the execution of any statute of the United States by force, that they are only guilty of a high misdemeanor; but if they proceed to carry such intention into execution by force, that they are guilty of the treason of levying war, and the quantum of the force employed neither lessens nor increases the crime-whether by one hundred, or one thousand persons, is wholly immaterial.

"The Court are of opinion, that a combination or conspiracy to levy war against the United States is not treason, unless combined with an attempt to carry such combination or conspiracy into execution; some actual force or violence must be used, in pursuance of such design to levy war; but that it is altogether immaterial whether the force used is sufficient to effectuate the object-any force, connected with the intention, will constitute the crime of levying war." (Id. 634.)

Judge Story, of the Supreme Court, in a charge to the Grand Jury of the Circuit Court of the United States, at Newport, in June, 1842, said: "To constitute an actual levy of war, there must be an assembly of persons, met for the treasonable purpose, and some overt act done, or some attempt made by them with force to execute, or towards executing, that purpose. There must be a present intention to proceed in the execution of the treasonable purpose by force. The assembly must now be in a condition to use force, and must intend to use it, if necessary, to further, or to aid, or to accomplish the treasonable design. If the assembly is arrayed in a military manner-if they are armed and march in a military form, for the express purpose of overawing or intimidating the public-and thus they attempt to carry into effect the treasonable design-that will, of itself, amount to a levy of war, although no actual blow has been struck, or engagement has taken place. This is a clear case; but it is by no means the only case (for many others might be stated) in which there may be an actual overt act of levying war. I wish to state this only as one case, upon which no doubt whatsoever can be entertained.

"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. Thus, if there is an assembly of persons with force, with an intent to prevent the collection of the lawful taxes, or duties, levied by the Government-or to destroy all Custom Houses-or to resist the administration of justice in the Courts of the United States, and they proceed to execute their purpose by force-there can be no doubt, that it would be treason against the United States." (1 Story, 614.)

Judge Curtis, of the Supreme Court, in his charge to the Grand Jury, in Boston, October 15th, 1851, said: "This crime (treason) is defined by the Constitution itself, and its magnitude, as well as the importance of a fit and rigid definition of it, may be inferred from the fact, that it is the only offense defined by that instrument. It is there made to consist in levying war against the United States, or adhering to their enemies, giving them aid and comfort. This language is borrowed from an ancient English statute, enacted in the year 1352, (25 Ed. III) mainly for the purpose of restraining the power of the Crown to oppress the sub

1

ject by arbitrary constructions of the law of treason. At the time of the introduction of this language into our Constitution, it had acquired a settled meaning, and that meaning has been adopted by the Courts of the United States when they had occasion, as unfortunately they have had occasion, to interpret these words. This settled interpretation is, that the words 'levying war,' include not only the act of making war for the purpose of entirely overturning the Government, but also any combination forcibly to oppose the execution of any public law of the United States, if accompanied or followed by an act of forcible opposition to such law in pursuance of such combination. The following elements, therefore, constitute this offense :

"1. A combination, or conspiracy, by which different individuals are united in one common purpose.

"2. This purpose being to prevent the execution of some public law of the United States by force.

"3. The actual use of force, by such combination, to prevent the execution of that law.

"These elements require some further explanation, to prevent their true nature from being misunderstood. It is not enough that the purpose of the combination is to oppose the execution of a law in some particular case, and in that only.

"If a person, against whom process has issued from a Court of the United States, should assemble and arm his friends forcibly, to prevent an arrest, and in pursuance of such design resistance should be made by those thus assembled, they would be guilty of a very high crime, but it would not be treason, if their combination had reference solely to that case. But if process of arrest issue under a law of the United States, and individuals assemble, forcibly to prevent an arrest under such process, pursuant to a design to prevent any person from being arrested under that law, and with such intent, force is used by them for that purpose, they are guilty of treason." (2 Curtis, 633, 634.) 'Such a conspiracy may be formed before the individuals assemble to act, and they may come together to act pursuant to it; or, it may be formed when they have assembled, and immediately before the act. The time is not essential. All that is necessary, is, that being assembled, they should act in forcible opposition to a law of the United States, pursuant to a common design to prevent the execution of that law, in any case within their reach. Actual force must be used. But what amounts to the use of force, depends much upon the nature of the enterprise, and the circumstances of the case." (Id. 635.)

Judge Kane, of the District Court of the Eastern District of Pennsylvania, in a charge to a Grand Jury on the law of treason, in April, 1851, said; "The expression 'levying war,' so regarded, embraces not merely that act of formal or declared war, but any combination forcibly to prevent or oppose the execution or enforcement of a provision of the Constitution, or of a public statute, if accompanied or followed by an act of forcible opposition in pursuance of such combination. This, in substance, has been the interpretation given to these words by the English Judges, and it has been uniformly and fully recognized and adopted in the Courts of the United States.

"The definition, as you will observe, includes two particulars, both of them indispensable elements of the offense. There must have been a combination or conspiring together to oppose the law by force, and some actual force must have been exerted, or the crime of treason is not consummated.

"The highest, or at least the direct proof of the combining, may be found in the declared purposes of the individual party before the actual outbreak; or it may be derived from the proceedings of meeting, in which he took part openly, or which he either prompted, or made effective, by his countenance or sanction,— commending, counseling, or instigating, forcible resistance to the law. I speak, of course, of a conspiring to resist a law, not the more limited purpose to violate it, or to prevent its application and enforcement in a particular case, or against a particular individual. The combination must be directed against the law itself.

"But such a direct proof of this element of the offense is not legally necessary to establish its existence. The concert of purpose may be deduced from the concerted action itself, or it may be inferred, from facts concurring at the time, or afterward, as well as before.

"Besides this, there must be some act of violence, as the result or consequence of the combining. But here, again, it is not necessary to prove that the individual accused, was a direct, personal actor in the violence. If he was present, directing, aiding, abetting, counseling, or countenancing it, he is in law guilty of the forcible act. Nor is even his personal presence indispensable. Though he be absent at the time of its actual perpetration, yet if he directed the act, devised or knowingly furnished the means, for carrying it into effect, instigating others to perform it, he shares their guilt. In treason, there are no accessories." (2 Wallace, 136.)

Judge Greer, of the Supreme Court of the United States, in his charge to the jury, in the case of the United States v. Hanway, in 1851, expressed his concurrence in the views contained in the above charge of Judge Kane. (Id. 204.) He also said: "What constitutes 'levying war' against the Government, is a question which has been the subject of much discussion, whenever an indictment has been tried under this article of the Constitution. The offense is described in very few words, and in their application to particular cases, much difference of opinion may be expected. We derive our laws as well as our language from England. As we would apply to the English dictionaries and classical writers, to ascertain the proper meaning of a particular word, so when we would inquire after the true definition of certain legal phraseology, we would naturally look to the text writers and judicial decisions which we know that the framers of our Constitutions would regard as the standard authorities in questions of legal definition. Otherwise, the language of the Constitution on this subject might be subject to any construction which the passion or caprice of a Court and jury might choose to give it in times of public excitement. At one time the Constitution might be nullified by a narrow construction, and at another time the life and liberty of the citizen be sacrificed by a latitudinous one." (2 Wallace, 200.) And again: "Since the adoption of the Constitution, but few cases of indictment for treason have occurred, and most of them not many years afterwards. Many of the English cases, then considered good law, and quoted by the best text writers as authorities, have since been discredited, if not overruled, in that country. The better opinion there 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." (Id. 201.)

[NOTE B.]

Judge Curtis in his charge to the Grand Jury in 1851 already referred to said : "It should be known also, that treason may be committed by those not personally present at the immediate scene of violence. If a body of men be actually assembled to effect by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered guilty of treason. Influential persons cannot form associations to resist the law by violence, excite the passions of ignorant and unreflecting, or desperate men, incite them to action, supply them with weapons, and then retire and await in safety the result of the violence which they themselves have caused. To permit this, would not only be inconsistent with sound policy, but with a due regard to the just responsibilities of The law does not permit it. They who have the wickedness to plan and incite and aid, and who perform any part however minute, are justly deemed guilty of this offense, though they are not present at the immediate scene of violence." (2 Curtis, 635.)

men.

"It is now too well settled to admit of question, that the law knows no accessories in treason; but that every one who, if it were a felony, would be an accessory, is, in the law of treason, a principal traitor. This rule, being now a constituent part of the law of treason, as administered in this country ever since its settlement, and in England for several centuries, its origin and history are of no importance. It is sufficient for us, that it is a part of the law of the land; and whatever may have been the reason on which it was originally founded, its high expedieney, not to say necessity, for the prevention of this greatest of crimes, amply justifies its retention as a rule of law.

We are well aware that, in Burr's Case, this point was discussed before Marshall, C. J., and that he declined giving any opinion, because the case did not absolutely require it; and that, so far as the bias of his mind can be discovered, he seemed to doubt its application, in trials for treason against the United States, on the ground that the national tribunals could take no jurisdiction of crimes, under the common law; though he, at the same time, admitted that it was a sound rule of the law of treason against a single State. But it is to be observed, that when the Constitution or statutes of the United States give to their Courts jurisdiction over a crime, known to the common law, this law may always be consulted for the definition, extent, and attributes of that particular crime, where the statute is silent on the subject. These Courts cannot assume jurisdiction of crimes, merely on the basis of the common law. Their jurisdiction must be given by express statute or the Constitution; but, when given, the nature and extent of the authority may be ascertained by reference to the common law. To this extent the Courts seem to have agreed. (See United States v. Coolidge, 1 Gall. 488; United States v. Hudson, 7 Cranch, 32; Wilson's Works, vol. 3, pp. 371, 377; Duponceau on Jurisdiction, passim; 1 Kent's Com. Lect. 16, pp. 331, 341.) Now the Constitution makes it treasonable to levy war, but does not define the offense, nor describe the persons who may be said to have committed it. The common law does both; and is therefore to be resorted to for this knowledge. It says that every person, doing an act in regard to levying war, which, in a case of felony would render him an accessory before the fact, is guilty of the treason of levying war.

In the trial of John Fries, Mr. Justice Chase, in his charge to the jury, said that "in treason, all the participes criminis are principals; there are no accessories to this crime. Every act which, in the case of felony, would render a man an accessory, will, in the case of treason, make him a principal." (Fries' Trial, page 198.) No exception was taken to this position by the learned gentlemen who watched for the prisoner's safety, though they declined to assist him during the trial; nor is it known to have been impugned by any contrary decision.

It only remains then to ascertain what constitutes an accessory before the fact. And such is he who, being absent at the time of the felony committed, does yet procure, counsel, or command another to commit a felony. Words amounting to a bare permission will not alone constitute this offense; neither will a mere con cealment of the design to commit a felony. It is not necessary, to this degree of crime, that the connection between the accessory and the actor be immediate; for if one procures another to cause some third person to commit a felony, and he does so, the procurer is accessory before the fact, though he never saw or heard of the individual finally employed to commit the crime. (See Wharton's Amer. Crim. Law, pp. 33, 36; 1 Hale, P. C., 613, 615; Idem., 374; 2 Hawk, P. C., ch. 29, sec. 16, Rex v. Soares, Russ & Ry. 25; The People v. Norton, 8 Cowen, 137; Foster's Cr. L. 125, 126; McDaniel's Case, 19 How. St. Tr. 804; Earl of Somerset's Case, 2 How. St. Tr. 965.) Where the principal acts under instructions from the accessory, it is not necessary, in order to affect the latter, that the instructions be proved to have been precisely followed; it will be sufficient if it be shown that they have been substantially complied with. Thus, if one instructs another to commit a murder by poison, and he perpetrates it with a sword, the former is accessory to the murder, for that was the substance of the instruction. So if the person employed goes beyond his instructions, in the circumstances of the transaction-as if he be instructed to rob, and in so doing he kills the victim; or if he be instructed to burn the house of A, and in so doing the flames extend to the house of B-the person counseling and directing the act is accessory to the murder, and to the second arson, for the latter was the probable consequence of the former; and every man is presumed to foresee and assume the probable consequences of his own acts. So if the party employed to commit a felony on one person, perpetrates it by mistake on another, the party counselling is accessory to the crime actually committed. It is only when the actor totally and substantially departs from his instructions that he stands alone in the offence. (See Foster's Cr. L. 369, 370, 372; 1 Hale, P. C. 616-618; 1 Russ on Crimes, 35, 36; Whart. Amer. Crim. L. pp. 34, 35.)

Upon these principles it is that every one who counsels, commands, or procures others to commit an overt act of treason, which is accordingly committed, is himself liable to the penalty of the law, as a principal traitor.

We have been thus particular in stating the law of treason, for the especial benefit of that class of persons who counsel, advise, incite, and procure others forcibly to resist the law of the land, in any and every instance in which its execution may be attempted, and it is accordingly forcibly resisted. Whether clerical or laymen, orthodox or heterodox, editors of newspapers, or lyceum lecturers, Northmen or Southrons, whoever or whatever they be, thus doing, they are guilty of treason." (The Monthly Law Reporter of December, 1851.)