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OF CRIMES, IMMEDIATELY AGAINST THE COMMUNITY.
I HAVE hitherto considered crimes, which wound the community through the sides of individuals: I now come to consider one which directly and immediately aims a stab at the vitals of the community herself. I mean treason against the United States, and against the state of Pennsylvania.
Treason is unquestionably a crime most dangerous to the society, and most repugnant to the first principles of the social compact. It must, however, be observed, that as the crime itself is dangerous and hostile to the state, so the impútation of it has been and may be dangerous and oppressive to the citizens. To the freest governments this observation is by no means inapplicable; as might be shown at large by a deduction, historical and political, which would be both interesting and instructive. But, at present, we have not time for it.
To secure the state, and at the same time to secure the citizens—and, according to our principles, the last is the end, and the first is the means- -the law of treason should possess the two following qualities. 1. It should be determinate. 2. It should be stable.
It is the observation of the celebrated Montesquieu, that if the crime of treason be indeterminate, this alone is sufficient to make any government degenerate into arbitrary power. In monarchies, and in republicks, it furnishes an opportunity to unprincipled courtiers, and to demagogues equally unprincipled, to harass the independent citizen, and the faithful subject, by treasons, and by prosecutions for treasons, constructive, capricious, and oppressive.
In point of precision and accuracy with regard to this crime, the common law, it must be owned, was grossly deficient. Its description was uncertain and ambiguous; and its denomination and penalties were wastefully communicated to offences of a different and inferiour kind. To lop off these numerous and dangerous excrescences, and to reduce the law on this important subject to a designated and convenient form, the famous statute of treasons was made in the reign of Edward the third, on the application of the lords and commons. This statute has been in England, except during times remarkably tyrannical or turbulent, the governing rule with regard to treasons ever since. Like a rock, strong by nature, and fortified, as successive occasions required, by the able and the honest assistance of art, it has been impregnable by all the rude and boistrous assaults, which have been
Sp. L. b. 12. c. 7.
made upon it, at different quarters, by ministers and by judges; and as an object of national security, as wel as of national pride, it may well be styled the legal Gibraltar of England.
Little of this statute, however, demands our minute attention now; as the great changes in our constitutions have superceded all its monarchical parts. One clause of it, indeed, merits our strictest investigation; because it is transcribed into the constitution of the United States. Another clause in it merits our strongest regard; because it contains and holds forth a principle and an example, worthy of our observance and imitation.
After having enumerated and declared all the different species of treason, which it was thought proper to establish, the statute proceeds in this manner: “and because many other cases of like treason may happen in time to come, which, at present, a man cannot think or declare; it is assented, that if any other case, supposed treason, which is not specified above, happen before any judges, they shall not go to judgment in such case; but shall tarry, till it be shown and declared before the king and his parliament, whether it ought to be judged treason or other felony."
The great and the good Lord Hale observes upon this clause," the great wisdom and care of the parliament, to keep judges within the bounds and express limits of this statute, and not to suffer them to run out, upon their own opinions, into constructive treasons, though in cases which seem to have a parity of reason"
1. Hale. P. C. 259.
-cases of like treason" but reserves them to the decision of parliament. This," he justly says, “ is a great security as well as direction to judges; and a great safeguard even to this sacred act itself.”
It is so. And it was all the safeguard which the parliament, by the constitution, as it is called, of England, could give. It was a safeguard from the arbitrary constructions of courts: it was a shelter from judicial storms: but it was no security against legislative tempests. No parliament, however omnipotent, could bind its successours, possessed of equal omnipotence; and no power, higher than the power of parliament, was then or is yet recognised in the juridical system of England. What was the consequence? In the very next reign, the fluctuating and capricious one of Richard the second, the parliaments were profuse, even to ridicule-if, in such a serious subject, ridicule could find a place-in enacting new, tyrannical, and even contradictory treasons. This they did to such an abominable degree, that, as we are told by the first parliament which met under his successour, there was no man who knew how he ought to behave himself, to do, speak, or say, for doubt of the pains of such treasons."
In the furious and sanguinary reign of Henry the eighth, the malignant spirit of inventing treasons revived, and was carried to such a height of mad extravagance, that, as we have seen on another occasion, the learned as well as the unlearned, the cautious as well as the unwary, the honest as well as the vicious, were entrapped in the snares. How impotent, as well as cruel and in
c St. 1. Hen. 4. c. 10.
LECTURES ON LAW.
consistent, is tyranny in the extreme! His savage rage recoiled, at some times, upon those who were most near to him; at other times, with more justice, upon himself. The beautiful and amiable Boleyn became the victim of that very law, which her husband, in his fit of lustful passion for the monster was callous to love-made for her security. When the enormities of his life and reign. were drawing towards their end, his physicians saw their tyrant in their patient; and they refused to apprize him of his situation, because he had made it treason to predict his death.
Admonished by the history of such times and transactions as these, when legislators are tyrants or tools of tyrants; establishing, under their own control, a power superiour to that of the legislature; and availing themselves of that power, more permanent as well as superiour; the people of the United States have wisely and humanely ordained, that "treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." d
Con. U. S. art. 3. s. 3.
In this manner, the citizens of the Union are secured effectually from even legislative tyranny: and in this instance, as in many others, the happiest and most approved. example of other times has not only been imitated, but excelled. This single sentence comprehends our whole of national treason; and, as I mentioned before, is transcribed from a part of the statute of Edward the third. By those who proposed the national constitution, this was done, that, in a subject so essentially interesting to each