TREASON 851 ie king, queen, or prince, or levying war against the king, or adhering to the king's enemies ; but all these offences were to be proved by some overt act. In some of the subsequent reigns this excellent provision was evaded by construction, or the statute was dis- regarded, or new ones made. Thus, by the 32d of Henry VIII. it was made high treason to accept, take, judge, or believe the king's mar- riage with Anne of Cleves as legal and valid. But the leading provisions of the statute of Edward III. are still the law of England, and the reasonable construction of its language by the courts of England has been generally fol- lowed by the courts of the United' States in construing the provisions of our own constitu- tions and laws. By the 1st of Edward VI. the provision was introduced which we have copied, requiring, for the conviction of one charged with treason, two sufficient and lawful wit- nesses; but this provision was in many in- stances shamefully perverted. Thus when only one living witness could be found who would testify to Algernon Sidney's treason, Jeffreys decided that garbled extracts from his writings might be read as the other witness, and on this testimony he was convicted and executed; and no greater dishonor rests on the name of Bacon than that he assisted his master, King James, in corrupting the judges of the king's bench into a willingness to convict of treason one Peacham, a parish priest, on the evidence of a sermon which he had never delivered, and which was found by searching his study. Out of the many civil conflicts and commotions in England, and especially the wars of the roses, grew one rule, still in force, and resting on the soundest justice and reason. During those ages of constant disturbance, when there were frequently more persons than one who claimed the crown, and, so far as they could, exercised royal authority, almost every person incurred the danger of treason, in case the claimant to whom he adhered was defeated ; and for this cause, or on this pretence, multitudes of men of every rank perished on the scaffold. But from the obvious absurdity of exacting from every individual a sound, or rather a fortunate judgment as to the obscure and complicated grounds on which the claim to sovereignty often rested, it became and still remains a well settled rule, that no one incurs the guilt of treason by adherence to a king or government de facto, although that king or government has but the right of a successful rebel, and loses it all by a subsequent defeat. In considering the crime of treason in the United States, we must remember that there may be treason against the United States, and also treason against any one of the states. Looking first to treason against the United States, the foundation of the law itself, and of our knowledge of it, must be the clause in the constitution already quoted ; and as there is no common law of the United States, this clause would have remained inoperative but for the act of congress of 1790, 'chap. 38, sec. 1, whereby it was enacted, "that if any person or persons owing allegiance to the United States of America shall levy war against them, or shall adhere to their enemies, giving them aid and comfort within the United States or elsewhere, and shall be thereof con- victed, on confession in open court, or on the testimony of two witnesses to the same overt act of the treason whereof he or they shall stand indicted, such person or persons shall stand adjudged guilty of treason against the United States, and shall suffer death." When the courts came to the construction and appli- cation of that act, they very properly made use of the principles and the jurisprudence of the common law ; and they could do this the better, because the clause of the constitution is substantially the same as a provision of the statute of Edward III., and the best ability of England had been carefully employed about that statute. For a judicial exposition of that clause and that statute, we must look to the trial of Burr, and of Bollman and Swartwout (4 Cranch, pp. 75 to 137), although these are not the only cases in which the same subject has been considered. The first question is : What is a levying of war against the United States, within the meaning of the statute? In the first place, the levying of war must be actual; it must be carried out into some practical operation and effect. No intention, and no extent or thoroughness of preparation or of conspiracy for war, constitutes the crime of treason until the war actually begins. Some kind of force or violence, it is said, must be used. But it would seem that this force may be what the law would call constructive force; and it may be very slight; for it certainly need not be sufficient to accomplish either the general purpose of the war, or the particular effect proposed. But, if there be any overt act of war, then every one aiding and abet- ting this act of war, however remotely, does himself levy war and commit treason. It must be difficult to determine always what this rule requires. Thus, Marshall declares that if an army be actually raised for the avowed purpose of carrying on war against the United States, and subverting their govern- ment, the point must be weighed very deliber- ately before a judge would venture to decide that an overt act of levying war had not been committed by a commissary or purchaser who never saw the army, but who, knowing its ob- ject and leaguing himself with the rebels, supplied that army with provisions; or by a recruiting officer, holding a commission in the rebel service, who, though never in camp, executed a particular duty required of him. Hence it would follow, that if there be an act of levying war against the United States, per- sons may be participators of that act, and of the crime which it constitutes, although they reside as far as possible from its actual locality. The prevailing rule of the criminal law, that there may be principals and accessories to a
