United States, and constitutes treason. Case of Fries (C. C. 1799), Fed. Cas. No. 5,126.

An insurrection to resist by force the execution of a Federal tax law, or the militia called out to enforce it, on any ground whatever, is a levying of war against the United States. Case of Fries (C. C. 1800), Fed. Cas. No. 5,127.

A conspiracy to raise an insurrection to resist the execution of a Federal statute by force is only a misdemeanor. Treason is not committed until the persons proceed to carry the intention into execution by force. Id.

Either acts of hostility and resistance to the Government, or a hostile intention in the body assembled, are necessary to convert a meeting of men with ordinary appearances into an act of levying war. A treasonable intent on the part of the leader, uncommunicated to the assemblage, is not sufficient. U. S. v. Burr (C. C. 1807), Fed. Cas. No. 14,694a.

An intention to commit treason against the United States by levying war, not carried out by the actual assembling of troops, is not punishable as treason. Id.

The engaging or enlisting of men for levying war against the United States, not followed by a future embodying of such men, is not punishable as treason. Id.

The fact of levying war may consist of a multiplicity of acts performed in different places by different persons, and any one of such persons, when leagued in the general conspiracy, is liable as a principal traitor. Id.

If there be an assembly of persons, with force, with an intent to prevent the collection of lawful taxes or duties levied by the Government, or to destroy all customhouses, or to resist the administration of justice in the courts of the United States, and the assemblage proceed to execute this purpose by force, this is treason against the United States. Charge to Grand Jury, Treason (C. C. 1842), Fed. Cas. No. 18,275.

If the assembly is arrayed in a military manner, if they are armed and marched in military form, for the express purpose of overawing and intimidating the public, and thus attempt to carry into effect the treascnable design, this will, of itself, amount to a levy of war, although no actual blow be struck or engagement take place. Id.

There may be treason against a State by levying war which is aimed altogether against the sovereignty of the State.

Id.

To constitute treason against the United States by levying war, there must be a levy. ing of war against the United States in their sovereign character and not merely a

levying of war exclusively against the sovereignty of a particular State. Id.

Direct proof of the combining to prevent the enforcement of a law may be found in declared purposes of the individual party before the actual outbreak, or it may be derived from proceedings of meetings 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. Charge to Grand Jury, Treason (C. C. 1851), Fed. Cas. No. 18,276.

The words "levying war," as used in the constitutional definition of "treason," 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, with intent to prevent its enforcement in all cases, if accompanied or followed by an act of forcible opposition to such law in pursuance of such combination. Charge to Grand Jury, Neutrality Laws and Treason (C. C. 1851), Fed. Cas. No. 18,269; Charge to Grand Jury, Treason (C. C. 1851), Fed. Cas. No. 18,276.

To be employed in actual service in an army raised to oppose the Government in its action, or directly or indirectly to aid or assist in the levying or embodying of a military force for the subversion of the Government, are plainly acts of "levying war," and involve the commission of the crime of treason. The constitutional definition of treason, however, is of broader signification, and includes all those who join a hostile army after war is begun. Charge to Grand Jury, Treason (C. C. 1861), Fed. Cas. No. 18,272.

All persons engaged therein are by the law regarded as levying war against the United States; and all who adhere to them are to be regarded as enemies; and all who give them, in any part of the United States, aid and comfort come within the provisions of the act of Apr. 30, 1790, and are guilty of treason. Id.

A letter of marque issued by an insurrectionary government, which has not been recognized by the legislative and executive departments of the existing Government, is no defense to treason in levying war under such letter. U. S. v. Greathouse (C. C. 1863), Fed. Cas. No. 15,254.

Levying war against the United States by citizens of the Republic, under the pretended authority of the new State government of North Carolina, or of the so-called "Confederate Government," is treason against the United States. Shortridge v. Macon (C. C. 1867), Fed. Cas. No. 12,812.

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1341

Levying war against the United States by persons however combined and confederated, even though successful in establishing their actual authority in several States, is treason. Keppel v. Petersburg R. Co. (C. C. 1868), Fed. Cas. No. 7,722.

If a convention, legislature, junto, or other assemblage entertain the purpose of subverting the Government, and to that end pass acts, resolves, ordinances, or decrees, even with the view of raising a military force to carry their purpose into effect, this alone does not constitute a levying of war, Charge to Grand Jury, Treason (D. C. 1863), Fed. Cas. No. 18,274.

If a body of men be actually assembled in force, in a condition to make war, in order to overturn the Government at any one place by force, this is levying war. It is not necessary that the assemblage should be with military arms and array; numbers alone may supply the requisite force. Id. Adhering to enemies and giving them aid and comfort.-The going from the enemy's squadron to the shore for the purpose of peaceably procuring provisions for the enemy is not an act of treason; otherwise where provisions are carried toward the enemy with intent to supply them, though such intention is defeated. U. S. v. Pryor (C. C. 1814), Fed. Cas. No. 16,096.

Delivering up prisoners and deserters to an enemy is treason, and nothing but a well-grounded fear of life will excuse the act. U. S. v. Hodges (C. C. 1815), Fed. Cas. No. 15,374.

A person present, directing, aiding, abetting, counseling, or countenancing the violence, or if, though absent at the time of its actual perpetration, he yet directed the act, or devised or knowingly furnished the means for carrying it into effect, and instigated others thereto, he is guilty of treason, Charge to Grand Jury, Treason (C. C. 1851), Fed. Cas. No. 18,276.

44

The words, adhering to their enemies, giving them aid and comfort," include, in general, any act committed after War actually exists which indicates 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. Charge to Grand Jury, Treason (C. C. 1861), Fed. Cas. No. 18,272.

Mere expressions of opinion indicative of sympathy with the public enemy are not sufficient, under the Constitution and laws, to warrant a conviction of treason. Id.

After war actually exists, it is treasonable to sell to, or provide arms or munitions of war, or military stores and supplies, including foods, clothing, etc., for the use of the enemy; ta hize, well, or furnish boats,

railroad cars, or other means of transportstion, or to advance money or obtain credits for the use and support of the hostile army; and to communicate intelligence to the enemy by letter, telegraph, or otherwise, relating to the strength, movements, or pasition of the army. Id.

Overt acts which, if successful, would advance the interests of the rebellion, amount to aid and comfort, though they failed. U. S. v. Greathouse (C. C. 1863), Fed. Cas. No. 15,254.

If war be actually levied at one place. and any person actually engaged therein send them arms, money, provisions or intelligence for the purpose of aiding them, he is guilty. Charge to Grand Jury, Treason (D. C. 1863), Fed. Cas. No. 18,274.

And it makes no difference how distant he may be from the place of the assemblage of the enemy. Id.

It is treason for a citizen or other person not commissioned within the United States to abet France during a maritime war with her. (1798) 1 Op. Atty. Gen. 84.

a

Felonious intent.-Treason in the assembling of bodies of men, armed or arrayed in warlike manner, is determined by the intent. If the purpose be of a private nature, it is not treason, regardless of the acts actually committed; otherwise, where the intent is to effect some object of general public nature. Case of Fries (C. C. 1800), Fed. Cas. No. 5,127.

If a man joins and acts with an assembly of people, his intent is always to be considered and adjudged to be the same as theirs; and the law judges of the intent by the fact. Case of Fries (C. C. 1800), Fed. Cas. No. 5,127.

A conspiracy to resist by force the execution of a law of the United States in particular instances only, for personal or private purposes only, is not treason. U. S. v. Hoxie (C. C. 1808), Fed, Cas. No. 15,407.

A felonious intent is necessary to commit treason. The Ambrose Light (D. C, 1885), 25 Fed. 408, 427.

Duress and compulsion.-The putting in fear which is sufficient to excuse the perpetration of a criminal act must proceed from an immediate and actual danger threatening the life of the accused. apprehension of the loss of property or of slight or remote injury to the person is not sufficient. U. S. v. Vigol (C. C. 1795), Fed. Cas. No. 16,621.

The

Except in the case of force under a personal fear of death, a private soldier or subordinate officer can not excuse a treasonable act on the ground of compulsion. U. S. v. Greiner (D. C. 1861), Fed. Cas. No. 15,262.

Persons regarded as enemies.-In a civil war, persons who adhere to their allegiance are not, although they reside in an insurrectionary district, regarded as enemies; and trade with such persons, in good faith and without collusion with the enemy, is lawful, unless interdicted by the Government. Charge to Grand Jury, Treason (C. C. 1861), Fed. Cas. No. 18,271.

Overt acts. See, also, notes under 2849, post.

It is necessary to produce two direct witnesses to the whole overt act; a conviction can not be had on the testimony of one witness, together with circumstantial evidence, though it is well nigh conclusive. U. S. Robinson v. (D. C. 1919), 259 Fed. 685; compare U. S. v. Fricke (D. C. 1919), 259 Fed. 673, 677.

The fact that treason might incidentally arise in the attempt to embark troops against a foreign nation, with which the United States is at peace, will not affect a previous assemblage of troops, where the treason was neither committed nor intended. U. S. v. Burr (C. C. 1807), Fed. Cas. No. 14,694a.

A person who advised or procured a warlike assemblage, charged as the overt act of treason can not be convicted of treason until after the conviction of one of those charged with the overt act. U. S. v. Burr (C. C. 1807), Fed. Cas. No. 14,693.

An indictment for levying war against the United States must specify an overt act, and the charge must be proved as laid. U. S. v. Burr (C. C. 1807), Fed. Cas. No. 14,693.

And there must be some overt act done, or some attempt made by them, with force, to execute, or toward executing, that purpose. The assembly must be in a condition to use force, and must intend to use it, if necessary, to further, aid, or accomplish the treasonable design. Charge to Grand Jury, Treason (C. C. 1842), Fed. Cas, No. 18,275.

Where a body of armed men is mustered in military array for a treasonable purpose, every step which any one of them takes, by marching or otherwise, in part execution of "uch purpose, is an overt act of treason in levying war. U. S. v. Greiner (D. C. 1861), Fed. Cas. No. 15,262.

Words, oral, written, or printed, however treasonable, seditious, or criminal of themselves, do not constitute an overt act of treason. Charge to Grand Jury, Treason (C. C. 1861), Fed. Cas. No. 18,271.

Purchase of a vessel, and fitting her up for service with arms and ammunition, and the employment of men to manage it, in pursuance of a design to commit hostilities on the high seas in aid of an existing re

bellion against the United States, are overt acts of treason. U. S. v. Greathouse (C. C. 1863), Fed. Cas. No. 15,254.

men

Persons liable in general.-If a body of 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. Charge to Grand Jury, Neutrality Laws and Treason (C. C. 1851), Fed. Cas. No. 18,269; Charge to Grand Jury, Treason and Piracy (C. C. 1861), Fed. Cas. No. 18,277.

An alien resident may be guilty of treason by cooperating either with rebels or foreign enemies. Charge to Grand Jury, Treason (D. C. 1863), Fed. Cas. Nos. 18,274 (C. C. 1851), 18,276.

All who aid in the prosecution of war levied against the United States, whether by open hostilities in the field, or by performing any part in the furtherance of the common object, however minute, or however remote from the scene of action, are guilty of treason. U. S. v. Greathouse (C. C. 1863), Fed. Cas. No. 15,254.

All

In treason there are no accessories. who engage in rebellion, or who designedly give to it any species of ald and comfort, in whatever part of the country they may be, are principals. U. S. v. Greathouse (C. C. 1863), Fed. Cas. No. 15,254; Case of Fries (C. C. 1800), Fed. Cas. No. 5,127. Persons owing allegiance. The words owing allegiance to the United States In this section are surplusage, since treason is a breach of allegiance, and can be committed by one only who owes allegiance either perpetual or temporary. U. S. v. Wiltberger (1820), 5 Wheat. 76, 97, 5 L. Ed. 37.

People in rebellion. Until belligerent rights are accorded by the political department of the Government to the State or people in rebellion, the judiciary must regard them as rebels and lawless aggressors, and apply to them the penal law. Charge to Grand Jury (C. C. 1861), Fed. Cas. No. 18,256.

Belligerent rights conceded to the Confederate States can not be invoked for the protection of persons entering within the limits of a loyal State, and secretly getting up hostile expeditions against the Government. U. S. v. Greathouse (C. C. 1863), Fed. Cas. No. 15,254.

The agreement of capitulation between Generals Sherman and Johnston was a mere military parole terminating with the war, and the persons included were liable to arrest for treason after the war. U. S. v. Rucker (C. C. 1866), Fed. Cas. No. 16,203.

The National Government conceded belligerent rights to the armies of the Confederate States; and acts of a strictly military character, performed under military authority, Lay be protected by reason thereof. U. S. v. Morrison (C. C. 1869), Fed. Cas. No. 15,817.

The whole existence of the Confederate Government was a continued rebellion against the lawful Government of the United States; and no one can be protected by the sanction of its authority save in acts of war. Id.

Rebellion, whether conducted on land or sea, is felonious and treasonable, and punishable by death. The Ambrose Light (D. C. 1885), 25 Fed. 408, 427.

Secession ordinances as defense.-The ordinances of secession of the States in rebellion do not furnish any defense to their citizens for treasonable acts against the United States Government. U. S. v. Cathcart (C. C. 1864), Fed. Cas. No. 14,756.

Merger of treason against State in treason against United States.-Treason begun against a State may be mixed up or merged in treason against the United States. If the treasonable purpose be to overthrow the Government of the State, and forcibly to withdraw it from the Union, and thereby to prevent the exercise of the national Sovereignty within the limits of the State, this would be treason against the United States. Charge to Grand Jury, Treason (C. C. 1842), Fed. Cas. No. 18,275.

If the troops of the United States should be called out by the President upon the application of a State legislature or executive, to protect the State against domestic violence, and there should be an assembly of persons with force to resist and oppose the United States troops, this would be treason against the United States, although the primary intention of the insurgents may have been only to overthrow the State government or the State laws. Charge to Grand Jury, Treason (C. C. 1861), Fed. Cas. No. 18,272. See, also, Charge to Grand Jury (C. C. 1842), Fed. Cas. No. 18,275.

Revolutionizing Territory as means for foreign expedition.-The act of revolutionizing a Territory of the United States, though only as a means for an expedition against a foreign power, is treason. U. S. บ. Burr (C. C. 1807), Fed. Cas. No. 14,692a.

Evidence. It is not competent, on a trial for treason, to prove that the aecused, in the course of the insurrection, joined with others in robbing the mails, when a separate indictment for that offense is already pending against him. U. S. v. Mitchell (C. C. 1795), Fed. Cas. No. 15,789.

Where it was claimed that a circular letter had been written by leaders of an insurrection calling citizens to assemble with arms, etc., held, that a copy thereof was not admissible, unless it was proved to be one of the copies actually circulated. Id.

Where it is shown by the evidence of several witnesses that accused was present and took part in a treasonable conspiracy, proof by two or more witnesses that be marched as a volunteer with arms and in military array, with a party which actually used force to prevent the execution of an act of Congress, is sufficient without proof by two witnesses that he was actually present when the acts of violence were committed. Id.

On the trial of a person indicted for treason in levying war against the United States, the court can not control the order of proof to the extent of requiring the prosecution to prove the overt act charged, before proving the intention with which such act was committed. U. S. v. Burr (C. C. 1807), Fed. Cas. No. 14,692h (C. C. 1807), Id. 14,693; Same v. Lee (C. C. 1814), Id. 15,584.

A person will not be held to trial for treason in levying war against the United States on an affidavit that he is enlisting men for such purpose, without proof of the actual embodying of men, where ample time is given to get such proof. U. S. v. Burr (C. C. 1807), Fed. Cas. No. 14,692a.

Facts out of the district may be proved after the overt act as corroborative evidence of the intention. Id.

Id.

The overt act of levying war must be proved by two witnesses before testimony is admissible relative to the conduct or declarations of the prisoner elsewhere, and subsequent to the overt act charged. Proof of remote intentions may be relevant by proof of the continuance of the intention, and consequently is admissible. Id.

Query, whether, after proving a connection for some general object between persons accused of treason in levying war, the conversations of one with third persons may be given in evidence against the other to prove what that object was. Id.

The declaration of the prisoner accompanying the overt act charged may be proved to show his intention in doing it;