The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1851-12-12

his only Wa to preserve ths lives OF the
scientous principles the subject Of resistsnes
- stand by with indifferent neutrality when his father
OF his DEATH may be liable alder abettor In
the murder manslsughter. We may wonder ct his
phiosophie ndi1ersnce, though We cannot admir-. the
man. so man who u mere spectator In contest
where mob Of rioters resisting an oicer OF the Law
in the execution Of his duty and refuse
acting the part honest loyal citizen he may be
liable to be punished for misdsmesnor for hts refusal
to interfere but such conduct will not necessarily mako
him liable principal In the riot murder commit
ted But such conductb fair subject for the consdsrG
toH Of jury, in connection with other
murderers or traitors What inference the jury may
draw from the evidence In this case Of the conduct Of
weighing the Arguments xhioh have been 50 ably
urged by the learned counsel. With these remarks
reading to them they desire it. the testimony of the
witnesses beerng more directly on this question.
way did not ad assist or sbst in the of the
offence, you viii return verdict of not guilty, without
regard to the grade of the offence whether riot murder
or treason But II you fhould find that he ha, aided
and abeted 80 a. thereby to become principal IN the
transaction according to the rules Of Law which have
Just stated you win next have to inquire whether tAe
offence, as proved, amounts to the crime OF treason
against the Unted States The bill charges the defend
with wickedy and treaeherousy intending to levy
the act or acts to have been committed with such uten
ton For although the prisoner may have been guilty
riot robbery murder any other felony he cannot be
found guilty under ths bill of indictment unless you
find that he intended to levy war against the United
States or that the acts were committed By himself and
others in Of some conspiracy or preconcert
for that purpose and this question OF fact for the
decision Of the jury But in The decision of It, tho jury
should regard the construction Of the contribution ~
given them by the court what is the meaning
Of the words levyng Treason against the United
has power enlarge restrain consrue define the
offence Its construction Is entrusted to the courts
against tie United States shall consist only in ievying
against them, in sdherng to their enemies giving
treason unless on the testimony OF two witnesses to tbs
same overt set or on confession in open court"
What constitutes lsvyine war against the govern
ment is question which has been the sub.
ject OF much discussion, whenever Indictment
has been tried under this article OF the constitution
The fence is described in very few words and in their
application to particular cases much difference Of opin
ion may be expected We derive our laws as well rs our
language from England As we would apply to English
dictionaries and classical writer's to ascertain the proper
meaning Of particular word, when woult inquire
after the true definition Of certain legal phrsseolosy We
cisit which know that the trainers of constitu
ton would regard the standard authorities ques
constitution on this subject might be subject to any con
structon which the passien or caprice OF COURT snd
jury might choose to give it, In times Of public excite
ment At time, the constitution might be nulihed
by construction; at another time the life and
liberty of the citizen be sacrificed BY lsttudinous one
The term levying war; says Chief Justice Marshall is
not the time applied treason. by the consti
tuition Of the United states 1t Ia technical term 1t
used in very old statute of that country
gusge is our language, and whose Laws form the sub
stratum OF our laws II scarcely conceivable that the
term not employed BY the trainers of constitution
in the which had been af xed by those from
whom We borrowed it, 30 fsr Is the meaning Of any
terms, particularly terms of art, is completely sscsr-
dered employing them in their asoertsined meaning
unless the contrary is proved by the context. Since
the adoption Of the constitution but few cases Of ndc
Dent for treason have occurred and most Of those not
many years afterwards Many o. the English then
considered good law and quoted By the best xt writer's
authorities have since been discredited II not
better 81
present to be- that the term evyiag war should
be- confined to instructions and rebslons for the
purpose OF overturniDg the government by free
Many Of the cases Of constructive treason quoted
by Foster Hale and other writer's, would perhaps
be treated merely aggravated riots felones But
for the purposes Of the present II Is not necessary
to pursue this subject further look beyond the
serious Importance to allow this Court indulge in sps-
culstiens wander from the safe path OF
precedent In England al instructions TO impnsoa
evil counseors TO attack his troops in orposi
ton TO his suhorty TO carry of or destroy his stores
provided for defence Of the reBm done CONFORMITY with
ard in aid Of rebels enemies and not only for ucre
private and malicious motive; TO hold fort
castle sssipst the king bis troops, actual force be
used in order keep posssssion to join with rebels
fsy and voluntarily to rise for the purpose Of throw
log down by force al Enclosures; alter the estabh she'd
lsw of religion &c TO effect innovations u public and
general by armed force or for any othcr pur.
Jose which usurps the In matters Of public
and general nslure;' AL these acts have been deemed
sltying Of war TO also TO have Instructions to
redress ty force national grievances or to reform real
imaginary evis Cf lublc nature, and when the
surgerts had private special Interest, or BY ntmi
5at IT, force the repes OF Law But when the object
II an isurrtc.on II Of local or private nature, not
hsvirg direct tendency 70 destroy AL properly and all
government, by nunter. and armed force viii not
amount To treason ~. :. vs.. Hoxie Paine, All
in TIE cSse of Bomsp and swartwout 10 the Supreme
Court Of the United Stair, /; Is decided That II is
rste we'll as consonant TO the principles Of
suop that the crime q treason should not BE- exclud
Cd hy construction 70 doubtful cases Tha; 20 const-
tuts the specific offence must be levied against
The United ststos 70 copspiie to levy var AMI actually
10 levy war are distinct Offences 4" This re.og
nisa siss ths Sostripe laid aqwn W s-.7 Csa.e IN
Frct' case That no CON plee the crime q evying war
there most be actual sepblage Of for the p1r
pose II al body Of people coaspse and mediate an
statute q the United States by force they are guilty
only Of q high midemeenor; but 81 they proseed %
carry such intention into execution ty force that they
are guilty az the treason Of l.vyins and the qusn
tuia Of thefors. employed neither lessons pcrssss
sne sl.me-whsthsr by one hundsed Or ore thousand
spirscy 10 levy sgsin,t the United 5tatos Is not
Treason uness combined with attempt 10 carry such
ccmbinn or conspiracy into execution, some actual
force sr vohDce must be used in pursuance OF such de-
sign TO levy bat 1t is altogether immstersl whether
the force used Is ucent cHectuate tho object any
force connected with the intention will constitute the
crime Of levyDg war In Mitchell cvse, IL de I'D ID
that 70 resist or prevent BY armed force the execution Of
particular statute Of the United states 10 evying
aseiost the United states and sith-
pthe meaning Of the copsttutioRn And 10 Fires
thstsn nsurrecon orrisng q sty body OF people with
In the United s.stss to attain BY force OF violence any
object Ct great public nature or Of public national and
RtnsA concerp AHevying OF war against the DDi.ed
state" Thai any insurr.ction 70 resist or p-eye,t
by force or violence the execution Of any statute Of the
United states under any pref nee Of is being Unequal
brIdenscHe Oppressive OK unconstitutional " levying
az war against the United States within constitu-
tion' And again" n the intention be to prevent by
orce Of arms the execution Of act Of Congress alto
seher any iofcibe cIposion calculated 10 ssry that
intention into Eject he evying against the United
Statesn
But the resistance 81 the execution Of law Of the Unit
ID sst., accompanied with any degree Of force a fer
prvate purpose rot tr.son To constitute that Of
renee the object Of the resistance must be Of public
sSd general nature ~. Hoxie, 1 Paine, 26j I
&c not think necessary 70 quote further the OPT
Diors of my predecessors IL will rue 10 say that the
late charge Of brother Kane TO the grand jury la the
District Court contains What believe 10 be correct
ttat ment q the decs this subject, and thai
fully concur in the doctrines stated aud the ,suu
expressed tLerein 10 the application Of these prnci
PIES Of construction 20 the case before the i,ry
Observe that the levyirg Of was~ against the
Cnltec s,sics is net necessarily to be judged Of