TREASON.

§ 237. TREASON against the United States, as defined in the Constitution, "shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." And it is added, that" No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open Court." 1 By the Crimes Act, this offence may be committed "within the United States or elsewhere," and is expressly limited to persons owing allegiance to the United States.2 In most of the several States, treason against the State is defined in the same words, or in language to the same effect; and the same. amount of evidence is made necessary to a conviction; but in a few of the States, both the crime and the requisite proof are described with other qualifications. Thus, in New York, treason is declared to consist, 1. in levying war against the

1 Const. U. S. Art. 3, § 3. But treason is also a crime by the common law. Respublica v. Chapman, 1 Dall. 56; 1 Hale, P. C. 76; 3 Inst. 4; 4 Bl. Comm. 75, 76.

2 Stat. April 30, 1790, § 1.

3 See Maine, Const. Art. 1, § 12; Rev. Stat. 1840, ch. 153, § 1, 2 ; Massachusetts, Rev. Stat. 1836, ch. 124, § 1, 2; New Hampshire, Rev. Stat. 1842, ch. 213, § 1; Rhode Island, Rev. Stat. 1844, Crimes Act, § 1, 3, p. 377, 378; Connecticut, Const. Art. 9, § 4; Delaware, Const. Art. 5, § 3; Alabama, Const. Art. 6, § 2; Texas, Const. 1845, Art. 7, § 2; California, Rev. Stat. 1850, ch. 99, § 17; Michigan, Const. Art. 1, § 16; Indiana, Const. Art. 11, § 2, 3; Arkansas, Const. Art. 7, § 2; Rev. Stat. 1837, ch. 44, Div. 2, § 1, p. 238; Missouri, Const. Art. 13, § 15; Wisconsin, Const. Art. 1, § 10; Iowa, Const. Art. 1, § 16; Florida, Thompson's Dig. p. 490, ch. 2; Louisiuna, Const. Art. 6, § 2; Mississippi, Const. Art. 7, § 3. In Georgia, (Penal Code, 1833, Div. 3, § 2, Prince's Dig. p. 622,) the crime is defined in the same manner, but the proof is modified, as will be seen in its proper place.

people of this State, within the State; 2. in a combination of two or more persons by force, to usurp the government of the State, or to overturn the same, evidenced by a forcible attempt made within the State, to accomplish such purpose; and 3. in adhering to the enemies of this State, while separately engaged in war with a foreign enemy in the cases prescribed in the Constitution of the United States, and giving to such enemies aid and comfort, in this State or elsewhere.1 A similar division and description of the offence is found in the statute of Mississippi.2 In Virginia, it is enacted, that "Treason shall consist only in levying war against the State, or adhering to its enemies, giving them aid and comfort, or establishing, without authority of the legislature, any government within its limits, separate from the existing government, or holding or executing, in such usurped government, any office, or professing allegiance or fidelity to it, or resisting the execution of the laws, under color of its authority." And the same amount of proof is required, as in treason against the United States. In New Jersey, treason is limited to levying war against the State, and adhering to its enemies, giving them aid and comfort, by advice or intelligence, by furnishing them money, provisions or munitions of war, by treacherously surrendering any fortress, troops, citizen, or public vessel, or otherwise. The statute of Pennsylvania on this subject, enacted during the Revolution, renders it treason in any person resident within the State and under the protec tion of its laws, to take a commission under any public enemy; or to levy war against the State or its government; or to aid or assist any enemies, at open war with the State or United States, by joining their armies, enlisting or procuring enlistments for that purpose; or furnishing them with arms or other articles for their aid or comfort; or carrying on a traitorous correspondence with them; or forming or being

1 New York, Rev. Stat. Vol. 2, p. 746, (3d ed.)

2 Mississippi, How. & Hutchin's Dig. 1840, p. 691, Penit. Code, tit. 2, § 2. 3 Virginia, Rev. St. 1849, ch. 190, § 1.

4 New Jersey, Rev. St. 1846, tit. 8, ch. 1, § 1, p. 257.

concerned in forming any combination to betray the State or country into their hands; or giving or sending intelligence to them for that purpose.1 In South Carolina it has been thought doubtful whether any law concerning treason, anterior to their constitution of 1790, could be of force since that time; 2 and in several of the States the opinion has been entertained to some extent, that treason by levying war against a single State was necessarily an offence against the United States, and therefore cognizable as such, by none but the national tribunals.3 But as war may be levied against a single State, by an open and armed opposition to its laws, without any intention of subverting its government, the better opinion is, that the State tribunals may well take cognizance of treasons of this description, and of any others directly af fecting the particular State alone.

§ 238. Misprision of treason against the United States, is when any person, having knowledge of the commission of any treason, shall conceal, and not, as soon as may be, disclose the same to the President of the United States, or some one of the Judges thereof, or to the Governor of a particular State, or some one of the Judges or Justices thereof.5 This offence is defined substantially in the same manner in the laws of several of the States; but these statutes are all merely

1 Pennsylvania, Stat. Feb. 11, 1777, Dunlop's Dig. ch. 64, § 3, p. 120; Respublica v. Carlisle, 1 Dall. 35.

2 See S. Car. Statutes at Large, Vol. 2, p. 717, 747, notes by Dr. Cooper, the authorized editor. He adds, "I know of no treason law in this State, as yet." But in a subsequent volume is found a statute making it treason for any one to be concerned with slaves in an insurrection, or to incite them to insurrection, or to give them aid and comfort therein. Id. Vol. 5, p. 503; Stat. Dec. 19, 1805, No. 1860.

3 See Livingston's Penal Code for Louisiana, Introductory Report, p. 148; 4 Am. Law Mag. 318-350; Wharton's Am. Crim. Law, p. 785; Walker's Introd. p. 151, 458.

4 Rawle on the Constitution, p. 142, 143; Sergeant on Const. Law, p. 382; 1 Kent, Comm. 442, note, (7th ed.); Whart. Am. Crim. Law, 786 ;' Dorr's Trial, Id. 786-790; The People v. Lynch, 11 Johns. 549.

5 Crimes Act, April 30, 1790, § 2.

recognitions of the doctrine of the common law, which is prevalent in the whole country.1

§ 239. In indictments for treason, it is material to allege that the party owed allegiance and fidelity to the State against which the treason was committed; and this allegation seems equally material in a charge of misprision of treason. It may be proved by evidence that the party was by birth a citizen of the State or of the United States, as the case may be; or that, though an alien, he was resident here, with his family and effects. And if he were gone abroad, leaving his family and effects here, his allegiance to the government is still due for the protection they receive.2

§ 240. In every indictment for this crime, an overt act also must be alleged and proved; for it is to the overt act charged, that the prisoner must apply his defence. But it is not necessary, nor is it proper, in laying the overt acts, to state in detail the evidence intended to be given at the trial; it being sufficient if the charge is made with reasonable certainty, so that the prisoner may be apprised of the nature of the offence of which he is accused. Therefore, if writings constitute the overt act, it is sufficient to state the substance of them; or, if they were sent to the enemy for the purpose of giving intelligence, it will suffice simply to charge the pri

1 4 Bl. Comm. 119, 120; 1 Hale, P. C. 372; Bracton, Lib. 3, De Corona, cap. 3, fol. 118, b. In Florida, the act of endeavoring to join the enemies of the State, or persuading others to do so, or to aid and comfort them, is declared to be a misprision of treason, as well as knowing of the same, or knowing of any treason, and concealing it. Thomps. Dig. p. 222.

2 2 Kent, Comm. Lect. 25, p. 1-15, 26, [39 – 53, 63, 64]; 1 East, P. C. 52, 53; 1 Hale, P. C. 59, 62, 92; Vattel, b. 2, § 101, 102.

3 Foster, 194, 220; 4 Cranch, 490, per Marshall, C. J., in Burr's case; 2 Burr's Trial, 400.

4 Rex v. Francia, 6 St. Tr. 58, 73; Rex v. Ld. Preston, 4 St. Tr. 411; Rex v. Watson, 2 Stark. R. 116, 137, [104, 116-118, ed. 1823.] 3 Eng. Com. L. Rep. 282.

soner with the overt act of giving and sending intelligence to the enemy.1

§ 241. Though the evidence of treason must be confined to the overt act or acts laid in the indictment, without proof of which no conviction can be had; yet, for the purpose of proving the traitorous intention with which those acts were committed, evidence of other overt acts of treason, not laid in the indictment, is admissible, if there be no prosecution for those acts then pending. And it seems sufficient if such collateral facts be proved by one witness only; for the law requiring two witnesses is limited in its terms to the specific overt act charged; leaving all other facts, such as alienage, intention, &c. to be proved as at common law. But if the overt act charged is not proved by two witnesses, where this is required by law, so as to be submitted to the Jury, all other testimony is irrelevant and must be rejected.3 Respecting the intention of the prisoner, or the object or meaning of the acts done, we may add, that he is not of necessity bound to prove this; but the entire offence must be made out by the government.4

§ 242. Where the overt act of levying war is alleged to have been an armed assemblage against the government for that purpose, this allegation may be proved by evidence of such an assemblage for any warlike object in itself amounting to an actual or constructive levying of war; such as, to prevent the execution of a public law; 5 to compel the repeal of a law, or otherwise to alter the law; to pull down all buildings or inclosures of a particular description, or to expel all

1 Respublica v. Carlisle, 1 Dall. 35.

2 Layer's case, 16 How. St. Tr. 215; 1 East, P. C. 121-123; United States v. Mitchell, 2 Dall. 348. As to the proof of intention, see supra, $ 14.

3 United States v. Burr, 4 Cranch, 493, 505; 2 Burr's Trial, p. 428, 443.

4 Regina v. Frost, 9 C. & P. 129; Supra, § 17.

5 Fries's Trial, p. 196.