540.

2 Hence the prosecution in Guiteau's case was properly for murder.

should be led to actual battle. Recruiting soldiers or sailors to serve against the government, being now made an independent misdemeanor, may be no longer prosecuted as treason. But if the soldiers so recruited be organized into an army-if sailors so enlisted be placed on board an armed vessel, fitted with stores and ammunition-then it is not necessary that a battle should be fought or even attempted, when the object is to aid an existing rebellion. It is not necessary, also, in case of a naval attempt, that the vessel should even sail. It is enough if the vessel be prepared for hostile action against the government, or that the army be put in order, ready to march.1

insurgents

not indict

able for

treason.

§ 1799. It has been already stated that when a sovereign recognizes any portion of his insurgent subjects as belligerents, Belligerent he cannot prosecute such subjects for treason, so far as concerns acts done by them in due course of war. When belligerency is admitted, his remedy is war according to the rules of civilized military law; and prisoners taken in such a contest are to have the immunities of prisoners of war. Yet a sovereign may recognize certain parts of his territory in a state of belligerent insurrection, and as to other parts refuse such recognition. If such be the case, and if an insurgent subject intrude upon the territory not in insurrection, and there commit illegal acts, there such illegal acts may be prosecuted as treason in the civil courts. And belligerent rights are not to be extended beyond the field to which they are limited. Thus, letters of marque issued by the late Confederate government were held to constitute no defence, in the United States courts, to an indictment for an act of treason; the reason given being that the government of the United States had not then recognized the Confederate government, or its authority to issue letters of marque; though this conclusion is open to grave doubt. And when war ceases, and the recognition of belligerent

3

See U. S. v. Greathouse, 2 Abb. U. 364; 4 Sawyer, 457. The defendant, S. 364; 4 Sawyer, 457.

2 See §§ 283-7; though see contra, Hammond v. State, 3 Cold. (Tenn.) 129. Compare also the course of the United States government in reference to the Modocs, in 1873. See supra, § 890.

however, in this case took advantage of the amnesty; and the question received no final adjudication. See argument of Nelson, J., on trial of Savannah Pirates, p. 371. But compare, contra, articles in Atlantic Monthly, July and August, 1872, by Mr. Bolles, solicitor

3 U. S. v. Greathouse, ut supra. U. S. v. Greathouse, 2 Abb. U. S. of the navy department, giving the

rights to insurgents is withdrawn, then such rights can no longer be set up by a defendant charged with treason committed subsequent to such withdrawal. He is no longer to be tried by the rules of war. Military prosecutions, so far as he is concerned, can no longer be instituted against him. He can only be proceeded against by indictment in the usual mode.1

Belligerent rights do

not protect

§ 1800. Belligerent rights, also, when pleaded in the civil courts as a defence, cannot be set up to protect acts which are outside of legitimate warfare. A civil court cannot conillegitimate vict, it is true, an insurgent for acts done by him as a warfare. member of an army recognized by the State as belliger. ent. But should such insurgent, departing from the usages of civilized warfare, engage in private plunder or other outrages, or should he at sea attempt piracy, then his belligerent rights are no defence. "Jede gewaltthätige Handlung aber," says Berner, one of the most authoritative of jurists, after affirming unequivocally the exemption of belligerent insurgents from liability to the civil courts for military acts, "welche die Grenzen des Kriegsrechtes überschreitet, ist als gemeines Verbrechen aufzufassen." In other words, outrages by belligerent insurgents which overstep the limits of military law, are to be treated as ordinary crimes. This was the rule adopted by the German governments after the insurrection of 1848. It is substantially that which may be extracted from the rulings of our own courts in relation to the late civil war.

2. Adhering to the Enemies of the United States; giving them Aid and Comfort.

Clause does not cover aid or sympathy given

§ 1801. Although rebels engaged in an armed insurrection against the United States are guilty of treason in levying war against the government, yet they cannot be convicted of "adhering to the enemies" of the United States, unless they unite with and sustain a hostile foreign power. A citizen of the United States engaged in rebellion is a subject still, and not an "enemy," in the sense in which the term is used in the Constitution. For this view there are two reasons:

to a rebellion.

reasons for not prosecuting Semmes. That the authority of the Confederate government, as such, aside from the recognition of belligerency, was no de

fence, see Jefferson Davis's Case, Chase, 15; Shortridge v. Macon, Ibid. 136.

See Milligan, ex parte, 4 Wall, 2. 2 Lehrbuch, etc., 1871, p. 513.