The enquirer. [volume] (Richmond, Va.) 1804-1815, 1807-10-03

| "!S SoV TOT 'hat claute rs, II man lev,
, :" war againit our iovereign lord the king III bi
Teohn ard by the matter found in the fpe
=" c'al verdict il appears that thefe men were
, htted and fent beyond fra TO aid the French
KING In the original report the words il
6's realm are printed in Italics, as marking the
particular part of the fatute ON which the
opinion rrited. But fuppoie the pnrpofed
war had been qvi.bin the realm is not the
implication from the reckoning of the court
irfchttib'e. that the eniiitment would have
been iufiicient overt a9 of Ievying? Is it not
ciear that the court in this cafe confidercd the
iea'ute or Edward as explained and cxpoundea
oy that ct Richard III that they diRinguihel
between tie ley and TIE evnr; and required
according - the expreis letter Of the fecond IA
tute mat nat ouy the preparation, but the 5m-
pefSd evar fhould be quitbin rbe rea,,7 But it
mas been taid that if the entment had been 4
inihcient overt aa Of levying war, then war had
oeen levied within the realm. But this is con-
iourding the levy with the war, the means with
!he end, the preparation with the purpo!e il
is iohng light of the requifition Of the ffatute
that not the levy merely but the intended war
mail be within the realm. Bellies when tie
court 6Vozv the reafon of their opinion; when
they declare It to conif mot in the infifficiency
OF inc taet OF preparation, but) in the fact that
the Propoied war was to be out or tie realm,
WITH what proprety can it be argued that their
oP'nion rsited, not on the reafon which they
'heHieives avow, but on one which they do
not avow and which they diapprove as fat as
they can do it by implications If K was i'm
material Srbeye the.war was tos,c, if the en'ilt-
inent OF men was in itfef Inefficient as an overt
ACT or levylng war, why did not the court take
, tnts ground at once and fay that The mere en-
| h"H'eht OF men was not an overt aG Of levying
war The aniwer is obvious it V as becaufe
'hey conhdered the tatute as requiring thar the
Purpoied war fliould be within the realm
whereas the war as fouad by the jury was in
tended 10 be out of the realm; and to my judg-
meht' the Inference is equally Obvious that If
the war had been found 10 be inten within the
realm, the coure would have had no doubt that
the warh1tbesn levied by the enliitment. The
csie IN Ventrs therefore is 70 far:from warrant
ing the concluhon that the mere eDiameDt is
nor iuhIcent overt act of Ievying war that
IN my conception, IL warrants the conclufion
that 1t is tufficient act. Aud if the cafe in
Ventr's does not juitify that doctrine that
enllitment is Insufficient as an overt act, DEFY
the gentlemen TO produce cafe, moi Geb.1dsnt
on f6af, which does warrant it. But let me
yield the authority Of this cafe, let me ad nit it
to prove what it has been fuppofed to prove,
It'll 1T 'mpairs the etymooey of the word Aez,y.
inS' no farther than this, that rafting men only
is not ieVying war. How far then are we to carry
the meaning Of this word Luy? Shall we add
the other meaning of the word in the original
angaase and fay that the men u,uit NOT only be
RATED, but that they mutt be brought together,
oraiembied?. Be it 20; and contend that
neither the courts of this country or of England
have ever required more than an alc,qbLage OF
men with lrealonable intent whether they IL.
armed or unarmed whether they ufr force or
not; whether their Numbers be great or fmall;
Till according 10 authority the trealon is com
Ipieat.
Arms are not necefTary. Whenever the En-
! gliih books have appeared to require them, it
will he found, on examination, to be in the rate
mtnt ot Tome hypothetic cafe, qvbere TIE ovsrt al
IS 10 contain, qufin itlf evidenee Of the treaea-
a6Is intent: bnt whenever tie freaIonable intent
can be proved by evidence extrinGc eftbe ozert
Ht!, arms have never in any cafe been required
l. Hale 1871. for exampIe puts theie cafes " As
where People are ahembled in great plumbers
armed with weapons ofenlive or weapons of
war--if they march thus armed in body--if
! they nave choien commanders officers-if
| they march cum veYlis expiicatis, or with
drums or trumpets or the kc."-In all tbefe
cafes there is not word Of any extrancous evi
! dence OF the treaionabe intent but that in
tent was to he found in the appearance and war-
! Ike array of the aiIemblage itfcf. Mr. Dallaa,
whole legal opinions are certainly entitled to
VERY hiGh retpett, when lie was of council for
John Fries, and was confequentIy not interefed
| IN extending the doctrine Of treafon, admitted
the dih'n6tion which ! have hare taken. In
| page i0S of Frics's trial he is reported to have
| taid--'' As on the one hand / grant TINT the
cirenrHaHes of,piffayr arrGy is not Hefej1cfry to
an aG OF treafoU, if TIE intention is trGi!er2a5 90
! ! iuit on Tie other hand that the circumitance
| Of military array will not con0itu,c treaion,
Wi bout iuch intention" In this he is fupport.
let by all the Engii(h authorities. Lord Hale
who ieeins more diipolsd than any other writer
or Judge 10 barrow the doctrine of treafon, no
| where fdYs that arms are neceillry. Speaking
oFthe difficulty Of defining what contributes le.
vying war, he iays it is commonly exbyeGsd by
the WORDS mare gasrrjR9 ayrGiqfi, HltI'V p. G.
ISL, That 10, IN treating generally 81 The iubiett
or deicrihng the offence in indictments it is fo
commonly FxItDcdj and in this light he ia
underitond by Potter 2Os. SO far indeed ID
Lord Hale from requiring military array, that
by the nrongcf implication he declares II I'm.
neceillry.--" again, the actual attending OF
many rioters IN great numbers tc do unlawful
acts, if i DC not modo gasryi1o loecis bsiE, rs
If Hfy bdze no military arms nor march or eor-
kiaae IN The po.9rs Of syay, may make great RI
Of, yet doth not d'zyar5 amount to a levyiug Oh
war" What IS the candid inference from this
paiIlge that )2UsiineJ (uch an unarmed sTcm.
blge, without the warlike array or the New OF
war, may amount 10 q levying of war: for il
thi5 he rot the inference the word ai4vart ufct
by Lord Hale has no Ggnfcation whatever
affirm thar uo fsufs c,u h. r,~CJu-cI H..