Alexandria daily advertiser. [volume] (Alexandria [Va.]) 1803-1808, 1807-09-11

I not fciloW-sEat he alone Can have 1evlee
war Who has hernesarms. All those who
ccrform the various and essential military
parts Of prosecuting the war which mus
be assigned to diRefens persons, may VIII
correctness and accuracy be said 20 levy
war.
Taking this view Of the subject, is ap'
pears 10 the courtstha, those who perform
! par, in the prosecution Of the war may
correctly be said ,olesy war and 70 commi'
treason under the constitution. II will be
observed, that this opinion does not extend
Ito the case of q person who performs nc
ACT in the prosecution Of the war, who
c~ounsels and advises il, or who being en-.
gagged in the conspiracy fails to perform his
part. Whether such persons may be i'm.
plicated by the doctrine. that whatever
would make a mat an accessory III felony
makes him a principal in treason, or are
excluded, because that doctrlac is inaPpli.
cable to the United States, the constitution
having DECLARED ,ha. treason shall consist
only 10 levying wsr, and having made the
proof Of overt acts necessary TO ccnvic-
ton, j. a question Of vas. importance
which il would be proper faT the supreme
cou TO take afr occasion 70 decice, but
which an inferior tribunal won.d 20, vii.
iipgly determine uniess the Case before
them should ,squue it.
1, may now be.proper to notice the OPT
Mon Of the supreme court IN the case OF
the u. S. against Bo4!man aud Swartwous.
Is is said that this opinion, in declaring
that chose who do not bear arms may yet
be gallty Of treason, is coDtraryto law, and
is not obligatory because it is sxuajodi.
cial, and was delivered on a point pot
argued Tins court is therefore required
{ 0 depart from the principle there laid
down.
IL is true, thar 10 that case after forming
the opinion that no treason could be com,
nit,ed, because no unreasonable assemblagc
had taken place, the cour; might have dls.
p ceased with proceeding fur.heri in the doc
uines OF treason. Busit is 10 - renem
bered, thar the judges might act separate
iy, aud psrhsps az sne same time, 90 the
various prosecutions which nigh. be iosti.
tuted. aad that no appeal lay from their
decisions. Opposite Judgments on the
poins would have preseated . state OF things
infinitely to be deplored by all. 1t was not
surprising then tina, the. should have made
sone attempt to settle principles which
probably would occur, and which wereir
some degree conaecsrd with the point be.
fore them.
The court had employed some reason.
ing 10 show that without the actual em5o-
dying of meu war could not be Ievied.-
Il n, igsht have been inferred from this thar
hose only who were SO embodied couid be
gullty Of treason. Nat ouly TO exclude
this inference, bur also to affirm the CON
traIy, the court proceeded 10 observe,
8 Ii is not the intention of the court to
say that no Individual Gao be guilty Of
this crime who has no, appeared 10 arms
against his country. On the contrary, If
wal be actually levied, that is, TIA bedy of
men be actually ASST mbled for the purpose
Of effecnng by force a reasonable object,
all those who perform any part however
minute, or however emot from the scene
of action, and who were actually leagued
in the general conspiracy, are 10 be censi
dered as traitors"
This COURTS told tha, if this opinion be
incorrect It ought not to BE- obeyed because
1t was exus. judicial. For myself, | can
say thai, / could Dot lightly be prevailed 90
20 disobev it, were | even convinced tina,
it was erroneous. but | would certainly
use any means which the law placed 10
my power to carry the question again be-
fore the supreme court, for re, considcrati.
on, 10 a csse 10 which il would directly oc.
cur anc be fully argaed.
The our whirh gave this opinion was
composed ofsjudges. Attic time L tho'i
them unanimous, but have since had rea