The national era. [volume] (Washington [D.C.]) 1847-1860, 1851-10-30
ia

pened from the same, was exceedingly pernl-
cious 70 the King and Kingdom
Abundance Of cases may be collected from /
tbc same author to show that the judges were /
rather asutc in extending the offence OF trca-
SON than strict in the construction of the stat /
ute which has been supposed to limit IT. And /
how much Sucycr modern Judges and lurlstS /
NAV be supposed to have been uninlluenced 10y |
their authority vet the contagion Of precedent |
has come down even 70 those days for think,
II cannot be denied that if all the cases OF con-
structiye treason were destroyed and utterly
FORGOTTEN even the most modern decisions upon
the subject of treason would have been stript
of some of their circumstances and conclusions.
But to proceed
The author above cited says, II HalcS p {.
1901 " What shall be said ieUlRng icdr is in
truth a question Of fact, and requires many
circumstances 10 give it that denomination
which it may he difficult to enumerate or de-
fine and commonly is expressed by the words
more gucrrno arrIrQt Grraged an a rdrlike
manner. in the Indictment Without these
operative words, which are thus descriptive Of
the offence of treason it would seem that the
indictment would be defective and vicious,
HdIeS p. c. 146, $50, IA, men Of plain under
standing would be apt to infer from hence that
the fact must be proved accordingly, otherwise
that the offence might be trespass or riot,
but could not amount to treason in leyying
war but technical men have discovered that
numbers will supply the want of military array
or weapons Hates, P. C. 144 and even
Juror arma mnistrat-( Foster, 2Osl
The same author further observes II Hdies
p. {. 1871 that to constitute the crime of trea-
son, there must be a levying war against the
King otherwise, though it be more querriHO,
and levying of war it is not treason there
fore, if it be upon private quarrel, or upon a
private and particular design, as TO pull down
the Enclosures of such particular common, it
is no leyying war against the King because it
it is not the authority of the King or his Gov
eminent which is attacked" And yet the pull
ing down two or three bawdy houses. which
the law regards as nuisances by company of
apprentices, las we are told by the same
author) Foster 1874 was adjudged to be
levying war against the King, and therefore
treason within the statute And this last case
as well as the former, has been cited to an
American jury as a guide to their interpreta-
tiOn Of the Constitution Of the United States
Trial Of F7es, 81.
The same author observes elsewhere The
very use Of weapons by such an assembly,,
Nltli'ht tll' mig hAthCCs ullitSS III SUIT nav
ful. and special cases carries terror with it.
'.ud a p,,oi,nJa,o,, 81 rariiko force,' &c The
bare circumstance of having arms therefore, Of
itself, creates presumption of warlike force in
England, and may be given in evidence there
to prove ql,o ammo the people are assembled
But ought that circumstance of itself to ere
ate any such presumption in America, where
the right to bear arms is recognised and secur-
ed in the Constitution itselft In many parts
of the United States, n man no more thinks of
gong out Of his house, on any occasion with
out his rifle or musket in his hand than an
European fine gentleman without his sword by
his side
Again, in England, it is agreed on all hands
that all such rs counsel, conspire, aid, or abct
the committing OF any treason, pdTte ante,
whether present or absent are all principals
and that IN all treasOnS except that which con-
Germs the counterleting the great on privy seal
or money whosoeyer knowingly receives main
talns, or comforts u traitor, is n principal in
high treason. And this upon the construction
of the statute 25 Edw. I'LL Hates, p C. 1888
237.
To men Of plain understandings these eases
may illustrate the danger of adhering too
closely to the judicial decisions and opinions of
judges in England who conceive themselves
bound by former precedents even against the
conviction of their own private judgments, II
Black. Conn.,, 10; and who, in cases where the
Crown has been concerned have too often
thought it duty to support it against all dan
gers real or imaginary, and, at the same
time, must eynce the propriety of that decision
of the court before mentioned, that 4" in no case
must they be binding upon orr iuriesp
Rejecting, then, the authority of decisions in
England, az precedents establishing the law of
the land; yet respecting them where the rea-
son of them applies rs the opinions of learned
men, ! shall proceed to consider the offence of
treason in twoiold light
TO BE CONTINUED