The enquirer. [volume] (Richmond, Va.) 1804-1815, 1807-09-05

war multi exiit to couftitute technically as we'll
as really the fact of levying war.
Judge Backbone Teens TO concur with his
predecefors. Speaking of levyng war, he fays,
So This may be done by taking arms not only to
dethroue the king, but under pretence to re-
form religion, or the laws, or to remove evil
councillors, or other grievances, whether real
rpretended. For the law does not, neither
can it permit any private man or fet of men to
Interfere forci6ly in matters of fuch high impor-
tancs."
He proceeds 70 give examples of levyng war,
which ihow that he contemplated actual force
as a neceGary ingredient in the competition of
1t would ieem then from the Englifh autho-
rites, that the words &c levying war;" have not
received a technical different from their natural
meaning, 70 far as refpeets the character of the
affemblage of men which may conltitute the
tatf. 1t muff be a warlike aHemb,age, carrying
the appearance of force, and in Gtuation to
practice hoitlity.
Several judges of the United States have gi-
ven opinions at their circuits this fuhjett, all
of which defervc aud will receive the particular
attention of this court.
In his charge to the grand jury when John
Fries was indicted, in confQ uence, of forcibie
oppofiton 10 the direct tax, Judge Iredell is
undertood to have faid, Z" think am war
rsnsed in faypg, that if in the cafe of the infur-
gents who may come under your confederation,
the intention was to prevent by force of arms
the execution of any act of the CongrefS of the
United States altogether, any foreibie oppoftion
calculated to carry that intention into effect,
was levying of war againf the United States,
and OF courie an act of treafon." To levy war
then, according to this opinion of Judge Irede!l,
required the actual exertion of force.
Judge Patterion, in his opinions delivered in
two different cafes, feems not to differ from
Judge ITede'l. He doesnot, indeed, precifely
fate the employment Of force as neceiIary to
conftitutea evying war, but in giving his OPT
mon in cafes in which force was actually en-
pioyed, he coniders the crime in one cafe as
dependent on the intention, and in the other
cafe he Jays, combining th-ie facts and this
deilgu," (that is, combining actual force with
treafonable defgn) the crime is high trea-
fon."
! Judge Peters has alto indicated the opinion
that force was necef1ary to conititute the crime
of lcvying war.
Judge Chaie has been particularly clear and
explicit. In an opinion which he appears to
have prepared on great confederation, he fays,
The court are OF opinion, that if a body of
people coniPire and mediate an ininrreetion
to rehft or oppofe the execution of a ftaiute of
the United States by force, that they are only
guilty of high mifdemeauor but if they
proceed TO carry fuck intention into execution
by force, that they are guilty of the treafon of
ievying war and the Quantum of the force
employed peitbeir increaes nor dirnlnithes the
crime; whether by one hundred or one thou
land perfonssis wholly immaterial
"Ihe court are of opinion, that comhina-
ton or confpiracy TO Ivy againf the Unit.
ed States,Is not treafon unlefs combined with
an attempt TO carry fuch combination or con-
fpiracy into execution, fome actual force or vi
o'ence NUT be ufed in purfuance of fuch de-
hgn TO levy war but that it is altogether i'm
material whether the force uicd be fufficient to
effectuate the object. Any force connected with
the intention will confituts the crime of levy
ing of war"
In various parts OF the opinion delivered by
Judge Chafe, in the cafe Of Fries, the fame fen
tments areto be found. IL is to be obferved,
that theie judges not content that troops
fhouId be afiembed in condition to employ
force According to them fome degree of force
mutt have been actually employed.
The Judges of the United States, then, 70 far
as their opinions have been quoted, feer., to have
required fill more 70 conatute the fact of lie.
vying war, than has been required by the Eng
liih books. Our Judges feem to have required
the actual exercife of force, the actual employ
nent OF foTnc degree of violence. This howe
yer may be, and probably is, becaufe in the Ca
fes in which their opinions were given, the de-
fgu not haYiDg been to overturn the govern
Ipenf, oui 10 relift the execution of law, tuch
an aiitmbIage would be fuficiert for the pur-
pole, as to require the actual employment of
force to render the object unequivocal.
But it is f4id all thefr authorities have been
overruIed by the decifon of the fupteme court
IN the cafe of the United States againft Swart-
won't aud Boman.
If the iupreme court have indeed extended the
doctrine OF treaioh, further than it has hereto.
fore been carried by the judges of England, or
of this country, their dsciiion would be fub-
mittsd to- At leaft this court could 90 no fur
ther than to endeavor again to bring the point
directly before them. 1t woald however be ex-
pe6ted that an opinion wLch is 10 overruie III
former precedents, and to eiTabliG, principal
never before recognized, fbould Lc exprefIed in
plain and explicit terms. a mere implication,
ought not To profrate principle which feems
so have been 10 well eAabifhed. Had the in
tentioA been entertained 10 make 70 material
change i'll this rsipecf, the court ought to have
expreisly declared, that any aHem blage OF men
whatever, who had formed ;realunable de.
fign, whether in force, Ornot, whether in a con-
dition TO attempt the deign or not, whether at
tended with wariike appearances or not, con.
hiiutes the fact OF ievying war. Yet no decla-
ration to this amOuGt is made. Not an exprcf-
Con of the kind 10 10 be found in the opinion OF
the fupume court. The foundation on which
this argument reas is the omilion of the court
to rate, thar tue aiiemblage which contitutes
the fact Of leVyiug war ought TO be in force,
and foms p4l1grs, which How that the quefi.
o.. H.