interdicted trade may be carried on in such a way as to expose the parties concerned to the crime of treason. If carried on for the purpose and with the intent of giving aid and assistance to the enemy in their hostility against the government, the act would furnish an overt act of adhering to the enemy, giving him aid and comfort.". Charge to Grand Jury, (1861) 5 Blatchf. 549, 30 Fed. Cas. No. 18,271, per Mr. Justice Nelson.

Sale of arms, etc.-"To sell, or provide arms or munitions of war, or military stores or supplies, including food, clothing, etc., for the use of the enemy, is within the penalty of the statute. And to hire, sell, or furnish boats, railroad cars, or other means of transportation, or to advance money, or obtain credits for the use and support of a hostile army, is treasonable. It is equally clear that the communication of intelligence to the enemy, by letter, telegraph, or otherwise, relating to the strength, movements, or position of the army, is an act of treason." Charge to Grand Jury, (1861) 1 Bond 609, 30 Fed. Cas. No. 18,272, per Leavitt, J.

V. DURESS

In U. S. v. Greiner, (1861) 4 Phila. (Pa.) 396, 18 Leg. Int. (Pa.) 149, 26 Fed. Cas. No. 15,262, Cadwalader, J., said: "The allegations that the accused was, or may have been, acting under the orders of the governor of Georgia, or of some other commanding or superior officer, is likewise unimportant. In the cases of the highlanders of Scotland, whose clans were, without any independent will of their own, mustered by their chiefs into the military service of Charles Edward when he invaded England in 1745, the legal character of such a defense was fully considered. The previous doctrine then recognized, and re-established, was that the fear of having houses burned, or goods spoiled, was no excuse, in the eye of the law, for joining and marching with rebels; that the .only force which excuses on the ground of compulsion is force upon the person and present fear of death, which force and fear must continue during all the time of military service with the rebels, and that it is incumbent in such a case on every man who makes force his defense, to show an actual force, and that he quitted the service as soon as he could. Fost. Crown Law (Eng.) 14; 18 How. St. Tr. (Eng.) 391. And see Fost. Crown Law (Eng.) Dis

is applicable wherever and so long as the duty of allegiance to an existing government remains unimpaired."

an

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The fear which the law recognizes as excuse for the perpetration of an offense must proceed from an immediate and actual danger, threatening the very life of the party. The apprehension of any loss of property, by waste or fire, or even an apprehension of a slight or remote injury to the person, furnish no excuse." Per Mr. Justice Paterson instructing a jury in U. S. v. Vigol, (1795) 2 Dall. (Pa.) 346, 1 U. S. (L. ed.) 409, 28 Fed. Cas. No. 16,621.

In U. S. v. Hodges, (1815) 2 Wheel. Crim. (N. Y.) 477, 26 Fed. Cas. No. 15,374, a trial on an indictment for treason, the following declaration of law was made, at the request of the district-attorney, by Mr. Chief Justice Duval ("Houston, District Judge, said he did not entirely agree with the Chief Justice"): "First. Hodges is accused of adhering to the enemy, and the overt act laid consists in the delivery of certain prisoners, and I am of opinion that the overt act laid in the indictment and proved by the witness is high treason against the United States. Second. When the act itself amounts to treason it involves the intention, and such was the character of this act. No threat of destruction of property will excuse or justify such an act; nothing but a threat of life, and that likely to be put into execution."

VI. EVIDENCE

1. Before Committing Magistrate The fact that certain testimony offered against a defendant might be inadmissible on his trial for treason does not necessarily exclude it from consideration on a preliminary hearing before a magistrate for commitment. U. S. v. Burr, (1807) 4 Cranch (Appendix) 455, 25 Fed. Cas. No. 14,692a (at p. 14).

"Upon a mere question whether the accused shall be brought to trial or not, upon an inquiry not into guilt but into probable cause, the omission of a circumstance which is indeed important, but which does not disprove the positive allegations of an affidavit, ought not to induce its rejection or its absolute disbelief, when the maker of the affidavit is at too great a distance to repair the fault. I could not in this stage of the prosecution absolutely discredit the affidavit, because the material facts alleged may very well be within the knowledge of the witness, although he has failed to state explicitly all the means by which this knowledge is obtained." Per Chief Justice Marshall in U. S. t. Burr, (1807) 4 Cranch (Appendix) 455, 25 Fed. Cas. No. 14,692a (at p. 13).

Upon an application for a bench warrant, on a charge of treason as well as upon a motion to commit for the same cause, messages from the President of the United States to Congress may be read. U. S. v. Bollman, (1807) 1 Cranch C. C. 373, 24 Fed. Cas. No. 14,622.

On a preliminary examination for commitment on a charge of treason, Chief Justice Marshall said: "On an application of this kind I certainly should not require that proof which would be necessary to convict the person to be committed, on a trial in chief; nor should I even require that which should absolutely convince my own mind of the guilt of the accused: but I ought to require, and I should require, that probable cause be shown; and I understand probable cause to be a case made out by proof furnishing good reason to believe that the crime alleged has been committed by the person charged with having committed it." U. S. v. Burr, (1807) 4 Cranch (Appendix) 455, 25 Fed. Cas. No. 14,692a (at p. 12).

"The cause of issuing a warrant of arrest is a crime committed by the person charged. Probable cause, therefore, is a probability that the crime has been committed by that person. Of this probability the court or magistrate issuing the warrant must be satisfied, by facts supported by oath or affirmation. The facts, therefore, which are stated upon oath must induce a reasonable probability that all the acts have been done which constitute the offense charged." Per Chief Judge Cranch in U. S. v. Bollman, (1807) 1 Cranch C. C. 373, 24 Fed. Cas. No. 14,622 (at p. 1192).

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In order to constitute treason by levying war against the United States, "troops must be embodied, men must be actually assembled, and these are facts which cannot remain invisible. Treason may be machinated in secret, but it can be perpetrated only in open day and in the eye of the world." Per Chief Justice Marshall in U. S. v. Burr, (1807) 4 Cranch (Appendix) 455, 25 Fed. Cas. No. 14,692a (at p. 14), holding certain testimony insufficient to afford probable cause to believe that troops did actually embark at the period designated for their assembling.

2. Before Grand Jury

"A grand jury has only the evidence which the government can adduce, without reference to what the defendant may have it in his power to bring forward, in proof of his innocence. They ought, therefore, to be able to say under the solemnity of their oaths, that there is reasonable ground for the inference of guilt. There must be a distinct allegation in the indictment of the overt act or acts; and although a grand jury return a true bill for this crime, there

can be no conviction unless an overt act is proved by two witnesses. And it may well be doubted whether it is expedient to indict for this crime in cases where it is certain the evidence required by law will not be produced before a traverse jury, and where consequently there can be no conviction." Per Leavitt, J., in Charge to Grand Jury, (1861) 1 Bond 609, 30 Fed. Cas. No. 18,272 (p. 1038).

"With regard to the number of witnesses in treason, I am of opinion that two are necessary on the indictment as well as upon the trial in court." Per Mr. Justice Iredell charging a grand jury in U. S. v. Fries, (1799) 3 Dall., (Pa.) 515, 1 U. S. (L. ed.) 701, 9 Fed. Cas. No. 5,126.

"It is declared in the article of the constitution .. that 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.' This and the corresponding language in the Act of Congress of April 30, 1790, [1 Stat. L. 112] seems to refer to the proofs on the trial; and not to the preliminary hearing before the committing magistrate, or the proceeding before the grand inquest. There can be no conviction until after arraignment on bill found. The previous action in the case is not a trial, and cannot convict, whatever be the evidence or the number of witnesses. I understand this to have been the opinion entertained by Chief Justice Marshall [25 Fed. Cas. No. 14,692a] and though it differs from that expressed by Judge Iredell on the indictment of Fries [25 Fed. Cas. No. 15,170], I feel authorized to recommend it to you, as within the terms of the constitution, and involving no injustice to the accused." Charge to Grand Jury, (1851) 2 Wall. Jr. C. C. 134, 30 Fed. Cas. No. 18,276.

In U. S. r. Greiner, (1861) 4 Phila. (Pa.) 396, 18 Leg. Int. (Pa.) 149, 26 Fed. Cas. No. 15,262 (at p. 40), Cadwalader, J., said: "The evidence for the prosecution has consisted of the direct testimony of one witness to the alleged overt act, and of admissions made voluntarily by the accused party since his arrest. The constitution provides that 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. The admissions here proved were not such confessions, and, upon the trial of an indictment, would not, in connection with the testimony of the single witness to the overt act suffice to warrant a conviction. But the provision of the constitution, and the language of the first section of the act of April 30, 1790, on the subject, apply only to the trial of indictments, and are inapplicable to proceedings before grand juries, or to preliminary investigations like the present.

This appears to have been the opinion of Chief Justice Marshall (1 Burr Tr. 196), and likewise of my judicial predecessor in this district ([Charge to the Grand Jury] 1851] 2 Wall. Jr. C. C. 138 [30 Fed. Cas. No. 18,276]). Judge Iredell had, indeed, been previously of a different opinion. 1 Whart. State Tr. 480. His impression had probably been derived from the opinions which, under the statutes 1 Edw. VI. c. 12, § 22; 5 Edw. VI. c. 11. § 11; and 7 Wm. III. c. 3, had prevailed in England. See Fenwick's Case. [1896] 13 How. St. Tr. (Eng.) 537, and [1797] 26 How. St. Tr. (Eng.) 731. As the point has never been directly decided in the United States, it may not be amiss to mention a difference between the language of the English statutes and the words of the constitution. Those statutes enacted that no person should be indicted or convicted of treason, unless, etc. The constitution, omitting the word 'indicted,' uses the single word convicted.' This difference in language, to which the attention of Chief Justice Marshall was doubtless directed, though he does not mention it, seems to be decisive of the question. The intention of the framers of the constitution must have been to restrain the application of the prescribed rule of evidence to the trial of the indictment. A person should not, however, be indicted or imprisoned under a charge of treason when there is no rational probability that the charge, if true, can be proved by two witnesses on the future trial."

3. On Trial

a. Requirement of Two Witnesses "It was said that if the overt act were not proved by two witnesses, no testimony in its nature corroborative or confirmatory was admissible or could be relevant. From that declaration there is certainly no departure." Per Chief Justice Marshall in U. S. v. Burr. (1807) 25 Fed. Cas. No. 14,693 (at p. 179).

'The presence of the party, where presence is necessary, being a part of the overt act must be positively proved by two witnesses. No presumptive evidence, no facts from which presence may be conjectured or inferred, will satisfy the constitution and the law. If procurement take the place of presence and become part of the overt act, then no presumptive evidence, no facts from which the procurement may be conjectured or inferred can satisfy the constitution and the law." Per Chief Justice Marshall in U. S. r. Burr, (1807) 25 Fed. Cas. No. 14,693 (at p. 176).

b. As to Conspiracy "The concert of purpose may be deduced from the concerted action itself, or it may be inferred from facts concur

ring at the time, or afterwards or before." Charge to Grand Jury, (1851) 2 Wall. Jr. C. C. 134, 30 Fed. Cas. No. 18,276.

In U. S. v. Hanway, (1851) 2 Wall. Jr. C. C. 139, 26 Fed. Cas. No. 15,299 (at p. 126), a prosecution for treason in resisting the Fugitive Slave Law, Mr. Justice Grier, charging the jury, said: "A man may have such conscientious principles on the subject of nonresistance, as to stand by with indifference and neutrality, when his father or friend is attacked by a madman, and in case of his death may not be liable as an aider or abettor in the murder or manslaughter. We may wonder at his philosophic indifference, though we cannot admire the man. So a man who is a mere spectator in a contest where a mob of rioters are resisting an officer of the law in the execution of his duty, may refuse assistance, countenance or aid to either side. In so doing he is not acting the part of an honest, loyal citizen; he may be liable to be punished for a misdemeanor for his refusal to interfere, but such conduct will not necessarily make him liable as a principal in the riot or murder committed. But such conduct is a fair subject for the consideration of a jury, in connection with other circumstances, to show preconcert and guilty complicity with the rioters, murderers or traitors."

c. As to Object of Insurrection In U. S. r. Mitchell, (1795) 2 Dall. (Pa.) 348, 1 U. S. (L. ed.) 410, 26 Fed. Cas. No. 15,788, a trial on an indictment for treason in levying war by forcibly preventing the execution of an Act of Congress, Mr. Justice Paterson instructing the jury, said: "Let us attend, for a moment, to the evidence. With what view was the attack made on General Neville's house? Was it to gratify a spirit of revenge against him as a private citizen, as an individual? No:- as a private citizen he had been highly respected and beloved; it was only by becoming a public officer, that he became obnoxious; and it was on account of his holding the excise office alone, that his house had been assailed, and his person endangered. On the first day of attack, the insurgents were repulsed; but they rallied, returned with greater force, and fatally succeeded in the second attempt. They were arrayed in a military manner; they affected the military forms of negotiation by a flag; they pretended no personal hostility to General Neville; but they insisted on the surrender of his commission. Can there be a doubt, then, that the object of the insurrection was of a general and public nature?

In U. S. r. Hoxie, (1808) 1 Paine 265, 26 Fed. Cas. No. 15,407, Mr. Justice Liv

small and despicable, it furnishes strong evidence of some intent, very far short of that of measuring their strength with the United States: unless, we can believe, that a force, if it deserve that name, scarcely competent to the reduction of a single family, were meditating hostilities and rebellion against a government, defended by several millions of freemen. But, there is no necessity of any forced interpretation, to arrive at the real intention of these parties. Their conduct shows it to have been of a private nature, and that no further violence was contemplated than to smuggle a raft which had been seized by the collector, and was then lying at a small distance from a guard, into Canada; for they forthwith proceeded thither, and having left it a little beyond the line, they returned directly to the United States, not at the head of an army, but peaceably and quietly, each man to his own home, not suspecting that they had a war on their hands, with any power, and least of all with the government of their country. Again - Whence is it collected, that their intention was to intimidate congress into a repeal of the embargo laws, or to resist their execution generally? If congress were in session, which was not the case, can gentlemen seriously believe, that means so inadequate would have been employed for purposes which an organized, numerous, and well disciplined army would have found it difficult to accomplish? If you look at the insurrections in 1794, and in 1799, you will be struck with the great difference between the cases which arose out of those occurrences, and the one on which you are now to decide. There is hardly a feature of resemblance; and yet, you are seriously expected to condemn the prisoner, as a traitor, for forcing some lumber from the possession of a collector, because Mitchel, Vigol, and Fries, (who, by the bye, were all pardoned) were convicted as such, for being concerned in insurrections, which threatened the existence of government, were well calculated to intimidate the legislature, and for a time actually suspended the operation of certain laws which were deemed obnoxious in a large district of country."

d. Commission of Other Offenses

In U. S. v. Mitchell, (1795) 2 Dall. (Pa.) 357, 1 U. S. (L. ed.) 414, 26 Fed. Cas. No. 15,789, a prosecution for treason, the government offered testimony that, in the course of the insurrection, the prisoner joined in robbing the public mail of the United States, and that several of the letters thus intercepted had been read at a meeting of insurrectionists; but it was objected that the robbery of the mail was a felony, for which, as a substantive and independent crime, he was actually charged by another indictment; and that

therefore, evidence relating to it should not be given on the present issue as the prisoner was not prepared to answer, and a prejudice might be excited against him in the mind of the jury. The court ruled as follows: "An act committed with a felonious intention cannot be given in evidence upon the trial of an indictment for high treason. It does not yet appear, that the mail was intercepted and rifled with a traitorous intention; and, so far as it respects the prisoner, there is another indictment against him, charging the offense merely as a felony. Under the circumstances the testimony cannot be admitted."

e. Declarations and Confessions Declarations.-"That conversations or actions at a different time and place might be given in evidence as corroborative of the overt act of levying war, after that had been proved in such a manner as to be left to a jury, I never doubted for an instant." Per Chief Justice Marshall in U. S. v. Burr, (1807) 25 Fed. Cas. No. 14,694a.

As to evidence of declarations of a defendant: "When spoken, written or printed in relation to an act or acts which, if committed with a treasonable design, might constitute such overt act, they are admissible as evidence tending to characterize it, and to show the intent with which the act was committed. They may also furnish some evidence of the act itself, against the accused. This is the extent to which such publications may be used, either in finding a bill of indictment or on the trial of it." Charge to Grand Jury, (1861) 5 Blatchf. 549, 30 Fed. Cas. No. 18,271, per Mr. Justice Nelson.

In U. S. v. Lee, (1814) 2 Cranch C. C. 104, 26 Fed. Cas. No. 15,584, where the defendant was indicted (and convicted) for treason against United States by adhering to their enemies, giving them aid and comfort, by supplying them with fruit and melons, showing them the channel of the Potomac, and informing them of the situation of troops of the United States, witnesses testified that the prisoner wanted to buy watermelons, and said that the British Commodore had suffered him to pass upon condition that he would bring them watermelons, which he promised to do; that he had shown a British vessel how to get off the flats; and that he wanted to get information respecting the militia, to communicate it to the British. Witnesses also testified that he had a schooner in the channel, and that he said he preferred the English government to ours. The court were of opinion that the declaration of the prisoner accompanying the overt act laid in the indictment may be given in evidence to show the intent with which the