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

States individually and as it related to them
collectively in the character and capacity Of
the United States We pass over what ne says
under the first head, and proceed with his
argument under the second.
IL. / shall consider the offence Of treason as ii
relates TO the United States an their eollecfi~
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-
iected 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 treadng upon
Igues sGpposis6s ciner dolosO z"
They limited the offence therefore to ttco cases
oniu and comprised the whole definition in two
- 49, t'p, whole js1-@-, ~ ~7-i Atss. r. !
tain one more clear, precise, and determinate.
Treason against the United States, shall con-
sist only in leUyng aodr against them, or in Gd
herring to their enemies, giving them aid and
comfort
In my endeayor to analyze this definition
shall inquire
/. What is levying war!
3 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 s. Who are enemies? and what is
adhering to them, giving them aid and CON-
fort!
6. The true import and effect of the word
onlu and of that amendment to the Constitution
of the United States which prescrbes the mode
of trial in this and other criminal cases
l. First then, what is meant by the words,
teUying par
[ have already said enough respecting the
English authorities, to show that do not mean
to rely upon their exposition of this text happy
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 the
opinions Of our own judges, as find them re-
ported in an account of the two trials of John
Fries for high treason, in the Federal Circuit
Court of Pennsylvania, April and October, 1899,
and April 1900
"The only species of treason likely to come
before you" said Judge lredel in his charge to
the grand jury, is that Of levying war against
the United States There have been various
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 Of
arms, the execution of any act of the Con-
gress of the United States altogether las for
instance, the land tax, the object of their OPP
position,) any forcible opposition, calculated Ia
carry that intention into effect was a lcvying OF
war against the United States, and of course
an act of treason. But if its intention was
merely to defeat ITS operation IN a pdrt,cu-
lar instance, or through the agency of a partio-
utdr officer for some private or personal motive,
though higher offence may have been COM
united, 1t did not amount to the crime of treason
The particular motive must be the sole ingredi-
ent in the case, for if combined with a general
view to obstruct the execution of the act the Of
fence must be deemed treason" -Trial OF
Fries, p. ID.
Patterson, justice, sreported to have expressed
himself to the following effect in Mitchell's case
z Dallas, p 1851 If the object of the insur-
rection 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 levying war;
Trial Of Fries, p. Sc.
And on the trial of Rigol, r. Dallas, p. 34ol
spect to the intention, there is not unhappily,
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. Combi-
ming these facts and this design, the crime is
high treason. "--Trial of Fries, p. sc.
Judge lredell, on the first trial of Fries ex-
pressed his assent to the decision in Mitchelps
case-Ibid p 16S.
Judge Peters, on the same occasion, expressed
himself thus: 1t is treason in levying wal
against the United States for persons who have
none but common interest with their fellow
citizens, to oppose, or prevent by force, num-
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 quantun
of force is immaterialD 49,. "If numbers and
force can render one law Intellectual which i,
tantamount to its repeal, the whole system o
laws may be destroyed in detail. All laws will
at least yield to the violence of the sedtious ant
dlscontented0 And again -. al d.
not hesitate to say, that the position we hay,
found established, pi-: that opposition by fore,
and numbers or intimidation with intent to de
feat delay, or prevent the execution Of genera
law OF the United States, or to procure, or with
the hope OF procuring by force and numbers, ol
intimidation, its repeal or non-execution, is trea
son by lcvying war against the United States
ana IL does not appear to me to be what il
commonly called constructive, but open and d.
rect treason, in levying war against the United
States, within the plain and evident meaning
and intent OF the Constitution p-Tria of Fries
p 204, 207.
Judge Chase, on the second trial of Fries. thu,
delivered the opinion of the court. at Is In,
opinion of the court that any instruction. o,
rising of any body Of people, within the United
Yates to attain or effect by force or violence
any object Of great public natare, or Of publ,
"s'u general Tor naiiondD concern, is levyinp
" war against the United States, within the
.onehplahon and construction Of the Const
'", wil, 1-ib'd p. 1876 to 1879.
WIN all submission, this part of the court,
uP,n'on seems TO me 10 De both Questionable and
extrajudicial
- !. is questionable: because taken in the
na 'uue and extent which the words will bear
90 u 'il,niiestly import the rising Of any body
peJP'e IN opposition TO the authority Of any
, muual state or to the laws of such State
under this construction, amount 10 trca
w.. ~ ,evying war against the United States
an ior reasons already mentioned, humbly
"pprenend could not possibly be the case.
a. Effrguf,e,ai: because In tho case of Fries
ca Eve intention, If Of public nature was mani
Ity 20 oppose the execution Of q law of The
oni,ed States; and therefore this opinion. az h
might apply 70 any other case Of oppsition ex.
oep' An opposition to . law Of the United Statss
was certainly eztreiudieioi.