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

IcumeaHce was uniaportant. General exnrefIi.
ons ought not to be conidersd as overriding
tettled principles without direct declaration
to that effect After thefe preliminary obferva-
t'ons the court will proceed TO examine the o.
pinion which has occaiiored them.
The fira cxpreAioT init bearing on the pre-
Tent queRion is 20 To coniiitr,e that fpecifc
crime for which the prioner now before the
court has been committed, war mutt he aeau
ally levied againtt the United States. However
hagit'ous may be the crime of conipiracy to
fubvert by force the government of our coun-
try, fuch conipiracy is not treaion. To con-
fpire to levy war and actually to levy war, are
dittinct offences. The 6rt muft be brought
into operation by the afIrmblage of men for
purpoie treafonabe in itfelf or the fact of levy
ing war cannot have been committed
Although it is not expressly fated that the
aiiemblage OF r'en for the purpofe of carrying
into operation the treaionable intent, which will
amount to levying war, NUT be an aiitmblage in
force, yet it is fairly to be inferred from the
context, and nothing like difpentng with force
appears in this paragraph. The cxprefiions are
" to conttifute the crime war mutt be actually
levied" A confpiracy to levy war is fpoken of
as 6 a confpiracy TO fubvcrt by force the govern
ment OF our country" fpeaking in general
terms of an af1emblage of men for this, or for
any either purpofe, perfon would naturally be
underitood as fpeaking of an af1e mbloge in fome
degree adapted TO the purpofe. An nffemblage
| 10 iuoVert by force the government of our coun-
| Try and amounting TO levying of war, ihouid
be an al1embiage in force.
In fubiequent paragraph the court fays, "It
rs NOT the intention of the court to fay that no
individual can pc guilty of this crime who has
nor appeared in arms againft his country. On
the contrary If war be actually levied, that is,
II body OF men be actually Attended in order
10 eHeef by force treafonable purpofe, all
thoie VINO perform any part, however minute,
exc. and who are actually leagued in the gene
raj confpiracy, are traitors. But there mutt be
an actual attending of men for the treafonable
purpofe to eonititute levying of war;"
/ Inc observations made on the preceding pa
rasraPh apply to this. !" A body of men aau
any aifemoled, in order to effect by force trea-
'onaoie purPoie," mutt be a body afIembled
win iuch appearance of force as would war.
rant the opinion that they were attended for
tue particular purpofe; an afiemblage to con-
"tute an actual levying of war ihould be an
anembiase with fuch appearance of force as
would )ultify the opinion that they met for the
purpofe.
MS explanation, which is believed to be
tne natural, certainly not aftrained explanation
OF the words, derives fome additional aid from
the terms In which the paragraph Iaft quoted
commences. 1t is not the intention of the
| n
treaion who has not appeared in arms apa;nff
ms country Thefe words frem to obyiate an
Inference which might otherwife have been
Drawn from the preceding paragraph. They
indicate that in the mind of the court the AZ.
iembiage ftated in that paragraph was an afIem.
olage IN arms. That The individuals who com.
Poied 1t had appeared in arms againft their
country. That is in other words that the AZ.
ien1oiage was military wariike afIemblaec.
ia'eS TO a conipiracy and ferves to Ihew IN ar
force and violence were in the mind of the conr,
ana that there was no idea of extending the
crime OF treaion by contribution bevond tbe
constitutional definition which had been given
| of it. gwen
| Returning to the cafe actually before m.
court, 1t is faid I" a defign to overturp tbe 90
veroment OF the u. States in Newor.Ieans
yJ'Tee, Wouid nave been unquetionably de-
"s" "n'cn u carried into execution would have
been treaion, and the afemblage of bodv of
men for the purpofe of carrying it into exec,,.
non would amount to levying of war acainft the
U.s." as"''''' 'he
NOW what could reafouabIv be faid to he an
aiiemblage of body ofrflen for the nnrnoE. of
overtnrning the government of the u. S. in New
Orleans by force: Certainly an afTembIape in
Iorce an afiemblage prepared and intending
70 ac' with force a military ai1emblage. The
.hefetoiore made by the Judges of
the united States, are then declared to be in
conformity with the principles laid dswn bv
the iuPreme court. Is this declaration com.
pat'nle with the idea of departing from thofe
Opinions on point within the concentration of
me court The opinions of Judge Patterfon
ano Judge lredell are fad {" TO imDIv an ,ctrai
attending of men though they rather de6gned
to remark on the purpofe to which the force
was 10 be applied than on the nature of the
forceilfelf." This obfervation certainly ind.
Gates that the necefity of an affemblage Of men
was the particular point the court meant r. ec.
taoIiih, and that the idea of force was never e..
Parated from this affemblage.
The opinion of Judge Chafe is next ono,,d
with appreciation. This opinion in I. rms ~.
CURES the employment of force.
After Eating the verbal communications fa;d
to have been made by Mr.. Swartwout 70 qen
WIlkinion, the court Jays if thefe words i'm.
port that the government of New. Orleans was
to be revolutionized by force, although merely
as a:itep to or mean of exciting fome greater
projects, the defgn was unqueftionably ,Teafon.
able, and any afemblage of men for that pur.
pole would amount to evyisg of war;
The words "any anemblsge of men" ifcon.
ftrued to affirm that any two or three of the
confplrators who might be found together after
this plan had been formed, would be the acf of
levyinC war, would certainly be mifconRrned.
The ienie of the exprsi1ions "any sTemblsce
of men" is reftrtted by the words for this
purpofe." Now could it be in the contemnl,.