The national era. [volume] (Washington [D.C.]) 1847-1860, 1851-11-06
WASHINGTON, d. C.
UIDGE TUCKER ON THE LAW OF
TREASON


States individually, and as it related TO them
collectively, in the character and capacity o.
the United States We pass over what he says
under the first head, and proceed with his
argument under the second.
III. / shall consider the offence Of treason as al
relates to the United States, an their collective
and federal capacity
When the Federal Constitution was adopted
it was deemed necessary for the more perfect
security and preservation of the Union, to create
a new species of treason which might reach
cases not within the provisions of the laws OF
the several States and without which their pro-
lected Union might be exposed to danger, and
its authority to contempt.
But the trainers of the Constitution clearly
saw, that this new offence should be clearly de-
fined and strictly limited; they probably felt
conscious of treading upon
Ignes suppositos cineri doloso;
They limited the offence therefore to ttco cases
oaIg, and comprised the whole definition in two
AlSL.1-ss ,iie onoiGSs ,,,.,.sry 49, >,,,:-
tain one more clear, precise, and determinate.
i" Treason against the United States shall con-
sist only in ieuying icar against them, or in ad-
herring to their enemies giving them aid and
comfort
In my endeavor to analyze this definition,
shall inquire
/. What is levying war?
9. Against whom the war must be levied To
constitute this new crime of treason against the
United States?
g. Who may commit treason against them
and 5. Who are enemies and what is
adhering to them giving them aid and com
fort!
6. The true import and effect of the wore
only and of that amendment to the Constitution
of the United States which prescribes the mod,
of trial in this and other criminal cases.
/. First then, what is meant by the words
lerying acar?
have already said enough respecting tn
English authorities to show that do not meal
to rely upon their exposition of this text happ.
would it have been for America, had no occasion
occurred, in which her own courts had been call
ed upon to expound them. | shall give tn
opinions of our own judges, as find them re
ported in an account of the two trials of JOIN
Fries for high treason, in the Federal Circui
Court of Pennsylvania April and October, 1893
and April, 1900.
"The only species of treason likely to com
before you" said Judge lredell in his charge i
the grand jury is that of levying war agans
the United States There have been variou
opinions and different determinations on the i'm
port of these words But think | am war
ranted in saying, that if in the case of the in
surgents who may come under your considera
ton, the intention was to prevent by force 0
arms, the execution of any act of the Con
gress of the United States altogether, las foI
instance, the land tax, the object of their op
position) any forcible opposition, calculated 4
carry that intention into effect was levying O
war against the United States, and of courst
an act of treason. But if its intention wa
merely to defeat its operation IN particu
Tar instance, or through the agency of partio
'tdr officer, for some private or personal motive
though higher offence may have been com
United, it did not amount to the crime of treason
The particular motive must be the sole ingredi
ent IN the case, for If combined with genera
view to obstruct the execution of the act the OF
fence must be deemed treason "-Tridl OF
Fries, p. IA
Patterson, justice isreported to have expressed
himself to the following effect in Mitchell's case
z Dallas, p 1855 IF the object of the insur
rectlon was to prevent the execution of an act
OF Congress by force and intimidation, the Of
fence in legal estimation, is high treason it is
an usurpation of the authority of the Govern
ment; it is high treason by leyying war p
Trial Of Fries, p. Sc
And on the trial of Rigol, 70 Dallas, p. $40,
he is likewise reported to have said, "With re-
spect to the intention, there is not, unhappiy
the slightest possibility of doubt To suppress
the Office of excise in the fourth survey of this
State, and particularly in the present instance
to compel the resignation of Wells, the excise
officer, so as to render null and void, in effect
an act of Congress, constituted the apparent
the avowed object of the instruction. Comb
ming these facts and this design, the crime il
high treason, "-Trial of Fries, p. Sc
Judge lredell, on the first trial of Fries, ex
pressed his assent to the decision in MITCHELL
case.-Ibid, p 16S.
Judge Peters, on the same occasion, expresse,
himself thus: at is treason in levying wa
against the United States for persons, who hav
none but common interest with their fellow
citizens, to oppose or prevent by force, mum
bers or intimidation, public and general Law
of the United States with intent to prevent it
operation, or compel its repeal. Force is neces
sary to complete the crime but the 9udntun
of force is mmaterialo "If numbers an,
force can render one law Intellectual which
tantamount to its repeal, the whole system O
laws may be destroyed in detail. All lawswil
at least yield to the violence of the seditious an,
di-contented." :. And again az d.
not hesitate to say that the position we hay
found established, me- that opposition by fore
ana numbers or intimidation. with intent to de
ieat delay or prevent the execution of genera
law OF the United States, or to procure, or will
the hope OF procuring by force and numbers, O
mumldaton, Its repeal or non-execution is trea
son by ievying war against the United States
ana IL does not appear to me to be what i
commonly called constructive, but open and di
rect treason, in levying war against the IJnite,
States, within the plain and evident mean;n,
and intent OF the Constitution ~ Trial Of Ere,
p 204, 2O7.
Judge Chase on the second trial of Fries TIM
delivered the opinion Of the court at L th,
opinion Of the court that any instruction q
r,sng of any body of people, within the United
MATES. to attain or effect by force or violcnc,
any object Of great public nature, or Of publ
'a'u general Tor nafionaD concern, is levyinl
VI war against the United States, within tn,
.on'elnpiation and construction Of the Consti
', non, '--ib'd p. 1876 to 1879.
WIN all submission, this part of the court
oI rnnon seems to me to be both questionable ano
!. Il is questionable: because taken in tn,
'uue and extent which the words will beal
ana manifestly import the rising of any bod,
Peope IN opposition 10 the authority Of AM
nundual State, or TO the laws of such State
so 'd under this construction, amount to trea
VII. N leyying war against the United States
ann. Tor reasons already mentioned, humbl,
"pP'Inend could not possibly be the case.
the IH,Gjud,esai. because 10 the case of Fries
Gss,, mention, Of public nature, was mani
LILY oppose the execution Of . law of IN,
n, aed States and therefore this opinion. a. 4
amsh' apply 70 any other case Of oppouitiou. ex
P an opposition 10 law Of the United STATE
was certainly ertryudsesal. -
fHrr