The enquirer. [volume] (Richmond, Va.) 1804-1815, 1808-03-04

! But let sec what the chief Justice SAWS upon
this subject in his opinions delivered upon the tri-
rals at Richmond. tits true, that nthat case, after
forming The opinion that no treason could be com
Matted, because no reasonable asscnblage had
4 taken place. the court might have dispensed
with proceeding fiirtherin the doctrines of trea-
| son. But II is 10 be remembered, that the judy
/ IS might act separately, and perhaps at the same
! time, on the various prosecutions which might be
instituted, and that appeal lay from their de-
c'slons. Opposite Judgments on the point would
have presented state OF things Infinitely TO be de-
plorcd by all II not surprising then that
;hey should have made some attempt TO settle
principles which would probably occur, and
which were in some degree connected with the
point before thern.''
"This court is told that ifthis opinion ba inctr-
rect, IT ought not be obeycd, because it was
tra:iudicial. For myself, l can say that could
not lightly be prevailed to dsobey il, were l
even convinced that it was erroneous, but l
\ would certainly use any means which The law
placed in my power to carry the question again
before the supreme court, for reconsideration,
in a case in which it would directly occur and be
| fully argued
Here we see the chief justice rathetically de-
ploring the consequences of opposite decisions
upon the same point, and l:menting his inability
to bring these cases before the supreme court.
For what He tells to settle princ;oies, or in
other words to prescribe rules forthe government
OF the circuit courts-in which, consists the very
essence oflcgislation Hence tho judicial legis-
| iaton OF the supreme count is to exclude Con-
gressional legislation, but he evidently admits the
| incompetency of the circuit courts 20 legisate
upon this subject and unfortunately for the egs-
iaton OF the supreme court, it has no jurisdicti-
ON IN criminal cases; and therefore, there is no
legal mode OF bringing the cases before them for
| the purpose OF settling principles, in other
| words Tor the purpose of legislation
| Hence VIII result all the confusion which the
Chief justice so properly and pathctcally depiores
Yes, sur, the uncertainty and confusion resulting
from contradictory decisions of your courts upon
the doctrine OF treason against the United States
| VIII be such, that man can know when All act
is innocent or guilty and when his innocence or
quit will very much depend upon the court, be-
| lore which he may happen to be brought for
trial. Our situation will be, probably now is,
Ike that described in Eng in The time of Hen
ny the 4th, after great many statutes had been
| passed, and contradictory adiudications had been
made III relation tn this doctrine of treason
In the preamble to the statute Of the LIST of Hen
ry the 4th, the situation of the nation, in relation
| To treason, is thus described: That no man
4 knew what he ought to know, to do, or to saw,
| or to speak through doubt of such pains" This
II rot now, Will inevitably be the of this coun
try, unless some Legislative corrective oft,,e pre-
\ Sent system be applied. There are also great
| objections to the forms of judicial Legislation ::
they consist too much in inference, too little in
dictuiii They want Tire words g Be it enacted -
| ~ liz Judges I'D Dfeflu tnclr fe1SOnlnpS with
their differences, thatit requires great legal skill
to make the proper analysts. plain man of the
best understanding, could never do it. The enact
ing clauses are obscured by the preamble. 1t IS
Ike enacting our speeches intcrspcrsed with our
| laws.-Take for instance the judicial opinions
| Lately delivered in the United States uponthe va
| rlous questions OF treason, which have been
Brought before the courts, and ask your selftI,is
| question: DO you understand the doctrine of
treason now, better than you did before the OPT
mons We're given Is not the subie rendered
| more confused and uncertain, Can YOU toll
whether acressoral treasons in England are pfin.
| cipal treasons in the United States Judge Chase
j and others say they are. Judge Marshall Saws he
! does rot know whether they arer or not, but
| his reasoning would 60 to shew that they are not
In the doctrines of treason, this is Az al-impor-
! tant question and if the Judges cannot agree
/ how cdn plain men settle the question. And
why is 1t that the people should be kept in the dark
upon this branch of our penal laws alone Itcan-
l not be on account of the righteousness of the Of
| fence, its dangerous tendency towards society,"
nor ats fatal effects TO the individual committing
| At. All these reasons plead loudly in favour Of
telling the people plainly, what the acts are mvo-
wing such consequences th.tthey may take care
| to avoid their commission
l he then proceeded TO examine some further
| consequences of a different Interpretation of the
constitution {; II which he begged the most seri-
Gus attention of the Senate Ii the Judges are IN
4
United States without any Legislative aid one of
| two consequences will inevitably result Either
the statutes OF England, in relation to these spc-
cles oftreason the decisions of the English iudg-
| es thereupon, and perhaps the opinions of some
OF Their elementary writers, VIII become the law
| OF the United States and immutablc or fun
! damental law or all acts amounting to treason
| must be transcribed only on the minds of the iud-
| ges. Upon the first of these points, let us exa-
! mine the decisions ofthejudgest themselves
He would first call the attention of the Senate
to rule of court laid down in the trial of Fries
and found in the Appendix to fuckers Blacks
| tone, page II, Is.
Judge Chase on the subsequent trial of Fries,
| Declared That the court would admit, as n ge-
heral rHle, OF quotations from the English books
| not as authorities whereby they were bound, but
| as opinions and decisions of men of great legal
| learning and ability But even then the court
would attend carefully 10 the time of the decision.
and in no case must it be binding on the iuries
as this was pronounced as a general rule by
the court, and not as the opinion of single Judge
we may conslderit now settled, that tie English
authorities are not binding as prccedents conse-
quentiy they do not form part of the law of the
land, but are to be respected only as the opinions
OF men OF great legal learning and ability, which
! may nevertheless be canvassed az freely as the
| Opinions OF other men. Neither arc we bound to
| suppose, that the trainers of our constitution
meant to adopt those decisions rs guide to orr
courts inthe ntei probation Of the definition oftrea
son aganstthe United Statcs''
According to this decision. Fnriieh a,,tl,or;,;os