The national era. [volume] (Washington [D.C.]) 1847-1860, 1851-10-23
I" LEYYING WAR;

"LEVYING WAR"
The New York Independent has an able ar
ticle on Judge Kane's definition of treason,
from which we take the following extract ;
which brings to light a judicial opinion of much
Importance.
As to the import of the phrase, levying war :"
AGAINST the United States. there can be no rea-
sonahle doubt Lopez levied war-though on
sufficiently reduced scafe-against che Spanish
Government in Cuba and he met the death of
a traitor. His ayowed intention was to over
rnrow me uUyernment 'tosn,,ss s,rSfS oiV,se
is glowing war" within the intent of the Fed
eral Constitution To resist the execution of
specfc law for local or occasional reasons is
not leyying war against the Government. The
Commercial Aderti~r here quotes case in
point from the first volume of Paine's Circuit
Court reports During the embargo it was
quite an object to smuggle goods especially pot
ash. across the Northern frontier into Canada,
and there exchange for contraband British
goods. A raft of potash was seized by the Uni
ted States Collector, at Alburgh, Vermont, and
nut under n guard of United States soldiers.
One Frederick Horie stipulated with the owner
of the raft that he would rescue it and carry it
to the Canada shore and this he did by force
Of arms, driving off the Collector and the United
States troops He was afterwards tried for
treason before Justice Livingston, of the Supreme
Court and District Judge Pane-both of the
highest authority.
The defendant was charged in the indict-
ment, that being citizen of the United States,
and intending to oppose the execution of the
laws thereof and especially the embargo law, he,
with sixty armed men, on the 9th of June 1908,
at Alburgh Vermont with force of arms, resist
ed the Collector, and rescued from his custody
a-certain raft which had been seized by the
Collectors when on its way to Canada; that fur
Their, the defendant and his company had fired
upon the Collector and the United States troops
who we're guarding the raft. The evidence
proved these facts, and further, that although
no one was wounded, the firing WAS in earnest,
and Intended for execution that the defendant
and his men had planned this armed opposition
TO the law and were to be paid $500 if it was
successful: that the defendant was upon the raft,
and actively engaged in firing that he had been
engaged in other attempts to pass the lines with
potashes and that he had occasionally talked
Gbom fighting has ray through"
In his charge, Judge Livingston remarked
Treason not only holds conspicuous, and
generally the first place, in every catalogue of
crimes, but is almost universally punished with
death Government is so high blessing, and
its preservation and support are so essential to
the welfare of the body polite, that to attempt
its subversiOn has ever been regarded a most
aggravated offence But the resentment so
naturally enkindled against those who are sup
posed to aim mt the destruction of the only secu-
rity which we enjoy for life liberty, and estate,
leads us frequently to include under this high
crime offences greatly inferior in turpitude,
much less dangerous in their effects, and in
every respect of different description and ten
dency
$40 prevent therefore, as far as possible,
every abuse by the extension of treason to Often
ces which, in times of public agitation, might,
by violent or corrupt constructions be pretend
ed to belong to it, there was inserted in our
national compact rule which was to be bind
ing IN every department Of Government. To
define and provide punishments tor other crimes
of Federal cognizance is left to Congress; but
with jealousy on this subject which full
knowledge of the excuses that had so often
been committed in other countries by parties
cOntending for dominion was well calculated to
excite, no other trust was here reposed in the
Legislature, than that of prescribing in what
way treason was to be punished For its definl-
y
fundamental law which was to be binding at
allenes, and was not liable to he changed ON
sudden emergency, a. to CRAFTY the ven
geance or promote the views of aspiring OF de-
signing men. In the Constitution we according
ly find this very limited definition of it sTrea-
son against the United States shall consist only
IN leyying war against them or in adhering to
their enemies giving them aid and comfort
And he subsequently adds: when the OBJ
iect of an insurrectiOn liz of IA local or private
nature, not having direct tendency TO DESTROY
oil property and oil government by numbers
and an armed force IT WILL NOT AMOUNT TO
TREASON and in these and other cases that
occur the true criterion IL the intention with
which the parties assembled The learned
justice then reviewed the decisions of our own
courts, and so charged the jury that they ac-
quilted the prisoner
The ease at Alburgh wore much the SEMI
blaDce OF treason. There WAS an avowed pur-
pose To resist the execution Of law Of the
United States; there was "a combination for such
resistance: the resistance was made with arms,
and was directed against United States officer
ADD a portion of the United States army Still
1t lacked the essential element of treason as de-
lined in the Constitution there was no attempt
to overthrow the Government of the States, no
leying war against them" SO the Judge
charged, and 80 the jury found
In the Christana case, according 10 the Rev.
MIR Gorsuch, there was no United States officer
On the ground at the time Of the ARRAY, he hay-
'ng formally withdrawn the process, and called
upon his aids to retire The attempt to make
ueason of such an ARRAY is an outrage alike
u'N the Constitution and common sense. But
a,@s truth is fallen in the streets, and equity
cannot enter.