The Wheeling repository — Wheeling, Va. [W. Va.], 1807-11-19 00:00:00, page 5

strike, nor couM their chi -f be roadc to i
s'rike without them, tic had v : to'
prevail upon the.m to com.; into his iru-a
!,J!VS* J his is not a meeting tor th
purpose of executing a formed design,
but a meeting for the purpose of forming
a design. It is the . e mor in the
nature oi jonspiraev th -» of actual wir.
S . ppo.se that Mr. iiarr had at the
mi>'.nh ol Cumberland declared his ob
ject to be to sicza upon New-Ork ns
and dismember tkie union, and that upon
tuts declaration his men had nniversdlv
abandoned him, could this h »ve bet a
denominated an act of levying m .r ? i;
we Jorgut the constitution and 1;\ s o!
our country, it we suppose tn ; .on, tike
moral guilt, to consist in the intention,
and that it may be 1 gaily ev idenced hv
" or is declaring t'nat int union, the an
swor to tins question mav lie in tile kit -
mative : but i; it can consist onh in - !
open deed t levying war, I coni' ss m - '
So.l unable to perceive how such a 1 >
position can be construed into such
deed.
1 lie case does not appear to me t > be
essentially varied by the circum ; ,
that this design was not avowed, and
that the men followed col. Burr v ith o
thec views. Upon general principles it
appears to- me, that unless some act be
e iomitted, irom which a treasonable
intent may be inferred, that the treason
able intent must be proved in the as
scmblag' ,where that assemblage is com
posed of free agents, as well as in the
person who convenes them, before the
law considers war as being actually lc- j
\ it'd.
This opinion is supposed to be con
trary to the decision in the case of the
hails of Essex and Southampton. I
have examined that case, as reported in
tne state trials, anil do not think it in a
ny respect contradictory to the ideas 1
have delivered.
1 he design of the Earl ol Essex was
to force his way into the palace, and re
tuov c certain counsi llors from the Queen
who were his cm mies ; but he intended
no hurt to the person of the Queen, For
the purpose of executing this design, he
assembled a large body of anm il men at
bis own house, who continued emhodi d
after being ordered bv he proper autho
riiy to disperse ; and hs also entered the
city of London for the purpose of rais
ing the citizens in oruer further to aid
him in the execution of his plap. Se
ver ii consultations had been pr viously
hcJilj at which thv Earl of Souihan pton
assisted, and-it is not alletlg* d ia lac
case, that he was not fully informed of
to s. projects, lie 1 el eved that node
°*fjn 'vas entertained against the person
oi the Queen, and therefore that his acts
'vere not treasonable ; hut in the law he
was mistaken. In fact no particu
lar c sign against her person was
entertained, and Essex as little sus
n. eti-d as Southampton that tin y were
(ommiitnig treason. I ,i y were igno
rant that the law pronounced those facts
to he treason, hut they were neither ig
n ;i a:.i of the facts then selve s, nor of the
r d intention with which those facts
o re committed.
In this c..se the judges delivered their
opinion or th law on two points. The
oi.e, 44 that in cast w here a subject at
tempteth ;o put Imp si 1. i r to such stivrur? !i
as the King shall not le able to resist
nun, and to >rc.( and c .mpel the King
iO govern otherwise than according to
hi > own rov.a authority ; nd direction,
it is manifest rcbedrThe-other,
“ that in e\ cry rciieiii n ti o law inter.d
e i _s a conseq.i .t, tir compassing the
<La h and deprivation of the king, as
for Seeing that the rebel will never suf
fer that King to live or reign, who might
punish or take revenge ol his treason or
re he liion.”
I nder this hiw opinion of the judges,
K.'i- \ Southampton were condemned
a:id executed. The only difference be
tween them was, that the quarrel was
the quarrel ol less* x, and Southampton
only adhered to him j hut he adhered
knowing what he did, and the intention
with which he acted.
lJclh ving then the weight of testimo
ny to he in favour of the opinion, that
the real and direct object of the c xpedi
t;on was Mexico, and inclining also to
the opinion that, in law, either acts ol
hostility to the government, or a hostile
intention in the body assembled, is m
cessary to convert- a meeting of men
with military appearances into an act of
levying war, it would in my judgment
be improp- r in me to commit the accus
ed on the charge of treason.
It is cont tided that they are not guil
ty of a misdemeanor, on one of these
grounds: Hither the United States were
actually at war with Spain, or the expe
dition was dependent on war, and, in
tile event ol peace, was to he com fled
mto n settlement <m the Ouachita.
It is aliedgcd that we w.re at war
with Spain, because a Spanish army had
crossed the S.ibine, and entered the t?i*
ritorv of the United States.
n ^ il nation may be put into a state
01 war by the unequivocal aggressions
oi otherss, without any act of its own, is
a proposition which I am not disposed
to controvert; but I cannot concede*this
to nc such an act. i he boundaries claim
ed by the L . Srates to their recent pur
chase of Louisiana, are centos by
Spain. Now' if either nation t 1 es pc -
session ol the contested tetri to; y as ;;s
own, it is an act which the goto merit
o) the other nation may elect to consider
either as an act of war or otherwise ;—
and only the government can make that
election. No citizen is at liberty to
j make it, or to anticipate his goveru
' merit.
J-ut it is allcdgcd that war, if not ab
solutely made, appeared to be inevita
ble, and that the prosecution of the expe
dition depended on its taking place.—
That the probability of war was great,
may he admitted, and this mav extenu
ate the c(fence ; but it still remains rn
offence which is punishable by law. If
the expedition was really eventual, and
was not to take place in time of peace,
then certainly preparations might be
made for it without infracting any law;
but this is a fact proper for the exclu
sive consideration of a jury, and I shall
make no comment upon it which might,
the one way or the other, influence their
judgment.
I shall commit Aaron Burr St Herman
Blennerhassct, for preparing and pro
viding the means lor a military expedi
tion against die territories of a foreign
prince with whom the LT. Stales were at
peace. II those whose province and
duty it is to prosecute offenders against
the laws, shall be of opinion that a crime
of a deeper die has been committed, it
is at their choice to act in conformity
with that oj inion.
Israel Smith is not proved to have
provided or prepared any means what
ever ; and therefore I shall not commit
him. Ii he hits really offended against
the laws, he maybe prosecuted for the
treason in Kentucky, or for the misde
meanor in his own state, where, if any
wher , his offence has bet . committed*
A irtue is defineu to consist in acting
in all cast s, agiv- ahlv to the reason and
fitm ssol things.—That man is wise,who
is so well acquainted with the nature of
tilings, as to know what is best to be
done in some cases.