Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1807-03-03

'ortant to the citizen or to the government
hone can more affect the safety OF both.
To prevent the possibility oEthose calami-
ties which result from the extension of trea-
son TO fences nj minor impc rt.lnce thateIe eat
fundamental law which defines & limits the
various departments ofour government has
given rule on the subject both to the le-
gislature and the courts of America which
ne'thc" can be permitted to transcend.
Treason against the u. 5. shall consist
only Ill levving war against them, or in adj
herring TO their enemies giving them aid and
comfort"
To constitute that specific crime for
which the prisoners now before the court
have been committed, war must be actual
ly levied agains, the United States. How
ever hagitious may be the crime of conspir-
ing to subvert by force the government of
our country, such conspiracy is not treason.
, Io conSpire to levy war, and actually to le-
Wy war, are distinct offences. The first
rnusi be brought into operation by the as
sembiage of men for Il purpose reasonable
i'll itself, or the fact of lcvying war cannot
have been committed. SO far has this
principle been carried that, in a case re-
! ported by ventries, and mentioned in some
IN de"r tr :tt'ses on criminal law, it has been
determined that the actual enlistment of
! men to serve against the government does
! not amount to levying war. 1t is true that
| in that case the soldiers enlisted were to
! serve without the realm, but they were en-
| listed within 1t, and if the enlistment for
| reasonable purpose could amount to levy
ing war, then war had been actually levi
ed.
| 1t is not the intention of the court to say
that no individual can be guilty ofthis crime
who has not appeared in arms against his
country. On the contrary, if war be actu-
ally LIVED, that is, If 4 body of men be actu
ally assembled for the purpose of efecting
by force, a reasonable purpose, all those
who perform any part, however minute or
| however'remotc from the scene of action,
and who arc actually leagued in the gene
raj conspiracy, arc to be considered as trail
tors. But there must be an actual assem-
bling of men for the Unreasonable purpose,
to constitute a levying of war.
Grimes so atrocious as those which have
!. for their object the subversion BY violence
of those laws and those institutions which
have been ordained in order to secure the
| peace and happiness of society, are not to
escape punishment because they have not
ripened into treason. The wisdom of the
legislature is competent to provide for the
case; and the trainers of our const tuition
who not only defined and limited the crime,
but with Jealous circumspection attempted
to protect their limitation bv providing that
no I,rr-on should be convicted of it, unless
on the testimony of two witnesses the same
overt act, or OH confession in open court,
must have conceived it more safe that pu-
nishment in such cases should be ordained
by general laws formed upon deliberatlon,
under the influence of 10 resentments, and
. without knowing on whom they were to o.
) perate, than that 1t should be inflicted I'M
der the influence of those passions which the
occasion seldom fails to excite, and which
a flexible definition of the crime, or a con-
, struction which would render it lcxibIe,
might bring into operation. 1t is therefore
more safe as well as more consonant to the
principles ofour constitution that the crime
OF treason should not be extended By con-
struction to doubtful cases and that crimes
not clearly within the constitutional dcfin-
ton should receive such punishment as The
Legislature i'll its wisdom may provide.
10 complete the crime of levyng war
against the u. S. there mus: be an actual
assemblage Of men for the purpose OF exc
cutting reasonable design. In the case
now before the court, design to overturn
the government of the u. 5. in New-Or-
leans by force, would have been unquestion-
ably design which if carried into exccu-
ton would have been treason, and the as
scmbiage OF a body of men for the purpose
of carrying it into execution, would amount
to lcvyin!. ri var against the u. S. but no
conspiracy for this object, no enlisting OF
: '3en to effects, would be all actual leyyirg
of war.
In conformity with the principles now
laid down have been the decision hereto
fore made by the judges of the u. States.
The opinions given by judge Paterson
and judge Iredell in cases before them i'm
ply an actual assembling of men though they
rather designed to remark on the purpose
| TO which the force was to be applied than
on the nature OF the force itself Their o.
pinions however contemplate the actual
employment of force.
Judge Chase in the trial of Fries was more
explicit.
He stated the opinion of the court to be
"that it a body of people conspire and me-
ditate an instruction to resist or oppose
the execution of any statute of the u. s. by
force, they are only guilty of high INSIDE
| meanor; but if they proceed to carry such
! intention into execution by force, that they
/ are guilty of the treason of lie, ing war
! and the 9naHtHm of the force employed,
neither lessons nor increases the crime !:
! whether by one hundred, or one thousand
/ persons, is wholly immaterial. "The court
I are fopinion," continued Judge Chase, on
( that occasion, "that a combination or con-
d