The enquirer. [volume] (Richmond, Va.) 1804-1815, 1807-02-06

| Mr Jones iatu, IL was with the utmoN oifn-
dence he could prefume to anfwer the fuggelti-
ons OF the court upon topic 70 important, 70
difficult, and 70 little explored as the doctrine
OF treafon under the contribution. It was OBJ
vious to the court how entirely unprecedented
his remarks mutt be. He could pretend to no
accuracy or depth of refearch, as he had never
been placed in circumstances to render the itudy
of that branch of criminal Jurisprudence, an OBJ
jeet Of any particular attention. Thus fudden-
ly and unexpectedly called upon, he could
hazard only fuch defultory remarks upon the
constitutional definition of treafon, as might
tend to fet up contribution Of that inftrument
confonant to the plain understanding and COM
mon fente of mankind, aud applicable to the
purpofes of practical utility. He could derive
little aid from the learning extant on the fu6jee
but mutt rely upon fome unexamned impretii-
ons and recoettions from general reading.
The fact to be afcertained in the firt place,
is the treafonable irtent. The evidence is con-
clu6ve to that point, for although the cenqueft
of the Spanifh province of Mexico 10 avowed as
the ultimate Object of the enterprise, yet the
feizure and plumber of New Orleans, an in
termediate fep for fuppying the means of ac-
completing that object, is as explicitly avow-
ed. The only active participation of the tcea-
ION, in which the two emiflares Boman and
Swartwout appear to have been clearly detect
ed at New Orleans, is an infamous and abortive
attempt upon the honor and fidelity of the
commander in chief.-This, however criminal!
may be faid to be, in ifelf, no overt atf oftrea-
fon,-no iezying efevar againft the U. S.
Agreed tit is not necei1ary to contend other
wife in order to thew that the prifoners fhould
be arrelted and committed as traitors.-It is
clear from the evidence that they are leaeued
and confederated, in his atrocious projects,
with Aaron Burr, the notorious head and lea
der of the confpirators. They are active and
acknowledged agents and participators in the
plot. Then fuppoie they detached, from
the main body, to execute, at New Orleans, a
quiet and neifelefs fcheme of treachery and cor
ruption ;-fuppofe them to be per/onaily en-.
gagged in no attempt of open violence yet,
while they arc thus employed, their confeder
ates Attended in arms, fome hundred miles
higher up the Mif1if1ippi at hatcher, or on the
banks of the Ohio near Marietta, commit
clear ACT of treafon by levying war agaiuf the
U. S. in the trietef fenfe of the phrafe. Could
it be doubted that the fpies and emif1ares en-
ployed at dfance from the fcene of action,
however fecret and bloodefs the immediate OBJ
|jee of their milton, if it be part-execu;ive
of the fame treafonable plot, would be involved
in the guilt of their confederates ?-The qucf-
ton is not in what degree the mere ininlated ACT
OF attempting TO feduce high military COM
mander from the allegiance of honor and the
fidelity of patriotifm, is criminal or punifha-
BILE but what lengths have their known con-
federates proceeded in the co-execution, BY
more overt acts, of the fame treafonable con-
fpiracy?
The constitutional definition of treafon f3,ould
not be confirmed to reftra that offence to cafes
only of actual violence or affault.--The terms,
"1evying war" have been long ufed in more
extenlive fenie both in common parlancc and
| in the language of jurifta. words of the
Englifh ftatute of Ed. 2. are literally adopted
in our contribution. The albeit and mott i'm
partial commentators upon that ftatute, the
mott approved jurihs who have written upon
the law of nations, in explaining what acts of
the fubjef againt the fovereign, or what acts of
| one ioyereign againf another, contributed an
actual kyying of war, have never conGdered
! the ihock of battle, the encounter of armies, or
the interchange of blows to be indifpenfible or
efental.-War may be leyied, in the received
fenfe of the term, and not blow be truck,-
not town nvefed,-nor an inch of territory
invaded or ufurped.-What fhall conftitste
Ie1ying of quar- depends upon 70 many and fueh
various facts and circumstances, that it would
be vain to attempt an enumeration of every fup-
potable cafe. 1t feems never to have been quef-
toned, however, that fuch unequivoca acts as
the emitting folders, appointing officers, pre-
pairing military equipments, warke flores and
Provifions, or the attending in comfortable
numbers in warlike array, armed with military
weapons, for hoftile purpofe, confttuted a
levying of war, in fact. 1t is fufficient if they
preient what is termed the Ipeeiem belE, if they
thew themfelves in the pofture of war an in
telligible and rational difinetion (theugh ex-
pref1ed in rather barbarous language) is made
! between the Belluu Iepatum, and the Beiiwu
PereHTlm 1t is the Beilnni ie1,atu,u that is in
tended by our contribution to be fixed as the
leaf denomination of that fpecies Of treafon.
When the bare fact of levyiDg war is afcertain-
ed, it is then to be enquired quo amino? With
what intent and againft whom In England,
if the intent be to levy war agana the king it is
high treafon under the ftatute of Ed. SIN this
country if the intent be to levy war againft the
| u. Sit is treat e" againft them under the con-
fitution. Under either of thofe laws, levying
or actual waging of war between any number
of individuals, if with no intention to levy war
or carry on any other treafonable deigH againft
the Fate, amounts not to treafon, but will be
mifdemeanor or felony, according to what
lengths they proceed, from riot and breach of
of the peace to murder. There is no real diff
ference in the meaning of the fame phrafe as
respectively ufed in the Englifh ftatute and in
the American conaitution.--If any falfe glolfes
have been put upon it in the one cafe, let them
at once be rejected, and found, rational and
a legitimate contribution be adopted.-There is
no pretence for fuppoGng that the criterion re-
| ferred TO, as to what acts have been determined
to confitute aievying Of war within the mean
| ing of the EDglifh ftatute, is the refult of any
of thofe criminal compliances by which their