yowed expressly those former opinions, and had given up the point, that treason could not be committed without actual force, would you punish the accused for acting conformably to those former opinions? Can there be a more rank oppression than to punish a man for doing what he might fairly believe to be lawful, according to the opinion of the judges? Would you pronounce sentence one way, while the context of the law was the other? You will save him from such an oppressive construction, as would involve him in a crime which he never had thought of. There is too much horror in such a construction to believe that you would for a moment support it.

Judge Patterson, in the cases of Vigol and Mitchell, reported in 2d Dallas's Rep. page 346, uses very extensive reasoning indeed, which would have been entirely superfluous, if mere intent and an assemblage were sufficient to constitute treason in levying war. It was unnecessary there, because actual violence and the actual employment of force were proved to have taken place in Vigol and Mitchell. Even when Mr. Patterson cites Foster, page 213, to shew that even the march from Crouch's fort towards Neville's might be considered as actual employment of force, he does not rely on it, but he connects with it the attack on Neville's house with intent to resist the execution of the laws, constituting together the actual employment of force. I believe, therefore, from what forms the basis of this opinion of the supreme court, that it cannot be on this point, authoritative to the extent of the literal meaning; and that it would be inconsistent with itself, if the doctrine now contended for were the true one.

Thirdly. It is repugnant to every case decided in the United States, that has come within my knowledge; for in all of them this actual force has been employed.

In Vigol's case, 2 Dallas's Rep. page 346, violence was committed at Reigan's and Wells's houses, and in Mitchell's case, 2 Dallas's Rep. page 355, violence was committed at Neville's house. In both these cases, Patterson laid particular stress on these acts of violence as essential to the crime. Although Patterson quotes Foster, page 213, there is enough in his general reasoning to shew, that he does not rely on it, as direct autho rity, but shews that Mitchell was sufficiently connected, by evidence, with acts of violence at Neville's house. It is even questionable, whether Patterson's reference to Foster, page 218, to shew that inlisting and marching are sufficient overt acts of treason, without coming to a battle, be supported by the authorities referred to. Vaughan's case, in 2 Salk. and 5 State Trials, is relied on to support it. The indictment in that case contained two counts, one for adhering to the king's enemies, and

the other for levying war. If this case do not, no other case can be found in support of such doctrine. It was for adhering to the king's enemies without the kingdom, and levying war by attempting to cruise on the subjects of Great Britain; his cruising in a vessel with a commission to act against those subjects was certainly adhering to the king's enemies under that count, but would not support the count for levying war.

Patterson indeed says, that the attendance at Braddock's, field would be sufficient, if the designs were treasonable. This had been but faintly urged as a distinct act of treason, because the attacks on these two houses were a sufficient ground of accusation, and the discussion of the effect of an assemblage, without actual violence, was unnecessary. But there may have been hostility at Braddock's field. I do not recollect the history of the transactions at Braddock's field; but from their conduct to the commissioners who were sent to them, to accept of their submission to the laws, there must have been acts of violence committed there. I may add to all these considerations, the repugnance of this doctrine to the objects of the constitution of the United States, in defining treason. Though part of the words of the English statute is used in the constitution, yet all the constructions of that statute, in England, are not to be adopted here, because there are many dieta, and most of them arising out of, and confounded with, the doctrine of compassing the king's death; and which doctrine would never have been adopted, but for the attainment of the great object, a safeguard for the life of the king.

I will not enter into verbal criticisms, though they operate in our favour; but will merely observe, that to levy war is to make war, to wage war. It is admitted, 1st, that a conspiracy to levy war is not treason; 2dly, that actual inlistment of men is not treason, (though both are preparations of war); and 3dly, that individuals marching to a place of partial rendezvous is not treason. These are points established in the opinion of the supreme court, on which gentlemen rely. Here we have every thing but an assemblage. What is an assemblage, but a further step? How shall we distinguish between where inlistment ends, and assemblage begins? Will two make an assemblage? One will not. What is the criterion of an assemblage? Where is certainty to be expected? What rule is there for discriminating these nice shades of distinction? There can be none but the actual employment of force. Constructive treason, we all say, ought to be reprobated, and yet here is an opening made for it. But Mr. Hay says, that it is not constructive treason; that to obtain the opinion of the court what treason is, is necessary. Construction may be necessary, by introducing new persons by anaVOL. II.

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logy; but this is worse than constructive treason; it is fiction; it is legislation. The gentleman has excluded actual force altogether from his definition of treason. But Mr. Hay put one question which deserves considerable attention. He supposed an assemblage, met to subvert the government; that they march and are ready to strike a blow, but are by some means or other counteracted and dispersed before they strike. Would not these men, he asks, be traitors? That gentleman seems to consider the sovereign with respect to the citizens, as the sovereign would regard a foreign power, and that your government would treat your citizens as one sovereign power would treat another. If a foreign power manifest an intention to commit the slightest hostility, it may be considered as hostile and anticipated. This doctrine as applied to individuals is unjust; it makes no distinction between incipient and consummate crimes. You admit that a conspiracy is no treason; that inlistment is no treason. Will you punish as perfect what is but inchoate? Will you transplant to your citizens that which belongs to nation and nation? The rule of law attaches particular punishments to particular criminal acts, according to their different grades, from the highest to the lowest; but never inflicts the same punishment on the lesser crime, which it inflicts on the greater. We have seen how this doctrine might have operated. I have marked the progress of the sedition law from beginning to end. Sedition and libels are both terms of reference: they refer to the government. The dangerous consequences of this law alarmed the people. The facility with which, perhaps, even innocent acts might be construed into libels, excited general apprehension and alarm. Words only expressed or written were the objects which that law punished; and might be made the foundation of the most oppressive abuses by an unjust government. The most formidable conspiracies might be feigned, and loose declarations tortured into proofs of their existence. I wonder, when the reprobation which attended that act is so well known, that a doctrine so much more dangerous to the liberty of the citizen should be advocated.

This doctrine therefore is contrary to all the decisions of every court in the United States.

Thirdly, It is also repugnant to the English doctrine. Even in England we do not find a principle like this. There is no case to be found in the English books of a decision of treason in levying war, where actual force has not been employed.

In Benstead's case, reported in Foster, page 211, 212, there was force; the house of the archbishop was attacked.

In Damaree's and Purchase's cases, page 214, 215, the mob, of which they were a part, demolished meeting houses and at;

tacked the guards who were ordered to disperse them. With regard to the case of Purchase, there was some doubt and diversity of opinion among the judges present at his trial. Why was this doubt? Because it did not appear upon the evidence that he had any concern in the original rising, or was present at the pulling down any of the houses, or any way active in the outrages of that night.

In Oldcastle's case, 1 Hale, page 141, the indictment was principally founded on compassing the king's death, and yet the overt act laid is assembling to levy and actually levying war; page 144, there was actual marching in a warlike manner. All the authorities concur, Foster, Hale, Hawkins, Kelynge and even the inexorable Coke, who while attorney general, had no bowels, confirm all I have said.

In 4th Blackstone's Commentaries, page 146, a riot is described to be an unlawful act of violence, and cannot be without force; it is described by the same words, in substance, as "levying war," by rising or insurrection, or with force and violence. Without insurrection or rising, or what is the same thing, without force and violence, there can be no riot. A riot implies force; it is the same as actual force; and if there cannot be so much as a riot without actual force, surely there can be no levying of war without such force. But see in full strength the case of Green and Bedel, in Kelynge, page 72 to 79. There were four indictments against several different persons for treason, in levying war against the king. The first indictment was against Peter Messenger and William Green and others; and the third against Edward Bedel and R. Lattimer. There were special verdicts found in each case, and different judgments rendered thereon, against the different parties except Green and Bedel. "But as to Green, in the first special verdict, and Bedel in the third, all the judges agreed that the verdict was not full enough to make it treason as to them; because the verdict only found, that they were present, but found no particular act of force committed by them, or that they were aiding and assisting to the rest, which was a matter of fact, which ought to be expressly found by the jury, and not to be left to the court upon any colourable application." This is the only solemn opinion on this point, but it is decisive to shew, that without force there can be no treason in levying war.

This is confirmed by 1 Hale 146, who says, that king's castles may be detained, and if not with force, without treason. CHIEF JUSTICE. Is not that denied to be law?

Mr. RANDOLPH. Not that I know. Indeed I understand it to be confirmed by Foster 219, that to detain a castle without

force is not treason. He says, that "holding a castle or fort, against the king or his forces, if actual force be used, in order to keep possession, is levying war; but a bare detainer as suppose by shutting the gates against the king or his forces, without any other force from within, Lord Hale conceiveth will not amount to treason." Foster, Hale, Hawkins, Coke, Kelynge, Reeves and all other writers, you will find concur in proving, that not a single indictment for treason in levying war has ever been carried into complete effect in England, without actual force.

This treason is divisible into three distinct ideas. 1st. The intention. 2d. An assemblage. 3d. The use of force. If the first and second only happen, what harm can result which will not be punished in a lesser way? If the third shall not be necessary where is the locus pœnitentia? Shall all be punished with death? Will any assemblage of men, without the use of the least violence or force, be said to constitute treason, when they are perfectly peaceable and not even so much as a riot committed? Between such an assemblage and the commission of treason, there is a great and natural space. Shall it be said, that because two out of the three component parts have occurred, the offence is consummated without the third? You see that I am not speaking now with reference to col. Burr, because the crime imputed to him is accessorial; but I am speaking of the principal, as Blannerhassett, Tyler or Smith; that actual force must be proved to have been employed by them, or some of them, or that there was no war levied; but this branch of the subject will be more fully explained hereafter.

The maxim "furor arma ministrat" does not apply to this case. Where a great number meet, with a design to commit universal mischief, and begin it, there their number and fury supply their want of arms; and they are guilty of treason as soon as they proceed to the execution of this universal devastation, though they are not armed with military weapons. But here there is no proof of such a design. The assemblage must be armed in military array; there must be a military appearance, a military exhibition, to make it treason and to connect Blannerhassett with colonel Burr.

Amidst all the difficulties of this trial, I congratulate your Honour, on having an opportunity of fixing the law, relative to this peculiar crime, on grounds which will not deceive, and with such regard to human rights, that we shall bless the day on which the sentence was given, to prevent the fate of Strafford. 6 Hume 340.

The second point, which I propose to establish, is, that Mr. Burr cannot become a principal even if he were an accessory.