The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1859-11-25

allegiance and the whole object of such legislation and of
up, within certain limits what might elso BIO "extra-
VACANT and erring sprit OF the courts in extending the
law and the penalties Of treason 10 cases to which ought
not TO be applied.
Which being so, then, by known rule of criminal
pleading, no indictment for treason can be good which
does not in plain terms charge 1t to have been done In
breach Of allegiance. This was so decided, with much
more than usual soemnity in the OF Reginald Tucker
who indicted of treason and adjudged TO be executed
for the part which he took in Monmouths rebellion Yet
after which and subsequently to the revolution OF 1881
he procured leave TO bring a writ Of error, and
brought on ss judgment OF hs a,sandsr under
Temple had purchased his fnckers) estate This gen.
teman, therefore, opposed ts rb the reversal OF the
attander; and himself no mean lawyer, at least In point
Of ability, he employed also in his cause several OF the
foremost men then at the barr in Comberbachs report Of
the case Levine, who had been judge, and Powys and
Could who were judges afterwards, mentioned
as arguing on that side. No less than nine objections
taken, all Of which but two overrued, and
upon Of those two the court declined to give an
opinion that the decson which in the Court of King
Bench unanimous, rested altogether upon point,
which point was that the indictment was, AMI even
in that stage to DO considered bad, for Of
ring in sufficient form that the treason
was committed In breach OF allegiance The common
form, perhaps the BEST Of making the
charge in conclusion of the count tina. all the msdceds
alleged in the body OF dOnein those times when
all law proceedings entered OF record were in latin
"Cotyd hgentte deJit against (Or the printed
precedens since Law proceedings have been in English
generally have 1t, contrary toy the duty Of his ale
cases Of statutory reaSOnS Capable
Of being committed, even without breach Of any such
duty (some trcasons OF that kind created In the
reigns OF Henry tho Eighth and Charles the Second,
and perhaps some such were included in the de-
claratory statute Of Edward III. before quoted to w.t.
offences relative to tho coin) it has been the uniform
in all precedents used and approved charge
it, for precedens before fuckers case the references
in show, r G., lsS, lS9; and for precedents subse-
quently, lost Gro. Law, s; Gro Giro. Comic, All,
Plead. 1858; Chit Crim law 70, IS, SO, 81, LIST edit
STARK Grim Plead, 1853; Archb. Grim Plead, 81, 35
al7, Sd edit. And for American precedents see Dav.
Prec. 25l, 1855; Wharf Prec Mum, ill., 1llS, 1,ll9
1920 l,i3l 1882 wherein always this conclusion is
used, except where in the commencement OF the count
the person accused is averred to be "owing
allegiance" In this Of Tucker insisted that
in order TO be good indictment Of treason must have
such conclusion; but Lord Chief Justice Holt said that
was needless If the same averment were found any
where in it, But that 1t must be somewhere therein all
the Judges agreed, after long time for consideration and
many debates; and because 1t was nowhere in that in
dicment the Judgment founded on it reversed and
that reversal was afterwards affirmed in Parliament The
case reported in many books, but best n1 Id. Raym
1856. See ase s. c. H. Mod 81; Skim $685. 500 425 4i2
Salk, $50; Lev, 1885, Cas- Temp. Holt, 87s The in
dicment ITSELF in the original Latin is set in Sho.
p. c., 1885, portions Of which, it is submitted, may be
correctly translated thus-That the said Tucker and
another indicted jointly with him, not having the fear
their allegiance, but moved and seduced by
the nsgation of the devil Withdrawing the affection and
true and due obedience which the true and faithful sub
jects of lord the king, &c. towards said lord
the the king should bear and Of right are bound to bear
and contrivng and intending, &C.. traorously (prodi
torie) compassed imagined ans intended SAID lord
the king, their supreme and natural lord, to bring
death, and against our said lord the king, their
supreme true natural and 1ndouetsd lord
peace Of our said lord the king. his crown and
dignity, and against the form of the statute such
made and provided And to maintain it, in spite
of its wanting such conclusion as has been above
toned any distinct averment 10 the same effect
earnestly pressed that the want of such conclusion such
distinct averment was supplied q Id Raym. p Comb.
258) by the words considering the duty Of their al
egiance," (Sknn. $780, Salk. $780, and by the words
against our said lord the king, their supreme, true
to the like effect; which, was sad necessarily imply
and consequently that this treason was Committed
a 5s s ass M sos, ss shs 1s y
which, it said, necessarily carried with it the
implication But all in vain; though it was agreed that
sions so relied on, they were needless And accordingly
the law has been held ever since e Hawk. p. G. ch u.s.
Indictment, G. l. Blacklist Comm. so7 Easts Gro Law
lis; Chit. Grim Law 242 Stark Grim Plead 697o;
Steph Comm. 376.) Nor is il material in this aspect,
whether the person accused be subject citizen by
birth otherwise, stranger for, even in the case Of
the latter the thing things alleged as overt act acts
ratorousy and against the duty Of allegiance dyer
145 a, pl 81, Sherley's case; Rep 3D. Ferrara dc
Canals case, cited in Calvns Hob 27l Courteens case;
sect s; Fost Gro Law 1861 And, moreover, they must
be proved to have been done for the presence
unconstraned Of stranger in country, II Do under the
protection express impied) OF its laws, will not sub
ect him to the consequences OF allegiance evon local and
temporary so as bring anything which he do within
the crime the penalties Of treason AS, in the of
Perkin Warbeck, who being an alien, and invading the
kingdom with army to claim the crown under pretence
OF being a of Edward the w., and being taken
prisoner resolved by the judges that he could
be proceeded against traitor. q Rep 6. b., Calvn's
case; Inst. IL.
whether any such indirect allegations Of allegiance
being found those the indictment
against Tucker which stated that he aud another did
what charged to have been done by them, in disre
gard of .the duty OF their allegiance" and &C withdraw
ing the affection and and due obedience which the
true and faithful subjects Of the King Should and Of right
death the King the throne their supreme and natural
lord would have been sufficient under statute couched
in the very words of the 18th section of " c., 1S49,
201 II not material to inquire pasmuch in the count
question there not to be found expressions
a single expression Of Ike character thereto The per-
sons accused may have done everything charged against
them the character of libusers from Cuba, making
hostile invasion from the time Of their first touching Vir
gnia SOIL and therefore owing her aught OF ale
glance for thing that appears in the said count unless
some implication Of allegiance may be made out of the adj
verbs feonousy and traitorously and the adjective
'treasonabie applied, the former to all that is therein
alleged 10 have been done, and the latter to the alleged
sends and purposes Of the persons indicted. Any
such implication is supposed to be sufficiently rcbued by
Virginia authorities of the very highest character, and in
very great number
The statutory provision in " c. 1s4e 2o7, g. -, has
been in words to precisely the same effect in force
shcph stat. Is, 95 or. 1874 p 3s, "a, s.
R c. 1s19,p Gil, 100, s. a. sess acts 1s47s p l44,
40, title s. c. co. H. And since that date has
been decided, after verdict that indictment charging
goods to have been eloniously and burglaousy taken
from dwelling house. without charging in other
that this done in the night time, is not good ndct
ment for burglary, but is only an indictment for larceny
"a Leigh 65s60 Comm Marks That presentment for
gaming which charges defendant with playing at Sun
lawful game at the house Of r. Ipsconb in the town OF
Brentsvlle' is fatally defective in not charging that
the house ordinary public place. to show
otherwise than by the adjective applied to it, that the
playing offence. a Leigh GA, Ford v. Comm)
lsee also 10 Leigh ESQ., Roberts Comm 10 Graft 1877,
Bishop v. Comm. IA Graft &C., HUFF " CoInm) And that
indictment is bad which charges that certain day
the prisoner eloniously had in his possession twenty
pieces Of base CON- without otherwise showing that he
had them in his possession at one and the same time "a
Graft 6S7, Scott V. COMM In this case Judge Daniel,
ia whose opinion the rest Of the Judges concurred ead
The defect is not helped by charging that the prisoner
eloniousy had the twenty pieces in his possession To
make the count good does not suffice to style the pr
soners offence felony is absolutely essential to tue
validity OF tho count that should also distinctly set
and charge the acts which constitute the offence" "a
Graft 692-93.) (Seo also virg. 1872 Barker v.
Conn.,; Leigh 700, Jacobsv Comm. a Leigh 692, Comm
v. Peas Graft 629, s. C) especially what is said by
Judge Lomax In the last cited Case Graft. G37-41