The enquirer. [volume] (Richmond, Va.) 1804-1815, 1807-09-05
MONDAY, Ausuft 81.

MONoAI1 Sls
The queition now to be decided has been ar
gued in manner worthy of its importance,
and with an earneftnefs cviucing the ffrong con-
viSton felt by the council on each tide that the
law is with them.
A degree of eIoquence feidom difplayed on a.
ny occafion has embellilhed folidity of argu-
ment and depth of reiearch by which the court
has been greatly aided in forming the opinion it
is about to deliver.
The teflimony adduced on the part of the
United States, 10 prove the overt a8 laid in the
Indictment, having alown, and the attorney for
the United States having admitted, that the
prifoner not prefent when that aSt, what
ever may be its charatter, was committed, and
there being no reafon to doubt but that he was
at great difance and in different fate, it is
objected to the teitimony offered on the part of
the United States, to connect him with thofe
who committed the overt act, that fuch teai-
mony is totally irrelevant and mutt therefore be
rejected.
The arguments in fupport of this motion re-
fpeet in part the merits of the cafe it may be
fuppofed to ftaud independent of the pleadings,
and in part as exhibited by the pleadngs.
On the firft diyifion Of the fubjea two points
are made.
lf. That conformahly to the contttutioa of
the United States, no man can be convicted Of
treafon who was not prefent when the war was
levied.
end. That ifthis contraction be erroneous,
no teftinony can DE received to charge one
man with the overt acts of others, until thofe o.
vert ATS az laid in the indictment be proved TO
the fatisf.6tion of the court.
The queftion which aries on the conftrudi-
on of the contribution, in every point of view
in which it can be contemplated, is of infinite
moment TO the people of this country and TO
their government, and requires the mott tenn
perate and the mot deliberate confederation.
"Treafon againf the United States lhall con-
FIT only in levying war ag4nf them."
What is the natural import ofthe words I" lr
vying of war Aud who may be laid to levy ,"
Had their firit application TO treafon been made
by our contribution, they would certainty have
admitted of fome latitude of contribution. Ia
ken IN, literally, they are perhaps of the fame
import with the words rafting or creating war,
but as tbofe who Join after the commencement
are equally the objects of puniihment, there
would probably be general admiiiion, that
the term ALTO compreheuded making war, or car
ryipg 'onwar. In the contribution which courts
would be required to give tbele words, it is not
improbable that thoie who ihoud raife, create,
make or carry on war might be comprehended.
The various acts which would be conEdcrcd as
coming within the term, would be fettled by a
courr of decfons, and it would be affirming
boldly to fay, that thote only who actually con-
ftitu:ed portion of the military force appear
ing arms could be conGdered as levyng war.
There is no difficulty in affirming that there mnft
be war the crime Of levying it cannot exit,
but there would often be comfortable difficult
ty in affirming that particular as did or did
not involve the perfon committing u in the guilt
and in The fact of leyying II for example,
: IAN army ihouId be actually RATED for the avow
Cd purpoie of carrying on open war againlt the
United States AMI fubVcrting their government,
the point muf be weighed very deliberately,
before Judge would venture to decide that
an overt att of levyiug war had not been COM
United by commiilary of putchafes, who
never faw the army, hu; who, knowing its Oh
j;a and ieagueing himicf with the rebels, fup-
piled that army with Provifons or by reclrit-
ING Officer holding a conmiCion in the rebel
frrvicr, who. though never in camp, executed
the particular duty aGi sned to him.
But the term is not fer the frft i,ne applied
to treaion by the connitution of the u. Statre.
J. is a tecbuiC akterm. 1t ia uf-d in very old
flatute OF that country, Whole ianeusee is our
language, and whole laws form the fubitra'un
of our laws. 1t is fcarcely conceivable that the
term was not employed by the frarlcrs of eur
contribution in the fenfe which had been afixs.l
20 it By thofe from whom we borrowed it. SO
far as the meaning of any terms, particularly
terms of art, is completely glcer'ained, thoie by
whom they are employed INIT be coaidered az
employing them in that aicertaHed meaning,
uplrfs the contrary be proved by the context
], ls therefore rcafona5e 20 iuppofr, un,efs it
hr incompatible with other exprsiIions Of the
contribution, that the ter.n ieyyiGg Uar" 10
MED in that inhrnntat ia tie fame fr1Ie ~
which was underaooi in England andn this
country, 70 have been uftd in he Ratute Of the
18th of Edward, 8 d.frdm which ii was Dor.
Tnwed.
II ia laid that this meaning is to be collected
Only from sdjndged cafes. d.: this petition
cannot be Connected 10 he exfsnt in which it is
laid down. The hyperion authority OF adjndc-
ed cafes will never he coutroyerted. Bur tho.c
celetrated elementary wricrs, who have nsi,d
the principles of The Ia >. whole it4;ements have
received the cormna >aprc baton of legal mcn
are not L. be difrecasdcG. Principles laid diva
ny fuch writers as Cok,, Hale, Peter and Ellrk.
fonr, are not signify 80 be r,i-ttcG. Ttcie
books acin the hands of every hadn't. Legal
opinions are formed upcn hen, and tholc cpl
Mons are afterwards Carried 10 the bar, the
l,ench and TIE legiilNCre. 81 tIctg2oi ion q.
terms, fher, for, u!rd 10 iansumens sc the cTe-
TENT dsy, the difiDnicDs ard the q Ga of lh0;c
authors, If not coutraGidcd by adjn6ca;ions,
AID 4 compatible with The wordsOi the taiu'e,
are en'itied 10 rt fprc. II j. 10 Nc regretted t,
they do not ifed as much light Oh ta,s past OF
Are fut i"Sf as is TO be wilbeJ.
Coke does not give a con pixie definition q.