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


Thefe cafes are obviouily cafvs of force ard
violence.
Hawkins next proceeds to drfcrihe cafes =,
which war is unde,food to be levied under TIE
itairte, although it was not directly MADE 4.
eainG the government. This Lord Hale terms
an interpretatiG or confruttive levying of wa:
and 1t will be perceived that he puts no cafe in
which actual force is dfpei'ed with
Thief ALTO, he fays, who nske an infir-
ree'ion III orderto redrefs public grievance.
whether it be real or pretended one, and OF
their own authority attempt scitb force to re-
| drets il, are fad To levy war aganft the king.
although they have no d;reG defgn agsinft his
perion, inafrnuch they info!enty invade his
preroeative by attempting TODD that by private
authority which he by public juniee ought TO
do, which manifodiy tends 10 downright re-
be!I'cn. AS where great numbers BY force at
tempt to remove certain perfons from the king,
&C.. The cafes here put by Hawkins Of a
confruttive ievying of war, do in terms require
force as conRituent part Of the defcriptiou of
the offence.
Judge Foflcr, IN his valuable treatife on tres
ION. Rates the opinion which has been quoted
from Lord Hale, and differs from that writer
70 far as the latter nigh; fcer to require fwords,
drums, colours, &c. what he terms the pomp
and pageantry OF war, as eiicntial circumfau-
ces to confituie the fact of levyiug war. In
the cafes of Damaree and Purchafe. he fays,
I" the want OF thofc circumstances weighed no.
thing with the Court although the prfoner's
counfel Unified much on that NATTER But he
adds, " the number of the infurgents fuppl;ed
the want of military weapons and they were
provided with axes, crows and other tools of
the Ike nature, proper for the mitchell they
intended to effect. Fnror armG ,uiiHrat."
tits apparent that Judge Potter here al!udes
TO an afiembIsge in force, or as Lord Hale
terms it, in warke pofure"-that is in a
condition to attempt or roceed upon the trea/
ion which had been contemplated. The fame
author afterwards natss at large the cafes of Da-
rnaree and Purchaf. from 9Th Rate trials, and
they are cafes where the infurgents not only .
afiembled in force, in the pofture of war, or in
a condition to execute the treafonable defep,
but they did actually carry it into execution,
and did reff the guards who we're fent to diff
perfe them.
Judge Foaer Gates, fec. 4, all infnrreaioos
to effect certain Innovations of public and er-
neral concern by an arned force, to be in corr
Traction Of law, high tteafon within the clauIe
of levyirg war.
TIE cafes Pvt By Foltei of connruaive lew
ing of war, all contain as material Hfredient,
the actual employment OF force. After going
through this branch OF his fuhjee, he proceeds
to fate the law in q cafe OF actual levyipg VIZ.
that's where the war is intended directly agaitf
the government.
rayed in wariike manner for a treafonabIt pur-
Poie is 6eitam EUGfau, though not beiIxm tncu(.
Jim. Lifting and marching are fufficenf overt
acts without coming TO hattie or action. So
cruizinC on the kings fuhiefs under french
commiiiion, France being hen at war with nc,
was held to bc adhening 20 the kings ercurg
though no other act Of hoitility be provcd.''
An afe,chly armed and srraysd in a war.
ike manner for any .reafonable purpcs.' - is
Certainly in fate or force in condition 20
execute The treaton for which they afTemblet'.
The words enliftng and marching." which
are overt acts OF lrvyine war, do in the arrarrr.
mcnt ofthe fri,ehce, alto mpl@ ftate of fcr~e.
though that astc is not expreflcd in ternrs for
the iucceediag words, which fate a particular
event as not having happened, prove that eyeot
to have been The ncxt Circumstance to thof-
which had happened-they are 'wilhout com.
ing to bstte or action. eff men be enliRed
and march," Chat is, if they march prepared
Tor battle or in a condition for Action fer
marching is technical term applied to the
movement Of a military corps) it is an over, aGt
oflevying war though they do not come 70 a
battle or aetioG. This expedition is rendered p
the ftronger by what feems to be put in The
fame fentence as parallel cafe with refpstl 10
a6hering to an enemy. 1t is crulpg under Z
commiiIion from an enemy without committing
any other att of hodiiity. Cruiziug is the at9
ut falling in warke form and in condition TO
aii'ii thoie of whom the cruiZer is in queA.
This expedition which fsems to be that ir-
tended ~ Judge Fofer, ia rendered the more
certain by a reference TO the cafe in the hate
trials from which the extracts are taken. The
words u(ed Ivy the Chief Jraice are " wien
men form ihemielves into a body and mach
rank and file with weapons ofeniive and deftr-
five, this is levyiug of war with open force, ie
the defign ne public" Mr.. Pnipps, the coun6j
for the priinper afterwards obferved, Is Intend
ing TO levy war is not treafOn unlefs war bc
actually levied" To this the Chief Jufice an
fwered, e" is it not aGUally levying Of war, IL
they actually provide arms, aud levy men, srd
in a warIike manner Ct out ard cruize, I'D
come with defgu TO dtlrog our ihips" J5r.
Phipps niIl inlifed it wcu'd not be ain af)ral
levying Of war unefs thty committed fomc or
of honilitY. Yes, indeed, laid the Chief jos.
tice, the going on board ard being in pcfue
TO attack The kings Hips" Mr.. Baron Pow;s
added, " but for you to fay that becaufe they
did not actually fight it is not evying Of war,
IS it not pain what th.y did inteod Tag
they came with that intention, that they car
il. that poture, that they came armed, and hA
Fnns and blunderbufes and fprrouuded the
fhp twice they came with an armed force, that
is itrong evidence Of the defgn."
The point United on by council in the cafe
Of Vaughan, az in this cafe, was, that war could
not be IL led without actual fighting. In tbig