Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/678

 670 occasion. 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 offences. 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.

§ 1795. 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 levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those, who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors. But there must be an actual assembling of men for the treasonable purpose, to constitute a levying of war.