The enquirer. [volume] (Richmond, Va.) 1804-1815, 1807-09-05

| they ihoeid have made fome attempt to fettle
principles which would probably occur. ard
which were in Tome degree connected with the
f, point before them.
The court had employed fome reafoning to
! ihow that without the aeluai cinbodying of men
war could not be levied. II might have been
inferred from this, that thoie only who were 70
embodied could be guilty of treaioB. Not on
/ ~ to exclude this inference, but ALTO 10 affirm
the contrary, the court proceeded to obferve,
1t rs not the intention of the court % fay that
no individual can be guilty of this crime who
has not appeared in arms againit his country.
On the contrary, if war be actually levied, that
/. is, 1t body of men be actually aflembled for
the Purpofe of effeeting by. force a treafonable
object, all thofe who perform any part, howe
yer minute, or however remote from the fcene
of action, and who are actually leagued in the
general conipracy, are to be confdered as trail
tors"
| This court is told that if this opinion be in
correct 1t ought not to be obeyed, becaufe it
was extra Judicial. For myfelf, ! can fay that
| could not lightly be prevailed on to dfohey
IT, were even convinced that it was erroneous,
but would certainly ufe any means which, the
law placed in my power to carry the queftion
again before the iupreme court, for e-conlider-
at.on' in cafe in which it would directly occur
+; and be fully argued,
! : The court which gave this opinion was cum-
Poied OF Ejudges.~ AT the time thought them
unanimous, but have iince had reafon to {uc
peer that one of them, whole opinion is entitled
to great refpeet, aud whole indifpoftion pre-
vented his entering into the dncufIons, on iome
| OF thoic points which were not eGsntial to the
decTiion of the very cafe under confederation,
did not concur in this particular point with his
brethren. Had the opinion been unanimous, it
would have been given by a majority cf the
R,rf
concur with that judge who was prefent, and
who perhaps difents from what was then the
opinion OF the court, majority.of the judges
may override this decilion. / fiioud therefore
feel no objedion, although then thought, and
It'll think the opinion perfectly correct, to car
ry the point if pofiibe again before the fupreme
court, if the cafe fhoud depend upouit.
In laying that Gill Think the opinion per-
feci!y correct, l do not coniider my felt as GO
ing further than the preceding resfoning goes.
Some gentlemen have. argued ds If the fupreme
court had adopted tne Whole doctrine of the
Enelilh books on the fubett of acceiiaries to
treaion. But certainly fuch is NOT the fact
lho!e only who perform part, and who are
leagued in the confpiracy are declared TO he
TRAITORS. To complete the detilition both cir
cumitances NUT concur. They NUT " perform
a part" which will furniih the overt act, and
they mutt be g leagued in the confpiracy."
The perfon who comes within this deicription,
| IN the opinion OF he court levies war. The
prefent motion, however, does not ref upon
this point for, if under this indictment the u.
States might be let in to prove the part per-
formed by the prifoner, if he did perform any
part, the court could not ftop the tehimony in
| its preent ftage.
| end. The fecond point involves the charac-
ter of the overt act which has been given in evil
dence, and calls upon the court to declare wig
Their that act can amount to levying war. Al
though the court ought now to avoid any analy-
| IFS of the teitimony which has been offered in
this cafe, provided the decifion Of .he motion
| ihould not RET Upon il, yet many reafons con-
cur in giving peculiar propriety to delivery,
in the courie of thefe trials, of detailed OPT
Mon on the quclion, what is levJing war? AS
this queition has been argued 1T great length, il
may probably fave much trouble to the coun.
ftl now to give that opinion.
In opening the cafe il commended by the
| Attorney for the United States and has nnce
been maintained on the part of the profecution,
that neither arms nor the application of force
| or violence are indilpenfaby necellary to con-
'thute the fact OF levyine war. To iuilrate
| thefe petitions feveral cafes have been Rated,
many of which would clearly amount to trea-
ion. In all of them, except that which was
probably intended TO he this cafe, and on wh;ci,
no obfervaton will be made, the obiect Of
| the alien iage was clearly treafonable its cha
raetcr was unequivocdl, and WAS demonstrated
by evidence furDiihcd by the aGrmbIage tfeif;
there wac no neceiity to rely upon Information
drawn from extriniic fources, or in order TO
underltand the fa6t, to purfue courls of intri-
cate rrafoning and to conjecture motives. q
force is inPpofed to be co:.easd for an avowed
tresfonabIe objett, in condition to attempt
that object, and to have mmenced the at.
tempt by moving towards it. Rate ;hcfe par.
ticuars becaufe although the cafes PUT NAV
era bliih the doGtrine they are intended TO fup-
port, may prove that the abftnce of arms, or
The failure TO apply force TO fenlitIe objects by
the actual commiIion of violence on thoGs cb-
ljc6s, may he fdpplied by other circumstances,
yet, they aifo ferve TO fliov that the mind re.
! spires thoie circumstances TO be fatisfed that
war is ievied.
| Their conaruGion of the opinion Of the fu-
preme court is, think, thus far cOrrect. IL
is certainly the opinion which was ut the time
entertained by myfglf, and whirh is iliil enter.
tanned. IF rebel army srowing its nobility
to the fovereign power, lhould front that Of the
government, lhoud march ADD countermarch
before it, flould maucsuvre in i;3 face, and
ihoud then difperfe from any canle what.
ever without filing gun, J confsfs I could not
without fomc furprile, hear gentlemen fsriouny
contend that this could not amount to an at
of leyying war. A cafe equally Grung may be
put with reipett to the a6fsnce of military yea.
pons. II the party be in condition 10 execute