Omitting grand jury charges and cases in which the enunciation of doctrines of the law of treason figured only incidentally, one may list from the American materials thirty-five instances in which application of the law of treason as defined in the Federal Constitution may be said to have been in question. Classifying these cases, with reference to the vigor of the rules laid down against "treason," as "strong" (*), "moderate" (**), and "restrictive" (***), one emerges with nine instances in which "strong" doctrine is pronounced, one of these in the present war. In the following list, the cases are classified according to the asterisk symbols set out in the preceding sentence.

* Whiskey Rebellion cases: United States v. Vigol, 28 Fed. Cas. 376, No. 16,621 (C. C. D. Pa. 1795); United States v. Mitchell, 26 Fed. Cas. 1,277, No. 15,788 (C. C. D. Pa. 1795). Constructive levying of war, based on forcible resistance to execution of a single statute; the defendants were convicted and later pardoned.

* House tax case: Case of Fries, 9 Fed. Cas. 826, 924, Nos. 5,126, 5,127 (C. C. D. Pa. 1799, 1800). Constructive levying of war by forcible resistance to execution of a single statute; the defendant was convicted and later pardoned, as were other defendants convicted in connected (unreported) prosecutions. In The Trial of Conrad Marks,

11 American State Trials (Lawson ed. 1919) 175 (C. C. D. Pa. 1800), the jury was charged on the law of treason as in the other cases, but defendant was acquitted. He later pleaded guilty to a charge of conspiracy. Defendants Gettman and Hainey were found guilty, however, on a charge to the jury similar to that in the Fries case. Stahler was acquitted, and nolle pros. was entered regarding Desch and Klein, who were held for conspiracy. Carpenter, The Two Trials of John Fries (1800) 210-11.

*** Burr conspiracy: Ex parte Bollman, 4 Cranch 75 (U. S. 1807); United States v. Burr, 25 Fed. Cas. 2, 55, Nos. 14,6923, 14,693 (C. C. D. Va. 1807). Conspiracy to levy war held not within constitutional definition as an overt act of levying war; actual assemblage required. Discharge of the prisoners was ordered in the Bollman case; the verdict was directed in the Burr trial.

** United States v. Lee, 26 Fed. Cas. 907, No. 15,584 (C. C. D. C. 1814). Sale of provisions held a sufficient overt act; mixture of commercial motive does not make intent sufficient. Acquittal.

* United States v. Hodges, 26 Fed. Cas. 332, No. 15,374 (C. C. D. Md. 1815). Obtaining release of prisoners to the enemy is adhering to the enemy; the act shows the intent. Acquittal.

*** United States v. Hoxie, 26 Fed. Cas. 397, No. 15,407 (C. C. D. Vt. 1808). Organized, armed attack of smugglers on troops enforcing embargo is riot and not constructive levying of war. Directed verdict.

*** United States v. Pryor, 27 Fed. Cas. 628, No. 16,096 (C. C. D. Pa. 1814). Proceeding under flag of truce with enemy detachment to help buy provisions is too remote an act to establish adhering to the enemy. Directed verdict.

*** United States v. Hanway, 26 Fed. Cas. 105, No. 15,299 (C. C. E. D. Pa. 1851). Participation in forcible resistance to execution of Fugitive Slave Law held not constructive levying of war in absence of showing of preconceived plan. Directed verdict.

** United States v. Greiner, 26 Fed. Cas. 36, No. 15,262 (E. D. Pa. 1861). Participation as member of state militia company in seizure and holding of a federal fort for the state held a levying of war sufficient to justify binding accused over to await trial when federal court again sits in the rebel area.

** United States v. Greathouse, 26 Fed. Cas. 18, No. 15,254 (C. C. N. D. Cal. 1863). Fitting out and sailing a privateer held levying of war. Defendants convicted, later pardoned or released on bond upon taking oath of allegiance.

** Cases of confiscation of property or refusal to enforce obligations given in connection with sale of provisions to the Confederacy: Hanauer v. Doane, 12 Wall. 342 (U. S. 1871); Carlisle v. United States, 16 Wall. 147 (U. S. 1873); Sprott v. United States, 20 Wall. 459 (U. S. 1874); United States v. Athens Armory, 24 Fed. Cas. 878, No. 14,473 (N. D. Ga. 1868). Mixed motive, involving commercial profit, does not bar finding of the giving of aid and comfort to the enemy. Other decisions in the Court of Claims are similar.

** United States v. Cathcart and Parmenter, 25 Fed. Cas. 344, No. 14,756 (C. C. S. D. Ohio 1864). Motion to quash and demurrer to indictments for treason by levying war denied and overruled, and argument that the union is only a compact of states rejected.

** Chenoweth's Case [Unreported: see Ex parte Vallandigham, 28 Fed. Cas. No. 16,816, at 888 (C. C. S. D. Ohio 1863); Cong. Globe, 37th Cong., 2d Sess. (1862) 2166-67]. Indictment held faulty for alleging aiding and abetting rebels, instead of charging directly the levying of war, as in treason all are principals.

* Druecker v. Salomon, 21 Wis. 621 (1867). In an action for false imprisonment, ruled that detention of defendant lawful because in participating in draft act riot he was guilty of levying war.

*** In the matter of United States v. Pratt, (1869) 1 Chi. Legal News 401. Charge of treason by forcing a United States guard and killing several persons in its custody is sufficient justification for detention of petitioners in habeas corpus.

*** Case of Jefferson Davis, 7 Fed. Cas. 63, No. 3,621a (C. C. D. Va. 1867-1871). Strong arguments were made that treason charges could not properly be brought against those conducting a rebel government which had achieved the status of a recognized belligerent; though the position was not formally conceded, Davis was not eventually brought to trial on the indictment for treason. See 2 Warren, Supreme Court in United States History (Rev. ed. 1937) 485-87; Watson, Trial of Jefferson Davis (1915) 24 Yale L. J. 669.

*** Philippine insurrections: United States v. Magtibay, 2 Philipp. 703 (1903), United States v. de los Reyes, 3 Philipp. 349 (1904). Mere possession of rebel commissions held insufficient overt act: defendants' power insufficient to show overt act; strict enforcement of two-witness requirement. Convictions reversed. United States v. Lagnason, 3 Philipp. 472 (1904). An armed effort to overthrow the government held to be levying war.

* United States v. Fricke, 259 Fed. 673 (S. D. N. Y. 1919). Acts "indifferent" on their face held sufficient overt acts where intent is shown.

*** United States v. Robinson, 259 Fed. 685 (S. D. N. Y. 1919). Obiter, acts harmless on their face are insufficient as overt acts; two-witness rule requires two witnesses to acts involving commission of the offense. Directed verdict.

* United States v. Werner, 247 Fed. 708 (E. D. Pa. 1918), aff'd, 251 U. S. 466 (1919). Demurrer to indictment overruled; an act indifferent on its face may be sufficient overt act.

*** United States v. Haupt, 136 F.(2d) 661 (C. C. A. 7th, 1943). Strict application of two-witness requirement and of severance of trial where prejudicial evidence regarding some defendants has no proper bearing on others. Inferentially, however, approves acts harmless on their face as sufficient overt acts. Conviction reversed.

* Stephan v. United States, 133 F.(2d) 87 (C. C. A. 6th, 1943). Acts harmless on their face may be sufficient overt acts; firm ruling on intent. Conviction affirmed. Sentence commuted.

*** United States v. Cramer, 325 U. S. 1 (1945). Acts indifferent on their face are insufficient overt acts. Conviction reversed.

*** United States v. Leiner, unreported, (S. D. N. Y. 1943). Acts indifferent on their face are not sufficient overt acts; specific intent must be clearly shown. Directed verdict.

The only reported trials for treason against a state seem to be those of Thomas Wilson Dorr (Rhode Island) and John Brown (Virginia).

** The Trial of Thomas Wilson Dorr, 2 American State Trials (Lawson ed. 1914) 5 (R. I. Sup. Ct. 1844). Claim to head a state "government" created by extra-legal elections, enforced by armed effort to seize state arsenal. Defendant was convicted, but subsequently pardoned after serving several years in prison.

** The Trial of John Brown, 6 American State Trials (Lawson ed.

1916) 700 (Jefferson Cty. C. C. Va. 1859). Armed insurrection "to free slaves" is treason by levying war. Defendant was convicted and executed.

Certain abortive prosecutions for treason are worth noting.

* Indictments were brought against Joseph Smith and other leaders of the Mormons for treason by levying war against the state of Missouri, in 1838; and again, Smith was arrested on such a charge of treason against the state of Illinois, in 1844. Both charges seem severe, since they followed a long history of mutual recrimination and violence between the Mormons and their neighbors; and it seems likely that on a fair trial a limited purpose of self-defense, rather than intent to set up a rival goverment, could have been made out. See 1 Williams and Shoemaker, History of Missouri (1930) 545; Culmer, New History of Missouri (1938) 212; 1 Roberts, Comprehensive History of the Church of Jesus Christ of Latter-Day Saints (1930) 499, 50o, 529, 530; 2 id. at 254; Davis, Story of the Church (1943) 244, 283, 305; Ford, History of Illinois (1854) 337; Pease, The Frontier State (1922) 352; Sen. Doc. No. 189, 26th Cong., 2d Sess. (1841). The Missouri charge was not pressed at the time, for political reasons, and the defendants escaped, possibly with the connivance of their jailors; later efforts at extradition failed. Smith was murdered by a mob which took him from his cell shortly after his arrest in Illinois.

** Indictments were brought against Mormon leaders for treason by levying war against the United States, in connection with activities taken to resist Federal troops, in Utah, in 1856-1857; but these charges were immediately nullified by the general pardon granted by President Buchanan. Even the official history of the Church recognizes that, "strictly speaking," there was a levying of war in this case. 4 Roberts, Comprehensive History of the Church of Jesus Christ of Latter-Day Saints (1930) 412-13, 425; see Anderson, Desert Saints (1942) 188.

* Under a strongly partisan charge by the Chief Justice of Pennsylvania, who took the unusual action of addressing a local grand jury, indictments for treason by levying war against the state of Pennsylvania were returned in 1892 against leaders of the Homestead Strike. Commonwealth v. O'Donnell, 12 Pa. Co. 97 (Ct. Oyer & Ter. Allegheny Cty. 1892). The action was subjected to severe criticism, from conservative professional sources, as well as from labor sympathizers; and the prosecutions were quietly dropped after three of the defendants had been acquitted of charges of murder growing out of the clash with the Pinkerton detectives. See notes 44, 47, 48, all in chapter 5 supra.

There have also, of course, been many trials by military tribunals on charges amounting to treason. Apart from the issue of free speech involved in the Vallandigham case (*) [see The Trial of Clement L. Vallandigham, 1 American State Trials (Lawson ed. 1914) 699], the principal cases seem to have involved conduct clearly within strict definitions of the scope of "treason," and the principal issue has concerned the extent of military jurisdiction. See, e.g., regarding the "Northwest Confederacy conspiracy," Pitman, The Trials for Treason at Indianapolis (1865); Klaus, The Milligan Case (1929) 24; Milton, Abraham Lincoln and the Fifth Column (1942) 170, c. 8. Cf. Ex Parte Quirin, 317 U. S. 1 (1942).

Charges of treason were found improperly laid against a state, where the accused was deemed to have acted rather against his allegiance to the United States, in People v. Lynch, 11 Johns. 549 (N. Y. 1814) (**) and in Ex parte Quarrier, 2 W. Va. 569 (1866) (**). The conduct involved was in each case within the most strict definition of treason.


The following cases (after United States v. Cramer), in chronological order of the highest authoritative opinion rendered, involved prosecutions for treason.

** Haupt v. United States, 330 U. S. 631 (1947). affirming 152 F.(2d) 771 (C. C. A. 7th. 1946), certiorari granted, 328 U. S. 831 (1946), rehearing denied, 331 U. S. 864 (1947): Harboring known enemy agent, and helping him buy automobile and seek employment to further his mission, held sufficient overt acts of aid. See also 47 F.Supp. 832, 836 (N. D. Ill.. 1942), reversed, 136 F.(2d) 661 (C. C. A. 7th. 1943) (first conviction set aside for breach of McNabb rule and improper joinder of defendants).

** Chandler v. United States, 171 F.(2d) 921 (C. C. A. 1st 1948), affirming 72 F.Supp. 231 (D. Mass. 1947); certiorari denied, 336 U. S. 918 (1949), rehearing denied, 336 U. S. 947 (1949): Participation in enemy wartime radio propaganda program held sufficient overt act.

** Gillars v. United States, 182 F.(2d) 962 (Ct. App. D. C. 1950): Participation in enemy wartime radio propaganda program held sufficient overt act.

** Best v. United States, 184 F.(2d) 131 (C. C. A. 1st. 1950), affirming 76 F.Supp. 857 (D. Mass. 1948); certiorari denied, 340 U. S. 939 (1951), rehearing denied, 341 U. S. 907 (1951): Participation in enemy wartime radio propaganda program held sufficient overt act. See also 73 F.Supp. 654 (D. Mass. 1947) (sanity hearing); 76 F.Supp. 138 (D. Mass. 1948) (subpoena for witnesses; validity of arrest).

** Burgman v. United States, 188 F.(2d) 637 (Ct. App. D. C. 1951), affirming 87 F.Supp. 568 (Dist. Ct. D. C. 1949), certiorari denied, 342 U. S. 838 (1951): Participation in enemy wartime radio propaganda program held sufficient overt act. See also 89 F.Supp. 288 (Dist. Ct. D. C. 1950) (bail denied pending appeal: in light of Chandler v. United States, no substantial legal question).

** D'Aquino v. United States, 192 F.(2d) 338 (C. C. A. 9th. 1951), rehearing denied, 203 F.(2d) 390 (C. C. A. 9th. 1951), certiorari denied, 343 U. S. 935 (1952), rehearing denied, 343 U. S. 958 (1952), rehearing denied, 345 U. S. 931 (1953): Participation in enemy wartime radio propaganda program held sufficient overt act. See also 180 F.(2d) 271 (C. C. A. 9th. Douglas, Circuit Justice, 1950) (bail allowed pending appeal).

** Kawakita v. United States, 343 U. S. 717 (1952), affirming 96 F.Supp. 824 (S. D. Cal. 1950), as affirmed, 190 F.(2d) 506 (C. C. A. 9th. 1951), certiorari granted, 342 U. S. 932 (1952): Brutalities on U.S. prisoners of war, inflicted by U.S. citizen in wartime Japan, outside his duties as civilian interpreter in war-materials plant, held sufficient overt acts; treasonable intent sufficiently proved by defendant's statements and actions, apart from two-witness evidence. See also 108 F.Supp. 627 (S. D. Cal. 1952) (denial of motion to modify death sentence).

One case was tried by a United States military commission:

**United States v. Shinohara (C. M. O. 9, 1948), p. 280: held, on review by the Office of the Judge Advocate General of the Navy that a military commission had jurisdiction to try for treason a national of Japan, residing in Guam before and during the war, for treason by adhering to and aiding the enemy during the Japanese occupation of Guam; conviction reversed for failure of evidence of the overt acts. See 17 George Washington Law Review 283 (1949).

The following cases involved prosecutions for treason in which the reported decisions did not turn on points of treason doctrine or proof.

United States v. Monti, 100 F.Supp. 209 (E. D. N. Y. 1951), and 168 F.Supp. 671 (E. D. N. Y. 1958): Denials of motions to set aside and vacate judgment of conviction entered on defendant's plea of guilty and confession in open court of treason by aiding enemy by participation in enemy wartime radio propaganda program; venue properly laid, and other points sought to be raised are not properly raised on type of writ defendant filed. See also Ex pane Monti, 79 F.Supp. 651 (E. D. N. Y. 1948): Application to issue writ of habeas corpus denied; held, treason is a crime of such nature that it may be committed in a foreign country, and falls within statute conferring jurisdiction on the federal court.

Provoo v. United States, 215 F.(2d) 531 (C. C. A. 2d 1954), reversing 124 F.Supp. 185 (S. D. N. Y. 1954): Conviction of treason by aiding enemy by conduct while prisoner of war of Japanese, reversed for admission of prejudicial, irrelevant cross examination and error in denying defendant's motion to vacate judgment on basis of newly found evidence offered to show improper venue.


Attorney General Rodney recommended that the charge of treason be laid in the Hoxie case, as a salutary check on the New England opposition to the Embargo, which had progressed to such a point that Jefferson had proclaimed a state of insurrection and had called out the militia to enforce the law. See Cummings and McFarland, Federal Justice (1937) 68; Moulton, loc. cit. supra note 238.

The Hanway case arose at a time when conservative Northern opinion was anxious to show to the South evidence of the good faith and practicability of the Fugitive Slave Law as a partial answer to the Abolitionist agitation and the underground railroad. The apparent opportunity to make an early example led the Federal authorities to press the treason charge over the efforts of the state to assert its jurisdiction to prosecute for murder or at least riot. See Smith, Parties and Slavery (1906) 23, 24; 2 Warren, Supreme Court in United States History (Rev. ed. 1937) 229-30; Hensel, op. cit. supra Ch. 5, n. 40, at 62. Cf. pamphlet by A Member of the Philadelphia Bar, History of the Trial of Castner Hanway (1852) 84-85.

The earlier, and more successful, resort to the broad doctrine of levying of war, in the Whiskey Rebellion cases, likewise reflected a deliberate decision by the administration to employ the dread charge of "treason" as a salutary check to undesirable political tendencies. There is no evidence that the Federalists stirred the insurrection, but they seized on it with obvious relish as a means of tarring their opponents with the stigma of treason. See Baldwin, Whiskey Rebels (1939) 226, 269-70. It is only fair, however, to note that at its peak, the disaffection was close to a state of levying of war even in the strict sense of the term. Id. at c. VII.

President Adams' pardon of Fries and his fellows, after their conviction of treason for the forcible rescue from the Federal marshal of prisoners arrested under the hated property excise in 1799, seems to involve in substance an executive construction of the crime of levying war analogous to Mr. Justice Grier's insistence on pre-concert and specific intention to overthrow constituted authority. The questions which Adams posed to his heads of department, in seeking their advice on his disposition of Fries' petition for pardon, indicate clearly the bent of the President's mind: "4. Is it clear beyond all reasonable doubt that the crime of which they stand convicted, amounts to a levying of war against the United States, or, in other words, to treason? ... 6. Quo animo was this insurrection? Was it a design of general resistance to all law, or any particular law? Or was it particular to the place and persons? 7. Was it any thing more than a riot, high-handed, aggravated, daring, and dangerous indeed, for the purpose of a rescue? This is a high crime, but can it strictly amount to treason? 8. Is there not great danger in establishing such a construction of treason, as may be applied to every sudden, ignorant, inconsiderate heat, among a part of the people, wrought up by political disputes, and personal or party animosities? ..." 9 Works of John Adams (1854) 58.

Though he received unanimous advice that the case was properly held treason and did not in that light establish any undesirable precedent, on May 21, 1800, Adams gave a pardon by proclamation. Id. at 178. In a letter of March 31, 1815 to James Lloyd, justifying his conduct, Adams stated that his "judgment was clear, that their crime did not amount to treason," and then repeated the substance of point seven in his memorandum to the heads of departments. He also indicates, however, that his judgment was based largely on his appraisal of the defendants as ignorant of the nature of what they did. 10 Id. at 153, 154.

Adams' attitude towards the charge of "treason" against Fries is the more striking because of his strong condemnation of the disturbances, as reflected in his memorandum to the heads of departments, and in his letter to Jefferson, June 30, 1813. Id. at 47. 2 Adams, Life of John Adams (1871) 314-18. 1 Works, at 571-74, discusses the pardon, and comments that: "The view of treason opened in this case there is no room here to consider. It must infallibly come up for revision at some time or other in the courts of the United States." , Alexander James Dallas (1943) 79 ff.; (Note) 9 Fed. Cas Cf. Walters. 934, at 944-47 (1800).

Washington's pardons to those convicted in the Whiskey Rebellion cases apparently imply no similar doubt as to the policy of the legal doctrine under which the convictions were obtained, but represent the ordinary exercise of executive clemency. The leaders had escaped or had signed submissions to the government; the convicted Weigel was probably insane and Mitchell is put down by the historian of the Rebellion as a simpleton. See Baldwin, op. cit. supra, at 264.

Grier's charge in the Hanway case, as quoted in the text, suggests in part that the intent requisite to make out treason is not shown if it appears that defendants regarded a resort to force as necessary in defense against what they in good faith believe to be an unlawful threat of violence under color of authority. This seems also to be the view suggested by Governor Ford, of Illinois, in his comment upon the dubious character of the charge of treason under which the Mormon leader, Joseph Smith, was arrested in that state in 1844: "The overt act of treason charged against them consisted in the alleged levying of war against the State by declaring martial law in Nauvoo, and in ordering out the legions to resist the posse comitatus. Their actual guiltiness of the charge would depend upon circumstances. If their opponents had been seeking to put the law in force in good faith, and nothing more, then an array of military force in open resistance to the posse comitatus and the militia of the State, most probably would have amounted to treason. But if those opponents merely intended to use the process of the law, the militia of the State, and the posse comitatus, as catspaws to compass the possession of their persons for the purpose of murdering them afterwards, as the sequel demonstrated the fact to be, it might well be doubted whether they were guilty of treason." Ford, History of Illinois (1854) 337.

Here again, obviously, it would be the intent and not the act element of the offense which would be the defendants' bulwark.


In Pennsylvania v. Cribbs, 1 Add. 277 (Westmoreland Cty. Ct., Pa. 1795), an attempt to tar and feather the Federal commissioners sent to adjust the controversy involved in the "Whiskey Rebellion" was treated as riot. Cf. Pennsylvania v. Morrison, 1 Add. 274 (Allegheny Cty. Ct., Pa. 1795) (raising a Liberty Pole in disaffected area during visit of Federal commissioners; offense not specified). Even prior to the Fugitive Slave Law efforts to rescue fugitive slaves by force from their masters were charged as riots, though in some instances at least the intent was probably broadly directed against the institution of slavery rather than representing a concern for the particular Negro involved. See, e.g., State v. Connolly, 3 Rich. L. 337 (So. Car. 1831); Clellans v. Commonwealth, 8 Pa. St. 223 (1848); cf. The Trial of the Rev. Jacob Gruber, 1 American State Trials (Lawson ed. 1914) 69 (Frederick Cty. Ct., Md. 1819) (inciting slaves to insurrection). It is notable that the Fugitive Slave Law itself created a specific offense to cover such attempts. 9 Stat. 462 (1850).

Vigilantism has been treated as riot, though it represents an unlawful effort to supplant the constituted enforcement authorities. See Crawford v. Ferguson, 5 Okla. Cr. App. 377, 115 Pac. 278 (1911). In Commonwealth v. Jenkins, 12 American State Trials (Lawson ed. 1919) 488 (Boston Municipal Ct. 1825), an effort to pull down all brothels was charged to be a riot. Forcible efforts to deprive certain racial, religious, or political groups in the community of the protection of the law have been prosecuted as riots. See, e.g., Charges to Grand Jury in In re Riots of 1844, 2 Pa. Law Jour. Rep. 135, 275 (Quarter Sess. and Oyer & Ter., Phila. City and Cty. Ct. 1844); Shouse v. Commonwealth, 5 Pa. St. 83 (1847) ("Know Nothing" clashes with the Irish); The Trials of Winthrop S. Gilman and John Solomon, and others, for Riot, 5 American State Trials (Lawson ed. 1916) 528, 589 (Alton Municip. Ct., Ill.. 1838) (suppression of Abolitionist agitation — the Lovejoy riot); Bradford v. State, 40 Tex. Cr. 632, 51 S. W. 379 (Tex. Ct. Cr. App. 1899) (against employment of Mexican labor); Bolin v. State, 193 Ind. 302, 139 N. E. 659 (1923) ("the Hunkies must go"). Cf. Commonwealth v. Daly, 2 Pa. Law Jour. Rep. 361 (Quarter Ses. Phila. City and Cty. Ct. 1844); Commonwealth v. Hare, id. at 467 (1844) (prosecutions for murder growing out of the Know-Nothing riots); People v. Judson, 11 Daly 1 (N. Y. Com. Pleas 1849) (anti-English riot over the actor Macready; twenty-three killed in clash with militia).

And the theory under which the "civil rights" statutes were sought to be applied to the Ku Klux Klan was that of ordinary conspiracy to violate the laws rather than that of constructive treason. See The Trial of Members of the Ku Klux Klan, 9 American State Trials (Lawson ed. 1918) 593 ff. (C. C. D. S. Car. 1871). Compare the cautiously restricted construction of statutory offenses of conspiracy to prevent by force the execution of the laws, as attempted to be applied against efforts to coerce certain classes of the population, in Baldwin v. Franks, 120 U. S. 678 (1887) (Chinese) [but cf. Deady, D. J., In re Impaneling and Instructing the Grand Jury, 26 Fed. 749 (D. Ore. 1886)], and Haywood v. United States, 268 Fed. 795 (C. C. A. 7th, 1920) (coercion on government contractors).

Extreme denunciation of organized government in public meetings has been treated as riot or unlawful assembly. People v. Most, 55 Hun 609, 8 N. Y. Supp. 625 (N. Y. Sup. Ct. 1890), aff'd, 128 N. Y. 108, 27 N. E. 970 (1891) [cf. People v. Most, 171 N. Y. 423, 64 N. E. 175 (1902)]; Commonwealth v. Frishman, 235 Mass. 449, 126 N. E. 838 (1920). Demonstrations to influence the conduct of "relief" policy, eventuating in disturbances which probably were calculated, were prosecuted as riot or unlawful assembly in People v. Dunn, 1 Cal. App.(2d) 556, 36 P.(2d) 1096 0934); Commonwealth v. Egan, 113 Pa. Super. 375, 173 Atl. 764 (1934); State v. Solomon, 93 Utah 70, 71 P.(2d) 104 (1937); State v. Solomon, 96 Utah 500, 87 P.(2d) 807 (1939), see Ch. 5, n. 51 supra; State v.Moe, 174 Wash.303, 24 P.(2d) 638 (1933). Forcible efforts to prevent execution of process against debtors' property were treated as riot, though they took on the character of attempts to establish general policy rather than merely sympathetic efforts in behalf of particular distressed individuals. See Skilton, op. cit. supra Ch. 5, n. 44; Commonwealth v. Frankfeld, 114 Pa. Super. 262, 173 Atl. 834 0934); State v. Woolman, 84 Utah 23, 33 P.(2d) 640 (1934); State v. Frandsen, 176 Wash. 558, 30 P.(2d) 371 (1934). Demonstrations to influence the conduct of foreign policy, eventuating in breaches of the peace probably foreseen and intended, were prosecuted as riot in Commonwealth v. Spartaco, 104 Pa. Super, 1, 158 Atl. 623 (1932) and Commonwealth v. Kahn, 116 Pa. Super. 28, 176 Atl. 242 0935).

Commonwealth v. Paul, 145 Pa. Super. 548, 21 A.(2d) 421 (1941), treated as riot what seems probably an attempt by force to prevent technological change. There are of course many cases in which breaches of the peace occurring in the course of labor disputes, usually arising out of picketing, have been prosecuted as riot. The abortive indictments for levying of war in the Homestead Strike (see Ch. 5, n. 46 supra) seem to be the only attempt to use the law of treason to suppress labor conflict. That a strong prosecutor might have found a rationalization for this effort which Paxson, C. J., overlooked, is implied in the suggestion in (1892) 31 Am. L. Reg. (n.s.) 691, 700, that it would be treason if strike violence were shown to be intended to enforce a general public policy of collective bargaining. And Ex parte Jones, 71 W. Va. 567, 77 S. E. 1029 0913), over a strong dissent by Robinson, J., employs a rationale derived in part from the broader authorities on "levying war" to sustain the validity of detention of rioters for trial by military tribunals. The decision is not now regarded as sound authority. See Fairman, Law Of Martial Rule (1943) 168-70. A careful definition of the scope of "riot" is necessary to protect a social interest in free speech and a desirable play of competitive claims. See State v. Russell, 45 N. H. 83, 85 (1863); People v. Edelson, 169 Misc. 386, 7 N. Y. S.(2d) 323 (Kings Cty. Ct. 1938).

For clarity, it is desirable to repeat that the recitation of the foregoing cases is not intended to suggest that in any of them should the prosecution have been for "treason"; quite the contrary. But most of them could have been colorably brought within the 17th and 18th century English precedents as to what constituted levying of war. And since most of them obviously boil up out of tense public situations, the entire absence of any suggestion or attempt to employ the treason charge indicates that the broader reaches of the crime of levying war have been so thoroughly buried under different conceptions of public policy as to make it a clear abuse of power to seek to revive them.


On the English material, see Chapter 2; on the history of the Federal Convention of 1787, see pp. 133-134, 144-145 supra, and Cramer v. United States, 325 U.S. 1, 28-30 (1945). And see Paterson, C. J., in charge to jury in United States v. Mitchell, 26 Fed. Cas. No. 15,788, at 1,280 (C. C. D. Pa. 1795); Iredell, C. J., Charge to Grand Jury in connection with Case of Fries, 9 Fed. Cas. No. 5, 126, at 840 (C. C. D. Pa. 1799); Peters, D. J., in colloquies with counsel on first trial of Fries, id. at 891, 916; Iredell, C. J., in charge to jury in first trial of Fries, id. at 914, Peters, D. J., in charge to jury in first trial of Fries, id. at 909; Chase, C. J., in charge to jury in second trial of Fries, 9 Fed. Cas. No. 5,127, at 931 (C. C. D. Pa. 1800); Ex parte Bollman, 4 Cranch 75, 126 (U. S. 1807); United States v. Burr, 25 Fed. Cas. No. 14,692a, at 13-14 (C. C. D. Ky. 1807) (on motion to commit), United States v. Burr, 25 Fed. Cas. No. 14,693, at 168, 169 (C. C. D. Va. 1807) (direction to jury); United States v. Lee, 26 Fed. Cas. 907, No. 15,584 (C. C. D. C. 1814); United States v. Hoxie, 26 Fed. Cas. No. 15,407, at 399, 400 (C. C. D. Vt. 1808); United States v. Pryor, 27 Fed. Cas. No. 16,096, at 628, 630 (C. C. D. Pa. 1814); Story, C. J., Charge to Grand Jury, 30 Fed. Cas. No. 18,275, at 1,046 (C. C. D. R. I. 1842); Sprague, D. J., Charge to Grand Jury, 30 Fed. Cas. No. 18,263, at 1,016 (D. Mass. 1851); Kane, D. J., Charge to Grand Jury, 30 Fed. Cas. No. 18,276, at 1,048 (C. C. E. D. Pa. 1851); Grier, C. J., in charge to jury in United States v. Hanway, 26 Fed. Cas. No. 15.299, at 126 (C. C. E. D. Pa. 1851); United States v. Greiner, 26 Fed. Cas. No. 15,262, at 39 (E. D. Pa. 1861); Field, C. J., in charge to jury in United States v. Greathouse, 26 Fed. Cas. No. 15.254, at 22 (C. C. N. D. Cal. 1863); Mayer, D. J., in charge to jury in United States v. Fricke, 259 Fed. 673, 677 (S. D. N. Y. 1919); Learned Hand, C. J., on motion to direct a verdict in United States v. Robinson, 259 Fed. 685, 690 (S. D. N. Y. 1919); United States v. Werner, 247 Fed. 708, 709-10 (E. D. Pa. 1918); trial court charge in United States v. Stephan, 50 F. Supp. 738, 740, n.1, at 742-43 (E. D. Mich. 1943), charge approved, 133 F.(2d) 87, 99 (C. C. A. 6th, 1943); United States v. Cramer, 137 F.(2d) 888, 893 (C. C. A. 2d, 1943); United States v. Magtibay, 2 Philipp. 703, 705 (1903); United States v. de los Reyes, 3 Philipp. 349, 357 (1904); In Riots of 1844 (charge to grand jury by King, P. J.), 4 Pa. Law Jour. Rep. 29, 35, quoted also at 26 Fed. Cas. 116.

Two cases deviate from the standard distinction of the intent and act elements of the crime. In United States v. Hodges, 26 Fed. Cas. 332, No. 15,374 (C. C. D. Md. 1815), the defendant was indicted for adhering to the enemy by procuring the release of British prisoners by his fervent representations to the guards of British threats to burn his home village in retaliation. Both Duval, C. J., and Houston, D. J., agreed that the judgment on the law as well as on the facts was for the jury. But in his charge, Mr. Justice Duval treated the overt act here charged as itself conclusive evidence of the intent: "First. Hodges is accused of adhering to the enemy, and the overt act laid consists in the delivery of certain prisoners, and I am of opinion that the overt act laid in the indictment and proved by the witness is high treason against the United States.

"Second. When the act itself amounts to treason it involves the intention, and such was the character of this act. No threat of destruction of property will excuse or justify such an act; nothing but a threat of life, and that likely to be put into execution." Id. at 334.

Houston, D. J., said that he did not "entirely agree" with the chief justice on these points, but did not specify further his disagreement.

Ibid. The jury acquitted. Duval's charge seems to state an unnecessarily mechanical rule, turning on the showing of an act which "itself amounts to treason;" the facts seem to present the more familiar situation of mixed motives, and the jury might have been charged in conventional terms that a defendant cannot escape the plain consequences of his conduct by pleading a personal motive therefor. The jury's acquittal probably represents a de facto rule recognizing an excuse which legal doctrine would find it dangerous to crystallize.

In United States v. Haupt, 136 F.(2d) 661, 665 (C. C. A. 7th, 1943), rev'g, 47 F. Supp. 836 (N. D. Ill.. 1942), the court rejected defendants' argument that the indictment had improperly joined different offenses, since different overt acts of aid and comfort were alleged, in which not every defendant was charged to have participated. The court said that "the constitutional requirement 'of two Witnesses to the same overt Act' forms no part of the definition of the offense. It relates solely to the proof required before a conviction can be had. The crime itself may be established in the same manner as any other crime, but before there can be a conviction, an act in its promotion must be established by two witnesses. In other words, the two-witness provision of the Constitution is an evidential requirement prerequisite to conviction. Moreover, the constitutional requirement 'of two Witnesses to the same overt Act' appears to be an implied recognition that there may be more than one act committed in the execution of the offense. Otherwise, use of the word 'same' would seem to be superfluous." Id. at 665.

The court cites nothing but the words of the constitutional provision for its argument; and on this basis alone, its contention seems extreme, in view of the plain implication of overt acts in the "levying" of war and the "giving aid and comfort." Further, as has been noted, the history of the successive drafts of the treason clause in the Convention reflects an understanding that the crime included a distinct act element. On the merits the court's ruling is open to question; and that the court had some question of it itself is indicated by its caution that if its ruling on the indictment leaves the door open to unfairness, this may be dealt with at the trial stage by allowance of motions for separate trials. In fact, the court reversed in this case because it felt that the trial court had abused its discretion by denying such severance after the evidence for the prosecution was in and showed considerable variations in the charges proven in connection with various defendants. In the context of the history of the case as a whole, the court's ruling thus takes on the character of an awkward rationalization employed to dispose of a point of pleading. The opinion of Learned Hand, C. J., in United States v. Robinson, 259 Fed. 685, 690 (S. D. N. Y. 1919), does not deny, but rather firmly asserts, according to its own theory, the separate character of the intent and act elements, insisting that the requisite act should be more than such as merely makes out an attempt.


Staundford, Les Plees del Corone (1560) has nothing pertinent to the attempt aspect of "treason," except, like all his successors, he in effect notes that compassing is itself a crime in the nature of an attempt ("Cest compassement, ou imagination, sauns reducer ceo al effect, est grand treason.. .. " Lib. 1, cap. 2. H). This is not to say that early law would view treason as merely an attempt at some further result, however. Coke begins his treason chapter by noting early authority demonstrating the maxim "voluntas reputabatur pro facto;" i.e., early authority regarded the criminal intent in all serious crimes, at least when something was done towards its effectuation, as dangerous enough to be regarded as the substantive crime itself. Coke, Third Institute (5th ed. 1671) 5. Coke perhaps supports, in his doctrine that a conspiracy to levy war is not the crime of levying war, Judge Hand's theory, expressed in United States v. Robinson, 259 Fed. 685, 689 (S. D. N. Y. 1919), that in early history attempted treason was not treason. Coke, Third Institute (5th ed. 1671) 9.

However, Pollock and Maitland and Holdsworth explain this not as arising from any aversion to treating treason as an attempt, but as arising from the tenacity of the feudal concept of mutuality in the bond of lord and vassal, which entitled the aggrieved vassal to war on a lord who had broken the bond. 2 Pollock and Maitland, History of English Law (1895) 503; 8 Holdsworth, History of English Law (1925) 331.

Quaere, however, whether the crime does not, practically, take on the character of attempt when Coke approvingly states that it is not necessary that there be a great number of persons to levy war. Coke, Third Institute (5th ed. 1671) 9. Coke's stress on the statute's declaration that the defendant be "provablement . .. attaint" (id. at 12) might be deemed to support Judge Hand's stress that the object of the overt act requirement is to bar patchwork constructions of evidence; Coke explains this means "upon direct and manifest proof, not upon conjecturall presumptions, or inferences, or straines of wit, but upon good and sufficient proof.. .." He is not here directly interpreting the meaning of the overt act element; but in the next section, in which he does undertake to do so, he says it "doth also strengthen the former exposition of the word [provablement] that it must be probably, by an open act, which must be manifestly proved." Id. at 12. Judge Hand's distinction of adhering and levying from compassing on the ground that in the first two "the treason lay in hostile acts" may be supported by innuendo in Coke's statement that the act requirement "relateth to the severall and distinct treasons before expressed, (and specially to the compassing and imagination of the death of the King, &c. for that it is secret in the heart).. .." Id. at 14.

1 Hale, History of the Pleas of the Crown (Emlyn ed. 1736-1739) 131, 150, in effect introduces into the exposition of the crime of levying war a definition which makes it much of the nature of an attempt, when he says that the mere assembly of men in force, and their marching in military arrays, make out a levying; or the mere assembly in present force alone. Id. at 138 (case of the Earl of Essex). And he states that it is not necessary that a blow be struck. Id. at 144, 152. His discussion of adherence is very brief, and the examples given are of completed aid and comfort, as by delivery of a castle to the enemy. Id. at 167-68.

1 Hawkins, A Treatise of the Pleas of the Crown (7th ed. 1795) 86, 94, in effect makes Judge Hand's point, that the design is itself the complete crime in compassing, citing the case of the regicides. But Hawkins also recognizes that the mere keeping together of armed men against the king's command is a levying of war (id. at 90); and that there may be a levying, though there is no actual fighting. Id. at 91. He is brief to the point of not being helpful in his definition of adherence; but he cites with approval the ruling that merely cruising with intent to destroy the king's subjects is adherence when done with the king's enemies. Id. at 91.

Foster, A Report of Some Proceedings on the Commission for the Trial of the Rebels in the Year 1746 in the County of Surry; and of other Crown Cases (3d ed. 1792) 195, introduces the first real analysis of underlying policy, when he justifies the doctrine that in compassing the design is itself the completed offense, by pointing to the importance to the security of the community of the king's safety, which supports the wisdom of striking at an early stage at threats to this security. Foster contributes little additional in defining the degree of accomplished resistance to lawful authority that is necessary to constitute levying of war. Regarding adherence, he approves the decisions finding a completed offense, though the aid and comfort was intercepted, "for the party in sending did all he could; the treason was complete on his part though it had not the effect he intended." Id. at 217. He simply cites cases and makes no reference to his discussion of the policy behind the broad scope of compassing, though he does take pains to note that the defendants in the cited cases were also charged with compassing. He states that the rulings, considered as defining the crime of adherence, "may very well be supported," but in context this appears to mean only that they are supported by precedents. Lumping both levying and adhering together, he recognizes, without analyzing the underlying policy, that they may be made out without showing that the threat to the state has actually been brought to fruition: "An assembly armed and arrayed in a warlike manner for any treasonable purpose is bellum levatum, though not bellum percussum. Listing and marching are sufficient overt-acts without coming to a battle or action. So cruising on the King's subjects under a French commission, France being then at war with us, was holden to be adhering to the King's enemies, though no other act of hostility was laid or proved." Id. at 218.

The upshot of this is scant. Judge Hand really has nothing more than the words of the Statute of Edward III on which to base his argument. Coke and Hale seem to have relied likewise on the contrast between the terms in which the three main branches of treason are there described, to explain why the conspiracy to levy war was not sufficient to make out a levying of war. But the scope of levying war seems, from Coke on, to make that offense analogous to an attempt in the solicitude shown for taking preventive action against a threat to state security. Analysis of the crime of adherence is almost wholly lacking, and, when it appears, amounts to no more than a citation of decisions which look in the same direction as developments under the head of levying war.