The national era. [volume] (Washington [D.C.]) 1847-1860, 1851-10-30
JUDGE TUCKER ON THE LAW OF
TREASON.

TREASON.
The student of fuckers Blackstone will rec
ollect the appendix to the 4th volume, contain
ing an elaborate paper by Judge Tucker on the
law of Treason. The Professor of Law in the
University of Virginia was in his day regarded
as one of the highest authorities, especially
in the Republican School What he wrote
respecting the Law of Treason was received as
sound law then by the Democratic party, and
viii De arthoritatryero We. o0fa0i,f,yt Il &c,
Judge Kane, and the Democratic politicians in
PbPilladelnh!n who are ntbirYf for blood :, ,,-
I'd Era
1t is probable that no part of the Constitu-
ton OF the United States was supposed to be
less susceptible of various interpretations than
that which defines and limits the offence of
treason against the United States The text is
| short and until comments upon it appeared,
might have been deemed explicit it is as fol-
| lows:
Treason against the United States shall con-
sist ONLY in ferytng rdr against THEM. or in
adherng to THEIR enemies giving them aid and
comfon"-Aticie g.
From this declaration, contained in the Con-
stitutlon of the United States, the supreme law
of the land, and the fountain both of the au-
| thOrity of the Government and of the crime
against it. IA plain man might draw conclusions
very different from the artificial reasoning and
subtle refinement of technical men and, seeing
that that instrument is to be regarded rs the act
of the people of the United States, both collect
| lively and individually, it might seem reasonable
| that the Interpretation of nine hundred and
ninety nine plain men, who We're parties to it,
ought to serve M IA guide to the thousandth
man who may happen to be called upon to ex-
pound it, But, as technical men are not very
apt to respect the opinions of such rs have not
been educated in the same habits with them
selves, the probability is, that the opinions of
one man in thousand, or rather in II hundred
thousand will overbaance that of the rest of
the community, unless the latter should deem
it an object worthy of their attention to express
! their opinion in way that may be re-
garded as obligatory upon the few who dissent
from them.
Two additional clauses are to be found in the
Constitution of the United States and tn,
amendments thereto whereby it appears tina
the trainers of the Constitution, and those VIII,
adopted it, were of opinion that too much eau
ton could not be used upon so important
subject
I. The Constitution provides Article 3,
"That no person shall be convicted of treason
unless on the testimony of twO witnesses to tn,
same OUen act"
2. The amendments TO the Constitution of tn,
United States provide, Article 8, THAT in al
criminal cases the accused shall enjoy the RICH
to n speedy and public trial of the State and
district wherein the crime shall have been com.
| Il.
ascertained by law"
The reason of these constitutional limitations
| has been thus explained on different occasions
As new-iangled and artificial treasons have
| been the great engines by which violent fac
tons in free States have usually wreaked their
alternate malignity on each other, the Conven-
ton have, with great judgment, opposed a bar
rier to this peculiar danger by inserting con-
stitutional definition of the crime"- Federal
isl, No 49,
Judge Wilson, in the first charge which he
delivered in the federal circuit court of Penn
sylvania, expressed himself thus ON the subject
1T well deserves to be remarked, that with re-
gard 10 treason near and great improvement
has been introduced into the Government of the
United States Under that Government the
citizens have not only legal but constitu-
tional security against the extension Of that
crime or the imputaton Of treason. Treasons,
capricious, arbitrary and constructive, have
often been the most tremendous engines of des-
Ipotic or Legislature tyranny-Cdreys american
Museum, Voi 7, page 40.
Judge Iredell on similar occasion in South
Carolina, observed "Treasons consist in fpo
articles oniy-levying war against the United
States, or adhering to their enemies, giving
them aid and comfort The plain definition OF
this crime was justly deemed of such moment
to the liberties of the people, that it was made
n part of the Constitution itself Mono can 10
highly prize the Importance Of this provision ~
those who are best acquainted with the abuses
which have been practiced in other countries in
prosecutions for this offence. No man of human
ify can read them pithout the highest indigna-
ton ) nor, in particular, can they be read by
any citizen Of America, without emotions Of
gratitude for the much happier situation Of his
own country-Mem, VOL l2, Part 2, p. SO.
Such, probably were the opinions Of the citi-
zens of America in general, when they adopted
the Constitution but technical men have since
made some important differences and deductions
from the usc OF some words in that definition.
which are 10 be found in the statute of treason
in England, Us Edw. 3 from whence they
conclude, that the decisions made upon that act
in England, during period OF near five hun
dred years however contradictory or inconsst-
tent they may be, with the text or with each
other have been adopted also by the Constitution,
"as direction whereby the courts are 10 IN
derstand the application Of that act" Trial of
Fries, p 1913 aud 1853. And it has even been
on very important occasion, that
what in England is called constructive levying
Of war, in this country must be called direct
lcyying Of war.*
One Of the judges present upon the occasion
above alluded to is reported TO have expressed
himself thus The authorities from British |
precedents and adjudcations, are used as guides
in our decisions. | will not enter into IA discus
sion whether we are bound 10 Joiiop them, be-
cause they are precedenfs, or because we think
them reasonable and just"-Judgs PehySs
:harge 10 The Jury Trial Of Fries, 2O5.
The distinction is, however important and |
{ il therefore 10 be wished that the learned |
The passage stands thus II you expunge what |
direct leyying Of war there such thing M
be found either the law Is wrong or the ar
yuments used on the other side Gentlsunen the law
established. but the arguments vanish like vapor
before the morning sun what then In England is call
u constructive ievying Of war, Ia this country must
DO called direa ieyying OF war Isiai eC Ersss o.
6i should incline 10 suspect the reporter Of some
mistake In this passage but II would that Il had
been submitted 10 the inspection OF the counsel To
whom II Is ascribed.