The national era. [volume] (Washington [D.C.]) 1847-1860, 1851-10-30
WHOLE NO. 252.

PreeedentS they are, apprehend, to be consid-
cred as the lar Of The idnd and cannot be
shaken OF departed from unless fatly absurd
and unjust BtackStoae'S Commentaries
page 20. But if they are no further obligatory
than as they may be oonrnciag, they are no
more obligatory upon the consciences Of Judges
than the reasoning Of other men who never sat
in the chair of judgment in any country.
The presiding judge, upon the same occasion
seems TO have expressed himself in a style some
what different from that in which he addressed
the grand jury of South Carolina {" | must
confess says he, "as these able and learned
trainers of our Constitution borrowed the act
in terms from the British statute alOne-an au-
thOrity with which they were familiar-that
they certainly, at least, meant that the English
authorities and definitions Of those terms should
be much respected '-Judge HedePs charge 10
the jury Trial Of Fries l67.
Judge Chase, on the subsequent trial of Fries
declared, "That the court would admit as a
general rule of quotations from the English
booksssSss aszauthorities whereby they were
DO fbut as opinions and decisions Of men of
gf6&s4egal learning and ability But even then
the court would attend carefully to the time of
the decision, and in no case must it be binding
upon our juries" Trial Of Fries 1901 As
this was pronounced as a general rule by the
court and not as the opinion of single Judge.
we may consider it as now settled that the Eng
lish authorities are not binding as precedents:
consequently that they do not form part Of
the law of the land. but are to be respected only
as the opinions of men of great legal learning
and ability, which may nevertheless be canvass
ed as freely as the opinions Of other men Mel
ther arc we now bound TO suppose that the fra
900 ~, Al
cisions as guide to our courts in the interpreta-
ton of the definition of treason against the
United States
= BY the old common Jaw Of England. before
tne ctfqtt,st the crtnfe Of ti1d0n frdAtson, pr-
ditto (which, in it, very name, imports treaeh-
s2~ nr t2N1eb % ia&yt wbop e:.,sli4A . .Ise ,e-
son of the King, or his Government. was called
the crime of majesty and it is said. Hoyngs
Mirror, oh, l. sec. 4 might be committed in
three ways
l. BY those who kill the King. or compass 50
to do.
2. By those who disinherit the King Of his
realm, by bringing M an drmy or compass SO
| to do.
3. By those adultercrs who ravish the Kings
wife, &c
1t il ON the authority of this passage in the
Mirror that Sir Edward Coke lays it down 3
Inst, page 9 that leyying war against the king
was treason by the common law. We find
then, that the common law sense of ths oh,
| scure phrase, rs Sir Mathew Hale calls it, n
Hdies HIST. p. c. l43, was tie bringing IN or
raising Gn army And in this sense it il prob
able that every man in America with the ex-
eeption perhaps of half dozen lawyers) under
stood the term leUyng war when the Constitu-
ton was adopted and in this sense it seems to
be still understood by some gentlemen whose,
professional talents are both an honor and an
ornament to their country-1ridI Of Fries, 90,
80, 1879, 9c.
| 1t seems to have been taken for granted that
| the clause in our Constitution which relates To
the crime of treason Is an exact transcript from
the statute 25 Edward III, 1riGi of Fries 10,
1913, 100, l6l. 1t may therefore be not amiss to
compare them
The words of that famous statute are as fol-
lows "Whereas divers opinions have been ne.
fore this time in what case treason shall he sa.l
and in what not the King, at the request of the
Lords and Commons, hath made declaration in
the manner rs fooweth: That is to say, when
a 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 condition and
if II man counterfeit the great seal &c Emu
meratng several other cases And it is to be
understood that in the case above rehearsed
that ought to be adjudged treason which ex-
tends to our lord the King and hsroyal majesty,
and the forfeiture, &c. And moreover there
Is another manner of treason that is to say,
when servant slayeth his master, &c; and be
cause many other. like cases of treason may
happen, in time to come, which n man cannot
think or declare ut this present time, it is ac-
corded that if any other case supposed treason,
which is not above specified, doth happen be-
fore 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 or other felony"
| Upon this statute we may here 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 enumerated, it
expressly supposes that many other cases OF
treason may happen, although the trainers of
that statute could not then think Of them*
True it is, such cases were to be reserved for
violence OF succeeding times, and the corrup-
ton and complying temper of succeeding Par.
liaments, during a succession of more than twos
centuries, left but little room for scrupulous
judges, had there been any such in those days,
to apply for a parliamentary Interpretation Of
any underlined offence supposed to be treason.f
Sir Matthew Hale, having enumerated sew
eral instances Of arbitrary and unjust decisions
respecting treason, thus proceeds-(l Haies, p.
c. so, SO
"By these, and the like instances that might
be given, it appears how uncertain and arbi-
trary the crime of treason was before the stat
ute of 25 Edw. Ill, whereby it came to pass that
almost every offence that was, or seemed 10 be-
breach OF the faith and allegiance due to the
King, was, by construction and consequence,
and Interpretation, raised into the offence Of
high treason
"And we need (he proceeds no greater in
stance Of this multiplication of constructive
trcasons than the troublesome reign of Richard
II, which, though it were after the limitation Of
treasons by the statute rs Edw. Ill, whom he
Immediately succeceed, yet things were so car
ried by factions and parties in this Kings reign
that this statute was little observed but AS
this and the other party prevailed, 30 the crimes
Of high treason were in manner arbitrarily
imposed and adudged to the disadvantage Of
that party that was intended to be suppressed
40 that de )acto that Kings reign gives US IA va
rous instances Of these arbitrary determine
tons of trcasons, and the great Inconvenience
that arose thereby, as if indeed the statute 25
Edw. iii had not been made or in force And
though most Of those judgments and declara-
tions were made in Parliament sometimes by
the King Lords, and Commons sometimes by
the Lords, and afterwards enacted AS laws
sometimes by a plenipotentiary power commit
ted by acts Of Parliament to particular Lords
and others yet the inconvenience that grew
thereby, and the great uncertainty that hap