Persons regarded as enemies. In a civil

war, persons who adhere to their allegiance are not, although they reside in an insurrectionary district, regarded as enemies; and trade with such persons, in good faith and without collusion with the enemy, is lawful, unless interdicted by the Government. Charge to Grand Jury, Treason (C. C. 1861), Fed. Cas. No. 18,271.

Overt acts. Sce, also, notes under 2849, post.

It is necessary to produce two direct witnesses to the whole overt act; a conviction can not be had on the testimony of one witness, together with circumstantial evidence, though it is well nigh conclusive. U. S. υ. Robinson (D. C. 1919), 259 Fed. 685; compare U. S. v. Fricke (D. C. 1919), 259 Fed. 673, 677.

The fact that treason might incidentally arise in the attempt to embark troops against a foreign nation, with which the United States is at peace, will not affect a previous assemblage of troops, where the treason was neither committed nor intended. U. S. v. Burr (C. C. 1807), Fed. Cas. No. 14,694a.

A person who advised or procured a warlike assemblage, charged as the overt act of treason not can be convicted of treason until after the conviction of one of those charged with the overt act. U. S. v. Burr (C. C. 1807), Fed. Cas. No. 14,693.

An indictment for levying war against the United States must specify an overt act, and the charge must be proved as laid. U. S. v. Burr (C. C. 1807), Fed. Cas. No. 14,693.

And there must be some overt act done, or some attempt made by them, with force, to execute, or toward executing, that purpose. The assembly must be in a condition to use force, and must intend to use it, if necessary, to further, aid, or accomplish the treasonable design. Charge to Grand Jury, Treason (C. C. 1842), Fed. Cas. No. 18,275.

Where a body of armed men is mustered in military array for a treasonable purpose, every step which any one of them takes, by marching or otherwise, in part execution of "uch purpose, is an overt act of treason in levying war. U. S. v. Greiner (D. C. 1861), Fed. Cas. No. 15,262.

Words, oral, written, or printed, however treasonable, seditious, or criminal of themselves, do not constitute an overt act of treason. Charge to Grand Jury, Treason (C. C. 1861), Fed. Cas. No. 18,271.

Purchase of a vessel, and fitting her up for service with arms and ammunition, and the employment of men to manage it, in pursuance of a design to commit hostilities on the high seas in aid of an existing re

bellion against the United States, are overt acts of treason. U. S. v. Greathouse (C. C. 1863), Fed. Cas. No. 15,254.

Persons liable in general. If a body of men be actually assembled to effect by force treasonable a purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered guilty of treason. Charge to Grand Jury, Neutrality Laws and Treason (C. C.

1851), Fed. Cas. No. 18,269; Charge to Grand Jury, Treason and Piracy (C. C. 1861), Fed. Cas. No. 18,277.

An alien resident may be guilty of treason by cooperating either with rebels or foreign enemies. Charge to Grand Jury, Treason (D. C. 1863), Fed. Cas. Nos. 18,274 (C. C. 1851), 18,276.

All who aid in the prosecution of war levied against the United States, whether by open hostilities in the field, or by performing any part in the furtherance of the common object, however minute, or however remote from the scene of action, are guilty of treason. U. S. v. Greathouse (C. C. 1863), Fed. Cas. No. 15,254.

All

In treason there are no accessories. who engage in rebellion, or who designedly give to it any species of aid and comfort, In whatever part of the country they may be, are principals. U. S. v. Greathouse (C. C. 1863), Fed. Cas. No. 15,254; Case of Fries (C. C. 1800), Fed. Cas. No. 5,127. Persons owing allegiance. The words "owing allegiance to the United States" in this section are surplusage, since treason is a breach of allegiance, and can be committed by one only who owes allegiance either perpetual or temporary. U. S. v. Wiltberger (1820), 5 Wheat. 76, 97, 5 L. Ed. 37.

People in rebellion. Until belligerent rights are accorded by the political department of the Government to the State or people in rebellion, the judiciary must regard them as rebels and lawless aggressors, and apply to them the penal law. Charge to Grand Jury (C. C. 1861), Fed. Cas. No. 18,256.

Belligerent rights conceded to the Confederate States can not be invoked for the protection of persons entering within the limits of a loyal State, and secretly getting up hostile cxpeditions against the Government. U. S. v. Greathouse (C. C. 1863), Fed. Cas. No. 15,254.

The agreement of capitulation between Generals Sherman and Johnston was a mere military parole terminating with the war, and the persons included were liable to arrest for treason after the war. U. S. v. Rucker (C. C. 1866), Fed. Cas. No. 16,203.

The National Government conceded belligerent rights to the armies of the Confederate States; and acts of a strictly military character, performed under military authority, Lay be protected by reason thereof. U. S. v. Morrison (C. C. 1869), Fed. Cas. No. 15,817.

The whole existence of the Confederate Government was a continued rebellion against the lawful Government of the United States; and no one can be protected by the sanction of its authority save in acts of war. Id.

gea,

Rebellion, whether conducted on land or is felonious and treasonable, and punishable by death. The Ambrose Light (D. C. 1885), 25 Fed. 408, 427.

Secession ordinances as defense. The ordinances of secession of the States in rebellion do not furnish any defense to their citizens for treasonable acts against the United States Government. U. S. v. Cathcart (C. C. 1864), Fed. Cas. No. 14,756.

Merger of treason against State in treason against United States.-Treason begun against a State may be mixed up or merged in treason against the United States. If the treasonable purpose be to overthrow the Government of the State, and forcibly to withdraw it from the Union, and thereby to prevent the exercise of the national sovereignty within the limits of the State, this would be treason against the United States. Charge to Grand Jury, Treason (C. C. 1842), Fed. Cas. No. 18,275.

If the troops of the United States should be called out by the President upon the application of a State legislature or executive, to protect the State against domestic violence, and there should be an assembly of persons with force to resist and oppose the United States troops, this would be treason against the United States, although the primary intention of the insurgents may have been only to overthrow the State government or the State laws. Charge to Grand Jury, Treason (C. C. 1861), Fed. Cas. No. 18,272. See, also, Charge to Grand Jury (C. C. 1842), Fed. Cas. No. 18,275.

Revolutionizing Territory as means for foreign expedition.-The act of revolutionizing a Territory of the United States, though only as a means for an expedition against a foreign power, is treason. U. S. บ. Burr (C. C. 1807), Fed. Cas. 14,692a.

No.

Quashing indictment.-On motion to quash an indictment for treason, held, that defendant's counsel would be required to file with the clerk a formal statement of the grounds on which the motion was based. Case of Davis (C. C. 1867-1871), Fed. Cas. No. 3,621a.

a

Evidence. It is not competent, on trial for treason, to prove that the accused, in the course of the insurrection, joined with others in robbing the mails, when a separate indictment for that offense is already pending against him. U. S. v. Mitchell (C. C. 1795), Fed. Cas. No. 15,789.

Where it was claimed that a circular letter had been written by leaders of an insurrection calling citizens to assemble with arms, etc., held, that a copy thereof was not admissible, unless it was proved to be one of the copies actually circulated. Id.

Where it is shown by the evidence of several witnesses that accused was present and took part in a treasonable conspiracy, proof by two or more witnesses that he marched as a volunteer with arms and in military array, with a party which actually used force to prevent the execution of an act of Congress, is sufficient without proof by two witnesses that he was actually present when the acts of violence were committed. Id.

On the trial of a person indicted for treason in levying war against the United States, the court can not control the order of proof to the extent of requiring the prosecution to prove the overt act charged, before proving the intention with which such act was committed. U. S. v. Burr (C. C. 1807), Fed. Cas. No. 14,692h (C. C. 1807), Id. 14,693; Same v. Lee (C. C. 1814), Id. 15,584.

A person will not be held to trial for treason in levying war against the United States on an affidavit that he is enlisting men for such purpose, without proof of the actual embodying of men, where ample time is given to get such proof. U. S. v. Burr (C. C. 1807), Fed. Cas. No. 14,692a.

Facts out of the district may be proved after the overt act as corroborative evidence of the intention. Id.

The overt act of levying war must be proved by two witnesses before testimony is admissible relative to the conduct or declarations of the prisoner elsewhere, and subsequent to the overt act charged. Id.

Proof of remote intentions may be relevant by proof of the continuance of the intention, and consequently is admissible.

Id.

Query, whether, after proving a connection for some general object between persons accused of treason in levying war, the conversations of one with third persons may be given in evidence against the other to prove what that object was. Id.

The declaration of the prisoner accompanying the overt act charged may be proved to show his intention in doing it;

der this section. 313.

(1863) 10 Op. Atty. Gen.

Indictment. On indictment under sec. 2, act of July 17, 1862, need not use the phrase "levying war" specifically; it is sufficient to follow the language of the act.

U. S. v. Greathouse (C. C. 1863), Fed. Cas. No. 15,254.

Confiscation of property under former law. See Bigelow v. Forrest (1869), 76 U. S. (9 Wall.) 339, 19 L. Ed. 696; [C. S. p. 12,497.]

Offense in general. To constitute the offense, there must be a conspiracy to resist generally and publicly by force, and an actual resistance by force or by intimidation of numbers, a law of the United States. U. S. v. Hanway (C. C. 1851), Fed. Cas. No. 15,299.

A conspiracy to resist by force the execution of such law in particular instances only, for personal or private purposes only, is not treason. U. S. v. Hanway (C. C. 1851), Fed. Cas. No. 15,299; Same v. Hoxie (C. C. 1808), Id. 15,407.

A conspiracy by force to prevent, hinder, and delay the execution of the joint resolution of Congress of April 6, 1917, declaring a state of war to exist with Germany, is a conspiracy relating to a "law," in view of section 7, Article I, of the Constitution, a joint resolution having the effect of a law. Wells v. U. S. (C. C. A. 1919), 257 Fed. 605.

A conspiracy to prevent by force private individuals from producing goods to fulfill their contracts with the Government is not punishable under this section, applying to conspiracy to prevent the execution of the laws of the United States, since this section is limited to obstructions of the laws by the officers of the Government charged with that duty. Haywood v. U. S. (C. C. A. 1920), 268 Fed. 795.

Overt act. Prior to act of July 31, 1861, of which this section is a part, there was no law for punishing treasonable combinations or conspiracies which were not consummated by an overt act. The statute of that date, however, makes criminal not only combinations to overthrow the Government, but conspiracies or mutual agreements, whether by few or many, whether public or private, forcibly to resist, or even to delay, the execution of any law. Charge

to Grand Jury, Treason and Piracy (C. C. 1861), Fed. Cas. No. 18,277; Charge to Grand Jury, Treason (C. C. 1861), Fed. Cas. No. 18,272.

Evidence that one gave his sanction to the listing and pledging of men under oath to resist the military authorities by blowing up bridges and seizing arms and ammunition in the possession of soldiers, that he advised with others in connection therewith and stated that he could control certain men, and ordered a contract in reference to the conspiracy to be written out with another person engaged in the same work, is sufficient to sustain a conviction for seditious conspiracy under section 6 of the Criminal Code (35 Stat. 1088, 1089), It is unnecessary to prove accomplishment of the design of the conspiracy. Goldman v. U. S., 245 U. S. 474, 38 Sup. Ct. 166; Phipps v. U. S., 251 Fed. 879.

Opposing authority of Government or preventing, hindering, or delaying execution of law. The ill treatment of Chinese in this country, and their expulsion from a town where they reside, is not, in itself, opposing by force the authority of the United States, or preventing the execution of any law thereof, within this section, and such acts are not punishable thereunder. Baldwin . Franks (1887), 120 U. S. 678, 7 Sup. Ct. 656, 657, 32 L. Ed. 766, reversing judgment In re Baldwin (C. C. 1886), 27 Fed. 187. Compare Anderson v. U. S. (C. C. A. 1920), 269 Fed. 65, where an indietment under this section against members of the I. W. W. was held good and this case distinguished.

A conspiracy or agreement of two or more persons to drive the Chinese out of the United States, or to maltreat or intimidate them, with a view of constraining them to depart therefrom, is prima facie a