: .j '" AND ' . ' . ; : ' -
Li.-;
am
Qurtaretlie plansoffair deliehtful peactf,
tJnwarp'd by party rage, to live like Brothers.
Thursday October 8, 1807,
Ko. 420
OPINION OF THE COURT
On the motion
To arrest the Evidence
S in
J 35urr's Crfal.
Delivered August 31, 1807- :
CONTINUED.
The first expression in. it bearing
on the present question is u To con
stitute that specific crime for which
the prisoner now before the-court ha
been committed, war must hp actu
ally levied against the United States.
However fiasritious may be the crime
of conspiracy to subvert by force the
government of our couutry, such j
conspiracy is not treason. io con
spire to levy war, and actually to le
vy war, are distinct offences. Thr
first must be brought into opera' ioi
by the assemblage of men for a pui
pose treasonable in "uself, or the fac
of levying war cannot have been com
mitted." f
Although it is not expressly stater'
that the assemblage of men for the
purpose of carrying into; operation
the treasonable- intent, which will
amount to levying war, must be an
assemblage in force, yet it is fairly
to be inferred from" the contex , and
nothing like dispensing With force
appears in this paragraph. The ex
pressions are k'to constitute the
crime war must be actually levied."
A conspiracy to levy war is spoken
bff as "a conspiracy to subvert by
force the government of our coun
try," speaking in general terms of
an assemblage of men for this, or for
any other purpose, a person would
naturelly be understood as speaking
of an assemblage th some degree a
dapted to the purpose. An assem
felage to subvert by force the govern
ment oour coun ry, and amounting
to a levying of war should be an as
semblage in force.
In a subsequent paragraph the
court S3ys it is not the intention
of the court to say, that no individu
al can be guilty of this crime who
lias not appeared in anus againsliis
country. On the Contrary if vr be
actually levied, that is. if a body of
men be actually assembled, in order
to effect by force a treasonable pur
posel all those who perform any
part, however minu-e, &x. and who
tire actually leagued in the general
conspiracy, are traitors. But there
must he an actual assembling of men
for the treasonable purpose to con
stitute a levying of war"
The observations made on the
preceding paragraph apply to th;s.
' A body of men actually assembled
in order to effect by force a treason
Sable purpose," ;hmst be' a body as
, sembled with 'such appearance of
iorce as would warrant the opinion
thatthty were assembled .for the 'par
ticular purpose; an assemblage to
constitute an actual levying of war
should be an assemblage with such
appearance f force as would justify
the opinion that they met for the
purpose.
This explanation, which is believ
ed to be truf natural, .certainly not
strained explanation of the, .words,
derives some 'additional aicl irrim the
terms in which the paragraph list
quoted commences, li is notthe
intention of the court to say that no
individual can be guilty of treason
vho has pot appeared in arms a
gainst Jus count! y." Thee words
seem to obviate an inference which
might otherwise have been drawn
from, the preceding paragraph They
indicate that in the mind of the court
that the assemblage stated in that
paragraph, was an assemblage in
arms. That the individuals who
composed it had appeared in arms
against their country. That is, in
oil
ier words, that the
ssemblajre
was a military, a war like assemblage.
The succeeding paragraph in the
opinion relates to a conspiracy ano
serves to shew thaf force and vio
lence were in the tvdnd of the court
and that there was no idea of extendi
iJ,g Ihe crime of treason by construe
on b yond the constitutional defini
tou which.had been given of it.
lu turning to the case actually be
iorcthe court, it is said 4 a desig.
to overturn the govtrimient of tf.
. States in New-Orkans by force
wu-d have been imqtestionabiy i
n'gn which if earned into txe u
tiou would 'have been treason, uifu
the assemblage of a body, of men for
the nuroose of carrying: it into exe-
cution would amount to levying pm
- r - i . ' - - . . - r I
war against the U. States.
Now what could reasonably, be
said to be an asemblage of a body of
nen for the purpose of overturning
he government of the U. States, in
Mew-Orleans by fbrce : . Certain
ly j an assemblage in force ; .. an
assemblage prepared and intending
o act with force; a military ?asr
emblage. The decisions therefore
nade by the judges of the U;: States,
are then declared to be in conformity
with the principles laid down by the
supreme coun. Is this declaration
compatible with the idea of depart-!
;rgfrom those opinions on a point j
vithm the contemplation oi inc
,ourt ? The opinions of Judge Pat
et son and Judge Ire tell are said to
imply an actual assemblage of men j
chough they rather designed to rc-
nark on the purpose to which the;
:orce was to be applied than on the ,
- ature of the force itself." This ob
servation certainly indicates th-t the
necessity of an assemblage of men
was the particular point the court
meant to establish, and that the idea
f force was never separated from
this assemblage.
The. opinion of Judge Chase is
next quoted with approbation. This
opinion itl ternii requires the em
ployment of force.
After stating the verbal communi
cations said to have been ma ie by j
Mr. Swartwoul to Gen. Wilkinson,'
the c urt says 44 if these words im-!
port that the government of iNew
Orleans was to be revolutionized by
orce, although merely as a step to
dr.a mean of exciting some greater
projects, the drsign was unquestiona
bly tre isonable, and any assemblage
of men for that purpose would a
moi.nt to a levying of war'
The words " any asemb'age of
men" if cou-iiriKd to affirm than any
two or three of the conspirators who
might be found together ufter this
plan had been formed, would be the j
ict of levyng war, would certainly!
be misconstrued. The sense of the
expressions, " anyf assemblage of:
men" is restricted by the words 4for
the contemplalion of the court that
a body of men would assemble for
the purpose of revolutionizing New
Orleans by force, who should not
themselves be in force ?
After noticing some difference of
opinion among the judges respecting
i he import ot the words said to have J
been used by Mr. Swartwout the
court proceeds to observe : 14 But
whether this treasonable intention be
ieally imputable to the plan or not,i
ic is aumi tea mat it must have been
carried into execution by an open as
semblage for that purpose, previous
'o the arrest of the prisoner, in or
der to consummate, the crime as to
him."
Could the court hive conceived
14 an open assemblage" k for the pur-!
pose ot on. i turning the government
of New-Orleans by force" to be only ! assembling at different places and
equivalent to a secret furtive assem-li marching from those places of par
blage without the appeaiance of ' - tial to places of general rendezvous
force? When this has netn d;ne, anassem.
After quoting the words of Mr, !! Wage is produced w hie h would in it
Swartwout, from the affidavit, in '- self be unequivocal. But when is it
which it was stated that Mr. Burr li done ? Wnat is the assemblage
was Kvying an army, of 7,U0t men, heie described ? Fhe assemblage
and observing that the treason to be formed of the differem bodies of par
inferred from these words woula" de- Ual at a place ot general rendezvous,
pend on the intention wih which it ' i In.desciibing the mode of coming to
was levied, and on the progress this assemblage, tne civd term k tra
which had been made in levying it, i veiling' is dropped, and ihemihtary
the court says " the question then is ; term 4 marching' is employed, li
whether-this evidence proves Col.- jj this was intended as a deti lition of
liurr to have advanced so far in levyi.'j an assemblage which would amoum
ing an army as actually to have as-i: to levying var, the definition re
sembled them." , . quires an assemblage at a place ot
Actually to assemble an army of ' general rendezvous, composed of
7.600 men Is Unquestionably to place bodies of men who had previously
tfiose-w4iyo issembjed irf a state. ' assembled at places of partial reli
ef loptn- forcliis-the'mce.ofV divous.? But tbi is not intended
expression used lu!Mj passageijas a dvtinitibu, for c early if thert
mih't be mtsconstrued IVfaf as to : snould be no places of partial ren
countehance the opinion that it Would ; dezvous, if troops should embody in
be necessary to assemble the whole
-army in order to constitute thWact
o levying war, the court proceed to
say, tfr it is .; argued that Since it can -
'pi be netlssary that the whole 7,OG()4
nen should be assembled, their coin vf
nencing ttitfir' march by detachments
o the place! of rendezvous must be
tffkient.to constitute the crime." l -'4
This position is correct, with
some uliiicatibn It'cariiiQV k uti
cessary that ther whole army should
assemble, arid that the various parts
which are to compose it should have
Combined. tBut it is necessary that
there should be an actual assemblage,
iund therefore this evidence should
make the fact unequivocal.
)r4 The., travelling. of individuals to
the place of rendezvous would per
haps not be sufficient. This would
be an equivocal act, and has no war
like appearance. The meeting of
particular bodies of men, and their
marching from places of partial to a
place of general rendezvous would
be such an assemblage."
The position here stated by the
counsel for the piosecutnn is, that
the army, 44 commencing its march
by detachments to the place of ren
dezvous vthat is of the army,) must
Ue sufficient io consti ute the crime."
Thb posi.ion is not admitted by
thy court to be universally correct.
It is said to be ".correct with some
ijfiificatian." What is that quali
ligation ?
' 44 The travelling of individuals to
the place of rendezvous," (and by
this term is not to be understood one
individual by himself, but several in
dividuals cither separately or toge
tlier but not in military form) would
perhaps not be sufficient." Why not
sufficient? Because, says the court,
" this would be an equivocal act and
has no warlike appearance." The
act then shoutd be unequivocal, and
should have a warlike appearance.
It must exhibit in the words of Sir
Nfatthew Hale spfciem bUi, the ap
pearance of war. This construction
is.-rendeied in some measure neces
sary when we observe that the court
is qualify ing the position 44 That
the army commencing the'-r march
by detachments to the place of ren-
d-. zvous must be sufficient to consti- .
t tste the cfime." in qualifying this
-p"tttthn they say", 44 the travelling ot
individuals would pethap-not be suf
ficient." Nowj a solitary individual
travelling to any point, with any in
tent, CvUld not, vvithout a toial disre
gard ol language, be termed a march
ing detachment. The court, there
fore, must have contemplated several
individuals travelling together ; and
the words b.ing used in reference to
the position they were intended to
qu ihl'y, would seem to indicate the
Uihtinct'-.'jn between the appearance
attending the us.ua! movement of a
company of i men lor civil purposes,
and ;hai nviluary muvemei.t which
might in correct language be deno
minated "'marching by detachments."-
The court then proceeded to say,
4 the meeting of particular bodies of
men, and their marching from places
of partial to a place of general ren
dezvous, wonld be such an assem
blage." It is obvious from the context, thai
the court must have intended to state
a case which would m itself b- une-
! quivocal, bf cause it would have a
warlike appearance, increase sla
ted, is that of distinct bodies of men
fttbe first ins ance, m great lorce to
the purpose of subverting the g,bvern-
; meat by violence the act Wuuiu be
unequivocal, it wpuiu nave a Warlike
appearance, and it would, according
to the opinion ol the Supieme Ciu; i
oeily construed, and according to
j the lihglish authorities amount u
VKyyiog war. But this, ihougu not i.
ileH ;n im- as an example ; and
iiui;1y it may be bafciy uca us ;u 1
example. If different bodies of men, i
in pureuance of a treasonable design
plainly proved, should assemble in
warlike appearance at places of par
tial rendezvous, and should march
from those places to a place of ge
neralrendezvous, it is difficult.to con
ceive how such a transaction could
take place without exhibiting the ap
pearance of war without ah obvious
display offorce,. At any rate, acourt
in stating generally such a military
assemblage as yoiild amount to le
vying war, and having a case betre
them in which there was no assem
blage whatever? cannot reasonably be
understood in putting such an exam
ple, to dispense with those appear
ances of war which seem to be re
quired by the general current of au-
thoulies. Certainly they ought not
to be so understood when they say
iu express terms. that44'it'is more
safe as well1 as nKre consonant t
the principles of our constitution,
that the crime of treason should not
be .extended by construction to doubt-
ful cases ; and that crimes not al
ready wiihin the constitutional defi
nition, should receive such nunLsh-
irfet as the legislature in its wisdom
may provide,"
After this analysis of the opinion
of the Supreme Court, i vWll be ob
e-vtd, that the direc '.question wht-
t her an assemblage of men which
might be consti ucd to amount to a
levying of war, mustappeat in fore
or in military form, was not in argu
ment: or in tact before the court, am
does not appear to have been in term h
decided ? The opinion seems,tohau
been -drawn without particularly ad
ver'ing to this question, and there
fore upon. a transient view of parti
cular expressions, might inspire th
idea that a display of force, th it ap
pearances of war were not necessary
iagreidieris to constitute the fact of
levying war; But upon a more in
tent aiid mbie accurate inVestigatioi
of thb opinion, although the term
force and violence ate not employed
as descriptive of the assemblage,
such requisites are declared to be in
dispensable as can scarcely exis
without the appearance of war ana
the exls?ence of real force. It is
stid tha.t war must be levied in facti
that the object liitist be one which
is to be effei ted by force ; th t the as
sembl age must be such as to prove
that this is its object, t lat it must
not lie an equivocal act, without a
warlike appearance, that it must bean
open assemblage for the purposes of
forces In the course of this opinion,
decisions are quoted and approved,
which require the employment ot
force to constitute the crime. It
seems extremely difficult, if cot im
possible, to reconcile these various
declarations with thi idea that Uie
Supreme Court considered a secret
unarmed meefiug, although that
meeting.be of conspirators, and al
hough it met with a tieason ble io
ent, as an actual levying of war.
Without saying that the assemblage
must be in fruce or in. warlike .fo;:mf
ihey express themselves so as o
shew ihat tliis idea was never dis
carded, and they use terms which
cannot be otherwise satisfied.
The opinion of a single Judge cer
tainly weighi as nothing if opposed
to that of the Supreme Court ; but
if he was one. of me Judges who as
sisted in framing that opinion, if
while the lmpressiou under whicli
it was framed was yet fresh upon
his iriind, heuelivered an jpiuton on
the same testimony, not contradic
tory to tnat Iwhich had been given
by all the Judgesioge her, but shew
ing the ense in wluci he under
stood ternis that might be different,
ly expounded, h may fairly be said
to be in some measure explanatory
of the opinion itself; i
To the Judge before whom tht
-barge against the prisoner at the
bir, was first brought, the same tes
timony was offered with that which
iad been exhiuittd betore Supieme
Couri, and he was r. qtiired to give
m opi ,ion in almost tne same case.
Upon this occasion he said, 44 War
canouly be levied by the e mployment
t actual force- Troops must-be em
Vidied t men must be assembled m
;rder to levy war." Afh he ob
served, 44 The fact to be - proved in
his case is an act of public noto
ify ll mst exist iri.ihv.....
lint wurld, w it curiam exist at all.
The assembling bf forces, tn leyY
war is a visible transaction, arid num" .
bersrnuftt witness t.'' t .
, It is hot easv t.dotbt what kind
of assemblage, vas In fhe.rnind'bfi fie
Judge, ivho tisetl M-'ese expressions, ;
and it is to be recollected. that he had -just
returned (?om the SupremeCo'Tt
and was spe-ik:nt;n, the' yery facts
on which tfie; opinipn of that court
1 was delivered.
t The same Judge in his charge to
he Grand Jury who found this b:il,
observed r " to constitute the Fact of
levying, war, k is not necessary that
hostilities shall have actually com
menced bem&giner the military
force of the: United St es. or that
measures violence ag-;i st the go-'
vernment sna I have been carrU d into
into txecu,ioQ. But Je vying war is
a fact, in tht constituticin of .which;
force is an indispensable ingredient
Any coftibmjtttpri to subvert by forces ;
the goverhriieri of the tj. S'.' vioi
lenlly to; dismember the Union, to
compel a chapgV in the admTnistra
non to cderce the repeal or adoption
f a general' law, ir a conspiracy ro
levy yarf aad if the conspiracy be
carried into effect by the actual em
ployment of force, by the embody
ing and assirmbling men for the pur
pose of executing: the treasonable
design whi.h was previously con
ceived, it amounts to levying war.
It has been ht-id that arms are rot
essential to levying warvprovided he
fo ce assembled be sufficient to i t
tain, or pe; heps to justify attempting
he object without them." ThisA
iaragra3h' is immediately followed f
by a reference to the opinion of ih't. !
Supreme Court.
It requires no comment; ry uppji )
hese vJdrds to show, that in th
-opinion ' of- th" judge who uttered!
them, ap assemblage of men w hicla
should conutute th fact ot levying
war must be an ass-mblagt; in f rce,
aod tbvit iie so understood the opi
nion of the supreme court. If in
Jiat opinion, th'-re malj- fiund m
som- pas?ages, a wrii f ccision,
an indeSnitenJss of txpress-on,
which lias occasion .d i to be d fTs
r n Sy understood, by diffefent per
sons, that may well be accounted f t
u hn it ti recollected that in the pui
ticu'ar case there was no assembly-;
whatever. In expounding that opi
nion the whle should b.- taken to
gether, and in reference to the par
ticular case in which it was deliver
ed l .however not improbable i
that the misundersfahding ha- arisen
from this circumstance. The cou fc
"f?0 .did not consider arms
as anlipdispen sable rerjui ite to U vy
ing wiufl jm assembiasre adanferf to
hhe fchjct might be in a cond-tion
lZ c -fr to attempt at without
ther?A.4afe did the . court-cahstder
the ac.tial 'appitcation of the f otr.e
lheMs at all timis, m -iiittis-
pensaDieeqtu te ; for an assem
blage migh, be in a sta e adapted to
real wif, without having made the
actual application of th a force,
trom fhese posiiionsi which are to
be fouM in the bpinibn, it muv h-svc
been iifemd, it is thought h.s
ilyi thu the nature of thrisseni
blage was unimportant. andJfat war
might be c nsinered as actually Ki
vied Ijy any meeting of men, if a
criminal imemior can be i .r-puted to
them by testimony of any kind what
ever, j .
; To be continued
THEASUKY DEPARTMENT,
oi Washington, Apr! 28, 1807.
Pabhc Nctce is hereby given ,
'prlvT in pursuance of a Resolu
tibn of the ComniisFroners of the
S.nkiiig Furd,at a meefnjj held on the 23d
Uy of March, 1807, Josiah Smith, Esn.
Cashier of the OUke pt 'Uiicuvir and De
posit at Ghurleiton, has bet n appointed
Atjent, under the Supehntendace of thr
Secretary of the Treasur)', to in-.ske pur.'
chases, at private sale, of the Eight per
Kent, Stock, on, Public Account. Sucl:
,rsonS, therefore, who a.e Proprietcrs ,
liight per Cent. Stock, standing or me
Books of the Commissi;i.fer. of Loans ti r
Noith-Carolina, and who may buctes-r us
of jelling the same, within the price U
raited bylaw, are requested to niaW Ap-
plication to the Cor.v.aissmner of Xoa?s
at Kaleigh, who wll inform them. t tfts
course to be pursued,. , tfp?v
It is further made . known ,utj?e in
formation of the - parties conceorrt'thit,
agreeably to a Rest Jut'ion oT'iiitConrn'-s-sioners
of ih(e S.iikitig Fund, the I'rWpal
of the Eight per Cent . block w l b ier
bwsd to therispc-ciiTe It prietoi&wi n,i
first fiy of Jar-nayt ' ' . ..
s
4i
X
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