The national era. [volume] (Washington [D.C.]) 1847-1860, 1851-10-09

ton OF the United States but on common sense
Of what value is any guaranty of civil right
, in the Constitution, if our Courts relying upoI
the detestable decisions of English judges, trib
utary to the caprices of an absolute monarch
may wrest it to the purposes Of tyranny?
We proceed now to particular examination
of the charge. Treason against the United
States" he says is defined by the Constitu
ton to consist in leyying war against them,
sc.
He Omits the vital part Of the definition, the
word "oNLYn Did he overlook it or would
he have found it rather unmanageable in the
y or our country a new. large DO give to the
loose Construction he was about " vord of the
clause? We submit that not n 70 been
constitutional definition ought to har~-owei
kept back from the jury, especially the wore
which makes the definition peculiar, and I'M
poses upon it it's most rigorous limitation
This definition is borrowed" he says "from
the ancient law of England, passed in the reign
of Edward LII, and its terms must therefore be
understood in the sense which they bore in that
law, and which obtained here when the Con-
stitution was adopted"
We are sure this language will mislead any
one who does not examine that statute. 10 see
how much of it was borrowed let us quote the
words of the statute itself:
Whereas divers opinions have been, before
| this time in what case treas1Aa snail be SAID
and in what, not the King. at the request of
the Lords and Commons, hath made declara-
ton in the manner as followeth that is TO say,
when man doth compass or imagine the death
of our lord the King, &c, or if man do levy
war against our lord the King in his realm, or
be adherent to the Kings enemies in his
realm, giving to them aid and comfort in the
realm or elsewhere, and thereof be provably
attainted of open deed by people of their con-
dition and if a man counterfeit the great seal,
&C., Ienumerating several other cases. And 1t
is to be understood that in the cases above re-
hearsed, that ought to be adjudged treason
which extends to our lord the King, and his
royal majesty; and the forfeiture, &c And;
moreover there IL another kind OF treason !;
that is TO say, when q servant sayeth his mas
ter, st, aha because many ochar Ike cases Of
| treason may Happen in time 10 como, which "a
man cannot think or declare at this present
time it is accorded that if any other case sup
posed treason, which is not above specified, doth
happen before any of the Justices the justices
shall tarry without any going to judgment of the
treason, till the cause be showed and declared
before the King and his Parliament whether
it ought to be adjudged treason OF other fell
ony"
Our constitutional provision has very little
in common with this Statute The one pro-
vides for treasons innumerable; the other de-
fines but two. The one contains no limitation
of the number; the other restricts it to two
"Upon this Statute" says Judge Tucker, "we
may remark that there are no negative words
in it, as in the Constitution of the United States
and that so far from declaring as that does,
that treason shall consist only in the cases emu
merated, it expressly mpposes that many other
cases of treason may happen although the
trainers of that Statute could not think of them
thenn*
To the remark of Judge Kane that the words
of our constitutional provision are to be under
stood in the same sense they bore in the Statute
of Edward iii, we demur, because they are
not found in that law with the same qualfca-
ton which limits them in our Constitution be-
cause law which defined numerous treasons,
and made provision for additional cases, to be
determined as they should arise, must have been
conceived in spiritvery different from that ofour
constitutional provision, which specified but two
cases. and clearly aimed to prevent their multi
plication: and becsiuse tho construction put
upon those words by EngRsh judges, during
the most corrupt period of the English Mon
archy ought to be no rule for American Courts
at this age Of the world Abundance of
cases" says Judge Tucker, "may be collected
to show that the judges were rather astute in
extending the offence of treason than strict in
the construction of the Statute which has been
supposed to limit it,"
For example: Two persons were executed for
reasonable words; !" the one citizen of Lon
don, who said he would make his son heir
of the crotcn, being the sign of the house in
which he lived! We do not know whether the
judges construed this as conspirng or levying
war against the King, but they certainly made
treason out of it. The other was gentleman
whose iavorite buck the King killed in hunting !;
whereupon she wished it, horns and all, in the
belly of him who counselled the King to kill it,"
As the King killed it of his own accord, or was
his own counsellor, the learned judges decided
that the wish was against the King himself and
was therefore treasonable.r
Again, the pulling down two or three bawdy
houses which the law regards as nuisances, by
II company of apprentices, was adjudged to be
"levying war" against the King and therefore
treason within the statute.
Such are the judges, such the constructions on
which Judge Kane chooses to rely for the in
depreciation of phrase which needs no inter.
pretation-"Lerying wdr"
The opinions Of the Federal Judges in the
Fries case are referred to as sustaining this in
depreciation.
In 1893 riot was got up in Pennsylvania, in
consequence of the attempt to enforce an OBJ
noxious feature of the law imposing direct taxes
The marshal arrested some thirty persons, but
in the village of Bethlehem he was set upon,
and his prisoners rescued by an armed party Of
forty or fifty horsemen headed by one Fries
Fries and some of his associates were subse
quently arrested: they were convicted of g
high msdemeanor; he was found guilty o.
treason. A new trial, however, was ordered, a
it was proved that ono of the jsssrs who sa
upon his case had previously expressed the opin
ion that he ought to be hung. Judge Chas,
presided at the second trial and behaved in
very arbitrary and oppressive manner 40 much
So indeed that the counsel for the prisoner
threw up the case and withdrew from the Court
The accused WAS again found guilty, but wa,
pardoned by the President. The country would
not have tolerated his execution, to say nothing
of the humanity Of that high functionary