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 ligeantić suć 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.
