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, 1867.7

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

II. TREASON AGAINST THE PARTICULAR STATES.

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.

k See ante, § 210 m.

See ante, § 2311.

m Ante, § 82; post, § 2789. "It may be," said Durfee, C. J., in the Dorr trial, cited in the 6th ed. of this work, § 2777," that he (the defendant) really believed himself the governor of the state, and that he acted throughout under that delusion. However this may go to extenuate the offence, it does not take from it its legal guilt. It is no defence to an indictment for the violation of any law, for the defendant to come into court and say, 'I thought that I was exercising a constitutional right, and I claim an acquittal

on the ground of mistake.' Were it so, there would be an end to all law and to all government. Courts and juries would have nothing to do but sit in judgment upon indictments in order to acquit or excuse. The accused has only to prove that he has been systematic in committing crime, and that he thought that he had a right to commit it, and, according to this doctrine, you must acquit." See also U. S. v. Robinson, U. S. Circuit Court, Kansas, 1859, reported in the 6th ed. of this work, vol. iii. p. 319.

h Resp. v. Chapman, 1 Dallas, 56; People v. Lynch, 11 Johnson, 549.

person accused of treason in any state shall flee from justice, and shall take refuge in another state, he may, on a proper requisition, be delivered up by the executive of the state to which he has fled.

§ 2767. During the Revolution, and immediately afterwards, convictions for treason against a state were frequent. In Massachusetts, at the time of Shay's rebellion, there were sixteen capital convictions for the crime, though none of the offenders were executed, and very few subjected to any great length of imprisonment. In Pennsylvania five persons have actually suffered death for the offence; all, however, prior to the close of the Revolutionary War. It never was doubted that prior to the federal Constitution, and during the confederation, each colony could prosecute for treason against itself.

2. Does not necessarily include Treason against the United States.

§ 2768. The offence of adhering and giving aid to the enemies of the United States, it has been declared in New York, is not treason against the people of New York, under the Constitution, and is not cognizable, therefore, in the state court. On the other hand, the constitutions or statutes of several of the states expressly declare treason against the United States to be cognizable in the state as treason against the state.

3. But does include all Common Law Treason against the Government except such as is distinctively aimed at the Federal Authority.

§ 2769. Every interpretative or constructive levying of war, however general, as is maintained by Judge Tucker, in his valuable note on treason, m must be and remain an offence against the state, unless the object of levying war be manifestly for some matter of a general concern to the United States; and this view, it is said, was adopted by Judge Story, in charging a grand jury during the Rhode Island disturbance in 1842. It is not enough, it was maintained, that the offence is of a public nature, or of a great and general concern to the citizens of the commonwealth ; but it must be of a general or public nature and concern as it respects the United States and their jurisdiction, to oust the state of that exclusive right which it enjoyed before the adoption of People v. Lynch, 11 Johnson, 549.

m 4 Tucker's Black. App. 21.

the Constitution. Were an armed multitude, it was said, arrayed in order of battle, to enter the city of Richmond, destroy all public records of the state, and commit every other possible outrage, aggravated by every atrocious circumstance imaginable, if their intention in so doing should neither be to subvert the Constitution of the United States, nor to effect any object in relation to the federal government, such conduct, though, in the strictest sense, it might amount to treason against the State of Virginia, could never be treason against the United States. n On the same reasoning Judge King, when charging a grand jury in Philadelphia at the time of the Kensington riots, declared, "that where the object of a riotous assembly is to prevent by force and violence the execution of any statute of this commonwealth, or by force and violence to coerce its repeal by the legislative authority, or to deprive any class of the community of the protection afforded by law; as burning down all churches or meeting-houses of a particular sect, under color of reforming a public grievance, or to release all prisoners in the public jails, and the like, and the rioters proceed to execute by force their predetermined objects and intents, they are guilty of high treason in levying war against the commonwealth of Pennsylvania." But there must be in such case clear proof of an intention to overthrow the government by force to justify a conviction of the capital offence. Unless war be actually levied against the state, the proper course, in cases such as those just noticed, is to indict simply for a seditious conspiracy. o

2770. Where, however, as in case of insurrection or rebellion, any state makes application to the United States for such aid as the Constitution guarantees in such cases, if the opposition should extend to the authority thus interposed, the offence becomes treason against the United States. p

n 4 Tucker's Black. App. 21. But see Fries's Trial, Wh. St. Tr. 656, where Judge Chase seems to advance the opinion that the rising of any body of people in the United States, to attain or effect by force or violence any object of a great public nature, is a levying of war against the United

States. Mr. Justice Brackenridge, on the other hand, lays down the law broadly, that such rising cannot be considered treason, either under federal or state constitutions, but is a mere riot. Brack. Miscel. 495.

o See ante, § 2725.

p 4 Tucker's Black. App. 22.
885

4. Is not absorbed in Treason against the United States. § 2771. Whether express treason against a state, as distinguished from constructive treason, is not also treason against the United States; and whether, if such be the case, it can be punished in a state court, has been the subject of some difference of opinion."From the nature of the federal union," said Mr. Edward Livingston, in his introductory report to the legislature of Louisiana, "a levy of war against one member of the Union is a levy of war against the whole; therefore, it is concluded that treason against the state being treason against the United States, it is to be punished by their laws and in their courts." q On this reasoning, the levying war against Rhode Island, which was punished after the Dorr rebellion in a state court as a state offence, was, if not merged in treason against the Union, at least properly and exclusively cognizable in the federal courts; and such is the position advanced with much subtlety by an ingenious writer in the American Law Magazine. r But, as will presently be more fully seen, this view cannot be maintained.

5. Clearly covers Cases of armed Attempts to overthrow State Government.

§ 2772. The course of practice, however, adopted at the time of the formation of the federal Constitution, when the attention of the judiciary was closely called to the boundaries of the national and state sovereignties, and pursued to the present day, is to recognize levying war against a state as forming a state offence, cognizable in a state court, and punishable by state authority. Thus in Lynch's case, the supreme court of New York, while holding open waging of war against the federal government to be not cognizable in a state court, declared that treason against the state" might be committed by an open and armed opposition to the laws of the state, or a combination and forcible attempt to overturn or usurp the government." 8 Such was the law laid down by Durfee, C. J., in Dorr's case, t and

q Introductory Report. &c., to Criminal Code, 148.

r 4 Am. Law Mag. 318.

549.

s People v. Lynch, 11 Johnson, See 1 Kent's Com. *403, note.

t See Pitman's Dorr Trial, and extracts from the same, published in the 6th edition of this work, § 2772. See, also, Quarrier, ex parte, 2 W. Va. 569.

such is the opinion of Judge Tucker, in his Appendix to Blackstone; u of Judge Sergeant, in his Treatise on Constitutional Law ;v of the late learned Mr. Rawle, in his Essay on the Constitution. And the assertion of such jurisdiction in the constitutions or penal codes of by far the greater number of the particular states, leaves the question practically beyond doubt.

w

6. Analogies from Foreign Jurisprudence.

§ 2773. From England, in this connection, we can receive no light. The British government is a centralization. Wherever the British flag waves, there the British crown nominally, and the British parliament actually, are supreme. Our government, on the other hand, is a confederation of sovereign states; a confederation, it is true, that cedes to the federal government supremacy within an orbit specifically assigned to it, but which leaves all other powers undisturbed to the states. The late civil war settled that no state has a right to withdraw from this confederation, and it led to an amendment to the Constitution conferring on the federal government certain additional powers tending to the securer extension of citizenship to the negro race. But the late civil war left untouched those important clauses of the Constitution which reserve to the several states the residuum of sovereignty after the powers of the general government are carved out. Hence it is that we are to look to the federal systems of Europe for analogies in respect to this branch of the law. Of these systems the old Germanic Empire; the German Bund of 1830; the North German Confederation; the North German Empire; the Swiss Eidgenossenschaft, present illustrations of greater or less pertinency. But whether, in confederate systems, the bonds of confederacy are loose or close, the result in this respect is the same. Treason to the sov

ereign of the particular state is, as an offence, as definite and as readily cognizable as is treason to the sovereign of the confederation. By the famous resolution of August 18, 1836, the North German Bund resolved that attempted subversions of its constition should be regarded as treason; though it was conceded on all sides that treason to the particular states making up that conu See ante, § 2723, &c. w Rawle on the Constitution, 305.

v Sergeant's Constitutional Law,

382.