§ 1776. Where a statute makes it a misdemeanor to challenge another, the indictment must charge that the defendant challenged; it is not enough that he wrote, sent, and followed. offered a paper he intended as a challenge.1

Statute must be

Expressing a readiness to accept a challenge does not amount to challenging under the statute."

III. EVIDENCE.

§ 1777. No set phrase is necessary to constitute a challenge to fight with deadly weapons, nor is a writing necessary.

Challenge may be inferred from facts.

The note or letter sent by one party to the other, and parol testimony in explanation, are admissible as evidence."

The jury is to decide, under advice of the court, whether, from all the circumstances, there has been a challenge within the statute. § 1778. Concert being proved, it need scarcely be added that the admissions of a second are evidence against the principal; and vice versa.1

Admissions

of seconds are evidence.

State v. Gibbons, 1 South, 40. 2 Com. v. Tibbs, 1 Dana, 524.

An indictment under the Massachusetts Stat. 1849, c. 49, § 1, is sufficient, which alleges that the defendant, at a time and place named, "by and in pursuance of a previous appointment and arrangement made to meet and engage in a fight with another person, to wit, with one J. S., did meet and engage in a fight with the said J. S.," without further charging what previous appointment or arrangement was made, or when or where, or by whom, 560

PART IV.

OFFENCES AGAINST GOVERNMENT.

CHAPTER XXXVII.

TREASON.

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. S., § 1815.

Treason.
Definition

Otherwise when U. S. 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.

§ 1782. "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 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

Punishment.

§ 1783. "Every person guilty of treason shall suffer death; or, 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

A rebel, being a citizen of the United States, cannot be viewed as an enemy under the Constitution of the United States; and hence a conviction of treason, in promoting a rebellion, cannot, it has been held, be sustained under that branch of the constitutional definition which includes "adhering to their enemies, giving them aid and comfort." But such a rebel may be convicted under the phrase relating to "levying war." U. S. v. Greathouse, 2 Abb. U. S. 364

(U. S. Cir. Ct. Cal. 1863; Field and
Hoffman, JJ.). See infra, § 1795.
2 Const. U. S. art. 3, § 3, cl. 1.

As to allegiance, see supra, § 282;
Sprague, J., 23 Law Rep. 795; U. S. v.
Villato, 2 Dall. 370.

Rev. Stat. § 5331. Members of Congress guilty of treason are liable to arrest. Const. art. 1, § 6.

Rev. Stat. § 5332.

The questions of confiscation, under this statute, are discussed in Miller v.

Misprision.

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

conspiracy.

§ 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 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 the same, or who opens within the United States a recruiting station for the enlistment of such soldiers or 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. 913

Enlisting persons to

serve

against the States.

Punish

§ 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 ment of hundred dollars, and by imprisonment not less than one nor more than three years.'

994

U. S., 11 Wall. 268; Semmes v. U. S., 91 U. S. 21; Wallack v. Van Riswick, 92 Ibid. 202; Windsor v. McVeigh, 93 Ibid. 274.

Rev. Stat. § 5333.

As to misprision, see U. S. v. Wiltberger, 5 Wheat. 76; Confiscation

those so enlisting.

Cases, 1 Woods, 221; U. S. v. Tract of
Land, Ibid. 475.

Rev. Stat. § 5336.

See Rev. Stat. §§ 5518, 5520; Lange, ex parte, 18 Wall. 163. For revenue cases under this statute, see supra, § 1372.

Rev. Stat. § 5337.
Rev. Stat. § 5338.

Aiding in rebellion.

§ 1788. "Every person who incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States, or the laws thereof, or gives aid or comfort thereto, shall be punished by imprisonment 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." § 1789. The Act of January 30, 1799, § 1,2 makes it an indictable offence for a citizen of the United States to correspond with foreign governments, with intent to influence their controversies with the United States, or to defeat 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.3

Corresponding with foreign gov. ernments.

Treason

1790. By the definition of treason in the Constitution, it is limited, as will be perceived, in the first place, to the consists in levying of war against the United States, and secondly, to adhering to the enemies of the United States, giving adhering to them aid and comfort.*

levying war or in

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 of the United States. It is a technical term. It is used in a very old statute of that country whose language is our language, and whose laws form the substratum of our laws. It is scarcely conceivable that the term was

Term to be accepted according to its prior judicial meaning.

1 Rev. Stat. 1878, § 5334.

This section repeals the prior acts on the same topic, only so far as concerns the punishment imposed; and after its passage, the death penalty cannot be inflicted on those convicted of engaging in rebellion. "The defendants are therefore, in fact, on trial, for treason; and they have had all the protection and privileges allowed to parties accused of treason, without being liable, in case of conviction, to the penalty which all other civilized nations have awarded to this, the

highest of crimes known to the State." Field and Hoffman, JJ. Chapman's Case, San Francisco, 1863.

2 Bright. Dig. 203, and found in a condensed shape in Rev. Stat. U. S. § 5335.

• This statute has been discussed in a prior chapter. Supra, §§ 274, 284, n.

42 Federalist, No. 43; 4 Tucker's Black. App. 12; Charge of Judge Wilson, 7 Carey's Am. Museum, 40; 3 Story's Const. Law, § 1794; Charge on Law of Treason, 1 Story R. 614.