mission of his or her offense having any connection with the offense of any other defendant, so that each complete offense was wholly independent of, and disconnected from, each other offense, then there could be no conviction of any of the defendants. So, if you should find that any two of the defendants committed the offense charged, such offense arising from the joint act of the two defendants, and if you should also find that the other defendant also committed the offense of obstructing or resisting the officer, but that the offense committed by the two defendants was wholly separate and distinct from that committed by the one defendant, the two defendants having no connection with the offense committed by the one defendant, and the one defendant having no connection with the offense committed jointly by the two defendants, then there could be no conviction. For, as before indicated, it is the law, that, when two or more persons are indicted together for an offense of this character and for one and the same offense, proof of entirely separate, distinct, unconnected offenses committed by each will not sustain a conviction. (Verdict for defendants.)

§ 1128. Resistance justified. Where the defendant was indicted under the act of April, 1790 (ch. 9, § 22), for resisting the deputy marshal when serving two writs of capius ad respondendum upon him, the one for a duty due upon a still, and the other for a penalty recovered in an action of debt by the United States under the revenue laws; the marshal having demanded bail on both, and the defendant having resisted an attempt to imprison him by the marshal for refusal to give bail, it was held that the resistance was lawful and the defendant not guilty, the marshal having a right to require bail on the former capias, but not on the latter. United States v. Mundell,* 1 Hughes, 415; 6 Call (Va.), 245.

§ 1129. It seems that if an officer, having a distress warrant against the property of A., is resisted while attempting to seize the property of B. upon it, the person so resisting him is not liable for resisting an officer. United States v. Myers,* 14 Int. Rev. Rec., 14.

§ 1130. Violence not necessary.- On an indictment for resisting an officer, it is not necessary to show actual violence; threats and acts intended to terrify, or calculated in their nature to terrify, a prudent and reasonable officer, are sufficient, even though he be not prevented thereby from executing his process. United States v. Smith,* 1 Dill., 212. See § 1121.

§ 1131. Persons accompanying a marshal for the purpose of receiving possession of land for the possession of which he is proceeding to execute a writ, and persons present for the purpose of pointing out the land, are a part of the agencies employed for the purpose of executing the writ, and are as much under the protection of the writ as the marshal himself. Any obstruction to their receiving possession, which the marshal attempts to deliver, is an obstruction to the execution of the writ. United States v. Doyle,* 6 Saw., 612.

§ 1132. Attorney and client. If a client and his attorney conspire to resist an officer in performing his duty, both are equally guilty. United States v. Smith,* 1 Dill., 212.

§ 1133. State officers liable. Where a United States officer in charge of a prisoner is served with a habeas corpus from a state court, it is proper for him to obey the writ by producing the prisoner in court and showing the cause of his detention; and, when it is shown that the party is held under United States process, if the state judge, in combination with others, misuse his position and office by making use of the law and his power to accomplish an improper release, he is guilty of obstructing United States process. United States v. Doss,* 11 Am. L. Reg. (N. S.), 320.

§ 1134. But, if he acts in good faith, he is not guilty. Ibid.

§ 1135. And a person who merely takes charge of the prisoner under the order of the state judge is not guilty of obstructing process. Ibid.

§ 1136. All are principals.- Under the act of April 30, 1790, punishing any person who shall knowingly or wilfully obstruct any officer of the United States in serving any process, not only those actually obstructing are guilty, but also all those who are present, leagued in the common design, and ready to assist, if necessary, although they do not actually obstruct, resist or oppose. The offense being a misdemeanor, all are principals. And not only those present, but those absent who procure, counsel, abet or command others to commit the offense, are indictable as principals. Charge to Grand Jury, 2 Curt., 637.

§ 1137. Opposing execution of writ.- The offense, under the act of congress, of resisting and opposing the execution of a writ of habere facias possessionem, is complete, when the person in possession refuses, and by threats and violence, which it is in his power to enforce,

prevents the officer from dispossessing him. It is not material that neither the plaintiff in the ejectment suit, nor any one representing him, is in company with the marshal to receive possession. United States v. Lowry,* 2 Wash., 169. See § 1121.

§ 1138. A mere threat to resist the execution of a writ of habere facias possessionem is not an offense against the act of congress. But when the officer proceeds to the land with the writ, and is about to execute it, and such a threat is made by the one in possession, accompanied by force, or having the capacity to exercise it, in consequence of which the officer cannot do his duty, the execution of process has been opposed and obstructed. The officer need not risk his life or expose himself to violence. Ibid.

§ 1139. Under the act of April 30, 1790, punishing "any person who shall knowingly or wilfully obstruct, or resist, or oppose any officer of the United States in serving or attempting to serve or execute any mesne process," etc., any obstruction to the free action of the officer, or his lawful assistants, wilfully placed in his or their way, for the purpose of thus obstructing him, or them, is sufficient. Charge to Grand Jury, 2 Curt., 637.

$1149. The act of April 30, 1790, providing for the punishment of "any person who shall knowingly or wilfully obstruct, resist, or oppose any officer of the United States in serving or attempting to serve or execute any mesne process or warrant, or any rule or order of any of the courts of the United States, or other legal or judicial writ or process whatever," embraces every legal process whatsoever, whether issued by a court in session, or by a judge, or magistrate, or commissioner, acting in the due administration of any law of the United States. Ibid.

$1141. Persons who combine to oppose the execution of a warrant, without knowing the nature of it, and actually assauit the constable, before any assault has been made by the constable or any of his party in attempting to execute the warrant, are criminally responsible. United States v. O'Neale,* 2 Cr. C. C., 183.

§ 1142. The twenty-second section of the act of congress of April 30, 1790, which punishes resistance to any judicial writ or process, includes and punishes resistance to writs issued by a judge as well as by a court. United States v. Lukins,* 3 Wash., 335.

§ 1143. It is resistance to an officer for a person for whom he has a warrant to say to him that he will not come, if he does not come as commanded by the warrant. Ibid.

§ 1144. If several persons assemble by concert to prevent a United States marshal from executing a writ of possession, and when he arrives for that purpose and enters into conversation with them concerning the matter, they surround him, and tell him that he cannot execute the writ, and with their pistols drawn and cocked and pointed at him within a few feet distant, they demand the surrender of his arms in a menacing manner, and tell him to consider himself a prisoner, this is not only a resistance within the meaning of the law, but it is also a conspiracy to resist the execution of the writ. United States v. Doyle,* 6 Saw., 612. § 1145. If a marshal of the United States, in attempting to execute a writ of possession, is met by a large number of men, the leader of whom hands him a paper directed to the United States marshal and orders him to take it and leave, and will not even give the marshal time to read the paper, and the paper contains the declaration that the settlers of the community will not permit the writ to be executed except by a force superior to their own, and the marshal is thereby prevented from executing the writ, this is a resistance within the meaning of the statute. Ibid.

§ 1146. Where a United States marshal, in proceeding to execute a writ of possession, is menacingly forbidden to execute the writ, and obstructed in its execution, the persons resisting, knowing that he was there for that purpose, and threatened and menaced him for the purpose of preventing him from executing the writ, such persons are guilty of resisting the marshal in the execution of process within the meaning of the law. The fact that the marshal was not, at the time, upon the land for the possession of which the writ was issued, and the fact that he was waiting a few moments near the land to see what would be the result of the conference being then held by the persons who resisted him, is not material. Ibid.

§ 1147. Resistance to an alias writ of habere facias possessionem is as much an offense against the law as if the resistance had been to the original writ, provided the original writ has not been returned executed. United States v. Slaymaker,* 4 Wash., 169.

1148. Resistance to the execution of a writ of habere facias possessionem, after the return day of the writ, is not an offense; the writ cannot be executed after the return day. Ibid.

§ 1149. Collector of customs.-The inspectors being appointed under the act of March 2, 1799, by the collector annually in office, and ceasing to be such officers upon his death, removal or resignation, an inspector exercising the duties of such office after the death of the collector who appointed him, and before his reappointment by the new collector, is not such an officer of the customs for the resisting of whom an indictment will lie, under the act above recited. United States v. Wood,* 2 Gall., 360.

§ 1150. Casks of goods had been brought from Vermont and were deposited in the store of the defendant at a place near Boston, to which latter place they were destined. There was no apparent attempt at concealment or opposition to search. The casks were accompanied by an invoice, on which was written a certificate of passport from the collector of the district of Vermont. This invoice was shown to the inspector at the defendant's store, and the marks and numbers in it corresponded with those on the casks. The defendant offered that the inspector should accompany the merchandise and ascertain at the custom-house the genuineness of the signatures of the collector of Vermont. The inspector refused this, and insisted on removing the goods to the custom-house at Boston. Upon these facts, the court directed the jury that there was not probable cause of suspicion that the goods were illegally imported, to justify a seizure by the inspector, and the defendant was not liable for resisting such seizure. United States v. Gay,* 2 Gall., 359.

§1151. To support an indictment for forcibly resisting an officer of the customs in the exercise of his duties, based on the act of March 2, 1799, it need not be shown that the goods were liable to condemnation, but it must at all events be shown that there was probable cause for the seizure.

Ibid.

§ 1152. The question whether the seizure was made upon probable cause of suspicion of illegal importation is a question on which the court ought to instruct the jury. It is not a mere question of fact for the jury. Ibid.

$1153. An inspector is "an oflicer of the customs," for obstructing whom an indictment lies under the seventy-first section of the act of March 2, 1799 (ch. 128). United States v. Sears.* 1 Gall., 215.

§ 1154. Upon an indictment for obstructing an inspector in the discharge of his duties, contrary to section 71 of the act of March 2, 1799, the commission of the inspector reciting his approval as such officer by the principal officer of the treasury department, and a copy, from the treasury department, of the oath taken by him, and an actual execution of the duties of the office, constitute sufficient proof that he is a lawful inspector. The commission of the collector who appointed the inspector need not, in such a case, be proved. Ibid.

§ 1155. Under the embargo laws, a licensed coasting vessel was not allowed, under penalty of forfeiture, to engage in foreign trade, nor to depart from port without giving bond that she would not proceed to a foreign port. It was unlawful to export from the United States any goods, etc., under a like forfeiture. No vessel could receive a clearance unless laden under the inspection of the proper revenue officers. The collectors were authorized to detain any vessel when there was reason to suspect an intended violation of the law. The lading of goods on ships was illegal unless made by permission of the collector and under inspection of the revenue officers. Vessels already laden were required to be unladen, and to give the bond required by law. The president was authorized to give instructions to the revenue officers for carrying the embargo into effect. These provisions are held to imply an authority on the part of the inspectors to enter on board any such ships to discover if any goods had been laden on board of said vessels for the purpose of being exported from the United States. And the obstruction of such an officer in the discharge of such duty is held to be indictable under the act of March 2, 1799, prohibiting the obstruction of the officers of the customs. Ibid.

§ 1156. If an officer of the customs has seized property as forfeited, and it is tortiously taken away from him, while under his personal and immediate superintendence and custody, the law implies that the taking is forcible; and if the rescue be for the purpose of impeding or preventing him from following up his seizure and conveying the property to a place of security to wait a legal adjudication, it is a "forcible impeding," and punishable by the act of March 2, 1799. United States v. Bachelder,* 2 Gall., 14.

§ 1157. It is not necessary to prove that the property seized was actually condemned. It is sufficient if the officer was acting within the line of his duty, and his conduct was founded on probable cause of suspicion of illegal importation. Ibid.

§ 1158. On an indictment for resisting an officer, the description in the indictment as to the character of the officer must be strictly proved; thus, where the accused was indicted for resisting an inspector of the customs, and it appeared that the officer was appointed by the surveyor, who had no authority to appoint an inspector, the prosecution failed. United States v. Phelps,* 4 Day (Conn.), 469.

§ 1159. Under the act of 1823, reciting that "if any person shall forcibly resist, prevent, or impede any officer of the customs, etc., such person so offending shall, for every such offense, be fined a sum not exceeding $100," each individual who concurs in resisting or impeding an officer of the customs in the execution of his duty is liable for the entire penalty. United States v. Babson, 1 Ware, 450.

§ 1160. On an indictment for obstructing or impeding an officer of the customs in the discharge of his duties, it is no defense that the intent of the accused was merely to chastise the

officer, and not to obstruct him in his duties, if the officer was actually engaged in his duties and the accused knew it. United States v. Keen,* 5 Mason, 453.

§ 1161. Arresting deserters. To render a person criminally liable for an assault upon an officer engaged in arresting deserters, it is not necessary that he should have made the assault personally. If, with the object of obstructing the officers in the performance of their duties, the defendant intentionally brought about, or assisted in bringing about, the assault, it is the same as if he had made it. United States v. Gleason,* Woolw., 128.

§ 1162. It was held that the officers were engaged in the discharge of their duties if they had come into the neighborhood with the intention of arresting the deserters, and, finding themselves unable to do so by reason of apprehended resistance, were, at the time of the assault, returning for a stronger force. Ibid.

§ 1163. It is not necessary to prove that the persons the officers were endeavoring to arrest were, in fact, deserters. Ibid.

§ 1164. It is not enough for the jury to find that the assault was a mere casual rencounter, which would have taken place if the persons assaulted had not been employed in such service. The assault, to be punishable, must be prompted by some motive which had relation to the service in which the person assaulted was engaged, and grew out of hostile feelings engendered thereby. Ibid.

§ 1165. Enrolling officers.- Under the act of February 24, 1864 (13 Stat. at L., 8), which punishes any person who resists or assaults au officer employed in making an enrollment prior to a draft of soldiers, if an officer engaged in the discharge of his official duties has occasion to deal with a man who, under the influence of a general feeling of hostility to the law, or of a violent temper which is roused by no fault of the officer, or a spirit of revenge, makes an assault upon such officer, a purpose in his mind to obstruct the execution of the law is not necessary to constitute a crime under the act. But if, while going through the country serving notices, he has an altercation with a man growing out of a personal matter, or a matter having no connection with his official duties, and is killed, the offender is not liable under the act. United States v. Gleason,* Woolw., 75.

§ 1166. Section 25 of the act of March 3, 1863, is limited to the prevention of resistance to the draft of soldiers and section 12 of the act of February 24, 1864, to the preventing resistance to the enrollment. A person cannot, therefore, be punished under the former act for assaulting an officer while engaged in making an enrollment of men subject to military duty. United States v. Murphy,* 3 Wall., 619.

$1167. The services of an officer in notifying "enrolled and drafted men" to appear at the designated rendezvous “and report for military duty" do not constitute any employment "in the performance, or aiding in the performance, of any service in any way relating" to the enrollment mentioned in section 12 of the act of February 24, 1864. Resisting the officer giving such notice, which resistance results in the death of the officer, is not, therefore, punishable under this act. United States v. Scott,* 3 Wall., 612.

§ 1168. The sections of the act of March 3, 1863, which relate to enrollment, interpose no penalty for resisting the enrolling officer. One of the sections relating to drafting punishes any person who "shall resist any draft of men enrolled under this act into the service of the United States, or shall counsel or aid any person to resist any such draft, or shall assault or obstruct any person in making such draft, or the performance of any service in relation thereto, or shall counsel any person to assault or obstruct any such officer, or shall counsel any drafted man not to appear at the place of rendezvous, or wilfully dissuade them from the performance of military duty, as required by law." An indictment for assaulting the enrolling officer, and hindering, delaying and obstructing him in the performance of his duties, charges no offense punishable under this act. United States v. Will,* 5 Phil., 293.

XVII. TREASON.

[See § 2665, infra; CONSTITUTION AND LAW3, §§ 133-139.]

SUMMARY-Defined by the constitution; power of congress, § 1169.—“Enemies" defined, § 1170.— Levying war, what constitutes, §§ 1171, 1179, 1180.— Parties aiding in rebellion were guilty of treason, § 1172.— No accessories, §§ 1173, 1181.— Object of the act of July 17, 1862, § 1174.— Fitting out a vessel to cruise in aid of the rebellion, §§ 1175, 1176.— Effect of conceding belligerent rights to Confederate States, § 1177.- Effect of letter of marque from president of Confederate States, § 1178.-Aiding and abetting, § 1182.

1169. The crime of treason is defined by the constitution. And congress can neither extend, nor restrict, nor define the crime. Its power over the subject is limited to prescribing the punishment. United States v. Greathouse, $ 1183-91. See § 1202.

S1170-1182. § 1170. The term "enemies," as used in the constitutional provision defining treason, applies only to the subjects of a foreign power in a state of open hostility with us. embrace rebels in insurrection against their own government. It does not Ibid. See § 1225. $1171. To constitute a levying of war against the United States, which is declared to be treason by the constitution, there must be an assemblage of persons in force to overthrow the government, or to coerce its conduct. The offense is complete, whether the force be directed to the entire overthrow of the government throughout the country, or only in certain portions of the country, or to defeat the execution and compel the repeal of one of its public laws. Ibid. See § 1213.

§ 1172. The rebellion was a war levied against the United States within the meaning of the constitutional definition of treason, and all who aided in its prosecution, whether by open hostilities in the field, or by performing any part in furtherance of the common object, however minute or however remote from the scene of action, were equally guilty of treason. Ibid. See § 1235.

§ 1173. In treason there are no accessories; all who engage in a rebellion, at any stage of its existence, or who designedly give to it any species of aid and comfort, in whatever part of the country they may be, are principals. Ibid. See § 1205.

§ 1174. By the act of July 17, 1862, prescribing the punishment for treason, it was the intention of congress, (1) to preserve the act of 1790, which prescribes the penalty of death, in force for the prosecution and punishment of offenses committed previous to July 17, 1862, unless the parties accused are convicted under the act of the latter date for subsequent offenses; (2) to punish treason thereafter committed with death, or fine and imprisonment, in the discretion of the court, unless the treason consist in engaging in or assisting a rebellion or insurrection against the authority of the United States, or the laws thereof, in which event the death penalty is to be abandoned and a less penalty inflicted. Ibid.

§ 1175. To procure, fit out and arm a vessel to cruise, in the service of an existing rebellion, upon the high seas, and commit hostilities against the citizens, property and vessels of the United States, is treason. Ibid.

§ 1176. If a vessel is fully equipped and armed for the service of the rebellion, it is not essential, to constitute the giving of aid and comfort, that the enterprise should be successful and render actual assistance. Where overt acts have been committed, which, in their natural consequence, if successful, would encourage and advance the interests of the rebellion, in judgment of law, aid and comfort is given. Ibid.

§ 1177. If full belligerent rights had been conceded to the Confederate States, such rights could not be invoked for the protection of persons entering within the limits of states which had never seceded, and secretly getting up hostile expeditions against our government and its authority and laws. Ibid.

§ 1178. A letter of marque from the president of the so-called Confederate States does not exempt from prosecution in the tribunals of the country persons setting on foot hostile expeditions against the United States. The courts cannot treat any new government as having authority to issue commissions or letters of marque which will afford protection to its citizens, until the legislative and executive departments have recognized its existence. Ibid.

§ 1179. Treason, in "levying war" against the United States, is not necessarily to be judged of alone by the number or array of troops. But there must be a conspiracy to resist by force, and an actual resistance by force of arms or intimidation by numbers. The conspiracy and the insurrection connected with it must be to effect something of a public nature, to overthrow the government or to nullify some law of the United States, and totally to hinder its execution or compel its repeal. United States v. Hanway, SS 1195-1201. See § 1213.

§ 1180. The term "levying war" is used in the clause in the constitution defining treason in the sense which has been affixed to it by the laws from which we borrowed it. Ibid. See § 1213. § 1181. In treason all are principals, and a person may be guilty of aiding and abetting, though not present. Ibid. See § 1205.

§ 1182. If one countenances, encourages, aids or abets others in the commission of a treasonable offense, he is equally guilty with them. But if he comes to the place without any knowledge of what is about to take place, and does not interfere or lend his aid, or countenance, or assistance, he is not guilty of the offense. Ibid.

[NOTES.-See § 1202-1237.]

UNITED STATES v. GREATHOUSE.

(Circuit Court for California: 2 Abbott, 364-381; 4 Sawyer, 457-487. 1863.)

STATEMENT OF FACTS.- Schooner seized when about to sail from the port of San Francisco on a cruise in the service of the Confederate States. The parties.