The enquirer. [volume] (Richmond, Va.) 1804-1815, 1807-03-06
SUPREME COURT
OF THE
u N I T z ID s t A T Z S,
EEB. TsRM. 1907.

THE United StafcI
Boiiman g Ssvartsvout. }
Ha6sAs Csrtu on commitment for treaion.
CSisf JaAiee MARSHALL on tie alf inf. de-
lvered the JsLlsscing opinion Of the Court.
The prleners having been brought before this eour,
on a writ Of Habess csrssi, and the teltimony on
which they were committed having been fully e1amin
I'd and attrntivsy coniidersd, the court is de-
clare the Law upon their CAFE.
Thi, being a mere enquiry which without deciding
Upon guilt precedes the inlitution Of profeeaon,
che queton be determined is whether the aecuied
fall be discharged or held trial, and if the latter
In what place they are be tried, and whether they
Asll be confined or admitted TO bail If" faysa
ny learned and accurate commentator, upon this
quiry il manifealy appear, that no fueh crime has
been committed, that the inPicion entertained of
che prsuer wholly groundlefs, in fueh cafes en-
" it lawful totally TO dfchsrge him. Otherwife
he nun either be committed prifon give ball."
The fpecihc charge brough, aganf the prif"n-
.rs is trea.on in levying war againit the United
States
As there is ne crime which more excite and a.
gi,ate the paions If than treafon, charge de-
niands more from the tribunal before which IT IL made
deliberate and temperate enquiry. Whether this
enquiry b. directed TO the faa to the law, none
tizen or til. government-none Can more affect the
fafety of BOTH -.
TO prevent the poiibli,y of thofe ealamites which
.elul, from the sxtenion OF trealon to offences Of
minor Importance, that great fundamental law which
defines and limit. the various departments OF our 60
vernment has given rule on the iubjet both to the
l-giaaturr and the courts OF America which neither
can be permitted TO tranicsnd.
"'Trssfon againif the u. S. fbal conhh only nlevy
Ing war againt them, in adhering to their enemies
giving them aid and comfort.
To conNi,ute that fpecifc crime for which ne pri-
toners now before the court have been eemmtred,
war muil be actually levied againf the u. States.
However Aag,iou, may be the crime OF eoniPirng
TO fubvert BY force the government OF our country
fueh conlpiraey is not reafon To conlpirs to levy
war, and actually to levy war, are dftina offences
The fra mul be brought into operation by the af-
femblaye of men for purpoie treaonable in itelf
the fa9 Of lsvying war cannot have been committed.
So far has this principle been carried that, IN cal.
reported by ventris, and mentioned in fome modern
treaties on criminal law, it has been determined that
the aaual entment of men to ierve againit the 60
rcrnn,ent doe. not amount to levying war 1t istrus
tina, in tina, cafe .he folders entitled to ferve
without the realm, bnt they were entitled within it
and if the enlGment for reaionable Purpofe could
amount to levyug war; then war had been actually
ssv;sd.
Il !, not the intention of the eour. to fay tina. NO
individual can be guilty o this crime who has not ap-
reared in arms asainft his country. On the contrary
IL war be actually levied that is, ifs body of men be
actually aden,bled for the fsrPofe of efestiRg by
force treaionabls purpoie athofe who perform any
part, however minute OF however remote from the
fcene OF action, and who are actually eagued in the
general eonpraey, are to be eoudersd as traitors.
Bu, there NUT be actual Attending OF men for
the treafonabe purpole, to conftitute levying of
Crimes 70 atrecions as thofe which have for their
Object the fubverGon by violence Of thoie laws and
thofe inntations which have been ordained in order
to feeure the peace and happiness of oeety, no.
90 elcspe prnif ncnt becapfe they have ripen.d
into tr,sfon The wifdom of the legislature is conn
petent TO provide for the cafe and the Trainers of
our contribution wins only defined ndlinited the
crime hut with Jealous oireumfpeaion attempted to
protect their limitation by providing that perfon
fhond be convicted of il, unlefs the tsftiony of
two w,,ne1es to tn. fame overt at, eonfefhoa
in open court mutt have conceived il fate that
punifhu,ent in fuch cafes mould be ordained by gene
Iz laws formed upon deliberations under the influence
Of no refentments, and without knowing on whom
they were to operate than that it fhoud ba nhiaed
tader the influence of thoe Pafons which the occa-
E,n fedom fails TO excite and which flexible desnj-
ton of the crime or conlructon which would rem
der flexible, might bring into operation. 1t is there
fore more fafe well confonant the prin-
eipes of our contribution that he crime of treafon
cafes; and tina, crimes clearly within the conffi-
tuonal definition fhould receive fuch punlhmcnt as
the Legislature in i;s wifdom may provide.
To comple'e the crime Of levying war againit the
IT, S. there nun be all actual afemblage of men for
the pnrpofe of executing areaionable deGgn. In the
cafe now before the court, defgn to overturn the
government of the u. S. in New Orleans by force,
would have been unquehionably a defign which if
carried into execution would have been treaon, and
the aTemblage of body of men for the purpofe OF
CARRYING il into execution, would amount to evyns
Of war sgant the u. s. but confpraey for this OBJ
ieA no emitting Of men to efea it, would be an ae-
tuaI levyirg of war.
In conformity with the principles now laid down
have been the deeions heretofore made by the udg-
es of the u. s.
The opinion, given by the judge Paterfon and
Judge irsdell in cafes before them imply actual af-
fembling Of men though they rather dehgned to re-
mark on the purpoe to which the force to be APP
piled than on the nature Of the force idef. Their
p;ion, however contemplate the actual employment
Of force.
Judge Chat. in the trial Of Fries was more expli-
He ha.ed the opinion Of the court TO ne tina, il
body Of people eonpire and mediate nfprrsGti-
en- to rsEn or oppofe the execution Of any fatute Of
the u. S. by force, they only guilty of high
niidemeanor; but if they proceed to esrry fuch in-
tenon into execution by force, that they guilty
Of the treaion ofevyng war and the uranium Of the
force employed neither lehcns nor iDcrsafes the
crime whether Eby one hundred, or one thoufsnd
perlons, is wholly inimsteriaL. The court are Of