CHAPTER III
OF THE OBLIGATION AND DUTIES OF THE CITIZEN TO THE NATION AND THE STATES.The word allegiance is employed to express the obligation of fidelity and obedience due by the individual, as a citizen, to his government, in return for the protection be receives from it. Fidelity is evidenced not only by obedience to the laws of one's country, and lip-service, but by faithful disclosure to the government of the property owned by the citizen, which, with that of other citizens, is subject to the burdens necessary to sustain the government; by the payment of the citizen's just share of taxation, and by responding with cheerfulness and alacrity to all calls lawfully made by the government to bear arms or render other personal service for the common defense and for the security of the liberties and the general welfare of his State.
Obedience consists of respect for, observance of, and aid in maintaining, the laws of the government.
The Different Kinds of Allegiance.
The books describe allegiance as arising in four ways:
1. Natural allegiance - that which arises by nature and birth.
2. Acquired allegiance - that arising by denization or naturalization.
3. Local allegiance - that arising from temporary residence, however short, in a country.(2)
4. Legal allegiance - that arising from oath.Formal Compact Not Necessary to Create Allegiance.
It is by no means essential that a formal compact between a citizen and his government shall exist in order to create the duty of allegiance.(3) If a de facto government is established, overthrowing and supplanting a de jure government and the citizen remains under the newly established government, he assumes the duty of allegiance to it, which always exists between the governing and the governed.(4) When a government is changed, those disaffected do not owe immediate allegiance to the changed authority, but should be allowed a reasonable time to depart, and the court and jury should determine what is such reasonable time(5)
The peculiar nature and constitution of our government has created a dual allegiance on the part of our citizens; an allegiance due to the national government and to the State government. In theory these two have been, from the outset, entirely compatible with each other. In practice, however, they gave rise to a great debate, which lasted over seventy years, and culminated in one of the bloodiest civil wars in history.
This controversy was primarily due to the following facts:1. That the States which formed the Union were independent sovereign States, entitled to the unqualified allegiance of their citizens, before the Union existed.
2. That, whatever may have been the quality and priority of the allegiance due to the Federal government by the citizens of the States which formed the Union, that Federal allegiance was junior in time to the allegiance which they owed to their States.3. That by Amendment X to the Federal Constitution, adopted almost simultaneously with the Constitution, all powers - not delegated to the United States by the Constitution or prohibited by it to the States were reserved to the States respectively, or to the people; and
4. That although the question of the right of a State to withdraw from the Union, if dissatisfied with its operations, was fully considered and debated in the convention which framed the Constitution, there was no expression in the instrument, as it was finally adopted, definitely settling the existence or nonexistence of that right, and it was left an open and debatable question.
As a consequence, much confusion existed for many years, in the minds of many citizens, upon the question whether, in an issue between the State and the Nation, what was known in the debates of the period as their paramount allegiance was due primarily to the State or to the Nation by citizens of both. Without going further into that protracted and bloody argument, it is sufficient to say that the views of citizens upon the right of a State to withdraw from the Union and upon the question whether, in such a crisis, the paramount allegiance of the citizen was due to his State or to the Nation, differed so irreconcilably in different sections of the Union that, when certain States and their citizens attempted to withdraw or secede from the Union, the attempt was resisted by the other States and their citizens who still adhered to the United States, and a bloody civil war followed, waged by the States which adhered to the Union, and in the name of the United States, the outcome of which was that those who claimed that the Union was an "an indissoluble Union of indestructible States," and that paramount allegiance was due to the United States by every citizen, completely triumphed, and that doctrine is now established beyond question.
Since the great Civil War the oath of allegiance to the nation administered to persons entering its military and naval service pledges the party taking it that he will thenceforth bear true faith and allegiance to the United States, and will support, protect, and defend it against all enemies whatsoever, "foreign or domestic." For the peace of the nation it would have been better if such an unqualified oath of paramount allegiance had been exacted from all public servants from the foundation of the government; for it is a historic fact that at the outbreak of the great Civil War many persons who had for years been in the military and naval service of the United States, a large proportion of whom had been educated by the Federal government, had never been called upon to take an oath of paramount allegiance to the United States, and consequently felt at liberty to resign their position in the Federal Service, and tender their services to their native States, under the firm and conscientious conviction that the latter were entitled to their paramount allegiance. Among them were men whose exalted lives and spotless characters exclude all questions of purity of their motives, and whose action only emphasizes the difficulty of discovering conclusively and deciding where paramount allegiance was due under all the circumstances.
Fortunately, this question, in the light of the arbitrament of war, can never recur. Henceforth it must be conceded that, whenever the two allegiances, Federal and State, of an American citizen, are in apparent -conflict, the latter must yield to the former. There can be no such thing, under our system, as allegiance to a State, in conflict with allegiance to the Federal government.
The spirit in the citizen that, originating in love of country, results in obedience to its laws, the support and defense of its existence, rights, und institutions, and the promotion of its welfare, is called patriotism. The more unselfish and self-sacrificing is the spirit displayed by the citizen the higher and more exalted his patriotism. Such a citizen is called a patriot.
In the experience of governments, the citizens who evade bearing their personal burdens of citizenship, or, when tested, lack courage to discharge those burdens, are not so numerous as, and are much more readily discovered than, those who evade the lawful burdens upon their property, and who, by eloining it or concealing it where it cannot be reached for taxation, cast the burden of taxation unduly upon their fellow-citizens, while reaping a full share of benefits. Such citizens are not a whit less faithless or detestable than the physical skulkers or cowards. It is the citizen who yields the legitimate share of his property, as well as the proper services of his person, to the lawful demands of his country for support, who is the real patriot. Yet, partly because the crime is not so apparent, and partly because of the power of wealth to buy condonement of crime, the scorn of mankind has never been visited as relentlessly upon the tax-dodger as upon the coward.
The antithesis of allegiance and patriotism is treason. Treason is defined as "a breach of allegiance to a government committed by one under its protection."(6) Under the English law there were two kinds of treason, high and petit. High treason embraced the crime which we generally know as treason. Petit treason embraced sundry acts now treated as distinct crimes, and when a servant killed his master, a wife her husband, or an ecclesiastical person his superior.(7) In America we have only simple treason.
By the Federal Constitution, treason is defined as follows: "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort."(8) The same instrument provides that the President and Vice-President and all civil officers of the United Stated may be removed from office for treason;(9) and it likewise rendered senators and representatives liable to arrest for treason.10) But the Constitution expressly requires, for conviction of treason, the testimony of two witnesses to the same overt act, or a confession in open court. Our country has been singularly blessed in the small number of prosecutions for treason. The decisions have been correspondingly few.(11)
A whole chapter of the Revised Statutes, consisting of eight sections, is devoted to "crimes against the existence of the government." The crimes defined are treason, misprision of treason, inciting or engaging in rebellion or insurrection, criminal correspondence with foreign government, seditious conspiracy, recruiting soldiers or sailors to serve against the United States, and enlistment to serve against the United States. Of these crimes the punishment for treason and misprision of treason were enacted in 1790, and the punishment for criminal correspondence with foreign governments was enacted in 1799; all the other offenses mentioned in the chapter and the punishments therefor were declared by statutes enacted in 1861 and 1862 after the outbreak of the great Civil War.(12) The federal decisions on the constitutional and statutory offense of treason are very few,(13) and show within what narrow limits the crime of treason is confined under our system.
Of misprision of treason, which consists in concealing, or in failing to disclose and make known, the commission of the crime of treason, as soon as may be, it is sufficient to say that but three cases are known to the author in which the discussion of this crime has occurred.(14)
And as the other acts in the chapter on crimes against the ex6tence of the government were passed after the Civil War was flagrant, the attempt to enforce them would have been in effect to make them ex post facto laws, so that they were not vigorously enforced.(15)
Treason is often described in the books as the greatest crime known to the law.(16) The individual guilty of treason is known as a traitor.(17) Every citizen owes to his government support and loyalty until he openly renounces his country and becomes a citizen or subject of another country, or his government is supplanted by another in a manner beyond his control. Thus if a de facto government is established over him in a manner beyond his control, by which the de jure government theretofore existing is entirely supplanted, that entitles the de facto government to his allegiance, and to obey it is not treason to the de jure government, even if that rightful or de jure government shall be afterwards restored.(18) But the doctrine of the English law has not always admitted the above rule, for in the celebrated case of General Vane, who took no part in the execution of Charles I but subsequently commanded the Parliamentary Army, it was held that his plea that the Parliamentary government was de facto did not justify obedience to its commands and Vune was executed.(19)
The law of treason in England is based on the English statute 25 Edw. 111, stat. 5, c. 5. The definition of treason in our Constitution, Article III, Section 3, Clause 1, is taken from the third and fourth sections of the English act.(20) The American courts have followed the construction put upon the language by the English courts.(21)
The Constitution having defined the crime of treason, it is beyond the power of Congress either to broaden or contract the definition of treason, or to punish as treason what is not defined to be treason in the Constitution, or to fail to punish as treason what the Constitution declares to be such.(22)
In some of the States the State constitution defines the crime of treason against the States; in others it is left to the regulation of statutes.(23) For example, in a former constitution of Alabama the definition of treason was similar to that in the Constitution of the United States. In a case arising in that State for aiding a rebellion of Slaves, it was said that while the crime contained several, but not all, of the elements of treason, it might be indicted as a separate crime, since it did not fall within the constitutional definition of treason.
In the State of Virginia, one of the oldest of the States, the constitutions of the State have not attempted to define the crime of treason against the State, but have left it to statutory enactment.
It has been held that the crime of constructive treason is not recognized in the United States.(24)
A citizen may commit a dual act of treason, by reason of his act being equally treasonable against the distinct sovereignties of the Nation and the State. The act may be a single act, yet the offenses against the Nation and the State be distinct and punishable by both.
Treason against the United States is committed by invasion of national sovereignty.(25) Treason against a State is committed by acts directed against the sovereignty of the State, as an attempt to over throw the State government.(26) It was said in U. S. v. Bollman,(27) that the intention with which treason is committed determines the species of treason, and that no injury, even if it extend to an attempt to oppose and destroy the laws and government of any one of the States, will amount to treason against the United States.
In the case of Ex p. Quarrier(28) it was said that if, by the act, treason is committed against both State and Federal governments, the traitor is liable to punishment by each sovereignty.
But in the case cited, a citizen of West Virginia, in the great rebellion, waged war, as a Confederate soldier, against the United Staten, and it was held that although West Virginia was a component part of the Union his act was not treason against her, for treason against her could only be committed by acts done directly against her State government.
Perhaps the most widely known act of treason against both sovereignties, in our country, is the celebrated but unreported case of Virginia v. John Brown and others. In the year 1859, in a time of profound peace, John Brown and a party of armed followers suddenly appeared in the night time at Harper's Ferry, Virginia, seized the United States arsenal and arms, and from that position, in which they fortified themselves, sent forth small parties to seize Sundry citizens of Virginia and to incite Virginia slaves to insurrection. While in possession of the United States arsenal they fired upon citizens and killed and wounded fifteen persons. It subsequently developed that they were proceeding under a plan of government formulated in Canada, which contemplated the liberation of the slaves and the installation of a government wholly inconsistent with the existing government, Federal and State. Both Federal and State authorities employed their military forces to suppress this violent outbreak. The stronghold in which Brown and a few companions had entrenched themselves, an engine house on the Harper's Ferry arsenal reservation of the United States, was carried by assault by a party of United States marines, under a heavy fire from Brown and his party, and a marine wan killed before the insurgents were captured.
The acts committed by Brown and his party fell clearly within all the definitions of what constitutes the actual levying of war against the United States. They had formed themselves into a body and marched with weapons, offensive and defensive, with a public design that was unmistakable. This had been held to constitute levying war.(29) They had by force of arms seized, occupied, and appropriated an arsenal of the United States, and turned its guns upon Federal authority, which was an unequivocal act of war.(30) They had held it against the government.(31) They had refused to surrender, and resisted, with murder, the attempt of the government to re-possess itself of its property. All these constituted treason against the United States.
Their offenses were equally treason against the State of Virginia, whose laws denounced as treason, with the penalty of death, and without. pardoning power in the executive, the acts of -
1. Establishing, without authority of the legislature, any government in the State, or holding or executing in such usurped government any office, or professing allegiance or fidelity to it;
2. Or resisting the execution of the laws, under color of its authority.
3. Advising or conspiring with slaves to rebel or make insurrection, or with any person to induce a slave to rebel or make insurrection, whether such rebellion or insurrection be made or not.
The above laws had been on the statute-books of Virginia for many years before this outbreak.
The prisoners were delivered over by the military forces of the United States to the State authorities of Virginia, and were promptly tried for treason against the State, convicted, condemned, and hanged; so that the United States had no opportunity to prosecute them for the offense of treason against itself. The excitement of the times upon the subject of slavery was Ouch that, although the acts of John Brown and his associates were plainly treason against the United States and the State of Virginia, indefensible on any plea but that of insanity, and although Brown himself refused to allow that plea to be interposed in his behalf, and declared that he had a fair trial, his execution was denounced as an act of murder by many anti-slavery people, and he is still canonized in "John Brown the Martyr."
All the book's concur that an act of treason is composed of two elements, to wit: the intention, and the overt act.(32) The intent alone is not sufficient to constitute treason. Nor are mere words, whether spoken, written, or printed, of themselves treason.(33) Words spoken are admissible to establish treasonable intent, but little weight is to be attached to the mere declaration of a party.(34)
What constitutes an overt act has been the subject of much discussion. An overt act is undoubtedly essential to the levy of war. To that there must be a combination or association of people united by a common purpose in a conspiracy directed against the government.(35)
The time of the formation of a treasonable design is immaterial. The preconcerted action to which a number of people are privy is a necessary element of an intention to levy war. The conspiracy may be proven either by the declarations of the individuals or by proof of the proceedings at the meetings. After proof of the conspiracy to effect a treasonable design the deed of one, in pursuance of that design, is the act of all.(36)
The overt act contemplated by the language of the Constitution is generally the actual employment of force by a collection of men; but, all preparatory arrangements having been completed, the assembling of a number of men to execute the treasonable design is an overt act of levying war. Not so, however, unless they are in condition to carry out their treasonable design. (37)
The quantum of the force employed is immaterial. This is generally displayed by the use of employment of arms and military array, but these are not indispensably requisite.(38) There must, however, be in all cases some unequivocal act of resistance, which, in its nature, shows a purpose to resort, if necessary, to conflict with the government.(39)
The seizure of a fort or arsenal by a body of men;(40) holding the same;(41) the mere cruising of an armed vessel, though no ships are encountered;(42) the marching of a body of men immediately to perform their treasonable design; the moving from a particular to a general place of rendezvous, are all unequivocal acts of levying war. The design need just be to overthrow the entire government. It is sufficient if it contemplates the overthrow of government or the suppression of laws in a particular locality, or even the coercion of the government in state matters or acts of sovereignty.(43) If the demonstration be only to subserve some private purpose, such as individual profit, the removal of a particular nuisance, a private quarrel, or a demonstration of the strength and number of a political party to procure the liberation or mitigation of punishment of political prisoners, the offense is not treason.(44)
While rioting and the levying of war against the government are closely allied, there is a distinction. In riots the object of the disturbances is to satisfy a particular grievance; in treason the intention is to overthrow the government.(45) The question is always one of intention, to be gathered from the particular transaction. The English doctrine of constructive levying of war, which holds various forms of rioting to be in effect levying war against the government, has not been favorably regarded by the American judiciary. It was thought to be too great a stretch of the constitutional definition of treason, and in the case of United States v. Hanway (supra) Mr. Justice Grier said: "The better opinion there [in England] at present seems to be that the term "Levying war" should be confined to insurrections and rebellions for the purpose of overturning the government by force and arms. Many of the cases of constructive treason quoted by Foster, Hale, and other writers would perhaps now be treated merely as aggravated riots or felonies."
The words "adhering to enemies" have received frequent construction.(46) The term "enemies, of as used in the Constitution, applies only to the subjects of a foreign power in a state of open hostility to this country. The inhabitants of a neutral country may, by participation in acts of hostility, become enemies, but they are so regarded only while so engaged. Even upon capture neutrals cease to be enemies, and become entitled to the rights of subjects of a neutral country.(47)The words "adhering," "giving aid and Comfort," have also been construed. Joining the enemy during time of war is a most emphatic way of giving aid and comfort to the enemy.(48) Nothing can excuse that offense except compulsion under fear of immediate death.(49) The burden of proof in such case is on the accused. He must prove not only coercion, but that he quitted the enemy's service as soon as possible. Giving aid and comfort to the enemy, such as supplying to the enemy arms, ammunition, provisions, etc., is evidence of lack of loyalty. Any material assistance to enemies or rebels is treason.(50)
Communicating with or advising the enemy, or furnishing him with valuable information, even where the letters are intercepted, is an act of treason.(51) And delivering a fort by bribery or other sympathy with the enemy is direct assistance to the enemy.(52) It is otherwise when such an act is the result of cowardice or imprudence. Even that act is, however, punishable by martial law. Cruising on an armed vessel which belongs to the hostile country is an overt act of aid and comfort to the enemy. All of the above instances being necessarily direct attacks on his government by the citizen, his motive is immaterial.(53)
Treason being a crime peculiar in its nature, to which there is not attached the odium or disrepute connected with other felonies,, evidence tending to show former good reputation has not the same weight as it may have in ordinary crimes, like burglary or arson, as tending to show the improbability of the prisoner's commission of the offense, since the purest motives indulged in by the most honorable men are not inconsistent with the offense of treason. This was said in Dammaree's Case.(54) But it is not a satisfactory reason. For more odium and disrepute are attached to the crime of treason than to any other known to the law. It is true that it is a peculiar crime and has sometimes manifested itself in men who, prior to its commission, had seemed above such baseness; whereas the commission of burglary or arson is generally the culmination of a previously bad record. And this is about all that can be said of the reason for the distinction.
Consideration of the evidence required to prove treason, and of the defense, is omitted as beyond the scope of this treatise, and the subject may be concluded with the remark that treason is a crime of so high a nature that it does not admit of accessories but all who are in any way connected with it are principals.(55)
FOOTNOTES
(1) Funk & Wagnall's Standard Dictionary; Carlisle v. U.S. (1872) 16 Wall. U.S. 147; U.S. Greiner, (1861) 4 Phila. (Pa.) 306, 18 Leg. Int. (Pa.) 149, 26 Fed. Cas. No. 15,262; Calvin's Case, 7 Coke 1; State v. Hunt. (1834) 2 Hill L (S. Car.) 1; U.S. v. Greathouse, (1862) 2 Abb.U.S. 364; Chargeto Grand Jury, (1861) 1Sprague U.S. 602; Bouvier's Law Dictionary, tit. Treason; Foster's Crown Law, 183.
(2) Am. & Eng. Encyc. of Law, p. 148, (2d Ed.) . Brown's Law Dictionary (Sprague's Ed.) ; Powers of Congress, (1855) 8 Op. Atty.-Gen. 139; Rights of Expatriation, (1859) 9 Op. Atty.-Gen. 356; Carlisle v. U.S., (1872) 16 Wall. U.S. 147; Inglis v. Sailor's Snug Harbor, (1830) 3 Pet U.S. 155; Jackson v. Goodell. (1822) 20 Johns (N.Y.) 188; 1 Blackstones Com. 366. Allegiance is often spoken of as fealty. Wallace v. Harmstad, (1863) 44 Pa. St. 501. Nature of alien's allegiance to country of his residence. 1 East p. C. c. 2, Sec. 4; 1 Hale P. C. 10; Foster's Crown Law Discourse, Sec. 2; 2 Kent's Com. 63-64; Carlisle v. U.S., (1872) 16 Wall. U.S. 147; Homestead Case, (1892) I Pa. Dist. 785; The Schooner Exchange v. M'Faddon, (1812) 7 Cranch U.S. 116; Ex p. Reynolds, (1879) 5 Dill. U.S. 394; Ex p. Thompson, (1824) 3 Hawks (N. Car.) 362.
(3) Respublica v. Chapman, (1781) 1 Dall. (Pa.) 53.
(4) Thorington v. Smith, (1868) 8 Wall. U.S. 1; Respublica v. Chapman, (1781) 1 D&IL 4Pa.) 53. The Confederate government never a true de facto government, Keppel w. Petersburg R. Co., (1868) Chase U.S. 167, 14 Fed. Cas. No. 7,722; Sprott v. U.S., (1874) 20 Wall. U.S. 459; Shortridge v. Macon, (1867) Chase U.S. 136. The vanquished owe allegiance to the victor, Hanauer v. Woodruff. (1872) 15 Wall U.S. 439; U.S. v. Rice, (1819) 4 Wheat. U.S. 246; Thorington v. Smith, (1868) 8 Wall. U.S. 1. Duration of victor's sovereignty coextensive with bis absolute control, Fleming v. Page, (1850) 9 How. U.S. 603.
In such a cases the inhabitants pass under a temporary allegiance to the de facto government, and are bound by such laws, and such only, as it chooses to recognize and impose. From the nature of the case, no other laws can be obligatory upon them, for where there is no protection or allegiance or sovereignty, there can be no claim to obedience. Per Story, J., in U. S. v. Rice. (1819) 4 Wheat U.S. 246.
(5) Respublica v. Chapman, (1781) 1 Dall. (Pa.)53.
(6) 28 Ain. & Eng. Encyc. of Law, 457; Rex w. Cranburne. (1696) 13 How. St. Tr. 227; Rex v. Vaughan, (1696), 13 How. St. Tr. 526; U. S. v. Wiltberger, (1820) 5 Wheat. U.S. 76; Respublica v. Chapman, (1781) 1 Dall. (Pa.) 53; 1 Hales' Pleas of Crown, 48; U.S. v. Greiner, (1861) 4 Phila.(Pa.) 396; 18 Leg.Int.(Pa.) 149; 26Fed. Cases No. 15,262.
(7) 28 Am. & Eng. Encyc. of Law p. 458; State W. Bilansky, 3 Minn. 246.
(8) U. S. Const. Art.. III, See. 3, Cl. 1.
(9) U. S. Const. Art. II, Sec. 4. Cl. 1.
(10) U. S. Const.. Art I. Sec. 6, Cl. 1.
(11) U.S. v. Insurgents, (1796) 2 Dall. U.S. 336; U.S. v. Mitchell, (1795) 2 Dall. U.S. 348; Ex p. Bollman, (1807) 4 Cranch U.S. 76; Burr's Trial, 4 Cranch U.S. 469.
(12) Rev. Stat. U.S., Title LXX, Ch. 2, Secs. 5331-5338.
(13) U.S. v. Insurgents, (1795) 2 Dall. U.S. 335; U.S. v. Mitchell, (1795) 2 Dall. U.S. 348; U.S. v. Villato. (1797) 2 Dall. U.S. 370; Ex p. Bollman.(1887) 4 Cranch U.S. 75; U.S. v. Pryor, (1814) 3 Wash. U.B. 234; U.S. v. Hanway, (1851) 2 Wall. Jr. (C. C.) 139; 1 Burr's Trial, 14-16; 2 Burr's trial, 402, 405, 417; U.S. v. Hoxie, (1808) 1 Paine U.S. 265; U.S. v. Greathouse, (1863) 2 Abb. U.S. 384; Confiscation Cases, (1873) 20 Wall. U.S. 92; Wallach v. Van Riswick, (1876) 93 U.S. 274;
(14) U.S. v Wiltberger, (1820) 5 Wheat. U.S. 97; Confiscation Cases,(1872) 1 Woods U.S.221; U.S. v. Tract of Land.(1871)1 Woods U.S. 475.
"Since the adoption of the Constitution but few Cases of indictment for treason have occurred, and most of them not many years afterwards." U.S. v. Hanaway, (1851) 2 Wall. Jr. (C. C.) 201.
(15) Ex p. Lange, (1873) 18 Wall. U.S. 163.
(16) U.S. v. Hoxie, (1808) I Paine U.S. 265; Charge to Grand Jury, (1851) 2 Curt U.S. 630. 30 Fed. Cases No. 18,269; Charge to Grand Jury, (1861) I Bond U.S. 600; Charge to Grand Jury, (1861) 4 Baltchf. U.S. 518, 30Fed. Cases No. 18,720.
"Under the laws of the United States, the highest of all crimes is treason. It must be so in every civilized state; not only because the first duty of a state is self-preservation, but because this crime naturally leads to and involves many others destructive of the safety of individuals and of the peace and welfare of society." Charge to Grand Jury, (1851) 2Curt. U.S. 633.
(17) U.S. v. Burr, (1807) 25 Fed. Cases No. 14,693.
(18) Thorington v. Smith, (1868) 8 Wall. U.S. 1; Respublica v. Chapman, (1781) 1Dall. (Pa.) 53; Keppel v. Petersburg R. Co., (1868) Chase U.S. 167, 14 Fed. Cases No. 70,722.
(19) (1662) J. Kel. 14, 6 How. St. Tr. 119.
(20) U.S. v. Burr, (1807) 25 Fed. Cases No. 14,693.
"The clause was borrowed from an ancient English statute, enacted in the year 1352, in the reign of Edward the Third, commonly known as the Statute of Treasons. Previous to the passage of that statute, there was great uncertainty as to what constituted treason. Numerous offences were raised to its grade by arbitrary construction of the law. The statute was passed to remove this uncertainty, and to restrain the power of the crown to oppress the subject by constructions of this character. It comprehends all treason under seven distinct branches. The framers of our constitution selected one of these branches, and declared that treason against the United states should be restricted to the acts which it designates." U.S. v. Greathouse, (1863) 2 Abb. U.S. 371.
(21) U.S. v. Hoxie, (1808) 1 Paine U.S. 265; Charge to Grand Jury, (1851) 2 Curt. U.S. 630, 30 Fed Cases No. 18,269; U.S. v. Greiner, (1861) 4 Phila. (Pa.) 515; U.S. v. Greathouse, (1863) 2 Abb. U.S. 364; U.S. v. Hanaway, (1851) 2 Wall. Jr. (C.C.) 200.
"The term [levying war] is not for 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 not employed by the framers of our Constitution in the sense which had been affixed to it by those from whom we borrowed it." Per Marshall, C.J.in U.S. v. Burr, (1807) 25 Fed. Cases No. 14,693.
"These terms, `levying war,'` adhering to enemies,' `giving them aid and comfort,' were not new. They had been well known in English jurisprudence at least as far back as the reign of Edward III. They had been frequently the subject of judicial exposition, and their meaning was to a great extent well settled." Charge to Grand Jury, (1861) 1 Sprague U.S. 603.
(22) U.S. v. Greathouse, (1863) 2 Abb. U.S. 371; U.S. v. Fries, (1799) 3 Dall. (Pa.) 515, 9 Fed. Cases No. 5,126; Homestead Case, (1892) 1 Pa. Dist. 785.
(23) State v. McDonald, (1837) 4 Port. (Ala.) 449.
(24) Ex p. Bollman, (1807) 4CranchU.S. 75.
"The framers of our Constitution, who not only defined and limited the crime, but with jealous circumspection attempted to protect their limitation by providing that no person should be convicted of it, unless on the testimony of two witnesses to the same overt act, or on confession in open court, must have conceived it more safe that punishment in such cases should be ordained by general laws, formed upon deliberation, under the influence of no resentments, and without knowing on whom they were to operate, than that it should be inflicted under the influence of those passions which the occasion seldom fails to excite, and which a flexible definition of the crime, or a construction which would render it flexible, might bring into operation. It is, therefore, more safe as well as more consonant to the principles of our Constitution, that the crime of treason should not be extended by construction to doubtful cases; and that crimes not clearly within the constitutional definition, should receive such punishment as the legislature in its wisdom may provide." Per Chief Justice Marshall, in Ex p. Bollman,(1807) 4 Cranch U.S. 127.
(25) U.S. v. Hoxie, (1808) 1 Paine U.S. 265.
(26) charge to GrandJury, (1842) 1 Story U.S. 614; People v. Lynch, (1814) 11 Johns. (N.Y.) 550; Ex p. Quarrier, (1866) 2 W. Va. 569.
(27) (1807) 4 Cranch U.S. 127.
(28) (1866) 2 W. Va. 569.
(29) Rexv. Vaughn, (1696) 13How. St. Tr.531.
(30) Charge to Grand Jury, (1861) 1 Sprague U.S. 602; Charge to Grand Jury, (1861) 4 Blatchf. U.S. 518, 30 Fed. Cases No. 18,720.
(31) Foster's Crown Law, 208.
(32) U.S. v. Hanway, (1851) 2 Wall. Jr. (C.C.) 169; U.S. v. Pryor, (1814) 3 Wash. U.S. 234; Law of Treason, (1842) 1 Story U.S. 614; Reg. v. Gallagher. (1883) 15 Cox (C. C.) 291; Rex v. Stone, (1796) 6 T. R. 527; Case of Armes, (1596) Popham 121, Foster 208; Reg. v. Frost, (1939) 9 C. & P. 129, 38 E.C.L. 70.
"The plain meaning of the words 'overt act' as used in the Constitution and the statute, is an act of a character susceptible of clear proof, and not resting in mere inference or conjecture. They were intended to exclude the possibility of a conviction of the odious crime of treason, upon proof of facts which were only treasonable by construction or inference, or which have no better foundation than mere suspicion." Charge to Grand Jury, (1861) I Bond U.S. 611, 30 Fed. Cases No. 18,272.
(33) Law of Treason, (1861) 6 Blattchf. U.S. 649; Charge to Grand Jury, (1861) I Bond U.S. 609; State v. M'Donald. (1837) 4 port. (Ala.) 449; Chichester v. Philips, (1680) T. Raym. 404.
"The intention, being the chief constituent of the offense, must be proved by some developmout of less equivocal import" Stato v. M'Donaid. (1837) 4 Port. (Ala.) 449.
(34) Rex v. Cook, (1696) 13 How. St. Tr. 391.
(35) Reg. v. Frost. (1839) 9 C. & P. 129, 38 E.C.L. 70.
(36) Rex v. Regicides, (1660) 5 How. St. Tr. 1224; Reg. V. McCafferty. (1867) 10 Cox C. C. 603; Rex v. Dammaree, (1710) 15 How. St. Tr. 609.
(37) U. S. v. Burr, (1807) 25 Fed. Cases No. 14,693.
(38) Messenger's Trial, J. Kel. 70, and cases above cited.
(39) Hawk. P. C. 55, and cases of U.S. v. Burr and others above cited.
(40) Charge to Grand Jury. (1881) I Sprague U.S. 602; Charge to Grand Jury, (1861) 4 Blatchf. U.S. 518 , 30 Fed. Cases No. 18,270.
(41) Foater'p Crown Law 208.
(42) U.S. v. Greiner, (1861) 4 Phila. (Pa.) 396, 18 Leg. Int. (Pa.)149; Rex v. Vaughn, (1696) 13 How. St. Tr. 486.
(43) U.S. v. Greathouse, (1863) 2 Abb. U.S. 364; Charge to Grand Jury, (1842) 1 Story U.S. 614; Homestead Case, (1892) 1 Pa. Dist. 785; U.S. v. Vigol, (1795) 2 Dall. U.S. 346; Ex p. Bollman, (1807) 4 Cranch U.S. 75.
" In respect to the treasonable desigu, it is not necessary that it should be a direct and positive intention entirely to subvert or overtthrow the government. It will be equally treason, if the intention is by force to prevent the execution of any one or more general and public laws of the government, or to resist the exercise of any legitimate authority of the government in its sovereign capacity." Charge to Grand Jury. (1942) 1 Story U.S. 616.
(44) U.S. v. Hanway, (1851( 2Wall. Jr.(C.C.) 205, and cases above cited.
(45) 1 Hale P.C. 145.
"When the object of an insurrection is of a local or private nature, not having a direct tendency todestroy all property and all government by numbers and armed forces, it will not amount to treason; and in these and other cases that occur, the true criterion is the intention with which the parties assembled." U.S. v. Hoxie, (1808) 1 Paine U.S. 271.
(46) Rex v. Vaughn, (1696) 13How. St. Tr. 525; Charge to Grand Jury, (1861) 1 Sprague U.S. 607.
(47) Sparenburgh v. Bannatyne, (1797) 1 B.&P. 163.
The character of alien enemy arises from the party being under the allegiance of the state at war with us; the allegiance being permanent, the character is permanent, and on that ground he is alien enemy, whether in or out of prison. But a neutral, whether in or out of prison, cannot, for that reason, be an alien enemy; he can be alien enemy only with respect to what he is doing under a local or temporary allegiance to a power at war with us. When the allegiance determines, the character determines. Sparenburgh v. Bannatyne, (1797) 1 B. & P. 163.
"The term `enemies' as used in the second clause, according to its settled meaning at the time the Constitution was adopted, applies only to the subjects of the foreign power in a state of open hostility with us. It does not embrace rebels in insurrection against their own government. An enemy is always the subject of a foreign power who owes no allegiance to our government or country." U.S. v. Greathouse, (1863) 2 Abb. U.S. 372, per Field, J.
The duty of allegiance to the United States owed by a citizen of one of the southern States, at a time when its revolutionary secession was threatened but had not been consummated, could not be affected by any convicted or forced allegiance to the State. He could not then, as a citizen of the State, pretend to be a public enemy of the United States, in any sense of the word "enemy" which distinguishes its legal meaning from that of traitor. U.S. V.Greiner, (1861) 4 Phila. (Pa.) 396, 18 Leg. Int. (Pa.) 149.
(48) Gordon's Case, (1746) 1East P.C. 71; M'Growther's Case(1746)1East P.C. 71, Foster's Crown Law 13; U.S. v. Greiner, (1861) 4 Phila. (Pa.)396, 18 Leg. Int. (Pa.) 149.
"The words in the definition, `adhering to their enemies,' seem to have no special significance, as the substance is found in the words which follow - `giving them aid and comfort.'" Charge to Grand Jury, (1861) 1 Bond U.S. 609.
"In general, when war exists, any act clearly indicating a want of loyalty to the government, and sympathy with its enemies, and which, by fair construction, is directly in furtherance of their hostile designs, gives them aid and comfort. Or, if this be the natural effect of the Act, though prompted solely by the expectation of pecuniary gain, it is treasonable in character." Charge to Grand Jury, (1861) 1Bond U.S. 611, 30 Fed. Cases No. 18,272.
(49) Hawk, P.C. 54; Respublica v. M'Carthy, (1781) 2 Dall. (Pa.) 86; U.S. v. Vigol, (1796) 2 Dall. U.S. 346; Trial of Regicides, J. Kel.13.
"In the eye of the law, nothing will excuse the act of joining an enemy but the fear of immediate death; not the fear of any inferior personal injury, nor the apprehension of any outrage upon property." Respublica, v. M'Carty, (1781) 2Dall. (Pa.) 88.(50) Fosters' Crown Law, 217; U.S. v. Pryor, (1814) 3 Wash. U.S. 234; U.S. v. Burr, (1807) 25Fed. Cases No. 14,693; Charge to Grand Jury, (1861) 1 Bond U.S. 696, 30 Fed. Cases No. 18,272; Hanauer v. Doane, (1870) 12 Wall. U.S. 347; Carlisle v. U.S., (1872) 16Wall. U.S. 147.
"He who, being bound by his allegiance to a government, sells goods to the agent of an armedcombination to overthrow that government, knowing that the purchaser buys them for that treasonable purpose, is himself guilty of treason or a misprision thereof. He voluntarily aids the treason. He cannot be permitted to stand on the nice metaphysical distinction that, although he knows that the purchaser buys the goods for the purpose of aiding the rebellion, he does not sell them for that purpose. The consequence of his acts are too serious and enormous to admit of such a plea. He must be taken to intend the consequences of his own voluntary act." Hanauer v. Doane, (1870) 12 Wall. U.S. 342; see also Crlisle v. U.S. (1872) 16 Wall. U.S. 147.(51)Foster's CrownLaw, 217; Rex v. Gregg,(1708) 14How. St.Tr.1376.
(52) 1 Hale P.C.168.
(53) Charge to Grand Jury,(1861) 1 Bond U.S.609, 30 Fed. Cases No. 18,272; Hanauer v.Doane, (1870) 12 Wall. U.S. 342; Sprott v. U.S. (1874) 20 Wall. U.S. 450; Carlisle v. U.S.(1872) 3 Wash. U.S. 147.
The motives by which a prisoner in the hands of the enemy, seeking means of escape, was induced to attempt the commission of an act constituting the crime of treason, and by which there are the strongest reasons to believe that he was most sincerely actuated, would certainly palliate the enormity of the crime. U.S. v. Pryor, (1814) 3 Wash. U.S. 234.
(54) Rex v. Dammaree, (1710)15 How. St. Tr.604.
(55) As respects the order of trial, however, the whole reason of the law, relative to the principal and the accessory, seems to apply in full force to a case of treason committed by one body of men in conspiracy with others who are absent. Whether the adviser of an assemblage be punishable with death as a principal or as an accessory, his liability to punishment depends upon the degree of guilt attached to an act which has been perpetrated by others; and which, if it be a criminal act, renders them guilty also. His guilt, therefore, depends on theirs; and their guilt cannot be legally established in a prosecution against him. Per Marshall, C.J., in U.S. v. Burr, (1807) 25 Fed. Cases No. 14,693.
For a valuable citation of authorities concerning the elements conditioning treason, the proofs necessary to establish it, and the defenses thereto, see Vol. 28, Am. & Eng. Encyc. of Law (2d Ed.) 457-471.