aid or information to a foreign power waging war against the republic. An inspection of the authorities will show that the "hostis" whom it involved a "crimen majestatis" to aid or comfort, was a foreign sovereign. To join in an insurrection fell within the crimen majestatis, but this was by distinct provisions, couched in language showing that the distinction between a foreign enemy and an insurgent was regarded as fundamental. The insurgent, for instance, was treated by the Lex Julia as a subject who assailed the integrity of the empire, but he was not a hostis or foreign enemy. He was a rebellious child, but he was a child still; and the empire haughtily refused to treat him as in any sense an independent power. "Majestatis autem crimen illud est," says Ulpian, when commenting on the Lex Julia, “quod adversus populum Romanum vel adversus securitatem ejus committitur." To recognize disaffected subjects as a foreign enemy would be to recognize the dismemberment of the state. Hence subjects aiding in a rebellion were prosecuted under one line of laws; subjects aiding foreign sovereigns under another line of laws. This distinction the modern Roman law has deepened. "Hochverrath " is, by the German codes, an offence by itself, and includes what in the American constitutions is called levying war against the state. "Landesverrath" is another offence, and includes what in the American constitutions is called aiding the enemies of the state. But aiding rebels cannot be called "Landesverrath," for the state cannot recognize rebels as foreign enemies without losing its right to prosecute them civilly for treason. To prosecute them civilly for treason they must be in some sense its subjects; erring subjects, guilty subjects, but subjects whom it refuses to view as having so far thrown off their allegiance as to relieve them from the duties of loyalty to itself, or itself from the duties of paternal government over them.

f L. 1. D. h. : t. "quive hostibus populi Romani nuntium litterasve miserit, signumve dederit feceritve, quo hostes populi Romani consilio juventur contra rempublicam." L. 4. eod.: "Cujus dolo malo factum dicetur, quo minus 878

hostes in potestatem populi Romani veniant, cujusve dolo malo hostes populi Romani commeatu, armis, telis, equis, pecunia aliave qua re adjuti erunt."

(b.) But does cover all Voluntary Aid given by a Subject to a Hostile Foreign State.

§ 2732. When, however, the attack is from a foreign state, then all voluntary assistance yielded by a citizen to such state warring against the United States, unless given from a wellgrounded apprehension of immediate death in case of a refusal, is high treason within this clause of the Constitution. Therefore, if the citizens of the United States join foreign powers in acts of hostility against this country, g or deliver up its castles, forts, or ships of war to its enemies through treachery, or in combination with them; or join the enemy's forces, although no acts of hostility be committed by them; h or raise troops for the enemy; or supply them with money, arms, or intelligence ; although such money, intelligence, &c., be intercepted and never reach them; or deliver up prisoners and deserters to the enemy, k all these are cases of adhering to the enemies of the United States, and the parties are guilty of high treason under the federal Constitution.

§ 2733. Aid must be voluntary. — Acts compelled by a government de facto cannot be afterwards punished by a government de jure, when the government de facto is deposed. No matter what may be the shape compulsion takes, if it affect the person, and be yielded to bona fide, it is a legitimate defence. But mere danger to property, when such danger does not touch the person, is not such compulsion. m According to the court of claims, neither serving in a home guard, ʼn nor serving in a fire patrol liable to be called into military service; nor paying duties on goods running the blockade, p nor subscribing to the confederation; q when done under compulsion, or in the extreme

g Fost. 219; 3 Inst. 10; 1 Hale, Preston, 4 St. Tr. 409, 455; U. S. v. Pryor, supra.

168.

h Fost. 218; R. v. Vaughan, 2 Salk. 634; 5 St. Tr. 17.

i R. v. Harding, 2 Vent. 315.

j Fost. 217; Smalley, J., 23 Law Rep. 597; U. S. v. Pryor, 3 Wash. C. C. 234.

k R. v. Gregg, 10 St. Tr. Ap. 77; Fost. 198, 217, 218; R. v. Hensey, 1 Bur. 642; 2 Ld. Ken. 366; R. v. Lord

1 R. v. Gordon, 1 East P. C. 71; Res. v. Chapman, 1 Dallas, 58; Miller v. Res. 2 Dallas, 10. See ante, § 90 a. m R. v. McGrowther, 1 East P. C. 71. n Miller's case, 4 Ct. of Cl. 288; Ayer's case, Ibid. 429.

o Quinby's case, Ibid. 417.
p Ibid.

q Padelford's case, 4 Ct. of Cl. 316.

urgency of the times, amounts to "giving aid and comfort to the rebellion." It is otherwise with investing on the stock of companions engaged in blockade running. Nor is it a defence to an indictment for attempting forcibly to seize provisions, outside of the enemy's lines, for the enemy's use, that the defendant promised to do so when a prisoner, under compulsion. 8

3. Extra-territorial Political Offences by Subjects.

§ 2734. A sovereign has, by the rules of international jurisprudence, the right to punish his subjects for political offences assailing his sovereignty committed by them abroad; and jurisdiction of this kind has been expressly assumed by the United States. t

4. Infra-territorial Offences committed by Aliens.

§ 2735. An alien, as has been already noticed, owes a local allegiance to the country of his temporary sojourn, so that he may be indicted for treason either in levying war against the local sovereign, or in aiding such sovereign's enemies. u And r Bate's case, Ibid. 569.

giance by an alien resident in a

s U. S. v. Pryor, 3 Wash. C. C. 237. friendly country is everywhere recog t Ante, § 210 g.

66

nized by publicists and statesmen. In the case of Thrasher, a citizen of the United States, resident in Cuba, who complained of injuries suffered from the government of that island, Mr. Webster, then secretary of state, made, in 1851, a report to the Presi dent, in answer to a resolution of the house of representatives, in which he said:

u Ante, § 210 g. By allegiance," says Judge Field in the supreme court of the United States, in Oct. 1872, "is meant the obligation of fidelity and obedience which the individual owes to the government under which he lives, or to his sovereign, in return for the protection he receives. It may be an absolute and permanent obligation, or it may be a qualified and temporary one. The citizen or subject owes an absolute and permanent allegiance to his government or sovereign, or at least until, by some open and distinct act, he renounces it and becomes a citizen or subject of another government or another sovereign. The alien, while domiciled in the country, owes a local and temporary allegiance, which continues during the period of his residence. "This obligation of temporary alle- intention to continue such residence;

Every foreigner born residing in a country owes to that country allegiance and obedience to its laws, so long as he remains in it, as a duty upon him by the mere fact of his residence, and that temporary protection which he enjoys, and is as much bound to obey its laws as native subjects or citizens. This is the universal understanding in all civilized states, and nowhere a more established doctrine than in this country.' And again : 'Independently of a residence with

under this rule he may be indicted for treason in aiding even the sovereign of his allegiance in war against his local sovereign. v When the offence consists in furnishing in a foreign land, by persons owing allegiance to such foreign land, materials to carry on a treasonable insurrection in our own land, then such persons, so owing allegiance abroad, are not indictable for treason here.w Suppose, however, the alien resides in the country of a rebellion, and gives aid and comfort to the rebellion, is such alien indictable for treason? According to the view hereinbefore expressed, since a "rebel," under the Constitution of the United States cannot be a foreign enemy, we must hold that an alien cannot be indicted for giving such aid and comfort. But in civil issues, when a claim is made against the government for damages, under the special United States statutes organizing the court of claims, an alien who gives such aid and comfort cannot be a plaintiff in the latter court.

5. Indictment.

§ 2736. It is not sufficient for an indictment to allege generally that the accused had levied war against the United States. The charge must be more particularly specified, by laying overt acts of levying war.x The indictment need do no more than to specify the substance of the words of writings, when laid as overt acts. y It has been held sufficient to lay that the defendant sent intelligence to the enemy, without setting forth the particular letter or its contents. z

§ 2737. Overt acts that are improperly laid, or are not proved, can, after verdict, be discharged as surplusage. a

independently of any domiciliation; independently of the taking of any oath of allegiance or of renouncing any former allegiance, it is well known that, by the public law, an alien or a stranger born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be punished for treason or other crimes as a native-born subject might be, unless his case is varied by some treaty stipulation.'" Webster's Works,

VOL. II.56

vol. 6, p. 526. Carlisle v. U. S., reported in 8 Alb. L. J. 63.

v R. v. Delamotte, 1 East P. C. 53. w Wh. Confl. of L. § 906-9. x 2 Burr's Trial, 400. See Mulcahy v. R. 3 L. R. H. L. Cas. 306.

y R. v. Francia, 6 St. Tr. 58, 73; R. v. Preston, 4 St. Tr. 411; R. v. Watson, 2 Stark. 137.

35.

z Respublica v. Carlisle, 1 Dallas,

a Mulcahy v. R. 3.L. R. H. L. Cas. 306. Ante, § 2334-7. 881

"Traitorously" is essential to the offence, but need not be repeated at each overt act. b

6. Evidence.

(a.) Confederacy and Overt Acts.

§ 2738. Before introducing proof of overt acts, it is necessary to show a confederacy of which the defendant was part.e But the confederacy may be inferred from a series of mutual dependent overt acts and attempts. d

66

(b.) Witnesses.

§ 2739. To sustain a conviction there must be under the Constitution "the testimony of two witnesses to the same overt act," or a confession in open court." There is a marked distinction on this point, between the English law and our own. By the Constitution there must be some one particular act proved by two witnesses. In England, it is enough if two distinct though cognate overt acts, in two distinct counties, be proved each by one witness.e And one witness to the whole case will suffice in prosecutions which work no corruption of blood.e1 In the United States, one witness, however, with corroborating circumstances, is sufficient to justify the finding of a bill. ƒ

(c.) Confessions and Declarations.

§ 2740. Extra-judicial confessions and declarations may be received as corroboration, when an overt act has been proved by two witnesses;g and so of unpublished writings by the defendant. h Such writings, when expressive and in pursuance of the common design, are evidence against all the conspirators. i

b Ante, § 398.

c R. v. Brittain, 3 Cox C. C. 77. d R. v. Frost, 9 C. & P. 149; R. v. McCafferty, 1 Ir. R. C. L. 363; 10 Cox C. C. 603.

e R. v. Jellias, 1 East P. C. 130. e1 R. v. Gahagan, 1 Leach C. C. 42; 1 East P. C. 129.

f Marshall, C. J., Burr's Trial, 196; Kane, J., U. S. v. Hanway, 2 Wall. Jr. 139; contra, Iredell, J., Fries's case, Wh. St. Tr. 480. See R. v. McCaf

ferty, 1 Irish R. C. L. 365; 10 Cox C. C. 603. Ante, § 803.

g Fries's Trial, 171. Ante, § 802. h R. v. Lord Preston, 4 St. Tr. 410, 440; R. v. Layer, 6 St. Tr. 272, 280; R. v. Hensey, 1 Bur. 642, 644; Respublica v. Carlile, 1 Dallas, 35; Respublica v. Malin, 1 Dallas, 33; Ibid. ɛ. Roberts, 1 Dallas, 39. Ante, § 802.

i R. v. Stone, 6 T. R. 527; 1 East P. C. 79, 99.