TO THE NATION AND THE STATES


     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

     2.   Acquired allegiance  - that  arising by  denization  or

     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

                       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;

     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

     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

                          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

     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

                   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.

     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)


(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.

     "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, 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.

(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.

(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.

     "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

(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.

(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

(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.)

(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.

(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.

(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.

     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