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


ievyins Of war. Without laying that the al.
iemblage mutt be IN force or i'm warlike form,
they espreis theInc ives 70 as to ff1ow that this
idea was never diicarded, and they ure terms
which Cannot he ofherw,fe fatisSstl.
The opinion of 4 fiagle Judge certainly
weighs as nothing if oppoftd to that of the ru-
prer,e court hut il he was one of the Judges
who AFFIXED IN framing that opinion, If while,
the Impreflion ander which it was framed was
yet 're.h upon his mint, he delioered an opn.
o" on the lame te'timony, not contradictory to
that which had been given by all the Judges to
gether, but ihowing the ienle in which he I'm
deftood terms that might he differently ex.
pounded, it may fairly be Saei to be in foms
meaiure explanatory of the opinion itfelf.
10 the judge before whom the charge againn
the prifoner at the Bar was firt brought, the
lane teitifnony WAS c!fercd with that which
had been exhibited before the fupreme court.
and be was required Ia give an opinion III nj.
mon the fame cafe. Uponthis location he faid /.
=" Var can only be levied b. the employment
OF actual force. Troops mut be embodied :;
men mutt be aiIembled in order TO levy war;"
Again he obierved, Z" The fact to be proved in
this cefc is an Act of pubic notoriety It mua
exit III The view of the world or it cannot ex;ft
at all. The attending of ferces TO levy war is
vhole traniaetion, and numbers mutt wituefs
it,"
1t is not eafy to doubt what kind of anem
blaee was in the mind 0f the Judge who ufed
theic expreffons, and it is to he recolIeteol
that he had juft returned from the fupreme
court and was fpsaking the very facts on
which the opinion of thatcourt was delivered.
he Lame judge in his charge to the Grand
Jury who found this bill, ohferved, &" to conf.
tute the facf of ievying war, it is not necellary
that hoitilities ihall have actually commenced
10y engaging the military force of the U. S. or
that meafnre. Of violence agaiuit the govern
ment ihali have been carried into execution.
But levYing war is faSt in the contribution of
which forceis an indifpcn6ble ingredient. Any
combination to tubvert by force the government
OF the U. .. violently to diimc mbet the union,
to compel change in the standardization, to
coerce the repeal or adoption of general law,
vs. conipiracy To levy war, and If the confpira-
cy be carried into effect oy the actual employ
ment OF force, by the embodyna and aTem-
ding of men for the purpofe of executing the
treafonable dehgn which was previonily con-
ceived, it amounts to levying of war. 1t has
been held that arms are not encntial to levying
war provided the force aHembled be iufIicient
to attain, or perhaps TO juffy attempting the
object without them" This paragraph is i'm.
msdiately followed by reference to the opn-
on OF the fupreme court.
ltrequires no commentary upon thefe words
uttered them, an affemblage of men which fhould
conititute the fact of Ievying war mutt be an
aficmb'age in force, and that he 10 underfood
the opinion OF the iuprsme court. Ii in that
opinion, there may be found in fome pafiages,
want OF preciifon, an indefnitenefs Of expref-
non, which has occafioned it to be differently
underftood by different perfons, that, may well
De accounted for when it is recolle cted that in
the particular cafe there was no affemblage
hat. AZ
whole ihould be taken together, and in refer
ence to the particular cafe in which it was de-
livered. 1t is however not improbable that the
misunderstanding has arifen from this circum-
itancc. The court unquvitiOnably did not con.
hder arms as an indifpeufab'e rceuilite to levy
iGg war an afemblage adapted to the object
might be in condition 10 effect or to attempt
ii wtnout them. Nor did the court conGder.
the actu?l application of he force to the OBJ
jet as, at all tiNes, an Indispensable reauifite
for an afismbage might be in condition to
apply force, might be IN fate adapted to real
war, without having made the actual appIica-
ton of that force. From thefe petitions, which
are TO be found in the opinion, it may have been
inferred, 1t is thought too hafily, that the nature
or the ai1emblagc was unimportant, and that
war migst be coniidered as actually levied by
any meeting OF men, if criminal intention can
be imputed TO them by tettimony of any kind
whatever.
il has been thought proper to difcufs this
qneitIon at large and 10 review the opinion of
the inprene court, although this court would
be more difPofed to leave the queRion of fact,
whether an overt act of levying war was COM
mited ON BannerbahTrtt's land to the Jury nm.
der this explanation of TIE law, and TO initru6t
them, that unefs the atTembiage on Bannerhaf-
iett's iildnd was an ailcmbiage in force, was a
a military aAemb'age in condition to make
war, 1t was not a ltvying of war, and that they
could not confrue it into an aa OF war, than
to arreft the further teltimony which might
be offered TO connect the prifcncr with that al
lembiage, or to prove the intention Of thofe
who attended together at that place. This
point, however, iG not to be undcrftood as de-
c'ded. 1t will, perhaps, couGitute an enential
enquiry in another cafe.
Before leaving the opinion of the fuprcme
court entirely OH thc qleitioh of the n-ture of
the aiiembiage which will conftituic aH act of
levying war, this court cannot forbear 10 al,
why is an a1emblage abfolutey required? Is
II not to judge in fome nsafure of the end By
the proportion which the means bear to the
end Whyis 1t that Jingle armed individual,
entering boat and falling down the Ohio, for
the ayowed purpofe OF attacking New Orleans
could not be tald TO levy war 10 it not that he
IL apparently not in condition to levy war
1t this be 10, ought not the anrmblage to fur
niflI iome evidence of its Intention and capacity
TO levy war before it can amount TO levying war?
And ought not the fupreme court, when
iPeakIns OF an af1emblage for the purpofc of