Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1807-09-09

adheril'S to the kings enemies, buI they |
have not the authority Of the court tor so
lsaying. The Judges unQucsticnably treat
the cruising oil Vaughan as an overt act Ct
icvying war.
The opinions 81 the best elementary wri-
tcrs concur IN declaring, that where q bo-
dy OF men are assembled for the purpose "i
making war against the government, anG
Fare IN condition To make that war, the as
lsen5lage is an act of levying war. These
opinions are contradictcG by no adjudged
case and are supported by Vaughan's case.
This court is not inclined TO controv,lt
theu,.
But although in this respect, the opinion
| OF the supreme court has not been misrn-
derstood, on the part OF the prosecutions,
mat opinion seems not to have been fully
adverted to IN very essential point in
which 1t is said 10 have been misconceivcd
| by others.
The opirion lam Informed, has been con-
strued TO mean, that any assembly, e what
ever Tor reasonable purpose, whether in
force sr not in force, whether i'm a conti-
ton to use violence or not in that condition,
Us levyirS of war. 1t sthis { Instruction.,
which has not indeed been expressly adj
vanced at the bar, bnt which is sad to- have
been adopted elsewhere, that the court
deems 1t necessary to examine.
| Independent Of authority, trusting only
to the dictates of reason, and expoun,iing
terms according to their ordinary signiiica-
ton, we should probably all concur in the
declaration that war could not he levied
without the employment ard exhibition Of
force. War is an appeal fToro reason 20
sword, and he who makes the appeal evil
dences the fact by the use of the means. -
his intention to g0to war may be proved by
words, but the actual going to warts fact
winch is to be proved by open deed. The
Iend is to be effected by fierce, and it would
seem that Ill cases where no declaration is
TO be made, the state of actual war could
only be created by the employment of force
or being in n condition TO employ il.
But the term having been adopted by our
Iconstitutlon, must be understood in that
sense in which it was universally received
N TINS country, when the constitution was
trained. The sense in which it WAS receiv-
ed Is to be collected from The most apnrov-
ed authorities of that nation from which
we have borrowed the term.
Lord Coke says, that lcvving war against
me King was treason at the common law.
y comprising or conspiracy TO levy war,
he ADDS, lr no treason. for there must be q
levying OF war in fact" He proceeds to
where the direct design is nGt to overturn
The government but to effect some general
Iooject by fierce. The terms he employs in
stating these Cases, are such as indicate an
impression ON his mind, that actual violence
IS Il necessary Ingredient in constituting the
tact OF levyIng war. He then proceeds To
say an actual rebellion or insurrection
Is ievylng of war within this act " " If
any with strength and weapons invasive and
defensive doth hold and defend castle or
Tort against the king and his power, this is
: leVying OF war against the king" These
: Gases are put 70 Illustrate what he tIenomi.
: mates " war in fact" II is not easy to
conceive can actual invasion or insurrecti-
on unconnected with force, nor can a
castle or fort be defended with strength and
weapons invasive and defensive" without
the employment of actual force. It would
seem then to have been the opiricn cf lord
Coke, that to levy war there must be an
assemblage of men in a condition and with
an intention to employ force He certainly
puts no case of different description.
Lord Hale says, G4e, g ~" what shall be
said levying of var is partly question
: OF fact, for it is not every unlawful or riot
: Gus assembly of many persons to do an I'M
lawful act, though de f0cto they commit the
act they intend, that makes a Lowing of
war; for then every riot would be treason,
&c" " but it must be such an assembly as
carries with it Shecienl beih, the appear.
ance of war, as il they ride or march Uer-
ms eThHcais, with col0urs flying, or If
they be formed into companies or furnished
with military officers, or if'thcy are armed
with mil tary weapons as swords, guns,
bills, halberds, pixies, and are SO circum-
stanced that it may be reasonably concluded
they are in a posture of war, which cir
cumstaBces are 50 various that il is hard to
describe them all particularly"
Only the general expressions in all the
indictments of this nature that have seen
are more gnerrino 0rr0iati," arrayod in
warIike manner"
He afterwards adds, "Ifthcre be war
levied as is above declared, viz. an assem-
bly, arrayed in warlike manner, and so in
the posture Of war for any reasonable at
tempt, it Is 6eLiam RUatum 6ls1 not ferrous
sum-"
i u is obvious that Lord Hale supposed an
Iassemblage of men in force, in military
posture, to be necessary to constitute the
fact Of Nvyiug war. The idea he appears
to suggest, that the apparatus of war is ne
lcessary, has been very justly combatted by
an able Judge who has written a valuable
treatise on the subject Of treason; but it is
not Tecollected chat his position, that the
assembly should be in posture of war for
any reasonable attempt, has ever been
denied. Hawk CHI. II, sec. %, says,
|" That not only those who rebel against the
~ avr,e D., H..