and general character, does not amount to treason;1 nor does the mere enlistment of men into service.2. There must be, to constitute an actual levy of war, an assemblage of persons met for a treasonable purpose, and some overt act done, or some attempt made by them, with force, to execute, or towards executing, that purpose. There must be a present intention to proceed to the execution of the treasonable purpose by force. The assembly must be in a condition to use force, if necessary, to further, or to aid, or to accomplish their treasonable design. If the assembly is arrayed in a military manner for the express purpose of overawing or intimidating the public, and to attempt to carry into effect their treasonable designs, that will, of itself, amount to a levy of war, although no actual blow has been struck or engagement has taken place. So, aiding a rebellion, by fitting out. a vessel to cruise against the government rebelled against in behalf of the insurgents, is levying war, whether the vessel sails or not. So is a desertion to, or voluntary enlistment in, the service of the enemy.5 3 In England," levying war" is held to mean: 1st. Attacking, in the manner usual in war, the Queen herself or her military forces, acting as such by her orders in the execution of their duty; 2d. Attempting 1 United States v. Hoxie, 1 Paine C. Ct. 265; United States v. Hanway, 2 Wall. Jr. C. Ct. 139. 2 Ex parte Bollman, 4 Cranch (U. S.), 75. 8 Burr's Trial, 401. See also 14 Law Reporter, p. 413. 4 United States v. Greathouse, 2 Abb. C. Ct. 364. 5 United States v. Hodges, 2 Wheeler's Cr. Cas. 477; Roberts' Case, 1 Dall. (Pa.) 39; McCarty's Case, 2 Dall. (Pa.) 86. by an insurrection of whatever nature, by force or constraint, to compel the Queen to change her measures or counsels or to intimidate or overawe both Houses or either House of Parliament; and, 3d. Attempting, by an insurrection of whatever kind, to effect any general public object. But an insurrection, even conducted in a warlike manner, against a private person, for the purpose of inflicting upon him a private wrong, is not levying war, in a treasonable sense. Adhering to the Queen's enemies is held to be active assistance within or without the realm to a public. enemy at war with the Queen. Rebels may be public. enemies, within the meaning of the rule.1 § 214. Misprision of treason is the concealment of, by one having knowledge, or the failure to make known to the government, any treason committed or (in some of the States) contemplated.2 § 215. Evidence.—The rule is incorporated into the Constitution of the United States and into those of most of the States, that treason can only be proved by the evidence of two witnesses to the same overt act, or by confession in open court. Unless the overt act is so proved, all other evidence is irrelevant. But an overt act being proved by two witnesses, all other requisite facts may be proved by the testimony of a single witness.4 The common-law rule was that there must be two 1 Stephen's Dig. Cr. Law, arts. 53 and 54. 2 See the constitutions and statutes of the several States. 8 United States v. Burr, 4 Cranch, 493. 4 United States v. Mitchell, 2 Dall. (Pa.) 348. witnesses; but it was held sufficient if one testified to one overt act, and another to another. And this may be the rule now in those States whose constitutions or statutes do not contain the explicit language of the Constitution of the United States. The ordinary rules of evidence generally prevail in the proof of misprisions.2 A confession not in court may be proved by the testimony of one witness, as corroborating other testimony in the case; but in those States prohibiting conviction unless upon confession in open court, it cannot be made the substantive ground of conviction.3 1 Stat. 7 W. III. c. 3, § 2; R. S. New York, vol. ii. p. 890, § 15; 3 Greenl. Ev. § 246 and notes. 2 3 Greenl. Ev. § 247. & Roberts' Case, 2 Dall. (Pa.) 39; McCarty's Case, 2 Dall. (Pa.) 86 " INDEX. [THE REFERENCES ARE TO THE SECTIONS.] Abduction by the common law, what, 44. for purpose Abortion not an offence at common law, 45. both parties to, guilty, 45. attempt to commit, indictable, 45. Accessory, who is, 30-35. none in manslaughter or treason, 30, 32 Accomplice, evidence of, 36. who is, 36, 70. who is not, 36, 45. Agent in embezzlement, who is, 98, 99. Adultery defined, 46. no offence at common law, 46. not everywhere a crime, 30. open and notorious," what, 46. Affirmation defined, 184. Affray defined, 47. two persons requisite in an, 47. Apostasy not an offence in this country, 48. dwelling-house," meaning of, in, 49. occupation in, what, 52. motive and intent in, 53. burning" defined, 54. Assault defined, 55. force in, must be unlawful, 56. Assault, fraud vitiates consent in, 56. consent to, how far an excuse, 56, 61. application of force, mode of, in, 57, 58. threat of personal injury in, 59. Assembly, unlawful, what, 203. Attempt, criminal, defined, 28, 29. offer to accept a bribe, an, 69. Autrefois acquit and convict, plea of, 40. Barratry defined, 65. fraud, what amounts to, in, 65. Barretry defined, 66. is a habit, 66. by whom it may be committed, 66. common law of, not generally adopted in this country, 66. Battery defined, 55. Benefit of clergy, what, 42. Bestiality defined, 70. Bigamy defined, 67. gist of the offence, 67. Blasphemy defined, 68. instances illustrative, 68. Brawler, common, 66, 182. Bribery at common law defined, 69. an offer to bribe, or accept a bribe, an attempt, 29, 69. Buggery defined, 70. not an offence in some States, 70. not regarded as criminal by some Christian nations, 70. must be per anum, 70. Burden of proof in criminal cases, 37. |