Alexandria daily advertiser. [volume] (Alexandria [Va.]) 1803-1808, 1807-09-15
OPINION
eCf the Courf on the motion to- arrest the
rs eoidenee. Delivered on
MONDAY, August 81.
[coNrlNuEp,1

warlike manner f,r any treasonable Pur
s pose, is certainly ID a state Of force !; u
acondhion 70 execute the treason FOR sh'cl
they assembled. The words enl'sung 6
marching, (Which are Overt acts OF lrsy'ee
war. do In the arrangement of the sentence
also Imply state of force. tho tAas state
is not expyrsss d 10 terms Tor the succeed
ing words, Which state a particular even
as mo, having Happened. prove that event 1G
have brea tie next circumstance 10 those
which had hsppeoed They are (" wlshou'
coming 10 batsle or action. If men
be eniIsyed aud march hat is, # they
: march prepared Far battle Or IN condiSion
for action, for marchnS IS a technlcalterm
applied 10 the mosemcEtf OF . Eslitary
CORPSE isis an Overt &C. Of lavying war, tho
they do 10, come 10 abatsle or action ------
This ex Dosition is reEdcFsd the strong
by what ser mssto be pu; ii the same sen.
sence as parallel case wi,hrsspecs,o ad-
hesing 10 40 enemy. IT'S cruising under
3, aconm,ssion from 40 encmy wishous com
mntirg any other acs OF hostility. CRUZ
ing is the act of sailing 10 warl,kc form g
in co.d,iion 70 Assault those ct whom the
cyuizer is ie quest.
This exposition which seems TO be tha;
intended hy judge Foster, is rendered the
more certain By reference to the e.sse in
the state trials from which the extracts are
taken. The wesds used by the chief justice
are ..whsn men fofn themselves in,o .
) BODY and moro Oh rack and file With weapons
offensive and defensive. this IS levying OF
war with open force, it the design be pub
lic.n Mr. Phpps. the COUNSEL for .bePris
sonsr, afterwards observed, /" intending 70
levy war is not treason usiess war be &C.
taally levied" To this the chief justice
answered. .sis /. no, actually levying Of
war, If they actually provide aims, aud
levy men, add ia warlik- manaer set on:
aud cruize, and come with design to dc.
sroy our ships?" Mr.. phpps sill insisted
" 1t would NOT be an acsoal lesy'ng OF war,
unless they committed some act ct hosli
litp. $ Yes indeed said the Chief justice
the going 90 board and being 10 a postuss
10 attack .hs kings ships" MIR. Baron Pow
is added, :. but for you to say because
!. that hey did not actually fight il is no, q
,seyyir1 Of war, is isnot plain what they
did intend That they came wishshas IN
ter,ion, ,ha, they came in that posture, tina
they came armed, ani had gans aud blun
desbusses and surrauads d The sh,p twice
shey came with an armed force, that is {
s,rors evidence of the design =
Isl The point insisted on-by counsel in The
sase Of Vaughan. as IN this case was, sha
war could net be levied WITHOUT aetna
fighting. To this the connselwas very pro
pr,ly .oserruled boz tits apparent iha, ,hs
iatlges proceeded ent,rrly 90 the idea
thar warsiks posture was indispensable 4
the act IF Lowing war.
Judge Poster proceed, 10 give stheris
stances of leyying war Attacking ths
kings forces in opposition TO his authority
upon march or in quarters is levyirg o
war. iiold,nea castle or fort agains, III,
king or hrs officers. If actual force be usel
in ordsrto Keep possession, is leving war :
But bare dr.s,ner as suppose, BY shustin,
the gates sgains, the king or his forces
without any other farce from within, Tor.
: Hale concsive.h wiIlnos amountto srea
500
The whole doctrine Of judge Foster 0,
this subject secmst to demonstrate clea
opinion thar ssase of force and violence
postare of war must exist to constitute
sechDicsisy IS we'll as really the fac, Of levy
ing war.
Judge Blackstone seems to concur wit
his predecessors. Speaking of lesyin
war, he says, " This may be done by tax
. -isg arms not only TO dethrone the king, bu
onder pretence TO reform religion, or til
laws, crto remove evil counsellors, or {
Tier grievances, whether realor pretended
for The law does not, neither can It pei
mt any private maa or set of men TO il