The national era. [volume] (Washington [D.C.]) 1847-1860, 1851-11-06

| the statute was unjust, burdensome, oppressive
or unconstitutional, is levying war against the
United States, within the contemplation and
construction of the Constitution. The reason
for this opinion is that an instruction to resist
or prevent by force, the execution of any statute
Of the United States, has a direct tendency to
dissolve all the bands of society, TO destroy all
order and all laws and also all security for the
lives, liberties, and properties of citizens of the
| United States
The court are of opinion that military weap-
I ons las guns, and swords mentioned in the in
| dctment) are not necessary to make such insur-
rection or rising amount TO levying war; because
numbers may supply the rant Of military reap
oRs and other instruments may effect the in
tended mischief: the legal guilt of levying
war may be incurred without the use of military
weapons or military array"
This part of the opinion is | bumbly con-
| ceiye, likewise extrajudicial there being no
question as to the fact that Fries and his party
were furnished with arms, as guns and swords,
| &c.
1.-The court are of opinion, that the assembling
bodies of men armed and arrayed in warlike
manner, for purposes only of a private nature, is
not treason although the judges or other peace
officers should be insulted or resisted, or even
great outrages committed to the persons or
property of our citizens
"The true criterion to determine whether acts
committed are treason, or a less offence, las a
riot) is the quo ammo or the intention with
which. the people did aScmbe. When the in
| tention is universal, or general, as, 70 erfo1$
! some object of a general public nature, it will
tot,,1sss, a.. a.xA4:s - SS>,sszidoroe "a
ed, or reduced TO riot" ..... This part OF
the opinion seems likewise to be extrajudicial
and questionable, for the reasons mentioned
under the first paragraph.
"The commission of any number of felOnies,
| riots, or other misdemeanours cannot alter their
nature, so as to make them amount to treason.
And on the other hand, if the intention and act
| together amount to treason, they cannot be
sunk down to a felony or riot. The intention
with which any acts las felonies, the destruction
of property, or the like) are done, will show to
what classes of crimes the case belongs
"The court are of opinion, that if a body of
people cOnspire and mediate an instruction
to resist or oppose the execution of any statute
of the United States by force, that they are only
guilty of a high misdemeanor; but if they pro
coed to carry such intention into execution bl
force that they are guilty of the treason oflevy
ing war n and the 9udntam of the force employ
Whether by one hundred or one thousand per
sons, is wholly immaterial"
"The court are of opinion, that combina
ton or conspiracy to levy war against the
United States is not treason, unless combined
with an attempt to carry such combination OIL
conspiracy into execution; some actual force
or violence must be used in pursuance of sucl
design to levy war but that it is altogether i'm
material, whether the force used is sufficient Il
effectuate the object; any force connected will
the intention, will constitute the crime of levy
ing war"
+" In treason all the pdrtscipes crrmtnts ar
1 principals there are no accessories to thi
crime Every act which in the case of fclon,
would render o man an accessory, will in tn
case of treason make him principal To rem
der man an accomplice and principal in felc
ny, he must be aiding and abettng at the fac
or ready to afford assistance if necessary. If
person be present at felony, aiding and assist
ing, he is principal"
Here again, | apprehend, this part of tn
courts opinion is perfectly ertrdjudicial. Be
cause Fries if guilty at all, was guilty as
principal in the first degree; being present AM
not only aiding and abetting but commanding
And the correctness of this opinion (eyen wer
it not extrajudiciaD likewise seems to be yer,
highly questionable, for reasons which will b.
mentioned hereafter, when we inquire into tho
| import of the word ontg ..... This doctrine d
] founded upon that artificial and abstruse rea
soning, of which the English common lawyers
were prominently fond, as will appear to any
person who reads their ancient tracts and re-
ports.
The Judge proceeds thus. -. III is always
material to consider whether the persons charg,
ed are of the same party, upon the same pur-
suit, and under the expectation of mutual de-
fence and support All persons present, aiding,
assisting, or abetting any reasonable act, are
principals. All persons who are present and
countenancing, and are ready to afford assist
| ance if necessary, TO those who actually commit
| any reasonable act, are also principals If a
| number of persons assemble and set out upon a
common design, rs to resist and prevent by
| force, the execution of any law, and some OF
them commit acts of force and violence, with
intent to oppose the execution of any law, and
others are present to aid and assist if necessary
they are all principals. IL any man joins and
acts with an assembly of people, his intent is al
ways to be considered and adjudged to be the
same as theirs and the law, in this case judg-
eth of the intent by the fact. If number of
persons combine or conspire to effect certain
purpose, as to oppose by force the execution OF
a law, any act of violence done by any one OF
them, in pursuance of such combination, and
with intent TO effect such object il, in conside-
ration of law, the act Of all who are present
when such act Of violence is committed If per-
sons collect together to act for one and the same
common end, any act done by any one of them
with intent to eiectuate such common end, is q
fact that may be given in evidence against al
Iafx Al - L. u
concerned" See Trial Of Fr'es, p, 1876 to 1879
Most devoutly is it to be wished, that n,
future case may occur, wherein our courts may
have any further occasion to inquire into thu
true exposition Of this part of the text of tn,
Constitution but if such cases should arise. i
seems to me that the safer course would be fol
judges to consult the text and spirit of our Fed
eral Constitution and Government only ,, fol
otherwise the plain text will be completely hid
den, and lost sight Of, in the multitude of pre-
eedents, founded upon artificial reasons and con
illusions drawn from different source.
1t is observable, that in ali these cases the
judges seem TO have overlooked that obvioui
distinction before mentioned, between such act
OF force and violence as may amount to Treason
against a particular State, though not rcducibl,
to either head of treason against the Unitet
States and such as may properly fall under
the latter description.
see State Trials, per Bromley, C. j., who may b.
considered as the father of this doctrine He says
lie that doth pyacnse another man 10 commit a feIo
ny, OF murder, the Law doth adjudge tho procure
.nsn q ieion or murderer. And in case Of treason
"ha'h awaysbeen so taken and reputed. Page 70
ALL FLESH is GRAssn-Bishop Hughes. in
a sermon to his parishoners repealed the quo
tation that call flesh is grass" Tha, season