"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, . . . such person or persons shall be adjudged guilty of treason against the United States, and shall suffer death."- Statute, April 3O, 1790, Section 1.
The Constitution itself, uses no such word as "allegiance," "sovereignty’’ "loyalty," "subject," or any other term, such as is used by other governments, to signify the services, fidelity, obedience, or other duty, which the people are assumed to owe to their government, regardless of their own will in the matter. As the Constitution professes to rest wholly on consent, no one can owe allegiance, service, obedience, or any other duty to it, or to the government created by it, except with his own consent.
The word allegiance comes from the Latin words ad and ligo, signifying to bind to. Thus, a man under allegiance to a government, is a man bound to it; or bound to yield it support and fidelity. And governments, founded otherwise than on consent, hold that all persons born under them, are under allegiance to them; that is, are bound to render them support, fidelity, and obedience; and are traitors if they resist them.
But it is obvious that, in truth and in fact, no one but himself can bind anyone to support any government. And our Constitution admits this fact when it concedes that it derives its authority wholly from the consent of the people. And the word treason is to be understood in accordance with that idea.
It is conceded that a person of foreign birth comes under allegiance to our government only by special voluntary contract. If a native has allegiance imposed upon him, against his will, he is in a worse condition than the foreigner; for the latter can do as he pleases about assuming that obligation. The accepted interpretation of the Constitution, therefore, makes the foreigner a free person, on this point, while it makes the native a slave.
The only difference - if there be any - between natives and foreigners, in respect of allegiance, is, that a native has a right offered to him by the Constitution - to come under allegiance to the government, if he so please; and thus, entitle himself to membership in the body politic. His allegiance cannot be refused. Whereas a foreigner's allegiance can be refused, if the government so please.
The Constitution certainly supposes that the crime of treason can be committed only by man, as an individual. It would be very curious to see a man indicted, convicted, or hanged, otherwise than as an individual; or accused of having committed his treason otherwise than as an individual. And yet it is clearly impossible that anyone can be personally guilty of treason, can be a traitor in fact, unless he, as an individual, has in some way voluntarily pledged his faith and fidelity to the government. Certainly, no man, or body of men, could pledge it for him, without his consent; and no man, or body of men, have any right to presume it against him, when he has not pledged it himself.
It is plain, therefore, that if, when the Constitution says treason, it means treason - treason in fact, and nothing else-- there is no ground at all for pretending that the Southern people have committed that crime. But if, on the other hand, when the Constitution says treason, it means what the Czar and the Kaiser mean by treason, then our government is, in principle, no better than theirs; and has no claim whatever to be considered a free government.
One essential of a free government is that it rest wholly on voluntary support. And one certain proof that a government is not free, is that it coerces more or less persons to support it, against their will. All governments, the worst on earth, and the most tyrannical on earth, are free governments to that portion of the people who voluntarily support them. And all governments - though the best on earth in other respects- are nevertheless tyrannies to that portion of the people - whether few or many - who are compelled to support them against their will. A government is like a church, or any other institution, in these respects. There is no other criterion whatever, by which to determine whether a government is a free one, or not, than the single one of its depending, or not depending, solely on voluntary support.
No middle ground is possible on this subject. Either "taxation without consent is robbery," or it is not. If it is not, then any number of men, who choose, may at any time associate; call themselves a government; assume absolute authority over all weaker than themselves; plunder them at will; and kill them if they resist. If, on the other hand, "taxation without consent is robbery," it necessarily follows that every man who has not consented to be taxed, has the same natural right to defend his property against a tax gatherer, that he has to defend it against a highwayman.