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CHAPTER III
OF THE OBLIGATION AND DUTIES OF THE CITIZEN
TO THE NATION AND THE STATES.
Allegiance.
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 he 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)
Of Dual Allegiance.
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 any 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.
Of Patriotism.
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, and 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.
Of Treason.
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 con&ed 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 existence
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)
Of Dual Treason.
A citizen may commit a dual act of treason, by reason of his act being
equally treasonable again at 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."
The Elements of the Offense.
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. Rey-nolds, (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 dutyr ofa state is self-preservation, but because this
crimenaturally leads to and involves many others destructiveof the
safety of individualsand 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 itshould 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 extendedby
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, itwill 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. Sp[arenburgh 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 buthad 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 toGrand 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 oras 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.