Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1807-09-09
Griaf of aarcn 25urr.
OPINION
OPINION
Of the Court, on the motion TO arrest The
cuidence-deiiuered on
MONDAY, August 81

ne COurt WnlCn gave tnlS opinion was
composed offour judges. At the time tn 1T
them unanimous, but Ihave since had reason
to suspect that one of them, whose opinion is
entitled to great respect, and whose indspo-
sition prevented his entering into the discus
sioos, on some of those points which were not
essential to the decision of the very case un-
der consideration, did not concur in this psr-
ticular point with his brethren. Had the
opinion been unanimous, it would have been
given by majority of the judges. Bu.
should the three who were absent concur
with that Judge who was present, and who
perhaps d.ssents from what was then the
opinion OF the court, majority of the iudg-
es may overrule this decision. | should
therefore feel no objection, although then
thought, and still think the opinion perfect
ly correct, to Carry the point If possible a.
gain before the supreme court, If the case
should depend upon it.
In saying that still think the opinion per-
tectiy correct, donct consider myself as pc
mg further than the preceding reasoning
goes Some gentlemen have argued as If the
supreme court had adopted the whole doc
trine OF the English books on the subject of
accessories 70 treason. But certainly uch is
not the fact. Those only who perform a
part, and who are eagued in the conspira-
cy are declared TO he traitors. To com.
plete the dc inition both circumstances must
concur. They must perform part
winch VIII furnish che overt act, and they
must be " leagued in the conspiracv.''-
The person who comes within this descrip-
ton, In the opinion of the court levies war.
The present motion, however, does not rest
upon this point; for, if under this indict-
ment, the United States might be let in to
prove the part performed by the prisoner,
II he did perform any part, the court could
not stop the testimony in its present stage
ID. The second point involves the cha
racter ct the overt act which has been ei-
ven In evidence, and calls upon the court
to declare whether that act can amount to
levylng war. Although the court ought now
IN avoid any analysis of the testimony which
has been offered in this case, provided the
decision OF the motion should not rest upon
IT, yet many reasons concur in giving pecu-
liar proprLety TO a delivery, in the course
Cf these trials, OF a detailed opinion on the
question, what is levying war As this ques-
zion has been argued at great length, 1t may
probably save much trouble to tho counsel
how to give that opinion.
In opening the case it was contcnded by
the attorney for the United States and has
since been maintained on the part of the pro
secution, that neither arms nor the appli-
cation of force or violence are indispensa-
bly, necessary to constitute the fact of levy
ing war. 10 illustrate these positions Sc
Veral cases have been stated, many of which
would clearly amount to treason. IL all OF
them, except that which was probably
intended to be this case, and on which
no observation will be made, the object of
the assembiage was clearly treasonable
It's character was unequivocal, and was de-
monstrated by evidence furnished by the
assemblage itself; there was no necessity
to rely upon Information drawn from extrin-
sic sources, or in order to understand the
tact, toPursue course ofintricate reason
ing and TO conjecture motives. A force is
supposed TO be collected for an avowed
treasonable object, in condition to attempt
that object, and to have commenced the at
tempt by moving towards it. / state these
particulars because although the cases put
may establish the doctrine they are intend
ed to support, may prove that the absence
OF arms, or the failure to apply force tC
sensible objects by the actual commission
OF violence OIL those objects, may be suppli-
ed by other circumstances, yet, they also
serve to show that the mind requires those
circumstances TO be satisfied that war is le-
We'd.
Their construction of the opinion of the
supreme court is, / think, thus far correct
IL is certainly the opinion which was ut the
. tiHnS entertainer by myself, and which IS
still entertained. IF a rebel army avowine
its hostility to the sovereign power, should
front that of the government, should march
and countermarch before it, should manocu-
vre IN it's face, and should then dispcrsc
from any cause whatever without firing a
gun, / confess could not without some sur
prise, hear gentlemen seriously contend that
this could not amount to an overt act OF le-
Sying war. a case equally strong may be
put with respect to the absence Of military
weapons. II the party be in condition to
execute the purposed treason without the
usual imp ements Of war, can perceive no
reason for requiring those implements in
order 20 constitute the crime.
1t is argued that no adiudged case can be
produced from the English books where ac-
tual violence has not been committed Sup
pose This were true. No adjudged case has,
or it's believed, can be produced from those
books ia which it has been lad down, that
war cannot be levied without The actual ap-
pl!cation Of violence 10 external objects -
The silence of the reporters on this point
may be readily accounted for IN cases of
actual rebellion against the government.
the most active and Influential leaders are
generally most actively engaged in the war,
ana as the object can never be 70 extend
punishment to determination, a sufficient
number are foDuA among those who have
committed cctual hostilities, % satisfy the
sveUging arm of Just &C. In cases If con.