Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1807-09-05

ne questioniOW TO lie decided has been
argued in manner worthy OF its impor-
tatce, and with an earncsucss eviuc,ng
che strong convection felt b. the counsel or
each side that the law Is with them.
a degree OF elcQuence seldom displayed
on any occasion has eMbeilishcd a soiit,ity
OF argument aud 81 depth of research Nv
which tie cnurt has been greatly aided in
tcrm'ng the opiD on il is about To deliver.
The testimony adduced OH the part Of
The y >. toProve the overt act laid in the
fnesctrneDt, having shown, and the attor-
ney the u 3 having admit red, that the
prisoner was not present when that act,
whatever may be its character, was com
United, and there being M reason to doubt
bnt that he was at a great distance and i'm
a different state, it is objected to the tcsti-
mony offered on the par, of the y. States to
Connect him with those who Committed the
overt act, that such testimony is totally IT.
relevent and must therefore be rejec,cd
Inc arguments in support Of this motion
respect In part the merits of the case rs It
may be Supposed to stand independent of
the pieadinSs, and in part as exhibited by
the pleadings.
On the first division of the subject two
points are made
1st, That cuntormably to the constitution
OF the y. >. no man can be convicted of
treason who was not present when the war
was levied.
I'd. That If this construction be erro.
neous, no testimony can be received to
Charge one man with the overt acts of 9th
ers, until those overt acts as laid in the in
dictment be proved to the satisfaction of
the court.
The question which rises on the constitute
ton OF the constitution, in every point Of
il, 1T, 4.
infinite moment to tho people of this cuun-
try and to their government, and requires
the most temperate and the most delibe-
rate consideration.
&c Treason against the United States shall
consist only in lcvying war against them"
What is the natural import of the words
&C levying of war ! and who may be said to
levy il :" Had their first application tn
treason been made by cur constitution, they
would certainly have admitted of some la
titude Of construction. Taken most literal
~Iy they are perhaps of the same import
with the words raising or creating war,
but as those who join after the commence
ment are equally the objects of punishment,
there would probably be general admis-
sion, that the term also comprehended ma
king war, or Carrying on war. In the con-
struction which courts would be required
X
that those who should raise, create, make
or carry on war might be comprehended.
The various acts which would be consider
ed as coming within the term would be set
tied by a course OF decisions, and it would
be affirm ngE boldly to say that those only who
nctually constituted n portion of the military
force appearing in arms could he consider
ed as levying war. There is no difficulty
in affirming that there must be a war or the
crime Of leyying it cannot exist, but there
would often be considerable difficulty in af-
frming that particular act did or did not
Involve the person committing it in the
guilt and in the fact of lcvying war. If for
example, an army shouid-Ge actually raised
for the ayowed purpose of carrying on open
war against the u. s. and subvertire their
government, the point must be weighed We
ny deliberately, before judge would ven
ture to de 1ide that an overt act of ieVyiRs
war had not been committed by commits
sary of purchases, who never saw the arr
my, but who, knowing it's object and cagu-
ing himself with the rebels, supplied that
army with provisions, or by a recruiting
officer holding a commission in the rebel
service, who, though never in camp exc
outed the particular duty assigned to him.
But tic term is not for the first time APP
pl ed to treason by the constitution of the u.
s. II is a technical term. IL is used in very
old statute of that country, whose language
is our language, and whose laws form the
Substratum OF our laws 1t is scarcely
conceivable that the term was not employ
ed by the trainers of our constitution in the
sense which had been affixed to il by those
from whom we borrowed it. Sofa as the
meaning Of any terms, particularly terms
Of art, is completely ascertained, those by
whom they are employed must be consider
ed as employing them in that ascertained
meaning, unless the contrary be proved by
the context. IL is therefore reasonable t.
suppose, unlessi be Incompatible with other
Expressions Of the constitution, that the
term leyying war" is used in that instru-
ment in the same sense in which it was un-
derstood in England and in this country, to
have been used in the statute Of he 25th OF
Edward 81, from which it was borrow ed
1t is SAID that this meaning is 90 be col
lected only from adjudged cases. But this
position cannot be conceded 70 the extent |
In which it is laid down. The superior au
thOrity Of adjudscd cases will never be con- |
troyerted But hose celebrated elemental |
~ VIZ teTs, who have stated the principles |
If the Law, whose statements have recciv- |
ed the common appreciation Of legal men,
are not to be disregarded. Principles laid |
down by such writer's a. Coke, Hale, Fos- |
ter and Blackstone. arc not lightly to he re
fnFfed Ifl0sn Ia III -. 81. ri