The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1859-11-25
JOHN BROWNS WRIT OF ERROR.

Virafnia-Unanim Decision OF the
Court Refusing tho Prayer.
OUR RICHMOND CORRESPONDENCE
RICHMOND, Va, Nov. 10, 1850.
The cnse Of John Brown was up before the Court of Ap.
peas ia this city to-day, upon petition, which reads
COMMONWEALTH AGAINST BROWN
To the Honorable John j. Allen, President and his
ciaes Judges OF the Supreme Court OF Appeals of Viz
Your netoner John Brown, humbly showetb. tina. In
the record and proceedings and in the giving of Judge
ent upon indictment against him in the Circuit Court
Of tho County Of Jefferson by which Court on the second
day Of November 1859, he condemned and adudged
10 BIZ hanged by the neck until he be dead Ia of
which said record accompanies this petihon) manifest
error hath INTERVIEWED to tho great detrment your petit
toner Wherefore he prays that writ OF error may
allowed him, 10 the end that the said record and proceed
ings may be reviewed by your honors well hoping that
for error therein the said Judgment will be reversed for
the following among other
The said indictment consisted of four counts which
as described, I'm endorsement thereon) for treason
advising and consprng with slaves md others TO REBEL
and for murder and 1t in each of the said counts
against your petitioner and divers others Your petitioner
however, was tried alone upon II. And after verdict
(such as II was) which in the preamble Of the
judgment aforesaid is rected as conviction OF
treason, advising and consprng with slaves and
70 rebel and for murder in the first degree general
judgment Of death was upon the whole Of the said ndic
mept pronounced against your petitioner Notwthstand
ing petitioner between the time OF the said verdict
beng rendered, and Of the said Judgment being pro-
nounced moved the court to arrest the judgment ten
vera grounds, and which ar call set out in bill excep
tons signed and sealed by the Judge Of the said Circuit
Court be seen in PIP Is and 6 Of the said transcript
For brevy sake your petitioner begs leave TO refer your
Honor hyher them OF his causing the whole OF
them 10 be copied here ueJanl And for the cons
Iteration hat proxity may be avoded) while
be does not waive Of the said ten grounds but relies
and insists upon them ALL for reversing
the judgment which he could not prevail to have arrested
and accordingly prays your HoLors to give 70 him the
lawful benefit Of each Ho will here dwell only upon
those noticed in the sequel Of this petition.
The third in order OF the grounds 80 stated for the said
motion In arrest was expressed in these words Be-
II il averred the first count of the indictment
he count for treason that the said defendant was at tho
time Of the commission OF the offence therein charged,
citizen Of tho State Of Virginia, or Of the United
States" The meaning and import Of which objec.
ton was, that the said count did not charge the
said offence against he commonwealth of Virginia.
as 1t seems to have been designed to consider it, or
against the United Statcs was designed TO consider
Il, to have been committed in breach Of any allegiance due
from your petitioner to either the former the latter
And at any rate, the said count did not SO
charge, your petitioner is advised that he hath the
right 70 insist upon such defect Of the Indictment
ground OF for reversing the said judgment whether
was or was not distinctly put forward as ground Of
his said motion in arrest Accordingly, he humbly puts
in his claim to the benefit Of 1t both ways.
That treason canno be committed against the United
States but by who allegiance, perpetual tenn
porary to the government thereof is established by the
highest judicial authority Of that government itself Is
Wheat, 80, or United States Wiltberger) And that
il treason can be committed at all against the Common
sttution-a point drawn into question by the fourth in
order Of the grounds alleged for the aforesaid motion
arrest and in regard which, to the trouble of
turning hereafter your petitioner begs leave to
refer able discussion Of that precise point in Ane
Law Magazine, No s, for January 1916, VOL a. pp
3lS-350-it can only be committed by one owing ale
glance Of the other kinds above mentioned TO the
said Commonwealth, is supposed 10 be very certain,
though not known TO have been in like manner estab
hshed. (See Davis Grim Law 49, The statute enacted
In the first year of the Commonwealth entitled San Act
declaring what shall be Treason Isl to the part
teral at present te be noticed in these Words Whereas
divers opinions may be what case shall be adjudged
treason and what not be enacted by the General AS
semDly Of the Commonwealth OF Virginia, that if man
do levy against this Commonwealth in the same or
be adherent to the enemies the wealth with
IN the same, giving to them aid and comfort
in the Commonwealth or elsewhere, and thereof be legally
lawful witnesses, or their own voluntary confession the
cases above rehearsed shall be judged treason, which
extendeta to the Commonwealth" g. Hen, stat 16s,
tinued through all the revisas of the laws q sheph
stat 1877, Oct 1902, 70, $. Il Virginia Laws, 1794
1874, p. 2S4, c. 1876, 8. 1; R. c. 1919, p $50, c.
162 ID until was altered at the session of Assembly
in lS47-s in the manner be hereafter mentioned In
this, its original form, it upon the model, and to
the points Of comparison material now 10 be noticed il
copy OF the statute 25 Edward 3, statute g. cap 2
entitled in Ruheads edition Of the statutes at large "a
Declaration which offences shall be adjudged treason
which may be in Ruff, statute POI, 262 and in
Inst l. g in both the Norman French original and the
ancient English translation The latter, far
pars0n is desirable, is as folowsltem, whereas divers
opinions have been before this time in what case treason
shall said in what not the King al the request of the
Lords and Of the Commons hath made a declaration in
the manner hereafter folowetn-tbat is say when
man doth compass imagine &c, &C. 'or if do
levy war against our lord the King his realm be ad
heren to the Kings enemies in his realm giving to them
aid and comfort in the realm or elsewhere and thereof be
probably (prouLtne attained of open deed by the peo
pe of their condition., &C. &C.; ' is to be understood
that in the above reharsed that ought TO be ad
Judged treason which extends our lord the King and his
royal Majesty Thus is seen that no more said about
allegiance the than in the other of these stautes
but in each the person who shall be capable ofcommttng
treason is described only "a man.. Yet under the
statute of Edward it has been invariably holden that
be guilty of that offence unless at the time he
owes alegances The authorities which prove this are
numerous and familiar that 1t is entirely needless cite
any-and the Virginia statute was copied so closely
from it, with perfect knowledge on the part Of the great
who sat in that Legislature and led its counses that
such the settled Interpretation, the nterpreta
ton be put the provision then enacted by Them
There is no more perfectly settled canon Of legal and poll
teal hermeneuics, than this, (sedw. Stat Constit.
Law 0, 1926 2 Pet S. G. Rep. is, pennock Dialogue
Pet S. G. Rep ESQ., Cathcar v. Robinson scamm. 2Ss,
Campbell v. Qunlin; q Maine Rep. 9, Myrick Hasey;
q verm Rep. 256, Adams Field % Misss Rep. 2l3 In
graham v. Regain; 10 hin. Rep. Is, Rgg v. Wilton;
Comm. Hartnett % Alab. Rep. 326, Duramus Harri
SON. Indiana Rep Q, The State v. Swope.) Indeed the
Virginia statute 1776 was nothing more than an adap
taon to the form Of government then just adopted,
Of same law concerning treason under which Virgnans
had always lived since the first foundation of the colony
statute law undergoing slow process of revision,
through the fundamentally Of reyisors, the Legislature
itself executed revision of the statutory criminal law
and enacted provision on the subject Of trea-
SON. (sess. acts 1878, p. 90, c. 12O, title
s. IL which was in words almost the same,
and legal effect plainly identical with the provision of
the present Code, $780, s. L." Treason shall consist
only levying against the State adherng TO its
enemies giving them aid and comfort, establishing
without authority of the Legislature, any government
within it's limits separate from the existing government
holding or executing, in such usrped government any
office, processing allegiance fidelity TO it, resisting
the execution of the laws under color of its authority"
But this enactment be construed expanding the
law Of treason to take in as persons capable Of commit
ting ii, such no allegiance 10 the commonwealth for
two reasons-nrst it is settled that in constituting that code
an alteration of the former law must be presumed not
to have intended unless intention make such
alteration plainly appears. al Graft, 200, Parramore
Taylor; also Munt 200, 2o7, ballard Tomnson
Rand 864, 665, Comm VS.. Carver; Rand, 744, shir
ley VS.. Long; Leigh 49, VIM VS.. Jones; Barb. Rep,
10l Croswevs. Crane; Sanford $. Rep, 374 Dominck
VS. Michael Foster, 400, Mooers Banker; Zabrsk,
$780, re. Murphy 20 Alab. Rep, 1885, Duramus Harr
son; Texas Rep "a, Ennis vs. Crump; SO New Hamp
shire Rep, 247, Burnham vs. Stevens; Sedgw. Stat
and Const Law, 42s, 429 And second, the expression
that treason shall consist only in levyng war; &c.
far from meaning that evying war, &c, shall alone be
sufficient constitute treason in any body without MORE
and especially without any obligation Of allegiance, i'm
ports the contrary that treason shall not be capable of
being committed in any way but by such acts even though
Tie accused does allegiance This Interpretation