FEDERAL CRIMINAL LAW AND PROCEDURE VOLUME TWO CHAPTER XLVI CRIMINAL CODE, CHAPTER ONE OFFENSES AGAINST THE EXISTENCE OF THE GOVERNMENT § 662. Crim. Code § 1. § 663. Crim. Code § 2. § 664. Crim. Code § 3. § 665. Crim. Code § 4. § 666. Crim. Code § 5. § 667. Crim. Code § 6. § 668. Crim. Code § 7. Treason. Punishment of Treason. Inciting or Engaging in Rebellion or Insurrection. ments. Seditious Conspiracy. Recruiting Soldiers or Sailors to Serve against the § 669. Crim. Code § 8. Enlistment to Serve against the United States. Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason.1 Article III, Section 3 of the Constitution of the United States provides as follows: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort." In general when war exists, any act clearly indicating a want of loyalty to the government, and sympathy with its enemies, and which by fair construction is directly in furtherance of their hostile designs, gives § 662. 1 Formerly R. S. Sec. 5331, 35 Stat. L. 1088. VOL. II- 1 --- 1 them aid and comfort. Or, if this be the natural effect of the act, though prompted solely by the expectation of pecuniary gain, it is treasonable in its character." "Words oral, written or printed, however treasonable, seditious or criminal of themselves, do not constitute overt acts of treason.' This crime can be committed only by a person who owes allegiance to the United States. An insurrection of armed men to prevent by force and intimidation the execution of an act of Congress is levying war against the United States. One whose oath of allegiance is void because it was taken in accordance with a provision which was legally ineffectual cannot be held for treason. The terms "levying war" and "adhering to their enemies, giving them aid and comfort" are borrowed from the ancient law of England, and are to be understood in the sense which they bore in England when the constitution was adopted. But to constitute a levying of war, within the meaning of the constitutional definition, it is not sufficient that there should be an assembly of persons to consult about means of levying war at some future time or contingency without any present force. This is a mere conspiracy to levy war. To actually levy war some overt act must be done and some attempt with force to execute the purpose. If, however, the assembly is armed in military manner, that will be the overt act. Levying war necessitates that there be an assemblage of persons for the purpose of effecting by force a treasonable purpose. The mere enlistment of men to serve against the government is not a crime. The traveling of individuals to the place of rendezvous is not sufficient, but the meeting of bodies of men and their marching from places of partial, to places of general, rendezvous constitutes a levying of war.9 War can only be 2 Judge Leavitt, 1 Bond 609, 30 Fed. Cas. No. 1036. Judge Nelson in his charge to the Grand Jury, 5 Blatchf. 550, Fed. Cas. No. 18271, criticized in United States v. Werner, 247 Fed. 708. 4 United States v. Wiltberger, 5 Wheat. (U.S.) 76, 96, 5 L. ed. 37. 5 United States v. Mitchell, 2 Dallas (U. S.), 348, 1 L. ed. 410. 66 6 United States v. Villato, 2 Dallas (U. S.), 370, 1 L. ed. 377. 7 Charge to Grand Jury, 2 Wall. Jr. (U. S.) 134, Fed. Cas. No. 18276. 8 Charge to Grand Jury, 1 Story, 614, Fed. Cas. No. 18275. Ex parte Bollman, 4 Cranch (U. S. C. C.), 75, 2 L. ed. 554. levied by the employment of actual force. Troops must be embodied, men must be assembled, in order to levy war." 10 Levying war cannot exist if but one man carrying arms, regardless of his intent, sets out to do a treasonable act, but an assemblage of armed men with intent to do such a treasonable act comes within the definition." The assemblying of bodies of armed men for purposes of a private nature is not treason. The criterion is the intention with which the people assembled. When the intention is to prevent by force the execution of any United States statute, it is levying war. On the other hand, the commission of any number of felonies, riots, or misdemeanors cannot alter their nature so as to make them amount to treason.12 If a person is present, directing, aiding, counseling, or countenancing treason, though absent at the time when the act of violence was committed, he is guilty of the crime because he instigated it or devised the means for carrying it into effect.13 "It is not essential to constitute the giving of aid and comfort that the enterprise commenced should be successful and actually render assistance." 14 "Enemies" has reference to subjects of a foreign power in actual hostility, and does not include rebels in insurrection.15 To be employed in actual service in an army raised to oppose the government in its action or to aid in the levying or embodying of a military force for the subversion of the government are acts of levying war. But mere expression of opinion indicating sympathy with the enemy does not warrant a conviction. It is not adhering to their enemies, giving them aid or comfort" since that requires an overt act.16 An insurrection of an armed force, the object of which is to render void an Act of Congress carried on by seizing the persons of public officers and compelling them to swear that they no longer will act as such, is high treason 10 Chief Justice Marshall in United States v. Burr, 4 Cranch (Appendix) (U. S. C. C.), 455; 25 Fed. Cas. No. 14692, p. 13. 11 United States v. Burr, 25 Fed. Cas. No. 14693, p. 169; United States v. Bollman, 1 Cranch (C. C.), 373, 24 Fed. Cas. No. 14622, p. 1193. 12 Case of Fries, Fed. Cas. No. 5127. 13 Charge to Grand Jury, 2 Wall. Jr. (U. S.), 134, Fed. Cas. No. 18276. 14 United States v. Greathouse, 4 Sawy. 457, 26 Fed. Cas. No. 15254, p. 24. 15 United States v. Greathouse, supra. 16 Judge Leavitt's charge to Grand Jury, 1 Bond, 609, 30 Fed. Cas. No. 18272. |