The enquirer. [volume] (Richmond, Va.) 1804-1815, 1807-08-21

hon. "To complete the crime of lsvyDg war
againh the y. States, there mar be a. .sstsa!
aDembfage o. men for tie pmpef Of executing
trea/5na6k dSfgn." And again "In the cafe
now before the court, de6gn to overturn the
government of the u. States at New Orleans by
force, would have been unqueaionably defign,
which, if Carried into execution, would have
been treafon, and TIE a6em6iage efn body men
for the purpoie of carrying it into execution,
would amount to levying war againf the u.
States; but no confpiracy for this object, no
emitting Of men to effect it, would be an actual
levying of war;" If then according to this defini-
ton, the accufed and his affocates had afem-
bled together to attack N. Orleans and fepa-
rate it from the union, though no actual force
had been uied, though no battle had been
fought, they would have been guilty Of treafon.
The fame idea alto occurs in thefe paffages. est
cannot be necefiary that the whole army ;hould
attended and that the, various parts which are
to compoic it fhould have combined. But it
is neceflary that there lhohld be an actual az
femblage. y" The meeting of particular boz
dies of men and their marching from places of
partial to places of general rendezvous would be
fuch an af1emblagc." 1t feems to me then, that
am warranted in the aniwcr which have Civ
en-, by the folemn decifion of this fupreme tri-
bunal.-Perhaps, gettlemen, in opening this
cafe, may occupy more of your time than
mutt execute me. IuRice to the accufed re-
qures, that I nould freely communicate the
grounds on which this accufation is to be main
tanned; that the council on the other fide may
prepare for his defence.
1t is necef1ary for me to fate my reafons, for
having omitted two circumstances in this definit-
on of levying war, which the council for the pri-
foner may perhaps coniider as ef1ential parts of
treaton. | have taken no notice of military
sveapons !; nor have / introduced the employ
ment of any actual force, of any violence or
hottllty to effect the treafonable defign.
have Hated neither of thefe crcumft ances, be-
cauie think neither of them eIential, accord
ing to the contribution and laws of this coun-
try.
On the hrft point fhall offer but few OBJ
feryations. Before fatsfying you of the legal
propriety of this omifiion, permit me to fate
the queftou on the principles of common fenft.
1t is true that It does not always happen in le-
gal diicuilions, that this principle is confuted
from the beginning to the end but in many
cafes this diirefpc6 is mott nnhappiy praetiied.
lnitead then of coniidering this quetion as it
would be prefented to us by lawyers and by
judges, let us view it on the found principles
of common fenfe and national policy. 1t is not
necefary that the men fhould have arms in their
hands TO make them traitors. The act of trea-
ION might be completed, and yet not a Jingle
gun nor even a peD-knife be employed in the
tranfaftion. SuppoGe a cafe. There was
time, when 10000 ftands of arms were depo-
flied under the roof of this Capitol. Suppofe
that or 10000 unarmed men had Attended
within few miles of this city, with precon-
certed detign of marching to the Capitol. feiz-
ing upon the arms, difperGng our Legislature,
and ufurping the powers of the government.
Let us fuppofe, what is no very difficult fup-
petition, that the Cavalry and the Infantry of
this city were to grid on their armour, and re-
folve to difperfe thefe men, before they could
execute their treafoDable intentions. They
arm: they march and the confpirators, con.
fcious of their abominabIe guilt, fly in all di.
rections at the approach of our volunteers.
Will any one fay, that thefe men are not trai.
tors to their country Cor fuppofe that any
number of individuals were to afiembIe at Blan-
nerhaiiett's iiland. We will fuppofe, that they
had no arms, although do not believe that
fuch was the fact. They intend to defend the
Ohio and MiHifiipPi to feize upon New Orleans,
calculating upon meeting their leader at the
mouth of Cumberland river and receiving arms
from the Spanilh minifer at Baton Rouge
Would the Gmple circumftancc of their being
unarmed produce any difference in their guilt
Aud woud it not be an abfurdity to fay, that
the moment after arms have been put into their
hands they are traitors, but that they were not
the moment before? The fupreme court have
given correct opinion on this fubie6t, when
in one paTage they are filent as to the ponef.
Con of arms, and in another, if I am not milf
taken, they have expressly difclaimed it. If
this point were not to be determined in this
way, what would be the confeGuence That
confpirators would take care never to touch
their arms, until they were ready to ftrike their
blow. They would have military weapons
placed within their reach but they would not
once venture to touch them before their orga-
nzation ihould be completed. On the prin-
ciples Of Common Senie then, it is not necena-
ry that they fhould have arms to confummate
the overt ACT of treafon. And what fays the
law /? In the cafe decided by the fupreme court
you will not find Jingle allufion as to the ne
GETTY of arms being in the hands of the confoi.
rators. And in the cafe of Fries, D. 1877, this
fubje6 has been particularly mentioned and
my opinion embraced by one of the Judges of
the U. States, Judge Chafe. Ut is remarkable
too, in this cafe, that the fame principle is con-
coded by the council for the defendant (Mr.
Dallas) whole opinion is certainly no authority
with you on this occaliou but it carries along
with it the ttrong prefumption that the law was
againlt him, p. Jos.
In Great Britain there is ftatute, which was
pa1ed many years ago, in the 25th year of the
reign Of Edward the Sd, which defcribes trea-
fon in the very identical words of our conRi-
tuition. This ftatute makes levyiHg war; A.
gainit the king to be treafon. Now; when the
trainers of our own contribution, many of them