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 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).
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, aud it was left an open and
debatable question.
As a consequence, much confusion existed for many years, in
the minds of in 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 aud 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 decision 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 condoned 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 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."
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 v. 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 his 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 v. 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; 26 Fed. Cases No. 15,262.
(7) 28 Am. & Eng. Encyc. of Law p. 458; State v. 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) 4 Cranch U.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 Grand Jury, (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) Rex v. Vaughn, (1696) 13 How. 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 development 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) Foster's 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 design, it is not necessary
that it should be a direct and positive intention entirely
to subvert or overthrow 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 to destroy 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) 13 How. 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) 2 Dall. (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 armed combination 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 Crown Law, 217; Rex v. Gregg, (1708) 14 How.
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.
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John S. Wise