The enquirer. [volume] (Richmond, Va.) 1804-1815, 1807-02-06

tie means for military expedition agaiuff a
foreign ftate in amity with the u. S. Yet theie
acts, perpetrated by their own eiizeus againf
the U. S. are no where expressly forbidden, no
where enumerated among the crimes prohibited
Or rendered penal by act OF Congr,ts. At the
very hrit FELTON,, held under the pr.sent confti-
tuition, law was PafIrd for punifhing treafon,
piracies and various other crimes; but no men
ton is made of any finch offences, as ftti9g out
armed hips, aud Fitting foot military expe.
ditions with intent to commit holtilities againt
the US II follows either that thofe acts may
be committed with urquefioned IMMUNITY,
or that they amount TO k1,ying Of guar, and 70
conft;ute the crime of treafon. That the fame
Indications of hoaiiity ihould be made highly
penal, when directed againit foreign nation,
] but be deemed innocent or remedilefs when di-
rected by their own citizens againft the u. S.
would he an abfur1ity too monitrous to be fup-
pofed of our penal code. The more rational
conclufon is that they are comprehended, ex-
vi termini, in the crime of levying war againit
the U. s.
AS to the queRion of fact whether any trea-
fon, coniiting of a levying Of war agaiult the
U. S. has been committed by the prifoners or
their confederates it is prefumed fufiicient evil
dence appears to warrant an arreit and commit
ment. An exiting fate of bellgerenoy, whe-
Their of war dc fatto, or proclaimed by mani
| fcfto war of rebellion, or between two TO-
vereign ftates a war merely LeVied, or fragrant
war accompanied by open violence and actual
hotility under any of thefe notifications it
is generally 70 far matter OF public notoriety
that all the funttionares of the fate engaged
mutt take notice of it ex e6seio. The common
report and public notorety of :. matter, in
which the fate in its fovereign capacity and
every individual citizen 70 intimately con-
cerned, furnifh prinin faeie prefumption fuf-
| hcient to warrant the iHcpient procefs prelimi-
nary to pr ofecution. 1t was in faet matter
of public notoriety that the confpirators, of
whom the priloners are the active confederates,
have entitled folders, l1ued commiliions, fet
on foot a military expedition, and in fact have
aiiumed the pofure of war or in other words,
have 'levied war; In confirmation of this, the
chief magifrate, who is conlttutionally autho-
rifed to give official information to congrefs of
the ftate of the nation, has in formal mefiage
| to both Houfes of Congrefs, announced the
| cxiltence of fuch fate of things. That COM
munication alone furniihed to the courts and
officers of the U. S. brinrn faeie evidence (of an
actual levying of war; for all purpoies except of
conviction and condemnation.
| MIR. Jones mentioned that his occupations
had not yet allowed him to perufe the Pref
dents meffsge; it being publilhed only that
morning. He could only fate its general i'm
port from heartily. The meffage was at length
produced and read by him to the court.
! The chief judge, doubted in the hrtt place,
whether the Prelident's mefage did in fad an
nounce levying of war; and if it did, whether
the court could proceed in airy manner upon
fuch information, without infringing tae 9th
article of the amendments to the contribution,
| which declares that 'no warrants ihall ihue,
but upon probable caufe, Imported by oath or
a6frmation,' sc.
| MIR. Jones. The PreGdent's mehage does
furcly import that there has been an actual levy
ing of war. He announces the letting on foot
! OF a military expedition f; the preparation of
warlike flores and equipments z; the actual af-
| fembage of from 100 to 500 of the defpcradoes
engaged in the oonfpiracy, and their deficient
down the river towards the place of their def
4 tination. Above all, he announces that he has
called forth the militia to fupprefs this enter
prize, and ordered them to every nterefting
point on the Ohio and Mififipp from Pittf-
burg to New Orleans, for the purpofe of fsizing
the boats and flores and arrefting the perfons of
the confpirators. For the fame obed the ffates
of Kentucky and Ohio have embodied and fent
| out large detachments of their militia. There
Can icarcely be cafe, fhort of fragrant war
and actual battle, that combines fronger or
more numerous circumstances, ef1eDtially con-
ftituting fate of bellig.rency. The very fact
of the Prefident's calling forth the militia for
any purpofe of domeftic coercion, frongIy i'm
plies that there is at leaf ievying of war a.
ganft the u. S. He is authorized by law to
do 70 in two cafes only. The frft is that of an
actual infurreetion againf any fate. The fe-
cond of attuaLoppoftion to the laws by COM
binationJ too powerful to be fuppref1ed by the
ordinary courfe of judicial procee dings. The
Taft cafe may perhaps extend to inftances of op-
petition to the laws, by combinations not trea-
fonable in their nature, nor proceeding to the
length oflevying war againft the S. 1t may
comprehend the cafe of unlawful aiIemblies of
men, who violently re6f and overbear the due
courfe of legal jutice, but who from the nature
of their defgns and ultimate Object, are no fur
ther criminal than az rioters and di1urbers Of
the peace. As to the degree of the crime conf
mitted by Burr and his afrociates, it is either
freG(0n or nothing. The treafonable intent is
efficiently demonstrated if they have pro-
ceeded to the execution of that intent, they un-
queftionably have incurred the penalty of trea.
ION. There can be no pretence that they are
merely combination of rioters, affembed TO
obhrud the due execution of the laws The
act of Congress authorizing the Prelident to- call
forth the militia, furnifhes one important prin-
Il ciple applicable to this cafe. He Can only ex.
erciie that power in cafe of actual inlurretion,
of actual oppohtion. No plot or conipiracy
how nefarious, how menaciDg and dangerous
foever, can authorize the meafure, unlefs fome
overt aGt is done in execution of the defgn.
| So long as it remains a mere unexecuted
| purpofe lift even menaced the enormous evil
L nf IL en- H., C Al r