of Aaron Burr, in the year of 1807, and the case of the United States v. Horie, in the year 1808. These were all trials in the Circuit Court.

"The only case which has come before the Supreme Court was that of Ex parte Bollman et al.1 In this case it was decided that if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, this is levying war.' What is a treasonable purpose? If the object be entirely to overthrow the government, at any one place by force, as at New Orleans, which is the case mentioned by the Supreme Court, that is a treasonable purpose. But a conspiracy to do this, and actually enlisting men who never assemble, is not sufficient to constitute the crime of treason. There must be an actual assemblage of men, for the purpose of carrying the conspiracy into effect by force. So, also, it is a treasonable purpose, if the object be to prevent, by force, the execution of any one law of the United States, in all cases; for it is entirely to overthrow the government as to one of its laws. And if there be an actual assemblage of men, for the purpose of carrying such an intention into effect, that is, of acting together, and preventing, by force, the execution of the law generally, in all cases it will constitute a levying of war.'

"But the sudden outbreak of a mob, or the assembling of men in order by force to defeat the execution of the law, in a particular instance, and then to disperse, without the intention to continue together, or to reassemble for the purpose of defeating the law generally, in all cases, is not levying war."

$ 59.

Offender must be a Citizen. - Only a citizen of a country can be guilty of treason against its laws.2

In the case of Rex v. Tucker, it was resolved "that allegeance is a mutual bond between the king and his subjects, by which the subjects owe duty to the king, and the king protection to his subjects, and treason is the breach and violation of that duty of allegiance which the subject owes to the king. If there is no allegiance there can be no treason. Where the king does not owe protection to the criminal, nor the criminal allegiance to the king, the criminal can not be traitor. For this reason an alien enemy can not be indicted for treason but shall be tried and executed by martial law."

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§ 60. Treason against United States not Offense against State. Treason against the United States is not cognizable in the State courts, e. g., giving aid and comfort to the enemies of the United States is not treason against the State of New York.

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§ 61. Crime Must be Against State Whose Courts are Invoked. - In Ex parte Quarrier, it was urged against Q. on his application for license to practice law in the courts of the State of West Virginia, that he had been guilty of treason. The act was engaging in the war of the rebellion. In granting his application BROWN, J., delivering the opinion of the Court of Appeals of West Virginia, said: "It has been urged that the facts confessed were treason, and that treason confessed was felony within the statute, which provides that 'any court before which any attorney has been qualified, on proof being made to it that he has been convicted of felony, may supersede his license.' But

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not every treason is within that statute. Treason to any other government than our own would not answer its requirements. An Irish or Hungarian rebel would hardly be excluded from practicing as an attorney here, if otherwise qualified, because of his treason to the British Queen or Austrian Emperor. Treason is very truly and justly regarded as the highest crime known to the law, but that is only true of treason against the State which enacted the law; for of treason against any other State the law takes no notice, and Sir Walter Scott but expressed the common judgment of mankind when he said that 'treason upon political accounts, though one of the highest crimes that can be committed against a State, does not necessarily infer anything like the detestation which attends offenses of much less guilt and danger.'

"Indeed it must not be forgotten that in this case no treason against the State of West Virginia, whose Courts are invoked to consider the subject, has been either proved or confessed, and the only acts stated that could amount to the crime of treason were perpetrated against the United States, and for which the party has been pardoned by that government. Now it would be straining the point too far to hold, as contended for, that the war being waged against the United States, of which the State of West Virginia was one, was, therefore, waged against her in the sense contemplated in the statute against treason, and that, therefore, the acts in question were treason against the State and felony within the statute. For while it is not intended to deny that the same act might constitute treason against the United States and also against the State, and the traitor be held responsible to each for his treason, respectively, yet, to constitute treason against the State, it is not enough to wage war against the United States generally or collectively, or as component parts of the National Union, but it must be done directly against the State, in particular, by invading her territory, attacking her citizens, subverting her government and laws, or attempting her destruction by force, etc., and that too by a citizen of the State; for none but her citizens owe her allegiance, and are, therefore, bound by that allegiance to protect and defend her against all assaults of her enemies. Others may be enemies, but the citizen only may be enemy and traitor also, and the latter no less because he is the former. The temporary disability which attaches to the applicant on account of his character of enemy ceased when that character terminated, and that was when he submitted to the government and took the oath of annesty on the terms prescribed by the President. It is true that act would not relieve from the consequences of treason, if any, committed by him against the State, yet as only the citizen can commit that crime it can not be laid to the applicant's charge on the facts confessed, unless the court should hold the act of February 3d, 1868, void, which declares that any citizen of the State, who shall thereafter levy war against the United States, etc., shall be considered as having expatriated himself as far as regards this State, and shall thenceforth be deemed no citizen thereof. And if in point of law no citizen of this State, then, in point of law no traitor to the State."

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§ 62. Object Must be of Public Nature. — In R. v. Frost, it was laid down that to constitute levying war against the Crown the object of the insurrection must be of a general nature. As if a person act as the leader of an armed body of men which enter a town, and their object be neither to take the town nor to

1 People v. Lynch and others, 11 Johns.

2 Prize Cases, 2 Black, 109.

549.

3 9 C. & P. 129 (1837).

attack the military, but merely to make a demonstration to the magistracy of the strength of their party either to procure the liberation of certain prisoners convicted of some political offense or to procure for those prisoners some mitigation of their punishment, this is not treason.

§ 63. Resistance of Law Must Not be Personal or Private. — In United States v. Hanway,1 the prisoner and others were indicted for treason in resisting the execution of the fugitive slave law. The facts, as stated by the court, were as follows: That Mr. Edward Gorsuch, a citizen of Maryland, was the owner of certain slaves, or persons held to labor by the laws of that State. That these slaves had escaped and fled into Pennsylvania, and were known to be lurking in the neighborhood of the village of Christiana, Lancaster County. That Mr. Gorsuch came to Philadelphia in September last, and obtained warrants for the arrest of these fugitives, from a commissioner of this court, having authority by law to issue such warrants. That these warrants were put into the hands of Kline, an officer duly authorized to execute them. That on the morning of the 11th of September, about daylight, Kline, accompanied by Gorsuch, his son, nephew, and cousin, and two other persons, citizens of Maryland, proceeded to the house of one Parker. That a person who was recognized as one of the fugitives for whom the warrants had been issued, was seen to come out of the house. That the fugitive on seeing the officer and his company, immediately fled into the house and upstairs, leaving the door open behind him. That Mr. Gorsuch pursued him, followed by the officer. That a number of negroes were collected up stairs, armed in various ways and determined to resist the capture of the fugitives. That a gun was fired by one of them at Mr. Gorsuch, and others of his assistants were struck with missiles thrown from the upper windows. That a pistol was then fired by the officer, not aimed at the negroes, but rather to frighten them and let them know their assailants were armed. That a parley was then held between the parties, and the negroes informed that the officer had legal process in his hands for their arrest. That the negroes demanded time for the purpose, as was supposed, of offering terms of surrender, but in reality, perhaps, to gain time for the arrival of assistance from the neighborhood. That after some lapse of time the defendant arrived on the ground, and at the same, or soon after, large numbers of negroes began to collect around with various weapons of offense, such as guns, clubs, scythes, and corn-cutters. That on the arrival of these reinforcements, the persons in the house set up a yell of defiance. That the officer made known his character, and exhibited his writs to the defendant and another white man who had arrived on the ground, and demanded their assistance in executing the warrants, which was refused. That the officer, deeming the attempt to execute his writs in the face of a numerous armed and angry mob of negroes, hopeless, made no further attempt to do so, being content to escape with his life. That the mob of armed negroes, now amounting to near or over one hundred persons, immediately made an attack upon the party who attended the officer. Mr. Gorsuch was then shot down, beaten with clubs, and murdered on the spot. His son, who came to his assistance, was shot and wounded, and with difficulty escaped with his life. That the nephew was surrounded and beaten, but escaped with his life, and that on the preceding evening notice had been given in the neighborhood, by a negro who had followed the officer from

1 2 Wall. jr. 200 (1851).

"And in Fries's Case, already mentioned, 'that an insurrection or rising of any body of people within the United States, to attain by force or violence any object of a great public nature, or of public (or national) and general concern, is a levying of war against the United States.' 'That any such insurrection or rising to resist or prevent by force or violence the execution of any statute of the United States,' 'under any pretense, as that the statute was unjust, burthensome, oppressive or unconstitutional, is a levying of war against the United States within the Constitution.' And in a case in the Circuit Court of New York, it was declared that if the intention be, to prevent by force of arms, the execution of any act of Congress altogether, any forcible opposition calculated to carry that intention into effect, is levying war against the United States. But the resistance of the execution of a law of the United States accompanied with any degree of force, if for a private purpose, is not treason. To constitute that offense, the object of the resistance must be of a public and general nature. I do not think it necessary to quote further from the decisions of my predecessors. It will suffice to say that the late charge of my brother Kane to the grand jury in the Circuit Court, contains what I believe to be a correct statement of the decisions on this subject, and that I fully concur in the doctrine stated, and the sentiments expressed in it.

"In the application of these principles of construction to the case before us, the jury will observe, that the 'levying of war' against the United States, is not necessarily to be judged of alone by the number or array of troops. But there must be a conspiracy to resist by force, and an actual resistance by force of arms or intimidation by numbers. The conspiracy and the insurrection connected with it must be to effect something of a public nature, to overthrow the government, or to nulify some law of the United States, and totally to hinder its execution, or compel its repeal. A band of smugglers may be said to set the laws at defiance, and to have conspired together for that purpose, and to resist by armed force, the execution of the revenue laws; they may have battles with the officers of the revenue, in which numbers may be slain on both sides, and yet they will not be guilty of treason, because it is not an insurrection of a public nature, but merely for private lucre or advantage. A whole neighborhood of debtors may conspire to resist the sheriff and his officers, in executing process on their property-they may perpetrate their resistance by force of arms- may kill the officer and his assistants—and yet they will be liable only as felons, and not as traitors. Their insurrection is of a private, not of a public nature; their object is to hinder or remedy a private not a public grievance. A number of fugitive slaves may infest a neighborhood, and be encouraged by the neighbors in combining to resist the capture of any of their number; they may resist with force and arms, their master or the public officer, who may come to arrest them; they may murder and rob them; they are guilty of felony and liable to punishment, but not as traitors. Their insurrection is for a private object, and connected with no public purpose.

"It is true that constructively they may be said to resist the execution of the fugitive slave law, but in no other sense than the smugglers resist the revenue laws, and the anti-renters the execution laws. Their insurrection, their viojence, however great their numbers may be, so long as it is merely to attain some personal or private end of their own, can not be called levying war. Alexander the Great may be classed with robbers by moralists, but still the political distinction will remain between war and robbery. One is public and national, the other private and personal.

"Without desiring to invade the prerogatives of the jury in judging the facts of this case, the court feel bound to say, that they do not think the transaction with which the prisoner is charged with being connected, rises to the dignity of treason or a levying of war. Not because the numbers or force was insufficient. But first, for want of any proof of previous conspiracy to make a general and public resistance to any law of the United States. Secondly, because there is no evidence that any person concerned in the transaction knew there were acts of Congress, as those with which they are charged with conspiring to resist by force and arms, or had any other intention than to protect one another from what they termed kidnappers (by which slang term they probably included not only actual kidnappers, but all masters and owners seeking to recapture their slaves, and the officers and agents assisting therein).

"The testimony of the prosecution shows that notice had been given that certain fugitives were pursued; the riot, insurrection, tumult, or whatever you may call it, was but a sudden 'conclamatio' or running together, to prevent the capture of certain of their friends or companions, or to rescue them if arrested. Previous to this transaction, so far as we are informed, no attempt had been made to arrest fugitives in the neighborhood under the new act of Congress, by a public officer. Heretofore arrests had been made not by the owner in person, or his agent properly authorized, or by the officer of the law. Indviduals without any authority, but incited by cupidity and the hope of obtaining the reward offered for the return of a,fugitive, had heretofore under taken to seize them by force and violence, to invade the scantity of private dwellings at night, and insult the feelings and prejudices of the people. It is not to be wondered at that a people subject to such inroads, should consider odious the perpetrators of such deeds and denominate them kidnappers — and that the subjects of this treatment should have been encouraged in resisting such aggressions, where the rightful claimant could not be distinguished from the odious kidnapper, or the fact be ascertained whether the person seized, deported or stolen in this manner, was a free man or a slave. But the existence of such feelings is no evidence of a determination or conspiracy by the people to publicly resist any legislation of Congress, or levy war against the United States. That in consequence of such excitement, such an outrage should have been committed, is deeply to be deplored. That the persons engaged in it are guilty of aggravated riot, and murder can not be denied. But riot and murder are offenses against the State government. It would be dangerous precedent for the court and jury in this case to extend the crime of treason by construction to doubtful cases, and our decision would probably operate in the end to defeat the purposes of the law which the government seeks to enforce. I can not conclude this charge to the jury, without availing myself of the occasion which it offers, to express the satisfaction which the court has in seeing here the attorney-general of the State of Maryland and the private counsel associated with him; for although the ordinary officers of the United States are deserving of all praise for the vigilance, ability and learning they have shown in bringing offenders to justice, the indignation felt by the people of Maryland at the calamitous and disgraceful murder of Mr. Gorsuch, are most natural indeed; and we receive their representatives here, in defence of the law, with cordial respect and readiness, in the hope that it may efface all angry feelings between the peo ple of these two States, and foster those of friendship.

After an absence of twenty minutes, the jury returned a verdict of

Not guilty.