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" '-'v . ''rV v y"'' , UnwarpM by party rage,,to live l?le Bpther; ' : .; ' - : . ! ' .. ' ; -- : ' .-v y! . . 'c
-i:7 ry7-Tr ' r - v., .-V: "- ' ..: ; ' Thursday, September 24, 1807' ' I" ' "
Vot Vili. ; ... ,'; " - I . - - ' - - ; ' ' - ' " "' 1 ' ' " '' " ' '' " t '
OPINION OF THE COURT
0.1 tkeinotioh
To arrest the Evidence
,? - in ' 1' - '
33nrrs Cr(al.
Delivered August 31, 1807
.. CONTINUED.'
TAKING this view of the sub
ject, it appears to the court, that
those who perform a part in the
prosecution of the war may cor
recily be said to levy warantl com
mit treason under the coasututicm.
It will be observed, that this opi
nion does not extend to the case of
a person who performs, no act in
the prosecution of the war, who
counsels and advises .it or who
being eDgaged in the conspiracy
fails to pet form his part. Whe
ther such person may be Implica
ted by the doctrine that white Ver
woulvi m:ike a mart an accessary in
felony makes him a principle in
treason, or are excluded, because
that, doctrine is inapplkablfcr to the
TT. States, the constitution hav in
declared that treason shall consist I
only in levying war and having
made the proof of wert acts neces
sary to conviction, is a question
Of vast importance which it wou'd
be proper tor the supreme court to
take a fit occasion to decide, but
which an inferior tribunal would
not willingly determine unless the
case before them should require it.
It may now be proper to; notice
the opinion of the supreme court
in the case of the United States
against Bollman and "Swartwout.
It is said that- this opinion in de
claring that those wKo do hot bear
' arms may yet be guilty of treason,
.is contrary to law, ana is noi oo:i
gatory, because it is extrajudicial
and was delivered on a piant not
argued. This court is therefore
required to depart from the princi
pie there laid down. l
It is true, that in that case after
forming the opinion that no trea
; son could be committed, because
no treasonable assemblage had ta
ken place, the court might have
di pensed with proceeding further
in the doctrines of treason. But
it is to be remembered, that the
judges might act separately and
,p rhaps at the same time, on the
various prosecutions which might
be instituted, and that no appeal
lay from their decisions. Oppo
site judgments on the point would
have presented a state of things in
finitely to be deplored by all. It
was not surprising then, that they
should have made some attempt to
settle principles which would pro
bably occur, and which were in
some degree connected with the
point before them.
Thqfcourt had employed some
reasoning to show that without the r
actual embodying of men war
could not be levied. It might
have be en inferred from this, that
those only who were so embodied
could be guilty of treason. Not
only to exclude this inference but
also to 'inirm the -contrary- the
court proceeded to observe, 1 It U
9
13 not th irstpntinn rti th rniirt te
. . , V
r k- u'uivuuditrtuocuiiiy j pucation ot force or violence are
pftnis crime who has not appeared j indispeoibly necessary to consti
itprms against his country. On ftute the .fact of levying - war. To
w.ia. y, . w r i C sciuauy ie- j
-uvvna,,3, raoouy 01 men be
. , W1. ulc purpose
V1 tuctimg oy xorce a treasonable
K:. 11 1 ' t r -
s. r,i;i,H uy tnat vrmch was probably intended
part, however minute, or however .: to- he this case, and on which no
remote from the scene of action, ; ooservation will be made, the ob
and who are actually leagued m the J ject of thc assemblage was clearlv
nera conspiracy are to be con- ; treasonable r its: character was une'
dered w traitors.' uivocaland was demonstrated
This court is told that if this o- by evidence fdrtiish: W the as
bLT bVnrrJCt"lt.OU8ht BOt t0 -mbbge itself; there jvas none-
tha i n.A . TV 7 C " i drawn from extrinsic souftes, or
that I could not hghtly be prevail- in tto underhand the fact i,
vu on to disobey it. were I u.h i . . ' i .
convinced that it was erroneous,
but I would certainly use any
means which the law placed in ray
fore the
arry tne question; agam condition to uttempt that obiectj
wft' wuui i 1 ir rM : . i l. . i .
consideration irva case in which
it would directly occur and be fully
argued. ;
. The court hjch ave thts bpi
nion1 was composed of 4 Judges.
At the time I thought them unani
mous, but I have since had reason
to suspect that one of them, whose
Opinion is entitled to great res
pect, and whose inxlisposition pre
vented his enteringHnto the discus-
tsi on, on some w uuc puiut
which 'were hot esseotrai to the
derision of the very case under
coJaiderationj did not concur in
thjs particular.pqiilt with his bre.
thj-erk Had the opinion been una
nimous, it would have been given
by a majority of the judges. . But
should the three who were absent
comur with that judge who was
present,' and who perhaps dissents
from what wyas then the opinion of
the court, a majority of the judges
may i ofer liile this, decision.- I
should therefore feel no objection.
although I then thought, and still
think the opinion perfectly correct,
to carry the point if possible again
beforie the supreme court, if the
case should depend upon it.
In saying, that 1 sul think the
opinion perfectly correct, I do
not consider myself as going fur
ther than the preceding reasoning
Oe? Some gcmlenun have ar
gued as if the supreme court had
adopted the whole doctrine of the
English books on ihe subject of
accessaries t treason. But cer
tainly Ruch is not the fa't. Those
only who perform a part, and who
are leagued in the conspiracy are
declared to be traitors. To com
plete the definition both circum
stances must concur. Thev must
" perform a g trt'.whjch will fur
nish the oveit act, and they mut
be "leagued in the conspiracy."
The person who comes within this
description, in the opinion of the
court levies war. The present
motion, however, does jiot rest
upon this point ; for, if under this
indictment the U. States might be
let in to prove the part performed
by the prisoner, if he did perform
any part, the court could not
stop the testimony in its present
stage.; '
2nd. Tbesecond point involves
the character of the overt act
which has bee n given in evidence,
and calls uppn the court to declare
whether that act can amount to
levying war. Although the court
ought no vy to avoid any analysis of
the testimony which has been of
fered in this case, provided the
decision of the motion should not
rest upon it, yet romy reasons
concur in giving peculiar propriety
to a delivery, in the course of these
trials, of a detailed opinion on the j
question, what is levying war ?
As this question has been argued
at grcut length, it may probably
save much trouble to; the counsel
now to give that opinion.
In opening the cse it vvas con-
oiaies anu nas since qeen main
Jitarnirl nn the nat-t nf rhf rn-rc.fii.
- ... .1 . ' r .
;llon inac neifuer arms nor tne apr
. illustrate fhese: positions several I
cases havebeen stated, many of J
! which woUid clearly amount to
treason.
,i .vgwu. w oi V infill, CJiLCUL
In nil rt trynm . . . w n .
pursue a.course ot mtneate reason
ing and to conjecture motives. ; A
force is supposed to be collected fot
a an avowed treasonaole obiect, in
tempt by moving towards it. I
state these particulars, because al-
I though the cases put may establish
tne doctrine tney are mtenaeq p
support, may prove that the ab
sence of arms, or the failure to
apply force to sensible objects by
the actual commission o"f violence
on those objects, may be supplied
by other circumstances, yet, they
also serve to show that the mind
Requires those circumstances to be
satisfied that. war is levied.
Their construction of the opii
hion of tKfe; suprexrie court is, I
think, thus far correct. It is cer
tainly the opinion which was at
the time entertained by myself, &
which is still entertainedi If a re
bel army avowing its hostility to
the sovereign, power, should front
that of the government, should
march and countermarch before
it, should manoeuvr." in its face,
and should then disperse from any
cause whatever, u ithout firing a
gun, I confess I could not without
some surprise, hear gentlemen se
riously contend that this could not
amount to an act of levying war,
,A case equally strong may be pu-.
with respect to the absence of mi
litary weapons. If the party be in
a condition to execute the purposed
treason without the usual imple
ments of war, ' I can perceive no
reason for requiring those imple
ments in order to constitute the
crime.
It is argued that no adjudged
case can be produced from the
Eng'ish books where actual vio
lence has not been committed.
Suppose this were tru. No ad
judge 4 case has, or it is believed,
cau be produced from those books
la .which it hu3 been laid down,
that war cannot be levied withou
the actual application of violence
to external objects. The silence
f the reporters on this point may
be readily accounted for. In ca
ses of actual rebellion against the
govefnment, the most active and
influential leaders are generally
most actively engaged in the war,
and as the object can never be to
extend punishment to extermina
tion, a sufiicient numher-are found
among those tvho have committed
actual hostilities, to satisfy Ihe a
venging arm of justice. In cases
of constructive treason, such as
pulling down meeting houses,
where the direct and avowed ob
ject is not the destruction of the
sovereign power, some act of vio
lence might be generally recjuired
to give to the crime a sufficient de
gree of malignity to convert it into
treason, to render the gu;lt of any
individual unequivocal.
Butj Vaughan's case is a case
where there was no real applica
tion of violence, and where the act
was adjudged to tie treason. Gen
tlemen argUe tht Vaughan was
only guilty of adhering to the king's
enemies, but they have not the au
thority of the court for so saying.
rhe judges unquestionably, treat
the cruizing of Vaughan as an
overt act;bf levying war
.The opinions of the best ele
mentary writers concur in declar
ing, that where a body of men arc
assembieel for the purpose of mak
ing war against the government, &
are in a condition to make that
war, the assemblage is an actjot
levying war These opinions are
contradicted by no adjudged case
and are supported by x Vaughan's
case. This court is not inclined
to controvert them. v .
But although in this respect, ihe
opinion of the supreme court, has
not beei)-miudder8tbDd"-'pn,-. the
part of the prosecution that ppi-
niod seems not to have been fully
advtrted to jn avery tssetitial point
m which it is said to Have beeji
misconceived by others.
T he opinion I am informed, has;
)een construed to mean, that any
assemblage whatever for a treason
tble purpose, whether in force, or
Moot ia force, whether i a coadi
tiOn to use violence or not in thatj
condition, is a levying of war. It;
iRhis construction, which has not i
indeed been expressly advanced at
the bar, but which is said to have
been adopted elsewhere, that ' the
court deems it necessary to ex
amine;." " . - ;r ,
Indeperident bfauthority, trust
ing only to the dictates of -reason. H
and expounding terms according neresary to contiute the fact of
to their ordinary signification, Avtef ying war. The idea be appears
should probably all concur in thtJm suggest, that the' -apparatus of
oeciaration that war could not be
levied without the employment &
exhibition of force. War is an
appeal from reason to the snord.
and he who makes the appeal eviP
dences the fact by the use of the
means. His intention to go to
war may be proved by word, hut
the actual going to war is a fact
which is to be proved by ?peh deed.
The end is to be effected by force,
and it would seem that in cases
where no declaration is to be made,
the state of actual war could onlv
created by the employment of
force or being in a condition to em
ploy it
J3ut the term been having adopted
by our constitution, musi be under
stood in that serise in which it wa
universally received in this coun
t ry,when the constitution was fram.
td. The sense in which it was
received is to be collected from the
most approved au'horities of that
nation from which we have borrow
ed the term.
Lord Coke says, that levying
war against the king was treason
acme common law. " A com
passing or conspiracy to levy war.
he adds, is no treason, for there
must be a levying of war in fact "
He proceeds to state cases of con
structive levying war, where the
direct design is not to overturn the
government but to effect some ge
neral object by force. The terrm
he employs in stating these cases,
are such as indicate an impression
on his mind, that actual violence is
a necessary ingredient in consti'
tuting the fact of levying war. He
then proceeds to say, k an actual
rebellion or insurrection is a levy
ing of war within this ac t." if
any with strength and weapons in
vasive and defensive doth hold &
defend a castle or fort against the
king and his power, this is levying
of war against the king." These
cases are put to illustrate what he
denomthates u a war in fact;" It
is not easy to conceive u an actu
al invasion or insurrection 'ur;
connected with force, nor can tk a
castle or fort be defended with
strength and weapons, invasive &
defensive," without the employ
ment of actual force. It would
seem then to have been the opini
on of Lord Cdke, that to levy war
there must be an assemblage of
men in a condition and with an
intention tt employ force. He
certainly puts no case of a different
description.
Lord Hale sdrs (140. 6) what
shall be said of levying war is part
ly a question of fact, for it b. not
every umawtulor riotous assembly
of. many persons to do an unlaw
fill act,' though de facto they com
mit the act the intended, that
makes a levyitig of war j for then
every not wbuid be treason, &c."
but it must be such an assembly as
carries Iwith rt .stoeciem belli, the ap
pearance of war, as it they ride or
march yvxilus expkcqtisy with co
lours flyings or if they be . fonnc $
inio companies or lurnisnea with
military officers,, or if they are ar
med with military weapons, a
swords, guns, b;l s, halberds
pikes, and are so circumstancetl
that it may be reasonably conclu
acq they are m a posrure ot. war.
which circumstances are so various
that it is hard to describe them ah
particularly."
' Only the general expression
in all the indictments of this nature
that I Have seen are more guerrihG
armatifAirvf edi warlike nmoncr.
' . ' . . " 1 ''"X ' - , .
e afterwards adds, c If ther
bet a Wax; levied as abpvi eclar;
ed, viz. an asVembr arrayed in
Warlike 'manner'aHd slnepolV
ture of war for any reasonable at
temt, it hheilum ihatum Mi ntft "''
:lt. obvinus that Lord H4e
supposed an assemblage of rrieh iri
fore, in a military posture, to be
war is necessan has treen Vcr
justly corribrtted by ariatje Jtide
who has written a va'uabfeireatisc
aiuaDietreatise
on the subject ftreasoi butitis "
riot recollected that his position,
that the asenqbiv :shou'd be in i
posture of War for nriy Reasonable
attempt, has ever Be'eQ cteriledi ;
Hawk. ch. 17. sec. 3. savs, ,
"That not only those who rebel
against the king and tnke;uparms
to dethrone him, but also in many
X)therc3esi those who in a vioi
lent and fore ibW manner withstand
his lawful authority arc said tblvy
war agairtst him, and therefore
those that holda fort or castlea-
gainst the kmg's forces, or keep
together armed numbrrs of men
against thf kind's express com
mand, have bt-en adjudged to lew
war against him." a
(To be cont'nuzJ.y
THE WAR RENTON RACES
Are altered on account of an interference
with t e Belfield Racee.
Will commence on Thursday the
15 h of October.
THE first day, a tnqtch race for
1001. V.'ia, Davis and Smith Colliery
Scond da . a colt& re, iisht subctii
bers fifty, do ilaj-s entrance, JcloSed.
'i'hird day, the Jockay Clnb piirse, twd
mik heats; Weight for ae, for 275 dolls1,
entrance 25 dollars.
The collection at the gates as tsoal tbisi"
two last days.
Balls
dn the eyenings of the races, furnished
by the Proprietor.
AugwtU. A. ANDREWS.
, ' ' ii
73 DOLLARS REWARD .
NEGRO named TOM, anditiPer
son who tyole him. '
TTJrE has been missing since Basted
Monday; IliaVe strong , grounds fot
believing that he has been stolen, and that
the noted Thomas Smith left the' neigh
bourhood at tbe time the. Negro was con
veyed off. Smith went away with, or a
b ut The time, a certain N orris, of Cape
Feat left h s fat her's The above suspect
ed person was gone from hp'm? about fitvtr
weeks, was, in Newoent 'at d Sal ebory,
brought hack with him a gray gelding of
lGOg value, and a quantity of godi not
carrying aw y with h m an iota of visible
property therewith to rjurchas
The negro fallow :s aboui: ..twentyfi ve
years.old, five feet nine or en inches high
very stout snd likely, promhlent cheeks,
his ..eye lashes. good Heal curled, black
completion, weH-Tehavd, and is a most
excerientlabdTjrer, He has a large sear ch
one of his hands, across the junction of hia
rhumb and hand, dons by a knife about
seven years agt. Wt
t will give .50 dollars for the Negro, ad
25 for the tmef. -
Said Thomas Sn :th is again ott upoft
one of his Southern expeditions, and i$
..upp'osed to have carried off property iiot
tivs own; ' -
JOHN RUST EATOHV
Granville County, IT. C AugZ5tb '
IT
One Hundred Dollars Reward
ABSCONDED,
From the Subscriber's Plantation fear -Jamesvdle,
S. C.
AFftlCAN FELLOW,named
George, who can speak sujEEcient
English t ell hs own, and his' ownet' '
name He is abem Jx feet Ugh, straight
i well mdc,,cF a black comiKexK.n.
w'h a smali scar (as weil as can be recol- '
ecieda his cheek boae, tmder-iDnef 6'f ftfi
.3yes, in one of which. there is some small '
appearance rf blemish, thongh the sighvis
perfectly preserved He has . jrtoritry
marks on his face, and is" Ol a pleasing
countenance Titfs Fellow was onci lodged
ii Qrestertield Jaa'with some others that
wcitf off with hitn, whicl were lfterwaroa
etakeq but hema ie escape. '
--The above Ri4rd will la paxl to aiiy
erscw; pruvin to ; coBvictiori of party,
iiat the said Negro Fic-w was haebpi-d
f any white jersou, and a generous !U- ;
:v ard, wuhll expences, for bs delivery 19
he bubscr bet at bis rsidiice, ....-'4 . -
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