Treason, in general terms, any act of hostility against a state, committed by one who owes allegiance to it. There is one important difference in what may be called the form or manifestation of this crime, which seems to constitute a difference in its essence, and has led to some confusion of thought as to the crime itself, and as to the laws or proceedings for its prevention. This difference is between the crime as it may be committed against a monarch or against a republic. Where the power and majesty of a state are embodied in a personal sovereign, there treason against him is treason against the state; but where the state is not thus impersonated, the treason must be against the state itself, and cannot be committed against any person. The crimen Ioesoe majestatis, in all the ages of republican Rome, was regarded as a crime against the state, and not against its magistrates, excepting as they represented the state. The simple word majestas was often used as meaning this offence, although the whole expression of it was: crimen Ioesoe, imminutoe, diminutce, or minutoe majestatis.
At a later period, when the emperors, having first accumulated in their persons the higher magistracies of the republic, gradually and yet rapidly became despotic and irresponsible while the language of the law remained almost unchanged for a considerable time, the crime itself came to be regarded as primarily a crime against the personal sovereign, and derivatively against the state. In Rome, as afterward in England, the power of the sovereigns to enlarge the scope of this crime, and accuse whom they would of it, was enormously abused. But in both of these states it always remained, and in all civilized countries it must always remain, the highest of crimes, and more deserving of the severest punishment than any other; and for these reasons it needs to bo most carefully limited, and to be guarded not only as to its extent, but as to the proof by which it may be established. The constitution of the United States (art. iii., sec. 3) declares that "treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." This cannot be regarded as a definition of treason so much as a limitation of it, and a declaration of what portion of the offences which had been at different times included within its meaning should be regarded as so included by our law.
The word treason is used as a customary law term of well known significance; and indeed, in the most important cases which have arisen in the United States, it would seem that this provision of the constitution has but exchanged the burden of defining treason for that of defining the levying war against a state and adhering to its enemies. - In order to show the true meaning of the word treason, we must go back to the Roman civil law, which on this point had an important influence on the English law. In the early days of Rome, the word perduellio (from perduellis, which is defined by Gaius as hostis) was used almost as a syno-nyme of majestas, and indicates the idea of hostility to the state as belonging to it. Although commonly spoken of as the equivalent of treason, majestas certainly had a wider extent of meaning and operation than treason ever had in its extremest abuse in England. Cicero says (using the word majestas here in its original sense): Majestas est in imperii atque in nominis populi Romani dignitate.
Elsewhere, for the purpose of defining the criminal offence of loesa majestas, he says: Majestatem minuere est de dignitate, aut amplitudine, aut potestate populi, aut eorum quibus popidus po-testatem dedit aliquid derogare; and in this wide sense majestas was applied to any maladministration in office of any magistrate. It became afterward much more like treason as it was in the worst periods of English history; and the abuse of it may be illustrated by some of the provisions of imperial law about the statues of the emperors. By some of these it was declared that to repair their statues when going to decay, or to injure one accidentally and unintentionally, or even to sell one if it had not been consecrated, was not a crime against the majesty of the state; but to melt one down after it had been consecrated constituted this offence. The earliest punishment of the crime was perpetual interdiction from fire and water; the later, death, to persons of low condition by wild beasts or burning, to those of higher rank by the ordinary method of execution. - We find treason recognized and punished as a crime from the beginning of the common law; and always the cause of the crime was some act of hostility against the government by one who owed to it allegiance.
But during many ages the criminal law of England was unwritten, and lay in the determinations of judges who were removable at the king's pleasure, and who were often so corrupt that public justice was perverted into an instrument of remorseless tyranny. In the reign of Edward IV. an unfortunate punster, who kept an inn in London with the sign of the crown, said he would make his son heir of the crown; and for this offence he was hanged, drawn, and quartered. In the same reign an owner of deer, one of which was killed by the king while hunting, said he wished the horns of the deer were in the king's stomach; and for this he was put to death. But at a later period, when Russell and Sidney were slain through the instrumentality of a judicial trial for treason, this atrocious wickedness assumes at least a more dignified appearance. Indeed, during the whole of English history until the times of Cromwell, treason always had, in a greater or less degree, the character of a political offence. At many periods the leading men of the age fell victims to it. Hence has arisen a feeling of compassion for the sufferers, and of doubt as to their guilt, which has had an important influence on the public estimation of the crime in that country, and to some extent in this.
Another reason for some laxity of thought and feeling concerning this crime, is the extreme uncertainty of the earlier law as to its definition and limits. Thus, Glanvil expressly identifies it with the crimen loesoe majestatis; Brac-ton includes within it the counterfeiting not merely of the king's seal, but of the king's money; and by a very current phrase it was supposed to embrace all "encroaching of (encroachment upon) royal power." So early as the 25th year of Edward III. an attempt was made to remedy this uncertainty by a statute defining treason, which was for the time an excellent law, although quite too wide in its scope. Among the principal offences here called treason were compassing the death of the king, queen, or prince, or levying -war against the king, or adhering to the king's enemies; but all these offences were to be proved by some overt act. In some of the subsequent reigns this excellent provision was evaded by construction, or the statute was disregarded, or new ones made. Thus, by the 32d of Henry VIII. it was made high treason to accept, take, judge, or believe the king's marriage with Anne of Cleves as legal and valid.
But the leading provisions of the statute of Edward III. are still the law of England, and the reasonable construction of its language by the courts of England has been generally followed by the courts of the United States in construing the provisions of our own constitutions and laws. By the 1st of Edward VI. the provision was introduced which we have copied, requiring, for the conviction of one charged with treason, two sufficient and lawful witnesses; but this provision was in many instances shamefully perverted. Thus when only one living witness could be found who would testify to Algernon Sidney's treason, Jeffreys decided that garbled extracts from his writings might be read as the other witness, and on this testimony he was convicted and executed; and no .greater dishonor rests on the name of Bacon than that he assisted his master, King James, in corrupting the judges of the king's bench into a willingness to convict of treason one Peacham, a parish priest, on the evidence of a sermon which he had never delivered, and which was found by searching his study. Out of the many civil conflicts and commotions in England, and especially the wars of the roses, grew one rule, still in force, and resting on the soundest justice and reason.
During those ages of constant disturbance, when there were frequently more persons than one. who claimed the crown, and, so far as they could, exercised royal authority, almost every person incurred the danger of treason, in case the claimant to whom he adhered was defeated; and for this cause, or on this pretence, multitudes of men of every rank perished on the scaffold. But from the obvious absurdity of exacting from every individual a sound, or rather a fortunate judgment as to the obscure and complicated grounds on which the claim to sovereignty often rested, it became and still remains a well settled rule, that no one incurs the guilt of treason by adherence to a king or government de facto, although that king or government has but the right of a successful rebel, and loses it all by a subsequent defeat. - In considering the crime of treason in the United States, we must remember that there may be treason against the United States, and also treason against any one of the states. Looking first to treason against the United States, the foundation of the law itself, and of our knowledge of it, must be the clause in the constitution already quoted; and as there is no common law of the United States, this clause would have remained inoperative but for the act of congress of 1790, chap. 36, sec. 1, whereby it was enacted, "that if any person or persons owing allegiance to the United States of America shall levy war against them, or shall adhere to their enemies, giving them aid and oomfort within the United States or elsewhere, and shall be thereof convicted, on confession in open court, or on the testimony of two witnesses to the same overt act of the treason whereof he or they shall stand indicted, such person or persons shall stand adjudged guilty of treason against the United States, and shall suffer death." When the courts came to the construction and application of that act, they very properly made use of the principles and the jurisprudence of the common law; and they could do this the better, because the clause of the constitution is substantially the same as a provision of the statute of Edward III., and the best ability of England had been carefully employed about that statute.
For a judicial exposition of that clause and that statute, we must look to the trial of Burr, and of Bollman and Swartwout (4 Cranch, pp. 75 to 137), although these are not the only cases in which the same subject has been considered. - The first question is: What is a levying of war against the United States, within the meaning of the statute? In the first place, the levying of war must be actual; it must be carried out into some practical operation and effect. No intention, and no extent or thoroughness of preparation or of conspiracy for war, constitutes the crime of treason until the war actually begins. Some kind of force or violence, it is said, must be used. But it would seem that this force may be what the law would call constructive force; and it may be very slight; for it certainly need not be sufficient to accomplish either the general purpose of the war, or the particular effect proposed. But, if there be any overt act of war, then every one aiding and abetting this act of war, however remotely, does himself levy war and commit treason. It must be difficult to determine always what this rule requires.
Thus, Marshall declares that if an army be actually raised for the avowed purpose of carrying on war against the United States, and subverting their government, the point must be weighed very deliberately before a judge would venture to decide that an overt act of levying war had not been committed by a commissary or purchaser who never saw the army, but who, knowing its object and leaguing himself with the rebels, supplied that army with provisions; or by a recruiting officer, holding a commission in the rebel service, who, though never in camp, executed a particular duty required of him. Hence it would follow, that if there be an act of levying war against the United States, persons may be participators of that act, and of the crime which it constitutes, although they reside as far as possible from its actual locality. The prevailing rule of the criminal law, that there may be principals and accessories to a crime, has no application whatever to treason. We are warranted by the language of Chief Justice Marshall in saying, that if a rebellion were so extensive as to spread through every state in the Union, every individual concerned in it is not legally present at every overt act committed in that rebellion; nor can it be said that even the commander-in-chief of the rebel army, or the head of the organized rebellion, is legally present at every such overt act.
But while a man may be actually absent, yet if he have counselled or procured the treasonable act, he is a principal traitor, not because he is legally present, but because in treason all are principals. This question of locality has yet another importance. A person charged with this crime can be tried only within the state or judicial district in which it is committed, and the alleged criminal has indeed a strict right to be tried by a jury within that state or district. A wide extent may be given to this rule, by the doctrine that in treason all are principals, as above stated; but it can apply only to those persons who would, in the locality in which they reside, be either principals or accessories if there could be accessories to this crime. For if a person commits his own act of treason in a certain locality, and is not connected with any one committed elsewhere, so as to be, in this way, a principal in the act, he can be tried only within his locality; and if the judicial tribunals of the United States cannot or will not perform their proper functions within that state or judicial district, he cannot be tried anywhere.
It is certain, too, that the overt act which is alleged to be a treasonable act, must have been done with "a treasonable purpose." We have on this point high authority for saying, that if the object of the act be to prevent by force the execution of any public law of the United States, that is a treasonable purpose, for it aims at overthrowing the government as to one of its laws. So, if the purpose be to overthrow the government at one place, large or small, that is a treasonable purpose. - What, then, is adhering to an enemy, or, in the language of the constitution, giving him aid and comfort? It is perhaps impossible so to define these words as to make their meaning any plainer. But, again on high authority, this meaning may be illustrated thus : If a conspiracy to levy war against the United States be in actual operation anywhere within it, any citizen, residing anywhere else and at whatever distance, if he supply the rebels with arms or any munitions of war, with provisions to be used in support of the war or of the rebels while carrying it on, or money, or intelligence or information, and even if none of these things reach the rebels, he becomes a traitor in the place where he resides.
So it would come under this branch of treason, if forts, castles, or ships of war were delivered to the enemy, or if the accused had joined the enemy's forces, though no battles or conflicts take place. The same principles would undoubtedly apply, whether the treason charged were committed against the United States or against any one of the states, qualified only by any special provisions of the constitution or law of that state. - As all treason consists of hostility against a state by one who owes it allegiance, so only one who owes this duty, in some way, may be a traitor. But it is held that this modified allegiance may be that of an alien residing in this country and enjoying the protection and advantages of its government. The alleglance of an alien, however, or the possibility of his becoming a traitor, ends with his residence in this country; while the duty of allegiance goes with a citizen wherever he goes; and wherever he may be, he becomes a traitor by hostility against the government in violation of this duty. - We have seen that no one can be convicted of treason except on the evidence of two witnesses; but with this exception, the trial for treason is conducted in all respects like any other criminal trial for a capital offence.
If convicted, the traitor may be sentenced to death by the ordinary means of execution; but by act of congress of July 17, 1862, the punishment in the discretion of the court may be imprisonment for not less than five years and a fine of not less than $10,000. We have no remnant of that ferocious cruelty which was considered necessary in barbarous ages, and in statutes-often outlived them. Until the 30th year of George III. the convict of treason forfeited his property to the crown, was drawn on a hurdle to the gallows, there hanged, then cut down, disembowelled, and his entrails burned before life was extinct; and the body was then beheaded and quartered.