Alexandria daily advertiser. [volume] (Alexandria [Va.]) 1803-1808, 1807-09-14
OPlNION
OF thr Court on the xsos;cn 70 nfresf s0e
evixencs. DeEvered on
MosnAy. August 81
fcoNTIsuEp.l

0tous asse sDbly or macy persons ~ w en
snnlavful act, though dsfacfo they comunls
the. act they intsnd, that makes a iesylng
! OF war for then every riot would be trea-
son. &&csn 8 bui il must be such an ASSEM-.
bly, as carries Whit sprcien Dell, the aP.
,pezrance OF. war, as if they ride or march
pexllHs sxpkcans, with eolors lying. or u
they be termed toto companies OF furnish.
ed with military officers, or i they are
armed wisk military weapons as.swords,
guns, bills, haiberds, pixies, and are so
circumssancrd thar sis may be. Reasonably
concluded they are in q posture OF war,
which circumstaoces are so various that
i Is hard TO describe them all particular
ly.n
" Dolly the general expressions IN all
the indictments of this aturethat | have
seen are more guerriro arraiati, ~arrayedin
.warlike MANNER
He afterwards adds, If there be a
war levied ~ 10 above declared. viz, an
assembly arrayed 10 warlike manner, and
60 in the posturc Of war for any treasoDa-
bic auempt, is Is s<Lhan iipatuu kt not
percnssum.
Il is obvious tha. lor1 Hale supposed 80
asssmblage of men ia force, ina military
posture, TO Be necessary to constitute the
fact of levying war. The idea he appears
20 suggrst, that the apparatus of war is
necessary. has bsen very Justly combat,ed
by 40 able Judge who has written a valua
bic treatise on the subject of treason ; but
il is not recolIreted that his position, that
abe assembly should be 10 a posture Of
war for any reasonable s'tempt, has ever
been denied. Hawk. CHI, II. see. 2S, says,
!" That not DOLLY those sho rebslagainstth the
king and take up arms TO detnrons him,
but also 10 many other cases, those who in
a yioles. and forcibge manner Withstand his
lawful authority are said to levy war against
him, aud therefore those that hold a fort
or castle against the kings forces, or keep
together asmed numbers Of men sgaios.
the kings express command, have been
adjudgrd TO levy war against him."
The cases put by Hawkins are all cases
Of actual force aud violence, (" Those
who rebel agains, the kirg aud take up
arms to dsthronc him." in many other
cases those " who In q violent and torcibie
manner withstand his lawful authority
Those thar hold . fort or castle against
his forces, or keep together armed num-
bers ot men against his express CON.
ma3d"
These cases are obviously cases of force
and vrolence.
H4w kins. next proceeds 20 describe cases
In which war is understood 70 be levied
undrrshe statute, although il " az not direct.
y made against the government. This
lordHAle terms 40 interpretalc or con-
suucslve le,ying Of war ; and twill be
perceived that he puts no case IN which &C.
sual force is dispensed with.
/" Those also, he says, who make an in.
surrectica in order 20 redress a public
grievance, whether IL be a real or pretend,
ed one, and of their own authority auemp,
Nth force 20 redress il. are, said to levy
war against the kiag, although they have
no direct design against his p~reroga.ive by
attempting TODD thar by private authority
which he by public %justice ought to do,
which maniicstlv tends TO q downright re.
belliou. As where great numbers ~ foycs
attempt 20 remove certain persons from
the king. &c. Thezeases here Bu. by
Hawkins of a constructive leyyirg sof war
do in terms require force as a eoasItuen,
part of the description of the oFFence.
judge Foster, 10 his valuable treatise on
treasoos states the opinion which has breu
quoted from lord Hale, and differs from
that writer so tar as the latter might seem
toreqnsre swcrds, drums, colcrs,a &c. wha,
he Germs The pomp and pageanuy of war,
essential circomstsnces TO constitute Athe
fact Of levying war. 10 the cases of Da,
maree and Purchase he ssys. the want oil
those circumstances weighed nothing viii
the court although the prisoners counsel