« 上一頁繼續 »
and to all, not a single expression should be introduced, but such as could show in its favour, that it was recommended by the mature experience, and ascertained by the legal interpretation, of numerous revolving centuries.
To the examination, and construction, and well designated force of those expressions, I now solicit your strict attention.
“Treason consists in levying war against the United States.” In order to understand this proposition accurately and in all its parts, it may be necessary to give a full and precise answer to all the following questions. 1. What is meant by the expression “levying war ?" 2. By whom may the war be levied? 3. Against whom must it be levied ?
To each of these questions I mean to give an answer if possible, a satisfactory answer ; but not in the order, in which they are proposed. I begin with the second_by whom may the war spoken of be levied ? It is such a war as constitutes treason. The answer then is this: the war must be levied by those who, while they levy it, are at the same time guilty of treason. This throws us back necessarily upon another question-who may commit treason against the United States ? To this the answer is-those who owe obedience to their authority. But still another question rises before us—who are they that owe obedience to that authority? I answer those who receive protection from it. In the monarchy of Great Britain, protection and allegiance are universally acknowledged to be rights and duties reciprocal. The same principle reigns in governments of every kind. I use here the expression obedience instead of the expression alle.
giance; because, in England, allegiance is considered as due to the natural, e as well as to the moral person of the king; to the man, as well as to the represented authority of the nation. In the United States, the authority of the nation is the sole object on one side. An object strictly corresponding to that, should be the only one required on the other side. The object strictly corresponding to authority is, obedience to that authority. I speak, therefore, with propriety and accuracy unexceptionable, when I say, that those who owe obedience to the authority, are such as receive the protection, of the United States.
This close series of investigation has led us to a standard, which is plain and easy, as well as proper and accurate-a standard, which every one can, without the possibility of a mistake, discover by his experience, as well as by his understanding by what he enjoys, as well as by what he sees. Every one has a monitor within him, which can tell whether he feels protection from the authority of the United States : if he does, to that authority he owes obedience. On the political, as well as on the natural globe, every point must have its antipode. Of obedience the antipode is treason.
I have now shown, by whom the war may be levied. On this subject, a great deal of learning, historical, legal, and political, might be displayed; and changes might easily be rung on the doctrines of natural, and local, and temporary, and perpetual allegiance. I purposely avoid them. The reason is, that so much false is blended with so little genuine intelligence, as to render any discovery you would make an inadequate compensation for your trouble in searching for it. The rights and duties of protection and obedience may, I think, in a much more plain and direct road, be brought home to the bosom and the business of every one.
c 1. Bl. Com. 371.
I now proceed to another question-what is meant by the expression “ levying war?" From what has been said in answer to the former question, an answer to this is so far prepared as to inform us, that the term war cannot, in this place, mean such a one as is carried on between independent powers. The parties on one side are those who owe obedience. , All the curious and extensive learning, therefore, concerning the laws of war as carried on between separate nations, must be thrown out of this question. This is such a war as is levied by those who owe obedience-by citizens; and therefore must be such a war, as, in the nature of things, citizens can levy.
The indictments for this treason generally describe the persons indicted as “ arrayed in a warlike manner.” As where people are assembled in great numbers, armed with offensive weapons, or weapons of war, if they march thus armed in a body, if they have chosen commanders or officers, if they march with banners displayed, or with drums or trumpets: whether the greatness of their numbers and their continuance together doing these acts may not amount to being arrayed in a warlike manner, f deserves consideration. If they have no military arms, nor march or continue together in the posture of war; they may be great rioters, but their conduct does not always amount to a levying of war.
f 1. Hale. P. C. 131. 150.
& Id. 131.
If one, with force and weapons invasive or defensive, hold and defend a castle or fort against the publick power; this is to levy war. So an actual insurrection or rebellion is a levying of war, and by that name must be expressed in the indictment.
But this question will receive a farther illustration from the answer to the third question; because the fact of levying war is often evinced more clearly from the purpose for which, than from the manner in which, the parties assemble. I therefore proceed to examine the last question—against whom must the war be levied ? It must be levied against the United States.
The words of the statute of treasons are, one levy war against the king.” I have before observed that, in England, allegiance is considered as due to the natural, as well as to the moral person of the king. This part of the statute of treasons has been always understood as extending to a violation of allegiance in both those points of view-to the levying of war not only against his person, but also against his authority or laws.i The levying of war against the United States can, for the reasons already suggested, be considered only in the latter view.
The question now arising is the following—Is such or such a war levied against the United States ? This question, as was already intimated, will be best answered by considering the intention with which it was levied. I If it is levied on account of some private quarrel, or to
3. Ins. 10.
i 1. Haw. 37. 4. Bl. Com. 81. Fost. 211.
j Fost. 208.
take revenge of particular persons, it is not a war levied against the United States. A rising to maintain a private claim of right; to break prisons for the release of particular persons, without any other circumstance of aggravation; or to remove nuisances which affect, or are thought to affect, in point of interest, the parties who assemble--this is not a levying of war against the United States." Insurrections in order to throw down all inclosures, to open all prisons, to enhance the price of all labour, to expel foreigners in general, or those from any single nation living under the protection of government, to alter the established law, or to. render it ineffectual—insurrections to accomplish these ends, by numbers and an open and armed force, are a levying of war against the United States. m,
The line of division between this species of treason and an aggravated riot is sometimes very fine and difficult to be distinguished. In such instances, it is safest and most prudent to consider the case in question as lying on the side of the inferiour crime.”
Treason consists in “ adhering to the enemies of the United States, giving them aid and comfort.” By enemies, are here understood the citizens or subjects of foreign princes or states, with whom the United States are at open war. But the subjects or citizens of such states or princes, in actual hostility, though no war be solemnly declared, are such enemies. The expressions “ giving them aid and comforı” are explanatory of what is meant
k Fost. 209.
i Id. 210.
m Id. 211, 213.
1. Hale. P. C. 146.
o Fost. 219.