Charge to Grand Jury—Treason

30 F. Cas. 1047, 2 Wall. Jr. 134, 9 W.L.J. 163, 1851 U.S. App. LEXIS 483

• Court: U.S. Circuit Court for the District of Eastern Pennsylvania
• Decided: September 29, 1851
• Status: Published

Opinion

KANE, District Judge.

Treason against the United States is defined by the constitution (article 3, § 8, cl. 1) to consist m “levying war against them, or in adhering to their enemies, giving them aid and comfort.” This definition is borrowed from the ancient law of England (St. 25 Edw. III., St. 5, c. 2], and its terms must be understood of course in the sense which they bore in that law, and which obtained here when the constitution was adopted. The expression “levying war,” so regarded, embraces not merely that act of formal or declared war, but any combination forcibly to prevent or oppose the execution or enforcement of a provision of the constitution or.of a public statute, if accompanied or followed by an act of forcible opposition in pursuance of such combination. This in substance has been the interpretation given to these words by the English judges, and it has been uniformly and fully recognised and adopted in the courts of the United States. See Foster, Hale, and Hawkins, and the opinions of Iredell, Paterson, Chase, Marshall, and Washington. JJ., of the supreme court, and of Paterson, C. J., in U. S. v. Mitchell [Case No. 15,788]; U. S. v. Fries [Id. 15,170]; U. S. v. Bollman [4 ¿ranch (8 U. -S.) 75], and U. S. v. Burr [Id. 14,692a].

The definition, as you will observe, includes two particulars, both of them indispensable elements of the offence. There must have-been a combination or conspiring together to oppose the law by force, and some actual force must have been exerted; or the crime of treason is not consummated. The highest, or at least the direct proof of the combining may be found in the. declared purposes of the individual party before the actual outbreak; or it may be derived from the proceedings of meeting, in which he took part openly, or which he either prompted, or' made effective by his countenance or sanction,—commending, coun-selling or instigating forcible resistance, to the law. I speak, of course, of a conspiring to resist a law, not the more limited purpose to violate it, or to prevent its application and enforcement in a particular case, or against a particular individual. The combination must be directed against the law itself. But such a direct proof of this element of the offence is not legally necessary to establish its existence. The concert of purpose may be deduced from the concerted action itself, or it may be inferred from facts concurring at the time, or afterwards, as well as before. Beside this, there must be some act of violence, as the result or consequence of the combining. But here again, it is not necessary to prove that the individual accused, was a direct, personal actor in the violence. If he was present, directing, aiding, abetting, counselling, or countenancing it, he is in law guilty of the forcible act. Nor is even his personal presence indispensable. Though he be absent at the time of its actual perpetration, yet if he directed the act, devised or knowingly furnished the means, for carrying it into effect, instigating others to perform it, he shares their guilt. In treason there are no accessories. There has been. I fear, an erroneous impression on this subject among a portion of our people. If it has been thought safe, to counsel and instigate others to acts of forcible oppugnation to the provisions of a statute,—to inflame the minds of the ignorant, by appeals t<S passion, and denunciations of the law as oppressive, unjust, revolting to the conscience, and not binding on the actions of men,—to represent the constitution of the land as a compact of iniquity, which it were meritorious to violate or subvert,—the mistake has been a grievous one; and they who have fallen into it may rejoice, if their appeals and their counsels have been hitherto without effect. The supremacy of the constitution, in all its provisions, is at the very basis of our existence as a nation. He, whose conscience, or whose theories of political or individual right forbid him to support and maintain it in its integrity, may relieve himself from the duties of citizenship, by divesting himself of its rights. But while he remains within our borders, he is to remember, that .successfully to instigate treason, is to commit it.

It is declared ’in the article of the constitution which I have already cited, that “no person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or cn confession in open court.” This and the corresponding language in the. act of congress of April 30, 1790 [1 Stat. 112], seems to refer to the proofs on the trial, and not to the preliminary hearing before the com-' mitting magistrate, or the proceeding before the grand inquest. There can be no conviction until after arraignment on bill found. The previous action in the case is not a trial, and cannot convict, whatever be the evidence or the, number of witnesses. I understand, this to have been the opinion entertained by Chief Justice Marshall [Case No. 14,692a], and though it differs from that expressed by Judge Iredell, on the indictment of Fries [Id. 15,170], I feel authorized to recommend it to you, as within the terms of the constitution, and involving no injustice to the accused.

I have only to add, that treason against the United States may be committed by any one resident,or sojourning within its territory and' under the protection of its laws, whether he be a citizen or alien. 1 Hale, P. C. 59, 60, 62; 1 Hawk. P. C. c. 2, § 5; W. Kel. 38.¹

1 This charge was delivered in the absence of GRIER. Circuit Justice. On a subsequent occasion, however, he referred to it as containing a correct statement of the decisions on the subject, and he expressed his full concurrence in the doctrines and sentiments which it expressed.