Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1807-09-12
Dtrg1nta Irgsts.
R l c II NJ . n ID:
SATURDAY, SEPTEMBER 70, 1907.
Griaf of ssarun a5urr.
OPINION
OFthe Court, on the motion to arrest Tire
eUtdence--deLivered on
MONDAY, August 81.
OPINION

| [ CONTINUED J
| Judge Patterson, In ms opinions deliver
ed IN two different cases, seems not to d.f-
FER from Judge Iredell He does not, in
deed, precisely state the employment of
| force as necessary to const tue a levying
war, but in giving his opinion in cases in
which force was actually employed, he
| considers the crime in one case as depen-
dent on the intention, and IN the other case
lie says, combining these facts and this
design" Chat is, combining actual force
with reasonable DIES gn) "the crime is
high treason"
| Judge Peters has also indicated the OPT
mon tnat force was necessary to constitute
! the crime OF levyng war.
Judge Chase has been particularly clear
and explicit. In an opinion which he APP
pears 70 have prepared on great conside.
ration, he says, "The court are of opinion,
| that II body of people conspire and mcdi-
tate an inSurrection to resist or oppose tie
execution OF a statute of the United States
by force, that they are only guilty of h gh
| Inisdemeanor; but if they proceed to car
! ry such intention into execution by force,
that they are guilty of the treason of levy
ing war; and the qutntum of the force
employed neither increa ,es nor dininsncs
the crime; whether by one hundred or
one thousand persons, is wholly inmate
rial.
The court are of opinion, that COM
omatlon or conspiracy to levy war against
the United States, is not treason uAless com.
bined with an attempt to Carry such COM
jDination or conspiracy mo execution, some
actual force or violence must be used in
pursuance of such design TO levy war; but
that it is altogether immaterial whether
the force used be sufficient to elFectua.e the
object. Any force connected with The N
tention will constitute the crime OF levy
ling of war"
In various parts of the opinion delivered
by Judge Chase, in the case of Fries, the
same sentiments are to be found. 1t is to
be observed, that these Judges are not con.
tent that troops should be assembled in
condition to employ force. According 10
them some degree of force must have been
actually employed.
The Judges ct the United States, then,
SO far as their opinions have been quoted,
seem to have required still moro TO consti-
tute the fact of levying war, than has been
required by the English books. Our Jullg-
es seem 70 have required the actual exer-
else OF force, the actual employment Of
some degree of violence. This however
may be, and probably is, because in the
Gases in which their opinions were given,
the design not having been to Overturn the
government, but TO resist the execution Of
Il law, such an assemb!age would he suiIi-
cient FOR the purpose, rs 10 require the &C
tuel employment Of force ~ render the ob .
jeCt unequ vocal.
But it $ said ali these authorities have
been Over-ruled by the decision of the SUI
preme court, IN the case of the u. States
against SwartwOut and Bolman.
Ii the supreme court have indeed ex-
tended the doctrine of treason, further
than Il has heretofore been carried by the
Judges Of England, or of this Juntrv, .heir
decision would be submitted to- At least
this court could SO no further than to en-
dcavor again to bring the point directly
before them: Ii wGuld however be ex.
lpected that apepinon which is to over-ruie
all former pTecedents, and 20 establish =
principle never before recognized, sho ia
be expressed in plain and explicit terms.
A mere implication, ought not to PROSTATE
principle which seems to have been 90
we'll establ shed. Had the Intent on been
entertained to make so material a change
IN this respect, the court ought to have eX-
preSSly declared, that any assemblaCe OF
linen whatever, who had formed a treason
liable design, whether in force, or not, whe-
Ithcr in a condition 60 attempt the design or
not, wi ether attended with warIike aD.
}pearances or not, constitutes the fact ofle.
wing war. Yet no declaration to this A.
mount is made. Not an express on Of the
kind is TO be fourd in the opinion of the SUI
lpreme court. The foundation on which
this argument rests is the omission of the
court to state, that the asscmblage which
constitutes the fact of levying war ought to
be in force, and some passages, which
show that the question respecting the ma
lure OF the assembage, was not in the
mind of the court when the opinion was
drawn; which passages are mingled with
others, which at least show that there was
10 inten ION to depart from the course Of
the precedents in cases Of treason by levy
ing war.
/ Every opinion, TO be correctly UNDER
s,ood, ought To be considered w,,h view
to the case IN which it was delivered. In
the case Of the United States against Boil
man and Swartwout, there was no evidence
that even two men had ever met for che
purpose OF executing the plan, in which
those persons were charged with having
; participated. It was therefore sufficient
for the court to say that unless mcn were
assembled var soUid not be levied. That