The Wheeling repository — Wheeling, Va. [W. Va.], 1807-11-26 00:00:00, page 2

treason. ^ile would conclude, that in a
country where liberty and law was the
first boast of its citizens, no judge woidd
be thus overwhelmed with a torrent of
opprobrium, unless he had departed
from, and disregarded all former opi
nions ; unless he had given to the con
stitutional definition of treason a con
struction which had never before been
heard or thought of, except by traitors
themselves. This is no doubt the opi
nion of many ot those who clamour a
gainst the judge ; and to produce a more
correct impression on this subject, is
the object of this essay.
1 he two lust numbers of the Reposi
tory contain judge Marshall’s opinion,
which concluded the proceedings against
Burr anti others at Richmond. From
this opinion it appears the judge decid
ed that no treason had been commit
ted. While the opinions and argu
ments of judge Marshall are fresh in
memory, the readers of the Repository
-Sue presented with the reasonings and
opinions ot another eminent judge, on
the subject of treason, that they may
compare the two opinions and decide
wherein the difference consists.
In the year 1803, St. George Tucker,
tit present a judge of the Virginia court
of appeals, published an edition of
Biackstone’s Commentaries. This edi
tion comprises an appendix containing,
among other things, judge* Tucker’s opi
nions on various questions arising under
the constitution and laws of the United
o,lutes. In the appendix to the fourth
volume, he examines the doctrine of
treason much at large. After having
severely scrutinized the opinions of the
Federal judges, deli\ red upon the tri
als of the Western insurgents and oi
Fries, he proceeds to contend that trea
son “ consists only" in open, undisguis
ed, unequivocal acts oi hostility.
J he following sire hss arguments :—
1 I now proceed to consider the import
and effect of the word crc/y, in this clause
of the constitution ; sis also, the legal ef
fect, ancl consequence of that amend
ment to the constitution of the United
iitaies, whit h dt dares “that in stll crimi
nal prosecutions,the trial shall hr in that
itsite and district, in which the crime
shall have been committed.
I his word, only, as used in this
clause of the constitution, is, according
• o my apprehension, thi strongest term
of iimita ion and restriction, that our
language aff >rds. Its obvious meaning
*% these cases, and no oth>-r whatsoever.
! “ Treason against the United States,
shall consist only in levying war, &e.”
Here is both an affirmative and a nega
tive in the same sentence ; nay, in the
same member of a sentence. The offence
is created by the word consist; it is li
mited and restricted by the next word,
only. It seems impossible to express an
intention in stronger and more definite
terms. But to what purpose were these
terms used, and this strict limitation
made, if courts, notwithstanding any
such restriction, pronounce that other
cases may, by construction, amount to
treason against the United States. If
the authority of such explicit terms «an
be rejected in favour of artificial con
structions, invented by arbitrary and
corrupt,or by timid !k complying judges,
in the worst ol times, a written constitu
tion, containing what was deemed a li
mitation of powers, has answered no o
ther purpose but to establish an unlimit
ed government.
‘‘ And here it may not be improper to
repeat the remark, that this definition
creatcsyis well as limits, an offence which
had no previous existence ; whereas the
statute 25 Edw. II I, did not create, but
only defined an offence already known
to the common law. “ That statute,”
said Stanford, afterwards chief justice
of the common pleas, “ is but a declara- !
lion of certain treasons, which were
treasons before at the common Jaw. E
ven so there do remain divers other trea
sons at this day at the common A/rc, which
be not expressed by that statute.” '
“• Will any man presume to advance
tnat there is any treason against the U -
nited States by the common law ? that a J
limited federal republic of yesterday,
hath already appropriated to itself all the
foul corruptions of despotism, collected
from time immemorial. lo infer that
the courts of the United States, arc left
to range at large, in the boundless field
of const ruction, in search of other cases
of treason against the United States,
seems to my apprehension a doctrine e
tpially unfounded, awful, and danger
ous.
“ i t men we are not at liberty to reject
th! > important word, only, r, e must as
sign to it some determinate significa
tion : and, it that signification be that
which 1 have ascribed to it, to vvit,
*• these Cttscs nml no other ivhfitjsoevrr”
its necessary operation and effect miibt
| be, to cutup all constructive treasons,
I root and branch. It a single scion,be
left, it will be the parent of ten thou-,and
others, shedding, like the Buonas Upa»t
their baleful influence far and wide, poi
soning and desolating the whole region
where they are permitted to take root.
Faction and factious men are not con
fined to any one party in a republic: and
when such men have the command of
the purse, the sword, and the scales of
justice, the lives of their opponents will
not weigh a feather, in compe tition with
their own advancement, or that of their
party. This, the framers of the consti
tution must have considered, and there -
fore endeavoured by the strongest terms,
and the strictest limitation, to restrain
within the narrowest limits. And thie
should serve as the polar star of con
strw thn to judges and all others, who
may be called upon to administer the
government. ’
fudge Fucker then goes into an exa
mination oi die British doctrine, that in
treason all are principals. H contests
the reasonableness of this doctrine, and
shews that it was established in England
during the in >st troublesome times, and
hv courtly and unprincipled judges.—
Having concluded this investigation, he
proceeds as follows :—u I should not
have taken the trouble ul ibis scrutiny,
had not the same judge who declared,
that the English authorities were not to
he regarded as precedents in our courts,
on the same occasion, declared the law
to he, “ that in treason, all the porticipes
erhninis are principals; that the re are no
accessories in that criin«, and that every
a ty which in case o{felony would render
a man an accessory, will in the case of
treason, make him a principal.” If the
learned judge rejects the authority of
the English prcc* dents, where can the
law he found ? And if he relies upon
those precedents, where can the reason
oi the law he found ?
“ I> >th ommon law and common
sense have been able to perceive, and
draw a distinction between the actual
perpetration ol a crime, and the bare ad
vising, or even procuring the perpetra
tion ol it, without being present when it
is pejpetrutt d • they have also bein able
to distinguish between the perpetration
of a crime, and the receiving and com
forting one, w ho has been himself the
perpettaior, knowing lum to be such : it
was reserved for the astute reason ol
judgi s appointed by the « t own, to dis*
lover, that there was no distinction be
tween these cases, when the sacred ma
jesty of their mast-r's head was in dan
g r, or supposed to be so : it was rvser*