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
* 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
* 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
*** 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
** 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
** 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
*** 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
* 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
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
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
** 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
** 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
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
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
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
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.
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
"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
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