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with Notes of Reference (1803)
St. George Tucker
IT is probable that no part of the constitution of the United States, was supposed to be less susceptible of various interpretations than that which defines and limits the offense of treason against the United States; the text is short, and until comments upon it appeared, might have been deemed explicit; it is as follows:
“Treason against the United States shall consist ONLY in levying war against THEM, or in adhering to THEIR enemies giving them aid and comfort .”1
From this declaration contained in the constitution of the United States, the supreme law of the land, and the fountain, both of the authority of the government, and of the crime against it, a plain man might draw conclusions, very different from the artificial reasoning, and subtle refinement of technical men: and seeing that that instrument is to be regarded as the act of the people of the United States, both collectively, and individually, it might seem reasonable that the interpretation of nine hundred and ninety-nine plain men, who were parties to it, ought to serve as a guide to the thousandth man, who may happen to be called upon to expound it. But as technical men are not very apt to respect the opinions of such as have not been educated in the same habits with themselves, the probability is, that the opinions of one man in a thousand,or rather in a hundred thousand, will overbalance that of the rest of the community, unless the latter should deem it an object worthy of their attention to express their opinion, in some way that may be regarded as obligatory upon the few, who dissent from them.
Two additional clauses, are to be found in the constitution of the United States, and the amendments thereto, whereby it appears, that the framers of the constitution, and those who adopt, ed it, were of opinion, that too much caution could not be used upon so important a subject.
1. The constitution provides,2 “That no person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act.”
2. The amendments to the constitution of the United States provide,3 “That in all criminal cases, the accused shall enjoy the right to a speedy and public trial of the state and district, wherein the crime shall
have been committed: which district shall have been previously ascertained by law.”
The reason of these constitutional limitations has been thus explained, on different occasions.
“As new fangled and artificial treasons have been the great engines by which violent factions in free states have usually wreaked their alternate malignity on each other, the convention have, with great judgment, opposed a barrier to this peculiar danger, by inserting a constitutional definition of the crime.”4
Judge Wilson, in the first charge which he delivered in the federal circuit court of Pennsylvania, expressed himself thus on the subject. “It well deserves to be remarked, that with regard to treason a new and great improvement has been introduced into the government of the United States; Under that government, the citizens have not only a legal, but a constitutional security against the extension of that crime, or the imputation of treason. Treasons, capricious, arbitrary, and constructive, have often been the most tremendous engines of despotic or legislative tyranny.5
Judge Iredell, on a similar occasion in South Carolina, observed…. Treasons consists in two articles only; levying war against the United States, or adhering to their enemies, giving them aid and comfort. The plain definition of this crime was justly deemed of such moment to the liberties of the people, that it was made a part of the constitution itself. None can so highly prize the importance of this provision, as those who are best acquainted with the abuses which have been practiced in other countries in prosecutions for this offense. No man of humanity can read them without the highest indignation; nor, in particular, can they be read by any citizen of America, without emotions of gratitude for the much happier situation of his own country.6
Such, probably, were the opinions of the citizens of America in general, when they adopted the constitution; but technical men have since made some important inferences and deductions from the use of some words in that definition, which are to be found in the statute of treasons in England,7 from whence they conclude, that the decisions made upon that act in England, during a period of near five hundred years, however contradictory or inconsistent they may be, with the text or with each other, have been adopted also by the constitution, “as a direction whereby the courts are to understand the application of that act.”8 And it has even been advanced, on a very important occasion, that, what in England is called constructive levying of war, in this country must be called direct levying of war.9
One of the judges present upon the occasion above alluded to, is reported to have expressed himself thus: “The authorities from British precedents and adjudications, are used as guides in our decisions. I will not enter into a discussion whether we are bound to follow them, because they are precedents, or because we think them reasonable and just.”10
The distinction is however important; and it is therefore to be wished, that the learned judge had given an opinion on the subject. If the British authorities are to be regarded as precedents, they are, I apprehend, to be considered as the law of the land, and cannot be shaken or departed from, unless flatly absurd and unjust.11 But if they are no further obligatory, than as they may be convincing, 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 somewhat different from that in which he addressed the grand jury of South Carolina. “I must confess,” says he, “as these able and learned framers of our constitution borrowed the act in terms from the British statute alone, an authority with which they were familiar, that they certainly at least meant, that the English authorities and definitions of those terms should be much respected.”12
Judge CHASE, on the subsequent trial of Fries, declared, “That the court would admit, as a general rule, of quotations from the English books; not as authorities whereby they were bound, but as opinions and decisions of men of great legal 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.”13 As this was pronounced as a general rule by the court, and not as the opinion of a single judge, we may consider it as now settled that the English authorities are not binding as precedents; consequently, that they do not form a 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 canvassed as freely as the opinions of other men. Neither are we now bound to suppose, that the framers of our constitution meant to adopt those decisions as a guide to our courts in the interpretation of the definition of treason against the United States.
By the old common law of England, before the conquest, the crime of treason, trahison, proditio, (which, in it’s very name, imports treachery or breach of faith,) when applied to the person of the king, or to his government, was called the crime of majesty, and it is said,14 might be committed in three ways,
1. By those who kill the king, or compass so to do;
2. By those who disinherit the king of his realm, by bringing in an army, or compass so to do;
3. By those adulterers who ravish the king’s wife, etc.
It is on the authority of this passage in the Mirror, that sir Edward Coke lays it down,15 that levying war against the king was treason by the common law. We find then, that the common law sense of this obscure phrase, as sir Mathew Hale calls it,16 was the bringing in or raising an army. And in this sense it is probable that every man in America (with the exception, perhaps of. half a dozen lawyers) understood the term levying war, when the constitution 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.17
It 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 Edw. III.18 It may therefore be not amiss to compare them.
The words of that famous statute are as follows; “Whereas divers opinions have been before this time, in what case treason shall be said, and in what not; the king at the request of the lords and commons has made a declaration in the manner as follows: that is to say, when a man does compass or imagine the death of our lord the king, etc. or if a man do levy war against our lord the king in his realm, or be adherent to the king’s 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 a man counterfeit the great seal, etc. [enumerating several other cases.] And it is to be understood that, in the cases above rehearsed, that ought to be adjudged treason which extends to our lord the king, and his royal majesty; and the forfeiture, etc. And moreover there is another manner of treason, that is to say, when a servant slayeth his master, etc. and because many other like cases of treason may happen in time to come, which a man cannot think or declare at this present time, it is accorded that if any other case supposed treason, which is not above specified, does happen before 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 framers of that statute could not then think of them.19 True it is, such cases were to be reserved for the king and parliament to pass upon, but the violence of succeeding times, and the corruption and complying temper of succeeding parliaments, during a succession of more than two centuries, left but little room for scrupulous judges, had there been any such in those days, to apply for a parliamentary interpretation of any undefined offense supposed to be treason.20
Sir Mathew Hale having enumerated several instances of arbitrary and unjust decisions respecting treason, thus proceeds.21
“By these and the like instances that might be given, it appears how uncertain and arbitrary the crime of treason was before the statute of 25 Edw. III, whereby it came to pass, that almost every offense that was, or seemed to be a breach of the faith and allegiance due to the king, was by construction and consequence, and interpretation, raised into the offense of high treason.”
“And we need (he proceeds) no greater instance or this multiplication of constructive treasons than the troublesome reign of Richard II, which though it were after the limitation of treasons by the statute 25 Edw. III, whom he immediately succeeded, yet things were so carried by factions and parties in this king’s reign, that this statute was little observed; but as this or the other party prevailed, so the crimes of high treason were in a manner arbitrarily imposed and adjudged, to the disadvantage of that party that was intended to be suppressed; so that de facto that king’s reign gives us as various instances of these arbitrary determinations of treasons, and the great inconveniences 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 declarations 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 committed by acts of parliament to particular lords, and others, yet the inconvenience that grew thereby, and the great uncertainty that happened from the same, was exceedingly pernicious to the king and kingdom.”
Abundance of cases may be collected from the same author, to show that the judges were rather astute in extending the offense of treason, than strict in the construction of the statute, which has been supposed to limit it. And, how much soever modern judges and jurists may be supposed to have been uninfluenced by their authority, yet the contagion of precedent has come down even to those days: For, I think it cannot be denied that, if all the cases of constructive treason, were destroyed and utterly forgotten, even the most modern decisions upon the subject of treason, would have been stript of some of their circumstances and conclusions. But to proceed….
The author above cited says,22 “what shall be said a levying war, is in truth a question of fact, and requires many circumstances to give it that denomination, which it may be difficult to enumerate or define; and commonly is expressed, by the words more querrino arricati, arrayed in a warlike manner, in the indictment.” Without these operative words, which are thus descriptive of the offense of treason, it would seem that the indictment would be defective and vicious,23 men of plain understanding would be apt to infer from hence, that the fact must be proved accordingly, otherwise that the offense might be a trespass, or a riot, but could not amount to treason in levying war: but technical men have discovered, that numbers will supply the want of military array or weapons;24 and even Furor arma ministrat.25
The same author further observes26 “that to constitute the crime of treason, there must be a levying war against the king: otherwise, though it be more querrino, and a levying of war, it is not treason; therefore, if it be upon a private quarrel, or upon a private and particular design; as to pull down the enclosures of such a particular common, it is no levying war against the king, because it is not the authority of the king or his government which is attacked.” And yet, the pulling down two or three bawdy-houses, which the law regards as nuisances, by a company of apprentices (as we are told by the same author27),was adjudged to be levying war against the king, and therefore treason within the statute. And this last case, as well as the former, has been cited to an American jury, as a guide to their interpretation of the constitution of the United States.28
The same author observes elsewhere; “the very use of weapons by such an assembly, without the king’s license, unless in some lawful and special cases, carries a terror with it, and a presumption of warlike force, etc.” The bare circumstance of having arms, therefore, of itself, creates a presumption of warlike force in England, and may be given in evidence there, to prove quo animo the people are assembled.
But ought that circumstance of itself, to create any such presumption in America, where the right to bear arms is recognized and secured in the constitution itself? In many parts of the United States, a man no more thinks, of going out of his house on any occasion, without his rifle or musket in his hand, than an European fine gentleman without his sword by his side.
Again, in England, it is agreed on all hands, that all such as counsel, conspire, aid, or abet, the committing of any treason, a parte ante, whether present or absent, are all principals; and, that in all treasons except that which concerns the counterfeiting the great or privy seal, or money, whosoever knowingly receives, maintains or comforts a traitor, is a principal
in high treason. And this upon the construction of the statute 25 Edw. III.29
To men of plain understandings, these cases may illustrate the danger of adhering too closely to the judicial decisions and opinions of judges in England, who conceive themselves bound by former precedents, even against the conviction of their own private judgments;30 and who, in cases where the crown has been concerned, have too often thought it a duty to support it, against all dangers real or imaginary: and, at the same time, must evince the propriety of that decision of the court before-mentioned, that “in no case must they be binding upon our juries.”
Rejecting, then, the authority of decisions in England, as precedents, establishing the law of the land; yet respecting them where the reason of them applies, as the opinions of learned men, I shall proceed to consider the offense of treason in a twofold light.
1. As it relates to the American states, individually.
2. As it relates to them, collectively, in the character and capacity of the United States.
1st. Then of the offense of treason as it relates to the several states, individually.
Upon the dissolution of the regal government, all public offenses became offenses against that particular state in which they were committed. Thus, murder, theft, robbery, etc. committed in Virginia, were in the indictment alledged to be
committed against the peace and dignity of this commonwealth.31 Many offenses which depended upon the nature of the British government, as a monarchy supported by aristocracy, were annihilated, by substituting in its stead, a new form of government, the principles of which were incompatible with the former. But with respect to this offense of treason, the general assembly of Virginia, at the first session after the constitution of the state was established, passed a statute, declaring “that if any man do levy war against this commonwealth within the same, or be adherent to the enemies of the commonwealth within the same, giving to them aid and comfort in the commonwealth, or elsewhere, and thereof be legally convicted of open deed, by the evidence of two sufficient and lawful witnesses or his own voluntary confession, the cases above rehearsed shall be adjudged treason which extends to the commonwealth.”32
Now here are the very words which have since been used in the constitution of the United States, but without the restrictive word only, in that instrument: so that every offense which can be comprehended under the terms levying war, oradhering to enemies, became an offense against the commonwealth, if committed within its precincts. If therefore the pulling down bawdy-houses; destroying engines for weaving; or pulling down all enclosures could be legally construed to be a levying war, every such fact committed within the precincts of the commonwealth, was treason against the state of Virginia, and so continues to this day.
And so also, every other interpretative or constructive levying war, however general, or with whatever circumstances attended, must be and remain an offense against the state; unless the object of levying the war be manifestly for some matter of a general concern to the UNITED STATES; the jurisdiction in respect to which belongs to THEM, under the constitution. For it is not enough that it is of a public nature, or of a great and general concern to the citizens of the commonwealth; but it must be of a general or public nature, and concern, as it respects the United States, and their jurisdiction, to oust the state of that exclusive right which it enjoyed before the adoption of the constitution, to inquire into and punish any such violation of its peace and authority. Were an armed multitude, arrayed in order of battle, to enter and burn the city of Richmond, destroy all the public records of the state, and commit every other possible outrage, aggravated with every atrocious circumstance imaginable, if their intention in so doing, should neither be to subvert the constitution of the United States, nor to affect any object in relation to the authority of the federal government, such conduct, though in the strictest sense it might amount to actual levying war, would only amount to treason against the state of Virginia, but could never be treason against the United States. For treason against the latter, shall consist ONLY in levying war against THEM, etc. Consequently where the United
States are not the object of the war, the levying it cannot be treason against them. Nor can it be pretended that the levying war against the authority of any individual state, within the same, would be levying war against the United States in any case; except where in case of insurrection or rebellion, such state should make application to the United States for such aid as the constitution guarantees to them in such cases: after which if the opposition should extend to the authority of the United States, it seems that the treason would also extend to them.
Nothing can evince more clearly than this distinction the dangerous practice of those, who are in the habit of regarding the federal government of the United States, as the legitimate successor and locum tenens of royalty in the United States of America. For such a practice is the parent of a confusion of ideas, which leads to innumerable mistakes of the utmost importance.
A second branch of high treason against the state, consists in erecting or establishing or causing or procuring to be erected or established, any government separate from, or independent of the government of Virginia, within the limits thereof, unless by act of the legislature of this commonwealth for that purpose first obtained: or in holding or executing under any such usurped government any office legislative, executive, judiciary, or ministerial, by whatever name such office may be distinguished, or called; or in swearing or otherwise solemnly professing allegiance or fidelity to the same; or, under pretext of authority derived from or protection afforded by such usurped government, in resisting or opposing the due execution of the laws of this commonwealth.”33
“All high treasons, imprisions, and concealments of high treasons and other offenses against the commonwealth, (except piracies and felonies on the high seas) committed by any citizen of this commonwealth in any place out of the jurisdiction of the courts of the common law in this commonwealth, and all felonies committed by citizen against citizen in any such place other than the high seas, shall be inquired into, heard, determined and judged in the general court in the same manner, as offenses committed within the body of a county are triable in a district court; and such as shall be convict of any such offense, shall suffer such pains, penalties, judgment, and execution, as if they had been attainted and convicted of such offense done within the body of a county.”34
2dly. I shall consider the offense of treason as it relates to the United States, in their collective and federal capacity.
When the federal constitution was adopted, it was deemed necessary for the more perfect security and preservation of the union, to create a new species of treason which might reach cases, not within the provisions of the laws of the several states; and without which, their projected union might be exposed to danger, and its authority to contempt.
But the framers of the constitution clearly saw, that this new offense should be clearly defined and strictly limited; they probably felt conscious of treading upon “Ignes suppositos cineri doloso;” they limited the offense therefore to two cases only, and comprised the whole definition in two lines: the whole legal vocabulary does not contain one more clear, precise, and determinate.
“Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.”
In my endeavor to analize this definition, I shall inquire,
1. What is levying war?
2. Against whom the war must be levied to constitute this new crime of treason against the United States?
3. Who may commit treason against them?
4 & 5. Who are enemies? and what is adhering to them, giving them aid and comfort?
6. The true import, and effect of the word only, and of that amendment to the constitution of the United States, which prescribes the mode of trial in this and other criminal cases.
1. First then, what is meant by the words, levying war?
I have already said enough respecting the English authorities, to show that I do not mean to rely upon their exposition of this text: happy would it have been for America, had no occasion occurred, in which her own courts had been called upon to expound them. I shall give the opinions of our own judges, as I find them reported in an account of the two trials of John Fries for high treason, in the federal circuit court of Pennsylvania, April and October 1799, and April 1800.
“The only species of treason likely to come before you,” said judge Iredell in his charge to the grand-jury, “is that of levying war against the United States. There have been various opinions and different determinations on the import of these words. But, I think I am warranted in saying, that if in the case of the insurgents who may come under your consideration, the intention was to prevent by force of arms, the execution of any act of the congress of the United States altogether, (as for instance the land tax, the object of their opposition) any forcible opposition, calculated to carry that intention into effect, was a levying of war against the United States, and of course, an act of treason. But if its intention was merely to defeat its operation in a particular instance, or through the agency of a particular officer, from some private or personal motive, though a higher offense may have been committed, it did not amount to the crime of treason. The particular motive must be the sole ingredient in the case, for if combined with a general view to obstruct the execution of the act, the offense must be deemed treason.”35
Patterson, justice, is reported to have expressed himself to the following effect, in Mitchell’s case.36 “If the object of the insurrection was to prevent the execution of an act of congress by force and intimidation; the offense in legal estimation, is high treason; it is an usurpation of the authority of the government; it is high treason by levying war.”37
And on the trial of Rigol,38 he is likewise reported to have said, “With respect to the intention, there is not, unhappily, the slightest possibility of doubt. To suppress the office of excise in the fourth survey of this state, and particularly, in the present instance to compel the resignation of Wells the excise officer, so as to render null and void, in effect, an act of congress, constituted the apparent, the avowed object of the insurrection. Combining these facts and this design, the crime is high treason.”39
Judge Iredell, on the first trial of Fries, expressed his assent to the decision in Mitchell’s case.40
Judge Peters, on the same occasion expressed himself thus: “It is treason in levying war against the United States, for persons, who have none but a common interest with their fellow citizens, to oppose, or prevent, by force, numbers, or intimidation, a public and general law of the United States, with intent to prevent its operation, or compel its repeal. Force is necessary to complete the crime; but the quantum of force is immaterial” … “If numbers and force can render one law ineffectual, which is tantamount to it’s repeal, the whole system of laws may be destroyed in detail. All laws will, at least, yield to the violence of the seditious and discontented”…. And again…. “I do not hesitate to say, that the position we have found established, viz. that opposition by force and numbers or intimidation with intent to defeat, delay or prevent the execution of a general law of the United States, or to procure, or with the hope of procuring by force and numbers, or intimidation it’s repeal or nonexecution, is treason by levying war against the United States. And it does not appear to me, to be what is commonly called constructive, but open and direct treason in levying war against the United States, within the plain and evident meaning and intent of the constitution.”41
Judge Chase, on the second trial of Fries, thus delivered the opinion of the court. “It is the opinion of the court, that any insurrection, or rising of any body of people, within the United States, to attain, or effect by force or violence any object of a great public nature, or of public and general (or national) concern, is a levying of war against the United States, within the contemplation and construction of the constitution.”42
With all submission, this part of the court’s opinion seems to me to be both questionable and extrajudicial.
1. It is questionable: because taken in the latitude and extent which the words will bear and manifestly import, the rising of any body of people, in opposition to the authority of any individual state, or to the laws of such state, would, under this construction, amount to treason in levying war against the United States, which, for reasons already mentioned, I humbly apprehend, could not possibly be the case.
2. Extrajudicial: because in the case of Fries, the intention, if of a public nature, was manifestly to oppose the execution of a law of the United States, and therefore this opinion, as it might apply to any other case of opposition, except an opposition to a law of the United States, was certainly extrajudicial.
Judge Chase proceeds thus: “On this general position, the court are of opinion that any such insurrection, or rising to resist, or to prevent, by force or violence, the execution of any statute of the United States, for levying or collecting taxes, duties, imposts, or excises; or for calling forth the militia to execute the laws of the Union, or for any other object of a general nature, or national concern, under any pretense, as that the statute was unjust, burdensome, oppressive, or unconstitutional, is a levying war against the United States, within the contemplation and construction of the constitution. The reason for this opinion is, that an insurrection 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 the citizens of the United States.”
“The court are of opinion that military weapons (as guns, and swords, mentioned in the indictment) are not necessary to make such insurrection,or rising amount to levying war; because numbers may supply the want of military weapons; and other instruments may effect the intended 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, I humbly conceive, likewise extrajudicial: there being no question as to the fact, that Fries and his party were furnished with arms, as guns and swords, etc.
“The court are of opinion, that the assembling bodies of men armed and arrayed in a 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 offense (as a riot) is the quo animo, or the intention with which the people did assemble. When the intention is universal, or general, as, to effect some object of a general public nature, it will be treason; and cannot be considered, construed, or reduced to a 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 (as felonies, the destruction of property, or the like) are done, will show to what class of crimes the case belongs.”
“The court are of opinion, that if a body of people conspire and meditate, an insurrection to resist or oppose the execution of any statute of the United States by force, that they are only guilty of a high misdemeanour; but if they proceed to carry such intention into execution by force, that they are guilty of the treason of levying war;43 and the quantum of the force employed, neither lessens nor increases the crime: Whether by one hundred, or one thousand persons, is wholly immaterial.”
“The court are of opinion, that a combination or conspiracy to levy war against the United States is not treason, unless combined with an attempt to carry such combination or conspiracy into execution; some actual force or violence must be used in pursuance of such design to levy war: but that it is altogether immaterial, whether the force used is sufficient to effectuate the object; any force connected with the intention, will constitute the crime of levying war.”
“In treason all the participes criminis are principals: there are no accessories to this crime. Every act which in the case of felony would render a man an accessory, will in the case of treason make him a principal. To render a man an accomplice and principal in felony, he must be aiding and abetting at the fact; or ready to afford assistance if necessary. If a person be present at a felony, aiding and assisting, he is a principal.”
Here again, I apprehend, this part of the court’s opinion is perfectly extrajudicial: Because, Fries, if guilty at all, was guilty, as a principal in the first degree; being present, and not only aiding and abetting, but commanding. And the correctness of this opinion, (even were it not extrajudicial) likewise seems to be very highly questionable, for reasons which will be mentioned, hereafter, when we inquire into the import of the word, only …. This doctrine is founded upon that artificial and abstruse reasoning, of which the English common lawyers were pre-eminently fond, as will appear to any person who reads their ancient tracts and reports.
The judge proceeds thus…. “It is always material to consider whether the persons charged are of the same party; upon the same pursuit; and under the expectation of mutual defense and support. All persons, present, aiding, assisting or abetting any treasonable act, are principals. All persons who are present and countenancing, and are ready to afford assistance, if necessary, to those who actually commit any treasonable act, are also principals. If a number of persons assemble and set out upon a common design, as, 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. If any man joins and acts with an assembly of people, his intent is always to be considered and adjudged to be the same as theirs; and the law, in this case, judgeth of the intent by the fact. If a number of persons combine or conspire to effect a 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, is in consideration of law, the act of all who are present, when such act of violence is committed. If persons collect together to act for one and the same common end, any act done by any one of them, with intent to effectuate such common end, is a fact that may be given in evidence against all of them; the act of each is
evidence against all concerned.”44
Most devoutly is it to be wished, that no future case may occur, wherein our courts may have any further occasion to inquire into the true exposition of this part of the text of the constitution: but if such cases should arise, it seems to me, that the safer course would be for judges to consult the text and spirit of our federal constitution and government, only; for otherwise, the plain text will be completely hidden, and lost sight of, in the multitude of precedents, founded upon artificial reasons, and conclusions drawn from a different source.
It is observable, that in all these cases the judges seem to have overlooked that obvious distinction before mentioned, between such acts of force and violence as may amount to treason against a particular state,
though not reducible to either head of treason against the United States, and such as may properly fall under the latter description.
This distinction may be further illustrated by the following case. By the laws of Virginia, before noticed, every person who shall erect or establish, or cause or procure to be erected or established, any government
separate from, or independent of the government of Virginia, within the limits thereof, unless by act of the legislature of this commonwealth for that purpose first obtained, etc. shall be guilty of high treason.
Now let us suppose an armed multitude were to establish such a government independent of the government of Virginia, within the limits thereof, by force and violence, would such an act be treason against the
If it would not, does it not prove that a general rising of the people, although with intention to obtain by force and violence an object of a great public nature, may not be treason against the United States, though unquestionably treason against the state of Virginia? This will more satisfactorily appear under the next head of our inquiry.
2dly. Then we are to inquire, against whom, war must be levied, in order to constitute this new crime of treason against the United States.
The words of the constitution, we must remember, are, “Treason against the United States, shall consist only in levying war against them,” etc.
Now, as every word in so important an instrument should be so construed as to have its particular effect, especially in cases in which the life and liberty of the citizen, on the one hand, and the safety of the union on the
other, may be at stake; and more especially where the rights of the states which have formed this confederacy may be concerned, this word them can only be referred to the United States in their federal character and capacity, and as designating an offense which might be dangerous to them as such. A contrary construction must have for it’s foundation, the supposition that the several states intended to resign into the hands of the federal government, the power of punishing all crimes and offenses whatever against their own individual authority and sovereignty; a supposition which is contradicted by every day’s practice in every state. If, then, there be an insurrection of the people, and war actually levied, within the limits of any particular state, whether it be for a private or for a public and general purpose, even so far as to affect the whole people of that particular state, yet, if that purpose extends not to any object of a general concern, wherein the United States as such are interested, such levying of war cannot be treason against them, although it might be treason against that particular state, within whose limits it may be levied.
3dly. Who may commit treason against the United States?
And here it seems to be clear, that every person whatsoever, owing allegiance to the United States, may commit treason against them. This includes all citizens, of every description, from the president of the United States to the beggar in the streets; and also all aliens residing within the United States, and being under their protection.
But it will be asked, how can the president of the United States, in whom the executive power is vested by the constitution, and who is the chief magistrate of the union, commit treason against them?
The answer is…. The constitution supposes a president capable of betraying the trust reposed in him, and of misapplying the public force, to the danger of the United States; and therefore has expressly provided for the case, by declaring, that in case of conviction of treason, or other high crimes or misdemeanours, he shall be removed from office, and shall moreover be subject to indictment, trial, judgment, and punishment, according to law.45
If an instance be demanded, we may put the following case. If a president of the United States should, by his own authority, presume to raise an army; or should, by his own authority, keep up, and maintain an army raised by the authority of congress, after the period when by law it ought to be disbanded, such conduct, in either case, if coupled with evidence of a sinister design and intention in so doing, would, I conceive, amount to an overt act of treason against the United States.
4thly, and 5thly. Who are enemies? And what shall be said to be adhering to them, giving them aid and comfort?
Happily for the people of the United States, no case has yet occurred, in which an exposition of this branch of our constitution has been necessary. But as the nature of crimes and offenses ought to be understood in every country, and more especially in one constituted, as ours, by the people themselves, I shall therefore endeavor to investigate this point, according to the best aids which I possess.
By enemies are here understood the subjects of foreign powers, with whom we are at open war: and therefore a rebel is not an enemy within this clause; a rebel being one that owes allegiance, and an enemy one that does not owe allegiance to the United States.46
As to foreign pirates or robbers who may happen to invade Our coasts, without any open hostilities between their nation and the United States, and without any commission from any prince or state at enmity with us, it may be doubted, how far the giving them any assistance would be treason against the United States. For although sir Mathew Hale,47 and after him sir Michael Foster,48 have pronounced that this would be treason in England, because such unauthorized invaders are to be considered as enemies, because not subjects, yet judge Blackstone,49 with great reason appears to doubt their authority, although he concurs with them in opinion that it would be treason; but upon a different ground: his words are…. “the giving them any assistance is also clearly treason; either in the light of adhering to the public enemies of the king and kingdom, or else in that of levying war against his majesty.”
But these doctrines, I apprehend, should be very cautiously admitted in the courts of the United States.
First; because the act50 for punishment of certain crimes against the United States, in pursuance of the authority expressly given to Congress by the constitution, to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations, declares, “that if any seaman or other person shall in any wise trade with any pirate, knowing him to be such, or shall furnish such pirate with any ammunition, stores, or provisions of any kind; or shall fit out any vessel knowingly, and, with a design to trade with, or supply, or correspond with any pirate or robber on the high seas: or if any person shall any ways consult, combine, confederate, or correspond with any pirate or robber on the seas, knowing him to be guilty of any such piracy or robbery, such person so offending, and being thereof convicted, shall be imprisoned not exceeding three years, and fined not exceeding one thousand dollars.”
So far, then, as relates to pirates, the offense of adhering to them, and giving them aid, and comfort seems to be strictly provided for by this act…. Consequently they are not to be deemed enemies, within this clause of the constitution.
Secondly, with respect to robbers, the subjects of foreign powers, who may, without any commission, or public authority whatsoever, make a descent upon our sea-coasts, and commit any depredations, or other acts of hostility on land; this would seem to be an offense against that particular state, only, within whose jurisdiction, such depredations may be committed, and for any reason that I can discover to the contrary, may be punished as such, by the authority of the state, if the robber be taken.51 And, in such case, the adhering to such robber, giving him aid and comfort, could, at most, amount to felony, either as a principal, or accessory, according to the nature of the case: unless from the whole circumstances of the case taken together, such depredations, or acts of hostility should amount to levying war against the state, or against the United States. If, for example, a fort be erected and maintained by any particular state at it’s own expense, for the protection of any of it’s shores or coast, and such unauthorized robber should make a descent upon the land, and attack such fort, those who should join him in such attack, would, I think, be guilty of levying war against the state; but if the fort should belong to the United States, the offense would then be against the United States: yet unless such unauthorized robber come within the meaning and description of an enemy (as he certainly does, according to the English authorities) such acts of
adherence as would not amount to the guilt of levying war, could not, I apprehend, be construed to be treason, within this clause of the constitution.
We are next to inquire, whether under our constitution it is necessary that war be declared, in order to constitute the crime of treason in adhering to enemies under this clause. Now the English authorities all concur, that an actual declaration of war, is not necessary to such a state of war, as may render two nations enemies.52 And yet it seems reasonable to think that there ought to be some public act, by which the citizens of America may be warned of incurring the danger of treason under this clause.
The statute of 25 Edw. 3, in relation to this offense is much more strict than the words of the constitution of the U. States, or of the act of congress which substitutes a new definition of treason in lieu of that in the constitution.
The words of the statute are…. “If a man be adherent to the king’s enemies in his realm, giving to them aid and comfort in the realm, or elsewhere.” From whence it clearly appears, that the statute contemplates the case of enemies being within the realm, and not such as may be elsewhere: for the word elsewhere, does not relate to enemies, but to the act of giving them aid and comfort.53 I know, indeed, that judges have not construed the statute thus strictly, although the words seem to me to require it.
The words of our constitution, indeed, are general enough to admit of that construction which English judges have given to the statute; and congress has accordingly added the words, “within the United States
or elsewhere,” in the act for the punishment of certain crimes against the United States, which is giving to the constitutional definition all the latitude that the words are capable of.
It may afford some light to this part of our subject should we here inquire, what overt acts of adherence and giving aid and comfort to enemies, constitute the offense of treason under this head?
To this, Judge Blackstone answers,54 that such overt act may be proved by giving them intelligence, by sending them provisions, by selling them arms, by treacherously surrendering a fortress and the like.
Here we may be permitted to ask; do all these cases apply, wherever aid of any kind is given to enemies, whether such as actually invade our country, or such, as (from their connection with that government with which we are at open war) may in construction be deemed enemies though not engaged in any actual hostility against us? It would seem that there is some room for distinction between the cases, though possibly it may be dangerous to attempt to draw the line…. Let us, however, select the case of sending provisions; the doing which, if sent to an invading enemy, or one already within our country, would certainly I presume, be an overt act of adherence, and giving aid within this clause: and so perhaps would the wilful and advised sending of provisions to the ports of an enemy preparing to invade us; for that may enable them to carry their projected invasion into effect…. But what if the case be, the sending of provisions to a distant and dependent colony, belonging to a government with whom we are at war, from whence there neither is, nor from the nature of things can be, any danger of invasion apprehended; would such a conduct amount to an overt act of treason in adhering to the enemies of the United States, giving to them aid and comfort, within this clause?
The act of congress, passed May 28, 1798,55 after reciting that armed vessels sailing under the authority of the French republic, have committed depredations upon the commerce of the United States, authorizes the capture of any such armed vessels, by the public vessels of the United States.
From, this period, a state of mutual hostility may be considered, as having existed between the two nations, though neither declared war against the other; the United States having in the mean time proceeded to
further acts of reprisal, which it is unnecessary to notice.
On the 13th of June following, an act56 passed to suspend the commercial intercourse between the United States and France, and the dependencies thereof, which subjects any vessel committing a breach of that act to seizure and confiscation: and moreover requires a bond with security from the owner and master of the ship for the due observance of that act: a subsequent act limits the liability of the security to ten thousand dollars.
Now let us suppose, that an enterprising merchant knowing of a scarcity of provisions in any of the dependencies of France, or in any particular port in that kingdom, after calculating the risque of confiscation, as also
the loss which he might sustain from a suit upon his bond and the indemnity to his security, should send a ship laden with provisions to such port. Would this be treason against the United States, in the owner, master, and all others concerned in the voyage?
If the word enemies be applicable to all subjects of a power with whom we may be in a state of hostility, within the intent and meaning of this clause of the constitution, it would seem that not only the master and his crew, but the owner would be guilty of treason, according to the maxims of the English lawyers: and yet perhaps such a judgment would be deemed harsh in the extreme, in the United States.
For, inasmuch as it belongs to congress alone, to declare war it might be urged, that if they had intended by the first mentioned act, to put the United States in a state of war, they might with the same ease have passed an act to that effect, as to have made the act they did: but not having declared war, and thereby cut off all intercourse with France, and advertising their fellow citizens of the danger of maintaining any intercourse whatever, with that nation or its dependencies; but on the contrary, having only suspended the commercial intercourse between them, under penalties of a pecuniary and fiscal nature only; it might be alleged, that here was at least a tacit declaration on the part of congress, that any breach of the second act, should be attended by penalties of a pecuniary nature only; and should not in any manner affect the person of the offender.
On the contrary, it has been said,57 and may be said again, “that the interpretation of the constitution belongs exclusively to the judiciary department in all cases of crimes and misdemeanours; and therefore, that congress cannot by any act of theirs alter the nature of treason, and make that a misdemeanour only which the constitution has declared shall be treason.58
In such a dilemma, all that we may venture to say, is, that it manifests the duty and obligation of those who are entrusted to administer the government, to deal fairly, openly, and candidly with their constituents; since an equivocal conduct on the part of the former, may involve the latter in the greatest civil guilt, and subject them to a disgraceful death, whilst they might suppose themselves in no danger of any offense, but a breach of a positive law respecting trade; nor of any punishment but a pecuniary penalty.
According to the principles in which the English jurists generally agree with each other, foreigners in our country, and our citizens, who may remain in a foreign country, after a war breaks out,between the two nations are not simply for that reason adherent to our enemies; for although the subject of a foreign power is presumed to adhere to that power to whom he owes allegiance, yet such presumptive adherence, if not accompanied with any overt act of aid or assistance, as in giving intelligence and the like, does not make him an adherent within the meaning of this clause; neither is the bare remaining in an enemies country, after a war breaks out, such an adherence in one of our citizens, as comes within this clause; if unaccompanied with any overt act as assisting our enemies in their wars; and even the refusing to return upon proclamation of recal, is held by sir Mathew Hale,59 to be only evidence of adherence, but is not simply of itself an adherence.
6. I now proceed to consider the import and effect of the word, only, in this clause of the constitution; as also, the legal effect, and consequence of that amendment to the constitution of the United States, which declares “that in all criminal prosecutions, the trial shall be in that state and district, in which the crime shall have been committed.
This word, only, as used in this clause of the constitution, is, according to my apprehension, the strongest term of limitation and restriction, that our language affords. Its obvious meaning is, these cases and no other whatsoever. “Treason against the United States, shall consist only in levying war, etc.” Here are both an affirmative and a negative in the same sentence; nay, in the same member of a sentence. The offense is created by the word consist; it is limited and restricted by the next word, only. It seems impossible to express an intention in stronger and more definite terms. But to what purpose were these terms used, and this strict limitation made, if courts, notwithstanding any such restriction, may nevertheless pronounce that other cases may by construction, amount to treason against the United States. If the authority of such explicit terms can be rejected in favor of artificial constructions, invented by arbitrary and corrupt, or by timid and complying judges, in the worst of times, a written constitution, containing what was deemed a limitation of powers, has answered no other purpose but to establish an unlimited government.
And here it may not be improper to repeat the remark, that this definition creates, as well as limits, an offense which had no previous existence; whereas, the statute 25 Edw. III, did not create but only defined an offense already known to the common law. “That statute,” said Stanford, afterwards chief justice of the common pleas, “is but a declaration of certain treasons, which were treasons before at the common law. Even so there do remain divers other treasons at this day at the common law, which be not expressed by that statute.”60
Will any man presume to advance that there is any treason against the United States by the common law? that a limited federal republic of yesterday, has already appropriated to itself all the foul corruptions of despotism, collected from time immemorial. To infer that the courts of the United States, are left to range at large, in the boundless field of construction, in search of other cases of treason against the United States, seems to my apprehension, to be a doctrine equally unfounded, awful, and dangerous.
If then we are not at liberty to reject this important word, only, we must assign to it some determinate signification: and, if that signification be that which I have ascribed to it, to wit “these cases and no other whatsoever,” its necessary operation and effect must be, to cut up all constructive treasons, root and branch. If a single scion be left, it will be the parent of ten thousand others, shedding, like the Buonas Upas, their baneful influence far and wide, poisoning and desolating the whole region where they are permitted to take root. Faction and factious men are not confined to any one party in a republic: and when such men have the command of the purse, the sword, and the scales of justice, the lives of their opponents will not weigh a feather, in competition with their own advancement, or that of their party. This, the framers of the constitution must have considered, and therefore endeavored by the strongest terms, and the strictest limitation, to restrain within the narrowest limits. And this should serve as the polar star of construction to judges and all others, who may be called upon to administer the government.
Thus having sought, and I trust, discovered not only the literal sense, and meaning of the word, only, but also its proper interpretation, according to the true spirit of our federal constitution. I shall now inquire into its effect and operation in certain cases, which might have been supposed to be treason had it been omitted.
In England, it is now generally admitted, that “in treason, all the participes criminis are principals; there being, as it is said, no accessories to that crime; and that every act which, in case of felony, would render a man an accessory, will, in case of treason, make him a principal.”61
This doctrine was laid down by judge Chase, in his charge to the jury on the trial of Fries:62 but, as I conceive it to have been extrajudicial, for reasons already mentioned, I shall take the liberty now to inquire, whether it be not also questionable. But before I do this, I shall endeavor to trace this copious branch of constructive treason to its fountain head; and, show how small a portion of that fatal torrent flows from an uncorrupted spring. In doing this, I shall begin with the latest authorities, and conclude with the most ancient.
This doctrine is advanced by judge Blackstone,63 for which he cites 3 Inst. 138. 1 Hale’s P. C. 613, and Foster 342. The latter cites 3 Inst 964 and 138, and 1 Hale 235, 237, 328, 376. Hale, himself, cites 3 Inst. 18 and 138. Stanford’s P. C. 32, and the year book 1 H. 6, 5, of which last case I shall make particular mention by and bye.
Sir Edward Coke, 3 Inst. 16 and 138, cites Stanford’s P. C. 3, and the yearbooks 19 H. 6, 47, and 3 H. 7, 10.
Stanford, P. C. 3 and 32, 40 and 44, cites the same identical cases from the year books, that sir Mathew Hale, and sir Edward Coke, had cited before. From these three original cases, viz. 1 Hen. 6, 5. 19 Hen. 6, 47, and 3 Hen. 7, 10, we must consequently derive the doctrine in question.
The case of 1 H, 6, 5, (A. D. 1422) is thus mentioned by Stanford, p. 32…. A man was outlawed of felony, was imprisoned in the king’s bench, and indicted and attainted of breaking prison, and releasing certain persons confined therein for treason, and this was adjudged petit treason.
Upon what principle this case could be judged petit treason, it might puzzle any man at this day to conjecture, and creates a presumption that the case is not very accurately reported. But there is another principle of the common law, on this particular subject of breach of prison, which will probably lead us to understand it…. it is this; if there be felons in prison, and a man knowing of it breaks the prison, and lets out the prisoners, though he knew not that there were felons there, it is felony; and if traitors were there, it is treason.65 Now, if the persons released in the case here referred to, were imprisoned for petit treason, instead of high treason, this judgment would be regular: but by no rule of law could they be deemed guilty of petit treason in any other case. And, if this were the case, it would prove that there was no distinction in principle between treason and felony, inasmuch as the releasing a felon from jail is felony, in the same manner as releasing a traitor from jail is treason. And, it appears from Stanford, that a stranger rescuing one indicted for felony, was indicted, and tried and found guilty for that offense, before the principal felon was tried.66 But sir Michael Foster67 gives us a further clue to the understanding of this case; for in speaking on this subject, he
observes with great reason, that the forcing of prison doors may be considered as overt acts of levying war; the species of treason for which Benstead, of whom he was speaking, was indicted. And this might have been the case in this instance. These cases confirm the conclusion, that the law made no distinction at that time between treason and felony. A statute was made in the year after this case was adjudged, 2 H. 6. c. ult. cited by Stanford,68 whereby it was declared to be treason in any person imprisoned, to break prison. All which circumstances united, create a strong presumption, that this case is not correctly reported, nor the grounds of the judgment perfectly understood.
The second case69 occurred thirteen years after, in the year 1441, and is thus mentioned in Brooke.70 A man was indicted for forging false money, and another at the same time: one confesses and approves, and has a coroner assigned him; the other pleads not guilty, and it was found that he was consenting and aiding in forging the false money, and so guilty. Stanford mentions the case in the like manner, and it is evident from this state of it, that the defendant was present, aiding and assisting, and so
would have been a principal in felony as well as in treason, which is confirmed by Stanford, who proceeds thus: “It is the same case in rape, where one does the act, and another assists him to commit the rape, he is by this a ravisher.”71 The law is the same in felony as well as in treason, that all present, aiding, and assisting at the fact, are principals. Neither of these cases, therefore, justify the doctrine advanced at this day, that whatever act will make a man an accessory in felony, will make him a principal in treason.
The next case is 3 H. 7, 10, and is relied on by Stanford and sir Edward Coke as establishing the doctrine above-mentioned: it was thus; one Cokker was indicted and attainted of making false money, and afterwards one J. B. was indicted for traitorously, and knowingly entertaining and comforting him, and was found guilty, and the question was, whether he could be deemed an accessory to Cokker. Brian, justice, said he might be an accessory, for such counterfeiting was felony before the statute and is not cut off by it: and in every treason, felony is implied, etc. “et tamen Hussey Cap. Inst. dixit quod in hoc quod factum est proditio, non potest esse accessarius felonicè et proditoriè non potest esse accessarius,” for which doctrine he refers to the preceding case of 19 H. 6, 47.72 Here then we have this opinion of two judges in opposition to each other; and we find the latter supporting his opinion by a reference to the very case, which, we have already shown, does not authorize it.
These are all the ancient authorities, referred to either by Stanford, sir Edward Coke, sir Mathew Hale, or any writer on the subject; and it requires very little discernment, I apprehend, to discover that the two former do not warrant the latter, and that the latter is the dictum of a single judge. And Brooke,73 cites it in that manner…. “Nota, P. Hussey C. I. que accessary ne poet este a treason; le recetment de traitor, ne poet este tantum felony, mes est treason.” Had this been the established doctrine of the common law, we might have expected that the laborious and indefatigable sir Edward Coke (under whose auspices it was brought to maturity as we shall see hereafter) would have referred us to the Mirror, Bracton, Britton, Fleta, or Glanville, in some of which, it would most certainly have been found.
This doctrine appears to have slept from the year 1488, to the year 1554, when it was revived upon the trial of sir Nicholas Throgmorton in the first year of the reign of queen Mary.74 He was indicted first, for conspiring and imagining the death of the queen: 2. For levying war against her within the realm: 3. For adhering to her enemies within the realm, giving them aid and comfort: 4. For conspiring and intending to depose the queen: 5. For traiterously devising and concluding to take the tower of London. Upon his trial, Stanford, author of the pleas of the crown, and Dyer, afterwards chief justice, assisted in the prosecution as queen’s sergeants. Bromley, chief justice of England, who appears to have been another Jefferies, and sir Nicholas Hare, master of the rolls, a fit associate for him, and sir Roger Cholmley, one of the same stamp, were among the number of his judges, and managed the trial. At this trial, the doctrine of constructive treason in its fullest extent was insisted on by the counsel for the prosecution, and sanctioned by the judges, notwithstanding the prisoner reminded the court of a statute,75 passed not six months before, whereby it was declared, that no offense made treason by act of parliament should thereafter be held to be treason except such as were so declared by the statute 25 Edw. III, which statute he desired might be read to the jury. The court told
him there should be no books brought at his request: they knew the law sufficiently without book: it was not their business to provide books for him, neither did they sit there to be taught by him.76
If any thing more be requisite to show the respect due to the decisions of the court, it may not be amiss to mention, that they ordered a person, whom the prisoner called as a witness, on his behalf, out of court.77 That one Vaughan, who was under sentence of death, and whose execution was respited that he might be present at this trial, was admitted as an evidence against him.78 That the confessions of one Winter and one Crofts then alive and in custody were read in evidence against him, the witnesses themselves not being produced in court. These words of the statute 25 Edw. III, “And be thereof attainted of open deed by “people of their condition,” which sir Edward Coke79 and every other writer on criminal law from his time to this, expounds to mean, by verdict of a jury of their peers were thus expounded by the chief justice addressing himself to the prisoner…. “You deceive yourself, and mistake these words by people of their condition; for thereby the law does understand the discovering of your treasons, As for example, Wyatt, and other rebels attainted for their great treasons, already declare you to be his and their adherent, inasmuch as divers and sundry times you had conference with him and them about the treason; so as Wyatt is now one of your condition, who as the
world knows, has committed an open traiterous fact.”80 The word enemies was likewise expounded to mean traitors within the statute.81 And lastly when the jury brought in a verdict of acquittal (for there was no evidence against the prisoner upon either point) the court immediately committed them all to prison, and some of them were fined 2000l. some 1000l. and the lowest paid threescore pounds apiece before they were discharged from their imprisonment. Stanford, who was active in the prosecution, was afterwards promoted to the bench, and published his pleas of the crown, in 1560, six years after, in which he has laid down the doctrine at large, as it is received at this day; but cites the case 3 H. 7. 10, before-mentioned, in support of it. Abington’s case was resolved when sir Edward Coke was attorney-general in the fourth year of James the first, when the spirit of persecution was at its height, from the terrors of the powder plot, in the guilt of which the prisoner was involved by receiving one Garnett, a Jesuit, knowing him to be guilty of the powder treason.
It is not improbable however, that this doctrine was aided, in it’s progress by the statutes which passed in the reigns of Hen. V, and Hen. VI, and the numerous acts of attainder, passed in those of Edw. IV, and Rich. III, and the multiplied treasons created in the reign of Hen. VIII, and his successors, whereby the aiders, counselors, consentors, abettors, maintainers, procurers, comforters, receivers, relievers, and so forth, of persons guilty of any such treasons, are repeatedly declared to be principal traitors also.82 These parliamentary declarations and statutes must, I conceive, have had a strong influence over the judges, in those days, when parliaments and courts were equally devoted to the will of the ruling monarch.83
I should not have taken the trouble of this scrutiny, had not the same judge who declared, that the English authorities were not to be regarded as precedents in our courts, on the same occasion, declared the law to be “that in treason, all the participes criminis are principals; that there are no accessories in that crime, and that every act, which in case of felony would render a man an accessory, will in the case of treason, make him a principal.” If the learned judge rejects the authority of the English precedents, where can the law be found? And if he relies upon those precedents, where can the reason of the law be found?
Both common law and common sense have been able to perceive, and draw a distinction between the actual perpetration of a crime, and the bare advising, or even procuring the perpetration of it, without being present when it is perpetrated: they have also been able to distinguish between the perpetration of a crime, and the receiving, and comforting one, who has been himself the perpetrator, knowing him to be such: it was reserved for the astute reason of judges appointed by the crown, to discover, that there was no distinction between these cases, when the sacred majesty of their master’s head was in danger, or supposed to be so: it was reserved for them to declare, that to give a meal’s victuals to one guilty of treason, was a crime of the same malignity as levying war against the throne, or as aiming a dagger at the heart of the monarch.
This was the case of the lady Alicia Lisle, who was indicted 1 Ja. 2, for high treason, in comforting, upholding, and maintaining, one John Hicks, (not then convicted) by giving him meat and drink: upon which indictment she was convicted as a principal in high treason, and executed.84 True it is, that infamous judgment was reversed by act of parliament after the revolution, “because the said John Hicks was not, at the trial of the said Alicia Lisle, attainted or convicted of any such crime;”85 but the law in other respects, remains unaltered there, and the giving a traitor meat and drink, knowing him to have committed treason, is, of itself, an act of high treason of the same nature as that, of which the traitor himself has been guilty.
Now, let us appeal from this decision of judges, learned in the law, to common sense and reason for a decision thereon, under the constitution of the United States.
Let us suppose that John Hicks had been concerned with John Fries, in the Northampton insurrection; and, that some weeks after the termination of that affair, he had repaired to the house of the lady Lisle, situated in
Philadelphia, and had there been entertained by her, by giving him meat, drink, and lodgings for one night (as was the case for which she suffered) she knowing at the same time that he had been concerned in that insurrection. Is there a man in the United States, who
could under such circumstances, upon his oath, say that the lady Lisle had levied war against the United States?
I put the question thus, because the constitution says, that treason shall consist ONLY in levying war against the united states. And I repeat the question…. would this conduct in the lady Lisle be an overt act
of levying war against the United States?
If common sense, and reason dare not answer this question least they should be brow beaten by the authority of the sages of the law, let us hear what one of them will say to us.
“Though the receiver of a traitor, knowing it, be a principal traitor, and shall not be said an accessory, yet this much he partakes of an accessory…. That his indictment must be special of the receipt, and not
generally, that he did the thing.”86 Now if the indictment must not be general, that he did the thing; that is, that she, the lady Lisle, in the case supposed, levied the war. I would fain know how she could be found guilty of treason against the United States?
If there be not a man in the United States (and I trust their is not) who, in the case here supposed, would have found the lady Lisle guilty of levying war against the United States, nor have directed a jury to have found
her so guilty, then have I proved that the word only in the constitution must be construed to have cut off this branch of constructive treason; that is, I have proved that whatever will make a person an accessory after the fact in felony, will not make him a principal in treason in the United States.
Let us now inquire, whether it be true, that whatever act will make a man an accessory before the fact in felony, will make him a principal in treason in the United States?
Let us suppose the same lady Lisle to have been a resident of Maryland, at the time of Fries’s insurrection, and that John Hicks, hearing of the intended insurrection in Pennsylvania, had informed her of his intention to
join the insurgents; and that she had lent him a horse, or money to assist him on his journey.
Now, if Hicks had not gone after this, but had kept the money, or rode away with the horse, and never returned him, this would not have been treason in either, even according to the English authorities; but if he had
gone and joined Fries, he would have been guilty of treason in England. But in neither case, could it be said, that there had been war levied in Maryland. I ask then, if the lady Lisle had done, what we have above supposed in the state of Maryland, would such act of lending a horse or money in Maryland have amounted to levying war in Pennsylvania where she never was?
If she were indicted in Maryland, the indictment must alledge, that war was levied in Maryland…. Now could it be given in evidence to a jury in Maryland, that war was levied by John Hicks in Pennsylvania, in order to charge the Lady Lisle with treason in levying war in Maryland, by construction. On the other hand, if she were apprehended and tried in Pennsylvania, where the war was levied by Hicks, could the fact which took place in Maryland, be given in evidence to a jury in Pennsylvania? We might vouch the English authorities, were it necessary, to prove that neither of these things could be done, except under the authority of some special acts of parliament. And we may with confidence answer, that under the provisions of the federal constitution, she could not possibly be found guilty of treason, without rejecting the word, only, and Without spurning at that direction of the constitution, which secures a trial in that state and district, in which the crime shall have been committed. For having never been in Pennsylvania, she could not be found guilty of levying war there…. Evidence that a war was levied in that state, would not be evidence to any jury, in any other state; and without a violation of the constitution, she could not be carried out of Maryland, where her offense, whatever it might be deemed, was committed, to be tried in Pennsylvania, where she never had been, for a constructive treason imputed to her, by relation to a fact done in another state.
By what finesse or subtlety, a Jeffries (were he to rise from the dead, and again to preside at the trial of the unfortunate lady) would support the prosecution, I should be sorry to be able to discover. But with that understanding, which I possess, I deem it impossible, that she could be convicted even in this case.
3. To proceed, then, one step higher. If divers persons conspire together to levy war, this is not treason, even in England; but if war be levied in consequence of this conspiracy by a part of them, although the rest of them have nothing further to do in the business, this is treason in the whole of them; as well those who are absent and do nothing, as in those who are present at the fact. A similar doctrine was laid down, on the trial of Fries. How far it might, or might not have applied to his case, I will not undertake to say. But let us put the following case:
A, B, & C, meet together in Baltimore and conspire together to levy war against the United States. In pursuance of this conspiracy A & B, proceed to Pennsylvania, and there levy war: C goes not with them, nor has any further communication with them, but remains peaceably at home in Maryland. Now this conspiracy being formed in Maryland, but nothing being done in consequence of it in that state, no treason can be said to have been committed either by A, B, or C, in Maryland neither could the act of A and B in Pennsylvania, be considered as an overt act of levying war, by C, who was never in that state, nor could it be given in evidence, against C, in Maryland, for the reasons before mentioned. How then can C. be found guilty of treason in levying war against the United States? Certainly, only by overleaping the limits of the constitution, and referring a fact committed by A. and B. in Pennsylvania, to C, in Maryland; in order to convict C, in Maryland, of levying war against the United States in Maryland, where no war was ever levied, or in Pennsylvania, where C. never was.
If, in the cases here supposed, it shall appear that the doctrine of constructive treasons cannot stand the test of the federal constitution, may we not conclude, that the proper inference is, that no other case whatsoever, except those two, which are expressly created, defined, and limited by the constitution ought to be deemed treason against the United States?
SINCE the former volumes of this Edition have been printed, and since this volume has been in some forwardness in the Press, the Editor has seen in a public news-paper, a letter from JUDGE CHASE to one of the Printers in Baltimore; in which he declares…. “That in some instances judicial opinions have been imputed to him which he never gave; and in other instances they have been grossly and wilfully misrepresented, particularly in the Case of FRIES, FOR TREASON.”
The strictures contained in the preceding essay were suggested not only by a thorough conviction in the mind of the author, of the dangerous and unconstitutional tendency of the opinions therein attributed to Judge Chase, but by an unfeigned belief that they were accurately reported. Having the sanction of his name, (however improperly,) in a publication, apparently authentic, and of extensive circulation, the author of the essay conceives it to be equally as necessary to expose their unconstitutionality, and dangerous tendency, as if they had never been disavowed by Judge Chase…. Not having access to the essay, at present, he is unable to decide whether a previous knowledge of this disavowal on the part of Judge Chase, would have induced any alteration therein; or might render any further apology for the use of his name necessary.
1. Article 3.
2. Article 3.
3. Article 8 [6th Amendment].
4. Federalist, No. 43.
5. Carey’s American Museum, Vol. 7, page 40.
6. Idem, Vol..XII, part 2, p. 36.
7. 25 Edw. III.
8. Trial of Fries, p. 123 and 168.
9. The passage stands thus: “If you expunge what is a direct levying of war, there can no such thing as treason be found; either the law is wrong, or the arguments used on the other side. Gentlemen, the law is established, but the arguments vanish like vapour before the morning sun; what then in England is called constructive levying of war, in this country must be called direct levying of war.” Trial of Fries, p. 161. I should incline to suspect the reporter of some mistake in this passage, but it would seem that it had been submitted to the inspection of the counsel to whom it is ascribed.
10. Judge Peter’s charge to the jury. Trial of Fries, 205.
11. 1 Blacks. Com. p. 70.
12. Judge Iredell’s charge to the jury. Trial of Fries, 167.
13. Trial of Fries, 180.
14. Home’s Mirror, ch. 1. Sec. 4.
15. 3 Inst. page 9.
16. 1 Hale’s Hist. P. C. 148.
17. Trial of Fries, 92, 99, 139, etc.
18. Ib. 19, 123, 160, 161.
19. “You are deceived to conclude all treasons be by the statute 25 Edw. III, for that statute is but a declaration of certain treasons which were treasons before at the common law. Even so, there doth remain divers other treasons at this day at the common law, which be not expressed by that statute as the judges can declare.” Per Stanford…. State Trials, Vol. I, p. 72.
20. See the statutes 21 R. 2. c. 3. 3 H. 7. c. 14. 26 H. 8. c. 13. 28 H. 8. c. 7. 1 Edw. 6. c. 12. 3 & 4 Edw. 6. c. 5. 1 & 2 P & M. c. 8, 9, 10. 1 Eliz. c. 5. 13 Eliz. c. 1, 14. 14 Eliz. c. 1. 23 Eliz. c. 2, with many others whereby so many pains of treason were ordained by statute, “that no man knew what he ought to know, or to do, or to say, or to speak through doubt of such pains.” Preamble to stat. 1 H. 4. And that judges were not less complying than parliaments, the histories of those times fully prove. See 1 Hale’s Hist. P. C. 84, 115, 119, 120, 121, &c. and the State Trials, passim.
21. 1 Hales, P. C. 82, 83.
22. 1 Hales, P. C. 130.
23. 1 Hales, P. C. 146, 150, 144.
24. 1 Hales, P. C. 144.
25. Foster 208.
26. 1 Hales, P. C. 131.
27. Ibid. 134.
28. Trial of Fries, 87.
29. 1 Hales. P. C. 233, 237.
30. Const. of Virginia, Art. 18.
31. 1 Black. Com. 70.
32. V. L. Oct. 1796. ch. 3.
33. V. L. 1794, c. 136, Sec. 2.
34. Ibidem. Sect.
35. Trial of Fries, p. 14.
36. 2 Dallas, p. 355.
37. Trial of Fries, p. 86.
38. 2 Dallas, p. 355. § 2 Dallas, p 340.
39. Trial of Fries, p. 86.
40. Ibid. p. 168.
41. Trial of Fries, p. 204, 207.
42. Ibid. p. 196 to 199.
43. See State Trials, per Bromley, C.J. who may be considered as the father of this doctrine. He says, “He that doth procure another man to commit a felony, or a murder, the law doth adjudge the procurer then a felon or a murderer. And in case of treason, it hath always been so taken and reputed.” page 73.
44. See Trial of Fries, p. 196 to 199.
45. C.U.S. Art. 23.
46. 4 Black. Com. 83.
47. 1 Pl. Crown, 164.
48. p. 219.
49. 4 Black. Com. 83.
50. L. U. S. 1 Cong. 2 Sess. c. 9. Sec. 12.
51. I know the English authorities say that he shall not be punished by the civil law. But Vattel with more reason says; “If the offended state keeps the guilty in it’s power it may with difficulty punish him and oblige him to make satisfaction. If the guilty escape and return into his own country, Justice may be demanded from his sovereign.” B 2. ch. 6. Sec. 75. “If an alien enemy come to invade the realm and be taken in war he cannot be indicted of treason; for the indictment cannot conclude contra ligeantiæ suæ debitum, for he never was in the protection of the king, nor ever owed any manner of ligeance unto him, but malice and enmity, and therefore he shall be put to death by martial law. And so it was in Anno 15 H. VII in Perkin Warbeck’s case, who being an alien born in Flanders feigned himself to be one of the sons of Edward the fourth, and invaded this realm with great power, with intent to take upon him the dignity royal: but being taken in war, it was resolved by the justices that he could not be punished by the common law, but before the constable and marshal, who had special commission under the great seal, to hear and determine the same according to martial law, he had sentence to be drawn hanged, and quartered, which was executed accordingly.” Perkin Warbeck’s case, 7 Co. 6. b.
52. 1 Hale’s P. C. 162. Fost. 219. 4 Blacks. Com. p. 83.
53. See State Trials, Vol. I, p. 75.
54. 4 Blacks. Com. p. 82.
55. L. U. S. 5 Cong. c. 66 Ibid. c. 103.
56. Ibid c. 70.
57. See the opinions of judge Iredell, judge Peters, and judge Chase. Trial of Fries, p. 165, 206, 201.
58. But as congress has power to declare the punishment in case of treason, if, by a subsequent law to that by which the punishment is first declared, it should prescribe a lesser punishment for an offence, which the courts may determine to be treason, could they be justified in inflicting the greater punishment, formerly prescribed.
59. 1 P. C page 164.
60. State Trials, Vol. I, page 72.
61. The antient law of England was, that they who were present, and abetting others to do the act, were accessories, and not principals. Per Bromley C. I. Plowden 97, 98. See Plowden’s note thereon, Ib. 99, 100, whereby it seems the law was changed tempore H. 4. 1 Hale, 437.
62. Page 198.
63. 4. Commentary, 35, 36.
64. This is a mistaken reference in Foster….. it should be 16.
65. 1 Hale’s P. C, 60C. Vide 2 Inst. 590.
66. Stanford’s P. C. 32.
67. Page 345.
68. P. C. 32.
69. 19 H. 6, 47.
70. Title Treason, Sec. 9.
71. Stanford’s P. C. 44.
72. See the Year-book, 3 II. 7, 10.
73. Title Treason, 19.
74. See 1 State Trials, 63, etc.
75. 1 Mary, c. 1.
76. 1 State Trials, 71, 72.
77. Ibidem. 70.
78. Ibidem. 67, 68.
79. 3 Inst. 14.
80. 1 State Trials, 75.
81. Ibid. 75.
82. 1 Hale’s Pleas of the crown, c, 24, etc.
83. Ibid. 73.
84. State trials Vol. IV. 105, etc.
85. Ibid. 130.
86. 1 Hale 338.