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(6.) 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;i or supply them with money, arms, or intelligence ;j 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 bonâ fide, it is a legitimate defence. l 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, n nor serving in a fire patrol liable to be called into military service ;0 nor paying duties on goods running the blockade, p nor subscribing to the confederation ; q when done under compulsion, or in the extreme 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.r 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

9 Fost. 219; 3 Inst. 10; 1 Hale, Preston, 4 St. Tr. 409, 455; U. S. v. 168.

Pryor, supra. h Fost. 218; R. v. Vaughan, 2 Salk. 1 R. v. Gordon, 1 East P. C. 71; 634; 5 St. Tr. 17.

Res. v. Chapman, 1 Dallas, 58; Miller i R. v. Harding, 2 Vent. 315. v. Res. 2 Dallas, 10. See ante, $ 90 a.

j Fost. 217; Smalley, J., 23 Law m R. v. McGrowther, 1 East P. C. 71. Rep. 597; U. S. v. Pryor, 3 Wash. C. n Miller's case, 4 Ct. of Cl. 288; C. 234.

Ayer's case, Ibid. 429. k R. v. Gregg, 10 St. Tr. Ap. 77; o Quinby's case, Ibid. 417. Fost. 198, 217, 218; R. v. Hensey, 1 Bur. 642; 2 Ld. Ken. 366 ; R. v. Lord q Padelford's case, 4 Ct. of Cl. 316.

p Ibid.

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

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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 7 Bate's case, Ibid. 569.

giance by an alien resident in a $ U. S. r. Pryor, 3 Wash. C. C. 237. friendly country is everywhere recog. 1 Ante, $ 210 y.

nized by publicists and statesmen. In u Ante, $ 210g. · By allegiance," the case of Thrasher, a citizen of the says Judye Field in the supreme court United States, resident in Cuba, who of the United States, in Oct. 1872, “is complained of injuries suffered from meant the obligation of fidelity and the government of that island, Mr. obedience which the individual owes Webster, then secretary of state, to the government under which he made, in 1851, a report to the Presilives, or to his sovereign, in return for dent, in answer to a resolution of the the protection he receives. It may be house of representatives, in which he an absolute and permanent obligation, said: • Every foreigner born residing or it may be a qualified and temporary in a country owes to that country alleone. The citizen or subject owes an giance and obedience to its laws, so absolute and permanent allegiance to long as he remains in it, as a duty his government or sovereign, or at upon him by the mere fact of his resileast until, by some open and distinct dence, and that temporary protection act, he renounces it and becomes a which he enjoys, and is as much bound citizen or subject of another govern- to obey its laws as native subjects or ment or another sovereign. The alien, citizens. This is the universal underwhile domiciled in the country, owes a standing in all civilized states, and local and temporary allegiance, which nowhere a more established doctrine continues during the period of his res- than in this country.' And again : idence.

• Independently of a residence with " This obligation of temporary alle- intention to continue such residence;

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 indietable for treason ? According to the view hereinbefore expressed,

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.

since a

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; vol. 6, p. 526. Carlisle v. U. S., reindependently of the taking of any ported in 8 Alb. L. J. 63. oath of allegiance or of renouncing v R. v. Delamotte, 1 East P. C. 53. any former allegiance, it is well known w Wh. Confl. of L. $ 906–9. that, by the public law, an alien or a X 2 Burr's Trial, 400. See Mulstranger born, for so long a time as he cahy v. R. 3 L. R. H. L. Cas. 306. continues within the dominions of a y R. v. Francia, 6 St. Tr. 58, 73 ; R. foreign government, owes obedience v. Preston, 4 St. Tr. 411; R. v. Watto the laws of that government, and son, 2 Stark. 137. may be punished for treason or other 2 Respublica v. Carlisle, 1 Dallas, crimes as a native-born subject might 35. be, unless his case is varied by some a Mulcahy v. R. 3. L. R. H. L. Cas. treaty stipulation.'” Webster's Works, 306. Ante, $ 2334-7. VOL. II. – 56


Traitorouslyis essential to the offence, but need not be repeated at each overt act. 6

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.c But the confederacy may be inferred from a series of mutual dependent overt acts and attempts. d




(6.) Witnesses. $ 2739. To sustain a conviction there must be under the Constitution “ the testimony of two witnesses to the same overt act," 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.el In the United States, one witness, however, with corroborating circumstances, is sufficient to justify the finding of a bill. f

(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.

ferty, 1 Irish R. C. L. 365; 10 Cox c R. v. Brittain, 3 Cox C. C. 77. C. C. 603. Ante, $ 803.

d R. v. Frost, 9 C. & P. 149; R. v. g Fries's Trial, 171. Ante, $ 802. McCafferty, 1 Ir. R. C. L. 363; 10 h R. v. Lord Preston, 4 St. Tr. 410, Cox C. C. 603.

440; R. v. Layer, 6 St. Tr. 272, 280; e R. v. Jellias, 1 East P. C. 130. R. v. Hensey, 1 Bur. 642, 644; Res

el R. v. Gahagan, 1 Leach C. C. 42; publica Carlile, 1 Dallas, 35; Res1 East P. C. 129.

publica v. Malin, 1 Dallas, 33 ; Ibid. c. f Marshall, C. J., Burr's Trial, 196; Roberts, 1 Dallas, 39. Ante, $ 802. Kane, J., U. S. v. Hanway, 2 Wall. Jr. i R. v. Stone, 6 T. R. 527; 1 East 139; contra, Iredell, J., Fries's case, P. C. 79, 99. Wh. St. Tr. 480. See R. v. McCaf.

7. Venue. § 2741. The subject of venue has been already fully discussed.j It used to be thought that only a county or district where an overt act was performed had jurisdiction, and that unless the defendant was in such place at the time of the overt act, he could not be there tried. This, however, is now abandoned ;k and a conspirator can be tried in any place where his co-conspirators perform an overt act. To this effect is the act of congress of March 2, 1867.1

8. No Defence that the Defendant believed he was exercising a

Constitutional Right. $ 2742. A person who has a constitutional or legal right to assert, must do so by course of law. If he appeals to war for this purpose, and is unsuccessful, he must abide the consequences; for his conviction that he was right is no defence to an indictment for an illegal act. m


1. An Offence at Common Law. $ 2766. Treason is undoubtedly a common law offence in each state, aside from constitutional and statutory provisions, k and is recognized as having a substantive and independent existence, in that clause of the federal Constitution which provides, that if a

j Ante, $ 601-4.

on the ground of mistake. Were it k See ante, $ 210 m.

so, there would be an end to all law I See ante, $ 2311.

and to all government. Courts and m Ante, $ 82; post, $ 2789. “It may juries would have nothing to do but sit be,” said Durfee, C. J., in the Dorr in judgment upon indictments in order trial, cited in the 6th ed. of this work, to acquit or excuse. The accused has $ 2777,“ that he (the defendant) really only to prove that he has been systembelieved himself the governor of the atic in committing crime, and that he state, and that he acted throughout thought that he had a right to commit under that delusion. However this it, and, according to this doctrine, you may go to extenuate the offence, it must acquit.” See also U. S. v. Robdoes not take from it its legal guilt. inson, U. S. Circuit Court, Kansas, It is no defence to an indictment for 1859, reported in the 6th ed. of this the violation of any law, for the defend- work, vol. iii. p. 319. ant to come into court and say, I h Resp. l. Chapman, 1 Dallas, 56 ; thought that I was exercising a consti- People c. Lynch, 11 Johnson, 549. tutional right, and I claim an acquittal

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