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

! piini:bment TO determination, iufiicisut num-
! Der are found among thofe who. have commit.
ted actual hoGilites, to f,tsfy the aveneing arm
ofjuitice. In cafes Of contru6tiye .reaion, fuch
AS pulling down meeting houies, where The di.
rect and avowed Object is not the deftrr llion of
the fovsresn power, fome att of violence might
be generally required to give to the crime a
fufficient degree of n,alghity to CONVEX, it into
treafoD, to render the guilt of any individual
uneq uYocal.
| But Vaughan's cafe is cafe where there was
no real application of violence, and where the
ACT was adiudgsd to be treafon Gentlemen
argue that Vaughan was only guilty OF adherng
to the kings enemies, burSthey have not the
authority OF the court for 10 fayiug. The
Judges unqneaionabiy treat the cruizing of
Vaughan las overt a6 of lrvying war
| The opinions of the heft elementary writers
concur in declaring, that where body of men
are attended for the purpofe of making war
| aga'nit the government, and are in condition
to make that war, the aIlembIage is an act of
levying war. Thefe opinions are contradjeted
by no adjudged cafe and are fupported by
Vaughan'e cafe. This court is not inclined TO
controvert them.
Bur although in this refpea, the opinion of
the fuprcme court has not been mifunderRood
on the part of the prolecuiion, that opinion
TEENS not 10 have been fully adverted to in a We
ry ehental poin, in which it is faid to have been
mifconceved by Others.
The opinion l am informed, has been con-
itrued to mean, that any aGenbaCc whatever
for treafonable purpofe, whether in force, or
not IN force, whether in condition to uGe vi
o'cnce or not in that condition. is Il levying of
war. II 10 this confrut,ion, which has not in
deed been exprefs!y advanced At the bar, but
which is flid to have been adopted rlfswhere,
thai the court deemsit necciIdry to examine.
Independent of authority, truiting only 70
the dictates of reafor, aud expounding terms
according TO their ordluary igniEcation, we
ihou!d probably all concur in the declaration
that war could Tor he levied without the eul-
pioynent and exhibition of force. War is an
appeal from reaion to the fword and he who
makes the appeal evidences the fast by the ufe
ct the means. His intention TO 90 TO war NAV
be proved by words, but the actual going to
war is faet which is be proved hy open
deed. The end is to BE- Effected by force, and
t would ieem that in cafes where,no declara-
Ion is TO be made, the aatc of actual war could
only he created by the employ meat OF force or
being in condition to employ it.
But the term having heea adopted by our
contribution, muf he pnderitcod in that fenfe
III which IT was nniverEaiIy received in this CONN.,
try, when the confitution was framed. The
feufe in which it was received is 10 be collected
from the mott approved authorities of that ma
ton from which we have borrowed the term.
Lord Coke fays, that levyiug war againft the
king was treafCn at the common law GA
computing or confpiracy to levy war, he adds,
is no treaion, for there NUT be ievyng of war
~ fast" He proceeds to fate cafes of con-
itructve levying war, where the dreta dcfsn is
not to cverturn the government but TO effect
ione general object by force. The terms he
employs in eating ttefe cafes, arc fuch as ind-
cate an lnpreilion on his mind, that Actual vio-
fence is neceiiary ingredient in continuing
the fact OF ieVying war. He thec proceeds to
lay, " an actual rebellion or infurreG1ion is a
evying ct war within this aef'' " II any with
itreDsth and weapons inyaiiye and defenliYe
doth hold and defend cattle or fort againA the
Eing ana his power, this is Icvying of war a.
gainit tue King. Thcfe Cafes are Pat TO iluf-
trate what he denominates "a war in fad.''
1t is not eafy to conceive an actual invaljou
or iniurreetion" unconne6ted with force, nor
can " a cattle or fort be defended with freusth
a"d weapons invafve and dCfsnlive" without
the employment of actual force. 1t would
isen then 20 have been the opiriCu of Lord
Coke, that to levy war there nluft be an diIem-
biaee of men in condition and with an nten-
ton 10 employ force. He certainly puts no
cafe of a different defcrlp,ion
Lord Hale fays (l49. 6 J ." what fhali be fld
ievylnS of war is partly d qurftioa Of faet, for
1t is not every unlawful or riotcus ahsmbly of
many peifoas to do IN unlawful act, though
def09o they commit the a6t they intend, that
makes leVyiDg Of war for then every riot
would he treaion, &c" but it mut be fuch
an a1emhy az carries with it 11ctiem 6eif, the
appearance of war, as if they ride or march
uexihi; exPHeatiJ, with colours flying, or if they
he termed into companies or foroiIled with mi
htary officers, or If they are armed with mill.
tdry weapons as iwortS, guns, bits, halberd,,
pikes, anI are 10 cirCunRsnccd thar i may be
redionIb'y concluded they are in polurc of
war, which crcurAances are fo various hat it
Is hard to defrribe them all Particularly"
:. On'y the general expeditions in all the in
dictnen;s of this Datrre that | have fen are
more 8nsrJino arraiaA," arrayed in warke man
ner."
He afterwards adds, 6" IF there he war levi
ed as IS above declared, viz. an aIemby array
ed in warIike manner, and 70 in the puhuce Of
war for any treafonablc attempt, it is 6eliani
HUatun but not perenGam."
Ii rs obvious that Lord Hale fuppefed an
ailemblage of rnen in force, in military poi
ture, to- be ueCeT Try to coulitufc the fact Of
levyIng war. 7 he idea I've appears TO figgea,
that the apparatus % war is necelttry, has been
very iuitIY combatte1 by able judge who has
written a valuable treaiile OF tie f6tjed Of
treaion {; but it is not recoIe6ied that his poG-
ton, that the a1enby Aiould be in poHure
| of war Tor any 'reafDnahe attempt, has ever
been denied. Hawk. ch II, fec. -, fayF,
" That not Oa!y tbOfe who rebel againh the