levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who per form 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 as traitors. But there must be an actual assembling of men for the treasonable purpose, to constitute a levying of war. Crimes so atrocious as those which have for their object the subversion by violence of those laws and institutions which have been ordained in order to secure the peace and happiness of society, are not to escape punishment because they have not ripened into treason. The wisdom of the legislature is competent to provide for the case; and the framers of our Constitution, who not only defined and limited the crime, but with jealous circumspection attempted to protect their limitation by providing that no person should be convicted of it, unless on the testimony of two witnesses to the same overt act, or on confession in open court, must have conceived it more safe that punishment in such cases should be ordained by general laws, formed upon deliberation, under the influence of no resentments, and without knowing on whom they were to operate, than that it should be inflicted under the influence of those passions which the occasion seldom fails to excite, and which a flexible definition of the crime, or a construction which would render it flexible, might bring into operation. It is, therefore, more safe as well as more consonant to the principles of our Constitution, that the crime of treason should not be extended by construction to doubtful cases; and that crimes not clearly within the constitutional definition, should receive such punishment as the legislature in its wisdom may provide. To complete the crime of levying war against the United States, there must be an actual assemblage of men for the purpose of executing a treasonable design. In the case now before the court, a design to overturn the government of the United States in New Orleans by force, would have been unquestionably a design which, if carried into execution, would have been treason, and the assemblage of a body of men for the purpose of carrying

it into execution would amount to levying of war against the United States; but no conspiracy for this object, no enlisting of men to effect it, would be an actual levying of war." 2

2 In Homestead Treason Case (1 Dist. Rep. [Pa.] 785), the court, charging the jury, say: "When a large number of men arm and organize themselves by divisions and companies, appoint officers, and engage in a common purpose to defy the law and resist its officers, and to deprive any portion of their fellow-citizens of the right to which they are entitled under the Constitution and the laws, it is a levying of war against the State, and the offense is treason. Much more so when the functions of the state government are usurped in a particular locality, the process of the Commonwealth and the lawful acts of its officers resisted, and unlawful arrests made at the dictation of a body of men, who have assumed the functions of government in that locality. It is a state of war when a business plant has to be surrounded by the army of the State for weeks to protect it from unlawful violence at the hands of men formerly employed in it. Where a body of men have organized for a treasonable purpose, every step taken is an overt act of treason in levying war."

Justice Story in a charge to the jury in the United States Circuit Court, in 1842 (1 Story, 615), said: "A conspiracy to levy war, and an actual levy of war, are distinct offenses. To constitute an actual levy of war, there must be an assembly of persons met for the treasonable purpose, and some overt act done, or some attempt made by them with force to execute, or towards executing, that purpose. There must be a present intention to proceed in the execution of the treasonable purpose by force. The assembly must now be in a condition to use force, and must intend to use it, if necessary, to further, or to aid, or to accomplish the treasonable design. If the assembly is arrayed in a military manner, if they are armed and march in a military form, for the express purpose of overawing or intimidating the public, and thus they intend to carry into effect the treasonable design, that will, of itself, amount to a levy of war, although no actual blow has been struck, or engagement has taken place." And further, "In respect to the treasonable design, it is not necessary that it should be a direct and positive intention entirely to subvert or overthrow the government. It will be equally treason, if the intention is by force to prevent the execution of any one or more general and public laws of the government in its sovereign capacity. Thus, if there is an assembly of persons with force, with intent to prevent the collection of the lawful taxes or duties levied by the government, or to destroy all custom-houses or to resist the administration of justice in the courts of the United States, and they proceed to execute their purpose by force, there can be no doubt that it would be treason against the United States. If the object of an assembly of persons, met with force, is to overturn the government or constitution of a State, or to prevent the due exercise of its sovereign powers, or to resist the execution of any one or more of its general laws, but without any intention whatsoever to intermeddle with the relations of that State with the National

The fact that rebels have been recognized by the government as "belligerents" does not deprive that government of constitutional power to treat them, when captured, as traitors.

§ 445. Treason Against a State of the Union.

The punishment of the crime of treason against the United States is placed exclusively within the control of the federal authorities. Treason against an individual State of the Union, however, is punishable by the authorities of the State, which authorities have, subject to the general limitations placed upon them by the federal Constitution with reference to due process of law, ex post facto legislation, etc., the powers to determine what acts shall be held to constitute treason against the State.

§ 446. Offenses, Other than Treason, Against the Existence and Operations of the Federal Government.

The Federal Government, though restrained by the Constitution, with reference to the definition of treason, has the general power to define and punish as it sees fit all acts against its existence or undisturbed operation. Thus it has by statute defined. Government, or to displace the national laws or sovereignty therein, every overt act done with force towards the execution of such a treasonable purpose is treason against the State only. But treason may be begun against a State, and may be mixed up or merged in treason against the United States. Thus, 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, that would be treason against the United States. So, if the troops of the United States should be called out by the President, in pursuance of the duty enjoined by the Constitution, .. and there should be an assembly of persons with force to resist and oppose the troops so called out by the President, that would be a levy of war against the United States although the primary intention of the insurgents may have been only the overthrow of the state government or the state laws."

For further definitions of what constitutes "adhering to their enemies," and "giving them aid and comfort," see United States v. Burr, 2 Burr's Trial, 405; United States v. Pryor, 3 Wash. 234; United States v. Greathouse, 2 Abb. C. C. 364; United States v. Greiner, 4 Phila. 396; Wharton State Trials, 102ff.

and provided punishment for misprision of treason, inciting or engaging in rebellion or insurrections, criminal correspondence with foreign governments, seditious conspiracy, recruiting soldiers or sailors to serve against the United States, enlistment to serve against the United States, and generally, acts which interfere with the effective operations of the government.3

Whether, and to what extent, Congress has the power to punish seditious libels will be considered in the section dealing with Freedom of Speech and Press.1

§ 447. Jury Trial in Civil Suits.

By the Seventh Amendment it is provided that "in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of common law."

This provision, it has been determined by the Insular Cases, does not apply ex proprio vigore to the unincorporated Territories. Trial by jury, as used in this provision, refers to "a jury of twelve men, in the presence of and under the superintendence of a judge empowered to instruct them in the law and to advise them on the facts, and to set aside their verdict if, in his opinion, it is against the law and the evidence." The "rules of common law,' refer, of course, to the common law of England, which permit a new trial, granted by the trial court or by an appellate court for errors in law committed on the first trial.5

In Capital Traction Co. v. Hof it was held that the right to jury is preserved, when an appeal, on giving bond, is allowed from a judgment of a justice of the peace to a court of record, where trial is had by jury. The constitutional provision, it is

3 See §§ 1-8 and 27-84, of Act of March 4, 1909, codifying, revising, and amending the penal laws of the United States, 35 Stat. at L. 1088.

4 As to the constitutional power of Congress to afford special protection to the President, and to punish acts of violence committed against him, see House Rpt. 1422, 57th Cong., 1st Sess.

5 Capital Traction Co. v. Hof, 174 U. S. 1; 19 Sup. Ct. Rep. 580; 43 L. ed. 873.

pointed out, does not prescribe at what stage of an action a trial by jury must, if demanded, be had, or what conditions may be imposed upon the demand of such a trial, consistently with preserving the right to it. After a careful review of the practice in the States at the time of the adoption of the Constitution, and since, the court hold that the provision of an act of Congress requiring every appellant from the judgment of a justice of the peace in the District of Columbia to give security to pay and satisfy the judgment of the appellate court is consistent with that preservation of the right of trial by jury required by the Seventh Amendment.

§ 448. Waiver of Jury in Civil Cases.

The right to a jury trial in civil cases, whatever the value in controversy, may be waived. No objection to a waiver was made in the early case of Parsons v. Armor; nor later in Bamberger v. Terry; nor in Supervisors of Wayne Co. v. Kennicott." Indeed the right to waive has not been seriously questioned.

§ 449. Religious Freedom.

The provision of the First Amendment that "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof," has given rise to comparatively little litigation in the federal courts.10

In Reynolds v. United States11 the meaning of the prohibition is carefully considered and the conclusion, unavoidable from a practical viewpoint, reached that the prohibition does not prevent Congress from penalizing the commission of acts which, though justified by the tenets of a religious sect, are socially or

6174 U. S. 1; 19 Sup. Ct. Rep. 580; 43 L. ed. 873.

73 Pet. 413; 7 L. ed. 724.

8103 U. S. 40; 26 L. ed. 317.

9103 U. S. 554; 26 L. ed. 486.

10 By Clause 3 of Article VI it is also provided that "no religious test shall ever be required as a qualification to any office or public trust under the United States."

11 98 U. S. 145; 25 L. ed. 244.