Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1807-09-09
e der fhe statute, although twas not direct.

structive levymg of war and it will be |
perceived that he puts no case in winch
actual crce Is dispensed with.
those also, lie says, who make an in
surreC'ion IN order to redress public grie-
vance, whether 1t be a real or pretended
one, and of their own authority attemrt
Svih force II redress IL, are said to lew
war against The &ius, although they have
no direct design against ms person, mas
much as 'hey lnSo!cntly invade his prero.
8auvc 10y attempting 10 do that by private
authority whicn he nv public IA tice ought
70 do, which mani:est;v tends TO down
right rebellion. As where eat numbers
force attcmptto remove certain persons
IRON the king, &c" The cases here pug
by IL wilkins OF a constructive levying of war,
do in terms require force as constituent
part Of the description Of the offence
Judge Foster, N his Naiutbie treatise on
treason, states the opinion which has been
quoted from Lord Hale, and differs from
that S.iicr so Car as the latter might seem
to require swords, drums, colours. sc
what he terms the pomp and pageantry of
war, as essential circumstances to consti-
tutc the fact o ievying war In the Cases
~ DAN tree and Purchase, he says. 90 the
want o! those circumstances weighed no
thing with the court although the PRISON
ler's counsel insisted much OIL that natter
But he adds, 3" the number of the inSur-
/ gents supplied the want of military wea-
pons: and they were prov ided with axes,
crews ard other tools of the like nature,
proper for the mischief they intended to
eff ct Fxror armG ;v11tiStrat."
tits apparent that Judge Foster here al
ludes toan assemhlage in force, Or as Lord
.fale terms it, " in warlike posture'---
that is in u condition 10 attempt or proceed
upon the treason which had seen contem-
plated. The same author afterwards
states at large the cases OF Damaree and
Purchase from Sth state trials, and they
are cases where the insurgents not only as
sem5ed in force, III the posture of war, or
IN condition to execute the treasonable
design, but they did actually carry 1t into
execution, and did resist the guards who
were sent to dispense them.
Judge Foster states, sec 4, all insurrec-
tons To effect certain innovations of a pub.
TIC and general concern By az, Grmed free,
to DE i'll construction of law, high treason
within the clause ct evying war.
The cases pat by Foster of constructive
iiev!ing OF war, all contain as a material
lInGredient, the actual employment of force.
After going Through ihis branch OF his sub
llect, he proceeds 20 state the law in q case
OF actual leyying war. that is, where the
war IS intended directly against Tie govern
mep,.
He says, sec. 9, can assembly armed
and arrayed in a warike manner for a
Unreasonable purpose is 6eiiilns Hyafun tho
n,t De lam tucuSsRm. Listing and march
ing are sufficient overt-actS without COM
ing to battle on action. So uizing on
the kings subjects under 4 French COM
mission, France being then at war with US,
was held to be adherring TO the kings enc
mics though no other act of hostility be
proved"
can assembly armed and arrayed in a
/ warlike manner for any reasonable pur-
pose" is certainly in state Of force; in
condition to execute the treason for which
/ they assembled. The words " enlisting
and marching" which are overt-acts Of
levying war, do in the arrangement of the
sentence, also imply state OF force, tho
that state is not expressed in terms for
the succeeding words, which state a parti-
cular event as not having happened, prove
| that event TO have been the next circum-
stance To those which had happencd-they
are "without coming to battle or action 81
! "lf men be enlisted and march," (that is.
if they march prepared for battle or in a
condition for action, for marching is a tech
meal term applied to the movement of q
military corps) it is an overt-act of levy.
| ing war though they do not come to bat
tie or action. This exposition is rendered
the stronger by what seems to be put in the
same sentence as parallel case with res
pect to adhering to an enemy. 1t is cruz
ing under commission from an enemy
| without committing any other act ofhosti-
MY Cruizing is the act Of sailing in war
like form and in a condition to assail those
Of whom the cruizcr is in quest.
This exposition which seems to be that
intended by Judge Foster, is rendered the
more certain by a reference to the case in
the state trials from which the extracts
are taken. The words used by the Chief
Justice are "when men form themselves
into body and march rank and file with
weapons offensive and defensive, this is le-
vying of war with open force, If the de-
sign he public" Mr.. Philips, the counsel
for the prisoner afterwards observed, 0In-
tending to levy war is not treason unless A
warh he actually levied" Tothis the Chef
Justice answered, "Is it not actually lew
ing OF war, If they actually prov de arms,
and levy men, and IN warlke mamie r
set out and cru;ze, and come with design
to destroy cur ships?" MIR Phirps still IN
sisted "it would not be AZ actual levyinr
OF war unless TREY committed some act Of
! hostility" eyes, indeed, said the Chief
Justice, the going on board and being in a
posture to attack the kings ships" Mr..
Baron Powia added, "but for Won m s,v
that because they did not actually firhr II
I tn mi q loo r.,rs &C., 4