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of future importance, in that it recognizes an authority in the courts, derivable from the Eighth Amendment, to hold unconstitutional punishments, legislatively provided, which, in the opinion of the court, are unduly severe. The court thus held that the constitutional inhibition applies not only when a mode of punishment is provided for, which, in itself, is cruel or unusual, but where a penalty, not in itself cruel or unusual becomes such by being unduly severe. Thus, as is said by Justice White in a dissenting opinion, a doctrine is declared which "limits the legislative discretion in determining to what degree of severity an appropriate or usual mode of punishment may, in a particular case, be inflicted, and therefore endows the courts with the right to supervise the exercise of legislative discretion as to the adequacy of punishment."

After an extended review of the authorities, Justice White summarizing his view of the constitutional provision says: "In my opinion, the review which has been made demonstrates that the word cruel, as used in the amendment, forbids only the lawmaking power, in prescribing punishment for crime and the courts in imposing punishment from inflicting unnecessary bodily suffering through a resort to inhuman methods for causing bodily torture, like or which are of the nature of the cruel methods of bodily torture which had been made use of prior to the bill of rights of 1689, and against the recurrence of which the word cruel was used in that instrument.

"In my opinion the previous considerations also establish that the word unusual accomplished only three results: First, it primarily restrains the courts when acting under the authority of a general discretionary power to impose punishment, such as was possessed at common law, from inflicting lawful modes of punishment to so unusual a degree as to cause the punishment to be illegal because to that degree it cannot be inflicted without express statutory authority; second, it restrains the courts in the exercise of the same discretion from inflicting a mode of punishment so unusual as to be impliedly not within its discretion and to be consequently illegal in the absence of express statutory

authority; and, third, as to both the foregoing it operated to restrain the lawmaking power from endowing the judiciary with the right to exert an illegal discretion as to the kind and extent of punishment to be inflicted."

§ 438. Treason.

The power of Congress with reference to both the definition and punishment of treason is limited by Section III of Article III of the Constitution. The three clauses of this section provide as follows:

"Treason against the United States shall consist in levying war against them, in adhering to their enemies, giving them aid and comfort."

"No person shall be convicted of treason, unless on the testiof two witnesses to the same overt act, or on confession in open court."

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"The Congress shall have power to declare the punishment of treason; but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted." 90

The purpose of these provisions is to exclude the possibility of the Federal Government, through either its judicial or legislative branches, following the precedents of English law and practice, and declaring a great variety of acts to constitute treason and punishable as such.

Following in the main the words of the Constitution Congress has by statute declared that "whoever, owing allegiance to the United States levies war against them, or adheres to their enemies giving them aid and comfort within the United States or else where, is guilty of treason.'

90 Art. III, Sec. III.

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91 35 Stat. at L., chap. 321, p. 1088, § 1. The phraseology of section 5331 of the Rev. Stat. is here slightly changed. By section 2, the punishment for treason is fixed at death, or, at the discretion of the court, imprisonment at hard labor for not less than four years, and a fine of not less than ten thousand dollars, and disqualification from holding office under the United States.

§ 439. May Be Committed by Aliens.

Treason is a breach of allegiance, and it will be observed that the statute restricts the definition of the offense to persons owing allegiance to the United States.

This allegiance may be one of full citizenship, or one based upon the presence of an alien, and the commission of the treasonable act, within the territorial limits of the United States. In an earlier chapter it has been pointed out that an alien within the territorial limits of a State, whether domiciled there or not, owes for the time being a qualified allegiance to that State. He enjoys the protection of its laws, and may be guilty of treason if he wages war against or gives comfort or aid to the enemies of that sovereignty.

92

In Radich v. Hutchins the court say: "If at the time the transaction took place, which has given rise to the present action, the plaintiff was a subject of the Emperor of Russia, as he alleges, that fact cannot affect the decision of the case, or any question presented for our consideration. He was then a resident of the State of Texas, and engaged in business there. As a foreigner domiciled in the country, he was bound to obey all the laws of the United States not immediately relating to citizenship, and was equally amenable with citizens to the penalties prescribed for their infraction. He owed allegiance to the government of the country so long as he resided within its limits, and can claim no exemption from the statutes passed to punish treason, or the giving of aid and comfort to the insurgent States. The law on this subject is well settled and universally recognized."

§ 440. Domicile not Necessary.

In this case the alien was domiciled in the United States, but it would not appear that domiciliation is necessary as a basis for holding the alien liable for treason, if the act of treason be committed within the territorial jurisdiction of the United States.

92 Carlisle v. United States, 16 Wall. 147; 21 L. ed. 426; Radich v. Hutchins, 95 U. S. 210; 24 L. ed. 409.

93 95 U. S. 210; 24 L. ed. 409.

If the act be committed by the alien outside of such jurisdiction, no treason can be alleged."4

§ 441. No Distinction in United States between High and Petit

Treason.

The distinction between "high high" and "petit" treason is not known to American constitutional law.95 Or rather, under our law, petit treason no longer exists. It is now simply murder.

§ 442. Misprision of Treason.

Misprision of treason is defined and its punishment provided for by Section 5333 of the Revised Statutes.96

The constitutionality of this provision was considered and not questioned in United States v. Wiltberger."

§ 443. What Constitutes Treason.

By the definition of the Constitution treason to the United States may be charged only in cases where the accused has levied war against the United States, adhered to its enemies, or given them aid and comfort; and, for conviction, there must have been an overt act.

The distinction between a mere riot, or resistance to the execution of a law, and treason is not always easy to draw, but in general the authorities hold that the resistance to public authority, in order to constitute a levying of war and, therefore, treason, must amount to an effort directly to overthrow the government, or to

94 United States v. Villato, 2 Dall. 370; 1 L. ed. 419.

95 Statute 25 Edw. III defines petit treason as the killing of a husband by a wife, of a master by his servant, or of a prelate by an ecclesiastic owing obedience to him.

96"Whoever owing allegiance to the United States and having knowledge of the commission of any treason against them, conceals, and does not, as soon as may be, disclose and make known the same to the President, or to some judge of the United States, or to the governor, or to some judge or justice of a particular State, is guilty of misprision, and shall be imprisoned not more than seven years, and fined not more than one thousand dollars." Sec. 2, Chap. 321, 35 Stat. at L. 1088, Act March 2, 1909.

975 Wh. 76; 5 L. ed. 37.

prevent a law from being executed not simply in a particular instance, but generally.

Thus in United States v. Mitchell98 it was held by a federal court that an insurrection of armed men, the object of which was to suppress the excise offices and to prevent by force and intimidation the execution of an act of Congress, was a levying of war, and, as such, treason. Upon the other hand, it was held in United States v. Hoxie" that if the resistance offered to the exceution of the law had no public purpose in view, treason was not committed, however great the degree of force employed.

§ 444. Enlistment of Men Does not Amount to Levying War. The most careful consideration of the definition of treason by the Supreme Court is that given in Ex parte Bollman.1 In its opinion in that case the court say: "To constitute that specific crime for which the prisoners now before the court have been committed, war must be actually levied against the United States. However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war, and actually to levy war, are distinct offenses. The first must be brought into open action by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed. So far has this principle been carried, that, in a case reported by Ventris, and mentioned in some modern treatises on criminal law, it has been determined that the actual enlistment of men to serve against the government does not amount to levying war. It is true that in that case the soldiers enlisted were to serve without the realm, but they were enlisted within it, and if the enlistment for a treasonable purpose could amount to levying war, then war had been actually levied. It is not the intention of the court to say that no individual can be guilty of this crime who has not appeared in arms against his country. On the contrary, if war be actually

98 2 Dall. 348; 1 L. ed. 410.

99 1 Paine (U. S.), 265.

14 Cr. 75; 2 L. ed. 554.

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